Leslie Johns 0:04
Welcome everyone to our first Burkle book talk of the fall 2023. Before we get started, I just have a few brief announcements. First of all, audio and video recordings are being made of this talk. You'll be able to access those recordings later on YouTube as well as on various podcast channels. The audience cannot be seen or heard on these recordings. Only me and our guest speaker. Please submit your questions using the Q&A button at the bottom of your screen. Please be brief and clear in your questions so that I can read and understand them easily. So our speaker today is Philippe Sands who will be talking about his book the — excuse me, "The Last Colony: A Tale of Exile, Justice and Courage". It was just recently released here in the US and came out earlier in the UK. Philippe is well known to those of us in the international law community. He is a well known international litigator who practices at courts like the International Court of Justice. He's a professor of law at the University of London and has also served as a visiting professor at Harvard Law School. He is perhaps most well known as the author of "East West Street", although he also wrote a wonderful book called "The Rat Line", which I'd also recommend to our audience. And he's also served as president of English PEN, which is a major literary society from 2018 to spring 2023. So I'm gonna go ahead and welcome Philippe here to our audience, if he could go ahead and join us with his screen. And he is going to go ahead and give us a brief introduction to his book. Thanks so much, Philippe, for joining us today.
Philippe Sands 2:03
Leslie, and colleagues at UCLA, thank you so much for this invitation. I'm very pleased to be back at UCLA although, in this very distant way. I'm sitting in London where it has just started to rain after unseasonally hot weather in October records being broken, which is not a source of joy and happiness. But that is not what I'm here to talk about. For the next 20 or so minutes, I'm going to give you a sort of potted history of a tiny set of islands that are located in the heart of the Indian Ocean, sort of halfway between the East coast of Africa and the Maldives and India. It's known as the Chagos Archipelago, Chagos Archipelago, and it was originally a colony of the Netherlands and then it became a colony of France. And then in 1814, it became a colony of the United Kingdom. And it was treated, the Chagos Archipelago, about 58 tiny islands, the only one of which you've probably ever heard of is called Diego Garcia. And the reason you will have heard of it is that it is the home to a major US military base. From 1814 until the 1960s, the Chagos Archipelago was treated as an integral part of the colony of Mauritius. It had a population of about 2000 people. They were mostly, almost all descended from enslaved people brought there in the 18th and early 19th centuries, who worked on copra plantations producing oil from coconuts. And they lived there for many generations. They were blissfully unaware of the changes that took place in the international legal and institutional order, the creation of the United Nations, and the move in 1945, to what has come to be known as decolonization. The idea that along with the right of self determination, which is of course articulated in the United Nations Charter, largely at the insistence of a very impressive American diplomat, Ralph Bunche. These developments did not affect people on the ground. In Mauritius, however, certainly in the late 1950s and early 1960s, there was a move towards obtaining independence from the colony, and as that move generated a head of steam in the mid 1960s, the United States came onto the scene. It was in the stage of developing a series of far flung military bases around the world. And in 1964, it identified one of the islands of the Chagos Archipelago, Diego Garcia, as a suitable location for what was then expected to be a communications facility, but of course, has subsequently become a very large military base. The Americans told the British we'd like to have access and use of Diego Garcia. The British at that point had declined to get involved in the Vietnam War with a Labour government of Harold Wilson, and felt under some pressure to help American friends. The two countries, were also developing a program of nuclear powered and nuclear capable submarines called Polaris in the United Kingdom. And so the British said, "Yes, you can, you can have Diego Garcia." Now, this coincided with a development in international law, which was the sort of coming alive of the right to self determination. And in particular, the resolution that was adopted in— 1960, resolution 1514, which articulated the right or the principle of self determination. The idea that every community should be able to decide for itself their destiny, who controlled them, who governed them, and so on and so forth. And so the British found themselves with a problem. On one hand, they knew they were about to give Mauritius independence, including the Chagos Archipelago. On the other hand, they wanted to be able to give Diego Garcia to the United States. So what they did was essentially, under duress, persuade the incipient leadership of Mauritius to agree to a deal in which Mauritius got its independence, but without the Chagos Archipelago. That deal was concluded, I think fair to say under significant pressure in London, in 1965 in November, and in due course, Britain separated the Chagos Archipelago from Mauritius, created a new colony, its last colony, hence the title of the book "The Last Colony", and establish something called the British Indian Ocean Territory as a separate overseas territory of the United Kingdom, and entered into a long lease for seventy years with the United States to allow it to use Diego Garcia. Now, the British here found that they had a problem. They had undertaken to give Diego Garcia to the United States without a population. But this ran headlong into one of the principles of resolution 1514, that is to say the principle of territorial integrity. When a colony attains independence, the colonial power is not allowed to separate and keep a part of the colony unless consent of the population has been obtained. And that consent was partly obtained in relation to the Mauritian leadership, but it was not obtained in relation to the people who lived on the Chagos Archipelago. How did the British get around it? They used their lawyers, some actually opposed the plan they concocted, but the legal advice from one lawyer Tony Aust was that they could proceed in the following way: determine that all the inhabitants of the Chagos Archipelago actually weren't inhabitants at all. They were contract laborers, they had no right of residency, and therefore they didn't have a right to be consulted. And on that basis having recharacterized the people who lived on the islands and had lived on the islands for generations, they determined they would remove the entire population, and that happened between 1968 and 1973 with the full complicity of the United States. The population was shipped off to Mauritius, to Seychelles, and some — a very small number — were allowed to go to the United Kingdom. Mauritius obtained its independence in 1968 and began to really agitate in the early 1980s for a return of the archipelago. I was first contacted about 30 years after that in 2010. I was on a skiing holiday with my brother in France on a chairlift when my phone rang. I normally do not answer my telephone when the phone rings when I'm on a chairlift because I'm terrified of dropping the telephone, you know, 100 feet or so down to the snow and losing it forever. But I looked at it and the number was one I didn't recognize, +230. It made me curious. I answered the phone it was the office of the Prime Minister of Mauritius. Prime Minister wants to speak to you now. Would I lead a team to develop a legal strategy to recover the Chagos Archipelago? And the book tells the story of what we did next. It tells the story through three rounds of international litigation: arbitration, the International Court of Justice, the international tribunal for the Law of the Sea. It's a real sort of David and Goliath story. And I don't have time now to go over all of it. It's a book about international law. It's a book about my relationship to international law. It's also a book about a remarkable Chagossian lady, who I think for me is the star of the book, who was 20 years old, when in April 1973, as she put it in her witness statement, and she's told me on numerous occasions, she came across something she had never seen before, a white man on her Island, which was called Peros Banhos, 400 people living there. And the white man said to her, "you have to leave tomorrow, and you can take one suitcase with you. The island has been closed, you will not be allowed to come back."
Liseby Elyse was barely in school. She cannot read and she cannot write. And she emerged as a central character in the central part of the litigation strategy, which was before the International Court of Justice. Mauritius was unable to bring a contentious case to the international court because the United Kingdom had fixed its acceptance of the jurisdiction of the court. And so the way we ultimately got to the International Court of Justice was, by first case under arbitration, which in large part, Mauritius succeeded. The British government in 2010, declared the creation of marine protected area, a 640,000 square kilometer maritime space within which all human activity was prohibited, except in the era of the US military base where the military folks could do whatever they needed to do. This act became notorious in British political life because it occurred in about the same time as WikiLeaks, the release of millions, frankly, of US diplomatic cables from around the world, which included — they were very easily searchable, and someone found the cables about the Chagos Archipelago. And one of the cables very unfortunately for the British, included comments by a British diplomat to the Americans. And I'm paraphrasing, but the language is not happy language, and I apologize for using this language. But basically, it said, "one of the great things about this marine protected area is that the Man Fridays will never be able to go back. It was deeply offensive. And it had the effect of galvanizing the Mauritian government. By now, 2010, the Chagossian community themselves had litigated very actively in the English Court to overturn the decisions that have been taken 40-50 years earlier. They ultimately were not successful. But they did succeed in a number of procedural aspects, and most significantly, they — through the process known as discovery — managed to get access to the British records obtained, were made in '64 '65 '66, which shone a light on the strategy the British were using to retain ownership over islands that really did not belong to them. And that showed very, very clearly the manipulations and that material became extremely important. But the creation of the marine protected area allowed Mauritius to go to the international tribunal for the law of the sea and bring an arbitration alleging the marine protected area was illegal for two reasons. Firstly, because the British had not consulted with Mauritius on the environmental and fisheries aspects of the MPA as it was called, and Mauritius one that part of the case five kneel unanimously. And secondly, that in any event, the United Kingdom was not the coastal state and had no right to declare the creation of marine protected area. Now, we knew in preparing that case under the Law of the Sea Convention, it was tough, because there was a real issue as to whether a Law of the Sea Arbitration Tribunal has the power to exercise jurisdiction on the question of who has title over islands, and in fact, by a majority of 3-2 Mauritius lost that decision. And what was significant, however, was that two arbitrators, the minority, the German arbitrator, and the Tanzanian arbitrator put in a very strong dissent, which said, "No, we have jurisdiction to deal with that issue. And we conclude that an application of the right of self determination, Mauritius is sovereign, not the United Kingdom." Now that had a galvanizing effect, because it was the first time any international courts had expressed a view on this. The three judges, the arbitrators in the majority, said nothing about sovereignty, said nothing about which state was sovereign in the two competing claims. But the minority dissenters had expressed a very strong view. And so Mauritius now had two serious international judges, both renowned, expressing a view in support of them. The new government of Mauritius came in in 2015 and instructed us to go to the next phase. We couldn't go, as I said, through a contentious case. And so we had to go another route. It was a route that we said was not available in 2010. And that route was to go to the General Assembly of the United Nations and persuade the General Assembly to pass a resolution requesting an advisory opinion from the International Court of Justice, on whether the decolonization of Mauritius had been completed. In other words, was the dismembering of Mauritius in 1965 lawful or unlawful under international law at that time? I have to say, in 2010, I thought that there's no prospect of Mauritius, a population under a million, taking on two permanent members of the Security Council and getting such a resolution. And we knew in 2015, 2016, it was going to be tough. And the book tells the story of how that resolution was passed. Remarkable diplomacy by remarkable Mauritian diplomats, but also a total collapse of the United Kingdom's place in the world. In June 2016, Mauritius was mightily helped by a vote in the United Kingdom to leave the European Union. And in an instant, UK lost the support of 27 member states of the EU. That was coupled with a very rare unity of the entire African Union, which supported Mauritius — 54 countries — and by an extraordinary vote of 94 to 16 against, Mauritius obtained the resolution and the case went off to the International Court of Justice. And it was heard there in September 2018. I described in the book how you litigate a case. It's something that the legal textbooks really don't usually do. And I wanted to do it partly because, you know, I think it's my function as an academic. Let the students, my wonderful students know, actually how it really works rather than what textbooks say happens. And it included a lot of strategic stuff, some of which has really surprised people how you litigate a case, including on the selection of judges in the voting of judges at the International Court of Justice, in the context of trade offs. For example, the United Kingdom lost its judge at the International Court of Justice Christopher Greenwood, in a faceoff with an Indian candidate. And of course, on a personal level Chris Greenwood had been my teacher, we've been colleagues at Cambridge University together. But quite obviously, for Mauritius, who was my client, getting an Indian judge rather than a British judge was central to the to the outcome. And So Mauritius prevailed, got the case to the International Court of Justice. And I think the beating heart of the book is really what happened next. And in particular, a testimonial given by Liseby Elyse, the lady I talked about earlier, can't read can't write, three minutes and 47 seconds, completely transformed the case. And I think from that moment on, we knew we were in with a shot by essentially unanimous decision. I mean, one judge voted against excellent John Donoghue, the American judge, but not on the merits. Our view was the court had no jurisdiction to exercise or should not have exercised jurisdiction if she didn't express a view on the merits. All the judges who have expressed a view on the merits found for Mauritius that Chagos was illegally dismembered, that it had always been part of the colony of Mauritius, and that today, still, it was part of Mauritius and the United Kingdom must leave forthwith. I when I got that opinion on which I think that the Chagossians played an absolutely central role in getting it through, I remembered an early meeting I'd had with the Legal Adviser at the State Department in January 2011, with the Mauritian ambassador, and the Legal Adviser, then Hillary Clinton State Department, very good friend of mine, him just saying this entire strategy was completely hopeless and useless and bound to fail. And of course it didn't. This is one of those rare cases in which international law, at least on paper, produced an outcome. The British then had to decide what to do. Do they accept the opinion or do they reject it. They rejected it. And they did so on the basis that an advisory opinion is not binding on the states was, I think, a mistake, Britain got itself into real difficulty. And it said it wouldn't comply with the advisory opinion. But the rest of the world basically did and recognize that Mauritius now had sovereignty over the Chagos Archipelago. There was another case of back to loss on a delimitation with the Maldives. And the Tribunal for the Law of the Sea ruled overwhelmingly, the maritime boundary is not between the UK and the Maldives. It's between Mauritius and the Maldives. The UK dug its heels in, sort of supported silently by the United States.
"The Last Colony" book came out in September 2022, in Britain, and in many European languages. I'd love to be able to tell you that it was the publication of "The Last Colony" that caused the British government to change position in September 2020, in November 2022, when the British government announced it, but enter negotiations with Mauritius to resolve the matter on the basis of international law. But I suspect that's not the case. It's got nothing to do with my book, which is an act of literary advocacy to try to persuade the British to do the right thing, but curiously, an unexpected consequence of the war in Ukraine. As you know, Britain, United States have expended considerable effort in trying to persuade countries from the global south to support them in their support for Ukraine to dislodge Russia from its illegal and colonial occupation of Ukraine, parts of Ukraine, and that has not gone well, particularly in Africa. And more than one African ambassador has said to me, it was fascinating, Philippe, the Brits would come along and ask for our support. And we'd say really, you want us to support you dislodge Russia from its illegal occupation of Ukraine whilst you are illegally occupying a part of Africa, Mauritius? We don't think so. Go away, leave us alone. And and the double standard, which of course, is something we can talk about in a moment was very, very significant I think in that regard. The upshot is, and I can't say very much about it, negotiations have been underway throughout this year. And I'm not pessimistic about those negotiations. I think there will be a decent outcome and we can talk a little bit more about what all of this means. One aspect that is very important is Mauritius decided from the get go 2010 that the military base would stay at Diego Garcia but under the Mauritian sovereignty that's obviously very important for Mauritius. And the huge issue, and the dominant issue, is the question of the return of the Chagossians. Mauritius has been strongly committed to that principle. It is going to happen. The Mauritiaan community itself is divided. And this is a very interesting aspect and a delicate aspect. I'm not an independent observer in this. I've been counsel for Mauritius. But at the personal level, I feel very strongly the sense of trauma of the Chagossian community and the community is divided. There are some mostly in Mauritius who are pleased that Mauritius will reclaim its sovereignty over the Chagos Archipelago. There are others, many of whom live in the United Kingdom, who would rather the Chagos remains part of the United Kingdom. And then there's a third group, interestingly enough, who think that Chagos should be a country of its own, that they have rights as an indigenous people, and that they have the right to self determination to be a country, probably a bit like Nauru, have a couple of thousand people. And that aspect adds a level of complexity to a diplomatic matter that under international legal arrangements is seen as interstate. Let me stop there. Very much looking forward to the conversation in the discussion. And back over to you, Leslie.
Leslie Johns 24:35
Thanks so much, Philippe. Thanks so much. You know, just for the audience of the book. Sorry, sorry for the audience. You know, I just want to pitch in that, you know, it's a really interesting book, it reads a lot like a novel. You know, obviously, Philippe had to put a big story into just 20 minutes and he explained it very clearly the way a good teacher would, but but to put in a pitch for the book it it really is a joy to read. It really is a big page turner. And it's something I was able to despite the complexity of the story, I was able to read it in just a few days. So, you know, Philippe, you really are talented storyteller. You really do have a gift of being a great writer.
Philippe Sands 25:18
Well, you're very generous Leslie. Can I just say on that, just so the listeners are aware, I mean, it did make it briefly onto the bestseller list in the UK, which was very nice. But one of the things that I've learned it's absolutely fascinating. Last two books that I'd written before that were about Nazis and Nazism. And you know,
Leslie Johns 25:36
People love Nazis, right?
Philippe Sands 25:38
Especially British people. And I've come to understand the British people like Nazis, like books about Nazis more than they like books about their own colonial horror stories. And from this episode, I've come to realize that Nazis play a very important part role in British life, because they make the British feel better about themselves.
Leslie Johns 25:56
I think so, it's easy to hate a German in some ways. I mean, I think that's true in movies, too, right? We always in Hollywood movies, you know, have a German accent as sort of being the villain, you know. And it's a rule that that German people have been so gracious and not begrudging us. You know, they're, you know, I think it's kind of amazing about how, how willingly the German people have sort of, sort of been so graceful about sort of repenting for the past misdeeds. I don't know, if you saw I saw on, you know, in response to the violence in Israel, one of the things I was so touched by, were not when I saw on social media the other day was a picture of the Brandenburg Gate, which had a picture of the Israeli flag on it, which I cried when I saw it. I was just like, Oh, my goodness, you know, what, like, an image of solidarity, you know,
Philippe Sands 26:53
Life is, life is complicated.
Leslie Johns 26:55
It is complicated. You know, but sorry, we should sort of set that aside and focus on your book, which is the focus of today. So one thing I wanted to push you a little bit on, you know, I thought you did a really great job of, of touching on the influence of Brexit, and how that really pushed the case forward. As, you know, obviously, as a lawyer, you were really focused on decolonization, because that was, you know, key to the motives of your client. But, you know, I'm a political scientist, and I'm always thinking about the politics of this and politics were really key to getting the case before the ICJ. Yeah. And, and you did talk in your book a bit about the Iraq War. But I kind of felt like it got a little bit of a short shrift in the book, and you didn't mention it in your presentation. And it seems to me like that really is a key part of the Diego Garcia story, and the politics of what made your legal case work, in the sense that not only was Diego Garcia, you know, used to fight the wars in Iraq and Afghanistan, it was also used for extraordinary rendition programs. And your case didn't happen in you know, 2003 when everyone was supporting the US and hunting Al Qaeda, but your case happened in 2010, after, you know, all of the weight of the 911 attacks had faded away, and all of the horrors of America's misdeeds had become public. And, and really sort of the tide of world opinion had shifted, you know. It seems to me so that the politics of what's going on, you know, like the law of decolonization matters. But it seems to me like the politics of, you know, anti terrorism was really what made your case possible.
Philippe Sands 29:04
Yeah. Well, it's really interesting. I mean, as you as you rightly say, there's a lot more stuff in the book that I've been able to address now. I mentioned, the bombing of Iraq started from Diego Garcia, there is aspects of extraordinary rendition, we still never known the full details of what happened. But in fact, the creation of the marine protected area was a direct consequence of the embarrassment of the Labour government when it emerged that US planes had stopped at Diego Garcia, with human cargoes and the British people had been told that was not the case. And then it emerged that it was the case. And I think the creation of the marine protected area then became a way of cleaning up the image of Diego Garcia. And of course, it backfired spectacularly, because it was the end of the colony for the British. They never knew that when they created it. One of the morals of the story is act in one way, it will have unintended consequences. You think you're doing the right thing. And in a sense you are. But you open another door. Politics, I think it's important to say, operates at two levels in this case, most significantly, it operated in the General Assembly. I mean, when we come to the after the advisory opinion, the matter went back to the General Assembly for a vote on whether to accept the advisory opinion, to allow the Chagossians to return. And to order the British to leave that vote, unbelievably, was 116 in favor. And only six against. In other words, Britain and the United States managed to persuade only four countries in the world to support them. Who were the four countries: Australia for geopolitical military reasons, Hungary, because under its present leadership, frankly, it's a semi fascist state, Israel, because it opposes the use of the General Assembly, to ask for advisory opinions in order to protect itself, and then most curious of all the Maldives, who were leaned on by the British. And that displayed, I think, a monumental fall from grace for the United Kingdom, not something I celebrate, but I think we have to be honest about it was a catastrophe for the British. But politics comes in at a second level. And that is one thing that's not much talked about in the world of international law. When you argue a case at the court, I had a great mentor, and colleague and friend who's sadly no longer with us, James Crawford. We did many cases together at the court. And we would always go through the 15 judges, we'd spend hours and hours looking at their backgrounds, looking at what they wrote, looking at their opinions, looking at their countries they came from to work out where they turned on a particular issue, to construct a legal argument that would find a way to get you the majority that you wanted. And we did exactly the same thing in the Chagos case. And one of the aspects of law that people forget, it's the same at the domestic level, and it's the same at the international level, law and politics are not separate. They are utterly interconnected. And you have to keep that at the forefront of your mind at at all times. And Mauritius basically played a blinder in playing the politics, but it was lucky. The timing and the issue of Brexit. No question.
Leslie Johns 32:40
I don't know. I don't know if you know this, but is it Nicolas Bancoult who's one of the Chagossians the one who's filing all the lawsuits?
Philippe Sands 32:49
Olivier Bancoult? Yes. He's right. Yes. Just been in the US. Yeah,
Leslie Johns 32:55
Yes. I just saw in the newspaper. He was in DC lobbying Congress trying to get Congress to pressure the Biden administration, to somehow I guess, try to get them to to get the British somehow involved in this.
Philippe Sands 33:10
Yes. So he's a wonderful person.
Leslie Johns 33:13
Well, that guy never stops. Right. Wasn't he behind all of the litigation in the domestic courts?
Philippe Sands 33:19
For those lawyers in the audience, you will see it in the legal in the law reports is Bancoult number one, Bancoult number two, all the way up to Bancoult number five. And I credit Olivier Bancoult, with having brought the cases that opened up the documents that allowed the International Court of Justice to conclude the consent, quote, unquote, of 1965 was obtained by duress. I'd known only viewed for five or six years and at one point, I said to him, Olivier, where did you do your law degree? Where do you learn to litigate like you do and your legal standards, and he looked at me with a big grin. And he said, Philippe, I am not a lawyer. I am an electrician. Remarkable person, he's a remarkable person.
Leslie Johns 34:04
Okay, so he's just self taught, you don't need to you don't need a license or whatever, to file. Good for him. I love it. I love self taught. Yes.
So one thing that I've always been a little bit curious about, and this is also because I'm a bit of a political scientist is, is sort of what I've read about sort of the political economy of Mauritius. And this is partly from sort of looking at UN reports. Is that is that there's always been in the things I've read concerns about the plight of Chagossians who live in Mauritius. There's been a lot written about sort of economic discrimination that that they're not of the same socioeconomic status and so I've also read that they're relatively small part of the pie population within Mauritius. And so, you know is is this is this really about sort of, I've never quite understood why the Mauritius government was sort of responsive to their needs. Is this about a genuine desire to represent them? Is this about sort of getting revenue from the US for the return of the military bases? Like how like, how do you really explain the motives behind the government and what they're trying to see?
Philippe Sands 35:31
It's a really, really wonderful question, Leslie. We could spend a lot of time talking about it. Look like any community, yours, mine, there are different kinds of people in Mauritius. Mauritius has essentially an Indian majority. And to be blunt about it, the Chagossians are black. And they arrive in small numbers, it's just a couple of thousand of them if that.
Leslie Johns 36:06
And they're primarily illiterate, an illiterate society, right? Isn't that like a big source of tension.
Philippe Sands 36:12
And they arrive in a country that is newly independent, I mean, a country that is utterly dependent on the UK, for its trading sugar, which has no money. Very, very poor. It's a poor African country. And, frankly, I think many people would say they didn't get the reception that they really ought to have got. Now, one of the theories that I've developed over time, and you've seen in my books "East West Street" and the "Ratline", is that great political events, historical dramas, legal cases. And here, we could have a longer debate. I'd have to come to UCLA and we'd have to talk about this. Because big theories about international relations and political science in these areas to my mind, don't adequately and can never adequately explain the answer to your question. There's no global theory, which allows us to explain the undulating life of this case. I think what happened at the end of the day, was that a single individual called Sir Anerood Jugnauth who was the last surviving member of the delegation from Mauritius that went to Lancaster house in 1965, and was opposed to the deal with the British, felt a personal responsibility for what had happened. He went back to Mauritius after the Lancaster House meeting. He was in opposition for about 15 years after independence. And then in 1982, he became prime minister of Mauritius. And the very first speech he gave at the United Nations was to get back our islands and allow the Chagossians to return. And he never gave up. And in his late 80s, he sat with us at the International Court of Justice. And he was there for the arguments and he was there for the judgment or the advisory opinion. And this is the part where legal theory and political science theory and international relations theory, really, I think, have trouble working out how you integrated the human element, whether it's a judge on a court whether it's Lauterpacht and Lemkin on genocide and crimes against humanity, whether it's Olivier Bancoult
, Liseby Elyse, or Anerood Jugnauth or Navin Ramgoolam, his predecessor, as prime minister who was really strongly committed to this, it really isn't about money. It's that's not at all what motivates. It's about the sense that are wrong was done. And for various reasons, you want to right that wrong. I've lived through it. I've seen the commitment of successive governments, three different Prime Ministers all absolutely committed to achieving this outcome, and investing in relative terms, serious amounts of time and money on bringing this outcome. It's really an issue of principle. And you have to understand it in a colonial context.
Was this something that was being pursued in the 70s, 80s, and 90s?
It took off in '82. It really took off in '82 was when it started. Then in 2003, there was a decision that they were going to sue the United Kingdom at the International Court of Justice. Moral of the story for those who are listening. What happened was there was a Cabinet meeting in Mauritius in Port Louis in Government House, and they agreed they would bring proceedings against the United Kingdom before the International Court of Justice, but they faced the difficulty. Britain's acceptance of the jurisdiction of the court excluded disputes with members of the Commonwealth. In his wisdom that it would leave the Commonwealth of, but unfortunately one member of the cabinet decided on leaving the Cabinet meeting to share this with a journalist who of course, proudly then printed it in the newspaper. The British ambassador in Mauritius immediately sent it on to London with a clipping. And the foreign office in London immediately changed their acceptance of the jurisdiction clause to exclude disputes with former members of the Commonwealth, as well as current members of the Commonwealth. So it's, that's what happened. It's, it's been a long standing issue. I mean, and it's got cross party support for it and Mauritius.
Leslie Johns 40:39
Okay, wonderful. And finally, you know, I've seen sort of on various, you know, websites and things and who knows what, what is writing. There's a lot of sort of speculation about, you know, what might happen if the Chagos islands are returned to Mauritius? You know, obviously, as someone who studies politics, I tend to be a lot more of a pessimist than the optimistic lawyers are. Is there is there any talk about ways of trying to write into the settlement guarantees that, you know, ensure that the government uses the resources for the good of the Chagossian people? You know, just to be sure that the lands aren't leased out to someone else, for example. You know, I know that there have been other islands that belong to Mauritius, that there are sort of rumors about being leased out for airline rights and things like that. Yeah.
Sure. No, these are very, very important questions. I mean, you'll understand. I mean, I'm subjected to a sort of regime of strict confidentiality.
Of course, of course, and I would never want to think about sort of hypothetical arrangements of how contracts could be written to ensure.
Philippe Sands 42:05
I mean, I think I wrote an op ed piece in The New York Times last year, and I, it was a personal op ed, it was it was not didn't represent I made clear, it said in my personal view, of a sort of win win situation, a win win win win situation. Mauritius has sovereignty. The marine protected area, is put is made lawful under international law. And it's an extraordinary identity. I've been to Chagos, we returned in 2022. I described as one of the most extraordinary trips I've ever taken in my life. The Chagossians all get to go back, if they want to go back and it's up to them. There will be some who want to go back and they must, they must be supported to go back. And the US base remains and my personal hope is that that is the right outcome. But again, speaking personally, I would also hope that the marine protected area which I've taught international environmental law for years, I'm very committed to that area of the law. That the best stewards of a marine protected area are the Chagossians. I've been on the Chagos archipelago now, I've been to Peros Banhos and Salomon with Chagossians, I've seen their relationship to the land, to the water to the trees to the biodiversity. I've seen they are the people who really know that space, and they are the people who must determine the future of that space. So I am very optimistic that that is going to happen. But of course, ultimately, it's not a matter for me. It's a matter for the government of Mauritius. And I hope that Olivier and Liseby will not be disappointed by the outcome. You know, there is here at a personal level, another level of complexity. I'm counsel from Mauritius, so I have my duties of professional responsibility to protect the interests of my client. But I'm also a human being. I've come to know Chagossians. I love the Chagossians. I love the people that I've met. And I don't want them to be let down. And, you know, I think they know and the government is very supportive of this, that, that I'm also there to articulate, you know, a concern the kinds of scenarios that some people might envisage, don't happen. Yes, there is a model in Mauritius, there's another island called Rodrigues. And Rodrigues has a very high level of autonomy. Interestingly, it's an island in which the majority of the population is black. It's distinct from mainland Mauritius. And it has a high degree of autonomy and that may be the kind of model you want to go for. But these are very important questions. I hope you understand I'm not belittling them in any way. Quite the contrary. I'm foursquare with you personally.
Well, thanks so much. I'm now going to open up to questions from the audience. So one of our audience members just wants a little bit of clarification though I think you already said it, but maybe we could be a little bit clearer. Should Mauritius go ahead and get what it wants? How might this result affect the US space at Diego Garcia?
Right. Well, again, I'm impressed, thank you for the question. It's obviously a highly pertinent question.
Leslie Johns 45:22
For US audiences. Certainly. Yeah.
Philippe Sands 45:25
So, the Mauritian position has been crystal clear. And from day one, so I was instructed in April 2010. And of course, it was a very big issue. What is the position of the Mauritian government on the US base and the position of Mr. Ramgoolam's government back in 2010 was, it remains and continues, as it has operated. In 2015, the new Prime Minister Mr. Anerood Jugnauth said the same thing. And then in 2020, the new prime minister, his son, Pravind Jugnauth now said the same thing. So that became very important in the proceedings before the International Court of Justice. And when you stand before the judges of the court, and you make a statement, that the position of Mauritius is that the base will remain under Mauritian sovereignty. That statement, more or less, has binding legal consequences. Yeah. And that's a big commitment. And I have to say in terms of legal strategy, we all knew the lawyers from the government of Mauritius, the external lawyers, that if the court, International Court of Justice, was faced with the possibility of closing down that US military base the prospects of Mauritius getting a decent outcome on the case would be diminished. Because it's quite one thing to ask 15 international judges to determine that Mauritius has sovereignty that the Chagossians can go back and the base continues. Take the base out of the equation, imagine you are a judge, and you are effectively being asked to close down that military base. That is a big ask for any judge. And so I think, I think we can say that all sides are reasonably clear that the base is going to continue. Now, there are you know question, and maybe you're aware of this. I call them forces of darkness. They include the former British Prime Minister, who made an intervention two weeks ago, Boris Johnson -
Leslie Johns 47:35
Oh, you're talking about Boris. Okay. I was like, which one? Okay, yeah.
Philippe Sands 47:38
Yeah, there's a few of them. Basically, made a terrible intervention; it was an advertisement for the newspaper -- he now writes for The Daily Mail -- saying we have to stop all of this to protect the base, and making outrageous allegations, entirely unfounded, in fact, that Mauritius was about to do a deal with China and blah, blah, blah. Now, anyone who knows Mauritius, and its sort of ethnic composition, we'll understand that the closest ally in the world of Mauritius is India. And Mauritius is never going to do anything that India is not comfortable with. So that kind of allegation, which is intended to be mischievous and to cause difficulty and basically to play on British nationalistic instincts, is entirely unfounded, and mischievous, and wrong. And my sense is very clear. The base is going to continue under Mauritian sovereignty. I don't really have any doubt about that.
Leslie Johns 48:35
Okay. Another sort of US-oriented question from our audience. This is asking about the point at which the UK rejected the court's decision. I'm assuming this is about the UN General Assembly vote. So asking for clarification about whether the US supported Britain when it rejected the court's decision. I guess that's when you broke down the UN General Assembly vote. I don't think you meant how the US voted.
Philippe Sands 49:08
Yeah, yeah. Yeah. So the International Court, gave its advisory opinion in February 2019. It goes to the UN General Assembly in May 2019. The resolution is passed by an overwhelming majority, even bigger than the first resolution. The UK is humiliated. Frankly, the US is a bit humiliated also. And what happens next is it goes and lands on the Prime Minister of Britain's desk, what do you do? Are you going to follow this resolution? Are you going to follow this advisory opinion? And the British government says no, we're not going to. I don't know what the position of the United States was.
Leslie Johns 49:50
But in the General Assembly vote did the US -
Philippe Sands 49:55
The US voted against the request for an advisory opinion. And against giving effect to the advisory opinion. It supported the UK at the General Assembly, absolutely.
Leslie Johns 50:06
It did support the UK. Oh wow, I just assumed they abstained.
Philippe Sands 50:09
They didn't abstain. They voted against both resolutions. The second one, that was pretty tough because in the second one, you know, it was Donald Trump's administration's, or Donald Trump's ambassador. I don't know what would happen now. Perhaps it would be slightly different. But at that point, it was we lie and we sit and we stay with the UK 100%.
Leslie Johns 50:35
Okay. We only have a few minutes left so.
Africa has recently seen a series of coups, partly motivated by rejection of the continued French presence that remained past the official end of colonialism. Are you watching this from the perspective of the work you've done with Mauritius and the Chagos Archipelago? And do you have any advice for the remaining countries with French or British presence for how to achieve true independence without resorting to military coups?
Philippe Sands 51:11
So that, again, is another wonderful question. Of course, I watch it very carefully. I mean, I have done a lot of work with a range of African governments. And so, I I'm certainly not an expert, but I've come to understand more about the politics, the geopolitics, of Africa, and, you know, the anti-colonial sentiment is incredibly strong. And part of that, the reason for that, and I have felt this, it's very interesting. I mean, you know, there's a race and appropriation or other kinds of issues that one has to ask about a privileged white guy from London who finds himself on the delegation of an African country arguing these issues. It's one of the reasons I'm very clear in saying we didn't win this case, it was the Chagossians, it was Liseby Elyse's testimony, and it was the lawyering of Olivier Bancoult, that gave us the materials to be able to make our arguments. But I've seen very clearly you know, you are in delegation of an African country, 15 years, you see how the colonial powers treat you. You sense the patronage, the hubris, they're looking down on the little African children. Britain has not left its colonial demeanor. Britain has not come to terms with its past. France has not left its colonial demeanor. France has not come to terms. And what we're seeing right now, in that swathe of countries, which are basically saying to the French "get out", is an expression of the same kind of thing that is going on. And the West is in trouble in Africa and in the Global South. I'll give you a very clear example of that. I mean, I am, because of the books I've written on Ukraine and Lviv, very strongly supportive of Ukraine in this conflict. When I see the Russian Foreign Minister Lavrov turn up in South Africa and be celebrated, it makes me feel very unwell. Very "what is going on?" And I spoke to my friends in South Africa, academics, politicians, diplomats, regular folk. And they say Philippe, you have to remember, during apartheid, the principal source of support for the African National Congress was the Soviet Union. And they have never forgotten that. And so even if they're feeling a bit queasy about what Russia is doing in Ukraine, that does not overcome that feeling of indebtedness, that during the post-45 colonial period that persisted. Britain and the United States behaved in an appalling fashion in relation to South Africa. These things have long consequences. The kids who grew up in that era are the politicians of today, and they haven't forgotten it. And, so, you know, when a British person goes to South Africa and pleads for them to help get Russia out of Ukraine, South Africa is going to remember double standards, the colonial period, what they did during apartheid, these things have a long history. And I think what is needed for the colonial powers and this is where I really credit Germany, you mentioned this before. What other country do we know that has truly come to terms with its past and not only in relation to the Holocaust?
What other countries have done what they've done in Africa, which other countries have acknowledged that it perpetrated a genocide against the Herero.
Leslie Johns 55:06
I was gonna say I feel like it has somewhat selective memory about the Herero. No. You think it's truly come to terms with the Herero?
Philippe Sands 55:15
I think the German government has come to terms with the Herero. I mean, could you imagine the British government accepting that it perpetrated a crime against humanity in relation to Africa in relation to slavery? No, absolutely not. Could you imagine the British government? Let's call a spade a spade. Human Rights Watch, has characterized the treatment by the United Kingdom and the United States of the Chagossians as a crime against humanity. That is the first time in the history of Human Rights Watch they've used that label for something done by the UK and the US. What has been the reaction of the UK?
Leslie Johns 55:53
I have no comment on that. I'm being recorded, we could talk about that off camera, but I don't know that that's a term I would use. But you know -
Philippe Sands 56:05
Look, I mean, crime against humanity is something I spend a lot of time on, you forcibly deport an entire population. And don't let them come back for 50 years. In my book, that's a crime against humanity.
Leslie Johns 56:19
I'd say that that term is more appropriately used for the UK government's activities in Kenya, you know, that seems to have a more proper magnitude. You know, it's funny, because I was talking to someone else (I don't mean to consume the clock). But I read your book right after reading Caroline Elkins's book on Kenya. And so it was a very interesting contrast to me. I think that is one of the most amazing books of historical scholarship, but it was a very interesting book to read in terms of contrasting your styles of writing,
Philippe Sands 56:56
But interestingly, I know Caroline well, and I love her writing and her new book, also, I mean, it's just extraordinary on British violence. But I think we have to be very careful here. I don't think we're changing the subject slightly. But for me, neither genocide nor crimes against humanity are a numbers game.
Leslie Johns 57:18
That is fair. But I also think that we have to make sure that when we use words, we have to be sure that we use them in the historical context in which actions were taken. And I think that, you know, 1968 I'm not sure that putting some people on a boat... Like, obviously...well, now we're on camera. So I don't know if I want to have that conversation. It seems to me that the actions in Kenya are of sorts of a different magnitude
Philippe Sands 58:06
The numbers are different, and the actions are different. But there's no question that by 1968, Britain and the United States are telling the world the forcible deportation is illegal. Let me do another sort of mind test, which has been very interesting for me.
Leslie Johns 58:22
I should apologize to our audience because we are at time.
Philippe Sands 58:27
Just one final thought -- one of the things I've been really surprised about is the absence of traction in the United States in respect of this community. Can you imagine a town in California, in which the entire population of 2000 people is all black? They're all descended from enslaved people. And at a stroke from one day to the next, someone comes in and says, you're leaving tomorrow, we're taking you 1000 miles away, and we're dispersing you all over the place. What would the reaction be? Why has there been no reaction of the Black Congressional Caucus or other caucuses in relation to an act, which Olivier Bancoult says -- and I think he's right -- is motivated by matters of race? There's no question that if the Chagossians were white, this would not have happened. It would not have happened.
Leslie Johns 59:29
Well, I think we should end our conversation there for today because we are at 1:32. But thank you so much for joining us. Thank you to our audience. Definitely a very impassioned discussion. Thank you so much, and we'll be having many more exciting authors and exciting books on our calendars in the weeks coming up. Goodbye everyone.
Transcribed by https://otter.ai