The Process of Decolonization of Mauritius and the Right to External Self-Determination of Colonial Peoples

Öz

The right to self-determination is a collective right and one of the most significant human rights. In accordance with the right to self-determination, peoples can choose their destiny in terms of political, economic, or cultural development without any external interference. However, the scope and content of the right to self-determination have remained controversial since the emergence of this right. In particular, the legal nature of the right to self-determination has been argued; while some posit that it is a legal norm, others hold that it is merely a political status in the international arena that came to light throughout the decolonization process during 1960s and still is nowadays. In spite of the codifications of the United Nations (UN), this matter is still discussed in the international arena. Relatedly, this dispute has more recently affected the process of decolonization of Mauritius. In this case, the Chagos Archipelago was separated from Mauritius by the British Government while Mauritius was in the process of gaining its independence based on the right to self-determination. This research would first like to focus on the scope and content of the right to external self-determination of colonial peoples according to the UN resolutions and scholars’ opinions as well as states’ practices. Second, this paper will examine the legality of the process of decolonization of Mauritius in light of the International Court of Justice’s (ICJ) advisory opinions and scholarly work.

Anahtar Kelimeler

• The Chagos Archipelago
• Mauritius
• The Right to External Self-Determination
• Colonial Peoples
• Decolonization

Kaynakça

1. Alexandra C and Koutouki K ‘No Way Home for Chagossians: Law and Power Politics’ [2018] International Journal on Minority and Group Rights 25, 396
2. Bancoult et al. v McNamara et al. (2006) USCADC https://caselaw.findlaw.com/us-dc-circuit/1011896.html last accessed on 16.07.2019 Boycot O ‘Chagos Islanders cannot Return Home, UK Foreign Office Confirms’ [16 November 2016] The Guardian https://www.theguardian.com/world/2016/nov/16/chagos-islanders-cannot-return-home-uk-foreign-office-confirms last accessed on 15.07.2019
3. Casese A, Self-Determination of Peoples 1st edn (Cambridge University Press 1995)
4. Cavandoli S ‘The Unresolved Dilemma of Self-determination: Crimea, Donetsk and Luhansk’ [2016] The International Journal of Human Rights Vol. 20, No. 7, 875
5. Chagos Archipelagos Map, https://www.google.co.uk/maps/ last accessed on 01.08.2019
6. Chagos Islanders v Attorney General and Her Majesty’s British Indian Ocean Territory Commissioner (2003) (HCJL) https://www.uniset.ca/naty/2003EWHC2222.htm last accessed on 16.07.2019
7. Chagos Islanders v Attorney General and Her Majesty’s British Indian Ocean Territory Commissioner (2004) AC https://swarb.co.uk/chagos-islanders-v-the-attorney-general-her-majestys-british-indian-ocean-territory-commissioner-qbd-9-oct-2003/ last accessed on 16.07.2019
8. Chagos Islanders v UK [2012) ECHR https://hudoc.echr.coe.int/eng?i=001-115714 last accessed on 16.07.2019 Declaration on Principles of International Law Concerning Friendly Relations and Cooperating Among States in accordance with the Charter of the United Nations, UNGA Resolution 2625(XXV), 1970

9. Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Resolution 1514(XV), 1960
10. Eggett C and Thin S ‘Clarification and Conflation: Obligations Erga Omnes in Chagos Opinion’ (2019) Ejil Talk! https://www.ejiltalk.org/clarification-and-conflation-obligations-erga-omnes-in-the-chagos-opinion/#more-17212 last accessed on 16.7.2019
11. ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, ICJ Report (1971)
12. ICJ, Legal Consequences of the Construction of a Wall in the Occupies Palestinian Territory (Request for Advisory Opinion) Summary of the Advisory Opinion of 9 July 2004, http://www.icj-cij.org/docket/files/131/1677.pdf last accessed on 16.07.2019
13. ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, ICJ Report (2019)
14. ICJ, West Sahara, Advisory Opinion of 16 October 1975, ICJ Report (1975)
15. Jeffy L, Chagos Islanders in Mauritius and UK: Forced Displacement and Onward Migration (Manchester University Press, 2011)
16. Katangese Peoples’ Congress v Zaire, ACHPR/RPT/ 8th Annex VI (1995)
17. Kattan V ‘Self-determination during the Cold War: UN General Assembly Resolution 1514(1960), the Prohibition of Partition, and the Establishment of the British Indian Ocean Territory (1965)’ [2016] Koninklijke Brill NV, Leiden, 419
18. Kattan V ‘The Partition of the Chagos Archipelago and the Haunting Spectre of the South West Africa Cases’ (2018) EJIL: Talk! https://www.ejiltalk.org/part-i-the-partition-of-the-chagos-archipelago-and-the-haunting-spectre-of-the-south-west-africa-cases/#more-16494 last accessed on 16.07.2019
19. Mauritius and Chagos Archipelagos Location in Indian Ocean, https://www.bbc.com/news/uk-47358602 last accessed on 01.08.2019
20. Mauritius Map, https://www.google.co.uk/maps/ last accessed on 01.08.2019
21. Mauritius v UK [2015] PCA https://pca-cpa.org/en/cases/11/ last accessed on 16.07.2019
22. McVay K ‘Self-determination in New Contexts: The Self-determination of Refugees and Forced Migrants in International Law’ [2012] Vol.28/Issued 75 Merkourious Utrecht Journal of International and European Law, 36
23. Musgrave T.D, Self-Determination and National Minorities 1st edn (Oxford University Press 1997)
24. OHCHR, Consideration of Reports submitted by States parties under Article 40 of Covenant, (UN, DOC A/63/40), 2008
25. Question of Mauritius Resolution 2066(XX), 1965
26. Request for an advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965, UNGA Resolution 71/292, 2017
27. Scott R, Limuria: The Lesser Dependencies of Mauritius (Westport, CT: Greenwood Press, 1976)
28. Smith R.K.M, International Human Rights 6th edn (Oxford University Press 2014) 337
29. Supporting Efforts to End Obstetric Fistula, UNGA Resolution A/RES/65/118,
30. The Final Act of the Conference on Security and Cooperation in Europe in Helsinki, 1975
31. The International Covenant on Civil and Political Rights, 1966
32. The International Covenant on Economic, Social and Cultural Rights, 1966
33. The UK Government, ‘UK: Statement by Ambassador Matthew Rycroft, Permanent Representative to the UN, at the GA Meeting to Discuss Request for Advisory Opinion of the ICJ on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’ [2017] Asia News Monitor, Bangkok
34. Van Rijn AB ‘Dimensions under International Law Linked to the Dissolution of the Netherlands Antilles’ [2009] Vol. XL Netherlands Yearbook of International Law, 75
35. Vine D, Philip H and Sokolowski S.W ‘Compensating a People for the Loss of Their Homeland: Diego Garcia, the Chagossians, and Human Rights Standards Damages Models’ [2012)] Northwesten Journal of International Human Rights, 152
36. Yee S ‘The Upcoming Separation of the Chagos Archipelago Advisory Opinion: Between the Court’s Participation in the UN’s Work on Decolonization and the Consent Principle in International Dispute Settlement’ [2018] Oxford University Press, 623