Brownlie had in December 2003 when he advised the Mauritian Government already written the script which today has become a historical and landmark judgment of the ICJ to all peoples of former colonies and occupied territories
Sir Ian Brownlie, QC, (centre) appearing for Serbia at the International Court of Justice in the Hague in 2007
The Chagos advisory opinion delivered by the UN International Court of Justice constitutes a huge victory and a milestone for Mauritius after fifty years of independence that had remained unfinished business. In effect the judgment acknowledges the sovereignty of Mauritius over the Chagos Archipelago.
Before the ICJ, our legal team led by Philippe Sands QC, astutely framed the questions to be addressed by the ICJ as follows:
(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 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?”.
The term ‘sovereignty’ was carefully avoided precisely to prevent any legal objection on the grounds that the ICJ had no jurisdiction in the matter since it would amount to inviting the ICJ to determine a bilateral dispute between Mauritius and the UK. This was the basis of the argument of Judge Donoghue in her dissenting judgment. In focusing on the question of decolonization and the detachment of Chagos from the territory of Mauritius as a unit of self-determination Mauritius managed to defuse the issue of bilateral dispute.
As a consequence, the judgment of the Court to the effect 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, in effect means that Mauritius has sovereignty over the Chagos and can legitimately exercise its jurisdiction over the islands as part of its territory and her status as a unit of self-determination.
Hence the finding of the Court 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 is under an obligation to cease as soon as possible. The UK had therefore illegally dismembered the Mauritian territory at the time of independence.
The British Government had always argued that Mauritius gave consent to excision in 1965. Before the UN General Assembly it argued that the UK is in no doubt about its sovereignty over the Chagos. The Archipelago including Diego was detached from Mauritius in 1965 with the full agreement of Mauritius to form part of the so-called ‘British Indian Ocean Territory’. The Court found that the Council of Ministers of Mauritius simply did not have the legal capacity to agree to the separation of Chagos.
The decolonisation process could not have been complete since the free expression of the will of the people of Mauritius – still under British occupation – was never given. 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.’
The ICJ has now invited all UN Member States to cooperate in order to finalize the decolonization of Mauritius, since ‘self-determination is an obligation erga omnes’, and that the United Nations General Assembly must ensure the protection of the human rights of the expelled Chagossians. All states means that the invitation is also extended to the United States which has a military base on Diego Garcia.
As we celebrate this huge and significant legal victory, we must pay tribute and acknowledge the work of the legal team that have so skilfully conducted the case before the ICJ. Our thoughts should also go to our former legal consultant, a very special person, Ian Brownlie, former member of the International Law Commission of the UN and professor of International Law at the University of Oxford. It was Ian Brownlie who had shown the Mauritian Government the legal road to the ICJ. Brownlie, who unfortunately died in a car accident in Egypt on 3rdJanuary 2010, would have had the last laugh on hearing the outcome of the case before the ICJ.
In December 2003, he wrote: ‘The basis of entitlement of Mauritius to her territory is precisely her status as a unit of self-determination in accordance with the United Nations Charter and her consequent status as an independent State. Independence is the result of the fulfilment of a duty by the administering power to grant independence, a duty based upon the principle of determination. It follows that the granting of independence, and the principle of self-determination, relate to a particular population and territory, that is to say the relevant unit of self-determination.’ In adopting this approach, Brownlie had argued that the ICJ would implicitly address the question of sovereignty.
Brownlie had in December 2003 when he advised the Mauritian Government already written the script which today has become a historical and landmark judgment of the ICJ to all peoples of former colonies and occupied territories in their quest to their right to self-determination.
As regards the UK, the clock for a chexit has started ticking.
* Published in print edition on 1 March 2019