Introduction

The Chagos Islands case has been seen as a rallying cry against colonialism and marginalisation. It brings into sharp focus both the untold procedural challenges faced by States of the Global South in finding legal avenues of redress as well as the substantive rejection of otherwise accepted jus cogens norms. This piece will argue that the landmark nature of the case lies in the mixed impact of the legal vocabularies used to bring the case to the International Court of Justice (ICJ), culminating with the presentation of the unedited witness testimony of an indigenous woman. This testimony, albeit not a compulsory requirement, breathed life into the expression of the right to self-determination, allowing a community that has been silenced for decades – if not centuries – to be represented authentically before the ‘World Court’.

Legal vocabularies in moving the ICJ

The question of self-determination of the Chagossian people shot to prominence in an arbitral hearing under Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS). The International Tribunal for the Law of the Sea declined to comment on the broader question of whether the sovereignty of the Chagos Islands rested with Mauritius or the United Kingdom (UK). However, it handed down an award in favour of Mauritius in holding that the creation of an environmental protection zone that prevented Chagossians from returning to the island from which they were driven away was a violation of UNCLOS. This case was the foundation that Mauritius used to persuade the United Nations General Assembly (UNGA) to request an Advisory Opinion on the question of sovereignty in the context of the Chagos Islands. Therefore, even in a case where a relatively straightforward claim of the right to self-determination existed, Mauritius was compelled to use the legal language of the delimitation of maritime boundaries to trigger international dispute resolution mechanisms.

The judges of the ICJ reaffirmed the right to self-determination of the Chagossian people and saw their consistent marginalisation as an unbridled restriction of this right by the UK. Even the dissenting Opinion of Judge Donoghue differed from the majority on the basis of the appraisal of jurisdiction and not the merits. The UNGA subsequently accepted this Opinion by an overwhelming majority.

Witness testimony and self-determination

In addition to the legal symbolism in reaching the ICJ, the Chagos case was pivotal in the presentation of authentic indigenous voices in the process of advancing evidence. The case saw Elyse, a 65-year-old Chagossian woman recounting the colony’s brutalisation. This type of evidence created space for the community to present its voice through the procedure of the ICJ, even in a dispute between two States. The calling of fact witnesses in inter-state disputes is rare and thus represented a ground-breaking moment for the ICJ in the Chagos Islands case.

In the procedural context of the International Criminal Court, the language of rights, and in particular the right to truth, is often resorted to by victims and witnesses, as seen in Prosecutor v. Katanga and Ngudjolo. While there is no restriction in the ICJ Statute with respect to presenting witness testimonies, the litigating parties before the ICJ have discretion as to whether to use this as a legal strategy.

In light of this, there is perhaps an impetus to recharacterise the procedural structure as a mechanism to expand the right to self-determination in line with the principle of the right to truth before the ICJ. This is especially true since, firstly, the right to self-determination is accorded to peoples as opposed to States, despite the State-centric nature of cases before the ICJ. Secondly, despite the right to truth being initially construed in missing persons or enforced disappearance cases, its restorative nature can be extended to historical oppression or colonialism cases.

In a sense, the right to self-determination extends to the usage and projection of vocabularies unique to the community, shaped by histories of silence. These voices are important in the context of both extra-legal and legal settings and often contrast with the forms of expression of States and their legal representatives in context of the right to self-determination. While States may choose not to present witness testimonies of the community in question in cases before the ICJ, there is value, at least in cases of self-determination, in construing this representation as a procedural requirement.

Analysis of impact

The right to self-determination has been furthered in a legal and social sense by the Chagos Islands case. However, the practicalities of the situation are mixed, begging the question whether a merely formalistic representation and recognition of a Chagossian voice is sufficient. Answering this question itself requires the global community to engage with the Chagossian perception of this case and the testimony with a view to understanding whether the community finds it representative of their own experience. At a legal level, the case has had a positive impact insofar as it has influenced another proceeding between Mauritius and the Maldives in delineating territorial waters and confirming that the sovereignty of the Chagos Islands rests with Mauritius, placing the representative power of the Chagossian people with Mauritius.

Very recently, the UK released a statement expressing its intent to de-colonise Chagos but retain the military base. However, it is unclear what the role of the Chagossian population would be within this process. Therefore, even the strong usage of Chagossian vocabularies in the case for self-determination has yielded chequered results in the face of the interests of the people of Chagos and their collective rights. Perhaps this case emphasises the need to redirect attention in international disputes to the voices of indigenous peoples, not just in the exception, but as a rule. An important starting point might be designing and amending procedural rights to facilitate access by, and provide a voice to, those peoples who are likely most affected by the findings of international courts and tribunals.