Long live the Empire? Seeking justice and the case of the Chagos Islands

Thamil Venthan Ananthavinayagan joins JiC for this post on the Chagos Island and the self-determination of its people. Thamil, LLM. (Maastricht University), PhD (NUI Galway), is a lecturer at Griffith College Dublin since September 2017. Prior to this lectureship at GCD, he worked as a Fellow and research assistant to the Irish Centre for Human Rights in Galway, Ireland.

The Chagos Islands (Photo: Al Jazeera)

Colonialism has not ended – this is the brief, yet accurate description of the current state of affairs in light of the aftermath to the International Court of Justice (ICJ) Chagos Advisory Opinion (AO).  In summary, the Court held that the separation of the Chagos archipelago from the British colony of Mauritius contravenes international norms, in particular the right to self-determination. More precisely, the ICJ enunciated:

(…) 177. The Court having found that the decolonisation of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination, it follows that the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State. It is an unlawful act of a continuing character which arose as a result of the separation of the Chagos Archipelago from Mauritius.

178. Accordingly, the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonisation of its territory in a manner consistent with the right of peoples to self- determination. (…)

Despite this, the United Kingdom has failed to meet the obligations to complete the unfinished  business of decolonisation with a deadline which was set for the 22nd of November 2019, with the Foreign Office (and hence her Majesty’s Government) quietly rejecting to abide by the AO of the ICJ.  The Chagos case reveals the weaknesses of an AO – despite the moral impetus, international law is eviscerated of its force due to prevalent hegemony of powerful states, here with the existence of the United States and the United Kingdom. Postcolonial international law continues to be manipulated to serve the interests of the powerful few. It is simply a sequel to colonial international law. Second, the Chagos case reveals a far more important aspect in postcoloniality: justice cannot be achieved as long as imperialism lives an afterlife in the shadows of colonialism. To this end, this article will consider the following questions: what is the role of justice in postcoloniality? More precisely: what is the liberating force of justice in postcoloniality?

A harrowing monument of the Empire in the Indian Ocean:

 The Court is the gravity centre for international justice within the United Nations systems, its prime judicial organ. However, the Chagos case has amplified the limits of international justice when faced with imperialism, which requires the heritage of its Empire to thrive and aggravate its power. French imperial theorist Jules Harmand held once 

there exists a hierarchy of races and civilisations, and (…) we belong to the superior race and civilisation (…) The basic legitimation of conquest over native peoples is the conviction of our superiority, not merely our mechanical, economic, and military superiority, but our moral superiority. Our dignity rests on that quality, and it underlies our right to direct the rest of humanity. Material power is nothing but a means to that end.

Insofar as British government holds that ‘the UK has no doubt about our sovereignty over British Indian Ocean Territory (BIOT), which has been under continuous British sovereignty since 1814’ , it begs the questions: what kind of sovereignty replaced the existing one? The Chagos Islands tale is the evidence that colonialism is not only existing, but reproducing and reinforcing the structures of Western imperialism in the present. For China Mieville, by contrast, colonisation was to be understood not so much in terms of its content, but in terms of the imperialism of its form:

Colonialism is in the very form, the structure of international law itself, predicated on global trade between inherently unequal polities, with unequal coercive violence implied in the very commodity form. This unequal coercion is what forces particular content into the legal form.

 It would go beyond the scope of this article to give a full picture of the colonial injustice the Chagossians had to endure (and a snapshot would not give any justice to the suffering). But it is necessary to give an idea of the origins of this suffering.

The arrival of the first colonisers in 1776 led to settlements on the island of Diego Garcia, promoting the growth of population and in 1828, the United Kingdom decided to send slaves there to live permanently. The majority of the early slaves in the Chagos were from Senegal. Agony and misery unfolded for the Chagossians in 1965, when the governments of the United Kingdom and the United States of America agreed to establish a major military base on the largest of the Chagos Islands, Diego Garcia. To this end, the Chagos archipelago (including Diego Garcia) was separated from Mauritius (then a British colony) and became constituted as a separate colony called the British Indian Ocean Territory (BIOT) by way of Order in Council, SI 1965 No 1920. In the period between 1967 and 1973, the United Kingdom removed the inhabitants of the Chagos Islands by, inter alia, refusing to let them return from visits to Mauritius and closing down the plantations which provided for their employment. The people were deprived of their existence, their identity, their home, and, to be brief: their self-determination.

Imperialism thrived, while heritage, identity and belonging were subjugated and subordinated. Imperialism has socially stratified contemporary international order and it reproduces structural injustice. Not only has the United Kingdom failed to lawfully conclude the decolonisation process in the case of the Chagos Islands, it has failed to restore the dignity of the islands’ residents. Colonisation was not about bringing civilisation or exploiting resource for the Empire. Colonisation is about humiliation. Postcolonial justice, to this end, is about restoring dignity in face of humiliation and overcoming  the post-traumatic slave syndrome. The title of this blog is Justice in Conflict. A postcolonial society can never be without conflict. And it is justice that has to bring about the end to inequalities, injustice and humiliation. Postcolonial justice must be about the decolonisation of self-images and those of others. Postcolonial realities have to be informed by historic injustice, however invigorated by ‘unsurpassed contemporary structural injustices.’ What is needed is to build up a movement from the below as it was evidenced when bringing the matter to the Court to seek for justice: postcoloniality from the below must be an intellectual and political movement of re-modelling the historical, social, and political narratives of human agency and responsibility, pushing it away from dominant narratives of the Empire. The justice that needs to thrive to overcome conflict is about visibility, intelligibility and the amplification of the contributions of the marginalised and oppressed.  


 If there is postcolonial justice, it is not only a matter of the multifaceted approaches to such: restitutions, reparations, governmental apologies and other forms of remedying wrongs of past colonialism. Surely, they are necessary and important. But more than this, another important layer has to follow: the development of ‘an interventionist critique of present (and future) dynamics and structures of neo-colonial injustice as well.  More precisely, this means that the contemporary critical discourse must engage and withstand the frequent hegemonic approaches post-colonial world order. Only reflective discussion that opposes and tackles such a hegemonic approach through a counter-hegemonic approach can prepare the ground for post-colonial justice

 The delivery of postcolonial justice is not only about the secret and diminished memory/location of the past, but an overarching issue of the here and now. ‘Post’ in ‘postcoloniality’ cannot be reduced to one particular moment in time. Instead, postmarks a conceptual claim to think beyond the constitutive coloniality of both past and present. We cannot understand the present without reference and proper understanding of the past. But to live modernity means to penetrate each and every fibre of modernity by addressing justice for the sufferings of the past in every international forum available: Human Rights Council, European Parliament, African Court for Human Rights and many more.  The AO is solely the beginning of the a greater process from the below. Justice is about the diversity in struggle: diversity in cultural narratives, diversity of oppressed communities who reclaim their agency in shared oppression,  and the diversity of indigenous knowledges to justice. Colonialism was not a singular historical suffering, it requires broad solidarity among the formerly colonised. In the end, the shared suffering must lead to liberation from humiliation.


About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Chagos Islands, Guest Posts, International Court of Justice (ICJ), United Kingdom and tagged . Bookmark the permalink.

1 Response to Long live the Empire? Seeking justice and the case of the Chagos Islands

  1. El roam says:

    Great post. Great pleasure to read it. Yet, in conceptual terms, something has been missing here. Surly, colonialism and post colonialism, can’t be justified by such baseless doctrine of superiority of one race over the other. On that, there is clear consensus. Yet, the post, has ignored the nexus between global justice, and post colonialism, or rather, the very existence of super powers as vital element therein. For international justice, can’t be really delivered. The ICJ can’t really deliver it. Not really binding and accessible. Neither the ICC, for it does handle only extreme cases of international crimes, and rather, indicting individuals, not states of course.

    So, in fact, as it is today, we are left, only with the Security council (as formal global body). Yet, we have issue with the veto power. And that is the point, that the veto power, by itself, meant to deliver, maybe not justice in the plain meaning of it, yet, peace, security, stability. So, that is how the world is organized in this respect.

    I strongly recommend, to read that piece of: Dr. Mohamed Helal , in opinio juris, titled:

    ” On the Legality of the Russian Vetoes in the UN Security Council and the Harsh Reality of International Law: A Rejoinder to Professor Jennifer Trahan ”




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