The Separation of the Chagos Archipelago and the Pervasiveness of State Consent in International Law: A Feminist Analysis

Abstract

The violent expulsion of the indigenous population of the Chagos Archipelago is a continuing colonial injustice which international law has failed to remedy. Instead, international legal discourse has reconfigured this wrong, casting it as a territorial dispute between two sovereign states: the UK as the former and continuing colonial power, and Mauritius as the postcolonial state. By framing the issue in terms of the possibility of Mauritius consenting to the separation, the concept of consent, and in particular state-based consent, plays a central role in this reconfiguration. In this paper, I argue that while consent is often seen as trivial, it offers a powerful tool of legal argumentation which sustains the centrality of the state as the ideal legal subject. Turning to the language of consent serves to buttress a liberal imagining of atomised, unitary states engaging in consensual, contractual bargains with one another on equal terms. Within this framework, the extraction of impersonal goods, most notably that of military security, is seen as a rational venture, prioritised over the more personal, deeper indigenous relations with land. The paper reveals the power and perils of consent as a concept — its ‘double-edged’ nature — by drawing on those feminisms which have theorised autonomy within interpersonal contexts. This analysis is further developed through engagement with postcolonial and TWAIL approaches, which bring to the fore the different forms of power at play and the continuation of neocolonial relations.