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Home EJIL Analysis ICJ Delivers Chagos Advisory Opinion, UK Loses Badly

ICJ Delivers Chagos Advisory Opinion, UK Loses Badly

Published on February 25, 2019        Author: 
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Earlier this afternoon the ICJ delivered its Chagos advisory opinion. Briefly, the Court found that the separation of the Chagos archipelago from the British colony of Mauritius was contrary to the right to self-determination and that accordingly the decolonization of Mauritius was not completed in conformity with international law. As a consequence, the Court found that the UK’s continuing administration of the archipelago, which includes the largest US naval base in the Indian Ocean, Diego Garcia, is a continuing internationally wrongful act, which the UK was under an obligation to cease as soon as possible. The Court was almost unanimous – its decision not to exercise discretion and decline giving an opinion was made by 12 votes to 1, while its findings on the merits were made by 13 votes to 1 (Judge Donoghue dissenting). The AO and the various separate opinions is available here.

Here are some key takeaways.

First, on the issue of the exercise of discretion/propriety to give an opinion, the key issue here was whether, in answering the questions posed by the General Assembly the Court would be effectively deciding on a bilateral dispute between states over territorial sovereignty, which one of them (the UK) did not consent to (for more background on this issue see Dapo’s earlier post here). Here Judge Tomka joined Judge Donoghue in thinking that the Court should have declined giving an opinion, consistently with his prior position in the Kosovo AO. The Court effectively gets around this problem by labeling the advisory proceedings as being about decolonization, an issue in which the UNGA has a longstanding interest, rather than about sovereignty. Technically, the Court is right, except that its finding on the illegality of the decolonization process inevitably impacts on the British sovereignty over Chagos – either the UK really has no sovereignty over the islands at all, or it is the sovereign but is obliged to relinquish that sovereignty to Mauritius as soon as practicable. The situation is comparable to some extent to the South China Sea arbitration, in which the arbitral tribunal technically avoids issues of sovereignty but by deciding on the nature of certain maritime features, and their (in)ability to project maritime areas, it effectively completely demolishes China’s claim to these areas.

Second, this shows just how important questions of characterization and framing can be. This is particularly true of the formulation of the question, which as I argued before was VERY clever on the part of Mauritius (as later adopted by the GA).  Readers will recall that the question is in two parts:

(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?”.

Again, 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, as does the use of the term ‘continued administration’ in part (b). When asked to reformulate or narrow down the question, the Court expressly refused to do so, and indeed said that it sees no reason to interpret it restrictively (paras. 136-137). In her dissent, Judge Donoghue openly floats the option of the Court narrowing down the question and providing a limited answer on the merits, something she would have been happy with – in fact she expresses no disagreement of principle with the Court’s findings on the merits.

Third, when it comes to self-determination, the key question for the Court to decide was whether it was already a rule of customary law by 1968, when Mauritius was granted independence – see this recent post by Orfeas and Sarah for more background. This is an admittedly a very difficult question – at what point in time exactly does a rule of customary IL actually crystallize? And the Court completely fudges it. It simply relies on  a series of GA resolutions, to which it expressly ascribes a normative character (para. 153), and just asserts that self-determination was already customary at the relevant time. No state practice, no opinio juris, no nothing – just good plain assertion, as the Court is so often wont to do.

Fourth, the Court’s conclusion that Mauritius did not genuinely consent to the separation of Chagos is quite rushed (para. 172), and effectively turns around the application of a standard of heightened scrutiny in situations when consent is expressed by a subordinate administration. The Court seems to be saying here (by implication) that only something like a referendum could have constituted a free expression of the will of the people. The Court thus then logically concludes that the answer to question (a) was that the decolonization of Mauritius was not lawfully completed.

Fifth, proceeding to question (b), the Court effectively treats the consequence of (a) as a matter of state responsibility, holding (para. 177) that ‘the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State’ which is of a continuing character. Then, para 178: ‘Accordingly, 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.’

This is obviously where the UK just totally lost the case. There’s no silver lining here. The Court could have chosen to fudge this somewhat, but it went full in (and again, did so virtually unanimously, even if some of the judges were not entirely comfortable with the language of state responsibility).

Finally, the Court noted that all UN member states must cooperate to finalize the decolonization of Mauritius (para. 180), since self-determination is an obligation erga omnes, and that the GA must ensure the protection of the human rights of the expelled Chagossians (para. 181). The ‘all states’ obviously includes the United States re Diego Garcia and all.

It is very interesting just how brief the Court’s answer to question (b) is – the big blow to the UK is of course the framing of its presence in Chagos as a continuing wrongful act. Otherwise, however, the Court wanted to be as non-prescriptive as possible. Even on the matter of the return of the Chagossians it says more through silence than words.

It remains to be seen, of course, how the UK government will react to all this. Things are not going all that well in Whitehall anyway, and there’s now not only Brexit, but also Chexit, to worry about.

 

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13 Responses

  1. Roger O'Keefe

    Dear Marko
    It remains to be seen too how the government of France will react, given GA resolution 31/4 of 21 October 1976 and subsequent resolutions up to and including GA resolution 49/19 of 6 December 1994 on the ‘Comorian island of Mayotte’, subsequently integrated into France as an overseas département in 2011 following a referendum in 2009, having been hived off from the Comoro Archipelago prior to France’s grant of independence to the latter. (For the briefest of context, see the preamble to GA res 31/4.) Perhaps it will simply reproduce Judge Abraham’s separate opinion, in which His Excellency almost breaks into a sweat in his painfully strenuous attempt to distinguish, albeit sub silentio, the situation of the Chagos archipelago from that of Mayotte. This in turn recalls the question posed by Philippe Sands in his Hersch Lauterpacht Memorial Lectures of 2013 whether a former Director of Legal Affairs at the French Ministry of Foreign Affairs, a former Legal Advisor to the UK Foreign and Commonwealth Office, or the equivalent in other states ought to be ineligible for appointment to the ICJ, at least as other than a judge ad hoc.

  2. Catherine Drummond

    Thanks for these insightful comments, Marko. The point about a heightened standard of scrutiny for consent in situations where there is colonial subjugation and also a risk of continuing colonial subjugation (i.e. para 172: “in a situation where a part of a non-self-governing territory is separated to create a new colony”) is an interesting one. This is what allowed the Court to find the UK in breach while avoiding having to take a decision on duress, which it no doubt sought to do. One or two States made oral submissions that advocated a similar approach of focusing on the standard of consent required depending on how BIOT is characterised.

  3. Raphael Oidtmann

    Thanks Marko for this crisp and excellent summary!

  4. Roger O’Keefe

    Sorry, correction, I should have referred to the declaration, not separate opinion, of Judge Abrahams.

  5. Roger O’Keefe

    And my blasted autocorrect just changed ‘Abraham’ to ‘Abrahams’! Apologies to His Excellency.

  6. Toby Fenwick

    Thanks for such a useful summary (ironically, I’m busy with Brexit in my day job), Marko.

    I’ll need to look more closely at the AO, but I’m concerned that the Court asserts that by 1965 hiving off parts of colonies had crystallised as customary international law. If this is correct (and ex cathedra, we must treat it as so), then when did this occur? What does this mean for Cyprus (quite apart from Mayotte)?

  7. Eugene Kontorovich

    Not just Cyprus and Mayotte. The Court’s ruling will surely reinvigorate South Cameroonian independence claims (South Cameroon was administered jointly with N. Cameroon, which was incorporated in Nigeria, while the south was pushed into union with French Cameroon); as well as Russian claims to Crimea, which was lopped of from Ukraine when it was part of the Soviet empire and transferred with no discussion to the Russian SSSR in ’54. So the Court would have to draw some fine line that the custom had not crystalized in ’61 but had in 65!

    Of course, I agree with Marko that the Court had scant evidence for crystallization of custom even in ’65.

  8. Martins Paparinskis

    Doesn’t para 160 go some way on the customary law issue? ‘No example has been brought to the attention of the Court in which, following the adoption of resolution 1514(XV), the General Assembly or any other organ of the United Nations has considered as lawful the detachment by the administering Power of part of a non-self-governing territory, for the purpose of maintaining it under its colonial rule. States have consistently emphasized that respect for the territorial integrity of a non-self-governing territory is a key element of the exercise of the right to self-determination under international law.’ Without going into the fine print here, the general proposition — that custom exists when there is consensus on the normative character (opinio juris) of the rule, expressed multilaterally and bilaterally, which provides the background for the lack of countervailing State practice and opinio juris in instances of individual application of the rule – may not be at the very core of orthodoxy but is a little bit more than nothing.

  9. […] ICJ Full Advisory Opinion: Here Summary and Analysis by Marko Milanovic of EJIL Talk Here: […]

  10. zhai

    And just regarding the issue of state practice (+opinio juris) and hence customary international law on self-determination, whose practice should be taken into account in ascertaining the existence (or lack) of the requisite state practice? Would, for instance, practices, within the context of self-determination, of national liberation movements which later led to the ‘creation’ of newly independent States under the notion of self-determination, count at all?

    Conclusion 4(3) of the ILC Conclusions on Customary international law does say that ‘Conduct of other actors is not practice that contributes to the formation, or expression, of rules of customary international law, but may be relevant when assessing the practice’. But, even assuming ‘other actors’ here include national liberation movements as they are- would their practices count towards state practice if these movements can subsequently become States themselves? Should this be the case given Article 10(1) of the Articles on State Responsibility “The conduct of an insurrectional movement which becomes the new
    government of a State shall be considered an act of that State under international
    law.”?

  11. […] de son territoire dans le respect du droit des peuples à l’autodétermination » (§178). Comme le note un commentateur non sans humour, cela signifie à présent pour les autorités britanniques, que « there’s no […]

  12. Mark

    I agree with professor O’Keefe that it’s hard to read the separate opinion of judge Abraham without Mayotte coming to mind. But I think the criticism is unfair when we remember that France in its written statement in this case argued for the the ICJ not proceed to the merits. Actually it was judge Abraham who was legal advisor to the French Foreign Ministry in the wall and signed off the French written statement where it was written: “The French Republic further wishes to underscore that this request for advisory opinion could set a dangerous precedent, inciting States to seek a vote by the General Assembly to refer to the Court disputes over which the Court would not have contentious jurisdiction.” By joining the majority in the Chagos case judge Abraham basically contradicts what he signed off as legal advisor.
    I’m not familiar with what professor Sands said on the broader issue of former foreign ministry legal advisors becoming ICJ judges. But I think any such rule would be unfair if not applied across the board to all people who were heavily involved in a body which had legal interests in international law. This would obviously be unworkable because we’d be left with few judges with practical experience. What we should be more worried about is when ICJ judges are going to face consequences if they don’t follow their nationality’s government line (like the public rebuke judge Winiarski faced from the Polish government after the second phase of the South West Africa case) or the option for a judge to move nearly immediately to political office after leaving the bench (which happened a couple of times recently).

  13. On the Issue of a particular Judge should become a member in a case where he had argued/advised the same point before as a counsel, the answer seems obvious for a practicing common law lawyer like me. It is common for you to be retained to argue a point of law for the defendant, and later be retained by a plaintiff in another case to argue on the same point of law from another point of view. On both occasions I know lawyers who had won twice, and when asked by the court for the change of view, they simply submit a creative argument. Some lawyers do it for several rounds particularly in land law cases.

    There is nothing unethical here. Your duty as a barrister is to present a case that is in his the best interest (or in the interest of the accused in a criminal case). Your opinions and principles are irrelevant – and there are many cases on this point from Sri Lankan Supreme Court and the House of Lords from the UK.

    When you become a judge, you are free to form your view based on the submission of the counsel. This has nothing to do with your former practice.

    Your role is one of judging and forming a view – rather than presenting the case. When you are barrister – your duty is to present the case, and not to judge and form a view.

    This is the foundation (pre-emptory norm) of our legal system. Otherwise if lawyers’ takes principles and views on a particular matter, this is considered unethical because he will deny the right of representation, because lawyer should not “pick and choose cases” (as rules of ethics says) rather must perform the constitutional duty of presenting a case. (In criminal law, accused has a right of representation)

    It is in this regard, I express very severe disagreement on the ruling on the challenge in CC/Devas and others v. India with regard to two arbitrators. See https://www.ejiltalk.org/arbitrator-independence-and-academic-freedom/ . It is important that the international law recognize this trend in local legal systems without imperiling the profession.

    All the States’ legal Bar Associations views are clearly seen in International Bar Association rules on disqualification of arbitrators, which reflects a very mature approach and good starting point for discussion for public international lawyers, because I feel after this ruling above, matters have gone way too far in the wrong direction – and must stop.