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.
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.