Part I: The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases
The advisory proceedings concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 are over, but an opinion that answers the legal questions raised in the request could have consequences well beyond the Indian Ocean.
Earlier this month, Stephen Allen contributed a post on the self-determination arguments made in relation to the first question asked of the court. Like Allen, I have taken sides in my scholarly work, although unlike Allen, I have argued that self-determination emerged as a customary norm of international law before 1970. As I argued in my article on the arbitration (2010-2015) between the UK and Mauritius (published in volume 19 of The Max Planck Yearbook of United Nations Law, 2016, pp. 419-468), the emergence of a norm prohibiting partition in the decolonization context would have outlawed the division of the archipelago before independence in 1968, unless it could be shown that Mauritius consented to the separation.
In this post, I argue that the legal arguments raised by the Applicants in the South West Africa Cases could be of direct relevance to the opinion, because although the ICJ refused to address the merits, the cases spanned a period of time (1960-1966) that is germane to any contemporary assessment of the legality of the decision to partition the Chagos Archipelago in 1965. While the Applicants did not reference the Colonial Declaration (GAR 1514 (XV) (1960) in their pleadings, they nevertheless argued that international law in the 1960s prohibited partition, demonstrating that there were principles of law at stake that proscribed the non-consensual division of territory.
What remains missing is an authoritative opinion from the world court.
The request for the advisory opinion provides the ICJ with another opportunity to say something about self-determination in international law beyond restating that it is a principle of law applicable erga omnes – as it did in the East Timor case. The issue raised in the first of the two questions submitted to the ICJ as to whether the process of decolonization of Mauritius was lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius, was not so much about self-determination in the abstract, but about what it substantively entailed, and whether administering powers could partition non-self-governing territories prior to independence.
The haunting spectre of the South West Africa Cases
Unsurprisingly, South Africa’s dispute with the UN over the status of South West Africa was mentioned in the Chagos pleadings, although obliquely, in relation to arguments as to whether paragraph 6 of the Colonial Declaration reflected customary international law in the 1960s. According to that paragraph: ‘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’.
We must remember that the South West Africa cases were not only about South Africa’s retention of South West Africa or its apartheid policies; they were also about the way South Africa was frustrating the Namibian people’s right of self-determination by fragmenting their territory into self-governing homelands without the consent of the representatives of South West Africa.
The UK avoids the comparison with South West Africa
In its written comments on the Chagos Advisory Opinion, the UK argued that UN General Assembly and Security Council resolutions on South West Africa were not relevant to the proceedings concerning the Chagos Archipelago, because the UK had ‘uncontested sovereignty’ over the territory (written comments of the UK p. 76, para. 4.43 a.). In the UK’s view, before Mauritius became independent the applicable law was ‘British constitutional law’ (written statement of the UK p. 124, para. 8.16).
The distinction in law between the status of South West Africa and the status of the Chagos Archipelago is not so stark when we bear in mind that South Africa also claimed that it had sovereignty over South West Africa; that the applicable law was South African constitutional law, and that Article 22 of the Covenant of the League of Nations allowed South West Africa to be administered under the laws of South Africa ‘as integral portions of its territory’.
Moreover, Chapter XI of the UN Charter contains principles that are striking in their similarity to those found in Article 22 of the Covenant – as Judges Sir Percy Spender and Sir Gerald Fitzmaurice observed in their joint dissenting opinion in the first phase of the South West Africa Cases (p. 541). In contrast to South Africa, which refused to place South West Africa under the UN’s trusteeship system, the UK listed Mauritius, which then included the Chagos Archipelago, as a non-self-governing territory in 1946 (UNGA Res 66(I) 14 December 1946).
In so doing, the UK explicitly recognised that the UN Charter regime in Chapter XI applied to the territory and that the interests of the inhabitants of these territories were ‘paramount’. The UK also accepted ‘as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories’. Accordingly, Chapter XI created a mixed system of law where British constitutional law applied alongside public international law.
On 14 December 1960, five years before the detachment of the Chagos islands from Mauritius, self-determination was defined in paragraph 5 of the Colonial Declaration as being directly applicable to non-self-governing territories. As the ICJ concluded in Namibia: ‘the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them’ (p. 31, para. 52).
What is partition?
A key point in the pleadings was whether the application of self-determination as defined in paragraph 6 of the Colonial Declaration prohibited the partition of the islands in 1965.
It might be helpful, in this connection, to distinguish partition from agreed boundary changes. This is because there was some confusion in the pleadings, with the UK arguing that boundary changes were a common feature of colonial policy, referencing the separation of the Cayman Islands and the Turks and Caicos Islands (TCI) from Jamaica in 1962, following the dissolution of the Federation of the West Indies, as an example of why the separation of the Chagos Archipelago was not contrary to international law (UK written statement p. 138, para. 8.57). Mauritius countered by pointing out that these islands had only become separated from Jamaica following a referendum (Mauritius written comments p. 106, para. 3.63). In Mauritius’ view, these examples were not relevant because consent had been freely given in the most public way possible – via a referendum. As explained below, Mauritius’ argument is that its consent to the detachment of the islands was not freely given.
I agree with Mauritius that the separation of the Cayman Islands and the TCI could not be described as partitions because they were consensual. In contrast, in the South West Africa Cases, the word partition was used by the Applicants to describe South Africa’s policy of ‘territorial apartheid’, which they claimed was non-consensual (SW Africa, pleadings, Volume IV, pp. 318-326). The policy was predetermined: South Africa, pursuant to the policy enshrined in the Odendaal report, was going to divide the territory no matter what. The peoples of South West Africa were not given a free choice.
This was also the predicament that faced Mauritian leaders in the lead up to independence. As Mauritius claimed: ‘if they withheld their “consent” to the excision then independence would be lost as well. There was no option of independence for the full territory’ (Mauritius written statement p. 246, para. 6.103).
In the twentieth century, partitions were rare and distinct from the vast majority of negotiated boundaries because they were the product of deeply contested negotiations where the negotiators were not presented with a free choice: the boundary was drawn and the only ‘choice’ was to accept it. In the British context, partitions have been imposed in situations where a majority of the population of the colonial unit opposed the division. Significantly, no referendums were ever held in Ireland, India, Palestine, or Cyprus, because the British Government knew that it could not be assured of public support. The separation of the Gilbert and Ellice islands in 1975 that was mentioned in the proceedings (see e.g. written statement of Mauritius, p. 247, footnote 739) was not a partition because it was consensual; the result of a referendum.
Only temporary partitions are lawful
It would be going too far to suggest that partitions are always unlawful where a plurality of the population oppose it. Accordingly, it may be possible to enforce a temporary partition in a situation of armed conflict that risks rupturing international peace and security. So, for example, the Security Council could, acting under Chapter VII of the Charter, demand a temporary partition in a situation of armed conflict, and take measures to enforce it. However, as Judge Fitzmaurice argued in his Dissenting Opinion in Namibia, even if the Security Council, after making the necessary determinations under Article 39 of the Charter, ordered the occupation of a country or piece of territory in order to restore peace and security, ‘it could not thereby, or as part of that operation, abrogate or alter territorial rights’ (p. 294, para. 115). This would await the peace settlement.
The UN General Assembly also possesses the power to make recommendations but only with the consent of administering powers in respect of Mandate or Trust Territories, which could include recommending partition, given the powers accorded the General Assembly by the UN Charter (see e.g. Arts.16 and 85 of the Charter).
However, the separation of the Chagos archipelago in 1965 (which the UK argues is ‘temporary’) was not approved by the Security Council or the General Assembly. On the contrary, on 16 December 1965, the General Assembly passed resolution 2066 (XX) that referenced paragraph 6 of the Colonial Declaration and called on the UK to take effective measures to implement that Declaration and ‘to take no action which would dismember the Territory of Mauritius and violate its territorial integrity’ (para. 4).
Moreover, Mauritius contests the UK’s argument that its consent was freely given.
When consent has been vitiated
One of the most challenging aspects of partition is proving that its representatives’ consent was vitiated due to duress. In nearly all cases of partition duress, coercion, and even fraud has been alleged by one of the parties. In other words, their consent to the loss of territory was not freely given.
In Ireland, it was argued that the threat of force was employed during the negotiation of the Anglo-Irish Treaty in 1921 to ensure the Irish delegation accepted the option of dominion status against that of a republic (A. Carty, Was Ireland Conquered, 1996, p. 84). It was also alleged that the delegation’s consent to the partition was brought about by deceit because of assurances given to them that primary importance would be given by a Boundary Commission to the ‘wishes of the inhabitants’ in the redrawing of the boundary between Northern Ireland and the Irish Free State when, in fact, the UK never had any intention of interfering with the integrity of the six counties (A. Carty, Was Ireland Conquered, 1996, pp. 135-140).
In British India, it was argued that Mountbatten held a ‘metaphorical gun’ to Mohammad Ali Jinnah’s head when he ‘consented’ to a ‘moth-eaten Pakistan’ that he had spent his whole career opposing. Mountbatten even admitted that he ‘drove the old man quite mad’ by insisting that the logic of partition, if applied to India, must equally apply to the provinces of the Punjab and Bengal (quoted in M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47). Nehru agreed with Sardar Patel that ‘it might be possible to frighten Mr. Jinnah into cooperation because of the shortness of time available before partition must be completed’ (M. Zafrulla Khan, The Agony of Pakistan, 1974, p. 47).
In Palestine, Pitman B Potter observed in the American Journal of International Law that the US ‘came close to exercising undue influence to get the partition plan adopted’ (editorial comment, 42(4) AJIL (1948), p. 861) by exerting all kinds of pressure on African and Asian countries to vote for the Plan of Partition with Economic Union at the UN General Assembly when a majority of the population of the British Mandate of Palestine opposed partition.
In the UNCLOS arbitration, Judges Kateka and Wolfrum argued that Mauritius was given no choice about the excision, and that the discussion between Prime Minister Wilson and Premier Sir Ramgoolam that the latter could return home without independence if he did not accept the excision, amounted to ‘duress’ (Dissenting and Concurring Opinion, 18 March, 2015, paras 76-77).
Mauritius argues that its consent was not freely given
The UK claims that duress is a municipal law concept in the law of contract that is distinct from coercion in international law. In the UK’s view, its conduct during the negotiations with Mauritius did not ‘come anywhere close to meeting the standard of duress under the law at the time’ (UK written statement p. 124, para 8.16, citing Treitel, The Law of Contract, 1966, p. 286). The UK also argues that coercion, even if this could be shown, would only apply against a government official in their private capacity and not against the state (UK written statement p. 125, para. 8.17 a.).
In its written comments, Mauritius advanced an alternative argument beyond coercion and duress – one that was not available to Irish, Muslim League, or Palestinian Arab officials in the 1920s and 1940s – that the ‘consent’ purportedly given by Mauritian Ministers did not meet the requirements of the law of self-determination. This was because ‘Keeping Mauritius intact was not an option that was ever presented, either to the Mauritian Minister or to the Mauritian people directly’ (Mauritius written comments, p. 123, para. 3.92).
The UK abandoned partition after 1960
As the right of self-determination emerged in customary international law in the 1960s as expressed in Article 2 of the Colonial Declaration, which provided that ‘all peoples’ have the right to ‘freely determine their political status and freely pursue their economic, social and cultural development’, partition fell into abeyance. Given that partition amounts to the non-consensual division of territory, it would be difficult to justify partition by appealing to international law when it was contrary to a peoples’ ‘freely expressed will and desire’.
Significantly, in 1956, the UK considered a partition plan for Cyprus which it announced to Parliament (HC Deb 19 December 1956 vol. 562 at col. 1268). But when Britain realised that its plan had no support from the majority Greek Cypriot population, and little support at the UN General Assembly, it abandoned the plan. Instead, the UK concluded the Treaty of Guarantee (16 August 1960) with Cyprus, Greece, and Turkey. According to Article II of that treaty, they undertook to prohibit ‘any activity aimed at promoting, directly or indirectly, either union of Cyprus with any other State or partition of the Island’ (emphasis added).
In other words, the UK realised in the early 1960s that the winds of change were blowing and that partition was no longer accepted as a lawful form of decolonization by a majority of UN members. This might explain why the French Government also abandoned a plan to partition Algeria after studying its feasibility. Apparently, the Quai d’Orsay considered partition ‘excessively Anglo-Saxon’ (Asseraf, French Historical Studies, Vol 41 (1), 2018, p. 106.)
Perhaps recognizing that this was a weak point of its argument, the UK claimed in its written comment that it ‘did not set out a plan for partition’ for Cyprus (para. 4.34, p. 70). But this is belied by the evidence: a debate on the partition of Cyprus in Parliament and half a dozen ‘top-secret’ partition proposals (with maps) in the UK National Archives.
Neither the UN Security Council nor the General Assembly approved of any partitions after 1960. In fact, as soon as the General Assembly became aware of South Africa’s plan to partition South West Africa and British plans to partition the Chagos Archipelago it passed resolutions describing their divisions as contrary to paragraph 6 of the Colonial Declaration.
Self-determination is about the ability to make free choices
Due to the peculiar circumstances of the South West Africa Cases, the international community was denied an answer to the claim advanced by the Applicants in the second phase of those cases that partition was contrary to international law because it was predetermined (i.e. non-consensual) and because it violated the well-being and social progress of the inhabitants of the territory. The only difference this time around is that the question concerns the division of a non-self-governing territory, where the principle of self-determination – as defined in the Colonial Declaration – had become directly applicable to the territory by virtue of paragraph 5 of that declaration.
Moreover, paragraph 6 of the Colonial Declaration, must be read with the other paragraphs of the Declaration. This makes it clear that self-determination is about the ability of a people to make free choices and to freely determine their economic, social, and cultural development including their right to complete independence. Accordingly, should the peoples of a non-self-governing territory freely consent to the division of their territory through their elected representatives or in a referendum this would not be unlawful. Since this is precisely what is contested between Mauritius and the UK, it will be for the ICJ to make an assessment of the legality of the detachment in light of the facts that have been presented to it.
What is clear is that the UK gave up any pretence of being able to make an effective legal argument that would justify the partition of its remaining colonies after 1960. This might explain why it detached the Chagos islands surreptitiously by an Order in Council under the Royal Prerogative far removed from the prying eyes of the United Nations in New York.