The word ‘ghost’ in the title refers to the quest for self-determination. A principle largely evoked in the age of decolonization. The (re?)awakening refers to the Chagossian quest to seek re-enjoyment of their land. Let us remember that the sovereignty of any state is inviolable and protected by the United Nations Charter Preamble. Legal recognition and political support for self-determination are enshrined in the Declaration on the Granting of Independence to Colonial Countries and Peoples. This Declaration and the General Assembly resolution 1514 (XV) is credited for condemning colonialism and all forms of the subjection of peoples to alien domination and exploitation as a denial of that right and fundamental human rights and to act to promote decolonization.[1]
Until 1965, the United Kingdom controlled the Chagos Islands from the neighbouring colony, Mauritius. Mauritius achieved independence in 1968. Subsequently, what followed was a mass exodus of the population from the Chagos Islands to Mauritius and Seychelles. These forcible, yet completely legal[2], evictions cleared the coast, literally and metaphorically for the British to lease the biggest island, Diego Garcia. They employed it as a military satellite to monitor the Indian Ocean and the Far East. Given the highly important military information available, natives’ entry was barred.[3] All this changed in 2017 when the United Nations General Assembly challenged the British control and claims to sovereignty over the islands in requesting an advisory opinion before the International Court of Justice (ICJ) in The Hague.
In the Advisory Opinion (AO), the ICJ held that “the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible”. Recalling the afore-mentioned resolution in this note and subsequent versions of it, the Court asserted the principle of equal rights and self-determination of peoples as one of the purposes of the United Nations Charter. Moreover, the Court noted that “resolution represents a defining moment in the consolidation of State practice on decolonization” and that “[b]oth State practise and opinio juris at the relevant time confirm the customary law character of the right to the territorial integrity of a non-self-governing territory as a corollary of the right to self-determination”. The Court considered that the peoples of non-self-governing territories are entitled to exercise their right to self-determination about their territory as a whole, the integrity of which must be respected by the administering Power.[4] In India’s Written Statements, Ambassador Venu Rajamony emphasized the principle to uphold the process of decolonization and the respect for the sovereignty of nations. He also stressed that British in-action was the motivation of Mauritius to come before the ICJ through the UNGA.[5]
Immediately proceeding with the AO, the UK’s Foreign Office responded. In their statement, they strongly defied the AO and pointed towards its non-binding nature to espace enforcement or serious consideration. One officer went as far as to suggest that “the (military) defence facilities on British Indian Ocean Territory help to protect people around the world from organized crime and piracy” thus adding weight to its importance at the cost of violating human rights. In scepticism towards the AO, Tom Guha, a spokesperson for the UK Chagos Support Association noted that while “certainly (AO) is a win for Mauritius, it remains to be seen whether or not this is a win for the Chagossian people”.[6]
In London, the High Court ruled that the resettlement was unlawful. The Court permitted prohibition, punishment and removal (including by the use of such force as is reasonable in the circumstances) of ‘unauthorized’ entry and presence in the Territory.[7] Furthermore, on 22 May 2019, the United Nations General Assembly voted to adopt the AO.[8] This was further debated upon in the House of Commons.[9] Most recently in August 2021, stamps issued by the British Indian Ocean Territory were rendered invalid after the United Nations’ Universal Postal Union council recommended so. Referencing to the AO, the UPU council of administration recommended that its 192 member countries “cease the registration, distribution, and forwarding of any postage stamps issued by the territory formerly known as the ‘British Indian Ocean Territory’”.[10]
Given their gradual decline as a hegemon due to its retreat towards an isolationist condition, coupled with their lack of British presence on the ICJ Bench and the unfavourable verdict in the Chagos Case, the British might retreat from international judicial mechanisms as means of voicing concerns for human rights and other issues. The imperial ghost has, time and again, haunted the British whose empire and whatever remains of it, is tainted further due to the AO. On the other hand, slaying the ghost of self-determination has enabled the Chagossians to seek independence. However, all things considered, the resettlement of Chagossians is uncertain. Perhaps most fittingly concluded by Bagchi who notes, while amid legalese and jurisdictional quagmires, the battle for ‘decolonization’ was certainly won, what the AO means for the islanders remains rather obscure and unsettled.[11]
Bibliography
[1] (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), 1981. THE RIGHT TO SELF-DETERMINATION. HISTORICAL AND CURRENT DEVELOPMENT ON THE BASIS OF UNITED NATIONS INSTRUMENTS. New York: United Nations. [2] Bancoult v. Secretary of State [2006] EWHC 1038 (Admin). Para 92: Immigration Order 2004 u.s. 7 and 9. [3] This is borrowed losely from articles, eg. Rrecaj, B.T., 2020. Legal Consequences of The Separation of the Chagos Archipelago from Mauritius in 1965 (ICJ Advisory Opinion, 25 February 2019, General List No. 169). Utrecht Journal of International and European Law, 35(1), pp.50–55. DOI: http://doi.org/10.5334/ujiel.492 [4] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Feb. 25, 2019), https://www.icj-cij.org/files/case-related/169/169-20190225-01-00-EN.pdf. [5] Embassy of India, The Hague, 'Historical Facts Concerning The Chagos Archipelago And Consideration Of The Legal Aspects Associated Therewith Confirm That The Sovereignty Of The Chagos Archipelago Has Been And Continues To Be With Mauritius Declares India' (2018) <https://www.indianembassynetherlands.gov.in/newsImage/1537253717_1398_Legal%20Consequences%20of%20the%20Separation%20of%20the%20Chagos%20Archipelago%20from%20Mauritius%20in%201965%20at%20the%20International%20Court%20of%20Justice.pdf> accessed 27 August 2021. [6] McQue K, 'Chagossians Urge Caution Over UN Legal Win' (New Internationalist, 2019) <https://newint.org/features/2019/02/26/chagossians-urge-caution-over-un-legal-win> accessed 27 August 2021 [7] Bancoult v. Secretary of State. [2006] EWHC 1038 (Admin). Paragraph 117. [8] General Assembly Welcomes International Court of Justice Opinion on Chagos Archipelago, Adopts Text Calling for Mauritius’ Complete Decolonization. GA/12146, 22 MAY 2019, GENERAL ASSEMBLY PLENARY, SEVENTY-THIRD SESSION, 83RD & 84TH MEETINGS (AM & PM). [9] 'Chagos Islands: UN General Assembly Resolution' (House of Commons, UK Parliament 2019). [10] Siddique H, 'UN Champions Mauritian Control Of Chagos Islands By Rejecting UK Stamps' (the Guardian, 2021) <https://www.theguardian.com/world/2021/may/16/un-favours-mauritian-control-over-chagos-islands-by-rejecting-uk-stamps> accessed 27 August 2021 [11] Kanad Bagchi, “Imperialism, international law and the Chagos Islands: Reflections on legal consequences of the separation of the Chagos Archipelago”, Völkerrechtsblog, 1 March 2019, doi: 10.17176/20190301-160728-0.