“The US had dismissed the remarks of “an Annexe 7 tribunal” on the MPA and has now dismissed a ruling of the ITLOS on the Chagos. But when an Annexe 7 tribunal rules on Chinese claims over the South China Sea, the US not only accepts the ruling but keeps insisting on the need for China to comply with it.”

Against a backdrop of US President Joe Biden’s statement to the Washington Post about the Chagos archipelago and the latest revelations on Agalega made in Aljazeera, we talk to Milan Meetarbhan, former diplomat, about his reading of the situation and the implications on Mauritius. His views are well-informed, succinct and thorough. You might want to watch out for the occasional sarcasm…

“Tiny Mauritius learns the limits of Biden’s invocation of the international ‘rules-based order’” titles the Washington Post this week. Is there a context we should be aware of?
The new Biden administration has made it a cornerstone of its policy to promote a rules-based order in contradistinction from that of its predecessor who disengaged from multilateral institutions and whose America First strategy disregarded established rules. It has committed to respect, unlike the previous administration, rule of law at international level. Biden has indeed re-engaged with WHO and declared his commitment to promote human rights everywhere.

This respect for the rule of law does not seem to apply to the US-British occupation of Chagos, does it?
No, when it comes to a clear and unequivocal exposition of the law with respect to the Chagos, the administration does not seem to care much about what the highest judicial organ of the United Nations considers to be the law.

But International Court of Justice’s advisory opinion is not legally binding…
No, it isnt but a near-unanimous opinion of the top judges of the world court on a point of law cannot be disregarded. It’s interesting to note that the US had similarly dismissed the remarks of “an Annexe 7 tribunal” on the Marine Protected Area and has now dismissed a ruling of the International Tribunal of the Law of the Sea (ITLOS) on the Chagos. But when an Annexe 7 tribunal rules on Chinese claims over the South China Sea, the US not only accepts the ruling but keeps insisting on the need for China to comply with it. These are the double standards which we are so much used to in international politics.

It’s a pity, isn’t it? We had placed high hopes in the Biden administration…
Those who hoped that there would be an injection of a certain degree of morality after the depraved Trump years are disappointed that this will not be the case at all times.

“As far as I know, Mauritius had previously made its sovereignty claim as a matter of national dignity and repairing a serious harm done to our country.”

So back to square one?
The US statement on Chagos to the Washington Post is the first on this issue from the new Biden administration. In many respects, it is in fact harsher and more unequivocal than that of previous administrations. The statement makes it clear that the US special relationship with Britain is “irreplaceable”. Thus, the question of having a lease over Chagos from Mauritius instead of the present arrangements with the British would be a non-starter. Mauritius has repeatedly stated over the last decade that it would be prepared to negotiate a lease agreement which would enable the Americans to keep their military facilities in Diego. It would seem that the present US administration would not be prepared to even consider this option. Thus, any hopes of trilateral talks between US, UK and Mauritius over the recognition of Mauritian sovereignty over the archipelago followed by a new lease agreement have been dashed. I remember an expert panelist on a local radio show a day after the US elections saying that we should immediately ask for an appointment with Biden for the week after his inauguration in January, failing which we should meet Kamala Harris about Chagos during her first week in office!

Such innocence! So what’s the way forward now?
In the absence of talks between the parties concerned, Mauritius has no choice but to pursue its legal and political strategies at multilateral level.

Every time we think we are getting nearer to a denouement, we find ourselves in the same place. Are there any signs that this time we are nearer to finding a solution?
We have seen some progress since Mauritius initiated judicial proceedings in December 2010. We had a decision from an international tribunal recognising the interests of Mauritius over the archipelago, followed by a favourable advisory opinion from the ICJ and a more recent ruling from ITLOS. There has also been a largely supported UN General Assembly resolution asking the UK to cease its occupation. However, the judicial recognition of Mauritian claims made over the last 50 years have been treated with utter disregard by two permanent members of the Security Council. Mauritius does have the support of the African Union and several other UN member States but so far there is total deadlock over the issue with respect to the other two main parties to the dispute.

Jean Claude de l’Estrac, an author of two books on Diego Garcia thinks politicians are giving too many hopes to Chagossians and the media keeps encouraging them. Do you agree?
I believe it is important to stress once again that successive Mauritian governments have focused on the sovereignty claim and not on the right of resettlement of Mauritians of Chagossian origin, per se. Of course, if Mauritius can exercise its effective sovereignty over the archipelago, then all Mauritians including those who are of Chagossian origin would have access to the islands, barring the main island of Diego Garcia, which would be leased to the US under an agreement which would presumably provide for restricted access.

These two issues have not always been distinct, have they?
It’s true that the distinctions between a legal and political battle over sovereignty and the right of return for Mauritians of Chagossian origin or the legal battles of these people themselves before the UK courts or the European Court have not always been properly understood. The   conflation of these two legal issues has led to a lot of confusion.

Wasn’t that confusion made worse recently when Olivier Bancoult got involved in lobbying?
Yes. The fact that governments have recently brought in Olivier Bancoult as part of their diplomatic lobbying has further confused the issue. One issue is about sovereignty and breach of international law and is being fought on the basis of international law before international tribunals and the other is an issue that has been raised essentially before English courts as a matter of English domestic law. Whilst there is a lot of empathy, both in Mauritius and overseas, for the people who were forcibly removed from their land by the British at the behest of the Americans, this has often resulted in the intricacies of the legal struggle over sovereignty and those of the resettlement issue being misunderstood and might also have given rise to forlorn hopes.

“Seychelles decided to have the agreement over facilities granted by the Executive on one of its islands ratified by its parliament. The agreement therefore had to be published. Mauritius did not consider that parliament had to ratify the agreement or that parliament should even know what’s in it.”

The government has apparently stated that the US could keep its base as long as it pays rent for the lease of Diego Garcia. What does this mean for our sovereignty and for our hopes of a dénouement?
This demand was apparently made for the first time by the Jugnauth government. As far as I know, Mauritius had previously made its sovereignty claim as a matter of national dignity and repairing a serious harm done to our country. If it is indeed true that payment of rent is now on the table, it will make a denouement, as you put it, even more difficult. The US has not paid any rent to the UK over the last 56 years and why would it consider entering into a lease agreement with a new landlord with whom it does not have the same close relationship and on top of that have to start paying for use of the island. The position taken by the Biden administration and the new Mauritian demand, if true, will certainly make things harder for us in dealing with Washington. This is why the Mauritian government has appointed a seasoned diplomat with great mastery of international relations and negotiations as our ambassador in Washington [Former Minister Mahen Jhugroo – Ed]. The government has no doubt that he will sit down with officials at the State Department or even the White House and talk their language. Relatives of royal families always seem to have had their way with the White House. (Laughter)

I nearly believed you there! Many people compare yesterday’s Chagos to today’s Agalega. Do you see any similarities?
There are similarities to the extent that military facilities have been accorded (or might have been accorded, in the case of Agalega) in both cases over part of Mauritian territory. But the two cases are different in that in one case, there was excision of Mauritian territory by the colonial power prior to independence whereas in the second case, the government of independent Mauritius may have granted facilities over its territory. Whereas one of the main grounds for the legal challenge against what the British did over Chagos is that they did not respect the right of self-determination of the Mauritian people, in the case of Agalega, the Mauritian government might have acted without disclosing to its people what has been done in its name.

What exactly is the truth about Agalega? We have been hearing so many stories, particularly from foreign media and the prime minister keeps repeating that there is no agreement between Mauritius and India for an Indian military base. Who do you believe?
I believe that the Mauritian government has been playing on semantics. The use by the media of the term “military base” gives the government enough grounds to deny the stories. Indeed, there may be no foreign military base as such on Agalega. But a foreign government may have been authorised to have certain “facilities” there.

So our sovereignty is threatened again?
A government may cede certain sovereign rights over part of its territory without ceding sovereignty. Whatever may be the merits or otherwise of the grant of these facilities, there would have been no speculation as to whether sovereign rights have been ceded if the agreement had not been shrouded in secrecy. India has world class think-tanks and top-notch analysts who are well informed and they have openly and unabashedly discussed what these new facilities on Agalega would mean for India. But on the Mauritian side, there have been systematic blanket denials in the face of mounting media exposure over what’s happening. Even if one may have no qualms about extending certain facilities in the interest of regional security and maritime cooperation to a friendly government which also happens to be another coastal state of the Indian Ocean, one may nevertheless have strong reservations about one’s government lack of transparency and a prime minister being economical with the truth. Talking about sovereignty, the statement this week by a minister of the republic about discussions she’s had with her counterpart (“homologue” she said) in Rodrigues raises the question as to whether a minister talks to his/her counterpart when engaging with a foreign government or whether a minister of the central government has an “homologue” within national boundaries.  The discussion about sovereignty keeps getting blurred.

How blurred? As blurred as the Aljazeera programme suggests?
The Aljazeera report is one among many from the media, academics and think-tanks. Repeated denials and/or playing on words in the face of mounting evidence will lead to a serious erosion of credibility if the Mauritian government keeps saying that there was nothing but a building works contract. A  G to G civil engineering agreement that cannot be made public! The Mauritian government cannot continue to maintain the cloak of secrecy and its blanket denials without losing credibility. Mauritius’ already fledging image and credibility on the international scene after the Wakashio incident, the preposterous proposals on intercepting social media traffic and more recently the shameful events in parliament, will take a further hit.

This time, no reaction from the prime minister. Instead, it is one of his advisers who parrots the same answer. Is the situation so trivial that it is advisers now who deny the allegations of journalists and media?
I am sure that the adviser is in the know and must have been privy to the talks between the two states or he must have had sight of the agreement which has not been disclosed to the nation. From his privileged vantage, he says there is no military base. Let the people judge for themselves what facilities have been granted and whether these were justified or not.

The Seychelles has made the agreement between India and the island public. Is there a reason for the secrecy when it comes to us?
Seychelles decided to have the agreement over facilities granted by the Executive on one of its islands ratified by its parliament. The agreement therefore had to be published. Mauritius did not consider that parliament had to ratify the agreement or that parliament should even know what’s in it.

The World Bank has just published its Supreme Audit Institutions Independence Index. Out of 118 countries, the Seychelles is rated first and Mauritius 37^th. Does that gap surprise you?
We used to be so proud of our rankings. At roadshows overseas to promote investments in Mauritius, we used to proudly display all the global rankings which showed how good we were. Now the African Development Bank points a finger at us for corruption, the V Dem institute funded by major donors says in its latest report that the we are one of the new “autocratisers” on the block, we are on blacklists, international credit institutions downgrade us, the international media talks of massive anti-government demonstrations in the streets of the capital and of shameful incidents in our parliament. Our neighbour says that it has more civilised debates in its parliament than we do. Now the World Bank Supreme Audit Institutions Independence Index ranks the degree of independence of our supreme audit institutions as being neither very high nor high but only in the third category of countries where it is only “substantial”. Can anyone be surprised?