Together, the USA and Britain are sabotaging their own efforts to curb China’s advances in the South China Sea, says Professor Philippe Sands (UCL Laws).
President Biden, speaking at the State Department’s headquarters soon after his inauguration, called the "rule of law" one of America’s "most cherished democratic values." The notion, a central part of his foreign policy and his faith in treaties and international institutions, is both a riposte to the Trump administration and a useful stick with which to beat China and Russia.
During a recent visit to Japan and South Korea, Secretary of State Antony J. Blinken castigated Beijing for its "coercion and aggression" - for making extreme maritime claims in the South China Sea "that violate international law."
Yet anyone who wants to weaponize the rule of law first needs to have their own house in order, and that includes being sure their closest allies do, too. Britain’s current approach to international law - especially the law of the sea - poses a serious problem for America.
The government recently published a foreign policy review on "Global Britain." The 100-plus-page document signals a shift away from Europe and toward the Indo-Pacific region, premised on a military alliance with the United States: No relationship is "more valuable," the text reads. In particular, the paper asserts Britain’s "absolute commitment to upholding the U.N. Convention on the Law of the Sea in all its dimensions."
Both appear to see the law of the sea as a particularly useful tool to clobber China, especially following a legally binding arbitral award handed down in 2016 by the Permanent Court of Arbitration in The Hague. The tribunal ruled that China’s claims over vast swathes of the South China Sea, enclosed by a mythical "nine-dash line," were illegal under international law, violating basic principles of freedom of navigation and the rights of other states.
The case was brought by the Philippines under the U.N. Convention on the Law of the Sea, known as UNCLOS, a binding global charter on all aspects of the world’s oceans adopted in 1982 after years of negotiations. (I acted as co-counsel for the Philippines.)
The United States is one of the few countries not to have joined the treaty - it objects to clauses about rights to mineral resources in the bed of the high seas - but it supports most provisions as reflecting general international law. The convention is cherished by the U.S. Defense Department for its clear rules on freedom of navigation, including for warships, and by others for its principles on marine conservation and fisheries, and for its system for the settlement of disputes, including over maritime boundaries.
The State Department promptly welcomed the 2016 Philippines-China award. The British prime minister at the time, David Cameron, warned China to abide by it.
Yet today, Britain, a party to UNCLOS, is hoist with its own law of the sea petard. By ignoring its obligations under the treaty, it is undermining the Biden administration’s effort to use that same body of rules to rein in China’s maritime claims.
The cause is a little-known group of some 55 islands in the middle of the mighty Indian Ocean known as the Chagos Archipelago. For some 150 years they were part of the British colony of Mauritius. Then, in 1965, at the instigation of President Lyndon B. Johnson, Britain decided to separate the islands from Mauritius and, at just the time that the world was agreeing the era of colonialism was over, created a new colony, called "the British Indian Ocean Territory." One of the islands, Diego Garcia, was leased to the United States for a military base.
Mauritius got its independence in 1968, but without Chagos. The entire population of the islands - about 1,800 Black people, mostly descendants of slaves who lived and worked on copra plantations there - were forcibly removed and transported to other parts of Mauritius, the Seychelles and Britain.
The episode, which the British government itself has since called "shameful," has not been widely known. Until now, as these events come back to haunt Britain and, indirectly, America.
Mauritius has long sought to get Chagos back, and its effort has been supported by numerous states - including India, the entire African continent, various governments in Latin America and Europe - and the many displaced Chagossians who never gave up on their hope to return to their homes.
Those efforts have borne fruit. In February 2019, the International Court of the Justice, in The Hague, ruled that Chagos has been separated from Mauritius illegally, in violation of both the right of self-determination and the territorial integrity of Mauritius. (I represented the government in that case, and continue to in related proceedings.)
The I.C.J. decision, issued at the request of the U.N. General Assembly, is not legally binding on U.N. members - so, neither on Britain nor Mauritius - but it offers an authoritative statement about the law and the U.N. itself is required to honor that. The U.N.’s official maps have been changed to show the Chagos Archipelago, including Diego Garcia, as belonging to Mauritius, not Britain.
Three months after the I.C.J.’s advisory opinion, the U.N. General Assembly overwhelmingly voted for a resolution affirming that Chagos was an integral part of Mauritius and called on Britain to withdraw from the islands within six months, by November 2019. The resolution - which Britain and the United States opposed - also said that Chagossians should now be able to return to their homes.
But the British have refused to leave, which has resulted in another case before the International Tribunal for the Law of the Sea, in Hamburg, Germany, a body operating under UNCLOS - the treaty to which Britain proclaims its absolute commitment.
That tribunal, in a case brought by Mauritius to delimit the maritime boundary between its Chagos territory and the Maldives, ruled in January that the I.C.J. decision had confirmed Mauritius’s sovereignty over Chagos and rejected Britain’s claims. Yet rather than go or allow the Chagossians to return, Britain has done a China and stuck two fingers up at the rulings and the international rule of law.
Britain’s recent foreign policy review asserts that its military will retain a "permanent presence" on Chagos. Just last week a new British Indian Ocean Territory coin was issued, featuring an effigy of Queen Elizabeth II on one side and the Chagos anemone (known as the clown fish) on the other.
The British government’s position is in direct conflict with the principles it invoked in a diplomatic note to Beijing in September, complaining that China’s claim to having historical rights over areas of the South China Sea violates international law, UNCLOS and the 2016 arbitral award.
Britain’s brazen double standard is grotesque, and damaging. Among other things, considering the U.S. military base on Diego Garcia, it undermines the Biden administration’s effort to use UNCLOS to hold China to account for its expansionism.
What is to be done’ Much like the Trump administration had ignored the I.C.J.’s decision, Mr. Biden and Mr. Blinken have said nothing about Chagos so far.
And yet to bury one’s head in the sand is to endorse Britain’s clear violation of the laws and treaties that are central to the South China Sea issue and to offer tacit approval for a continuing colonial policy with racist undertones. How can the Biden administration support an ally that promotes self-determination for white people in the Falkland Islands, as Britain has done, while rejecting it for Mauritius and its Black Chagossian population’
There is, however, a simple and effective solution - if indeed the U.S. government is truly committed to the rule of law and international treaties.
Mauritius already has offered the United States a 99-year lease over Diego Garcia, providing a long-term security that is lacking under America’s current arrangement with Britain, which expires in 2036. In return, the Chagossians would be allowed to come back to parts of Chagos. A marine protection area could be established to conserve a pristine maritime environment. The flag would finally be lowered on Britain’s last colony in Africa.
It’s a win-win-win proposition. Security, human rights and the marine environment are protected. The rule of law, treaties and UNCLOS are promoted. Charges of hypocrisy and double standard are cast to the wind.
This article was first published in New York Times on 01 April 2021.