230. Britain’s Last Colony: Trump, Brexit, and Russia-Ukraine (Ep 2)

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0:28Hello and welcome to Empire with me, Anita Arnon. And me, William Derimple. And once again, we are joined by the man who matters at the moment. We're talking about the Chagos Islands and the history of why everybody is scrapping over it today and why it's in your headlines quite as often as it is. Philippe Sands, author, broadcaster, human rights lawyer, is with us again. And thank you very much. You did kind of slacken our jaws with some of the facts you were throwing at us in the last episode. The images that you left us with, dogs being abandoned and swimming after their owners, people being separated by virtue of the color of their skin, whether they'd be over on the deck or under the deck.

1:07I mean, these are things that are unthinkable and they're going on that recently. And the crucial detail we didn't quite get to, which is that some of them end up in Crawley. Are you desperate to get that in? I'm very poor. I've always been keen on the Crawley elements in this story. The Crawley Chegossians. It's really important. What happens is, I mean, the community initially sets up in Mauritius and in Seychelles, and some are then given the right of abode in the United Kingdom. They fly or are flown to Gatwick Airport. And as has happened a few years earlier, there's no one there to meet them.

1:40They've got nowhere to go. What's the nearest town to Gatwick Airport? Crawley. Crawley. Crawley. And they end up setting up shop in Crawley. And that's why the Chagossian community is so strong in Crawley. I'm intrigued by this detail. I mean, they sort of bed down in Gatwick for a week. Yeah, yeah, yeah. Do they speak the language? Are they a bit cold? They're not wearing the right clothes? It's awful. At that point, as I'm told, speak Creole. They've arrived in a country in which Creole is not widely understood. They've got nowhere to go. They sleep, I'm told, at the airport for a few days.

2:15And then they are given some form of housing in Crawley. and then the community establishes itself. And it's been established there ever since. And what's significant here, the Chagossian community is a fabulous community. But like many communities, it is divided in its views. Some would like Chagoss to be part of Mauritius. Some would like it to stay with the United Kingdom. And some would like the independent republic of Chagoss. Wait a minute. Some want it to stay part of the United Kingdom, even though this happened on the UK's watch? If they've grown up in Crawley, they don't leave them 35.

2:50So to put things in context for today, you've got, I think, probably around five generations. Olivier Banco, who was born in Paris Banyas. He was a four-year-old child, by the way, that we spoke about in the last episode. Four-year-old contract labourer. Just to clarify, this is sarcastic. I mean, he was characterised as a contract labourer. By your legal colleagues. No, not my colleagues. I hope my British co-nationals who happen to be lawyers. And he is characterized as a contract laborer age four. I mean, it's staggering. And he then leads the charge for the Chagossians to be able to go back, which all the Chagossians want to go back to.

3:31I think for many of those who are in the United Kingdom, second, third, fourth generations, and Olivier refers constantly to the first generation, somewhat perhaps inelegantly in current parlance, as les natifs, the natives, those who were born on the Chagos archipelago. And he believes that they should be given sort of dominance in determining what happens next. And most of them, in fact, almost all of them, want to be part of Mauritius and want Chagos to be part of the Mauritius because in realist terms, they know that's the only way they're ever going to get to go back. There's a very significant community and a very decent community in Crawley who are firmly committed to remaining British.

4:12In large part, when I talk to them, because I get the sense that they are so unhappy with the way they were treated by Mauritius when they arrived in Mauritius. It's a very complicated situation. Right. Sounds it. When does the legal shenanigan of your world, But where does all that start revving up? In simple terms, it's not until 1982 that the Mauritius government begins to agitate at the United Nations and call for Chagos to be reinstated as part of Mauritius. But the litigation starts not at the international level. It starts in the English courts led by Olivier Banco, who brings a series of cases.

4:52Banco number one, Banco number two, right up to Banco number five and Banco number six. largely successful, gets a determination by the English courts, the Court of Appeal, that they can go back. And that is then overturned by Tony Blair's government after the events of September the 11th, when the military significance of Diego Garcia becomes paramount. We don't want any of these people around. How interesting. So can we play the thought game that if there hadn't been a September the 11th, then Bancoo and all of his family and friends would be back? I'm pretty much certain that if September the 11th had not happened, Robin Cook's decision to let them go back would not have been overturned.

5:31But instead, Cook gets sacked. Jack Straw comes in as someone more pliable for the invasion of Iraq. And suddenly they think of a new use for the Chagos Islands and Diego Garcia. What you need to know is that the bombing of Iraq and Baghdad started with planes that left from Diego Garcia. So we've left the... We'll just let that hang in the air for a second. Say that again. Just say it again. Not only did the bombing of Baghdad occur on the first days of the war from planes that left from Diego Garcia, but in the next period, some of the flights that participated in what is known as extraordinary rendition, carrying a person from country A to country B for the purpose of being waterboarded or otherwise tortured stopped at Diego Garcia.

6:25And this caused significant trouble for the British government in around 2007-2008 when having given undertakings to the British Parliament in Westminster that there had been no such flight stopping at Diego Garcia. It turned out that some flights had stopped. But can you just tell me, I mean, after September the 11th, or even before September the 11th, what is sort of like the legal standing of the base at Diego Garcia? Does anyone have to ask the British for permission to use it? Do the Americans come and go as they please? Who's in charge of it? Who does the cleaning? Who does the radar? You know, like, who does this all come under?

6:59The British claim to have sovereignty throughout this whole period. They enter into an agreement with the Americans. The Americans basically have free use, but for any operational mission, which includes bombing, etc., they must have prior sign-off from the British government. I've now come to understand, only since my involvement much later, that the reason the British Attorney General in 2003 had to give a legal opinion justifying the use of military force against Iraq without a Security Council resolution was because the bombing was going to from Thierry Gossett. And this is pulled off through a legal gimmick, orders in council, which means it doesn't have to go through Parliament.

7:45None of this has gone through Parliament. It's all been signed off with executive agreements between the United Kingdom and the United States, ordering council. Parliament has never debated any of these issues. Parliament is not even aware of the deal between the British and the Americans back in the 1960s, in which support for the Polaris missile system would be obtained in return for giving, in effect, a long-term lease for Diego Garcia. What is their legal pushback against what you've said? What would they say? You're saying, look, they had to sign off. They had to make it go under the table because it was going from Diego Garcia and it's got British fingerprints on it.

8:25What does the British government say in response? Because they're not going to say, oh yes, Philippe, that's what we did exactly. The government has given, successive ministers have given statements in Parliament that for operational uses, there has to be prior approval by the British government. So that's not contested. It's accepted. But nothing more than that, they won't say? Nothing more than that. We don't know many of the operational details for obvious reasons, because these are national security issues. Let's go back to the islands. So most of the islands which were cleared out, leaving just dogs, starving dogs.

8:56And one donkey. And one donkey. They run wild. presumably the you know vines have overcome the houses there's the sort of semi-ruins there but Diego Garcia has been developed into a major military base yeah what sort of scale base is it how many people live there a scale beyond imagination we do not know exactly how many people live there but it has been described as one of the largest and most important U.S. military bases air force bases in the world and there's no photographs there are some images that occasionally sailors going across the world pop off there and tell stories and take photographs.

9:32I do know people who have been there, but all accounts point to the conclusion that this is a base of major significance. And that becomes very important in the story going forward. I mean, what are the sort of stories that there's a submarine base that they're using it for communications? How many football pitches, Philippe? How many football pitches are we It's large. There are many long distance bombers stationed there. There are many naval vessels, including submarines that apparently visit there. I don't want to get into the speculation about what kinds of armaments are kept there. But the important point for all of this is Mauritius is close to the United Kingdom and the United States.

10:17And once it began to agitate for a return. That started in 1982 with the then Prime Minister, Sir Anurud Jughnath. It was then followed by litigation in the English courts by Monsieur Bonkou. And that was then followed by the phone call to me from Prime Minister Ramgoulam. By that point, there is cross-party support in Mauritius, except for a couple of parties with extreme views, that Diego Garcia, as a military base, will continue to operate. Okay. So what are the arguments going on in Mauritius. You know, this is a place with one donkey and lots of dogs and a bloody huge, massive military base.

10:56So why are the Mauritians saying, we want that back? We really want that back. Give it back now. And you know, that it steps up the way it steps up. When I am hired in 2010, the position of the Mauritian government and successive Mauritian governments is they want sovereignty over the whole of the Chagos archipelago, including Diego Garcia but the base will continue unchanged under Mauritian sovereignty on the basis of a long-term arrangement not between the United Kingdom and the United States but between Mauritius and the United Kingdom with a longer-term lease from the United Kingdom to the Americans.

11:32I mean would a cynic be right saying it's about the money honey you get big rental you've already got the property the beachfront property. No. Then why? I think it was pretty clear to me when I was first instructed. It was really an issue of principle. It was really a desire to complete the decolonization of Mauritius. There was a hurt that their territory had been, part of it had been hived off. There was a real concern about the Chagossians and a real desire to allow them to go back to the islands other than Diego Garcia, and there are 57 other islands. And there was one other factor that we haven't touched on, the catalyst.

12:10Why did I get the phone call in 2010? I got the phone call because a year earlier, as it was coming to the end of its term, the British government, the Labour government, decided in the face of all the problems with Diego Garcia on the bombing of Iraq, on extraordinary rendition flights, to create the largest marine protected area in the world across the entirety of the Chagos Archipelago. Did that in 2009. That coincided with something called WikiLeaks. One of the WikiLeaks documents that came out was a telex from the American Embassy in London to the State Department in Washington, which, and I paraphrase, basically said, we have been talking to our British colleagues.

12:52They are going to create the largest marine protected area in the world at the Chagos Archipelago. And one of the great benefits of this marine protected area, which will allow the base to continue because it won't affect the operation in the base is that the, quote, Man Fridays, end of quote, will never be able to go back. They call them Man Fridays. They call them Man Fridays in 2009. And this causes outrage. That's why the Mauritius are like, you don't talk to us like that. Correct, correct. 2010, I get the phone call. Mr. Sands, will you help work with my fabulous team in Poirouille, and they are a fabulous team, to design a legal strategy to recover the Chagos Archipelago.

13:31Step one, Mauritius files a case before Law of the Sea Arbitration Panel, which rules unanimously that the marine protected area created by the United Kingdom is illegal. There's a second part of the case in which Mauritius has asked the Arbitration Tribunal, a panel of five arbitrators, to rule that Mauritius has sovereignty over the Chagos Archipelago, not the United Kingdom, because the deal of 1965, Frighten Them With Hope deal, was done by duress and is illegal. The arbitration tribunal rules by three votes to two, so a narrow defeat for Mauritius on the key point, that it has no jurisdiction to decide who is the coastal state.

14:11It only has jurisdiction over maritime matters, not sovereignty over land territory. That takes us to 2015. A new government is then elected in Mauritius. The new prime minister, Sir Anna-Rud-Jugnauth, summons me to Port-Louis with the team of fantastic Mauritian lawyers and says, I instruct you to get the case to the International Court of Justice. The only way we can get the case to the International Court of Justice is by a request for an advisory opinion from the General Assembly of the United Nations. Do it, says the Mauritian Prime Minister. This is escalating fast. Well, 2015, our view is no chance in hell of winning a vote against the British and the Americans.

14:50They're just going to outmaneuver us. What is Mauritius saved by? Mauritius is saved by Brexit. which comes along in June 2016. And the consequence of Brexit is that support for the United Kingdom at the UN evaporates in an instance. The vote is taken in June 2017. And by 94 votes to 16, the General Assembly votes to send the case on whether the decolonization of Mauritius has been completed in accordance with international law, having regard to the separation of Chagos. was it lawfully completed? That question goes to the ICJ. There's then two years of pleadings. We have a hearing in September 2018, and the advisory opinion following the testimony of Lisby -Élysée, which is, to my mind, decisive in the proceedings, comes down in February 2019, when the International Court of Justice, 14 judges, rules without dissent in an advisory opinion that Mauritius has sovereignty over the Chagos Archipelago, not the United Kingdom, and orders the United Kingdom to end its unlawful occupation of the Chagos Archipelago immediately.

16:04Can I just say that these are a string of extraordinary small things that lead to very big things. So, I mean, the first thing that sticks in my head is that you have a leaked document referring to people as Man Fridays, which puts the back of a nation up. You talked about 9-11, Had that not happened, then this would have slipped very quietly under the radar and people would have been allowed to return home. And now you're saying that because Brexit happened, people were feeling very unfriendly to Britain and a vote they should have walked in the dark with their eyes closed didn't go their way because people were a bit pissed off with them.

16:40All of that, you have summarized it perfectly. That is exactly what happened in another world. It would have been very different. Look, let's take a break while we all just gasp. Join us after the break.

16:58Welcome back. Now, just before the break, we were talking about these teeny, well, I mean, they're not teeny, they're world events. Okay, 9-11 is not a teeny weeny event. But had these events not happened, things could be very, very different. And Philippe Sands, who is right in the middle of all of this and is absolutely the best person to talk us through this, started to explain what was, now you call it an adult advisory panel, advisory adjudication. What are we talking about here? Because not everyone speaks legally. So the International Court of Justice is the principal judicial organ of the United Nations.

17:31Which is the guys who've been in the headlines a great deal lately about the various adjudications on Gaza and whether it's genocide. Correct. Correct. And the court has two types of cases. There are contentious disputes between states. So, you know, Iran versus the United States or something. And those are one type of case. The second type of case is when a body of the United Nations, the General Assembly, sends a request to the court for an advisory opinion for legal guidance on an issue. And that's what happened in June 2017, when the General Assembly of the United Nations voted by a large majority to ask the International Court of Justice to give a decision on whether the decolonization of Mauritius was completed in relation to this separation of the Chagos archipelago.

18:21And that's effectively asking who has sovereigns. But how much muscle does it have? If it's got the word advisory in it, just, I mean, how much? So it is not binding on the states that are members, but it is binding on the United Nations itself. So when the court gave its advisory opinion in February 2019, it's addressed to the United Nations. The consequence of that is the UN changes its map to show that the Chagos Archipelago is part of Mauritius, not disputed and not part of the United Kingdom. The Universal Postal Union rules that any stamp with the word British Indian Ocean Territory will no longer be lawful and used.

19:03The Food and Agriculture Organization rules that the United Kingdom can no longer have fishing rights around the Chagos Archipago and so on and so forth. So it has authoritative legal consequences. Things change overnight as a result of this. Things change overnight. The General Assembly then passes a resolution accepting that it will implement the Chagos ruling by the International Court of Justice. Interestingly, in that case, the majority against the United Kingdom is even greater. The United Kingdom persuades only five countries in the world out of 200. Can you remember which ones they are?

19:37I can. Australia, the Maldives, Israel, Hungary, and the United States. The vast majority of the rest vote to accept the advisory opinion. What happens next? The government of Theresa May has to decide what to do. It decides, in effect, to stick two fingers up in the air to the International Court of Justice. We will not give effect to this advisory opinion. National security trumps everything. Have they done that before? Have they said, you know... They've not been on the receiving end of an advisory opinion before. And this is problematic in the United Kingdom context because its brand in part is a commitment to the rule of law.

20:17So people are rather surprised. That persists from 1999 until 2022. What changes? Now, I would love to be able to say... It was Philippe Sands what changed it. Philippe Sands' book, The Last Colony, published in September 2022, do, changed the situation. It did not. The Russian invasion of Ukraine changed the situation. And you look at me with wonderful puzzlement on your face, William. What is he talking about now? The foreign secretary at the time was a lady called Liz Truss. Our most distinguished prime minister ever. Indeed. She went around the world trying to find support for the coalition of countries to support the United Kingdom in its effort to respond to the illegality of Russia's occupation of large parts of the territory of Ukraine.

21:11As one prominent, very prominent African ambassador based in Brussels said to me, it was very interesting, Felipe said, the British came to us, Foreign Secretary, would we help end the illegal occupation by Russia of Ukraine? And we said to them, huh, that's interesting. Let me see if we've understood this correctly. You who are illegally occupying a part of Africa, the Chagos Archipelagoge, wish us to support you in removing Russia's illegal occupation of Ukraine. We don't think so. Bugger off. And that is one of the reasons why so few African countries have supported the West in relation to Russia, ukraine how interesting so nominally obscure group of islands with only 2 000 people ever living in them tipping the balance of power because every time yeah the british or the americans complain about ukraine or the south china seas the russians and the chinese say shake us well you know what it's a refrain in the in the global south and you see it you see in adverts for commodities and jokes and cartoons, do as I say, not as I do.

22:20You know, it's a sort of thing. Well, here, we're in Jaipur. India becomes very important in this matter. Because India totally supports the position of Mauritius. And we now find a situation in which the United Kingdom, which claims to have excellent relations with India and generally does, needs to curry favor with the Indians. And what happens is that in September 2022, the British government position changes. What I can tell you is this. Liz Truss's foreign secretary had communicated to Mauritius privately that her own view was there should be an agreed settlement on the Chagos issue in accordance with international law.

22:59But, she said, her prime minister would not allow her to see that through, Mr. Johnson. She said, if I become prime minister, everything will change. frankly Mauritius and I thought this is do we believe this or not well she did become prime minister and within though famously for less long than the lettuce but long enough long enough over those 49 days to invite the prime minister of Mauritius at that point Mr Pravind Jughnaath to a meeting at the United Nations at which the two agreed they would negotiate a solution to Chagos on the basis of international law. And so, Conservative Prime Minister Liz Truss unleashed the negotiations that would lead to a settlement of the issue.

23:49Can I just say something which is very curious, therefore? I would just put it to you. I put it to you, ladies and gentlemen. It's very curious that actually now that Labour is doing that, that the voices from the Conservatives are saying, we would never do that. This is outrageous, you sellouts. And I mean, politics, I know, is not your game. But I'm not seeing this wrongly, am I? I mean, these are the same voices that would have backed Liz Truss's move, which are now saying Labour doing this is making a terrible mistake and plunging national security. 13 rounds of negotiations, only two of which were under a Labour government.

24:26It's a Tory agreement. All its principal elements were drafted by successive foreign secretaries, Mr. Cleverley and then Lord Cameron, essentially begging Mauritius to enter into an agreement to resolve this matter on the basis of international law so that everyone can move on. And then we get more support in their view for gang up against Russia. Exactly. Now Britain at this moment in time is slightly isolated. It needs friends in many places, including India, including other former colonies. Why is India so interested that Mauritius should retain rights here? Because there is an ethnic dynamic to this, I know, because you've had successive prime ministers in Mauritius who are of Indian origin at some point.

25:15We've done the whole story of indentured labor and the mass migration. It's a real empire story. But is that it? Is that what it is? I don't know if either of you have ever been to Mauritius and met many Mauritians, but you will notice that they bear a remarkable resemblance to many of the people who are currently at the Jaipur Literary Festival. Is it as simple as that? It's as simple as that. There is a connection. When I hear that these people who say we're really worried Marisha's going to cut a deal with China, it's hopeless. It's like India cutting a deal with China. That said that Indians are having a big squabble at the moment with the Maldives that also look very like Indians.

25:53Well, this is another thing that comes up. It seems that a lot of British politicians are unable to tell the difference between the Maldives and the Mauritians. That doesn't surprise me in the least bit. I myself have had an entire conversation over lunch with a former British Solicitor General, who spoke to me about his fears of Mauritius doing another deal with the Chinese. And it was only after the lunch that I realised he was thinking about the Maldives. Can I just say one other thing? We're sort of presuming knowledge, and we ought to maybe explain, But India does not have good relations, to put it mildly, with China.

26:28India is worried China is on its border. Nor does it have good relations with the Baltic currently. Yeah, but we're just talking about China at the moment. Because the whole argument is that if Mauritius gets this archipelago back, it will sell it to the Chinese at an enormous profit than what's going to happen to national security. And what you're saying is this Indian kind of connection and ethnicity means they would never sell to China. We should also say something that we haven't said so far, that this whole area is an area of naval contention between China and India. And over 20 years, from about the 1990s through to the 210s, the Chinese very successfully built what they call the String of Pearls, which is a series of deep water ports where Chinese nuclear submarines and other bases can operate, entirely ringing India.