United Kingdom

The new print edition of the American Journal of International Law includes my essay on last February’s International Court of Justice decision respecting the Chagos islands. This post describes that publication and takes note of developments since it went to press.

My essay, “International Decisions: Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,” 113 AJIL 784 (2019), may be accessed at this SSRN link or at the AJIL website.

The essay outlines the ICJ advisory opinion, which is available here. It explains that the Chagos Archipelago, a group of islands located in the Indian Ocean, was considered part of Mauritius when both formed a British colony. But after Mauritius won independence in the mid-1960s, the United Kingdom kept the archipelago, naming it the British Indian Ocean Territory, then forcibly removed its inhabitants and leased it for a US military base, CNIC Naval Support Facility Diego Garcia, that is still there today. The legality and effects of these actions lay at the heart of the ICJ’s advisory proceedings, instituted following a request by the United Nations General Assembly.

The abstract elaborates:

“Decolonization and its quite valid discontents lay at the center of the recent International Court of Justice advisory opinion regarding the territory and populations of the Chagos Archipelago, located in the Indian Ocean. Answering questions posed by the UN General Assembly, the concluded that because these islands were detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom’s continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. As detailed in this essay, the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both.”

Notably, all on the ICJ bench agreed with the result except for the U.S. judge, Joan E. Donoghue, who maintained that the court ought not to have exercised its discretion to consider the issue on the merits.

Since 2017, for the 1st time in the court’s history, there has been no ICJ judge from the United Kingdom. As my essay indicates, UK officials spoke out against the court’s advisory opinion, framing it as a bilateral dispute over sovereignty, and stating that Britain would not “cede sovereignty to Mauritius” until Britain determined the archipelago “is no longer required for defence purposes.”

After the essay went to press, the United Kingdom reiterated that position in a 30 September 2019 letter to UN Secretary-General António Guterres, requesting that it be circulated to the General Assembly.

Two weeks earlier, Pope Francis had weighed in, on behalf of the Chagossians. In his words:

“Not all things that are right for humanity are right for our pocket, but international institutions must be obeyed.”

Maintaining the current British policy is the Tory government led by Prime Minister Boris Johnson. Its policy stands in contrast with that of Labour, the Tories’ principal rival; as the Guardian reported on Friday:

“Jeremy Corbyn has pledged to renounce British sovereignty of the remote Chagos Islands and respect a UN vote calling for the archipelago to be handed back to Mauritius.”

In short, the immediate fate of the islands may depend – not unlike Brexit – on the Britain’s next general election, set for 12 December.

Last autumn a colleague recommended The Retreat of Western Liberalism by Edward Luce. I finally got ’round to reading it about 6 months after its June 2017 release, over winter break.

It begins by recounting Luce’s impulse roadtrip in 1989, joining Oxford friends in tearing down the Berlin Wall. It proceeds to survey trends scholars have been discussing for at least a decade – and then, as one might say, the book adds Trump and mixes. The result is a series of aphorisms and anecdotes; an example:

“In Moscow’s view, history is back and nothing is inevitable, least of all liberal democracy.”

Yet just a half-year later, events point to things missing from this mid-2017 account.

One is consideration of how voters would react to the current U.S. administration; that is, whether the ballot box might stymie the very forces it unleashed with the presidential election of November 8, 2016. (This omission surprises, given that as early as April 2017, a Democratic candidate had made a strong showing in a highly publicized Georgia congressional race.) Since Retreat was published, Republicans have lost a U.S. Senate seat in Alabama, along with other races, including 2 presumed GOP-safe statehouse seats in my own Georgia county. If results like these turn out to be bellwethers for the November 2018 midterms – and if newly elected leaders then work to recalibrate the policy agenda – at least some of the governance alarms raised in Retreat will seem less well-founded.

Another is discussion of sex and gender as pieces of the geopolitical puzzle. Nearly all the anecdotes related, and nearly all the sources cited, are male or pertain to men. Exceptions are critiques of the 2016 Democratic presidential candidate, Hillary Clinton, and of the United Kingdom’s post-Brexit PM, Teresa May, plus comments on Germany by reference to Angela Merkel. All 3 are women, of course, yet neither the subject’s sex nor the gendered nature of politics figures into these analyses. The January 21, 2017, global Women’s Marches suggested a need for more attention to sex-gender dynamics, and events in the second half of last year, signaled by #MeToo and #Time’sUp, confirm it.

Perhaps the pretermission is due to the book’s rather strict construction of “Western liberalism,” as  centered on the freedom of the individual. That framing of liberty may incur tension with views of equality that take into account an individual’s  membership in a group. The book evinces discomfort with attention to such membership by reference to “identity politics,” on the one hand, and color-lined “nationalism,” on the other. The excesses of both are indeed complications. But they exist. Better to explore reconciliation of liberty-equality tensions, as another commentator recently did, than only to decry manifestations of excess.

All this is not to say that the book’s structural observations are to be disregarded. To the contrary:

Its concern that elites have overstated the Western liberal solution is correct. The same may not be said of the book’s prescription of listening more to persons who voted for the current president, at least not if “listening” refers to myriad of 2017 articles presenting anecdotal interviews with such voters. Listening in a more statistically grounded manner well may be in order.

Also correct is the book’s concern that as political and economic power shifts east, to Asia, the West ought to recognize, to think, and to act more strategically in response to that shift. Its positing of a standoff between liberal India and illiberal China –

“… Divided by the Himalayas, the world’s two largest countries, China and India, sit side by side – one an autocracy, the other a democracy. …”

– is not immediately persuasive, yet merits further pondering.

In short, Luce’s observations offer a basis on which to continue to make sense of our present and future:

“We must think more radically than that.”

Luce pushes us, and for this, his book is a worthwhile read.