How Diego Garcia Can Play a Pivotal Role in America's Relationship with India
Washington should consider inviting the Indian Navy to make port visits to Diego Garcia and even go so far as to establish a logistics office on the island country.
The small island of Diego Garcia (DGAR) in the Indian Island is not a place that the U.S. Media knows or talks about even though it is arguably one of the most important pieces of real estate in DOD’ strategic arsenal. It is isolated in the middle of the Indian Ocean and that isolation enables it to have security from onlookers or foreign navies that would monitor challenge its activities. DGAR is closed to outsiders and that gives the U.S. military a great deal of freedom to preposition military equipment and use it as a staging area for military operations. As Tom Friedman has often said, the world is getting hotter and more crowded and these isolated little pieces of real estate cannot be replicated by the DOD. Given that, U.S. policymakers need to wake up to the challenges facing continued U.S. military presence on DGAR and take actions to shore-up its basis for remaining there—a long-term lease with the United Kingdom. That fifty-year lease commenced in 1966 and expired in 2016. The UK extended the United States’ lease to the DGAR facility in 2016 until 2036.
Technically an atoll, DGAR is part of the Chagos Archipelago and is under British administrative control. It is the largest of about sixty very small islets (roughly sixty-five square miles) that forms Archipelago south of India in the Indian Ocean. Diego Garcia is 1,100 miles south of India and about 2,200 miles east of the Africa’s Eastern Coast. Its 12,000-foot runways can accommodate long range aircraft; including B-52, B-1, and B-2 bombers which can operate as far North as Afghanistan or as far Northeast as the South China Sea and Taiwan. DGAR is host for U.S. maritime prepositioning vessels, combat support vessels, communications facilities, fuel stores, and has the port and airport facilities to accommodate large vessels or combat aircraft. Since DGAR is sovereign British territory, it is beyond the legal jurisdiction of U.S. courts (and habeas corpus petitions) and for this possible reason it has reportedly been used as a terrorist detention site. Most importantly, DGAR is far enough away from China’s coast—and its artificial islands in the South China Sea—and presumably out of range of China’s HQ-9 surface-to-air missiles and YJ-12 supersonic anti-ship missiles that would otherwise threaten U.S. ships and aircraft operating in the Asia-Pacific region.
Key Historical Facts
Diego Garcia has been a refuge for mariners for centuries because of the availability of freshwater and ample fish and has been a valued military installation since World War II. According to Richard Edis’ account, France administered the archipelago as a dependency known as Ile de France until the British captured the territory in 1812 and renamed it Mauritius. About forty years later in the late 1770s the East India Company decided to establish a replenishment base on Diego Garcia and not long after a British military garrison was established. France ceded its rights to Great Britain in 1814 and administered it as a Dependency of Mauritius.
Even though slavery had been abolished in the British Empire in 1807, vestiges of the slave trade remained in remote parts of the empire including Diego Garcia and Mauritius until the mid 1830s when the small colony of slaves from Mozambique or Madagascar in DGAR were either abandoned or emancipated. Those remaining worked on three privately owned coconut oil plantations and helped in the resupply of vessels that made port visits. The overall population numbered 350–550 and, according to Edis’ account, the people on the island lived rather well (and peacefully) because of the abundant fisheries and their ability to purchase tools, medicine, etc., with revenues from coconut oil that was produced on the island.
In World War II, Diego Garcia and other Indian Ocean bases assumed increased importance to the British and at one point DGAR hosted a small squadron of Catalina seaplanes which were used for maritime surveillance. Throughout the remainder of the 1950s and early 1960s, DGAR’s military activities subsided and the actual population of labor associated with operation of the coconut plantations declined due to low birth rate.
After DOD expressed interest in establishing a base at Diego Garcia, the Chagos Archipelago, was detached in 1965 from the British Colonial Dependency of Mauritius to form the British Indian Ocean Territory (BIOT). The following year, the United States and Great Britain signed a fifty-year basing agreement until 2016. The coconut plantations were purchased (and closed) by the British government when the base was created. The legal justification for involuntarily the people was that none owned real property; all were contract workers with the owners of the coconut plantation. The remaining workers were offered, according to Edis, a “limited” degree of choice on where to live: Agalega, Seychelles, Mauritius, or to working plantations on two of the Northern Chagos Islands. The actual numbers of those evicted vary. Edis suggests that about less than two hundred were removed while other sources put the number at 483 men, women and children. Today, there are about 1500–1800 persons who call themselves descendants of the original residents.
Environmental Challenges
Diego Garcia is suffering the same fate as other islands in the Indian Ocean: rapidly accelerating reef loss due to ocean acidification/warming. According to Edis, over 95 percent of Diego Garcia’s seaward reefs have been killed due to elevated seawater temperatures. While this does not create any immediate operational impacts, it certainly impacts the long term ability of the DGAR to be able to sustain a large population.
The issue of sea level rise is probably more acute; indeed, one of the reason why the 2008 UK House of Lords deemed that resettlement of the atoll was not possible coastal erosion of the Northwest Shore. On average, DGAR has roughly is four feet above sea level (most areas do not exceed 6.5 feet) and contains ten square miles of dry land. The initial problems will be salt water intrusion into fresh water resources, storm surges, and intermittent tidal flooding, all will vary in severity. The U.S. Navy currently has a forty-person construction detachment installing imported rocks to prevent further encroachment from the sea.
For the United States and the UK this creates two complications. First, the danger of inundation creates issues for engineers who will have to erect systems such as seawalls and barriers to protect critical base structures. These systems will be quite expensive since all the materials have to be imported and the DOD will need to make the case that the operational benefits outweigh the costs of making improvements to leased real estate that has a uncertain political future.
The second issue with loss of arable space is that it deprives the United States and the UK of a future bargaining chip should it wish to grant some number of the Chagosians return rights so they might engage in agricultural or aquaculture activities in the very large lagoon. The rich fisheries in DGAR’s lagoon holds the promise of viable economic activity should some people wish to return. Similarly, the use of employing persons as labor to support base operations and supply local fruits and vegetables versus relying upon imported contractors—mostly from the Philippines—to provide base services is something worthy of consideration. For over seventy-five years, DOD has been able to successfully operate in foreign countries because it makes use of local suppliers and host nation labor. That preference for local labor helps to solidify relationships between DOD and the host nation. For it to work in this case any “returnees” would need to be able to perform necessary support tasks or be trainable.
Litigation
There has been a significant domestic and international litigation questioning the legitimacy of the British mandate over DGAR and ways in which the UK managed the removal of Chagos islanders in 1971.
Actions by Former Residents and Descendants
In 2011–2012 the 1,786 Chagos descendants living in the UK pursued an action in the European Court of Human Rights (ECHR), claiming that they had been denied their human rights because of their “callous and shameful” removal from DGAR and lack due process. In short opinion, the Court ruled in 2012 that since the descendants of the islanders had received modest compensation and renounced their claims in writing, their claims were disallowed.
Legal challenges were then brought in the British Courts over the removal of the former residents 1971 to make way for the U.S. base. They first petitioned the House of Lords. That petition was unsuccessful because the Lords, as noted above, felt the area could not sustain large populations and that the former residents had been fairly treated. The Lords decision was appealed to UK Supreme Court which dismissed the appeal by a 3-2 margin in 2016. For the time being at least, the domestic legal question of whether the UK government had complied with its own laws/procedures is in check; however, but a 3-2 decision does inspire confidence that future challenges won’t be mounted.
Newer International Legal Challenges by Mauritius and the UN
UK Marine Protected Area Invalidated by UNCLOS Panel.
The second avenue of attack against the British (and by extension the United States) possession of the Chagos has come from Mauritius. As in the author’s September 2017 legal assessment, Mauritius pursued an action in 2015 in an UNCLOS international arbitral tribunal to set aside the UK’s declaration of large areas of the Chagos Archipelago to be Marine Protected Area (MPA). Mauritius’ contention was that UK’s MPA detachment of the BIOT from the Dependency of Mauritius gave Mauritius fishing rights in the waters of Chagos and that the MPA could not encroach on those rights. At the time the BIOT was detached from Mauritius, the transfer documents (Lancaster House Undertakings) promised Mauritius some form of preferential” treatment to resources of the Chagos for fishing and other purposes. Given that the UK had repeatedly ratified the Lancaster House Undertakings through its actions, the Tribunal unanimously ruled in Mauritius’ favor that the UK could not unilaterally restrict Mauritius’ fisheries rights by establishing a MPA without prior consultation.
UN General Assembly (UNGA) Asks World Court to Assess theBIOT
The most recent, and perhaps most significant, litigation development has to do with an action that was initiated in June 2017 by the UNGA seeking advisory opinion from the International Court of Justice (ICJ) as to validity the 1965 detachment of the BIOT from the rest of the Colonial Mauritius. Had the Chagos remained part of Mauritius, then DGAR would have been assimilated into Mauritius when it became independent in 1968. Attacking the transfer at the point of inception today obviously create legal doubt as to who is the true owner of the Chagos Archipelago and, by extension, Diego Garcia.
On the merits, there are facets of this case which the UK will have difficulty overcoming. The 1965 detachment of Chagos Archipelago was codified in a provisional understanding between the British Secretary of State and the Premier of Colonial Mauritius in the above noted series of documents known as the Lancaster House Understandings. It was there agreed that the UK would detach the Chagos and would pay £3 million in compensation to Mauritius above and beyond resettlement costs. The UK is also expected to pay the resettlement costs of the former residents.
- Use its good offices with the United States to support Mauritius’ request to use labor and materials from Mauritius for construction work on the islands:
- Return the islands if the need for the facilities on the island disappeared (defense purposes) (documented in a later exchange of letters);
- Accrete oil or mineral rights to Mauritius; and
- Use its good offices with the U.S. government to ensure that the following facilities in the Chagos would remain available to Mauritius as far as practicable: (a) navigational and meteorological facilities; (b) fishing rights; and (c) use of runways for emergency landing for refueling planes.
- When Mauritius became independent in 1968, the Mauritian Council of Ministers ratified that Landcaster understandings although the UN General Assembly objected to the detachment of the Chagos on three separate occasions.
The UK’s basic contention is that it has complied with all aspects of the promises that it made to the Mauritian colonial administration in 1965 in the Landcaster Understandings. It paid Mauritius £3 million and it continues to promise to cede the islands back to Mauritius when “no longer needed for defence purposes.” The UK will assert that it paid all of the sums due to Mauritius, and to the former residents, and assert that the Chagos, DGAR in particular, is an essential defense installation.
Mauritius will argue that the Chagos Islands are an integral part of Mauritius and could not be disassembled and should remain with Mauritius; then and now. They will assert so-called 1965 Lancaster House Undertakings with the UK was "obtained under conditions of duress and coercion" and did not represent an agreement among two sovereign countries i.e., it was an agreement between one component of the British government and another. The Mauritians may also argue that “defense purposes” language was designed to benefit the UK and not the United States.
Questions Presented
This case involves a request from the UN General Assembly (UNGA) for the ICJ to issue an Advisory Opinion. The matter was initiated by Mauritius in June 2017 and passed by a vote of ninety-four in favor, sixty-five abstentions, and fifteen opposed. India voted in favor of the resolution. Recalling again that the UNGA had three times asked the UK to not “dismember” the Chagos from ahead of its independence, in 1968, the UNGA requested that the ICJ issues an advisory opinion on two questions:
First, “was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius” and having regard to international law?
Second, what are the consequences under international law arising from the continued administration by the United Kingdom . . . including with respect to the inability of Mauritius “to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”
The power of the ICJ to render advisory opinions to organs of the UN has been recognized under Article 65(1) of the ICJ Statue, which provides that the Court “may give an advisory opinion on any legal question at the request of whatever body may be authorized ...” to include the UN General Assembly. Advisory opinions are not designed to settle disputes between states (since they must both generally consent) but, here, can provide definitive legal advice to organs of the United Nations. The UK will argue that Mauritius and the UK are the real parties to this dispute and the involvement of the General Assembly circumvents the requirement that there be consent between the two affected states. The fact that the UK had been chastised three times by the UNGA for its detachment of the BIOT in the 1960s and was admonished by the UNCLOS Tribunal for its shabby treatment of Mauritius in relation to the MPA designation vis-à-vis Mauritius, it is hard to envision that the ICJ will dismiss given that the UNGA, and the UN generally is suppose to advocate on behalf of those from non-self-governing territories.
The next question for U.S. and UK policymakers is whether an adverse “advisory” opinion makes any practical difference since it is not binding on states. But UN Agencies do have an obligation to follow the advice of the International Court of Justice. Therefore, if the ICJ directed that the UNGA takes certain actions (under Article 73) relative to current and former residents of non-self governing territories, the UNGA has considerable discretion to ensure that the rights of the Chagossians are protected e.g., order some trusteeship arrangements. This would be politically messy for both the United States and UK; especially since purpose of such a ruling is to remedy the ill effects of colonization.
At least one legal scholar argues that even though Mauritius petitioned to have the UNGA to bring this action that the UNGA is the real party in interest since its orders were ignored three times (1965–1967) the case involves bigger question whether important norms of self-determination were violated by the UK, Mauritius and, perhaps the UNGA for failing to take action to protect the rights of the former Chagos residents. The scholar suggests, for example, the “defense purposes” rationale for continuing to keep the residents of DGAR was not made in good faith by the UK because various UN requirements (See, e.g., Art 73(3) of the UN Charter) to keep UN offices informed that a security requirement prevented the return of the former residents. Lastly, this same scholar suggests the Landcaster House Understanding lacked standing to trump the self-determination rights of the dispossessed individuals or eliminate the continuing obligations of the UK and Mauritius protect the former Chagos residents.
Article 73 of the UN Charter puts people from non-self-governing territories on a legal pedestal and it is curious that the UNGA is taking up the cause at such a late date since it is doubtful that many of their descendants would, ever want to live on DGAR in the middle of the Indian Ocean. However, that is besides the point since the UNGA seems determined to make a strong legal and political point with the UK and, perhaps the United States.
India is the Key
India has exercised leadership in the UN in the G-77 among developing countries and has substantial ethic and economic ties to Mauritius. India supported the UNGA resolution to refer the Chagos matter to the ICJ. This overall matter prompted a spirited debate within India which, on the one hand wanted to support the decolonization process but on the other had did not want to upset the current security balance in the Indian Ocean or force the United States off of Diego Garcia. This deference to not upsetting the U.S. presence in the Indian Ocean does, by the way, represent a change in Indian thinking because it had previously opposed all foreign ships in the Indian Ocean or port visits to DGAR.
India is increasingly concerned with China’s expansion into South Asia and is working much more closely with the United States. The United States and India recently concluded their third round of security dialogues. There are also bilateral meetings between the United States and Indian military chiefs and regular exercises between the United States, Japan and India under the “Malabar” trilateral partnership framework. The ties have grown in the armaments cooperation area with India purchasing more defense systems from the United States and signing new agreements; although India is not moving quickly. In general U.S.-India defense cooperation is growing.
Conclusion
Now that UNGA and the ICJ are part of the Chagos dispute, it behooves the United States to proactively find ways to defuse the matter. Part of that includes addressing the issues of the former residents of the Diego Garcia and some of that includes liaison with the government of Mauritius; notwithstanding the fact that the United States is only a tenant on DGAR. If the United States could work with Mauritius—ideally in open partnership with the UK and India—to meet the spirit of the original Landcaster agreement to find employment opportunities for former Mauritian Chagos residents, and to create secure access to fisheries, then it may go a long way to assuage some of the political concerns and build trust.
As much as the Indian armed forces wish to build a much closer relationship with their U.S. counterparts, there are other forces within the Indian government, and perhaps the Parliament that are urging a more restrained approach. As Chinese money continues to pour into South Asia, and artificial islands in the South China Sea continue to be militarized, India needs to ask itself whether it has the luxury to stay on the fence much longer. To help solidify Indian partnership vis-à-vis continued U.S. presence on DGAR , the United States should consider inviting the Indian Navy to make port visits to DGAR and even go so far as to establish a logistics office on DGAR. Similarly, the United States needs to be very clear with India that DGAR is critical to the defense of South Asia and that its support in this endeavor is not only desired but essential.
Mark E. Rosen, SVP and General Counsel, CNA Corp. The views expressed in this paper are those of the author alone and do not reflect the views of CNA or any of its sponsors.
Image: File photo of Diego Garcia,largest island in the Chagos archipelago and site of a major United States military base in the middle of the Indian Ocean leased from Britain in 1966. Exiled inhabitants of Diego Garcia began a challenge July 17 to a British government decision to kick them off the remote island 30 years ago to make way for the U.S. base. Thousands of islanders from the 65-island Chagos archipelago, many of them born in exile in Mauritius, want Britain to return them to their homeland.clh/HO/U.S.