SJ Interview: Philippe Sands KC

Philippe Sands KC is professor of law and director of the Centre for International Courts and Tribunals at University College London. A specialist in public international law and environmental law, he has appeared as counsel and advocated before many international courts and tribunals, including the International Court of Justice, the European Court of Justice, the European Court of Human Rights and the International Criminal Court. He has also written 17 books, including his latest, The Last Colony: A Tale of Exile, Justice and Britain’s Colonial Legacy.

Please tell us about your latest book, The Last Colony

It’s a book about an act of wrongdoing which took place many decades ago. The story begins with Mauritius, a colony under British rule that sought independence. In 1965, during the Labour government led by Harold Wilson, an agreement was reached with the Mauritian leadership. This agreement, symbolically referred to as “the Mauritian leadership agreement” in quotation marks, granted Mauritius independence on the condition that the United Kingdom would retain control over a group of islands known as the Chagos archipelago, which later became the British Indian Ocean Territory. Between the 1960s and 1973, this agreement resulted in the forcible removal of entire populations from the islands, as they were compelled to leave and prevented from returning. Fast forward to 2010, when I was hired as a legal counsel, specifically a barrister, by the Mauritian government to assist in the legal recovery of those islands. It ultimately led to the case being brought before an international court. The international court unanimously declared that the Chagos Islands rightfully belong to Mauritius and that the occupation by the United Kingdom is illegal. Right now, negotiations are underway between Britain and Mauritius to implement this decision in accordance with international law. As a result, the Chagossians, who have endured a painful 50-year wait, can finally return to their homeland, including Diego Garcia, which is now recognised as part of Mauritius. This outcome is undoubtedly positive, albeit long overdue.

Could you tell us more about the legal framework behind this case?

The approach we took in presenting our case was based on the concept of the right to self-determination, which gained prominence during the 1950s and 1960s. This principle asserts that communities have the entitlement to determine their own governance and way of life. Principles of self-determination played a crucial role in the decolonisation process, as numerous former colonies of European powers such as France, the UK, Spain, and Portugal achieved independence during the 1940s, 1950s and 1960s. Mauritius was among these countries, and its independence was predicated on the expression of the right to self-determination. In the context of the Chagos case, the United Nations General Assembly referred the matter to the International Court, requesting an advisory opinion. The Court was tasked with determining whether, considering the right to self-determination, the decolonisation of the British Indian Ocean Territory was complete, given the ongoing occupation by the United Kingdom of Diego Garcia and the remaining Chagos Islands. The Court, according to its rules, recognised that the right to self-determination already existed in the 1960s. By fragmenting Mauritius through the 1965 Order-in-Council, the United Kingdom violated international law, the right to self-determination, and the people of Mauritius’ right to decide their own governance. This action also infringed upon the principle of territorial integrity, which states that when We need to equip judges with a deeper understanding of environmental law and the urgency of climate change a country achieves independence, the entire territory should gain independence unless the concerned population decides otherwise. The International Court of Justice confirmed that the population of Mauritius had not been consulted, rendering the dismemberment by the United Kingdom illegal.

Is the law on self-determination complete as it currently stands?

The concept of the right to self-determination is indeed clear in its essence. However, the challenge lies in the implementation of this principle. Another case that has recently been brought before the International Court of Justice concerns the application of the right to self-determination to the Palestinian people. The court is expected to provide an advisory opinion on this matter in 2024. It is important to note that the issues surrounding the implementation of the law are often related to political will rather than the content of the law itself. The right to self-determination also applies to Ukraine, where the people have the right to determine their own fate within their territorial boundaries. Similarly, this right is relevant in the context of Scotland and its potential independence from the United Kingdom. However, international law stipulates that the conditions under which the people of Scotland can exercise their right to self-determination are ultimately determined by the United Kingdom government. This interpretation stems from the precedent set by Quebec and Canada. In summary, while the concept of the right to self-determination is becoming increasingly clear, the application of this principle often depends on political considerations and the specific circumstances of each case.

What led you to specialise in international law?

Looking back, I sometimes wonder if I made the right choice. Law, with all its weighty contracts and criminal proceedings, doesn’t always light up my life. But back when I was 18, I stumbled upon a subject that instantly captured my heart – international law. It was during my second year at university when I had the pleasure of being taught by the charismatic Robert Jennings, a Yorkshire native who later became a prominent British judge in the International Court of Justice. Having met other interesting scholars throughout my studies, I spent a year as a visiting scholar at Harvard Law School in the United States. Then, out of the blue, a letter arrived, inviting me to apply for a research fellowship at Cambridge University International. I jumped at the chance, and that decision shaped the course of my life. My journey in international law has taken various paths. In the late 1980s, I began working on issues related to disarmament, environmental regulations and climate change. These topics have remained close to my heart ever since. As a qualified barrister, I made a conscious decision to focus solely on matters of international law, predominantly in international courts. However, I occasionally find myself dabbling in domestic court cases as well. Alongside my legal practice, I also teach at both UCL and Harvard, sharing my knowledge and passion with eager minds. International law has become the backbone of my life. I’m genuinely passionate about protecting and nurturing it. In my eyes, it’s my life’s purpose to ensure the wellbeing of international law, guarding it as a cherished entity.

Can you describe the intersection between public international law and environmental law?

When I first delved into the realm of international law, environmental issues were not given the attention they deserved. Back in the late 1980s, my dear friend Professor Alan Boyle, who taught at Queen Mary while I was at UCL, and I separately started pioneering courses on international environmental law. At the time, many traditional international lawyers thought we were quite mad. I remember even Professor Ian Brownlie, an esteemed figure in international law, had no chapter on the environment in his renowned treatise Principles of Public International Law in the early 90s. When I questioned him about it, he responded: “Because there’s no such thing as international environmental law until the International Court of Justice says it exists.” However, a turning point came in 1997 when I was involved in a case concerning nuclear weapons that led to an advisory opinion from the International Court of Justice. In that opinion, the Court declared that the protection of the environment had become part of the corpus of international law. It acknowledged that states now bear an obligation to safeguard the environment. I reached out to Professor Brownlie once again, and he agreed to include a chapter on the environment in his textbook. I recall that the chapter was only about three pages long. But now, we have extensive treatises and textbooks dedicated to the subject. It’s been a complete transformation. Climate change has emerged as a significant international legal issue. Numerous cases have arisen regarding environmental protection. Over the years, I’ve been involved in dozens of these cases, covering topics such as rivers, biodiversity, oil pollution, and nuclear power plants. Currently, I’m engaged in a matter relating to Ukraine, assessing whether the destruction of the Kahkova dam constitutes an act of ecocide, which I firmly believe it does. The environment has now entered the mainstream of international law. However, despite this progress, there is still a long way to go. Political will to effectively address environmental protection is not yet fully present. We need a shift in international consciousness and action to truly prioritise the safeguarding of the environment.

Can local legal issues be effective in helping address global environmental issues?

You know, when it comes to protecting the environment, I believe that the real game-changer lies within national courts. International courts can play a crucial role by handling landmark climate cases, but their most valuable contribution is in inspiring and motivating domestic courts to take environmental protection seriously. One recent judgment by the Court of Appeal in England focused on the Paris Agreement and climate change, where Friends of the Earth challenged the UK government over its backing of a gas megaproject in Mozambique. The court dismissed their claim. That judgment, in my humble opinion, is possibly one of the most disheartening majority judgments I’ve ever come across from an English court. It really missed the mark. Thankfully, there was a powerful dissenting opinion by Justice Justine Thornton, which resonated with me. I must clarify that I wasn’t directly involved in the case. But to be honest, it was a matter of great disappointment for me to see the direction the judgment took. It’s become evident that there’s an entire generation of English judges who could benefit from expanding their knowledge on international models and the critical issues of environmental protection and climate change. So, there’s still a long way to go. But, in my view, the key lies in further education and awareness within the judiciary. We need to equip judges with a deeper understanding of environmental law and the urgency of climate change. National courts can be the driving force in accelerating progress and pushing for robust environmental safeguards.

What has your writing taught you about attitudes to international law – and what has helped you develop as an author?

The first book I wrote was called Lawless World, which focused on the Iraq situation. From there, I delved into the dark realm of torture, exploring the notorious ‘torture team’ in Guantánamo. Then came East West Street, a captivating exploration of how crimes against humanity and genocide found their roots in international law. Following that, I embarked on The Ratline and The Last Colony, both touching on the themes of self-determination and justice. My next book will delve into the thrilling world of the international race in London. Through writing these books, I’ve come to realise just how important the public’s role is. People are smart and eager to learn about how rules and institutions function in our complex world. The fact that these books have garnered large numbers of readers only reinforces this notion. It shows that there is indeed a keen interest in understanding the workings of international law… East West Street and The Ratline have found their way into the hands of a diverse and expansive readership. This is all part of an agenda to revitalise and popularise international law. I’ve been fortunate to receive advice and support from some truly wonderful individuals, including John le Carré… With their help, I’ve strived to make international law accessible, engaging, and yes, even unbelievable at times.

What key skills should aspiring international law practitioners cultivate?

For international law to thrive, it is crucial to genuinely make an effort to understand how people interpret and experience these matters from different perspectives. This entails reading international law texts written by others, immersing oneself in literature originating from various parts of the world, learning different languages, and spending time with individuals from diverse backgrounds. The ability to navigate and engage with different communities and circles is often the hallmark of those who excel in their careers. This isn’t limited to the upper echelons of society. Understanding and embracing diverse perspectives is an ongoing endeavour. It requires active listening, empathy and an open mind. By doing so, we can foster a more inclusive and nuanced approach to international law, one that is enriched by the wisdom and experiences of all people, regardless of their background.