From decolonization to the rule of law
Review: Philippe Sands, The Last Colony: A Tale of Exile, Justice and Britain’s Colonial Legacy (Weidenfeld & Nichols, 2022)
Testing Britain’s Commitment to Decolonization and the Rule of Law
For many across the globe, the 1960s were above all the decade of decolonization. In 1960, the United Nations for the first time directly addressed the legality of colonization under international law when the General Assembly approved Resolution 1514, “Declaration on the Granting of Independence to Colonial Countries and Peoples.” The resolution characterized foreign rule as a violation of human rights, affirmed the right to self-determination, and called for an end to colonial regimes. The decade saw over 30 colonies, mostly in Africa and Asia, gaining their independence from Great Britain, France and other European powers. But the Cold War confrontation between the Soviet Union and the United States was also a global fact of life throughout the 1960s, reaching the brink of war in the October 1962 Cuban Missile Crisis.
Decolonization and the realities of the Cold War converged in 1968 when the Indian Ocean Island nation of Mauritius gained its independence from Britain. In granting independence, Britain split off an area known as the Chagos Archipelago, located about 2000 kilometers north of Mauritius’ capital city, Port Louis, from the rest of the newly independent nation to form a new colonial entity, the British Indian Ocean Territory. Two years earlier, in 1966, Britain and the United States had secretly concluded an agreement to locate an American naval base on the Chagos Archipelago’s largest island, Diego Garcia, to support US military operations across the Indian ocean.
Part of the agreement for the Diego Garcia base involved the “resettlement” – forcible deportation – of the entire local population of the Chagos Archipelago from what was in most cases the only homeland its residents had ever known. The deportations took place between 1968 and 1973. Although Britain came under criticism immediately for the deportations, it was not until a half century later, in 2019, that an international tribunal squarely determined that Britain’s detachment of the Chagos archipelago had been contrary to international law under UNGA 1514 and that Britain could not legitimately claim sovereignty over the archipelago.
That tribunal was the International Court of Justice (ICJ), the United Nations’ principal judicial organ, located at The Hague in the Netherlands. In addition to resolving contentious issues between member states, the ICJ is also empowered to give advisory opinions on “any legal question” requested either by the UN’s General Assembly or its Security Council. This was the route that Mauritius pursued in the Chagos case. Although the ICJ’s landmark ruling was unambiguous, it was thus only an advisory opinion.
Mauritius was represented before the ICJ by Philippe Sands, a London-based international human rights lawyer who has also litigated high-profile cases involving Chile, Congo, Rwanda, and the ex-Yugoslavia, to name just a few, as well as writing prolifically on and teaching international law. In his most recent work, The Last Colony: A Tale of Exile, Justice and Britain’s Colonial Legacy, Sands walks his readers through the Chagos case, allowing us to see the strategies, thinking, and legal maneuvering required to get the case to The Hague and present it effectively before the ICJ. He uses the litigation as a springboard to demonstrate how the international justice system operates at the ground level in a case that in his view goes to “the heart of any system of justice, how the rule of law protects the weak and vulnerable from the excesses of the powerful.”
The major issues at The Hague, involving the applicability and scope UNGA Resolution 1514 and conflicting claims of sovereignty, may sound abstract and coldly legal. But they are significantly less so in Sands’ account because he explains them through the eyes of Madame Lisby Elysé, whom he describes as his book’s “beating heart.” Like most in her community of 1,500, located on an island within the Chagos archipelago, Madame Elysé is a descendant of enslaved plantation workers. She dropped out of school early to assist her family and can neither read nor write. In 1973, when she was 20, recently married and then pregnant, British authorities informed her with almost no advanced notice that she had to leave her home. She was allowed to bring one suitcase and she and the other members of her community have never been allowed to return permanently, although they have been accorded the option of occasional subsidized returns, euphemistically termed “heritage visits.”
The path to The Hague for Madame Elysé and her fellow Chagnossians was long. On the way they brought numerous cases in courts in London challenging the legality of the detachment and subsequent forced deportations; took a trip to the European Court of Human Rights in Strasbourg; and engaged in an arbitration proceeding in Istanbul, all before convincing the UNGA to refer the case to the ICJ for an advisory opinion. As Sands takes his readers along this path, he never loses sight of how the case affected Madame Elysé and her fellow islanders.
Tying together the diverse strands of Sands’ narrative yields a withering account of Great Britain’s relationship with its former colony. A state policy of forced deportations as recently as the late 1960s and early 1970s now seems shocking. But even more shocking in Sands’ account is the degree to which 21st century Britain, backed by the United States, has maintained its defense of the deportations and to this day continues to assert sovereignty over the Chagos Archipelago, despite the ICJ decision and a subsequent, nearly unanimous, UNGA resolution which had the effect of affirming the court’s decision.
Accepting Self-Determination in the post-war International Legal Order
To understand the Chagos case’s long journey to The Hague, Sands provides a useful textbook overview of the basic principles and institutions of the post-war international legal order, connecting them to the era’s decolonization movement and to modern notions of human rights and self-determination. The major documents and instruments creating that legal order, such as the initial UN Charter of 1945, the 1948 Universal Declaration of Human Rights, and the 1949 Geneva Convention, avoided directly addressing the future of colonial regimes, an indication of British and French influence on the drafting process.
UNGA Resolution 1514 redressed the evasions and omissions contained in the early post-war documents and instruments. Passage of the resolution in 1960 rendered colonial domination “illegitimate for the first time in modern international society,” Adom Getachew wrote in Worldmaking After Empire: The Rise and Fall of Self-Determination. Under Resolution 1514, self-determination became a human right, with colonialism itself becoming an international crime. The resolution was adopted by an 89-0 vote, with 9 countries abstaining, including Britain, France and the United States, which was on the cusp of voting yes, until President Eisenhower overruled his diplomats and ordered abstention, purportedly upon the personal request of British Prime Minister Harold Macmillan. Britain’s official position on Resolution 1514 was that it accepted self-determination as a “principle” although not as a legal “right.”
But the internal deliberations over Mauritian decolonization which Sands has unearthed suggest that Britain had difficulties accepting self-determination even as a principle. In discussions leading up to independence, Sands indicates, Britain informed the surprised Mauritians that it intended to retain the Chagos archipelago but did not mention the plan for the naval base at Diego Garcia. Facing international condemnation when the detachment arrangement came to world attention, Britain’s Colonial Secretary warned that Britain needed to move quickly before the Mauritians and the world at large learned of the United States’ place in the arrangement, which might “lay ourselves open to an additional charge of dishonesty.”
To avoid an “additional charge of dishonesty,” the Foreign Office instructed its Ambassador in New York to tell the UN that the Chagos islands “have virtually no permanent inhabitants,” a “big lie” in Sands’ words. But the British Ambassador to the UN was uncomfortable with the word “virtually,” fearing it might raise questions over what that qualification was meant to suggest and advised that it would be preferable to proceed on the basis that there were “no permanent inhabitants” on the islands. The word “virtually” was excised, resulting in an even bigger lie.
When one of the Foreign Office’s legal advisors expressed reservations about this approach, which he considered fraudulent, another countered that there was nothing wrong in law or principle with the forced deportations because Britain could “make up the rules as we go along.” The Foreign Office stressed that Britain needed to be “very tough” in managing the public relations fallout from Mauritius and that Chagos should become a place with “no indigenous population except seagulls.” Several suits were filed in London in the 1970s and 1980s challenging the forced deportations from Chagos, none of which provided the primary relief Madame Elysé and her fellow Chagnossians sought: the right to return to their home islands.
Finding a Road to The Hague
The major breakthrough in the Chagnossians quest to reach The Hague occurred decades later, in 2010, when British Foreign Secretary David Miliband announced the creation of a vast Marine Protected Area around the Chagos archipelago. The Marine Protected Area was intended to protect marine biodiversity, burnish Britain’s environmental credentials and, not incidentally, cast its policy toward the Chagnossians in a more favorable light. Diego Garcia was excluded from special area. Although the proposal was warmly received by environmental groups, no one in Mauritius was consulted about British plans for the area.
Sands’ direct involvement in the case began a few months after Miliband’s announcement, when he conferred with Mauritius’ then-Prime Minister Navi Ramgoolam, a member of the English bar, who wanted to find a way to challenge the lawfulness of the Marine Protected Area. The two focused upon the novel idea of seeking relief through the United Nations Convention on the Law of the Sea (UNCLOS), which had been finalized in 1982 and ratified by more than 150 countries after more than 10 years of negotiations.
Although many of its terms addressed technical matters like fishing rights and the delimitation of sea boundaries, the UNCLOS also contained new rules on the protection of the marine environment and on the “common heritage of mankind,” giving all states rights to mineral resources under the seabed. The treaty can thus be considered a “post-colonial instrument” that “sought to give effect to the principle of self-determination,” Sands writes. He and the Prime Minister settled upon attacking Britain’s new policy on several technical grounds, including that it violated Mauritius’ fishing rights around Chagos, coupled with a broader challenge that Britain was not Chagos’ “coastal state” under the UCLOS – a direct challenge to the legitimacy of both the detachment of Chagos at the time of independence and Britain’s continued assertion of sovereignty over the archipelago.
The UNCLOS provided for arbitration of disputes, along with dispute resolution at the ICJ and at a new International Tribunal for the Law of the Sea. For strategic reasons, the Prime Minister and Sands decided to pursue the arbitration route, with Mauritius launching proceedings in December 2010. A single document supported its application, a United States cable intercepted and published by Wikileaks, which quoted a British official telling the United States that we, Britain, “do not regret the removal of the population,” and suggesting that Britain intended to harness the Marine Protected Area to “extinguish forever the Chagnossians’ ability to return,” a positive side effect for a project that had already won the approval of environmentalists.
The arbitration panel’s decision, delivered in March 2015, produced a limited victory for Mauritius. The panel unanimously ruled in Mauritius’s favor on the technical issues it had raised. But the panel declined to rule on which of the two countries was the “coastal state” under the UNCLOS, the broader challenge to British sovereignty, or on the effect of UNGA Resolution 1514 on the case. Two dissenting arbitrators, however, agreed with Mauritius’ position on both sets of issues. This partial victory led Mauritius to conclude that the time was ripe to petition the UNGA for a referral of the Chagnos case to the ICJ for an advisory opinion, which it did in June 2017.
The June 2016 Brexit referendum, when the United Kingdom voted to leave the European Union, provided Mauritius with an unexpected boost at the UNGA. Sands notes how British ministers were “waxing lyrically about a new Empire 2.0,” enough by itself to scare many UNGA member states, less lyrical about British Empire 1.0. But the “brutal reality” was that Britain “could no longer rely on the unqualified support of EU members and their networks across the UN.” Both within and beyond the EU, Britain’s authority had “suffered a major collapse,” Sands writes. Britain fell far short in its effort to defeat the referral resolution, which passed the UNGA by a comfortable margin, with 94 member states voting in favor, 16 against, and 65 abstentions.
Presenting the Chagos Case at the ICJ
There were nine factual and legal points that Sands considered essential to the Chagos case at the ICJ, and he explains how these had to be tailored to appeal to judges from a wide variety of legal systems and cultures. But he and his legal team also wrestled with how to present the human side of the case to the judges. They opted for a video statement from Madame Elysé. In an intense address of less than 4 minutes, delivered in her native Créole and translated into English and French, she conveyed the circumstances surrounding her forcible uprooting from her home in 1973 with “clarity, force and passion,” revealing that she had lost her baby during the passage out of her native island. She finished by telling the court that as she reached her last years, she had one overwhelming desire: to return home, to the island where she was born.
The United Kingdom’s legal representative urged the court to dismiss the case as a “bi-lateral sovereignty dispute” outside the court’s authority, although he provided assurances that Britain supported the court and the international rule of law. He expressed “deep respects” to the Chagnossians, conceding that the manner – although not the fact – of their removal had been “shameful and wrong.” He expressed no commitment to allow the Chagnossians to return. That Britain had paid compensation over the years was “amends enough.”
In its decision, announced in early 2019, the ICJ rejected the UK’s argument that the case was simply a bilateral territorial dispute. The court found that the Chagnossians had been “forcibly removed” and “prevented from returning,” actions contrary to UNGA Resolution 1514. Rather than creating a new rule, 1514 had declared an existing rule of customary law, “one that no state voted against.” Because the detachment of Chagos had not been based on the “free and genuine expression of the will of the people concerned,” it followed that Britain’s continued assertion of sovereignty over the archipelago was a “wrongful act” which should end “as rapidly as possible.” The resettlement of Mauritian nationals, the ICJ concluded, involved issues “relating to the protection of human rights,” but those were for the UNGA to address.
A few months later, the UNGA adopted a near unanimous resolution (116 nation-states in favor, 55 abstentions, and 5 no votes) which amounted to an affirmation of the ICJ decision, stating that the Chagos archipelago “forms an integral part of the territory of Mauritius” and demanding that Britain “withdraw its colonial administration … unconditionally within a period of no more than six months.” To date, that withdrawal has not happened. Rather, Britain continues to cling to the notion that it retains sovereignty over the Chagos Archipelago and has not recognized Madame Elysé’s right to reinhabit the island of her birth.
Time for Britain to Cut Its Loses?
Although Mauritius’ Prime Minister Pravind Jugnauth and British Prime Minister Theresa May met in the aftermath of the ICJ decision and UNGA resolutions, those meetings ended with May’s defiant written response that sovereignty over the Chagos archipelago “will be ceded when the [British Indian Ocean Territory] is no longer needed for defense purposes,” flatly rejecting return of the Chagnossians. The stream of diplomatic notes, press statements and answers to parliamentary questions on Mauritius, Sands indicates, almost invariably begin with the same words:
The United Kingdom has no doubt about its sovereignty over the Chagos Archipelago, which has been under continuous British sovereignty since 1814. Mauritius has never held sovereignty over the Archipelago and we do not recognize its claim.
This absence of doubt is particularly striking, Sands writes, “since the British have never been able to persuade any international judge – not even one – to express support for its claim to the archipelago. This raises serious questions about the country’s purported commitment to the rule of law. Two Prime Ministers and five Foreign Secretaries have embraced lawlessness, for reasons that are unclear, hoping to tough it out and make the problem go away.”
Sands’ work itself raises serious questions about the United Kingdom’s commitment to the rule of law. It is a piece of advocacy, in which Britain’s consistently hardline positions seem almost ludicrous, leaving the reader wondering whether there may be more substance to those positions than what Sands presents here. But if Sands is writing more as a lawyer than a journalist, this searing work nonetheless represents a clear victory in the court of public opinion for Madame Elysé and her fellow Chagnossians – and for international justice. We can only hope that the world of international realpolitik will soon catch up.