A Human Rights Critique of the Mauritius Treaty

The Joint Committee on Human Rights is having an expert witness session on the Human Rights implications of the Mauritius Treaty.

This is important because the Government has gone out of its way to sell the Mauritius Treaty and the Diego Garcia Military Base and British Indian Ocean Territory Bill on the basis of its commitment to human rights and ‘the rules based international order.’

In December, however, a key organ of the Rules Based International Order, the UN Committee on the Elimination of Racial Discrimination, published a ‘decision’ which was not only highly critical of the Treaty from a Human Rights perspective in terms of, among other things, denying the Chagossian people self-determination and compensation. It also called on the UK Government and Government of Mauritius to suspend ratification of the Treaty.[1]

When people go to a lawyer for advice because they want to advance their particular interest, or to defend themselves against an accusation, they are not asking the lawyer to take a global view about what is right but to provide advice about how best to advance their cause.

What laws can help my client achieve their purpose?

What laws might constitute an obstacle to their doing so?

When Mauritius sought legal advice about how to advance its interests in relation to the Chagos Islands it would have been confronted by the fact that there is one legal principle that is useful to them, territorial integrity, and another that is a potential problem, self-determination.

On the former, the UN Declaration on Decolonisation states that prior to decolonisation a colonial power should not seek to change the territorial integrity of the colony.[2]

On the latter, international law is also clear that the boundaries in question are not sacrosanct. They were after all the result of decisions made by a foreign power. The point was simply that those who had been colonised should be free, without external interference, to self-determine their boundaries going forward. The rules for how this self-determination would work and how it might change the territorial integrity of the colony on decolonisation were set out in UN Resolutions 567 (VI), 648 (VII) and 742 (VIII), as well as in the UN Declaration on Decolonisation itself.[3]

Thus, territorial integrity is not something frozen in time but subject to self-determination.

In this context the principle of territorial integrity has been very useful to Mauritius in seeking to claim the Chagos Islands, because they were detached in 1965 before decolonisation in 1968 and their detachment was thus in violation of the UN Declaration on Decolonisation.

The principle of self-determination, however, is potentially unhelpful because it is possible that the people of the Chagos Islands might not self-determine to remain part of the same territorial integrity as Mauritius.

It is only when we have regard for both these considerations that justice can be done.

There is, however, an added complication in the case of the Chagos Islands.

The Chagossians were forcibly removed from the Chagos Islands by the UK between 1968 and 73 and so are not present to exercise their right of self-determination from their islands to decide whether, on decolonisation, they wish to remain with Mauritius, or be a partly self-governing, resettled British Overseas Territory.

Clearly if the Chagossian people no longer existed then the Mauritian claim to the Chagos Islands could depend simply on the principle of territorial integrity but the Chagossians are still very much alive, living in forced exile, principally in the UK, Mauritius and the Syechelles.

In this context the fact that they have had their rights violated by their forced removal, and forced exile, should not be used to justify denying them the right that they would now enjoy if they remained living on the Chagos Islands: namely to self-determine as the Chagossian people in relation to their Islands.

To use the fact that they have been wronged once to justify their being wronged again would plainly be perverse, to heap up one injustice on top of another.

Where do we go from here?

In order to establish whether the Mauritius Treaty rises to the presenting human rights challenge, we must work through four considerations.

1) Where did things start to go wrong

People often talk about the human rights violations of the Chagossians starting with their forced removal from 1968 until 1973. In truth, however, understanding the human rights abuses of 1968 to 1973 necessitates our going back to 1965.

Although it is often said that there should be no change in the territorial integrity of a colony before decolonisation, the truth is that colonies have split up legitimately in the run up to decolonisation (as acknowledged by the International Court of Justice) where proper self-determination mechanisms have been provided. The colony of the Gilbert and Ellice Islands provides a good example in this regard because the two constituent islands of the colony were like Mauritius and the Chagos Islands in that they too were: i) separated by a huge distance, 800 miles compared to the 1,339 miles between Mauritius and Chagos, ii) contained significant populations differentials, the Gilbert Islands being far more populous than the Ellice Islands, as Mauritius is far more populous than Chagos and iii) populated by different people groups.

When it came to their decolonisation, instead of just talking to the Gilbert Islands, the UK Government spoke to both islands about decolonisation and were told by the representatives of the Ellice Islands that they had no desire to be made part of a sovereign independent state with the Gilbert Islands because the Gilbert Islands had a bigger population and the Ellice Islands would be in a constant minority. The UK Government responded by providing the people of the Ellice Islands with a self-determination referendum with the options of separating from the Gilbert Islands or continuing to be joined to the Gilbert Islands. While the result was not unanimous, there was a very clear majority for separation and so the colony was split into two in 1976 and the Ellice Islands became the independent state of Tuvula in 1978 and the Gilbert Islands the independent state of Kiribati in 1979.[4]

For present purposes, the human rights violations of Chagossians started in 1965 not in their detachment from Mauritius but in their detachment from Mauritius without a self-determination referendum. The failure to afford the Chagossian people this basic dignity is actually compounded by the fact that the Chagos Islands were, in the words of the International Court of Justice a ‘dependency of Mauritius’. In this, rather than standing on all fours with Mauritius in the same colony, as had the Ellice Islands in the colony of the Gilbert and the Ellice Islands, there was already far greater doubt hanging over whether the Chagossians would regard themselves as part of Mauritius and thus a far greater imperative to afford them a self-determination referendum than the residents of the Ellice Islands.

The failure to provide a self-determination referendum for the Chagossian people in 1965 was absolutely central to their forced removal between 1968 and 1973. It would have been impossible to afford them this dignity in 1965 and then start forcibly removing them three years later. Treating them in 1965 as if they did not exist was pivotal to then being able to forcibly remove them.

Although we cannot be sure, it is very hard to imagine that the Chagossian people would not have voted for separation from Mauritius in 1965. They had had very little to no contact with Mauritius. Mauritius was over one thousand miles away, far, far more populous, and peopled predominantly by those of Indian rather than African extraction. Why would they want to subject themselves to the majority of what was effectively a foreign country?

2) The Impact of Forced Removal and Forced Exile

Although it is important to understand the presenting human rights challenge from 1965, what happened between 1968 and 1973 is immensely important. The heart of the difficulty with the Government’s assertion that the Mauritius Treaty corrects past injustices and concludes decolonisation specifically with respect to the period 1968 onwards is expressed very clearly by Misley Mandarin, the First Minister of the Chagossian Government in Exile.

‘The people of Mauritius were not forcibly removed from their islands between 1968 and 1973. In fact, they made themselves an accessory to our forced removal agreeing to be the place to which we were forcibly removed. In so doing they eloquently demonstrated that the Chagos Islands were never a part of Mauritius but were treated as (in the words of the International Court of Justice) ‘a dependency of Mauritius’. Had the Mauritians been our brothers and sisters they would have no more tolerated the events of 1968-73 than would the true mother of the baby boy presented to King Solomon have permitted his being cut in two.’[5]

The presenting problem with the Mauritius Treaty is that it acts as if Mauritians had been forcibly removed from their islands such that they must now be returned to Mauritius but there was no attempt to forcibly remove them between 1968 and 73 or to keep them in forced exile thereafter. Moreover, any suggestion that Mauritius might claim that the Chagossian people were in some sense part of the same polity, such that they could be regarded as Mauritian, was not only problematic on the account of the fact that the Chagos Islands had only ever been a dependency of Mauritius, but is fatally compromised by the conduct of the Mauritians in becoming a party to the forced removal of the Chagossian people.

In a context where the Chagossian people are not on the Chagos Islands because of their forced removal, which would not have been possible without the Mauritians, giving Mauritius the Chagos Islands in the absence of a prior Chagossian self-determine referendum, as proposed by the Mauritius Treaty is deeply, deeply problematic.

3) The Mauritius Treaty and Resettlement

The Mauritius Treaty then further compounds the presenting injustice by expressly refusing to provide the Chagossians a right to resettle their islands. Article 6 merely states that Mauritius has the right to resettle the islands if they wish. To the extent that the transfer of sovereignty to Mauritius gives it the right to do anything in relation to the islands other than that expressly prohibited by the treaty and international law, the provision of Article 6 is rendered significant for drawing attention to the fact that Mauritius does not want to be held to resettling the Chagossians and the willingness of the UK Government to agree to this. The failure of the Treaty to provide a right of resettlement is underlined by the fact that its only commitment in relation gaining access to the Chagos Islands is set out in Article 10 and pertains not to the Chagossians but to Mauritian contractors in relation to working on the military base on Diego Garcia. Moreover, in September the Prime Minister of Mauritius revealed that Mauritius does not even have the capacity to ‘visit’ the Chagos Islands to raise its flag without another country providing it with an appropriate vessel. Mauritius is a small country located over 1000 miles away from the Chagos Islands without a navy. If it can’t even get there under its own steam to ‘visit’, there’s no way it could resettle thousands of people. There is one thing worse for the Chagossians than being under the sovereignty of a country with the capacity to resettle them on the Chagos Islands that has not yet done so, and that is being transferred to a country that does not have the capacity to resettle them.

4) The Mauritian Treaty and Finance

The Mauritius Treaty is hugely problematic from a human rights point of view in relation to finance. There are three elements of the difficulty.

In the first instance, in November 2016 the UK Government announced its decision not to resettle the Chagossian people on their islands because doing so was too expensive. However, they are now proposing to pay the Mauritians far more money to lease just one of the Chagossians’ Islands than the KPMG resettlement report states it would cost to resettle the Chagossian people on their islands, ending their forced exile.[6] Moreover, in paying the Mauritians for the lease of the Chagossians’ largest island, the Mauritius Treaty proposes further compounding their disinheritance by paying a country that helped facilitate their forced removal for the use of their island, rather than the Chagossians. This greatly compounds the presenting injustice.

In the second instance, the Mauritius Treaty underlines the difficulty of not paying the Chagossians for the use of their island by then addressing the Chagossians directly and proposing to pay them a tiny fraction of what they set aside for the Mauritians, through the ‘Chagossian Trust Fund’. Rather than alleviating the presenting injustice the differential has the effect of greatly inflaming it. There is a huge controversy about exactly how much money the UK will pay Mauritius for the use of the Chagossians’ largest island, with estimates ranging from £3.5 billion to £47 billion. However, even if one goes for the smallest sum, the Mauritius treaty involves the UK paying the Chagossians slightly over 1% of what it will pay the Mauritians. In truth the actual figure will likely be well in excess of £3.5 billion and so we are probably looking at just a fraction of 1 percent. It is hard to conceive of a better way of driving home rather than alleviating the presenting the injustice.

In the third instance, when the Government was challenged on the question of compensation for the Chagossians after the publication of the decision of the UN Committee on the Elimination of Racial Discrimination, the minister responded in the following terms.

‘The treaty is clear that it represents full and final settlement of all claims by Mauritius. In relation to the Chagossians, the English courts and the European Court of Human Rights have both concluded that the claims of Chagossians in relation to their removal from the archipelago have been definitively settled through the payments made under the 1982 settlement.’[7]

This is a quite extraordinary response. In the first instance, it is massively human rights deficient in the sense that it seems to regard the only human rights violation to pertain to the act of forced removal between 1968 and 1973. That, however, was only the start. The human rights violation of being held in forced exile has run from 1973 until the present and must have regard for the economic cost of being separated from one’s assets for over fifty years and cut off from one’s homeland in terms of identity and culture etc. Even if the compensation provided in 1982 was sufficient, it could only compensate for being kept in forced exile until 1982. In the second instance, this ministerial response forgets that the 1982 settlement was made in the context of the UK Government refusing to acknowledge any fault. That has since changed with statements made, not least by Government ministers on the floor of the House when dealing with the Diego Garcia Bill. The scale of appropriate compensation is necessarily of a wholly different order of magnitude when the Government recognises it was in the wrong. In the third instance, in thinking about compensation and justice one has to have a sense of balance. If it is right to pay between £3.5 and £47 billion to lease just one island for 90 years, compensation for having seized the entire archipelago for over fifty years would need to be costed with an appropriate sense of proportionality.

For all these reasons the Mauritius Treaty is deeply problematic from a human rights perspective.

It is extraordinary that the UK Government should have signed up to a deal that does not insist on a Chagossian right to resettle their islands in the Mauritius Treaty, and then willingly finances this failure with the provision of more money than it would take for us to resettle the Chagossian people on their islands.

Rather than concluding decolonisation, as the Government suggests, the impact of the Mauritius treaty is to frustrate it.

In this context, it is no surprise that the Chagossian people have felt it necessary to form a Government in Exile, the proper representation of which in relation to the International Court of Justice would have probably resulted in a different outcome in 2019.

Dr Dan Boucher

[1] https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2FCERD%2FEWU%2F11263&Lang=en

[2] https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-granting-independence-colonial-countries-and-peoples

[3] https://documents.un.org/doc/resolution/gen/nr0/086/07/pdf/nr008607.pdf

[4] https://parliamentnews.co.uk/self-determination-the-gilbert-and-ellice-islands-precedent-and-what-it-means-for-the-united-kingdom-and-the-chagossian-people-today

[5] https://parliamentnews.co.uk/chagos-islands-first-minister-pleads-for-the-lords-to-reject-diego-garcia-bill

[6] https://www.gov.uk/government/speeches/policy-review-of-resettlement-of-the-british-indian-ocean-territory

[7] https://hansard.parliament.uk/lords/2026-01-05/debates/2984A39A-E6AF-4FDE-88E9-D74C399B7268/DiegoGarciaMilitaryBaseAndBritishIndianOceanTerritoryBill