[Part II of a two-part post]
When consent has been vitiated
One of the most challenging aspects of partition is proving that its representatives’ consent was vitiated due to duress. In nearly all cases of partition duress, coercion, and even fraud has been alleged by one of the parties. In other words, their consent to the loss of territory was not freely given.
In Ireland, it was argued that the threat of force was employed during the negotiation of the Anglo-Irish Treaty in 1921 to ensure the Irish delegation accepted the option of dominion status against that of a republic (A. Carty, Was Ireland Conquered, 1996, p. 84). It was also alleged that the delegation’s consent to the partition was brought about by deceit because of assurances given to them that primary importance would be given by a Boundary Commission to the ‘wishes of the inhabitants’ in the redrawing of the boundary between Northern Ireland and the Irish Free State when, in fact, the UK never had any intention of interfering with the integrity of the six counties (A. Carty, Was Ireland Conquered, 1996, pp. 135-140).
In British India, it was argued that Mountbatten held a ‘metaphorical gun’ to Mohammad Ali Jinnah’s head when he ‘consented’ to a ‘moth-eaten Pakistan’ that he had spent his whole career opposing. Mountbatten even admitted that he ‘drove the old man quite mad’ by insisting that the logic of partition, if applied to India, must equally apply to the provinces of the Punjab and Bengal (quoted in M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Nehru agreed with Sardar Patel that ‘it might be possible to frighten Mr. Jinnah into cooperation because of the shortness of time available before partition must be completed’ (M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47).
In Palestine, Pitman B Potter observed in the American Journal of International Law that the US ‘came close to exercising undue influence to get the partition plan adopted’ (editorial comment, 42(4) AJIL (1948), p. 861) by exerting all kinds of pressure on African and Asian countries to vote for the Plan of Partition with Economic Union at the UN General Assembly when a majority of the population of the British Mandate of Palestine opposed partition.
In the UNCLOS arbitration, Judges Kateka and Wolfrum argued that Mauritius was given no choice about the excision, and that the discussion between Prime Minister Wilson and Premier Sir Ramgoolam that the latter could return home without independence if he did not accept the excision, amounted to ‘duress’ (Dissenting and Concurring Opinion, 18 March, 2015, paras 76-77).
Mauritius argues that its consent was not freely given
The UK claims that duress is a municipal law concept in the law of contract that is distinct from coercion in international law. In the UK’s view, its conduct during the negotiations with Mauritius did not ‘come anywhere close to meeting the standard of duress under the law at the time’ (UK written statement p. 124, para 8.16, citing Treitel, The Law of Contract, 1966, p. 286). The UK also argues that coercion, even if this could be shown, would only apply against a government official in their private capacity and not against the state (UK written statement p. 125, para. 8.17 a.).
In its written comments, Mauritius advanced an alternative argument beyond coercion and duress – one that was not available to Irish, Muslim League, or Palestinian Arab officials in the 1920s and 1940s – that the ‘consent’ purportedly given by Mauritian Ministers did not meet the requirements of the law of self-determination. This was because ‘Keeping Mauritius intact was not an option that was ever presented, either to the Mauritian Minister or to the Mauritian people directly’ (Mauritius written comments, p. 123, para. 3.92).
The UK abandoned partition after 1960
As the right of self-determination emerged in customary international law in the 1960s as expressed in Article 2 of the Colonial Declaration, which provided that ‘all peoples’ have the right to ‘freely determine their political status and freely pursue their economic, social and cultural development’, partition fell into abeyance. Given that partition amounts to the non-consensual division of territory, it would be difficult to justify partition by appealing to international law when it was contrary to a peoples’ ‘freely expressed will and desire’.
Significantly, in 1956, the UK considered a partition plan for Cyprus which it announced to Parliament (HC Deb 19 December 1956 vol. 562 at col. 1268). But when Britain realised that its plan had no support from the majority Greek Cypriot population, and little support at the UN General Assembly, it abandoned the plan. Instead, the UK concluded the Treaty of Guarantee (16 August 1960) with Cyprus, Greece, and Turkey. According to Article II of that treaty, they undertook to prohibit ‘any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the Island’ (emphasis added).
In other words, the UK realised in the early 1960s that the winds of change were blowing and that partition was no longer accepted as a lawful form of decolonization by a majority of UN members. This might explain why the French Government also abandoned a plan to partition Algeria after studying its feasibility. Apparently, the Quai d’Orsay considered partition ‘excessively Anglo-Saxon’ (Asseraf, French Historical Studies, Vol 41 (1), 2018, p. 106.)
Perhaps recognizing that this was a weak point of its argument, the UK claimed in its written comment that it ‘did not set out a plan for partition’ for Cyprus (para. 4.34, p. 70). But this is belied by the evidence: a debate on the partition of Cyprus in Parliament and half a dozen ‘top-secret’ partition proposals (with maps) in the UK National Archives.
Neither the UN Security Council nor the General Assembly approved of any partitions after 1960. In fact, as soon as the General Assembly became aware of South Africa’s plan to partition South West Africa and British plans to partition the Chagos Archipelago it passed resolutions describing their divisions as contrary to paragraph 6 of the Colonial Declaration.
Self-determination is about the ability to make free choices
Due to the peculiar circumstances of the South West Africa Cases, the international community was denied an answer to the claim advanced by the Applicants in the second phase of those cases that partition was contrary to international law because it was predetermined (i.e. non-consensual) and because it violated the well-being and social progress of the inhabitants of the territory. The only difference this time around is that the question concerns the division of a non-self-governing territory, where the principle of self-determination – as defined in the Colonial Declaration – had become directly applicable to the territory by virtue of paragraph 5 of that declaration.
Moreover, paragraph 6 of the Colonial Declaration, must be read with the other paragraphs of the Declaration. This makes it clear that self-determination is about the ability of a people to make free choices and to freely determine their economic, social, and cultural development including their right to complete independence. Accordingly, should the peoples of a non-self-governing territory freely consent to the division of their territory through their elected representatives or in a referendum this would not be unlawful. Since this is precisely what is contested between Mauritius and the UK, it will be for the ICJ to make an assessment of the legality of the detachment in light of the facts that have been presented to it.
What is clear is that the UK gave up any pretence of being able to make an effective legal argument that would justify the partition of its remaining colonies after 1960. This might explain why it detached the Chagos islands surreptitiously by an Order in Council under the Royal Prerogative far removed from the prying eyes of the United Nations in New York.