Chagos shakedown

Whatever our suspicions, we must for want of positive proof assume that the Government is not preparing to pay Mauritius an eye-watering sum to take one of our most strategically important territories (and then more to rent bank the American base) merely because Port Luis retained the expensive services of Sir Keir Starmer’s good friend, Phillipe Sands KC.

But if we don’t, the magnitude of the failure at the Foreign Office beggars belief. For a minister, almost invariably a dilettante tourist in any post, to make the mistake of thinking there is some threat to British sovereignty over the base is forgivable, if embarrassing; for the full-time foreign policy specialists in our Rolls-Royce Civil Service to do so is not.

Such people like to talk much about this country’s global image. But their actual contribution to it has been to lay on the spectacle of a (still, relatively) powerful nation being mugged by its own shadow. The only threat to the base was and remains that people like them would fold to superficial international pressure.

Lo and behold, the world has noticed the new mark at the card table; even during the bitterest depths of the Brexit negotiations, the EU never thought to set the surrender of the Elgin Marbles as table stakes.

The general against a handover has been excellently made elsewhere. But one part seems to give lots of people real difficulty in disbelieving the Mauritian claim: the ruling by the International Court of Justice (ICJ) in favour of Port Luis. To many commentators, that seems to be definitive, and the invalidity of British sovereignty over the archipelago established as a matter of “international law”.

Few of those demanding that we respect the ICJ would allow the domestic courts to proceed like this

Of course, even were that the case it would not, in itself, create an actual threat to the base. Mauritius has no armed forces, and the modern United Nations is hardly going to invade it; the era of Dag Hammarskjöld’s crusade in Katanga are long behind us.

Most countries recognise international law as diplomacy in its Sunday best and can face the odd adverse development. But the United Kingdom has turned “international law” into a strange religion, so it’s no surprise that our ruling class might take a different view.

Yet the immense weight British politicians, officials, and public lawyers place on international law and its institutions contrasts with (and perhaps depends upon) a very hazy grasp of how it actually works — specifically, in thinking or pretending that it and its institutions operate in the same way, and on the same basis, as their domestic counterparts.

When a layperson hears that an international court has ruled against the UK, they might understandably imagine that this definitive. Popular understanding of the courts is rooted in criminal justice, and a defendant in the dock at the Old Bailey does not get to take or leave the jury’s verdict as best pleases them. (Even if the assumption that our own judiciary is entirely apolitical is somewhat naïve.)

But the ICJ is not the Old Bailey. It is not enforcing the will of a sovereign authority, but (like all international fora) a mechanism for mediating between them. A much better domestic analogy would be something like ACAS. For like ACAS, an ICJ ruling is binding only if both parties agree to mediation.

That is not what happened here. Instead, the UN General Assembly — a body entirely lacking the moral power of a parliament, which consists of whatever people happen to find themselves ruling a recognised state, voted to refer the case to the ICJ for an advisory ruling. The UK did not take part in the subsequent investigation at all.

According to the ICJ’s own rules (and thus, the strictures of international law), the ruling is therefore not binding. But that structure ought also to demolish even the layman’s basis for thinking we should do something because a court said so. For in the inapt analogy with the Old Bailey, this is not a judgment handed down after a trial.

It is as if the Crown Prosecution Service had taken their case to the court for assessment, in the complete absence of a defence, and their advisory opinion were now being treated as a proper conviction. Or rather (as the UNGA does not carry the moral weight of the CPS as a sovereign authority’s prosecutor) as if a gang of your enemies could sponsor a malicious plaintiff to get an “advisory” ruling on a private prosecution — and then use it to start shaking you down for costs and damages.

Few of those demanding that we respect the will of the ICJ would allow the domestic courts to proceed on that lawless basis. Yet that is precisely the basis of the claim that Britain should surrender the Chagos Islands because of the ICJ ruling.

It is an artefact, therefore, of the modern progressive inversion of the stereotypical Little Englander mindset, which maintains that the rest of the world pays inordinate attention to the UK and its international conduct but remains stubbornly ignorant of the ways that world actually works. The progressive’s misapprehensions may be rosy where the chauvinist’s are dour, but ignorance is ignorance whatever colour the tint on the spectacles.