The correction of this injustice has been achieved through a long drawn fight, somewhat of a David and Goliath contest. The outcome, culminating in a spectacular opinion and vote, has a number of consequences that can impact a rules-based international order, a commitment promoted by the UN Charter which specifically seeks to ‘establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained…’.
Last month, the United Nations General Assembly resoundingly voted (116 in favour to 6 objections and 56 nations abstaining), that the UK has a six-month deadline to withdraw from the Chagos Archipelago endorsing the opinion of the International Court of Justice (“the ICJ”). The ICJ delivered an opinion on 25 February this year that the process of decolonisation of Mauritius was not lawfully completed when Mauritius acceded to independence and that the United Kingdom is therefore under an obligation to end its administration of the Chagos Archipelago“as rapidly as possible.”
Some background to the involvement of the court is essential to understand how the loss of Chagossian people’s right to abode culminated in the General Assembly’s vote. The court was requested by the General Assembly in 2017 to respond to two questions; firstly, whether the decolonisation process of Mauritius was lawfully completed when Mauritius was granted independence in 1968; and secondly, a consideration of the consequences under international law arising from the continued administration of the Chagos Archipelago with a focus on the inability of the Mauritius government in resettling its nationals of Chagossian origin.
The historical origin of the issue is located in its colonial roots. The islands had been a British colony since 1814. The British colonial administration of the time had permitted the United States to establish their military base on the islands in 1966. Prior to this arrangement, the UK government and the representatives from the colony of the Mauritiushad agreed to the detachment of the Chagos Islands in return for, amongst other things, a sum of £3 million. The compensation sum came attachedwith a clause that state that the detachment will last to the point when the need for the facilities on the islands “disappear” (the verb was stated in its past tense in the text of the agreement), the islands should be returned to Mauritius.” Flowing from this agreement (known as the Lancaster House Agreement), a colony including the Chagos Islands was established as the British Indian Ocean Territory (“the BIOT”), which includes the Diego Garcia military base. With the establishment of the BIOT, without going into the details of the legal enactments, the current one being the BIOT (Immigration) Order 2004 – the result from the detachment of the islands from Mauritius was the prohibition of the inhabitants from entering or remaining on the islands. The Chagossian people who were displaced were resettled elsewhere, namely the United Kingdom, Mauritius, and Seychelles. In essence, the Chagossian people were deprived of their right to abode.
In response to the first question, the ICJ relied on the right to self-determination as a customary norm recognised by resolution 1514(XV) adopted by the General Assembly in 1960 entitled “Declaration on the Granting of Independence to Colonial Countries and People”, concluding that the detachment of the islands was not consistent with this declaration, in that it was not based on the freely expressed and genuine will of the people of the islands. Even when the colony’s representatives had agreed to the detachment, it was not based on the free and genuine expression of the will of the Chagossian people. The court then responded to the second question that it will, in an attempt to redress this wrongful detachment, place the obligation on the United Kingdom to bring to an end its administration of the islands and that all Member states must cooperate with the United Nations to complete the decolonisation process and further opined that the resettlement of the Mauritian nationals of Chagossian origin should be addressed by the General Assembly.
The opposition proffered by the UK, against the opinion of the court – a case made through the UK’s permanent representative, the Foreign Office and the Foreign Secretary – was that British presence is required in the Indian Ocean for the purposes of security of the geographical area of the islands in the Indian Ocean, stressing the importance of Diego Garcia as a military base which has close proximity to busy shipping lines. The UK Foreign Office emphasised the presence as vital to security in countervailing terrorism, organised crime, and piracy.The UK government’s stance led to a political diatribe with the opposition leader, Jeremy Corbyn, condemning the position taken by the Conservative government, accusing the Prime Minister Theresa May of not respecting international law and denying the human right of the Chagossian people to return to their land.
After the vitriol subsides and the international law jurists have exhaustively commented on the merits of the ICJ’s opinion, it is hoped that the consequences that will follow from this vote will have a meaningful impact for different quarters. Firstly, the UN agencies will have to mobilise their machinery to support the outcome of the vote and the opinion of the court. General Assembly decisions (passed resolutions) bind the entire internal UN sphere and through the principle of ratione personae, the decision binds the addressee (the member state concerned and in this case, the UK).
Secondly, the UN’s role, in resolving this issue seen in the precedent set by the court and the position taken by the General Assembly, has taken the position of a provider of access to justice when the failed legal attempts within the UK and the European justice system were piling up in a large heap. The legal challenges made against the Executive Ordersin the UK courts with the final outcome delivered by the apex court in the UK, by the then House of Lords, in 2008. The majority (3 to 2) of the Law Lords did not find in favour of the right to abode of the Chagossian people, with the leading judgment by Lord Hoffman pronouncing that Executive Orders fell within the definition of “law” applicable in a ceded colony and‘that the right of abode is a creature of the law. The law gives it and the law may take it away.’ A further disappointment was levelled by the position taken by the European Court of Human Rights in Strasbourg, the bastion of the European Convention of Human Rights, when the chamber concluded that it did not have the jurisdiction to determine the matter under Articles 1 (the jurisdiction clause) and Article 56 (the colonial clause). The construction given to these clauses were determined at a high threshold. These attempts to correct an injustice did not yield any outcome.
Finally, the opinion of the court and the vote of the General Assembly will certainly re-open a legal discussion on the construction of several fundamental points of legal arguments in the UK and internationally, developing a legal jurisprudence that respects the rights of a people to their land and by extension, the right to abode and the right to self-determination. The first is the definition of “indigenous people” and the interpretation of “the right to abode” under the Magna Carta which arose from the UK litigation. The second is the threshold of a “control test” to determine the occupation of a territory, a critique which arose from the decision of the Strasbourg court.
It remains to state that the UK government’s relentless single-mindedness to persistently submit its reasons to contest a peoples’ right to their homeland, in the face of an apparent and blatant disregard for human rights has attracted a trenchant comment that the UK today is a relic of an empire that has lost its clout in the international arena and is impervious to countervailing beliefs as to the values of the international order. Professor Philippe Sands QC, who represented the Mauritius government in the ICJ’s hearing, commented that the position taken by the UK government will leave it “struggling internationally” and “floundering and isolated”. When the UK Foreign Secretary, Alan Duncan, opposed the General Assembly’s resolution, Professor Sands summarised the views of many observers – “A sad day for an isolated, lawless, colonial Britain.”
Dr. Jaspal Kaur is a member of the Executive Committee of the International Movement for a Just World (JUST). She is also a Senior Law Lecturer at a Malaysian university.