The sun may have set on the British Empire, but its shadow lingers over modern Britain’s foreign policy. Britain retains fourteen minor overseas territories worldwide, though its global ambitions lie beyond these vestiges of its empire. Today, the United Kingdom is a nation on the move—it is just not yet sure where. Its people resolved in a 2016 referendum to reverse European integration, rekindle economic ties with the Commonwealth, and strengthen the “Special Relationship” with the United States. Yet, as Britain attempts to reassert its national sovereignty, it is haunted by the specter of its imperialist past and the constraints imposed by international institutions it helped strengthen.
These conflicting impulses of Britain’s trajectory are clearly displayed in the Indian Ocean, on a small set of islands called the Chagos Archipelago. There, Britain’s relationship with Europe, the Commonwealth, and the United States all come into conflict in the international legal case over its disputed sovereignty over these islands. In his legal analysis, Stephen Minas, a British transnational law expert, explains the theory and implications of the recent International Court of Justice (ICJ) ruling over Britain’s sovereignty for British and international law. Minas persuasively articulates the new politics and sources of international law that led the Court to rule against the United Kingdom and hold that the Chagos Islands have not been properly decolonized.
As Minas explains, the root of the Chagos dispute centers around the legacy of a decision Britain made in the final months of its colonial administration of Mauritius: it severed the Chagos Islands from the wider territory of which they had once been part. Britain intended to clear the island of indigenous inhabitants to provide a base for US forces—a base that remains important in the War on Terror. Although Mauritius consented on numerous occasions to this arrangement in exchange for fishing rights and a guarantee that the territory would be returned once it was no longer needed for defense purposes, Minas provides primary source evidence that this decision was made from an unequal bargaining position:
The message was delivered following advice to the British prime minister from his private secretary that ‘[t]he object is to frighten [the Mauritian premier] with hope: hope that he might get independence; Fright lest he might not unless he is sensible about the detachment of the Chagos Archipelago’ (Minas 124-125)
Still, this arrangement endured until Mauritius brought renewed claims of sovereignty. After arbitration under the Convention on the Laws of the Sea, the UN General Assembly sought an advisory opinion from the ICJ concerning whether the decolonization of Mauritius was lawfully completed when the Chagos Islands were separated, as well as the consequences of that finding.
The ICJ adopted new sources of “soft law” to find that the sovereignty dispute was an issue of decolonization subject to UN jurisdiction. “Soft law,” including international agreements and normative principles, is a controversial source for customary law analysis. While its sources are not, in themselves, necessarily legally binding, they can contribute to international legal conclusions. Resolutions of the UN General Assembly were at the root of the ICJ’s analysis of customary international law (which, unlike treaties, is not binding but is formally agreed upon). Based on several UN General Assembly resolutions from the 1960s, the ICJ concluded that the right to self-determination in the decolonization process entailed a right to national territorial integrity. A colonial power, therefore, cannot disrupt this territorial integrity without the consent of the people living in that territory.
This right to territorial integrity became customary international law before Mauritius attained independence in 1968. Consequently, the ICJ found that the detachment of the Chagos violated the Mauritian people’s right to self-determination, making it subject to international decolonization oversight. Mauritius’s 1965 agreement to this arrangement could be voided because of its unequal bargaining power in the decolonization process (132).
Minas heralds the use of these UN resolutions to find international legal duties. He claims that this provides the “potential to implement progressive rules of international law…in an increasingly multipolar world, in which power is no longer concentrated overwhelmingly in the West” (134). In Minas’s view, developing nations can now use their numerical power in the UN General Assembly and this soft law to promote progressive causes through the ICJ.
Minas’s analysis misses four key points. First, because he believes it serves progressive causes, he does not examine the underlying logical tension in the ICJ’s conclusion that territorial integrity is an inherent part of the right to self-determination in the decolonization process. It is not surprising that sovereign states in the UN supported a resolution saying that territorial integrity is necessary for self-determination.
But Minas misses the fundamental question in the decolonization process: self-determination for whom? It is ironic the ICJ would rule that self-determination for colonized peoples requires respecting the borders artificially drawn by colonial powers. And what about the many cases in which these artificial borders prevent self-determination for an ethnic minority? Perhaps they were not in Mauritius, but territorial integrity and self-determination are often in conflict, because who counts in the self-determination process is determined by where the borders are drawn. For instance, voters in Sussex are not voting on independence for Scotland. In this broad ruling, the ICJ fails to show due deference for the ultimate paramount nature of self-determination of the people, not the state. And this was an unnecessary leap to make, for self-determination was facially and disgracefully denied to the evicted Chagos Islanders.
Second, Minas’ incomplete regional history undermines his analysis of the validity of the 1965 agreement between Mauritius and the United Kingdom. Minas and the ICJ insist that a colonized state lacked the bargaining power to reject the detachment of the Chagos Islands. Yet, Minas declines to present the history of neighboring Seychelles, which rebuts this conclusion. Seychelles—an island with a population and economy dwarfed by Mauritius—successfully negotiated the return of its three islands from the British Indian Ocean Territory upon its independence in 1976. Minas’ limited history is an understandable, inherent limitation of analyzing complex international law disputes in brief academic journal articles.
Third, Minas fails to consider the practical implications of this expansive view of the sources of international law. He believes sourcing customary international law in UN General Assembly resolutions empowers the developing world to pursue progressive agendas. Indeed, as the General Assembly’s institutional structure provides each country one vote, it does not reflect the unipolar balance of power, so the support of the United States alone could not compensate for the loss of the support of several European nations. Yet, Minas ignores that international law cannot overcome the reality of the international balance of power. The United States and the United Kingdom appear intent on successfully ignoring the ICJ ruling. Meanwhile, the ICJ appears impotent when faced with international law abuses by major powers, like China or Russia.
Fourth, as a general legal principle that may be applied to issues that are not as morally clear as decolonization, is it democratic for the ICJ to engraft international legal obligations upon states based on UN resolutions they likely did not intend to be legally binding? Indeed, the ICJ did not apply such resolutions as sources of international law until the 1990s. And what of the UN members who joined in the years after resolutions were voted on?
Overall, Minas presents an informative analysis of the legal and political perils Britain faces in the dispute over the Chagos Islands. He persuasively argues that the ICJ’s ruling, and its use of General Assembly Resolutions to find legal obligations, undermines the legitimacy of Britain’s administration of the Chagos Islands and empowers developing nations to pursue progressive international law agendas. Finally, he situates the case within the wider struggle for justice for the Chagos Islanders—the real, human victims in this ongoing legal saga.
This article offers scholars unfamiliar with international law a clear, accessible analysis of the ICJ’s legal ruling and an incisive commentary of its broader implications that should, nevertheless, be read with skepticism. A book-length treatment of the issue, such as Stephen Allen’s The Chagos Islanders and International Law, inherently better provides the historical context that is essential to customary international law issues. Going forward, the implications of this ruling will be measured, in large part, based on whether this advisory opinion leads Britain to change its position on the Chagos Islands. Will it risk the wrath of the Commonwealth by retaining the British Indian Ocean Territory, or the wrath of the United States by giving-up a key base?
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Quentin Levin is an undergraduate at the Georgetown University College of Arts and Sciences.
Stephen Minas, Why the ICJ’s Chagos Archipelago advisory opinion matters for global justice—and for ‘Global Britain,’ Transnational Legal Theory, 2019, pg. 123-136.