The unravelling of European empires was one of the formative moments of the modern world. But as the long-awaited International Court of Justice (ICJ) advisory opinion on the Chagos Islands has underlined, this process is far from complete.
Almost 50 years after most of the British empire was dismantled, the ruling in late February effectively concludes a decades long political and legal fight by Mauritius and the former residents of the Chagos Islands to return sovereignty over the islands to Mauritius. Despite clear international legal guidance to the contrary, Britain detached the Chagos Islands in 1965 during the decolonisation process and declared it British Indian Ocean Territory, evicting its 1,500 residents.
The International Court of Justice (ICJ) was almost unanimous in its finding that the actions by the British government were in breach of the islanders’ right to self-determination under international law. Delivering the judgement, the president of the court, Abdulqawi Ahmed Yusuf, said the detachment of the Chagos archipelago had not been based on a “free and genuine expression of the people concerned”. The continued British administration of the islands is therefore “a wrongful act”, and the UK has an obligation to return control of the Islands to Mauritius “as rapidly as possible”.
A shameful history
In highlighting the long struggle for justice by the Chagossians, the court addressed the longer history of colonial oppression to which the islanders have been subject. Passed from colonial power to colonial power – Holland then France – the islands fell under British control in the early 19th century. During this time Britain brought several hundred people from Mozambique and Madagascar to the islands to work on British-owned coconut plantations. Britain continued its administration of the islands – as part of the greater colony of Mauritius – until the 1960s, by which time the decolonisation process had begun to gain momentum. With the adoption of the 1960 Colonial Declaration, Britain readied itself for the inevitable independence of Mauritius.
While the UN had made it clear that it would not accept the breakup of colonies prior to independence, Britain began to draw up plans to detach the Chagos Archipelago from Mauritius prior to the latter’s independence. In 1964, the UK began to discuss the future of the Chagos Islands with the US, which had expressed an interest in establishing military facilities on the island of Diego Garcia.
A few months later, using a combination of diplomatic pressure and bullying, Britain convinced the government of Mauritius to hand the islands over to British control, something the Mauritian government claimed it had “no choice” over. The shameful events that followed are now well known. Between 1967 and 1973, the entire population of the Chagos Archipelago – referred to in official UK documents from the 1960s as “some few Tarzans and Man Fridays” – was either prevented from returning or forcibly removed and prevented from returning by the UK.
After decades of lobbying and legal challenges by the Chagossians, in 2017 Mauritius successfully petitioned the United Nations to seek an ICJ advisory opinion on the legality of the separation. Coming just months after the Brexit referendum, the vote on whether to refer the matter to the ICJ was a humiliating diplomatic blow to Britain, which failed to rally support from fellow European states and former colonisers.
The 2018 hearing before the ICJ became a rallying point for states eager to confront the ongoing legacies of colonialism and the injustices it has wrought – 22 interested parties, among them the African Union and many former colonies, took part in the proceedings. Many underlined the duty of all member states of the UN “to assist the general assembly to remove the last vestiges of colonialism”. Namira Negm, legal counsel of the African Union, said: “It is unthinkable that today, in the 21st century, there is a part of Africa that still remains subject to European colonial rule.”
The UK, however, was insistent that the matter should never have been brought before the ICJ. Even while acknowledging the “shameful” way it evicted thousands of islanders, the UK contended the matter had already been resolved in a 1982 agreement on compensation. It further argued that the right to self-determination was not established in international law until the 1970s, after the separation of the islands from Mauritius. Seen against the backdrop of the rhetoric surrounding the Brexit debate, the irony of the UK’s position could not be more evident.
“No country wishes to be a colony,” noted Philippe Sands QC, the lawyer representing Mauritius. “The UK does not wish to be a colony, yet it stands before this court to defend a status as coloniser of others.”
By a majority of 13 to one, the court rejected the UK’s arguments, finding that the decolonisation of Mauritius had not been lawfully completed, with the single dissenting judgement coming from American Judge Joan Donoghue. The decision was welcomed by Mauritius’s prime minister, Pravind Kumar Jugnauth, who said:
This is a historic moment for Mauritius and all its people, including the Chagossians who were unconscionably removed from their homeland and prevented from returning for the last half century. Our territorial integrity will now be made complete, and when that occurs, the Chagossians and their descendants will finally be able to return home.
The UK’s response was more muted, underlining that the opinion is only advisory, not a judgment, before calling attention to the island’s key role in US/UK defence in the area. A representative from the Foreign Office argued that the facilities “help to protect people here in Britain and around the world from terrorist threats, organised crime and piracy”.
Despite this, however, it will be difficult for the UK to resist the mounting international pressure for it to hand back the island. In this sense, it is a clear and hard won victory for the Chagossians and a significant development for jurisprudence surrounding self-determination in the context of decolonisation, which may well lead to the reopening of further cases in which the international legal rules on decolonisation were not correctly followed.