Exile & Empire in Paradise: The UK's Chagos scandal

Our case today takes us to the Indian Ocean, to a remote and breathtaking group of islands at the centre of a high-stakes legal battle. 

The Chagos Archipelago is the focus of a decades-long dispute between Mauritius and the United Kingdom — one that involves international courts, the shadow of the Cold War, and a powerful U.S. military base. 

This legal battle continues to the present day, and at its heart is a devastating human story of a paradise lost.

Show Notes

Guest: Professor Douglas Guilfoyle, University of New South Wales

Check out Douglas's podcast Called to the Bar: International Law Over Drinks.

Litigation as legal statecraft: Small states and the law of the sea, by Douglas Guilfoyle (Centre for International Law Blog, National University of Singapore, 7 July 2023)

The Chagos Archipelago Before International Tribunals: Strategic Litigation and the Production Of Historical Knowledge, by Douglas Guilfoyle (Melbourne Journal of International Law)

Chagos islanders make historic trip home without British escort (BBC News, 16 February 2022)

The Last Colony: A Tale of Exile, Justice and Britain's Colonial Legacy by Philippe Sands & Martin Rowson

UK Foreign Secretary's statement on the Chagos Islands (7 October 2024)

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Transcript

James Pattison: Welcome to Case in Point. Some of the most important court cases that you need to know about. I'm James Pattison. 

Melissa Castan: And I'm Melissa Castan. Our case today takes place in the Indian Ocean, a group of islands known as

Melissa Castan: the Chagos Archipelago These islands are at the heart of a long standing and deeply contentious legal dispute which is in the United

James Pattison: So, why do we care about this case? I reckon this case has got everything. It's got high stakes international relations, it's got diplomacy, a secretive US military base, the tumultuous 1960s and the Cold War, the impact of British colonialism, an entire population forcibly removed from their homeland.

Melissa Castan: We'll come back to Napoleon in a minute. Let's take a deep dive into the sea with Professor Douglas Guilfoyle who is a Professor of Law at the University of New South Wales. Douglas, welcome to Case in Point. 

James Pattison: Thank you very much for having me. So, Douglas, you are really, like, you're not just an international law expert.

James Pattison: You are the guy to talk to about matters of international law of the sea, high fashion I believe as well, always in a wonderful suit, wonderful cufflinks and tie, um, but you are also really the person to talk to. about this particular case, because you have a personal involvement in this case professionally, I should say.

James Pattison: Um, and we're going to get to that later. 

Melissa Castan: All right. But first we need to remind everyone that Doug hosts a fascinating podcast called Call to the Bar. And this podcast is about topical issues in international law, life in academia, and whatever else is on his mind as well. 

James Pattison: Now, Call to the Bar, it's a great idea.

James Pattison: Just tell us a little bit, for people who haven't heard the podcast, um, a little bit about the, the concept. 

Douglas Guilfoyle: So, the, the concept is essentially that, um, I and a group of mates sort of talk through some of the current issues in international law. So, uh, we've already done, um, a couple of episodes touching on matters between Israel and Palestine, um, issues such as the way international law regulates or fails to regulate the arms trade.

Douglas Guilfoyle: And we recently had a deep dive on the international law aspects of the long running Julian Assange affair. So the usual format is that I'm kind of the anchor host and then, uh, four other colleagues, Juliet McIntyre, Dina Savala, Imogen Saunders, and Tamsin Page kind of rotate in. Once a week to discuss something with me, although occasionally we'll mix it up and someone else will interview me or there'll be an episode that doesn't feature me.

Douglas Guilfoyle: That's the basic format and the spirit we're trying to capture is the way that, um, international lawyers will talk about current developments more informally, the kind of chat you would have at the bar. during an international law conference or over drinks with a colleague at the end of the working day, rather than doing the sort of hyper formal, very technical account of international law.

James Pattison: So you've got, I think with the legal side of things, uh, you have Melissa's attention and then you bring in the drinks and you've got my attention. So you kick off with. What's everyone got in their glasses? 

Douglas Guilfoyle: Yes, we do. Um, unfortunately, many of, or fortunately, perhaps from a health point of view, many of our episodes have been rather abstemious because sometimes the only time we can get calendars to align is around three o'clock in the afternoon.

Douglas Guilfoyle: So everyone's drinking their, uh, sort of pick me up tea or coffee. 

Melissa Castan: It's always cocktail hours somewhere in the world, 

Douglas Guilfoyle: Doug. That's right. That's right. Well, we are international lawyers, right? So if you're on Geneva 

James Pattison: time. Now we started in this intro. mentioning Napoleon. Now, I'm not sure there is a chance that I've gone completely, completely gaga, but this case begins really with the beginning of the, the Brits taking control and possession of Mauritius.

James Pattison: Now, I hear that this was Napoleon's fault. Uh, discuss. 

Douglas Guilfoyle: Well, to some extent it may have been. I mean, so the, uh, the history of Mauritius and, um, in legal terms, it's dependent islands stretches back well into the history of European colonialism. So it was first colonized by the Dutch and then the French.

Douglas Guilfoyle: And then in 1814, um, when various French assets around the world were carved up, it was transferred to, uh, British control and administered as a colony of the UK until, um, Mauritian independence in the 1960s. 

James Pattison: Let's zoom in, uh, geographically. is Mauritius for people who aren't familiar, and then, then the Chagos Archipelago itself as well.

Douglas Guilfoyle: Both are in the Indian Ocean. So in Australia now, we are, um, frequently talking about us being part of the Indo Pacific. So, you know, we're thinking off our west coast and out towards India and the African continent and the strategic significance of the Chagos archipelago, which is sort of between the Seychelles and Mauritius is it is literally kind of right in the heart of the Indian ocean.

Douglas Guilfoyle: You've got basically equidistant flying times to, um, Singapore, Afghanistan, Baghdad, the East coast of Africa, and Since, and I guess we'll come to this, since the establishment of a U. S. naval and air force base in the Chagos Archipelago, there hasn't been a major U. S. military operation in the Near East since, um, the 1970s that hasn't heavily featured, uh, the use of that base.

Melissa Castan: So how did Mauritius gain its independence from the U. K.? 

Douglas Guilfoyle: All right, so that's An interesting question. So in the 1950s and 1960s, we obviously see the rise of, uh, the decolonization movement. So this is a period after the Second World War where there's a view that it's no longer, uh, acceptable to have empires as an ordinary feature of international law.

Douglas Guilfoyle: But this is overlaid with quite a bit of sort of racial or biological politics. So you have the idea actually going back really to the League of Nations, but um, certainly picking up under the United Nations in the 1940s of what were called mandate or trust territories. And these were divided into A, B and C.

Douglas Guilfoyle: Classes. So the highest class of mandate on a class mandate, it was expected that, you know, the trustees, the former colonial powers would just be administering these territories for a brief while, uh, and guiding them towards independence, whereas down at the sort of C mandate level, it was expected that, you know, these were people far enough down the civilizational ladder that it was unlikely they would ever be able to govern themselves.

Douglas Guilfoyle: So some really Um, quite uncomfortable assumptions from a modern point of view. Uh, but the language of decolonization becomes very significant. The trick for Mauritius is that because of the successive waves of colonization and because, uh, for a long time, the economy in Mauritius had, to some extent, been a plantation economy with a lot of imported labour.

Douglas Guilfoyle: You have a number of different, uh, ethnic or subnational, communities. So you have quite a sort of melting pot politics in the 1960s. Um, but eventually one of the, the larger pro independence parties, and that's another interesting point actually, not every political party that formed in Mauritius was necessarily pro independence, because if you were from one of the minority communities, uh, particularly say the French speakers or the Chinese population, you might've thought that independence was just going to lead to you being dominated.

Douglas Guilfoyle: by one of the larger, uh, ethnic or national groups and that perhaps being in some, maybe not still part of empire, but some looser association with the United Kingdom might be preferable. The leading pro independence party was the Labour Party, um, under, uh, a man called, uh, Ram Ghulam, who became first the kind of pre independence chief minister and then under independence the first prime minister of Mauritius, so a real founding father figure.

Douglas Guilfoyle: So the process for independence had to be negotiated with And those negotiations happened in London in September of 1965. And what was arrived at were called the Lancaster House Undertakings. And essentially, the Mauritian pre independence ministers were put under a great deal of pressure to accept the excision of the Chagos Archipelago, a series of islands actually quite a long way from Mauritius, uh, but that had been treated as part of Mauritius as an administrative unit, um, to accept the excision of those islands from their territory for independence within And that was essentially the deal that the UK put on the table that has led to all the subsequent controversy.

James Pattison: And this is occurring against the backdrop of the Cold War. The decolonization process is taking place in the sixties. Cold War is at its absolute height. I mean, we've. Just had the Cuban Missile Crisis a couple of years beforehand. There's still so much more to play out. So, so tensions are really, really high, including on the part of the United Kingdom.

Douglas Guilfoyle: Right. And so, so I've said the price of Mauritian independence was the excision of, uh, the Chagos archipelago and people might say, well, Why? And the point is that strategic location. So behind the scenes, the U. S. and U. K. had essentially already reached a deal that the U. S. wanted a strategic air base in the Indian Ocean, and it preferably wanted it on the territory of an ally.

Douglas Guilfoyle: under a sovereign lease. And that was what the UK could offer. And in a sense, as a declining power post the Second World War, this being able to provide this strategic asset cemented the UK into Cold War relevance and its relationship with the US. I mean, obviously the relationship doesn't hinge on the Chagos Archipelago, but it's an important piece of that, um, Cold War apparatus and that ability for the U.

Douglas Guilfoyle: S. to project, um, strategic force and influence across the entire Indian Ocean. And so one of the things that the pre independence Mauritian ministers said in the course of negotiations about the archipelago was, uh, you know, why can't we guarantee a lease to the U. S. You know, we're perfectly prepared to do our bit to fight communism, um, but that was not acceptable to the British.

Douglas Guilfoyle: They wanted to retain that, the strategic influence that could only come from retaining this footprint in the Indian Ocean that you could put a U. S. base on. 

Melissa Castan: That sets the scene fantastically. All these different political and strategic threads flowing around this. You know, somewhat for us, obscure place in the middle of the Indian Ocean.

Melissa Castan: Can you tell us now a little bit about the legal stash that then comes about as a result of the independence movement? And then these various factors that you've just raised for us. 

Douglas Guilfoyle: So there are, there are kind of two strands to, um, the legal proceedings. And I'll, uh, focus my comments really on the, the ones that hit the international stage.

Douglas Guilfoyle: But the other, the other strand is important. So to give the U. S. sort of vacant land for an airbase, one of the things the U. K. had to do was forcibly depopulate the Chagos Archipelago. And it had this unique, very small population of about 1, 300, 1, 500 Chagossians, some of whom had been there for generations, uh, working on, um, palm and coconut plantations.

Douglas Guilfoyle: And the UK classified them all as temporary migrant workers and removed them in a period starting in 1971. And actually litigation started about the consequences of that for UK courts really from 1975 and has never stopped. 

James Pattison: How many generations? Been on those islands. 

Douglas Guilfoyle: Look, it's really difficult to measure, uh, and the waters are muddied by a kind of migrant labor program that came in in the 60s.

Douglas Guilfoyle: But you've got at least three or four generations of people living there. People who've realistically Never known any other home, but a suddenly randomly classified as being, uh, social war or Mauritian and told to move. And also there was freedom of movement within the colony of Mauritius, right? So people weren't necessarily always.

Douglas Guilfoyle: on, um, the Chagos Islands that might have moved to Mauritius for a period and come home as is quite sort of common in labor mobility cases. Uh, but nonetheless, you know, the, the islands are rendered a blank slate for the purposes of, um, establishing the military base. And that's one set of proceedings that has never really stopped.

Douglas Guilfoyle: Uh, so you might say, well, why can't, why isn't this about the rights of the Chagossians? to their islands. And the answer to that is the law of decolonization treats the old colonial administrative unit as the borders within which a new state occurs. So the significant thing for the Mauritian legal argument was that for a very long time, even under French administration, there was good evidence to say that Mauritius was kind of seen as a central island, which other groups of islands, even if they were quite far away, were administered as part of.

Douglas Guilfoyle: So that was the territorial unit. for decolonization. So from the moment of independence in 1968, there's also this kind of running debate in Mauritius about whether the founding fathers had kind of betrayed the nation and sold land for independence, or, you know, given away land for independence to the UK.

Douglas Guilfoyle: And the, the one thing that the early Mauritian ministers and first Prime Minister Ram Ghulam had extracted from the UK with a document called the Lancaster House Undertakings that said that Mauritius would still be able to use the waters off the islands for fisheries Uh, that any oil or other natural resources found off the islands would be, uh, used only for the benefit of Mauritius.

Douglas Guilfoyle: And really importantly, that if the defense need for the islands should disappear, the islands would revert to Mauritius. Now that language of reversion is important because obviously something doesn't revert to you unless it's yours in the first place. 

Melissa Castan: So Doug, how do we, how do we see a case that comes before an international court?

Melissa Castan: Right. And the parties are such disparate capacities. 

Douglas Guilfoyle: Right. So, I have a very small role in this, um, proceedings. So my first job as a law lecturer was at University College London, and across the corridor from me, uh, was the office of, uh, Philippe Sans, QC, who is, 50 percent a professor of law at UCL and 50 percent a, uh, barrister at Matrix Chambers.

Douglas Guilfoyle: And he came into my office one day and said, uh, so, uh, I've been retained by the government of Mauritius. They are very cross that the United Kingdom has declared unilaterally a no fish you know, a no catch fishery zone, a marine protected area around what they call the British Indian Ocean Territory, the Chagos Archipelago.

Douglas Guilfoyle: This is in 2010. He said we need to find a forum where we can challenge that decision because it breaches the undertakings that was given were given to Mauritius and Mauritius also wants to find a forum where it can assert its claims to Sovereignty over those islands, and I came back and said, Well, it might be a stretch, but I think there's a dispute resolution clause in the Indian Ocean, um, Tuna Commission, um, treaty that would allow us to Find a path to the International Court of Justice and say the UK is not legitimately a member of the Indian Ocean, um, tuna arrangement because its status in that body is dependent on it being the owner of the Chagos Archipelago.

James Pattison: Douglas, I would have said the exact same thing. 

Douglas Guilfoyle: Well, of course. And Philippe said, no, that's not going to work. The current bench of the International Court of Justice is too conservative to hear an argument. He didn't say an argument that outlandish, but that was, that was his sentiment. He said, what we're going to do is we're going to challenge it under the UN convention on the law of the sea and the compulsory dispute resolution procedures under part 15.

Douglas Guilfoyle: Now this had 

Melissa Castan: Drop the, drop the tuna, drop the tuna. Drop 

Douglas Guilfoyle: the tuna and go straight for the, straight for the big thing, the UN convention on the sea. Now the UN convention on the sea is actually an increasingly popular instrument for small states in their contests with, um, larger. powers or, you know, permanent members of the Security Council like the UK because out of 194 odd members of the UN, 165 are parties to the UN Convention on the Law of the Sea, and it has a compulsory dispute settlement.

Douglas Guilfoyle: system. Now compulsory dispute settlement in international law is rare. Normally you have to consent to have your disputes settled case by case. So the only other compulsory dispute settlement system with that kind of reach is probably the World Trade Organization. Or on a very narrow issue, but where we're seeing increasing litigation, the compulsory dispute settlement clause in the Genocide Convention.

Douglas Guilfoyle: So it's got a lot of reach. The question then is what bits of the dispute can you fit inside the Law of the Sea Convention? And part of the UK's argument was Really, what Mauritius wants to argue here is sovereignty and title to land territory doesn't fit within the UN Convention on the Law of the Sea.

Douglas Guilfoyle: And that was one of the things that Mauritius was trying to argue. But the other one was the impact on Mauritian fishing rights. Because you'll recall the Lancaster House undertaking said, uh, the UK would continue to respect Mauritian fishing rights. But in legal terms That was a tricky document to argue because it was agreed between the UK as a colonial power and a group of pre independence ministers in the sort of semi self government, uh, the kind of proto parliament in Mauritius.

Douglas Guilfoyle: So obviously as a matter of law, if you've got a contract, a contract has to be between two legal persons. Right? But at the international level, here you had an agreement between an imperial power and a non independent territory. So a non independent territory isn't a state. It doesn't have international legal personality.

Douglas Guilfoyle: So one of the questions that we had to kind of get over the line was, what is the legal status of this document? 

Melissa Castan: That's really interesting because running that argument means you get to say, well, we made a deal with you, but you, but you'll never be able to enforce the deal because you weren't really, you weren't a real person then anyway.

Douglas Guilfoyle: Right, right. So there, there was, um, there was a lot of kind of, uh, debate about that where the tribunal came down, though, was to say. So one of the things we argued was, uh, there's an older case. Um, from the 1970s involving Australia, the French nuclear test case, where the ICJ found that, uh, France had made a unilateral statement that they were no longer going to conduct atmospheric testing.

Douglas Guilfoyle: But because France had intended that unilateral statement to be legally binding, even though it wasn't a deal made with anyone else or embodied in a treaty, that could be Uh, a way of legally binding yourself. You can make a unilateral statement that you intend to be binding, and that's enough. So obviously one of the things that, as, um, the team from Mauritius, uh, that we wanted to argue was, well, this is a unilateral statement, so it's binding on the UK, but then the UK could turn around and say, well, that's terribly convenient because then it's not binding on you, it's only binding on us.

Douglas Guilfoyle: What the tribunal found was, that in the course of relations between independent Mauritius, and the UK, the Lancaster House undertakings had been reaffirmed so often that in the tribunal's language it had been elevated to the international plane. So even if it was originally concluded, uh, as a sort of political undertaking between a colonial government and a non independent territory, it had been turned into something akin to a treaty after independence because both parties reaffirmed it was the document that governed their relationship.

Douglas Guilfoyle: So the, the, the case I'm talking about, the UNCLOS arbitration ran from 2010 to 2015. 

James Pattison: And can you place that in the timeline of these legal disputes between Mauritius and the UK and sort of up until today, because I, I know there's still a fair bit going on. 

Douglas Guilfoyle: So, okay. So, so when did, 

James Pattison: when did you enter stage left?

Douglas Guilfoyle: So I entered stage left in 2010 and exited stage left in 2015. So I've had no further involvement in proceedings, but you're right. That wasn't the end of the road. Legally for Mauritius because what they got out of the U. N. Convention on the law of the sea proceedings was an acknowledgement that the Lancaster House undertakings were binding and that they did at the least have certain rights in the seas around the Chagos archipelago.

Douglas Guilfoyle: Um, so that was significant of itself, right? That you have some rights, but there were five arbitrators on the panel. And two of the five said they would have also found that Mauritius was sovereign over the entire territory of the islands due to a violation of the law of decolonisation, that the UK had split the territory unlawfully into two pieces, uh, and kind of extracted that concession from the pre independence ministers under duress, more or less.

Douglas Guilfoyle: So that's a, that was a pretty strong signal to Mauritius that, hey, we've got an argument we can run here. under the law of decolonization. But the only venue that could hear that argument would be the International Court of Justice. And the UK had already very cleverly foreclosed that option because the UK has a Uh, has voluntarily submitted to the jurisdiction of the International Court of Justice in all its disputes with a carve out where it says it, um, won't accept disputes brought against it by members of the Commonwealth, i.

Douglas Guilfoyle: e. former colonies. So the only other way you can get a legal question before the ICJ is called an advisory opinion. So the UN General Assembly. can request by majority vote that the International Court of Justice advise it as a political organ of the UN on a question of law. So Mauritius went to the General Assembly.

Douglas Guilfoyle: With this kind of legal wind in its sails from the UNCLOS arbitration and the UNCLOS arbitration having elevated its case and also having pushed the UK to make some pretty hardline colonial sounding arguments went to the General Assembly and got a resolution in 2017 where the General Assembly said, in effect, International Court of Justice, can you advise us on the legal consequences?

Douglas Guilfoyle: of the detachment of the Chagos Archipelago from Mauritius in the 1960s. Uh, now what was very interesting was the way that really, this attention Mauritius had drawn to the issue was already starting to shift international politics. Now there were other factors at play, including Brexit, but there has always been, since the establishment of the Permanent Court of International Justice under the League of Nations, a British judge.

Douglas Guilfoyle: on first the PCIJ and then the International Court of Justice. So that's about a century of not exactly tradition. It's sort of a balance of power thing, right? You know, the great powers, uh, or the upper medium powers now, including the UK, have always had their judge on the court. For the first time in, you know, the better part of 80 years or more, um, a British judge was not re elected.

Douglas Guilfoyle: to the ICJ. So Sir Christopher Greenwood lost his bid for re election to the ICJ in 2017, and interestingly, uh, Sir Christopher had also been one of the arbitrators in the, uh, Mauritius UK, um, Law of the Sea Convention. case. So in a sense, the tide appears to be turning diplomatically towards Mauritius. I 

James Pattison: really appreciated law of the sea pun.

James Pattison: These must be constant in your field of work. You 

Douglas Guilfoyle: can't, you can't get away from them. You discover how littered, uh, the English language is perhaps due to a naval tradition, um, with, uh, law of the sea, uh, sorry, maritime terms of phrase. When you start trying to teach law of the sea without engaging in mixed metaphors.

Douglas Guilfoyle: With these puns, I feel completely out of my depth. Yep. I see what you did there. Nice one. But the question goes up from the General Assembly to the International Court of Justice. And the answer comes back, unsurprisingly, that the excision of the Chagos Archipelago was a violation of the law of decolonization.

Douglas Guilfoyle: It constitutes an ongoing illegal situation, which must be brought to an end as soon as possible. So that really cuts the legs out from under. the UK's position. Um, and that, that answer comes back in 2019. Uh, but we're not done yet. The Mauritius then leverages that advisory opinion because, uh, you know, the UK hasn't to this day yet given back, um, the islands, but, uh, less than 400 nautical miles from the Chagos archipelagos is, uh, the Maldives.

Douglas Guilfoyle: or the outer islands of the Maldives. Now that's significant because under the law of the sea, states get to project from their land territory a 200 nautical mile exclusive economic zone. And if those zones, potential zones overlap, you have to have what's called a maritime delimitation to put the border in the sea.

Douglas Guilfoyle: So Mauritius initiates before the international tribunal for the law of the sea this time, a body set up under the UN convention on the law of the sea, a maritime boundary dispute with the Maldives. And the Maldives comes in and says, well, you can't hear this case, it lost, because there's an unresolved question of who is sovereign over the Chagos archipelagos, whether it's Mauritius or the UK.

Douglas Guilfoyle: And you, as the Tribunal for the Law of the Sea, can't, under the Convention on the Law of the Sea, resolve that question of sovereignty over land territory. It's a land issue, not a sea issue. Uh, so we don't want to be here. We don't want to buy into a fight between the UK and Mauritius. Uh, and Mauritius said that there is no question as to who is sovereign.

Douglas Guilfoyle: The International Court of Justice has said, albeit in an advisory opinion, Uh, that the UK has no legitimate claim to this archipelago. Um, and so, uh, the tribunal was sort of put on the spot and in a slightly cumbersome way effectively said that, uh, even though advisory opinions are advisory, they are quote unquote not without legal effect.

Douglas Guilfoyle: And therefore, they could say that, you know, the UK only had, um, an argument about sovereignty, but the issue had been disposed of. By the ICJ. So that's what I guess in law, we'd sometimes call, you know, a collateral attack. You know, you're establishing legal facts on the ground before multiple tribunals.

Douglas Guilfoyle: And also after the ICJ advisory opinion, the UN official world map changed. So the Chagos Archipelago is now shown as part of. Mauritius, uh, in really interesting technical and perhaps maybe slightly petty sounding developments. Uh, the Universal Postal Union that allows a letter to be sent from Australia, uh, to the United States, only honoring Australian postage stamps.

Douglas Guilfoyle: You don't have to stop at the border and buy new stamps, right? There's a deal that all countries of the world will honor each other's stamps. The Universal Postal Union will no longer, uh, accept stamps. issued by, um, the UK government in the British Indian Ocean Territory, which they were doing largely for stamp collectors.

Douglas Guilfoyle: But nonetheless, you can no longer use British Indian Ocean Territory stamps. Uh, to send your mail around the world. So Mauritius has kind of gone around all the international organizations it can, sewing up the position that only it has a legitimate claim to the islands. 

Melissa Castan: So I feel like between the tuna and the stamps, some significant legal shift has taken place here regarding the status of this, of this area.

Douglas Guilfoyle: Right. So the UK still hasn't relinquished sovereignty, but it has been reported that they are back at the negotiating table. So my Why would 

Melissa Castan: they do that, Doug? I mean, if none of these things are particularly binding, and some of them are more significant and some are less, but why would the UK sort of concede?

Melissa Castan: Can't they just stand there like they did back in the day and just say, thanks guys, but we're not, we're not moving? 

Douglas Guilfoyle: Right. So this is where, um, international law and international politics. start to interface. And the term I use for this is legal statecraft. So statecraft in international relations jargon are the available instruments of power a state has to pursue its national objectives.

Douglas Guilfoyle: And normally the international relations literature talks about the economic instrument of statecraft, the military instrument of statecraft, uh, the diplomatic instrument and maybe increasingly the cultural instrument. So you've got this range of hard, from sort of very hard military power and coercion through to sort of very soft kind of cultural capital that you can use to try and influence other states in the world system.

Douglas Guilfoyle: What I discovered was rarely spoken about as a lawyer was the legal And one of the questions that interested me at the beginning of, uh, some of the projects I'm now working on is the question, why litigate if you can't win? You know, why would you go to an international court or tribunal if there's no direct enforcement?

Douglas Guilfoyle: And there's really only two answers. One is that less powerful states that go to international courts and tribunals are naive or stupid or have been duped by their lawyers. Or there's another game at play where they don't expect instant magical compliance. And so I think the answer has to be in the second part.

Douglas Guilfoyle: So what do you get from doing this? And I think the point for particularly small powers and to some extent, uh, medium powers is that what law gives you and what a legal decision gives you is a certain amount of Um, symbolic capital. It gives you the ability to politically delegitimize your opponent's position if you're successful, and it can give you a kind of public standard, a sort of flag to rally others to your cause politically.

Douglas Guilfoyle: So when Mauritius said, this is not just a sovereignty dispute between us and the UK, this is about the law of decolonization, that has the potential to get other countries involved. post colonial group of 77 global South states on your side. So it has the capacity to influence politics. Uh, then in terms of the capacity to influence politics, I'd argue that at least, you know, one sort of sign that these cases were starting to dent.

Douglas Guilfoyle: The UK's diplomatic clout was the fact that Sir Christopher Greenwood was not re elected to the ICJ. Um, there were other international elections where the UK would normally have been expect, have expected their candidate to romp at home and they had to push harder than they thought. Their diplomatic capital had been eroded.

Douglas Guilfoyle: Now, um, certainly great powers have much more of an ability to just stand back and go. We don't care. So the United States did that, for example, in relation to the Nicaragua, USA case in the 1980s and China has done it to some extent as regards proceedings in the South China Sea. But when you're dealing with a kind of medium power, um, even a permanent member of the Security Council like the UK, medium powers are pretty dependent on system of international law to get their way in the world.

Douglas Guilfoyle: And in their ability to navigate that system and get it to work for them, reputation counts. So we've also seen that, for example, um, East Timor, Timor Leste was able to bring Australia to the conciliation table over their maritime boundary dispute in part by saying, well, Australia, you talk a big game about the international rules based order and the threat to that order posed by China, but why won't you negotiate a maritime boundary with us?

Douglas Guilfoyle: Why are you playing the bully boy with us? So there's that ability to get more leverage As a small state over at least the medium powers who are quite dependent on the system of international law for their prosperity and survival in the world. Does that make sense as an answer? 

Melissa Castan: Yes, because it's not just the win on the day, is it?

Melissa Castan: It's actually the long, it's the long game that's being played here. 

Douglas Guilfoyle: Yeah, well, and in terms of sort of socio legal studies, you know, we talk about when you go to court, uh, you have single players and repeat players, right? So, you know, if you, uh, if you go to court once for a high stakes event, like a repossession of a house or a divorce, you're enormously emotionally invested.

Douglas Guilfoyle: You're not very experienced. You may not. necessarily get the best outcome because you're focused just on the immediate. But then you have the repeat players, people like, uh, you know, um, district court prosecutors who will have relationships with the police and judges and the court system. And running alongside the individual case, they've got the interest generated by their long term relationships in the international system.

Douglas Guilfoyle: Everyone's a repeat player, right? States presume themselves to be permanent. There's the joke in the old television series, uh, Yes, Prime Minister, that, uh, politics is about surviving until lunchtime on Wednesday. Diplomacy is about surviving for the next 200 years. 

James Pattison: Now 2022 rolls around and, uh, the, the media starts reporting that the UK has decided to go Back to the negotiating table with Mauritius, um, what were the outcomes of that negotiation and where are we now a couple of years later?

Douglas Guilfoyle: So where we are is we actually don't know. The negotiations are ongoing and we don't have Um, an indication of where they may land. Uh, the, there is an issue around, um, the renewal of the lease by the US over, um, the archipelago. I believe that renewal has occurred. That does appear to sort of cement things in place for the moment.

Douglas Guilfoyle: Um, but Mauritius has made it very clear and, and this again goes back to the earlier point. Um, about the kind of two tracks of justice here that it would be perfectly content to continue those arrangements with the US if a change in sovereignty was acknowledged. So one of the difficulties about the case is that a lot of, um, not a lot, but definitely some of the support that's come from Mauritius has been in a sense because of the injustice done to the Chagossians who were forcibly displaced, but Mauritius does not have a plan to resettle them.

Douglas Guilfoyle: And nor does the UK. And Chagossian testimony, uh, was actually part of the International Court of Justice case on decolonization. So there is a sort of difficulty there, uh, where the interests of the Chagossians have sort of been pushed out of the frame by the way the politics has evolved. And if anyone's interested in knowing more about that, um, Philippe Sands, who, uh, led the initial case, has actually written a nonfiction book for a general audience called The Last Colony, a Tale of Exile, Justice and Britain's Colonial Legacy.

Douglas Guilfoyle: Uh, and obviously a podcast being a strongly visual medium. I'll just hold my copy up to the camera so James can see. 

James Pattison: I can vouch for its aesthetic qualities. Continuing on with the, with the theme of, um, great visuals in podcasts. Um, if you do want to Uh, a good sort of picture of, of what this area of the world looks like.

James Pattison: There are some really amazing, um, docos and news stories. BBC has produced a few, um, that you can look up on YouTube. We'll put some, put them in the show notes, uh, along with that book as well, Douglas. Um, cause it is, it is really the, the Chagos Archipelago. is that stereotypical vision of paradise? It's so beautiful.

Douglas Guilfoyle: Well, actually there was an interesting incident, um, I think a year or two ago where a number of Chagossians, uh, a number of, um, Mauritian government representatives, uh, and Philippe Sands all went and landed on the archipelago in a boat. Um, I don't, I don't think they actually, oh no, they may actually even have raised a Mauritian flag, uh, as a sort of symbolic act to say, you know, we're back.

James Pattison: I, I watched that very newspace that you're talking about and it was, it was really, really moving. These are people who were, some of whom were, were, you know, they spent a lot of their life, um, Either on Mauritius or in the UK, and had come back for the very first time, and someone was saying that, I don't recall who it was in the news story, as soon as they arrived, you see the people, um, get to work.

James Pattison: And they're, they're hacking away at all of the overgrown, um, undergrowth, and they find an old church, and they're trying to clean it up, and the, the person says, This is what it's like if you've been away from home for a couple of weeks on a holiday. You come back, and you clean up the garden. And this is what they're doing after.

James Pattison: decades of being forcibly removed from their home. It's a really, really moving piece. 

Melissa Castan: Doug, thank you so much for that deep dive into a really important international law issue, and thanks for being a part of Case in Point. 

Douglas Guilfoyle: Thank you guys very much for having me. James, 

James Pattison: g'day. Hello, Douglas. Douglas, a lot has happened in the intervening couple of months since we recorded that episode with you.

James Pattison: We need you to bring us up to speed. What has happened in this case? 

Douglas Guilfoyle: Well, look where we left things was that in November 2022, it was announced that the UK would recommence negotiations with Mauritius over the Chagos archipelago. And I was like, hooray, this is a pretty big win, win for Mauritius and vindicates my thesis that small states can use international law for political leverage in this kind of dispute.

Douglas Guilfoyle: So I was fairly happy with that. But then Uh, in October 2024, not that long after we recorded, it was announced that a deal had been reached, not a completed treaty, but at least a sort of heads of agreement that would see the UK cede or return sovereignty over the islands to Mauritius, but then would exercise sovereignty on Mauritius.

Douglas Guilfoyle: behalf in respect of Diego Garcia and the U. S. Air Base for 99 years. Now, the way that was expressed, it was not a lease. It was kind of a, a subcontracting of sovereignty. Now that might sound like a distinction without a difference, but you'll recall that Mauritius was really concerned that it remained.

Douglas Guilfoyle: Sovereign over the, uh, archipelago that had always been sovereign and would not concede. The choice of language was deliberate, though some media reports have described it as a lease. And that was pretty exciting for me. But do we have a treaty yet? The answer is no, and there are numerous twists and turns along the way.

Douglas Guilfoyle: But in terms of why the UK made that initial announcement in 2024, uh, we had a statement to the House of Commons from the new, uh, Labor Party Foreign Secretary in the UK, David Lammy. 

James Pattison: Because there was a change of government in the UK after we recorded that interview with you. 

Douglas Guilfoyle: Yes, uh, and, and also a change of government in Mauritius, which we'll come to.

Douglas Guilfoyle: Um, so, Uh, we had, um, David Lammy stand up in the House of Commons and note that, uh, since the creation of the British Indian Ocean Territory and the joint UK US military base on Diego Garcia, uh, there had been continuing contest over its legitimacy, but To quote him specifically, he said, Coming into office, the status quo was clearly not sustainable.

Douglas Guilfoyle: A binding judgment against the UK seemed inevitable. It was just a matter of time before our only choices would have been abandoning the base altogether or breaking international law. Under the previous government, there were 11 rounds of negotiations. The last one held just weeks before the general election was called.

Douglas Guilfoyle: So in July, this government inherited unfinished business, where a threat was real and inaction was not a strategy. Inaction posed several acute risks to the UK. First, it threatened the UK US base. From countering malign Iranian activity in the Middle East to ensuring a free and open Indo Pacific, it is critical for our national security.

Douglas Guilfoyle: Without surety of tenure, no base can operate effectively, nor truly deter our enemies. Critical investment decisions were already being delayed. Second, it impacted on our relationship with the US, who neither wanted nor welcomed the legal uncertainty, and strongly encouraged us to strike a deal. And third, it undermined our international standing.

Douglas Guilfoyle: We are showing that what we mean is what we say on international law and desire for partnerships with the global South. This strengthens our arguments when it comes to issues like Ukraine or the South China Sea. So again, there you have a foreign minister saying directly the kind of points I was making in our initial recording, that this sustained camp legal campaign from Mauritius was directly impacting.

Douglas Guilfoyle: Uh, the UK's view of its own strategic interests and its international standing. So you would expect, after all of that, um, hooray, Mauritius has basically won time to uh, sign on a treaty and execute it, wouldn't you? 

James Pattison: Surely. And, and surely that is what's happened. No. 

Douglas Guilfoyle: No. Absolutely not. Because there was another, as we foreshadowed, change of government.

Douglas Guilfoyle: In Mauritius, so following his re election as Prime Minister of Mauritius, uh, Prime Minister Naveen Rangoolam expressed reservations about the terms of the agreement and signaled that counter proposals would be put to the UK. Now what's truly interesting is that Ram Ghulam was the Prime Minister who initiated the first unclosed dispute with the UK, and now after a period, uh, in opposition, he's back in the driver's seat again.

Douglas Guilfoyle: So the news reports indicated that Ram Ghulam's reservations were in part about both money and sovereignty. uh, objected to any automatic right of renewal of the quote unquote lease, uh, over the island for 99 years, and was also reportedly seeking sort of higher annual payments for the use of the island.

Douglas Guilfoyle: A figure reported in the press was 800 million pounds a year plus a very large lump sum in compensation. Now, the pressure Ramgoolam was able to exert at the end of 2024 and the beginning of 2025 was that the U. S. president who was in favor of resolving this issue Was Biden, but who was coming in as president at the beginning of 2025, 

James Pattison: Mr.

James Pattison: Trump, 

Douglas Guilfoyle: Mr. Trump. So he is. So it looks like the Starmer government, the labor government really wanted to get this deal across the line, uh, before Trump was sworn in because they didn't know what his position would be. And. Um, Mauritius ran out the clock. Uh, so Trump is sworn in as U S president and now his secretary of state, Marco Rubio has apparently expressed concern about the deal because, uh, he and certain members of the Republican party considered that Mauritius is a potential ally of China because they have a trade deal with China and that if Mauritius got control of the rest of the Chagos archipelago back, there'll be nothing to stop them leasing an adjacent island to the U S airbase.

Douglas Guilfoyle: As a Chinese facility, thus neutralizing Diego Garcia. 

Melissa Castan: Uh oh! 

Douglas Guilfoyle: This 

Melissa Castan: really is Exactly! 

Douglas Guilfoyle: Oopsies! And, and that is where things stand, to the best of my knowledge, up to about nine or twelve hours ago. 

Melissa Castan: This is just an epic postscript, Doug. 

James Pattison: I really thought, yeah, in those very words, I thought this was going to be a Postscript in terms of just PS at the end of this episode.

James Pattison: In fact, it might be that it's a PPS after we speak to you and then a PPPPS after that. It sounds like the cycle continues. 

Douglas Guilfoyle: Uh, look, invite me back next season and we'll see where we are. Douglas Guilfoyle. Thanks so much for the update. 

Melissa Castan: Thanks, Doug. 

Douglas Guilfoyle: Thanks so much for having me guys.