Patrick Robinson | Right of colonial peoples to freely determine their political status

I sat as a judge in Chagos, where the International Court of Justice (ICJ) had to determine whether the detachment of the archipelago, agreed to by the Mauritian Council of Ministers, reflected the free and genuine expression of the will of the peoples of Mauritius.

Following Chagos, I have asked myself whether the processes leading to, and the products of, independence from the United Kingdom (UK) in the Caribbean were consistent with the requirement of the customary norm that all peoples have the right to freely determine their political status, that is, to determine their political status free from pressure.

1514, which I discussed in Part I of this article, not only demands that once the freely expressed will of the peoples favours independence, the coloniser must immediately take steps to transfer all powers to the peoples of the particular territory. 1514 also requires that the process and products of the transfer represent the free and genuine expression of the will of the peoples. In other words, 1514 requires that if colonial peoples are to freely determine their political status, the process and the products must also be, in the language of the late Professor Simeon McIntosh, “our own”.

THE PROCESS

The former legal adviser to the United Kingdom Colonial Office, William Dale, boasted that “Whitehall lawyers must have drafted at least thirty-three complete and final independence constitutions during the [decolonisation] period … “. Sir Kenneth Roberts-Wray, a former legal adviser to the secretary of state for foreign affairs, described our constitutions as prepared “more with scissors and paste than with pen and pencil”. There was also significant British Colonial Office involvement behind the scenes in Caribbean constitution-making processes even when there were local drafters. Dr Randolph Hahn tells us that the UK developed a Government White Paper in 1966 with a blueprint for new Caribbean constitutions in which the “obliging constitution-maker needed only to fill in the blanks”.

THE PRODUCTS

The products of independence – our independence constitutions – also cause me pause. They very consistently included UK institutions and UK-like institutions in the governance of new Caribbean nations. Here, I am thinking of the retention of the UK monarch as head of state and the choice of a Westminster-style government in new Caribbean nations. William Dale says it was UK policy for constitutions drafted in Whitehall, London, to “reproduce the features, in detail, of parliamentary democracy as it obtains in Britain”. He suggested that the Whitehall drafters did so because it was the system “they knew” and they “thought it the best”, adding that the representatives in colonies were “similarly motivated”.

The independence constitutions also provide or provided for continued imperial supervision through the appellate jurisdiction of the Judicial Committee of the Privy Council. In the smallest Caribbean states, the new independence constitutions entrenched the jurisdiction of the Privy Council at the highest level, requiring a referendum to remove and replace that jurisdiction with that of another court.

Astonishingly, four of those states – St Lucia, St Vincent and the Grenadines, St Kitts and Nevis, and Dominica – provided in their constitutions for the agreement of the UK Government, their former coloniser, as an alternative to a referendum. This is an arrangement for dependency, not independence. Did these countries freely determine to include these provisions in their constitutions? Dominica and St Lucia effected the constitutional change needed to end appeals to the Privy Council, a prerequisite for accepting the appellate jurisdiction of the Caribbean Court of Justice by obtaining the approval of the UK Government in 2015 and 2023.

UK officials spoke openly about the UK needing to be satisfied about the proposed constitutional arrangements for new Caribbean nations. For example, in 1977, at the Dominica constitutional conference, the UK parliamentary under secretary told the representatives of Dominica that the UK Parliament “will, I think, wish to be satisfied that the proposed Constitution will provide for the protection of fundamental rights … “.

NO ACCEPTABLE BASIS

There is no acceptable basis for the proposition that the UK Parliament had to be so satisfied. This was a mistake on the part of the UK and, perhaps, also on the part of colonial peoples. One explanation for the paternalistic attitude of the UK in these conferences may be the mistaken notion that it was granting independence to its colonies and was, therefore, able to determine the terms of independence.

Without doubt, Caribbean politicians discussed and agreed to aspects of the independence constitutions. The Mauritian Council of Ministers, which was under the control of the British governor, also agreed to the detachment. The Chagos case confirms that the nature and quality of the decision-making matters. It is clear today that independence constitution making and the independence process in the Caribbean were constrained by the decolonisation policies of the UK, including what they deemed to be acceptable constitutional arrangements for the new states.

Let us remind ourselves of the products: Several Caribbean constitutions are Whitehall ones, significantly drafted in London (Jamaica’s is not). The British system of governance was typically deeply entrenched in the independence constitutions. The independence constitutions provided a role for British institutions and supervision, notably the retention of the Privy Council, and in some Organisation of Eastern Caribbean States states, the approval of the UK Government as an alternative for delinking from the Privy Council.

These features raise at least a doubt about whether these constitutional provisions, as the ICJ put it, reflect the free and genuine expression of the will of the peoples of those Caribbean countries, or, put another way, reflect the right of the peoples of those countries to ‘freely determine their political status’.

Caribbean countries could not escape the taint of racism that was at the heart of the colonial experience. Asked to suggest a motto for the failed West Indies Federation, Hilton Poynton, permanent under secretary said, “Ten little nigger boy:’.

Jamaicans must be taught that Jamaica became independent on the back of the wars of liberation waged by their ancestors. These struggles contributed to the maturation of the right to self-determination and independence as a customary rule of international law.

Judge Patrick Robinson is a former Jamaican member of the International Court of Justice where he served from 2015 to February 2024. This is the second article in a two part series 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.