FREEDOM … AFRICA FREE OF DECOLONIZATION … that was the dream of our founding fathers from Nyerere, Nasser, Nkrumah, Haile Selassie, to Lumumba, and many others. The call for freedom laid the basis for the African unity, so it came as no surprise that we, at the African Union, had the support of an entire continent, with its fifty-five member states, to defend the Mauritian Cause to free Chagos.
If we take a quick look into history, the French historian, Albert Memmi, in his book The Colonizer and the Colonized wrote:
[T]he colonized means little to the colonizer[,] …what's left of the colonized at the end of this stubborn effort to dehumanize him, he is surely no longer an alter ego of the colonizer. He is hardly a human being. He tends rapidly toward becoming an object. As an end, the colonizer's supreme ambition, he, (meaning the colonized) should only exist as a function of the needs of the colonizer.Footnote 1
Chagos was no different.
In the eighteenth century, France occupied the Archipelago and administered it as a dependency of Ile-de-France. Then in 1814, by the Treaty of Paris, Ile de France and all its dependencies, including the Chagos Islands, were surrendered to the United Kingdom. The latter separated the Archipelago in 1965 from Mauritius prior to giving her independence in 1968.Footnote 2 Since then, every word Memmi said about the existence of the colonized to serve a function to the colonizer came to life, when in 1966 the United Kingdom rented Diego Garcia, the largest island of the Chagos Archipelago, to the United States to be used for defense purposes for an initial period of fifty years.Footnote 3 Since that time, the United Kingdom argued that Chagos would be returned to Mauritius once it is no longer required for military purposes. Moreover, all the calls by Mauritius to regain her sovereignty over the Archipelago were ignored.Footnote 4
Such disregard for the rights of the decolonized, which no longer accepts being a function to the colonizer, paved the way for several resolutions by the African Union Summits. The resolutions requested that the United Kingdom free Chagos and consequently requested an Advisory Opinion from the International Court of Justice, through the United Nations General Assembly, to provide us with legal guidance on whether the decolonization of Mauritius was lawfully completed and on the legal consequences to the continued administration by the United Kingdom of the Archipelago.Footnote 5
Hence, it was imperative that the African Union, which led the process to that stage, make a contribution. At the time, I had just assumed the responsibility as a Legal Counsel, and that was huge for a newcomer. Yet, I decided to go for it and assembled a team of African lawyers with prior experience in International Court of Justice cases, namely: the Senegalese Professor, Makane Mbengue of the University of Geneva; and the Egyptian Dr. Mohamed Goma of the Hashem law firm.
Our first meeting took place in Mauritius where we met with their legal team and through which we all agreed that we would benefit from an extension. We were in dire need of the extra month to prepare for our submission. We, as the African Union, had submitted the request to the International Court of Justice less than two weeks before the deadline and we were granted the extension.
My team and I worked relentlessly until we finalized our first written statement just in time for delivery to the Court Registrar. Our main focus was on how to present to the Court enough arguments for it to exercise its jurisdiction and to prove that there is a link between the two questions put forward to it by the General Assembly. The bilateral dispute argument kept looming in the horizon. We needed to focus on the legal issues, and we found no harm in stating, YES, there is a bilateral dispute, but that is not what we are here for. We wanted to deal with the question of law. Based on this, the Court should exercise its jurisdiction.
Now, moving to the substance and how colonialism has impact on international law through the last advisory opinion, I shall touch upon a few of the legal concepts that emerged during the Chagos proceedings that may have direct impact on similar cases around the world. I will start with the concept of self-determination, which was first expressed in the nineteenth century as a cardinal principle in modern international law and regarded as jus cogens. It has erga omnes character, which means that the right to self-determination entails a corresponding duty on the part of all states and international organizations to enforce it. In its Advisory Opinion on Chagos, the Court recalled that “respect for the principles of equal rights and self-determination of peoples is one of the purposes of the United Nations.”Footnote 6
Yet, before reaching the jus cogens level, we needed to prove that the right to self-determination was part of customary international law at the time of the separation. That was a worry for us. We needed to prove that UN General Assembly Resolution 1514 of 1960 was declaratory to a preemptory norm by which the principle of self-determination of colonial peoples and territories was articulated as an enforceable legal right, and subsequently the Court has confirmed that in its opinion.Footnote 7 This was a critical point in our pleadings.
Moreover, we, as representatives of an international organization, needed to prove our link and interest in the case. We delved into using our OAU/AU resolutions and decisions to show that the concept of “the practice of the concerned states” is applicable to us. Based on the North Sea Continental Shelf case of 1969, we affirmed that in the Chagos proceedings, the African states and then those other states that have been victims of colonialism, especially members of the Non-Aligned Movement, are the most concerned in this case, not only, by the continuous call for the United Kingdom to surrender the sovereignty of the Chagos to Mauritius, but also, the right of the Chagossians who were forcibly removed to return to their homeland. This is another legal obligation on the colonizers that was confirmed by the Court.
In this Opinion, state practice together with opinio juris, played an effective role in the application of international law. This was evident in proving that the right to self-determination was part of customary international law in the body of the Advisory Opinion and in the dissenting opinion of Judge Donoghue, when she emphasized that “[t]he General Assembly, which made the request, has played a significant role in shaping the law relevant to self-determination. Its resolutions during the 1960s addressed decolonization, both generally and with particular reference to Mauritius.”Footnote 8
Ladies and gentlemen, for now, it is premature to judge on how this Advisory Opinion will play a role to settle the question of Chagos or any similar case. Nevertheless, what we can be sure of, is the body of law that has been addressed by the Court, especially the right to self-determination and the right to return, will be depended on heavily in any negotiations to find a lasting solution to the Mauritian case.
The recognition by the highest court in the international law field that these are enforceable rights is there to stay, and we believe it will have an impact way beyond Chagos. Moreover, what we also know, for now, is that the International Court of Justice has identified means to implement its Opinion through the United Nations and through calling upon all states to respect and implement the law through concrete steps mentioned in the Opinion.
At the end, we, at the African Union, believe that international law has been on our side in the call for decolonization and self-determination. The Advisory Opinion on Chagos is a mere reflection of this. From Namibia to Chagos, the African Union has a conviction that the impact of international law to provide for lasting solutions to our problems is strong and present today, in Chagos, as it was decades ago in Namibia.
