Britain has an obligation to end its administration of the Chagos Archipelago — home to the US military base of Diego Garcia — and complete the process of decolonisation of Mauritius, said the International Court of Justice in the Hague in an advisory opinion, in a significant legal victory for Mauritius and other nations – including India – that supported its case.
Delivering the opinion, ICJ President Abdulqawi Ahmed Yusuf said the judges had rejected the contention that the issue did not fall within its jurisdiction, because it was a bilateral matter for the two countries, and concluded that the decolonisation of Mauritius was not lawfully completed, as a result of Britain’s continued administration of the Chagos Islands, despite a pre-independence agreement between the UK and Mauritius in 1965. He found that the continued administration of the territory by the UK amounted to a “wrongful act,” that was not consistent with the right to the people of “self determination.” The judges concluded that any detachment of part of a colony (referred to as a non-self governing territory) had to be based on the “freely expressed and genuine will” of the people. It was not possible to talk about an international agreement where one of the parties was under the authority of the latter, the judge said.
Colonial agreements
The Chagos Islands are home to the US military base of Diego Garcia, under lease from the United Kingdom since the 1960s. In his statement, the judge also noted that the original agreement had not allowed for third party involvement in the territory. The base’s construction led to the displacement of around 1,500 people who have been unable to return to the islands.
The case is seen as having far wider ramifications beyond the two parties immediately concerned, as it deals with the legacy of colonialism and whether the kind of agreements struck between colonial powers and their colonies in the final stages before independence was granted could really be seen as legitimate given the imbalance of power involved in the relationship. This has certainly been at the heart of Mauritius’ contention, that the leadership of its independence movement had been corralled into agreeing to the 1965 separation of the islands, fearful that if they did not do so, independence would not be granted.
The advisory opinion is unlikely to impact the US military base: even assuming Britain acted on the advisory opinion. “Mauritius is committed to the continued operation of the base in Diego Garcia under a long-term framework, which Mauritius stands ready to enter into with the parties concerned,” Mauritius had said in the UN General Assembly, during the discussions on requesting an ICJ advisory opinion.
“This is an advisory opinion, not a judgment. Of course, we will look at the detail of it carefully. The defence facilities on the British Indian Ocean Territory help to protect people here in Britain and around the world from terrorist threats, organised crime and piracy,” said a spokesperson for the UK Foreign and Commonwealth Office.
While welcoming the ICJ’s advisory opinion, the UK Chagos Support Assoociation – an advocacy group – said that while it was a victory for Mauritius it remained to be seen if it was a victory for the Chagossian people. “The question of sovereignty has no bearing on the right of return or for the imperative for both the UK and Mauritius to treat Chagossians with the rights and respect that they deserve. That includes proper compensation and access to British citizenship. All must acknowledge the right to self determination of the Chagos Islanders and any decisions about the future of the Chagos Islands must be made by those who once inhabited them and their descendants.”
India too supported Mauritius in its case, with India’s Ambassador to the Hague, Venu Rajamony, telling the court last year that a historical survey of facts placed the archipelago as part of Mauritian territory. “Regarding the process of decolonisation of Mauritius, it remains incomplete both technically and in substance as long as the Chagos Archipelago continues to be under the colonial control,” he told the court in September.
Britain maintains that the islands will be returned to Mauritius, when they are no longer needed for defence purposes. Under an agreement struck in 1965, in return for compensation to Mauritius and fishing rights, Britain has maintained control of the islands. It has continued to do so despite efforts by Mauritius to regain control, and UN resolutions requiring it to complete the decolonisation of Mauritius.
The ICJ held public hearings in September 2018 in the case after Britain was defeated in its attempt to halt a UN General Assembly resolution calling for the UN’s highest court to delivery an advisory opinion on the issue.
In June 2017, the UN General Assembly adopted a resolution calling on the ICJ to delivery an advisory opinion on whether the continued administration of the Chagos Archipelago the United Kingdom – through a 1965 separation - following the 1968 decolonisation process of Mauritius was lawful. The UNGA win by Mauritius – against the UK, and the US – was seen as a major blow for Britain, and raised wider questions domestically about whether its international influence was waning.
Advisory opinion
The court took submissions from other member states including India, China, Brazil, Australia, Argentina, South Africa, Russia, the United States and France. Opening the case for Mauritius last year, Sir Anerood Jugnauth, the nation’s former president and prime minister, who had participated in the 1965 Mauritius Constitutional Conference in London on which talks on the ultimate status of the country were held, said that the process of decolonisation of Mauritius remained “incomplete” because of the “unlawful” detachment of an integral part of the country on the eve of independence. Throughout the periods of Dutch, French and British colonial rule, the archipelago had always been an integral part of Mauritius. He contended that in secret meetings in parallel with the conference, the then Premier Sir Seewoosagur Ramgoolam and colleagues faced “immense pressure” and “duress” to agree to the Chagos Islands being detached, with British Prime Minister Harold Wilson making it “abundantly clear” that independence would only be granted if they agreed to the separation.
While Britain contended that Mauritius “freely consented” to the detachment of the archipelago, Mauritus claims the choice faced was “no choice at all.” Responding for the UK, British barrister and politician Robert Buckland called on the court to decline to respond to the request for an advisory opinion, insisting it was a “bilateral sovereignty dispute” between the two countries and the facts were complex and “vigorously contested.”
The International Court of Justice, which last week heard from India and Pakistan on the “contentious” case of Kulbushan Jadhav, can also deliver advisory opinions. Unlike the Jadhav case, which is binding and non-appealable, advisory opinions are not binding though they do carry substantial legal weight and are mostly adhered to.
However, there have been several occasions in which they have not been: such as the 2003 advisory opinion which obligated Israel to stop building the wall in the occupied Palestinian territory.