An Environmental Catastrophe

It is indeed disgraceful of the Government to assert that a referendum would be impossible because there was no Chagossian people. Those objecting should consider that many of them took a very different view of the Palestinians. Meanwhile, Professor Richard Elkins writes:

The parliamentary battle over the surrender of the Chagos Islands culminates in the House of Lords this week. If the government has its way, the Diego Garcia Military Base and British Indian Ocean Territory Bill will complete its remaining stages this week. If or when the Bill receives Royal Assent, the government will have authority to ratify the treaty it has agreed with Mauritius. If the treaty is ratified, sections 2-4 of the legislation will come into force, and the Chagos Islands will cease to be sovereign British territory both as a matter of international law and domestic law. The UK will lease the island of Diego Garcia from Mauritius and will pay handsomely for the privilege.

It is open to Parliament to refuse to enact the legislation that is necessary to ratify the treaty. The government’s argument for handing over the islands rests on a misapprehension of the UK’s legal position and a premature surrender to the abuse of international adjudicative authority. The new legal state of affairs that the government is striving to bring about, by agreeing and ratifying this treaty, will compromise a strategic asset of the highest value and introduce major new legal risks to future military operations. The treaty also neglects the interests of the Chagossians themselves.

What has largely been missing from the public debate thus far is any appreciation of the very real risk that handing over the Chagos Archipelago to Mauritius may result in an environmental catastrophe in the Indian Ocean.

In a new Policy Exchange paper published today, my colleague Yuan Yi Zhu outlines the exceptional environmental significance of the archipelago, which is robustly protected by a total UK ban on fishing. Mauritius has an appalling environmental record and lacks the capacity to protect the environment of the Chagos Islands, which are after all a very long way indeed from Mauritius. It lacks the capacity and it very likely also lacks the will.

While the government has acknowledged the importance of the environment, the environmental provisions of the treaty are so weak as to be meaningless. Article 5 requires the United Kingdom to “provide support and assistance to Mauritius in the establishment and management of its Marine Protected Area (MPA) in the Chagos Archipelago, in accordance with terms to be agreed between the Parties by a separate written instrument.” Yet, the government is inviting Parliament to authorise surrender of the Chagos Islands before this separate instrument has been agreed and certainly before it has been shared with or approved by Parliament.

The treaty does not oblige Mauritius to establish or to maintain an MPA. Indeed, the treaty gives Mauritius carte blanche to conduct environmentally destructive activities in the Chagos Islands, so long as it does not conflict with the other provisions of the agreement. The substantial annual payments that the UK will make to Mauritius under the terms of the agreement cannot be withheld if Mauritius fails to protect, or actively damages, the marine environment.

In other words, the government has reached an agreement that does not impose meaningful obligations on Mauritius and which the UK lacks any leverage to enforce.

Putting the point at its lowest, transferring sovereignty to Mauritius clearly weakens environmental protection, for even if Mauritius was as committed as the UK to high environmental standards, it simply lacks the capacity to act. And if Mauritius proves as uninterested in conservation as its record suggests is likely, or if a future Mauritian government decides that the waters of the archipelago are a resource to exploit, then an environmental catastrophe may unfold.

For some supporters of the government’s agreement with Mauritius, this is all beside the point. The Chagos Islands belong to Mauritius, the UK is in unlawful occupation, and it is time to give them back. This legal analysis should be firmly rejected, for the reasons that Policy Exchange has set out in a series of reports beginning in October 2023.

The UK has a responsibility to protect the oceans from exploitation and degradation. It fails to act responsibly if it hands over the archipelago to a state that is uninterested in or incapable of protecting them from harm. The very least we could do is to reach terms that would increase the chances that Mauritius would act well, and this the government has so far not managed to do.

What now is to be done? The treaty cannot be ratified unless and until the legislation is enacted. The legislation can be amended in ways that would recognise the environmental significance of the waters of the archipelago and would minimise the risks of their casual destruction.

Lord Callanan has tabled two related amendments that concern this matter, requiring the Secretary of State to publish a report stating how the government intends to preserve the Chagos Marine Protected Area. But does this sufficiently limit the government’s freedom to move? In view of the government’s relentless determination to hand over the islands, it seems quite likely that the Secretary of State would simply publish a report, which might set out a highly inadequate plan of action, and then go ahead and ratify the treaty.

What is needed instead are duties on the government that will result in meaningful obligations being imposed on Mauritius which the UK will then be able to enforce. At a minimum, the legislation should be changed to make it impossible to ratify the treaty unless and until the government has finalised the written instrument with Mauritius and placed it before Parliament, securing parliamentary approval for its terms.

More demanding, but still warranted, would be changes to the legislation that would require the government to negotiate changes to the treaty before it could be ratified, changes that would (a) require some of the substantial sums of money that the UK is to pay to Mauritius to be spent on environmental protection and (b) enable the UK to withhold annual payments if Mauritius fails to take seriously its responsibility for the environment. Without these changes, there is no reason to expect any of the money the UK pays to Mauritius to be spent on environmental protection and if the UK were to withhold funds, say if Mauritius authorised industrial overfishing, the UK would be in clear breach of the agreement and might be ejected from Diego Garcia.

The House of Lords could also make it a condition of ratification that the government report back to Parliament on Mauritius’s actions to date and on its capacity to protect the environment. This would make it possible for Parliament to make an informed decision about whether Mauritius can be trusted with stewardship of the archipelago.