The ICJ Ruling on Kosovo and its Impact in Mauritius

By S. Modeliar

The ruling may have serious consequences and implications on the excision of Chagos from Mauritius. The UK may well argue that the excision or secession did not violate any international law rule

Following their allegation of an ethnic cleansing policy pursued by the late president Slobodan Milosevic of the Yugoslav Federation against the Albanians of Kosovo, the NATO countries bombed Kosovo to force out the Serb army.

After protracted negotiations the parties reached an agreement known as the Rambouillet Accord. Following this the Security Council passed a resolution, the UN Resolution 1244 of 1999, with the agreement of all its members, except China which abstained thus refraining from imposing a veto, “to establish an international civil presence in Kosovo in order to provide an interim administration for Kosovo under which the people of Kosovo can enjoy substantial autonomy within the Federal Republic of Yugoslavia, and which will provide transitional administration while establishing and overseeing the development of provisional democratic self-governing institutions to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo.”

It was made clear in the 1999 Resolution that the aim was to have: A political process towards the establishment of an interim political framework agreement providing for a substantial self-government for Kosovo, taking full account of the Rambouillet Accord and the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia and of the other countries of the region.

The UN Resolution that stated that Kosovo would be part of the Yugoslav Federation failed lamentably to take into account the historical and systemic hatred that exists between the Albanians and the Serbs. In spite of protracted negotiations in the last years of the UN Mission in Kosovo, no agreement could be reached between Serbia, Kosovo and the international community on the future status of Kosovo. It is no secret that, with the presence of NATO and a large European Union and American presence in Kosovo, the protectorate was looking towards both the European Union and the USA for help and guidance. It was under the pressure and guarantees as to security from both the European Union and the USA that Kosovo could be bold enough to unilaterally declare independence in February 2008. That was in effect secession from Serbia.

So far only 69 countries have recognized Kosovo. The European Union and the USA were among the first to do so and the European Union was very quick to send a civilian presence to replace the UN mission in 2008. It should be noted that only 22 out of the 27 European countries have recognized Kosovo. It is of significance to note that Spain, Cyprus, Romania have not done so. Countries like India with the Kashmir issue on her hands have also not recognized Kosovo. No country with a secessionist problem has recognized Kosovo. As pointed by The Economist (23 July): “It is, however, unlikely that China, with its eyes on Taiwan and Tibet, Russia, with its problems in Chechnya, and other countries in the world with secessionist movements will recognise Kosovo any time soon.”

Mauritius has not recognized Kosovo and even voted in favour of the Serbian resolution at the United Nations to allow Serbia to seek the advisory opinion of the International Court of Justice (ICJ). With the issue of the Chagos the position of Mauritius is understandable. While the ICJ has ruled that the declaration of independence does not violate any rule of international law, it has not made any pronouncement on the secession issue in spite of Serbia’s assertion that the declaration of independence by Kosovo was a flagrant violation of Serbia’s territorial integrity. Viewed from the ICJ perspective, the unilateral independence of Rhodesia, now Zimbabwe, by Ian Smith in the sixties would not have violated international law however morally reprehensible that move might have been. So if tomorrow Kashmir or Palestine or Tibet or Chechnya declares independence that would not violate international law. However none of these countries will do so because they will not have the blessing and the security guarantees that the European Union and the USA gave to Kosovo by pressing the leaders to declare independence. But what if they did? Would the European Union and the USA rush to their rescue?

It all boils down to politics and self interest at the end. The West has for a very long time wished to have a foot in the Balkans, and Kosovo was the golden gateway to get that foot there. It is a done deal and Kosovo is no more independent than it was under the Serbs. The European Union and the USA are running the country.

When the United Kingdom gave Mauritius independence in 1968, the Chagos islands were excised from what constituted the territory of Mauritius. It was a violation of our territorial integrity. Of course there is no issue of independence here. But when the ICJ says that Kosovo could legitimately declare independence without adding anything on secession from the Serbian territory, the ruling seems to be neither here nor there. Logically when a country declares independence, it becomes a subject of international law in its own right and is no part of any territory of sovereignty of any other State. By approving the independence of Kosovo, the ICJ has also decided that Kosovo could secede from Serbia though the Court does not say it explicitly.

The ruling therefore may have serious consequences and implications on the excision of Chagos from Mauritius. The United Kingdom may well argue that the excision or secession did not violate any international law rule. There may be some confusion or different interpretation of the ICJ ruling. The Irish Times (23 July) for example carries the following headline on the ICJ ruling: “Secession of Kosovo did not violate law, UN court finds”. Which is which?

That ruling needs to be analyzed in its minutest details so that nothing therein is allowed to impact on our negotiations with the United Kingdom on return of the Chagos to Mauritius. Under the previous Labour government in the United Kingdom, we saw a group of former residents of Mauritius/Chagos negotiating separately with the then government on the Chagos issue. One gentleman, Allen Vincatassin, who is the allegedly the head of the Diego Garcia Society in Great Britain that groups 2000 islanders and who champions the rights of the islanders in the United Kingdom, stated in an article written by Alex Morrison in The Guardian on 25 January 2010: “We are British Indian Ocean Territory citizens, which we are proud to be.” What if the United Kingdom gives back the islands to these islanders and in turn the latter declare independence, unilaterally proclaim secession from the territory of Mauritius and associate themselves to the United Kingdom? We are not in the world of fiction but in the mad and cruel world of politics.

The islands were excised in blatant violation of UN Resolution 1514 (XV) of 14 December 1960. There is also United Nations Resolution 2066 (XX) of 1965 about the illegality of Anglo-American occupation of the Chagos and the necessity for the retrocession of the islands to Mauritius. If the islands are to be resettled, they will still be part of Mauritius. Would the ICJ ruling nullify these Resolutions — as it has in the case of the UN Resolution 1244 of 1999 in the case of Kosovo? Paul Bérenger has, in a statement reported in Le Mauricien dated 26 July 2010, asked the government to reconsider its attitude towards Kosovo. That may not necessarily be politically or legally expedient until the full impact of the ruling has been studied.

* Published in print edition on 30 July 2010

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