Keir Starmer has been told he is “running out of excuses” to press ahead with the controversial deal to hand over the Chagos Islands to Mauritius.
It comes after a minister admitted that Britain actually has a protection in international law against one of the major reasons senior politicians have been briefed that the UK has no choice but to hand over the islands.
The government is closing in on a deal to hand over the Chagos Islands on the back of an International Court of Justice (ICJ) ruling that the archipelago belongs to Mauritius. The agreement would see the UK lease back the Diego Garcia airbase for 140 years at an expected cost of £18bn. Donald Trump has indicated he backs the deal but critics point out that the ICJ ruling is only advisory.
The Independent has learned that senior politicians have been briefed that one of the main reasons to go ahead with the deal is that the UK would fall foul of the United Nations Convention of the Law of the Sea (UNCLOS), preventing ships going to and from the base.
But a written answer has revealed that the UK is protected under international law against UNCLOS challenges.
It is the second major part of the legal case to fall apart after it was revealed claims that telecommunications could be stopped on the islands were also shown to be false.
The row has blown up again over the deal which is expected to cost the British taxpayer £18 billion after Mr Trump appeared to give it his blessing when he met Sir Keir in the Oval Office.
But in a speech on Monday night, Kemi Badenoch noted that the same pressure had been put on the UK government to give away the Falkland Islands to Argentina by the United Nations.
She said: “Labour is negotiating the Chagos Islands away, and paying billions for the privilege. The excuses we hear about a UN court ruling and electromagnetic spectrum are nonsense.”
Opposition politicians hope that if they can demonstrate the legal case for handing the islands over has collapsed then they could persuade the president to exercise his veto at the last minute.
The Indian Ocean islands represent an important part of UK-US security plans because of the strategically crucial Diego Garcia airbase.
Critics of Sir Keir’s policy to press ahead with the expensive deal claim that he has wrongly persuaded the US president that a deal has to go ahead to end the legal uncertainty.
There are also questions over whether Mr Trump is aware of a potential problem in taking nuclear weapons to Diego Garcia after the transfer of ownership because Mauritius is signed up to a nuclear free treaty.
The Independent understands that one of the main reasons given to senior politicians in private briefings on why the UK has “no choice” but to give the islands to Mauritius is because the UK and US would fall foul of a legal challenge via the United Nations Convention of the Law of the Sea (UNCLOS) in using the Diego Garcia airbase.
The reason for this is because UN agencies are obliged to follow rulings by the International Court of Justice (ICJ).
The ICJ has ruled that the islands belong to Mauritius and while that only has “advisory” status for the UK and could be ignored, it has a binding status for the UN and its role in international law.
However, a written answer has blown apart this reasoning after the government itself revealed that the UK has a separate legal carve out on UNCLOS, which protects its current control of the crucial Indian Ocean islands.
Responding to a written question by Tory shadow armed forces minister Mark Francois, foreign office minister Stephen Doughty said: “By Declaration dated 7 April 2003 the UK exercised the right to exclude from compulsory dispute settlement procedures in UNCLOS ‘disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service and disputes concerning law enforcement activities in regard to the exercise of sovereign rights and jurisdiction excluded from the jurisdiction of a court or tribunal under article 297 paragraph 2 or 3’.
“Paragraphs 2 and 3 of Article 297 address disputes related to marine scientific research and fisheries respectively.”
He added: “While these exclusions remain in place, they do not prevent all possible legal challenges. It is worth noting that in the event that parties to a dispute concerning the interpretation or application of UNCLOS have chosen different procedures for the settlement of disputes, the dispute must be submitted to an arbitral tribunal unless the parties otherwise agree. Such rulings are binding on the parties.”
But Mr Francois, accused the government of running out of excuses.
He said: “The government is rapidly running out of excuses for spending £18 billion of taxpayers money, to rent back a vital strategic base which we already own. We have a crystal-clear opt-out from any UNCLOS decision affecting military facilities - a point which our American allies will hopefully realise too. The government should now end this Chagos chaos once and for all; just drop this bonkers plan and move on.”
But this is the second time one of the major planks in the legal case on the necessity of a deal has fallen apart.
Previously, official sources the International Telecommunication Union (ITU) which controls the network of satellite communications could sever the links “if an international court was to rule in future that the US and UK were using Diego Garcia to run satellite communications in breach of international law.”
But Labour’s communications minister Sir Christopher Bryant dismissed this concern altogether in another written answer.
An FCDO spokesperson told The Independent: “The Chagos Islands deal is paramount for our national security. The deal secures the joint UK-US base on Diego Garcia and without it, the operation of the base is at risk.
“Without legal certainty, the base cannot operate in practical terms as it should. That is bad for our national security and a gift to our adversaries.
“Finalising a deal means that we can secure strong protections, including from malign influence, which means the base can operate as it has done well into the next century.”
A source added:”There are numerous avenues through which Mauritius could pursue a legally binding judgment, including relevant provisions of the UN Convention on the Law of the Sea or under dispute provisions of treaties to which both states are parties.
“Such cases could be brought rapidly and include seeking provisional measures, themselves legally binding, which could be introduced within weeks. This would have had serious implications for base operations. Ignoring these issues is not a responsible approach for a government serious about protecting the UK’s national security.”
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