The ICJ issued yesterday an advisory opinion on «LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965 » in which it finds that the “the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence in 1968, following the separation of the Chagos Archipelago » and that « the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible».
Here are some brief comments on 1) the decision by the ICJ to exercise discretion and 2) the substance of the opinion.
In terms of the exercise of discretion to issue the advisory opinion, I must say I have sympathy for the view expressed by a number of States during the proceedings, and which can be found in the views of Judges Tomka and Donaghue, that this advisory opinion is a way to circumvent the fact that the United Kingdom and Mauritius have a bilateral territorial dispute and that the UK has not consented to having it settled in a contentious manner by the ICJ. Of course, one can regret that international law still works on the evil consent-based system, but that’s the way it is.
The main opinion tries to get around this problem by claiming that « the issues raised by request are located in the broader frame of reference of decolonization, including the General Assembly’s role therein, from which those issues are inseparable » (par. 88). However, I don’t see how this changes anything. The reality is that the Judges have found that 1) Chagos is part of Mauritius (although they don’t actually say it in explicit terms directly) (par. 174) and 2) the UK’s continued administration of the archipelago « constitutes a wrongful act entailing the international responsibility of that State » (par. 177), thereby essentially providing an « answer » to the bilateral dispute between the two States.
The rationale behind the possibility for the ICJ to decline to exercise jurisdiction to give an advisory opinion is the following: « The discretion whether or not to respond to a request for an advisory opinion exists so as to protect the integrity of the Court’s judicial function as the principal judicial organ of the United Nations » (par. 64).
I don’t see how the judicial function of the Court is not affected here. Indeed, let’s imagine that the UK were to consent to the contentious settlement of their dispute before the ICJ now. The questions raised would be exactly the same ones, and Mauritius would not be seeking to obtain different conclusions. This means that we now have 14 out of 15 judges who have expressed their opinion of the substance of the matter. How is the judicial integrity of the court not affected? It would be fun to read the motion for recusal of the whole ICJ Bench though…
On the substance, I find the opinion a little underwhelming (although my more experienced colleagues in the field will no doubt chastise me for not finding it revolutionary). The key findings occupy less than 10 pages and can be summarised as follows: 1) the law on self-determination was customary law in 1965 essentially because UNGA Resolution 1504(XV) is really, really important 2) because the Treaty of Paris of 1814 says that the Chagos Archipelago is part of Mauritius, the Archipelago should have stayed with Mauritius when it became independent and 3) therefore, the UK’s continued administration of the Archipelago constitutes an internally wrongful act.
There is nothing very surprising here for me.
Putting aside the vagueness of the discussion on customary law formation, it is cheap to claim that the « right to self-determination » is customary because there is, in my view, no real clarity in its content. Some « peoples » can self-determine, others not, some self-determination processes can lead to formal independence, others not. « Self-determination of peoples » is a nice concept, a catchy slogan but legally pointless in my view because of its too many ambiguities, which nobody wants to solve because of how politically sensitive they are. Interestingly, the Court is very careful to put the discussion in the context of decolonization, even if it claims that « the Court is conscious that the right to self-determination, as a fundamental human right, has a broad scope of application » (par. 144). Claims to « self-determination » are an amazing option in the lawfare toolbox, but it should not be confused with a conceptually and legally sound notion.
Also I am a bit puzzled by the reasoning of the Court on the status of the Chagos islands. Essentially, they rely on the fact that from 1814 onwards, the Chagos Archipelago was always referred to as part of the « dependencies of Mauritius » or as part of the « non self-governing territory » by the UK. In other words, it is the arbitrary decision of the colonial power to lump together islands 2000 kilometres apart (who probably did not know the existence of each other at the time) that is the basis of the whole decision. That is somewhat ironic: the coloniser still wins. That does not look like self-determination to me but rather like a sort of estoppel (« you told me this was mine, you cannot take it away! »). True self-determination is asking the Chagosians what they want. But even if that might formally give an accurate indication of what should happen, their opinion today is obviously shaped by the colonial history of slavery and displacement. As a result, even genuine claims to « self-determination » are essentially victories for the former colonizers because the latter are the ones setting the framework (and the language) for dealing with their own past conduct. But I’m straying off topic somewhat…