On 25th February, 2019 the International Court of Justice in an overwhelming majority of 12 to 1, held in its advisory capacity that the United Kingdom shall cease its administration over the Chagos archipelago, and return the island back to Mauritius, which it was part of before.
To state the facts in brief, the Chagos Archipelago is a group of islands off the coast of Mauritius, and was considered as the territorial extension of the State of Mauritius. The British administered the territory of Mauritius and by extension administered the Chagos Archipelago, from 1814 to 1965 . In the February of 1964, the UK entered into talks to the US regarding the proposal by US to use certain British-owned territories in the Indian Ocean, which included the Chagos archipelago. As such, the UK entered into concurrent talks with the premier of (still colonised) Mauritius, where an agreement ( ‘Lancaster Agreement’) was reached to separate the Chagos Archipelago from Mauritius, And be made part of what was to be called the ‘British Indian Ocean Territory’ (BIOT).
The talks between the US and the UK resulted in the 1966 agreement on ‘Availability for defence purposes of the British Indian ocean Territory’. In pursuance of this agreement, the entire native population of Chagos was forcibly removed and prevented from returning to the island. Mauritius would gain Independence in the March of 1968 and in their constitution, which was effectively promulgated by the UK Government, it was explicitly stated that Mauritius territory would constitute ‘territory which immediately before 12th March, 1968 constituted the territory of Mauritius’. The Chagos Archipelago was excluded from this definition.
It is the contention of the state of Mauritius that the Archipelago had been severed from in a manner most unjust whereas the UK contend that the letter of the law has been followed in all their actions. This dispute reached the United nations, which referred it further to the ICJ for their advisory opinion.
The issue of jurisdiction
Before it could tackle the substantive questions involved, it was necessary to first establish whether the ICJ had discretion and jurisdiction to even hear the dispute.
On a cursory reading of both Article 65 of the ICJ and Article 96 of the UN Charter it can be seen that the jurisdiction of the Advisory Court is dependent on the prevalence of a ‘legal question’ to be present in the dispute.
The substantive question framed by the GA, which form an intrinsic part of this legal dispute and is to be answered on merits, were (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? (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 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. The Court held that the questions being put forward are in the nature of deciding the legal rights and obligations of both the UK and the Mauritius. As such, the dispute definitely involves legal questions of important nature.
Under the advisory court mechanism, establishment of jurisdiction alone isn’t enough. It is still to be seen whether the Court should exercise its discretion to look into a dispute. The general practice has been to always exercise such discretion, except in cases where there are ‘compelling reasons’ not to. The major argument for the existence of a compelling reason was that the dispute was a bilateral dispute over the question of sovereignty, and with consent not submitted by both the parties to the court, proceeding with the trial shall end up subverting of the most fundamental principles of bilateral dispute solving mechanism.
The court rebutted this contention by stating that since the advisory opinion is to be submitted to the General Assembly alone, and it is for the General Assembly alone to decide the relevance of the advisory opinion, due consideration would be to the questions framed by the GA and nothing else. The questions put forward were with regards to decolonisation of Mauritius, and hence the Advisory Court shall answer in the parameters of those alone, with no regards to any questions on sovereignty.
The substantive questions
Moving on to the aforementioned substantive questions raised, the Court held that the question of decolonisation can only be answered in the ‘right to self-determination’. Citing the important role the UN plays in promoting the right of Self-determination , the court stated that during the relevant time period of Mauritius gaining Independence, the Right to self-determination was well embellished as a customary law. The court recognised that the right to territorial integrity is an important corollary of the right of self-determination. Any detachment by an administering power shall be considered to be unlawful unless based on the freely expressed and genuine will of the people of the territory concerned. Additionally, In the court’s view an agreement per se can’t be rightfully called an ‘international’ agreement if the parties involved aren’t sovereign in the first place, as was the case with Mauritius which was under British administration at the time of inception of the contentious Lancaster Agreement.
As such, the Court gave its final opinion that the detachment of Chagos to create BIOT is unlawful, and stated that Chagos be returned back to Mauritius. The court signed off by stating that the actual procedural nuances involved in such reinstatement is something which all Member States have to ponder over together. The right to self-determination is a right every Member State has some interest in, and hence co-operation is extremely necessary.
It has been argued by some, not without good reason, that the advisory opinion has an immense diplomatic setback for the UK. Even though an advisory opinion is not binding on the GA in any manner, the unambiguous rejection of each and every argument put forward by the UK puts them on a fairly embarrassing position. There sure are some legitimate questions on the findings arrived at by the court, but with the overwhelming majority siding with Mauritius, it is more so likely that the GA may just give effect to the Advisory opinion. All said and done, it is disconcerting to realise that well into the 21st Century, the vestiges of imperialism and colonialism still remain standing unabashedly.