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Imperialism, International Law and the Chagos Islands

Reflections on Legal Consequences of the Separation of the Chagos Archipelago

The Chagos tragedy (the Advisory Opinion of the ICJ can be found here) represents a story that in one way or the other is fundamentally a story of international law and its complicity in subjugating, oppressing and dominating an ‘inferior’ people. It shows that the erstwhile colonial world order is neither really ‘past’ nor that modern international law, as it is often claimed, is necessarily a harbinger for emancipation and substantive equality. When a norm as fundamental as ‘self-determination’ is held in ransom by a colonial power and made ‘conditional’ on the separation of colonial territory to facilitate ‘security and defense’ interests of the former, international law assumes a character that fuses power with domination. United Kingdom not only succeeded in coercing Mauritius to agree on the separation of Chagos, but was able to ‘create’ a new colony out of the ashes of its former one. Even before UK’s colonial administration of Mauritius ended, the UK laid the foundation of what it called the British Indian Ocean Territory (BIOT) consisting of the Chagos Archipelago, Aldabra, Farquhar and Desroches islands. This was all accomplished despite the framework of the United Nations, it’s mandate for ‘decolonization’ and numerous General Assembly resolutions condemning such brazen display of imperial attitude. The imperative of ‘decolonization’ under international law was turned upside down, at the behest of a former colonial power and a new military state.

International law has always found refuge under the formal notions of equal sovereignty and territorial integrity as a means to depoliticize its own imperial past and mask its continuing manifestations of inequity and injustice. The Chagos case is a damning illustration of how equality and consent rather than being a liberating force is often a means of preserving hegemony and supremacy within the international order. Official memorandums cited by the Court reveal the nonchalant position of UK and US in orchestrating the division of the Islands, uninhibited by either the authority of United Nations or the opposition from the Mauritius people. As the documents uncover, the plan from the outset was always about presenting a case of ‘fait accompli’ to the Mauritian people, backed by the threat of unilateral action through Royal prerogatives. Both the oral proceedings and the AO expose the factual reality of underlying power relations that rendered Mauritius beholden to the terms of the Lancaster House agreement. An unconscionable agreement that under no circumstances represented a fairness of bargain or provided any space for maneuverer for Mauritius. A paltry compensation and vague commitments of commodity trade, fishing rights and navigational freedoms was traded for ‘national unity and territorial integrity’ of Mauritius and was sought to be justified as a ‘free and genuine expression of the will of the people’. Notions of ‘consent’, ‘equality’ and ‘sovereignty’ provided the most ideal framework for concentrating and legitimizing UK’s authority over the islands.

Arguments gleaned from the AO and the submissions of the UK bring to the fore another disquieting feature of International law. A centerpiece of UK strategy before the Court as well as in other international forums (See Chagos arbitral Award 2015) has been to qualify and circumscribe the Chagos question to that of a purely bilateral affair, distinct and remote from the larger and more critical question of ‘decolonization’. This was further buttressed by the argument of denial of ‘consent’ to adjudicate a supposedly bilateral dispute before the ICJ. Bilateralism in this sense has been a mainstay in international law to augment and perpetuate power disparities especially concerning questions that are politically charged and normatively indefensible. Giving the Chagos issue a bilateral dimension allowed the UK for long and often successfully to distinguish Chagos from the larger quest of right to self-determination, a norm of international law that is both erga omes and of material concern to the international community as a whole. It is credit to the brilliant submissions by Mauritius and especially the African Union that convinced the Court to view the present case as concerning the ‘process’ of decolonization and its necessary completion as against the question of ‘sovereignty’ of the Chagos Archipelago.

On the substance, the Chagos AO highlights yet again the nature and politics of ‘custom’ as a continuing source of international law. Painstaking studies from the Global South has shown how the doctrine of customary international law (CIL), with its twin requirements of attesting ‘state practice’ and ‘opinio juris’ has facilitated and advanced the imperial order. For instance, Prof. Chimni’s recent work shows how on one hand, the identification of CIL has been predominantly on the basis of state practice of certain powerful states alone, given the paucity and unavailability of state practice of weaker players. While on the other hand, opinio juris of weaker states if at all gathered, have been consistently delegitimized on the basis of doctrines such as ‘persistent objectors’. Curiously enough in Chagos, the Court was confounded with a similar conundrum as it was incumbent upon it to precisely date the crystallization of ‘right to self-determination’ as a customary right, amidst inconsistent state practice and a claim of ‘persistent objection’ from the UK. Perhaps this explains why the Court’s articulation on the issue of self-determination is terribly lacking and as Marko Milanovic put it ‘completely fudge(d)’. The Court indeed neither investigates independently into deciphering ‘state practice’ nor expends any effort to discern opinio juris. While the Court seemed to be pre-disposed towards expounding on a more ‘inclusive’ notion of CIL, especially given that it considered resolution 1514 (XV) as the ‘defining moment in consolidation of state practice’ in view ‘of its content and conditions of its adoption’, what we have is a series of unsteady assertions and equally indeterminate conclusions. Shaking off the colonial origins of CIL is perhaps still a long way home.

Lastly, it is important to remember that the Chagos case was as much about a battle for ‘decolonization’ as it was about the Chagossians, a people who have been systematically uprooted and thereafter prevented from returning to the islands. In this regard, it is laudable that the Court consciously records the plight and the struggles of the Chagossian peoples in its AO and therefore gives a new voice to those unfulfilled claims. However, the AO as such leaves quite a bit to be desired for in material terms. The issue of resettlement of Chagossians remains in the air, as much as the Court avoids the question entirely, characterizing it as an ‘issue relating to the protection of the human rights’ and thus an appropriate task for the GA. The Court failed to acknowledge that the question of Chagossians’ eviction and claims for resettlement is intimately tied to the question of ‘incomplete decolonization’ of Mauritius and is in fact, a direct consequence of the same. Therefore, while resettlement of the Islanders is certainly a human rights issue, it is also an issue of ‘decolonization’ itself. While in the midst of legalese and jurisdictional quagmires, the battle for ‘decolonization’ was certainly won, although on thin grounds, what the AO really means for the islanders remains rather obscure and unsettled.

 

Kanad Bagchi is a doctoral research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany and an associate fellow at the ‘Normative Orders Cluster’ at Frankfurt University.

 

Cite as: Kanad Bagchi, “Imperialism, International law and the Chagos Islands: Reflections on Legal Consequences of the Separation of the Chagos Archipelago”, Völkerrechtsblog, 1 March 2019, doi: 10.17176/20190301-160728-0.

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