General Assembly Welcomes International Court of Justice Opinion on Chagos Archipelago, Adopts Text Calling for Mauritius’ Complete Decolonization
The General Assembly adopted a resolution today welcoming a 25 February 2019 International Court of Justice advisory opinion on the legal consequences of separating the Chagos Archipelago from Mauritius in 1965, demanding that the United Kingdom unconditionally withdraw its colonial administration from the area within six months.
By a recorded vote of 116 in favour, to 6 against (Australia, Hungary, Israel, Maldives, United Kingdom, United States), with 56 abstentions, the Assembly affirmed that doing so — in accordance with the advisory opinion — would enable Mauritius to complete the decolonization of its territory as soon as possible.
Since the decolonization of Mauritius was not conducted in a manner consistent with the right to self-determination, the Assembly affirmed, the continued administration of the Archipelago constitutes a wrongful act. It urged the United Kingdom to cooperate with Mauritius to facilitate the resettlement of Mauritian nationals, including those of Chagossian origin, in the Chagos Archipelago and to pose no impediment to such efforts.
Introducing the text on behalf of the African States, Cheikh Niang (Senegal) recalled that General Assembly resolution 71/292 requested the Court to pronounce on whether the decolonization of Mauritius was lawfully completed when independence was granted in 1968, and further, on the international legal consequences arising from the United Kingdom’s administration of the Chagos Archipelago.
He said the Court found that the decolonization of Mauritius was not lawfully completed under international law when the country acceded to independence in 1968 and called on the United Kingdom to unconditionally end its occupation of the Archipelago as soon as possible. Citing Assembly resolution 1514 (XV) of 1960, and the determination expressed by African Union Heads of State in 2017 to ramp up efforts towards complete decolonization of Mauritius, he said it is now up to the organ to take the Court’s opinion on board. He pressed Member States to choose justice and respect for the rule of law by supporting the text — and to help Africa overcome the traumas of a colonial past.
In the ensuing debate, Samuel Moncada (Venezuela), speaking for the Non-Aligned Movement, expressed unwavering support for decolonization initiatives, recalling that his delegation agreed in 2018 that Chagos Archipelago, including Diego Garcia island, was illegally removed from Mauritius and that the area is an integral part of its territory. The United Kingdom claimed to establish a marine protected area around the Archipelago, impinging Mauritius’ territorial integrity, preventing the country from exercising its sovereignty over the area and those forcibly expelled from exercising their right to return. Citing the case brought by Mauritius against the United Kingdom under the 1982 United Nations Convention on the Law of the Sea, he urged the latter to end its administration of Chagos Archipelago.
Pravind Jugnauth, Prime Minister of Mauritius, associating himself with the African States, said the Court’s landmark opinion confirms the long-standing position of Mauritius and Africa that decolonization has not been completed — nor will it be until it can exercise sovereignty over the Chagos Archipelago, which the Court found to be an integral part of its territory. It also found that all States must cooperate with the United Nations to complete the decolonization process. “The advisory opinion is clear and unambiguous,” he said, leaving no doubt for any other interpretation. “It is decisive.”
In addition, he said the Court found that the right to self-determination and territorial integrity were a fundamental part of customary international law in 1965 when Mauritius was dismembered. As outlined in resolution 1514 (XV), it made clear that detachment of part of a colonial territory without people’s consent was a violation of international law. At the time, Mauritius representatives did not have genuine legislative or executive power, and it is thus impossible to speak of an international agreement, as the Archipelago’s detachment was not based on the free and genuine expression of the people of Mauritius.
Stressing that the United Kingdom is obliged to end its administration and enable Mauritius to complete the decolonization of its territory, he said the Assembly must pronounce on the modalities required for such and that all Member States must cooperate with the United Nations to put those modalities into effect. It must also address the issue of resettlement, a question of human rights protection.
Recalling his offer to work with the United Kingdom on a joint resolution which would have considered the former’s security concerns — made out of respect for it as a champion for the rule of law — he expressed extreme disappointment over London’s position. “It feels like we are back in 1965,” he said, recalling that excision was carried out under duress and presented to the United Nations as a fait accompli. Today, it is being justified by challenging the Assembly’s authority to refer questions to the Court.
He said it is incorrect that the opinion has no legal consequences, as all States must respect international law and the United Nations cannot ignore or contravene the legal positions of its highest judicial bodies, especially as it has a mission to foster self-determination. “This is a sacrosanct principle of the United Nations,” he said, calling the forcible eviction of Chagos inhabitants a very dark episode of human history akin to a crime against humanity. Those people, now in their 70s, have systematically been prevented from returning home. He expressed the Government’s commitment to carry out a resettlement programme, contrasting it with the United Kingdom’s proposal of monetary support for those living outside their birthplace. The question now is whether the international community will take remedial action or allow another wrongful act to persist.
Clarifying that the United Kingdom is only making the case for its security interests now that the Court has come out with its opinion, he said Mauritius has publicly committed to enter into a long-term arrangement with the United States, or the United Kingdom and the United States, in that regard — a position that has gained consensus as it would provide legal certainty around the operation of the defence facility. The resolution’s six-month limit for ending the United Kingdom’s unlawful administration offers more than enough time to do so: there are only a handful of personnel who provide no services outside of the security facility. He urged delegates to uphold the Court’s sanctity by adopting the resolution by consensus.
Karen Pierce (United Kingdom), recalling that her country is a key trade partner and is committed to seeing Mauritius thrive, described the strategic importance of the area, with the Malacca Straits to the east where cargo vessels transit, and the Gulf of Aden to the west, through which one eighth of global trade passes annually. The United Kingdom and United States defence facility on the British Indian Ocean Territory plays a vital role in efforts to keep allies safe and secure, notably in combating terrorism, drugs, crime and piracy. It supports partners in the Combined Maritime Forces of 33 Member States whose area of operation covers 3.2 million square miles and some of the world’s most important shipping lanes through the Gulf of Aden, Bab al-Mandeb, Suez Canal and Straits of Hormuz. It hosts seismic monitoring capabilities that support the Comprehensive Nuclear-Test-Ban Treaty and stands ready to assist in times of humanitarian crisis.
“The United Kingdom is not in doubt about our sovereignty over the British Indian Ocean Territory,” she said, which has been under its sovereignty since 1814. It has never been part of Mauritius. In 1965, Mauritius freely entered into an agreement that offered fishing rights and marine resource. The accord also included a United Kingdom commitment to cede the territory when it is no longer needed for defence purposes. The United Kingdom stands by its commitments made in the 1965 agreement, which Mauritius reaffirmed on many occasions since its 1968 independence, including through its own laws and Constitution.
Expressing regret over the manner in which Chagossians were removed from the area in the 1960s and 1970s, she said the United Kingdom closely considered the question of resettlement, having held public consultations with Chagossians and others. It decided not to support resettlement on the grounds of feasibility, defence and security interests and costs, and instead is working with Chagossian communities in Mauritius and the Seychelles and the United Kingdom to implement a $50 million support package. She unconditionally rejected claims the United Kingdom was engaged in crimes against humanity, a gross mischaracterization of its position.
Stressing that she will vote no on today’s resolution, she said the United Kingdom’s history of working in partnership with countries as they develop their governance and judicial structures post-independence is well documented. She would have welcomed a joint resolution, but the gap between positions was too great. The United Kingdom does not challenge the authority of the Assembly or the Court. Stressing that the issue between the United Kingdom and Mauritius is a bilateral sovereignty dispute, she said the title of the draft resolution revolves around decolonization. Thus, in giving its advisory opinion, the Court has allowed its principle that it should not hear bilateral dispute without the consent of both States to be circumvented — implying that any bilateral dispute could be referred for an opinion.
She went on to stress that the text goes beyond the advisory opinion, setting a six-month deadline for the United Kingdom to act and calling on States and the United Nations to take action that could have wide implications for the operation of the joint defence facility. “These elements are not what the advisory opinion specified,” she said, but rather a blatant attempt by Mauritius to extend its scope. While such opinions can carry weight in international law, they are not legally binding. The Court does not give sufficient regard to material and factual issues outlined in her 14 May letter. Nor does it consider the 2015 International Tribunal for the Law of the Sea arbitration award holding that the agreement — in which Mauritius agreed to the detachment in return for access to and resource benefits — is legally binding. She also cited an accord between the United Kingdom and the United States to maintain British sovereignty over Indian Ocean territory until 2036. Underlining the importance of the Tribunal award and the bilateral nature of the issue, she explained she would vote no on the resolution.
Thilmeeza Hussain (Maldives), disassociating herself from the Non-Aligned Movement’s position, explained that her country has always supported United Nations decolonization processes and the right to self-determination. It does not oppose the resolution because of a change in these principles, but rather, as the text does not provide clarity on the issue at hand. It prejudges the implications of the Maldives’ July 2010 submissions to the Commission on the Limits of the Continental Shelf. Without due process and clarity on the legal implications of a contested matter, the Maldives is not in a position to support the resolution solely as a matter of decolonization. Stressing that any uncertainty on the issue of Chagos Archipelago will have serious implications for sovereignty, territorial integrity and the wider security of the Indian Ocean region, she said that her country’s vote should not be construed as one against the co-sponsors, with whom the Maldives has excellent relations.
Many delegates called for supporting the resolution and restoring the territorial integrity of Mauritius, with some — including Madagascar’s delegate — recalling that the Third International Decade for the Eradication of Colonialism draws to an end in 2020. Underscoring the Assembly’s role in ensuring the decolonization of Mauritius, she said she will vote for the resolution and urged others to do likewise by reaffirming the supremacy of international law.
Syed Akbaruddin (India), on whether the matter is a bilateral dispute, said the Court held that issues raised by the Assembly’s request are in the broader context of decolonization, and it did not consider that rendering an opinion would constitute circumventing the principle of consent. India shares the security concerns relating to the Indian Ocean, conscious of the need for collective commitment to ensure security of the oceanic space. “However, this is a separate matter, on which we urge concerned Governments to reach a mutually agreeable understanding as soon as possible,” he said, expressing support for the text.
Neville Melvin Gertze (Namibia), recalling that the Court in 1999 ruled in favour of Botswana on a case involving the Kasikili/Sedudu Island, said his country accepted that judgment in full respect of international law. “Mauritius should, according to international law, exercise sovereignty over the totality of her territory,” he said. Mr. Butler-Payette (Seychelles), whose country hosts a sizeable Chagossian community, noted that when his nation gained independence, the United Kingdom returned Aldabra and Farquhar atolls and Desroches island. “It would stand to reason that the same precedent be applied in the case of Mauritius,” he said, adding that the Chagossian people have a moral, as well as legal claim to their ancestral homeland.
Polly Ioannou (Cyprus) welcomed that the Court’s interpretation of self-determination rejects methods employed to prevent complete decolonization. Self-determination, at the core of decolonization, is an inalienable right, and colonial Powers are obliged to give it full respect in territories wholly or partially deprived of that right. No arrangements can allow a Power to escape its international law obligations, she said, stressing that “territorially handicapped independence” cannot but violate the right to self-determination. Genuine will to part with some territory is a myth; coercion is always present — irrespective of whether it is done in line with legal convention. It cannot be argued that territorial dismemberment is genuinely consented to, given inherent power imbalances, which is why no legal effect can be created from such conditions. Her country will vote in favour of the resolution, advocating that partnerships among equals are the only way to legitimately achieve collective goals in good faith.
“There is no reason that would justify the continued occupation of the Chagos Archipelago” said Syria’s delegate, stressing that evoking security reasons is a position that is colonial, obsolete and unacceptable. Argentina’s delegate called the advisory opinion and the draft a “victory” for international law, noting that his country’s people had similarly been denied their rights. The Court has been emphatic on the Assembly’s role in overseeing the implementation of obligations incumbent on administering Powers to ensure that decolonization has been duly completed, and about the normative value of Assembly resolution 1514 (XV).
Others held a different view, with the United States delegate stressing that it was inappropriate to seek an advisory opinion for a bilateral dispute. He voiced concern over the scope of the text and misuse of the Court’s advisory function, recalling that the United Kingdom is sovereign over the British Indian Ocean Territory and underscoring the United States support for that sovereignty. The joint base is critical to security in the area, allowing allies and partners to combat threats and to provide a powerful response in times of humanitarian crisis. Emphasizing that all should be concerned by the overreach of the resolution, as it goes beyond the non-binding advisory opinion and mischaracterizes its effect in critical respects, he said the Court did not say Mauritius is sovereign over the British Indian Ocean Territory. The draft resolution would undermine the international legal principle that States must consent to have their disputes adjudicated. For such reasons, the United States will reject the text.
Australia’s delegate, explaining her country’s vote against the resolution, expressed deep concern that the Assembly is being asked to implement a non-binding opinion. State consent is a cornerstone of international law and both parties did not consent to a binding judicial settlement of this matter. The Assembly should not seek to act on the Court’s non-binding opinion as if it were otherwise, she explained, calling the six-month time frame “manifestly unreasonable”. The text also goes beyond the Court’s opinion on matters concerning territorial integrity and could set an unhelpful precedent.
Israel’s delegate, explaining her country’s no vote, said the issue should be addressed bilaterally between the United Kingdom and Mauritius. It is contrary to the Court to have recourse to an advisory opinion mechanism in a bilateral territorial dispute. Israel opposes circumvention of the principle that a State is not allowed to have its case before the Court without its consent. It had expressed that view when the Assembly requested the Court’s opinion and had voted against resolution 71/292. Israel also reiterated that position during advisory opinion proceedings. Today’s resolution uses language that is inaccurate and inconsistent with the Assembly’s mandate. For such reasons, Israel voted against the text.
Exercising the right of reply, the representative of Mauritius replied to the Maldives delegate that the matter concerning the submission to the Commission on the Limits of the Continental Shelf has been misrepresented. The two countries discussed the maritime boundary in 2010 on the basis of equidistance. Those discussions were inconclusive. In July 2010, the equidistant boundary line was not considered, and Mauritius asked the Maldives to make amendments. This has not been done. Mauritius also invited the Maldives to discuss maritime delimitation, but there has been no reply.
The representative of Argentina, replying to comments by the United Kingdom’s representative, recalled that the Malvinas, South Georgia Islands, South Sandwich Islands and adjoining maritime spaces are part of his country. However, they are illegitimately occupied by the United Kingdom and the subject of a dispute. Assembly resolution 2065 (XX), among others, recognizes the existence of that dispute and urges Argentina and the United Kingdom to resume negotiations to find a peaceful and definitive solution. In keeping with that colonial issue, termed as special and specific, the self-determination principle is not applicable. He reiterated Argentina’s constant and clear willingness to resume negotiations to reach a settlement and comply with the international mandate on that matter, pursuant to international law and the Charter of the United Nations, he urged the United Kingdom to likewise proceed in that manner.
The representative of the United Kingdom replied to Argentina’s delegate that his country has no doubt over its sovereignty of the Falkland Islands (Malvinas)*, South Georgia, South Sandwich Islands and surrounding maritime areas, reiterating the right of islanders to self-determination, as well as to freely determine their political status and pursue their economic and cultural development.
The text was one of two adopted today, with the Assembly also deciding by consensus to convene a one-day high-level meeting on the margins of its seventy-fifth session to celebrate the twenty-fifth anniversary of the Fourth World Conference on Women. It recommended that the Assembly President conduct consultations to finalize the organizational arrangements.
At a time of heightened concern, General Assembly President María Fernanda Espinosa Garcés (Ecuador) said it is crucial that the 193-member organ send a strong signal that “we are a parliament of all humanity”. Almost 25 years on, the Beijing Platform for Action remains highly relevant. Progress has been painfully slow. At the current rate, it will take 108 years to close the global gender gap, and 202 years to achieve economic gender parity. Noting that in every region, women are still denied their basic rights and needs, she said the anniversary will offer a golden opportunity to recommit to women’s rights and empowerment, and to reclaim the agenda. She will immediately begin preparations and appoint co-facilitators to lead discussions on organizational arrangements.
Also speaking were representatives of Nicaragua, South Africa, Egypt, Botswana, Mexico, Lesotho, Uruguay, Zimbabwe and Indonesia.
Also speaking in explanation of vote were representatives of Colombia, El Salvador, Sweden (also on behalf of Finland), New Zealand, Japan, China, Singapore, Liechtenstein, Chile, Russian Federation, Portugal, United Arab Emirates, Austria, Switzerland, Canada, Thailand, Iran, Costa Rica and Turkey.
* A dispute exists between the Governments of Argentina and the United Kingdom of Great Britain and Northern Ireland concerning sovereignty over the Falkland Islands (Malvinas).