ICJ Chagos Advisory Opinion: UK asked to end its administration of the islands but the colonizer still wins…

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…

5 responses to “ICJ Chagos Advisory Opinion: UK asked to end its administration of the islands but the colonizer still wins…

  1. Interesting. But there is nothing almost ambiguous in the self determination right. An ethnic group ( or not even ) residing is consistent territory, having the subjective wish ( emphasizing : subjective ) to establish an independent entity or state or the right for self ruling. What can be ambiguous in it ?? The objective right, is bit problematic, for they must show, that they can govern themselves, and maintain legal contact ( like International contracts ) with other states. But merely because there are naturally political sensitivities in such issues, that doesn’t render it legally ambiguous at all. On the contrary, it is very simple as model. Legal issues, are typically, much more complicated than self determination rights.

    But the respectable author of the post, has ignored it seems the issue of resettling those Chagossian origin and others. This is a practical issue, that should be solved, notwithstanding self determination, or rather by it in fact.

    Thanks

    • Thank you for your remarks.
      First of all, your definition raises more questions than it answers. What is an “ethnic” group? in fact, why only “ethnic” groups (it is the right of “peoples”, not “ethnic groups”)? what is an “independent entity” other than a State? How small can the group be (3 members of a sect in a house?)? What does it mean “govern themselves” (if I recall Kosovo was still (and still is) technically under UN administration when it declared independence)? why is “legal contact” relevant (given that recognition is essentially a bilateral sovereign exercise)?
      Second of all, and more generally, it would be too long to embark here on an in-depth discussion about the right to self-determination, but I do believe that beyond the grand statement of its existence, its exact content (especially outside the context of decolonization) and more importantly its modes of implementation are somewhat fuzzy (if you don’t like the word ambiguous), especially when it comes to its relationship with other key concepts of international law such as sovereignty and territorial integrity. A legal concept that you cannot consistently predict the application of (Kosovo? yes. Catalonia? no? yes? Corsica? Maybe? transnistria? etc.) and whose recognition ultimately depends on political recognition is for me pointless. To be clear, I tend to think the same of the concept of “statehood”, but that is an entirely different discussion…

      • Thanks for your comment. I wrote there ” An ethnic group ( or not even )” it doesn’t matter, but the subjective wish as starting point or outset.

        The objective one, consist on the idea, that such entity, must show that it can govern themselves. That is to say :

        It can collect taxes. It can provide security to its population. It has access to International borders(trade and International trade agreement).It can briefly:sustain a central governance with all functions.

        It is that simple as a model ( not messy examples, but legal model ) For nothing here is so legally complicated.

        You may read the “Montevideo convention”, and get more specific legal descriptions:

        https://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml

        Thanks

      • Ah sorry, I missed the “or not even”! my mistake!

        As for the alleged simplicity of the model 1) I’m quite familiar with the Montevideo convention, thank you… Montevideo is about the rights and duty of states, not self-determination, so you’re already assuming that the two can be equated, which is not necessarily the case and 2) if you think that the Montevideo criteria are straightforward, I must admit I do not have the same understanding of them 3) you’re discarding my main point too easily: there are no “messy” examples, but illustrations of the fact that a legal test (however simply you frame it in theory) cannot be evaluated without taking into account the quasi-systematic contentious mess of its implementation in each case, which challenges the relevancy of the legal test itself in my humble opinion. But it is a fascinating discussion, I look forward to continuing it in the future!

      • Dovjacobs , The rights and duties, are of course the title of the convention, but, one may conclude or suggest from it, at least, what are the substantive characters of state, here article 1 :

        The state as a person of international law should possess the following qualifications:

        The state as a person of international law should possess the following qualifications:

        a. a permanent population;

        b. a defined territory;

        c. government; and

        d. capacity to enter into relations with the other states.

        Although not binding as CIL of course, it does offer some simple objective parameters. That is to say, if crossed or proved, we can say that we deal with a state ( potentially at least ). So, the title, is simply less relevant, but the more binding or conclusive concrete content.

        Concerning messy examples, than you have correctively distinguished between implying model, and the theoretical model. But the mess described in the post, has to do, not with legal model, but political complications. So, not so easy to imply ( nothing is so in legal issues ) but, easily or with great clarity, putting clear tests for preliminary selecting relevant potential ” candidates “. For :

        The Palestinians for example, can easily cross the subjective test, but, prima facie would fall with the objective one :

        They can’t maintain yet, central governance. They don’t have access to International borders. They are formed out of dozens of enclaves scattered and detached, totally depended as they are on the Israeli army. So, despite the fact, that it is the utmost complicated and screwed up geo political conflict in the world, it grants legal clarity in model terms, and clearly, suggests, that Palestinians, can’t cross the objective test, for it would be immoral for them, for their population, and other states worldwide, to declare statehood of course. For they don’t have functional capacity as state.

        Thanks

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