Decolonisation: Deliberately Disrupted?

Written by: Colette Watt

The UN General Assembly has requested an Advisory Opinion from the International Court of Justice on behalf of Mauritius regarding the UK’s purchase of the Chagos Islands in 1965.

The questions which Resolution 71/292 asks the ICJ to address in its advisory opinion are:

Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;

What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?

Separation of the Chagos Islands

The Chagos Islands are an archipelago of 60 islands in the Indian Ocean, about halfway in between India and Africa, which makes up the British Indian Ocean Territory (BIOT). The islands were ceded to Great Britain from France as part of the Treaty of Paris in 1814 but they were governed as part of the colony of Mauritius1.After the Second World War the British Empire disintegrated as former colonies exercised their right to self-determination and became newly independent States. Brown notes that between 1945 and 1965 the number of people under British rule extra-territorially fell from 700 million to 5 million2.

In 1965 there was a Constitutional Conference at Lancaster House regarding the independence of Mauritius. At this Conference it was agreed that the Chagos Islands would detach from Mauritius and remain under British control, and that the Chagossian people would evacuate to Mauritius in return for payment of £3 million. It is clear that “there was no process of consultation with the islanders and no part of the Chagos Islands was included within any constituency of the Mauritius Legislative Assembly”3. The separation of the Chagos was done by Order in Council (known as the BIOT Order) under the Colonial Boundaries Act 1895). The 1965 BIOT Order created the Commissioner of the BIOT who was required to “make laws for the peace, order and good government of the territory”4. In 1971 the Commissioner made the Immigration Ordinance of 1971 which required s4(1) of which stated that “no person shall enter the territory or, being in the territory, shall be present or remain in the territory, unless he is in possession of a permit”5. By 1973, all the people of the Chagos Islands (around 1500)6 had been expelled and, to this day, have not been able to return home. An integral reason that the UK wished to have BIOT was due to its strategic military importance and, before 1965, they had promised it to the United States as a location for a new military base7. However, the UK has promised to hand over the BIOT when it is no longer required for defence purposes8.

The Bancoult Cases

The legality of the expulsion of Chagos people has been challenged in the UK domestic courts in a series of cases brought by Olivier Bancoult – the leader of the Chagos Refugee Group.

The first case, brought in 2000, was only heard in the Divisional Court9. Mr Bancoult succeeded in his claim for judicial review and the 1971 Order was quashed under the head of irrationality (Wednesburyunreasonableness). Laws LJ explained that the wording of the Commissioner’s powers to “make laws for the peace, order and good government of the territory” meant that the people are “to be governed not removed”10 and Gibbs LJ echoed this. Neither judge addressed the issue of the motivation behind the order in depth, although Laws LJ said it was “ancillary and not objectionable”11. This first case did not progress any further as the then Foreign Secretary under the Labour government, Robin Cook, accepted the ruling and the BIOT Immigration Ordinance 2000 was enacted. This permitted the Chagossians to return to the islands – with the exception of Diego Garcia12.

However, in June 2004 two new Orders in Council were made under the Royal Prerogative: the BIOT Constitution Order and the BIOT Immigration Order13. The effect of this was to reverse the Court’s decision and prevent the Chagossian people from returning home. The subsequent domestic Court case to quash these Orders reached the House of Lords in 2008, and in a highly controversial decision, overturning the decisions of the Divisional Court and Court of Appeal, the Orders were found to be lawful by a 3/2 majority. The majority found that the Foreign Secretary’s statement was not sufficiently unambiguous enough to provide legitimate expectations and that for national security reasons it was improper of the Court to intervene. This  judgement was appealed and heard in the Supreme Court in 2016. The Supreme Court has the jurisdiction to correct any injustice caused by unfair procedure of itself or the House of Lords, yet the decision was upheld by a 3:2 majority14.

This was not the end of the Bancoult cases. In 2010 the UK established a Marine Protection Area (MPA) around the Chagos Islands that prevented fishing. Documents leaked into the public sphere by Wikileaks indicated that this was done with the deliberate intention of preventing the Chagossian people from resettlement15. In Bancoult (No.3)the appellant (Mr Bancoult) argued that the motive behind creating the MPA was improper and that proper procedure had not been followed. The case was heard in the Supreme Court in February 2018 and the appeal dismissed16.

These cases are important to understanding the background of the international Advisory Opinion. Mr Bancoult put forth a number of arguments based in international law which the Court decided not to address17. But these cases were focussed on the rights of the Chagossian people themselves, rather than the relationship between States at an international level. Moreover, it would seem that at a domestic level, attempts to hold the UK accountable for the treatment of the Chagossian people and Mauritius have been exhausted. Furthermore, it has provided a means of investigating the process of cessation from an international perspective. The Chagossian people would have struggled to bring an international case due to lack of standing because they have never been an independent State per se; they have always been a part of Mauritius as a colony or the BIOT. Nauvel noted that Mauritius was “the only State that fits the bill” to bring such a case to the International Court of Justice18. And this is what has happened.

The Advisory Opinion and International Law Issues

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 194619. In this case the General Assembly adopted the Resolution seeking the Advisory Opinion with 94 votes in favour, 15 against and 65 abstentions. Under Article 96(1) of UN Charter: “The General Assembly…may request the International Court of Justice to give an advisory opinion on any legal question”20The complementary provision in the Statute of the ICJ states that: “The Court may give an advisory opinion on any legal question” at the request of an authorised body or in accordance with the UN Charter”21. Alan Duncan (Minister of State at the Foreign Office), believes that this is an “inappropriate use of the ICJ advisory mechanism”22. But as the ICJ has made it clear, “…no state…can prevent the giving of an Advisory Opinion which the United Nation considered to be desirable in order to obtain enlightenment as to the course of action it should undertake”23.

The Advisory Opinions of the ICJ are not binding and are brought where one of the States in question does not consent to the Court making a decision on the matter. However, Bekker has argued that non-binding Advisory Opinions are not without legal effect, as they derive their “ status and authority from the fact that [they are]s the official pronouncements of the principal judicial organ of the United Nations.”24 Therefore, if the outcome were to find that the cessation of the Chagos Islands and its legal consequences to be unlawful, it would likely be a trump card for Mauritius in any future negotiations.

The matter at hand

Milanovic has noted the clever wording of the Resolution. The first question deliberately avoids the word sovereignty, and instead is worded as whether “the process of decolonisation of Mauritius lawfully completed”. The second question asks after the legal consequences of arising from the UK’s continued administration of the Chagos Islands (not if they are found to have acted unlawfully under the first question25. The Advisory Opinion asks whether the UK has breached its obligations under Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res 1514 (XV) (1960) which states ‘All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

Resolution 2066 (1965)26 obligated the UK to uphold the “inalienable” rights of the Mauritius to independence and not to dismantle its territory (re-affirming Resolution 1514 (1960)). Resolution 2232 (1966) echoes Resolution 2066 but emphasises the right to self-determination and in paragraph 4 “reiterates” that the “partial or total disruption of national unity or territorial integrity” is “incompatible” with Resolution 151427.

The ICJ explained in the Kosovo Advisory Opinion that “the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation”28.So whilst the Advisory Opinion Resolution is drafted in such a way as to avoid an explicit opinion on sovereignty matters, it is difficult to see how self-determination and territorial sovereignty can be separated in this way – a decision on one fundamentally impacts the other29. The ICJ will have to apply intertemporal law and analyse the case in reference to the critical date – which may be relevant as it seems that the UK did not accept a principle of self-determination until at least the 1970s30. It is important to note that the agreement to separate the Chagos Islands was made in 1965, after Resolution 1514 was agreed to – though it must be noted that the UK originally abstained from voting on that Resolution.

Regardless of what the ICJ decision is, it will clearly have important effects for the evolution of the principle of self-determination and its place in the hierarchy of international legal norms.

 

  1. Christian Nauvel, A Return from Exile in Sight? The Chagossians and Their Struggle, 5 Northwestern Law. Journal Human Rights. 96 (2007), p98, p100

2. Brown, Judith (1998). The Twentieth Century, The Oxford History of the British Empire Volume IV. Oxford University Press, p330

3. https://publications.parliament.uk/pa/cm200708/cmselect/cmfaff/147/147we94.htm[9-10]

4. BIOT Order 1965, Article 11(1)

5. Regina (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2), [2008] UKHL 61[8]

6. Christian Nauvel, A Return from Exile in Sight? The Chagossians and Their Struggle, 5 Northwestern Law. Journal Human Rights. 96 (2007), p98

7. R. v Secretary of State for the Foreign and Commonwealth Office Ex p. Bancoult, [2001] Q.B. 1067 p15

8. Disputes over the British Indian Ocean Territory: August 2018 update, House of Commons Library, Briefing Paper, Number 6908, 22 August 2018

9. R. v Secretary of State for the Foreign and Commonwealth Office Ex p. Bancoult, [2001] Q.B. 1067

10. Ibid [1104]

11. Ibid [1105]

12. https://publications.parliament.uk/pa/cm200708/cmselect/cmfaff/memo/147/uc16302.htm[25]

13. https://publications.parliament.uk/pa/cm200607/cmselect/cmfaff/501/501we16.htm[5]

14. R. (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs, [2016] UKSC 35;

15. https://www.telegraph.co.uk/news/wikileaks-files/london-wikileaks/8305246/HMG-FLOATS-PROPOSAL-FOR-MARINE-RESERVE-COVERING-THE-CHAGOS-ARCHIPELAGO-BRITISH-INDIAN-OCEAN-TERRITORY.html

16. R (on the application of Bancoult No 3) (Appellant) v Secretary of State for Foreign and Commonwealth Affairs (Respondent) [2018] UKSC 3

17. Christian Nauvel, A Return from Exile in Sight? The Chagossians and Their Struggle, 5 Northwestern Law. Journal Human Rights. 96 (2007) p113

18. Christian Nauvel, A Return from Exile in Sight? The Chagossians and Their Struggle, 5 Northwestern Law. Journal Human Rights. 96 (2007) p123

19. https://www.theguardian.com/world/us-embassy-cables-documents/207149

20. https://treaties.un.org/doc/publication/ctc/uncharter.pdfArticle 96(1)

21. http://legal.un.org/avl/pdf/ha/sicj/icj_statute_e.pdfArticle 65(1)

22. Disputes over the British Indian Ocean Territory: August 2018 update, House of Commons Library, Briefing Paper, Number 6908, 22 August 2018

23. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, ICJ Reports 1950, p65 at p71

24. https://www.asil.org/insights/volume/8/issue/27/un-general-assembly-requests-world-court-advisory-opinion-israels[21]

25. https://www.ejiltalk.org/icj-advisory-opinion-request-on-the-chagos-islands/

26. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/2066(XX)

27. http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/2232(XXI)

28. https://www.theguardian.com/world/2018/sep/03/mauritius-takes-uk-to-court-over-chagos-islands-sovereignty

29. Kohen & Hébié, ‘Territorial conflicts and their international legal framework’

30. [Counter-Memorial of the United Kingdom, Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), 2013, para. 7.17 (Perm. Ct. Arb., 15 July)]