On the Chagos Islands, Britain has a moral obligation to become a pariah state

When a group of more than 5 people agrees on something, they invariably go mad. The more they agree, the tighter the bonds, the more susceptible they are to madness. It is a process established in network analysis as the “Zollman Effect”, which states that tight-knitted communities are prone to overindexing on a particular consensus, leading to exponential biases or, in other words, collective derangement.

I find the Zollman effect to be an exceptionally useful analytical tool. It explains the dynamics of certain political communities, and the ever-widening chasm in British multiculturalism. It also explains, I suspect, the determinations of international bodies on the lawful sovereignty of the Chagos Islands, which has now led to an agreement in principle on the transfer of sovereignty to Mauritius. The case is a stellar example of compounding legal derangement, where an incorrect and inappropriate ruling by the International Court of Justice (ICJ) in 2019 was used as a basis for a further ruling by the International Tribunal for the Law of the Sea (ITLOS). In other words, the UK has been made victim to an international court version of the Human Centipede.

There are no two ways about it. The ICJ overstepped it’s jurisdictional constraints. Long established in the ICJ’s jurisprudence is the Monetary Gold principle, which dictates that the ICJ cannot rule on contentious cases under which one party has not recognised the authority of the court. The UK had consistently rejected that authority, arguing that as a Commonwealth country Mauritius is governed by alternative mechanisms of dispute resolution, and that otherwise this is a bilateral territorial dispute, governed by contracts not privy to the ICJ’s determinations (such as the Lancaster House Agreement) and bilateral resolutions. The ICJ tacitly accepted this jurisdictional constraint. The decision to issue an Advisory Opinion was taken to circumvent the Monetary Gold principle, which was recognised as inappropriate in the opinions of Judges Tomka and Donoghue, issuing the opinion, and later by Judge Donoghue at a CAHDI speech in 2021.

Much legal opprobrium followed the decision of the court in 2017 to undertake an advisory opinion, and then again in 2019 on its completion. The UK’s representations were steadfast in criticising the decision of the court to intervene. Nevertheless, the Advisory Opinion process produces a non-binding determination, which the UK is not obliged to follow even if fully committed to compliance with international law. Where this became binding, as far as the Foreign Office is concerned, is in the 2021 ITLOS judgement on preliminary objections on the Mauritius/Maldives dispute over the sea borders concerning the Chagos Islands. While the UK was not a party to the case, and determinations bind only consenting parties, the decision is binding somewhere. On whom it is binding is a matter of legal technicality. In any case, by using the determination of the ICJ, ITLOS ruled on an unstable basis.

Unfortunately for the ICJ, and subsequently for ITLOS, a commitment to a rules-based international order cuts both ways. Overstepping jurisdictional constraints and ignoring the Monetary Gold principle makes each determination inadmissible as a matter of international law jurisprudence. ITLOS gave force to the ICJ’s ruling by using Mauritian sovereignty over the Chagos Archipelago as a basic legal fact. It is on this basis that ITLOS concludes that the advisory opinion has “legal effect” - producing such legal effect by scaffolding the dispute as they did, assuming Mauritian sovereignty over Chagos. A commitment to international law by international courts would have, without a doubt, seen the case thrown out.

Aside from jurisdictional concerns, the actual determinations of the case were fundamentally contradictory. The ICJ rules that the Chagos Islands were, at the point of detachment in 1965, an integral part of Mauritian territory. How could this be, when the Chagos Islands were moved between three different administrative zones since the time of first inhabitance to 1965, and spent the longest spell of this timeline in the zone comprising the modern Seychelles? Why not, in other words, rule that the atolls were an “integral” part of the Seychelles? I am willing to accept, with reservation, that you have to choose an arbitrary point to set borders, so to protect them under international law, but that the arbitrariness of such a proposition entails a less dogmatic approach to determining. Correspondingly, the Lancaster House Agreement, which saw the UK pay £50m in today’s terms for the detachment of the archipelago from Mauritius ought to be accepted as a binding contract under which the transfer of sovereignty was upheld.

But by far the most mind-boggling of the court’s errors is the elision of the right of the Chagossians to self-determination and the territorial sovereignty of Mauritius. The history of the islanders is a complicated one. They are not “indigenous” in the way many commentators have assumed. When the French landed on the tropical atolls of the Chagos Archipelago, they were uninhabited. The Chagossians, or the Ilois in the French, were a mix of slaves and indentured plantation workers, brought to the Islands in 1783 as a labour force. There they remained from first inhabitance to the 1970s, when the British expelled the Chagossians to make room for the new Diego Garcia military base promised to the Americans. This has been widely recognised as a crime of some kind, whether it be under international law or moral law, including by the Foreign Office which called the affair “shameful”. There is a sound argument here, which compels the British government to supply at least visitation rights to the Chagossians, if not the right of abode.

But a sound argument can be taken to absurd conclusions, which is what happened in this case. The right to self determination in international law necessitates the designation of a distinct group. When the court rules that the crimes against the Chagossians are an example of the incomplete decolonisation of Mauritius, it collapses these distinct groups - the Chagossians and the Mauritians - into one. This is a flat contradiction. If the Chagossians are a distinct group, they cannot be an outstanding impediment to Mauritian decolonisation. On the other hand, if the Mauritians are entitled to the Chagos Archipelago as an integral part of their territory, the Chagossians need neither visitation rights nor the right of abode in order for the decolonisation of Mauritius to be completed by the conditions of the court.

Lord Cameron, as Foreign Secretary, presented a red line which forced the issue. The UK, in the January negotiations, took the position that it was willing to allow Mauritius to exercise sovereignty over the Chagos Archipelago, on the conditions that the Chagossians were not provided with a right of return. This seemingly longstanding position of the United Kingdom took on a fundamentally different character after the ICJ’s contradictory ruling. Lord Cameron asked Mauritius, the court and other relevant parties to choose - will you have the transfer of sovereignty without the Chagossian right of return, or the Chagossian right of return without the transfer of sovereignty?

The position, which I will call '“Cameron’s Trap”, offered the UK a pathway out of compliance without a flat rejection of the authority of international law. David Lammy, the current Foreign Secretary, maintains that an international law body would have made a binding (i.e. “lawful”) determination eventually, on the basis of the ICJ’s opinion. It matters little. Should such a binding order be passed, the UK would have been in a position to maintain their red line, and thus remain within the legal contradiction of the ICJ. That was until Lammy, undoubtedly on the advice of the Foreign Office, scrapped all that and simply gave it all up.

Even if Cameron’s Trap failed, the UK would’ve still had a duty to resist the ruling, to become a pariah state, but the pathway revealed by Cameron’s trap elegantly maintained the UK’s commitment to the rule of law without compromising on the rejection of the ruling. It seems that Lammy’s Progressive Realism is deaf to elegant diplomacy.

In any and all cases, there is a more fundamental issue at play here. What is the purpose of international law? To facilitate rent-seeking by less powerful countries? To build out on bad determinations to produce further bad determinations? Or is it to help us conform to that which we already know we must do?

There is a theory in jurisprudence, put forward by the recently deceased Joseph Raz, that our obligation to comply with law is a function of its ability to help us conform with moral obligations. National justice systems have a range of direct enforcement options, which is why we consider wrongful convictions in the highest national courts to be an automatic injustice, as the enforcement of the conviction is a sure part of subsequent proceedings. The picture with respect to international courts, which have limited enforcement options, is a little more complicated. Because no single agency or power will compel you to comply with international law, try as international organisations might, a state party to a ruling of international law has a choice to comply or not to comply. The principle I hold to, inspired by Raz, is that we ought to comply with international law if such compliance helps us conform to our moral obligations. Russia, for example, must comply with international law.

But should Britain? When a court hallucinates a set of legal facts, when it misappropriates a moral harm to facilitate Mauritian rent-seeking (literally) and when it clearly violates its own jurisprudence, we not only have no reason to comply with the court but have a reason to actively resist it. Such resistance serves, in point of fact, to hold the ICJ to the rule of law obligations to which it makes formal commitments, and resists the potential injustice that might befall Britain by the ICJ’s errors. That, in turn, allows the ICJ to maintain its authoritative position through which it supports state-level compliance with moral obligations. To save international law, in other words, Britain must reject it at its very worst.

For these reasons, I submit that Britain has a moral obligation to become a pariah state. It cannot comply with the ICJ. Of course, this is a done deal. My words, even if in the unlikely event that they are unimpeachable, will not change a thing. But what cannot be lost is that when Lammy inevitably finalises the transfer of sovereignty of the Chagos Islands, he is violating not only the national interest, but the basis of international law and the basis of justice too. Gross negligence of this magnitude must haunt the new Foreign Secretary for the rest of his life. History may well be written by the victor, but it can be a consolation for the loudest losers too.