By Priya Pillai
Before the independence of Mauritius from Britain in 1968, the Chagos archipelago was separated as part of the “British Indian Ocean Territory” in 1965, and retained by the UK. The largest island of Diego Garcia was leased to the United States in 1966 and all inhabitants removed from the island eventually. Diego Garcia is of significant defence and strategic value, with a large US military base on the island.
On 22 June 2017, the UN General Assembly voted to request the International Court of Justice (ICJ) for an advisory opinion relating to the “Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965”. This is pursuant to Article 96 of the UN Charter which permits the General Assembly or the Security Council to request the ICJ for an opinion on “any legal matter”. A total of 94 states voted in favour of the resolution, with 15 against and 65 abstentions.
Those in favour included India, most of the African Union, and many Asian states. Those who voted against included the U.S, Japan and Australia. Abstentions included China and European Union members like France, Germany, Spain, Belgium, and the Netherlands.
India, which has a close strategic partnership with Mauritius, has recently acquired a base in the Indian Ocean island of the Seychelles.
The vote was preceded by intense diplomatic efforts and has been hailed as a victory by many states.
Before the vote in the UNGA, India’s Permanent Representative Syed Akbaruddin reiterated the Indian position against colonization, and its support for various initiatives on decolonization. Akbaruddin also recognized that the process of decolonization is unfinished.
While acknowledging concerns about security in the Indian Ocean, Akbaruddin stated, “On balance, however, it is a matter of principle for India to uphold the process of decolonization and respect for the sovereignty of nations”. India voted for the resolution.
The next step in the proceedings before the ICJ is written submissions, due on 1 March 2018 but yet to be made public. Pursuant to Article 66 of the ICJ Statute, states entitled to appear before the court and likely to be able to furnish information on the question may submit statements. Though not yet available, India has submitted a written statement in support of the claim of Mauritius, in light of its position in support of decolonization.
While there has been a history of diplomatic and legal proceedings over the question of sovereignty over the islands elsewhere, the proceedings before the ICJ are the most significant.
In the Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Mauritius challenged the establishment of a ‘Marine Protected Area’ around the Chagos islands, with the arbitral tribunal issuing its ruling in 2015. While the tribunal declined jurisdiction on certain points, it held that the UK could not unilaterally declare the waters around the Chagos archipelago protected, and that there must be meaningful consultation with Mauritius. It affirmed that undertakings by the UK in 1965 to guarantee fishing rights, and to eventually return the islands to Mauritius were legally binding obligations. The decision and the dissent opened the door to legally revisiting the manner in which the Chagos islands were separated from Mauritius in the context of decolonization, resulting in the ICJ request.
The questions posed to the ICJ by the General Assembly are two-fold:
(a) “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?”;
(b) “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 the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”.
The framing of these questions is significant.
The first question asks whether the “process” of decolonization is complete, i.e. has the U.K complied with the international obligations to complete decolonization. The references include the ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’ passed in 1960, and subsequent resolutions pertaining specifically to the status of the Chagos Islands in the context of decolonization.
The framing of this question seeks to divert the focus from a bilateral dispute over sovereignty, the main argument of the UK, to a broader concern pertaining to decolonization. The undertaking of the UK to cede sovereignty over the archipelago to Mauritius, once it is no longer needed for defence purposes, will also be subject to scrutiny.
The second question refers to the “continued administration” of the archipelago by the UK, and the impact of actions by the UK subsequent to the colonial period.
As a result, this does not restrict the court only to the question of decolonization. It also has the potential of being interpreted to assess the self-determination of the Chagos islanders, distinct from any claim of Mauritius on their behalf.
On a related note, for the first time in its history, there is no judge from the UK at the ICJ.
In an unprecedented series of events in November 2017, Judge Christopher Greenwood (UK) was in a deadlock with Judge Dalveer Bhandari (India), after six rounds of voting. Both judges were up for re-election. Greenwood was supported by the Security Council, while Bhandari was supported by the General Assembly. Apart from the GA and SC dynamics, this development may also impact the composition of the bench in this case.
Greenwood participated in a tribunal on the Chagos case, and a serving ICJ Judge James Crawford (Australia) represented Mauritius as legal counsel. Hence, the question of whether Crawford should recuse himself or not be appointed on the bench by the President of the ICJ is a relevant concern, based on interpretation of Art. 17 of the Statute of the ICJ. A judge ad hoc may be requested for appointment to the bench, by a party that does not have a judge of its nationality at the ICJ.
This applies to contentious proceedings, as well as advisory opinions which relate to a “pending legal question” between parties. Both the U.K and Mauritius would therefore be within their rights to request judges ad hoc in this case, should they so wish.
In sum, the Chagos Island case highlights important questions of decolonization, sovereignty and self-determination of peoples. While legal issues pertaining to decolonization seemingly were in the past, this case emphasizes the continuing relevance and ramifications of the colonial period.
In particular, human rights of former inhabitants of Chagos, their forcible eviction and the subsequent inability to return, shine a spotlight on the impact of colonialism and the international legal obligations of states in this regard.
While an advisory opinion of the ICJ is not binding, it has tremendous diplomatic and persuasive value. It remains to be seen how the court addresses the complex questions put to it by the General Assembly.
(The author is an international lawyer who has worked at the ICTY (UN International Criminal Tribunal for the Former Yugoslavia). She can be contacted at firstname.lastname@example.org)