Stewart Motha*
The dispossession and exile of people from the Chagos Archipelago in the Indian Ocean overlapped with the period of formal decolonisation overseen by the offices and instruments of the United Nations since the 1960s. Indeed, the Chagos litigation in UK courts over the last two decades, and in the International Court of Justice (ICJ) in 2018/19, together comprise an invaluable legal archive revealing a process of neo-imperialism that bucked the trend of decolonisation. The Chagos Archipelago was part of the territory of Mauritius prior the latter being granted independence from Britain. The ICJ Advisory Opinion on the Chagos Archipelago (February 2019)found that the decolonisation of Mauritius remains incomplete.1 This outcome was widely seen as a triumph for the General Assembly (which had referred the matter to the ICJ) and celebrated as an achievement of international law.
These juridical interventions in relation to the dispossession of the Chagossians manifest wider stories about the hopes, defeats, successes, and disappointments of decolonisation pursued through international institutions and courts. The history of international law told through these cases depends on the form of a narrative emplotment.2 Whether successful juridical contests are an anti-colonial triumph or the perpetuation of a postcolonial tragedy in newly minted terms, for instance, depends on what stories are told of them. It is in this mode of reading cases to ascertain their literariness and what literature enables in law, that we find one of the major contributions of the humanities to the study of international law.
The Chagossian predicament and ensuing litigation is vast and complex. My book Archiving Sovereignty: Law, History, Violence (2018) explored how the law deploys and sustains the fictions – the ‘As If’ – that enabled the exile and dispossession of the Chagossian population.3 The Chagossian case is not an aberration in this regard. Law’s fictions simultaneously enable violence and its disavowal at the same time. In this chapter I focus on the more recent ICJ Advisory Opinion – a moment when it seemed like the relative isolation of the Brexit-mired UK, the maneuvering of the UN General Assembly, and the ICJ’s confident exercise of jurisdiction might ‘complete’ a process of decolonisation.
The UK has been relatively isolated in UN institutions in recent times – abandoned by its European allies in the context of Brexit. States that would usually back the UK or abstain in relation to resolutions that would adversely affect the latter’s interests have not done so in recent initiatives in relation to the Chagos Archipelago. The UK’s pursuit of withdrawal from the European Union has also epitomised the return of sovereign isolationism as a geo-political stance. Submissions to the ICJ on behalf of Mauritius in the Advisory Opinion drew on these sovereigntist tropes and reflected a revived valorisation of sovereignty. However, whether sovereignty is in fact the ‘thing’ to be recovered in processes of decolonisation is seldom asked. There is also concern that the Mauritian recovery of sovereignty over the Archipelago (if it happens) will not necessarily end Chagossian exile and dispossession, or improve access to the islands by the descendants of the Chagossians. Arguments concerning the recovery of “fulsome sovereignty” by Mauritius, then, run the risk of repeating both romantic and tragic emplotments of modern emancipation.4
Narratives of anti-colonialism and decolonisation are often viewed through the narrative forms of romance or tragedy. These literary and dramatic genres are a mainstay of critical commentary and historiographical discourse in the humanities. In romantic narratives, to put it briefly for now, emancipation is mapped in linear terms where heroic figures, movements, and institutions battle valiantly towards the goal of freedom. Tragic narratives are usually more attentive to the complexity of agency and action, but more often than not, actors, institutions, or movements are depicted as failing to overcome the contingencies that are the inherited terrain, and blind corners of judgment and action. These dominant emplotments for narrating the processes, journeys, and aesthetic practices of decolonisation are themselves in need of interrogation.
Romance of Legal Triumph: The ICJ Advisory Opinion on the Chagos Archipelago
One reading of the Advisory Opinion is that it reiterates and redeems the role of international law in the task and process of decolonisation. The UN General Assembly (UNGA) by its resolution 71/292 (22nd June, 2017) had requested that the following questions be addressed by the ICJ:
- Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;
- What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?. (para. 1)
Among other resolutions and legal instruments cited in its request for an advisory opinion from the ICJ, the UNGA recalled its:
Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in its resolution 1514 (XV) of 14 December 1960, and in particular paragraph 6 thereof, which states that any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. (para. 1)
On 8th November 1965, the Chagos Archipelago had been detached from Mauritius by British Indian Ocean Territory Order 1965, an Order in Council whereby the UK established a new colony known as the British Indian Ocean Territory (BIOT).
The UNGA resolution 71/212 of 2017 was framed to recall the frustrated past of decolonisation overseen by the United Nations. Not only was Mauritian territory dismembered when it was granted independence by the UK, the severing of the territory happened in explicit contravention of the international norms on self-determination. The reference of the matter to the ICJ is then an attempt to remedy this past and continuing wrong, and reassert the force and extension of international law.
The ICJ concluded that the decolonisation of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination, and that the continued administration of the Chagos Archipelago by the UK is a “wrongful act entailing the international responsibility of that state” (para. 177). It also determined that the UK’s separation of the Chagos Archipelago from Mauritius is an “unlawful act of a continuing character” (para. 177). It followed from this that the UK is under an “obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination” (para. 178).
The ICJ also referred to the right of resettlement on the Chagos Archipelago of “Mauritian nationals, including those of Chagossian origin” (para. 181). It recognised that this resettlement “relates to the protection of human rights” without specifying which rights are entailed in resettlement. The matter of resettlement was referred to the UNGA to be addressed during the decolonisation of Mauritius. As Laura Jeffery has noted:
the particular wording – ‘Mauritian nationals, including those of Chagossian origin’ – includes non-Chagossian Mauritians and potentially excludes people of Chagossian origin who are not also Mauritian citizens: in particular, Seychellois citizens of Chagossian origin and, increasingly, UK citizens of Chagossian origin who are not also citizens of either Mauritius or Seychelles.5
The focus on ‘Mauritian nationals’ is but one expression of how the problem of decolonisation is coterminous with that of national sovereignty and citizenship. Even though the focus on decolonisation enabled the UNGA to refer the matter to the ICJ for an advisory opinion in terms that would reliably enliven its jurisdiction, the notion of national sovereignty undergirds the right to resettlement in the ICJ judgment. The legal subjectivities cognisable to international law are those tied to the sovereign form, nationality, and citizenship. These may well exclude the descendants of the original inhabitants who are not Mauritian nationals.
These limits of recognition and remedy are not evident from the style and swagger of international lawyers. In submissions before the ICJ, legal counsel for Mauritius, Philippe Sands QC, adopted a curious analogy when making oral submissions on 3rd September, 2018. Sands compared the bellicose assertions by Boris Johnson in his maneuverings concerning Brexit – namely, that the UK was being placed in the position of a colony of the EU with respect to the “back stop” concerning Northern Ireland – with the UK’s continuing administration of the Chagos Archipelago. Sands put it like this:
Mr. President, no country wishes to be a colony. The mere possibility engenders strong feelings. A recent British Foreign Secretary [Boris Johnson, as he then was] made that very clear, just a few weeks ago, in a resignation letter he wrote to his Prime Minister. He complained to the Prime Minister that she was adopting a path, in relation to Britain’s possible departure from the European Union, that would turn the country into one, as he called it, “headed for the status of [a] colony”.
The irony of his words will not be lost on those in this Great Hall. The United Kingdom does not wish to be a colony, yet it stands before this Court to defend a status as colonizer of others, of Mauritius, a significant part of whose territory it still administers. Unlike Mauritius, the coming “colony” of the former British Foreign Secretary’s imagination is not in danger of having its people forcibly removed and then prevented from returning.6
Despite the subtle disavowal of the Foreign Secretary’s ‘imagination’, Sands repeats the premise that the UK is at risk of becoming a colony of the EU to make this argument. Sands’ deployment of the appellation of ‘colony’, and comparison of the EU’s relationship with the UK under the (now defunct) Withdrawal Agreement with the status of BIOT, buys in to the most extravagant fantasies about the presence/absence of something called ‘full sovereignty’ that may be recovered by the UK from the EU, and by Mauritius from the UK. The tone and style of the ‘story’ Sands tells here is ironic. The reference is, after all, to the ‘coming colony of the British Foreign Secretary’s imagination’. We are not asked to believe that the UK is now, or will remain, a colony of the EU. We are invited to see Sands’ disavowing ‘wink’, and hear the parody in his bluster. But what is the meaning of Mauritian or UK sovereignty when it is cast in these ironic terms?
Irony, as White explained, is one of the poetic tropes in modern language theory that helps to characterise an object figuratively in discourse: “through irony … entities can be characterized by way of negating on the figurative level what is positively affirmed on the literal level”.7 While Sands’ submission is delivered with an irony that figuratively dismisses the claim that the UK would become a colony of the EU, the statement is nonetheless also operating at a literal level.8 What remains of these two levels both now and into the future? Sands arguably deploys a romantic anti-colonial narrative of the Mauritian state struggling valiantly against a hypocritical colonial power in order to recover its lost territory (the literal level vis-à-vis the UK and the EU). International law in the form of the institution of the ICJ is invited to intervene in this struggle – indeed, to complete the processes begun under the auspices and offices of the United Nations. The recovery of fulsome Mauritian sovereignty is asserted as a clear and unambiguous goal of decolonisation. There is no recognition that the Chagossian interests are not a direct concomitant of a recovered Mauritian sovereignty. The style of address – an ironic, yet heroic, bluster, urging a return of sovereignty – does not address the substance of the claim that it is, after all, the Chagossians and not the Mauritian state who were dispossessed, exiled, and denied a home.
The UK has responded to the ICJ decision by stating that the Advisory Opinions are “non-binding”, and reiterated its position that the dispute is of a bilateral character between the UK and Mauritius. Sovereignty in respect of the Chagos Archipelago would be ceded by the UK to Mauritius once it is no longer required for security and defence purposes.9 And so, despite the romantic tale of the heroic triumph of international law over the UK’s ongoing colonial practices, and the symbolic power of the judgment, the status quo of displaced Chagossians and UK sovereignty over the Chagos Archipelago remains the reality.
Tragic Capitulation: Recalling the ‘Conscription’ of Mauritius into Modernity
Many critical approaches to decolonisation and international law have been informed by David Scott’s Conscripts of Modernity. Scott urges a move away from anti-colonial romanticism to tragedy as the appropriate form of postcolonial emplotment. He also provides an evocative account of how anti-colonial struggles and post-colonial aspirations are conscripted into modern political formations. Let us then consider how the Chagossian predicament and the postcolonial Mauritian state may be framed in tragic terms as conscripts of modernity.
The Advisory Opinion returns us to the events of 1965 when the Chagos Archipelago was separated from the territory of Mauritius. By revisiting this archive of imperial power-politics, the ICJ is able to shine a light on the conditions under which Mauritius agreed to the detachment of the Chagos Archipelago from its territory. By doing this it assists the UNGA’s task of “completing decolonization”. The account offered is of a cornered Mauritian delegation having to accept terms dictated by the UK or risk the prize of their independence. If this is a tragic emplotment of a postcolonial state being ‘conscripted’ (Scott’s term) into the modern sovereign form, then presenting Mauritian independence as a ‘deal’ done at the expense of the Chagossian population hardly reflects sympathetically on the Mauritians. As the Advisory Opinion recounts, on 22 September 1965, a Note was prepared by Sir Oliver Wright, Private Secretary to the Prime Minister, Sir Harold Wilson in the following terms:
Sir Seewoosagur Ramgoolam is coming to see you at 10:00 tomorrow morning. The object is to frighten him with hope: hope that he might get independence; Fright lest he might not unless he is sensible about the detachment of the Chagos Archipelago. I attach a brief prepared by the Colonial Office, with which the Ministry of Defence and the Foreign Office are on the whole content. The key sentence in the brief is the last sentence of it on page three. (emphasis added) (para. 105)
That sentence read:
The Prime Minister may therefore wish to make some oblique reference to the fact that H.M.G. have the legal right to detach Chagos by Order in Council, without Mauritius consent but this would be a grave step. (Emphasis in the original.) (para. 106)
Two events then followed on 23 September 1965. First, Prime Minister Wilson met Premier Ramgoolam. As Sir Oliver Wright’s Report of the meeting indicates, Prime Minister Wilson told Premier Ramgoolam that:
in theory there were a number of possibilities. The Premier and his colleagues could return to Mauritius either with Independence or without it. On the Defence point, Diego Garcia could either be detached by order in Council or with the agreement of the Premier and his colleagues. The best solution of all might be Independence and detachment by agreement, although he could not of course commit the Colonial Secretary at this point.” (para. 107)
Later the same day, a meeting took place at Lancaster House in which various undertakings were given to the Mauritian delegation regarding the UK using its good offices to advance the security and trading interests of Mauritius. The UK would also urge the United States to draw on labour and materials from Mauritius for construction on the islands (para. 108). On this basis, the delegation from Mauritius agreed to the detachment of the Chagos archipelago: “On 5 November 1965, the Governor of Mauritius informed the United Kingdom Secretary of State that the Mauritius Council of Ministers ‘confirmed agreement to the detachment of the Chagos Archipelago’” (para. 112). Acting within the constraints of circumstances and conditions that are not entirely of their making – the contingency of action that rarely delivers all that is desired – a tragedy of dispossession and exile follows. It is, however, a tragedy visited upon the Chagossians. It is worth continuing to ask what consequences will follow from the remedy being a return of sovereignty to Mauritius.
There was apparently a degree of self-consciousness about its deviance at the time that the UK was setting itself against the pattern of decolonisation through these extortionate means:
In a Minute sent on 5 November 1965 to the United Kingdom Prime Minister, the Secretary of State for the Colonies expressed concern that the United Kingdom would be accused of “creating a . . . colony in a period of decolonisation and of establishing new military bases when we should be getting out of the old ones”. The Foreign Office also advised that “the islands chosen have virtually no permanent inhabitants”. (para. 111)
The memos and Notes that have emerged as part of the Chagossian litigation reveal an imperial power conscious of the emerging international institutions, laws, and obligations. It is also a power capable of inscribing a ‘not yet’, or ‘when it suits us!’ in response to the aspirations of autonomy, territorial integrity, and self-determination of states that are being decolonised.
The historicists will tell us that Sir Ramgoolam and his colleagues of the Mauritian delegation to London in 1965 need to be viewed in the context in which they acted. While the ICJ in 2019 has reiterated the UNGA resolutions of the 1960s – it was the fulfillment of ‘hope’ rather than ‘right’ that appeared to be the operative basis for the granting of Mauritian independence – albeit delivered with all the arrogance of an Empire in decline. There is no hint that the ICJ is judging the actions of the Mauritian delegation. What would condition such judgment, in any case?
Instead, what we implicitly gather from the ICJ decision is that Sir Ramgoolam was in a tight corner; he acted within those constraints; Mauritius gained its independence, but it did so through the tragic sacrifice of the Chagossians. Moreover, the Advisory Opinion conveys the sense of international law completing an unfinished process of decolonisation – if only the UK would fall into line, relinquish sovereignty, and cede the Archipelago to Mauritius. It is not an absence of law or relevant norms to govern international conduct that was a problem in 1965. On the face of it, the Advisory Opinion is trying to fill the void that was and is the ineffectiveness of international law. Then, as now, the violence flows from the UK’s refusal to submit to these international legal norms, resolutions, and determinations – rather than the absence of norms. Then, as now, the subsuming of Chagossian interests with the ‘completion’ of Mauritian sovereignty is a flawed path to justice because it assumes that all will be put right if only the UK would comply with international norms. As I set out above, Chagossian exiles and their descendants would still then be faced with the plight of all minorities – their resettlement will be a function of their nationality, and the exigencies of a ‘fully’ sovereign state. What insights may we draw from the humanities in seeking to understand and respond to this problem?
International Law as Historiography?
Part of what the humanities offer a study of international law is a means for comprehending the relationship between past, present, and future. It is precisely that relationship that is being contested, ordered, and re-ordered in the litany of juridical interventions in relation to the Chagos Archipelago. Confronting the successes and failures, hopes and aspirations of decolonisation in these cases can usefully be understood as a historiographical problem. To that extent, the emplotment of past, present, and future in and through international law is a historiographical task.
The romantic and tragic emplotments that manifest the ‘style’ of international law that I have sketched through the Advisory Opinion are examples of narrative forms and ways of being that can be better understood through historiographical theories informed by the humanities. While it is beyond the scope of this essay to chart the full implications of understanding international law as a set of problems to be examined through a philosophy of history, we can identify the historiographical questions that arise from juridical interventions such as the Advisory Opinion. How might these questions be addressed with techniques and strategies drawn from the humanities?
Hayden White summed up historical theory most eloquently when he distinguished “past reality, which is the historian’s object of study; historiography, which is the written discourse about this object; and philosophy of history, which is the study of the possible relations obtaining between this object and this discourse”.10 White argued that “events, persons, structures, and processes of the past” can be taken as objects of study by any discipline of the human and social sciences, and indeed by the physical sciences.11 But he insisted that it is not their pastness that makes these events and persons etcetera ‘historical’, but the fact they are written about (or spoken, sung, danced, acted and so on) “as subject of a specifically historical kind of writing”.12 Language as the form and conduit of discourse is not merely the carrier of “realistic” content: “language is both a form and a content”.13 “Style” is not simply the “attractive, but by no means essential, clothing” of a historical account, but makes up the total content of the discourse as a whole.14 It might be retorted that if a complete separation between form/content is one extreme to be avoided, then a complete dissolution of the form/content distinction is the other extreme to be resisted. In response to this we should note that we are discussing modes of representing history in and through language. It is because history can be written, performed, and read as representing the object in a particular style that literary theory is so relevant for historiography and for the philosophy of history.
A mere chronology of events – such as what did and did not happen during the decolonisation of Mauritius in the 1960s – can be imbued with a plot structure through discursive techniques that White asserted were more “tropological than logical in nature”.15 These emplotments are tropological to the extent that, first, even temporal units of chronologies are culturally specific and not natural. To that extent the constitution of a chronicle “as a set of events that can provide the elements of a story is an operation more poetic than scientific in nature”.16 Secondly, White explained that transforming a chronicle of events into a story requires a choice from among different plot structures. There is no code that would suggest whether tragic, romantic or other plot structure is appropriate. To emplot an event as a particular kind of story it is necessary to trope those events: “This is because stories are not lived; there is no such thing as a real story. Stories are told or written, not found. And as for a notion of a true story, this is virtually a contradiction in terms. All stories are fictions”.17 Third, the arguments used by historians to explain the meaning of a chronicle of events will depend on the plot used to fashion the story: “this means that the argument of a historical discourse is ultimately a second-order fiction, a fiction of a fiction, or fiction of fiction making, which bears the same relationship to the plot that the plot bears to the chronicle”.18
No single emplotment can be drawn on to frame the wide-ranging twists and turns in the fate of the Chagossian exiles and their descendants. There is no plot that accords with the ‘real’. In the UK courts Britain’s Robinsonian fantasy of sovereign solitude and self-sufficiency was contrasted to the Friday-like Chagossians.19 This much is well known – Daniel Defoe’s Robinson Crusoe (1719) helped to fashion the colonial imaginary through a pelagic tale about the inner life, trials, and endurance of his protagonist. Crusoe and His Man Friday offered enduring racialised archetypes of coloniser and colonised, helping to create the myth of sovereign solitude interrupted only by the duties of the beneficent Master to the hapless Savage. It provided an image of a colonial state or people being alone, being as One, that persists in contemporary populist aspirations from Trumpism to Brexit.
Among the fantastic tropes mediating legal decisions is the prevailing hold of Crusoe and Friday on British judges and civil servants. In multiple judicial decisions concerning the Chagos Archipelago and its exiled people, Crusoe and Friday have featured as recurrent figures of sovereign capacity and raced being. The UK Colonial Office memos from the 1960s, Lord Hoffman’s strained fictions in Bancoult No. 2 (2009), and meetings between US/UK Government officials disclosed by WikiLeaks in 2010, show the persistence of the Robinsonade for sustaining colonial and neo-imperial power.20 For the ICJ, the grander vision of decolonisation of territories with sovereign plenitude remains strong. What are the other emplotments of decolonisation? What are the other postcolonial futures?
David Scott builds on White’s notion of emplotment as the way “temporarily connected events are constituted into a narrative such that readers recognize it to be a particular kind of story” – such as tragedy, romance, comedy, or satire.21 In Conscripts of Modernity, Scott contrasts romance and tragedy as modes of historical emplotment.22 He suggests that “anticolonial stories about past, present, and future have typically been emplotted in a particular narrative form, one with a distinctive story-potential: that of Romance”.23 This Romance usually involves heroic feats of emancipatory overcoming that moves history teleologically from past, present, to future. Scott’s inquiry is inspired by Talal Asad’s essay “Conscripts of Western Civilization” in honor of the anthropologist Stanley Diamond. In it Asad eschewed Diamond’s romanticism about primitive cultures being overcome by western civilisation, but argued that, although difference is not disappearing, it is “increasingly obliged to respond to – and be managed by – the categories brought into play by European modernity”.24 Scott draws on these thoughts to examine the relationship between modernity and historical change.
The past and future are encountered through narrative forms that mimic literary structures of emplotment. For instance, Adil Hasan Khan usefully draws on Scott’s work and extends it to examine plots of Bandung histories of catastrophe told through the narrative forms of satire, romance, or tragedy.25 As Khan points out, in the narrative of Bandung as satirical event, decolonisation is a “futile repetition of the previously existing order rather than transformational change”.26 In the “romance of overcoming” (David Scott’s term), the postcolonial transition is a triumphant one.27 International lawyers are particularly prone to this version when international society purportedly “moves toward true universality and leaves behind a sordid colonial past”.28 When catastrophe invariably happens, it is “a reversal of achievements and vision of Bandung that arrives subsequent to the moment when all was clear and the Promised Land seemed so close at hand”.29
Khan goes on to explain how in accounts of Bandung as tragedy, impurities and contradictions are presented as the contingent constraints in which a new order struggles to be born.30 In this tragic narrative form of the story, catastrophe is coterminous with the event of decolonisation. Instead of the pretense of a pure moment of freedom undone later, autonomy, sovereignty and self-determination are understood to be emergent phenomena to be asserted and established through international institutions. However, the universalisation of the nation-state form becomes another way of mobilising empire.31 The nation-state is a modern form that enables the decolonised polity to act on the world stage. It is also the international subject that is later indicted for being a ‘failed state’ for not managing the passions and eruptions of national identity and internal difference. Adopting the form of a sovereign and equal nation-state, then, becomes the event of a tragic ‘decision’.32
What does this say about the expectations of tragedians? There is a sense in this account of the tragic that the Bandung generation had been expected to make decisions and act in the form of “rupture” or “eruption”, rather than as Marx put it, in circumstances “given and transmitted from the past”.33 The tragedy of Bandung, when framed in that way, stems from the fact that there was no tabula rasa, no freedom to cast the new society. What was possible was to adopt forms and act in conditions “transmitted” to them from the past.34 Khan proposes an evental task for the “heirs” of Bandung who wish to imagine a future with and through the inheritance from the past. His proposal is that Bandung be narrated as a tragic inheritance which is inherently plural, contradictory, and heterogeneous. This means that there is no one, stable inheritance. It is this irresolution and incoherence that makes the Bandung inheritance transformative.35
For Kevin Olson, Scott’s focus on tragedy “has all of the broader limitations of any narrative genre as a mode of storytelling. Tragedy still sacrifices complexity for the sake of style”.36 Setting a story within a genre decides in advance what kind of story is being told. Olson argues that both romance and tragedy are “normative modes of storytelling”; romance celebrates character, and tragedy indicts the contingent circumstances in which heroes act.37 Olson is particularly concerned with the Foucauldian episteme that this kind of history writings seems to emulate. For Foucault – and this is possibly true of Scott’s orientation given the focus on the character of Toussaint Louverture in The Black Jacobins – the concepts deployed are individualisation, subjectification, and truth-telling.38 Instead of this, Olson suggests that modernity’s greatest potential lies in developing insights about “collective norm- and culture-formation”.39 The focus here is on the ‘political imagination’ itself and the agencies, norms, institutions, and sovereignties it constitutes within a “complex play of conscription and creative improvisation”.40 It is not clear, however, how any political imagination can avoid the aesthetic dimension. Privileging the political and normative over the aesthetic is a false choice.
Returning to Scott, we see that he is concerned with the aesthetic dimension of how a story is told. In this orientation he is inspired by C.L.R James who disavowed the “positivist fallacy” that facts can simply be the “arbiter and adjudicator of historical meaning”.41 There is also a fallacy that a truth can be produced by holding facts and literary form apart:
For James the language in which his story is cast is no mere neutral container for the facts of the San Domingo Revolution to be poured into. For him, history is not merely the provision of useful information about “what really happened”, but the endowment of events with significance and meaning. James, I am going to suggest, is a storyteller – a mythmaker”.42
Scott returns to this motif of storytelling in the epilogue of the book. Here he compares Hannah Arendt’s treatment of the American and French revolutions with C.L.R James’s treatment of the neglected Haitian Revolution.
Arendt had argued in On Revolution that the U.S had failed to establish the “cognitive conditions of ‘remembrance’” of what they were originally seeking to do. Scott goes on to quote Arendt at length:
Experience and even the stories that grow out of what men do and endure, of happenings and events, sink back into the futility inherent in the living word and the living deed unless they are talked about over and over again. What saves the affairs of mortal men from their inherent futility is nothing but this incessant talk about them, which in its turn remains futile unless certain concepts, certain guideposts for future remembrance, and even for sheer reference, arise out of it.43
Remembrance needed a conceptual framework through which it could exercise itself. It also needed stories to be told, over and over again. The telling of these stories, as we observed through White above, will necessarily involve narrative fictions.
*
In concluding these observations about emplotment it is helpful to be reminded of what Gerry Simpson has said about sentiment and style in international law. Simpson argues that it has become harder to unite literary fiction with juridical accounts of life: “we live in a period in which it is harder to unite literature, myth, theatre, law and political life than it was, in, say, the classical period, and this represents a loss for us”.44 His sentimental approach to international law seeks to overcome this. Simpson argues that much political and everyday life is not accessible to us because it is obscured by being informal, unconscious, emotional and micro-political. Accessing the sentimental lives of international law and its practitioners through legal scholarship and teaching is bound up with “a sense if its literary style” or more strongly, that “it is its literary style”.45 Style is a matter of aesthetic judgment, but as Simpson puts it, it is also a matter of feeling and sentiment.46 The language of international law, for instance, articulates ways of understanding, sharing, organising and inhabiting the world. Style is then not a superficial decoration but a mode of thinking and being. Observing and examining style in international law and politics is a means of accessing particular ways of thinking and being.
What Simpson relays about ‘style’ and international law is congruent with the influential approaches to history in the humanities – that of Hayden White, and after him David Scott, which we have been examining. However, Simpson’s focus on ‘style’, which overlaps with but is more widely construed than the structured approach to emplotment taken by White and Scott, can enable international lawyers to comprehend ways of thinking and being without collapsing these into the established narrative genres such as romance and tragedy. It is also worth recalling the ‘globa-latinisation’ of the world and the homogenising literary frames.47 The western canon of literature and literariness, universalised in and through imperial projects, cannot be left to over-determine the narrative emplotments of anti-colonial resistance and decolonisation. Rather than the grand plots of literary archetypes (of romance, satire, or tragedy) we might seek another scene – the other scene – of emotions, memories, and unconscious commitments. These might be recovered through a ‘reflective nostalgia’ where time is heterogeneous and humans abandon their drive to make another History.48 This includes questioning sovereignty – whether that be of the Chagos Archipelago, Mauritius, or elsewhere – as the sole aspiration and horizon of decolonisation.
The story told in the ICJ Advisory Opinion of the incomplete or failed decolonisation of Mauritius is one that relies heavily on a version of international law that treats sovereignty as capable of being fulsome and complete.49 This is a narrative that is as important to international law (perhaps even more significant for it) as the constituent ground of that law than the rights of a displaced and exiled minority such as the Chagossians. Judged in these terms, a ‘fully’ decolonised Mauritius conceived solely in terms of the recovery from the UK and return to its territory of the Chagos Archipelago demonstrates a strong and somewhat archaic link between territorial integrity, the sovereignty of the nation-state, and international law. Rather a lot of ink has been spilt by international lawyers trying to undo the inviolability of sovereign territory, such as in relation to the right of states to intervene in circumstances that activate the ‘responsibility to protect’ (R2P). That is one reason for my skepticism about the valorisation of the relationship between territory and sovereignty in the Advisory Opinion.
Scant attention has been paid by international legal institutions or municipal courts to the actual conditions under which the exiled population of Chagossians live in Mauritius. Their right to occupy the islands of the Archipelago were also not argued in proprietary terms or as usufructuary rights. Native title or other rights that communities hold after long possession or occupation were not grounds argued in the UK cases. All this points to the narrowness and impoverished state of constitutional and administrative law in the UK. A similar charge can be leveled at international institutions. None of these observations are intended to excuse the heinous actions of the UK government in the 1960s, or its failure to take full responsibility over the last two decades of litigation and activism around the issues. Addressing these wider questions of property, belonging, and exile requires international law and its institutions to step away from being the heroic defender of sovereignty tragically lost.
Bibliography
- Arendt, Hannah. On Revolution, New York: Viking, 1963.
- Boym, Svetlana. The Future of Nostalgia. New York: Basic Books, 2001.
- Derrida, Jacques. Demeure: Fiction and Testimony. Stanford: Stanford University Press, 2000.
- ICJ Transcript. “Public sitting of the ICJ held on Monday 3 September 2018 at 10 am at the Peace Palace”. Accessed November 6th, 2019, https://www.icj-cij.org/files/case-related/169/169-20180903-ORA-01-00-BI.pdf . 71.
- Jeffery, Laura. “The International Court of Justice: Advisory Opinion on the Chagos Archipelago.” Anthropology Today 35, no. 3 (2019): 24-27.
- Khan, Adil Hasan. “Ghostly Visitations: “Questioning Heirs” and the Tragic Task of Narrating Bandung Futures.” In Bandung, Global History, and International Law: Critical Pasts and Pending Futures, edited by Luis Eslava, Michael Fakhri and Sasuki Nesiah, 108-125. Cambridge: University of Cambridge Press, 2017.
- Motha, Stewart. Archiving Sovereignty: Law, History, Violence. Ann Arbor: Michigan University Press, 2018.
- Motha, Stewart. “My Story, Whose Memory?: Reflections on the Autonomy and Heteronomy of Law”, Studies in Law, Politics, and Society, (forthcoming).
- Olson, Kevin. Imagined Sovereignties: The Power of the People and other Myths of the Modern Age. Cambridge: Cambridge University Press, 2016.
- Scott, David. Conscripts of Modernity: The Tragedy of Colonial Enlightenment. Durham: Duke University Press, 2004.
- Simpson, Gerry. “The Sentimental Life of International Law.” London Review of International Law 3, no. 1 (2015): 3–29.
- White, Hayden. Figural Realism: Studies in the Mimesis Effect. Baltimore: Johns Hopkins University Press, 1999.
- White, Hayden. Metahistory: The Historical Imagination in Nineteenth-Century Europe. Baltimore: Johns Hopkins University Press, 2014.
* Professor of Law, Birkbeck, University of London. A version of this essay will be published in Shane Charmers and Sundhya Pahuja (eds.) Routledge Handbook of International Law and the Humanities (2020). I am grateful to Laura Jeffery for her careful reading and incisive comments on an earlier draft of this essay. I would also like to thank Shane Chalmers, Balawyn Jones, and Sundhya Pahuja for their helpful comments and suggestions. Any errors are mine.
Advisory Opinion On the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (25th February, 2019) (hereafter ‘Advisory Opinion’). ↩
I discuss ‘emplotment’ at greater length below; the term is taken from Hayden White, Metahistory: The Historical Imagination in Nineteenth-Century Europe (Baltimore: Johns Hopkins University Press, 2014), 7. Of course, one limitation of this mode of addressing the history of decolonisation is that it is not a history that can be told through cases and international institutions alone. I recognise these limits – but for now I want to focus on the juridical and institutional. ↩
Stewart Motha, Archiving Sovereignty: Law, History, Violence (Ann Arbor: Michigan University Press, 2018). See Introduction and Chapter 1. ↩
See generally, David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Durham: Duke University Press, 2004). ↩
Laura Jeffery, “The International Court of Justice: Advisory Opinion on the Chagos Archipelago,” Anthropology Today 35, no. 3 (2019): 24-27, 26. ↩
ICJ Transcript. “Public sitting of the ICJ held on Monday 3 September 2018 at 10 am at the Peace Palace,” accessed November 6, 2019, https://www.icj-cij.org/files/case-related/169/169-20180903-ORA-01-00-BI.pdf . 71. ↩
White, Metahistory, 31. ↩
In making this observation I am drawing on White’s account of figural language which I elaborate below. ↩
See discussion in Jeffery, 26. ↩
Hayden White, Figural Realism: Studies in the Mimesis Effect (Baltimore: Johns Hopkins University Press, 1999), 3. ↩
White, Figural Realism, 2. ↩
White, Figural Realism, 2. ↩
White, Figural Realism, 4. ↩
White, Figural Realism, 4.I return to the notion of ‘style’ below. ↩
White, Figural Realism, 8. ↩
White, Figural Realism, 9. ↩
White, Figural Realism, 9. More careful consideration needs to be given to the implications of White’s account of history and stories in the context of indigenous accounts of the relationship between stories, Country, and people. Suffice it to say that casting stories as fictions should not diminish their standing. ↩
White, Figural Realism, 9. ↩
See Motha, Archiving Sovereignty, chapter 1, for an elaboration of this Robinsonade. ↩
Motha, Archiving Sovereignty, chapter 1. ↩
Scott, Conscripts, 46-47. ↩
Scott, Conscripts, 11. ↩
Scott, Conscripts, 7. ↩
Scott, Conscripts, 9. ↩
Adil Hasan Khan, “Ghostly Visitations: “Questioning Heirs” and the Tragic Task of Narrating Bandung Futures,” in Luis Eslava, Michael Fakhri and Sasuki Nesiah eds., Bandung, Global History, and International Law: Critical Pasts and Pending Futures (Cambridge: University of Cambridge Press, 2017), 108-125. ↩
Khan, “Ghostly Visitations”, 109. ↩
Khan, “Ghostly Visitations”, 111. ↩
Khan, “Ghostly Visitations”, 111. ↩
Khan, “Ghostly Visitations”, 112. ↩
Khan, “Ghostly Visitations”, 115. ↩
Khan, “Ghostly Visitations”, 116-17. ↩
Khan, “Ghostly Visitations”, 118. ↩
Khan, “Ghostly Visitations”, 120. ↩
Khan, “Ghostly Visitations”, 120. ↩
Khan, “Ghostly Visitations”, 124. ↩
Kevin Olson, Imagined Sovereignties: The Power of the People and other Myths of the Modern Age (Cambridge: Cambridge University Press, 2016), 164. ↩
Olson, Imagined Sovereignties, 164. ↩
Olson, Imagined Sovereignties, 165. ↩
Olson, Imagined Sovereignties, 166. ↩
Olson, Imagined Sovereignties, 166. ↩
Scott, Conscripts, 39. ↩
Scott, Conscripts, 39. ↩
Scott, 216, quoting Hannah Arendt, On Revolution, (New York: Viking, 1963) 220. ↩
Gerry Simpson, “The Sentimental Life of International Law,” London Review of International Law 3, no. 1 (2015): 3–29, 7. ↩
Simpson, “Sentimental Life”, 8. ↩
Simpson, “Sentimental Life”, 8. ↩
See Jacques Derrida, Demeure: Fiction and Testimony (Stanford: Stanford University Press, 2000). ↩
See Svetlana Boym, The Future of Nostalgia (New York: Basic Books, 2001); and the Epilogue to Motha, Archiving Sovereignty. ↩
For an elaboration of the relation between storytelling and law as fundamental to constituting what law is, see Stewart Motha, “My Story, Whose Memory?: Reflections on the Autonomy and Heteronomy of Law”, Studies in Law, Politics, and Society (forthcoming). ↩
