Britain’s Colonial Legacy on Trial at The Hague

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Former inhabitants of Chagos Archipelago, the last British colony in Africa, claiming compensation for being exiled from their homes, High Court, London, October 31, 2002
On June 26, the United Nations celebrates its seventy-fifth birthday. The initiative that led to that moment in 1945 began nearly four years earlier, at an August 1941 meeting between President Roosevelt and Prime Minister Churchill, on a boat moored off the coast of Newfoundland, a British colony. For FDR, winning the war would necessarily mean a new, post-imperial world order. “I can’t believe that we can fight a war against fascist slavery, and at the same time not work to free people all over the world from a backward colonial policy,” he told Churchill. The British leader, an unrepentant imperialist for whom Canada, just across the water, was a recently lost British dominion, was apoplectic—but he desperately needed the United States first to get into the war (Pearl Harbor was still months away), and the two leaders signed their “Atlantic Charter.”

That charter, summarizing in a single page the two countries’ “hopes for a better future for the world,” included clauses on economic cooperation, respect for territory, limits on war-making, and “the right of all peoples to choose the form of government under which they will live.” Churchill wrote those words, which were revolutionary in their way. Yet he somehow persuaded himself that the peoples of Britain’s colonies wouldn’t think of applying them to their circumstances—any more than Roosevelt might have imagined they could apply in the American South. Still, it was a “statement of intentions, and a pretty good one,” as The New Yorker averred at the time.

Whatever the chartists’ original intentions, the words developed a life of their own, as words often do. A few months later, the two governments gathered a coalition in Washington, D.C., where twenty-six countries, including the Soviet Union and China, signed a declaration by the United Nations, affirming the Atlantic Charter’s principles and the embryonic ideal of decolonization. The following year brought another meeting, in Moscow, and then a conference in Tehran, where Roosevelt developed his ideas for a new organization of the United Nations. From there, the caravan moved on, to Bretton Woods, the birthplace of new global financial institutions, and then Dumbarton Oaks in October 1944, with a final superpower summit at Yalta, four months later.
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Prime Minister Winston Churchill and President Franklin D. Roosevelt, with his son James, meeting to draw up the Atlantic Charter, August 1941
With the end of the war in Europe imminent, these preparatory meetings set the stage for a final, founding conference. In April 1945, as delegations arrived in San Francisco, the framework was created for the new organization, which was to include a Security Council, a General Assembly, and an International Court of Justice, and a template for establishing additional, specialized agencies (including the future World Health Organization, from which President Trump recently announced a US withdrawal). Few participants were starry-eyed about the project—memories of the League of Nations and its abject failure to prevent a recurrence of global conflict were too present and keenly felt—but delegates rolled up their sleeves with a resolve to create a more worthy successor.

For the generations that had lived through a world on fire, some of them twice, the United Nations Charter’s opening words had a heartfelt resonance—to save succeeding generations from the scourge of war, to reaffirm faith in fundamental human rights, to respect international law, to promote social progress, to practice tolerance. This was only enhanced and made more poignant by Laurence Olivier’s reading and Aaron Copland’s musical score. That moment of harmony would soon collide with the harsh dissonances of the cold war, the Suez crisis, and escalating anti-colonial “emergencies.” In the decades that followed, the Soviet Union ended, the Twin Towers fell, the Security Council grappled with supposed “weapons of mass destruction” in Iraq, China rose, the climate warmed, biodiversity disappeared, and poverties and inequalities worsened. Yet, for all its flaws, the United Nations has endured and grown. By 1980, its membership had grown to 154 countries; today, it stands at 193, many of which are former British colonies.

At the moment of the UN’s creation, in 1945, Britain still had an empire that stretched across the globe. In geopolitical terms, the world was smaller then—leaders from fifty countries attended the conference in San Francisco—which made the two months of negotiation more manageable (a period of either “interminable tedium,” as one observer put it, or unsurpassed festivity, depending on whether you got invited to the same after-hours parties as attending celebrities like Rita Hayworth, Paul Robeson, and Orson Welles). The image of countries pulling together toward a new, rule-based order left a powerful impression even if the consequences of its decolonizing impetus were not fully knowable. The break-up of the old empires, one reporter recalled three decades after the founding moment, unleashed “a massive movement we barely anticipated at San Francisco.”

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This was the institutional order I learned about, when I first studied international law at Cambridge University. It was 1980, the year Zimbabwe, formerly Rhodesia, joined the UN. I was taught by an exceptional group of academics, who infused us with high-minded ideas about world order. They said little, however, about colonialism. The legitimacy of Britain’s place was simply a given, a country entitled to a privileged position, including a permanent seat at the UN Security Council and a judge at the International Court. This British exceptionalism was, well, just part of the natural order.

Over the years that followed, the scales fell from my eyes. In the 1970s, Britain had joined the Common Market, predecessor to the European Union, in a spirit animated by the UN ideal of belonging to an international order of multilateral organizations under the rule of law. But then, a few years later, Britain went to war with Argentina over the disputed Falklands/Malvinas—in what, with hindsight, seems a curious, shrunken rearguard action in defense of an imperial legacy, and its two thousand white inhabitants. This legacy—of slavery and colonialism, racism and empire—that had been delicately skipped over in my classes soon came ever more sharply into focus for me, not least through the legal cases in which I became professionally involved. The world as it was taught to me and the world as I experienced it were, I came to see, miles apart.

The old pedagogy of British exceptionalism has a long half-life, however. When Britain voted for Brexit in 2016, its citizens were encouraged to imagine a golden future, released from the shackles of Europe, a country free to stride once more across the globe, a “Global Britain” that would lead its former colonies into a compliant new “Empire 2.0.” So much for “the right of all peoples.”

The reality has been rather different. I saw this for myself, a year after that EU referendum, when, in June 2017, the UN General Assembly was asked to vote on a resolution to seek from the International Court an advisory opinion on one of the few remaining outposts of the former British empire. Promoted by the group of African UN members, the resolution concerned the Chagos Islands, an archipelago scattered across vast tracts of the Indian Ocean—and the last British possession in Africa. Excised from Mauritius in 1965, and renamed the “British Indian Ocean Territory,” the islands were home to a population descended from the African slaves of colonial masters. Between 1968 and 2003, the entire population of around two thousand inhabitants was rounded up—every man, woman, and child and transported to Mauritius, Seychelles, and Britain. (If a family had a dog, it was put down by gassing.) One of the islands, Diego Garcia, was leased by Britain to the US, to use as a military base. Indeed, attacks on Afghanistan and Iraq were launched from the island.
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Former inhabitants of Chagos raise their hands to demand repatriation, Port Louis, Mauritius, March 1, 2015
Five decades on, many former residents of the Chagos Archipelago still wished to go home, supported by Mauritius, many other African countries, and much of the world besides. This was one of the purposes of the resolution before the General Assembly—and it was, of course, precisely such a matter as the United Nations was created to address.

For Britain, though, what mattered was not these black lives, but its right to have detached Chagos from Mauritius and then lease a part to its US ally (despite the fact that Mauritius has made it clear that the US base can remain.) The UK vigorously opposed the idea of an advisory opinion from the International Court. The Chagos matter was a territorial dispute with Mauritius, not a question of decolonization. “The UK is clear about its sovereignty over BIOT,” the British government argued—though not so clear an issue, it seems, that the UK was willing to test it in court. The General Assembly was being used as “a back door route to the Court,” the UK protested.

I was present as legal counsel hired by Mauritius. My job was, from an informal perch at a small table in the Indonesia Lounge of the UN’s New York headquarters, to persuade delegates to vote for the resolution and send the matter to The Hague, that this was, in fact, a colonial matter that went to the core of the UN’s functions, while reassuring those with misgivings that the world would not end if the vote went against Britain’s desires. Over the course of one long day, I met with dozens of delegates. Only two—a genial Australian and a sensitive Canadian—indicated their inclination to support Britain, albeit with some evident discomfort. Most of the delegates I saw were from Africa, Asia, and the Caribbean: though not hostile to Britain, they were suspicious of its continued embrace of a colonist’s instinct.

The General Assembly voted by a large majority to refer the request to the International Court at The Hague. Britain and the United States convinced just thirteen countries to oppose the resolution. Britain’s state of isolation—and the diminished heft of the United States—were palpable. China, Russia, and France, the three other permanent members of the Security Council, abstained, as did Canada. Britain won the support of just two EU members, Croatia and Hungary, and only three of the fifty-four members of the Commonwealth. Not one country from Africa, Latin America, or the Caribbean voted with the British and Americans.

A debacle on this scale should inspire reflection. It did not. Five months later, a poor situation worsened: for the first time since the creation of the United Nations, or even the days of the League of Nations, Britain failed to get its candidate elected by the UN to serve as a judge at the International Court. London blamed its diplomats for not lobbying hard enough, calling it a “failure of UK diplomacy.” This was wrong, as anyone who had been present knew. Britain’s first-class diplomats had been dealt a dreadful hand: the combination of Iraq, Brexit, Chagos, and Prime Minister Boris Johnson’s personal record of printing racist slurs about “piccaninnies” and the like in his Daily Telegraph newspaper column (several delegates at the UN had mentioned this to me) was insurmountably toxic in this multinational forum. In a final humiliation, the UK’s vaunted “special relationship” with the US had proved a dead letter: in a run-off between British and Indian candidates, the Trump administration opted for neutrality—sealing the fate of the British nominee.

In September 2018, when I argued the Chagos issue before the court in The Hague, as one of Mauritius’s lawyers, there was no British judge on the bench. Thirteen of the fourteen judges who sat concluded that Chagos was illegally separated from Mauritius, and that the archipelago is, and had always been, a part of Mauritius. Britain was ordered to end its unlawful occupation “as rapidly as possible.” Even the fourteenth judge, an American, failed to support the UK claim, concluding only that the court had no jurisdiction over the matter.
The International Court of Justice

The Mauritius delegation awaiting the decision (third and fourth from right: Olivier Bancoult and Lisby Elysee, who were forcibly removed from Chagos in April 1973), International Court of Justice, The Hague, February 2019
Back in New York, in May 2019, the situation for Britain deteriorated further, as the General Assembly voted overwhelmingly to endorse the court’s opinion, that Chagos belonged to Mauritius and the former residents were allowed to return: just four countries—Australia, Hungary, Israel, and the Maldives—voted in favor of Britain’s neo-colonial claim. Instructed to leave Chagos by the end of November, Britain refused—a response that placed it in the rogue-state company of apartheid-era South Africa, which in 1971 defied a similar opinion from the International Court on the status of Namibia.

For its part, the UN is proceeding to implement the court’s opinion. Last month, it published a revised world map that does not feature the words “British Indian Ocean Territory” and marked Chagos as part of Mauritius. Boris Johnson’s refusal to allow the expelled Chagossians to return to their homes on Diego Garcia has been described as “akin to a crime against humanity” by the prime minister of Mauritius.

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As a student, I didn’t appreciate the extent of the reflection and planning that went into creating the United Nations. Nor did I understand how much Britain relied on its colonial holdings to obtain a privileged position at the UN. But neither did I grasp the role of President Roosevelt and the United States in—quite consciously, and in a blend of realpolitik and idealism—using the creation of the United Nations as an instrument to hasten the end of Britain’s empire. His appointee, Ralph Bunche, a distinguished African-American political scientist and diplomat, led the drafting of the anti-colonial provisions of the UN Charter that would be Britain’s undoing. Never more clearly than now, though, have I seen how the untaught, unspoken legacy of colonialism has rendered the UK unable to confront the perceptions of others, and the realities of its racist past and their continuing legacy.

Given its ignominy at the UN and the ICJ, the Brexiteers’ idea of a Global Britain, much touted by Johnson himself, appears ever more delusional. The UK’s present government has isolated the country, causing it to drift away from its former partners as well as to abandon its own ideals. Even a British commitment to the rule of law seems to have been cast aside, with the UK government’s rejection of the court’s opinion and the UN resolution. “Strengthening the rules-based international system is a priority for the UK and will be an essential building block of ‘Global Britain,’” a House of Commons committee maintains. The aspiration—which stands uncomfortably with Churchill’s implicit belief that Britain stood above the laws it created—counts for little as Britain blatantly flouts the International Court at The Hague.

On this anniversary, as Britain struggles with the reality addressed by Black Lives Matter protests, there is a particular irony that the country’s continued colonial instincts have caused it to fall foul of the UN and the International Court, two institutions that Churchill, of all people, willed into existence. The words of the Atlantic Charter, which he wrote but somehow never imagined would apply to his own land, have come back to make Britain, and his heirs, accountable to the ideals it once espoused.

Musement

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