Incomplete decolonisation

Prabhakar Singh

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Virachai Plasai, Ambassador of the Kingdom of Thailand to the US. Photo: Wendy van Bree/UN Photo/ICJ-CIJ

The International Court of Justice (the ICJ) in the Hague concluded oral hearings in the “Legal consequences of the separation of Chagos from Mauritius” advisory proceeding on 6 September 2018. Mauritius claims that the Chagos Archipelago forms an integral part of its territory under both Mauritian and international law. The United Kingdom disagrees.

The case began on 22 June 2017 when the United Nations General Assembly wrote to the ICJ asking two questions. First, “was the process of decolonization of Mauritius lawfully completed” at the time of Mauritian independence? Second, what are the “consequences under international law” arising from the continued British administration of the Chagos Archipelago? An important human rights issue emerges about the inability of Mauritius to implement a program for the resettlement of its Chagossian origin nationals.

The President of the ICJ, Judge Abdulqawi Yusuf, had set 1 March and 15 May 2018 respectively as dates by which international organisations and UN member states could send written submissions to the ICJ in relation to the aforementioned questions. Written comments followed written submissions. Some thirty-one countries and an international organisation, the African Union, responded to the ICJ call. Argentina, Mauritius, the US, the UK, Marshall Islands, Guatemala, Cyprus, Seychelles, Serbia and Nicaragua submitted written statements as well as written comments. India and China submitted only written statements. Thailand made no written submissions; Bangkok however spoke during the oral proceedings.

The Chagos advisory proceeding might be the first ever direct case before the ICJ concerning the doctrine of incomplete decolonisation. The UK and the US argue that in 1965, self-determination was merely a “principle”. Contrarily, Mauritius and a few other states argue self-determination had crystallised into a “right” in international law. While principle is mere wishful thinking, a right gives remedy to the oppressed.

The submissions reveal familiar but old fissures, with the UK, the US, France, Israel and Australia suggesting the ICJ should decline to opine. South Korea and China, while suggesting the limits of opinion-giving, appear more cautious. Contrarily, Mauritius, India and Thailand unequivocally nudged the ICJ to advise on the legal consequences of incomplete decolonisation on the erstwhile colonial powers, here the UK.

Thailand spoke most analytically before the ICJ. Bangkok’s arguments drew strength from its position as a kingdom that was never formally colonised: “Although the Kingdom was not itself colonised in the nineteenth century, or at any other time,” said Ambassador Virachai Plasai, “the price for maintaining its independence from colonial powers was high, including having to relinquish part of its territory and to accept a drastic regime of commercial concessions and extraterritorial jurisdiction.”

Naturally, “colonial power affected not just colonial territories but also other independent states that had to deal with the colonial powers.” According to Plasai, it is the “inequality of the relationship” that remains for Thailand “the hallmark of colonialism applied to both dependent colonial territories and other independent non-colonial states, which had no choice but to deal with the colonial powers.” Bangkok has in mind perhaps the Paknam incident of 1893 and the Phra Yot dispute with the French colonial administration of Indochina. In this respect, the interaction between Thailand and former colonial states is quite “unique”.

Thailand is right. In 1894, the colonial French administration had humiliated Bangkok by trying Phra Yot, a Siamese army personnel, twice in the teeth of opposition in both law and politics. A rule of international law, res judicata, says you cannot try one person twice for the same offence. Yet the French went for two trials to get a favourable ruling. Two decades later, in 1910, the Permanent Court of Arbitration in the Hague read the Savarkar case between colonial India and France very differently. It did not find France’s “defective extradition” of Savarkar to Britain in violation of international law.

That India and Thailand had different experiences of colonialism became obvious. Siam was “treated as subservient in their dealings with colonial powers”. Yet Thailand “did not have the benefit of the rules, some of which became jus cogens, that have been developed to deal with decolonisation and its consequences that help alleviate the situation of decolonised states”. Historically, Japan, China and Thailand were semi-colonial states subjected to unequal treaties at different times. These treaties were unequal because no two European states would sign such a pact between themselves. Such unequal treaties translated into unequal legal behaviour when a colonial power dealt with an Asian kingdom.

Therefore “where the law of treaties is applicable”, Thailand noted, “there is no precise definition of unequal treaties or of the criteria leading to such qualification”. For Thailand, “unequal treaties rest on a fundamental injustice and the international legal order cannot insist on their prolongation”. Naturally, Ambassador Plasai said to the ICJ, “state practice in particular relating to unequal treaties concluded between Western Powers and Asian countries like China, Japan or Siam” shows such treaties “were often revised or extinguished”. And this, Plasai said, “has implications for the way the ICJ should approach the issues before it in the present Request for an advisory opinion”.

Thailand’s contribution is praiseworthy for the balance it seeks to achieve. While Bangkok clearly identifies itself with the semi-colonial history of China and Japan, it also, unlike China, believes that the ICJ “may alleviate the effects of inequality, without affecting the validity of the treaties in question”. China always questions colonial treaties while rejecting even post-colonial treaties such as the UN Convention on the Law of the Sea, 1982. Ironically, such a rejection puts China in the shoes of the twentieth-century imperial power, Japan.

Thailand is displaying a classic peaceful position where it reaffirms the validity of the ICJ and unequal treaties in terms much more certain than China and Japan. While China has submitted a cautious written statement, Japan had voted against the UN General Assembly resolution for referring the matter to the ICJ. Besides, Japan is yet to sign a peace treaty with Russia for the official end of the World War II hostilities. Moreover, the historic interpretation of the unequal treaties between China and British India sits at the core of the India-China boundary disputes. Previously, Bangkok has affirmed her commitment to international law and peace by participating in the Reinterpretation of the Temple of Preah Vihear case in 2013 before the ICJ. Bangkok had originally participated before the ICJ in the Temple of Preah Vihear case in 1962.

Thailand, among a number of developing states, is reaffirming its faith in the ICJ on the question of incomplete decolonisation at a time President Trump has threatened the International Criminal Court and its judges. Thailand admirably leads the camp of international rule of law more than any other state.

Prabhakar Singh is Associate Professor at Jindal Global Law School.
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