From the Indian Ocean to the Arctic: What the Chagos Archipelago Advisory Opinion Tells Us about Greenland

2021 ◽  
Vol 12 (1) ◽  
pp. 308-327
Author(s):  
Rachael Lorna Johnstone
Keyword(s):  
Self Determination ◽  
The Arctic ◽  
General Assembly ◽  
Advisory Opinion ◽  
Colonial Power ◽  
The Status ◽  
Un General Assembly ◽  
The Right ◽  
Consultative Body ◽  
Chagos Archipelago

On February 25, 2019, the International Court of Justice issued its advisory opinion on Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. The judges held by a majority of 13:1 that the process of decolonisation of Mauritius is incomplete, owing to the separation of the Chagos Archipelago shortly before Mauritian independence, that the United Kingdom should end its administration of the Chagos Archipelago as rapidly as possible, and that all Member States of the United Nations should cooperate to complete the decolonisation of Mauritius. The (partial) decolonisation of Mauritius in 1968 and the treatment of the Chagos islanders (Chagossians) have important parallels with the purported decolonisation of Greenland in 1952–54. In both cases, the consultative body of the colonised people was neither fully independent nor representative of all the people concerned. No real choice was given to either body; rather the colonial power offered only the continuation of the status quo or professed self-determination on terms defined by the colonial power itself. Furthermore, the process of decolonisation was inherently linked to the forcible transfer of people in order to make way for a United States military facility. Nevertheless, there are some relevant differences. First of all, Greenland was purportedly decolonised in 1953, some seven years before the UN General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA Res. 1514(XV) 1960). Second, the UN General Assembly accepted the Danish government’s representations regarding the full decolonisation of Greenland (UNGA Res. 849 (1954), in contrast to their position regarding Mauritius that decolonisation was and remains incomplete, owing to the separation of the Chagos Archipelago (UNGA Res(XX) 1965). Third, though the Chagossians have been recognised as indigenous at the UN, the British government has continually denied this status and (mis)characterises them as a transient people, while Denmark has accepted the status of the Greenlanders as both an indigenous people and a colonial people, entitled to self-determination. This article examines the implications for the judgment for the Greenland case as well as broader questions of self-determination of peoples. It concludes that the colonial boundaries continue to govern in decolonisation cases, with the consequence that the Greenlanders are likely to be held to be a single people; that the erga omnes character of the right to self-determination means that all States must cooperate to facilitate Greenlanders’ choices for their future; and that there remain significant procedural hurdles that prevent colonial and indigenous peoples having their voices heard, even in the matters that concern them most of all.

scholarly journals Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965

2019 ◽  
Vol 113 (4) ◽  
pp. 784-791 ◽  
Author(s):  
Diane Marie Amann
Keyword(s):  
The United States ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
International Court ◽  
The Indian Ocean ◽  
Un General Assembly ◽  
The Right ◽  
Chagos Archipelago ◽  
Legal Consequences

Decolonization and its quite valid discontents lay at the center of this advisory opinion regarding the territory and populations of islands located in the Indian Ocean. Answering questions posed by the UN General Assembly, the International Court of Justice (ICJ or Court) concluded that because the Chagos Archipelago was detached from Mauritius as a condition of independence, the decolonization of Mauritius had not been completed in accordance with international law. The Court further ruled unlawful the United Kingdom's continued administration of the Chagos Archipelago and called upon all UN member states to aid completion of the decolonization process. Nearly unanimous—the sole dissenter on the merits was Judge Joan E. Donoghue of the United States—the advisory opinion contained significant pronouncements on decolonization, on the right of all peoples to self-determination, and on the formation of customary rules respecting both. It did so in a manner that implicated the ICJ's role as the judicial organ of the United Nations, in whose General Assembly and other political bodies the next episodes in the Chagos controversy seem destined to unfold.

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (I.C.J.)

2019 ◽  
Vol 58 (3) ◽  
pp. 445-602
Author(s):  
Stephen Allen
Keyword(s):  
International Law ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Customary International Law ◽  
The United Kingdom ◽  
International Court ◽  
Un General Assembly ◽  
The Right ◽  
Chagos Archipelago ◽  
Legal Consequences

In its Chagos Advisory Opinion, the International Court of Justice (ICJ) addressed two questions posed in a request from the UN General Assembly. First, had Mauritius's decolonization been completed when it gained independence in 1968, after the excision of the Chagos Archipelago? Second, what were the legal consequences flowing from the United Kingdom's continued administration of the Archipelago? It was thought that the Court might shy away from giving an Opinion in this case as, arguably, it concerned a bilateral sovereignty dispute that the United Kingdom had not agreed to have resolved by judicial decision. However, as it turned out, the Court delivered surprisingly robust responses to the questions posed. The Opinion—and the numerous Separate Opinions that accompanied it—offer a thorough re-evaluation of the customary international law (CIL) concerning the right to self-determination in cases of decolonization.

scholarly journals SELF-DETERMINATION, THE CHAGOS ADVISORY OPINION AND THE CHAGOSSIANS

2019 ◽  
Vol 69 (1) ◽  
pp. 203-220
Author(s):  
Stephen Allen
Keyword(s):  
International Law ◽  
Self Determination ◽  
European Convention ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Customary International Law ◽  
International Court ◽  
The Uk ◽  
The Right ◽  
Chagos Archipelago

AbstractIn its Chagos Advisory Opinion, the International Court of Justice (ICJ) ruled that the UK's detachment of the Chagos Archipelago from the colony of Mauritius on the eve of independence constituted a violation of customary international law (CIL). This article analyses the Court's approach to establishing the emergence and content of the right to self-determination in this frustrated case of decolonisation. It goes on to examine the argument that self-determination's peremptory character has decisive consequences in this specific context—a contention which found favour with several judges in their Separate Opinions. The article explores the extent to which the claims and counterclaims, made during the advisory proceedings, turned on countervailing readings of not only the key sources of custom but also of the principle of inter-temporal law. The final sections consider the significance of the Chagos Opinion for the Chagossians, both in relation to the Archipelago's resettlement and for their outstanding appeal in the UK courts (where the European Convention on Human Rights performs a pivotal role).

scholarly journals From High Hopes to Disillusionment: Indigenous Peoples' Struggle to (re)Gain Their Right to Self-determination

2008 ◽  
Vol 15 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Timo Koivurova
Keyword(s):  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
General Assembly ◽  
Political Rights ◽  
Draft Convention ◽  
Un General Assembly ◽  
Civil And Political Rights ◽  
The Right

AbstractThis article will examine three international processes wherein the right to self-determination of indigenous peoples has been taken up: the process whereby the United Nations (UN) General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples (UN Declaration), the intention to negotiate a Nordic Saami Convention (Draft Convention) and the practice of the Human Rights Committee (HRC) in monitoring the observance of the International Covenant on Civil and Political Rights (Covenant). All of these processes have enunciated indigenous peoples' right to self-determination, but any claim to such a right has met with resistance from the states, with the reasons for such resistance examined here. The aim is to study why it is so difficult to insert indigenous peoples into international law as category and, in particular, to have states accept their right to self-determination. In the conclusions, it is useful to ask whether the problems experienced in promoting the right to self-determination of indigenous peoples are mere setbacks or whether they contain elements that might inform the international movement of indigenous peoples more generally.

scholarly journals Self-Determination in Light of the International Court of Justice’s Opinion in the Chagos Case

2020 ◽  
Vol 7 (2) ◽  
pp. 216-235
Author(s):  
Gino J Naldi
Keyword(s):  
United Kingdom ◽  
Self Determination ◽  
Advisory Opinion ◽  
Territorial Dispute ◽  
The United Kingdom ◽  
International Court ◽  
The Icj ◽  
The 1960S ◽  
The Right ◽  
Chagos Archipelago

In its Advisory Opinion in Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, delivered in 2019, the International Court of Justice (ICJ) was of the view that the decolonisation of Mauritius by the United Kingdom had not been lawfully completed when it achieved independence in 1968. This was due to the separation of the Chagos Archipelago in 1965. After dismissing various challenges to the exercise of its advisory jurisdiction, including the argument that the issue at stake was a territorial dispute between the States and that its jurisdiction was, therefore, being misused to circumvent the UnitedKingdom’s lack of consent to contentious proceedings, the ICJ felt it necessary to explore the nature, scope and content of the right to self-determination and whether it had been validly exercised in this instance. The ICJ found that self-determination had become established as a legal right in the context of decolonisation by the time Mauritius was in the process of securing its independence in the 1960s and that a corollary of the right was that of the territorial integrity of a non-self governing territory, which had not been respected in the case of Mauritius. Accordingly, the United Kingdom’s continued administration of the Chagos Archipelago constituted an ongoing internationally wrongful act, entailing international responsibility, which the United Kingdom was under an obligation to put an end to as soon as possible. While it was for the United Nations (UN) General Assembly to determine how the decolonisation of Mauritius was to be realised, in view of the fact that the right to self- determination has an erga omnes character, the ICJ called on all States to co-operate with the UN to that end.

The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?

2011 ◽  
Vol 24 (1) ◽  
pp. 73-86 ◽  
Author(s):  
THEODORE CHRISTAKIS
Keyword(s):  
International Law ◽  
Self Determination ◽  
General Assembly ◽  
Advisory Opinion ◽  
Simple Fact ◽  
Territorial Integrity ◽  
Declaration Of Independence ◽  
Future Developments ◽  
The Icj ◽  
Un General Assembly

AbstractThe objective of this paper is to examine how the Court has dealt with existing general international law governing secession and to evaluate the effects that this opinion could have on future developments in this field. The narrow interpretation of the question submitted by the UN General Assembly permitted the Court to avoid many important questions. The Court made no statements concerning Kosovo's statehood and recognition by third states and made no mention of statehood requirements or the ‘principle of effectiveness’. The Court also refused to examine whether Kosovo (or any other entity outside the colonial context) had a ‘right’ to secession, but gave no endorsement to attempts to apply external self-determination outside the colonial context or to the theory of ‘remedial secession’. This paper explains why the Court did not apply the ‘Lotus’ freedom principle in the Kosovo case. It welcomes the indirect, but clear, position of the Court that a declaration of independence can, in some situations (and especially in the case of external aggression), be illegal – a position that contradicts the old theory, stemming from Jellinek, that the creation of a state is nothing but a ‘simple fact’. While the Court correctly found that outside these exceptional circumstances, no general prohibition against unilateral declarations of independence exists in international law, it should have added that international law is not ‘neutral’ in this field, that it disfavors secession, and that it creates a presumption against the effectiveness of secession. The ‘legal-neutrality’ stance adopted by the Court is not without risks. Indeed, the Court should have been more cautious in its assertion that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between states’, not only because recent practice clearly indicates the contrary, but also because its position could have an unwelcome effect in resolving future separatist conflicts by rendering countries extremely sceptical of solutions of autonomy or international administration.

Peoples’ Right to Self-Determination

2019 ◽  
Vol 21 (5) ◽  
pp. 463-479
Author(s):  
Paul Weismann
Keyword(s):  
Legal Aspects ◽  
Self Determination ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
International Court ◽  
The Us ◽  
The Indian Ocean ◽  
Un General Assembly ◽  
The Uk ◽  
Chagos Archipelago

Abstract The Chagos Archipelago is a small group of islands and atolls in the Indian Ocean which traditionally has belonged to Mauritius. In 1965, when Mauritius was still a colony of the UK, the Chagos Archipelago was detached from Mauritius and the UK allowed the US to establish a military base on this territory. These occurrences have been highly disputed ever since. In February 2019, the International Court of Justice (ICJ), upon request by the UN General Assembly, has rendered its Advisory Opinion on a number of legal issues concerning the case. This contribution aims at presenting and discussing the facts of the case and its main legal aspects, encompassing material questions on the peoples’ right to self-determination, on territorial integrity and on international responsibility, but also procedural questions relating to the scope of the jurisdiction of the ICJ. In this context, not only the Advisory Opinion of the Court shall be analysed, but also the Separate Opinions and Declarations and in particular the Dissenting Opinion rendered by Judge Donoghue will be taken into account.

scholarly journals Revisiting the ‘Recognition’ of the Palestinians’ Right to Self-Determination: Peoples as Territories

2020 ◽  
Vol 7 (2) ◽  
pp. 236-251 ◽  
Author(s):  
Shadi Sakran
Keyword(s):  
Self Determination ◽  
Advisory Opinion ◽  
Independent State ◽  
The People ◽  
The Status ◽  
The Icj ◽  
The Right ◽  
The Relationship ◽  
State Of Israel ◽  
General Fact

‘[B]ehind every Palestinian there is a great general fact: that he once – and not so long ago– lived in a land of his own called Palestine, which is now no longer his homeland.’ The question of whether the Palestinian people, as a people, are entitled to exercise the right to external self-determination has been highly controversial over the years. Divided scholarly research, particularly regarding the attitude of the State of Israel which, at time of writing, has not yet explicitly recognized the Palestinian peoples’ right to emerge as an independent State, serves as evidence to this claim. In 2004, the ICJ in the Wall Advisory Opinion observed that the Palestinians’ right to self-determination is no longer in issue. This observation serves as the benchmark for this paper to revisit the identification of a people under international law. This paper critically examines whether constitutive and declaratory theories of recognition in statehood can assist in understanding the concept of a people in the law of self-determination. While concluding that neither theory of recognition is satisfactory, this paper argues that application of the right to self-determonation, within and beyond the colonial context, is inevitably linked to the territory peoples inhabit. Although the relationship between peoples and territories should come as no surprise, the key element in determining a people is not based on the people but on the status of the territory they inhabit.

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965; (Advisory Opinion)

2021 ◽  
Vol 192 ◽  
pp. 84-345
Keyword(s):  
United Kingdom ◽  
United Nations ◽  
International Law ◽  
Self Determination ◽  
General Assembly ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
International Court ◽  
United Nations Charter ◽  
Chagos Archipelago

84International Court of Justice — Advisory jurisdiction — Article 65(1) of Statute of Court — Competence of General Assembly — United Nations Charter, 1945, Article 96(1) — Whether question submitted to Court of legal character — Alleged lack of clarity of terms of request — Whether having effect on legal nature of question — Whether depriving Court of jurisdictionInternational Court of Justice — Advisory jurisdiction — Discretion to decline to give opinion — Requirement of compelling reasons for Court to decline to give opinion — Whether questions raising complex and disputed factual issues unsuitable for determination — Whether Court having sufficient information and evidence — Requesting organ to determine whether opinion required — Whether advisory opinion would reopen findings of Arbitral Tribunal — Res judicata — Relevance of United Kingdom lack of consent to judicial settlement — Principle of consent to judicial settlement of disputes — Whether Court would be deciding a bilateral disputeStates — Decolonization — Independence — Separation of the Chagos Archipelago from Mauritius — Whether process of decolonization of Mauritius lawfully completed — Relevant period — Applicable law — Right of self-determination — Whether self-determination customary law during relevant period — Territorial integrity — Whether detachment of Chagos Archipelago unlawfulInternational organizations — United Nations — General Assembly — Decolonization — Functions of the General Assembly regarding decolonization — Non-self-governing territories — Free and genuine will of people of a non-self-governing territory — MauritiusHuman rights — Self-determination — United Nations Charter, 1945 — General Assembly Resolution 1514 (XV) 1960 — Right erga omnes — Chagos Archipelago — Mauritius — Continued administration of Chagos Archipelago by United Kingdom — Consequences under international law arising from continued administration by United Kingdom of Chagos Archipelago — Whether continued administration constituting a wrongful act — Whether responsibility of United Kingdom engaged under international law — Whether United Kingdom obliged to put an end to any internationally wrongful act — Obligations upon all States under United Nations Charter and international law

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