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TERRITORIAL INTEGRITY AND CONSENT IN THE CHAGOS ADVISORY OPINION

Published online by Cambridge University Press:  13 January 2020

Robert McCorquodale ,
Jennifer Robinson  and
Nicola Peart
Robert McCorquodale
Affiliation:
Professor of International Law and Human Rights at the University of Nottingham and Barrister at Brick Court Chambers, robert.mccorquodale@nottingham.ac.uk
Jennifer Robinson
Affiliation:
Barrister at Doughty Street Chambers, j.robinson@doughtystreet.co.uk
Nicola Peart
Affiliation:
Associate (Barrister) at Three Crowns LLP, nicola.peart@threecrownsllp.com.
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Abstract

A key element of the right to self-determination is territorial integrity. This has usually been considered solely in relation to the territorial integrity of an existing State seeking to resist claims by peoples for the right to self-determination. Yet the Chagos Opinion by the International Court of Justice examines a different type of territorial integrity—that of the colonial territory itself. This article explores the consequence of the Court's view that the territorial integrity of the colonial territory is a matter of customary international law, and that any division, integration or other disruption of that colonial territory after December 1960 is unlawful, without the free and genuine consent of the people of the colonial territory. In particular this article seeks to explore what the Chagos Opinion means in terms of the territorial integrity of a colonial territory. It also examines the required conditions for ascertaining a free and genuine consent of the people of that territory, and the legal effects of not complying with them. There is also consideration of the implications for other situations from the clarification of customary international law in the Chagos Opinion, with a special focus on West Papua.

Keywords

public international lawChagos Opinioncustomary international lawself-determinationterritorial integrityWest Papuaconsentcolonial territoryICJ
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 69 , Issue 1 , January 2020 , pp. 221 - 238
Copyright
Copyright © The Author(s) (2020). Published by Cambridge University Press for the British Institute of International and Comparative Law.

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Footnotes

All three authors were legal counsel for the Republic of Vanuatu before the International Court of Justice in the Chagos Advisory Opinion. The views stated here are solely those of the authors and do not represent the views of the Republic of Vanuatu or any other State or entity.

References

1 Walter Lini's keynote address to the Australia and the South Pacific Conference (18 February 1982) in Pacific Islands Monthly (April 1982) 25–8.

2 For example, on 4 November 2018 the people of the French colony of New Caledonia voted in a referendum on independence, with the final result being 56 per cent to 44 per cent to stay as part of France, though more than half of the vote to remain was by Europeans who live there, including the French military: see <https://www.bbc.co.uk/news/world-asia-46087053>.

3 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) 25 February 2019: <https://www.icj-cij.org/en/case/169/advisory-opinions>.

4 Chagos Opinion (n 3) para 160.

5 Written Statement of Mauritius, para 6.50: <https://www.icj-cij.org/files/case-related/169/169-20180301-WRI-05-00-EN.pdf>.

6 M Shaw, Title to Territory in Africa (1986) 134.

7 Written Comments by the UK, para 4.31: <https://www.icj-cij.org/files/case-related/169/169-20180514-WRI-01-00-EN.pdf>.

8 See, for example, United States Written Statement, paras 4.47–4.50: <https://www.icj-cij.org/files/case-related/169/169-20180301-WRI-01-00-EN.pdf>.

9 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) (22 July 2010) para 80.

10 A full discussion of this issue is outside the scope of this article. For a discussion see J Vidmar, Democratic Statehood in International Law (Hart 2013).

11 See, for example, comments in Blay, S, ‘Self-Determination versus Territorial Integrity in Decolonisation’ NYUJIL&Pol (1986) 441Google Scholar.

12 See Guatemala: Amendments to the Draft Resolution Contained in Document A/L.323 and Add.1-6, UN Doc A/L.325 (7 December 1960). Note that the context for this proposed amendment seems to have been that Guatemala demanded the return by the UK of British Honduras (now Belize) to Guatemala—see UN Doc A/PV.933, paras 133–134.

13 See, for example, Chagos Opinion (n 3) paras 168 and 173.

14 Judge Robinson Separate Opinion in the Chagos Opinion, ibid, para 34 (emphasis added).

15 On the right to self-determination as a right crystallised or prior to Resolution 1514 see, for example, Higgins, R, Development of International Law through the Political Organs of the United Nations (Oxford University Press 1963) 177Google Scholar and 178. Crawford, J, The Creation of States in International Law (1st edn, Oxford University Press 1979) 357Google Scholar and Crawford, J, The Creation of States in International Law (2nd edn, Oxford University Press 2006) 604Google Scholar both referring to Resolution 1514 (XV) as having achieved ‘a quasi-constitutional status’; Cassese, A, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press 1995) 70Google Scholar; Daillier, P and Pellet, A, Droit international public (7th edn, LGDJ 2002) 519–20Google Scholar; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), Application for Permission to Intervene, I. C. J. Reports 2001, Separate Opinion of Judge Franck, at 655, paras 9–11.

16 Written Statement of Belize at para 3.6: <https://www.icj-cij.org/files/case-related/169/169-20180130-WRI-01-00-EN.pdf>.

17 General Assembly Resolution 2066 (XX) (16 December 1965) preambular para 5 and para 4.

18 Written Comments by the UK, para 4.48.

19 Crawford, J, The Creation of States in International Law (2nd edn, Oxford University Press 2006) 645Google Scholar. See also Shaw, M, Title to Territory in Africa (Clarendon 1986) 131–2Google Scholar. Note that Judge Crawford did not sit as a Judge in the ICJ for the Chagos Opinion as he had previously been involved in an earlier case brought by Mauritius against the UK: Chagos Marine Protected Area (Mauritius v UK), Award (Annex VII LOSC Tribunal, Perm Ct. Arb 2015).

20 Nicholson, H, Peacemaking 1919 (Faber and Faber 1965)Google Scholar.

21 Chagos Opinion (n 3) para 160.

22 Emphasis added.

23 Western Sahara Advisory Opinion, ICJ Rep 1975, at 12, para 55.

24 Declaration of Judge Nagendra Singh to the Western Sahara Opinion, ibid 81.

25 22 States and the African Union gave oral submissions before the ICJ, with 43 written submissions (some of which were by the same States as gave oral submissions), with many States appearing for the first time before the ICJ.

26 See, for example, Written Comments of the UK at para 4.7.

27 Written Comments of the UK at para 4.52.

28 Written Statement of Mauritius at para 6.58.

29 Chagos Opinion (n 3) para 172 (emphasis added).

30 See S Allen, ‘Self-Determination, the Chagos Advisory Opinion and the Chagossians’ in this issue.

31 See Lord Bingham in R v Jones (Margaret) [2007] 1 AC 136, at para 155.

32 Serdar Mohammed v Ministry of Defence [2017] AC 821 at para 23.

33 Legal Consequences of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, paras 52–53.

34 R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1355, at para 150.

35 R (on the Application of Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs on appeal from [2019] EWHC 221 (Admin). The Chagos Opinion was delivered after the Divisional Court decision. One of the authors is a legal counsel in this case.

36 See, for comparison, the significant economic, political and military power wielded by the UK-based East India Company in India: Dalrymple, W, The Anarchy: The Rise and Fall of the East India Company (Bloomsbury 2019)Google Scholar.

37 Drooglever, P, Een daad van vrije keuze [An Act of Free Choice: Decolonization and the Right to Self-Determination in West Papua] (Boom 2009) 35Google Scholar: ‘[g]overnment interference [in West New Guinea] was minimal and incomparable with the intensity with which it was carried out on Java and most of the other parts of the Indonesian archipelago’.

38 E Brundige et al., ‘Indonesian Human Rights Abuses in West Papua: Application of the Law of Genocide to the History of Indonesian Control.’ (Yale 2004) 12. See <https://law.yale.edu/sites/default/files/documents/pdf/Intellectual_Life/West_Papua_final_report.pdf>.

39 Emphasis added.

40 See Drooglever (n 37).

41 This argument by the Indonesia government is continuing even after the Chagos Opinion, as seen in, for example, the tweet by the Indonesian Ambassador to Canada, 12:05pm on 28 February 2019: ‘[While] Vanuatu welcomes the ICJ Advisory Opinion on the Separation of Chagos as it confirms the right of self-determination, but Vanuatu ignores that the right should be the corollary of the right to territorial integrity.’

42 See US Office of the Historian in its summary of US Foreign Relations, 1961–63, Vol XXIII, Southeast Asia: ‘Determined not to lose Indonesia to Communist influence, White Houses officials overcame Secretary of State Rusk's skepticism of Sukarno and Rusk's attachment to the Netherlands, a NATO ally. They shifted U.S. policy from neutrality in the dispute toward pressure on the Netherlands to relinquish West New Guinea to Indonesia.’

43 Agreement between the Republic of Indonesia and the Kingdom of the Netherlands Concerning West New Guinea (West Irian) (15 August 1962) 437 UNTS 273.

44 Note that those who could vote could not be ‘foreign nationals’, which would automatically have excluded Indonesians. This was probably to prevent population transfer occurring to interfere with the vote, on which see C Drew, ‘Self-determination, Population Transfer and the Middle East Peace Accords’ in S Bowen (ed), Human Rights, Self-Determination and Political Change in the Palestinian Occupied Territories (Martinus Nijhoff 1997) 119.

45 General Assembly Resolution 1752 (XVII) ‘Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian)’ (A/RES/1752 (XVII) of 21 September 1962), in which the General Assembly ‘takes note’ of the Agreement between the Netherlands and Indonesia.

46 The New York Agreement states in Article XVIII that one of its aims is ‘to give the people of the territory the opportunity to exercise freedom of choice’, which would be based on ‘(d) the eligibility of all adults, male and female, not foreign nationals to participate in the act of self-determination to be carried out in accordance with international practice’.

47 Cassese (n 15) 76–9.

48 For a more detailed summary of the situation, see M Janki, ‘West Papua and the Right to Self-Determination under International Law’ 34 West Indian Law Journal (2010) 17.

49 As Drooglever explains (n 37) 758: ‘[i]n the opinion of Western observers and the Papuans who have spoken out about this, the Act of Free Choice ended up as a sham, where a press-ganged electorate acting under a great deal of pressure appeared to have unanimously declared itself in favour of Indonesia’.

50 See Report by the Representative of the Secretary-General in West Irian, submitted under art XXI, para 1, of the Agreement between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West Irian) (6 November 1969), especially at para 195: Official Records of the General Assembly, Twenty-fourth Session, Annexes, agenda item 98, document A/7723 and Corr.1.

51 General Assembly Resolution 2504 of 1969 acknowledged that the vote took place and that the results were recognised by both Indonesia and the Netherlands. However, it merely ‘takes note’ of the report of the Secretary General.

52 See the statements made by States at the Pacific Islands Forum in 2019: <https://www.rnz.co.nz/international/pacific-news/395480/pacific-forum-to-keep-on-west-papua-case>; and see also the Free West Papua campaign: <https://www.freewestpapua.org/>.

53 Chagos Opinion (n 3) para 150.

54 See <https://www.theguardian.com/world/2019/aug/12/indonesia-angered-as-west-papua-independence-raises-its-head-at-pacific-forum>.

55 See Drooglever (n 37) 111–13, who notes that one of the founding fathers of Indonesia, Mohammed Hatta had a preference ‘to preferably allow for someone else to take care of Western New Guinea [and] firmly believed that the Papuans had the right to determine their own fate’.

56 See, for example, the types of actions referred to in General Assembly Resolution 1541, passed the day after Resolution 1514, providing examples of the means of exercise of the right to self-determination. This Resolution is referred to by the ICJ in the Chagos Opinion at para 156. This inclusion of integration as part of para 6 of 1514 was accepted by the UK in its Written Comments para 4.48, which is quoted above.

57 This position directly contradicts the US claim in its Written Statement (at para 4.71) that West Papua was an example of not having a referendum. Rather, there was meant to be a lawful free and fair referendum of universal suffrage but that did not occur for the reasons stated above.

58 See, for example, the UK Written Comments, para 8.22: ‘What matters is the process should be based on [an] informed, free and voluntary choice by the peoples concerned.’

59 General Assembly Resolution 1541 (XV) ‘Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter’ (A/RES/1541 (XV) of 15 December 1960), Principle IX (emphasis added). See also Principle VII which requires that free association ‘should be the result of a free and voluntary choice … expressed through informed and democratic processes.’

60 Western Sahara Opinion, para 59.

61 Chagos Opinion (n 3) para 172.

62 ibid, para 180.

63 Two such examples might be Tibet and Crimea. In relation to the former, by Resolution 1723 of 20 December 1961 the General Assembly ‘solemnly renews its call [on the Peoples Republic of China] for the cessation of practices which deprive the Tibetan people of their fundamental human rights and freedoms including the right to self-determination’, and see M van Walt van Praag, The Status of Tibet: History, Rights and Prospects in International Law (Cambridge University Press 1987). In relation to the latter, see General Assembly Resolution 68/262 of 27 March 2014 and F Raimondo, ‘The Right of Peoples to Self-Determination Revisited: Did Crimea Have the Right to Secede from the Ukraine?’ in P Acconci et al. (eds), International Law and the Protection of Humanity: Essays in Honor of Judge Flavia Lattanzi (Brill Publishing 2014).