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Anticipating the Chagos Advisory Opinion: The Forgotten History of the UK’s Invocation of the Right to Self-Determination for the Sudan in the 1940s

Published on February 19, 2019        Author:  and

What does 2019 have in store for international law? Little seems predictable, but 2019 is likely to be the year in which the International Court of Justice will for the first time in two decades pronounce on the law of self-determination. In the Kosovo Advisory Opinion, the ICJ managed to sail around this spiky fundamental concept of international law, but it will be harder to avoid in the advisory proceedings on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius. This case puts self-determination front and centre.

One of the questions that the ICJ may have to address is that of the legal status of self-determination as early as 1965, including Great Britain’s argument that it had, until then, consistently objected to references to a ‘right’ of self-determination. Influential legal literature underlines the trickiness of that question, as it locates the birth of self-determination as a legal right exactly in the period 1960-1970, but without pinpointing a specific birthday. 

However, legal historiography has thus far omitted a case that suggests that self-determination was imbued with legal meaning, by Great Britain itself, at an earlier stage, namely in the 1940s. Our forthcoming article in the British Yearbook of International Law shows that during the UN Security Council’s second year of operation, in 1947, the UK invoked the right of self-determination of another people, the Sudanese, as their legal entitlement, in its effort to counter Egyptian claims on the Sudan. While others have written brilliant histories of how the Sudan emerged into statehood, our article aims to restore the Sudan case to the legal history of self-determination, including the UK’s role in this. Thus, even if popular historical imagination envisages self-determination as a revolutionary ideal championed by the colonized but denied by the colonizers, in the case of the Sudan, the British propagated the Sudanese right to self-determination, albeit, as we argue, as an emanation of, not a deviation from, their own colonial predispositions. Read the rest of this entry…