Stephen Allen

Reviewing the Prerogative of Colonial Governance

1. In 1964, the US and UK Governments began negotiations regarding the possibility of establishing a US military facility on the island of Diego Garcia in the Chagos Islands. The UK Government subsequently enacted the British Indian Ocean Territory (“BIOT”) Order 1965 (SI 1965/1920), which excised the Chagos Islands from the colony of Mauritius and constituted BIOT.1 In a 1966 Exchange of Notes the UK Government agreed to make Diego Garcia available to the United States for defence purposes. Consequently, between 1968 and 1973, the UK Government exiled the indigenous inhabitants of the whole archipelago. Under art. 11 of the 1965 Order the BIOT Commissioner was empowered to legislate for BIOT’s “peace, order and good government”. In 1971, the Commissioner enacted the BIOT Immigration Ordinance. Section 4 of the Ordinance purported to authorise the removal and/or exclusion of Chagossians from BIOT.

The Operation of Estoppel in International Law and the Function of the Lancaster House Undertakings in the Chagos Arbitration Award

This essay will focus on the way in which the Lancaster House Undertakings were harnessed in support of the Chagos Tribunal’s finding that the BIOT Marine Protection Area was created in violation of international law. In particular, it will examine the way that the Tribunal applied the principle of estoppel as a means of upholding the Undertakings as though, together, they amounted to something akin to a binding international agreement. The essay will argue that such an approach fails to take into account the extent to which this principle is grounded in the recognition afforded to informal modes of behaviour. To this end, it will assert that estoppel is established by recourse to the way in which the parties to a dispute respond to a representation made by, or attributed to, the Respondent State: its operation is determined by interpreting their subsequent conduct, when viewed from the Applicant State’s perspective (subject to the test of reasonableness) rather than by relying on the parties’ shared understandings, or the Respondent State’s subjective intentions. Against this background, the essay will use the Chagos Award to demonstrate the extent to which estoppel’s normative authority is derived from an independent source of international legal obligation and the degree to which the principle’s essential character continues to be misunderstood by international courts and tribunals, notwithstanding the contribution that the Chagos Award has made to the slow evolution of this under-appreciated international legal principle.

Remembering and Forgetting – Protecting Privacy Rights in the Digital Age

This article interrogates the nature and scope of the right to erasure through the lens of the CJEU’s decision in Google Spain/Google Inc v AEPD/Gonzalez. It examines the reasoning adopted by the Advocate-General and the CJEU in this case as a means of assessing the interpretative techniques used by lawyers and decision-makers to resolve the normative conflicts that arise in privacy/expression disputes. It harnesses Koskenniemi’s work on the structure of legal argumentation for the purpose of analysing rights reasoning in the context of EU Data Protection law. It also explores the significance of the symbiotic relationship between privacy rights and expression rights with a view to providing the basis for achieving meaningful normative co-ordination in concrete cases.

Chapter 10 The Kosovo Question and Uti Possidetis: The Potential for a Negotiated Settlement

This chapter addresses the issue of whether there are principles of international law that are not currently being considered that could assist with the resolution of the ongoing dispute between Kosovo and Serbia over Kosovos claim to statehood. It examines the Kosovo Question through the lens of the ongoing ethnic tensions between the Kosovo Albanians and the Kosovo Serbs in those areas of Northern Kosovo where the latter group predominates. The chapter considers whether the principle of uti possidetis could offer a legal criterion to inform a process of negotiation to break the current deadlock, which might contribute to the resolution of the Kosovo Question. To determine the viability of using alternative principles of international law to resolve the ongoing dispute between Kosovo and Serbia regarding Kosovos claim to statehood, it is first necessary to identify where there may be scope for a form of negotiated settlement. Keywords:international law; Kosovo Question; Serbian; Uti Possidetis