Self-determination beyond decolonization? The separation of the Chagos Archipelago
Diploma Thesis
by David Jaritsch
Submitted to be awarded the degree of a Magister iuris at the Karl-Franzens-Universität Graz
Supervisor:
Assoz. Prof. Mag.iur. Dr.iur. Yvonne Karimi-Schmidt
Institute of International Law and International Relations
Karl-Franzens-Universität Graz
Berlin, 13th April 2020
Selbstbestimmungsrecht abseits von Dekolonialisierung? Die Separation des Chagos Archipels
Diplomarbeit
vorgelegt von David Jaritsch
Zur Erlangung des akademischen Grades eines
Magisters der Rechtswissenschaften
an der Karl-Franzens-Universität Graz.
Betreuerin:
Assoz. Prof. Mag.iur. Dr.iur. Yvonne Karimi-Schmidt
Institut für Völkerrecht und Internationale Beziehungen
Karl-Franzens-Universität Graz
Berlin, 13. April 2020
For Marianna and My Parents
Declaration of Authorship
I hereby declare that this thesis and the work presented in it are, to the best of my knowledge and belief, original and entirely the result of my own investigations. Where I have consulted the work of another person, due reference is made in the text of the thesis. Moreover, I certify that this thesis has not been submitted, either in part or whole, for a degree at this or any other University.
Ehrenwörtliche Erklärung
Ich erkläre ehrenwörtlich, dass ich die vorliegende Arbeit selbstständig und ohne fremde Hilfe verfasst, andere als die angegebenen Quellen nicht benutzt und die den Quellen wörtlich oder inhaltlich entnommenen Stellen als solche kenntlich gemacht habe. Die Arbeit wurde bisher in gleicher oder ähnlicher Form keiner anderen inländischen oder ausländischen Prüfungsbehörde vorgelegt und auch noch nicht veröffentlicht. Die vorliegende Fassung entspricht der eingereichten elektronischen Version.
David Jaritsch
Berlin, 13. April 2020
I
Abstract
The right of a people to self-determination is rooted in a political concept. Over the years, it developed into a legal right. It represents a very intensively- and highly controversial debated issue in International Law. The two main questions concerning the right of a people to self-determination are:
Who is entitled, respectively, what constitutes a people? Is there a right to secession deriving from it?
In recent years examples such as Scotland, Crimea, and Catalonia show the importance of shedding light on the nature, content, and scope of the right of a people to self-determination.
In 2019 the International Court of Justice (ICJ) rendered an Advisory Opinion on the Legal Consequences of the separation of the Chagos Archipelago from Mauritius in 1965. Analysing that Advisory Opinion in the context of other relevant cases shall be the basis of the present Diploma Thesis in order to approach the central questions concerning the right of a people to self-determination. The case of the Chagos Archipelago is connected to the decolonization process. Nevertheless, the present Diploma Thesis aims to demonstrate how it may contribute to the further understanding of that fundamental principle of International Law. The Chagos Archipelago represents a well - suited research object for that purpose due to its relatively young but troubled history, small (former) population, geographical isolation, and the fact that it got separated from Mauritius in the middle of the era of decolonization.
II
Zusammenfassung
Das Selbstbestimmungsrecht der Völker hat seinen Ursprung in einem politischen Konzept. Über die Jahre hinweg entwickelte es sich in einen konkreten Rechtsanspruch. Die wissenschaftliche Debatte um das Selbstbestimmungsrecht der Völker gestaltet sich dabei äußerst intensiv und kontrovers. Zweifelsohne stellen die folgenden beiden Fragen den Mittelpunkt der zuvor erwähnten Debatte dar:
Wer ist Rechtsträger bzw. was ist „ein Volk“? Ist ein Rechtsanspruch auf Sezession aus dem Selbstbestimmungsrecht der Völker ableitbar?
Gerade in den letzten Jahren lehren uns Beispiele wie jene von Schottland, der Krim und Katalonien, das es wichtig ist die Rechtsnatur, den Inhalt und den Geltungsbereich des Selbstbestimmungsrechts der Völker näher unter die Lupe zu nehmen.
Im Jahr 2019 veröffentlichte der IGH ein Rechtsgutachten zu den Rechtsfolgen der Separation des Chagos Archipels von Mauritius in 1965. Die Analyse dieses Rechtsgutachtens im Zusammenhang mit anderen relevanten Fällen soll die Grundlage der vorliegenden Diplomarbeit bilden. Mittels dieser Vorgehensweise sollen die zentralen Fragen des Selbstbestimmungsrechts der Völker behandelt werden. Der koloniale Hintergrund des Chagos - Falles ist offensichtlich. Nichtsdestotrotz ist das Ziel der vorliegenden Diplomarbeit zu demonstrieren, wie dieser Fall zum weiteren Verständnis des Selbstbestimmungsrechts der Völker beitragen kann. Das Chagos Archipel ist ein außerordentlich interessantes Untersuchungsobjekt wegen seiner relativ jungen- und trotzdem sehr bewegten Geschichte, zahlenmäßig kleinen (ehemaligen) Bevölkerung, geographischen Isolation und dem Faktum, dass es inmitten des Dekolonialisierungsprozesses von Mauritius abgespalten wurde.
III
TABLE OF CONTENTS
Abstract ...... II
Zusammenfassung ...... III
List of Abbreviations ...... VII
Part I: Introduction ...... 1
A. Context and significance ...... 1
B. General information ...... 3
1. The Chagos Archipelago ...... 3
2. The Chagossians ...... 4
3. The creation of the British Indian Ocean Territory ...... 6
4. The expulsion of the Chagossians ...... 8
5. The Chagos case ...... 11
UNGA Res 71/292 (2017) ...... 11
Legal Consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ...... 13
Part II: Chagos and self–determination ...... 14
A. The right of a people to self-determination ...... 14
1. Self-determination and statehood ...... 14
Convention on rights and duties of States adopted by the seventh International Conference of American States (1933) ...... 15
2. Self-determination as a concept ...... 16
3. Self-determination as a right ...... 18
Charter of the United Nations (1945) Art 1 (2) and Art 55...... 18
Statute of the International Court of Justice (1945) Art 38 lit b ...... 19
International Covenant on Civil and Political Rights (1966); ...... 19
International Covenant on Economic, Social and Cultural Rights (1966) ...... 19
UNGA Res 2625 (XXV) (1970) ...... 20
4. Decolonization ...... 20
Charter of the United Nations (1945) Chapter XI ...... 21
IV
UNGA Res 1541 (XV) (1960) Principle IV ...... 22
UNGA Res 66(I) (1946) ...... 23
UNGA Res 146 (II) (1947); UNGA Res 219 (III) (1948); UNGA Res 332 (IV) (1949); UNGA Res 1654 (XVI) (1961); UNGA Res 1810 (XVII) (1962) ...... 23
UNGA Res 1514 (XV) (1960) ...... 24
5. The exercise of colonial self-determination ...... 25
UNGA Res 1541 (XV) (1960) Principle VI ...... 25
6. The free and genuine will of the Chagossians ...... 27
UNGA Res 2625 (1970) Principle V ...... 28
7. Possible consequences of free choice ...... 30
B. The question of peoplehood ...... 31
1. People as the subject of self-determination ...... 31
2. How many individuals are ‘a people’ ...... 33
3. Difficulties in defining peoplehood...... 34
4. Peoplehood and statehood ...... 36
5. The application of uti possidetis...... 38
C. The question of secession ...... 41
1. Definition of secession ...... 41
2. Normative theories on secession ...... 42
3. The right to secession ...... 43
Aaland Islands case (1920) League of Nations Official Journal Spec Supp 3 ...... 43
Reference re Secession of Quebec [1998] 2 SCR 217 (Supreme Court of Canada) ...... 44
Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) [2010] ...... 44
4. Secession as an exercise of self-determination ...... 46
5. The conflict of self-determination and territorial integrity ...... 48
Charter of the United Nations (1945) Art 2 (4) ...... 48
UNGA Res 2625 (XXV) (1970) Principle V ...... 50
6. The territorial integrity of Mauritius before independence ...... 52
V
UNGA Res 1514 (XV) (1960) para 6 ...... 52
UNGA Res 1654 (XVI) (1961) para 3 ...... 53
UNGA Res 2066 (XX) (1965) para 3 ...... 53
UNGA Res 2232 (XXI) (1966) para 4; UNGA Res 2357 (XXII) (1967) para 4 ...... 53
AU-AHSG Declaration 159 (XXXVI) (2000); AU Assembly Declaration 331 (XV) (2010) 54
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Advisory Opinion) [2004] ...... 54
Part III Conclusion and outlook ...... 56
Appendix ...... VIII
Map of the Chagos Archipelago...... VIII
Bibliography and References ...... IX
I. Authored Books ...... IX
II. Edited Books ...... X
III. Journal Articles ...... XI
Table of cases ...... XII
Legal Documents ...... XIII
UN Resolutions ...... XIV
UK and BIOT Legislation ...... XV
OAU and AU Resolutions ...... XV
Web Sources ...... XVI
VI
List of Abbreviations
Art Article AU African Union AU-AHSG African Union Assembly of Heads of State and Government BIOT British Indian Ocean Territory C 24 Special Committee on decolonization CIA Central Intelligence Agency ČSFR Czech and Slovak Federative Republic Doc Document EU European Union FRD Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice IESCR International Covenant on Economic, Social and Cultural Rights MS Member State NSGT Non-Self-Governing Territory OAU Organization of African Unity SFRY Socialist Federal Republic of Yugoslavia UK United Kingdom of Great Britain and Northern Ireland UN United Nations UN Charter Charter of the United Nations UNCLOS United Nations Convention on the Law of the Sea UNGA United Nations General Assembly UNSC United Nations Security Council USN United States Navy USSR Union of Soviet Socialist Republics
VII
Part I: Introduction
A. Context and significance
The traditional view on International Law indicates that the formation and disappearance of States is a matter of fact, rather than a matter of Law.1 It is hard to accept that opinion without contradiction, because States are still the central subjects of International Law. Changes in their status are therefore of high relevance. As it will be shown in the present Diploma Thesis, at least in the colonial context, the approach of regarding the formation and disappearance of States as a matter of fact, can be refuted.
On 25 February 2019, the International Court of Justice (ICJ) rendered an Advisory Opinion on ‘the Legal Consequences of the separation of the Chagos Archipelago from Mauritius in 1965’.2 In that Advisory Opinion the ICJ perfectly illustrates, how the General Assembly of the United Nations (UNGA) during the era of decolonization established rules and procedures on the creation of sovereign, independent States as one possible exercise of the right of a people to self- determination. It will be examined if these rules and procedures on the colonial right to self-determination are, to the same extent, applicable to non-colonial scenarios, especially with regard to secession. For that purpose, it will be analysed if decolonization can be equated with secession.
The central problem nowadays is that beyond the colonial context, no comparable rules and procedures for exercising the right of a people to self-determination have emerged. That is the case even though the scope of application of that fundamental principle of International Law is, according to the ICJ, not limited to colonial situations.3 There is a need for International Law to regulate that issue, especially because the formation of new States will not simply stop because colonialism will cease to exist. Just the reasons leading to the State-creation and the modalities surrounding it will be different ones.
1 See Antonello Tancredi, ‘A normative ‘due process’ in the creation of States through secession’ in Marcelo Kohen (ed), Secession: International Law Perspectives (Cambridge University Press 2008) 171. 2 Legal Consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019]
The decolonization process can be seen as the ‘first-round’ of the exercise of the right of a people self-determination. The consequence of that process will be a map of the world, which is more or less divided into a universal system of States. There will be no corner of the world left, which is not be controlled by the authority of a specific State. Of course, there will be disputed boundaries. Not to mention, the high seas which are open to all States4, or the possibility of climate change causing a rise of the sea-level making landmasses appear and disappear. Besides these exceptions terrae nullius, an area, which is not part of the territory of an already existing State, is factually no longer existent.5 That significantly limits the spatial possibilities for the emergence of new States. After the decolonization process has come to an end, new States will therefore only be able to come into existence either through an already existing State losing part of its territory or even disappear at all. For that reason, the regular case for new States coming into existence will be primarily through secession. That is why it is necessary to discuss the nature, content, and scope of the right of a people to self-determination beyond the colonial context, especially with regard to secession.
In the present Diploma Thesis, that examination will happen for both- colonial and post-colonial self-determination alike, based on the separation of the Chagos Archipelago from Mauritius in 1965, before the independence of the latter, and the most recent Advisory Opinion of the ICJ from 2019 regarding that case. In that Advisory Opinion, the ICJ draws a detailed picture of the colonial right to self- determination. That offers the perfect foundation to discuss the influence these rules and procedures may have on the further development of the right of a people to self- determination, especially on scenarios that go beyond the colonial context.
4 See United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (UNCLOS) Art 87. 5 See Malcolm Shaw, International Law (6th edn, Cambridge University Press 2008) 198. 2
The historical background of the Chagos Archipelago and its inhabitants is tragic and interesting at the same time. Before turning to the legal analysis of the Advisory Opinion, the following Chapters are devoted to the essential facts of the Chagos case. A brief overview of the expulsed (former) population of the Archipelago, the Chagossians, its geographical location, and its general history should pave the way for further examination. Particular emphasis shall be on the events, which led to the Advisory Proceedings in front of the ICJ. Namely, these events are the separation of the Chagos Archipelago from Mauritius in 1965, the establishment of the British Indian Ocean Territory (BIOT) and the expulsion of the Chagossians, as well as the establishment of military facilities on the island of Diego Garcia.
B. General information
1. The Chagos Archipelago
The Chagos Archipelago is a collection of islands and atolls in the middle of the Indian Ocean.6 It is located approximately half-way between Africa and Indonesia.7 Diego Garcia is the main island of the Archipelago and with about 27m², makes up around half of its total land area.8 It is worth stressing, for the purpose of the present work, that the Chagos Archipelago has no direct land connection to the territory of Mauritius. The distance between Diego Garcia and Port Louis, the capital of Mauritius, amounts to approximately 2150 km bee-line.9 To get an idea of the dimension: that is almost the same distance as between Brussels (Belgium) and Tripoli (Libya).10
6 See Charles Sheppard and Anne Sheppard, ‘British Indian Ocean Territory (Chagos Archipelago)’ in Charles Sheppard (ed) World Seas, an Environmental Evaluation Volume II: The Indian Ocean to the Pacific (2nd edn, Elsevier 2019) 237. 7 See Central Intelligence Agency (CIA), The World Factbook 2020 (Central Intelligence Agency 2020)
During its colonization, the sovereignty over the Chagos Archipelago changed multiple times. Eventually, it came under the rule of the United Kingdom of Great Britain and Northern Ireland (hereinafter United Kingdom; UK). The fate of the Archipelago was always closely connected to Mauritius. That is why the Chagossian history is also Mauritian history and the other way around. The Dutch Empire established its first formal settlement on Mauritius in 1638.11 After attempts to set up a colony failed, the Dutch Empire abandoned the island in 1710.12 France established its first colonial regime there in 1715, bearing the name Île de France.13 The British Empire conquered the French colony in 1810 and renamed it to Mauritius.14 In 1814 France ceded Mauritius to the British Empire in the Treaty of Paris.15 The cession furthermore included the dependencies of Mauritius. Like that also the Chagos Archipelago was handed over to the British Empire. Together with the Seychelles, it was from then on governed as a dependency of Mauritius during the whole colonial era until 1965.16
2. The Chagossians
The history of the Chagossians is one that perfectly mirrors the age of colonialism, characterized by slavery and inhumanity. Until the 18th century, no human beings inhabited the Chagos Archipelago.17 The first people were brought there as slaves in 1783.18 These slaves were brought to the Archipelago from Mozambique and Madagascar and forced to work on coconut (copra) plantations.19
11 See Megan Vaughan, Creating the Creole Island: Slavery in Eighteenth-Century Mauritius (Duke University Press 2005) 6. 12 See Ibid 18. 13 See Chagos Advisory Opinion (n 2) para 27. 14 See Chit Dukhira, History of Mauritius: Experiments in Democracy (C Dukhira 2002) 15. 15 See A definitive treaty of peace between His Britannic Majesty and His Most Christian Majesty Louis XVIII (concluded 30 May 1814)
In the following years, more humans, especially from Africa, were brought to the Chagos Archipelago.20 Through the Slavery Abolition Act 1833, slavery was abolished throughout the British Empire, which eventually led to the end of that inhumane practice in Mauritius and its dependencies in 1835.21
The copra plantations, however, did not cease to exist. In the following years, indentured labourers, mainly from India but also a few with European and Chinese roots came to the Chagos Archipelago to work.22 The diverse ethnicities on the islands merged over the years to become the Chagossians, also known as Chagos Islanders or Ilois. The Chagossians, in the course of time, developed their own language, established basic infrastructure, and had their own, distinct culture.23
The society of the Chagos Islanders had nothing in common with the Mauritian one, except its connection through the plantation system.24 The relationship the Chagossians developed with the Archipelago can be described as an indigenous one.25 During the 20th century, before the eviction of the Chagossians, the Chagos Archipelago had an estimated population between 1,500 and 2,000 inhabitants.26 Most of the native Chagos Islanders and their descendants nowadays live in Mauritius, the Seychelles, or the UK.27 They are suffering from severe problems, such as poverty and discrimination in their respective new home countries.28
20 See Vine (n 17) 24. 21 See Slavery Abolition Act 1833 (28 August 1833) UK Official Gazette 1833 (Public General Act c 73) para LXV. 22 See Vine (n 17) 11. 23 See Ibid 12. 24 See Vine (n 17) 25. 25 See Kinnari Bhatt, ‘A post-colonial legal approach to the Chagos case and the (dis)application of land rights norms’ (2018) 55 Int J Law Context 1, 4. 26 See Vine (n 17) 12. 27 See Caroline Mortimer, Where are the Chagos Islands and why has Pope Francis weighed in on the controversy? (Euronews 2019)
3. The creation of the British Indian Ocean Territory
The reasons why the Chagossians were expulsed from their Archipelago were particularly of political and military-strategic significance. Already during the 18th century, the UK and France discovered the strategic advantages of the main island of the Chagos Archipelago, Diego Garcia, as a naval base.29 Centuries later, around 1958, United States Navy (USN) official Stu Barber started to develop the ‘strategic island concept’.30 That concept emphasized that the emerging process of decolonization, local populations, and Governments of decolonized States were imposing a threat to military facilities overseas.31 Because the process of decolonization was already ongoing at the same time as the concept was developed, it seemed necessary from the perspective of the USA to act quickly and attain the possibility to establish future bases on the remaining islands under a colonial rule such as the Chagos Archipelago.32 The initial idea was to stockpile potential strategically important islands to be available for use if needed.33
The geographical location of the Chagos Archipelago in the middle of the Indian Ocean sparked the interest of the USN, which led it to initiate secret negotiations with the UK.34 The ideas of the strategic island concept were further developed by USN Admiral Arleigh Burke, who suggested to the officials of the UK to detach the Chagos Archipelago from Mauritius and other territories from the Seychelles in order to create a new territory for military use.35 Formal discussions between the two parties regarding the establishment of military facilities on Diego Garcia started in February 1964.36 The USA, for that purpose, drafted a talking paper called ‘Defence Problems in the Indian Ocean Area’ as a foundation for the negotiations.37
29 See Vine (n 17) 13. 30 See David Vine, Island of Shame: The Secret History of the U.S. Military Base on Diego Garcia (Princeton University Press 2009) 41. 31 See Ibid. 32 See Ibid 42. 33 See Ibid. 34 See Vine (n 17) 32. 35 See Vine (n 30) 69. 36 See Chagos Advisory Opinion (n 2) para 31. 37 See Nina Davis Howland and David Patterson (eds), Foreign Relations of the United States, 1964- 1968, Volume XXI, Near East Region; Arabian Peninsula (Washington: Government Printing Office, 2010), document (doc) 33. 6
In addition, in that talking paper, the intention of having a strategic military base in the Indian Ocean close to the communist regimes becomes evident.38 A second driving interest of the USA was also explicitly mentioned in the paper: guarding oil reserves in the Persian Gulf Area.39
On 30 December 1966, the UK and the USA concluded the ‘Agreement concerning the Availability for Defence Purposes of the British Indian Ocean Territory’.40 To meet the agreed strategic plans in the Indian Ocean, the UK showed a willingness to detach the Chagos Archipelago from Mauritius and the islands Aldabra, Farquhar, and Des Roches from the Seychelles.41 While negotiating the independence of Mauritius, the UK pressured the representatives of Mauritius to achieve the detachment of the Chagos Archipelago.42
Apart from that, Mauritius was offered 3 million British Pounds in addition to independence in order to give up territorial claims on the Chagos Archipelago. The first prime Minister of Mauritius, Seewoosagur Ramgoolam accepted that deal and the first Council of Ministers of Mauritius confirmed it.43 In 1965, the UK separated the Chagos Archipelago from the Non-Self-Governing Territory (NSGT) of Mauritius, the UNGA reminded the UK to undertake no action, which would dismember the territory of Mauritius and like that violate its territorial integrity.44
38 See Davis Howland and Patterson (n 37) doc 33. 39 See Ibid. 40 Agreement concerning the Availability for Defence Purposes of the British Indian Ocean Territory (concluded 30 December 1966, registered 22 August 1967) 603 UNTS 273. 41 See Davis Howland and Patterson (n 37) doc 38. 42 See Vine (n 30) 82. 43 See Charles Cadoux, ‘Diego Garcia: A Strategic Base’ in Karen Jacobs Sparks (ed) Britannica Book of the Year: 2004 (Encyclopaedia Britannica 2004) 354. 44 See UNGA Res 2066 (XX) (16 December 1965) UN Doc A/RES/2066(XX). 7
In the same manner, the UNGA stated that the partial or total disruption of the national unity and the territorial integrity of colonial entities and the establishment of military bases and installations on their territory is incompatible with the purposes and principles UN Charter and of UNGA Resolution 1514 (XV).45 With an Order in Council, avoiding the approval of the British Parliament, the Government of the UK created the BIOT on 8 November 1965 with the Chagos Archipelago constituting a part of it.46
In the aftermath of these events, Mauritius became independent in 1968, and in the same year, it became a Member of the United Nations (UN).47 The separation of the Chagos Archipelago happened incontrovertible in connection with the independence of Mauritius and out of military-strategical considerations.
4. The expulsion of the Chagossians
In the aftermath of the creation of the BIOT, the Chagossians were evicted from their islands, indirectly but forcefully, because of the absence of any direct measures by the UK and the USA, in a manner that can best be described as systematic deportation. The first intention was to make the emigration seem rather voluntarily than constrainedly.48 The BIOT administration ordered the plantation management to prevent Chagossians who have been on holiday or for medical treatment and other reasons outside of the Archipelago from returning.49
45 See UNGA Res 2232 (XXI) (20 December 1966) UN Doc A/RES/2232(XXI). 46 The British Indian Ocean Territory Order 1965 (8 November 1965) BIOT Official Gazette 1965 (Statutory Instrument No 1). 47 See UNGA Res 2371(XXII) (24 April 1968) UN Doc A/RES/2371(XXII). 48 See Vine (n 17) 80. 49 See Ibid 92. 8
As the second stage of the eviction, the BIOT administration started gradually reducing existential services like food supplies to the minimum.50 The BIOT administration, in that way, managed to create an exodus of people working in crucial infrastructures like hospitals and schools.51 In 1971 the BIOT administration ultimately shut down the plantation, and the remaining population was offered to get either resettled to Mauritius or the outer islands of the Archipelago, namely Peros Banhos or the Salomon Islands.52
Through the Immigration Ordiance 1971 it became unlawful and a criminal offense for anyone to enter or remain on the Chagos Archipelago, without a permit issued by immigration officers.53 A short time before the eviction was completed, the BIOT commissioner, Bruce Greatbatch, ordered the plantation management to kill the pet dogs of the Chagossians, which happened in a cruel manner by gassing them.54 In October 1971, the remaining Chagossians on Diego Garcia were removed in overcrowded boats under inhumane conditions.55 Those who chose to resettle on Peros Banjos and the Salomon Islands were forced to leave in 1973, which completed the expulsion.56
After the islands were ‘cleaned’ from all human beings, it was possible to establish the desired military facilities on Diego Garcia.57 Initially started as a communications station, the facilities were expanded into a military base of significant size.58 During the Persian Gulf War (1990/91), the war in Afghanistan (2001), and the Iraq war (2003), the military base on Diego Garcia proved its great importance as a strategic military base for the USA.59
50 See Vine (n 17) 93. 51 See Vine (n 17) 93. 52 See Ibid 108. 53 The Immigration Ordiance 1971 (16 April 1971) BIOT Official Gazette 1971 (Ordiance No 1) section 4. 54 See Vine (n 17) 113. 55 See Ibid 114. 56 See Ibid 120. 57 See Exchange of notes constituting an agreement supplementing the above-mentioned Agreement concerning a Limited United States naval communications facility on Diego Garcia, British Indian Ocean Territory (concluded 24 October 1972, registered 11 April 1973) 866 UNTS 302. 58 See Exchange of notes between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America concerning the construction of a monitoring facility on Diego Garcia, British Indian Ocean Territory (concluded 21 July 1999, registered 17 May 2000) 2106 UNTS 293. 59 See Cadoux (n 43) 354. 9
These events led to two main conflict areas: the first one regarding the sovereignty over the Archipelago and the second one concerning the right to return of its former inhabitants. The present Diploma Thesis focusses on the territorial aspect of separation. Nevertheless, also the faith of the Chagossians shall not remain unmentioned because, since their eviction, they are battling in front of national- and international Courts for their right to compensation and to return. One notable example is the Bancoult 1 case from 1998.60 An appeal to the European Court of Human Rights (ECHR) by the Chagos Islanders was rejected due to inadmissibility.61
As already mentioned, the separation of the Chagos Archipelago, followed by the eviction of the Chagossians, led to a dispute on the sovereignty over the Archipelago between Mauritius and the UK. The BIOT Commissioner declared a Marine Protected Area (MPA) around the BIOT on 1 April 2010.62 That can also be interpreted as an attempt to render claims to self-determination impossible. Mauritius challenged that course of action and initiated Arbitration Proceedings under Annex VII to the United Nations Convention on the Law of the Sea (UNCLOS).63 In March 2015, the Arbitral Tribunal basically found that the declaration of the MPA was not in accordance with the UNCLOS provisions.64
Eventually, the events led to the Advisory Proceedings in front of the ICJ regarding the case of the Chagos Archipelago and its consequences under International Law. By the end of 2016, the 50-year running time of the agreement concerning the Availability for Defence Purposes of British Indian Ocean Territory from 1966 expired.65 The USA and the UK agreed to extend the period for another 20 years as it was also contemplated in the agreement.66
60 See R v Secretary of State for Foreign and Commonwealth Affairs, ex p Bancoult (No 1) [2000] EWHC Admin 413 (UK). 61 See Chagos Islanders v the United Kingdom (Decision) [2012] ECHR 35622/04, para 87. 62 See Proclamation No 1 of 2010 by Colin Roberts, Commissioner for the British Indian Ocean Territory (1 April 2010) BIOT Official Gazette 2010 (Proclamation No 1) 63 Chagos Marine Protected Area Arbitration Mauritius v. United Kingdom (PCA Award) [2015] case no 2011-03. 64 See Ibid para 547. 65 See Agreement concerning the Availability for Defence Purposes of the BIOT (n 40) para 11. 66 See Henry Mance, Extended US lease blocks Chagossians return home (Financial Times 2016)
5. The Chagos case
UNGA Res 71/292 (2017)
On 22 June 2017, the UNGA requested the ICJ to render an Advisory Opinion on the Legal Consequences of the separation of the Chagos Archipelago from the former colony and today's Republic of Mauritius by the UK in 1965.67 The questions put forward to the ICJ by the UNGA were the following ones:
Question 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 1967’68
Question 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’69
In the run-up to the Advisory Proceedings concerns were raised, that the ICJ would use its discretionary power and not render an Advisory Opinion. That was because the request for an Advisory Opinion was brought forward not by Mauritius, but by the UNGA and the case may concern a bilateral dispute.70
67 See UNGA Res 71/292 (22 June 2017) UN Doc A/RES/71/292. 68 Ibid. 69 Ibid. 70 See for example Thomas Burri ‘Two points for the International Court of Justice in Chagos: Take the case, all of it – It is a human rights case’ (2018) 55 QIL 93, 96 or Julia Wagner ‘The Chagos request and the role of the consent principle in the ICJ’s advisory jurisdiction, or: What to do when opportunity knocks’ (2018) 55 QIL 177, 177. 11
That is the case because one central aspect of the conflict over the Chagos Archipelago is that it embraces a conflict on who is entitled to sovereignty over it, between the UK and Mauritius.71 That was also a reason why the possible use of its discretional power by the ICJ was one of the core issues of the present case. States do not necessarily need to consent to the settlement of such a dispute in front of the ICJ.72 As Vice-President Hanquin Xue also described it in her declaration to the Advisory Opinion, the sole fact that the subject of matter involves a bilateral dispute does not automatically mean that the Court has to decline to give an Advisory Opinion.73 This is due to the fact, that an Advisory Opinion has no binding force.74 The questions put forward to the ICJ have to be of particularly acute concern to the UN and must concern a much broader context than just a bilateral issue.75
The wording chosen by the UNGA when formulating the questions focuses on decolonization rather than the question of sovereignty over the Archipelago. That phrasing by the UNGA allowed the ICJ to give an Advisory Opinion, which fulfils its purpose of being helpful for the UNGA in exercising its functions on the decolonization of Mauritius. Moreover, it perfectly demonstrates the crucial role, which narratives play when the issue of self-determination arises.
71 See Chagos Marine Protected Area Arbitration (n 63) para 164. 72 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Advisory Opinion) [2004] ICJ Rep 136, para 47. 73 See Declaration Vice-President Xue
Legal Consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019]
On 25 February 2019, the ICJ, after also intensively debating the question of discretion during the Advisory Proceedings, proved that all concerns mentioned before were unfounded and delivered its Advisory Opinion pursuant to Article (Art) 65 of its Statute.76 The Court concluded:
With regard to question a) ‘as a result of the Chagos Archipelago’s unlawful detachment and its incorporation into a new colony, known as the BIOT, the process of decolonization of Mauritius was not lawfully completed when Mauritius acceded to independence in 1968.’77
With regard to question b) ‘the United Kingdom has an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible, and that all Member States must co-operate with the United Nations to complete the decolonization of Mauritius’78
With regard to the resettlement of the Chagossians, the Court concluded that: ‘this is an issue relating to the protection of the human rights of those concerned, which should be addressed by the General Assembly during the completion of the decolonization of Mauritius.’79
Even though the ICJ, in that case, explicitly focused on the right of a people to self- determination from the perspective of decolonization80, it should not be neglected, that that right has also gained significance beyond the colonial context. The ICJ, for example, considers the right of a people to self-determination as a fundamental human right with a broad scope of application.81 Because of that, in the present Diploma Thesis, there is no such self-restriction as in the Advisory Proceedings.
76 Chagos Advisory Opinion (n 2). 77 See Ibid para 174. 78 See Ibid para 182. 79 See Ibid para 181. 80 See Ibid para 144. 81 See Ibid. 13
Part II: Chagos and self–determination
A. The right of a people to self-determination
1. Self-determination and statehood
The present Diploma Thesis aims to analyse the right of a people to self- determination in the light of the Advisory Opinion on the Chagos Archipelago. Because self-determination is inextricably linked with statehood, characterization of their relationship is indispensable. States are the central subjects of International Law. As a consequence of their status as international legal persons, States are unable to any conscious decision making, to perform any acts, or even to emerge without natural persons acting.82 That is the point where self-determination comes into play: it is the binding force that connects the natural persons with the State. Because of its lack of consciousness, any actions of a State have necessarily to be shaped through the will of natural persons, a group of people which is, at least in democratic societies, the population of the State through its elected Government.
The prevailing theory in International Law, at least in the German-speaking legal sphere, on what constitutes a State, is the theory of the tree elements invented by Georg Jellinek.83 That theory offers a scientific model on what the building blocks of States are, reduced to the essential, objective perceptible criteria. According to that theory, a State consists of three constitutive elements: a territory, a permanent population, and an effective and independent Government.84 There is no hierarchy of these elements. A State comes into existence only if all of them are present, and vice versa does not exist when one of these elements is missing.
82 See August Reinisch, Ignaz Seidl-Hohenveldern, Waldemar Hummer and Heribert Köck, ‘Die Völkerrechtssubjekte‘ in August Reinisch (ed), Österreichisches Handbuch des Völkerrechts Band I: Textteil (5th edn, MANZ 2013) para 710. 83 See Georg Jellinek, Allgemeine Staatslehre (3rd edn Springer 1929) 144. 84 See Ibid. 14
Convention on rights and duties of States adopted by the seventh International Conference of American States (1933)
The Montevideo Convention from 1933 contains the same three elements as the State-theory of Georg Jellinek and, besides, refers to a fourth element, the ‘capacity to enter into relations with the other States’.85 That fourth element can be rather seen as a consequence of statehood, not as a prerequisite of it.86 To break it down to the essentials: the theory of Georg Jellinek represents a more declaratory approach87, where recognition plays only a subordinate role for the existence statehood while the Montevideo Convention 1933 represents a more constitutive one88, where recognition by other States is a prerequisite for an entity to be considered as a State. Even though that binary view, which does not allow any gray areas, is in no way adequate to fully describe the complex phenomenon of State-creation, for the purpose of the present Diploma Thesis, the approach of Georg Jellinek should serve as a working hypothesis. It is still well suited to describe the majority of cases, where statehood is not disputed. In borderline cases, other facts may be taken into consideration, among them especially recognition by other States.
Besides the definition of statehood, the State-theory of Georg Jellinek also contains an explanation of the relationship between the State and its permanent population. According to that approach, the term ‘permanent population’ seems interchangeable with ‘a people’. ‘A people’ is a multitude of individuals, but it is also more than that, and most importantly, it forms a legal will through a common organization.89 That legal will is preserved through the State even though the individuals who initially established it change over generations.90 Understanding self-determination as being the mode merging the three elements leads to the conclusion that ‘a people’ are all groups of individuals organized in a State, also embracing minorities and indigenous peoples. There is no State without people and no people free from the authority of a State.
85 See Convention on Rights and Duties of States adopted by the Seventh International Conference of American States (adopted 26 December 1933, entered into force 26 December 1934) 165 LNTS 21 (Montevideo Convention 1933) Art 1 lit d. 86 See Reinisch (n 82) para 619. 87 See James Crawford, The Creation of States in International Law (2nd edn Oxford University Press 2007) 4. 88 See Ibid. 89 See Jellinek (n 83) 145. 90 See Ibid. 15
Necessarily the classical perception that only States constitute subjects under International Law and enjoy legal personality under International Law is not tenable anymore. The recognition of a right of a people to self-determination requires the acceptance of individuals or groups of individuals in the shape of peoples as subjects under International Law in order to be entitled to that right. There was a paradigm shift on that issue since there is broad acceptance among scholars, which is also reflected in State-practice on extending (partial) legal personality under International Law also to individuals.91 Because the existence of the right of a people to self- determination is borne by the prevailing opinion of scholars and States, there is a strong argument in favour of a (partial) legal personality of peoples under International Law. Despite that shift of paradigm International Law is still exclusively created by States or by institutions created by them.
2. Self-determination as a concept
The very idea that a State is established through the consent of the people who live in it is in no way a new one. It dates back to the social contract theory famously represented by Thomas Hobbes.92 The biggest conceptual weakness of the social contract theory is that most States were not established through a democratic process, but through conflict and power struggles93, what makes a commitment to such a social contract by the majority of the people affected virtually impossible. Also, it lacks to explain how to deal with generational change. It is indeed hard to explain how individuals born into an existing State shall be bound to a social contract concluded by previous generations because they could not have possibly consented to it in any way.
91 See Wolfgang Benedek, ‘Das Individuum im Völkerrecht in August Reinisch‘ (ed), Österreichisches Handbuch des Völkerrechts Band I: Textteil (5th edn, MANZ 2013) para 1238. 92 See Thomas Hobbes, ‘Leviathan’ (first published 1651) in Richard Tuck (ed) Hobbes Leviathan Revised Student Edition (Cambridge University Press 1996) 121. 93 See Jörg Fisch ‘Peoples and Nations’ in Bardo Fassbender and Anne Peters (eds) The Oxford Handbook of History of International Law (1st edn, Oxford University Press 2012) 30. 16
Another concept of paramount importance, famously represented by Jean-Jacques Rousseau, dealt with the international legal consequences of sovereignty.94 Its central postulate is the one of popular sovereignty, which states that the people inhabiting the State and not the State itself are the subjects who bear sovereignty.95 A theory, famously represented by Hugo Grotius, is one of the rights to resistance, which expresses the position that people have the right to resist against an unjust Government.96 These three theoretical streams can be seen as the ones paving the way to make individuals the defining component of statehood, which gradually developed into the political concept of self-determination.97 The difference between political concepts and legal norms is that the latter constitutes established norms for which instruments exist to enforce them.98 The development of such instruments concerning self-determination happened at a later point during the colonial era by the UNGA.
The first practical examples where people claimed their entitlement to self- determination can be seen in the American Revolutionary War (1775 – 1783) and the French Revolution (1789 – 1799).99 In the American Revolutionary War, the claim for independence was based on the existence of an entitlement to sovereignty and resistance.100 At the beginning of the 20th century, after the First World War, the principle of self-determination was not applied due to political considerations on both sides, so borders were not drawn along the lines of nationality or ethnicity.101 During the Russian Revolution in 1917, Vladimir Lenin proclaimed the right to self- determination, including a right to secede addressed to the Russian population as well as the enemies of Russia.102
94 See Fisch (n 93) 30. 95 See Ibid. 96 See Ibid. 97 See Han Liu, ‘Two Faces of Self-determination in political divorce’ (2016) 10 ICL Journal 355, 356. 98 See Jellinek (n 83) 20. 99 Christian Walter and Antje von Ungern-Sternberg ‘Introduction: Self-Determination and Secession in International Law-Perspectives and Trends with Particular Focus on the Commonwealth of Independent States’ in Christian Walter, Antje von Ungern-Sternberg and Kavus Abushov (eds) Self- Determination and Secession in International Law (Oxford University Press 2014) 2. 100 See Fisch (n 93) 33. 101 See Ibid 40. 102 See Ibid. 17
The American President Woodrow Wilson adopted the terminology of “self- determination” despite being in favour of self-government103 after implicitly already referring to self-determination in his famous Fourteen Points.104 Even the National Socialist Regime in Germany (miss-) used the concept of self-determination to justify its expansion plans.105 After the Second World War, the colonial powers continued to promote a ‘two - tier society’ supporting self-determination for European peoples while refusing to grant it to native peoples under colonial rule.106
3. Self-determination as a right
Charter of the United Nations (1945) Art 1 (2) and Art 55
The era of the UN, which began in connection with the end of the Second World War, marked the beginning of new developments. The political concept of self- determination during that period evolved into a legal one. In 1945, the principle of self-determination was incorporated into Art 1 (2) and Art 55 of the Charter of the United Nations (UN Charter), so it became enshrined into positive Law for the very first time.107 The just mentioned Charter provisions are not precise enough to derive a concrete right in the meaning of entitlement out of them. Neither they say anything about the nature, content, and scope of that right. The consequence of the very general wording of the provisions in the UN Charter is that it is necessary to determine the nature content and scope of the right of a people to self-determination through interpreting them. For the same reason, a tendency towards an opportunistic interpretation by political actors developed.108 Narratives play an essential role when self-determination becomes the subject of a dispute. The further development into a concrete entitlement has, therefore, to be seen in the process of the ongoing interpretation of the Charter provisions.109 Self-explanatory that process is one of gradual development. The normative value of the right of a people to self- determination can primarily be found in customary International Law.
103 See Fisch (n 93) 41. 104 See Peter Hilpold ‘Das Selbstbestimmungsrecht der Völker’ in August Reinisch (ed), Österreichisches Handbuch des Völkerrechts Band I: Textteil (5th edn, MANZ 2013) para 1523. 105 See Fisch (n 93) 42. 106 See Ibid 45. 107 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 (UN Charter) Art 1 (2); Art 55. 108 See Micheli Quadros, ‘Secession: The Contradicting Provisions of the United Nations Charter – A Direct Threat to the Current World Order’ (2016) 14 (02) Santa Clara J Int'l L 460, 475. 109 See Shaw (n 5) 254. 18
Statute of the International Court of Justice (1945) Art 38 lit b
Customary International Law is established through the presence of opinio juris and State-practice.110 As the ICJ also pointed out in its Advisory Opinion on the Chagos Archipelago, these elements are consolidated and confirmed gradually over time.111 In many of its Advisory Opinions, the ICJ dealt with questions concerning self- determination, which makes them a valuable auxiliary source to determine the state of customary International Law on that topic.
In the ICJ Advisory Opinion on the Chagos Archipelago, the ICJ gives a detailed description of the state of customary Law on the right of a people to self- determination in the era of decolonization. During that period of time, the first central area of application of that legal right emerged. Most of the specifications of self-determination as customary norms evolved in connection to decolonization and were incorporated into the central legal instruments which are applied to interpret the scope of that right.
International Covenant on Civil and Political Rights (1966);
International Covenant on Economic, Social and Cultural Rights (1966)
The most prominent examples of the legal instruments mentioned before are: the International Covenant on Civil and Political Rights (ICCPR)112, the International Covenant on Economic, Social and Cultural Rights (IESCR)113 and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (hereinafter Friendly Relations Declaration; FRD).114 The ICCPR and the IESCR are also known as the two human rights covenants.
110 See Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 (ICJ Statue) Art 38 lit b. 111 See Chagos Advisory Opinion (n 2) para 142. 112 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 113 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 114 UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625 (XXV). 19
UNGA Res 2625 (XXV) (1970)
The FRD is generally a soft Law instrument but has gained significant importance in the interpretation of International Law. It can be described as an ‘authoritative interpretation’ of the UN Charter.115 With the incorporation into common Art 1 of the two human rights covenants, the right of a people to self-determination became a legal right whose human rights dimension cannot be denied. Even the ICJ acknowledged that the right of a people to self-determination is a fundamental human right.116 The humanitarian perspective is crucial. In general, the right of a people to self-determination provides the people concerned the means to establish and subsequently live in a political system on their territory, which respects and protects their human rights.
4. Decolonization
To describe the conflict surrounding the Chagos Archipelago as a simple bilateral, sovereignty dispute belittles the significance of the right of a people to self- determination gained in the decolonization process. Vice-President Hanquin Xue got to the heart of the matter when she clarified in her declaration to the Advisory Opinion:
‘Given the historical background of the separation of the Chagos Archipelago, it is difficult to accept that the issue of the detachment of the Chagos Archipelago, with the lapse of time, has evolved into a bilateral territorial dispute beyond the frame of decolonization.’117
The dispute between the UK and Mauritius cannot be seen isolated from the complex of decolonization and like that, be downgraded to an ordinary bilateral dispute. It would be most definitely unreasonable to spare the issue of decolonization.
115 See Kirsten Schmalenbach and Christoph Schreuer, ‘Die Internationalen Organisationen‘ in August Reinisch (ed), Österreichisches Handbuch des Völkerrechts Band I: Textteil (5th edn, MANZ 2013) para 1051. 116 See Chagos Advisory Opinion (n 2) para 144. 117 Declaration Vice-President Xue (n 73) para 5. 20
The first central area of application of the right of a people to self-determination was the decolonization process in the second half of the 20th century. It started steadily when, within the International Community, consciousness emerged that colonialism does not comply with the purposes of the UN Charter.118 Numerous peoples established their own States in the exercise of a legal right and freed themselves from alien domination at that time. During the peak of the decolonization process, until 1980, 49 former colonial territories became independent from the UK.119 The Republic of Mauritius, whose decolonization, however, is not yet lawfully completed, was also among these newly independent States.120 In its Advisory Opinion on the Chagos Archipelago, the ICJ implies that the right of a people to self- determination for colonial peoples in the relevant period between 1965 and 1968 existed as a part of customary International Law.121 The right of a people to self- determination in that regard imposes a duty to the colonial powers to respect that right and an erga omnes obligation to all States to protect it.122
Charter of the United Nations (1945) Chapter XI
The declaration regarding Non-Self-Governing Territories laid down in Chapter XI of the UN Charter is the foundation for the Law on decolonization.123 The entities that declaration is dealing with are so-called ‘Non-Self-Governing Territories (NSGT). They are entities that have not yet attained self-government.124
118 See Len Scott, ‘International History 1900-90’ in John Baylis, Patricia Owens and Steve Smith (eds), The Globalization of World Politics: An Introduction to International Relations (Oxford University Press 2016) 58. 119 See Ibid 59. 120 See Chagos Advisory Opinion (n 2) para 174. 121 See Ibid para 152. 122 See Ibid para 180. 123 See UN Charter (n 107) Chapter XI. 124 See Ibid Art 73. 21
UNGA Res 1541 (XV) (1960) Principle IV
According to the so-called salt-water doctrine, a NSGT is ‘a territory which is geographically separate and is distinct ethnically and/or culturally from the country administrating it’.125 If these circumstances are given, other facts may be taken into consideration, such as economic or historical ones.126
The goal immanent in the just mentioned provisions is the realization of the self- government of these territories and, therefore, the first-time exercise of the right of a people to self-determination by the people inhabiting them. That also matches with the line of argumentation that States are created through the expression, and preservation of a legal will of the people who established it.127 It becomes evident that colonialism is a breach of self-determination because it contradicts that assumption by preventing the people under colonial rule to live in a political status freely chosen by them. The people inhabiting a territorial unit under colonial rule cannot be expected to-, at any point, have consented to be part of the respective State dominating them.
It is also necessary that the established rules are implemented and enforced in one way or another, to constitute a legal right. The UNGA has a ‘long and consistent record in seeking to bring colonialism to an end’.128 In the course of time, the UNGA started to play a crucial role in the development and implementation of the Law on decolonization.129 In order to implement the declaration regarding Non-Self- Governing Territories, the UNGA established a certain procedure.
125 UNGA Res 1541 (XV) (15 December 1960) UN Doc A/RES/1541(XV), Principle IV. 126 See Ibid Principle V. 127 See Part II Chapter A.1. 128 See Chagos Advisory Opinion (n 2) para 87. 129 See Western Sahara (ICJ Advisory Opinion) [1975] ICJ Rep 12, para 59. 22
UNGA Res 66(I) (1946)
Already 1949, the UNGA drew up a list of NSGT which fall under the scope of Art 73 lit e of the UN Charter for the transmission of information about the NSGT to the Secretary-General of the UN.130 The Chagos Archipelago was not expressively mentioned on that list, which means it has been, because of its status as a dependency, implicitly regarded as an integral part of the NSGT of Mauritius.
UNGA Res 146 (II) (1947); UNGA Res 219 (III) (1948); UNGA Res 332 (IV) (1949); UNGA Res 1654 (XVI) (1961); UNGA Res 1810 (XVII) (1962)
To ensure that the information received under Art 73 lit e of the UN Charter was carefully examined131, the UNGA in 1947 established a Special Committee on the information transmitted.132 In the following two sessions, the UNGA established similar Committees.133134 These Committees are the precursors of the Special Committee on Decolonization, which was established by the UNGA in 1961.135 It was enlarged to 24 Members in 1962 and, therefore, since then also bears the name ‘Committee of 24’ (C24).136 That is still the case, even though it currently consists of 29 Members.137 The tasks of the C24 are especially the annual review of the list of NSGT and to make recommendations for the implementation of Chapter XI of the UN Charter.138
130 UNGA Res 66 (I) (14 December 1946) UN Doc A/RES/66(I). 131 See Joyce Gutteridge, The United Nations in a changing world (Manchester University Press 1969) 54. 132 UNGA Res 146 (II) (3 November 1947) UN Doc A/RES/146(II). 133 UNGA Res 219(III) (3 November 1948) UN Doc A/RES/219(III). 134 UNGA Res 332 (IV) (2 December 1949) UN Doc A/RES/332(IV). 135 UNGA Res 1654 (XVI) (27 November 1961) UN Doc A/RES/1654 (XVI) para 3. 136 UNGA Res 1810 (XVII) (17 December 1962) UN Doc A/RES/1810(XVII) para 7. 137 See Vanessa Manhire, ‘General Assembly’ in Vanessa Manhire (ed) United Nations Handbook 2018–19 (56th edn, Ministry of Foreign Affairs and Trade New Zealand 2018) 63. 138 See Ibid. 23
UNGA Res 1514 (XV) (1960)
One of the most important sources documenting customary International Law on the colonial right to self-determination is UNGA Resolution 1514 (XV), adopted on 14 December 1960, bearing the title ‘declaration on the granting of independence to colonial countries and peoples’.139 That declaration provided the legal basis for the decolonization process.140 Even though it is formally a recommendation, it has a declaratory character with respect to the right of a people to self-determination as a norm of customary International Law.141 According to the ICJ, ‘there is a clear relationship between UNGA Resolution 1514 (XV) and the process of decolonization following the adoption.’142 Starting with that Resolution, the UNGA has become the central actor of the decolonization process by monitoring the implementation of the obligation by the Member States (MS) under Chapter XI of the Charter and practice developed within the organization.143
These developments of procedures and practices for the implementation made the right of a people to self-determination applicable to all NSGT.144 States administering a NSGT have an obligation to help it in developing self- government.145 The East Timor case from 1995 even went beyond that, when the ICJ stated that there is an erga omnes obligation to all States to protect the right of a people to self-determination.146 That obligation, nevertheless, as the procedures and provisions mentioned above, have to be seen strictly limited in their scope to the process of decolonization.
139 UNGA Res 1514 (XV) (14 December 1960) UN Doc A/RES/1514(XV). 140 See Western Sahara Advisory Opinion (n 129) para 57. 141 See Chagos Advisory Opinion (n 2) para 152. 142 Ibid para 150. 143 See Ibid para 163. 144 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)(ICJ Advisory Opinion) [1971] ICJ Rep 71, para 52. 145 See UN Charter (n 107) Art 73 lit b. 146 See East Timor Portugal v. Australia (ICJ Judgment) [1995] ICJ Rep 90, para 160. 24
5. The exercise of colonial self-determination
UNGA Res 1541 (XV) (1960) Principle VI
Three possible ways of exercising the colonial right to self-determination crystallized which are also reflected in the declaration on the granting of independence to colonial countries and peoples:
Emergence as a sovereign independent State Free association with an independent State Integration with an independent State147
As that enumeration shows, the emergence as a sovereign independent State is one possible way to achieve self-government within the framework of colonial self- determination. Another option would be, for example, integration and autonomy within an already existing State, which can also be the former colonial power. All of these options nevertheless have in common that they lead to statehood or becoming part of a State in one way or another.
The only requirement the exercise of self-determination has to fulfil is, as the ICJ also recalls in its Advisory Opinion on the Chagos Archipelago148, that it must be an expression of the free and genuine will of the people concerned.149 That in no way means that a plebiscite is required. The means and procedures to realize the right of a people to self-determination fall within the competences of the UNGA.150 That also allows expression of the free and genuine will of the people concerned by other means like, for example, through legitimate representatives.
147 See UNGA Res 1541 (n 125) Principle VI. 148 See Chagos Advisory Opinion (n 2) para 157. 149 See Western Sahara Advisory Opinion (n 129) para 55. 150 See Ibid para 71. 25
Nevertheless, there is no clear general rule on how that expression has to take place. That is why the legitimacy has to be examined on a case by case basis. When exercised properly, the people in question have realized their right to self- determination for the first time. No such practices to implement self-determination beyond the colonial level have been established yet. The colonial right to self- determination has been institutionalized, while beyond that scope of application, no institutions or procedures for the implementation of self-determination exist.
It is also questionable, if this the people concerned are that free to choose, as the words ‘free and genuine will’ may indicate. The right of a people to self- determination is in itself a paradox. It states that the result of its exercise shall be an expression of the ‘free and genuine will of the people concerned’ while limiting these choices at the same time to options, which inevitably lead to statehood in some way or another, regardless if it is ending being part of an existing State or constituting a State on its own. The peoples can only express their free and genuine will as long as they do not opt for being free from the authority of a State. It is intrinsic to International Law, and every (legal-) system, that it allows changes only within its predetermined framework. The existence of statehood like that becomes axiomatic. It would be contrary to the system of International Law to allow any actions which may result in the deterioration of its foundations. In that realm, International Law is biased.
26
6. The free and genuine will of the Chagossians
The Chagos Archipelago was, until its separation in 1965, a part of the NSGT of Mauritius, which itself was under the rule of the UK.151 Several documents referred to it as a dependency of Mauritius.152 Like that, it was treated, since the beginning of the regime of NSGT, as an integral part of the territory of the colony of Mauritius for the purpose of transmission of information under Art 73 e of the UN Charter.153 Most of the produced goods of the plantations on the Chagos Archipelago were meant for the Mauritian market, which made it also a ‘dependency’ of Mauritius in the economic sense.154 Despite that, neither the Mauritian people as a whole, nor the Chagossians ever explicitly or implicitly consented to the colonial administration by the UK.
Because the UK Government separated the Chagos Archipelago from Mauritius in 1965, before its independence, it did not become part of the newly established State of Mauritius and remained part of the colony of the BIOT under the rule of the UK. One question the ICJ had to examine in its Advisory Opinion was, if the process of decolonization was, in the light of these events lawfully completed when Mauritius got independent in 1968.155 The process of decolonization of Mauritius would not have been lawfully completed, if the separation of the Chagos Archipelago in 1965 was contrary to International Law. As the ICJ concluded, the separation was indeed contrary to International Law and the process of decolonization, therefore not completed.156 That can be explained by the missing consent of the people affected by the separation.
151 See Chagos Advisory Opinion (n 2) para 28. 152 See Ibid. 153 See UNGA Res 66 (n 130). 154 See Vine (n 17) 19. 155 See Part I Chapter B.5. 156 See Ibid. 27
UNGA Res 2625 (1970) Principle V
Because of the lack of consensus, a NSGT in general cannot be even considered as part of the State administering it. Treating a NSGT as an integral part of the administering State would be opposed to the element of a free and genuine will as a part of the right of a people to self-determination- or in the words of the so-called salt-water doctrine157, enshrined by the UNGA in the FRD:
‘The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.’158
The wording of that provision underlines that a colonial entity does not constitute an integral part of the territory of the administering State. The process of decolonization is indeed the first-time exercise, of the people affected, of their right to self- determination. The actions of the UK and the USA should create the appearance that the separation of the Chagos Archipelago was happening in accordance with the self- determination of the Mauritians. With the establishment of the BIOT, the UK ironically set up a new colony during the period of decolonization. The mere fact that the Chagos Archipelago became part of that new colony contradicts that assumption that the separation was an actual expression of the free and genuine will of the people affected. Moreover, the separation of the Chagos Archipelago happened before the independence of Mauritius.
157 See Valmaine Toki, ‘Decolonization and the Right of Self-Determination for the Pacific’ in Austin Sarat (ed) Studies in Law, Politics, and Society Volume 70 (Emerald Group Publishing 2016) 183. 158 UNGA Res 2625 (n 114), Principle V. 28
The ICJ observed the circumstances in which the Council of Ministers of the colony of Mauritius agreed to the separation of the Chagos Archipelago in order to examine if the detachment was based on the free and genuine expression of the will of the people concerned.159 There are clear indications, that political pressure was used to get the agreement of the Mauritian representatives, especially by appointing the separation of the Chagos Archipelago as a prerequisite for the independence of Mauritius.160
Even without taking into account the specific circumstances of the negotiations of the independence of Mauritius, it is in no way possible that the consent of the Mauritian Prime Minister and the Mauritian Council of Ministers can be automatically treated as the expression of the free and genuine will of all the people concerned. Primarily the term ‘free’ is crucial in that context, because Mauritius was still under colonial rule, and the institutions mentioned, therefore, were not legitimate representatives of the Mauritian people. The representatives have to be seen in their roles under the authority of the UK. Because of that, they had not yet exercised their very right to self-determination. If the separation of the Chagos Archipelago from Mauritius was the expression of a will, then it was the will of the Governments of the UK and the USA.
Furthermore, the parties involved did not even doubt that the Chagos Archipelago after its separation does not initially constitute an integral part of the territory of the UK. The UK agreed to return the Chagos Archipelago to Mauritius once it is no longer needed for defense purposes.161 The UK had at no point in history legitimate authority over the territory of the Chagos Archipelago, neither during its colonial administration over Mauritius nor during the period after the separation where the Chagos Archipelago became part of the BIOT.
159 See Chagos Advisory Opinion (n 2) para 172. 160 See Peter Sand, Atoll Diego Garcia: Naturschutz zwischen Menschenrecht und Machtpolitik (Herbert Utz Verlag 2011) 8. 161 See Chagos Advisory Opinion (n 2) para 108. 29
7. Possible consequences of free choice
The principle of free choice may lead to unusual developments in the future. Besides independence, the free association or integration with an independent State are ways of exercising self-determination, which developed in the colonial era.162 They have to be exercised through the expression of the free and genuine will of the people concerned. If the free and genuine will is the only determining factor that may result in unique State constellations as well.
If the Chagossians would be resettled and subsequently be given a choice, either the UK or Mauritius would be the logic States to associate or integrate within. Given the distance between the Chagos Archipelago and these two States, that may seem a little inconvenient for administrative purposes but not be enough to trigger a severe scientific-, or political debate. Contrary to the postulate of choice, the Chagos Archipelago should be now returned to Mauritius without consulting the Chagossians beforehand.163 Distance seems to play a tangential role.
The archipelagic States are already by definition States consisting of one or more Archipelagos164, usually separated by many kilometres of ocean in between. That illustrates, more clearly than the various existing exclaves all over the world, that the territory of a State does not have to be continuously connected.
The integration of the Chagos Archipelago within Mauritius or the UK would constitute an exceptional- still not unique case of a ‘long-distance relationship’. For example: in 1978, as the result of a plebiscite, the Northern Mariana Islands were separated from the trust territory of the Pacific Islands and became associated with the USA.165
162 See Part II Chapter A.5. 163 See Chagos Advisory Opinion (n 2) para 178. 164 See UNCLOS (n 4) Art 46 lit a. 165 See United Nations Security Council (UNSC) Res 683 (22 December 1990) UN Doc S/RES/683. 30
The distance between the USA and the Northern Mariana Islands is tremendous.166 Furthermore, the historical and ethnical connection between the Chagossians and the Mauritian peoples seems questionable.167 That gives rise to the question if there are any limits to the ‘free and genuine will’ at all. Let us suppose a different, non- colonial scenario.
What if a people manages to secede and opts for integration with an independent State, which lies in the notable distance and has no historical or other ties connecting the territory? There have not been any considerable ambitions yet, apart from reports which can be described as canards168, which would make it necessary to consider that question. The changing nature of International Relations and the further development of the right of a people to self-determination concerning secession nevertheless may also lead to such constellations.
B. The question of peoplehood
1. People as the subject of self-determination
The relation between the Chagossians and the Mauritians is well suited to shed light on peoplehood, especially when taking into account which respective group is seen to be entitled to the exercise of the right of a people to self-determination in the present case.
The FRD refers, in the same manner as the declaration on the granting of independence to colonial countries and peoples, to the establishment of a sovereign and independent State and the free association or integration with an independent State as modes of implementing self-determination. In addition, it refers to the emergence into any other political status freely determined by a people.169 Like that, the FRD manages to merge the possible ways of exercising self-determination with the subjective element of the free choice of the people concerned.
166 See Steffen Thorsen, Distance from San Francisco to Saipan (Time and Date AS 2020)
One key issue of the subjective element of a free choice lies within the question, which group is regarded as ‘the people concerned’, or in other words: Whose will matters? Answering that question may, at the same time, also clarify who is entitled to self-determination.
If ‘the people concerned’ embraces the whole population of a colonial entity, this would favour a territorial approach and make ‘a people’ equivalent to the population of a State as a whole. Logically the whole population of a colonial entity would in this case end up in the same State, which would be the result of the expression of their free and genuine will. In the concrete case, this would be the Mauritians on the entirety of the NSGT Mauritius. That perspective on the matter would also match with the State-theory of Georg Jellinek.170 If, on the contrary, ‘the people concerned’ are subgroups defined by certain group characteristics, inhabiting a specific territorial portion of the NSGT, the right of a people to self-determination would also apply to minorities and indigenous peoples. In the concrete case, that would be the Chagos Islanders on their Archipelago.
It is indisputable that ‘a people’ is a multitude of individuals. Uncertain remains what the essential feature is, connecting the individuals to become ‘a people’. Indeed numerous attempts to establish definitions exist. Many of them focus on specific group characteristics like common language or ethnicity, and like that support, the second approach mentioned earlier, which embraces all subgroups as ‘the people concerned’. That is in no way surprising, if one considers that the salt-water doctrine sings from the same hymnbook.171 Using that method nevertheless creates an ideal type of the term ‘a people’ which bears the risk to be flexed through narratives to match political considerations. The outcome is not specific enough to be considered as a legal definition. That is, among other things, due to the political nature of self- determination.172
170 See Part II Chapter A.1. 171 See Part II Chapter A.4. 172 See Part II Chapter A.2. 32
2. How many individuals are ‘a people’
Primarily, when one supports an approach where the right of a people to self- determination is also granted to subgroups through a right to secede from the Metropolitan State, it is crucial to define which subgroups shall be entitled. For that purpose, one criterion which may serve as a benchmark to approach the question of peoplehood would be therefore, to demand that a group of individuals has to have a specific size to be considered as a people. The right of a people to self-determination has to be seen as a collective human right. Even though a group of people can be broken down until the individual as its smallest entity, the possibility of an individual right to self-determination can be excluded. Since one possible outcome of the exercise of self-determination is the establishment of an independent and sovereign State, a group that would be too small to do so, could argumentum e contrario in no way be seen as a people.
In practice, there is no minimum number for a permanent population required to achieve statehood.173 As the example of the Vatican City State shows, even a population of 800 inhabitants is enough to be seen as a State. 174 The least populated State, which is a Member State of the UN, is Tuvalu, with approximately 11.000 inhabitants.175 Moreover, even if there was such a thing as a minimum number, it would have to be set in an arbitrary manner. Not to mention the consequences if the population of an already established State would, for whatever reason, drop beneath that number. Nonetheless, as there is no minimum amount of individuals required, even a small group like the Chagossians176 may establish their own State or exercise their right to self-determination in a different way if they are considered as a people. When it comes to size, nothing is opposed to the peoplehood of the Chagossians or any other subgroup. As the size is not suited to provide an adequate definition for peoplehood, the answer has to be found elsewhere.
173 See Shaw (n 5) 199. 174 See CIA (n 7)
3. Difficulties in defining peoplehood
In fact, there is no such thing as a definition of peoplehood under International Law. The answer to that question is inevitable a too subjective and political one. The difficulties of such a definition are self-evident. Storylines and individual perceptions play an essential role when it comes to self-determination. It is also hard to explain, why to grant self-determination to one specific group while denying it to another one, even though the persons in questions may see themselves as a people in their own subjective point of view.
The critical role of narratives becomes even more apparent, when looking at the Chagos case. Because the BIOT was still inhabited by a permanent population between its establishment in 1965 and the expulsion of the Chagos Islanders, it would have had to be treated, in accordance with the Law on decolonization, as a NSGT under Chapter XI of the UN Charter.
That means that the UK would have had the duty to support the people inhabiting the BIOT in exercising their right to self-determination if they were treated as permanent inhabitants of the Archipelago. However, the opposite happened: there even was a notable effort from the side of the UK and the USA to establish a narrative, which erases all indications of its own history, culture, or even the mere existence of the Chagossians as such. Both the USA and the UK agreed to claim that the Chagos Archipelago has no permanent population to avoid the attention of the UNGA and obligations with regard to NSGT under Chapter XI of the UN Charter.177
There was a clear desire from the side of the USA to completely remove the Chagossians in order to meet their strategic interests.178 The USA were concerned about potential decolonization pressure from the UN regarding the islands in question and therefore aimed to minimize the likelihood of that to happen.179
177 See Chagos Islanders v the United Kingdom (n 61) para 7. 178 See Part I Chapter B.3. 179 Davis Howland and Patterson (n 37) doc 33. 34
While the UK, in the beginning, seemed to aim the employment of the local population in the planned military facilities, the position of the USA was favouring the resettlement of the Chagos Islanders.180 The goal was to transfer the administration of the Chagos Archipelago from Mauritius to the UK in a way that should render any claims for self-determination impossible.181 The UK and the USA reframed the Chagossians as only temporary residents or contract workers originally belonging to Mauritius and the Seychelles.182 Needless to say, that reframing was contrary to the hard facts. The Chagossians lived on the Archipelago for generations and had their own, distinct society and culture.183 Most of the people who were evicted were consequently born and raised on the Chagos Archipelago. That example underlines how actions on the political level may dilute the definition of ‘a people’. It is deeply problematic when a fundamental human right like self-determination is at stake. Inevitably, groups whose claim to self-determination are welcomed by powerful countries within the International Community would benefit from that right, while others would be excluded from it, by labelling them as not matching the definition of a people.
The example of how the UK and the USA acted regarding the Chagossians complies with the approach of defining peoplehood in a way equivalent to ethnicity. That means to conceptualize peoplehood by identifying specific collective group characteristics like, for example, language, traditions, history, or religion. That approach is problematic in many ways; some of them already mentioned before. Moreover, it is very common for various ethnicities to live in the same State. That was, for example, the case in the Socialist Federal Republic of Yugoslavia (SFRY) with Croatians, Serbs, Albanians, and others or still is in the USA, as a prime example of a society shaped through migration. These are just a few examples among many. In addition, a particular ethnicity is not necessarily concentrated on a continuous territory like the Chagossians were on their isolated Archipelago.
180 Davis Howland and Patterson (n 37) doc 34. 181 See Ibid. 182 See Vine (n 17) 91. 183 See Part I Chapter B.2. 35
To the same extent, it is not unusual for one ethnicity being scattered within and outside of a State. For instance, the Igbos, who in the 1960s aspired to establish the Republic of Biafra were dispersed all over Nigeria and its neighbouring countries.184
The just-mentioned examples reveal one of-, if not the biggest problem with self- determination from an ethical perspective. Equating peoplehood with categories like nationhood or ethnicity makes it appear necessary, to create ethnically homogeneous areas as a prerequisite to exercise self-determination, to the ultimate disadvantage of minorities. The consequences reach from aggressive settlement policies or forced migration up to genocide. Of course, that was not the case with the Chagos Archipelago as the motivation was not promoting the exercise of self-determination but the avoidance of it by the USA and the UK. That means it may also appear necessary from the perspective of political leaders, to discourage self-determination by avoiding ethnically homogeneous areas on their territory. This should also be taken into account in the debate about concepts inspired by noble motives, such as the one of a remedial right to secession, which will be further discussed at a later point. In order to exercise such a remedial right, the ethnic minority in question would have first to gather or be gathered in a significant amount on a specific territorial unit. It is improbable that such an undertaking happens free from any violence.
4. Peoplehood and statehood
Regarding the present Advisory Opinion, the ICJ examined if the separation of the Chagos Archipelago was a breach of the right to self-determination of the Mauritian people.185 That means it did not consider the right to self-determination of the Chagos Islanders, even though the disputed territory is the islands they formerly inhabited. Also, as already mentioned, the Chagossians had their own distinct culture and language, thousands of kilometres away from Mauritius.186 So why are the Chagossians then not a people on their own according to the ICJ? It has been proven that size cannot be the problem.187
184 Muhammad Islam, ‘Secessionist Self-Determination: Some Lessons from Katanga, Biafra and Bangladesh’ (1985) 22 J PEACE RES 211, 214. 185 See Chagos Advisory Opinion (n 2) para 177. 186 See Part I Chapter B.1. 187 See Part I Chapter B.2. 36
When phrasing the questions put forward to the ICJ, the UNGA already anticipated the question, if the Chagossians constitute a people on their own by referring to them as Mauritian nationals of Chagossian origin.188 The distinctiveness of the Chagossians has not been paid attention to. In addition, the physical distance was not mentioned at any point. The ICJ continued the practice of the UNGA, which treated the Chagos Archipelago as a part of the colony of Mauritius, which started when Mauritius first appeared on the list of NSGT.189 The UK provided information about the Chagos Archipelago to the UNGA in accordance with Art 73 UN Charter on the basis of that list.190
The ICJ did not even slightly consider the question of the free and genuine will of the Chagos Islanders. Like that, the Court implicitly applied an approach of defining peoplehood as a concept linked to statehood and not to ethnicity. If peoplehood, as described in the preceding Chapter, would be identified with connection to group characteristics, that would have an effect on the way the Chagossians would be considered.
The Chagossians may be entitled to a right to self-determination on their own, taking into consideration their individual and unique history, traditions, and language. Looking at the Chagossians from a historical and anthropological perspective makes it even more apparent. There are barely any ancestors with Mauritian origin in the family tree of the Chagossians, and there are almost no historical ties, except the colonial ones, between Mauritius and the Chagos Archipelago.191 Despite all these facts, the UNGA considered the Chagossians as part of the Mauritian people192, and the ICJ joined that view with its Advisory Opinion193.
188 See UNGA Res 71/292 (n 67). 189 See UNGA Res 66(I) (n 130). 190 See Chagos Advisory Opinion (n 2) para 170. 191 See Part I Chapter B.2. 192 See UNGA Res 71/292 (n 67). 193 See Chagos Advisory Opinion (n 2) para 181. 37
As a result, the term ‘a people’ in the present case embraces those individuals who lived on the NSGT of Mauritius as an entirety. That leads to the conclusion, that, in the post-colonial context, all subgroups residing in a State, indigenous peoples and minorities alike, are part of the people who constitute their respective State. That supports the approach that the meaning of the term ‘a people’ may be found within the system of International Law, with connection to the territory of a State.
5. The application of uti possidetis
States are the main subjects developing International Law. In addition, they are building the institutions to evolve and maintain it. It comes with no surprise that the internal logic of International Law protects its central actors and sources of its legitimacy. During decolonization, the borders of the new States who became independent were, in most cases, not drawn on the base of a democratic process. The borders of the newly independent States, in general, were not the product of the expression of the free and genuine will of the people concerned. The distinctiveness of the inhabitants on a historical or ethnical level did play no role in that process. The principle hindering the free and genuine will people under colonial rule manifesting into statehood is the uti possidetis principle. The uti possidetis principle, in general, effectuates that, in case of the establishment of a new State, former colonial administrative boundaries are maintained and become international borders.194
The uti possidetis principle was first applied in the decolonization process in South America in the 19th century and later, in the second half of the 20th century in Africa.195 The purpose of that principle is to secure the fundamental international prohibition of forcible transfers of territory.196
194 See Frontier Dispute Burkina Faso v Republic of Mali (Judgment) [1986] ICJ Rep 554, para 23. 195 See Reinisch (n 82) para 670. 196 See Anne Peters, ’The Principle of Uti Possidetis Juris: How Relevant is it for Issues of Secession?’ in Christian Walter, Antje von Ungern-Sternberg, and Kavus Abushov (eds) Self- Determination and Secession in International Law (1st edn, Oxford University Press 2014) 98. 38
In the colonial context, it constitutes a norm of customary International Law.197 Beyond the colonial context, it gained significance, especially in the dissolutions of larger States like the Union of Soviet Socialist Republics (USSR), the SFRY, and the Czech and Slovak Federative Republic (ČSFR).198 Nowadays, it represents a universal principle of International Law.199 One fact becomes apparent when examining the uti possidetis principle is that International Law privileges the maintenance of the status quo over material justice as the international borders, according to that principle, are drawn along former administrative boundaries instead of ethnical lines.200 That also becomes obvious in the continuity principle of International Law.201 In the Frontier Dispute case of Burkina Faso vs. Mali, the ICJ, for example, ruled in favour of a stable territorial order instead of self-determination in an ethnical sense.202
The main difficulty with the application of the uti possidetis principle is that boundaries in the colonial context were drawn, contrary to the idea of self- determination, in an arbitrary manner, which lacked of legitimacy and therefore cannot be seen as the expression of the free and genuine will of the people concerned.203 That lack of legitimacy also raises human rights-related questions, especially with regard to indigenous peoples and minorities and their possible right to self-determination in cases they are not appropriately represented or treated by the Government of the State they live in.
197 See Peters (n 196) 100. 198 See Reinisch (n 82) 670. 199 See Peters (n 196) 102. 200 See Matthias Herdegen, Völkerrecht (16th edn, CH Beck 2017) 41. 201 See Burkhard Schönebner and Matthias Knauff, Allgemeine Staatslehre (2nd edn, CH Beck 2013) 104. 202 See Frontier Dispute Judgement (n 194) para 25. 203 See Joshua Castellino, ‘International Law and Self-Determination’ in Christian Walter, Antje von Ungern-Sternberg, and Kavus Abushov (eds) Self-Determination and Secession in International Law (1st edn, Oxford University Press 2014) 28. 39
When the uti possidetis principle is applied in the case of the emergence of a new State, also the ethnic minorities and indigenous people inhabiting the territory in question are automatically getting absorbed into the new State. For the definition of a people, those who are entitled to self-determination, that is of particular interest. Following the logic of uti possidetis, the whole population of a State, including all minorities constitute a people.
When Mauritius became independent in 1968, the uti possidetis principle was applied, which means that the new-born State of Mauritius was composed of the territory which constituted the colony of Mauritius at the point prior to its independence.204 Because the Chagos Archipelago was separated before, it did not become part of the Republic of Mauritius. The expression of the ‘free and genuine will’ of the Chagossians was feigned to exist, as they never have expressed it, in reality, in their relation to the Mauritian peoples. In the colonial relationship between the Mauritians and the UK that (legal) fiction is not applied, the Mauritian people before independence are regarded as a people under alien domination of the UK. Even distinct groups like the Chagossians or the Kosovars became absorbed by the former administrative entity they belonged to, namely Mauritius and Serbia, after they became independent States. That happened even though they may constitute a people on their own, be able to express their free and genuine will, and therefore be entitled to self-determination themselves. The consistent application of uti possidetis in the process of State-creation is a strong argument in favour of limiting the right of a people to self-determination of subgroups like indigenous peoples and minorities.
For these reasons, it can be concluded that the term ‘a people’ embraces the whole population of a State and is not defined by ethnical characteristics.
204 See Mauritius Independence Act 1968 (29 February 1968) UK Official Gazette 1968 (Public General Act c 8) Art 5 (1). 40
C. The question of secession
1. Definition of secession
Secessionist movements can be seen in different ways depending on the subjective view, involvement, or interest of the person describing it. Those who argue in favour of a particular secession may see it as a way to compensate past injustices in cases of wrongful annexations205 or as a remedy against gross human rights violations206 others may see secessionist movements as an internal threat to a countries territorial integrity207. In order to approach the question of secession under International Law, it is of high relevance to clarify the meaning of the process described.
Bruno Coppieters defines secession as ‘withdrawal from a State or society through the constitution of a new, sovereign and independent State’.208 That definition lacks one crucial element: what is the subject of the described process. The missing part logically can be a group of people on a defined territorial unit. When it comes to State-creation as a possible exercise of the right of a people to self-determination, secession may occur, according to that definition, fit as a potential exercise of that right.
Another indispensable element for an adequate definition of the term ‘secession’ is the lack of consensus of the Metropolitan State on the detachment of the territorial portion in question, as also Krystyna Marek points out in her definition of secession as ‘the creation of a State by the use or threat of force without the consensus of the former sovereign’.209
205 See for example Jane Stomseth ‘Self-Determination, Secession and Humanitarian Intervention by the United Nations’ [1992] 86 ASIL Proceedings of the Annual Meeting, 370, 370. 206 See Ibid. 207 See for example Quadros (n 108) 462. 208 Bruno Coppieters, ‘Introduction’ in Bruno Coppieters and Richard Sakwa (eds), Contextualizing Secession: Normative Studies in a Comparative Perspective (Oxford University Press 2003) 4. 209 Krystina Marek, Identity and continuity of states in public international law (Librairie Droz 1954) 62. 41
2. Normative theories on secession
According to Allen Buchanan, a strong advocate in favour of a remedial right to secession, two main categories may be distinguished concerning normative theories on secession. He refers to them as ‘remedial right only theories’ and ‘primary right theories’.210 In brief, remedial right only theories seek to grant a right to secession to a group of people to defend themselves in cases where they suffer from severe injustices like, for example, genocide, while primary right theories grant that right without the presence of any injustices.211 Like that, primary right theories are equivalent to a general right to secede.
A general right to secession deriving from the right of a people to self-determination would have as a consequence that the territorial integrity of an already constituted State would not be protected against any subgroup. Because self-determination does not require a minimum number of individuals to be a people212, a general right could easily make the State Community crumble into an innumerable amount of micro States. However, the subgroups in question are, as it has been explained at an earlier point, a part of the people they seek to secede from.213 The core of both theoretical categories is the legal legitimation of a secessionist process. The views under which concrete conditions secession should be legitimate, however, are controversial even among scholars and States who support a right to secession. The most significant problem with primary right theories is that it is unlikely to achieve support among States who are the central subjects of International Law. That is because of the legitimate fear of States that a general right to secession may lead to the dismemberment of international territorial order.214 Remedial rights only theories, on the other hand, seem much more appealing for States, and like that are more likely to achieve the status of customary International Law. That is because of their restrictive view on secession, limiting it to be a remedy of last resort for severe injustices and human rights violations against the group, which seeks to secede from the Metropolitan State.215
210 See Allen Buchanan, ‘Theories of Secession’ (1997) 26 (1) Philos Public Aff 31, 34. 211 See Ibid 35. 212 See Part II Chapter B.2. 213 See Part II Chapter A.1. 214 See Buchanan (n 210) 45. 215 See Ibid. 42
3. The right to secession
Over the last years, especially the ‘remedial right only theories’ gained momentum. For that reason also here the focus shall be on the remedial right to secession as part of the right of a people to self-determination. A remedial right to secession can be defined as an entitlement under International Law for a group of people, especially minorities, to carry out a secession when it suffers from gross human rights violations arising from the Metropolitan State. Beyond the highly controversial theoretical debate on that issue, it is of formidable importance to draw attention to the State-practice on that question. Undoubtedly, the subject is closely connected to human rights issues often linked to mutual atrocities. While States in practice still widely reject the remedial concept, there seems a broader willingness to accept it among scholars and Non-State Actors216.
Aaland Islands case (1920) League of Nations Official Journal Spec Supp 3
The first milestone often referred to as the starting point of the emergence of a right to secession is the Åland Islands case from the era of the League of Nations.217 The Committee of Jurists, in that case, stated that:
‘The separation of a minority from the State of which it forms a part, and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees.’218
The question if that statement backs a right to remedial secession nevertheless remains controversial.219
216 See Jure Vidmar, ‘Remedial Secession in International Law: Theory and (Lack of) Practice’ (2010) 6 (1) STAIR 37, 50. 217 Aaland Islands case (1920) League of Nations Official Journal Spec Supp 3, 3. 218 Ibid 28. 219 See Hilpold (n 104) para 1527. 43
Reference re Secession of Quebec [1998] 2 SCR 217 (Supreme Court of Canada)
The second critical case concerns the decision of a domestic Court: the judgment regarding the possible secession of Quebec by the Canadian Supreme Court from 1998.220 The Canadian Supreme Court concluded:
‘The recognized sources of International Law establish that the right to self- determination of a people is normally fulfilled through internal self- determination-a people’s pursuit of its political, economic, social and cultural development within a framework of an existing State. A right to external self- determination(which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances.’221
The Court was furthermore of the opinion that peoples in the colonial context have an undisputed right to break away from the colonial power, which may be seen as a right to secession.222 That position regarding the exercise of the colonial right to self- determination is misleading. NSGT do not constitute an integral part of the colonial power.223 Because of their separate and distinct status, the achievement of independence of NSGT cannot be equated with secession. The most crucial point the Canadian Supreme Court made is that it concluded that there is no right to unilateral secession under International Law.224
Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) [2010]
If there is no right to unilateral secession, how may a unilateral declaration of independence be in accordance with International Law? A significant part of the theoretical debate with respect to secession is built on precisely that question.225 The ICJ dealt with that issue in the Kosovo Advisory Proceedings.
220 See Reference re Secession of Quebec [1998] 2 SCR 217 (Supreme Court of Canada). 221 See Ibid para 126. 222 See Ibid para 131. 223 See Part II Chapter B.4. 224 See Reference re Secession of Quebec (n 220) para 155. 225 See Coppieters (n 208) 2. 44
The question raised by the UNGA was: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with International Law?’226 According to the ICJ, there is no general prohibition against unilateral declarations of independence based on the practice of the UN Security Council.227 Examining State-practice during the eighteenth, nineteenth, and twentieth centuries, led to the same conclusion as well.228
Concerning the second half of the twentieth century, the ICJ points out, that there was no State-practice suggesting the emergence of a new rule of International Law prohibiting unilateral declarations of independence.229 The principle of territorial integrity does not exclude the possibility of unilateral declarations of independence. That is because, according to the ICJ, the scope of that principle is limited to the sphere of relations between States.230 As subgroups are on a stage prior to statehood, they cannot be bound by the principle of territorial integrity.
Following the reasoning of the ICJ, the determining factor whether or not a declaration of independence is unlawful is the connection of the particular declaration of independence with the illegal use of force and not its unilateral character as such.231 In light of the above, the ICJ emphasizes that there is no such thing as a general prohibition of declarations of independence under International Law.232
Avoiding tackling the question on the right to secession, the ICJ concluded that International Law neither explicitly allows- nor prohibits unilateral declarations of independence.233 It seems somewhat surprising that the ICJ classifies the principle of territorial integrity as not applicable to secessionist instances. As an efflux of its sovereignty, a State should be considered as being entitled to maintain its existence, especially within its own borders.234
226 UNGA Res 63/3 (8 October 2008) UN Doc A/RES/63/3. 227 See Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403, para 80. 228 See Ibid para 79. 229 See Ibid. 230 See Ibid para 80. 231 See Ibid para 81. 232 See Ibid para 84. 233 See Ibid. 234 Dietrich Murswerk, ‚Die Problematik eines Rechts auf Sezession - neu betrachtet‘ (1993) 31 (4) Archiv des Völkerrechts 307, 309. 45
4. Secession as an exercise of self-determination
Secession is about to become the primary process through which new States will come into existence.235 Despite its relevance, it is not even entirely clear if International Law provides rules and procedures on State-creation beyond the colonial context, especially concerning secession. The neutralist approach rejects the idea of a right to secession and emphasizes that International Law does not regulate the dynamic process, which results in statehood at all.236
Secession in the last years became the centre of the debate with respect to the right of a people to self-determination. Secessionist movements have the desire to carry out the secession on a legal basis. On the other hand, those parties opposing it, particularly the Metropolitan States, have a reasonable interest to consider unilateral declarations of independence as illegal under International Law. These conflicting positions, concerning the legal foundation of the process of secession in general, result from the undoubtedly legitimizing effect of International Law.237
The unilateral declarations of independence of Crimea238 and Catalonia239 are among the most recent examples where International Law was used as a foundation to justify- or oppose an attempt to secede. It appears as if the parties involved in a secessionist process attempt to legitimize their position by invoking norms of International Law. That makes secession one of the most controversial topics of that discipline. Similar to the question of peoplehood, narratives play an important role when it comes to that topic.
235 See Part I Chapter A.1. 236 See Tancredi (n 1) 174. 237 See Herdegen (n 200) 9. 238 See Maxim Eristavi, Crimea parliament declares independence from Ukraine ahead of referendum (Russia Today 2014)
The Kosovo case, which triggered numerous controversial debates, represents a perfect example of the conflicting views on the subject. Kosovo came into existence through a unilateral declaration of independence from Serbia in 2008.240 Since its establishment, the statehood of Kosovo is disputed. Among the MS of the European Union (EU), five have not recognized it as a State: Cyprus, Greece, Romania, Slovakia, and Spain.241 One reason worth stressing, why these countries still oppose the legality of the unilateral declaration of independence, and the statehood of Kosovo is, that each of them faces domestic issues related to secession, for example, independence movements, and because of that does not want to support the creation of a precedent.242
Even though the separation of the Chagos Archipelago in 1965, unlike the Kosovo case, cannot be seen as secession under any circumstances, the case may also offer new perspectives on that issue. The ICJ Advisory Opinion on the Chagos Archipelago predicates that the right of a people to self-determination for colonial peoples in the relevant period between 1965 and 1968 existed as a part of customary International Law.243 It imposes a duty to the colonial powers to respect that right and an obligation to the State Community to enforce it. Most significantly, the UNGA established rules and procedures on colonial self-determination, which also may lead to statehood.244 Nonetheless, in no word, it is mentioned that that colonial right to self-determination embraces a right to secession. Since the colonial right to self-determination also welcomes the establishment of a sovereign and independent State as one possibility of exercising that right, that act could also be seen as the exercise of a right to secession under International Law.
The outcome of decolonization and secession can be indeed the same one: a State. If that identity between these processes is the case, the same rules and procedures may also apply to situations beyond the colonial context. That is why that proposition, in any case, deserves further examination as well as the question if there is a right to secession in general.
240 See Dan Bilefsky, Kosovo Declares Its Independence From Serbia (New York Times 2008)
When the right to secession is treated as an efflux of the right of a people to self- determination, the consequence when International Law is confronted with it is subsequently a deadlock: the exercise of the right to self-determination through which the Metropolitan State was set up on the one hand, against the claimed right to self-determination of the secessionist movement which is part of the people inhabiting the respective State on the other side.245 A closer look at the relationship between the principles of self-determination and territorial integrity with respect to the colonial context and especially the findings of the Chagos Advisory Opinion will be taken to approach that stalemate. From that starting point, the aim is to draw a general conclusion on the existence of a right to secession.
5. The conflict of self-determination and territorial integrity
Charter of the United Nations (1945) Art 2 (4)
The right to territorial integrity is another primary principle of International Law. It is, like the right of a people to self-determination, enshrined in the UN Charter.246 Similar to the right of a people to self-determination, the UN Charter provision on territorial integrity is kept very general, and its meaning has, therefore, to be found through the interpretation of the UN Charter and within customary International Law. Another similarity to the right of a people to self-determination is its close connection to statehood. The purpose of that principle of territorial integrity is to make sure that a State can exist within its borders how they were drawn in accordance with International Law.247
245 See Jing Lu, On State Secession from International Law Perspectives (Springer 2018) 2. 246 See UN Charter (n 107) Art 2 (4). 247 Abdelhamid El Quali, Territorial Integrity in a Globalizing World (Springer 2012) 2. 48
A similarity between the principles of self-determination and territorial integrity is that the answer to the question, on who is entitled to that right, is not clear. In the request for an Advisory Opinion on the Chagos Archipelago, the UNGA reaffirmed that ‘all peoples’ carry the right to territorial integrity.248 That indicates that the UNGA is of the opinion that primarily the peoples carry the right to territorial integrity in the same manner, as they carry the right of a people to self-determination, and not the State itself.249 That also underlines the relationship between a people and their State, already described at an earlier point250, and that the exercise of self- determination constitutes the mode of bringing the three elements of statehood together.
The consequence of secession is necessarily the loss of a portion of the territory of the Metropolitan State. It is for that reason, an endeavour conflicting with the protective purpose of the principle of territorial integrity. That is why it appears logic at first glance to see the right to territorial integrity irreconcilable with secession and therefore prohibiting it. Nevertheless, secession is not automatically equated with self-determination. There are other ways to exercise self-determination without getting into conflict with the territorial integrity of a State, namely all ways of internal self-determination like, for example, through autonomy arrangements.
A prevalent opinion seems to see territorial integrity and self-determination as being two diametrically opposed rights.251 That point of view proves to be hardly tenable, as by stating that territorial integrity is the absolutely superordinate principle, protecting States from potential disruption, self-determination necessarily would become a dead letter.252 That would likewise happen, to the same extent, the other way around: if self-determination would comprise a general right to secession, the right to territorial integrity would inevitably remain with no scope of application.
248 See UNGA Res 71/292 (n 67). 249 See Ibid. 250 See Part II Chapter A.1 251 See Vidmar (n 216) 37. 252 See Castellino (n 203) 33. 49
The relationship between self-determination and territorial integrity can better be described as an interconnected one than one being characterized by antagonism. The ostensible contrariety of self-determination and territorial integrity lies within their mutual conditionality. Once a State is established through an act of self- determination, the right to territorial integrity protects its territory from partial or total disruption, comparable to a protective shield.
UNGA Res 2625 (XXV) (1970) Principle V
The so-called ‘safeguard clause’ contained in the FRD is supposed to protect the territorial integrity of States:
‘Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self- determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.’253
If a State complies with the duties imposed on it by the right of a people to self- determination, its territorial integrity is protected against the partial or total disruption of its territory.
Ironically the safeguard clause is also used as a foundation to justify the existence of a right to remedial secession through an inverted reading method.254 However, that possibility of a remedial right to secession seems more like a possibility that exists just in theory under, so to say, ‘laboratory conditions’. When treated as an ultima ratio right, there are factually always more moderate ways to accomplish the protection of the people in question.
253 See UNGA Res 2625 (n 114) Principle V. 254 See Vidmar (n 216) 39. 50
When it comes to the topic of secession, the main difficulty with the assumed protection through the right to territorial integrity is concerning the legal personality of the secessionist movement. It is questionable if a group of people that has not yet attained statehood is even subject to International Law to the extent that it is bound by the obligation of that principle to refrain from any acts which lead to the partial or total disruption of the respective Metropolitan State. In its Advisory Opinion on Kosovo, the ICJ dealt with that very question. The ICJ concluded that the right to territorial integrity is limited to intra-State relations and, consequently, not applicable to cases of secession.255 That legal opinion put forward by the ICJ undoubtedly favours secession in practice by eliminating the only possible legal obstacle on the level of International Law against it. Paradoxically the ICJ, like that at the same time, deprives the legal foundation of a remedial right to secession. That is because this right is argued on basis of the ‘safeguard clause,’ which is part of the principle of territorial integrity.
The reasoning of the ICJ seemed to be that a secessionist movement, as long as it has not achieved statehood, cannot be bound by the right to territorial integrity of the Metropolitan State, respectively, its people’s right. The Court in its Advisory Opinion refers to the instruments substantiating the right to territorial integrity, namely the UN Charter256, the FRD257 and Final Act of the Helsinki Conference on Security and Co-operation in Europe of 1 August 1975258, which is primarily interpreted on the basis of their respective wording that refers to States as the subjects who shall be entitled and obligated by the right to territorial integrity.
The consequence of the view expressed in the ICJ Advisory Opinion on Kosovo is a legal vacuum where the right to territorial integrity is not applicable in secessionist conflicts where non-State actors are involved.
255 See Kosovo Advisory Opinion (n 227) para 80. 256 See UN Charter (n 107) Art 2 (4). 257 See UNGA Res 2625 (n 114). 258 See Conference on Security and Co-operation in Europe Final Act- (concluded 1 August 1975)
6. The territorial integrity of Mauritius before independence
It is in no way self-evident that the scope of the right to territorial integrity is exclusively limited to intra-State relations as the ICJ described it in its Advisory Opinion on Kosovo. The Court in its reasoning did not take into consideration, that the UNGA in interpreting the declaration on the granting of independence to colonial countries and peoples, already years before, when dealing among others with the case of the Chagos Archipelago, confirmed the applicability of the right to territorial integrity to NSGT. This will be shown in this Chapter. NSGT are entities which have not yet achieved statehood. They can be seen as being in a stage prior to the exercise of self-determination, which may, among other options, lead to the establishment of a sovereign, independent state.259 Nevertheless, these entities cannot be considered as States, as long the right to self-determination has not been exercised by the people concerned.
UNGA Res 1514 (XV) (1960) para 6
A people which has not yet been able to exercise its right to self-determination enjoys protection through its right to territorial integrity in the transition period, prior to the exercise of self-determination, against the colonial power but also third States. The territorial integrity of that entity before the exercise of self-determination is protected, according to the declaration on the granting of independence to colonial countries and peoples, UNGA Res 1514 (XV) (1960), which explicitly prohibits the separation of a territorial portion of a NSGT prior to its independence especially addressing the colonial power but also other States:
‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’.260
The detachment of a NSGT or a part of it by the administering power is contrary to the right of a people to self-determination.261
259 See Part II Chapter B.4. 260 UNGA Res 1514 (n 139) para 6. 261 See Chagos Advisory Opinion (n 2) para 160. 52
The only possible way that such an undertaking would be legal under International Law is, if the separation happens in accordance with the free and genuine will of the people concerned.262 The right of a people to self-determination in that context embraces the entirety of a NSGT.263
UNGA Res 1654 (XVI) (1961) para 3
Already in 1961, only a short time after the adoption of the declaration on the granting of independence to colonial countries and peoples, the UNGA in UNGA Res 1654 (XVI) (1961) noted that acts contrary to the provision protecting the territorial integrity of colonial entities were carried out against colonial territories and peoples, aimed at their partial or total disruption.264
UNGA Res 2066 (XX) (1965) para 3
In the same manner on 16 December 1965 the UNGA in its Res 2066 (XX) invited the Government of the UK to ‘take effective measures with a view to the immediate and full implementation of UNGA Res 1514 (XV)’265 and ‘to take no action which would dismember the territory of Mauritius and violate its territorial integrity’266.
UNGA Res 2232 (XXI) (1966) para 4; UNGA Res 2357 (XXII) (1967) para 4
In its Res 2232 (XXI) from 1966 and Res 2357 (XXII) from 1967, the UNGA confirmed that the partial or total disruption of the territory of a colonial entity is contrary to the UN Charter and UNGA Res 1514 (XV).267 Notably, both Res date back before 1968 when Mauritius got independent, and most importantly: before Mauritius constituted a State under International Law.
262 See Chagos Advisory Opinion (n 2) para 160. 263 See Ibid. 264 See UNGA Res 1654 (n 135) para 3. 265 UNGA Res 2066 (n 44), para 3. 266 Ibid para 4. 267 See UNGA Res 2232 (XXI) (20 December 1966) UN Doc A/RES/2232(XXI), para 4 and UNGA Res 2357 (XXII) (19 December 1967) UN Doc A/RES/2357(XXII) para 4. 53
AU-AHSG Declaration 159 (XXXVI) (2000); AU Assembly Declaration 331 (XV) (2010)
In 2000, the OAU described the separation of the Chagos Archipelago before the independence of Mauritius as a violation of UN Res 1514.268 Its successor organization, the African Union (AU), expressed a similar view in 2010.269 The case of the Chagos Archipelago is in no way an isolated case. On numerous occasions, also the UNGA emphasized to respect the right to the territorial integrity of NSGT.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Advisory Opinion) [2004]
Very interesting is also the ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, which the ICJ rendered in 2004.270 In that Advisory Opinion, the ICJ found that the construction of a Wall by Israel and the de facto acquisition of territory connected to it were interfering with the right of the Palestinian people to self-determination.271 The Wall constructed by Israel took its path through a territory that was at that time inhabited by Palestinians. Like that, the ICJ also emphasized that there is a protection of the territorial integrity of an entity that has not achieved statehood as a part of the right of a people to self- determination.
In conclusion, contrary to the ICJ Advisory Opinion on Kosovo, the principle of territorial integrity is not strictly limited to intra-State relations but also protects colonial entities before they achieve statehood. A people which has not yet been able to exercise its right self-determination, like the Mauritians before 1968, enjoys protection through its right to territorial integrity in the transition period, which may lead to statehood. The reason why International Law protects the territorial integrity of colonial entities as a whole is especially, to protect the right to self-determination of the people concerned. The purpose of that norm, which is part of customary International Law at least since 1965, is that the question of how the people affected exercise their right to self-determination should not be anticipated.
268 See AU-AHSG Dec 159 (XXXVI) (12 July 2000) AU Doc AHG/Dec.159 (XXXVI). 269 See AU Assembly Dec 331 (XV) (27 July 2010) AU Doc Assembly/AU/Dec.331(XV). 270 See Wall Advisory Opinion (n 72). 271 See Ibid para 115. 54
With the separation of the Chagos Archipelago, the UK violated that norm. That also means that that entity is, to some extent, a subject to International Law. Consequently, subgroups have also to be bound by the duty to respect the territorial integrity of already established States, which are the product of the exercise of the right of a people to self-determination.
Understanding the right to territorial integrity as a corollary of the right to self- determination cannot be limited to the colonial context and, as earlier mentioned, not be strictly limited to intra-State relations. When applying the same logic to secession from an already established State, the result is that, unless there is not the consent of the people of the concerned State as a whole, the secession will violate their right to territorial integrity, which is a logical consequence of their right to self- determination. Secession is, because of that lack of consensus by the Metropolitan State, an act contrary to the preserved ‘legal will’ of the people as a part of State- creation through self-determination according to the State-theory of Georg Jellinek.272 People under colonial rule are not part of the people of the State administering it. Their will to exercise self-determination is not preserved in the State administering the territory they inhabit. That means also, regarding that criterion, secession and State-creation through the exercise of colonial self-determination are different things.
While an act of self-determination has to be the exercise of the free and genuine will of the people concerned, secession opposes the will through which the Metropolitan State was established. That is inevitably a source of conflict and also at the core the reason for controversy in the scientific debates which lead to numerous approaches and theories on a possible legal right to secession deriving from the right of a people to self-determination. Still, whether or not a specific secession will be recognized depends on political considerations, the chances are particularly high when it has become an irreversible fact.273
272 See Part II Chapter A.1. 273 See Anthony Aust, Handbook of International Law (Cambridge University Press 2002) 24. 55
Part III Conclusion and outlook
The process of decolonization was the first significant area of application of the right of a people to self-determination. Under the light of the findings of the present Diploma Thesis, it has nevertheless to be seen as a process distinct from secession. Recalling its definition, a prerequisite for secession is that the territory in question constitutes an integral part of the Metropolitan State. 274 That is not the case with NSGT, mainly because of the missing consent of the people affected.275 To constitute a part of a State, the people affected must become part of it through the expression of their free and genuine will.276
The decolonization process widely determined the rules of self-determination through customary International Law resulting in some of them, in fact, hindering the extension of that right to situations which not fall into the colonial context. That becomes evident in the tendency of the State Community to see the perpetuation of State borders, which are the manifestation of a legal will, as superior to their modification to stay abreast of changes in the factual mindset or living conditions of the people affected. International Law seems to favour collective stability over individuality. With the legal regime of NSGT under Chapter XI of the UN Charter, the people in question should be enabled to develop the institutions necessary to exercise their right to self-determination for the very first time. That can be interpreted in a manner that a State, when established, provides the institutions to internal self-determination, which renders external self-determination through secession unnecessary.
274 See Part II Chapter C.1. 275 See Part II Chapter A.6. 276 See Part II Chapter A.1. 56
The ICJ in the Chagos Advisory Opinion pointed out that the scope of the right of a people to self-determination extends beyond the colonial context.277 That also means that that right will further evolve in the future. The Darwinian terminology of ‘evolution’ is chosen on purpose. Similar to the process of natural selection, the development of International Law and Law, in general, has to be understood as a dynamic process. Law and politics are characterized by a relationship of strong interdependency with one shaping and changing the other.
Like that, fundamental concepts such as statehood or peoplehood will develop further- and so will self-determination. Heraclitus famously stated: ‘It is impossible to step into the same river twice’.278 Colonization may not repeat itself, but further developments in the future will lead to new scopes of application for the right of a people to self-determination: may it be climate change or other humanitarian reasons.279
Concerning the Chagossians, the unfortunate protagonists of the present Diploma Thesis, the course of events after the Advisory Opinion still does not go in the right direction. The UNGA, on 22 May 2019, adopted UNGA Res 73/295 (2019) where it demands from the UK to end the colonial administration over the Chagos Archipelago and hand it back to Mauritius within a period of 6 months.280 Besides that, the UNGA urged the UK to cooperate with Mauritius to facilitate the resettlement of the Chagossians.281
277 See Chagos Advisory Opinion (n 2) para 144. 278 Mary Margaret Mckenzie, ‘Heraclitus and the Art of Paradox’ in Julia Annas (ed) Oxford Studies in Ancient Philosophy Volume VI (Oxford University Press 1988) 1. 279 See Shaw (n 5) 198. 280 See UNGA Res 73/295 (22 May 2019) UN Doc A/RES/73/295, para 3. 281 See Ibid para 4. 57
During the completion of the present Diploma Thesis, the deadline set by the UNGA expired. Nevertheless, the UK stubbornly refuses to hand over sovereignty over the Chagos Archipelago to Mauritius.282 Where there is a legal perspective, there is, of course, also a moral one. What the Chagossians deserve from an ethical point of view is a real choice. The exercise of the right of a people to self-determination must be the free and genuine expression of the will of the people concerned, the Chagossians- not the Mauritians or anyone else. To limit self-determination just to existing States, where some people just stumbled in by coincidence through the application of uti possidetis goes against the principle of free choice. That means they must, first of all, have the opportunity to express that will. The ancestors of the Chagos Islanders were enslaved against their will, snatched, wrenched from their homeland. After they built a new society, connected emotionally and spiritually with their Archipelago, and after new generations grew up there, the descendants of the colonial rulers for the second time in history displaced them. The detachment of the Chagos Archipelago from Mauritius in 1965, in fact, deprived the Chagossians to determine their political faith freely. Hopefully, they will get the chance to express their will in the near future- fingers crossed.
282 See Sam Meredith, ‘Illegal colonial occupier’: Mauritius condemns UK for failing to give up control of an overseas territory (CNBC 2019
Appendix
Map of the Chagos Archipelago
Source: Central Intelligence Agency, The World Factbook: South Asia – British Indian Ocean Territory
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Bibliography and References
I. Authored Books
Argyro Kartsonaki, Breaking Away: Kosovo’s Unilateral Secession (Lexington Books 2018) Aust A, Handbook of International Law (Cambridge University Press 2002) Central Intelligence Agency, The World Factbook: 2010 Edition - CIA's 2009 Edition (Potomac Book Inc 2010) Crawford J, The Creation of States in International Law (2nd edn Oxford University Press 2007) Dukhira C, History of Mauritius: Experiments in Democracy (C Dukhira 2002) El Quali A, Territorial Integrity in a Globalizing World (Springer 2012) Gutteridge J, The United Nations in a changing world (Manchester University Press 1969) Herdegen M, Völkerrecht (16th edn, CH Beck 2017) Jellinek G, Allgemeine Staatslehre (3rd edn Springer 1929) Lu J, On State Secession from International Law Perspectives (Springer 2018) Marek K, Identity and continuity of states in public international law (Librairie Droz 1954) Peter Sand, Atoll Diego Garcia: Naturschutz zwischen Menschenrecht und Machtpolitik (Herbert Utz Verlag 2011) Schönebner B and Knauff M, Allgemeine Staatslehre (2nd edn, CH Beck 2013) Shaw M, International Law (6th edn, Cambridge University Press 2008) Vaughan M, Creating the Creole Island: Slavery in Eighteenth-Century Mauritius (Duke University Press 2005) Vine D, Island of Shame: The Secret History of the U.S. Military Base on Diego Garcia (Princeton University Press 2009)
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II. Edited Books
Annas J (ed) Oxford Studies in Ancient Philosophy Volume VI (Oxford University Press 1988) Armakolas I and J Ker-Lindsay J (eds), The Politics of Recognition and Engagement: EU Member State Relations with Kosovo (Springer 2019) Baylis J, Owens P and Smith S (eds), The Globalization of World Politics: An Introduction to International Relations (Oxford University Press 2016) Coppieters B and Sakwa R (eds), Contextualizing Secession: Normative Studies in a Comparative Perspective (Oxford University Press 2003) Davis Howland N and Patterson D (eds) Foreign Relations of the United States, 1964-1968, Volume XXI, Near East Region; Arabian Peninsula (Washington: Government Printing Office 2010) Evers S and Kooy M (eds) Eviction from the Chagos Islands : displacement and struggle for identity against two world powers (BRILL 2011) Fassbender B and Peters A (eds) The Oxford Handbook of History of International Law (1st edn, Oxford University Press 2012) Jacobs Sparks K (ed) Britannica Book of the Year: 2004 (Encyclopaedia Britannica 2004) Kohen M (ed), Secession: International Law Perspectives (Cambridge University Press 2008) Manhire V (ed) United Nations Handbook 2018–19 (56th edn, Ministry of Foreign Affairs and Trade New Zealand 2018) Reinisch A (ed) Österreichisches Handbuch des Völkerrechts Band I: Textteil (5th edn, MANZ 2013) Sarat A (ed) Studies in Law, Politics, and Society Volume 70 (Emerald Group Publishing 2016) Sheppard C (ed) World Seas, an Environmental Evaluation Volume II: The Indian Ocean to the Pacific (2nd edn, Elsevier 2019) Tuck R (ed) Hobbes Leviathan Revised Student Edition (Cambridge University Press 1996) Walter C, Von Ungern-Sternberg A and Abushov K (eds) Self-Determination and Secession in International Law (Oxford University Press 2014)
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III. Journal Articles
Allen Buchanan, ‘Theories of Secession’ (1997) 26 (1) Philos Public Aff 31 Bhatt K, ‘A post-colonial legal approach to the Chagos case and the (dis)application of land rights norms’ (2018) 55 Int J Law Context 1 Burri T ‘Two points for the International Court of Justice in Chagos: Take the case, all of it – It is a human rights case’ (2018) 55 QIL 93 Islam M, ‘Secessionist Self-Determination: Some Lessons from Katanga, Biafraand Bangladesh’ (1985) 22 J PEACE RES 211 Liu H, ‘Two Faces of Self-determination in political divorce’ (2016) 10 ICL Journal 355 Murswerk D, ‚Die Problematik eines Rechts auf Sezession - neu betrachtet‘ (1993) 31 (4) Archiv des Völkerrechts 307 Quadros M, ‘Secession: The Contradicting Provisions of the United Nations Charter – A Direct Threat to the Current World Order’ (2016) 14 (02) Santa Clara J Int'l L 460 Snoxell D ‘Anglo/American Complicity in the Removal of the Inhabitants of the Chagos Islands, 1964–73’ (2009) 37 (01) J Imp Commonw Hist 127 Stomseth J ‘Self-Determination, Secession and Humanitarian Intervention by the United Nations’ [1992] 86 ASIL Proceedings of the Annual Meeting, 370 Vidmar J, ‘Remedial Secession in International Law: Theory and (Lack of) Practice’ (2010) 6 (1) STAIR 37 Wagner J ‘The Chagos request and the role of the consent principle in the ICJ’s advisory jurisdiction, or: What to do when opportunity knocks’ (2018) 55 QIL 177
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IV. Table of cases
Aaland Islands case (1920) League of Nations Official Journal Spec Supp 3 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403 Chagos Islanders v the United Kingdom (Decision) [2012] ECHR 35622/04 Chagos Marine Protected Area Arbitration Mauritius v. United Kingdom (PCA Award) [2015] case no 2011-03 East Timor Portugal v. Australia (Judgment) [1995] ICJ Rep 90 Frontier Dispute Burkina Faso v Republic of Mali (Judgment) [1986] ICJ Rep 554 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)(Advisory Opinion) [1971] ICJ Rep 71 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (ICJ Advisory Opinion) [2004] ICJ Rep 136 Legal Consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019]
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V. Legal Documents
A definitive treaty of peace between his Britannic majesty and his most Christian majesty Louis XVIII (concluded 30 May 1814)
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VI. UN Resolutions
UNGA Res 66(I) (14 December 1946) UN Doc A/RES/66(I) UNGA Res 146(II) (3 November 1947) UN Doc A/RES/146(II) UNGA Res 219(III) (3 November 1948) UN Doc A/RES/219(III) UNGA Res 332(IV) (2 December 1949) UN Doc A/RES/332(IV). UNGA Res 1514 (XV) (14 December 1960) UN Doc A/RES/1514(XV) UNGA Res 1541 (XV) (15 December 1960) UN Doc A/RES/1541(XV) UNGA Res 1654 (XVI) (27 November 1961) UN Doc A/RES/1654 (XVI) UNGA Res 1810(XVII) (17 December 1962) UN Doc A/RES/1810(XVII) UNGA Res 2066 (XX) (16 December 1965) UN Doc A/RES/2066(XX) UNGA Res 2074 (XX) (17 December 1965) UN Doc A/RES/2074 (XX) UNGA Res 2232 (XXI) (20 December 1966) UN Doc A/RES/2232(XXI) UNGA Res 2357 (XXII) (19 December 1967) UN Doc A/RES/2357(XXII) UNGA Res 2371(XXII) (24 April 1968) UN Doc A/RES/2371(XXII) UNGA Res 2625 (XXV) (24 October 1970) UN Doc A/RES/2625 (XXV) UNSC Res 683 (22 December 1990) UN Doc S/RES/683 UNGA Res 63/3 (8 October 2008) UN Doc A/RES/63/3 UNGA Res 71/292 (22 June 2017) UN Doc A/RES/71/292 UNGA Res 73/295 (22 May 2019) UN Doc A/RES/73/295
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VII. UK and BIOT Legislation
Mauritius Independence Act 1968 (29 February 1968) UK Official Gazette 1968 (Public General Act c 8) Slavery Abolition Act 1833 (28 August 1833) UK Official Gazette 1833 (Public General Act c 73) The British Indian Ocean Territory Order 1965 (8 November 1965) BIOT Official Gazette 1965 (Statutory Instrument No 1) The Immigration Ordiance 1971 (16 April 1971) BIOT Official Gazette 1971 (Ordiance No 1) Proclamation No 1 of 2010 by Colin Roberts, Commissioner for the British Indian Ocean Territory (1 April 2010) BIOT Official Gazette 2010 (Proclamation No 1)
VIII. OAU and AU Resolutions
AU-AHSG Res 99 (XVII) (4 July 1980) AU Doc AHG/Res. 99 to 101 (XVII)
AU-AHSG Dec 159 (XXXVI) (12 July 2000) AU Doc AHG/Dec.159 (XXXVI)
Assembly Dec 331 (XV) (27 July 2010) AU Doc Assembly/AU/Dec.331(XV)
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IX. Web Sources
Bey M, Ikaria sagt Nein! (Der Standard 2012)
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