The Chagos Island Case at the International Court of Justice

Nathan Hew

INTRODUCTION

“The right to self-determination is not a ‘heritage’ issue. This is not Africa in the late 19th or early 20th century. This is September 2018.”[1]

The right to self-determination and territorial integrity is fundamental following the Charter of the United Nations (UN Charter).[2] However, the separation of Chagos Archipelago in 1965 has threatened the territorial integrity of the Republic of Mauritius. This had a lasting impact on a generation left unknown – the Chagossians. Till today, their lives are still impacted by the effects of incomplete decolonization.[3]

This article concerns the question of national sovereignty and international legal order in relation to the self-determination and territorial integrity of Mauritius. The discussion will be in light of the United Kingdom’s (UK) sovereignty over the Chagos Island. [4] This paper will conclude with recommended actions towards the international community and parties involved in this case.

THE SEPERATION OF CHAGOS ARCHIPELAGO

Figure 1: The Indian Ocean, Laura Jeffery, Chagos Islanders in Mauritius and the UK: Forced Displacement and Onward Migration 2011.

The separation of Chagos Archipelago from Mauritius in 1965 has brought a major impact on international law. It reshaped the legitimacy of international legal order in securing the rules of decolonization. In this case, it concerns the UK as an Administrative Power to Mauritius and its dependencies.

UK acquired Chagos Archipelago and Mauritius from the French after signing the Treaty of Paris in 1814.[5] Within the archipelago lies its largest island – Diego Garcia. During the peak of the Cold War in the 1960s, United States (US) in searching for an Indian Ocean logistics base[6] found that the island’s strategic and remote location was key in securing its military interest in the Indian Ocean.[7]

Following a series of negotiations between US and UK, the evictions of Chagossians from Chagos Archipelago were initiated. Firstly, the depopulation of Chagos Archipelago started with the formation of a British Ocean Indian Territory (BIOT) in 1965 by an Order in Council through a Royal Prerogative.[8] Here, an Order in Council indicates the exercise of power by the Monarch to make laws.[9]

Along with the formation of BIOT, UK and US signed a bilateral agreement entitled ‘Availability for Defence Purposes of the British Indian Ocean Territory’.[10] It facilitated the continuous establishment of a US military base in Diego Garcia for ‘the defense purposes of both Governments as they may arise’.[11]

In 1968, Mauritius became independent following the terms negotiated with UK in 1965.[12] These terms crystalized in the discussions at Lancaster House where UK submits that it showed express consent by Mauritius to the terms of their agreement.[13] This includes the eviction of Chagossians for the implementation of a military base in Diego Garcia until it no longer needs to hold it for such purpose.[14]

As such, state sovereignty has persistently resisted applications of the international legal system post-1968. Evidently, continuous amendments to UK’s bilateral agreement with the US[15] and renewal of the BIOT Order in 2004 [16] substantiates this point.

In 2017, Mauritius requested the International Court of Justice (ICJ) to provide an advisory opinion on this matter.[17] Clearly, it is important for an international organ to provide the correct interpretation or at least an ideal one in drawing the boundaries between national sovereignty and the international legal system.

NATIONAL SOVEREIGNTY AND INTERNATIONAL LEGAL ORDER: A FLUX

The separation of Chagos from Mauritius in 1965 can be viewed from different perspectives. Following international law, it undermined the Mauritians and Chagossians' right to self-determination[18] and Mauritius’s territorial integrity[19] as per the UN Charter. The Charter itself arguably is a fundamental treaty that embodies the spirit of the United Nations.

Mauritius asserts that the separation breaches Paragraph 5 and 6 of the United Nations General Assembly Resolution 1514[20] which governs the transfer of power from an Administrative Power to their colonies.[21] Here, it is the transfer of power from UK to Mauritius. Mauritius argues that the Lancester House Agreement was not made in line with the free and genuine will of Mauritians and Chagossians as they were not properly consulted.[22] The separation also threatened the territorial integrity of Mauritius which it argues to be a single entity with Chagos Archipelago.[23]

On the other hand, UK relies heavily on its domestic legal system and state power to justify the eviction in 1965. Currently, Since these laws acquire power from royal prerogatives, it does not require parliamentary approval which allows for full discretion to be vested in the Crown’s hands.[24]

Furthermore, UK does not have a written Constitution.[25] It practices Parliamentary Supremacy[26] and royal prerogative measures signify a pinnacle in state sovereignty. Even though the UN Charter governs equality amongst States[27] , the Charter also prevents the United Nations from intervening in a domestic jurisdiction within a State[28]. Hence, this again allows for the UK to rely on their domestic legal system, quoting the House of Lords ruling in 2008 that prioritized UK’s national interest over the interest of Chagossians to return home.[29]

The UK-US Bilateral Agreement for Defensives Purposes and Lancester House Agreement also shows a sense of voluntariness between States[30] to be bound by terms in these agreements which creates legal obligations. In international law, a signature would suffice for the purpose of consent.[31] Evidently, it can be argued that the Mauritius Independence Act 1968 and renewal of US’s lease in Diego Garcia until 2036[32] illustrates consent between these States and a flow of legal obligations.

Moreover, Resolution 1514 is a soft law declaration. The legal obligation imposed on Administrative Powers in Resolution 1514 comes from the modification of customary international law through State Practice and opinio juris.[33] Although Mauritius argues that the right to self-determination existed prior to 1965 through State Practice[34], the problem is that State Practice is subjective towards the State. Notably, UK rejects this resolution as it abstained from voting for Resolution 1514, thus arguing for a lack of State Practice.[35]

Following this case, we see that international realism and liberal institutionalism are two distinctive conflicting ideas. International realists believe that States will only adhere to international law when it favors them.[36] In this case, it is UK’s persistence on relying on state sovereignty to resist the international legal system. Liberal institutionalism believes that international law serves as a tool of accountability[37] – in which Mauritius is relying on Resolution 1514 to hold UK accountable for their actions in 1965.

RECOMMENDED ACTIONS

Considering the issues in contention involves two of the major players in the international community – US and UK, there are a few courses of action which can be taken.

Firstly, the International Community should apply pressure on the US and UK to follow the ICJ’s advisory opinion. An advisory opinion has no legally binding effect.[38] However, an opinion by the highest international judicial organ in the United Nations can clarify the application of international and national law in this scenario. Here, a decision favoring Mauritius may strengthen its negotiations with the UK as it places international pressure over their status quo on Chagos Archipelago.[39]

A failure to act in accordance with the ICJ’s advisory opinion may deter UK’s relationship with Mauritius and perpetuate a wrong example for the international community to follow. However, it is more likely that the UK will want to prioritize their relationship with US in securing their military interest considering the renewal of Diego Garcia’s lease until 2036.[40]

Secondly, let us take a look at the possibility of a partial demilitarization of Diego Garcia. Arguably, this is a more favorable option as it a compromise that secures the UK’s national interest and the interest of Chagossians. The UK may enact a royal prerogative which allows for the relocation of Chagossians to the borders of Diego Garcia that are unoccupied with military presence.

Evidently, the island of Chagos is only to be held when there is a need for a defensive purpose.[41] It is possible that not all parts of the island is required for such purpose. The 24th Commonwealth Heads of Government Meeting at Mauritius in 2015 saw talks that initiated negotiations for partial demilitarization on the outer parts of Chagos Archipelago.[42]

Lastly, Mauritius should display its commitment to facilitate the resettlement process of Chagossians into Chagos Archipelago. So far, we can see that Mauritius continuously asserts that its right to self-determination and territorial integrity has been threatened under Resolution 1514. However, it is submitted that this may be a matter of self-interest as the fight for the return of Chagossians to Chagos Archipelago can be a cover-up to pursue revenues from leasing Diego Garcia to the US.[43]

ICJ ADVISORY OPINION IN 2019

In February 2019, the ICJ has made it clear that the separation of islands in 1965 contravened international law. As such, the Court urged the UK to end “its administration of the Chagos Islands as rapidly as possible”. [44] Although this is an important step in the resettlement process, a court judgement must be enforced. At best, the advisory opinion clarifies the position of international law in this case.

However, the opinion does clarify the legality of the separation of the islands. It also notes that detachment was not based on a 'free and genuine expression of the will of the people concerned'. [45] They were referring to the Chagossians and Mauritians. In essence, the Chagos Islands case represents the limits of international law and dangers when international law fails to intervene in a timely manner.

__________________________________________________________________________________

[1] Owen Bowcott, ‘UK used secret threats to keep Chagos Islands, court hears’ (The Guardian, 3 Sep 2018) www.theguardian.com/world/2018/sep/03/mauritius-takes-uk-to-court-over-chagos-islands-sovereignty accessed 29 October 2018. [2] Michael M Gunter, ‘Self Determination of Territorial Integrity: The United Nations in Confusion’ (1979) 141 SAGE Publications 203, 203. [3] Benjamin Zephaniah, ‘Britain’s shameful treatment of Chagos Islander must end’ (The Guardian, 16 Jan 2018) www.theguardian.com/commentisfree/2018/jan/16/britains-shameful-treatment-chagos-islanders-must-end accessed 29 October 2018. [4] N.B. This briefing will not address the establishment of a Marine Protected Area in Chagos. [5] Laura Jeffery, Chagos Islanders in Mauritius and the UK: Forced Displacement and Onward Migration (Manchester UP, 2011) ix. [6] Andrew S. Erickson, Walter C. Ladwig III, Justin D. Mikolay, ‘Diego Garcia and the United States' Emerging Indian Ocean Strategy (2010) 6 Asian Security 214, 221. [7] Ibid. [8] ‘History’ (British Indian Ocean Territory) https://biot.gov.io/about/history/ accessed 31 October 2018. [9] Lisa Webley and Harriet Samuels, Public Law Text, Cases and Materials (OUP, 2015) 41. [10] Exchange of Notes Constituting an Agreement Concerning the Availability for Defence Purposes of The British Indian Ocean Territory (UK-US) (30 December 1966) 603 UNTS 273. [11] Ibid. [12] Miriam Bak McKenna, ‘Chagos: Mauritius challenges British colonialism in a case with major implications’ (The Guardian, 16 Sep 2018) https://theconversation.com/chagos-mauritius-challenges-british-colonialism-in-a-case-with-major-implications-102680 accessed 31 October 2018. [13] Ibid. [14] Ibid.

[15] Peter H Sand, ‘The Chagos Archipelago Cases: Nature Conservation Between Human Rights and Power Politics’ (2013) 1 The Global Community Yearbook of International Law and Jurisprudence 125, 126. [16] British Indian Ocean Territory Constitution Order 2004. [17] The Charter of the United Nations (entered into force 24 October 1945), Article 96. (UN Charter) [18] Ibid, Article 1(2). [19] UN Charter, Article 2(4). [20] Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 Dec 1960) (adopted by 89 votes to none; 9 abstentions). [21] Ibid, Preamble. [22] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) 2018 https://www.icj-cij.org/files/case-related/169/169-20180117-ORD-00-01-EN.pdf accessed 4 November 2018 [136]. [23] Ibid, [41]. [24] ‘BIOT Laws – The Ordinances’(BIOT Government) https://sites.google.com/site/biotgovernment/biot-government-royal-prerogative-orders-in-council/laws-of-the-biot accessed 7 November 2018. [25] Lisa Webley and Harriet Samuels, Public Law Text, Cases and Materials (OUP, 2015) 52. [26] Ibid, 186. [27] UN Charter, Article 2(1). [28] Ibid, Article 2(7). [29] Laura Jeffery, Chagos Islanders in Mauritius and the UK: Forced Displacement and Onward Migration (Manchester UP, 2011) 130. [30] Martin Dixon, Textbook on International Law (OUP 2013) 28. [31] Ibid. [32] Owen Bowcott, ‘Chagos islanders cannot return home, UK Foreign Office confirms’ (The Guardian, 16 Nov 2016) www.theguardian.com/world/2016/nov/16/chagos-islanders-cannot-return-home-uk-foreign-office-confirms accessed 4 November 2018. [33] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) 2018 https://www.icj-cij.org/files/case-related/169/169-20180117-ORD-00-01-EN.pdf accessed 4 November 2018 [96]. [34] Ibid, [96-97]. [35] Ibid, [98]. [36] Jan Klabbers, International Law (CUP 2017) 16.

[37] Ibid. [38] Miriam Bak McKenna, ‘Chagos: Mauritius challenges British colonialism in a case with major implications’ (The Guardian, 16 Sep 2018) https://theconversation.com/chagos-mauritius-challenges-british-colonialism-in-a-case-with-major-implications-102680 accessed 6 November 2018. [39] Ibid. [40] Henry Mance, ‘Extended US lease blocks Chagossians return home’ (Financial Times, 16 Nov 2016) https://www.ft.com/content/abbc879a-ac1d-11e6-ba7d-76378e4fef24 accessed 6 November 2018. [41] Exchange of Notes Constituting an Agreement Concerning the Availability for Defence Purposes of The British Indian Ocean Territory (UK-US) (30 December 1966) 603 UNTS 273. [42] Peter H Sand, ‘The Chagos Archipelago Cases: Nature Conservation Between Human Rights and Power Politics’ (2013) 1 The Global Community Yearbook of International Law and Jurisprudence 125, 149. [43] Oumar Ba and Kelly-Jo Bluen, ‘The Chagos Islands: Colonialism on trial at the ICJ’ (Al Jazeera, 12 Sept 2018) https://www.aljazeera.com/indepth/opinion/180912074522547.html accessed 6 November 2018.

[44] 'Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 - Advisory Opinion' 25 Feb 2019 https://www.icj-cij.org/en/case/169

[45] 'Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 - Advisory Opinion' 25 Feb 2019, Para 172.