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JUNE 2021

Selective Maritime Rules: The United States, Diego Garcia and International Law

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Selective Maritime Rules: The United States, Diego Garcia and International Law

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Submitted by Dr. Binoy Kampmark

There are few more righteous sights than the paunchy US Secretary of State savaging the People’s Republic of China with his next volley on Chinese territorial aspirations.  In July, Mike Pompeo released a statement putting any uncertain minds at ease on where Washington stood on the matter. “We are making clear: Beijing’s claims to offshore resources across most of the South China Sea are completely unlawful, as is its campaign of bullying to control them.”

International politics, for all that confidence, rides on the stead of hypocrisy.  The more vehement a condemnation regarding a course of conduct, the more likely the stead is about to turn.  For all the promises of freedom of navigation and repudiation of Chinese claims to the South China Sea, the United States nurses its own questionable readings of international law.  The term “rule based order” is a lovely one seemingly shorn of realpolitik (nothing of the sort), but collapses on closer inspection.

When it comes to the matter of alleged Chinese violations of maritime law in the South China Sea, odd messages bubble from the mouths of US officials on, for instance, violations of the UN Convention on the Law of the Sea.  Pompeo speaks of preserving “peace and stability”, upholding “freedom of the seas in a manner consistent with international law, maintain the unimpeded flow of commerce” and opposing “any attempt to use coercion or force to settle disputes.”  He also refers to UNCLOS, a document the United States has not ratified despite President Barack Obama’s previous plea that the Senate, were it to do so, “should help strengthen our case [against China’s actions in the South China Sea].” Smugly, Pompeo cites the ruling of the Arbitral Tribunal constituted in accordance with UNCLOS, as its finding on July 12, 2016 rejecting “the PRC’s maritime claims as having no basis in international law.”

The same can be said of the enormous air base known as Diego Garcia, located in the Chagos Archipelago in the Indian Ocean.  It is worth noting that predatory behaviour was very much part of the policy towards the indigenous populace of the island, which had been a dependency of the British colony of Mauritius.  In 1965, the Chagos Islands was separated from Mauritius in exchange for an “indemnity” of £3 million. What was created in its place was a legal misnomer of some nastiness: the British Indian Ocean Territory.

In 1966, the US was promised a strategic tenancy on Diego Garcia for five decades.  The UK Permanent Under-Secretary promised to be “tough about this.  The object of the exercise was to get some rocks which will remain ours; there will be no indigenous population except seagulls who have not yet got a Committee (the Status of Women does not cover the rights of Birds.”  Very droll.

This brutal endeavour was done as part of Britain’s continued need to feel relevant in the post-colonial power game, a supposedly sagacious proxy for the projection of US power.  It was also done against the spirit of decolonisation stressed in UN General Assembly Resolution 1514 (XV), which noted that “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”

The British authorities were true to their word: the indigenous population between 1967 and 1973 was forcibly relocated to Mauritius and the Seychelles, with the US paying $14 million for the effort.  The way for the establishment of a military base was cleared but only after pockets of Chagossian resistance were crushed through threats and intimidation.

Analysts from the US perspective look at this situation as one forced upon the United States and find China, as tends to be the pattern these days, the catalyst of encouragement.  “The policy trigger,” writes retired Rear Admiral Michael McDevitt, “was the 1962 Sino-Indian war, when Indian Prime Minister Jawaharlal Nehru had pressed Washington for military assistance to India.”  The Kennedy administration obliged by sending the USS Kitty Hawk, an aircraft carrier with the express purpose of deterring China in the event of any push towards Calcutta.  The analysis by McDevitt is bloodless, mechanical, and makes no mention of the Chagossians.  Absent are US methods of terroristic pummelling.  What he does describe is the indispensable nature of the base, “perfect … for US Navy maritime patrol aircraft and especially US Air Force heavy bombers.”

These were not views shared by many members of the UN General Assembly.  In June 2017, the General Assembly, in resolution 71/292, requested an advisory opinion from the International Court of Justice on whether the decolonisation of Mauritius had been lawfully completed with regards the separation of the Chagos Archipelago.  A second question also arose on the legal consequences of the UK’s “continued administration … of the Chagos Archipelago including with respect to the inability to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin”.

In its February 25, 2019 opinion, the ICJ found that “the process of decolonisation of Mauritius was not lawfully completed when that country acceded to independence”.  The UK was “under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible.”  The judges acknowledged resolution 1514 (XV) as “a defining moment in the consolidation of State practice on decolonisation” and that “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination.”  No evidence of approval of the practice of an administering power’s detachment of part of a non-self-governing territory, certainly for the purposes of maintaining colonial rule over it, was shown.  “States have consistently emphasised that respect for the territorial integrity of a non-self-governing territory is a key element in the exercise of the right to self-determination under international law.”

The UN affirmed the 13-1 opinion in May 2019, calling upon Britain to “withdraw its colonial administration” within six months and duly acknowledge Chagos as forming “an integral part” of Mauritius.  Eviction orders received that month were ignored by the British, showing that the Anglo-American reverence for the sacred “rules-based international order” can be selectively profane when it needs to be.  “The United Kingdom is not in doubt about our sovereignty over the British Ocean Territory,” insisted Britain’s ambassador to the UN, Karen Pierce.  The territory had never been part of Mauritius and it had “freely entered into an agreement” covering fishing rights and marine resources.  The question left begging here was how the entity could lawfully enter into any arrangements with Britain over Chagos if the territory had never formed the basis of Mauritian control.  The spirit of Neville Chamberlain, one approving the ceding and dividing of territory not his own, is still very much alive.

It is worth nothing that the approval of the ICJ findings, along with international law bodies in general, is very much dependent on favourability towards the great power.  Playground bullies are always bound to ignore them; small states, less likely to.  Just as China refuses to acknowledge the legitimacy of international judicial rulings on its maritime claims, the US and Britain refuse to acknowledge determinations regarding the status of Diego Garcia and the Chagossians.  That’s the rules-based order in international relations for you.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

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igybundy

FREE DIEGO GARCIA!!!!!!!!!!!!!!!!!!!!!! No better than the settlers in Palestine. Taken by force and murdering their pets and livestock..

Jens Holm

So You deny Vietnamese, Philipines and Malaysians rights there even they has been the wast majority there for at least 1000 years.

Comparing with Palestine makes no sense.

Lone Ranger

Diego Garcia doesnt have natives.
They were forcefully deported when U.S. took over the Island from the UK.

Jens Holm

Its irelevant. It makes no sense the chinese should have owned those Islands and the sea there if they didnt have Vietnam or maybee the Phillipines.

By that any logic sense say, they should demand rulership of Vietnam too.

I have checked many maps. NONE makes any China south of Hainan. NONE.

Lone Ranger

China only wants the Islands they already own.
Isnt Greenland Danish territory…?
Whoopsy…

Jens Holm

The red line says, what they want to control.

Greenland was a part of Denmark/Norway with other Islands. So Norway got its parts, where they got their parts. Svalbard here is the biggest possetions, where they have a coal mine and do share coalmining with the Russians.

Greenland also has rights for Antarctica in South, which we dont have anymore. I am aware its used for science only bus as territory its very big.

That was decided by a neutral international organisation and not Denmark and Norway.

And Greenland. Well, when we with Norway took and had it there were less then 5.000 very poor Inuits. Today there are 55.000 BUT we feed that region with about 300 mio dollars a year. So we have develloped it and kept it well and also pay. If You ask the people there only few want to be their own.

And they are now autonomes and an equal part of Denmark and no more a colony.

About fx minerals and fishing. Unfortunetly there is no fortune there. Maybee a warmer climate will make more fisk. But none see a high income and facts are, that if Greenland gets incomes, they have to pay more for themselves just as the rest here. If You have a high income, You also pay high tax. I You have a low one, You still gets free school, free hospital and in Greenland a little lower pension.

Thats how it is. Only few want to be their own and even less want to be connected to Trump.

They have their own language but also learn danish and english, so they can connect. 55.000 is not enough for educations, so they have to learn dansih to get a free one here. But things has changed. Many now are connected by Internet.

There is no ooops there. Grenland is recognized as Danish and before that also Norweigian territory even before 1600. We were a small empire there having Iceland too and some small colonies in the tropics.

We have had many explorers there and deep into Baffin Bay is the most famous one. Vikings was there for about 300 years, but suddenly was not there.

So it makes no sense to compare. Inuits from Canada and Alaska has no patent there. They have done exact the same. They have immigrated to there. All died. and after fx 500 year a new grpup tryed maybee in a varmer period and they died and we have the ones, we have today, which partly are mixted up with Europeans.
……………………………………………………………………………..

And You dont get the difference in relations here in Skandinavia. When Norway wanted independensy from Denmark, their first King was a Danish Prince and there was no violence.

Very much of the navy was norweigians and not only the low ranks. And we see that connection today. Both countries has many many vessels around the world because we were used to and independed to it.

By that Greenland is not as far away as You almost insinuate. Iceland as stepstone was there too. They have been there since some Norwegian King didnt like them, so things were not empty.

I can add Faroo Islands having Autonomy as well. They are more their own because they have a much better economy. We only help the, with some defence and a few tother things.

And You might not understand it the connection also are direct connections with “Southern Denmark”. They get almost all of their food from here by big ferries and cargo ferries.

We mainly gets a lot of fish and lam/sheep back.

…And we do negosiate about the Arctic sea not only for Denmark in South but also because they have to decide themselves as they almost already do. We dont want any to take over unless the Inuits want to.

They are not muslim girls raised for sale.

Lone Ranger

You should write a book about it Jens…

HiaNd

International “law” is based on right of stronger…end of the story.
South China sea will become real South CHINA SEA weather somebody likes that or not.

The same is when Russia is saying that nobody will use Northern route without their explicit permission.
They can try but their ships will be turned into sinking submarines immediately.

occupybacon

Russia does not support Chinese claims.

HiaNd

Russia is exporting plenty of Weapons to Vietnam (one of the best customers ) Indonesia (and other countries of the problematic region -“South China sea”)
Vietnam is winner in war against China long time ago and low key opponent to China expansion. Russian gas firm exploiting gas for Vietnam right on “9 dash line” claimed by China to be edge of her own territory.
They do not go perfectly well and they do not step on each other foot either….

Russia and China are very close allays but they are not strategic allays !
China doesn’t recognize Crimea as part of Russian territory, etc. They have bought huge amount of Soviet know how from Ukraine helping like that regime (enemy of Russia) to survive the most difficult period (if you are from Ukraine you know that better than I do).

Etc etc. I have plenty of examples of Russian – China cooperation and few where they don’t get long so smoothly but the most important strategic interests overcome all smaller differences quickly…

occupybacon

That’s what all I wanted to say about China’s claims, you said it better.

TopTier

If you spot a whale in the area please don’t harpoon it unless it’s pompeo!

Jens Holm

Comparing like that only make sense among mad scientists. China has possed the South China sea, when they had Vietnam too.

So if anything, they have to demand Vietnam back as well. The blueline or most of that by that anytime is more Vietnam then China.

I also recall well that many nations has been fishing all over. That goes for indonesians, Malaysiens in the Philipines. I can only see the chinese try to take maybee several 1000 years of rights from all the users.

Its the same all the way to Australia and out into the pacific. Its very dificult for me to see China has any right before as a minimum sharing by the old users. The Chinese here any time are a minority.

You can say fishing is not the same as oildrilling. I can only sea Binoy Kampmark suport theft based on things, which should not be compared at all.

It also false to accuse Pompeo. The Chinese does anything to make others go away from that sea territory and has succes using political, economical an military force.

I dont like Pompeo at all, but it is true small and weak persons all can be knocked out, if they dont have a big brother.

Deductions like the one by Binoy Kampmark makes camels fly even they dont want to.

occupybacon

More than a 1000 yrs ago the main religion there was Hindu, then Buddhism and Islam, then Bam! Portuguesse appeared, Catholicism too. Indeed China was always a minority there.

Jens Holm

Mongolia, Tibet, Kashmir and even Arctic.

Every time You breath a chinese is born, so try not to:)

Daily Beatings

The US is not even a signatory of the UN Convention on the Law of the Sea (UNCLOS). That’s why they had their pet Kangaroo make the formal complaint to the UN.

Daily Beatings

The US is not even a signatory of the UN Convention on the Law of the Sea (UNCLOS). That’s why they had their pet Kangaroo make the formal complaint to the UN. The US at one time upheld the claims of the 9 dash line when the ROC held the position at the UN security council. Hypocrisy in spades for the US.

cechas vodobenikov

NATO nations have no inherent right to involve themselves in civilized nations affairs—-the south China Sea is not the “amerikan sea”, nor is the the Persian Gulf the “amerikan gulf”….when the amerikans agree to abide by the ICC and join the international “community”, then perhaps their dying empire will obtain some credibility

kamalashila

on the map i see 2 aggressive countries: china and vietnam.

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