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

  • Diane Marie Amann (a1)

Extract

Decolonization and its quite valid discontents lay at the center of this advisory opinion regarding the territory and populations of islands located in the Indian Ocean. Answering questions posed by the UN General Assembly, the International Court of Justice (ICJ or Court) concluded that because the Chagos Archipelago was detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom's continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. Nearly unanimous—the sole dissenter on the merits was Judge Joan E. Donoghue of the United States—the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both. It did so in a manner that implicated the ICJ's role as the judicial organ of the United Nations, in whose General Assembly and other political bodies the next episodes in the Chagos controversy seem destined to unfold.

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Copyright

References

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1 Diss. Op., Donoghue, J. Judge Peter Tomka of Slovakia agreed with Donoghue that the Court ought not to have exercised its discretion to comply with the General Assembly's request for an advisory opinion; however, he voted with the majority on all merits issues. Decl., Tomka, J.

2 Paras. 25–26. The advisory opinion began with a summary of facts, later supplemented with a second factual account (paras. 25–53, 92–131). For ease of narration, the two sections are interwoven here.

3 Paras. 32, 44, 100–12, 117–19. Official documents quoted in the advisory opinion indicate British readiness to complete the detachment without consent, as well as plans “‘to frighten’” Mauritius's leadership into acceding lest independence be denied. See paras. 103, 105–07.

4 Paras. 51, 175–76. See British Indian Ocean Territory, About, at https://biot.gov.io/about; CNIC Naval Support Facility Diego Garcia, About, at https://www.cnic.navy.mil/regions/cnrj/installations/nsf_diego_garcia/about.html.

5 Paras. 34–35 (quoting GA Res. 2232 (XXI) (Dec. 20, 1966) (citing this Declaration on Independence for Non-self-governing Territories, GA Res. 1514 (XV) (Dec. 14, 1960), which states, at paragraph 6: “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.”)).

6 Resolution of 15, 17 and 19 June 1967 issued by the Committee of Twenty-Four, quoted in para. 39; see also paras. 38, 41.

7 Paras. 48, 50; see Chagos Marine Protected Area Arbitration (Mauritius v. UK), Case No. 2011-03, Award (Mar. 18, 2015) [hereinafter Arbitral Award]. Over the years, the Chagos controversy surfaced in additional domestic and international fora besides those discussed in this report. See paras. 117–30; Diss. Op., Donoghue, J., para. 7.

8 Paras. 1, 53 (internal quotation marks omitted).

9 Para. 65 (internal quotation marks omitted).

10 Para. 67. See para. 23 (listing as participants twenty-two UN member states, plus the African Union).

11 In its 2015 award, the arbitral tribunal ruled it lacked jurisdiction to decide a Mauritian claim that it characterized as a “dispute regarding sovereignty over the Chagos Archipelago.” Arbitral Award, supra note 7, para. 221, quoted in para. 50. Members of that tribunal included Sir Christopher Greenwood, then also an ICJ judge. The United Kingdom's 2017 bid for his reelection fell short, so that no British judge sat on the bench in the instant ICJ advisory proceedings. See Christine Gray, The 2017 Judicial Activity of the International Court of Justice, 112 AJIL 254, 254 (2018).

12 Para. 85 (quoting Western Sahara, Advisory Opinion, 1975 ICJ Rep. 12, para. 33 (Oct. 16)).

13 Paras. 154–55 (quoting Article 1, common to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, GA Res. 2200A (XXI) (Dec. 16, 1966), as well as the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, annexed to GA Res. 2625 (XXV) (Oct. 24, 1970)).

14 Not surprisingly, that participant appears to have been the United Kingdom. See Public sitting held on Monday 3 September 2018, at 3 p.m., at the Peace Palace, President Yusuf presiding, on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, at 57 (arguing, in oral statement by Sir Michael Wood for the United Kingdom, that if the ICJ were to answer the Assembly's second question, it should follow the lead of the 2015 arbitral award, so that the obligation “to cede the Chagos Archipelago to Mauritius” would apply “when it is no longer needed for defence purposes”), available at https://www.icj-cij.org/files/case-related/169/169-20180903-ORA-02-00-BI.pdf.

15 Diss. Op., Donoghue, J.; see also Decl., Tomka, J., paras. 2–10 (agreeing with this argument, yet voting “aye” on the merits). Theirs were two of ten separate opinions filed.

16 Sir Alan Duncan (Minister of State for Europe and the Americas), Written Statement, Foreign and Commonwealth Office, on the British Indian Ocean Territory, HCWS1528 (Apr. 30, 2019) [hereinafter UK Statement], at https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2019-04-30/HCWS1528. To similar effect is the statement made in the UN General Assembly the following month, on behalf of the United Kingdom. See UN General Assembly, Official Records, 73d Sess., 83d Plenary Meeting, A/73/PV.83, at 9–11 (May 22, 2019) [hereinafter Official Records], at https://undocs.org/en/A/73/PV.83.

17 GA Res. 73/295, paras. 1–7 (May 22, 2019). On the vote, see Official Records, supra note 16, at 25.

18 UK Statement, supra note 16.

19 See Reservations to the Convention on Genocide, International Court of Justice, Advisory Opinion, 1951 ICJ Rep. 15 (May 28); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8); Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, 2010 ICJ Rep. 403 (July 22).

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

  • Diane Marie Amann (a1)

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