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International Court of Justice to hand down Chagos Archipelago Advisory Opinion

On Monday 25 February 2019 at 3pm (CET – The Hague), the International Court of Justice (ICJ) will hand down its Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.

Vanuatu made history by appearing before the ICJ in this case for the first time since its independence in 1980. Jennifer Robinson acted for Vanuatu with Professor Robert McCorquodale of Brick Court Chambers, instructed by Nicola Peart at Three Crowns LLP. Ms Robinson was the youngest woman to address the Court.

The issue at stake in this case is whether the actions of the United Kingdom government in its division of the one colony of Mauritius and the Chagos Archipelago was a lawful exercise. The UK divided this colonial territory in 1965 in order to lease the main island of the Chagos Archipelago - Diego Garcia - to the United States for defence purposes. The US built a military base on Diego Garcia, which is of key strategic interest for the UK and the US. As a consequence of this lease, which has been repeatedly renewed, the UK forcibly removed all the inhabitants of all of the islands of the Chagos Archipelago from their homes and sent them to Mauritius and other locations. They have never been allowed to return. The ICJ was asked by the United Nations General Assembly whether these actions were lawful under a rule of customary international law, which is legally binding on all States (as distinct from a treaty which only binds the parties to it).

Vanuatu voted in favour of the resolution at the UN General Assembly for the matter to be referred to the ICJ. Prime Minister of Mauritius, Pravind Kumar Jugnauth, wrote to Prime Minister of Vanuatu Charlot Salwai requesting Vanuatu to make oral submissions in the ICJ case to support Mauritius.

The ICJ has three issues to decide. First, whether it would accept the request by the General Assembly to give an Advisory Opinion. Second, whether there was customary international law with regard to the right to self-determination by 1965. Third, if there was customary international law at that time and the actions of the UK were unlawful, what legal consequences flow from this.

Vanuatu appeared to support the position of Mauritius and the African Union because the facts in this case raised broader issues about the right to self-determination affecting many other States around the world, including in the Asia-Pacific region. Vanuatu has long taken a principled position on the right to self-determination, including with respect of East Timor and West Papua, consistent with the word of Father Walter Lini, the first Prime Minister of an independent Vanuatu:

 “[The] Pacific is one of the last regions of the world where the heavy hand of colonialism continues to be played. […] These remnants of the past must be lifted from our ocean, for, in all truth, and as I have remarked before, until all of us are free, none of us are.”

After the hearings in September 2018, Foreign Minister of Vanuatu, Ralph Regenvanu, said Mauritius was “thrilled” with Vanuatu’s submissions and reported that Prime Minister of Mauritius Jugnauth – who was in Court observing the proceedings and personally congratulated the Vanuatu delegation – called Vanuatu’s oral intervention “one of the best of the week”.

Minister Regenvanu said, “We are anticipating that the Opinion will establish favorable legal principles that will assist Vanuatu in our negotiations with France over Matthew and Hunter Islands and also in our advocacy for the decolonization of West Papua”.

The Opinion will be handed down at 3pm (The Hague) and will be streamed live on UN Web TV.

Vanuatu’s oral submissions are available here.