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The Chagos Islanders and International Law

By: Stephen Allen
Media of The Chagos Islanders and International Law
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Published: 23-02-2017
Format: Paperback
Edition: 1st
Extent: 336
ISBN: 9781509912988
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP : £25.99
 

: 14 -21 days

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About The Chagos Islanders and International Law

In 1965, the UK excised the Chagos Islands from the colony of Mauritius to create the British Indian Ocean Territory (BIOT) in connection with the founding of a US military facility on the island of Diego Garcia. Consequently, the inhabitants of the Chagos Islands were secretly exiled to Mauritius, where they became chronically impoverished. This book considers the resonance of international law for the Chagos Islanders. It advances the argument that BIOT constitutes a 'Non-Self-Governing Territory' pursuant to the provisions of Chapter XI of the UN Charter and for the wider purposes of international law. In addition, the book explores the extent to which the right of self-determination, indigenous land rights and a range of obligations contained in applicable human rights treaties could support the Chagossian right to return to BIOT. However, the rights of the Chagos Islanders are premised on the assumption that the UK possesses a valid sovereignty claim over BIOT. The evidence suggests that this claim is questionable and it is disputed by Mauritius. Consequently, the Mauritian claim threatens to compromise the entitlements of the Chagos Islanders in respect of BIOT as a matter of international law. This book illustrates the ongoing problems arising from international law's endorsement of the territorial integrity of colonial units for the purpose of decolonisation at the expense of the countervailing claims of colonial self-determination by non-European peoples that inhabited the same colonial unit. The book uses the competing claims to the Chagos Islands to demonstrate the need for a more nuanced approach to the resolution of sovereignty disputes resulting from the legacy of European colonialism.

Table Of Contents


Introduction
I. Background
II. The Chagos Islanders and International Law
1. The Chagossian Litigation in the English Courts
I. Introduction
II. Background
III. UK Public Law
IV. Bancoult 1
V. The Chagos Islanders Case
VI. Withdrawing the Public Law Right of Abode
VII. Bancoult 2: The House of Lords' Judgment 18A. Constitutional Review and Fundamental Rights
B. Rationality
C. Legitimate Expectations
VIII. International Law Perspectives
IX. International Law and National Law 31A. Theoretical Approaches: Dualism and Monism
B. International Law and English Law
C. The Fitzmaurice Compromise
X. Conclusion
2. The Chagos Islanders and the European Convention on Human Rights: Extra-territoriality and the Concept of State Jurisdiction
I. Introduction
II. State Jurisdiction and Article 1 of the European Convention
III. Al-Skeini and the Relationship between Article 1 and Article 56 ECHR
IV. The Chagos Islanders v UK Case
V. The Governance of British Overseas Territories
VI. The Personal and Spatial Modes of State Jurisdiction
VII. Dividing and Tailoring Convention Obligations in the Extra-territorial Context
VIII. The Normative Foundations of the Convention's Extra-territorial Application
IX. Constituent and Legislative Authority in British Overseas Territories
X. Subordinate Legislative Authority
XI. The Object and Purpose of Article 63/56 of the European Convention
XII. Conclusion
3. Detaching the Chagos Islands from Mauritius: The 1965 Mauritian Constitutional Conference and the Making of the Lancaster House Agreement
I. Introduction
II. Colonial Acquisition in the Mauritian Context
III. British Colonial Withdrawal and the Prospect of a US Military Facility on Diego Garcia
IV. The 1965 Mauritian Constitutional Conference and the Lancaster House Agreement
V. The Lancaster House Agreement
VI. Assessing the Relationship between the Detachment of the Chagos Islands and Mauritian Independence
VII. Conclusion
4. The 1965 Lancaster House Agreement and International Law
I. Introduction
II. The Doctrine and the Development of the Treaty Law
III. The Relationship between Coercion and Consent in the Conclusion of Treaties
IV. International Legal Personality, Treaty-Making Capacity and the 1965 Lancaster House Agreement 116A. International Legal Personality and Treaty-Making Authority in the Colonial Context
B. International Legal Personality and Treaty-Making Authority in the Mauritian Context
V. Coercion in the Conclusion of Treaties and Colonial Self-determination
VI. Conclusion
5. Detaching the Chagos Islands from Mauritius: The Status of Colonial Self-determination in International Law during the mid-1960s
I. Introduction
II. Legal Rules, Legal Principles and Legal Rights
III. The Rise of the Principle of Self-determination and International Law
IV. The Principle of Self-determination in the UN Charter
V. Chapter XI and Chapter XII of the UN Charter
VI. Holistic Interpretations of the Charter: Article 1 and Chapters XI and XII 144A. Self-determination and the Drafting of the UN Charter
B. Self-determination and the Concept of 'People-hood'
VII. The General Assembly: Chapter XI and the Progressive Development of the Right to Self-determination 148A. The General Assembly and the Supervision of Non-Self-Governing Territories
VIII. Non-Self-Governing Territories 152A. The Scope of the Concept of Domestic Jurisdiction
B. The Concept of Non-Self-Governing Territories
IX. The Colonial Declaration
X. General Assembly Resolution 1541(XV)(1960)
XI. Charter-based Arguments
XII. The Formation of General Customary International Law 170A. State Practice
B. Opinio Juris
XIII. Self-determination, the Colonial Declaration and Customary International Law
XIV. The ICJ and Colonial Self-determination: Formalism versus Teleology
XV. The South West Africa Cases: Substantive Law and the Formation of Customary International Law
XVI. Fitzmaurice and the Formalist Interpretation of Self-determination
XVII. 'Decolonizing the Court'
XVIII. Conclusion
6. Mauritian Claims of Sovereignty over the Chagos Islands: Mauritian Self-determination
I. Introduction
II. Colonial Self-determination in the Mauritian Context
III. The Principle of Uti Possidetis Juris
IV. Uti Possidetis Juris in the Mauritian Context
V. The Creation of the British Indian Ocean Territory
VI. The Significance of General Assembly Resolution 2066(XX) (1965) 207A. Support for Resolution 2066 from UN Members States in the General Assembly
B. The Juridical Facts of the Detachment of the Chagos Islands from Mauritius
VII. Sovereignty over the Chagos Islands: The Position of the UK Government
VIII. Sovereignty over the Chagos Islands: The Position of the Mauritian Government
IX. The Estoppel Argument
X. Non-Self-Governing Territories and the Right to Self-determination
XI. The Concept of a Non-Self-Governing Territory
XII. The Case of West New Guinea 224A. Historical Background
B. The Battles in the UN General Assembly (1954–61)
C. Dutch Resignation and the 1962 New York Agreement
D. The Administrative Argument
E. The Sovereignty Argument
F. The Ethnic/Cultural Argument
XIII. The Mayotte Question
XIV. The Significance of West New Guinea and Mayotte for BIOT's Status
XV. The Temporal Limits of Non-Self-Governing Territory Status
XVI. Non-Self-Governing Status and the BIOT
XVII. Conclusion
7. The Chagos Islanders and International Law
I. Introduction
II. The Feasibility of Resettling the Outer Chagos Islands
III. The BIOT as a Non-Self-Governing Territory
IV. Are the Chagos Islanders a 'People' for the Purpose of Exercising the Right to Self-determination in International Law?
V. Chagossian Perspective on UK Sovereign Authority in respect of the BIOT
VI. Chagossian Self-determination and Applicable Human Rights Treaties 262A. International Covenant on Civil and Political Rights
B. International Covenant on Economic, Social and Cultural Rights
C. International Convention on the Elimination of All Forms of Racial Discrimination
VII. Good Governance in British Overseas Territories
VIII. The Salience of Indigenous Rights for the Chagos Islanders 273A. The Concept of Indigeneity in International Law
B. The Concept of Indigeneity in the Chagossian Context
C. Indigenous Land Rights in the Chagossian Context

Reviews

“[The book offers a] comprehensive and well-researched presentation of the case history under UK constitutional law and the European Convention on Human Rights…[and contains an] elaborate discussion of UN General Assembly Resolutions…and related jurisprudence of the International Court of Justice…” –  Peter H Sand, European Journal of International Law

“Stephen Allen's The Chagos Islanders and International Law offers the most detailed treatment to date of the protracted legal struggle of the Chagossians ... Allen is uniquely placed to write on this controversy, having acted as a consultant to the Chagossian (Bancoult) legal team when the Chagos case was first addressed by the English courts.” –  Victor Kattan, Faculty of Law, National University of Singapore, Indian Journal of International Law

“Stephen Allen's book deeply explores the Chagos issue with unique perspectives. No doubt readers would be impressed by its detailed depictions and reasoning.” –  WANG Jia, Department of International Law, China Foreign Affairs University, Chinese Journal of International Law

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