Andrea Trigoso | firstname.lastname@example.org
On February 25, the International Court of Justice (ICJ) issued its advisory opinion on the legal consequences of the separation of the Chagos Archipelago. The decision was not favorable to the UK, as it concluded that the process of decolonization of Mauritius was not lawfully completed when the country was granted its independence, because it was conducted in breach of the already crystallized right to self-determination.
In addition, the Court considered that as a consequence of the latter, the continuous administration by the UK of the Chagos Archipelago resulted in a wrongful act that entails International Responsibility of the State (as defined in Article 1 of the Articles on Responsibility of States for Internationally wrongful acts; and in the jurisprudence of the ICJ: Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 23; and Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 38, para.47 [A1] ). Therefore, the UK has an obligation to withdraw from the territory, and all States must cooperate with the United Nations to complete the decolonization of Mauritius.
This decision has uttermost importance because the ICJ adopted a Human Rights approach and considered that the human rights of the Chagossian people outweighed any other argument mainly or primarily based on Public International Law, which becomes obvious in the three fundamental points discussed below.
- Decolonization vs. Lack of Jurisdiction
The UK submitted that the ICJ lacked jurisdiction in the matter. It argued that the case was about a bilateral dispute entailing questions of sovereignty over a territory, which could only be resolved under the contentious jurisdiction of the Court that requires the consent of both States. Hence, for the UK, the Court should exercise its discretion to decline the request for an advisory opinion.
The Court dismissed this request on the grounds that the questions sent by the General Assembly were within the framework of the process of decolonization and outside the scope of sovereignty and a bilateral dispute.
Nevertheless, the submission of the UK could have been plausible in case the ICJ had not wanted to rule on the matter. The Court analyzed similar situations before and considered that the exercise of its discretion to decline the request was the adequate solution. This consideration is clear in the Advisory Opinion on the Western Sahara, where the Court held that it should not answer a request for an advisory opinion where “to give reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent”.
In this case, although the question was carefully worded by the United Nations General Assembly to avoid any explicit reference to sovereignty, based on the history of the case, it is evident that at the heart of the matter lied a bilateral dispute on the sovereignty of the Chagos Archipelago.
By dismissing the UK’s request and accepting jurisdiction, the Court deliberately prioritized the issue of decolonization (and the right to self-determination as a human right) over an argument built solely on Public International Law. The Court took the opportunity to make a ruling that may finish the dispute in favor of those whose human rights have been violated ever since Mauritius’ independence.
- The right to self-determination vs. the consolidation of a customary rule
As for the question about whether the process of decolonization was lawfully completed having regard to international law, it was necessary to determine whether the right to self-determination existed by the time of the detachment of the Chagos Archipelago from Mauritius (1965-1968) and if it included an associated right to the territorial integrity of a non-self-governing territory prior to independence.
The ICJ stated that although the Resolution 1514(XV) was a recommendation, it had a declaratory character with regard to the right to self-determination as a customary norm in view of its content and conditions of its adoption. None of the States contested the existence of the right, and some justified their abstention on the time required for the implementation of such a right.
Furthermore, the Court held that the wording used in the resolution had a normative character that included a clause to prevent the dismemberment of non-self-governing territories based on territorial integrity.
Therefore, the ICJ considered that at the time of the detachment it was already consolidated the right to self-determination and the associated right to territorial integrity as customary law.
The Court reached this conclusion without examining the question of a persistent objector in the consolidation of the customary law of the right to self-determination brought by the UK. What is more, it did not mention at all the facts that proved the existence of a State Practice of the right to self-determination at the time of the detachment.
The lawfulness of the decolonization rested completely in the Resolution 1514(XV), and in its declaratory character of an already existent customary law, but the Court only considered for its conclusion the voting circumstances of the Resolution, which under the standard of its previous decisions, would not have satisfied the required evidence to prove the existence of a customary law.
It rather seems that the ICJ evaluated the process of decolonization of Mauritius with the current standard of human rights. Nowadays nobody would contest the right to self-determination and its ius cogens nature. Likewise, no one would accept as lawful, the forced displacement of the Chagossian people for the construction of a military base for a third party that was authorized by a former colonial power.
Although it is not expressed in the Opinion, in this decisive part of the analysis of the question, the Court decided to weigh the dignity and the human rights of the Chagossian people against the possibility of having a non-consolidated customary law of the right to self–determination in a specific time frame. In this assessment the former defeated the latter argument, assuming all the consequences it may have for other cases asserting the existence of such customary law in 1960.
- The consequences of the continuous administration by the UK of the Chagos Archipelago
The UK submitted that all the consequences were already established by previous proceedings inasmuch as the Arbitral Award of the UNCLOS, that ruled on the interpretation of the 1968 agreement, concluded inter alia that the UK was under the legal obligation to cede Chagos to Mauritius when it was no longer needed for defense purposes, and the ECHR decision recognized that the 1982 agreement led to the renunciation of claims by the very majority of the Chagossians, and thus the UK was under no obligation to resettle the Chagossians living in Mauritius.
However, the ICJ considered that the continuous administration of Chagos by the UK constituted a wrongful act of a continuing character entailing international responsibility of the State and that it was under the obligation to bring to an end the administration as rapidly as possible.
Further, the Court held that since the respect to the right of self-determination was an obligation erga omnes, all States have a legal interest in protecting that right. While it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all the States must cooperate to put those modalities into effect.
The Court also referred to the resettlement of the Chagossians. It pointed out that it was an issue related to the protection of human rights, and that it should be addressed by the General Assembly during the completion of the decolonization of Mauritius.
In this last point, the Court is more obvious in its Human Rights approach. It disregarded any reference to the Arbitral Award, even to dismiss any possible overlapping matter in the case. Besides, while it did not refer to the decision of the ECHR on the resettlement of the Chagossians, it acknowledged it was an unclosed matter requiring the intervention of General Assembly to protect the human rights of the displaced Chagossians.
- Final Notes
The determination of International State Responsibility of the UK is a strong statement to the international community in the protection and defense of human rights because it seeks to amend the violation of the human right to self-determination and to protect the Chagossian people against the forced displacement to which they were subjected decades ago.
To the contrary of what the UK expected, its initial apologies to the Chagossian victims were not enough to convince the Court that it was not a human rights-related issue. It rather drew more attention to the human dimension of the proceedings, that resulted in a decision against the UK’s interests.
Furthermore, this Advisory Opinion is significant because it deviates from the Court’s traditional approach to International Law, by disregarding the defense and security interests to which the UK resorted in order to keep the administration of the Archipelago (where currently a US military base operates). The Court deliberately favors Human Rights over any other argument.
Finally, although it was an Advisory Opinion with no binding effects, the UN General Assembly adopted a resolution on 22 May 2019welcoming it and demanding the UK to withdraw unconditionally its colonial administration within six months. This certainly adds some pressure on the UK, because even if there is no underlying legal obligation from the UNGA resolution, it may have a political impact in its foreign affairs policy (and in its decisions in the Security Council). The resolution also urges the UK to submit a formal answer to the UN General Assembly about how it will proceed on this matter. This may expose the UK to public condemnation from the international community that may eventually find a formula to enforce the withdrawal.
As expected, the UK has been reluctant to comply with it, albeit no final answer has been yet submitted to the General Assembly. However, it is very promising for the cause of human rights to see the ICJ and the UN General Assembly acting together to put an end to human rights violations.
Andrea Trigoso is a Peruvian qualified lawyer. She currently works as a civil attaché at the Embassy of Peru in the Netherlands, and she is in charge of the matters related to the International Court of Justice. She has previous experience on International Criminal Law in the ICC, STL and as a campaign manager of the Peruvian ICC judge in the 2017 elections. Twitter: @andreatrigoso