Law and International Law/Law and Politics

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965

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“A violation of the right of selfdetermination gives rise to a legitimate human rights claim by individuals and groups and triggers State responsibility to make reparation.”

Alfred de Zayas

Introduction

By the adoption of Resolution 71/292 on 22 June 2017, accordingly with Article 96 paragraph 1 of the Charter of the United Nations and Article 65 of the Statute of the International Court of Justice, the General Assembly of the United Nations requested the Court to provide an advisory opinion on two main questions that were raised by the Republic of Mauritius.[1]The two questions are; (a) was the process of decolonisation of Mauritius lawfully completed after Mauritius declaration of independence in 1968; and (b) what are the legal consequences under international law, as well as obligations reflected within it, emerge from the continued administration by the United Kingdom in the Chagos Archipelago.[2]The legal opinion written on this occasion aims to present answers concerning the questions raised by the Republic of Mauritius. A renewed emphasis on the understanding of the right of self-determination will construct a new paradigm that contributes to the answers; (a) the process of decolonisation of Mauritius was not lawfully completed in 1968; and (b) there are legal consequences that the United Kingdom has to take into account in accordance with its action of continuous occupation in the Chagos Archipelago.

The Decolonisation of Mauritius was not Lawfully Completed in 1968

When Mauritius granted its independence from the United Kingdom in 1968, Chagos Archipelago was agreed by, the UK government and the people of Mauritius, to be separated. In consequences with the agreement, Chagossian people were deported from the Chagos Archipelago to Mauritius. By separating the Chagos Archipelago from Mauritius three years before its independence, the UK has violated customary international law in relations to self-determination and decolonisation. The UK argued that the nature of the dispute in between the UK and Mauritius is a bilateral dispute.[3]This could be argued as a bilateral dispute if the separation of the Chagos Archipelago was taken into account on or after the independence of Mauritius, which would appear as a conflict in between two independent states. However, to emphasise the fact that the separation was three years before Mauritius independence, it renders the correlation between the case and decolonisation as well as self-determination that convinced by the international actors as a matter of international concerns. Regardless, even if it was the dispute arose in bilateral relations between the UK and Mauritius, and it was not, it is irrelevant as a matter of law.[4]

I.   Understanding Self-determination as a Legal Concept

According to Article 1 (1) of International Covenant on Civil and Political Rights, ‘All peoples have the rights of self-determination’.[5]The notion of self-determination is legally binding since the establishment of the ICCPR as a multilateral treaty. The relevant concept of self-determination also stated in the Declaration on the Granting of Independence to Colonial Countries and Peoples, or knows as the United Nations General Assembly Resolution 1514 that was established in 1960.[6]In the proposition of the case, the main question often raised is when did the principle of self-determination turn into a legal concept?[7]One could argue that self-determination has come into existence as a general norm in the 1960s while the norm turned into a legal concept in 1970s. However, the right of self-determination is a continuing obligation since the first existence of the principle as a norm. Self-determination principle has emerged since the League of Nations[8]in which reaffirmed in the resolution 1514.[9]‘Self-determination is, and has been since 1945, an ‘elementary structuring principle of the legal world order by the UN Charter’.’[10]The UN Charter was signed and is binding to all the UN members. Therefore, there is no doubt that by 1960, at the latest, the concept of self-determination has appeared as one of the basic principles of customary international law.[11]

II.   The United Kingdom of Great Britain and Northern Ireland Violations of the right of Self-Determination and the Unlawfully Completed Decolonisation of Mauritius

The Republic of Mauritius claimed that the United Kingdom has violated the rights of self-determination of its people, including the inability of the people to exercise its will in its territory.[12]According to the representation of Vanuatu in the General Assembly, the interrelated law could be found in resolutions 1514 and 1541 of 1960, specifically on paragraph 5 of resolution 1514, where it stated that the administering powers were required to act accordingly with ‘the freely expressed will of the people within colonial territories’.[13]The UK confirms the existence of the resolution 1514 on its written comments to the International Court of Justice in May 2018.[14]In contrary, instead of operating corresponding to the resolution, the UK executed its mandate without giving the opportunity to the people of Mauritius to assert their wishes regarding the separation of the Chagos Archipelago.[15]

The UK main argument to the accusation was that the separation of the Chagos Archipelago, granted consent from the Mauritius government on the agreement of 22 September 1965 and its confirmation on 5 November 1965.[16]However, the question raised within this agreement is, whether or not the Mauritius government has other choices, as it was claimed by Mauritius that based on the contemporary records, there was no other choice given to the Mauritian Ministers, other than to hand over the Chagos Archipelago to the British.[17]Presumably, what is crucial to be seen is the fact that the separation of Chagos Archipelago was taken into account three years before Mauritius gain its independence in 1968. If the UK argued that the agreement was not a part of decolonisation, the argument could be undermined by the fact that the agreement on the separation of the Chagos Archipelago was not between two independent states, instead, it was between the imperialist and its colony. This fact, therefore, strengthens the argument that the process of decolonisation of Mauritius was not lawfully completed. As Thailand representative in the General Assembly argued, the treaty and agreement that was made in between the UK and Mauritius at the time was the product of unequal relationships between the two parties and therefore, the agreement that was made was unequal and ‘was a condition for the colony to be granted independence’.[18]

Nevertheless, the UK insisted that it has not violated the right of self-determination of the people of Mauritius. The UK believed that any action that was taken into account before the covenants were adopted on 16 December 1966, did not violate the treaty.[19]The UK also argued that the right of self-determination was agreed and adopted only after 24 October 1970 through the Friendly Relations Declaration.[20]Hence the separation of the Chagos Archipelago from Mauritius in 1965, has not violated any agreement. However, to emphasise what has been discussed, the right of self-determination is a continuing obligation and has been the principle of the legal world order from the establishment of the UN Charter.[21]In fact, even if the UK argued it has not become legally binding before the 1970s, the action of the separation was still ongoing until the 1970s, where most Chagossian origins were deported in between 1971 to 1973.[22]This, therefore, questions the awareness of the UK government on the principle written in the treaty when deported the Chagossians people from the islands.

Furthermore, the UK has pointed out that the right of self-determination is related to the political, economic, and social of the people but does not necessarily include territory.[23]On the other hand, it also stated that territory is an important part of self-determination and acknowledge the fact that territory is crucial to exercise the people right of self-determination.[24]Within its own statement, the UK seems to be conflicted in deciding to what extent territory is important to determine the right of self-determination. A territory is an important part of self-determination[25]without territory, the people would not be able to exercise its political, economic and social activity. This statement is supported by paragraph 6 of resolution 1514 (XV) written that ‘any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’.[26]Hence, the UK argument on self-determination does not include territory is frail.

Nonetheless, to strengthen its claim on territory dispute, the UK argued that ‘Chagos Archipelago was not treated as an integral part of Mauritius’[27]and claimed that Chagos Archipelago was not part of Mauritius territory as a colony.[28]Meanwhile, Mauritius argued that in practice as well as in law, the Chagos Archipelago has always been an integral part of Mauritius.[29]It could be argued that if the UK believed the Chagos Archipelago is not an integral part of Mauritius, hence, the consent that the UK government sought was supposed to be with the people of Chagos, and not the government of Mauritius. However, instead of seeking consent with the people of Chagos, the UK seek agreement with Mauritians government that was, at the time, conflicted and divided into two political parties, which the UK is well aware of.[30]This fact has questioned the consistency of the statement and action of the UK government that are not in line with each other.

The United Kingdom Obligations Arising from the Continued Administration in the Chagos Archipelago

The legal consequences of the internationally wrongful act are written in the International Law Commission.[31]Based on Article 29 of the ILC, the UK is obligated to give the right to self-determination to Mauritius and to terminate its wrongful acts.[32]The end of the decolonisation will be captured by the withdrawal of the colonial administration from Chagos Archipelago.[33]The Republic of Mauritius proposed the legal consequences includes in the completion of decolonisation immediately in accordance with the ICJ argument stated in Namibia Advisory Opinion.[34]Additionally, Article 31 of the ILC provides the legal responsibility of a state that has committed to internationally wrongful acts to make reparation for the injury it has caused.[35]The injury stated in the article includes both physically and mentally.[36]This article has provided basis requirement for the UK government to not just return the islands to Mauritius, but as well, to supply aid and support in returning Chagos origins to the islands and to the people of Mauritius. Mauritius believed this includes, assurance of economic well-being, access to natural resources, involvement in scientific research and to be granted permission to politically participate in certain cases.[37]The obligation of the UK wrongful acts also applies to third states and the international organisations, including the United Nations to provide assistance to the completion of the decolonisation as well as not providing support to any illegal acts present in Chagos Archipelago.[38]

Conclusion

The decolonisation of Mauritius was not lawfully completed when the independence was granted in 1968. Although the UK argued that there was a consent in between Mauritius and the UK government, the consent is, as the representative of Thailand in the General Assembly argued, ‘unequal’ as it was an agreement in between the imperialist with its colony.[39]The consequences of the separation of Chagos Archipelago has resulted in the inability of Mauritius to exercise its right of self-determination. The rights of self-determination appear in the article 1 of ICCPR[40]as well as the United Nations General Assembly Resolution 1514[41]and the notion of it, has emerged since the creation of League of Nations[42]that was indirectly emphasised in the UN Charter.[43]As a matter of fact, the norm of self-determination has emerged and accepted by the international community at least by 1960s.[44]Therefore, the separation of the Chagos Archipelago, three years before Mauritius independence, has violated the right of self-determination of the people of Mauritius. Furthermore, based on the Article 29 and 31 of the International Law Commission[45], the UK has obligations to not just return the people of Chagos to the islands but also to provide aid and support for the people of Mauritius. This responsibility also applies to third states and international organisations including the United Nations to maintain and ensure the restoration process of Chagos islands is in a proper manner.[46]


[1]Legal Consequences of the Separation of the Chagos Archipelagos from Mauritius in 1965, Request for an Advisory Opinion, <https://www.icj-cij.org/files/case-related/169/169-20170623-REQ-01-00-EN.pdf>.

[2]ibid.

[3]Legal Consequences of the Separation of the Chagos Archipelagos from Mauritius in 1965, Request for an Advisory Opinion, Written Statement of the United Kingdom of Great Britain and Northern Ireland, 11 May 2018, <https://www.icj-cij.org/files/case-related/169/169-20180514-WRI-01-00-EN.pdf>.

[4]Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Request for an Advisory Opinion, Verbatim Record 2018/26, 6 September 2018, <https://www.icj-cij.org/files/case-related/169/169-20180906-ORA-01-00-BI.pdf>.

[5]International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR).

[6]UN General Assembly, Declaration on the Granting of Independence to Colonial Countries and Peoples (adopted 14 December 1960) A/RES/1514(XV).

[7]Stephen Allen, The Chagos Islanders and International Law (Bloomsbury Publishing plc 2014).

[8]Ibid.

[9]UN General Assembly A/RES/1514(XV).

[10]Legal Consequences of the Separation of the Chagos Archipelagos from Mauritius in 1965, Request for an Advisory Opinion, Written Statement of the Republic of Cyprus, 11 May 2018, <https://www.icj-cij.org/files/case-related/169/169-20180511-WRI-01-00-EN.pdf>.

[11]Ibid.

[12]Legal Consequences of the Separation of the Chagos Archipelagos from Mauritius in 1965, Request for an Advisory Opinion, Written Statement of the Republic of Mauritius, 1 March 2018, <https://www.icj-cij.org/files/case-related/169/169-20180301-WRI-05-00-EN.pdf>.

[13]Verbatim Record 2018/26 (n 4).

[14]Written Statement of the United Kingdom of Great Britain and Northern Ireland (n 3).

[15]Written Statement of the Republic of Mauritius (n 12).

[16]Written Statement of the United Kingdom of Great Britain and Northern Ireland (n 3).

[17]Written Statement of the Republic of Mauritius (n 12).

[18]Verbatim Record 2018/26 (n 4).

[19]Written Statement of the United Kingdom of Great Britain and Northern Ireland (n 3).

[20]Written Statement of the United Kingdom of Great Britain and Northern Ireland (n 3).

[21]Written Statement of the Republic of Cyprus (n 10).

[22]Peter H. Sand, ‘Book Reviews: Stephen Allen. The Chagos Islanders and International Law’ [2015] 26(2) European Journal of International Law <https://academic.oup.com/ejil/article/26/2/573/423125>.

[23]Written Statement of the United Kingdom of Great Britain and Northern Ireland (n 3).

[24]Written Statement of the United Kingdom of Great Britain and Northern Ireland (n 3).

[25]Written Statement of the Republic of Cyprus (n 10).

[26]UN General Assembly A/RES/1514(XV).

[27]Written Statement of the United Kingdom of Great Britain and Northern Ireland (n 3).

[28]Written Statement of the Republic of Cyprus (n 10).

[29]Written Statement of the Republic of Mauritius (n 12).

[30]Written Statement of the United Kingdom of Great Britain and Northern Ireland (n 3).

[31]International Law Commission ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (2001) UN Doc A/56/10.

[32]Legal Consequences of the Separation of the Chagos Archipelagos from Mauritius in 1965, Request for an Advisory Opinion, Written Statement of the African Union, 15 May 2018, <https://www.icj-cij.org/files/case-related/169/169-20180515-WRI-01-00-EN.pdf>.

[33]Written Statement of the Republic of Mauritius (n 12).

[34]Written Statement of the Republic of Mauritius (n 12).

[35]International Law Commission, art 31.

[36]International Law Commission, art 31.

[37]Written Statement of the Republic of Mauritius (n 12).

[38]Written Statement of the Republic of Mauritius (n 12).

[39]Verbatim Record 2018/26 (n 4).

[40]International Covenant on Civil and Political Rights, art 1.

[41]UN General Assembly A/RES/1514(XV).

[42]Allen (n 7).

[43]Written Statement of the Republic of Cyprus (n 10).

[44]Written Statement of the Republic of Cyprus (n 10).

[45]International Law Commission, art 29 and art 31.

[46]Written Statement of the Republic of Mauritius (n 12).

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“There are both things in international law: the principle of territorial integrity and right to self-determination.”

Vladimir Putin

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