Constructive Criticism: The Case for Critical International Legal Theory Through the Chagos Archipelago Sovereignty Dispute

Diego Armando Echegaray Montalvo

Estudiante del Departamento de Ciencia Política,

Universidad de Puerto Rico, Recinto de Río Piedras

Resumen: El presente artículo explora las relaciones de poder entre la legalidad del derecho internacional y las dinámicas del poder soberano de la República de Mauricio frente al Reino Unido en las disputas territoriales en el caso del archipiélago de Chagos. Para analizar el caso, se recurre a la Teoría Crítica del Derecho Internacional, un marco teórico que reconoce las debilidades del sistema liberal occidentalizado y la manera en que este ha perpetuado estructuras coloniales dentro de las instituciones internacionales surgidas tras la Segunda Guerra Mundial. Este estudio de caso examina cómo los intereses británicos, con el apoyo estadounidense, han vulnerado el legítimo proceso de descolonización de Mauricio en relación con Chagos y su población local. Se emplean resoluciones vinculantes tanto de las Naciones Unidas como de la Unión Africana para evidenciar los acuerdos, reclamaciones y acciones tomadas por las partes para atender el asunto en disputa. El enfoque se centra en una perspectiva poscolonial que reconoce las debilidades de un sistema internacional que pretende ser universal. Sin embargo, estas estructuras e instituciones de derecho internacional, en la práctica, resultan en medios de perpetuación colonial basados en lógicas legalistas auto-legitimantes.

Abstract: This article explores the power relations between the legality of international law and the dynamics of the sovereign power of the Republic of Mauritius vis-à-vis the United Kingdom over territorial disputes in the case of the Chagos Archipelago. To analyze the case, the Critical Theory of International Law was used, a theoretical framework that recognizes the weaknesses of the Westernized liberal system and that has perpetuated colonial systems within the new international institutions produced after the Second World War. This case study examines how British interests, with American support, have perpetuated violations of Mauritius' legitimate decolonization process with the case of Chagos and its local population. Binding resolutions were used, both from the United Nations and the African Union, to evidence the agreements, claims and actions taken by the parties to address the matter in dispute. The approach focuses on a postcolonial perspective, which recognizes the weaknesses of an international system that claims to be universal. However, these structures and institutions of international law in practice result in means of colonial perpetuation based on self-legitimizing legalistic logics.

Palabras claves: soberanía, constructivismo, Chagos, Mauricio, Estados Unidos

Citación:

Nota: Diego A. Echegaray Montalvo, “Constructive Criticism: The Case for Critical International Legal Theory Through the Chagos Archipelago Sovereignty Dispute,” en Análisis Emergentes: Compilación de Ensayos Académicos, ed. Instituto Caribeño para el Estudio de la Política Internacional (ICEPI), vol. 1, núm. 1, edición especial (San Juan, PR: ICEPI, 2025), 20–33.

Bibliografía: Echegaray Montalvo, Diego A. “Constructive Criticism: The Case for Critical International Legal Theory Through the Chagos Archipelago Sovereignty Dispute.” En Análisis Emergentes: Compilación de Ensayos Académicos, editado por Instituto Caribeño para el Estudio de la Política Internacional (ICEPI), vol. 1, núm. 1, edición especial, agosto–diciembre 2025, 20–33. San Juan, PR: ICEPI, 2025.

Introduction

For the last three decades, the international community has been built upon a foundation that it took for granted and did not care to maintain. The Liberal International Order (LIO) is generally understood to be the consensus forged by the Western allies in the aftermath of the Second World War, which stresses the importance of open markets, cooperative security, international institutions, progressive change, and electoral democracy in the framework of an “open and rules-based international order” (Ikenberry, 2011, pp. 2, 56). 

Even so, this picture is incomplete, as the idea of an international order —or even the definition of “liberal”— is far from monolithic. Debates rage over several ambiguities — namely, whether the central pillar of liberalism refers to political, economic, or international liberalism — and what is meant by “open” and “rules” (Kundnani, pp. 1, 2).

This is further complicated by the system’s long and complex history. Some scholars point to its fundamentally conservative origins, borne out of a strategic perspective that was neither liberal nor international (Williams, 2025, p. 948; Mearsheimer, 2019, p. 8), while others maintain that the LIO as we know it ended in the 1980s, only to be replaced by a Neoliberal International Order (NLIO) that has since supplanted it (Hernan, 2025, pp. 3, 7, 8). However, one thing is for certain: it is falling apart.

The Crisis of the Liberal International Order can be considered the dominant narrative of our time, dominating academic and journalistic spaces (Williams, 2025, p. 947). Following a period of liberal internationalist proliferation in the wake of the collapse of the Soviet Union and its satellites, subsequent decades have seen a rapid advance of anti-globalist populism, growing mistrust of international institutions, and a resurgence in open warfare between states. The causes of the so-called crisis facing our modern normative understanding of the world order are as multifaceted and complex as the system itself, but a persistent flaw on the part of analysts and professionals has been the framework through which the LIO has been scrutinized.

For decades, international law has had a positivist foundation based on the principles of natural law and state law. This understanding has left to the state the monopoly of ius ponere, or making law, irrespective of whether it is just. Positivism is flawed in its detachment from a critical appreciation of the content of law, which has often led to it being described as formalism or analytical jurisprudence (Gianielli, pp. 41-43). 

This is no mere conjecture, as a focus on state authority and the ‘rule of law’ proves to be a tool to simply justify an action in a political context, thus rendering the law as the domain of those whose interpretation will prevail (Kennedy, 2005, p.35 as cited in Hammouri, 2018, p. 2). Of course, the interpretation that prevails is often the one that originates from states with a longer established jurisprudence, or simply the power to create, enforce, and maintain systems of international governance. 

The International Legal Project has thus come to be riddled with a wide array of structural failings: gender biases; racialized exclusions such as class, poverty, and exploitation; and a long history of cultural imperialism. These are substantive inequalities originating from its historical context, disguised and perpetuated by formal equality (Beckett, 2022, pp. 1, 2). 

Therefore, among a crisis revolving around whether international law matters, perhaps the first step is to take a step back and ask ourselves why international law matters (Johns, 2022, p. 63). To do so, this article will make a case for an altogether different framework for understanding international law, known as Critical International Legal Theory (CILT). 

Developed in large part as an evolution of Critical Legal Studies, the Frankfurt School’s Critical Theory, and the work of American academic David Kennedy, CILT is a post-modernist, non-instrumental, academically activist legal doctrine characterized by a focus on empirical occurrences, historical continuities, and a world outside of legal texts and forums (de la Rasilla, 2013, pp. 2, 5; Becket, 2022, p. 2). 

Much like most critical approaches, Critical International Legal Theory cannot be easily classified within traditional categories, as it is an interdisciplinary approach, but generally holds to the indeterminacy of international law, the questioning of its autonomy, and the deconstruction of international law as a method for justice (Hammouri, 2018, pp. 3-7). In essence, it dispels any notion of objective correctness and instills a human element into the development, practice, and enforcement of international law. To show how such a transformative and different approach to international legal theory could be useful, this article will take a closer look at the Chagos Islands sovereignty dispute as a case study. 

The decades-long dispute between the Republic of Mauritius and the United Kingdom represents one of many territorial controversies plaguing the world. It revolves around the Chagos Archipelago, a series of around 60 tiny islets to the south of the Maldives, which in 1965 were separated from a then-colonial Mauritius and transformed into the British Indian Ocean Territory, subsequently having its inhabitants displaced when the United Kingdom and the United States sought to build a military installation in its largest atoll. 

It has its origins in colonial inequality, Cold War opportunism, and a decades-long legal battle across multiple forums. In these senses, it is not unique. It is nevertheless unique in that it is in the process of approaching a final resolution (Revi, 2025; Lawless, 2025). The fact that, in a world of frozen conflicts and unending territorial controversies, two developed Western states acquiesced to a peripheral insular African nation is nothing short of extraordinary. That being said, the natural question to ask is: why has justice won out this once, and international law held true here, and not elsewhere? 

This article will examine the Chagos Islands dispute, from its inception to its resolution, and argue for the merits of Critical International Legal Theory as a vehicle through which state action and interstate relations may be better understood and, in the future, guided toward similar solutions. 

The Chagos Islands Dispute

The Chagos Islands sovereignty idspute has its origins in the Indian Ocean, an often-forgotten area of the world deeply impacted by colonialism and imperialism. One of the few areas of the world left uninhabited until the Age of Exploration, a revolving door of colonizing powers saw the islands populated with a diverse range of peoples that reflected this eclectic heritage. 

The French Empire, which held dominion over the archipelago until the early 19th century, brought African slaves to work on copra plantations. These first settlers would come to mix with the minor wave of South Asian indentured servants brought in when the islands were captured by the British Empire. The intermingling of these groups eventually produced a predominantly catholic, matrilineal, Creole people known to themselves as the Ilois, “Islanders”, and to outsiders as Chagossians (Minority Rights Group, 2024; Vine, 2008, p. 26).

Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the Colony of Mauritius. As the post-war consensus solidified around the new United Nations and its mission to end colonialism with the passing of the General Assembly Resolution 1514 (XV), it was expected that Mauritius would carry its territory through to newfound sovereignty (ICJ, 2019, p. 2).

  Unfortunately, the United Kingdom’s desire to maintain access to the Chagos Archipelago’s unparalleled strategic location would significantly complicate matters. In February 1964, discussions were held between the United Kingdom and the United States of America on the latter’s use of British territories in the Indian Ocean, exacerbated in part by the American fears of Soviet presence in the area and the prior existence of a small American radio-communications base on Diego García. 

Despite being aware of and actively acknowledging UN Resolution 1514 (XV) in these proceedings, the earliest memorandums already showed a commitment to a complete resettlement of the native islanders to facilitate construction (Alexandre & Koutouki, 2018, pp. 372, 374). These external bilateral proceedings were mirrored by an internal series of talks held between the United Kingdom and representatives of the Colony of Mauritius. 

Despite reservations by then-Prime Minister of Mauritius Seewoosagur Ramgoolam, the United Kingdom and United States negotiated for the construction of a so-called “communication station” on Chagos, which culminated on November 8, 1965, with the creation of the British Indian Ocean Territory (BIOT). The agreement stipulated that the Chagos Archipelago would remain under Mauritian sovereignty and that the inhabitants would not be removed.

The agreement was almost immediately rendered moot as the United Kingdom and the United States forged an altogether new agreement that granted a lease for the BIOT from the former to the latter for a period of 50 years. The Agreement Concerning the Availability for Defense Purposes of the British Indian Ocean Territory came into effect on December 30, 1966, wherein both states agreed that the British government would take any “administrative measures” necessary to ensure that their defense needs were met, including the “resettling of any inhabitants” of the islands (ICJ, 2019, p.2).

Under these new terms, the Chagos territory would no longer be controlled by Mauritius, and its inhabitants were no longer safe from deportation (Alexandre & Koutouki, 2018, p. 375). This about-face is explainable by the fact that the power dynamic between a colonial power and its dependency was not one of equals. As far as local leaders were concerned, there was genuine reason to doubt whether Mauritius would be granted independence if it refused to relinquish its claims to such a strategically important territory (Gaver, 2021, p. 520).

What followed was one of the best-documented and least-remembered ethnic cleansings in recent history. The centuries-old Ilois community, forcibly brought to the islands they now called home, was forcibly exiled once again to other lands. From 1965 to 1973, the United Kingdom and the United States forced the entire population —over 2,000 people— out of the archipelago, with 1,200 of them going to Mauritius, where they would go on to live in abject poverty (Minority Rights Group, 2024). 

Leaked documents from 1966 memorandums show pervasive racist statements and motivations behind these actions, with islanders referred to as “Man Fridays” (Human Rights Watch, 2023). After all was said and done, the islands remained under de facto British sovereignty, with the Americans managing most of the administration of Diego García Atoll, where a large military complex would be constructed.

In what has been one of the longest international legal controversies in history, on December 16, 1965 —the same year the BIOT was created— the United Nations General Assembly adopted Resolution 2066 (XX) on the “Question of Mauritius” in which it expressed its concerns about the detachment of part of Mauritian territory for security reasons, citing it as a dismemberment of the territory of Mauritius and a violation of its territorial integrity. 

The UNGA reiterated these statements following the Anglo-American agreement of 1966 by way of a resolution put forward by the Committee of Twenty-Four (Special Committee on Decolonization), which stated that the actions of the United Kingdom were in violation of UN resolutions 2066 (XX) and 2232 (XXI), and called upon the “Administering Power” to return to these territories to the islands from which they were detached (ICJ, 2019, p. 2).

When Mauritius became an independent nation on March 12, 1968, its constitution only provided for its borders to be the those of the Colony of Mauritius immediately before sovereignty, which did not include the Chagos Archipelago. Irrespective of this, the dubious circumstances under which Chagos was separated from the colony and the broad international support for Mauritius’ right to the territory led the island nation to sporadically pursue its claims in the 1980s, through the rest of the 20th century and into the 21st, even if efforts remained sluggish as long as the United Kingdom respected its fishing rights in the region. 

The first concrete steps Mauritius took to assert its sovereignty were in this vein, with Mauritius repeatedly reaching out to the Maldives in 2001 and 2010 to settle their maritime boundary, although the Maldives declined both times due to the United Kingdom’s claim to the territory (Gaver, 2021, p. 520).

The dispute gained real traction when, in 2010, the United Kingdom sought to create a “Marine Protected Area” around the Chagos which threatened Mauritian fishing rights. Mauritius instituted arbitration against the United Kingdom under Annex VII of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), initiating a years-long legal battle with several conclusions. 

On March 18, 2015, the Tribunal issued its ruling on the issue, taking “no view on the substantive quality or nature of the MPA” but rather concerning itself only with how the MPA was established. It nevertheless ruled in favor of Mauritius, finding that the MPA violated its interests and could not be justified under Article 62 of the Convention, with the caveat that the UNCLOS arbitral tribunal lacked jurisdiction to issue a ruling determining territorial sovereignty (Colson & Vohrer, 2015, pp. 850-851). 

Even as a partial success, the ruling was celebrated in Mauritius as a victory over a historical injustice that had by then become entrenched in the national consciousness. In a press release by the government, Prime Minister Sir Anerood Jugnauth celebrated the occasion as “a historic ruling [and a] victory for Mauritius as a whole, including those of our fellow countrymen who are of Chagossian origin” (Government of Mauritius, 2015).

Disappointment followed as the 50-year period covered by the 1966 agreement between the United States and the United Kingdom that had created the BIOT ended on December 30, 2016, only to be renewed for another 20 years (ICJ, 2019, p. 3). In response, the Assembly of the African Union adopted AU/Res.1(XXVIII) in January 2017, aiming to support Mauritius in its complete decolonization. 

Likewise, and perhaps more notably, the United Nations General Assembly adopted Resolution 71/292, which requested an advisory opinion on the Chagos Archipelago sovereignty dispute from the International Court of Justice. The ICJ’s Advisory Opinion was issued on  February 25, 2019, reiterating that Mauritius’ decolonization was not completed, that the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, and all member states are under an obligation to cooperate with the United Nations to complete said decolonization (ICJ, 2019, para. 183, as cited in Gaver, 2021, p. 521). 

Although a purely advisory opinion, it pushed a galvanized Mauritius to again try its luck with delimiting its maritime border with the Maldives. When the latter declined again, Mauritius initiated arbitration against the Maldives under Annex VII of UNCLOS. The court once again ruled in favor of Mauritius, and delimited its border with the Maldives, despite British rebuttals stating: “Mauritius has never held sovereignty over the BIOT and the UK does not recognize its claim” (Wintour, 2021).

Many international observers expected the pattern of legal victories in favor of Mauritius, followed by willful disregard by the United Kingdom, to continue. However, a pleasant surprise met the International Community when, on November 3, 2022, both countries announced bilateral talks on the transfer of sovereignty (Wintour, 2022). 

Another shock came in October and December of 2024, when press releases confirmed that the talks had been successful in creating an understanding on Mauritian sovereignty over the Chagos Archipelago, with a provision for the continued existence of the military base on Diego Garcia (Government of the United Kingdom, 2024). 

Finally, in early April 2025, yet another unexpected occurrence became reality when United States President Donald Trump —known for his right-wing populist ideology that usually disparaged international cooperation— officially gave sanction to the transfer (Lawless, 2025; Courea 2025).

The Case for Critical International Legal Theory

The Chagos Archipelago sovereignty dispute is a unique case. For one, it is unique among the myriads of long-term territorial and boundary disputes across the world in that, unlike the vast majority of them, it seems to be on the cusp of a resolution. Further still, it is unique in that it seemingly reached resolution after lengthy and varied processes of international arbitration (Wiegand et al., 2020, p.7). 

However, several factors limit this occurrence from being defined as solely as a victory for international law and a rules-based order. Firstly, the proceedings taken against the United Kingdom were of a non-binding nature; UN Resolutions 2066 (XX) and 2232 (XXI), ITLOS rulings on the Marine Protected Area in Mauritius v. United Kingdom and the 2019 ICJ Advisory Opinion did not create immediate legal responsibility for the United Kingdom to return the Chagos islands to Mauritius. Of these proceedings, only the subsequent maritime delimitation with the Maldives by ITLOS could be considered binding, but the United Kingdom was not a party. 

Secondly, London repeatedly showed its disregard for these advisory rulings throughout the decades-long dispute, flaunting growing international condemnation even in light of repeated rulings that demonstrated the continued existence of the BIOT had no legal basis in international law. On some level, the United Kingdom’s vested interest in maintaining its presence on the archipelago, coupled with the tacit support of its main benefactor and global hegemon —the United States of America— outweighed the persistent scrutiny and external pressures. 

Clearly, a focus purely on the realm of international law, or even international political affairs in general, is insufficient to paint a full picture of this dispute and its resolution. Critical International Legal Theory helps identify a lot of the missing pieces.

Critical International Legal Theory, known by a variety of names including Newstream and New Approaches to International Law (NAIL), is quite heterogeneous, but still carries a core set of principles. De la Rasilla (2012) describes them as a distrust of grand narratives and proclamations of abstract, universal principles; a leaning for deconstruction through fixation on paradoxes and ambivalences that rise from legal analysis; a strong attention to efforts for unveiling the justifications embedded in patterns of legal discourse; a commitment to highlight the complicity of individual scholarly work in creating oppressive and conservative structures of international legal thought; a call to reject on ethical grounds a “legal managerialism” that rejects the political character of international legal thought; a related invitation to experts to engage in self-reflection and to realize their role as “social intellectual actors”; a focus on theory and history over technocratic practice and doctrine to combat depersonalization in international law; a continued focus on humanistic factors like place, gender, and origin in understanding how domination comes about; a keen awareness of the legacy of colonialism and its legacy of racist and patriarchal ideas inserted in international law; an open reflection on the history of the field of international law; an insistence to examine the structural biases and indeterminacy of international law, and, finally, a compromise to understand the inherently mutable and evolving field of international in its context as an emancipatory approach to knowledge (pp. 2-3).

Simply put, CILT is an effort to humanize International Law by understanding its nature as a social practice. This approach is 'realist,' not in a Hobbesian sense, but in recognizing that law itself, has minimal impact on state behavior. States enter into international agreements primarily due to coinciding interests and their ability to impose minimal unwanted restrictions. This perspective suggests that states engage with law as a means to cloak political decisions —which they would have made regardless— in legal rhetoric (Johns, 2022, p. 64). 

CILT seeks to reflect on and deconstruct this masquerade, and in turn, forge a more historically conscious system of legal thought that better reflects the reality of state action by rejecting legal positivism in favor of the customary behavior of states (Hammouri, 2018, p. 7). After all, as Beckett (2022) puts it, “the poor need food, not simply ‘a right to food’” (p.1).

When it comes to the Chagos Archipelago dispute, Critical International Legal Theory and the Critical Perspective it espouses compel us to take a deeper look at underlying and concurrent pressures that brought the United Kingdom to the negotiating table in 2022.

The Ilois

The first of these is perhaps the most crucial and yet the most ignored: the actual inhabitants of the archipelago, the Ilois. Expelled in the so-called Immigration Act of 1971, the Chagossians were not idle in domestic politics concerning their expulsion. As Alexandre & Koutouki (2018) explain, the first case brought in the United Kingdom in relation to this occurred as early as February 1975, which resulted in the British government providing around GBP 600 to all displaced adults. 

Protests from the Chagossian diaspora in Mauritius, including a hunger strike, successfully pressured both Port Louis and London to pay out an additional GBP 1,250,000 to families. However, this compensation came in exchange for a Chagossian pledge to abandon their claim to the islands and their desire to return —a condition that was both unenforceable and exploitative, as it abused the Chagossians’ language barrier by presenting the agreement solely in English (p. 375).

The next significant development came in 1997, when Chagossians were recognized as living on British territory under the British Nationality Act of 1981. This recognition was immediately leveraged in 1998 for another round of legal proceedings concerning the Ilois’ right to return and the illegality of the 1971 Immigration Act. In 2000, these efforts yielded their first major victory when the British Indian Ocean Territory Ordinance No. 4 was issued, calling for a return of Chagossians and their descendants to islands in Chagos Archipelago, excluding Diego García. 

However, this ruling would be reversed not long after, as it was overturned by 2004 following viability studies in 2002 and a separate ruling in 2003.  Similar efforts were undertaken in the United States District Court for the District of Columbia, arguing for the United States’ liability in the deportation, but these attempts produced similarly disappointing results (pp. 380-385; Minority Rights Group, 2024).

In 2006, the Divisional Court of the High Court of Justice of the UK once again sided with the Chagossians in declaring Section 9 of the Constitutional Order which expelled Chagos’ population, in a case that brought forward its clear violation of norms of customary international law such as UN resolution 1514(XV) and the International Covenant on Civil and Political Rights (1966). Unfortunately, the decision was yet again overturned in 2008 through an appeal by the British government to the House of Lords (which by then still exercised the position of a supreme court through the Law Lords) in a 3-2 decision stating that the British government had no obligation to take Chagossian claims into account when national interests are concerned (p. 386). 

Finally, in 2015, another effort was undertaken in the newly created Supreme Court of the United Kingdom citing additional evidence on the right of Chagosians to return, such as parts of the 2002 feasibility study withheld from earlier court proceedings, which stated that return was in fact possible. The Supreme Court ultimately did not change the original ruling but did revise the Constitution Order of 2004 to allow for resettlement insofar as the recent feasibility findings would allow. This, too, was ultimately ignored by the British government (pp. 387-389; Valenzuela-Bock, 2016).

This disregardful attitude by the United Kingdom’s government toward the Chagossian people strongly echoes the same attitude London has maintained througout most proceedings relating to the Chagos Archipelago in international forums. Still, it must be noted that there was considerably more ambivalence —and even direct victories— on the domestic front. This is indicative of mounting pressures caused by the ideological inconsistency of the United Kingdom’s stance on the Ilois’ banishment and its nominal commitment to human rights. By being a consistent source of headaches for the British legal system, often revealing direct contradictions and friction between different branches of government, the Chagossians have successfully made themselves a problem worth addressing time and again.

External Pressures

In keeping with a Critical analysis of the Chagos Islands Sovereignty dispute, we must take external pressures into consideration. Critical International Legal Theory generally holds, as stated previously, that law itself has very little impact on state power, and that state action usually revolves around immediate interests and actionable capacity. In this sense, the United Kingdom was externally limited by several factors.

Firstly, a major detriment to the United Kingdom in maintaining the BIOT was Brexit. In 2016, the British electorate voted to leave the European Union, becoming the only state its history to fully withdraw, a process completed in 2020 but already well underway during the discussion and vote for UNGA Resolution 71/292, which formally requested the landmark ICJ Advisory Opinion. The Resolution, which initiated a probe on a question almost certain to be answered against London, was still overwhelmingly supported in the UN General Assembly. In fact, it market the first time the dispute had reached the United Nations in decades. 

With 94 votes in favor, something became clear: Europe had abandoned Britain. Philippe Sands, a legal advisor to Mauritius in these proceedings, stated in an interview that Brexit was “a handmaiden” to the 2017 vote that would ultimately led to the opinion. In an anonymous tip to Politico, a former civil servant at the UK’s Foreign Office explained that Britain had long relied on EU member states voting as a bloc to protect each other internationally, as had been done before. However, with Brexit, the United Kingdom had completely lost that ‘protection’ (Inge & Webber, 2024). 

This is not an isolated incident. A report by the UK branch of the United Nations Association stated in 2019 that Brexit was rapidly deteriorating the United Kingdom’s international political capital, noting that foreign perceptions of the UK had collapsed, with several foreign diplomats regarding it as a power with dwindling influence and leverage on the world stage. The report emphasized that Brexit left Britain in a precarious position, where it must balance good relations with EU states and other economically powerful states while being nominally aligned with neither, thus severely limiting its ability to act critically or independently (Gifkins et al, 2019, pp. 6, 10).

Simultaneously, the United Kingdom's ongoing possession of the British Indian Ocean Territory (BIOT) is largely attributable to the United States of America, which, as the proprietor and manager of the Diego García Military Base, is the primary reason for its existence. The United States has made extensive use of the base, especially throughout the ill-fated War on Terror, and it has seen renewed usage in March of 2025 as the United States seeks to combat the Houthis, other militant groups, and regional rivals such as the Islamic Republic of Iran around the Indian Ocean. In keeping with this renewed purpose, it has even redeployed six B-2 stealth bombers, a C-17 military transport, and several KC-135 refueling tankers to the base (Kumar, 2025). 

Despite this crucial role in its broader foreign policy goals, there is reason to believe the United States has a vested interest in the Chagos Archipelago being returned to Mauritius. As Harris (2023) points out, the US stands to benefit from this arrangement in four key ways: first, it is not in the country’s interest to comprise such a total international minority in support of Britain’s claims (including also the Maldives, Hungary, Australia, and Israel); second, the handover would serve to strengthen the United States’ Indo-Pacific relations at a time of ‘great power competition’ where China is increasingly capitalizing on wavering support for the US in developing countries; third, it would particularly help the United States strengthen its relationship with one of Mauritius’ closest allies and benefactors, India; and fourth, it would place the Diego García base —a significant asset— on stable international legal footing for the first time in its existence (pp. 398-400). 

This last point is increasingly relevant when considering that the United Kingdom left a severe security breach enforced when, on February 4, 2025, Mauritius sent a vessel of scientists, diplomats, and civil society representatives on an unauthorized mission to the Chagos Archipelago to make a political statement (Bashfield, 2025). This blatant disregard for security enforcement demonstrates that the United Kingdom is unwilling to assert its sovereign rights over the islands, fearful of another round of international condemnation and internal dissent. It also poses a significant security threat for the American base in the Archipelago if left unresolved.

How Traditional International Law Failed

Having established how significant internal and external pressures influenced state behavior leading to the eventual resolution on the Chagos Islands sovereignty dispute from a critical perspective, it is also prudent to note how traditional international law failed during the litigation process. In Humanizing the Law of Self-Determination - the Chagos Islands Case, Hilpold (2022) explains how the ICJ Advisory Opinion was fundamentally limited in scope, noting that “On a whole, in the Chagos Case, the Court followed a very traditional approach that was ‘politically correct’ but at the same time missed some important opportunities” (p. 198). 

For one, arbitration carried with it no obligations to make reparations, limiting itself instead to vague allusions to involvement by the General Assembly and other states. Though it recognized the erga omnes nature of self-determination, it nevertheless stopped short of naming it a peremptory norm, the violation of which would have constituted a severe breach of international law (p. 205). Such a violation could have incurred significant reparations on the part of the United Kingdom toward Mauritius and the Chagossian community. 

On top of this, the Court carefully avoided fully addressing the human rights aspect of the dispute, arguably its core dimension, mentioning it only in passing in paragraph 181 of its proceedings as an issue “relating to the protection of the human rights of those concerned” only to be addressed “during the completion of the decolonization of Mauritius”. Such a statement makes a distinction between human rights and self-determination where there effectively should be none. Hilpold correctly points out that any definition of self-determination solely on the basis of uti possidetis cannot be considered a human right, for self-determination without the “self” is hardly self-determination at all. The ICJ Advisory Opinion’s definition of decolonization and self-determination within a strictly colonial framework only further invisibilizes minorities who might have a stake in the process (pp. 207-208). 

This can be seen in how Chagossians attempted to participate in international arbitration by filing a case in the European Court of Human Rights, which was denied on the basis of already been decided in domestic courts (Alexandre & Koutouki, 2018, pp. 390), as well as the palpable discontent of Chagossians with the 2024 bilateral negotiations that would see their home returned to Mauritian sovereignty, a process they have repeatedly protested for its  lack of inclusion (Lawless, 2024). 

Conclusions 

As the sun sets on the Liberal International Order, a once steadfast foundation of global governance, we are left to grapple with its crumbling edifice. The entrenched support for positivist interpretations of international law has led to a standstill in what should be a transformative and progressive tool of global justice. As multilateralism wanes and states continue to flaunt or avoid arbitration, scholars of international law can no longer afford to adopt a dogmatic, enclosed approach that blinds itself to both limitations and inherent biases of the law they cling to. The Chagos Islands Sovereignty Dispute, a decades-long battle between the United Kingdom and the Republic of Mauritius, underscores the limitations of traditional international law. Where some might claim to see the victory of arbitration, this ignores the persistent external and internal pressures that drive state behavior. The United Kingdom’s willingness to hand over an incredibly valuable international asset, after decades of ignoring the requests of the Mauritian government and the consequences of the atrocities it committed against the island’s native inhabitants, came as a result of a myriad of factors of which the international cases were only indicative.

  Mounting internal legal pressures by the Chagossian community, a collapse in international prestige following Brexit, and a desire of the United States to solidify the legal grounding of its most strategic military base in the Indian ocean all contributed to forcing London to the table. This is because International Law does not have any inherent power to compel states to act in a particular way. Believing that is to be continually disappointed when it isn’t so. When arbitration succeeds, it is never by its own will or by its own virtue, but rather by the pressures and conditions that shape its current historical, political, cultural, and economic context. Neither is that law itself a pure vessel for arbitration; international law is itself a product of time and place, and is riddled with biases and limitations embedded from its history as a tool of an industrialized, patriarchal, and colonial international society that was incentivized to concentrate its power in the hands of states and broadly organized society, thereby disenfranchising the most vulnerable and most problematic populations for the maintenance of this regime. 

Contrary to what many would believe, Critical International Legal Theory does not seek to invalidate international law but rather lets us to see the world for what it is. It invites us to think about why international law matters, and how our world came to revolve around it. It is not a cynical ideology nor even a realist one in the traditional sense. It calls to us to make law more than just a procedure, but an instead a tool for justice. It pushes for us to finally realize that, far from a ‘rules-based world order, our world isn’t one of rules, nor even one of states, but one of people. If we open our eyes to these truths, then, and only then, we may be able to build a future.

Biografía en documento adjunto.

Constructive Criticism.pdf

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