ICJ Advisory Opinion in the Chagos Archipelago Case: Self-Determination Re-Examined?

On February 25, 2019, the International Court of Justice (ICJ) delivered an advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.  The advisory opinion had been requested of the court through a General Assembly resolution in 2017, on the following legal question:

(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;
(b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?

ICJ answered the first question in the negative, and concluded that the decolonization process of Mauritius had not been lawfully completed at the time of Mauritian independence.  And the court held, on the second question, that the United Kingdom was under an obligation to bring to end its administration of the islands as rapidly as possible.  This post will provide a brief factual background regarding the Chagos Archipelago, as well as a succinct legal analysis of the world court’s reasoning and ultimate conclusions.

Where is the Chagos Archipelago and what was its relationship to the United Kingdom and Mauritius prior to Mauritian independence in 1968? Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the colony of Mauritius.  In 1964, during a time when the  United Kingdom was contemplating decolonizing Mauritius, the United States expressed an interest (to the United Kingdom) in establishing a military base on one of Chagossian islands, Diego Garcia.  In 1965, the United Kingdom concluded the co-called Lancaster Agreement with the representatives of the colony of Mauritius.  Through the Lancaster Agreement, the U.K. and Mauritius “agreed in principle to the detachment of the Chagos Archipelago from the territory of Mauritius. This agreement in principle was given on condition that the archipelago could not be ceded to any third party and would be returned to Mauritius at a later date, a condition which was accepted at the time by the United Kingdom.” (para. 171).  After this Agreement, the United Kingdom detached the Chagos Archipelago from Mauritius.  In 1965, the United Kingdom also concluded an agreement with the United States, allowing the latter to build a military base on Diego Garcia.  By 1971, all of the inhabitants of Diego Garcia were forced to relocate from the island by the United Kingdom authorities and the United States proceeded to build a military base on the island.  Mauritius (without Chagos Islands) obtained independence from the United Kingdom in 1968; according to a former Mauritian Prime Minister, Mauritius had no choice but to agree to the detachment of the Chagos Archipelago prior to independence.  As of today, the United States still operates a military base in Diego Garcia (the U.S. – U.K. agreement of 1965, allowing the U.S. to operate a military base in Diego Garcia, has been extended).  The Chagossians have been dispersed, since the early 1970s, in Mauritius, the Seychelles, and the United Kingdom.  By virtue of U.K. law, they have not been allowed to return to the Chagos Archipelago.

How did the ICJ reason in this advisory opinion, and how did it reach its ultimate conclusions? First, the ICJ held that it had jurisdiction over the dispute because the request from the General Assembly for this advisory opinion constituted a “legal question” pursuant to article 65 of the court’s statute (para. 58).  Second, the ICJ held that, in its discretion, it should not decline to exercise jurisdiction over this case.  The court reasoned that it had enough factual information to answer the legal questions asked (paras. 69-74), that it was not for the court to decline jurisdiction based on the argument that the court’s opinion would not assist the General Assembly, as this is for the General Assembly itself to decide (paras.  75-78), and that it was not precluded through the principles of res judicata from rendering this advisory opinion (because the U.K. and Mauritius had arbitrated a slightly different dispute before an arbitral tribunal, and because the U.K. and Mauritius are not the same parties in the present request for an advisory opinion) (paras.  79-80).  Moreover, the ICJ rejected the argument that it should decline jurisdiction because the request for an advisory opinion would force the court to settle a territorial dispute between two states, the U.K. and Mauritius, which had not both consented to the court’s jurisdiction over this dispute (paras. 83-91).  Instead, the ICJ held that “the purpose of the request is for the General Assembly to receive the Court’s assistance so that it may be guided in the discharge of its functions relating to the decolonization of Mauritius.” (para.  86).

After answering the jurisdictional challenges, the ICJ turned to the merits.  The court examined the right to self-determination under customary law, and whether this right existed under customary law in the late 1960s, at the time that the U.K. decolonized Mauritius.  According to the ICJ, General Assembly Resolution 1514 of 1960 “represents a defining moment in the consolidation of State practice on decolonization” (para. 150) and “[t]he wording used in resolution 1514 (XV) has a normative character, in so far as it affirms that ‘[a]ll peoples have the right to self-determination.'” (para. 153).  Moreover, according to the court, “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination.” (para. 160).  Thus, the ICJ concluded that the right of self-determination was a part of customary law in 1968, at the time of Mauritian independence.  Next, the court concluded that the people of Mauritius, through the Lancaster Agreement of 1965, did not freely consent to the detachment of the Chagos Archipelago (para. 172), and that the decolonization of Mauritius was thus not lawfully completed, as it did not respect the relevant principles of self-determination.  In light of this conclusion, the court found that “the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State” (para. 177) and that “the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination” (para. 178).  Moreover, the ICJ concluded that because “respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right” and “while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect” (para. 180).

Why did the court (likely) decide the way it did, and what does this all mean? First, it is important to note that the court’s decision was virtually unanimous: the judges unanimously determined that the court had jurisdiction; by twelve votes to two, the judges decided to comply with the request to render the advisory opinion (Judges Tomka and Donoghue against); by thirteen votes to one, the judges reached their substantive conclusions (Judge Donoghue against).  Second, as Marko Milanovic has argued, the outcome of this case may demonstrate how important the framing of the legal question is (“by avoiding the use of the term ‘sovereignty’, Mauritius and the GA defused the likelihood of the Court dismissing the case as involving a bilateral dispute”).  This may explain, in part, why the ICJ judges ultimately reached the conclusions above – that the narrow and clever wording of the advisory opinion request allowed the ICJ to reach particular legal conclusions without having to address issues of U.K. and/or Mauritian sovereignty.  Third, I agree with Marko Milanovic that the ICJ’s discussion of the most fundamental and difficult issue – whether the right of self-determination was part of customary law in 1968, at the time of Mauritian decolonization – was too brief, too rushed, and insufficiently developed in terms of legal analysis.  Fourth, the ICJ did not explain how the people of Mauritius could have freely exercised their right to self-determination (when they consented to the separation of the Chagos Archipelago): was the U.K. at an obligation to conduct a popular referendum in Mauritius on this issue, or were there other modalities of self-determination available in 1968? Fifth, it is clear that this outcome is a big loss for the U.K., as the ICJ most clearly stated that the Mauritian decolonization was not lawfully completed and that the U.K. was under an obligation to end its administration of the Chagos Archipelago immediately. Sixth, it may be argued that the outcome of this case is a loss for other countries, such as the U.S., as the ICJ concluded that all states were under an obligation to co-operate with the United Nations to ensure the completion of the decolonization of Mauritius (does this mean that the U.S. is now under an obligation to dismantle its military base on Diego Garcia?) Seventh, it may also be argued that the ICJ missed another opportunity to pronounce itself on the contours of the right of self-determination, like in the Kosovo Advisory Opinion.  The legal question in this advisory opinion concerned the right to self-determination directly; instead of quickly concluding that the right was part of customary law in 1968, the court could have included a more detailed legal analysis of the content and modalities of the right of self-determination under customary law.

It remains to be seen how the U.K. (or the U.S.) will react to this advisory opinion, whether the U.S. will be willing to negotiate the relocation of its military base in Diego Garcia, and whether the people of the Chagos Arhipelago may be allowed to return to their home land.

 

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Catalan Independence Referendum and the Kosovo “Precedent”

On October 1, the people of Catalonia voted to separate from Spain in an independence referendum which has been declared illegal by Spain.  According to numerous news reports, Spanish police and government forces attempted to interfere with the referendum and engaged in tactics which some have criticized as repressive and “shocking.”  The European Union (EU) however failed to condemn the Spanish government and instead insisted that the referendum was an internal matter for Spain and that the Spanish Constitution and rule of law should be respected.

The Catalan referendum brings back memories of the Kosovo situation in 2008.  Serbian President, Aleksandar Vucic, has criticized the EU for its “hypocrisy” because of the EU’s seemingly different stance vis-a-vis the recent Catalan independence vote and vis-a-vis Kosovo’s secession from Serbia in 2008.  Vucic stated, after meeting with the Greek President, “How come you’ve [EU] declared Kosovo’s secession from Serbia legal, violating international law and the foundations of European law.”  In other words, the EU had essentially “blessed” the Kosovar secession from Serbia while it has, in this instance, supported Spain and failed to recognize that Catalan “right” to an independence referendum.  Are the situations in Catalonia and Kosovo drastically different? What does international law say about the subject-matter of secessions?

First, the situations in Kosovo and Catalonia may be different because their respective mother states are different.  Kosovo had been a part of Serbia, which, while under the rule of Slobodan Milosevic, had engaged in brutal tactics to suppress an independence-seeking rebellion brewing within Kosovo.  Thus, the international community got involved – through the 1999 NATO-led air strikes and subsequently through various NATO and EU-led administrative, security-based, and civil missions.  When Kosovo declared independence in 2008, United States Secretary of State Condoleezza Rice described Kosovo as “sui generis,” in part because of the international community’s strong involvement in this region.  The Catalan had expressed their desire for independence and had held other independence referenda in the past, but the Spanish government had never engaged in human rights violations in Catalonia and the situation has remained peaceful.  The international community itself has never been involved in Catalonia and it may be that factually, Catalonia remains an internal matter.  If Catalonia is an internal matter, then, like in Scotland and in Quebec, any potential secession would need to be worked out through peaceful negotiations and a constitutional framework.  If Spain says no, then Catalonia would not have the right to unilaterally secede.  This is the factual argument, not based in international law.  This leads me to my second point – what does international law have to say about the Catalan secession?

Second, international law is silent on secession.  Almost all international law scholars would agree that international law does not entail a “right” to secession, and that secession may be tolerated in international law in  rare instances, like in Kosovo, or in Bangladesh.  We know from the 2010 International Court of Justice Advisory Opinion on Kosovo that international law does not specifically prohibit unilateral declarations of independence, and that international law only condemns declarations of independence procured through an illegal use of force.  We also know that international law contains the right to self-determination, but, as I recently wrote in the context of the Kurdish independence referendum, it is unclear whether the right to self-determination ever applies in the non-decolonization paradigm, and whether this right can ever lead to remedial secession.  It is unclear that the Catalan can invoke the right to self-determination in order to justify secession from Spain – the right to self-determination in this instance may entail simply a right to autonomy within the larger Spanish state.  The Kurds may have a much stronger self-determination-remedial secession argument than the Catalan, as the former may be able to demonstrate much more easily that their mother state is not representative of their interests.  Spain is a democratic nation which respects human rights, and the international law-recognized right to self-determination (leading to remedial secession) has never been invoked in this type of context before.  Thus, international law, at best, begrudgingly tolerates secession in extreme and rare instances, where the mother state is not a democratic nation which respects human rights.  The Catalan do not have a sound international law-based argument, and despite Spanish interference with the Catalan independence referendum, the Catalan cannot claim a particular legal right to secede.

Finally, how does one reconcile the seemingly different results (as of now) in Kosovo, Catalonia, and Kurdistan? Kosovo unilaterally declared independence from Serbia in 2008 and within a short period of time, it was recognized as a new state by many in the international community (although not by Spain – understandably so).  Interestingly, almost no states among those supporting Kosovo advanced international law-based rationales for the Kosovar secession from Serbia; instead, such states continued to distinguish Kosovo as a unique situation, sui generis, a special case which should somehow not create any type of precedent in international law.  Catalonia and Kurdistan have held independence referenda which have not been supported by almost any states in the international community.  Many states have referred to these referenda as illegal because contrary to the wishes of their respective mother states, or as internal matters, or as not representative of any particular “rights” in international law.  Accepting the argument that international law is silent on secession and does not regulate secession, it would appear that secessions are matters of domestic law. If this is the case, it appears that the international community may accept such a role of domestic law in cases where the mother state is a democratic nation or an emerging democracy whose sovereignty is deemed worth-while.  This manner of reconciling different referendum results is not based in international law, but it rather reflects geo-political interests of other powerful states.

 

On Crimean Secession, Fairness, and Self-Determination

On March 16th, 2013, the Crimean people voted in a referendum, expressing their desire to secede from Ukraine and re-join Russia (Crimea was a part of Russia until 1954, when Khrushchev transferred it to Ukraine; some historical accounts suggest that Khrushchev was drunk at the time).  Crimean population is predominantly Russian, with a large Ukrainian minority and a somewhat smaller ethnic Tatar community.  Much has been written so far on the Crimean crisis, and the recent Russian involvement in the region.  Here, I will focus on the issue of self-determination and secession, in order to shed light on the legality of the Crimean referendum and the de facto separation of Crimea from Ukraine and its de facto merger with Russia. 

International law recognizes the right of self-determination for every “people.”  In the decolonization context, the right to self-determination has been interpreted as leading toward remedial secession, because the colonized peoples were not properly represented by the governments of their mother-states (the colonial powers).  Outside of the decolonization context, however, international law does not positively recognize the right for groups to separate from their mother states.  Instead, international law proposes a distinction between so-called internal self-determination and external self-determination.  The former signifies that groups or peoples are entitled to a form of self-government or autonomy within the confines of their mother state.  This type of autonomy may translate into a free exercise of cultural or linguistic rights, or into the creation of a regional parliament, at best.  As long as the mother state respects the people’s right to internal self-determination, the analysis should stop there (see the Canadian Supreme Court in its advisory opinion on the proposed secession of Quebec).  The latter, more drastic form of self-determination, so-called external self-determination, gets triggered by the mother state’s utmost lack of respect for the relevant people.  If the mother state’s central government is so abusive toward the people that its rights are not properly represented, then international law may suggest that such a people should have a right to external self-determination, which would lead to its separation from the mother state.  Most states, unsurprisingly, are extremely reluctant to recognize a right to external self-determination for any minority group, and the International  Court of Justice, in the recent advisory opinion on Kosovo, failed to develop any sort of a useful normative framework on self-determination (the court instead found that the Kosovar declaration of independence was legal, but did not proclaim that external self-determination or secession would ever be legal).  This state of affairs has led some scholars to note that international law “tolerates” external self-determination and secession, but that no positive right to secession exists within international law. 

How does the above discussion translate into the Crimean situation? One possible argument for the legality of Crimean secession is to focus on the Crimean people’s right to external self-determination.  The argument would go as follows: the Ukrainian central government was no longer representative of ethnic Crimean Russians’ rights, and this triggered the latter’s right to external self-determination, leading toward a remedial secession.  Why was the Ukrainian central government not properly representative of the ethnic Crimean Russians’ rights? Because the Ukrainian Parliament recently voted to cease the use of the Russian language in public life, and because the Crimean Russians felt threatened that this was the first step toward an annihilation of their other rights.  This argument is a stretch because of its speculative nature – while it is possible that the Ukrainian government was about to stop respecting ethnic Russians’ rights, we simply do not know as of now that this was going to happen.  Another argument to support the legality of Crimean secession is to compare Crimea to other secessionist regions around the world.  Unsuccessful recent secessions or attempts at secession include Chechnya and Georgian provinces (South Ossetia and Abkhazia), whereas successful secessions include East Timor, Kosovo, Eritrea, and South Sudan.  How is Crimea different from the former and similar to the latter, or similar to the former and different from the latter? Crimea can arguably be distinguished from Kosovo, because the Serbian government in that case was highly abusive toward the Kosovar Albanians, whereas Ukraine has so far treated ethnic Crimean Russians fairly well.  Crimea can probably be distinguished from East Timor, Eritrea and South Sudan, because all three latter regions (now states) involved instances od delayed decolonization, or delayed rectification of post-colonial borders.  But is Crimea legally distinguishable from Chechnya and the Georgian provinces? If Crimea is entitled to separate from Ukraine, shouldn’t Chechnya be allowed to separate from Russia, and shouldn’t South Ossetia and Abkhazia be allowed to separate from Georgia? And what about other state-like entities, inhabited by peoples entitled to the respect of their self-determination rights, which have been denied statehood due to geo-political reasons (here, I am thinking of Tibet, the Palestinian territories, Northern Cyprus, Republika Srpska, Bougainville, etc.).  At best, one can conclude that self-determination quests by various peoples across the globe have not produced consistent results, and that such quests are often influenced by Great Powers’ politics and foreign policy stances. 

Finally, from a fairness perspective, let me quote a question which one of my International Law students recently posed: since Crimea used to be a part of Russia until 1954, since the legitimacy/rationale of its transfer to Ukraine in 1954 is dubious, and since the majority of its population is Russian and may truly wish to re-join Russia, what is so bad about the referendum and its result? The biggest obvious issue related to the referendum has to do with its own fairness – were the people of Crimea truly able to vote and express their wishes, or was the referendum influenced by the presence of Russian forces? Were the results properly tallied? Assuming that the referendum was conducted fairly, my student’s question seems pertinent and right on point. 

I do not mean to suggest that secessions should start occurring throughout our planet all the time, or that any group should be able to stand up and proclaim its right to separate from its mother state.  I also do not mean to suggest that Putin is a “good guy” – many of his policies appear outright aggressive and calculated to derive the most benefit for Russia at the expense of smaller regions/state.  If Putin truly cared for international law, he should be the first one to recognize the Chechens’ right to self-determination and possible secession from Russia.  What I try to argue in this post is that the Crimean issue is complex, and that instead of simply proclaiming that Ukraine is right and Russia is wrong, we need to step back and analyze the region’s history, as well as to take into account its population’s true desires.