Tanzil Chowdhury, Queen Mary University of London
In the 1960s, in a miasma of lies, fictions and obfuscations, the British Government in London drafted a series of secret laws (with no legislative oversight), that would eventually result in the dispossession of over 1500 people, living 5800 miles away, from their homes in the Chagos Archipelago. In their place was to be built a US military base, ironically called Camp Justice, that would later be used, among other things, to refuel fighter jets for the 1st Gulf war, the 1998 bombing of Iraq, the invasion of Afghanistan and the 2003 Iraq invasion. The expelled Chagossians, immiserated, impoverished and left stranded on the shores of Port Lois, have since engaged in a protracted political and legal struggle to return to their homeland. Though the UK Foreign Secretary has recently made some positive soundings ‘to resolve all outstanding issues, including those relating to the former inhabitants of the Chagos’, they remain dispossessed and exiled from their home of 200 years.
Much has been written on the litigation, in particular, the public law cases that sought to challenge, among other things, the legality of the dispossession. Most of the critiques fall primarily on legalistic grounds (though also expressing moral outrage). In my forthcoming paper, Executive Robbery of the Chagos Archipelago: Military Bases as Infrastructures for Accumulation, I argue that there are four common assumptions that characterise these critical writings which warrant a reconsideration of this entire affair. Firstly, much of the legal commentary on the public law judgements focus primarily on judicial reasoning and presuppose UK public law’s autonomy from the political economy of capitalism. Secondly, the writings often equivocate the dispossession of the Archipelago with US defence fortification. Thirdly, ‘race’ if discussed, is often presented as a biological/cultural essence and rationalising discourse. Finally, I argue that within much of the writing on the public law cases, there is a latent, but undeveloped assumption, departing from the ‘methodological nationalism’ that underwrites conventional public law research. Instead, drawing on materialist, neo-Marxian jurisprudence, and the work of Doreen Massey’s ‘relational geographies’, my paper, “Executive Robbery: UK Public Law, ‘Race’ and Primitive Accumulation in the Chagos Archipelago”, due to be published in the forthcoming Spring 2024 issue of the Journal of Law and Society, makes an entirely different claim about the dispossession of the islands, which situates the technologies of public law- as the states ‘means of coercion’- within the broader political economy of capital and capital accumulation.
Struggling though public law
In 1998, public law proceedings were brought by Olivier Bancoult, a leader of the Chagos Refugee Group, against the UK government’s dispossession of his peoples. In the case Bancoult (No 1), it seemed that the misery inflicted upon the Chagossians had come to an end, as the High Court judge ruled that the Immigration Ordinance which has expelled the Chagossian, had ‘no colour of lawful authority’. The then Foreign Secretary, Robin Cook accepted the court ruling, revoking the Immigration Ordinance 1971 and replaced it with a new law. Though this largely repeating the revoked ordinance, the new law stated that such restrictions on entry should not apply to British Dependent Citizens (which included the Chagossians) to visit the Outer Island of the Archipelago (though not including Diego Garcia which still required a permit).
In March 2003, the US-led invasion of Iraq had begun and the military base would serve as a crucial refuelling point for the war. At the end of that year, two left-wing Mauritian organisations, Lalit de Klass and Muvman Liberasyon Fam, planned to go to Diego Garcia and confront British and US forces. The combination of the start of the Iraq invasion and the threat of landings to close the base, arguably prefaced the creation of two new secret laws. First, the BIOT (Constitution) Order 2004 stated that no person had a right of abode in the territory or was entitled to enter or be present in the Territory. Second, the BIOT (Immigration) Order 2004 removed the right of return to the outer islands which had previously been protected under the Immigration Ordinance 2000. The Chagossians returned to court to test the legality of the two new laws, and while the lower courts ruled in the Chagossians favour, the House of Lords, in the infamous Bancoult (No 2) ruling, held that the removal was lawful.
Assumptions of the legal commentary
Most of the legal commentary on the Chagos reflects or tacitly accepts the realpolitik framing of the dispossession, in that it was crucial for securing US defence interests in the Indian Ocean littoral region. However, in this acquiescence, much of the commentary on the judgments presupposes the autonomy of the law from the political economy of capital, instead levelling critiques at the court’s defective legal reasoning. This is interesting because, from reading the cases, judges were clearly cognizant of the broader geopolitical milieu in which these facts were being adjudicated. There are other interesting observations gleaned from the legal writing too. The Chagossians are formerly enslaved and indentured people. The creation of a racial order was central to imperial domination. However, ‘race’ if at all discussed in the case law or commentary, is understood as a justificatory discourse for their expulsion, presuming their ‘biological’ or ‘cultural essence’. This begs the question, from where does this racial classificatory schema emerge? Finally, there is a latent assumption in the legal literature and judgements, that begins to recognise that discussing the dispossession cannot be contained to a discussion of the UK and the Chagos Archipelago. Public Law’s story is not an island story. It necessarily involves a discussion of Mauritius, the US and several other states. In effect, one must rethink the scale of our analytical framework in UK public law, not as contained to the dispossessor and the dispossessed but that which explores its wider spatial entanglements
Military infrastructures for accumulation and the expropriative techniques of public law
Laleh Khalili describes infrastructures of power as the authority and power to forge and maintain the assemblage of practices, discourses, physical fixtures, laws and procedures necessary for the government of subjects and citizens, including their economies; all with the aim of the re(production) of capitalism. Indeed, military bases have been key nodal infrastructures for capitalism, whether it’s securing the transportation and circulation of commodities; or their disciplining effect, underwriting the interests of capital, with the threat of deployments. With this in mind- and countering the realpolitik framing of the dispossession of the Chagos Archipelago- I describe in my forthcoming paper that what happened to the Chagossians therefore, was an example of ‘executive robbery’, a type of class-based dispossession, enacted through the legal techniques of excision, re-purposing, bordering, expulsion, and consolidation. This was intended to construct a military base as infrastructure for accumulation in the Middle East. In particular, the paper focusses on the military invasion of Iraq in 2003 as a ‘war on waste’, understood to mean land or resources that are in need of ‘improvement’ i.e. commonly held or state-owned resources that ought to be in private hands and mediated through market relations. In effect, a doctrinal critique of the public law cases, important though that is, misses the broader political economic milieu which was central to the shaping the judgements. It is this that underwrites my forthcoming contribution to the journal.