The Chagos Islands, the UK and the need for Free, Prior and Informed Consent (FPIC)

The Chagos Islands,the UK and the need for Free, Prior and Informed Consent (FPIC)

With all the activity that followed President Trump’s inauguration, it is perhaps unsurprising if his demand to review a recent agreement made between the governments of the UnitedKingdom and Mauritius—two ostensibly sovereign and independent nations—went unnoticed. The agreement to be reviewed is the proposed transfer to Mauritius, from the UK, of the sovereignty over the Chagos Archipelago, administered fromLondon as the British Indian Ocean Territory (BIOT) since 1965.

Background

The Chagos Archipelagois a group of seven atolls that sits in the middle of the Indian Ocean, about halfway between Madagascar and Sri Lanka. Initially colonised by France and administered from the French colony at what is now Mauritius, it was ceded toBritain in 1814. In this period, the respective colonising powers populated the islands with enslaved people, mostly coming from East Africa and Madagascar, and labourers from South Asia. These people—now known as Chagossians, Chagos Islanders or Îlois—formed their own distinctive kreol culture and language, separate from that of the rest of Mauritius. Due to their distinct history and culture, the Chagossians are recognised as an indigenous people by numerous international organisations including the UN and Human Rights Watch.

In the move towards decolonisation in the mid-twentieth century, along with several other African nations, Mauritius secured its independence from the UK after a series of negotiations between the new Mauritian government and its former colonial rulers. As a part of these negotiations, in 1965 the Archipelago was excised from Mauritius to form the British Indian Ocean Territory (BIOT) and continued to be administered by the UK—something that was not uncontroversial even at the time.[i] Nevertheless, the UK did commit to return the islands to Mauritius once they were no longer needed for ‘defence purposes’.[ii]A year later, in 1966, in an age of rapidly expanding US power, the UK finalised a separate agreement with the US to allow the latter to occupy and use the largest island, Diego Garcia, as a military base.

To facilitate the US’s demands, between 1965 and 1973 the British government forcibly removed the entire population of approximately 1500 Chagossians to neighbouring Mauritius and the Seychelles, many of whom have since moved to the UK. Many Chagossians have suffered from extreme poverty and discrimination following their displacement.[iii]Although the UK government has openly admitted that this removal of the indigenous population was ‘shameful and wrong’, and despite numerous legal challenges, the Chagossians are still unable to return to the Archipelago by virtue of UK law.[iv]Given this persistent delay and denial of the Chagossians’ requests to return to their homeland, the acts of the UK government sit in contravention to numerous human rights instruments, not least Article 13 of the 1948 UniversalDeclaration of Human Rights, the right to return. Human Rights Watch have even suggested that the UK’s treatment of Chagossians may constitute crimes against humanity.[v]

The legality of the denial of return to the Archipelago has been repeatedly challenged by those representing the Chagossians. In 2000 the English High Court ruled that this depopulation of the islands had in fact been contrary to the laws of the BIOT.[vi] In response, the UK government enacted an Immigration Ordinance that, in theory, allowed the Chagossians to return to the islands except Diego Garcia. However, in 2004, the UK government enacted another Immigration Order, this time prohibiting all unauthorised people (including Chagossians) from entering any part of the Archipelago.Initially, a legal team representing the Chagossians won judicial review of the order, but this was successfully appealed by the UK government in the House ofLords in 2008.[vii]A further case was rejected by the European Court of Human Rights in 2012 on the grounds of admissibility.[viii]

At the time of writing, no Chagossians have been able to return to the Archipelago.

While the Chagossians have yet to secure their right of return under UK or European law, the government of Mauritius has had more success with its claims to sovereignty. In2017, following these efforts by the Mauritian government, the UN GeneralAssembly adopted a resolution (94 for, 15 against, 65 abstentions) requesting that the International Court of Justice (ICJ) provide an advisory opinion on the legal consequences arising from the separation of the Archipelago fromMauritius in the run up to independence.[ix] In its opinion the ICJ was unequivocal in its condemnation of the illegality of the UK government’s actions.[x] The court advised that the process of decolonisation of Mauritius was not lawfully completed in 1968, and that the UK government’s continued administration of the Chagos Islands constitutes an ongoing illegal act.[xi] Following the opinion, the UN General Assembly adopted resolution 295 (LXXIII) on 22 May 2019 demanding that the UK Government withdraw its colonial administration from the Chagos Archipelago within six months, that the UK government work with Mauritius to facilitate the resettlement of Mauritian nationals on the Archipelago, and that all UN member states cooperate with the decolonisation process and refrain from any actions that would impede or delay this process—something that would apply to the US.^[xii]

The negotiations

Negotiations to discuss the handover between the (then) Conservative UK government and the government of Mauritius led by Pravind Jugnauth (MSM) were officially started on 3 November 2022. On 3 October 2024, the new Labour government in the UK and the government of Mauritius issued a joint statement announcing that the two countries had reached ‘an historic political agreement’.[xiii] As part of this agreement, both sides committed to finalise a treaty ‘as quickly as possible’.Under the terms of the future treaty the UK will agree to hand over the sovereignty of the Archipelago to Mauritius, including Diego Garcia, which would nevertheless continue to be leased to the UK for an initial period of 99years.[xiv] The treaty also agreed to establish a Marine Protection Area (MPA), something originally proposed by the UK in 2010 as a means to thwart Chagossian attempts to return to the Archipelago, but rejected by an international tribunal due to the lack of consultation with the Mauritian government.[xv] In addition to the handover, military lease and MPA, the treaty will seek to address past wrongs through the provision of a trust fund set up for the benefit of Chagossians. Importantly, the joint statement finishes by saying: ‘In reaching today’s political agreement, we have enjoyed the full support and assistance of our close partners, the United States of America and the Republic of India.’

Negotiations were reopened after a change of government inMauritius, before a new deal was reached in February 2025 in which the UK agreed to pay more rent for the use of Diego Garcia. It is this agreement thatPresident Trump will apparently review—and potentially veto—citing security concerns. Despite defending this newly arrived at agreement as a positive outcome for all involved (including the US) and—more importantly—one that respects international law, the PrimeMinister of the UK, Sir Kier Starmer, has stated that the new president is well within his rights to review it, and that the agreement will not be finalised without Trump’s consent.

Lack of meaningful consultation with Chagossians

Within this process, the consent of the Chagossians as a people remains conspicuous by its absence (note the approval of India and the US). This is because, ultimately, the focus of negotiations and the preceding ICJ opinion has been on the independence and sovereignty of Mauritius on the one hand, and the militarily strategic value of Diego Garcia to the UK and US on the other—a dispute about territory rather than the rights of the persons or people most affected. This feature of the dispute is made painfully clear by Papanicolopulu and Burri(2021) who, when discussing the human rights implications of the ICJ opinion, note that even though the opinion does mention human rights at the end ‘theICJ’s statement in the end is about the rights of Mauritius, not the rights ofthe people of Mauritius – let alone the rights of Chagossians as a people.’[xvi]

Throughout the process both the Chagossians and various NGOs have been vocal about the lack of meaningful consultation about the major decisions affecting the future of theArchipelago. In 2022, the High Court of England and Wales refused to submit the decision of the Foreign Office to open negotiations to judicial review. The appeal had been brought on the grounds that the (then) Secretary ofState, James Cleverly, failed to consult the Chagossian people adequately prior to announcing the opening of negotiations, despite his assurance that the UK government would.[xvii]The same year, Human Rights Watch wrote to Cleverly to express their ongoing concern that the negotiations did not apparently include the Chagossians in any meaningful way.[xviii]

Lest it be thought that it was just the UK government failing to represent Chagossian interests, the government of Mauritius has also been criticised by Chagossians, many of whom have suffered exclusion and discrimination in Mauritius and leaving them to doubt whether they will be any better off under Mauritian sovereignty.[xix] In early 2023, the Guardian reported on the disappointment among Chagossians at the level of engagement from either party. One member of the Chagos Islanders lobby group expressed this ongoing frustration stating: “I feel that history is repeating itself –the same two states who treated my family like cargo are once again negotiating our community’s future without the involvement of the actual community itself(…) Our right to self-determination is not being respected.”[xx]

On 19 December 2022, a UK government Sub-Committee onOverseas Territories issued a call for evidence on the negotiations over theBIOT.[xxi] A number of the submissions—including several from individual Chagossians and others from groups representing Chagossian interests more broadly—expressly criticised the standard of consultation with respect to the ongoing negotiations, with one group describing the consultations as ‘tokenistic’. In the Foreign Office’s(FCDO) own submission, it stated that ‘Negotiations are between the UK andMauritius’, although it did recognise the importance of the outcome to Chagossians, highlighting that three consultation meetings had been held inFebruary, May and October of 2023 respectively.

In the summary of its findings sent to the (then) ForeignSecretary, David Cameron, on the 12 March 2024 the committee stated: ‘The FCDO has a duty to learn from past mistakes and ensure that it has done its utmost to facilitate meaningful engagement with Chagossian communities. This is currently insufficient.’ In response, Cameron again acknowledged the importance of the negotiations to Chagossians and pointed to the three events held the previous year further noting that the FCDO ‘will continue to update Chagossiansas the negotiations progress.’

In January 2025, the Independent reported that the group Chagossian Voices—a group that rejects the idea of Mauritian sovereignty over the Archipelago—was hoping to bring a legal challenge against the deal signed last year. One of the group’s founders, was quoted as saying Chagossians felt ‘powerless and voiceless’ in discussions affecting their future and ‘[Chagossians]have endured 50 years of exile of suffering (…) but both the British and theMauritian government are after their own interests.’[xxii]

The need for FPIC

Back in 2007 the UN released its Declaration on the Rights of Indigenous Peoples (UNDRIP) laying out ‘the minimum standards for the survival, dignity and well-being of the Indigenous Peoples of the world’. Both the UK and Mauritius voted for the declaration (the US voted against although later pledged their support). Contained within the Declaration, there is an obligation on states or other proponents to engage and consult in a meaningful way with indigenous peoples to gain consent to changes likely to affect them. This is known as free, prior and informed consent(FPIC). Article19 of UNDRIP states:

‘States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent [FPIC] before adopting and implementing legislative or administrative measures that may affect them.’

Put simply: meaningful consultation and participation with the relevant indigenous people in all decision making are fundamental to obtaining FPIC and fulfilling states’ obligations under UNDRIP.

It seems clear that any decisions made about the sovereignty of the Chagos Archipelago, the continued lease of Diego Garcia for an airbase, or the creation of the proposed MarineProtection Area, fit well the criteria of ‘legislative or administrative measures’ that may affect an indigenous people and should therefore require theFPIC of Chagossians. And yet, throughout the negotiating process there has been little indication that the UK or Mauritius have sought FPIC from Chagossians, despite the latter persistently requesting a seat at the table.[xxiii] As a letter sent to the UK government on 21 February 2023 by a working group of UN experts had pointed out, the level of consultation facilitated by the UK government during the negotiations over the future of the Archipelago is unlikely to reach the standards of FPIC outlined in UNDRIP.[xxiv]

FPIC is not simply a form of stakeholder engagement or a vague requirement to keep affected indigenous peoples ‘updated’ on how discussions about their future held in closed off rooms are progressing. FPIC goes right to the heart of the universal human right to self-determination as recognised by numerous major human rights instruments including the Charter of the United Nations (1945) (Chapter 1, Article 1(2)), Declaration on theGranting of Independence to Colonial Countries and Peoples (1960), the InternationalCovenant on Civil and Political Rights (ICCPR) (Article 1(1)), and the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR) (1966) (Article1(1)). The purpose of UNDRIP is not to create new rights in addition to these, but rather to provide detailed interpretation of how the human rights enshrined in these (and other) major international instruments apply to indigenous peoples.[xxv] These human rights cannot be respected without FPIC of indigenous peoples.

The ICJ advisory opinion was clear in its view that the UK’s continued administration of the BIOT constituted an ongoing illegal act.The UK government has admitted that its past treatment of Chagossians was‘ shameful and wrong’, and yet through the failure of both the UK and Mauritius to seek FPIC of Chagossians in the negotiations over the future sovereignty and use of the Archipelago, the Chagossians’ fundamental human rights to self-determination continue to be denied.

It is imperative that any future negotiations or discussions over the future sovereignty or use of the Chagos Archipelgao involve the Chagossians in a meaningful way, and that no agreements or treaties are signed without their FPIC. Yet, while Washington’s review of the agreement on the table may offer an opportunity to revise some of the details, it seems unlikely that President Trump will consult with the Chagossians. Preference is instead likely to be given to geopolitical and strategic interests as the US looks for ways to counter China’s power in the Indo-Pacific region. If previous negotiations prioritised British and Mauritian interests over the human rights of the recognised indigenous people, the next round seems set to prioritiseAmerican interests over all three.

End Notes

[i]E.g. UNGA Res 2066 (XX); UNGA Res 2357 (XXII).

[ii] Debate in Mauritius’ Legislative Assembly of 21 December 1965 (Annex UKCM-15).

[iii] https://www.hrw.org/report/2023/02/15/thats-when-nightmare-started/uk-and-us-forced-displacement-chagossians-and

[iv] InternationalCourt of Justice (ICJ), Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019.

[v] https://www.hrw.org/report/2023/02/15/thats-when-nightmare-started/uk-and-us-forced-displacement-chagossians-and

[vi] R(On the application of Bancoult) v Secretary of State for Foreign andCommonwealth Affairs (No 1) QB 1067

[vii] R(On the application of Bancoult) v Secretary of State for Foreign andCommonwealth Affairs (No 2) UKHL 61

[viii]Chagos Islanders v United Kingdom [2012] ECHR, Application no. 35622/04

[ix] https://press.un.org/en/2017/ga11924.doc.htm

[x] LegalConsequences of the Separation of the Chagos Archipelago from Mauritius in 1965, paras 172, 171. Accessed: https://www.icj-cij.org/case/169

[xi] Ibid, paras 177-78.

[xii] UNGARes 295 (LXXIII)

[xiii]https://www.gov.uk/government/news/joint-statement-between-uk-and-mauritius-3-october-2024

[xiv] https://www.theguardian.com/world/2024/oct/03/britain-to-return-chagos-islands-to-mauritius-ending-years-of-dispute

[xv] https://www.theguardian.com/media/2012/jul/25/judge-wikileaks-document; In the Matter of the Chagos Marine Protected Area (Mauritius v UnitedKingdom) (Final Award) [18 March 2015] PCA No 2011-03, 31 RIAA 359, para. 298

[xvi] Papanicolopulu, I. & Burri, T. (2021) 'Human Rights and the Chagos Advisory Opinion.' In: Burri, T. & Trinidad, J. (eds.), The International Court of Justice andDecolonisation. New Directions from the Chagos Advisory Opinion. Cambridge:195.

[xvii]https://fraserchambers.com/high-court-refuses-chagos-islander-permission/

[xviii]https://www.hrw.org/news/2022/12/15/negotiations-between-uk-and-mauritian-governments-exercise-sovereignty-over-chagos

[xix]n2 supra. Also, https://www.aljazeera.com/features/2025/2/11/tug-of-war-chagos-islands-deal-tearing-families-apart-in-mauritius

[xx] https://www.theguardian.com/world/2023/jan/02/chagos-islanders-demand-say-as-uk-mauritius-sovereignty-talks-begin

[xxi] https://committees.parliament.uk/work/8116/the-uk-governments-engagement-regarding-the-british-indian-ocean-territory/publications/written-evidence/

[xxii]https://www.independent.co.uk/news/uk/politics/chagos-deal-keir-starmer-mauritius-b2685299.html

[xxiii]https://www.bbc.com/news/articles/cy78ejg71exohttps://www.theguardian.com/world/2023/jan/02/chagos-islanders-demand-say-as-uk-mauritius-sovereignty-talks-begin

[xxiv]https://www.ohchr.org/en/press-releases/2024/10/chagossians-should-be-centre-stage-negotiations-between-mauritius-and-uk-un

[xxv] E.g. UNDRIP, Article 1.

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