Irish may ‘draw inspiration’ from ruling on UK’s ‘last colony’, says international lawyer

A leading international human rights lawyer has said many in Ireland may wish to “take a close look” at an international court finding that Britain’s detachment of the Chagos islands from Mauritius was not based on the “free and genuine expression” of the will of all the Mauritian people.

Professor Philippe Sands KC said Irish people “may draw inspiration” from the 2019 International Court of Justice (ICJ) advisory opinion on Chagos “with respect to another, and a more local, circumstance in January 1922 and thereabouts concerning the question of whether the free and genuine expression of the will of the people was indeed obtained”.

The British-French lawyer and author made the comments when delivering the annual Free Legal Advice Centres justice lecture at the King’s Inns in Dublin on Thursday.

His address centred on themes of colonialism, racism and the rule of law in his new book, The Last Colony, launched in Dublin. It charts the journey from colonialism to the making of modern international law as told through the personal struggle of Liseby Elysé, one of some 2,000 islanders forcibly removed by Britain from their homes on the Chagos Archipelago in the Indian Ocean between 1968 and 1973.

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Britain announced in September 1965 it would grant independence to Mauritius but, prior to that, it arranged to detach the Chagos islands to form a new colony, the British Indian Ocean Territory (BIOT). It later forcibly removed the islands’ population as part of a secret deal under which the US was permitted to establish a military base on one of the islands, Diego Garcia.

Prof Sands acted for Mauritius over 12 years of its 40 year legal battle over sovereignty of Chagos, culminating in the 2019 ICJ opinion that Britain’s dismemberment of the Chagos Archipelago was unlawful and Chagos is part of Mauritius. A UN general assembly resolution ordered Britain to end its occupation by November 2019 but that has not happened to date.

Prof Sands said the detachment of the Chagos islands and creation of Britain’s ‘last colony’, the BIOT, was apparently based on “a lie” the British and Americans agreed to tell the UN, that Chagos had no permanent population and the Chagossians were merely “contract labourers”.

He showed video testimony of Ms Elysé at the ICJ in which she described her hurt, anger and sadness at being forcibly deported and still unable to return to her island home.

He outlined international law developments that contributed to the ICJ opinion, including the role of an Irish diplomat, Frederick Boland – father of poet Eavan Boland - in promoting the passage by the UN general assembly in 1960 of a resolution declaring all peoples have the right to self determination and prohibiting partial or total disruption of the “territorial integrity” of any colony.

He read Witness, a poem by Eavan Boland, which includes the lines: ‘What is a colony/if not the brutal truth/that when we speak/the graves open/And the dead walk?’

The British ambassador, he noted, told the UN general assembly in 2019 that Britain remained firmly committed to self- determination, but not for Mauritius. She had said there would be no sovereignty for the Falkland Islands until those islanders so wished and many in the room heard her “to be evoking one rule for the whites and another for the blacks”, he said.

Britain ignored the ICJ opinion, which was non-binding, and its attitude was akin to “Britain in Wonderland”. There was “incredulity across the world” and he was often asked “what had happened to the country that believed in the rule of law”.

Britain’s position on Chagos is “just part of a bigger picture” in which the British government treats judges and lawyers with contempt, sees international law as “an inconvenience” and believes an international agreement like the Northern Ireland protocol, “may be shred at will”.

While US President Joe Biden has called the rule of law one of America’s “most cherished” democratic values, that position of principle was undermined by its support for Britain on Chagos, he said.

International law, he said, treats forcible deportation without lawful cause as “an international crime”.

Last month’s announcement that Britain would negotiate with Mauritius on the exercise of sovereignty based on international law means “the end may be in sight”, he said. He hoped, very soon, “the flag will come down on Britain’s last colony in Africa” and that “will allow us to look back with greater honesty and to look forward with hope and decency”.

Speaking in advance of the lecture, Flac CEO Eilis Barry said the topics addressed “could not be more relevant, not only in light of recent international events, but also in Ireland.”

Flac is concerned any curtailment of access to judicial review could undermine an “essential safeguard for the rule of law”, she said. The “extremely limited” scheme of State-funded civil legal aid raises similar concerns as does the “lack of urgency” on key initiatives to promote equality and eliminate discrimination and racism.