Legal Consequences of the Separation of the Chagos Archipelago

The Chagos Archipelago, the court wrote, covers an area of 1,950 km² and is located about 2,200 km northeast of the Republic of Mauritius. Its largest island is Diego Garcia, at 27 km² about one-sixth the size of the District of Columbia.Footnote 2 European occupation began with the arrival of the Dutch in 1638 and continued throughout the French colonial administration from 1715 until the France ceded control in the Treaty of 1814 (para. 27). For the next century and a half, the United Kingdom administered the Chagos Archipelago as a dependency of Mauritius, a British colony classified as a Non-Self-Governing Territory after the adoption of the Charter of the United Nations (paras. 28-29). The United Kingdom has included the link between the archipelago and Mauritius in several official documents, including reports to the United Nations General Assembly (ID). The unanimous decision on jurisdiction on these points of law (para. 55-62, 183), the ICJ then considered whether it should exercise its discretion and refuse treatment (paras. 63-91). The court`s „response to a request for expert advice constitutes its participation in the activities of the organization and should not, in principle, be refused,“ he wrote, unless there are „compelling reasons“ to do so. Footnote 9 Since some of the twenty-three participants in the hearing had invoked compelling reasons, the Court examined each of the pleas in law in turn. Footnote 10 First, it rejected the argument that the facts were too „complex and controversial“ to permit a judicial solution; the ICJ noted „the wealth of documents, including a detailed United Nations file“, participants` statements and official documents (paras.

69-74). Second, it rejected the argument that an opinion of the General Assembly would not be useful, arguing that the usefulness was not a matter for the Assembly and not for the Court (paras. 75-78). Third, it rejected the idea that an expert opinion would reopen the 2015 Prize on the grounds that the issues to be considered differed and that, although the award applied only to the two disputing States, the Opinion would be submitted to a UN body (paras. 79-82). In answer to the second question, the Court, having found that the process of decolonization of Mauritius had not been lawfully completed in 1968, examined the consequences in international law resulting from the continued management of the Chagos Archipelago by the United Kingdom. In particular, it considered that the continued administration of the Chagos Archipelago by the United Kingdom `constitutes an unlawful act involving the international responsibility of that State`, that the United Kingdom `is under an obligation to terminate its administration of the Chagos Archipelago as soon as possible and that all Member States must cooperate with the United Nations to complete the decolonisation of Mauritius`. Since respect for the right to self-determination was an obligation erga omnes, all States had a legal interest in protecting that right, the Court held. It was of the view that, while it was for the General Assembly to advise on the modalities necessary to ensure the completion of the decolonization of Mauritius, all Member States should cooperate with the United Nations in putting those modalities into practice.

With regard to the resettlement of Mauritian nationals, including of Chagossian origin, in the Chagos Archipelago, the Court considered that this was a matter relating to the protection of the human rights of the persons concerned which should be considered by the General Assembly after the completion of the decolonization of Mauritius. The purpose of the request was quite different: to obtain from the Court an opinion which the General Assembly considered useful for the proper exercise of its functions in the context of the decolonization of the Territory. (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 26-27, para. 39.) The case concerns the validity of the agreement concluded between the United Kingdom and Mauritius during the decolonization process. The latter was under the administration of the first state under a UN mandate. By 1810, before the UN was created, Britain had already taken control of the region. At that time, the occupied territories were known as Ile de France and were later renamed and called Mauritius.

In 1814, the France agreed to formally cede Mauritius to the United Kingdom by the Treaty of Paris.5 Until 1967, when the decolonization of Mauritius was considered complete, the Chagos Archipelago was part of Mauritius and was administered as a dependent territory of the colony of Mauritius. The Chagos Archipelago is located in the Indian Ocean about 500 km from the Maldives archipelago. The status of the Chagos Archipelago has never been challenged, as confirmed by several documents, such as the Rules of Procedure of the Governors of Mauritius, the Constitution of Mauritius, the United Kingdom`s reports to the UN under Article 73(e) of the UN Charter on Mauritius as a Non-Self-Governing Territory, but also other reports submitted to other UN bodies.6 There was concern that the Court might be reluctant to decide on this issue. The case probably concerned a bilateral sovereignty dispute, the settlement of which the United Kingdom had not accepted by judicial decision. However, it turned out that the Court gave surprisingly solid answers to the questions asked. Opinions are not legally binding on Contracting States, but carry considerable weight because they confirm the international legal situation in a particular situation. This overview will analyse the conclusions of the opinion before addressing the ancillary issues that now need to be dealt with by the Assembly. Taking note also of its decision of 16. September 2016, to include in the agenda of its seventy-first session the item entitled „Request for an advisory opinion of the International Court of Justice on the Legal Consequences of the separation of the Chagos Archipelago from Mauritius in 1965“, on the understanding that this issue will not be dealt with until June 2017, From a legal point of view, this opinion could serve as a basis for interested parties to challenge the jurisdiction of an international tribunal such as the ICJ or an arbitration body for the Court of Justice of the European Communities, the Court of Justice of the European Communities, the Court of Justice of the European Communities, the Court of Justice of the European Communities This would include any compensation that the United Kingdom of Mauritius will have to pay for decades of illegal administration of the islands. Such a settlement could also be achieved through bilateral agreements constituting an international treaty on these issues. Politically, this could have a negative impact on the UK`s international position both in its bilateral relations with Mauritius and with other countries, particularly former states under the UN trust system. This situation is condemned, as has already been said, by both the United Nations General Assembly and the African Union.

In financial terms, the notice could lead to claims for compensation from Mauritius due to decades of illegal management of the islands. It may also give rise to other satisfactory rights, which do not always have to take the form of financial compensation. From another point of view, if the status quo is maintained, it is possible that power politics will take its place in the future. The case could raise international security concerns, but with its current military, political and economic powers, the British government could still provide a secure deterrent and ward off potential hostilities from Mauritius. Nevertheless, any transfer of power to Mauritius could lead to tensions and possibly international conflict, which is not expected to be the case in the near future. According to the United Kingdom, the Chagos Archipelago is important for the security of the country. However, the situation it has created over the islands could raise international security concerns. In the same vein, the decision of the ITLOS arbitral tribunal is rather dubious. It confirmed that the measures taken by the United Kingdom to return the Chagos Archipelago to Mauritius are legally binding if the defence justifications are no longer applicable. However, by attaching the obligation to return the Chagos Archipelago to Mauritius, it has made this issue too vague and open to flexible interpretation. Thus, the question remains subject to subjective interpretation, which does not improve the situation either. After examining the factual circumstances surrounding the separation of the archipelago from Mauritius and the circumstances surrounding the expulsion of the Chagossians from that area, the Court examined the questions submitted to it by the General Assembly, having found that „there is no need to reformulate the questions submitted to it for observations in the proceedings“.