Patrick Robinson | Independence is a right, not a grant – Part I

In 2019, the International Court of Justice (ICJ) delivered an Advisory Opinion in relation to the actions of a colonial power in a colony, three years before it became independent. In doing so, it interpreted what is one of the most consequential UN resolutions, implicating, as it does, the right of colonial peoples to self-determination and independence.

THE CHAGOS CASE

Mauritius was a colony of the UK which had as part of its territory the Chagos Archipelago. In 1965, the UK detached the Archipelago from Mauritius to allow the United States to establish a military base. For that purpose, it removed the residents of the Archipelago, almost all of whom were the descendants of enslaved Africans brought more than a century before to work on the plantations of the islands.

In 2017, the UN General Assembly asked the ICJ to determine whether, inter alia, the process of decolonisation was lawfully completed when Mauritius was granted independence in 1968.

In its 2019 Opinion, the ICJ stressed that the free and genuine expression of the will of the peoples of Mauritius was required for the exercise of the right to self-determination. That will was ascertained, when necessary, through a plebiscite or other democratic means, including calls for independence by legislatures and political leaders.

The ICJ found that the detachment of the Archipelago, which was agreed to by the Mauritian Council of Ministers, did not reflect the free and genuine expression of the will of the peoples of Mauritius. The Court explained that it was the UK Government, not the people, who had real power in Mauritius. Consequently, the process of decolonisation was not lawfully completed when Mauritius became independent in 1968.

RESOLUTION 1514

On December 14,1960, the UN General Assembly adopted Resolution 1514, “Declaration on the Granting of Independence to Colonial Countries and Peoples”. It has been described as ‘the Magna Carta of Colonial Peoples’. I simply call it ‘1514’.

Paragraph 2 of the Resolution reads: “All peoples have the right to self- determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” This is a categoric statement, declaratory of an existing right that all peoples have by virtue of their humanity.

1514 was adopted by 89 votes in favour, none against and nine abstentions. In Chagos, the ICJ found that the right to self-determination was a norm of customary international law, that is, a general practice of states accompanied by the belief that there is a legal obligation to conform with it and which is binding on all States. It may be concluded that the right to self-determination became a rule of customary international law on the Resolution’s adoption in 1960.

1514, and its interpretation by the ICJ, strongly signal that it was colonised peoples themselves, and not the colonisers, who determined their independence and its form; for example, whether it should be based on a republican system of government or a UK parliamentary system.

Obstructionist conduct by the colonial powers to the independence of colonial peoples would be an internationally wrongful act, in breach of paragraph 5 of 1514, which requires that immediate steps be taken to transfer all powers to colonial peoples in accordance with the freely expressed will of those peoples “in order to enable them to enjoy complete independence and freedom”.

INDEPENDENCE WAS NOT GRANTED

In light of the transformational development that occurred on the adoption of 1514 – the crystallisation of the right to self-determination as a rule of customary international law – it is a misstatement of the law to assert that the colonial powers granted their former colonies independence. After that development, independence was not theirs to give, grant or concede. It cannot be maintained that you have been granted or given something to which you have a legal right and which the supposed grantor or giver is under a legal obligation to give, grant or concede.

I note that the title of 1514 speaks of the “Granting of Independence to Colonial Countries and Peoples”. But nowhere in the text of 1514 is the term “grant of independence” used. The title may be relevant for the purpose of interpreting 1514, but it cannot dictate an interpretation that finds no support in the text of the Resolution.

The text, object and purpose of 1514 are clear. 1514 follows this scheme. First, it affirms the inherent power that all colonial peoples have, by virtue of their humanity, to advance to independence on the basis of their freely expressed will.

Second, once the freely expressed will of colonial peoples favours independence, the coloniser must immediately take steps to transfer all powers to them. Notably, this paragraph does not leave the coloniser with a discretionary power to take those steps; rather it imposes an obligation on the coloniser to take those steps.

Regrettably, the language of pre-independence constitutional discussions encouraged the notion of independence as a concession or grant from the coloniser, which is incompatible with this scheme. Professor Trevor Munroe’s book, The Politics of Constitutional Decolonization, makes reference to a Jamaican organisation which recommended to the drafting parliamentary committee that “the British Government should be required to concede independence to a new Jamaican Parliament….” But as we have seen, Jamaica’s independence was not the UK’s to concede.

We fundamentally misspeak when we say Jamaica was granted independence in 1962. Jamaica became independent in 1962. Following the crystallisation of the right to self-determination as a customary norm, neither the independence of Jamaica nor that of any colony was the UK’s to give, grant or concede. 1514 wrested the attainment of independence from the hands of the colonisers and placed it firmly in the grasp of colonised peoples themselves.

In Part 2, I will discuss the right of colonial peoples to freely determine their political status.

Judge Patrick Robinson is a former Jamaican member of the International Court of Justice (ICJ) where he served from 2015 to February 2024. This two part series is based on his lectures at UC Berkeley School of Law in September and Sir Eli Lauterpacht Lecture at Cambridge University in October. Send feedback to columns@gleanerjm.com