Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965 (Request for Advisory Opinion)
16th September 2018.
The following is an allegory of a complex bilateral dispute involving the United Kingdom and Mauritius. I have been intensely following the court proceedings. Oral proceedings took place between the 3rd and 6th September 2018 at the International Court of Justice in The Hague, the Netherlands. The Court was presented with two questions at the request of the UN General Assembly. A judgment is due to be given within six months.
This case involves self-determination, decolonisation, sovereignty and territorial integrity.
In order for my dear readers to better understand this case, I wanted to write an allegory. I have spent many nights deliberating how I can write about this case, instead of simply regurgitating what was presented in court. The full court documents can be seen here. Please enjoy.
1. I am a tenant in a house. Inside this house I live in, there is a painting on canvas resembling the work of Basquiat. This painting is not mine, but it lives with me. It is the landlord’s painting, but I look after it. He knows I look after it, because he is busy. He seemingly doesn’t place great importance on this painting (otherwise he would have kept it in his possession). I do not place great importance to this painting either; I still go about my daily life. I leave it to rest in a cupboard, but I still look after its safety.
2. After one hundred years of residence in my house without any serious concerns, I receive a knock on the door from my landlord. I invite him in and make him a cup of tea. While drinking tea, he confesses that he did something bad to acquire the house I live in (he took it by force from another person), and he is fully intending to give me the house soon, because I have been living it.
3. I am a little intimidated by him and unsure how to react (after all he is the owner of the house and has a certain power over me because of it), but I admit I feel quite excited to be able to own a house for free.
4. He put his tea down and asks me about the painting. He knows I still have it. I go upstairs to grab the painting to show him. He offers me £3 million for the painting.
5. I was quite shocked, because I thought he is the owner of the painting. In fact, I know he is the owner of the painting I am certain of it. I am confused, why would the owner pay me for his own painting?
6. I think it has something to do with what he said earlier about the house: maybe he did something bad to get it and is also planning to give me the entire contents of the house, which includes the painting.
7. By offering me money for the painting, it seems the painting is already mine. I don’t want to question it too much as potentially I am going to hit the jackpot: a free house and £3 million in the bank. After all, as my landlord, he does still have power over me so I don’t want to make him mad.
8. My landlord proceeds to explain to me that, just like the house, he is also intending to give me the entire contents of the house. This includes the painting. So he is saying this house and all its contents are going to be mine, if I choose to accept. He further continues to say he wants the painting because he wants to use it, and will give it back to me once he no longer needs to use it.
9. To be honest, as I’ve already said, I’ve never paid too much attention to the painting. Yes I’ve looked after it, but it’s not really hard work to look after a painting.
10. If I say no to his offer of £3 million, I am not sure he will give me the house. I’m not sure if selling the painting and my acquisition of the house are connected. As I deliberate this, he also says I can fish and take advantage of the lake outside the house (as I was renting the house, he never let me fish or take anything from the lake outside the house) if I sell the painting to him.
11. I do not see what the downsides are at all! My landlord is saying that he is soon intending to give me a free house, £3 million for a painting I’m not particularly attached to (and better yet- I will get the painting back once he’s not using it anymore!), and fishing and other rights!!
12. This is surely too good to be true, but this is the offer he is making over a cup of tea! I accept. He is happy, I am happy. I sign the agreement, receive the £3 million and hand over the painting and wave goodbye. He said he will speak to me soon about the house situation.
13. I am ecstatic, £3 million pounds! I buy expensive clothing, lavish food and fancy cars. Those close to me are happy, as I talk to them about what happened to me.
14. Three years later, I hear a knock on the door. I open the door to see my landlord. I invite him in for a cup of tea and he declares that the house and all its contents are now mine. Yes! I got it! We sign the papers and he leaves.
15. I enjoy my house and my money. I don’t really miss the painting, and looking back on the painting deal, I don’t have any regrets. I hear that the landlord altered the painting a bit, and gave the painting to his good American friend to use it, but I don’t really think about it.
16. Twenty years later, I start thinking about the painting. He told me he will give it back to me once he’s finished using it, but by him giving it to his American friend its has complicated that agreement a little bit- what if his friend wants to use it forever? Also, the landlord altered the painting a bit, and that frustrates me too.
17. I start doubting this agreement. Maybe I could have asked for more money for the painting? Maybe I agreed to give him the painting because my judgment was clouded by wanting the free house, which was more important to me?
18. What also annoys me is that I found out this landlord did the same thing to another tenant in a house across the road. That tenant looked after three paintings instead of one, and the landlord purchased all three. The names of these three paintings are Aldabra, Farquhar and Des Roches. After the landlord purchased these paintings from the tenant, he later gave them back to him within twenty years!
19. I feel like I’ve been duped. It’s not fair that the other tenant gets the paintings back and I don’t get mine! I travel to the landlord’s lavish residence and confront him about this. He says that his American friend is still using that Basquiat-esque painting he bought from me, and the agreement was that I will get it back once he has no use for it. He further told me that the paintings Aldabra, Farquhar and Des Roches was given back to the other tenant across the road because he no longer has use for them.
20. I acknowledge that I did sign the agreement. But I’m not going to give up! I speak to my friends, family and a lawyer for advice.
21. The lawyer asks me to look into the signing of the agreement for the painting in exchange for £3 million, was it under duress?
22. I think that’s a good line of argument, so I go with it. When the lawyer presented his case to the landlord, the landlord said “you have not mentioned anything about duress during and immediately after the time, so why, decades later, are you claiming this?” In addition, the landlord emphasised that giving the house and buying the painting are two separate agreements. The landlord said he would have given me the house irrespective of the painting agreement.
23. I admit the landlord has a point, so I ask my friends and family for advice. They help me piece together arguments based on a violation of my rights, and how the entire contents of the house should be mine, which includes the painting.
24. The landlord retorts that it is none of their business. Your friends and family were not involved in the agreement, he said. They do not know the full story between us. It is a dispute only between us. During the agreement, no other people were actively engaged in it.
25. Despite the landlord’s stance that it is none of their business, my friends and family have certain influence, and this case goes to court.
26. Two questions were asked to the court:
Did the landlord lawfully give the tenant the house and its contents, in the knowledge that the landlord bought the painting three years earlier?
What are the consequences of continued ownership of the painting by the landlord, with the knowledge that one day it must be returned to the tenant?
The tenant: Mauritius.
The Basquiat-esque painting: Chagos Archipelago.
Landlord: United Kingdom of Great Britain and Northern Ireland.
American friend of the landlord: The United States of America (who are using the largest island in the Chagos Archipelago, named Diego Garcia, as a US military base.)
The agreement: the 1965 agreement.
The agreement to give the tenant the house: Decolonisation of the British Crown colony of Mauritius to become an independent sovereign state in 1968.
Previous owner of the house: French Republic (the “house” was taken by the British during the Napoleonic wars).
Tenant with three paintings across the road: Seychelles (Seychelles were given independence in 1976 by the British)
Paintings Aldabra, Farquhar and Des Roches: Islands that were part of the British Indian Ocean Territory taken by the British in 1965, now returned to the Seychelles following their independence in 1976.
Friends and family: 20 States (plus the African Union) that participated in the oral proceedings and the United Nations General Assembly (who submitted the advisory opinion to the ICJ).
The actual two questions presented to the Court by the UN General Assembly:
(a) “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?”;
(b) “What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”