Diego Garcia, the largest island in the Chagos archipelago. Picture: HO US Navy Reuters
By Masilo Lepuru and Chidochashe Nyere
The German legal philosopher Carl Schmitt argued that at the heart of the creation of the “nomos of the earth” by European conquerors during the so-called journeys of discovery are land appropriation and land division. The law of the European conqueror is fundamental to the process of land appropriation and land division.
The people of Chagos are calling for a return to their homeland from which they were expelled by the British and barred from returning through British law. While the resistance of the people of Chagos is a multifaceted phenomenon, we argue that to have a good comprehension of their resistance, we must understand international law of colonialism in the form of the Doctrine of Discovery.
Robert Miller in “The Doctrine of Discovery: The International Law of Colonialism” argues that international law of colonialism in the form of the Doctrine of Discovery is not a relic of the past. He argues that the Doctrine of Discovery is still operational in white settler colonies such as Australia and the US. According to Miller, the Doctrine of Discovery was developed by European conquerors in the 15th century to justify land appropriation and land division of territories outside Europe and those not yet occupied by European nations.
At the heart of the Doctrine of Discovery is also racial and cultural prejudices against the indigenous people that European conquerors were conquering to acquire, by force and warfare, their territory.
The people of Chagos are clearly not of European descent, as they descend from enslaved Africans and Indian labourers. Thus, racism is also central to the expulsion of the people of Chagos from the island by the British. The Portuguese are said to be the first European nation to encounter the Chagos island in the 16th century.
As Miller has argued, the Doctrine of Discovery was by then already formulated by European conquerors in their so-called journeys of discovery. It is through this doctrine that European conquerors could regulate their greedy acquisition of territories outside Europe. This is how after the Portuguese and the French laid their imperialist hands on the Chagos.
However, it is the Act of Capitulation that sealed the fate of the people of Chagos. It is through this act that the destiny of the people of Chagos was placed in the imperialist hands of the British.
Thus, from the first discovery encounter by the Portuguese, to French colonisation, the people of Chagos are now colonised by the British. Miller argues that at the heart of the Doctrine of Discovery are 10 elements which include first discovery, conquest, Christianity, civilisation, native title, contiguity, pre-emption and actual occupancy and possession.
The Portuguese fall under the element of first discovery, while the French used, among others, the element of actual occupancy and possession when they settled on the island.
The British, on the other hand, used the element of conquest in 1810 when they used force to occupy the island and to take it away from the French through the Act of Capitulation. Due to the act, the people of Chagos lost their sovereignty to the British, who still claim it to this day.
Based on the history of the British ethically questionable acquisition of the island due to unjust conquest, we fully support the resistance efforts of the people of Chagos against the dubious British claim to sovereignty over the island.
This shows that Miller is correct to state that the Doctrine of Discovery is not a relic of the past but that European powers are still applying it today in white settler colonies. Chagos is a white settler colony because of the British occupation of the island and the expulsion of the people of Chagos and their replacement with British and US civilians and military staff.
Due to the British conquest of the island, the people of Chagos lost their native title and became mere occupants of their territory. This accounts for the ease with which the British were able to enter into an agreement of imperialism and colonisation with the US to create a military base for the US.
As mere occupants of their homeland, the people of Chagos were easily expelled by the British between 1967 and 1973. This expulsion, which has resulted in the current resistance by the Chagos people calling for the return to their homeland, was not just to allow the US to create a military base to facilitate its imperialism.
But this expulsion is fundamentally traceable to the logic of the Doctrine of Discovery as the international law of colonialism. We thus applaud the unrelenting resistance efforts of the people of Chagos for not capitulating to the Doctrine of Discovery.
While Miller’s Doctrine of Discovery is not yet a relic, recent developments in the fight for self-determination and self-rule for the Chagossians, some reprieve may be on the horizon. The Chagos Islands dispute in terms of territorial integrity, self-determination as well as sovereignty has been a protracted peregrination which has, however, culminated in the International Court of Justice’s ruling of 2019.
The international court upheld and affirmed Mauritius as the sovereign that has jurisdiction over the Chagos Islands. This means that the British, by international law, have to cede power to Mauritius, the rightful sovereign over the Chagos Islands. Mauritius as the sovereign has the right to resettle its nationals back on their land.
However, the British – in true imperialist calibre – are yet to comply with that international court order. This means there are a myriad of implications for Britain’s arrogance in resisting an international court’s order.
Thus, in order to unpack and understand the intimations of the International Court of Justice’s ruling, the refusal by Britain to follow the court order and the bearing this has on the US as it currently has a military base in the Chagos Islands – a deal that it sealed with Britain – the University Johannesburg's Institute for Pan African Thought and Conversation will be hosting an international conference on October 4 and 5 to discuss what should happen next.
The conference will be in hybrid format, with the physical component hosted in Johannesburg. It is set to attract influential legal minds, academics across disciplines, civil society organisations and political leaders who have worked tirelessly to bring the Chagos Islands issue to resolution.
Masilo Lepuru and Chidochashe Nyere are from the Institute for Pan African Thought and Conversation at the University of Johannesburg.
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