Chagos Islands - Correcting A Colonial Injustice Dr Jaspal Kaur Sadhu Singh

The correction of this injustice was achieved through a long drawn fight. The outcome, culminating in a spectacular opinion and vote, has consequences that can impact a rules-based international order, a commitment promoted by the UN Charter.

In May, the UN General Assembly voted (116 in favour to six objections and 56 abstentions) that the UK has a six-month deadline to withdraw from the Chagos Archipelago endorsing the opinion of the International Court of Justice. The ICJ delivered an opinion in February 2019 that the decolonisation of Mauritius was not lawfully completed when Mauritius acceded to independence and that the UK is under an obligation to end its administration of the Chagos Archipelago “as rapidly as possible”.

Some background to the involvement of the court is essential to understand how the loss of Chagossian people’s right to abode culminated in the assembly’s vote. The court was requested by the General Assembly in 2017 to respond to two questions; first, whether the decolonisation of Mauritius was lawfully completed when Mauritius was granted independence in 1968; and second, a consideration of the consequences under international law arising from the continued administration of the Chagos Archipelago with a focus on the inability of the Mauritius government in resettling its nationals of Chagossian origin.

The islands had been a British colony since 1814 and the colonial administration had permitted the US to establish its military base on the islands in 1966. Before this arrangement, the UK government and representatives from Mauritius had agreed to the detachment of the Chagos Islands in return for, among other things, £3 million. The Lancaster House Agreement stated that the detachment will last to the point when the need for the facilities on the islands “disappeared”, the islands should be returned to Mauritius. Flowing from this, a colony including the Chagos Islands was established as the British Indian Ocean Territory (“the BIOT”), which includes the Diego Garcia military base. The result from the detachment of the islands from Mauritius was the prohibition of the inhabitants from entering or remaining on the islands. The displaced Chagossian people were resettled in the UK, Mauritius and Seychelles, and deprived of their right to abode.

In response to the first question, the ICJ relied on the right to self-determination as a customary norm recognised by resolution 1514 (XV) adopted by the General Assembly in 1960 entitled “Declaration on the Granting of Independence to Colonial Countries and People”, concluding that the detachment of the islands was inconsistent with this declaration, in that it was not based on the freely expressed and genuine will of the islanders. Even when the colony’s representatives had agreed to the detachment, it was not based on the free and genuine expression of the will of the Chagossian people.

The court then responded to the second question that it will, in an attempt to redress this wrongful detachment, place the obligation on the United Kingdom to bring to an end its administration of the islands and that all member states must cooperate with the UN to complete the decolonisation and further opined that the resettlement of the Mauritian nationals of Chagossian origin should be addressed by the UN General Assembly.

The opposition proffered by the UK was that British presence is required in the Indian Ocean for the security of the geographical area of the islands, stressing the importance of Diego Garcia as a military base which is near busy shipping lines.

It is hoped that the consequences of this vote will have a meaningful impact for different quarters. First, the UN agencies will have to mobilise their machinery to support the outcome of the vote and the opinion of the court. General Assembly decisions (passed resolutions) bind the entire internal UN sphere and through the principle of ratione personae, the decision binds the addressee (the UK).

Second, the UN’s role has taken the position of a provider of access to justice when the failed legal attempts within the UK and the European justice systems were piling up. The majority of the House of Lords in 2008 did not find in favour of the right to abode of the Chagossian people. A further disappointment followed when the European Court of Human Rights concluded that it did not have the jurisdiction to determine the matter under Articles 1 (the jurisdiction clause) and Article 56 (the colonial clause). The construction given to these clauses were determined at a high threshold.

Finally, it is hoped that a renewed legal discussion will lead to developing a legal jurisprudence that respects the rights of a people to their land and by extension, the right to abode and the right to self-determination, encompassing for instance, the definition of “indigenous people” and the interpretation of “the right to abode” under the Magna Carta which arose from the UK litigation. The second is the threshold of a “control test” to determine the occupation of a territory, a critique which arose from the decision of the Strasbourg court.

The UK government’s relentless single-mindedness to persistently submit its reasons to contest a peoples’ right to their homeland, in the face of an apparent and blatant disregard for human rights has attracted a trenchant comment that the UK today is a relic of an empire that has lost its clout in the international arena and is impervious to countervailing beliefs as to the values of the international order.

Professor Philippe Sands QC, who represented Mauritius at the ICJ, commented that the position taken by the UK government will leave it “struggling internationally” and “floundering and isolated”. When the UK opposed the resolution, Sands summarised the views of many observers – “A sad day for an isolated, lawless, colonial Britain.”