Contribution
My Lords, Amendments 8 and 9 are in my name. Amendment 8 says that the treaty shall not come into force until a binding case in an international court requires us to cede sovereignty over the Chagos Islands. Amendment 9 requires the Government to spell out their legal position on why they believe such a ruling to be possible, let alone likely.
The whole basis of the Government’s case is that
“without this deal … within weeks we could face losing legal rulings, and within just a few years the base would become inoperable”.—[Official Report, Commons, 22/5/25; col. 1284.]
At Second Reading, the possibility of such a ruling was contested not just by me but by several other noble Lords, on the basis that there is no international court which can rule against our sovereignty in this way. Yet Ministers failed to address that issue and those arguments. Even noble Lords who have held the highest office in the FCDO—mandarins of our diplomatic corps who tenaciously defended this deal—failed to answer or address the question of which court could reach a binding judgment against us.
First, everyone acknowledges that the ruling of the International Court of Justice was purely advisory and not binding on us. Secondly, it was based on resolutions of the UN General Assembly which themselves are not legally binding; nor have they ever been endorsed by the Security Council. Thirdly, when Britain signed up to the ICJ, it specifically precluded disputes between the UK and present or past members of the Commonwealth. So the ruling was triply non-binding, and the ECJ cannot rule against us on this in future because it is a dispute with a Commonwealth country.
Ministers have chosen to ignore these arguments and not dispute them, although it is not clear that they were aware of this situation when they plunged into these negotiations. I rather suspect they were not. They have tacitly acknowledged the truth of these arguments by moving on to assert that the tribunal of the UN Convention on the Law of the Sea could rule against Britain and in favour of Mauritius on the issue of sovereignty. As the noble Lord, Lord Murray, spelled out in forensic detail, the International Tribunal for the Law of the Sea has no such power. Britain has invoked Article 298 of the convention, which excludes military matters, so it is outside its wherewithal.
Even when the Philippines brought a case about artificial islands built in the South China Sea, ITLOS ruled that it cannot rule on the sovereignty of the area around those artificial islands—that is not within its purview. It can rule whether the islands are artificial or real and therefore have some territorial waters or not, but not whose they are and who they belong to.
We wonder why the Government got into this position. If the court has no power to rule on matters of sovereignty and the UK insists on exercising its rights under Article 298 of the convention, it just cannot do so. The Government’s silence on all these arguments must be deemed tacit acceptance that they are true. If there is some court or some hidden clause in the agreements that none of us knows about which overrides the points I have made, Amendment 9 will be no problem for them because they can implement it. According to them, within weeks, an adverse ruling will occur in a court which is binding on us. Since they have quite a long time before they can complete even these processes, we will get to know the answer to that conclusion. Alternatively, they could accept Amendment 9 and spell out the legal basis on which they believe an international court—which international court, why and on what grounds—could find against us.
If the Government reject this amendment, we will know that they do not even believe their own case. We will be forced to conclude that they are following, wittingly or unwittingly, the long-standing view of the Foreign Office—expressed very eloquently by the noble Lord, Lord Hannay, in the Second Reading debate—that, unless we accept even an advisory ruling, we will not be able to persuade other countries to accept legally binding rulings. That is perhaps how diplomats think, but it ought not to be how this House thinks.
We ought to reject that doctrine and be very cautious about allowing ourselves to be driven along by long-standing arguments of the Foreign Office. Thinking back, it was very keen on us giving up the Falklands to the Argentines, so it is perhaps no surprise to find that it is very keen nowadays on us giving up Chagos to Mauritius. But none of them—and none of the great mandarins who spoke in the debate—spelled out why we are legally obliged to do so. It was all on the basis that the Foreign Office position would be easier to maintain logically and would be more persuasive with Governments that, otherwise, we were recklessly following.