An advisory opinion (hereinafter referred as judgment) rendered by the International Court of Justice in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 has been hailed by many observers as a significant event in the discourse on decolonisation. Not only is it seen as a progressive opinion which reaffirms the right to self-determination, but it also throws light upon the changing political structures in the international legal order. In addition to its legal significance, the judgment also exposes the remnants of colonialism and imperialism that persists. This bolsters the assertion that while “colonialism has largely ended … imperialism … lingers where it has always been, in a kind of general cultural sphere as well as in specific political, ideological, economic, and social practices”.
This article is an attempt to peruse the judgment and underline the implications that it may hold for international order in coming years. Broadly, the court opined that the United Kingdom (UK) had separated the Chagos archipelago from the British colony of Mauritius in contravention of the right to self-determination and thereby the process of decolonisation of Mauritius was not completed in accordance with international law. Before going into the merits of the case, it is imperative to glance over the historical facts that led to the case.
I. Historical Background of the Controversy
Mauritius and its dependent islands (one of which was Chagos Archipelago) used to be a colony of the United Kingdom until 1968. In 1964, during its deliberations with the UK, the United States of America expressed its interest to establish a military communication facility on Diego Garcia, the principal island of the Chagos Archipelago. This led to discussions between the UK and the representatives of the colony of Mauritius on the question of the detachment of the Chagos Archipelago from Mauritius. On 23 September 1965, an agreement called ‘the Lancaster House Agreement’ was entered into between the UK and representatives of Mauritius wherein Mauritian representatives agreed in principle to the detachment of the Chagos archipelago in lieu of, inter alia, a sum of £3 million with the condition that the archipelago would be returned to Mauritius when the need for the military facilities on the islands disappeared. In November 1965, a colony, known as the British Indian Ocean Territory (BIOT) consisting of the Chagos Archipelago, was established by the United Kingdom. The United States of America (US) and the UK concluded an agreement for the establishment of a military base by the US on the Chagos Archipelago which also led to the deportation of the inhabitants of Chagos (Chagossians) who were also prevented from returning. On 12 March 1968, Mauritius became an independent State and on 26 April 1968, it was admitted to membership of the United Nations.
II. Chronology of Legal Events and the Judgment
In June 2017, the General Assembly adopted a resolution requesting an advisory opinion from the ICJ on two questions:
(a) Was the process of decolonisation of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos from Mauritius and having regard to international law?
(b) What are the consequences under international law arising from the continued administration by the UK of the Chagos, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos of its nationals, in particular Chagossians?
The Court first delved into identifying the applicable law pertaining to self–determination for the period between 1965 and 1968. It recalled that, in addition to the purposes of the UN to have respect for the principle of equal rights and self-determination under Article 1(2), the charter also contains provisions that would enable non-self-governing territories ultimately to govern themselves. It underscored the adoption of resolution 1514 (XV) as a defining moment in “the consolidation of State practice on decolonisation”. It highlighted the declaratory as well as normative character of this Declaration. For the court, the Declaration “has a declaratory character with regard to the right to self-determination as a customary norm, in view of its content and the conditions of its adoption”. Moreover, it also crystallises the norm that all peoples have the right to self-determination.
Turning to the inquiry regarding the legality of the detachment of the Chagos from Mauritius, the court considered the circumstances in which Mauritius agreed in principle to such a detachment. It found that since the detachment was not based on the free and genuine expression of the will of the people concerned, the process of decolonisation of Mauritius was not lawfully completed when Mauritius accomplished independence in 1968.
On the question of consequences arising from the continued administration by UK of Chagos, the Court only pointed towards the obligation of the UK to bring an end to its administration of the Archipelago as swiftly as possible. However, without delving into the modalities, it left it for the General Assembly to see to its culmination in the exercise of its functions relating to decolonisation.
III. Substantive Implications: A New Vista of International Justice?
Two jurisprudential underpinnings of the judgment which attract our attention are the issues of self-determination and unequal treaty. Although there is no explicit mention of the term ‘unequal treaty’, it may be implied through the court’s understanding of the validity of the Lancaster House Agreement. In the Court’s view, it is not possible to talk of an international agreement, when one of the parties to it, Mauritius, which is said to have ceded the territory to the United Kingdom, was under the authority of the latter. The Court is of the view that heightened scrutiny should be given to the issue of consent in a situation where a part of a non-self-governing territory is separated to create a new colony. The relevant observation of the court in this regard is that “the circumstances in which the colony of Mauritius agreed in principle to the detachment of the Chagos Archipelago was not based on the free and genuine expression of the will of the people concerned”.
Although the Vienna Convention on the Law of Treaties does not recognise ‘unequal treaties’ as a special legal category, reflection and practice relating to this concept have influenced the development of international law. To those scholars who argue for the redundancy of this concept in the 21st century, the case law is jurisprudentially significant as it is a testimony to the uneven and unequal bargaining powers of the states participating in negotiations to any treaty. As Wheaton remarked, “The obligation of treaties, by whatever denomination they may be called, is founded, not merely upon the contract itself, but upon those mutual relations between the two States, which may have induced them to enter into certain engagements.” The contribution of the discourse on unequal treaties is that it made international legal scholarship more sensitive to the discrepancy between formal equality and substantial political and economic inequality. For a just world order, it is important to consider the essence of ICJ’s argument that if the parties are not on equal footing then an agreement cannot be held valid.
The Court’s views on the right to self-determination can be viewed as both progressive as well as limited. While the Court has unequivocally upheld the traditional understanding of the right to self-determination as a necessary corollary of the decolonisation process and an essential attribute of sovereignty, it may be argued that the case has also exposed the inherent and systemic ‘state centrism’ of international law wherein even the human right of self-determination finds its semblance from the prism of the state and not the aspirations of people. Notwithstanding the court’s acknowledgement of the deplorable condition of the Chagossians, it opined that the issue of resettlement on the Archipelago is an issue relating to the protection of the human rights of those concerned which should be addressed by the General Assembly during the completion of the decolonisation of Mauritius. While the authors appreciate the limitations of the court, it can be argued that a more pro-active approach could have been adopted. For instance, Judge Trinidade in his Separate Opinion contends that the Chagossians deserve reparations for the hardships they have been made to suffer. The right to self-determination needs a more nuanced analysis in this post-colonial era. As pointed out by Ian Brownlie, “This core consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives. The concept of distinct character depends on a number of criteria which may appear in combination.”
Notwithstanding all the limitations of the judgment, in this global atmosphere of protectionism, hyper-nationalism and dwindling faith in international institutions, this advisory opinion has come as a silver lining. Although ICJ’s advisory opinion does not create law and just declares it, the UK should still take necessary actions in compliance with international law, both in letter and spirit.