Worldwide, climate change is already affecting directly and indirectly the agricultural productivity and ecology of some organisms because of changing patterns in crop production, livestock intensification, changing rainfall patterns, increased drought and flooding, and the geographical redistribution of pests and diseases, as well as altering the transport pathways of chemical contaminants.
Consequently, climate change is expected to aggravate feed and food safety problems during all phases of food production and supply. M.C.Tirado, R. Clarke, L.A.Jaykus, A.McQuatters-Gollop, J.M.Frank stated in their research entitled “Climate change and food safety: A review” published in Food Research International (Vol. 43, Issue 7):
“Climate change and variability may have an impact on the occurrence of food safety hazards at various stages of the food chain, from primary production through to consumption. There are multiple pathways through which climate related factors may impact food safety including: changes in temperature and precipitation patterns, increased frequency and intensity of extreme weather events, ocean warming and acidification, and changes in contaminants’ transport pathways among others. Climate change may also affect socio-economic aspects related to food systems such as agriculture, animal production, global trade, demographics and human behavior which all influence food safety.”
As human health inescapably relates to the consumption of safe and sufficient quantity of foods, climate change is expected to have considerable impacts on human health as a consequence of serious food contamination and food scarcity. Food hazards, including germs and chemical contaminants, can enter the food supply at any point from farm to table. Most of these hazards cannot be detected in food when it is purchased or consumed. In addition, consumption of insufficient amount of food due to food scarcity may lead to malnutrition and several foodborne diseases. Therefore, climate change by way of temperature increases, changing patterns in crop production, changes in rainfall patterns, toxic contaminations, food scarcity, increased drought and flooding etc. is resulting in worldwide increased water- and food-borne diseases and malnutrition. M. Herrera, R. Anadón, Shahzad Zafar Iqbal, J. D. Bailly, Agustin Ariño stated in their research entitled “Climate Change and Food Safety” published in Selamat J., Iqbal S. (eds) Food Safety. Springer, Cham (2016):
“Temperature increases and changes in rainfall patterns will have an impact on the persistence and patterns of occurrence of bacteria, viruses, parasites, fungi, and harmful algae and the patterns of their corresponding foodborne diseases and the risk of toxic contamination. Chemical residues of pesticides and veterinary medicines in plant and animal products will be affected by changes in pest pressure.”
Therefore, incidences of water- and food-borne diseases are increasing globally. Water- and food-borne diseases are the result of ingestion of foodstuffs or water contaminated with microorganisms or chemicals, or diseases caused by malnutrition. These diseases encompass abroad spectrum of illnesses causing morbidity and mortality worldwide and their real overall health impact on the world population is yet unknown. Food and Agriculture Organization of the United Nations (“FAO”) stated in its research in 2008 entitled “Climate Change: Implications for Food Safety”:
“Evidence of the impact of climate change on the transmission of food and waterborne diseases comes from a number of sources, e.g. the seasonality of foodborne and diarrhoeal disease, changes in disease patterns that occur as a consequence of temperature, and associations between increased incidence of food and waterborne illness and severe weather events.”
Following the recurrence of serious events of food contamination and scarcity across the globe, food safety has become a matter of ever increasing international concern and the World Health Organization has defined foodborne diseases as a global public health challenge. Protecting global health from foodborne hazards is a compelling duty and a primary interest of both States and non-State actors; it calls for enhanced proactive cooperation between national and international institutions. Moving from the consideration that food safety issues and the enhancement of health security are of growing international concern, it is interesting to inquire whether the international community is provided with the appropriate legal instruments to face foodborne hazards globally. Unfortunately, the present state of international law on food safety regulation and governance is still unsatisfactory and reforms are desirable in many respects.
The “Right to Safe and Sufficient Food” in International Law
For the reasons stated above, international food safety is perceived as a global challenge. In the wake of a trend towards more efficient food safety policies, the 2007 Beijing Declaration on Food Safety gives voice to the global community’s concern that a comprehensive and integrated approach be adopted, prompting all stakeholders to take cooperative and concerted actions and strengthening links between the different sectors involved. The Declaration, in fact, recognizes that “integrated food safety systems are best suited to address potential risks across the entire food-chain from production to consumption” and that “oversight of food safety is an essential public health function that protects consumers from health risks”. In this perspective, it mainly urges States to develop transparent regulation to guarantee safety standards; to ensure adequate and effective enforcement of food safety legislation using risk-based methods; to establish procedures, including tracing and recall systems in conjunction with industry; to rapidly identify, investigate and control food safety incidents and to alert the World Health Organization (WHO) of those events falling under the revised international health regulations. In short, the Declaration expresses the need to understand food safety as both a national and an international responsibility.
Although emphasis is increasingly being placed on the concept of food safety, legal literature has seldom expanded on the status of a “human right to safe food” in international law. The right to safe food in human rights law is encompassed by both the right to health and the right to food. It is so closely interrelated with these fundamental human rights – being at the same time one of their integral components and an element upon which their realization is dependent.
Article 25, paragraph 1, of the Universal Declaration of Human Rights (“UDHR”) affirms that “[e]veryone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services”, while article 12, paragraph 1, of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) enunciates the right to health as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. In its General Comment No. 14 on the domestic implementation of article 12 of ICESCR, the United Nations Committee on Economic, Social and Cultural Rights (“the Committee”) interprets the right to health, as defined in article 12.1, as “an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and … [a]n adequate supply of safe food” (Comment No. 14, para. 11). As far as legal obligations are concerned, the Committee makes it clear that States Parties are under the obligation to adopt domestic laws aimed to ensure “the underlying determinants of health, such as nutritiously safe food and potable drinking water” (Comment No. 14, para. 36) and to provide for implementation of such legislation.
Moreover, the Committee reiterates the view expressed in General Comment No. 12 that guaranteeing “access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone” is one of the core obligations incumbent upon States Parties to grant satisfaction of minimum essential levels of the right to health. In this context, obligations of immediate effect would encompass the duty to guarantee that all individuals under the jurisdiction of the State have equal access to safe and nutritious food; the duty to enact food safety and consumer protection legislation, including accountability measures; the duty to take all necessary steps to implement international regulations and standards.
In its general comment on the right to adequate food, the Committee underlines that “the right … is indivisibly linked to the inherent dignity of the human person and is indispensable for the fulfillment of other human rights enshrined in the International Bill of Human Rights” (Comment No. 12, para. 4). While recognizing that the right to adequate food is crucial for the enjoyment of all rights, the Committee considers that the core content of this right implies “the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances” (Comment No. 12, para. 4).
Moreover, the relevance of food safety to the realization of the right to food both at national and international level is further emphasized by the Committee when it stresses that domestic policies of implementation of article 11 of ICESCR “should address critical issues and measures in regard to all aspects of the food system, including the production, processing, distribution, marketing and consumption of safe food” (Comment No. 12, para. 10), and that States and international organizations have a joint and individual responsibility to ensure that “products included in international food trade or aid programs … be safe” (Comment No. 12, para. 10).
Within the United Nations, the General Assembly has long adopted the same approach as the Committee, in resolution 63/187 of 18 December 2008 on the right to food the Assembly “reaffirms the right of everyone to have access to safe, sufficient and nutritious food, consistent with the right to adequate food and the fundamental right of everyone to be free from hunger”. The Human Rights Council has repeated the same formula in its Resolution No. 7/14 on the right to food of 27 March 2008, the first adopted by the Council so far.
In different contexts, several international declarations and other soft law instruments have reaffirmed the individual right to adequate and safe food. The World Declaration on Nutrition, adopted by the FAO International Conference on Nutrition in December 1992, asserts that “access to nutritionally adequate and safe food is a right of each individual” (para. 1); the 1996 Rome Declaration on World Food Security includes the States’ commitment to “implement policies aimed at eradicating poverty and inequality and improving physical and economic access by all, at all times, to sufficient, nutritionally adequate and safe food and its effective utilization [World Food Summit Plan of Action, para. 21 (b)]” and the Declaration adopted at the FAO World Food Summit: five years later in June 2002 confirms “the right of everyone to have access to safe and nutritious food” (preamble).
From this legal framework it can be inferred that in the human rights perspective it is generally recognized that every individual is entitled to food that is safe and of good quality, since safe food is functional to achieving freedom from hunger and enjoyment of the best attainable state of health; hence it is crucial for protecting life and human dignity. Clarifying whether this entitlement shapes an autonomous right, separate and distinguishable from the rights to adequate food and to health, and whether it can be considered a fundamental human right, will probably be the subject of further insights by future legal scholarship. It is worth considering, however, that food safety has been already defined “an inalienable right of each individual” (WHO Global Strategy for Food Safety: Safer Food for Better Health).
The Need to Move Forward
It is generally acknowledged that due to their transboundary dimension and their potential widespread impact on human health, climate change and food safety challenges demand close international cooperation and global governance. Following in the wake of a clear trend in international law and practice, we are now witnessing the emergence of a general principle on food safety, underpinned by the progressive affirmation of a human right to safe food, which requires that international standards and guidelines be voluntary complied with, legal obligations be fulfilled in good faith and all stakeholders at different levels play their proactive role in enhancing the international community’s preparedness and capacity of response to food safety threats.
It is in fact common view that protecting world health from foodborne illnesses and similar hazards is to be seen as a compelling duty and a primary interest of both States and non-State actors. While food safety governance at the global level calls for multi-sectoral approaches and multi-level cooperation to minimize the effects of food safety related public health events, international law can still count on a limited set of legal instruments.
In fact, in the wake of climate change, the present state of international law on food safety regulation has faults and drawbacks, as authoritatively confirmed by Professor Francis Snyder:
“Food supply insecurity and unsafe food are tolerated, encouraged or even positively promoted by many aspects of current international law. Serious reform is essential if we want to create an international law for (and not just ‘of’) adequate food”.
Therefore, it is to be hoped that the joint efforts of the major international organizations involved at both the universal and the regional level (WHO, FAO, WTO) – which point towards the prospective enhancement of the degree of cooperation among international actors, State authorities and private stakeholders – will succeed in shaping an improved legal framework for food safety governance, which may benefit from the commitment of both international and national institutions. In such an evolving and interdependent scenario, national initiatives concerning targeted domestic legislation can indeed be welcomed as positive steps forward whenever they substantially contribute to realizing the right to safe and adequate food, introduce accountability measures, and strengthen foodborne disease monitoring and surveillance systems.
By focusing only on international law norms and obligations, this essay aims to offer a contribution to the current debate on food safety, with the awareness that it represents only a starting point for further analysis and more in-depth reflections on the innovations and developments needed in food safety regulation to achieve the compelling objective of protecting world health.
“The Rights of the Nations, National and Ethnic Minorities for Self- Determination”
The new article of the Charter of the UN “The rights of the nations, national and ethnic minorities for self-determination”, will allow, by vote of the population of regions of the countries under control of the UN, to gain independence for not gained independence nations at the level of the sovereign state, and for the gained independence nations at the level of autonomous regions – states, at the international organization UN.
As show events on time in the world, two options for achievement of level of the national self-determination are noted, in my opinion:
the first option – democratic and peace, by vote of the population with their compact accommodation in the concrete region of the country with participation of the UN, and
the second option – authoritative and aggressive that allows emergence in the states to separatism of nationalistically oriented citizens of the population with their compact accommodation in regions at the level of the open or hidden connivance of external interested countries to these regions.
So, in my opinion, the new article “The Rights of the nations, national and ethnic minorities on self-determination ” of the Charter of the UN has to consist of three parts for national self-determination of the population of the countries of the world:
the first part of article is for the nations, national and ethnic minorities which historically live compactly in certain regions of foreign sovereign states, without having at the same time national self-determination at the level of the sovereign state in the world and as a part of the UN;
the second part of article is for national and ethnic minorities which historically live compactly in regions of foreign sovereign states, but having at the same time in the world, outside not adjacent borders of the country of the accommodation, the nation sovereign state as a part of the UN and
the third part of article is for the nations which for centuries live compactly in historical lawful territories in adjacent borders of two-three sovereign states, but at the same time historically were the divided adjacent borders of the countries on two-three parts.
Development the new article of the Charter of the UN from legal side belongs to foreign affairs specialists-lawyers of the UN, which have to define fundamental sensible decisions about mention the rights on the basis of rules of international law. At the same time, lawyers of the UN, on the one hand, should not rely on the interests of conflicting parties in the region. On the other hand, lawyers also have to exclude in the new article of the Carter of the UN the geopolitical and geostrategic interests of major powers and countries in these regions and beyond their limits. Whether the UN as historically vital step of the international organization will go to it, it is already other party of a medal. As axiom, it is explained that new article in the Charter of the UN will remake territorially borders of all countries of the world without exception. And it, in turn, will exclude imperial manners of powers and countries of the world with emergence of world wars. And therefore, participation of all member countries of the UN in vote of the new article, but not members of the UNSC with their veto, as a rule, for this discussion is necessary.
In the first part of article – the UN develops all principles of creation of the new, but not repeating, national states with their democratic structures for the nations, nationals and ethnic minorities which are compactly living for centuries in the region on the historically lawful lands, but not having at the same time national self-determination at the level of the state in the world. At the same time peace process of emergence of the new national state has to take place step by step in the following ways on a basis:
1. universal ballot under control of the UN of all population living in this region of the country, but not separately taken its nation, for national self-determination at the level of the only state for this nation in borders of the historical territory of their accommodation;
2. build in the region of democratic structures and institutes with human rights and rule of the uniform Law, and
3. for the purpose of achievement of painless process of their exit of management of this sovereign state and not a rupture of the connection established them in market economy about the country to provide to regions time in 5-10 years for a smooth exit to the level of self-government of the sovereign state.
Kurds in Iraq, Tibetans in the Tibetan autonomous region of China, Basra in Spain, Chechens, Bashkirs, Tatars in Russia and others can be examples of the nations for this case. And what earlier, in the spirit of the times, there will be this democratically peace process, thereby, on the one hand, will win more those states in the territory of which there is this process at their close market interlacing.
On the other hand, will win all mankind with emergence on the world scene of the new, not repeating nation states with the rich national traditions, stories, culture, customs and religions. But the most important the fact that process of peaceful formation of the new states in regions of the countries will eliminate regional wars and the criminally centers on an international basis in territories of their accommodation. And it will exclude bloodshed of the people of these regions at emergence of the new state.
Striking examples told are emergence of 15 new states from former imperial the USSR and also the Czech Republic, Slovakia and the republics of the former Yugoslavia. However, they arose spontaneously, as led to a rupture of their market on the basis of their vertical structure. As result – full collapse of their economy with emergent of the new states.
Today some regions of the countries of the world also wish to gain independence at the level of the new national state in which basis either their rich economic budget, or religious motive lies.
Rich regions of such countries as Great Britain, the USA, Spain, Italy, Russia and other advanced countries can be examples. Regions of the countries of the Middle East and Africa can be examples of religious motive.
The second part of the article “The Rights of the Nations for Self-determination” of the Charter of the UN develops rules of uniform approach for national and ethnic minorities which at will of fate of historical events in the past live compactly in regions of others countries, however at the same time have no adjacent borders with their family in the world gained independence national states at the level of the UN.
For example, Jews, Chinese, Armenians, Mexicans and others in the USA; Armenians in France, in Russia, Azerbaijan and so on. In this case, for the purpose of maintaining territorial integrity of borders of the sovereign states fixed UN on which certain part of the territory these minorities compactly live the UN develops the principles of creation of self-government for them at the level of autonomies, as in Denmark, or the state, like in the USA, within territories of their compact accommodation. Besides, process happens according to universal ballot of the population of the region for further accommodation in the territory of this sovereign state which sheltered them and without revision of its borders. At the same time their equal constitutional rights with citizens of this state are created. But for cases of unwillingness of further accommodation in this territory on the basis of results of their vote, the UN is provided rules and conditions of their painless moving from these territories of foreign national states in the territory of the existing their nation states or other countries. It can occur due to monetary compensation to the leaving persons by sides of their states interested in destiny, according to the market of sale and a purchase of the earth and real estate. A striking example is eviction of Jews from the occupied Palestinian earth of Gaza on their home ground of the nation State of Israel with granting housing to them or at will departure to any country of the world.
Otherwise, a paradox of granting the states to these minorities of the rights, at existing in the world of their nation states, can the fact that only in one USA dozens of the states for Japanese, Latin Americans, Chinese, Jews and so on will arise will be. And Armenian ethnic minorities which are compactly living almost worldwide from hundred thousand to one million, for example in California in the USA, in France, in Russia, in Lebanon, in Turkey and in other countries, including also in Nagorno-Karabakh of Azerbaijan, and not having at the same time adjacent borders with their Armenia, will create as a result the largest state in the 21st century on ours to the Planet – the USA*, that is the United States Armenia is improbable. And it is a paradox on time for the three-million population of Armenia, given rise thanks to the October revolution of 1917 by Bolsheviks of Russia. Whereas the Palestinian nation cannot recreate blood of the people self-government at the level of the state since 1948 and is a source of a criminally problem not only in the Middle East, Africa, but already and around the world.
In the third part of the new article of the Charter of the UN, the rule for unity of the divided nation, two-three sovereign states living in adjacent borders on their historical home grounds is developed. In this case, the UN is necessary, on the basis of their universal ballot for association in the uniform nation, to develop ways and conditions of their peaceful painless association and merge of their territories of accommodation. 5-10 years for creation of the uniform nation state with democratic management with preservation of former economic are for this purpose allotted structures.
Examples of this association are already Vietnam, Yemen and there can be in the future reunification of Korea, Ireland, Azerbaijan, also Kosovo with Albania, as the uniform Albanian nation with adjacent borders, but taking into account interests and the rights of the Serbians who are compactly living there with Serbia. Other fresh example it is possible to bring association in the future of the Ossetia people Southern and Northern Ossetia into the uniform state Ossetia. In this case will win, on the one hand, the people uniting in the uniform nation, divided by adjacent borders because of historical events, and, on the other hand, and the states with accommodation of territorially divided nations.
In the absence of the new article the level of the international law from the UN, in my opinion, will be published in the Charter of the UN and the above-stated uniform approaches to these international problems as a paradox, the nations repeating for one and too dozens of the independent states.
And bloody long wars of people of the world, up to world, and existence of the criminally centers will be their investigation as shows time.
The author of article advises the authorities of the countries accepting numerous immigrants not to occupy them compactly on one nation, on the example of Chinese in the Siberian region of Russia that will bring in the future to their rights for repeated national self-government. As an example, Kosovo for Albanians in the presence of their Albania, and Nagorno-Karabakh of Azerbaijan for Armenians at Armenia.
Besides, compact accommodation of immigrants does not allow them on time to be integrated into life of society and into the culture of the hospitable country.
So, the mankind and the UN are faced by a dilemma: to be to the new article “About the Rights of the Nations for Self-determination” in the Charter of the UN for emergence peaceful manners of the new sovereign states, it is concrete for the nations which did not gain independence for today, at the level of disintegration of empires and countries, or to be to wars any level, up to nuclear world, for revival of ancient and modern empires with their colonial manners in the 21st century?
Trump’s Golan Heights Declaration: The Message to Azerbaijan
On March 21, 2019, United States President Trump tweeted, “After 52 years it is time for the United States to fully recognize Israel’s Sovereignty over the Golan Heights, which is of critical strategic and security importance to the State of Israel and Regional Stability!”
Regardless of one’s position within the spectrum of persuasions about whose sovereignty should be respected in the Golan Heights or the arguments used to justify its annexation to Israel, Trump’s declaration is unprecedented, post-WWII. Trump’s statement does not appear to be the official United States government policy yet. However, the die is cast. Trump has undermined the manifest inadmissibility of states acquiring territory by force. Lest we forget, the first Gulf war over the Iraqi attempt at annexing Kuwait by force.
Trump also dismisses United Nations Security Council Resolution 497, which states, “…the Israeli Golan Heights Law, which effectively annexed the Golan Heights, is “null and void and without international legal effect.” The same United Nations, with Resolution 181, mandating the partition of Palestine, recognized the State of Israeli. Rather than to expose yet another hypocritical move in international relations, what message is Israeli support for Trump’s unilateral declaration sending to conflicting sides in territorial conflicts? What about Indian-administered Kashmir? What about Azerbaijan’s territorial claim over the Armenian-administered region of Nagorno-Karabakh? Not a very good message for the interests of Azerbaijan.
A relative comparison of arguments used and issues raised concerning the Armenian-administered region of Nagorno-Karabakh and the Israeli annexation of the Golan Heights is seen here. Of more importance to Azerbaijan is how Trump has just trampled on the concept of internationally recognized borders. Syria had recognized borders until violated by Trump; the same Trump who wants a border wall of his own from Texas to San Diego. Azerbaijan’s articulated basis upon which they demand that the Armenian region of Nagorno-Karabakh relinquish it’s sovereignty to them is their claim of territorial integrity. The Azerbaijan press is full of article quoting states that reiterate the concept of territorial integrity.
The Organization for Security and Cooperation in Europe’s (OSCE) Minsk Group was established to help negotiate a peaceful settlement, between Armenia and Azerbaijan, of the still-simmering Nagorno-Karabakh conflict. Its members include the United States, Russia, and France. Russia annexed Crimea, although with nearly no force, it acquired Georgian territory, and the United States president declared support for the inclusion of the Syrian Golan Heights into the State of Israel. From Baku’s viewpoint, the OSCE Minsk Group does not appear to represent neutral facilitators when two of its three members represent states that ignore both territorial integrity and selective United Nations resolutions. The OSCE’s Minsk Group is making itself less relevant to both Armenia or Azerbaijan.
Armenian negotiators could use Trump’s declaration to pull out of OSCE-sponsored negotiations and Armenia could directly annex the region of Nagorno-Karabakh, considering Nagorno-Karabakh “… is of critical strategic and security importance to the State of” [Armenia] “and Regional Stability!”. Azerbaijan would be outraged by such an Armenian move, but curiously official Baku appears rather silent about Trump’s Golan Heights declaration. Why?
Israel supports Azerbaijan’s public relations campaign against the Armenian lobbies and Armenian-administered Nagorno-Karabakh. This support is demonstrated in some of today’s Israeli and Jewish publications, and publicly stated during a September 2015 Israeli Knesset visit to Baku. Why would Israel even care about Azerbaijan? Israel buys half its crude oil from Azerbaijan and Azerbaijan has purchased on the order of $5B of advanced Israeli weapons over the past decade. This is a relationship of convenience and Azerbaijan has a border with Iran.
Will Turkey now annex northern Cyprus, which was also acquired by force? Turkish jets frequently buzz Greek islands also claimed by Ankara. If southwestern Syria is up for the taking, why not other parts. Since 1920 Turkey has eyed the northern Syrian landmass stretching from the Western Thrace to Mosul in Iraq. Conveniently, Turkey currently claims its soldiers are in northern Syria for security reasons.
There are consequences to what United States Presidents declare.
Chagos Islands: Has the Sun Finally Set on the British Empire?
Authors: Punsara Amarasinghe and Anastasia Glazova*
The fame of British Empire was once embellished around the corners of the world as the empire where sun never sets and its imperial majesty ruled the millions of lives regardless how they were brought under the colonial yoke. The end of two great wars saw eventually paved the path to dismantle British Empire yet the problems created by the colonial rule were unsolved and continued to undermine the decolonized states. The recent advisory opinion given by International Court of Justice over the status of Chagos islands in Indian Ocean generates number of questions in the realm of international law regarding the drawbacks created in decolonization process and the duplicity of the concept if self-determination in international law. In the historic context Chagos islands always have been an integral part of Mauritius but however three years prior to granting independence to Mauritius Britain detached Chagos islands from Mauritius and created it a part of the territory known as British Indian Ocean Territory.
Between 1967 and 1973 the inhabitants lived in Chagos islands were forcibly removed and thus far they have been impeded by British law to enter the territory. The issue on the sovereignty of Chagos islands has lasted for decades as an unsolved riddle of colonialism whereas Mauritius always insisted the Chagos islands a part of their sovereignty despite British were reluctant to relinquish it, even the initial efforts made by Mauritius to bring the case before ICJ was not successful in the 80 decade. Nevertheless after envisaging a serious of attempts along with the assistance of African Union, 2017 United Nations General Assembly passed a resolution referring the issue to the advisory opinion of ICJ. The two fundamental questions General Assembly put forward before were that whether the decolonization process of Mauritius was completed when it was granted independence in 1968 and secondly what are the consequences emerging from modern international law before the continues presence of Britain in Chagos islands.
The issue of decolonization seems to be the most interesting legal issue arising from the advisory opinion of ICJ due to the fact that court has viewed the decolonization of Mauritius was not complete as it was not in accordance of the right to self-determination of the Mauritius people. Bringing the idea of self-determination into further evaluation becomes a pertinent issues as the very idea of self-determination always been a double edged sword. Especially in the post-colonial context dialog between West and newly independent states in Global South regarding understanding self-determination always have been different and the notion of self-determination appreciated by Third World was based on preserving their external integrity without getting subjected to any foreign force. As a matter of fact it was a quite understandable position as many of Third World countries had emerged from years of colonial domination and it paved the way for them to concern about external self-determination as their prime concern. However in examining court’s approach to assess the scope of right to self-determination in its advisory opinion was akin to the Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by the UNGA Resolution 1514(XV) in 1960 (Resolution 1514). The Resolution 1514 declares that the ‘subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights…’, and all such peoples ‘have the right to self-determination’ whereby ‘they freely determine their political status and freely pursue their economic, social and cultural development’.
The trivial question encountered in discussing the self-determination was whether it was a part of customary international law when the UK granted independence to Mauritius in 1968. However it is rather ironic that UK being the forefront colonizer in early 20thcentury had appeared for the right of self-determination of Sudanese people as their legal entitlement, in its effort to counter Egyptian claims on the Sudan in 1947. In its advisory opinion court seemed to have generally relied on the number of general assembly resolutions in deciding the scope of self-determination in international law. In fact the lethargic position adopted by Court without tracing the historical development of right to self-determination in opinojuris and state practice has diminished the magisterial jurisprudential value that many international law scholars expected to hear from this advisory opinion. However court confined its opinion regarding right to self-determination of Mauritius people to UNGA Resolution 2625 (XXV) of 1970, on Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the UN Charter and court confirmed its status in customary international law.
The court’s opinion on the incompletion of Mauritius decolonization should be taken into account as a monumental position shared by ICJ on the grim realities of colonialism which keeps haunting in 21st century. ICJ came to a conclusion that separation of Chagos Islands from Mauritius before the independence was an act done by British colonial rule without the genuine consent of Mauritius people. It seems to indicate that Court may have implicitly hinted that it would have been lawful if the separation was conducted after assessing the consent of people through something like a referendum. Court’s opinion was concluded by stating “the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State”. This was the culmination of ICJ advisory opinion which brought a great triumph for Mauritius and a great blow upon the United Kingdom. In its concluding remarks Court invoked all UN member states have a responsibility to finalize the decolonization of Mauritius as right to self-determination stands as erga omnes obligation.
All in all the advisory opinion on Chagos islands brought some solace to the states eager to confront the colonial legacies and post-colonial burdens. As an example in its court proceedings Mauritius was heavily backed by African Union and India. One counsel appeared on behalf of African Union stated that “It is unthinkable that today, in the 21st century, there is a part of Africa that still remains subject to European colonial rule.” On the other hand the UK has been still adamant about their presence in Chagos island as they claimed that matter was resolved in 1982 in an agreement on compensation and also the UK has pointed out that right to self-determination was not applicable in international law till 1970’s , whereas the separation of Chagos island took place in 1968. The UK defense was rejected by majority of judges in ICJ and the only dissenting opinion was given by American judge Joan Donoghue and her contention was based on that this matter should not have been taken before ICJ as it stands as a bilateral dispute between Mauritius and the United Kingdom. It is evident that this advisory opinion has brought a severe pressure on the UK in the backdrop of ongoing Brexit hullaballoo. Even though the advisory opinions are not binding that it is hardly to assume the UK would completely disdain the opinion as it has already acknowledged that the manner of removing the inhabitants of Chagos islands was shameful. In that case the entire advisory opinion should be regarded as a significant victory for Chagossians and hall mark legacy in the international jurisprudence relating to concept of self-determination.
*Anasatasia Glazova is a PhD candidate in at Faculty of Law, Higher School of Economics in Moscow, Russia. She worked as state legal officer in Vologda prior joining HSE and her research areas include International Human Rights Law, Law of the Sea and International Maritime Law. She can be reached at: angla.1892[at]mail.ru
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