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The Chagos Advisory Opinion and the Law of Self-Determination

  • Victor KATTAN (a1)

Abstract

The Advisory Opinion of the International Court of Justice [ICJ] on the Separation of the Chagos Archipelago from Mauritius in 1965 has been hailed as a major victory by the government of Mauritius and by representatives of the Chagossians who were forcibly removed from the islands to make way for the establishment of an American military facility on the island of Diego Garcia at the height of the Cold War. The opinion was categorical: the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence in 1968. The UK lost on every single argument it made before the Court and is under an obligation to bring its administration of the Chagos Archipelago to an end “as rapidly as possible”. This comment focuses on what the ICJ said about self-determination, and whether the Advisory Opinion could have consequences for future cases at the Court.

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Associate Fellow, Faculty of Law, National University of Singapore; Senior Research Fellow, Middle East Institute, National University of Singapore; Associate Member, Temple Garden Chambers, London. This comment is based on a presentation delivered on 21 March at the Faculty of Law, National University of Singapore, that was organized by the Centre for International Law and the International Law Association—Singapore branch.

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1. Owen BOWCOTT, “UN Court Rejects UK's Claim of Sovereignty over Chagos Islands” The Guardian (25 February 2019); Marlis SIMONS, “U.N. Court Tells Britain to End Control of Chagos Islands, Home to U.S. Air Base” The New York Times (25 February 2019); “UK Should Leave Chagos Islands Colony in Indian Ocean as soon as Possible, Top UN Court Says” South China Morning Post (25 February 2019); Kamlesh BHUCKORY, “World Court Says U.K. Should Return Control of Indian Ocean Islands” Bloomberg (25 February 2019).

2. Prior to the detachment, the UK undertook to cede the islands to Mauritius when they were no longer needed for defence purposes. In 2016, the UK and the US agreed to extend the lease for a further twenty years. See Jon LUNN, Disputes over the British Indian Ocean Territory: March 2019 Update (House of Commons Briefing Paper Number 6908, 14 March 2009), at 4.

3. There were only fourteen Judges on the ICJ as Judge Crawford had recused himself for having served as counsel to Mauritius in the UNCLOS arbitration. Judge Greenwood had also recused himself before he lost the election to Judge Bhandari. Greenwood had served as a Judge in the Arbitral Tribunal in the UNCLOS arbitration. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Order of 14 July 2017, [2017] I.C.J. Rep. 282. On the UNCLOS arbitration, see In the Matter of the Chagos Marine Protected Area Arbitration Before an Arbitral Tribunal Constituted under Annex VII of the United Nations Convention on the Law of the Sea Between the Republic of Mauritius and the United Kingdom of Great Britain and Northern Ireland (Award), see materials relating to this arbitration online: Permanent Court of Arbitration <https://pca-cpa.org/en/cases/11/>.

4. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 25 February 2019, at para. 44, online: International Court of Justice <https://www.icj-cij.org/files/case-related/169/169-20190225-01-00-EN.pdf> [Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion].

5. Ibid., at para. 183.

6. Ibid.

7. Ibid., at paras. 25–8.

8. Ibid., at para. 26.

9. Ibid., at para. 29. The ICJ cited the Report of 1948 that collectively referred to all the islands as “Mauritius”.

10. See ALLEN, Stephen, The Chagos Islanders and International Law (Oxford: Hart Publishing, 2014) at 68.

11. Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, supra note 4 at para. 31.

12. See VINE, David, Island of Shame: The Secret History of the US Military Base on Diego Garcia (Princeton, NJ: Princeton University Press, 2009).

13. Ibid., at 70–1.

14. Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, supra note 4 at para. 33.

15. Ibid., at para. 43.

16. Ibid., at paras. 98–112.

17. Ibid., at para. 106. The UK claimed that it had the legal right to detach the Chagos by Order in Council, without Mauritian consent.

18. General Assembly, 71st Session, 88th Plenary Meeting, 22 June 2017, UN Doc. A/71/PV.99, at 17–18. Tellingly, the states that voted against the request included those that are home to US military facilities. These states included: Afghanistan (e.g. Bagram Air Base); Australia (e.g. Darwin and Pine Gap); Bulgaria (e.g. Bezmir Air Base); Hungary (e.g. NATO base at Pápa); Japan (e.g. Okinawa, Tokyo); Korea (e.g. Camp Humphreys); and New Zealand (e.g. Harwood airport in Christchurch. The UK also hosts multiple US facilities, in addition to Diego Garcia. However, the correlation between hosting US/UK military bases and opposing the request for the Advisory Opinion was not uniform. Some of the states that host US bases either abstained from the vote or voted in favour of the request. Those states that supported the request included Cyprus (the Sovereign Base Areas); Cuba (Guantanamo Bay); Djibouti (Camp Lemonnier); Jordan (Muwaffaq Salti Air Base); and the United Arab Emirates (Al Dhafra Air Base). Those states that abstained included Bahrain (home to the US 5th fleet); Germany (multiple bases); Iraq (Al Asad Air Base); Italy (multiple bases); Kuwait (Ali Al Salem Air Base and Camp Arifjan); Micronesia (Naval Base Guam); Qatar (Al Udeid Airbase); and Turkey (Incirlik).

19. The first sentence of the preamble of the request reaffirmed “that all peoples have an inalienable right to the exercise of their sovereignty and the integrity of their territory” (emphasis added).

20. See the declaration filed by Mauritius on 23 September 1968 and the declaration filed by the UK on 22 February 2017, online: International Court of Justice <https://www.icj-cij.org/en/declarations>.

21. See the statement by Mr Rycroft, 88th Plenary Meeting, 71st Session of the General Assembly, 22 June 2017, UN Doc. A/71/PV.88, at 16.

22. Ibid., at 11.

23. See GA Res. 65/119, 10 December 2010.

24. See para. 5 of the Decolonization Declaration.

25. Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, supra note 4 at para. 9. See the text of these statements, online: International Court of Justice <https://www.icj-cij.org/en/case/169/written-proceedings>.

26. Ibid., at para. 23. See the text of the oral statements, online: International Court of Justice <https://www.icj-cij.org/en/case/169/oral-proceedings>.

27. See the Russian statement, online: International Court of Justice <https://www.icj-cij.org/files/case-related/169/169-20180227-WRI-05-00-EN.pdf>.

28. Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, supra note 4 at para. 86.

29. Ibid., at para. 88.

30. Ibid., at para. 139.

31. Ibid., at para. 150.

32. Ibid., at para. 152.

33. Ibid., at para. 153.

34. See GA Res. 1514, 14 December 1960, at para. 6.

35. Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, supra note 4 at para. 160.

36. Ibid.

37. Ibid., at para. 172.

38. Ibid., at para. 174.

39. Ibid., at para. 177.

40. Ibid.

41. Ibid., at para. 178.

42. Ibid., at para. 180.

43. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 25 February 2019, Dissenting Opinion of Judge Donoghue at para.1.

44. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 25 February 2019, Declaration of Vice-President Xue at para. 19.

45. They noted that this claim had been made by more than a dozen states in their written and oral statements. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 25 February 2019, Separate Opinion of Judge Cançado Trindade at paras. 120–69; Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 25 February 2019, Separate Opinion of Judge Sebutinde, especially paras. 25-46; and Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 25 February 2019, Separate Opinion of Judge Robinson at paras. 48–89.

46. Separate Opinion of Judge Cançado Trindade, supra note 45 at para. 169.

47. For example, the West Papua dispute with Indonesia when West Papua was handed to Indonesia following a controversial plebiscite in 1969. See Melinda JANKI, “West Papua and the Right to Self-determination Under International Law” (2010) 34 West Indian Law Journal 1.

48. Raphael AREN, “Israel Takes Part in International Court Debate for First Time in Decades” Times of Israel (7 September 2018).

49. See the written statement of Israel at the website of the ICJ, online: <https://www.icj-cij.org/files/case-related/169/169-20180227-WRI-04-00-EN.pdf>. Israel had submitted a written statement to the ICJ in the Wall Advisory Opinion, but it did not take part in the oral proceedings.

50. See Application Instituting Proceedings, State of Palestine v. United States of America, 28 September 2018, online: International Court of Justice <https://www.icj-cij.org/files/case-related/176/176-20180928-APP-01-00-EN.pdf>.

51. See Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America), Order of 15 November 2018, online: International Court of Justice <https://www.icj-cij.org/en/case/176>.

52. See Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 25 February 2019, Declaration of Judge Gevorgian at para. 6.

53. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 25 February 2019, Separate Opinion Judge Gaja at para. 1. I reached a similar conclusion in Victor KATTAN, “Self-determination During the Cold War: UN General Assembly Resolution 1514 (1960), the Prohibition of Partition, and the Establishment of the British Indian Ocean Territory (1965)” (2015) 19 Max Planck Yearbook of United Nations Law 419 at 468.

54. “Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for in Article 73 e of the Charter of the United Nations”, GA Res. 1541, 15 December 1960.

55. Ibid. The difference between self-determination and self-government is explored in a chapter of mine. See Victor KATTAN, “Self-determination as Ideology: The Cold War, the End of Empire, and the Making of UN General Assembly Resolution 1514 (14 December 1960)” in Klara VAN DER PLOEG et al., International Law and Time: Narratives and Techniques (New York: Springer, forthcoming).

56. South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment of 21 December 1962, [1962] I.C.J. Rep. 1962 319. South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 6.

57. See Victor KATTAN, “There was an Elephant in the Courtroom: Reflections on the Role of Judge Sir Percy Spender (1897–1985) in the South West Africa Cases (1960–1966) After Half a Century” (2018) 31 Leiden Journal of International Law 147, especially at 161–3.

58. Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, supra note 4 at para. 153.

59. Ibid., at para. 160.

60. See the statement made by Mauritian Prime Minister Pravind Jugnauth at the 88th Plenary Meeting, 71st Session of the General Assembly, 22 June 2017, UN Doc. A/71/PV.88, at 8.

* Associate Fellow, Faculty of Law, National University of Singapore; Senior Research Fellow, Middle East Institute, National University of Singapore; Associate Member, Temple Garden Chambers, London. This comment is based on a presentation delivered on 21 March at the Faculty of Law, National University of Singapore, that was organized by the Centre for International Law and the International Law Association—Singapore branch.

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The Chagos Advisory Opinion and the Law of Self-Determination

  • Victor KATTAN (a1)

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