18 Dec The AU Invokes the Doctrine of Specially-Affected States in Chagos Island
In a recent article published in AJIL, I tried to develop a coherent theory of the doctrine of specially-affected states, first articulated by the ICJ — and largely ignored thereafter — in North Sea Continental Shelf. I concluded the article with a call to the Global South to invoke the doctrine more liberally in international litigation:
This article, then, is not simply a critique of the Global North’s self-interested construction of the doctrine of specially-affected states. More fundamentally, it is a cri de cœur to the Global South to resist the Global North’s attempts to conceal the doctrine’s transformative potential. The South has generally been silent about the doctrine of specially-affected states, almost certainly because of the perception – carefully cultivated by the US and Northern scholars – that the doctrine is simply yet another legal tool the powerful can use to subjugate the weak. But that is not true, for all the reasons explained in this article. On the contrary, the doctrine of specially-affected states, properly understood, has the potential to provide states in the Global South with more power over the formation of custom than they or Global North states have ever imagined.
Not long after the article was published — though almost certainly not because of it — the African Union (AU) invoked the doctrine in the Chagos Island case. In paragraph 23 of its Written Comments on Other Written Statements (15 May 2018), the AU claims that African states and post-colonial states should be considered specially affected for purposes of determining whether the decolonisation of Mauritius is incomplete and unlawful under customary international law:
As the Court has underlined in the North Sea Continental Shelf Cases, the practice that is essential to look at when dealing with an issue of international law is the practice of the “concerned states”. There is no doubt that those who are the concerned States in the present proceeding are, first and foremost, the African States and then those States that have been victims of colonialism (most of whom are part of the Non-Aligned Movement).
In one respect, I disagree with the AU’s position. I do not believe that all African states should be considered specially affected simply by virtue of their location on the continent. In particular, it is at least arguable that Ethiopia and Liberia were never colonised in a manner that makes them specially affected in Chagos Island.
The AU’s statement nevertheless illustrates one of the reasons why I think the doctrine of specially-affected states has significant emancipatory potential for the Global South: states that qualify as specially affected because they engage in practice often — perhaps usually — produce a larger number of specially-affected states through that practice. In my article, I used the example of the customary status of the “unwilling or unable” standard: although the US qualifies as specially affected because it uses force extraterritorially against non-state actors, those uses of force have produced at least four specially-affected states through effect: Syria, Pakistan, Afghanistan, and the Sudan.
We can see a similar dynamic in the context of issues of customary that arise in post-colonial context. For every state that qualifies as specially affected because it was a coloniser, there are multiple states that qualify as specially affected because they were colonised. The UK alone, for example, colonised more than a dozen states in Africa. If the ICJ emphasises the practice of specially-affected states when deciding whether the decolonisation of Mauritius is incomplete and unlawful, therefore, the balance of power will overwhelmingly favour the AU — not the UK and the US. Indeed, it seems clear that the overwhelming majority of specially-affected states believe that the decolonisation of Mauritius is incomplete and unlawful. (For an excellent overview of the issues of custom in the case, see Stephen Allen’s recent post at EJIL: Talk! here.)
It remains to be seen, of course, whether the ICJ will rely on the doctrine of specially-affected states in its Advisory Opinion. As I note in my article, it has never done so explicitly in any case, contested or otherwise, since North Sea Continental Shelf. I hope Chagos Island will break the streak — and I’m delighted to see the AU explicitly relying on the doctrine.