INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES OF THE SEPARATION OF THE
CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965
(REQUEST FOR ADVISORY OPINION)
Written Comments of the Republic of Mauritius
VOLUME II
(Annexes 201–235)
15 May 2018
VOLUME II
ANNEXES
Annex 201 United Kingdom, OPD Paper, Mauritius Defence Agreement
(undated)
Annex 202 United Kingdom, Draft OPD Paper, Mauritius Defence
Agreement (including handwritten annotations) (undated)
Annex 203 Note by the Crown Law Office (undated)
Annex 204 U.K. House of Lords, Debate, Second Reading, Cayman Islands
and Turks and Caicos Islands Bill, Vol. 207, cc617-23 (11 Feb
1958)
Annex 205 United Kingdom, Cayman Islands and Turks and Caicos
Islands Act 1958 (20 Feb. 1958)
Annex 206 U.K. Defence and Oversea Policy Committee, Mauritius -
Constitutional Developments: Note by the Secretary of State
for the Colonies, OPD (65) (May 1965)
Annex 207 U.K. Defence and Oversea Policy Committee, Minutes of a
Meeting held at 10 Downing Street, S.W.1, on Wednesday, 2nd
June, 1965, at 10:30 a.m., OPD (65) 28th Meeting (2 June
1965)
Annex 208 Note from J. O. Wright to J. W. Stacpoole of the Colonial Office
(21 Sept. 1965)
Annex 209 U.K. Defence and Oversea Policy Committee, Minutes of a
Meeting held at 10 Downing Street, S.W.1, on Thursday, 23rd
September, 1965, at 4 p.m., OPD (65) 41st Meeting (23 Sept.
1965)
Annex 210 Telegram from T. Smith to J. Rennie, Governor of Mauritius,
No. 234 (1 Oct. 1965)
Annex 211 Letter from J. Rennie, Governor of Mauritius, to A.
Greenwood, U.K. Secretary of State for the Colonies, CO
1036/1253 (15 Nov. 1965)
Annex 212 Mauritius Legislative Assembly, Written Answers to Questions,
Diego Garcia – Sale or Hire, No. A/33 (14 Dec. 1965)
Annex 213 Report from J. Rennie, Governor of Mauritius, to H. Bowden,
Secretary of State for Commonwealth Affairs (23 Jan. 1967)
Annex 214 Note from A. J. Fairclough to T. Smith (7 Feb. 1967)
Annex 215 Note from T. Smith to Sir Arthur Galsworthy (14 Feb. 1967)
Annex 216 Note from A. J. Fairclough to T. Smith, attaching a note on
Considerations arising from and since the 1965 Constitutional
Conference related to the question of Independence (14 Feb.
1967)
Annex 217 Note from E. M. Rose to Sir Burke Trend (20 Oct. 1967)
Annex 218 Letter from P. A. Carter to E. G. Le Tocq of the U.K. Foreign
and Commonwealth Office East African Department, FCO
83/18 (5 Feb. 1971)
Annex 219 Note from C. C. D. Haswell of the U.K. Foreign and
Commonwealth Office East African Department to Mr Wallace
and Mr Robson (30 June 1980)
Annex 220 United Kingdom, Diego Garcia: Translation of Ramgoolam’s
remarks at a press conference (given in Creole) on 26 July
1980 (26 July 1980)
Annex 221 Letter from S. H. Innes of the U.K. Foreign and
Commonwealth Office East African Department to J. J. Bevan
of the U.K. Mission to the U.N. in New York (7 Oct. 1980)
Annex 222 U.K. House of Lords, Debate, Diego Garcia: Future, Vol. 415,
cc389-90 (3 Dec. 1980)
Annex 223 Telegram from Thomson to the U.K. Foreign and
Commonwealth Office East African Department, No. 42 (19
Jan. 1981)
Annex 224 Letter from R. C. Masefield, for the U.K. Secretary of State for
Home Affairs, to J. F. Doble of the Information Department,
U.K. Foreign and Commonwealth Office (9 Aug. 1982)
Annex 225 U.K. House of Lords, Debate, Diego Garcia: Minority Rights
Group Report, Vol. 436, cc397-413 (11 Nov. 1982)
Annex 226 Note from W. N. Wenban-Smith, “Commissioner” of the
“BIOT”, to Mr Watts, Deputy Legal Adviser, U.K. Foreign and
Commonwealth Office (15 Feb. 1983)
Annex 227 Letter from J. N. Allan, British High Commissioner in Port
Louis, to W. N. Wenban-Smith, “Commissioner” of the “BIOT”
(10 Mar. 1983)
Annex 228 Note from C. A. Whomersley, of the U.K. Foreign and
Commonwealth Office Legal Advisers, to Mr. Hunt of the U.K.
Foreign and Commonwealth Office East African Department
(21 July 1983)
Annex 229 Note from D. I. Campbell, of the U.K. Foreign and
Commonwealth Office East African Department, to A. Watts,
Deputy Legal Adviser, U.K. Foreign and Commonwealth Office
(26 July 1983)
Annex 230 Letter from J. N. Allan, British High Commissioner in Port
Louis, to W. N. Wenban-Smith, “Commissioner” of the “BIOT”
(16 Dec. 1983)
Annex 231 Letter from W. N. Wenban-Smith, “Commissioner” of the
“BIOT”, to J. N. Allan, British High Commissioner in Port
Louis (10 Feb. 1984)
Annex 232 J. Addison & K. Hazareesingh, A New History of Mauritius
(Part 2 of Extract) (1993)
Annex 233 Jocelyn Chan Low, “The Making of the Chagos Affair: Myths
and Reality” in Eviction from thE chagos islands (S. Evers &
M. Kooy eds., 2011)
Annex 234 John Tasioulas, “Custom, jus cogens, and human rights”,
forthcoming in custom’s futurE: intErnational law in a
changing world (20 Mar. 2015)
Annex 235 N. Wenban-Smith & M. Carter, Chagos: A History -
Exploration, Exploitation, Expulsion (2016)
Annex 201
United Kingdom, OPD Paper, Mauritius Defence Agreement (undated)
Annex 201
Annex 201
Annex 201
Annex 201
Annex 201
Annex 201
Annex 201
Annex 201
Annex 202
United Kingdom, Draft OPD Paper, Mauritius Defence Agreement (including handwritten
annotations) (undated)
Annex 202
Annex 202
Annex 202
Annex 202
Annex 202
Annex 202
Annex 202
Annex 203
Note by the Crown Law Office (undated)
Annex 203
Annex 204
U.K. House of Lords, Debate, Second Reading, Cayman Islands and Turks and Caicos Islands
Bill, Vol. 207, cc617-23 (11 Feb 1958)
Annex 204
Search Heln
HANSARD 1803-2005 - 1950s - 1958 - FebrufilY 1958 - 11 FebrufilY 1958 - Lords Sitting
CAYMAN ISLANDS AND TURKS AND CAICOS ISLANDS BILL
HL Deb 11 February 1958 vol 207 cc617-23
5.49p.m.
Order of the Day for the Second Reading read.
THE EARL OF PERTH My Lords, I feel that I owe you an apology. You are hearing me a great deal this afternoon,
but it is just an accident of events that there happen to be two Bills on colonial matters to be dealt with to-day. This
Bill, I think, is less difficult to understand, and again I hope that it will not he a controversial one. Its purpose is
simple. It is to separate the Turks and Caicos Islands from Jamaica, and to make fresh provision for the government of
these islands and for that of the Cayman Islands. I might explain to your Lordships that the Cayman Islands do not
have to be formally separated from Jamaica for, by the Act of 1863, they are administered "as if they were part of'
Jamaica. On the other hand, the Turks and Caicos Islands were, in the words of the Order in Council of 1873 "annexed
to and formed part of' Jamaica.
Let me give your Lordships a word on the history of the islands. The Cayman Islands are a group about 200 miles
north-west of Jamaica. They have been British for nearly 300 years. Their population is about 9,000, most of whom
are of European origin. Many of them originally came to the island as shipwrecked pirates who decided to settle there,
or as marooned mariners. Curiously enough, the sea has remained in their blood, so that to-day the main occupa tion
of the islanders is to provide seamen for ships.
LORD SILKINNot pirates!
THE EARL OF PERTH Although the main revenue of the people is the seamen's remittances, there are two other
sources of wealth-turtles and tourists, though these are not of great importance. The islands have always faced the
danger of hurricanes. They are governed by a Commissioner appointed by the Governor of Jamaica, and the local
Legislature consists of Justices and Vestrymen.
The Turks and Caicos Islands are about 450 miles north-east of Jamaica. They are a barren group of islands whose
main industry-I can almost say their only industry-is salt. The salt-making industry has suffered over many years
great ups and downs, but thanks to the technical advice of Imperial Chemical Industries it has now a better prospect.
The population of the islands is about 6.600, and the method of administration is similar to that of the Cayman islands.
The Governor of Jamaica has been responsible for the administration of both these groups of islands and a Convention
has been developed by which Jamaican legislation does not apply to them unless the islanders so wish. In practice, the
administration and technical aid given by Jamaica has been of the greatest help, because these groups of islands
cannot themselves provide the necessary staff, whether for roads or accounting, or what you will. I should like to say
here how grateful we are for the services which Jamaica has so readily offered. I am glad, further, to say that the new
arrangements proposed for administering the islands will not interfere with the continuance of this help from Jamaica.
The islands will, in fact, be part of the Federation of the West Indies, but while no provision has been made for their
representation in the Federal Legislature, generally it is not contemplated that the Federal laws will apply in the
islands unless the Commissioners of the islands have been first consulted.
The arrangements outlined in this Bill are put forward with the approval of all concerned, and on the appointed day an
Order in Council will be made. It will provide for increased local autonomy in Constitutions which have not yet been
Annex 204
settled, but it will be in the usual form of having legislative bodies containing ex officio and nominated members, as
well as members elected by universal adult suffrage; and there will be an Executive Council which the Commissioner
will normally consult. In addition, and most important, the islands will remain administratively linked with Jamaica. It
will be for the Federal Government to decide what proportion of the block grant-in-aid given by Her Majesty's
Government to the Federation may be distributed to the Turks and the Caymans, although at present the Caymans
have no grant-in-aid. The eligibility of both groups of islands for Commonwealth Development and Welfare funds
will not be altered.
At this stage I do not propose to go into any detail on the clauses of the Bill. I have said that Clause 1 provides for the
separation of the Turks and Caicos Islands from Jamaica. Clause 2 (1) enables Her Majesty's Government to make
fresh provision for governing the Cayman Islands. The rest of Clause 2 lays down government by Order in Council on
the appointed day as outlined. Clause 3 deals with the power to authorise the making of emergency laws. That may
arise from many causes-from natural causes, such as a hurricane in that part of the world, or from wars or rumours
of wars. Clause 4 is the Short Title. It seems to me that this Bill is typical of so much in our colonial history. It follows
no exact constitutional pattern, but rather works out a system of rule for these islands which retains past advantages,
particularly the link with Jamaica, and at the same time takes into account the wishes and circumstances of the people.
I beg to move that the Bill be now read a second time.
Moved. That the Bill be now read 2a.-(The Earl of Perth.)
5.57p.m.
THE EARL OF LUCANMy Lords, this Bill calls for little criticism and arouses no controversy of which I know. The
noble Earl gave the House a sketch of the Islands and their condition. Politically, he assures us that the present
arrangements have been arrived at after consultation and in agreement with all concerned. I suppose we must be
content with that, although one might think that the setting up of the paraphernalia of Constitutions for these two
groups of islands, whose populations amount together to about 12,000, might be rather top-heavy. One would have
thought that something on the lines of local government as we know it here would have been adequate. But if the
people of the islands and the Jamaican and Federal Governments are all in agreement, I think that we can accept it as a
sound arrangement.
There is one point on the clause dealing with emergency powers which I feel was not quite satisfactorily cleared up
when the matter was raised in another place. Under Clause 3 power can be conferred by Her Majesty, by Order in
Council, upon "any authority" to make emergency laws. Presumably the authorities who may require to use such
powers are those of the Jamaican Government or the Government of the Federation. But the words "any authority" are
surely very wide: they might be applied, for instance, to the Flag Officer of the Royal Navy in these waters, or to any
Service officer; or, indeed, to officers in the United States Services, who I understand have a small detachment there.
If, in fact, powers are intended to be used only by the Governments constitutionally set up there, and there are only
two or three of them, why should they not be specified in the Bill? I think we should hear a little more about that
aspect.
It is good to hear from the Minister that grants under Colonial Development and Welfare funds will not be changed,
and that the grants-in-aid which have hitherto been paid to the Turks and Caicos Islands may still be paid by the
Federal Government. But clearly the economic conditions in those islands are not prosperous, and we should like to
know what provisions have been made, and are likely to be made, for improving conditions. We know that the
Colonial Development Corporation lent £50,000 for the construction of the airport on Cayman Islands, but that was
some years ago. I cannot find that any enterprise was set up to improve the salt industry on the other islands, which
one has heard has considerable scope and promise for the export of salt to the United States. Then there is the
underlying question of the scope of the Colonial Development Corporation. I see that there is an Overseas Resources
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Bill coming before us before long, and I hope the fact that the Federation of the West Indies has achieved
independence will not mean that all help and investment by the Colonial Development Corporation will have to cease
in those islands. Subject to those few questions, we on this side of the House support the Bill.
6.2p.m.
LORD MILVERTONMy Lords, I, too, must apologise for detaining your Lordships for a second time this evening, but
I can assure you that it will only be for a moment or two. My only excuse for intervening in this debate is that I know
these islands probably better than any of your Lordships, as they were my responsibility for five years when I was
Governor of Jamaica. I have no reason or wish to add anything to the excellent summary given of the islands,
historically, economically and ethnically, by the noble Earl who moved the Second Reading, and I will not attempt to
say anything about that.
It is obvious that this position has arisen from the approach of Jamaica to self-government and the birth of Federation
of the West Indies. The question was, I suppose: were the Turks and Caicos Islands to be left as part of Jamaica, which
they were, and were the Cayman Islands to be embodied in Jamaica and given representation, presumably, in the
Jamaican Legislature, or were they to be given a separate existence? The present arrangement is a peculiar one, for
which I suppose there is hardly any precedent; they will be part of the Federation, and yet will have no representation,
and will have this (the noble Earl will excuse me for saying so) rather cumbrous arrangement of Executive Councils,
Legislative Councils and the rest of it. One can only hope that they will make the best of it.
I can think of only one question which might arise, and it is this. Supposing that these untutored democrats, with this
new and dubious gift of adult suffrage, do not use it properly; and supposing that the control gets into utterly wrong
hands, as may easily happen, who then is going to intervene and who will be responsible for setting that situation
right? Especially might that arise after the Federation of the West Indies has attained complete independence as a
member of the Commonwealth. I know that in the Bill the right is reserved for emergency powers and so forth, but the
exercise of that right in those hypothetical circumstances would surely be fraught with a great deal of difficulty. I only
mention the point, and there is perhaps no reason to advance to that stage. But I can see all sorts of possible
difficulties arising even at an early date. For instance, to the Cayman Islands is now coming a relative prosperity,
because they have luxury hotels, and even a night-club. Now, with adult suffrage added to those other modem
pleasures, all sorts of things might happen in a community like that. The tourist traffic, with all respect to it, does not
generally improve the behaviour of people in that stage of development.
However, I wish this Bill every success, and I sincerely hope that the experiment, as indeed I regard it, will be
successful. I personally, had I a voice in the matter, should have thought the easiest solution would have been to give
them representation in Jamaica and to have made them part of Jamaica. But ifit was the wish of the islanders
themselves, as we are told it was, then this experiment has that justification of being according to the will of the
people. I support the Bill.
6.8p.m.
THE EARL OF PERTH My Lords, both the noble Earl, Lord Lucan, and the noble Lord, Lord Milverton, have
touched on the same point-namely, that it appears to be a rather heavy paraphernalia of government that has been
outlined for these two small islands. I think I would agree that one should not take this too seriously. What I mean is
that although you may give the people rather important-sounding names-and that is natural, I think, when they are
going to govern themselves-in practice one will find that the machinery will be very much like that of a local
government. There must be some form of election and of suffrage, and if, as a result of that, there is some form of a
board which is going to govern or guide the island under the Commissioner, it warrants, since it has the main
responsibility, the sort of set-up which has been outlined. But it does not need to be taken too seriously, in the sense
Annex 204
that it will be top-heavy and have everybody consisting of civil servants. In practice, the islands will continue to rely,
as now, administrative help from Jamaica.
The noble Earl, Lord Lucan, raised a question, which was also raised in another place, as to what is meant by "any
authority". It was said in another place-and I would confirm it-that what we had in mind was British authorities. It
is difficult to know just which ones it might be-federal, ifit was a question affecting the whole of the Federation;
local, in which case you might call only on Jamaica to act; or completely local, in which case you would give
authority to the Commissioner to act. So it is necessary to use these words, and I can give the same assurance which
was given in another place in regard to them.
The noble Earl, Lord Lucan, asked whether the Colonial Development Corporation would continue to operate there.
Certainly, at the present time, if they so choose they may do so. What may happen once the Federation has achieved
independence, which is some time off, remains to be seen, but if they have started a scheme then, as noble Lords
know, they can carry on with it after independence is achieved. The other point raised by the noble Lord, Lord
Milverton, was: Who can step in if something goes wrong? The answer, surely, is the Commissioner or the Governor
of Jamaica, or the Federal Government, depending on the seriousness of the crisis.
This is a simple Bill. It achieves, I hope and believe, the purpose which is the wish of the Islanders, as agreed with the
authorities ofJamaica.
On Question, Bill read 2aand committed to a Committee of the Whole House.
Annex 205
United Kingdom, Cayman Islands and Turks and Caicos Islands Act 1958 (20 Feb. 1958)
Annex 205
6 & 7 ELIZ. 2 Cayman Islands and Turks and
Caicos Islands Act, 19'58
CHAPTER 13
CH. 13
An Act to separate the Turks and Caicos Islands from
the colony of Jamaica and to make fresh provision
for the government of those Islands and of the
Cayman Islands. [20th February, 1958]
BE it enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, as follows:-
1. On such day as Her Majesty may by Order in Council Separation of
appoint (in this Act referred to as the " appointed day ") the Tu:ks and
Turk~ and Caicos Islands shall cease to be part of the colony of fr~0~:; 1~:ds
Jamaica. of Jamaica.
2.--(1) On the appointed day the Cayman Islands Act, 1863, Provisions as
and the Order in Council made under the Turks and Caicos to government
of Cayman
Islands Act, 1873, shall cease to have effect. Islands and
(2) Her MaJ. esty may b y Or d er m. Co unc1·1 m ak e sueh prov1. s.1 0nTC uarickos s aInsdla nds.
as appears to Her expedient for the government on and after the 26 & 27 Viet.
appointed day of the Cayman Islands and the Turks and Caicos c. 31.
Islands as part of the West Indies (that is to say, the Federation 36 & 37 Viet.
established under the British Caribbean Federation Act, 1956), c. 6.
and any such Order may, in so far as may be consistent with the 4 & 5 Eliz. 2.
provisions of any Order in Council in force under section one c. 63·
of that Act,-
(a) confer power to make laws for any of the said Islands on
authorities established under the Order, on the legislature
of Jamaica, and on any other authority;
1
Annex 205
Power to
authorise
making of
emergency
laws.
CH. 13 Cayman Islands and Turks and
Caicos Islands Act, 1958
6 & 7 ELIZ. 2
(b) confer or provide for conferring on any court of Jamaica
original or other jurisdiction over matters arising in any
of the said Islands;
(c) confer powers and impose duties on any authorities
established under the Order or any other authorities of
any of the said Islands or any authorities of Jamaica;
(d) make or provide for the making of such incidental,
consequential or transitional provisions as may appear
to Her Majesty to be necessary or expedient.
(3) The cesser of the provisions mentioned in subsection (1)
of this section shall not affect the continued operation of any
other law in force in any of the said Islands immediately before
the appointed day; but an Order in Council under this section
may make or provide for the making of such modifications or
adaptations in, and such repeals of, any such laws as may appear
to Her Majesty to be necessary or expedient in consequence of
the passing of this Act.
(4) An Order in Council under this section made before the
appointed day may be so framed as to enable any authority upon
whom power is thereby conferred to make any provision or to
adapt, modify or repeal any law to exercise that power before
that day with effect from that or a later day.
(5) An Order in Council under this section may be revoked or
varied by a subsequent Order in Council.
3.-(l) Notwithstanding anything in section two of this Act or
any Order in Council made under that section, Her Majesty may
by Order in Council confer power on any authority to make, in
relation to periods of emergency, such laws for any of the said
Islands, to have effect notwithstanding the provisions of any
other law, as may appear to that authority to be necessary or
expedient for securing the public safety, the defence of that
Island or the maintenance of public order or for maintaining
supplies and services essential to the life of the community; but
any power so conferred shall be exercisable only to the same
extent and subject to the same restrictions as the power of the
legislature of the Island to make laws in similar circumstances.
(2) In this section " period of emergency " means, in relation
to any of the said Islands, a period beginning with a declaration
made by such authority and in such manner as may be prescribed
by an Order in Council under this section that a public emergency
exists in that Island and ending with a declaration so made that
a public emergency no longer exists therein.
2
Annex 205
6 & 7 ELIZ. 2 Cayman Islands and Turks and
Caicos Islands Act, 1958
CH.13
(3) An Order in Council under this section may be revoked or
varied by a subsequent Order in Council.
4. This Act may be cited as the Cayman Islands and Turks Short title.
and Caicos Islands Act, 1958.
PRINTED BY SIR JOHN ROUGHfON SIMPSON, C.B.
Controller of Her Majesty's Stationery Office and Queen's Printer of Acts of Parliament
3
Annex 205
CH.13 Cayman Islands and Turks and
Caicos Islands Act, 1958
6&7Euz.2
LONDON: PUBLISHED BY HER MAJESTY'S STATIONERY OFFICE
PRlli1 ED IN GREAT BRITAIN
{374:<2)
ISBN 0 10 520295 9
Annex 206
U.K. Defence and Oversea Policy Committee, Mauritius - Constitutional Developments: Note by
the Secretary of State for the Colonies, OPD (65) (May 1965)
Annex 206
Annex 206
Annex 206
Annex 206
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Annex 207
U.K. Defence and Oversea Policy Committee, Minutes of a Meeting held at 10 Downing Street,
S.W.1, on Wednesday, 2nd June, 1965, at 10:30 a.m., OPD (65) 28th Meeting (2 June 1965)
Annex 207
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Annex 207
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Annex 207
10 SECRET
6. Mauritius
·(Previou. Re!cre,,ce: O.P.D. !65) 25th Meeting. l!QD 3)
Th e Committee considered a note by the Colonial Secretary
(0.P .O. (6S) 86) about constitutional developments in Mauritius.
Tht Cclt»rial Seaerary said that in 1961 constitutional tall:s wilh
all the political panics represented in the Mauritius Legislature were
held in London and a programme or constirutional advance in two
sta.ges was Ja;d dO\\'ll. The second s:uge was brought into force in
February 1%4 when the present all-party GovemIDCJ)t was formed
and a,reement reached that the n-.xt constitutional discussions should
be held at "any convenient time after October 1965 ". The present
Constitution provided for a Council of Ministcn presided over by
the Governor, who appointed the Ministers in his discretion after
consul!Ation with the Premier l!Dd other leader1 l!Dd retaiDed linal
responsibility for law and order and for the Public Service.
The main panics were bas-..d primarily on racial or religious
groups and the current poiitic,il debate in Mauritius wu between the
aim of independence on the one bl!Dd and that of som,: form or
association with Britaio on the other. The inter-communal suspicion
which was a st.a.nding feature of Mauritius life prao:ot.od • potentially
dangerous situation. In these circumstances, he propated to instruct
the Governor to invite the four parties represented in the Leplature
to a constitutional conrerence in London in September to consider
the next constitutional stage for Mtnritius 8lld whether iu alD!
should be 10 seek independence or some form or special asoociation
either with the United Kingdom or with other indepcndont
Commonwealth countries.
In discussion there was aeneral agr,cment with the proposal to
arrange a conference in London. It would, however, be necessary to
consider whether the detachment or the lsl!Dd depeudencies from
Mauritius for the purpose of establishing Anglo-United States bases
in the Indian Ocean should not be raised and decided either b::fore
or during the conference and as a part of any asreement leading to
independence for Mauritius.
Toe followina point.s were also made:
(a) lbe Governor bad advised tllat it would be injudicious to
raise the proposal relating to the bases with Mauritius Ministen
durina the current disturbances in the Island, but it was essential that
such an approach should not be delayed until our negotiating position
was weaker.
(b) It would be appropriate. particularly in the light of the views
recently aprased by the Prime Minister or Canada Oil membersrup
of the Commonwealth by the rcmainini: Colonial territories wrueh
might attala independence, to mm it clear to the Mauritius Ministers
either in the Secretary of State's despau:h 10 the Governor about the
conlen:nce or on some other occuion in the near future that \:
membership of the Commonwealth by Mauritius was ·• matter not
solely for the Unit.od Kingdom, but · for the memben of the
Commonwealth u a whole. ,.
SECRET
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Annex 207
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SECRET 11
The Comm.ittee-
(1) Invited the Colonial Secretary to consider further, in
consultation wilb the Foreign Secrelary and ihe Secretary
of State ror Defence, when it would be appropriale to
raise wit.b the Mauritius Government the detachment of
Island dependencies from the Colony for the purpose of
establishing Anglo-United States bases.
(2l Invited lhc Colonial Secretary, in consultati on with the
Commonwealth Secretary, IO consider furt her the manner
in which the MauriLius Government should be
remind ed that membership of the Commonwealth a(tc r
independe nce would be a matter for lbe agreement of an
Commonwealth members.
(ll Approved O.P.D. (65) 86 snbjeet to Conclusions (1) and (21.
7. Future of the remainin c Brifisb colonial territories
The Committee bad before them a oote by the Secretary
(O.P.D. (65) 89) co,•ering a minute by the Colonial Secretary on the
future of the remaining British colonial territories.
The Colonial Secretary said lbat at this stage in our colonial
history our main ta sk must be lo liquidate colonialism either by
granting independencet o a numbero f territorieso r by evolving for
others forms of Government which secured basic democratic rights
for the people, but which involved some degree of associ~tion \\ith
the United Kingdom. The remaining territories all presented special
difficulties, and he had bix:n oonducting a general review of policy
within tbe Colonial Office. He was also planning to oonsider the
problem in a wider forum and to hold a conferenoe for that purpose
at Oxford in the middle of July to which he would invite a number
of Colonial Governors and prominent persons wilb knowledge of
colonial problems from the academic world, journal ism. banking and
business .
Of the remainni g oolonial territoriC$a few could become
independen~ but a substantial degree of dependonoe on the United
Kingdom seemed inevitable for the remainder in view of their small
size. The problem was lo devise a type of relationship between these
temtories ,and ourselves which accorded with their needs and which
would be interna tionally acceptab le. At present no final status other
·than independence.o r "frf!e .association. . was recognised by the
United Nations exoept integratio n, which would not be
either acceptable or appropriate. The need was to work out a
relationship for .those territories which co uld not sustain independenoe
wliich would ensure that their defence, finances and internal security
were in safe bands . while their peoples enjoyed at least the same
freedom arid dignit.y as the Channel Islanders and had no awareness
of ~ 10nial.stat,us. There was no one answer. whichw as appropriaet to
tlieir . widely varying circumstances, but we should formulate a general
policy . botli to . give cobereoc-. and pace to our efrorzs and to wJn
.SECRET
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Annex 207
u
~$ 08Scr. s .w., .
:1nd J,,_. l9'S .
-.ECR£T
Annex 208
Note from J. O. Wright to J. W. Stacpoole of the Colonial Office (21 Sept. 1965)
Annex 208
Annex 209
U.K. Defence and Oversea Policy Committee, Minutes of a Meeting held at 10 Downing Street,
S.W.1, on Thursday, 23rd September, 1965, at 4 p.m., OPD (65) 41st Meeting (23 Sept. 1965)
Annex 209
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TOP SECRET
TlilS ooctJM E/,T IS lli£ rROPERTY 01'
HER BRITANNIC M;.JE.ST\ "S COVE.RNMENT
lbe cin:ulatioo of this po.pa has been saiedy limited. It is issued
for the personal use of .. .... .... C., .L .. ....... ... .... ...... .. .... ..... : ... .... .
OPD (65) 41st Mcetin:
Copy No.
CABINET
Ddence IIDd 0.- Polley Committee •..
MIN UTES of a M ,etin g Mid ar HJ Dowrung Stretr, S.W ./, on•
· Thursday, 23rd Stpte mbcr, /965. at 4 p.m.
Prcs:at:
Tb& lligbtH011. lJ,aQIJ> W~ 11 ,. Prime Miaiwr
Tic R.ipt Boo.. Ota::Gt e.o..-""H. M ,.
F'Ult s~ ot State aad St::rtl.aJ)'
of Sta"-for EcoaOClUr: A4a.in
1llc: R.ipl HOil. 'Dnas Rlil.n', NP,
Scctetuy of State toe Dotcnoe
lbc Jt.igbt Roa. MJcK,.,a. ~ •AIT, NI',
S«fflL7 ol Slau, lor Fomp AJ!.ms
Tho R.igbt Hoe. AantUI. Bon'0MLET.
NP, S~W)' of Sllt e for Commoowullb
Rclltioos
The Rlp< Hoo.,_,.,_.,-•
M ,, S&erew')' oC St»tc. (or the Coloaics
The JU;bt Hoa. nu E.u:1. OP
l..ot«JPOaD. Lord Privy Sul
Mt.o.,:ao.~ 11,.Mimw:tot
$me for ForeiSD Affairs,
Mr, ALI U T E. OUM. M P, Parliamcl'l ..
Tbc Rig;bt Hoa. 08011.GB W100, M , .
Pl)'ff)A$tct Ocnc:ral
Mr. Ni,.u. M.Ac:l:>a.Mot. QC. ,. ,.
Fizin:ial Sccrdary. Treasury
Flcld-Mmbal Sir RIQWID Hou. Cbid
of d,ollwoo,St,4 WJI' s.cr.wy. Mwstty d 0-..
DoveJopc>,.t
Adm.in.l Sir DAVlD LOCI, Cble£ ot Oenoral SlC ,J.u.tl:s C..scu. Cbiot cl
Na.al Stall ud TI?Sl Sea L«d .. -
Ali Qld Mmbal Sir OUlui
&.wqanrr. Chic£ ot Air Saff
$ccre1ariat :
Sir -.. '!'ma>
Mr , P. ROODtS
Mr. D.S.l..wa'r
Air v .... Manml J. H. LAnUT
25
Annex 209
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N•. s..b/«t
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TOP SECRET ::· ",
Annex 209
··-··- ··-...-. --·
toi>sttrurr ;
FofCCSa nd it .sboutdb· e tnade cl~ to him that be must ask for
reinforcements if lie thought' these were necessary to enab le him
to deal with tbe situation. J.n making thi$ decision• public it woald
be n=sary to emphasise that the United , Kingdom Government
inaintained its intention of bringingS outh Arabia to independence
by 1968 and evcryLhing possible Jbould be done to mitigate tbe
political repercussions iii the United Nations and elsewhere.
The Committee-
(! I Agreed tha t an Order in Council should be submitted to
Her )'.{ajesry . in Council for approval which would
sUSJ>".Ddth e Operative part of the Aden Constitution
and enable the High Commissioner to exercise direct
rule.
(2) Invited the Secretary of Sutt~ for the Colonies to inform
the High Commissioner for Soutb •Arabia in the sense
or Conclusion (I) and to be guided the reafter by the
general sense of the ComIDittcc'd-si scussion.
(3) Invited the Secre tary of Staie for Defence to consult the
Commander-in-Chief, Middle East , on the desirability
of evacuatings ervice- wivesa nd familiesa nd the possible
need to reinforce the garrison iD the sense indicated in
discussion.
(4) Took note that the Prime Minister, in consultation with the
Foreign Secretary, the Commonwealth Secretary and the
Colonial Secretary, would consider bow best to mitigate
ib~ political repercussions of the suspensio n of the Aden
Constitution.
2, Mauritius and Defence_F acilities in the Indian Ocean
(Previous Reference: OPD (65) 39th Meeting, Minute 21
The Colonial Secretary said° that in the Ma~ritius Constitutional
Conferen,;,e .some progress bad been made on safeguards .for
minorities but there v.1ts Do prospect of agreement oa the ultimate
sta tus of the islnnd or on the new electoral system. B:e proposed
to info,m the Conference that the United r<.ingdom. Govenunenr'
cOuid not agr~e to communal rolls ; that Mauritius shoulQ become
independe11;t on ·i,. date be agreed between !lie United Kingdom
yovernment. nnd Mauritius after Uie. eleetion of a newle gislature
and a vote by that body on the issue; · and that a new electoral
system · would be prep ared by an electoral commission. I! the
,parties in· favour · of independence won lhe election, progr_essto
, independence .would ,proceed on this basis; if the panies opposed
.. : 11>in d~Jid>.iice gained· a majority tlrere wouid have to be further
· ·~roilsultation with the ·unitei:I Kingdom Government . since the
' ;.Jegislature .w-0nld not then pass the requislte motion on a date for
. :in_a~<ience ,. . . · · . · ·
. .= ?,·~.,A-.i:,:;·,~ the Indiri "Ocean, lsland r the ParMtaiu ricien had
., :·. ,;; !filomied liini ·that ~ini:•teh ey weroepp osed 'io independence they
;£0;.~i}L f h, :::: ,. .
Annex 209
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6 TO!' .s&:RET
could no< agree to the detachment ol the WaD<I<. He had however
put to the loaders . of the otller parties an d to the principal
incu,pecdent repnosentati•e a s<>lution on the followina lines.
Mauritius would receive £800,000 from Colonial DeveJoemem aod
Wc:lfare FDDds for throe yean and would have acoess to Exchequer
loan fuoru which might be ot the order of £1 millioo a year. (Ibese
aid mo:"ores bad alrc•dy beeo agreed as part or the future aid
proa,ammeJ There woold be oompematiOD of £3 millioo wbieb
might be spread o,•er a number of years: we would be prepan,d
to cooclude a defence •=meot coveri.01 external auression ond
to consult with the Mauritius Go-UDIDCDt about possible Unllod
Kingdom help ior iniernal seturit)': if the need for the islands by
the Uoited Kin,,odom aod United States disappeared we would be
prepared to band them bac~ to Mauritius : we would use oor good
offices about the employment of Mauritian Jabour on 8IIY
construction worl: in the islands aod would also 1ISC our good ofliccs
with the United States Government about a.m,.ngcments desired by
the MaoritiaD, o= wheat 8lld "'Z"'· The indcpende,,t
representative bad said that be considorcd the compensation afieted
too small bot the repn:sentativu or the political parties bad agreed
to the proposal in prillciple. ·
The Prime Minister said that thi$ seemed a very satisfadOry
arrangemcnL lt wonJd howev-er be nccessacy to make it clear that
a decision about the =<I to rctaiD the islands most rest cotiroly
with the United States an d Unite d Kingdom Governments aod that
it would not be open 10 the Government of Mauritius to raise tile
matter, or press for the rctum or the islands, oo its own initiative.
He bad seen the Prime Minister or Mauritius that morniDg-and had
undcrlakeo that we would also me oor good oftioet with the United
States Government about the supply of wheat under PI.480.
The Committee-
Took note with approval or the m.temeou by the Co!an;.i
Sectetary and the Prin>o Minister.
3. Sinppore
(Previous Rcfere,:,co: OPD (65) 39th Meeting, Minute 3)
Tbo Committee considered a memorandum by the
Comm<mwealth Secretary covering a n,port by officials oo the
rcpercussloos oo British policy in South-East Alia or the scpaia~oo
of Singapore from Mala)'Sia. i
TM Ccmmonwea/111 Secretary. said that in the quadripartite
talb with A-wtralia, New aa!and and the United States, our Allies
bad taken a d.ilrerent view f rom ooraclves about the way io . wbicb
the siwatioo in Soutb-Eut Asia Jni&ht develop in t),o lonier =·tenn
and the effect on our security cl lcnUR in Singa~. l'bey had
shown themselves to be finuly opposed to .any idea of volnutasy
removal of our miliwy prer.oce. from Singapore either iq the:.nca.
faturc or even after the end o{ the xicxt 6ve yeai's. .'.Ibey .wcie-a1so. . . .. ·•,'
. TOP SECRET
Annex 210
Telegram from T. Smith to J. Rennie, Governor of Mauritius, No. 234 (1 Oct. 1965)
Annex 210
Annex 210
Annex 211
Letter from J. Rennie, Governor of Mauritius, to A. Greenwood, U.K. Secretary of State for the
Colonies, CO 1036/1253 (15 Nov. 1965)
Annex 211
R. S. 43/11 PAC:if lC / LEG.A:.
19i,C'..'!t.;.:,;;
REGISTl~Y
SECRET PERSONAL
As you know, the Covernment of Mauritius
.; .., confirmed its agr0ement lO the detachmen t of the Chagos
\ Archipelago on the conditions enumerated in your despatch
t •.i,'. • ,t.:=--No . 423 of 6th October on the un derstand ing th at t he ir int er •
.,.. pre ta tion of certain poinls was correct. The Parti Mauricien
'\ _, . \ ·:\Ministers were un•ble to accept this majority decision and
l?(:l..t.. c,'!. ~-....., '• resigned on the grounds that compensation to Mauritius and
assurances given were ina de quate.
The questions of interpretation were:
(a) whether the statement that the British Government 11had
taken carefu l note of poin t s {vii) and (viii )11 meant that the
British Government agreed to them; (b) whether the undertaking
t o return sovereignty ir th e Chagos Archipela e-o were no lo nger
required for defence purposes implied that thoro could be no
question of transfer or sa l e to a third party nor of any financial
obligation by ?tl.aiuritiua aa a condition of return; (c) the meaning
of the expr ·ess!ott "o n or noar" 1n t elation to the discovery of
oil or other minera l s.
I told Ministers it seemed cle ar t o me that the
answer to (a) and {b) must be in the affirmative and Lhat as
regards (c) the e·xpreaeion could only mean ''within t he area in
which Mauritius would be able to obtain benefit but for the change
of aoveroignty". I said 1 however, that in conveying the Council I s
decision to you I should seek confirmation. It had not occurred
to me that there could be any doubt o.bo\ll (a) and {b)# and I
was therefore disconcerted when no categorical assurance was
·given In the <eply (teleg r am No. 298). I hope all three point•
wil l be cleared up to the satisfaction of Ministers after the further
consideration now being given to them in th e Colonial Offic e . lt
would be very unfortunate if Ministers were given the Impre ssion
of equivocation.
As regards the res ign ation of the PMSD Ministers,
they all said they were agreeable in principle to detachment tor
defence purpos~s but found the terms unsatisfactory . In his
lett er of resignation Duval -eent so far as to say: " I do not
believe that this very poor country should be made to align itself
in t he cold war unless it rec~iv0d considerable compensation 1
\ and
he stated as his conditions to agreemen t {1) tha t Britain and America
should grant spec ial emigration facilities~ and (ii) that Britain and
America · should buy the surp lus sugar of Mauritius at a remunerative
price. The PMSO have now begun a series of public meetings at
whlc.h th& main to pic is 11the base", and th e ceremony at the War
Memorial on .Rememb r ance Sunday, yeste rday, was exploited
politically by placards and pro - French demonat r ations.
1'here is li t tle doubt that the PMSD Ministers
have taken advantage of what they consider a favourable opportunity
to withdraw fro m the Governmen t. It i s true to soy also that the
public expectation had bean pitched much too high. Nevertheless.
The Right Honourable Anthony Greenwood, M. P.,
Secretary of State for the Colonies.
COLONIAL OFFICE.
the/
SECRET AND PERSONAL
P1taH note that this copy is suppUedi ut>;Ktt o the NatiONlA.rch.lves' terms • nd concfltlonsa nd Wt your
use of It may be subject lo copyright nu trKtions. Ful'thet inlom1at ion i$ e:iven in the 'Te<ms and
Conditions of su of the Natlon-1 Archivu' teaflea
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Annex 211
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SECRET AND PERSONAL
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the public and. I should say, all Ministers think the compensation
inadequate. In particu h1.r, they are gravely disappo inted that
no thi ng could be done about sugar, they do not believe any rea l
effo r t was made, and those pr esent at the meetings in Lon don
resented very much being to ld it was not in t he interest of the
Com monw ealth that spec ial mcae-u.res shoul d be taken for
Mauritius. 'rhey feel (as I do) that Mauritius has been poorly
treate d all along in this matter of the - American alloca t ion, and
while the arrangementa may have worked to the advantage of the
Commonwealth in 1962. t hey wor ked very much to the di sadvan t age
of Mauritius, which got nothing. I am persona.Uy far from convinced
t he O. S. Government cannot put pressure · on Congress in thi.s
matter when it wants to: the Counsellor in the American Embat:Jey
in Tananarive 1'ecently to ld me how they had the Madagascar quota
restored because or the American t r acking station there. No
othe r Commonwealth country - indeed , I suppose , no other country -
1s so de pen den t on sugar as Mauri t ius: why should Mauritius
refrain from press i ng a fortuitous adv3.nbge for the s~ke. say ,
of the Quee nsland sugar plante r s?
I must add also that there is a strong belief iu
certain quarters, even among thos e wel l-disposed to Britain,
that the re has b een a deal between the British Government and
the Mauritius Labou r Party in which inde pendence has been grante d
for the sake of Di ego Garcia. The deal is said to have been arranged
when th e Premier met the P'rime Ministe r . So far this line of
attack haa not been pressed and the PMSD have concen tr ate d on
th e inadequacy of t he compensation but l expect more to be heard
of it. as the ir campaign intensifies. (l have, of course, done wh at
I can in private convorsation to refute tho accusation).
The parties remaining in the Gove rnmen t have not
wavered in t heir 13upport of t he Britiah Government 's proposal$
but they will be under fire from their left, as woll as from the PMSD,
I and outs ide t\•faur itius ae wel l ae inside . I hope t her~ fore that the
varioui; a&suranc@s given will be taken i,er iously and, especial ly ,
th at a r eal effor t will be made to give more favou r able t rea tme nt
to Mauritius in regard to sugar whenever opportunity offers through
redis t ribu tio n or quotas . I hope also that Mauritius will have gene,rous
treatment when tbo time comes for a II golden handsha. ko" and not
be given the minimum s imply because her Ministers behavo
reasonably and refraln from mercilessly exploiting their nuisance
value. In th is connection I rega.rd it ae most impo r tant that
Mauritius should not, in the f inal account, rnoct any par t of the
cost of componsati.ng Bri ti sh civil se r vants. I apprec iate that
formally half may have to be bor ne by Maur itius but i f so, the amount
shou ld clearly be offaet by some other grant. 1f t his i8 not done ,
t he issue will undoubtedly be inOamed and do di$proportionate
damage to r elations bet ween Mauritiu s and Britain.
r i.. i.-,'\., i; c.;;'"'"( ,.. )>v,.·." "- 1.-•
I f """'1 t.. I. fi«..- ,j It< ~< ., w<.M.
f t<•< b.r- (tr., 0.-L 4u...... L 1A.,. '4.'-</
t:_.;,.1. < -w~ '- t,..:r./.n .,,. t1~ •\ €,,·_ ,.,, ,
! l<,...,tL L,..., w,1<,L . (fif..'.!J ,...,.
(J . S. RENNIE)
Plus e oott, that lhls copy i:s s\ipp(i• d subject t o th e Nitio nal A~dllves' t-'"m~ a~d co.ndltl<>?" t-nd thnt yout
we of tt m,y be iub]«l b:> copyrlgln ~s\tkt ions.. furthtr 1infotmatk>n 15 g1v,n ,n the Yerms and
condit ions o f ~u ly o f th • Neti0 1,el Arc:htv.s' leaftetJ
Annex 211
Annex 212
Mauritius Legislative Assembly, Written Answers to Questions, Diego Garcia – Sale or Hire,
No. A/33 (14 Dec. 1965)
Annex 212
1846 14 DECEMBER 1965 1847
WRITTEN ANSWERS TO QUESTIONS
DIEGO GARCIA - SALE OR HIRE
(No. A/33) Mr. J. R. ltey (Moka)
asked the Premier and Minister of
Finance whether he will make a
statement on the question of the sale
or hire of the Island of Diego Garcia
to either the United Kingdom Government
or to the Government of the
United States of America or to both
jointly and state what is the price
offered by the would-be purchasers and
what is the minimum price insisted
upon by the Government of Mauritius?
Mr. Forget on behalf of the Premier
and Minister of Finance :-
I would refer the Hti"riourable -Member
to the following communique issued
from the Chief Secretary's Office on
10th November on the subject of the
Chagos Archipelago, a copy of which is
being circ11lated. In discussions of this
kind which affect British arrangements
for the di>fence of the region in which
Mauritius is situated, there could, in
the Government's view, be no question
of insisting on a minimum amount of
compensation. The question of the sale
or hire of the Chagos Archipelago has
not arisen as they were detached from
Mauritius by Order in Council uuder
powern possessed by the British
Government.
(Communique)
EMBARGOED FOR RELEASE UNTIL
2000 HOURS LOCAL TIME WEDNESDAY
10th NOVEMBER
Defence facilities in the Indian Ocean
In reply to a Parliamentary Question
the Secretary of State 1rni.de the
following statement in the House of
Commons on Wednesday November
lOth:-
" ·w ith the agreement of the Governments
of Mauritius and the
Seychelles new arrangements
for the administration of certain
islands were introduced by
an Order in Council made on
the 8th November. The islands
are the Chagos Archipelago,
some 1,200 miles north-east of
Mauritius, and Aldabra, Farquhar
and Desroches in the
western fodian Ocean. Their
popul11,tion s ai:e approximately
1,000, 100, 172 and 112 respectively.
The Chagos Archipelago
was formerly administered
by the Government of Mauritius
and the other three islands
by that of the Seychelles. The
- islands -will be called the British
Indian Ocean Territory
and will be administered by a
Commissioner. It is intended
that the islands will be available
for the construction of
defence facilities by the British
and U.S. Governments, but no
firm plans have yet been made
by either Government. Compensation
will be paid as appropriate."
The cost of co1upensating the Company
which exploits the plantations
and the cost of resettling elsewhere
those inhabitants who can no longer
remain there will be the responsibility
of the British Government. In addition,
the British Government has undertaken
in recognition of the detacl!-
men t of the Ohagos Archipelago from
Mauritius, to provide additional grants
amounting to £ 3 m. for expenditure
on development projects in Mauritins
to be agreed between the British and
the Mauritius Governments. These
grants will be over and above the allocation
earmarked for Mauritius in the
next period of C. D. & W. assistance.
The population of the Ohagos Archipelago
consists, apart from civil servants
and estate managers, of a labour
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Annex 212
1848 Written Answers · 14 DECEMBER 1965 Written Answers 1849
force, together with their dependants,
which is drawn from Mauritius and
Seychelles and emp loyed on the copra
plantations . The total number of Mauritians
in the Chagos Archipelago is
638, of whom 176 are adult men, em -
ployed on the plantations.
EX-SERVICEMEN - WORLD
WARS I AND II
(A/37) Mr. G. Marchand (Nornins.ted
Member) asked the Chief Secretary
how many Mauritians served in the
Armed Forces during World War I
and World War II.
Mr. Vickers :
! I regret there are no official records
__. ___ availabl~ showing _the tQta,I number of .
Mauritians who served in the Armed
Forces during World War I and World
War II.
ECONOMIC PLANNING
UNIT - REPORT
(A/38) Mr. J. N. Roy (Plaine Magnien)
asked the Minister of State
(Development) whether the Report of
the Economic Planning Unit has been
released for publication.
Mr. A. Jugoauth:
No, Sir. The report submitted by
the Economic Planning Unit is not
a plan but an interim report dealing
with the objectives of economic policy
and planning and the conditions to be
satisfied for the development of the
econornv on a scale sufficient for the
country;s needs. The report is under
consideration by Ministers and is not
intended for publication although a
version of it has appeared in the Press.
CARREAU ACCACIA -
SOCIAL WELFARE CENTRE
(A/40) Mr. J. N. Roy (Plaine Magnien)
asked the Minister of Social
Security whether he will take steps to
open a Social Welfare Centre at Carreau
Accacia.
If so, when?
If not, why not?
Dr. B. Ghurburrun :
The current programme for the
construction of Social Welfare Centres
is nearing completion and the Sugar
Industry Labour Welfare Fund Committee
will shortly be considering the
possibility of drawing up a further programme,
bearing in mind the other
activities of the Committee and availability
of funds.
Requests for the setting up of Social
Welfare Centres h ave been received
from the inhabitants of many other
localities and priorities will have to be
decided. Carreau Accacia will be in
the queue together with others.
Annex 213
Report from J. Rennie, Governor of Mauritius, to H. Bowden, Secretary of State for
Commonwealth Affairs (23 Jan. 1967)
Annex 213
Annex 213
Annex 213
Annex 213
Annex 213
Annex 213
Annex 213
Annex 213
Annex 213
Annex 213
Annex 214
Note from A. J. Fairclough to T. Smith (7 Feb. 1967)
Annex 214
Annex 215
Note from T. Smith to Sir Arthur Galsworthy (14 Feb. 1967)
Annex 215
Annex 216
Note from A. J. Fairclough to T. Smith, attaching a note on Considerations arising from and
since the 1965 Constitutional Conference related to the question of Independence (14 Feb. 1967)
Annex 216
Annex 216
Annex 216
Annex 216
Annex 216
Annex 216
Annex 216
Annex 217
Note from E. M. Rose to Sir Burke Trend (20 Oct. 1967)
Annex 217
Annex 218
Letter from P. A. Carter to E. G. Le Tocq of the U.K. Foreign and Commonwealth Office East
African Department, FCO 83/18 (5 Feb. 1971)
Annex 218
---- - -~-. ,,_ .. , .. , ----
. -·· -......
I G Lo TOoq Bsq
But A1'r1can I>epar-b:lent
l'oN! .1gn & CoaamnreaJ. th Ottiee
l' 0 BQX .586
5 hb:uari 1971
1. Dil.l z-o~.,,.. or the cmmamru.i th 8e eretar1 at .,.,, h ere
laat wouend to dis=oa 'l'ith the l!aur1t1an authorities
&?'1"8.llgemanta t or a pou1blo eOllferenoe ot Coman wea.l th
IU.niEJters ot Heal. th to be held 1n lo!aurtti us t owards the
end ot th1o yea.r .
2 . Pet ers told ce tbat 1n the couree of t..li.ese tall:s he
had oeeuion to have a chat rtth R Lal.lah , who 1a a La,r
ott ker 1n the ~ur1t1ua Gove=e:n t. Lall.eh, 1'hOD I have I'{. not met, gave l'eters to understand that h1B Governmen t
had it 1n mind to revo ke t h e A.Srecmont which had boe:i
re a ched 1n the pre-Izldopendeneo er a 1n regard t o BIOT. I
got the illl;pNHion rrom Bill Pete ra tha t Lal.1.ah t'clt
pretty atr<mgl.y on the subj e;t.
} . Peters 414 n ot enl.o.rge er., th1a conversatio n . Doubt -
l ess , when ha arriVCll home t'l'om Eaat .A:triea, he will
mention thie to you, I imagine th at the l!aur1 t1us Government,
it they do a dopt this tactic, rlll use it ..,, a plo y
to extrect the rull.est adn.n".ag e tro m th e t'or.hoolllillg
negot1at1ona. I th 1.nk th ere 1s n soneral. t'eelin g here
that they ..ado a poor bcr pin, collp&Nd 'lf11;h the Bey -
challes Government, and 01' couree a t'o.,.er Colanial.
Govel'!llllent can al.n;vc evoke a a;,mpathotie reepon eo 1'rem
other eount r ien 1n regial'd. to agroc:mont a en t ered into prior
to tndopendenoe, part1cul.arl.y it they invoke the old legal.
doctrine or •reb'"-S sic 1tant1bus •.
t, ~•l'• ',I': '
Copy to:
r-• .. _. -
/ ~1~i 1
. · -•, -... !
P.A. Carter
Jlial B J Bme17
,,/ Pac11'1<> & Indian ocean Dopat'tllen t
•" :Poreign & eomaamreal.th Ot't'ico
CODIDDITI.lL
,., --.., ... - --· ••"-•
Annex 219
Note from C. C. D. Haswell of the U.K. Foreign and Commonwealth Office East African
Department to Mr Wallace and Mr Robson (30 June 1980)
Annex 219
OOSF I Of.NT I A I,
Mr Wa 1, },
Mr Ro ·
C. C K, ~tt
DIEGO GARCIA: TU£ MAURlTIAS CLAW
1 . On 26 and 27 June 1980 mm and Lahour Pnrty Ministers nnd
Ba.ckbencbers ln Mauritius made an attempt to inclu<lc the
Chagos Archipf'llago in legislation doclarlnr. Tromclln (Clnll:l('d
from France) as ldRuritius Tf'lrritorv. The att,..t:mt was
,:;uccessfully resisted but onl~ · by a speak••r's rulinr. nftC'r
stout action by Ramgoolam and Sir Harold Walter. Afterwnrtls
RamJ!:oola.m made a surprisinr.ly robust stat,,rnont about the
issue (a copy of the t<!xt is attached.)
2 . This incidPnt marks the latPSt thrust tn the steadlly-Krowinv,
momentum behind thP movPfflf"nt to secure the return of the Chnr.os
Archipelago to Mauritiu.<a. Ramgoolam is doing a sterling Job
in upholding tlw British interest !n ChaF.os; but he is
getting on, and his a.pparent support for us over this issue
will furthPr wea.kt>n his alrPady somewhat shaky political
credibility in Mauritius. In the run-up to next vear's
election, this can only be a bad thinv, ror his party.
3. WP ar,e thus fact>d with two interlocked, und,.sirable
developments in Mauritius: thP continuing escalation or
the campaign for the return of Chagos, and the growing likelihood
that Ramgoolam's governMent will soon be replaced by one
considPrably lPss s~•mpathetic towards British interests.
Ou r- objec ti \'t'S th<>refore are to t rr to put the Chago,=; Issue
in Mauritius to rPst, and to try to bolster Rara's oolitical
standing.
4 . We cannot silence the Chagos issue by evoking the 11.greo1:1ont
with Mauritian Ministers in 1965 that it would not be open
to them to raise the lssu£ of thP return of the Archipelago:
this would weaken Ramgoolam•s standing by arou,,tng criticism
that be gave away too much at the 1965 negotiations, and
would anywav not he binding on lut ure ~lauri t ian gow•rnments.
It is for the same rPason that in nnv future action
we take, we cannot have recourse to the 1965 papers .
5. Nor can WP qu,ill the issue with offers of ai<l, e"en i r
we had aid to of fer: thb; would amount to a tacit admission
that we are in thP wrong.
6 . We should, howPver, wish co gi\'e the apnearanco that
Ramgoolam had extracti•d concessions from us O\'er th•~ Cho.gas
issu<•, whilst making i1 clear that sovereigntr ov,•r Chagos
remains firmly in British hands. If the concossions are
~Pnu1n<•ly useful to the Mauritians, Ra.mgoolam's prestige
wi J l bt> i ncrea,:wd and we wi 11 go :1 long wav to achieving our
(\VO objectiVPti.
7. I would suggest lhA following as a possibl~ coursq o! action:
CONFIDENTIAL /Part A
Annex 219
Part A
CONFIDENTA! L
- 2 -
By way of 'clarifying the position', we should come to on
agreement with Ramgoolam that:
(i) As long as the Chagos Archipelago is required for defence
purposes, it will remain in British ownership;
(ii) once the Chagos Archipelago is no longer required for defence
purposes, it will be ceded to llauritius, leaving the former
islanders free to return if they so wish;
(iii)The Archipelago will continue to be re~uired for defence
purposes as long as any littoral or hinterland state of
the Indian Ocean continues to be threatened by Soviet
aggression (or other definition to be agreed with Defence
Department)
This approach would help to lay the blame for the 'non-return'
of Chagos at least equally on Russian actions in the Indian Ocean
area.
The concessions: We should suggest to Ramgoolam that:
(i)
(ii)
(iii)
We should declare a 200-mile fishi~ limit around the
Chagos islands;
Apart from the UK, only Mauritius will have fishing rights
within the limit
Mauritian fishing vessels in the Cha11:os area will have
recourse to help from Diego Garcia in times of
distress./ We would thus not only be making extremely
good fish stocks available .for the Mauritians virtually
to monopolise, but assisting them to do so . We would
also provide an excuse for keeping soviet 'fishing'
vessels at least 200 miles from Diego Garcia.
8. These ideas obviously require 11:reater consideration, and
we would, probably, need to consult the Americans. But I should
be grateful for your views on this approach to the problem.
C C D Haswell
East African Departm~nt
30 June 1980
Annex 220
United Kingdom, Diego Garcia: Translation of Ramgoolam’s remarks at a press conference
(given in Creole) on 26 July 1980 (26 July 1980)
Annex 220
DIEGO G. ..R. ClA
Translation of Ramgool!tm's remarks at press conference igiven in
creole) on 26 July 1980
..._fter the representatives of the other parties who did not want
independence had walked out of tl':e 1965 constitutional conference ,
I as head of Government had to take a decision . I had to choose
between independence and Diego Garcia . What would you have done?
I opted for independ en ce and freedom and I take full responsibility
for that . Mauritius acquired status and dignity . At that time
people didn't even Know what Diego was or what it looked like .
Today everybody tries to be wise after the event . I brought the
country to independence without bloodshed, in peace, in order and
discipline . ,uid you are not satisfied? !,lust we cut our throats
before you are satisfied? Would you rather live in another country
like (obscure reference to Libya and Seychelles)? I realised at
that time that the English were trying to outsllktrt me. I vas av1are
of it but I '//as not sure that I could have resisted t .em. ,,hen this
happened, I pretended I could net understand and I said I illUSt keep
certain righte such as fishing , minerals and landing , etc . '!'he
English all laughed . Some of tr.em laughed in my face . I p!·eter.ded
I could not understand anything because I knew where I was going.
(i e the British thought they were outwitting me, but I aaw through
their tricKs and in fact got the better of them'.) . The English had
said Diego Garcia would only be used for a communication station .
Now t11ere was a base there . I was still in the UK a snort while
after the negotiations when it 11as declared in the House 01' Commons
that Diego Garcia was going to be given to the .-,.merica,1s. They
never told us . But at that time they could detach Diego varcia if
they wished, us they had the Seychelles, without Mauritius's consent .
It is no use blaming me. We gained something and we lost sor.iething.
That's the truth of it . Everything done was done in good faith .
Some talk o1' treason . What treason? Was it treason to win the war
of independence? •ro achieve a free and sovereign country?
Only 1 question
Q. '.'lfll.,_t is going to happen now after the OAU resolution?
.-1.. What do you want me to do, send a fleet and go to war?
Annex 221
Letter from S. H. Innes of the U.K. Foreign and Commonwealth Office East African Department
to J. J. Bevan of the U.K. Mission to the U.N. in New York (7 Oct. 1980)
Annex 221
' ((U; 1
~1 :s-f;..8 0 :z...o3
Fore :g n and Commonw e.1,th Off ice
lonaon SW1A 2AH
Niss J J Bevan
IJKMIS
Telephone 01 •
New York Our reference
Date 7 October 1980
ADDRESS BY PRil!E nINISTER OF HAURITIUS
1. The Prime Minister of Mauritius, Sir Seewoosap.:ur Ramgoolam,
is scheduled to address the UNGA on the 9 October.
2. As there is a possibility that RamROOlam may make some
comments with which we would take issue, I would be very
grateful if you could send me a copy of bis speech as soon as
conveniently possible after the even t. In this way we would be
in a better position to collar him as he transits London on his
return to Mauri tius.
S H Innes
East African Departm ent
•
@
Annex 222
U.K. House of Lords, Debate, Diego Garcia: Future, Vol. 415, cc389-90 (3 Dec. 1980)
Annex 222
339 Diego Garcia: '.]t.Bo1.-
0
~ [ 3 DECEMBER 1980] Future 39 (,J /C7-
H ouse of Lords
Wednesday, Jrd December, 1980
The House met a: a quarter-past two of the clock:
The LORO CHANCELt.OR on the Woolsack.
Prayers-Read by the Lord Bishop of Guildford.
Introduc tion of the Lord Bishop of Lichfield
:md the Lord Bishop of Liverpool
Kenneth J ohn Fraser; Lord Bishop or Lichfield- Was
(in the usual manner) introduced between the Lord
Bisho p of Worcester aod the Lord Bishop of Carlisle.
David Stuart, Lord Bishop or Liverpoo l- Was (in the
usual manner) introduced between the Lord Bishop of
Derby and the Lord Bishop of Newcastle.
Message from The Queen
2.34 p.m .
Lord Maclean: My Lord s, l have the honour to
present to you r Lord ships a Message from Her Majesty
the Queen signed by her own hand. The Message is as
follows:
•• I have received with great satisfaction the loyal
and dutifu l expr ession~ oy ur thank s for the Speech
with which I o~ed t e resent Session of Parliat\~
, t- 'I ~ 1-,.' OATI -~ j_~
~-- l<;i9 '.\v . COL. .3.j :}~
cp.Ol)f~go Garcia: Fu~~ - ---~ ~
2.3Sp.m.
Lord Brockway: My Lords, I beg Jca.,e to ask the
Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty' s Government wha t conclusion
s have been reached in the discussion wi:h
Mauritius regarding th e future of Diego Garcia.
Lord T rd:;arne: My Lords, recent discussions with
Mauritian Ministers covered political , economic, and
cultural ma uers, including the subject of Diego Garcia.
The G owrnmen t of Mauril ius know that Diego Garcia
will be ceded to M auri tiu s when it is no longer needed
for defence puI]>OSes. This was confirmed by my right
honourable friend the Prime Minist er on the I Ith Ju ly
in answer to a Qu es1ion in another pine.:.
Lord Uroekwny: My Lord s, while app recinting that
An, wer, m:iy I ask this? Is not Diego Ga .rcia historically
associa1ed with Mauri1ius and was it not
transferred before Mauritiu s ob tained its independence
so thal the na1ion cou ld n ot tak e a decisive view?
Would it not be possible for Her Majes!y's G overnment
to take 1he initia1ive to secure the neutralisation of the
Indian Ocean so tha t the island would no longer be
ncces\ ary for dcrens ive purposes?
11 L? Ol
L ord Trefgarne: My Lords, the second part of th
noble Lord's supp lementary question is. I would
suggest, another question. Con sideration of tbe
proposal to make the Indian Ocean a zone of peace, for
example, which is one of those proposa ls currently
being canvassed, is something we shall be ready to
undertake in tbc right forum - but in tbe context of
85,000 Russian troops encamped in Afghanistan, j ~st l;\
few hundred miles to the north. As to tbe sovereignty
of Diego Garcia, the position is quite clear. The
United Kingdom has full sovereignty over that island.
Lord Goronwy-Robcrts: My Lords, while agreeing
with my noble friend as to the desirability of zooal
neutralisation in the Indian Ocean, may I put this
specific question about Diego Garcia to the noble Lord?
Have the Gov ernment of Mauritiu s responded favourably
to the suggestion by the United Kingdom that
when Diego Garcia is no longe r needed for technical
purposes it will be banded over to them?
Lord T refgarn c: My Lords , the Mauritian Government
are certain ly aware of chat pos ition <.
conten1 with it.
Lo rd Brockway : My Lords, the Minister said that th e
question of the neutralisation of the Indian Ocean is
separate, but is it not the case th at the reaso n for its
retenti on separately from Maurit ius is its use as an
Ameri can base? Th e Minister says th at the Briti sh
would consider the neutral isa tion . If this Government
really believe in world disarmament , as they say they d o,
can they not take the initiative in this great step?
Lord Tr efg•m~: My Lords. tbe fact is that the
security situation in that part of the world requ ires th e
availability of Diego Garcia a nd its facilities to ma:intain
our security nod peace. Unilaternlly to proceed along
t he lines that the noble l ord suggests would be m os t
unwise.
EEC Sheepmeat Regime and Trade
2.42 p.m.
Bar oness Elliot of Hor wood: My Lords, I beg leave
to ask the Qu est ion which sta nds in my name on the
Order Paper.
The Question was as follows:
To ask Ker Majesty's Governmen t what h as been
the effect of the intr o ducti on of the European
Com munity'$ sheepmca t regime on trade with other
member states of the Community and with third
countries.
The Minister or S rntc, Minis try of Agriculture
Fisheries and J/oo,I (E:irl Ferr crs): My Lo rds, , h~
Unit ed Kingd om's exports of shee p and shecp meat
have been substantially reduced since the introduction
of the r~gime, mainly because of rhe clawb:ick charge
and we have ma<le strong rep resentatio ns about :his to
t~e Commission. As a result, we have secured exempt,
oo from clawb:ick for our exports to countri es outside
the Co~munity until 31 st Mar ch next year. Exports
to Dclg1um and Germany have fallen since 20th
~~---------- --- - ---------..«:~----
Annex 223
Telegram from Thomson to the U.K. Foreign and Commonwealth Office East African
Department, No. 42 (19 Jan. 1981)
Annex 223
:reh 0
GU 1611
RESTRICTED
c _ t • • -~l , I
FM DaHI 190615Z J411 81
'II) PRIORITY F'tO
•. ~.• H. ., ..• ~ .., - ~-
CL TElE8RAM NUMDEIfIl 42 OF 19 JANUUIY
A>LLOWINGF OR UD1 DIHO Q#JICIA
1. WE HAVE BEEN ASICEDI\ ' Tit£ US l!~UIIY Hflt£ FOIQI 90'1: UCUIIOIIIID
8111EFIN' ON THI ARRANGEMEIITUI Nl>[R WHICII DIEGOG ARCIAW U DETACl4ED
FROM MAURITIUS IIEFOIIE INDEt'ENiDENCE AND ~- IIDICATION OF 11,e• 1
lHINKING ON THE HANDLINGO F THE DIEGO GARCIA ISSUI IN DISCUISION WITif
TlflRD WORLDC OUIITRIESP ARTICULARLYI N THf IIUN UP TO TH£ rof!THCO.._
ING OF F'OREIQN MINISTE11S 0, THf IION-AllllllD COUlffltlU IN
Dtl.H I• G/ - I2 ._. fj_.f
2. WE WOll.D BE IIRATEFUI.F 'Olt IJIGENT AUTMOIIIT'fT O ,ASS TO ~£ 'l°t.t,
EMBASSY IN CONFIDENCE A C~Y OF RAFTtR,•S TELELETTER OF 6 !fOVC•D
19891 ON WHICH WE HAVE AUUDT' DIIAWN OflALL~ IT VOll.D ALSO 1E
Hl!l.PF'Ul.T O HAVE ANY sPECIFIC MATERIALO Ii , u rDANCt WIii~ WOULD
HEU' TO C0"111ATTH E ALLEGATION&! 0"£1'11£1 MADET HAT UCAUIE '!AUIIITIUS
WASS TILL A COLONYW HEND IEGO-GARCIAW AS D£TAClffD TIU AGIIU£"€11T
REACHEDW ITH MAURITIANM INISTEIIS 111ST HAY( IEIN MADEU IU)III DL.lltUI
AIID IS THEIIE~IIE IIOT VALID,
At N11rt::c,
$,<,-2:)
NAD
.])Ge~"' NC D
S /~ 1-.. ~ ..._.._, ,v .S01'(
l'-1R .DOIV~
lvt~ U ~ ia
MR. MOS~/Qt...y
TH 15 , .::L:'::GRAM
Wt..S NO T
ADVANCED
7
I I
Annex 224
Letter from R. C. Masefield, for the U.K. Secretary of State for Home Affairs, to J. F. Doble of
the Information Department, U.K. Foreign and Commonwealth Office (9 Aug. 1982)
Annex 224
Annex 225
U.K. House of Lords, Debate, Diego Garcia: Minority Rights Group Report, Vol. 436,
cc397-413 (11 Nov. 1982)
Search Help
HANSARD 1803–2005 → 1980s → 1982 → November 1982 → 11 November 1982 → Lords Sitting
Diego Garcia: Minority Rights Group Report
HL Deb 11 November 1982 vol 436 cc397-413
6.2 p.m.
Lord Brockway rose to ask Her Majesty's Government what is their response to the report of the Minority Rights
Group on events in Diego Garcia.
The noble Lord said: My Lords, I beg to ask the Unstarred Question standing in my name on the Order Paper. It is
unusual to initiate a debate in this House on the report of an unofficial committee but the Minority Rights Group is
very authoritative. Its sponsors include the noble Lord, Lord Goodman, and Mr. Jo Grimond of the Liberal Party. Its
chairman is Professor Roland Oliver and its council includes Sir Robert Birley. Its director is the respected Ben
Whitaker who gave up a parliamentary career because he was so dedicated to this subject. Its report won the attention
of every circle in this country; the quality papers gave it the first leading article. It cannot be dismissed. I shall treat it
with some of the fullness which it deserves, but I want to make it clear that it is with no pleasure that I refer to
deplorable events. I do so only because I think we must take their warning. I shall conclude with certain proposals
which I believe are relevant to the present time.
It was in 1965 that the British Government offered Mauritius its independence but it did so only on the condition
that Mauritius surrendered the Chagos Archipelago. Diego Garcia is the largest atoll in that archipelago. It is 14
miles by four miles. Compensation of £3 million was offered to the Mauritian Government. This was the period of
decolonisation but, unlike other colonies which were given their political freedom, the people of the entire territory of
Mauritius were not included in that independence. The United Nations General Assembly met on the subject. It
carried Resolution No. 2066XX which invited Britain: “to take no action which would dismember the territory of
Mauritius and violate its territorial integrity".”
There was considerable opposition in Mauritius to the acceptance of independence on those terms. The Mauritian
Government reluctantly accepted.
This was followed by an extraordinary event. The British Government, without any consultation of the people,
incorporated Diego Garcia into a new colony—the period of decolonisation and yet a new colony established—the
British Indian Ocean Territory. It is known as BIOT and I shall be referring to it as such for purposes of brevity. The
object of this strange manoeuvre became clear the following year. Britain signed a defence agreement with the United
States of America leasing to them BIOT for 50 years with the option of a further 20 years. Again, there was no
consultation with the people concerned. The United States wanted BIOT, and particularly Diego Garcia, because it
had been selected by the Pentagon as an ideal place to monitor the Soviet Navy. At that stage it was only to be an area
of communications.
May I just refer to the population of Diego Garcia? They were 1,800 in number; they were coloured people, 60 per
cent. of African origin from the continent itself and from Madagascar and 40 per cent. Indian. There was only one
employer on the island. He had a copra plantation. The other inhabitants were harvesters of coconut and fishermen.
As I have said, they were not consulted in any way when they were, first, transferred from Mauritius and, secondly,
incorporated in the new colony. They were just tossed about at the dictate of Whitehall.
The Pentagon made it clear that they did not want any persons on the island except the American servicemen.
Britain was required to remove the residents, the islanders. African and Indian, yes; but British citizens. The first
action of the British Government to accomplish this was to prevent the return to Diego Garcia of any visitors to
Mauritius. Many went on holiday, for medical treatment and to buy various articles. They found that there were no
ships available for them to return to Diego Garcia. They were left stranded on the quayside. The report indicates that
Annex 225
others in Diego Garcia itself were tricked to leave on ships to Mauritius never to be allowed to return. British citizens
by the action of the British Government became refugees. There was no provision for them. Many of them starved.
The next stop of the British Government to empty the island of its residents was to stop employment. In 1967 BIOT
bought out the sole employers of the copra plantation. It was to close down by 1973. The manager used these words:
“It was not very pleasant telling them they had to go. It was a paradise there. We told them we had orders from BIOT.
I am taling about five generations of the Ilois who were buried there.”
It is also alleged in the report of the minority groupI confess that I find it a little difficult to believe thisthat the
next step was to cut off food supplies to the residents at Diego Garcia. It states that from 1968 onwards no food
supplies were sent to the people. They had their fish which they caught. They had coconuts. They had vegetables
which they grew; but no supplementary foodstuffs, according to the report, were permitted, in order to starve them
out.
The first American servicemen arrived in iego Garcia in . The residents, the Ilois, were told that they did not
have the right to stay. In September the last of the Ilois left. One of those deported said: “We were assembled and
informed that we could no longer stay on the island because the Americans were coming for good. e did not want to
go. We were born there. So were our fathers and forefathers who were buried in that land.”
They were given two wees to leave. BIT transferred them in its own ships. The oreign ffice said then, and it
has repeated quite recently in this House: “All went willingly and no coercion was used.”
I ask you to judge, my Lords, from the facts which I have given. Strangely, at that time this situation was not known
in this country: no publicity: no debate in Parliament. The truth was only recorded in 1975 in an article in the
Washington Post by its investigator, David Ottawa. He told how 1,000 Ilois were forcibly removed and were living in
abect poverty in Mauritius. A wee later the Sunday Times had a three-page exposure. It revealed what had not been
known before; that the United States had given Britain an 11.5 million dollar discount on Polaris submarines to
establish BIT, which enabled iego Garcia to become under military occupation of America. The Sunday Times
said: “The Ilois were the islanders that Britain sold.”
This Ilois arrived in Mauritius with no plans to provide for them. There were no homes for them, no jobs and no
money. They were left in dire poverty for five years without receiving any compensation. The isters of Mother
Theresa, and other charities, gave them a little help. A nun said “They do not have enough food, children are
undernourished, they need medicines and clothing.”
The Comité Fraternelle reported deaths through hunger and suicides, and that a large number of the women and
young girls—some aged 13, 14 and 15—left their husbands and parents to become prostitutes in order to obtain a
living. It was only when Ilois on the last boat from Diego Garcia staged a sit-in that the Government acted. Then some
of them were accommodated. A little assistance was given to families and pensions to of the aged.
I turn to this question of compensation: in 1973 the British Government agreed to pay the utterly inadequate sum of
, to the Mauritian Government for the relief and resettlement of the Ilois. The oreign ffice saidand
repeated many times later—that this, “represented a full and final discharge of Her Maestys Governments
obligations".”
In fact the Ilois did not receive their compensation until 1978. The Mauritian Government itself has a certain
responsibility for delaying its distribution, and in any case the amount was utterly inadequate. Each adult received
7,590 rupees—about £650—and the children received between 356 and 410 rupees. That is not enough to rent, and
certainly not enough to buy, a house or even to buy food and clothing. Any attempt by the more able to start
businesses for themselves became completely impossible.
Agitation at last began in this country as well as in Mauritius. A Methodist named George hampion commenced it,
and I pay my tribute to the Methodist Church for coming out in defence of the Ilois. Even the Mauritian Government
Annex 225
pressed our Government to increase compensation, and in 1979 Britain offered to add £1.25 million to its offer, but
only on the condition that the Ilois abandoned all claim to return to their island home. It was sheer poverty which
compelled them to accept, though there was so much controversy about it. I claim that acceptance compelled by
hunger has no moral authority.
There were continued demonstrations and hunger strikes. These were so disturbing that the Mauritian Prime
Minister ew for tals with Mrs. Thatcher in April . It was then agreed that the two Governments and Ilois
representatives should meet in une. The Ilois ased for compensation of million. Britain only offered an additional
, in technical aid, and again said that this was a full and final agreement. o agreement was reached in
those talks.
Protests continued, and they were so strong that in March Britain offered an additional £4 million and the
Mauritian Government offered land to the Ilois to the value of £1 million. Once more the British offer was "full and
final. The Ilois, despairing, accepted even though the agreement included a clause precluding them from returning to
their island.
That is a summary of the report. Commenting on it, The Times on 10th September said: “It is unacceptably
shameful that this was done in such a mean and dishonest way.”
The British Government deny that the United States has now established a base in Diego Garcia. I do not know the
military definition of a base, but last year Britain gave the nited tates permission to undertae a , million
dollar expansion, accommodating B52 bombers, a mile-long jetty, provision for aircraft carriers and barracks for
4,000 marines. If that is not a military base. I do not know what it is.
There is a development now which is disturbing. The High Commissioner for Mauritius says that the establishment
of a base violates an undertaking given by the Labour Government that the island would be used only as a
communications centre. He did not even rule out an appeal to the World Court. This year an election brought a new
government in Mauritius, demanding that there should be an end of the American base and a return of the archipelago
to Mauritius. The issue, clearly, is not ended.
Briey, I end with my own conclusions relevant today. irst, there is evidence that the confrontation between the
West and the Soviet Union, ostensibly in defence of democracy and freedom, rides roughshod over these values in
order to obtain military advantage, as in Diego Garcia.
econdly, these events continued to the eve of the allands crisis when military action, loss of life and immense
ependiture was accepted to maintain the right of selfdetermination by , white residentseactly the same
number as the African and Indian British citizens deported from iego Garcia. I as would they have been deported
and would there have been this haggling over compensation if they had been white?
Thirdly, all the Governments surrounding the Indian Ocean, except Oman and now Somalia, are demanding that
the ocean be made a zone of peace. That would mean an end of the American base in iego Garcia as well as of the
Russian presence. If the British Government sincerely desires disarmament in the world, cannot it support this
demilitarisation?
ourthlyand this is the last of my conclusionswould not this facilitate the return of iego Garcia to Mauritius,
as the new Government are demanding, and even the return of the islanders to their homeland? My Lords, I beg the
Minister not to retort by saying that it was a Labour Government which began this crime against the islanders of
iego Garcia. Tory Governments since have aggravated it. reedom and ustice are not playthings in party
partisanship. We have all been guilty and we should all seek to right the wrong.
6.30 p.m.
Lord Hatch of Lusby My Lords, I believe that the House is grateful to my noble friend Lord Brockway for raising this
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issue tonight. I think that the House should also be grateful to the minority group for publishing the report on which
this debate is based, and I pay tribute to them for so doing.
This is a most shameful incident in British history. It is shameful to those who were instrumental in the original acts
and it would have been wise for the noble Lord, Lord George-Brown, and the noble Lord, Lord Chalfont, who were
responsible for the original treaty, to have attended this debate, as it is a debate concerning the consequences of their
acts when they were at the Foreign Office. It is no pleasure to have to condemn one's own party, but there are times
when it is essential for the honour of that party that some of us within it should condemn the actions that are taken in
its name, and this is one of those occasions.
I differ from my noble friend Lord Brockway in one respect only. I do not think it is the case that protests have been
made only from outside this country, nor that it was not until the 1970s that protests were made about this action. In
fact, I should like to pay tribute to the agitation conducted by Mr. Tarn Dalyell from another place, who has
consistently from 1965 condemned this action and brought it to the attention both of the public and of Parliament.
I do not envy the noble Lord who is to reply to this debate. I do not envy him for this reason, that he must know that in
many parts of the world, and particularly in the Third World, the words just uttered by my noble friend Lord
Brockway have been echoed very widely; that there is a parallel between British action towards the inhabitants of
Diego Garcia from 1965 onwards, and the actions of the British Government in 1982 towards the inhabitants of the
Falkland Islands. One cannot expect people from the Third World, with different coloured skins from our own, to fail
to draw the distinction between the actions of the British Government when the British citizens concerned have white
or pink skins, and their actions when their skins are of a different colour.
As my noble friend has pointed out, the inhabitants of Diego Garcia were descended from Africans, from the people
of Malagasy and from Indians. They were coloured people, or they were people of a different colour from the white
skin. Yet can the noble Lord, who is to reply to this debate on behalf of the Government, tell us where the difference
in principle is concerned—and I emphasise the word "principle"—between the incident of 1965 onwards and that of
1982?
Surely the principle involved is whether or not all people have the right to live where they choose under a form of
government of their own choice, and to participate in the determination of the form of society within which they live.
Was that not the principle on which the British Government claimed that they had to send the task force to expel the
Argentinians who were denying the people of the Falkland Islands that right? If it is the case that the British
Government sent the task force to the Falklands in order to expel those foreigners who are interfering with the lives of
the inhabitants, then how can this or any other British Government justify the actions which have been taken towards
the inhabitants of Diego Garcia?
My noble friend has pointed out that the basis of these actions was an agreement with the United States Government.
That agreement was a treaty which was signed in December, 1965, by the noble Lord, Lord Chalfont, on behalf of the
Foreign Secretary of the time, the noble Lord, Lord George-Brown. I understand that that treaty included one
particular provision and I should like to ask the noble Lord directly about this. I understand that within that treaty
there was the provision that, wherever possible, the building of the American base, communications centre—call it
what you will—should be by the use of Mauritian and Seychellois workers. I should like to ask him how many
Mauritian or Seychellois workers have been used in the building of that American base.
However little publicity there has been about this shameful act by successive British Governments from 1965
onwards, it would appear that, at least, certain Americans have greater moral scruples over the issue than has been
shown—at least at all widely—in this country. I should like to give two quotations from the report which point home
the issue that I have just raised. When the United States Congress was conducting its hearings on Diego Garcia,
Senator John Culver from Ohio had this to say. He complained that no witness in previous hearings had mentioned
that there had been inhabitants living on the island—some for generations. He went on to say: “simply put, these
people were evicted from their home only when and because the United States wanted to build a military base. We add
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nothing to our moral stature as a nation by trying to sidestep all responsibility for these people.” And, I should like to
add, nor do we.
econdly, during uestions which were put to the irector of the Office of International ecurity Operations, enator
Larry Winn, Junior, of Kansas had this to say: “I just have the feeling all the way through this hearing that the
American negotiators and the people involved have said, 'This is all a British problem, and let the people sink or swim
and just let the British worry about'. I don't know where any human concern shows up on your part or in your report or
anything else. I can't understand why we arc so damned interested in this thing as a military base that we don't have
some type of input, or ask questions, or check on the human beings that are living on this island before we kick them
off at our request through the British".” If American Congressmen and Senators can feel so deeply about this outrage,
I would suggest that our responsibility is one hundred times greater.
May I conclude by picking up one of the last points made by the noble Lord, Lord Brockway, which I was very
pleased that he included in this debate: who are we to determine that the Americans should have a military base in the
middle of the Indian Ocean? Have there been any consultations with the Government of India as well as with the
Government of Mauritius? We know that there have been discussions with Mauritius, but what about India? Diego
Garcia, in rough distance, is just as near India as it is Mauritius, and India has a very great stake in everything which
goes on in the Indian Ocean. It is the Indians who have led the way in attempting to make the Indian Ocean an ocean
of peace, a nuclear-free zone and a non-aligned sea.
This is a very important matter—I think the noble Lord will take this point—for the Commonwealth. The
Commonwealth has discussed the future of the Indian Ocean. The Commonwealth has discussed the passionate desire
of the Indians and of other sians to prevent the Indian Ocean from becoming a scene of conict between the great
powers. But here Britain, a member of the Commonwealth, is taking positive action to bring one of the major powers,
in a military form, into the centre of the Indian Ocean.
I now that he cannot give a final answer tonight, but I should lie the noble ord to consider and to tae bac to the
Foreign and ommonwealth Office the proposal that because this is a ommonwealth matter there should be
Commonwealth consultations about the future of the Ilois, who have been turned out of their homes and thrown out of
their homeland, and also about whether Diego Garcia should be a military base for anyone. I reiterate that this is a
matter which concerns the Government and the people of India and the rest of the Commonwealth citizens of Asia, as
well as the Mauritians, even more than it concerns ourselves and that we should be prepared to withdraw from the
position of openly opposing the declared policy of our fellow Commonwealth members in their ocean by bringing in
one of the great powers against their wishes.
May I make the proposal to the noble Lord and ask him to give serious consideration to it, along with his noble and
right honourable friends in the Foreign and ommonwealth Office. If this ind of action is going to be characteristic
of ritish overnment policy, then there is very little hope for ritish inuence in the ommonwealth. I believe that
members of the Commonwealth have a responsibility and a desire to discuss the whole issue of Diego Garcia and that
that discussion should be held within the Commonwealth as well as at the United Nations. However, I particularly
recommend to the noble Lord further Commonwealth consultations about the future of the island, the military
significance of the island and the future of the refugees whom we have made refugees from their own homeland in
Diego Garcia.
6.46 p.m.
Lord Hale My Lords, this debate has gone on for some time, but it is a very important one. I should like to say at once
that I can do no more than agree with every word spoken by my noble friend and with nearly every word spoken by
his seconder. Some of the little divagations into American mental attitudes and so on might have been more
appropriate from the noble Lord from Peterborough, the noble Lord, Lord Harmer-Nicholls, who persistently rails at
me as anti-American. I have a very good friend in this House who is a member of a society of friendship with
merica. I find very little to blame merica for in this, if their military advisers thin that the defence of the Indian
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Ocean will be strengthened by the construction of an American-dominated defence station in the Indian Ocean. They
were very hesitant about it and had it almost pushed on them by British Ministers—let us make no mistake about that;
the evidence is overwhelmingand, as my noble friend ustly said, they were the first to hold a public inuiry and
raise some of the problems, such as the destruction of the rare, large tortoises on that particular island.
There is much that is incredible and sheerly indefensibly immoral and contemptuous of human rights coming from a
Labour Government and Labour Ministers. I do not believe that anybody like Michael Foot would ever have tolerated
this kind of serious and monstrous abusage of human freedom and human liberty.
Names are mentioned in the report, so I need say only this. I came into this by chance on October 14th 1975, when my
noble friend and I had each put down a Question on Diego Garcia. My noble friend put a number of supplementaries
to his uestion, and I put a number of supplementaries to mine. I must say that these were very hostile uestions and
were received with much more courtesy than I epected. I was ased not to press the uestions but to indicate them in
detail and to wait for a Written Answer. This duly arrived and, curiously enough, I still have it today—it is an
important document. It is signed by my old friend Goronwy Roberts, whom I deeply respected. I do not believe for a
moment that he was ever involved to the fullest degree in this matter. I do know that he was distressed at the situation
in which he found himself; a situation in which he was having to take the responsibility for his own Government and
for some of the things they had done—but not, I believe, with his knowledge. After all, he was still a junior Minister
at the time, although he held an important post. It was not very long after that that we lost him. That was a great loss
to this House and to the Party.
If one eamines this report, one finds that underlying it all is a cynicism which will appal embers on all sides of this
ouse who read it. he figures are almost invariably false. he method of giving absolutely false figures was that if
one ased for figures for the number of people in iego arcia one would be given the figures for the number of
people who were in the eychelles. Or if one ased for the figures for the eychelles, one would be given the figures
for iego arcia. here is scarcely an accurate figure throughout these communications. eanwhile, people of high
reputations, with their own religious beliefs and their own customs, and with their reputation, which does not involve
criticising them on the basis of character, are triced in the manner of a confidence tricster. hey are told that it will
all be all right and that they have only to wait. They are told to step on a boat and that their interests will be looked
after, but some of them have very great difficulty in ever getting off that boat again. hey are deported to areas of
conict and dispute.
They starve. It is an odd thing that people can starve, even in a fruit-growing country, if they are pushed together in a
heap and left. our ordships may have seen the film which I believe was shown on I some time ago. It showed
what was left of these 1,000 decent people. As far as money is concerned, they did not get any money for years. When
any money was paid it was not paid for the victims—it never is. Let me recall from memory the period not very far off
from this when we were dealing with the problems of the Gilbert Islands and the Banabans. Time after time there was
this same sort of deceit and the same sort of vague talk about compensation. I have no doubt that the Americans urged
for the payment of some more compensation because of the shameful treatment of these people. I believe that to be
true. After all, it is hardly a country that can afford or wish to save a few coppers at the expense of a starving tribe.
But it went on. I myself am ashamed. I do not know why I seem at the end of October 1975 to have dropped out of
this business for uite a time. I only saw the report yesterday and I accept a great deal of blame for not trying to
ascertain the truth at the earliest possible moment. This is not a matter, if there be a solution, which should be
forgotten, even in these overcrowded islands, after so many Ilois have died (some of them having committed suicide)
and after little girls have gone into prostitution.
It seems that there is an island which, happily, was discovered by some British sailors who wanted to go to Diego
Garcia but who were refused and who journeyed to another island some 140 miles away, where, they testify, most of
the advantages which the Diego Garcians enjoyed in their early days on Diego Garcia are also available. It is virtually
an uninhabited island where these people might be accommodated if they were willing and if they were given
adeuate compensation.
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If the Americans want to go on with this massive project—and I do not believe that they do—I do not think that this is
the moment to go into the uestion of views which certainly verge on pacifism. I do not believe that this is the
moment when we ought to be criticising the military government or otherwise of this island. he attempt to rescue the
merican hostages from Iran was to be staged by resident arter in full secrecy from iego arcia. It is a long way
away, but that factorthe necessity of eeping that absolutely secret for a long timewas one of the difficulties about
seeing other alternatives until the day had passed when the attempt failed. et us have a full inuiry free from
unnecessary rancour, seeking to pay the debt we owe to those unfortunate people who were the victims of trickery of a
lie that we do not often see in ritish international affairs.
ith those observations I shall leave out very many of the matters that I wanted to mention. I approach the situation
still without bitterness and rancour because I now that I failed myself, and often do.
7.1 p.m.
Lord Strabolgi y ords, we are grateful to my noble friend ord rocway for tabling this nstarred uestion for
debate this evening. I now that the ouse has been impressed by his moving speech. his has been very much a
abour debate and I cannot help regretting, with my noble friend ord atch of usby, that no noble ords from other
parts of the ouse have taen part, ecept, of course, the noble ord, ord elmersdale, who is to reply for er
aesty's overnment.
s has been said, iego arcia was formerly a dependence of auritius. It was ceded to ritain, and detached from
auritius, before independence was given to auritius. It is generally believed that the island has been leased by us
to the nited tates for yearsindeed, I have seen this widely reported in the press. On the other hand, I
understand that the Foreign Office maintains that iego arcia is not leased to the nited tatesrather that the
island has been made available to the nited tates, for defence purposes, for an initial period of years, with an
option for a further years.
ay I as the noble ord who is to reply to define the legal position and to describe the difference, under international
law, between leasing and maing available ay I also as the noble ord whether it is a fact that the nited
tates' contribution, or payment if you lie, too the form of the waiving of about million of surcharges owed by
the nited ingdom on the purchase of the olaris missile system, which was also alluded to by my noble friend ord
rocway ay I further as if it is true that, in addition, ritain is receiving rent for iego arcia from the nited
tates of about ½ million a month?
I am not clear why the creation of naval and military facilities reuired the removal of the entire population. his
removal appears to have been carried out, according to the report of the Minority Rights Group—if this is accurate—
in a very shabby way. s has been said, first the island was detached from auritius. hen the employing plantation
company was bought up and closed down so that the means of livelihood of the Ilois was lost. Food imports are even
reported to have been cut off. Families were then persuaded to tae a holiday in auritius, many with offers of a free
trip, and they found when they got there that they were not allowed to return home. y winling out in this way the
population had been reduced from , to about people by . hese souls were then removed to two
neighbouring islands and two years later they were sent to auritius.
It appears from this report that no provision for resettlement had been made, and little was done to alleviate the
hardship on arrival in a strange island of those we had eiled. ach family was allowed to tae only one crate of
belongings and we have had other moving eamples described tonight by my noble friends. he result was that these
unfortunate people had to live in poverty and sualid conditions. I understand that nine committed suicide and others
died through poverty.
ay I as the noble ord why no provision was made to resettle those whom we had uprooted, in a more fitting way
If the reports are true—and I hope that they are not—then this country bears a heavy responsibility. rue,
compensation was offered in some , initiallyI suppose the smallest sum the reasury thought they
could get away with. In order to ualify, the islanders, many of them simple people, were ased apparently to sign a
Annex 225
form renouncing irrevocably their right to return to Diego Garcia. Any adult not in possession of supporting
documents to establish a claim was, it is reported, given the paltry sum of £650.
But the people were not as simple as that. Her Majesty's Government were obliged in the end to offer considerably
more. May I ask the noble Lord if it is true that the agreed total sum is now £4 million—a long way from £650,000—
plus a grant of land worth about £1 million from the government of Mauritius? It would have been more honest, I
thin, and more dignified, surely, if we had offered generous compensation at the outset. hy did we not do so as
it meanness, incompetence, or indifference; or a mixture of all three?
I accept that the island is important for defence purposes, in view of its central position in the Indian Ocean—and here
I differ from my noble friend Lord Brockway. But why was it necessary to remove the inhabitants? I do not know of
other defence bases, or stations, which have required the removal from adjacent areas of the whole native population.
In many stations as we know, the local inhabitants provide useful ancillary and support activities. Employment is
provided, and the local people can often earn good money. Perhaps the noble Lord will say why Diego Garcia is the
eception. hy did its setting up as a defence base have to cause so much reported suffering to the unfortunate people
the Iloismany of whom had lived on iego arcia for five generations, with their own distinctive way of life, as
several of my noble friends have said this evening?
The report by the Minority Rights Group is a disturbing document. I submit that the Government's views on it should
be given to the House this evening. I therefore ask, in company with my noble friends, what is the Government's
response to this report?
7.9 p.m.
Lord Skelmersdale My Lords, as I see it, my job here today is not to explain away the failures of past Governments or
to lay the blame on any particular individual for the current position with regard to the Ilois people. uffice it to say
that I am not—to pluck a convenient phrase from broadcasting history—one of yesterday's men. This story was a fait
accompli when this Government came to power. However, I am here, as the noble Lord, Lord Strabolgi, has just
reminded me, to answer the timely question from the noble Lord, Lord Brockway—namely: “To ask Her Majesty's
Government"—” this one, today's Government— “what is their response to the report of the Minority Rights Group
on events in Diego Garcia".” It is timely because the noble Lord has given us an early opportunity to debate a report
which was published only in August this year. It is also timely because, as I have sought to illustrate, I am able to
explain the actions taken by this Government since 1979.
From listening to the noble Lord, Lord Brockway, this evening no one can doubt his sincerity and concern for
minorities. e have all nown his concern to be unuestionable over a great period of years, some of us for a rather
shorter time than others. Nor can anyone doubt the sincerity of the Minority Rights Group or of John Madeley, author
of the report to which the noble Lord has drawn attention. I should say at the outset that we have the greatest
sympathy for the hardships undergone by many of the Ilois in the past decade. Nothing that I say in response to points
raised by the noble Lords who have spoken in this debate can detract from that. At the same time. I think it is helpful
to look at the problems of this community in a longer time-frame than that of this decade, which is what the debate
has tended to do.
ver since the first of the islands were discovered in the th century they have attracted interest for two reasons the
strategic convenience of Diego Garcia's lagoon in the middle of the Indian Ocean; and the products of the coconut
palms which ourish on the islands. Indeed, the hagos were for long nown as the oil islands. he economy of the
archipelago depended entirely on the marketability of copra and coconut oil and underwent many vicissitudes. I shall
not weary the ouse with a detailed history of these commodities. uffice it to say that the maret has for many years
been in long-term decline and the lack of competitiveness of such small and isolated production units was bringing the
economic viability of the islands seriously into question by the time that fresh interest was being shown in their
strategic possibilities. Even before the last war a settlement on one of the islands had to be closed down.
The other aspect, the defence aspect, also has a long history. In the latter part of the 18th century when French and
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ritish eets were struggling for mastery of the Indian Ocean. iego arcia was, because of its position in the route to
India, a bone of contention until, together with auritius and other dependencies of auritius, it was ceded to ritain
in under the reaty of aris. In the econd orld ar iego arcia again showed its military value, mainly as a
staging post for yingboats.
here was, therefore, nothing surprising or novel in the idea that the hagos should again contribute to the defence of
the est in the fresh circumstances of the second half of this century. our ordships are, of course, familiar with the
agreement we made with the nited tates in . he tet is in ommand aper of . I mae no apology
for the fact that this overnment, lie the overnment of the day which signed that agreement, thin it important to
mae available a facility in that part of the ocean to our principal ally. Indeed, developments in the northwest of the
Indian Ocean and, above all, the threat posed by the oviet invasion of fghanistan reinforce the need for a support
facility in the region.
he noble ord, ord trabolgi, and, indeed, the noble ord, ord rocway, ased me why we call it a support
facility and not a military base. ssentially, a base is a selfcontained place with its own defences and forces
installed. his particular one is rightly described as a support facility because that is ust what it is. It has a runway,
it has fuel stocs, and it has a communications capacity. It will have a deep water berth, but there is no permanent
force deployed there, naval eet based there, or any aircraft based there. his is, of course, a reason why it would be
inappropriate for islanders not belonging to the facility to be there for any length of time.
he noble ord, ord atch, ased about the building of this facility and who was to be used in building it. e
obviously has in mind rticle a of the agreement. his provides that “he nited tates overnment and
nited tates contractors shall mae use of worers from auritius and the eychelles to the maimum etent
practicable, consistent with nited tates policy reuirements and schedules.” In recent years there have been over
auritian worers employed at the base for building purposes.
It is very much in our mind to as, what about further epansion plans for the base he situation has not changed
since my right honourable friend the inister of tate said in another place on th uly that “ previous
nited tates dministration consulted us er aesty's overnment about plans for a programme to epand the
facilities on iego arcia. his programme involves numerous construction proects etending over several years.
hey include improving the services and utilities on the island, including refuelling arrangements, epansion of
storage, warehousing, maintenance and wharf installations, and the upgrading of runway and other airfield support
facilities to a standard which would allow use of the facility as reuired by a wide range of heavy aircraft including
s. e er aesty's overnment have agreed to these plans.” “he present nited tates dministration have
confirmed that they intend to proceed with the development plan and are now seeing budgetary authority to set wor
in hand. roects epected to start in include the construction of a new aircraft taiway and paring apron to
specifications and the construction of etra accommodation for nited tates personnel. he overnment
welcomes these plans to improve the facilities on iego arcia which fills an important role in the protection of
estern interests in the area.” I shall return to this point in a minute.
s has already been mentioned, this is there directly because of the creation of the ritish Indian Ocean erritory in
. I must emphasise that the hagos rchipelago was detached from the administration of auritius with the full
agreement of the auritius ouncil of inisters to form part of that territory. he report maes the astounding
suggestion that this was conditional upon our agreement to auritius independence. earch as I could, I could find no
trace of any evidence whatever for the claim that the then olonial ecretary, who visited auritius in to prepare
for the constitutional tals to be held later that year, made any suggestion or condition. is visit was undertaen to
ascertain the views of the then auritius rime inister, ir eewoosagur amgoolam, and other party leaders on the
direction which the constitutional development of the islands should tae. he nited ingdom overnment did,
however, agree to pay the overnment of auritius million in compensation for the detachment of the islands and
we have also undertaen to cede them to auritius when they are no longer reuired for defence purposes.
I should mention in parenthesis that when the IO was first formed, it also included certain islands detached in a
Annex 225
similar way from the then colony of Seychelles. When it was clear that those islands would not be needed for defence
or other purposes they were returned to form part of the new Republic of Seychelles upon its independence in 1976.
It is the people involved, the Ilois, who have, rightly, been a major focus of concern of noble Lords who have taken
part in this debate. I should perhaps remind your Lordships what the term—the noun—"Ilois" actually means. It is a
term that has grown up over the years to describe that part of the Mauritian people who lived or have lived on the
Chagos Archipelago. Nothing more and nothing less.
While the majority of those who worked on the copra plantations were returned to Mauritius or the Seychelles upon
the expiry of their contracts, a proportion remained on these islands for the greater part of their lives. These were
referred to as the Ilois. Noble Lords will recognise that the term is far from precise, but, whatever the degree of their
connection with the Chagos, the fact is that the Ilois were brought to, and remained on, the islands purely on the basis
of their contracts. Traditionally the plantation owners did not look upon the workers as settled residents in any one
place but moved them according to commercial necessity. here seem to have been considerable uctuations in the
level of habitation in the islands. Neither the employees nor those who were permitted by the plantation owners to
remain at the end of their contracts owned land or houses in any part of the archipelago. The point I am making is
simply this: the inhabitants of these small atolls did not constitute a settled and self-sustaining community with its
own institutions and civil administration.
The noble Lord, Lord Hatch, brought up the subject of the Falklands and tried to compare the two situations. Now, in
contrast to what I have just said about the archipelago, in the Falkland Islands (an area, incidentally, incomparably
vaster at some 4,700 square miles) a self-sustaining society had established itself, with its own civil administration, as
early as the 1840s. From this base the Falkland islanders gradually built up the economy and their institutions to the
levels with which we are all familiar. They, unlike the Ilois, were separated from their near neighbours by language,
culture and tradition. It is purely to do with self-sustaining peoples, and nothing more and nothing less. I cannot be
more dismissive of the suggestion that this is anything at all to do with racialism.
Lord Hatch of Lusby My Lords, will the noble Lord give way?
Lord Skelmersdale My Lords, if the noble Lord will allow me, I am trying to make a speech out of a large number of
incoherent notes. I listened to the noble Lord in silence although at times I was tempted to argue with him. Perhaps I
may continue with my speech and make it in my own way.
With the establishment of the British Indian Ocean Territory, the plantations were purchased by the Crown and all
were eventually closed, beginning with those in Diego Garcia. The settlements in Peros Banhos and Salomon were
kept going as long as was practicable and the workers from Diego Garcia were given the option, which a considerable
number took, of working on Peros Banhos or Salomon for as long as possible. However, the total land area of these
two groups of islands is something like six square miles. It seems unlikely that the plantations on them would have
been economically viable in the long term, even with the substantial injection of new capital that would have been
required. In any case, the islands were also included in the 1966 Exchange of Notes, and thus potentially available for
defence purposes; and this further diminished their commercial attractiveness.
I come now to a poignant, perhaps the most poignant moment in this history. s in any final leavetaing, the
departure of the Ilois from the island settlements must have been a sad and distressing occasion. But the report's
description of these occasions as an act of mass kidnapping is grossly exaggerated and I suggest tendentious. There is
no evidence of force having been used.
Lord Strabolgi Nobody says so.
Lord SkelmersdaleLord Denham My Lords, I beg to move that this House do now adjourn.
Lord Hatch of Lusby Before the Minister sits down—
Annex 225
Several noble Lords Order!
Lord Denham I have moved that the ouse do now adourn, my ords. e are in very grave difficulty with an
nstarred uestion if it is allowed to turn into a debate after my noble friend has answered.
Annex 225
Annex 226
Note from W. N. Wenban-Smith, “Commissioner” of the “BIOT”, to Mr Watts, Deputy Legal
Adviser, U.K. Foreign and Commonwealth Office (15 Feb. 1983)
Annex 226
Annex 227
Letter from J. N. Allan, British High Commissioner in Port Louis, to W. N. Wenban-Smith,
“Commissioner” of the “BIOT” (10 Mar. 1983)
Annex 227
Annex 227
Annex 228
Note from C. A. Whomersley, of the U.K. Foreign and Commonwealth Office Legal
Advisers, to Mr. Hunt of the U.K. Foreign and Commonwealth Office East African
Department (21 July 1983)
Annex 228
Annex 228
Annex 229
Note from D. I. Campbell, of the U.K. Foreign and Commonwealth Office East African
Department, to A. Watts, Deputy Legal Adviser, U.K. Foreign and Commonwealth Office
(26 July 1983)
Annex 229
Annex 230
Letter from J. N. Allan, British High Commissioner in Port Louis, to W. N. Wenban-Smith,
“Commissioner” of the “BIOT” (16 Dec. 1983)
Annex 230
Annex 231
Letter from W. N. Wenban-Smith, “Commissioner” of the “BIOT”, to J. N. Allan, British High
Commissioner in Port Louis (10 Feb. 1984)
Annex 231
Annex 231
Annex 232
J. Addison & K. Hazareesingh, A New History of Mauritius (Part 2 of Extract) (1993)
Annex 232
CHAPTER 16
The economic and social history of
Mauritius since the Second World
War: economic problems and
policies
The main features of the economy and society
of Mauritius and the problems which have
faced the governments of the island since the
end of the Second World War have remained
fairly constant. They were analysed in 1960
and 1961 by two commissions. The first of
these was led by Professor Titmuss and
Dr Abel-Smith from the London School of
Economics, and reported in Social Polides and
Population Growth in Mauritius. Professor
Meade from Cambridge University made a
broader survey of the Economic and Social
Structure of Maurz'tius. The Meade Report has
sl:'rved as a guide to politicians and administrators
ever since it was published.
The Meade Report: problems identified
Although Mauritius is normally classed as a
developing country and part of the Third
World, Professor Meade made the point in his
report that, in some respects, it is not typical of
the Third World . 'In many ways', his report
stated, 'Mauritius is not underdeveloped. Some
of its services are far advanced but too many
eggs are in one basket.' In 1977 the average per
capita income of Mauritians was £300, well
above that of the world's poorest countries.
Average incomes, of course, hide extremes of
poverty and of affluence and Mauritius has its
share of both. However, poverty in Mauritius is
on a small scale compared with that found in
the world's poorest countries.
The island's main problems were an
economy dependent to a dangerous and unacceptable
degree on a single crop, sugar; the
dangers of an excessive rise in population; a
high unemployment rate; and, since the
mid-1970s, a serious balance of payments
98
problem (i.e. an excess of imports over
exports). The solutions , easy to prescribe but
difficult to implement, were and remain:
diversification of the economy; measures to
control the growth of population, to encourage
exports and to create new jobs. These are all
linked to the need to educate the people of
Mauritius to be aware of the problems and the
corresponding solutions. They are also interlinked.
Finally political stability is inextricably
linked to the ability of politicians and governments
to achieve some success in the control of
these problems .
The Titmuss Report
The Titmuss Report forecast the disastrous
consequences which would follow for Mauritius
if the rate of populaliuu gruwLh continued unchecked.
Partly aG a result of the remarkable
success of the government's campaign against
malaria since the Second World War, the
death rate declined dramatically in the 1960s.
The birth rate, on the other hand, remained
high. A steady improvement in medical care
had increased life expectancy. The population
was increasing at the rate of 3 per cent per
year. By the year 2000 this would have brought
the population of Mauritius close to 3 million.
Population problems
In the particular case of Mauritius, Professor
Titmuss and Dr Smith were on safe ground in
identifying an unchecked population growth
as a threat to the future prosperity and
development of the island. The physical area
of the island is so small that its capacity for
supporting more people is limited. It is worth
remembering, however, that in the world in
general there is not necessarily any direct link
between poverty and a high population
density.
The idea that population growth in itself is
always a bad thing, that it is bound to lead to a
Annex 232
fa)] in living standards, to food shortages , to
higher unemployment and , in general , to
greater poverty, is no longer accepte·d by
experts. One has not got to look far to tealise
that under-population is at least as li~lj to
lead to social and economic problems . Most
African countries, for example, are underrather
than over-populated . If many people in
Africa are poor and underfed it is not because
there are too many of them. The fault lies in
the economy and in .its management. The
problem of unemployment is solved by
creation of more jobs through expansion of
the economy , not by slowing down population
growth and reducing population.
Solutions to the problem
Having warned against the possibility of
economic and social disast r the Titmuss
Report went on to make r comm ndations for
avoiding it. Mauritius had much on its side .
From the point of view of easy communi -
cations , its smallness was an advantage .
Edu ationally it was ahead of most Third
World countries. So long as population was
kept within reasonable bounds it could become
one of the prosperous , not one of the poor ,
areas of high population d nsity . Quite simply ,
families were too large and the birth rate was
too high. Family planning , later marriage and
the ideal of a three -child family were the majn
ways to restrict population growth.
Family planning
In an island with a multi -racial , multi-religious
population, fami ly planning could be a
delicate policy for the government to pursue.
The larg e Roman Catholic element in the
population rejects, through the teaching of its
church , the use of contraceptives . The Muslim
community, a minority group, is reluctant to
restrict its growth rate. The first offical govern -
ment support was given to the Mauritius
Family Planning Association (FPA) in 1968,
ten years after its foundation . Since independence
the Association's efforts have been
assisted by those of the Action Familiale , a
Catholic organisation giving advice on birth
contro l methods acceptable to the Roman
Catholic Church. More than half of the clinics
run by the FP A were brought under the
Ministry of Health in November 1972. A
separate division of the Ministry is concerned
with maternal and child health and family
planning. The programme became part of the
First National Development Plan.
The whole campaign to control population
growth has had remarkable success. The rate
of growth was down to about 1. 7 per cent in
1975, a decline rarely achieved even in the
developing world. It seemed that it might fall
to something approaching 1 per cent during
the 1980s. Unfortunately the campaign seemed
to lose its momentum in the late 1970s and ,
al hough the disastrous rise in population
which Titmuss warned the country against has
been avoided, population growth remains a
potential danger to the future prosperity of
Mauritius.
Emigration
The only other possible way of checking
population growth is through a policy of
encouraging emigration . The Mauritian
government has used this method also. In the
1960s, the emigrants were mainly Creoles,
motivated often by a desire to escape the
danger of Hindu domination. They went
mainly to Australia (just over 40 per cent),
Britain Uust under 40 per cent) and, to a lesser
extent, to France and South Africa (about 4.5
per cent in each case). In the 1970s an increasing
number of Indo- Mauritians joined the
emigrants. Almost all went to Britain where
they worked mainly in hospitals. There were
many Mauritians working as male nurses in
British mental health hospitals. Emigration,
however, can have no more than a marginal
effect on population. In the whole of the l 960s,
fewer than 17,000 people left the country.
Unemployment
Some of those who emigrated left to find suitable
employment and emigration, therefore,
made a contribution to the solution of another
problem, that of unemploy~ent. Again, how·
ever the contribution was a small one a nd
the ~roble-m an increasingly serious one . n
attempt to understand the high level of u~-
f the country
employment shows how many O
. Ja
problems are interlink d. The dbornl io~nnc i~self
. pro em 1 , of sugar m the economy , a
99
Annex 232
does not help. At first sight this may seem a
strange claim to make. After all the sugar
industry is still the largest employer of labour
in Mauritius. It prov~des jobs for 60,000
workers, about one-third of the work force.
,However , employment in the industry is
seasonal. Many of the jobs are only available
during the harvesting season from August to
_December. Many of those employed at this
time may become unemployed during the r est
of the year. Another reason for claiming
that the sugar industry indirectly increases
unemployment lies in the growing reluctance
of educated young men to work in the cane
fields. The government's success in expanding
educational opportunities has also helped to
create this situation . Some young men who
have succeeded in gaining a Cambridge School
Certificate or some other educational qualifi -
cation would rather remain unemployed than
undertake manual labour in the sugar
industry. Another feature of education in
Mauritius further complicates the issue. Too
high a proportion of young Mauritians have
had an 'academic' education; too few have had
a technical or practical training.
Economic planning
Economic planning in Mauritius goes back to
the year 1957_, when the government's
Economic Planning Committee drew up a
Plan for Mauritius, a five-year programme of
government · projects . This had to be
abandoned in 1960 when the destruction
caused by the cyclones 'Alix' and 'Carol' faced
the government with much more urgent
problems in its 1960 to 1965 Reconstruction
and Development Programme. The reports of
Titmuss and Meade also helped to point the .
way to economic and social priorities and an
Economic Planning Unit was set up. After
independence the Unit became part of the
Ministry of Economic Planning and Development
which drew up the First National Plan, a
four-year plan, from 1971 to 1975.
The First National Plan 1971-1975
In drawing up this programme the planners
recognised the three major problems: the
mono-crop economy (sugar), the rate of popu-
100
lation growth and unemployment. Its main
objective was to create employment. It aimed
at creating 52,000 new jobs in the first four
years. It slightly exceeded its target in this
respect as well as in the economic growth rate
achieved; 10 per cent instead of 7 per cent.
The Mauritius Economic Review, published
by the Ministry of Economic Planning and
Development in 1976, summed up the
achievements of the 1971 to 1975 plan with
justifiable satisfaction:
The 1971-1975 Plan therefore sets out as its
main objectives the creation of productive
employment, steady and viable economic
growth and more equitable distribution of
income .
The 1971-1975 Plan period was undisputal.,
ly one of solid ecouomic achievements and
all round progress. The targets laid down in
the Plan in respect of employment and
income were surpassed. Investment in the
basic social and economic infrastructure of
the country took place at an accelerating
rate. Impressive results were also achieved in
the diversification of the economy away
from th~ monoc.ropping of sugar. Positive
results were also obtained in the efforts
made to reduce the rate of population
growth.
A textile factory in the Export Processing
Zone scheme
Annex 232
I I
Export Processing Zone
The success of the job creation programme was
achieved largely through industrial development,
much of it under the Export Processing
Zone project and some as a result of the
government's own action programme carried
out by the newly created Development Works
Corporation under the name of 'Travail pour
tous'.
The first Export Processing Zone, set up in
the Port Louis area, was , as its name indicates ,
an area where industrial enterprises were set up
for the purpo e of producing goods for export.
Export Processing Zones were first created in
the Far East, and now exist in other parts of
south-east and south Asia. Export Processing
Zones offer advantages and opportunities both
to foreign investors, including multi-national
corporations, to domestic investors and to the
people of the countries in which they are
based. To the investors they offer above all a
plentiful supply of cheap labour, mostly
provided by girls and young women. For the
host countries they create opportunities for
employment through the establishment of
manufacturing industries. In Mauritius they
are an attempt to contribute to the solution of
the island's economic and social problems by
creating new jobs, diversifying the economy
and stimulating exports. Various incentives
and concessions were available to encourage
foreign investors as well as Mauritians to invest
capital in these enterprises. Facilities for cheap
transport, power and water were provided;
certain tax exemptions were offered as well as
duty-free import of machinery , raw materials
and other necessary items. By 1975 the Export
Processing Zone scheme had provided nearly
10,000 new jobs and by the following year
eighty firms were operating under the scheme,
many financed and controlled from abroad .
French, Hong Kong, Indian and German firms
were prominent. The project was continued in
the Second Development Programme, 1975 to
1980 , and jobs provided totalled nearly
20,000.
By far the most successful sector of manufacturing
industry within the scheme has been
textiles. Nearly fifty firms are involved in this
area but Mauritius has serious competition to
face in the field, notably from Hong Kong with
a much larger tradition in the industry and
over 1000 firms producing vast quant1t1es of
goods. The Mauritian government needs to
strike a delicate balance betwee n allowing the
firms to produ ce their products at a low cost,
and satisfying the aspirations of the Mauritian
labour force. The 'Tra vail pour tous' programme
provided jobs for 5000 to 6000
people in public works including the building
of roads , schools and classrooms, public
buildings and forestry schem es. Between 1974
and 1975 the Development Works Corporation
which administered th 'Travail pour tous' programme
was also made responsible for a Rural
Development Programme , aimed at raising
living standards in some of the island's poorest
villages.
Tourism
The expansion of tourism was another major
success of the 1-971 to 1975 programme.
Between 1970 and 1974 numbers of tourists
almost trebled (from 25,000 to 73,000),
earni ngs from the industry more than quadrupled
(Rs 27 million to Rs 112 million) and
workers directly employed trebled ( 1500 to
4500).
The Second National Plan 1976-1980
The Economi'c Review of the period 1971 to
197 5 ended on an optimistic note both on the
progress achieved and on future prospects:
To sum up, the significant achievements of
the economy during the plan period
1971-1975 were reflected in GNP growth,
the expansion of the manufacturing section
including the export processing zone and the
dent made into the unemployment problem.
These clearly bear out the success of the
development policy followed by the country
and indicate that the base for more rapid
development in the future has been firmly
established.
Unfortunately the prediction in the last
sentence was not fulfilled. The Second
National Plan, 1976 to 1980, did not have the
success of the first. The target , for example, of
76,000 new jobs was not achieved: the
continued growth of industry in the Export
Processing Zone did not take place. Many
factors contributed to this failure to maintain
101
Annex 232
the economic momentum of the early 1970s.
The high level of government spending in the
'Travail pour tous' programme placed a heavy
strain on the economy.
The sugar industry runs into trouble
The sugar industry, after enjoying a boom
which reached a peak in 1974, suffered from
falling prices. Without the agreement with the
EEC under the Lome Convention (see page
100), the effect of this trend would have been
more serious. As a result of this, and the rise
in oil prices after 197 3, the balance of trade
tilted heavily against Mauritius. Imports , stimulated
partly by rising wages, almost doubled
between 1974 and 1978. The value of exports
fell because of the slump in the sugar industry.
From a slight surplus in 1974, the country's
trade fell into a deficit of over Rs 500 million in
1976, and over Rs 1000 million in 1978. The
sugar industry's troubles were made worse by a
substantial rise in wages and prices and by the
strike of dock workers in Port Louis in August
1978. Perhaps some good for the industry has
resulted from these developments. High wages
have at last forced the industry, with
government approval, to turn to greuter
mechanisation and to make maximum use of
all parts of the crop in producing a wide range
of by-products. Cane waste, for example, is
used as fuel for sugar factories, for the making
of board for use in the furniture industry and
for the production of alcohol to be used as an
alternative to petrol.
Diversification in agriculture
The sugar industry also played a leading part
in the struggle to diversify the agricultural
A modern sugar refinery in Mauritius
102
sector of the economy. Revenue made by the
industry was used to promote the growth of
other crops. Of these, tea is the most
important and is the country's next most
important agricultural export after sugar. Tea
bushes with their deep roots are able to
withstand the destructive power of cyclones
better than most crops. A Tea Control Board
established in 1959 controls the cultivation and
sale of the crop and · also its quantity and
quality. Other export crops grown in significant
quantities include tobacco and also fibre.
A wide range of vegetables is cultivated,
many of them inter-cropped between the rows
of sugar cane, in an effort to increase the proportion
of food produced on the island. The
need to import large quantities of food,
partirnl;1rly rire , is one of the m.iin reasons for
the unfavourable balance of trade. About 30
per cent of the cost of imports is for food and
half of this is for rice and wheat, both of which
are subsidised. A National Food Production
Committee was set up in 1974. Its task was to
make recommendations for the 'most practical
and efficient means of rapidly increasing local
food production'. Considerable progress has
been made towards the achievement of selfsufficiency
in vegetables. The staple crops of
rice and wheat are never likely to be grown in
quantities that will significantly reduce the
import bill, but experiments in the growing of
rice are being continued, with the help of
Chinese advisers.
Efforts were also made to produce maize ,
meat and dairy produce. The main success in
this field , was with poultry and by the end of the
1970s production reached 65,000 frozen
chickens a week, sufficient for the island's
needs. In Mauritius chicken is eaten by all the
different communities. The fishing industry
has made disappointing progress. Too many
foreign fishermen with up-to-date ships and
equipment have recently begun to exploit the
waters of the Indian Ocean. Fishing fleets from
Japan, Taiwan and South Korea are based in
Mauritius.
Attempts to diversify the Mauritian economy
have thus achieved some success. Nevertheless
there is no escaping the fact that the prosperity
of Mauritius remains overwhelmingly dependent
on its sugar crop . The simple truth is that
few crops are able to withstand the cyclones as
Annex 232
well as sugar and few seem to flourish as well in
the peculiar and difficult agricultural
conditions of the island 's rock-strewn landscape.
Sugar still covers 90 per cent of the
cultiva_ted land; employs nearly 60,000 people,
one-thlfd of the total employed population;
and, along with its main by-products like
molasses, accounts for almost 70 per cent of the
value of the country's exports. As shown above,
however, the extent of sugar 's dominance has
declined in r:ecent years. Amongst the reasons
for this ~av: been the slump in sugar prices
and the nse m labour costs since the boom year
of 1974. Mechanisation has increased but there
is a limit to the part machines can play in
~arvesting the crop in the difficult rocky cane
fields. There is also a re luctance to carry
mechanisation too far in a country where the
creation of more jobs is still a priority of
government policy. One result of these developmenls
was that the production target set for
sugar of 800,000 tonnes by 1980 in the Second
National Plan had to be abandoned . Early in
1980 the price of sugar in the world mark e t
began to rise again because, for the first time in
six years , world production fell short of
consumption. One good result of the difficult
years between 197 4 and 1980 was the remarkable
skill and ingenuity which enabled eve ry
part of the crop to be turn ed to some use and
profit.
Cutting jute
Special agreements for the sugar industry
Finally it should be made clear that Mauritius
and other sugar-producing areas have been
protected from the worst effects of low prices
on the open market by the guaranteed market
for sugar at guaranteed prices in the EEC. The
lesson of the last six years is to underline the
wisdom of the Prime Minister and his
colleagues who negotiated the terms of the
Lome Convention with the EEC countries. The
story behind the Lome Convention and its
special sugar protocol must b e understood.
The Commonwealth Sugar Agreement 1951
In 1951 Britain made a Commonwealth Sugar
Agreement with the sugar-producing members
of the Commonwealth. Under this agreement
Mauritius sold around 60 per cent of her sugar
crop to Britain. This arrangement was the
pivot of the Mauritian economy and her main
source of revenue from exports. On 1 January
1973, Britain became a member of the European
Economic Community (EEC) or European
Common Market. As a member of the
EEC she had to abandon, within five years, all
her existing trade agreements with other
countries. These included the Commonwealth
Sugar Agreement which was due to e xpire at
the end of 1974 . Britain made it known that
she intended to continue to give her Commonwealth
partners access to Britain for th e ir sugar
103
Annex 232
and this commitment was written into her
treaty of accession to th e EEC.
The Lome Convention 1975
During 1974 Britain's negotiations ran into
difficulties with her EEC partners but eventually,
in a special sugar protocol which
became part of the Lome Convention signed in
1975, satisfactory terms were agreed .
The Lome Convention was a new agreement
signed between the extended European
Community 1 and forty-six developing countries
from Africa, the Caribbean and the Pacific,
the ACP countries. They included all of
Britain's Commonwealth partners previously in
the Commonwealth Sugar Agreement. The
Lome Convention replaced the earlier
Yaounde Convention. This had admitted the
old African colonies of France and Belgium as
associate members of the EEC , with certain
trading privileges. Mauritius, because of her
old ties with France, had become a member of
the Yaounde Convention in May 1973. She was
the first Commonwealth country to become an
associate of the EEC before Lome. Mauritius
thus had a special role in the negotiations
w liicl1 leJ lu ll1e cuudu:,iuu uf lhe sugar
protocol. The thirteen ACP sugar-producing
countries were guaranteed a market for 1.4
million tons of sugar a year at prices linked to
the prices paid within the EEC to producers of
beet sugar. Of this quota, the share of
Mauritius was 500,000 tons , the largest of any
single country by a big margin. Fiji was next
with 163,000 tons . The price of sugar on the
open market happened to be much higher than
the EEC price at the time and Britain was
permitted to pay a special price (£260 per ton)
for her share of ACP sugar, a compromise
between the EEC price of £157 per ton and the
world price of just over £300. Mauritius
believed that she had obtained a good deal and
falling world sugar prices over the following
five years proved her to be right. The Lome
Convention also gave free access to the EEC for
all manufactured products of the member
states. This was of value to Mauritius as the
factories of her Export Processing Zone began
to produce goods for export. The Lome
Convention was important above all, however,
because it provided satisfactory new terms for
the marketing of Mauritian sugar after the
expiry of the Commonwealth Sugar Agreement
in 1974.
Suggestions for revision
a) It is important to understand the main
economic and social problems that farerl
Mauritius both before and after independence.
b) You should also know what steps were
taken by the government of Mauritius to
try to solve these problems and how successful
their policies have been.
Suggestions for further work
Make a list of the reasons why, in spite of
all the efforts made to diversify the
economy , sugar has continued to dominate
it.
2 Find out about other economies which, like
that of Mauritius, are largely dependent on
one crop or one commodity. Why are most,
if not all, of these in the 'Third World' or
less developed world? They are also usually
countries which, until recently, were
colonial territories.
3 What is meant by a 'balance of payments'
problem? Why has Mauritius had such a
problem since about 1975?
Initially (J 958) the EEC had six member states: France, West Germany, Italy, Belgium, Holland and
Luxembourg . Three new members, Britain, Denmark and Eire, were admitted in 1973, extending the
membership to nine.
104
Annex 233
Jocelyn Chan Low, “The Making of the Chagos Affair: Myths and Reality” in Eviction from thE
chagos islands (S. Evers & M. Kooy eds., 2011)
Annex 233
THE MAKING OF THE CIIAGOS AFFAIR:
MYTHS AND REALITY
Jocelyn Chan Low
The making of the Chagos issue is still a major controversy in both contemporary
Mauritian historiography and political discourse.
Was there a 'deal' in 1965 between the British authorities and the
Mauritius Labour Party and allies on independence against the excision
of Chagos? Or was the Mauritian Premier, Sir Seewoosagur Ramgoolam
blackmailed into accepting partitioning and an incomplete decolonisa -
tion of Mauritian territory?
This chapter explores in depth the relationship between the decoloni -
sation of Mauritius and setting up of the BIOT through the detachment
of the Chagos archipelago from Mauritius (and the Seychelles) during
the Cold War. Making use of declassified materials now available at the
Public Records Office in the UK, it focuses on the motivations and strat -
egies of various protagonists-the US and British authorities as well as
political elites of Mauritius.
CONT ROV ERSY OVER TH E EXCISION OF C HA GOS
On 12 March 1968 Mauritius acceded to indep endence within th e
Comm onwealth under a constitution that had been deliberately manip -
ulated to avoid embarrassment to the British government of having to
declar e the Ilois (islanders), citizens of the BIOT since 1965, apatrides
(i.e lackin g a formally recognized nationality). 1 For the Mauritian political
class, grappling with ethnic tensions that flared up in deadly inter -
ethnic rioting, living in a country deep in th e thro es of an acute crisis of
underdevelopment , the Diego Garcia affair and fate of the Ilois was mat -
ter of detail .
However, th e excision of Chagos was and still is a matter of contro -
versy in both Mauritian political discourse and historiography; th e main
1 For the purpose of citizens hip the Mauri t ius co nstituti on excep tionally igno res th e
Ord er in Cou ncil of I ovember 1965.
Annex 233
62 JO CELYN CHAN LOW
reason being th at th e Constitutional Conference in 1965, which would
decid e the ultimate constitutional status of Mauritius, coincided with
the final decision to detach the islands . To what extent were th e two
issues inextricably woven or kept apart , as Anthony Greenwood, the
British Secretary of State for Coloni es, would have the House of
Commons believe at the time?
Sir John Rennie , the Brit ish governor, reported on 11 November 1965
that there was a widespread perception in Mauritius that a deal had be en
struck on the excision of Chagos against indep endence ( CO 1036/ 1253:
Rennie to Secretary of State, 15 November 1965) . This was precisely the
stand of the Parti Mauric ien Social Demo crate (PMSD) at the time. The
party resigned from the coalition government in November 1965, osten -
sibly to protest against the decision on Chagos. Jules Koenig and Gaetan
Duval, th e leaders of the PMSD, maintained th ey were not against the
use of Diego Garcia for the defence of the West, but rather that the terms
of the cession were too disadvantageous to Mauritius . Gaetan Duval, in
his public speeches at the time , as well as in his autobiography, and
before the Select Comm itt ee on the excision of Chagos maintained that
there was a close connec tion between premier Ramgoolam 's decision to
'sell Diego' and the outcome of the Constitutional Conference in favour
of genera l elections and not a referendum to decide on independence
(Select Committee 2003, 14). Given the strong opposit ion to independ -
ence in Mauritius, it was a foregone concl usion that in a cou nt ry facing
socio -economic distress the majority of the Mauritian popul ation would
have opted for association with Great Britain and the British passport it
entailed if a referendum was held to decide on that single issue. Hence
accord ing to Duval:
Les Anglais sans se prononcer catego rique ment, penchaient ou faisaien t
semblant de pencher p our la these du PMSD et on pouvait esp erer, a un
cer tain moment que ce tte proposition eta it acceptee . C'est alors que Diego
vint sur le tapis (Duval 1976, 9 1 ).2
According to Duva l on 23 September 1965, while the Mauritius
Constitutional Conference was discussing the proposition for a referen -
dum, the Chairman suspended the proceedings and invited the Mauritian
delegates to meet him and offer th eir views on the future of th e Chagos
2 Translati on: 1l1e British seemed to be in favour oft he proposa ls of th e PMSD tho ugh
they did not state it ope nly and at one poi nt it was expected that th ese proposals would
be acce pted. It was then that Diego came into the pic tu re.
Annex 233
THE MAKING OF THE CHAGOS AFFAIR 63
archipelago. The PMSD refused to attend , feeling they had no mandate
to consider any excision of part of the Mauritian territory . The meeting
was attended by delegates from other parties (the Mauritius Labour
Party, the Independent Forward Block and the Muslim Action
Committee) and official nominees. As Duval elaborates:
Ramgoo lam pos a une qu esti on pr ealable awe Anglai s: soit ils refus aient le
referendum , ou Ramgoolam refusait de negoci er la vent e de Di ego Gar cia.
Les Anglais accept erent le 'tru ce' et firent so udain ement volte face au cour s
des discussions cons tituti onelles, dis ant qu'il net ait pas d'usage dan s le
Comm onwealth (ce qui etait faux) (Ibid ., 92) .3
The controversy over excision took a new turn with the emergence of
a Marxist-inspired revolutionary party, the Mouvement Militant
Mauricien (MMM) , in 1969. The new left saw itself pitted against the
forces of imperialism and neo -colonialism , and advocated for a real
decolonisation of the country (Oodiah 1989, 13). According to the leftist
perspective, independence had been programmed since 1947 and
Ramgoolam , 'l'homme des anglais; was being groomed to safeguard
British interests. The Chagos affair was seen both as means to unmask
the neo -colonial political leadership and question the nationalist credentials
of the 'father of the nation.'
The excision of Chagos has always been a source of embarrassment
for the leadership of a Mauritius Labour Party that could claim to be the
main architect of independence but always closely aligned with Great
Britain. The leaders of the party would thus either maintain that they
were unaware of the true designs of Great Britain or that they had no
alternative given the divisions among the Mauritian delegation . It was
Chagos or independ ence but Sir Seewoosagur Ramgoolam refused the
terms 'blackmail ' or 'deal' (Select Committee 2003, 10).
Significantly, if Sir Veerasamy Ringad oo, an influential labour party
leader at the time, apologized publicly in December 1998 to the
Chagossian community for the sufferings they had endured as a result of
a decision for which they were not consulted , he insisted that the leader -
ship of the Mauritius Labour Party had no choice. Another party stalwart,
Sir Satcam Boolell, later wrote that the non -settlement of the
3 Trans latio n: Ramgoola m put th e issue to the Bri ti sh: either th ey refused th e refere nd
um or he would negoc iate on the sa le o f Diego Ga rcia. Th e Brit ish agreed to th e 'tr uce'
and su dd enly rever sed their po sitio n durin g the Co nstituti o na l ta lks, arg uin g that th e
refe rendum was not used in th e Co mm onwea lth (w hich was false).
Annex 233
64 JO CELYN CHAN LOW
Chagos issue "could have prompted the British government to send
us packing and return to the negotiating table not until we had reached
a measure of agreement among ourselves on independence" (Boolell
1996, 27). This would have created instability and delayed independence
whi le "the British would not have waited to proceed with their plan of
excision " (Ibid.).
In 1982, the Mouvement Militant Mauricien / Parti Socialiste Mauricien
(PMSD) government set up a select committee chaired by th e Minister
of Foreign Affairs, Jean Claude de l'Es trac, to investigate the circum -
stances of excision. It concluded that the majority of delegates support -
ing independence had been blackmailed into ceding Chagos against
independence , which adds further to the illegality of the action. The
select committee also underlined the non -availability in Mauritius of
relevant docum ents (Select Committee 2003, 20). Since then man y
important records have been declassified at the Public Records Office
which shed new light on the Chagos affair and its link with processes
leading to Mauritius' independence.
IND EPENDENCE IN THE MAKI NG
Declassifi ed records since mid -2000 show that the independence of
Mauritius was very slow in the making from the perspective of colonia l
authorities (Chan Low 2002b). Throughout the 1950s, for the Co lonial
Office, Mauritius was part of a group of smaller territories that could
nev er aspire to independence (Morgan 1979- 1980, 34) . Besides, in the
case of Mauritius, auth orities noted a total absence of any nationalist
movement calling for independ ence ( CO 1036/ 331: Scott to Macpherson ,
6 February 1958). In the wake of the Suez crisis in 1957, when defence
reviews led to a shift from conventiona l to nuclear defence , an audit of
the empire was made and confidential reports drafted as to the future
constitutional development of eac h colony. This is often seen as prelude
to the wind of change and acceleration of British decolonisation.
Significantly , in the case of Mauritius, it was felt that though withdrawal
would save Britain some £675,000, the colonial link had to be main -
tained, not on ly because Mauritius and dependencies provided facilities
of corn munication in the Indian Ocean and were also of int erest in con -
nection with technical , naval and air installations, but mainly because
"withdrawal wou ld lead to violent upheaval" (CO 1036/331 : Future con -
stitutional development of colonies , CO print, May 1957). For the
Annex 233
THE MAKING OF THE CHAGOS AFFAIR 65
dem ocra tisation of political structures in th e territ ory had led to a rapid
ethnici sation of politics in a multi -ethnic society, and at th e time, the
island was in th e throes of a deep, structural econom ic crisis. The
monocro p economy could no longer absorb the rapid demographic
growth caused mainly by the eradication of malari a. The population of
th e island rose from 419,185 in 1944 t o 681,619 in 1962 and 850,968
in 1972 (Chan Low 2002a).
The Franco -Maurit ian oligarchy that had held political and econo mic
hegemony over th e island for more th an a century felt thr eatened by the
political mobilization of th e Indi an and Creole masses , a process sparked
by th e rising Ind a -Mauritian and Creole intelligentsia behind the
Mauritius Labour Party and Independent Forwar d Block. Their political
in strum ent, th e PMSD would henceforth exacerbat e th e fears of 1-Iindu
hegemony (the Hindu population mak ing up about 50 percent of the
population) winning over th e Creo le and Muslim minorities against
further democratisation of politics and decolonisation ( Chan Low 2007,
49- 64).
Reports reveal that the Colonial Office was notab ly anxious that the
inter-ethn ic situation on th e island might further degenerate , and the
exampl e of Cyprus was often cited (CO 1036/516: Report by M. Profumo
on hi s visit to Mauri tius, 17-23 June 1957, n.d .).
Any inter -ethnic riotin g, durin g which the local police force would be
totally inadequate (Ibid.) , would not only jeopa rdi se the value of
Mauritius on the air route to Australia, but also potentially lead to massive
disinvestment , thereby reducing the island rapidly to a trop ical
slum. The British troops might have to int ervene to restore law and order
in the context of diplomatic compli cations, with Franc e and Indi a sidin g
with rival protagonists of French or Ind ian origins4 (CO 1036/33 1: Scott
to Macpherson , 8 Febru ary 1958). This explain s th e decision to supp ort
moderates of th e Maur itiu s Lab our Pa rt y around Ramgoo lam (CO
1036/623 : Dever ell to Macleo d, 8 January 1960) and the rather slow constitutional
advance. The wind of change would blow very timidly on the
island .
However, it was Ramgoolam him self who from 1959 onwards , und er
the influence of Chedi Jagan, Prime Mini ster of Guyana and aware of th e
weaken ing pro -empire faction within th e Briti sh conservative party,
started the campaign Mauriti an independence - an ind ependence which
• The Franco Mauri tian alw ays claim ed thei r French desce nt.
Annex 233
66 JOCELYN CHAN LOW
the British had for long considered unthinkable, not only because of the
deep ethnic divisions on the island but also due to the small size and lack
of resources available on a 'small, isolated rock in the Indian Ocean' at a
time of the Cold War.
However, following the visit of colonial official, A.R. Thomas to
Mauritius, prior to the general elections in 1963, the Colonial Office
began to review its position. In a memo on the Mauritius Consti tuti on
dated April 1963, A.R. Thomas argued that the arguments in favour of
granting independence to Mauritius were irrefutable. However, even if a
rapid withdrawal would have been advantageous to Britain by reason of
th e severe economic cr isis and rapid population growth , the thr eat of
inter -ethnic rioting meant that British auth orities stretch independence
as long as possible in order to allow Mauritius to become accustomed to
Mauritian governance themselves , under a more advanced const itution
(PRO CO 1036/1082: Note on Mauritius Constitution, A.R. Thomas,
April 1963).
As from 1963, British policy pertaining to the independence of
Mauriti us would revolve aro und 3 axes:
(i) Mauriti us would become sooner or later independent
(ii) Given the smalln ess of the territory Mauritius would inevitably
be associated with an Eastern African Block
(iii) The ethnic minorities would finally reconcile themselves to the
idea of independence of Mauritius
(PRO C01034: Cabine t, Mauritius Cons titut iona l Development ,
April 1965).
However, subseque nt events would prove that British policy was based
on the wrong premises; this was not on ly because schemes for develop -
ing an Eastern African block ran into too many obstacles, but also mainly
because of the growing inter -ethnic tensions within Mauritius itself. The
elections of 1963 and th e arrival of Gaet an Duval , a self proclaimed King
Creole on the scene, in a PMSD resolutely anti-independence, combined
with the emergence of th e All Mauritius Hind u Congress, a radical
Hindu nationalist group, severely conflicted with the British policy of
lead ing Mauritius to independence in a climate of socia l appeasement.
Hence the unwillingness of British authorities to accelerate the constitu -
tional process, despite the pressure of Ramgoolam, who was being egged
on by some African he ads of state, made Ramgoo lam perceive the very
prospect of independence with complete dejection in early 1964.
Annex 233
TH E MAK ING OF THE CHAGOS AFFA IR 67
However, th e comin g to office of th e British Labour Part y in Great
Britain , after their victory at th e general elections of October 1964, led
to th e reopenin g of th e dossier of Maur itiu s' constituti onal development.
At first, th e new Secr et ary of State for Colonies, Anth ony Greenwoo d
seemed well disp osed towards Ramgoolam and consequ ently a new
Constituti onal Conference was scheduled for Septemb er 1965. However,
declassified docum ents of th e Publi c Records Office reveal th at th e anti -
ind epend ence demonstr ation held in th e wake of Greenwoo d's visit to
Mauritiu s in March 1965, as well as the inter-e thn ic violence between
Hindu s and Creoles tha t flare d up in th e South and North of the coun try
( cf. Chan Low 2007), necess itatin g th e despatch of Briti sh troops from
Aden to maint ain publi c ord er on th e island , had a profound imp act on
th e Secretary of Stat e and th e Colonial Office. The sourc es reveal th at th e
Secret ary of State became convin ced that ind ep endence could not be
granted to Mauritiu s in th e imm ediate futur e. Ind eed, on 15 Aprill 965,
durin g a meet ing at the Colonial Office, "th e Secretary of State expressed
th e view th at he did not think that it would be pr acticable for Mauritiu s
to move to ind ependence in the near futur e" (PRO CO 1036/ 1084: Notes
of Meetin g on 15 April 1965, Colonial Office). In a memo to th e Briti sh
Cabin et, it was und erlin ed that "confusion and lastin g damage could be
caused if we were now to pe rsist with th e previous policy of edging
Mauritiu s to ind epend ence at an early date" (PRO CO 1036/1084:
Cabin et. Maur itiu s Constituti onal Developm ent, Note by th e Secretary
of State for Colonies, April 1965). If Mauritiu s became ind epend ent
und er a regim e with a stro ng Hindu pr eponderance, an attempt at a coup
d'etat by some Creole element s, perh aps close to Gaeta n Duval, could be
expected. Brit ish troops would th en have to intervene to protect the
regime, nulli fying th e notion of ind epend ence itself. As to the
Constituti onal Conference sch edul ed for Sept ember 1965, Anth ony
Greenwood st ated th at "my own opini on is th at ind ependence is not
desirable for Mauritiu s in th e near futur e. If at the conference I was able
to make this clear without produ cing imm ediate deadlock, and an
imp ossible situatio n in Mauritiu s, I should wish to do so" (Ibid.).
Following int er -ethnic riotin g between Hindu s and Creoles, the
Secretary of State expr essed pr eference for a comp romise in order to
formul at e an "association with Great Brit ain as th e long term objective
of th e constituti onal evolution of Mauritiu s" (PRO CO1036/ 1084:
Defence and Overseas Committ ee: Mauritiu s Constitut ional Developm
ent. Note by th e Secretary of State for Coloni es, May 1965). However,
th e auth or ities were well awar e of th e danger of prolonging of
Annex 233
68 JOCELYN CIIA N LOW
uncertainty over Mauritius' final constitutional status (PRO CO
1036/1084 : British Information Service to Colonial Office, 10 April
1965). They hoped that an agreement would be reached among the main
parties, all of which wanted to keep in , one way or the other, close tie s
with Great Britain (PRO CO 1036/13 70: Note on Mauritius. Enclosure.
Terrell to Kersley 8 June 1965). Yet on 24 September 1965, at the closing
of th e Constitutional Conference, the Secretary of State declared offidally
that "it was right that Mauritius should be independent and take
her plac e among the foreign states of th e world" (PRO CO 1036/1/67.
MCC. Record of Meeting held at 10.30 am on 24 September 1969) . After
necessary electora l reforms , general elections would be held, and if the
new assembly voted by simple maj or ity for independence, Mauritius
would become a sovereign state after six months of internal autonomy.
It was expected that all these proc edur es could be completed by the end
of 1966!
How to explain this drastic shift in the evaluation of Mauritius' pre -
paredness for independence? According to Anthony Greenwood, the
British decision for independence was the logical result of a discussion
held at Lancaster House in September 1965, where authorities explained
that "[ w]e conceded b ecause the overwhelming majority of the delegat es
at the Constitutional Conference came down in favour of it and because
the decision seemed to me in any case to be the right one" (PRO CO
I 036/1253 : Greenwood to Rennie , 15 December 1965). Yet as Trafford
Smith underlined on 14 February 1968, "the conference outcome was
not unanimous but a decision by Anthony Greenwood in favour of the
majority parties " (PRO CO 32/268: Ministries on file: Trafford Smith to
Terms , 14 February 1967). Indeed on 11 November 1965, the British
governor, Sir John Rennie report ed that there was a strong convict ion in
Mauritius that a deal had be en struck betwe en th e British government
and Mauritius Labour Party wherein Mauritius would be granted inde -
pend ence in exchange for the excision of Chagos from the main island.
The deal is said to have been arranged when the Mauritian Premier
Ramgoolam met the UK Prime Minister Harold Wilson (PRO CO1036/
1253: Rennie to Secretary of State, 11 November 1965).
THE GENESIS OF THE AFFAIR
An analysis of the declassified material confirms that th e BIOT was set
up as an initiative of the United States (US), for th e American armed
Annex 233
THE MAKING OF THE CHA GOS AFFAIR 69
forces lacked a port of supp ort or a military base betw een the
Mediterranean and the Pacific. The idea of using some of these 'oil
islands ; which were at the time part of the British Empire, goes back at
least to 1962 (PRO FCO 32/484/1: Chronology of events leading to
establishment of BIOT, C.C.P. Heathcote Smith, 13 December 1968).
Emerging hostilities between India and China clearly demonstrated
the necessity of having such facilities in the Indi an Ocean available to
the US, and the imminent withdrawa l of the British from Aden rein -
forced this conviction. The matter was raised in October 1962 by US
Secretary, R. Macnamara, in the course of a conversation with th e British
Minister of Defence . But it was only in 1963 tha t th e American proposals
began to take definitive shape. Right at the outset, the US insisted not
only that these island s be placed und er the direct control of Great Britain
(and hence their excision from Mauritius and the Seychelles) but also
that all inhabitants had to be removed from the islands to guard against
political pressure and ensure the security of maximum util isation .
The British authorities welcomed th e American proposal as the
'Chagos Affair' occurred during a time at whi ch Britai n was shifting its
defence policy from conventio nal to nuclear after the debacle of Suez. As
noted by M. Carver, ex-Chief of Staff of the British forces, in July 1956
the Defence and Overseas Policy Committee decided to review the
British defence strategy (Carver 1992, 43- 44). The shift to nuclear
defence, more costly but in line with NATO's policy, put budgetary equi -
librium at th e heart of th e preoccupations of the British cabinet. Hence
a wind of change would blow over the British Empire, bringing in its
wake: 'decoloni sation ' (Porter and Stockwell 1989, 36).
But why create a new colony in the Indian Ocean at a time when the
Brit ish seemed bent on getting rid of the remaining dust of an empire?
In genera l, for Britain, this was a means to reduce the costs of British
participation in th e defence of Western interests. A join t memo of th e
Foreign Office (FO), Colonial Office (CO) and Ministry of Defence
(MOD) dated 23 April 1964 underlin ed that "the cost of defenc e arrangement
in the Far East was out of proportions to the British State invest -
ment and trade in the area. Our efforts were deploy ed less in defence of
British interests than in support of the United States, the Commonwealth
and the free world . By persuading the United States to assoc iate them -
selves with Britain, by using existing strategic facilities or developing
new ones in plac e where there were no anti-co lonialist bias or better still
no inhabitant , our burden might be reduced. United States initiative in
the Indian Ocean should be welcome" (PRO FCO 32/484/1: Chronology
Annex 233
70 JOCELY CHAN LOW
of events leading to establishment of BIOT, C.C.P. Heathcote Smith,
13 December 1968).
Moreover, Britain was engaged in a defence review of its positions
East of Suez, and at the Defence and Overseas Policy Committee of
12 April 1965, the Ministry of Defence emphasized that the new military
facilities being envisaged were essential, as the facilities at Gan in
Maldives or Aden would not always remain at the disposal of the British .
If the defence review recommended the withdrawal from positions East
of Suez, an American presence would facilitate matters (PRO CAB
148/ 18 DOP C65/68 , 12 April 1965). Finally, the British hoped and
expected that the Anglo -American cooperation would be extended to
the construction of a military airfield on the island of Alda bra at the cost
of £18 million (PRO FCO 32/484/1 : Chronology of events leading to
establishment ofBIOT, C.C.P. Heathcote Smith, 13 December 1968.)
The Royal Air Force/Ministry of Defence Engineering had already
carried out a joint survey of Aldabra in 1964 (Ibid.) The idea of using
Aldabra as a staging bas e had been proposed during the time when
political instability in the Middle East and East Africa threatened 'overflying
rights' while the independence of the Maldives , scheduled for
1965, made the facilities at Gan useless .
On 27 February 1964, official talks began in London between repre -
sentatives of the State Department and British government. An agree -
ment was finally reached where in a joint survey of some of the islands
would be carried out in order to evaluate their potential for providing
defence needs , and to determine the feasibility of relocating inhabitants
and relat ed necessary administrative arrangements . In addition, the cost
of constructing and maintaining the facilities for joint utilisation by the
US and Great Britain would have to be borne by the US. Finally, Britain
would provide land and security of tenure by detaching islands and plac -
ing them under direct British administration. The UK would also be
responsible for payments to Mauritius and the Seychelles, and to labourers
and displaced inhabitants (Ibid .).
Ram goo lam was informed of the matter on 29 June 1964 by the British
governor. According to Heathcote Smith, "Mauritius governor on
instruction consults? Premier and finds him favourably disposed to pro -
vision of facilities but with reservation as to detachment" (PRO FCO
32/484/ 1: Chronology of events leading to establishment ofBIOT, C.C. P.
Heathcote Smith, 13 December 1968). Ramgoolam expressed preference
for long term lease and rights to benefit from any minerals which might
be found, having no objection to the survey (Ibid.). On 13 July 1964,
Annex 233
THE MAKING OF THE CHAGOS AFFAIR 71
Sir John Rennie did inform the Mauritian Council of Ministers of the
survey, though made no reference to the detachment of the islands.
The report of the survey conducted from mid July to mid August 1964
by a joint US/UK team in the Chagos archipelago, Agalega, Desroches,
Coetivy, and Farquhar island, was signed by Robert Newton. It included,
inter alia:
• That there were no insurmountable obstacles to the 'removal,
resettlement and redeployment of the civil population of any island
required for military purpose ' (PRO CO 1036/1332: Report by
R. Newton, 23 September, 1964).
• That these islands were much more oriented socially towards the
Seychelles than Mauritius.
Indeed the lease of these islands had been brought back by the 'Chagos -
Agalega Company; to which Paul Moulinie was a principal shareholder.
The latter was also a member of the Executive Council of the Seychelles.
Many Mauritians living at the time in Diego Garcia complained about
what they considered as the growing "Seychelloisation" of the island.
Accordjng to Robert Newton, the greatest part of the labour force at
Diego Garcia was indeed made up of Seychellois. It is noteworthy that
Robert Newton paid very little attention to the Chagossians, th e popula -
tion born in the islands, whom he estimated to comprise around one
hundred individuals (Ibid.). However , he emphasised the need for strict
administrative controls over these islands which had been "misman -
aged" in the past and recommended that administrative control be
transferred to a commissioner falling under the jurisdiction of th e governor
of the Seychelles . After the submission of the report , the US would
exert constant pressure on the British authorities for th e detachment of
these islands. At the time, the US authorities stressed the urgent need for
setting up communication facilities as well as 'austere naval facilities' at
Diego Garcia (PRO FCO 32/484/1: Chronology of events leading to
establishment ofBIOT, C.C.P. Heathcote Smith, 13 December 1968).
For the British Ministry of Defence and the Foreign Office, detaching
these islands from Mauritius and the Seychelles would not pose any
legal problem whatsoever . Excision could be carried out through an
amendment to Section 90 of the 1964 Mauritius Constitution made reference
to these islands by name and afterwards by a modification of the
Mauritian Constitutional Order of 1957 (PRO CO 1036/ 133: Trafford
Smith to Anderson, 13 July 1965). Subsequently, a new territory would
Annex 233
72 JO CELY CHA N LOW
be created by an Order in Council -a piece oflegislation formally made
in the name of th e Queen by the Privy Council - along the model of the
British Antarctica Territory of 1962 (Ibid.).
Declassified documents furth er reveal that, through out the negotia -
tions, the British insisted on their inalienabl e right to detach thes e
islands from Mauritius and the Seychelles as a preliminary to their
merger with the BIOT, without having to pay any compensation whatso -
ever to Mauritius and the Seychelles. Many arguments were put forward
to justify their stance . Firstly, the great distance between Mauritius and
the Chagos archipelago; secondly , weak administrative link s, low par -
ticipati on of these islands in the Mauritian economy; and finally, the
absence of 'ethnic links ' and, above all, a redefinition of the notio n of
'dependency' itself.
In an important docum ent dated 20 December 1968, Branley of th e
Colonial Office stated that tho se who claimed the excision of Chagos
from Mauritius to be an act of dismemberment of a colonial territory
showed complete disregard for the history and colonial practice of Great
Britain and France. Had France not detached Juan de Nova and Tromclin
as a prelude to granting independence to Madagascar? For Branley, these
small territories, which were placed under the tutelage of a larger colony
having th e means of an efficient administration, did not really becom e
part and parc el of the latter . Indeed many of these territories chang ed
administrative tutelage over time for convenience sake. Citing examples ,
Branley mentioned the cases of Sierra Leone, th e Gold Coast, Bechua -
naland, th e Maldives, and some islands of the Carr ibean. In th e case of
the Indian Ocean, he cited Aldabra and Providence, which were detach ed
in 1908, and Coetivy and Farquhar, detached in 1921 from Mauritius
and subsequently reattached to th e Seychelles (PRO FCO 34/482:
Branley to Jerrom , 20 December 1968). The absence of substantive links,
according to Branley, was evidenced by the fact that administrative
control was limited to an occasional visit by a magistr ate from 1845
and by th e fact that th e laws of the colony could not be applied to
the se small territ or ies in the absence of any special proclamation to th at
effect (Ibid.).
Hence, when Harold Wilson insisted on 23 September 1965 that Great
Britain was ready to go forward with a unilateral excision of Chagos
without the approval of the Mauritian government, he was far from
bluffing . Indeed, th e matter was raised at a meeting of the Defence and
Overseas Policy Committ ee on 30 August 1965 (PRO CAB 148/18 DOP
37th Meeting, 30 August 1965), and again on 16 September 1965 without
Annex 233
THE MAKING OF THE CHAGOS AFFA IR 73
any formal decis ion being reached; th e British minist ers pr esent had
been reass ur ed by the Secretary of State that Anthony Greenwood, th e
colonial official, would solve the matter amicabl y with the Mauritian
delegation before 23 September 1965. It is tru e that at the time of decolonisation
both th e UN and th e Comm onwealth h ad passed res oluti ons
stron gly condemning any attem pt at dismem b erme nt of a colonial terri -
tory befo re its access ion to ind epe nd ence. Furth ermor e, colonial pr actices
were scrutini sed at the UN's Committ ee of 24, hence the more
flexible attitud e of the Colonia l Office and it s Secretary of State, Anthony
Gree nwoo d. The latter maintained throughout that it was out of question
to proceed with th e crea tion of the BIOT with out th e agreeme nt of
the Mauritius and Seychell ois governments (CO 1036/1333: Notes of
Meeting at Treasury, 19 September 1965). Ind eed in th e case of Mauritius,
the documents reveal that the Colon ial Office feare d that detaching
Chagos would make an alr eady precarious socio -political situ ati on more
un settled, h ence the extr eme pr ecauti ons to n ot "rock th e boat" th rough
the 'Chagos Affair: For example, the idea of a joint survey in 1963 was
postponed because of general elec tions scheduled in Mauritius for th at
yea r (PRO FCO 32/484/1: Chron ology of eve nt s leadi ng t o esta bli shment
of BIOT, C.C. P. Heathcote Smith, 13 December 1968.)
For th e Colonial Office , American pressure for the detachm ent of th e
Cha gos archipelago came at the wrong tim e. The coming t o office of the
1964 British Labour Party in Great Britain had th e consequence of reo -
pening th e doss ier on re -developing the constitution of Mauritius, and
at th e same time ; simult an eously, American proposals regard in g the
BIOT were b eing finalised.
'BLA CKMAIL, D EAL A D INDEPENDENCE'
Paradoxically, reco rds at the Public Records Office reveal th at , at first,
th e Coloni al Office wished t o keep th e issues of constitutional development
and th e detachm ent of Cha gos compl etel y sepa rate (PRO
CAB/48/ 18, 12 April 1965). For th e Colo ni al Office , the priority was to
reach a comp ro mi se on the final stat us of Mauritiu s amo ng th e va rious
protagonists . But raisin g th e issue of detachment of Chagos could lead
to th e failur e of the Cons tituti onal Co nference, each protagonist using it
as a lever for bargaining. Worse, the Colonial Office feare d th at it might
lead to th e break up of th e coaliti on governme nt , whose forma tion in
ear ly 1964 had been so labori ous as to necess itate th e direct inter ve ntion
Annex 233
74 JOCELYN CHAN LOW
of the Secretary of State for Colonies (Ibid.). This explains why, right
from the outset, the Colonial Office was strongly against any amalgam
between the Constitutional Conference scheduled for September 1965
and the debate on the excision of the Chagos archipelago (PRO
CAB/48/18 , 12 April 1965). This was despite the fact that the Ministry of
Defence and Foreign Office wanted to raise the matter at the
Constitutional Conference itself in order to benefit from the divisions
within the Mauritian delegation (PRO CO 1036/1084: Trafford Smith to
Poynton, 3 May 1965).
Meanwhile, on 12 April 1965 the British Cabinet approved the
American proposals but came out in favour of an American contribu -
tion to the cost of detaching the islands - which included the cost of
resettlement for inhabitants and buying back the lease from the proprietors
(Ibid.). On 24 June 1965, after several talks, the US government
finally decided to contribute up to half of the cost of detaching the
islands. However, in order to bypass Congress, it was agreed that this
contrib uti on would be effected secret ly, through a trad e off on th e order
of a £14 million contribution from the British contribution to the
research and development programme of the Polaris Missiles (PRO
FCO 32/484/1: Chronology of events leading to establishment ofBIOT,
C.C.P. Heathcote Smith, 13 December 1968).
Subsequent ly the British authorities tried to obtain the agreement of
the Mauritian and Seychellois governments . Already at a meeting of the
Defence and Overseas Policy Committee held on 2 June 1965, it was felt
that tactically it would be more appropriate to negotiate with the
Mauritian government well before the opening of the Constitutional
Conference i.e. before the adve rse party had consolidated its position
(PRO CAB/48/18 DOP 28th Meeting, 2 June 1965).
While the Seychelles government responded favourably, on 3 July the
Mauritius Counci l of Ministers positioned itself against the detachment
of Chagos though in favour of a long term lease. The Ministers insisted
on guarantees concerning fishing, oil and mineral rights, meteorological,
navigation and air facilities, as well as a higher quota for Mauritian
sugar on the US market. The compensation of £3 million was regarded
as grossly inadequate. In addition, the Mauritian Ministers called for a
defence treaty with Great Britain that would cover both internal and
external security (PRO FCO 32/484 / 1: Chrono logy of Events, op. cit.).
Ramgoolam had been badly shaken by the January 1964 coup d'etat in
Zanzibar and by the mutinies in Tanzania, Uganda and Kenya (PRO
FCO 32/317: Rennie to Galworthy, 5 January 1968). He feared an
Annex 233
THE MAKING OF THE CHAGOS AFFAIR 75
attempted coup d'etat by elements close to the Parti Mauricien Social
Democrate (PMSD) as independence drew near. This explains why he
was desperately looking for a defence treaty that would allow British
troops to intervene in Mauritius even without consulting the Mauritian
government (PRO CO1036/1150: Trafford Smith to Rennie, 17 August
1965). His allies at the Muslim Committee of Action (led by R. Mohamed)
and the Independent Forward Block of S. Bissoondoyal were likewise in
favour of maintaining British military obligati ons in internal matters in
Mauritius.
For the Colonial Office, a defence treaty covering internal security
would be a major guarantee for the ethnic minorities and as such
could greatly help advance talks at the Constitutional Conference. But
the Ministry of Defence and Foreign Office were resolutely hostile to
any new responsibilities that would not only constitute an unaccepta -
ble innovation in British foreign policy but might also involve British
soldiers in inter -ethnic conflicts in Mauritius . However, the Colonial
Office would spare no efforts to have such a treaty accepted by their colleagues
at the Ministry of Defence and Fore ign Office as a trade off for
the excision of Chagos. At a meeting of the Defence and Overseas Policy
Committee held on 30 August 1965, Harold Wilson finally agreed that
Great Britain was sympathetic to such a defence treaty with Mauritius
(PRO CAB 148/ 18 DOP, 37th Meeting, 30 August 1965). A joint
Memorandum was drawn between the Ministry Of Defence and Foreign
Office on 26 August 1965 holding that such a treaty could be considered
ifit was the price to pay for the detachment of Chagos (PRO CAB 148/22
COPD (65): Memo by Secretaries of State for Defence and Foreign
Affairs, 26 August 1965).
At the same meeting, the Secretary of State for the Foreign Office,
Michael Stewart, stated that though it would be preferable that detach -
ment be carried out with the full agreement of the Mauritian govern -
ment, if this proved impossible, the alternative wou ld be to proceed
unilaterally through an Order in Council. According to him , such a pro -
cedure was perfectly legal as these islands had been attached to Mauritius
purely for administra tive convenience and there were no historical link
between the islands , situated some 1800 kilometres (1118 miles) away
from each other. However, Ant hony Greenwood expressed his opposition
to such proceedings which , according to him , could only lead to the
failure of the Constitutional Conference.
The Conference opened on 7 September 1965 at Lancaster House .
The agenda comprised safeguards to the rights of ethni c minorities
Annex 233
76 JOCELYN CHAN LOW
(an appropriate electoral system, consti tutional guarantees, the Muslim
Personal Law, the future of the confessional schools) and addressed:
• The final status of Mauritius (Independence or Free Association)
• The type of popu lar consultation to decide the matter (the Parti
Mauricien Social Democrate called for a referendum while the
Mauritius Labour Party and the Independent Forward Block were
in favour of general elections.)
Officially, the Colonial Office would act as a broker but at the same time
work for a compromise without excluding any alternative. For his part,
Anthony Greenwood did not want to jeopardise the success of the conference
by forcing the issue Chagos. However, on 16 September 1965,
his colleagues at the Defence and Overseas Policy Committee reminded
him firmly of the urgent need to reach a satisfac tory solution to the
Chagos issue, both in the interest of British Defence and in order to
maintain good relations with the US. The agreement on Chagos was to
be reached at the latest before the end of the Constitutional Conference,
which was expected to take place on the 21st September (PRO CAB
48/18 DOP, 39th Meeting, 16 September 1965). The Defence and
Overseas Policy Committee decided to wait unti l then before making
any decision on the unilateral detachment of Chagos through an Order
in Council . Time was pressing, as official Anglo -American discussions
were scheduled for the 23- 24 September. Yet neither the issue of detach -
ment nor the Constitutional Conference were moving forward smoothly.
At Lancaster House, as no consensus could be reached on electoral
reforms, it was finally decided to leave matters to an independent commission
whose report would be ratified by the various parties after dis -
cussions . But the Parti Mauricien Social Democrate resolutely maintained
both its opposition to independence and its demand for a referendum to
decide on a formula of free association with Great Britain. Finally, the
PMSD decided to walk out of the conference on 23 September 1965 in
protest of the British refusal to consider its proposal of a referendum . As
to the dossier of detachment , the 15 September meeting between the
Mauritian ministers and the representative at the American embassy
had clearly demonstrated the insurmountable obstacles to any commer -
cial concessions or facilities related to immigration from the US (PRO
CO 1036/1255: Note of a meeting held at the Embassy of the USA,
London 11.30 am on 15 September 1965).
Annex 233
THE MAKIN G OF THE CHAGOS AFFAIR 77
However, at a meeting held at th e Colonial Office on 20 September
1965, Ramgoolam and the Mauritian mini sters reaffirmed their proposal
for commercial concessions from th e US; alternativ ely, th ey main -
tained the prop osal of a 99 year lease at a rate of £7 million yearly for the
first 20 years and £2 million subsequently. As CCP Heathcote noted ,
"at that meeting Ramgoolam said firmly that Mauriti an governm ent was
not interested in excision and would stand out for 99 years lease" (PRO
FCO 32/484/1 : Chron ology of events leadi ng to establi shment of BIOT,
C.C.P. Heathcote Smith, 13 December 1968).
Yet thr ee days later, on th e 23 September at a meeting held at 2.30 pm,
S. Ramgoolam and the Mauriti an ministers ( with the exception of th e
PMSD, absent) agreed to the offer of £3 million as compensation for the
detachment of Chagos (PRO 1036/ 1253: Record of a Meeting held in
Lancaster House at 2.30 pm on Thursday 23 September 1965). It is tru e
that among th e conditions which were attach ed (following arduous
negotiations by Ramgoolam and Moham ed with the Colonial Office
over th e notes of meetin g) th ere remained th e possibility of th e retroc ession
of Cha gos to Mauritius in the event that Britain and the US no
longer had need of the islands (though the initiative would only come
from Britain) . There were also assurance s for "oil, fishin g and mineral
rights , as well as air and navigation rights " (Ibid .). Moreover , Britain
pledg ed itself to help in the discus sion with th e American s over com -
mercial concessions and agreed to favourably consid er a defence tr eaty
covering internal security in th e event Mauritius opted for ind epen dence
(Ibid.).
Accordin g to Sir John Rennie, if Ramgoolam finally surr endered
Diego Garcia it was because he had become convinced (or th e British
had man oeuvred brilliantl y to make him convinced) that if he proved
conciliatory on thi s issue th e British governm ent would finally decide in
favour of Mauritius' ind epend ence at th e close of th e Consti tuti onal
Conference (PRO FCO 32/3 17: Rennie to Galworth y, 5 Januar y 1968).
"The plenary sessions that had been held without interruption from
7 to 21 September stopped convenin g. The agenda had been covered for
th e essentials , yet th e British kept the suspense as to th e issue of the
conference until 24 September. On the morning of 23 September,
S. Ramgoolam met Haro ld Wilson at Downin g Street. The British Prim e
Minister , after deploring that the Mauritians were raising th e stakes too
high, stated th at "th ere was a numb er of possibilities: th e Premier
(Ramgoolam) and his colleagues could return to Mauritiu s eith er with
Annex 233
78 JOCELYN CHA N LOW
independence or without it. On the Defence part, Diego Garcia could
either be detached by Order in Council or with the agreement of the
Premier and his colleagues. The best of all might be independence and
detachment by agreement, although he could not of course commit the
colonial secretary at the point" (PRO CO 1036/253: Record of
Conversation between Prime Minister and the Premier of Mauritius Sir
Seewoosagur Ramgoolam at 10, Downing Street at 10.00 on Thursday
23 September 1965). Ramgoolam understood perfectly what was at
stake : "Sir Seewoosagur Ramgoolam said that he was convinced that the
question of Diego Garcia was a matter of detail. There was no difficulty
in principle" (Ibid).
At 11.15, Sir John Rennie sent a 'top secret' telegram to Tom Vickers,
the Officer in charge in Mauritius , announcing that in all probability the
conference would come out in favour of independence after the next
general elections if the population so wished. The Colonial Office
expected a reply as to probable reactions in Mauritius to such an out -
come and the repercussions on internal security (PRO CO 1036/1084:
Rennie for OAG, 23 September 1965).
During a meeting held at 2.30 pm the same day, the Mauritian minis -
ters , in absence of representatives of the Parti Mauricien Social
Democrate , gave their agreement to detach Chagos from Mauritius ,
later reiterating their decision at the meeting of the Defence and Overseas
Policy Committees held at 4.00 pm. Anthony Greenwood communi -
cated the good news to his colleagues of the cabinet and announc ed that
he proposed to end the Constitutional Conference the next day; he chose
to do so in a statement indicating that it was the wish of Great Britain
that Mauritius become independent within the Commonwealth but that
a defence treaty would be signed with the new state covering internal
defence. The British Cabinet expressed its total satisfaction with the
accomplishments of the Secretary of State (PRO CAB/48/6 DOP (65),
40th Meeting, Thursday 23 September 1965), and on the next day, at
10.30 am, Anthony Greenwood announced the British decision to the
Mauritian delegation (in absence of PMSD delegates). A direct referen -
dum on independence was ruled out though Mauritians were invited to
decide upon independence at the next general elections. After the
Mauritian Council of Ministers (presided by a British Governor) had
formally agreed to the detachment of Chagos on 5 November 1965, the
BIOT was created by an Order in Council on 8 November 1965.
A few days later, on 11 November 1965, Sir John Rennie reported to
the Colonial Office the strong conviction in Mauritius about a deal for
independence in exchange for Diego Garcia (PRO CO1036/1253:
Annex 233
TH E MAKI NG OF TH E CHA GOS AFFAIR 79
Renni e to Secretary of Stat e, 11 Novemb er 1965). This was confirm ed
later by th e Colonial Office itself. In early 1967, th e Fore ign Office start ed
new n egoti ations over Briti sh entry in th e Europ ean Comm on Market.
This would have been disastrous for th e market ing of Mau ritian Sugar
(as th e Comm onwealth Sugar Agreement would have to be abandon ed
as on e of th e condit ions of ent ry) and th e Mini ster of State for Colonies
enquir ed at th e Colonial Office wheth er Brit ain could tak e back th e
promi se of ind epend ence. In a 'Minut e on File: T. Z. Terr y str essed th at
thi s was imp ossible: "I am told th at it was a cabin et decision th at thi s
und ertakin g should be given and that in addi t ion, Her Maje sty's decision
to come out publicly in favour of independ ence for Mauritiu s was
part of th e deal between our pre sent Prime Minister and th e Premi er
of Mauritius regardin g the detachm ent of cert ain Mauriti an depend encies
for BIOT " (PRO CO 1036/2 68: Minut e on file: Terry to Fairclough,
14 Februa ry 1967).
CONC LUSIO N
A stud y of th e record s pert ainin g to the making of th e Chagos affair
reveals the close lin ks betwe en the Briti sh decision to publicl y declar e
itself in favour of the ind epend ence of multi -ethni c Mauritiu sbedevill
ed by int er-ethnic ten sions aggravated by an acut e cri sis of
und erd evelopm ent -a nd th e excision of th e Chagos archip elago. The
Briti sh auth oriti es skilfully and deceitfull y man oeuvred to blackmail Sir
Seewoos agur Ramgoolam- h eadin g a divid ed Mauriti an delegation and
with allies lukewarm in th eir supp ort for ind ependen ce- int o acceptin g
th e illegal dism emb erm ent of Mauri tian territ ory pri or to ind epe nd -
ence. These docum ent s also reveal th at th e Chagoss ian s were never consult
ed . Ind eed, at th e tim e, th ey did not even have th e right to vot e, as
th e outer island s (includin g Rodrigues) were left out by th e delimi tation
of elector al bound ari es from th e 1959 and 1963 gener al elections. The
outer island s having been so neglected and removed from main str eam
politi cs, it is not sur prising th at th eir fate was considered a matt er of
detail by both th e British author iti es and the Mauritian po liti cal elites of
th e tim e. Ind epend ence, th e special relat ionshi p between UK and US
(within th e cont ext of th e Cold War), and th e defence of Western interest
s were deemed high stakes th at co uld overr ide th e basic hum an
right s of a min ority gro up : th e Chagoss ians. Jn th e game th at was bein g
played, who would care for a small, neglected and politic ally depr ived
popul ation ?
Annex 234
John Tasioulas, “Custom, jus cogens, and human rights”, forthcoming in custom’s futurE:
intErnational law in a changing world (20 Mar. 2015)
Annex 234
Electronic copy available at: http://ssrn.com/abstract=2581763
1
(3/20/15)
Custom, jus cogens, and human rights
JOHN TASIOULAS*
[Book chapter for CUSTOM’S FUTURE: INTERNATIONAL LAW IN A CHANGING
WORLD (Curtis A. Bradley ed., forthcoming Cambridge University Press)]
Immanuel Kant notoriously declared that it was a “scandal of philosophy” that
it had not yet furnished us with a convincing proof of the existence of an external
world. International lawyers have their equivalent occupational scandal: the failure to
achieve clarity or consensus on the nature of customary international law. Custom,
after all, is arguably the most fundamental source of international law, at least insofar
as treaty law is itself embedded within a customary framework. This framework
includes various principles bearing on the interpretation of treaties and arguably also
the grundnorm of treaty law, pacta sunt servanda. Indeed, the international lawyer’s
scandal goes deeper. All of us, philosophers or not, standardly proceed on the basis
that a world external to our senses exists. By contrast, assertions about customary
international law are largely confined to international lawyers, although their being
taken seriously occasionally has real practical consequences for others.
It is not enough to respond to this state of affairs with a knee-jerk pragmatism:
the shop-worn thesis that customary international law works well enough “in
practice” and so requires no explication “in theory.” After all, this simply presupposes
that we already know what customary international law is, and merely shifts attention
to whether it “works.” In any case, it is doubtful that anything can satisfactorily
“work” in a discursive and legitimacy-claiming practice if its very nature remains
stubbornly opaque or conceptually problematic. Equally, we should not be put off by
the skeptical dogma that all of our moral-political ideas are infected with
contradictions at their very core, so that the search for an explanation that makes good
sense of them is doomed from the outset. Even the alluring consolations of intellectual
resignation need to be earned by argument rather than mere fiat.
In this chapter, by drawing on, clarifying, and extending previous work, I try
to sketch the argument that the pragmatists and skeptics take to be either unnecessary
or impossible. I offer a moral judgment-based account (MJA) of customary
international law, one that challenges the orthodox idea that there is a deep connection
between custom and consent, and I mobilize the ensuing account in relation to human
rights norms in particular.
The necessity for moral judgment
* Chair and Director, Yeoh Tiong Lay Centre for Politics, Philosophy, and Law, The Dickson
Poon School of Law, King’s College London; Lisa Goldberg Fellow, Radcliffe Institute for Advanced
Study, Harvard University. I am grateful to Curtis Bradley, Gerald Neuman, and Guglielmo Verdirame
for helpful comments on an earlier draft of this paper.
Annex 234
Electronic copy available at: http://ssrn.com/abstract=2581763
2
There is a perfectly intelligible sense in which all law, including customary
international law, derives from what might loosely be called “practice”. It is the
product of what states and other agents actually do or refrain from doing, where this
importantly includes the performance of speech-acts that give expression to their
objectives and beliefs. To this extent, opinio juris, as a factor in the genesis of
customary international law, should not be contrasted with “practice,” as if it
denominated some occult phenomenon unfolding behind the scenes of ordinary
human activity. This is not just for the quite general metaphysical reason that, as
Wittgenstein put it, “an ‘inner process’ stands in need of outward criteria.” It follows
more directly from the public and intentional— the positive or posited—character of
legislative activity. Law is paradigmatically created through publicly accessible acts
that are undertaken precisely as law-creating. Hence, all law is practice-based in this
wide sense.
Nonetheless, in seeking to make good sense of the orthodox understanding of
customary international law reflected in Article 38(1) of the Statute of the
International Court of Justice—according to which two elements, general state
practice and opinio juris, bear on its formation—we can regard both ingredients as
forms of practice, or two aspects under which practice may be interpreted. In
determining whether a norm exists as a matter of international custom, we begin by
giving its putative content (for example, about the length of the territorial sea, the
requirements of diplomatic protection, the immunity of sovereign states from certain
forms of intervention, and so on). This content will specify some pattern of (state)
conduct1 to which a normative modality (obligatory, impermissible, permissible, etc.)
is assigned under certain conditions. In order to determine whether this so far merely
notional legal norm, call it X, exists as a matter of customary international law, we
must address the following two questions:2
(1) State practice: Is there evidence that states generally conform their
conduct to X, engaging in behavior consistent with the normative
content of X? For example, if X is an obligation-imposing norm, is it
the case that states generally do, or refrain from doing, what X enjoins
them to do, or refrain from doing?
(2) Opinio juris: Is there evidence that states adopt one or other of the
following attitudes to X:
[OJ1] the creation of an international legal rule according to
which the specified pattern of behavior has the normative significance
attached to it by X is morally justified, and such a legal rule should be
created by means of a process that involves general state practice
consistent with X and a moral endorsement by states of X’s
establishment as a legal rule, or
[OJ2] X is already a norm of customary international law, i.e. it
exists as a matter of general state practice and opinio juris (i.e. OJ1),
1 I use “conduct” here in a broad sense to encompass both acts and omissions.
2 For the sake of convenience, I consider only the activities of states as bearing on the practice
and opinio juris relevant to custom. I later revisit the issue as to opinio juris.
Annex 234
3
and the status of X as a legal norm (or compliance with it as such) is
morally justified.
In short, opinio juris involves the judgment that a norm is already part of customary
international law and that (compliance with) it is morally justified (OJ2); or that, as a
moral matter, it should be established as law through the process of general state
practice and opinio juris (OJ1); or else some mixture of these two attitudes.
Let me elaborate on the elements of this understanding of general state
practice and opinio juris. The first thing to notice is that it involves a narrower
interpretation of “state practice” than that which is sometimes deployed. On the view
outlined above, state practice consists in the behavior of states insofar as it is in
conformity with the putative norm. A positive showing of state practice depends on
evidence of general state conformity with what the supposed norm stipulates as
obligatory, impermissible, permissible, etc. Positive state practice, therefore, is
redeemable in the hard currency of actual conformity to the norm. Forms of state
behavior that evidence some kind of belief regarding the existence or otherwise of the
norm, but which do not relate to conformity with it, do not fall within the category of
state practice. Instead, they will bear on the separate matter of opinio juris.
One advantage of this way of distinguishing the two elements of custom is that
it marks the distinctive significance of whether states actually generally conform to a
supposed norm as opposed to other things they may do in relation to that norm, such
as expressing their approval of it. This is broadly the significance of putting your
money where your mouth is: of actually conforming (“state practice”) to the (putative)
legal norm that you avow (“opinio juris”) to be morally justified. It therefore avoids
the unorthodox claim that state practice can amount to nothing more than evidence of
opinio juris.3 Another advantage is that it prevents undue “double counting,” whereby
systematically one and the same course of conduct, for example, diplomatic
correspondence, votes on resolutions by international organizations, etc. is treated as
both state practice and opinio juris.4 Nonetheless, this framing of the distinction
allows that state practice, interpreted against a suitable background, can be evidence
of opinio juris.5 But it avoids the wholesale conflation of the two ingredients entailed
by an expansive interpretation of state practice.
Turn now to the disjunctive interpretation of opinio juris. It is not fanciful to
say that this interpretation is already literally foreshadowed by its full Latin tag:
3 This is the view advanced in BRIAN D. LEPARD, CUSTOMARY INTERNATIONAL LAW: A NEW
THEORY WITH PRACTICAL APPLICATIONS ch. 8 (2010).
4 The failure to avoid double-counting mars the analysis in Michael Wood, Special
Rapporteur, International Law Commission, SECOND REPORT ON IDENTIFICATION OF CUSTOMARY
INTERNATIONAL LAW 9-11 (May 2014), at http://legal.un.org/ilc/sessions/66/a_cn4_672(advance).pdf.
On the one hand, the report affirms the necessity for both elements, general practice and opinio juris
(or, “acceptance as law”) in order for a customary international legal norm to emerge (Draft conclusion
3). On the other hand, it gives an account of general practice that seems to subsume, as a component
part, opinio juris, at least insofar as the manifestations of the former seem to encompass most, if not all,
of those of the latter (compare Draft conclusion 7(2) with Draft conclusion 11(2)). The double-counting
entailed by the second aspect of the Report largely undercuts its insistence on the necessity for the
presence of both state practice and opinio juris in the case of each norm of customary international law.
5 See, e.g., Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.),
I.C.J. Rep. 246, 299, para. 111 (ICJ Oct. 12, 1984) (Judgment).
Annex 234
4
opinio juris sive necessitatis (an opinion of law or necessity). Firstly, what is at issue
is an opinion or judgment about what is or ought to be the case, rather than the mere
expression of a desire or a preference. Second, the content of that judgment relates
either to what the law is and whether, as a moral matter, it may be complied with or
else what it ought to be (and, on either alternative, a moral “necessity”). Let me
expand on both of these points.
What is central to both variants of opinio juris, OJ1 and OJ2, is an imputed
attitude at the core of which is a judgment that a norm is, or would be if established,
morally justified as a norm of customary international law. The judgment is one about
moral justification because only this species of justification is adequate to the task of
upholding the claim to legitimacy inherent in law, i.e., its claim to impose obligations
of obedience on its purported subjects.6 Only a justification grounded in moral
standards, as opposed to mere considerations of self-interest, for example, can
vindicate the claim of the law to be morally binding on its subjects. This
understanding of opinio juris, as reflecting a moral judgment, should be contrasted
with two other understandings, the one unduly broad, the other unduly narrow.
The overly broad view characterizes opinio juris in terms of state preferences.7
Preferences are a subject’s positive attitudes towards some particular outcome, which
typically reflect what the subject takes to be reasons. These reasons may differ greatly
in kind, from reasons of pleasure or self-interest, at one extreme, to moral reasons at
the other. But a preference, thus broadly understood, does not necessarily purport to
identify a consideration that is even in principle capable of justifying the claim to
legitimacy (moral bindingness) inherent in law. Notice, in addition, that we can often
intelligibly speak of a discrepancy between what a state would prefer the law to be
and what it judges that it should be as a moral matter. Its self-interested preference
(e.g., as a powerful, or land-locked, or culturally homogeneous state) may point in one
direction, but its assessment of the moral merits regarding the content of international
law may point in the opposite direction. But it is only the latter that counts as opinio
juris. All this is compatible with two observations. First, that the moral judgments
made by states will often be skewed by considerations of self-interest or mere
preference. This is simply a pitfall to which all moral judgment is prey. Second, that
even when not so skewed, the relevant moral judgment may be one to the effect that
permitting states to pursue their preferences or self-interest in various ways is
justifiable. In other words, state preferences do have a potentially substantial role to
play in the formation of customary international law, but only as regulated by
background moral judgments regarding their suitability to do so. It is these
background judgments, not the preferences, that are the core of opinio juris.
If the preference-based interpretation of opinio juris fails in virtue of being
overly broad, another much more familiar interpretation is unduly narrow. The latter
usually takes opinio juris to be an attitude accompanying state practice, one according
to which the state acts out of a “sense of obligation” when engaging in the relevant
pattern of conduct. So, for example, in the first ICJ case to invoke the notion of opinio
juris, it is incorrectly described as a matter of states feeling “legally compelled to …
[perform the relevant act] by reason of a rule of customary international law obliging
6 Joseph Raz, Hart on Moral Rights and Legal Duties, 4 OXFORD J. LEG. STUD. 123 (1984).
7 There are intimations of this view in Curtis A. Bradley, Customary International Law
Adjudication as Common Law Adjudication (in this volume).
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5
them to do so.”8 And most recently, in the Second Report on Identification of
Customary International Law, the International Law Commission’s Special
Rapporteur glossed opinio juris as a matter of general practice being “accepted as
law”. This, in turn, was understood to mean that “the practice in question must be
accompanied by a sense of legal obligation.”9 This is an apt characterization of opinio
juris for the specific case in which a state is complying with an already existing
international norm that it takes to impose an obligation on itself. But it fails to
embrace two other cases. First, if the obligation is understood as an already existing
legal obligation, this analysis does not properly capture opinio juris that gives rise to a
new norm (i.e., the type covered by OJ1). Second, even in the case of an existing
customary norm, it does not cover situations where the norm is thought by the state to
confer a right or a liberty upon it to engage in the specified pattern of conduct.10 The
characterization of opinio juris I have given, by contrast, accommodates all of these
normative modalities. What it requires is that the relevant norm, whether it is taken by
the state to impose a duty or confer a right or a liberty on it, is judged by the state to
be morally justified in doing so. It therefore does not clamp opinio juris to one
specific normative modality, that of obligation, even though many norms of
customary international law will of course be obligation-imposing.
Now, an advantage of this disjunctive specification of opinio juris – as OJ1 or
OJ2 - is that it defuses the so-called “paradox of custom,” according to which the
creation of new customary international law is inescapably premised on error or
deception on the part of states. 11 Specifically, it is premised on the mistaken belief, or
pretended mistaken belief, that a norm that is not already part of customary
international law actually possesses this status. Although some question the practical
significance of this paradox, I have argued elsewhere that it tarnishes the legitimacy
of customary international law. This is because there is a transparency constraint on
any form of law-making to the effect that its successful operation must not necessarily
depend on mistaken beliefs (or pretended such beliefs) on the part of the agents that
create the law as to what it is they are doing. Political legitimacy demands that
exercises of political power, including acts of law-making, must be publicly
assessable in terms of standards that appropriately bear on political decision-making.
A corollary of their being assessable in this way is a transparency requirement,
8 North Sea Continental Shelf (Judgment), 1969 I.C.J. Rep. 3, 44-45, para. 78 (ICJ Feb. 20,
1969). The centrality of a sense of obligation is echoed in many other ICJ judgments. See, e.g.,
Colombian-Peruvian asylum case, 1950 I.C.J. Reports, 266, at 286 (ICJ Nov. 20, 1950) (judgement),
“a feeling of legal obligation”.
9 Draft Conclusion 10 (1), 51.
10 The ICJ seemed to hold that a unilateral declaration of independence could be such a
liberty: “it is entirely possible for a particular act—such as a unilateral declaration of independence—
not to be in violation of international law without necessarily constituting the exercise of a right
conferred by it.” Accordance with International Law of the Unilateral Declaration of Independent in
respect of Kosovo, 2010 I.C.J. Rep., 425-6, para. 56 (ICJ, 2010).
11 For a fuller elaboration of this argument, see J. Tasioulas, Opinio Juris and the Genesis of
Custom: A Solution to the “Paradox,” 26 AUST’L Y.B. INT’L L. 199 (2007). In interpreting opinio juris
as “practice accepted as law,” the ILC’s Special Rapporteur Second Report rather optimistically, and
without argument, suggests that “[u]se of this term from the [ICJ’s] Statute goes a large way towards
overcoming the opinio juris paradox” (50-51). This makes it sound as if the paradox stems from the
Latin expression and will be eradicated by the use of plain English. On the contrary, the “practice
accepted as law” formulation accentuates that very paradox, making it clear that a practice has to be
accepted as already legal in order to become legal.
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6
according to which exercises of political power must be sincerely and accurately
presented and defended by their agents as the acts that they are.
On the disjunctive analysis of opinio juris we do not need to assume that the
generation of a new customary norm requires the existence of widespread error or
deception as to the existing state of the law. This is because the relevant kind of
opinio juris may be of the type OJ1. Once the customary norm has come into
existence, however, its continued existence across time can be sustained by opinio
juris of the second sort, OJ2. But there is no “paradox” involved in a legal norm’s
continued existence depending in part on the fact of its being taken to already exist.
Another, more widely-credited threat to the legitimacy of customary
international law is the accusation that it is hopelessly indeterminate; in particular,
that there is no determinate account of the role and relations of state practice and
opinio juris in the generation of customary international law. Of course, any such
skeptical conclusion has to be earned by argument, in the same way as an antiskeptical
account must pay its way, and cannot be presumed true by default. I have
offered a general interpretative framework for responding to this skeptical challenge
in previous work. This work takes as its focus the conception of customary
international law that emerged in ICJ decisions such as the Nicaragua and Nuclear
Weapons cases (a conception that by now has achieved the status of orthodoxy in
judicial practice, even if not in the formulation of traditionalist authors with positivist
inclinations).12 I shall not rehearse this interpretative framework here, save to point
out one implication that does not follow from it and three that do. The implication that
the MJA does not have is that of ensuring that all valid customary laws are also just or
ethically sound. Instead, their formation relies on opinio juris which embodies moral
judgments that may or may not be correct. Nor does the moral judgment required in
the interpretative process of adducing customary norms guarantee that any valid norm
will be free of ethical flaws. By contrast, the following three implications genuinely
do flow from the MJA:
(1) Although state practice and opinio juris are, as a conceptual matter,
independent variables in the formation and persistence of customary international law,
the paradigm case is that in which general state practice and widespread opinio juris
are both present. Indeed, especially in the case of OJ2, the existence of opinio juris is
what in part explains the state practice. Practice, after all, is the natural product of
opinio juris, the practical manifestation of the value judgment that the latter embodies.
(2) In appropriate cases, state practice and opinio juris can be traded off
against each other within the interpretative framework for assessing the formation of
customary norms. In particular, customary norms can come into being despite the
absence of much supporting general state practice, or at the extreme, even in the teeth
of considerable countervailing practice.13 This is because a dearth of state practice can
12 John Tasioulas, In Defence of Relative Normativity: Communitarian Values and the
Nicaragua Case, 16 OXFORD J. LEG. STUD. 85 (1996); John Tasioulas, Customary International Law
and the Quest for Global Justice, in THE NATURE OF CUSTOMARY LAW: LEGAL, PHILOSOPHICAL AND
HISTORICAL PERSPECTIVES (Amanda Perreau-Saussine & James B. Murphy eds., 2007).
13 The Report of the ILC’s Special Rapporteur is ambiguous on this issue. Some formulations
suggest that both elements, state practice and opinio juris, must be present in the case of each and every
norm of customary international law. Other formulations suggest only the weaker thesis that state
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7
be compensated for by high levels of opinio juris, especially if there is a strong moral
case for the norm in question. That case must typically be constructed around those
values that are especially salient for the legitimacy of international law, such as
peaceful co-existence, human rights, environmental protection, etc. Notice, however,
that this evaluative dimension to the formation of customary international law
requires judgments about objective values; it cannot be reduced to a set of further
facts concerning what states or other actors believe to be important values (this point
is developed further in the next section).
(3) Whereas evidence of opinio juris can establish a customary norm in the
absence of supporting general state practice, the reverse position very seldom if ever
obtains. To the extent that it does so, it will probably involve cases in which opinio
juris is primarily inferred from general state practice. It follows that opinio juris is
always necessary for the formation of customary international law, even if sometimes
its existence is inferred primarily from a pattern of general state practice.
These features of the MJA, especially feature (2), bring in their train a number
of benefits. Chief among them are the following:
(a) it allows new, potentially universally-binding law to come into existence (or to do
so more rapidly than would otherwise be the case) in areas in which it is needed, but
where there is much contrary state practice, e.g., human rights norms and the laws of
war, or in cases where state practice has not yet had an opportunity to develop, e.g.,
the law of outer space;
(b) it enables the law to be changed through large-scale shifts in opinio juris, thereby
avoiding the legitimacy-undermining idea that the only way to reform existing
customary international law is through a vast programme orchestrating its persistent
violation;14
(c) by construing opinio juris as an ingredient independent of state practice, it
potentially enables the opinio juris of non-state actors, such as organs of the United
Nations, international organizations and tribunals, non-governmental organizations,
expert academic opinion, etc. to be taken into account where this is appropriate in
terms of enhancing the legitimacy of international law. Indeed, by a further extension,
it allows us to take into account the appropriate practice of non-state actors, especially
in relation to putative norms that regulate the activities of such actors, such as the
various organs of the United Nations.
Is opinio juris an expression of consent?
practice and opinio juris are relevant to the existence of any given customary international norm,
without making the presence of the former necessary in each case. The effect of this ambiguity is
ameliorated by the fact that, as previously noted, on the Report’s account state practice and opinio juris
massively overlap.
14 Cf. the idea of reform-through-illegality proposed independently ALLEN E. BUCHANAN,
JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW
ch. 11 (2004) and Robert Goodin, Toward an International Rule of Law: Distinguishing International
Law-Breakers from Would-Be Law-Makers, 9 J. ETHICS 225 (2005).
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8
Does opinio juris operate as a means of expressing consent to be bound by a
putative norm, a consent perhaps conditional on a sufficient number of other states
similarly consenting, and which is at least a necessary condition for the bindingness of
any norm vis-à-vis a given state? Nothing in the MJA implies the correctness of such
a voluntarist interpretation of opinio juris. Still, we might ask whether voluntarism fits
the existing practice of customary international law and, if not, whether there are
compelling reasons to revise the latter along voluntarist lines.
A modicum of reflection shows that the voluntarist interpretation fails to fit
the communitarian character of the institution of customary international law, as
ordinarily conceived.15 If there is adequate state practice and opinio juris among the
community of states (and other relevant actors), the resultant customary norm may
bind a state that did not consent to it. Hence, a binding customary norm arises from a
convergence of collective practice and a consensus of community opinion, not from
the aggregation one-by-one of discrete episodes of consent. Now, it might be replied
that the so-called persistent objector rule testifies to the voluntarist basis, in the last
resort, of the existing customary regime.16 But that rule, even supposing it exists,
which is far from self-evident, is heavily qualified in two ways. First, it does not apply
to customary norms whose emergence predated the coming into existence of a given
state. Such a state will therefore be bound by the norm even though it had no
opportunity to object persistently during its formation. Second, the persistent objector
rule does not in any case apply to the body of jus cogens norms, which is a category
of customary norms that are opposable against all states independently of their
individual volition (see the discussion of jus cogens norms in the next section).17
The voluntarist picture is also incompatible with another, perhaps less
obvious, feature of existing doctrine. This is the significance that is attached to the
opinio juris of actors that are not themselves within the scope of the norm in question.
This may be because the content of the norm does not extend to them, as in the case
of the opinio juris of an international organ, such as the Security Council, regarding a
matter that binds states. More speculatively perhaps, there is also the scenario in
which a state’s opinio juris is taken into account regarding a norm that on its face
regulates the former’s conduct, but where the state in question claims to be exempt
from the norm’s operation whilst supporting its imposition on other states. This is one
manifestation of the phenomenon of exceptionalism. For example, a multilateral
15 My remarks here are confined to customary international law. Voluntarism is obviously a
much better fit for the institution of treaty law. For a helpful discussion of the non-voluntarist character
of customary international law, see Andrew T. Guzman, Against Consent, 52 VIRGINIA J. INT’L. L.
747, 775-777 (2012).
16 Fisheries 1951 I.C.J. Rep. 1167 at 131 (ICJ, 1951).
17 The failure to distinguish consent from consensus is ubiquitous, even among critics of
voluntarism. See, for example, Ronald Dworkin’s claim that the main sources of international law,
including customary international law and jus cogens norms, are conceived in existing doctrine as
consent-based, see Ronald Dworkin, A New Philosophy of International Law, 41 PHIL. & PUB. AFF. 5
(2013). But on Dworkin’s account talk of consent in describing existing doctrines alternates with the
quite different talk of “recognition”: “If enough states to constitute ‘the international community of
States’ have recognized fundamental rules as preemptory [sic] and nonnegotiable, then these rules are
preemptory [sic] and nonnegotiable for the whole international community,” p.6. The failure to
disentangle consent from a consensus of recognition has downstream implications for Dworkin’s
argument, since it means that he defends his “more basic principle” (p.9) for identifying international
law only against the contrast afforded by a voluntarist model that has a poor foothold in existing
practice.
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9
treaty may be adduced as evidence of opinio juris despite the fact that some states’
acceptance of the treaty is qualified by hefty reservations.
Of course, a sufficiently hard-headed voluntarist will be undeterred by the
infelicities of doctrinal fit identified above. He may well respond that the regime of
customary law should be purged of its non-voluntarist elements. And the reason for
this drastic revisionism is the goal of better aligning legality—what we recognize as
valid norms of customary international law—and legitimacy—the moral bindingness
of such law on its putative subjects. In other words, the voluntarist insists that it is at
least a necessary condition of a legal norm’s bindingness with respect to a given state
that that state has consented to it. Therefore, consent should be a condition on the
validity of a legal norm, since it is inherent in law to claim legitimacy. Yet although it
is widely credited, the consent-based account is deeply problematic in the context of
both municipal and international law.
To focus on the international case, why should the bindingness of international
norms that serve valuable goals not otherwise achievable hinge on whether they have
been accepted by states whose rulers do not themselves govern with the consent of
their own subjects? Or who, more to the point, flout the basic rights of their subjects?
And even in the case where the government of a state rules by consent and respects
basic rights, why should it be able to opt out of an international regime that promises
to achieve great benefits for all, preventing it from achieving those benefits or
significantly raising the cost of its doing so? There is no need to expand on the antivoluntarist
case here. Voluntarism has been subject to heavy general criticism that
applies to both the municipal and international spheres.18 Still, we should recognize
that the voluntarist is motivated by a laudable concern: to align processes of lawformation
more closely with the conditions of legitimacy. His error consists in
misidentifying those conditions.
But this leaves the the MJA facing a challenge: what is the understanding of
legitimacy that undergirds its account of custom? In other writings, I have extended
Joseph Raz’s service conception of legitimate authority to the case of international
law. According to this conception, a body of law will be binding on its putative
subjects to the extent that they are more likely to comply with the independent reasons
that apply to them by treating it as binding than by not doing so. On this view, it is
objective values, and the reasons they generate, and not subjective volition, that is the
ultimate touchstone of legitimacy.19 Most importantly, objective values are not to be
confused with the value beliefs actually held by states; instead, they are the values
that states should recognize and conform to, whether they actually do so or not.
Unfortunately, some who superficially appear to adopt an approach akin to the MJA
falter at this crucial hurdle, making the operative values ultimately a matter of value
judgments that command widespread assent in international society at any given
18For a rejection of consent-based accounts of international law’s legitimacy, see Allen E.
Buchanan, The Legitimacy of International Law, in THE PHILOSOPHY OF INTERNATIONAL LAW
(Samantha Besson & John Tasioulas eds., 2010). For a rejection of consent as a general theory of
legitimate authority, see Joseph Raz, THE MORALITY OF FREEDOM Part I (OUP, 1986),.
19 John Tasioulas, The Legitimacy of International Law, in THE PHILOSOPHY OF
INTERNATIONAL LAW (Samantha Besson & John Tasioulas eds., 2010) and John Tasioulas, Human
Rights, Legitimacy, and International Law, 58 AM. J. JURIS. 1-25 (2013),.
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time.20 But nothing is a genuine value just in virtue of its being believed to be so,
although there may be independent normative reasons for according a certain
significance to whether an ethical belief is widespread or not, for example, it may in
some cases bear on the appropriate objects of toleration within an international legal
regime, or on the morally salient issue of the latter’s efficacy in securing conformity
among its putative subjects.
At an abstract level, the affinity of the MJA with the service conception of
legitimacy should be evident.21 Both make objective values, the sources of
corresponding objective reasons, central in their respective inquiries into lawformation
and legitimacy. However, something further can be said about why opinio
juris can have the role I have assigned it (especially feature (2), in previous section)
under a service conception. Rather than having the import for legitimacy suggested by
the consent theory, the existence of widespread opinio juris is capable of enhancing
the legitimacy of a norm in at least three ways under the service conception.
First, the consensus of view it embodies among many and diverse states, as
well as other relevant global actors, can constitute a distillation of collective wisdom,
one that outstrips the knowledge that a state acting by itself could reliably bring to
bear in decision-making. A state may therefore be more likely to conform with reason
by aligning itself with custom than by resorting to its own judgment on the matter.
Second, it may indicate that the norm in question is more likely to be efficacious in
securing compliance among relevant actors, and hence to achieve its goals, than one
not backed by communal consensus. This is an especially salient feature when the
legitimacy of the norm in question turns on its capacity to provide a solution to coordination
problems. In such cases, of course, the presence of supporting state
practice will be especially helpful in confirming the efficacy of the relevant norm.
20 See, for example, the approaches to customary international law of Roberts and Lepard,
which make the moral attractiveness of a customary norm ultimately a function of the extent to which it
is endorsed by states rather than a matter of objective truth. Thus, Roberts appeals to “commonly held
subjective views about actions that are right or wrong, which a representative majority of states has
recognized in treaties and declarations”, Anthea E. Roberts, Traditional and Modern Approaches to
Customary International Law, 95 AM. J. INT’L L. 757, 760 (2001). Similarly, Lepard invokes
“fundamental ethical principles” that are “the product of the views of states” (LEPARD, supra note 3, at
374-5). But a simple insistence on Hume’s Law—the idea that no ‘ought’ can be derived exclusively
from statements about what is the case, including, what opinions are generally adhered to—is enough
to expose the fatal flaw in such views. It is also worth noting that such consensus-based views often
involve highly optimistic assumptions about the content of the principles regarding which there is a
global consensus, leaving the impression that they are surreptitiously driven by undefended ethical
commitments that are not consensus-based. None of this is intended to deny the existence of objective
moral reasons for giving some kinds of significance to whether or not a moral proposition is widely
accepted by states, but such acceptance is not ultimately determinative of whether or not a given
proposition is correct.
21 It may be objected that the service conception of authority justified a “hard” positivist
account of law incompatible with the MJA, insofar as the latter makes moral judgments necessary to
the discover of customary international law. See, e.g., J. Raz, ‘Authority, Law, and Morality’ in
ETHICS AND THE PUBLIC DOMAIN (1995). Answering this large objection would take us too far afield,
so I simply note two points. First, a subscriber to hard positivism could nonetheless accept the MJA as
an account not of customary international law, but rather of how courts should decide cases involving
customary international law, on the assumption that they have a responsibility to develop such law in
appropriate ways. Second, even if we stick fast to MJA as an account of the grounds of customary
international law, I would join those who question whether the service conception of authority,
properly understood, necessitates the embrace of Raz’s brand of hard positivism.
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This is part of the distinctive significance of compliance (state practice) with a
putative norm, as opposed to mere endorsement of it (opinio juris) that was previously
noted (section 1, above).22 Finally, taking into account the views of multiple states, as
well as other global actors, ministers to the value of political participation by
independent, self-determining states, groups and individuals in the communal
processes of international governance. Among the reasons that states have are reasons
to advance widespread participation in international law-making processes by affected
political communities and individuals. In short, although the voluntarist is right to link
insistence on opinio juris to considerations of legitimacy, they tell an overly simplistic
story about how that link is forged.
Human rights as custom and jus cogens
Let us turn now to the implications of the MJA for international human rights
law. How do we determine which, if any, human rights norms have acquired the
status of customary international law? Potentially, this will be a sub-set of all the
norms of human rights law insofar as there may exist some human rights norms, for
example, based on treaties, that do not have customary status. Having isolated the
customary international law of human rights, we proceed to identify those customary
human rights norms that belong to the elite category of jus cogens. On this view, the
jus cogens norms of human rights are a subset of the customary international law of
human rights. More generally, it is a presupposition of this view that jus cogens norms
are a special category of customary norms.23 Their distinctive character, within the
general class of customary norms, consists mainly in their possession of the following
features: (a) they legally bind all states (and other relevant international agents)
without exception; (b) their binding character for any given state is independent of
whether that state has accepted, or failed to object to, the norm in question. In
particular, the “persistent objector rule” for evading a law’s opposability is
inapplicable to jus cogens norms. So, for example, South Africa’s supposed persistent
objections to norms prohibiting racial discrimination and apartheid were legally
nugatory; (c) non-compliance with a norm of this class cannot be legally justified,
except perhaps insofar as this is permitted by another norm that also possesses jus
cogens standing. As a specific implication of (c), any treaty agreement to depart from
a jus cogens norm is null and void—certainly the offending provision itself and
arguably the entire treaty of which it is a part. Of course, it does not follow from the
22 The first consideration may justify according greater weight in the process of customary
norm formation, other things being equal, to the practice and opinio juris of states whose history
reveals a more steadfast commitment to relevant values of global justice. The second consideration
justifies according greater weight to the practice and opinio of more powerful and influential states, or
to those states especially affected by the putative norm. Both considerations make the existence of
opinio and practice among states that are representative of salient global differences—cultural,
religious, economic, military, etc.—an matter of significance.
23 A presupposition that seems to be widely accepted, including by the ICJ, e.g., in the
Nicaragua Case 1986 I.C.J. Rep. 14, 100, ¶ 190 (ICJ, 1986), which held that the prohibition of the use
of force is ‘not only a principle of customary international law but also a fundamental or cardinal
principle of such law’ and in Obligation to Extradite or Prosecute case 2012 I.C.J. Rep 457, ¶ 99 (ICJ,
2012), which held that the prohibition of torture is part of customary law and has become a peremptory
norm (jus cogens), and is “grounded in a widespread international practice and on the opinio juris of
States.” However, some have argued that jus cogens norms can be grounded in general principles of
law. See, e.g., Bruno Simma and Philip Alston, The Sources of Human Rights Law: Custom, Jus
Cogens, and General Principles, 12 Aust’l Y.B. Int’l L. 82, 102-6 (1988-9). I shall set aside this
possibility in what follows.
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fact that jus cogens norms are non-derogable in this way that they are not subject to
limitations on how states and others may seek to enforce them or respond to their
violation, for example, rules establishing jurisdiction with respect to their violation.24
In particular, it is worth observing that although jus cogens norms impose obligations
on all states (obligations omnium) it does not logically follow that all states have a
right to the enforcement of these obligations (obligations erga omnes).25 In short, jus
cogens norms are an elite class of norms that seek to protect what the international
community regards as particularly important values. This perceived importance is
marked by the formal characteristics of being judged properly to be, or come to be,
legal norms that are (a) universal, (b) peremptory, and (c) non-derogable.
If the jus cogens human rights norms are a sub-set of the customary human
rights norms, how are they to be identified? The answer to this question involves at
least two dimensions. On the first dimension, the jus cogens character of a norm will
be indicated by the distinctive content of the opinio juris associated with it. In
particular, that opinio juris will contain a moral judgment, explicit or implicit, to the
effect that the norm in question either already properly has or may properly be
accorded the three features (a)-(c) enumerated in the preceding paragraph. So far this
is predominantly a matter of fit with social facts: a successful argument for the
existence of a customary norm must adequately exemplify a dimension of fit with
such facts. But the interpretive process of identifying jus cogens norms, like the
process of identifying customary norms generally, operates against a background
grasp of the sorts of norms that are appropriately accorded the relevant legal status.
This demands some view, on the part of the interpreter, as to which norms may
justifiably be ascribed features (a)-(c) given background evaluative considerations
bearing on international order, and given also the prospect of realizing them through
the medium of law at a given juncture of history. The dimension of justification will
implicate judgments as to whether the norm in question is an eligible object of
international concern, such that it ought to find expression in international legal
norms, and whether it has the kind of importance sufficient to justify attributing to it
features (a)-(c). But even then a further judgment will need to be made, one more
pragmatic in character, about the overall effect of recognizing such a legal norm at the
international legal system’s present stage of evolution.
It is evident that both of the dimensions of fit and justification described above
may have the effect of generating changing interpretative outcomes over time. This
accounts for the dynamic quality of jus cogens doctrine, with new norms coming into
being with the passage of time, while existing norms change shape or even lapse from
this exalted status. Hence, there is no implication here of the heavy-duty “natural law”
thesis that jus cogens doctrine picks out a set of immutable norms that form part of the
international legal system from its very inception, its unvarying constitutional
structure, as it were. Irrespective of whether or not any such norms exist, they are not
synonymous with the idea of jus cogens. For all the elevated ethical status it connotes,
24See, for example, 2006 Armed Activities Case (D.R.C. v Rwanda), ¶ 64, 125. In
Jurisdictional Immunities of the State (Ger. V. It.), Judgment, No.143 at 83-5, 96 it was decided that
there is no exception to state immunity for violations of norms of jus cogens.
25 It has been argued that observations in the Barcelona Traction decision, I.C.J. 32, ¶ 34,
suggest that all jus cogens norms are also erga omnes, see Erika de Wet, Jus Cogens and Obligations
Erga Omnes, in THE OXFORD HANDBOOK OF INTERNATIONAL HUMAN RIGHTS LAW, 554-5 (2013).
This view seems neither plausible nor desirable, see LEPARD, supra note 3, at 343.
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13
the latter is a form of positive law, and hence cannot be grounded exclusively in moral
reasoning.
Consider, however, a challenge to the thesis that jus cogens norms are a subset
of customary norms. Antonio Cassese has championed the view that jus cogens
norms constitute the constitutional groundwork of the international legal order, and
that certain basic human rights norms figure prominently in this category. However,
he denies that the jus cogens character of a norm presupposes its status as a customary
norm. This is because the former sort of norm may exist despite lacking the backing
in opinio juris and state practice required for the latter. Instead, jus cogens norms are
sui generis with respect to customary international law, rather than a species of it, and
can be adduced provided that a representative majority of states evince ‘acceptance’
of them as such norms:
[W]hat is required [for jus cogens status] is the acceptance by the
majority of states provided that such majority includes states which are
representative of the various political and geographic areas of the
world. We can conclude that, unlike the customary process, the two
elements of usus and opinion juris are not required. It may suffice for
the majority of members of the world community in some way to
evince their “acceptance” of a customary rule as having the rank of a
peremptory norm. Such “acceptance” does not necessarily involve
actual conduct, or a positive assertion; it may involve an express or
tacit manifestation of will, which can take the form of a statement or
declaration, or acquiescence in statements by other international legal
subjects or in recommendations or declarations by intergovernmental
organizations or in decisions by judicial bodies. No consistent practice
of states and other international legal subjects (usus) is necessary.26
Cassese’s position has the curious upshot that, ceteris paribus, the bar for
qualification as a customary norm (state practice and opinio juris) is set considerably
higher than that for jus cogens status. And this is so notwithstanding the fact that the
normative consequences of jus cogens status are far more significant than those of
customary status. Now, the strain in this position emerges when Cassese himself
plausibly rejects as “illogical” one writer’s view27 that it may be possible to establish
the customary nature of a rule after finding that it is a jus cogens norm. But just this
possibility seems to be countenanced by Cassese’s own view in making it possible for
a norm to be jus cogens without first establishing it as a customary norm. If, over
time, the “acceptance” of that norm by a representative majority of states comes to be
supplemented by general state practice, it is difficult to see why it should not
eventually be affirmed as customary in nature. The air of “illogicality,” I suggest,
stems from the assumption—common to Cassese and the position he is criticising—
that jus cogens norms are not a sub-set of customary norms. This is the real reason
why it seems decidedly odd to say that a jus cogens norm can become customary law
at some point subsequent to its initial emergence.
26 Antonio Cassese, For an Enhanced Role of Jus Cogens, in REALIZING UTOPIA: THE FUTURE
OF INTERNATIONAL LAW, 165 (Antonio Cassese ed., 2012). For an apparently similar view, see Bruno
Simma, From Bilateralism to Community Interest, 250 RECUEIL DES COURS 217, 292 (199).
27 Cassesse, supra note 26, at 164 n.17.
Annex 234
14
A more logical view, I think, is to maintain the customary character of jus
cogens norms while adopting a more flexible understanding of the process of
customary norm formation than the one assumed by Cassese. On the MJA, it is indeed
possible for a customary norm to emerge precisely through something like the process
of “acceptance” he describes, without the support of widespread and consistent state
practice. There is no need, in that case, to countenance a troubling bifurcation of
customary international law and jus cogens doctrine.
Assuming the MJA is correct, general state practice is relevant, but not always
necessary, in the formation of a jus cogens norm. Now, some have argued that there
are three distinctive problems in establishing state practice in favor of a human rights
norm, especially one that is supposed to be jus cogens in character: (1) Many human
rights norms are essentially prohibitions, requiring that states refrain from certain
forms of conduct. But there seems to be a special difficulty in adducing evidence of
supportive “negative state practice.” (2) Human rights norms essentially concern a
state’s treatment of its own subjects, rather than some inherently inter-state matter, yet
custom is all about norms hammered out by states through a give-and-taken
adjustment of competing interests in the process of inter-state contact. (3) It has been
argued that state practice supporting a jus cogens norm, such as the norm prohibiting
genocide, requires evidence of “failed attempts to contract out of” the application of
the jus cogens norm. This would paradigmatically consist in some authoritative body
treating as void a treaty that permitted or recognised the possibility of doing what the
jus cogens norm prohibits. Of course, such evidence is extremely thin on the ground.28
All three of these supposed difficulties, however, are either overdrawn or
false. Problem (1) exaggerates the extent to which human rights impose negative
duties as opposed to positive duties to undertake a course of action. Moreover, the
imposition of negative duties is hardly unique to human rights law, but also extends to
many other customary norms, including the cornerstone norms prohibiting the use of
force and intervention against sovereign states. Finally, the objection exaggerates the
difficulty of adducing evidence of compliance with a prohibition. One can plausibly
infer relevant state practice, for example, in situations in which a state had a strong
interest in engaging in the prohibited conduct but refrained to do so, and cited the
relevant norm by way of justification. One can also adduce cases in which states
engage in positive action, such as compensation, economic sanctions or humanitarian
intervention, that they claim is justified on the basis that some other state violated the
negative duty imposed by the customary norm. In other words, the “state practice”
relevant to the existence of a norm is not only compliance with the primary duty it
imposes, but also acting in accordance with the normative implications of noncompliance
with those primary duties, such as duties to compensate or rights of
intervention.
Problem (2) also misfires. It takes a commonplace but contingent feature of
much general state practice (its emergence via process of inter-state activity) and
28 ‘To support a customary rule not merely forbidding genocide, but also providing that the
obligation not to commit it is a matter of jus cogens, the practice invoked would have to consist of, or
include, one or more failed attempts to contract out of its application, by treaty or informal agreement –
‘failed’ in the sense that it was accepted, or authoritatively declared, that the norm over-rode the
agreement’. HUGH THIRLWAY, THE SOURCES OF INTERNATIONAL LAW 156 (2014). Thirlway also
appears to give credence to versions of the first two objections.
Annex 234
15
without obvious warrant converts it into a necessary characteristic. In any case,
human rights law does not exclusively concern a state’s treatment of its own citizens,
for example, in cases of the extradition of foreign nationals to states whose criminal
justice systems flout basic human rights norms. And even when it does so, an interstate
dimension bearing on state practice is not invariably absent. Consider, for
example, the appeal to gross human rights violations to justify economic sanctions or
engagement in forms of intervention that are otherwise incompatible with state
sovereignty.
Problem (3), if genuine, would render state practice in favor of a jus cogens
norm of human rights extremely scarce.29 It would be most unambiguously confined
to the situation in which states made a treaty with the explicit purpose of departing
from human rights norms, and some authoritative body invalidated the treaty on the
grounds that the norms in question are jus cogens.30 However, this is manifestly an
overly narrow construction of what such practice might involve. As noted above, the
distinctiveness of jus cogens norms does not simply consist in the fact that they are
non-derogable by means of a treaty, but rather in the three broader characteristics, (a)-
(c), specified above. Now, the further point is that the finding of state practice need
not be made independently of registering the presence of opinio juris. Hence, state
practice supporting a norm can be adduced in cases where states justify their action or
inaction, whether in compliance with the norm or in response to its violation by
others, on the basis of the judgment embodied in an opinio juris that attributes to the
norm characteristics (a)-(c).
In short, general state practice is not a necessary condition in order to establish
a jus cogens norm, and, insofar as it is relevant, the prospects of adducing it are
nothing like as bleak as has been claimed by sponsors of the three difficulties we have
just surveyed.
Which human rights are jus cogens?
In response to the question of which customary human rights norms belong to
the category of jus cogens, one answer is that necessarily all of them do, since it is of
the essence of human rights that to affirm their existence is to believe that they are
universally binding quite independently of consent.31 Or, put another way, in the case
29 But not completely non-existent, e.g. in Aloeboetoe v Surinam, 15 Inter-Am. Ct. HR (ser
C.) (1993), the Inter-American Court objected to the invocation of a treaty that included a clause on the
return of runaway slaves.
30 As Andrea Biondi has aptly put it: “It is an irony of sorts that we know the most about the
effects of a violation of jus cogens in the area in which they are least likely to be relevant: the law of
treaties. It is indeed highly unlikely that two or more states would make a treaty to commit an act of
genocide or to subject certain individuals to torture”, in Human Rights and the Magic of Jus Cogens, 19
E. J. Int’l L., 491, 495-6 (2008). However, the extent of this unlikelihood should not be exaggerated.
As Gerry Neuman (personal communication) has pointed out to me, the conflict between extradition
treaties and the non-refoulement obligation (assuming the latter is jus cogens) is a very real one, as
shown by the activities of the Human Rights Committee relating to the refoulement of “extremists”
under the Minsk Convention and the Shanghai Cooperation Agreement.
31 There is more than a whiff of this view in Judge Tanaka’s dissent in South West Africa Cases: “If
we can introduce in the international law field a category of law, namely jus cogens … a kind of
imperative law which constitutes the contrast to the jus dispositivum, capable of being changed by way
of agreement between States, surely the law concerning the protection of human rights may be
considered to belong to the jus cogens,” 1966 I.C.J. Rep. 250, 298 (1966). See also Kadi v. Council of
Annex 234
16
of human rights norms, the requisite opinio juris for customary status is
indistinguishable from that for jus cogens status. But this argument purchases its
sweeping conclusion too cheaply, since it fails to distinguish between moral human
rights norms and legal human rights norms. Commitment to moral human rights
norms does indeed involve the judgment that they are morally binding on all states
regardless of whether they have accepted or failed to object to them. By contrast,
there is nothing incoherent in a state believing that a particular human rights norm is
or should be part of customary international law without it also judging, or being
committed to the judgment, that it is or should be a norm of jus cogens. Moreover, it
seems undesirable, from the point of view of human rights morality itself, to adopt the
position that customary human rights law more or less automatically has jus cogens
status. By collapsing these two categories, the predictable effect is to inhibit unduly
the growth of the customary international law of human rights. This is because states
will be less prepared to affirm human rights as customary if the upshot is that they
will thereby also achieve jus cogens status. This would deprive us of the real
advantages of enshrining certain human rights in customary international law, even if
they lack jus cogens status.
Arguments such as the one we have just rejected, which seek to establish on
conceptual or similar grounds a short-cut to the conclusion that customary human
rights norms inherently possess jus cogens status, seem overly ambitious. Instead, an
independent argument is needed to assess the jus cogens status of any given human
right in customary international law. The cumulative effect of such piecemeal inquiry
would be to arrive at one of the following conclusions:
(a) All customary human rights norms are jus cogens
(b) Only some, but not all, customary human rights norms are jus cogens
(c) No customary human rights norms are jus cogens
In the scholarship on this topic, (b) is the leading contender, but there is also some
support for (a) and perhaps to a lesser extent for (c), although the latter often tends to
be a specific implication of a wholesale skepticism about the category of jus cogens as
such. However, it is worth identifying a further possibility which strikes me as highly
plausible, but which has tended to go unremarked:
(d) Regarding some customary human rights norms that are jus cogens, it is only
some aspects of their normative content, and not the whole of it, that possess
this status.
In other words, the jus cogens status of any given customary human right, like the jus
cogens status of the general class of customary human rights, is not an all-or-nothing
matter. Just as some human rights can be jus cogens and not others, so too some
aspects of a given human right’s normative content can have jus cogens status, while
other aspects of its content are merely customary. I return to (d) after making some
remarks about (b). HERE
European Union, Judgment of the Court of First Instance of the European Communities (Second
Chamber, Extended Composition), Case T-315/01 ¶ 226-31 (Sep. 21, 2005).
Annex 234
17
A useful starting-point in the quest for human rights that are jus cogens is the
list of human rights that the Restatement (Third) of the Foreign Relations Law of the
United States indicates are violations of customary law: “(a) genocide, (b) slavery or
slave trade, (c) murder or causing the disappearance of individuals, (d) torture or other
cruel, inhuman, or degrading treatment or punishment, (e) prolonged arbitrary
detention, (f) systematic racial discrimination, or (g) a consistent pattern of gross
violations of internationally recognized human rights.”32 Of course, the rights
prohibiting these wrongs can be properly upheld as jus cogens only if there is
sufficient evidence of opinio juris of the requisite variety, together with any
supporting state practice. As the Restatement acknowledges, it is an open question
whether or not other human rights norms have achieved customary status in addition
to those (a)–(f), at least, listed above.33
There is another way in which the Restatement is helpful to us, and that is its
observation, made in the Reporters’ Notes, that “Nonderogability in emergency and
jus cogens are different principles, responding to different concerns, and they are not
necessarily congruent.”34 Non-derogability in an emergency is certainly not sufficient
for jus cogens status. After all, as noted previously, jus cogens norms are
distinguished by the three aspects of universality, peremptoriness, and nonderogability.
Even a standard customary or treaty norm can be non-derogable in this
sense. Nor does non-derogability in an emergency seem to be necessary; instead, the
non-derogability characteristic of jus cogens is to be understood in a broader way—as
the idea that there is no justification for non-compliance except perhaps by reference
to other jus cogens norms—which does not obviously entail the more specific idea of
non-derogability in an emergency. This more stringent form of non-derogability may
be characteristic of some jus cogens human rights norms, such as the right not to be
tortured, but not all of them. Imposing it sets a needlessly high bar for jus cogens
status.
Return now to proposition (d). This alerts us to the possibility that some, but
not all, aspects of a given human right in customary international law may have
acquired jus cogens status. No decisive reason exists for making the jus cogens
standing of individual human rights on an all-or-nothing basis. There may be requisite
support for the jus cogens character of some elements of a given norm, but not for
others. So, for example a right to religious freedom may form part of the corpus of jus
cogens norms. However, it is not necessary for someone defending this position to
argue that all of the normative requirements we properly associate with that right in
customary law possess jus cogens status. So, for example, persecution on religious
grounds may be a violation of jus cogens, whereas restrictions on individuals’
freedom to proselytize or to change their religion, although prohibited by customary
international law, lack the requisite basis in opinio juris and state practice to be
classified as jus cogens. Similarly, within the general right to freedom of expression,
32 RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702
(1987).
33 See id. § 702, cmt. a. Specific reference is made to the right not to be subject to systematic
religious discrimination, the right to own and not be arbitrarily deprived of property, and the right
against gender discrimination, as norms that have already achieved, or are on the verge of achieving,
customary status. Id., cmts, j-l.
34 Id., rptrs. note 11. See also LEPARD, supra note 3, at 338-9.
Annex 234
18
it may be possible to isolate some core content that possesses jus cogens status, such
as a right to criticize government officials without fear of punishment, even if other
customary law elements lack this status.
At this point, it might be objected that states should not be permitted to pick
and choose jus cogens status within a customary norm of human rights. Is it not
disingenuous, the objection goes, for a state to accept as jus cogens some part of a
human right, but not another? On this view, international law should not connive at
assaults on the integrity of human rights norms through the fragmentation of their
legal status. But this is a difficult line to maintain once we have admitted that states
can be selective with respect to jus cogens status within the general class of customary
human rights norms. Presumably, they are permitted to do so in order properly to
reflect their judgments that some of these norms are better suited for the legal status
of jus cogens than others. But once we have made that concession, it is difficult to
comprehend why similar judgments of relative fittingness for jus cogens status should
not be permitted within a given customary norm of human rights. After all, it is not as
if there are no good reasons, relating to such matters as relative moral importance or
the likelihood of attracting a widespread consensus, for drawing such distinctions
within the content of a given human right. Indeed, it most likely enhances the ability
of vital demands of global justice to ascend to jus cogens status if we permit this kind
of splitting off of human rights norms than if we rigidly insist on an all-or-nothing
approach.
Conclusion
In this chapter I have sketched the contours of a moral judgment-based
account of customary international law (MJA), one that I believe makes best sense of
what custom as a source of international law has become in recent decades. It is a
moral judgment-based account along at least two dimensions. First, opinio juris is
construed as centrally involving some form of moral judgment. On the disjunctive
view elaborated above, it is either a moral judgment that a given norm is appropriately
law or else that it may be appropriately established as law. Second, moral judgment is
called for when an interpreter of law seeks to determine whether state practice and
opinio juris suffice to establish the existence of a putative customary norm. I have
argued that, in this interpretative process, it is possible for a customary norm to be
established predominantly on the basis of widespread opinio juris, despite the absence
of supporting state practice. Often it is an overly inclusive conception of “state
practice”, one that overlaps substantially with opinio juris, that obscures this
possibility in the analyses offered by more conservative commentators.
Beyond defending the MJA, I have also argued that human rights norms of jus
cogens status are a sub-class of customary norms of human rights. Jus cogens norms
are those customary norms whose grounding opinio juris and state practice establishes
them as universal, peremptory and non-derogable norms. I rejected both the thesis that
human rights customary norms are automatically jus cogens and the contrasting thesis
that there are near-insuperable barriers to a human rights norm achieving either
customary or jus cogens standing. Instead, I argued that a sub-set of customary human
rights norms are jus cogens in status and, moreover, that sometimes only a sub-set of
the obligations associated with such a right is jus cogens. I have not, however, offered
more than a general framework and some conjectures regarding the normative
Annex 234
19
question of which human rights norms ought to be elevated to jus cogens status in
international law. This is a topic that must be left for another time, and one which I
am inclined to believe is best addressed in a piecemeal fashion.
Annex 235
N. Wenban-Smith & M. Carter, Chagos: A History - Exploration, Exploitation, Expulsion (2016)
Annex 235
CHAGOS: A HISTORY
Exploration Exploitation Expulsion
NIGEL WENBAN-SMITH and MARINA CARTER
• CHAGOS CONSERVATION TRUST, LONDON
www.chagos-trust.org
Annex 235
-
' /
Published 2016 in Great Britain by
the Chagos Conservation Trust
23 The Avenue, Sandy
Bedfordshire SG19 1ER, UK
The Chagos Conservation Trust, UK registered Charity No . 1155836, publishes this work
in the furtherance of its objectives to promote and undertake environmental conservati.
on, scientific and historical research, and advance education concerning the Chagos
archipel a go. The content of tbjs work is however wholly th a t of its authors and the Trust
hereby disclaims any responsibility for any facts or opinions that may be expressed in it.
The designation of geographical entities in this book and the presentation of the material
do not imply thP expression of any opinion whatsoever on the part of the Chagos Conservation
Trust the authors, York Publishing Services or any other participating organisations
concerning the legal status of any country, territory or area, or of its authorities ,
or concerning the delimitation of its frontiers or boundaries.
Nigel Wenban- Smith and Mari.na Carter have asserted their right under the Copyright,
Design and Patents Act 1988 to be identified as the authors of this work. All rights
reserved. No parl of this publication may be reproduced, to red in a retrieval system
or transmitted, in any form or by any means, electronic, mechanical, photocopying or
otherwise without the permission of the publisher.
Dust jacket illustration:
Pointe du Bonnet Carre, Diego Garcia, 1819, Ly Maurils Ver Huell, courtesy Maritiem
Museum, Rotterdam .
ISBN 978-0-9954596-0-1
Design and typesetting by Ray Perry; Jacket design by Jennifer Lassiter
Printed and bound by York Publishing Services Ltd., Hal/field Road, York, Y031 7ZQ, UK
Annex 235
Contents
Dedication iii
Preface vii
Acknowledgements xi
Selected Maps xiii
PART ONE: EXPLORATION
1 Origins and Introductions 3
2 Navigators and Cartographers 13
3 Anglo-French Competition and Co-operation 29
4 Early Settlements: 1776-1789 47
PART TWO: EXPLOITATION
5 Buffeted by Revolution, War and Aftershocks: 1793-1819 71
6 A Slave-based Plantation Society Emerges 97
7 Chagos in the Time of Apprenticeship 125
8 Lives of Labour, Moments of Mayhem: 1840-1860 143
9 Wrecks, Whalers and Castaways 167
10 The System Questioned: 1860-1874 185
Annex 235
vi Chagos: A History
11 1875-1888: Magistrates Make their Mark 207
12 Proprietors 'fake on the Empire 235
13 1889-1914: Prosperity for Some 255
14 Wars Again Intrude 289
15 A Dreadful Decade: 1919-1929 299
16 Customs and Characters: a kaleidoscope of island life 321
17 Stuck in a Deeper Rut: the 1930s 345
18 At the Mercy of Events 375
19 1945- 1955: Company Mismanagement and Intervention by
Governors 399
20 Living Memories: a worker's view of the 1950s, by Fernand
' Mandarin - 423
21 Decline and Fall 445
PART THREE: EXPULSION
22 1962-1965: Fateful Decisions 465
1.3 1966-1971: the Price of Secrecy and Prevarication 479
24 1971-1973: The Axe Falls 499
Epilogue 517
List of Tables 520
List of Acronyms and Abbreviations 521
Brief Glossary of Sailing Vessel Types and Rigs 523
Bibliography 525
Index of Names 530
Index of Ships 536
Subject Index 539
Annex 235
Preface
W E were drawn into exploring Lhe hi tory of the Chago Archipelago from two very
different starting points . One of us (MC) had encountered reference to these
islands and their inhabitants in the course of archival tudy of Mauritian history in
the 18th and 19th centuries. Slave voyages, naval engagements, scandalous episodes involving
brutality and murders were encountered repeatedly in records studied for other purposes. For
the other (NW-S), whose several visits to Diego Garcia in the early 1980s as Commissioner of
the British Indian Ocean Territory allowed him to fly low over the whole archipelago and to
visit half a dozen of its islands by sea, there was left a residue of curiosity about the real character
of the plantation life which the military installations on one island had replaced. What had
gone on in those once-elegant villas, tumbled-down chapels, creeper-infested cottages, collapsed
industrial structures with crazy rails leading to broken piers, still bearing the rusting
frames of small wagons? In 2006, chance brought us to neighbouring desks in the Mauritius
National Archive in Port Louis. We have been exchanging historical finds relating to these
isolated atolls ever since.
Our separate researches have taken us over the past ten years not only to Mauritius and to
the enormous resources of British libraries, museums and, especially, the National Archive at
Kew, but also to Lisbon and Paris, Amsterdam and Rotterdam, Florence and Modena, Bedford
MA and Rhode Island, not to speak of Mumbai and New Delhi. We have also corresponded
with individuals having academic expertise or personal knowledge all over the world. We are
however only too aware of gaps in our knowledge of, for example Russian, German and Spanish
archives, and also conscious that our knowledge of United States official archives is largely
second-hand. Broadly speaking, Parts 1 and 2 (Exploration and Exploitation) are the product
of our joint efforts, while Part 3 (Expulsion) is the work ofNWS alone.
The closure of the Chagos coconut plantations in the early 1970s and the consequences of the
forced removal of the islands' civilian population have from the start been topics of great controversy,
which continues to this day. This involuntary/imposed exile has spawned a host of
media stories focussing on a 'Paradise Lost', without, however, providing a very clear understanding
of what life was really like on those isolated coral atolls. Our purpose is to explore the
little-known history of the discovery of the islands, their eventual settlement and the gradual
development of a distinct community, all serving the single function of supplying coconuts
and their derivative products to Mauritius. One of our chief objectives was to rescue from
complete anonymity some at least of the individuals who made up this community of, at first,
Annex 235
viii Chagos: A History
slaves and slave owners, who later emerged as the labourers, foremen and managers of Mauritian
owned private companies. In this we have been less successful than we hoped: those most
readily identifiable are those whose offences, alleged and real, brought them to the attention of
magistrates . Their cases are valuable as indicators of social conditions, but too great an emphasis
on misdeeds would give a wholly false impression of day-to-day life. We have attempted to
redress the relative silence of the workers through our extensive use of testimony provided by
Fernand Mandarin who has authored Chapter 20 and whose evocative memories of life on
Peros Banhos and Diego Garcia have contributed to several sections of the book. Our researches
have also revealed an interesting nexus of stakeholders in the exploitation of the Chagos, whose
coinciding and competing interests determined their economic fate. Many, perhaps most, of
those involved raised their families on Chagos and had a long and intimate relationship with
the islands. Of these, the recollections of Paul Caboche and his sister Marcelle Lagesse have
enriched our account in various ways.
We are not, of course, the first to look into the history of Mauritius' dependencies. Sir Robert
Scott's Limuria (1961) remains a useful account of the discovery and exploration of these islands
and the origins of the societies that emerged in them. Scott's focus differed, however, from
ours. Concerned about the economic and social future of those Mascarene islands which
depended on coconut products for their wellbeing - known collectively as the Oil Islands - he
sought to record their distinct character and to look for ways of conserving it in the face of the
rapid changes occurring in Mauritius and the world beyond. We write after those changes have
engulfed the Chagos Archipelago . Moreover, by concentrating on this more limited area ,
which has now acquired a very specific identity, we can look in greater detail at each stage of its
development. What we have found is the gradual emergence of a system of exploitation, initially
conditioned by the islands' remoteness but later making cynical use of this distance from
authority to retain unenlightened, under - capitalised, unproductive, unloved and, finally,
unsustainable industries. What has also emerged is the extent to which the strategic pre-occupations
of a succession of powerful states impinged on the Chagos in times of war and peace
alike . Thirdly, uf course, economic and political developments in Mauritius determined much
of what happened in these distant Dependencies, but our chosen focus on the latter may have
led us to reference inadequately some passing comments made on the former. Finally, we have
been astonished at the extraordinary range of individuals, some well-known to history, whose
lives were touched by these seemingly insignificant specks in the vastness of the Indian Ocean.
From Homer's Odyssey onwards, poets and dramatists have found that small islands in
remote seas allow the mind to escape from mundane realities while providing focus for a concentrated
mythic story. Shakespeare frequently employed this device, even making mention of
the Tigre, the vessel later used for the second English voyage to the Chagos. In 1668, Henry
Neville's Isle of Pines was placed in the same longitude as the Chagos but a dozen degrees further
to the south, with a picaresque plot involving Dutch as well as English seafarers. More
recently, Smoke Island, by Antony Trew (Collins, 1964) uses Eagle Island as a backdrop for the
survivors of an air crash to explore South African racial issues. Cristina Pereira, a Portuguese
historical novelist, has based her latest work (Um Espiao nas Descobertas, volume III, 2011) on
the real fate of a Portuguese ship, the Concei,;:ao on Peros Banhos in 1555. Coming closer to our
own story, Mauritian novelist Marcelle Lagesse, who spent several years on Chagos as a young
woman, wrote a charming story of the love of a daughter of the manager of Salomon Island for
a visiting French sea captain in Des Pas Sur Le Sable (reprinted 2009, Editions du Printemps,
Mauritius). Her Notes d'un Carnet (Editions Paul Mackay, 1967) gives a fictional account of the
daily life of the Salomon islanders which must correspond closely to the reality she experiAnnex
235
Preface ix
enced from 1938-42. Finally, the life of the islanders exiled from the Chagos has also been
presented in fictional form, for example, in Peter Benson's A Lesser Dependency (Macmillan ,
1989) in French by Shenaz Patel's Le Silence des Chagos, (Editions} 'Olivier , 2005) and Out of the
Cyclone by Guy-Sylvio Bigaignon (ELP Publications, Mauritius, 20n) . This is by no means an
exhaustive list and the literature inspired by the exile of the Chagos islanders continues to
grow.
The term 'Chagossian' is of much more recent date than 1973; in this book , therefore, we refer
to the island inhabitants as 'Ilois', or 'workers' and 'labourers' according to the relevant French
and English language records consulted. Those who have come to identify themselves as members
of the Chagossian community, principally individuals employed as workers - and some as
managers - in the islands (and their descendants) have enriched this work with their memories
and photographs. We know of one individual who can trace his ancestry back to 1840, and one
of our objectives has been to recall as many names as we can from the archival records . We
hope that this unfinished work will be continued by others and that eventually many more
Chag'ossians will be able to identify links going back beyond the recall of oral memory. Of
course, we have been unable to include here all the names derived from passenger lists and civil
status records that we have unearthed. A website with additional materials is being compiled;
please visit www.chagos.info for further details. We hope to add further to this over time, as
new research and records appear and are shared.
As far as this work is concerned, we hope it will help provide a base for future studies, by
bringing to light the reality of conditions in these islands, before speedy transport and instant
communication could help mitigate the effects of great distance and miniscule size. We hope
that the story which unfolds in the following pages will provide all interested in the history of
these atolls and particularly the Chagossians and their descendants with an understanding of
the social and economic history of the archipelago over the last two centuries.
NW-S MC
Annex 235
3
Anglo-French Competition and Co-operation
T HE first encounters with Chago de cribed in the preceding chapter had
been fortuitous and accidental; the results were marked down i.11 logbook
, principally designed to provide a source of information and a
warning to fellow mariners. At this juncture, few passing sailors had the time or
inclination to conduct detailed voyages of exploration around the archipelago
and the presence of the various atolls and banks were seen rather in the guise of
obstacles to be circumvented than as islands to be investigated. Moreover, as we
have seen, both the Portuguese and Dutch regarded the Chagos as irrelevant to
their interests and had settled on sailing routes to avoid the archipelago. That
became less and less true for the French and the British. The French, having
occupied Mauritius and Bourbon (Reunion), began to use these islands to
project their influence in the Indian Ocean and to defend their Indian possessions.
1 The British left it largely to the East India Company to defend its own
interests, not only in India but on the route to India. The perennial rivalry
between the two nations was thus set to intensify in this arena; on the other
hand, they had a shared interest in establishing safer and quicker passage for
their mariners and merchants. A further complication was that, as they learned
more about the mid-oceanic islands, the French took an increasing interest in
their resources, whereas the British concerns were primarily strategic.
Thesis: the French
Within only a few decades of French settlement on the Isle of France (present
day Mauritius) its natural resources began to be depleted. The Intendant (local
representative of the French East Indies Company) was a certain Pierre Poivre,
a man justly credited with promoting the scientific exploration of the North-
East Archipelago, as the French then described the area which included the
Annex 235
30 Chagos: A History
Chagos.2 Better known to us today
for his botanical interests - the 'Peter
Piper' who 'picked a peck of pickled
pepper' in the English nursery rhyme
- Poivre (pictured left) was, as the
ditty suggests, a keen collector and
disseminator of spices; he also had
his eye on turtles and tortoises.
Already by 1770 the Intendant had
informed his superiors in France
that 'Tortoises are starting to become
rare on the island of Rodrigues. It
would be as well to abandon it for a
while to allow the population to
recover. When we get more familiar
with the archipelago that lies further
to the north, we may hope to find islands as abundant in tortoises as Rodrigues
used to be'.3 Poivre remarked that earlier brief sightings of Diego Garcia had
indicated an abundance of tortoises or turtles, and proposed that his best officers
should be despatched to explore the archipelago in the belle saison. The
north-east archipelago was therefore now of importance both as an area of dangerous
shoals and banks which needed to be properly mapped and as the potential
source of meat valued for its supposed power to combat leprosy.
In fact, help was already on its way. Jacques-Raymond, Vicomte de Grenier,
born in Martinique in 1736, had embarked on a naval career at the age of 20 and
had already been involved in several campaigns - his most recent against the
Barbary corsairs - when he was selected for duty in the Indian Ocean. 4 In 1767
he was named commander of the corvette I.:Heure du Berger, for service at the
Isles of France and Bourbon. Judging this to offer only limited career prospects
he requested the French naval minister's permission to 'undertake observations
and even to make discoveries in these seas' and to embark with him two specialists:
the Abbe Rochon 'pour faire les Observations astronomiques', and a hydrographic
draughtsman ('dessinateur hydrographe'). The Due de Praslin acceded
to all these demands in a letter dated 13 October 1767. After much discussion
with fellow naval officers, Grenier became convinced that 'no-one had yet tried
to investigate these waters, on account of their anticipated dangers' and he
therefore set for himself the task of finding 'a shorter all-season route between
the Isle of France and India'. Rochon, already recognised as one of France's foremost
astronomers, was not able to accompany Grenier at once, but lost no time,
once he had caught up with the ambitious mariner, in seeking to demonstrate
the superiority of science over seamanship. His primary task, however, was to
Annex 235
Anglo-French Competition and Co-operation 31
prepare for an important astronomical
event, a transit of the planet Venus across
the sun in June 1769, which would be visible
from Rodrigues.
Shortly before the departure of the
corvette, Jean-Baptiste d'.Apres de Mannevillette
forwarded to Grenier a map of
the Indian Ocean on which he had traced
'in yellow the places about which our
knowledge remains very sketchy'.5 On
arriving at the Isle of France Grenier was
requested by the Governor, Dumas, to
undertake a voyage along the east coast
of Madagascar. He carried out this task,
but still burning to find a better route to
India he finally obtained the agreement
of Dumas and Poivre to set out on this
mission, which they described as 'to Abbe Rochon, shown here with ship's captain
traverse the seas which lie between here Bory.
and the Maldive Islands and Ceylon, to
reconnoitre their reefs and islands; to look for the most direct, and thus shortest,
route to take between the Isle of France and the Coromandel coast at all times of
year'. Rochon could not go with him, on account of his duties in Rodrigues -
though, as Fate would have it, his ship was wrecked on the nearby Cargados
shoals. The day before his departure, Grenier was given a copy of the map made
by Picault in the 1740s and after consulting it, he decided to follow the 5th parallel
(as Picault had done as far as Seychelles), a course that, if maintained, would
take him across Speaker's Bank and on without obstacle to the Sunda Strait.
On 30 May 1769 he set sail northwards from the Isle of France, sighting Saint
Brandon on 2 June, the bank of Saya de Malha on 4 June and arriving at the
Seychelles on 14 June. His route to the Indies, Grenier reasoned correctly, should
take him close to the J\du islands: which had been recorded in detail only by
Moreau and Riviere from Le Favori in March 1757. Moreau's journal had described
his approach to and the position of these islands as follows:
From 25-27 March 1757. Observed white seabirds all afternoon; yesterday at 6 in
the evening saw bottom, with no land in sight; took soundings, revealing rocks,
and more soundings to establish the depth; had 19 fathoms, with the bottom consisting
of coral and broken shells. At 6-45 large red coral; the same at 7-30, but
hardly any rocks and the lead brought up a small red fish, still alive, plus some tiny
shrimps and shellfish, with beautiful, pure white sand; at 8-45 bottom rocky, depth
15 fathoms; immediately sounded again and found same bottom, but 21 fathoms;
Annex 235
32 Chagos: A History
at 9.30, fine white sand at 47 fathoms. We were dose-hauled on a port tack, wind
NW. At 11.30, same bottom at 49 fathoms; at midnight, same bottom at 45 fathoms;
at G a.m. today espie<l land to the NNW at an estimated distance of 6-7
leagues; at 7-30 spotted another island to the SSE; at 8 o'clock sounded again without
finding bottom at 75 fathoms. At this point the westernmost island lay a little
to the north of north-west and we had covered about 8 and a halfleagues* upon
it; allowing for the necessary corrections, it probably extended further northwards.
At 8 a.m., as it was fine weather, with a very calm sea, we dispatched the
ship's dinghy ... At midday, the observed latitude was S. 5° 05', as against our
expected lat of S 5° u'. At midday the land visible lay as follows: the most southerly
islet at a little westward of NW; the most northerly a little northwards of NE, the
nearest land being one and a halfleagues distant. 6
* One French league was equal to three English nautical miles.
Grenier had consulted this record and concluded that the 'Adu islands' must
be along his projected new route to the Indies. As we have already explained,
however, in the last pages of Chapter 2, the islands encountered by Moreau were
those of Salomon, centred on Lat 5° 20' S Long 69° 51' East of Paris. Moreau's
meticulous soundings enable us to calculate that the bank over which Le Favori
passed during the night was Victory bank, while the island visible to the SE must
have been Nelson Island, not knowingly seen again until 1820.
Thus, when I:Heure du Rerger passed Moreau's estimated position, there were
many seabirds - the vessel was close to Speakers Bank, but no islands in view.
Grenier concluded, again correctly, that Moreau had been somewhat further
south than he believed. When Rochon and Grenier made the trip together later
in the year, with the same result, Rochon was able to argue that Grenier had
simply not made his case: there were still unknown dangers. On their return to
France, their rival claims to be the best person to chart the new 'route to the
Indies: either through or around Chagos, stirred up a controversy which necesitated
the intervention of French ministers and notable academician , dragged
in Jean- Baptiste d'Apres de Mannevillette (1707-1780)7 and Alexandre Guy Pin -
gre (1711- 1796) astronom rand naval geographer, who were forced to judge their
peers, and precipitated a storm of memoires and counter-memoires, which are
breathtakingly vituperative but a useful source of material for the truly committed
historian of Chagos cartography.
Both men were right; their arguments were not mutually exclusive. At first,
the venerable academicians came down firmly on the side of Grenier, agreeing
that the route proposed was shorter and attacking the 'sophismes' of Rochon.
For example, they countered Rochon's argument that this was already a welltravelled
route, demonstrating that James Lancaster had followed a different
trajectory:
That Admiral, who left Antongil Bay on 6 March 1602 and, after observing the
Annex 235
Anglo-French Competition and Co-operation 33
Island of Roquepiz on the 16th, headed south as far as the 6 degree line, between
the isles and reefs of Pedros Banhos and those to the NW of Chagas Island, his
route demonstrating that his successful transit of the archipelago had nothing in
common with the route proposed by Monsieur Grenier . 8
The arguments raged until July 1771. Then the 'great and good' reached a more
nuanced view: the route was a new and shorter one, for which Grenier deserved
credit, whilst admitting their ignorance about other possible 'dangers' and supporting
the need for further exploration. Indeed both men later returned to
Mauritius to pursue their researches. A full account of their quarrel need not
detain the reader here.9 Suffice it to say that Rochon, in his 1791 publication Voyage
a Madagascar, et aux Indes Orientales, was to have the last word:
Vessels leaving the Isle of France . for India were forced, during both monsoon
seasons, to take a long, indirect route so as to avoid the archipelago of islands and
reefs to the north of the Isle. As long as the real positions of these dangers remained
unknown, there remained risks for any squadron which might attempt to take a
more direct route ... If improved knowledge of the Archipelago allows a more
direct route to be tried in both seasons, I dare to flatter myself that I have played a
part in rendering this service to navigation, given that I have been the first to
establish, through astronomical observations, the precise position of the main
hazards. 10
On a more general point, that the shortest route was not necessarily the fastest,
Rochon could also have claimed victory. In the mid-177os, the Governor of
the Isle of France, the Chevalier de Ternay, offered his opinion on the 'new route
to the Indies' of Grenier, which all had supported against Rochon. He commented,
'Every vessel leaving here in 1775 and following the route proposed by Mr
Grenier has experienced storms, calms and contrary winds, which have occasioned
prodigious delays, even, in one case, resulting in a voyage which took
four months to reach the Malabar coast:n
Having said that, the efforts of Rochon and Grenier had in reality accomplished
less than either claimed. In particular, their supposition that they had
observed Peros Banhos was mistaken; their visit to Diego Garcia established its
exact latitude while still mistaking its longitude by two whole degrees; they did
not recognise the islets now known as the Three Brothers, did not notice Danger,
Egmont or Eagle Islands and they did not find the islands already visited by
Moreau in 1757.
Diego Garcia: the Coiled Serpent
If the efforts of the French to establish the best route to India were inconclusive,
the visit of Rochon and Grenier to Diego Garcia alerted the French authorities
Annex 235
•
4
Early Settlements: 1776-1789
D ESPITE being in possession of the nearby Mascarene islands for many
years, and making occasional use of Diego Garcia for a supply of turtles
and coconuts, it was not until the 1770s that the French governors of the
islands formally claimed and settled any part of the Chagos archipelago. Governor
Souillac asserted that the Vert Galant had been sent to Diego Garcia by
Chevalier Desroches to claim the island for the French in 1770 and that in 1778
Dupuis de la Faye, commander of the Europe, raised the French flag in the
'northern bay' of Diego Garcia as per the orders of the French governor M. le
Chevalier de la Brillanne. 1 This did not prevent at least two British East Indiamen
visiting the Chagos in the following year - the Luconia and the Resolution .
In 1781, claimed the Vicomte de Souillac, de la Faye was succeeded by M. Pastor
who was given the task of maintaining the flagstaff, and raising the French colours
whenever circumstances required. Pastor also made an arrangement with
the Government of the Isle of France to supply the Mascarenes with the produce
of Diego Garcia.
The corsair of Chagos
Deschiens de Kerulvay, as we have seen (p. 34), had made several visits to the
Chagos archipelago in the 1770s both for purposes of exploration and cartography
and to exploit the produce of the atolls for the benefit of his sailors and the
French settlers on the Isle of France. In 1776, he records that he set up an establishment
there to capture turtles and to harvest coconuts, of which he delivered
a large quantity to the Isle of France. After hostilities were declared between
Britain and France in 1778, during the American Revolutionary War, Deschiens
captained a corsair ship, la Bouffonne, later renamed Philippine and financed by
the Pitot brothers. In December 1779, with a cargo of slaves on board, he
Annex 235
48 Chagos: A History
reportedly stopped at Diego Garcia to 'refresh' them. Among the slaves sent
ashore, four men and a woman ran away. What became of them is unknown.
The instructions for Kerulvay's next voyage, dated l7 April 1780, were to commence
with a visit to the Chagos islands, to take on board a supply of turtles.
The corsair returned to France at the end of the war, and settled in Saint Brieuc
where he married, and raised a family. In 1786 he addressed a memoir to the
French naval minister requesting a 20 year concession of Diego Garcia and the
use of two ships in order to set up a slave trading depot. He proposed to collect
slaves from Africa and to bring them to Chagos where they could be 'refreshed'
and 'acclimatised' before being taken to the Caribbean. However, he was too late
- Diego Garcia had already been claimed by a French settler on the Isle of
France. The minister wrote to Kerulvay, refusing his request on 16 June 1786.2
Le Normand's Southern Bay establishment
In 1783, Pastor and the French governor accepted the proposition of Sieur Le
Normand to take over the establishment and the job of maintaining the flag
staff on Diego Garcia. Le Normand accordingly settled in the southern bay. The
map opposite, only recently discovered in the French Colonial Archives at Aixen
Provence, is of uncertain date and authorship, but appears to correspond
closely to the state of knowledge in 1793. 3 The products of Diego Garcia which he
intended to exploit are described as follows: coconuts and wood, including tatamaka,
'bois blanc', described as good for building boal~, aml wuu<l for burning.
The island was found to abound in fish, turtles, seabirds and wild hens, but was
without a good source of water, which could only be obtained by digging down
into the sand which produced a brackish but not unhealthy drink. 4
In a letter detailing his grievances, addressed to the Colonial Assembly of the
Isle of France some years later, Le Normand provides further information concerning
his concessionary arrangement. Anxious to establish his status as the
first lessee, Le Normand denied claims of a pre-existing French establishment
on Diego Garcia. He wrote that at the time he had demanded his concession, the
island was uninhabited and virtually unknown. Le Normand claimed that the
agreement made on his behalf on 24 February 1783 had alone forced the British
to discontinue their visits. Le Normand stressed that the then Governor, Souillac,
was pleased with his request for the concession and authorised him to make
the necessary expenses, informing him that if no-one else claimed the island he
could have the concession (jouissance).5
Following his arrangement with Souillac, Le Normand went to Diego Garcia
with materials and slaves but departed early in 1784 leaving a set of instructions
for his manager Frarn;:ois and the workers. The document, subsequently transAnnex
235
'B
C ,.
-n,.. "'""? •••
,·j,44'"""--·
4 .. ,-.t. .... ~a. ' .
-,,;,.;,.;" -' .... :,_. ,_.,. ,."-.
.I!,,,,,_,,,_.., -- .._,_.~.,
Early Settlements: 1778-1789 49
,,,. -4UU• '".,__ -- ./ / --- ..... -~-----------, , ._. L
lated into English, but dated 1 May 1784 reads:
The property of the island of Diego Garcia having been granted to me . . . I
establish the herein named Frarn;:ois to represent me during my absence and to
work along with the negroes whom I have committed to his care at the several
occupations respecting the trade of the partnership I have entered into with M.
Lambert for the terrestrial and marine produce of the island. Frarn;:ois de
Moulereau shall assist him and shall be employed by the said Frarn;:ois at whatever
he may desire and shall represent him in case of death or sickness in every
respect according to the following instructions.
Annex 235
472 Chagos: A History
be transferred to Agalega, which the participants hoped might be separately
transferred to Seychelles jurisdiction. 27
Britain and Mauritius
By far the best account available of this negotiation is that of Chan Low.28 Relying
on the British documentary records available before 2012, he traces the British
Ministerial discussions in 1964 and, particularly, in 1965, together with the
reports and activities of the British governors of Mauritius. He describes the
differences of perspective between the Ministers primarily involved, in particular
those between the Colonial Secretary, Anthony Greenwood and the Secretaries
of State for Foreign Affairs, Defence and Commonwealth Affairs.
Greenwood, deeply concerned about the communal tensions in Mauritius, was
determined to avoid adding to them by inserting the potentially destabilising
issue of the Chagos into the constitutional conference scheduled to be held in
September. The other Ministers were acutely aware of American pressure to
secure access to Diego Garcia on the terms already agreed. Although Chan Low
does not make the point, the new Prime Minister, Harold Wilson, had to balance
both these specific concerns and more general political differences between
(in over-simplistic terms) the right and left wings of his administration - the
latter, suspicious of America, being notably represented by Greenwood. 29 He
also faced the highly divisive issue of Vietnam, on which President Johnson was
seeking not just political support, but a British contribution of troops, however
small. This being politically unacceptable, Wilson must have been casting about
for some other way to demonstrate timely support for the USA.30
It is unnecessary to replicate Chan Low's impressively balanced and objective
accounts of the progress of the constitutional talks and the increasingly frequent
inter-ministerial discussions of their handling in relation to the Chagos issue.31
As matters turned out, the Chagos issue did prove destabilising, to the extent
that one of the four parties represented in the Mauritian government walked
out of the conference. This was the Parti Mauricien Social Democrate (PMSD),
resolutely opposed to the country's independence, whose departure left the way
clear for Ramgoolam to make his own judgment of what terms he might be able
to achieve and hold to on his return home. The issue remained unresolved until,
as Chan Low describes,
On the morning of 23 September [1965] S. Ramgoolam met Harold Wilson at
Downing Street. The British Prime Minister, after deploring that the Mauritians
were raising the stakes too high, stated that 'there was a number of possibilities:
the Premier (Ramgoolam) and his colleagues could return to Mauritius either
Annex 235
1962-1965: Fateful Decisions 473
with independence or without it. On the Defence part, Diego Garcia could either
be detached by Order in Council or with the agreement of the Premier and his
colleagues. The best of all might be independence and detachment by agreement,
although he could not of course commit the Colonial Secretary on this point.
As Chan Low comments, Ramgoolam understood perfectly what was at
stake: 'Sir Seewoosagur Ramgoolam said that he was convinced that the question
of Diego Garcia was a matter of detail. There was no difficulty in principle'. 32
When the conference resumed the same afternoon, the Mauritian delegation
(the PMSD still being absent), given reassurances on various issues (including
fishing rights), agreed to the excision of the Chagos in return for compensation
of £3 million. This opened the way for Greenwood to close the conference the
following morning with an announcement inviting the Mauritians to decide
upon independence at their next general elections, that is, rejecting the PMSD's
demand for a referendum on the suh>ject.
Did this agreement entail, as Chan Low concludes, deceit and blackmail?
Each of the two leaders had his own political objectives; each faced important
political pressures, from the US in Wilson's case and, in Ramgoolam's, from
strong domestic opposition to independence. As is in the nature of political bargains,
each paid what he regarded as an acceptable price for reconciling their
primary aims. 33
Britain and the United States
Following the 1964 survey visit, as Bandjunis records, 34 enthusiasm for developing
Diego Garcia grew sharply within the Department of Defense, and included,
for the first time, expressions of interest from the US Air Force. Well-informed
press reports also began to proliferate, inspiring expressions of concern at the
United Nations. However, in the US there were also other political preoccupations.
President Johnson, now standing for election in his own right, secured the
passage through Congress of a resolution giving him greatly increased freedom
of action in Vietnam and presaging a major escalation of hostilities there. The
Chagos issue was lost to view. In December, the British urged the US to decide
how exactly they wished to proceed. In January 1965, the Americans responded
that they had definite military plans for Diego Garcia, but wished the rest of the
Chagos Archipelago to be included, 'primarily in the interests of security and in
order to have other sites available for future contingencies'. They also asked for
Aldabra, Coetivy, Agalega, Farquhar, Desroches and Cosmoledos to be included
in the 'detachment package'.
In April, British ministers reacted favourably to the American requests, but
Annex 235
474 Chagos: A History
decided to seek an American contribution to the costs of detachment. The
Americans, after reminding the British of their previous acceptance of such
costs (page 469 above), agreed to contribute up to half of the anticipated £10
million involved. At the prevailing rate of exchange (£1=$2.8), this share
amounted to $14 million. However, in view of the likelihood that Congress
would refuse to appropriate funds for this purpose, the payment would be made
secretly by waiving part of the research and development costs of an ongoing
missile programme. 35 Conveniently, the US Chiefs of Staff concluded that perpetual
access was worth $15 million, 36 while the State Department official who
presented the resulting draft agreements in September explained that the US
Government wanted an 'Ascension-type' agreement with once-for-all compensation.
37 As in all their dealings concerning Diego Garcia, then and subsequently,
the Americans sought to avoid any direct dealings with Mauritius concerning
compensation. Their consistent policy was to deal only with Britain as the
responsible sovereign power.
BIOTis born
With the political obstacles cleared, the way was now open to set up the new
colonial entity and the British government lost no time in doing so. Instructions
were sent to the Governors of Mauritius and Seychelles to seek formal agreement
of the local representative bodies to the detachment of the various islands
concerned. This was given by Seychelles on 1 November and Mauritius on 5
November. 38 On Monday 8 November 1965, by Order-in-Council, the British
Indian Ocean Territory was formally promulgated (and soon became known by
its acronym BIOT), with parliament informed two days later by Written Answer
, to an arranged parliamentary question. From the larger number of islands earlier
proposed, only the Chagos, together with three Seychelles islands (Aldabra,
Farquhar and Desroches) were included. The Order also provided for the Territory's
administration by a Commissioner (the existing Governor of Seychelles)
assisted by an Administrator. The Answer explained that 'the islands will be
available for the construction of defence facilities by the British and US Governments,
but no plans have yet been made by either Government. Appropriate
compensation will be paid'. On 12 November, three PMSD Ministers of the
Mauritius coalition government resigned, on the ground that Mauritius had
been inadequately compensated. There followed a whole year before any further
public moves were made. 39
Annex 235
1962-1965: Fateful Decisions 475
BIOT and the United Nations
Nevertheless, the announcement of the creation of BIOT occurred while the
annual General Assembly of the UN was in session. As usual, Britain had many
contentious issues to face, not least the decolonisation questions arising in the
Fourth Committee. Here, the UK was accustomed to take a strong stand in
defence of the right of the Falkland islanders to decide their own future. The
potential embarrassment of having to defend the very different arrangements
envisaged for BIOT was obvious and officials turned urgently to examine how
oversight by the UN might legitimately be avoided. One option - to remove the
populations of all the islands ahead of any defence construction, was quickly
rejected as being indefensible, for economic reasons in Seychelles and political
reasons in Mauritius. Officials concluded almost as quickly that the only basis
for denying the existence of a permanent settled population in BIOT was to
define their presence in terms solely of their employment and their links with
either Mauritius or Seychelles. Vulnerability to criticism of this approach in UN
fora was foreseen, but judged less damaging than the expected interference of
UN bodies. Thought was then given to ways of presenting this choice so as to
blunt criticism as far as possible. It could be pointed out that all those on the
islands were contracted employees of the companies concerned (or dependants
thereof) and all had established links with either Mauritius or Seychelles. Noone
obtained a living from independent economic activity. On this last point,
the views of Newton were sought. He replied that ' ... as a matter of personal
interest, [he had been] anxious to try to find established communities on the
islands, particularly people who had made their living by fishing or market gardening,
etc. [He] failed to find any'.40 However, as it turned out, the timetabling
of the agenda that year made it unnecessary to deploy the proposed
arguments.
Notes to Chapter 22
1 TNA CO 968/842 Robert Newton, CMG, Report on the Anglo-American Survey in the Indian
Ocean , 1964, submitted to Secretary of State Duncan Sandys on 23 September 1964. Born in 1908, Newton
had wide experience of colonial administration, having served in Nigeria, Palestine and Jamaica, before
his appointment in 1953 as Co lonial Secretary [deputy to the Governor] in Mauritius, from where he
retired in 1961. He then obtained election to the Exeter City Council, later being chosen as one of its
Aldermen.
2 This vessel had been built in the US in 1909, as the Telma, an d late r renamed La Perie. She was used
regularly until 1971, her last voyage being that to remove the last islanders from Diego Garcia (article
dated 10 May 2004 in the Seychelles Nation).
3 On Diego Garcia , H aro ld Pouponneau succeeded Robert Talbot ; on Peros Banhos, Henri Gendron
joined a M. Gu ill emin, later taking over; on Salomon, the new man was a M. Remy.
Annex 235
47 6 Chagos: A History
4 TNA CO 1036/796 Letter dated 2-7 September 1962-.
5 Marcel Moulinie, Paul's nephew, sent to replace hi uncle's iniLial appointee, Pouponneau, spoke
forcefully in this sense to NW-S during his vi ·it to eyc hellcs in 1995; Talbot's comment was made in
answer to NW-S's question during a visit to Mauritius in 2-010. Both conversations took place before the
relevant census figures were known to the latter.
6 The Mauritian newspaper l'Express carried articles in its is ue for 2-4 April an I 7 July 1974 about
the 'Eden and hell that was Agalega'. 111ese reported a diatribe in the Mauritius parliament by the then
PMSD depury, Raymond d ' Unienv ille, about the consequences of the Seychellisation of Agalega following
its purchase by Paul Moulini~ and the subsequent appointment of Pouponneau as manager . The
population had halved from its previous figure of 400, and only So Tlois remained. who were, according
to the article , treated much more harshly than the workers introduced from Seychel les.
7 fernand Mandarin , as dictated to his collaborator, Robert Furlong (personal communication, July
2012). Official figures , however , show a decline of only about 60 between 1962-and 1964.
8 TNA CO 968/842-Repon by Robert Newton.
9 TNA CO 1036/l582 Secret and Personal Telegram No. 49 of 22 February 1963.
10 AJI the Seychellois were employed on either two-year (head of families) or eighteen-month
(bachelors) c ntracts .
11 Newton op. cit., paragraph 24. Critic s of this view have suggested that Newton was deliberately
seeking to minimi e the extent and depth of Ilois links wi th the Chagos , in conformity with already -
formed Whitehall views. However, tl1e issues that later concerned the British government, in particu lar
the status of the Ilois under the UN Charter, were nol to urface for al least another year .
12 TNA FCO t41/J462 Governor eychelles Telegram No. 159 dated 10 August 1964.
13 It was in that month that the U plans were described in American and British newspapers, immediately
attracting international attention.
14 Vine, D., Island of Shame, Princeton University Press, 2009.
15 British Emba sy, Washington Note to the tate Department of 29 f LLly 1963 (Vine , op.cit p. 71).
16 To the con ternation of official in Whitehall , the memorandum from the U Bmba sy in London
envisaged an eventua l requirement for 3,000 acres and accommodation for 350 operative .
,7 TNA CAB 21/5418 Chiefs of Staff paper 95/64; also TNA DEF 12-7/12-3/03 memorandum following
the talks .
18 Chan Low, J., 'The Making of the Chagos Affair: myths and reality', in S. Evers and M. Kooy (eds.)
Eviction from the Chagos Islands , Brill, Leid en 2ou .
19 The BriLish interest in Aldabra clearly reflected the government' deep anxieties about developments
affecting Britain 's very important economic and political engagement in central and southern
Africa, as well as the possible need to intervene on behalf of the large numbers of British nationals in the
area. Only a few months earlier, British forces had intervened to help put down mutinies in East Africa,
while the sit1.1ation in Rhode la wa becoming steadily more tense . When the possibility of developing
Aldabra became publi c, the scientifi communily mounted susta i ned oppo ition to the project and its
e ventual abandonment gave rise to th e belief, till held in some quarter , that the human of the Chagos
were sacrificed for the sake of the giant tortoises of Aldabra . The prosaic facts thal the Americans
declined to contribute and the British could not afford to undertake such development alone were as
nothing compared to so powerful a myth .
2-0 TNA CO 1036/1582 Sir John Rennie, letter dated 6 June 1963.
21 TNA CO 1036/1582 Colonial Office Secret and Personal Telegram No. 39 to Port Louis, dated 16
December 1963.
2,2, TNA FCO 141/1464 Governor, Mauritius, Secret and Personal Telegram No. 83 dated 1 July 1964.
23 TNA FCO 141/1464 Colonial Office Secret and Personal Telegram No. 19 to Governor Mauritius
(also to Governor Seychelles as No. 42-) dated 6 March 1964.
2-4 TNA FCO 141/1464 Letter dated 23 March 1964 from Smith (in Port Louis) to J.G. Marnham.
2-5 TNA FCO 32-/484 C.C.P. Heathcote-Smith, BIOT: Chronological summary of events leading to i
creation ... and subsequent events relating to the establishment of UK/US defence facilities. Iterri 7 quotes
an American communication dated 10 February 1965 as follows: 'No reason to re-locate population prior
Annex 235
1962-1965: Fateful Decisions 477
to Island coming into use to meet a requirement. This would apply to other islands of the Chagos Archipelago
as long a s our activity was confined to Diego Garcia'. [Heathcote-Smith , a Counsellor available
between postings, had evidently been called in to summarise the material accumulated in a multitude of
departmental files; the result remains an admirable aid to historians.]
26 TNA CO 1036/13 P. Lloyd, letter dated 22 June 1965.
27 TNA FO 371/184524, folio Z4/86 Letter dated 13 July 1965 from T. Smith (Colonial Office) to J.A.
Patterson (HM Treasury).
28 Chan Low op. cit.
29 A Cabinet ally of Greenwood, Barbara Castle, referred in her published diaries to a meeting on 31
August 1965 to discuss the Chagos, remarking 'I approve the motive: to off-load on to the US some of our
responsibilities East of Suez; but I don't like the method'. The Castle Diaries 1964-70 Weidenfeld & Nicolson,
1984.
30 We do not think this suggestion is fanciful. It is, for example, put forward by Ashley Jackson (page
183 of his War and Empire in Mauritius and the Indian Ocean, Palgrave 2001). Also, NW-S consulted Sir
Oliver Wright, the official responsible for recording what passed between Wil son and Ramgoolam . His
reply, at the age of 89, was commendably Delphic, but cited another example where, in 'high politics', a
favour was given, or returned, unrelated to the logic of immediate policy.
31 TNA CAB 48/18 is the main Whitehall source for this material'.
32 TNA CO 1036/253 The two quotations cited by Chan Low are from the record of conversation
between Prime Minister and Premier of Mauritius at 10, Downing Street at 10 a.m . on Thursday 23 September
1965.
33 In 1982, following a general election in whi ch Ramgoolarn was defeated, he was summoned before
a Select Committee on the Excision of the Chagos Archipelago, to whose questions he replied 'I thought
that independence was much more primordial and more important than the excision of the island which
is very far from here, and which we had never visited, which we never could visit ... If I had to choose
between independence and the ceding of Diego Garcia, I would have done again the same thing.' De
l'Estrac, J.C., Report of the Select Committee on the Excision of the Chagos Archip elago, cited by L. Jeffery
in Chagos Island ers in the UK (p.33) Manchester University Press 2011.
34 Bandjunis, V.B., Diego Garcia: creation of the Indian Ocean base (pp. 13- 14) Writer's Showcase
Lincoln 2001.
35 Bandjunis op.cit. (pp. 26-27) describes the arrangement in detail.
36 Vine op. cit. (p. 82).
37 TNA FCO 32/484 Heathcote-Smith op. cit , (item 43).
38 Ibid . (items 48 and 49) The two colonies' agreements came in response to Despatch No. 423 of 6
October 1965 to Port Louis and Telegram No. 338 to Seychelles, dated 20 October .
39 The procedure for announcing the government's decision was that traditionally used for reporting
colonial legislation . It enabled the government to evade prior parliamentary debate and to hide both
the financial arrangements (awkward for the US Administration) and questions about the treatment of
the existing island inhabitants (highly embarrassing for the British). However, those (such as Vine op.
cit. p. 83) who have claimed that the creation of BIOT was not announced publicly are mistaken.
40 TNA CO 1036/1344 Minuting by officials (T.C.D. Jerrom, H.P. Hall, K.W.S. Mackenzie) in November
1965.
Annexes