State succession to the 1951 Refugee Convention: the curious case of Mauritius
In 2003 the Supreme Court of Mauritius concluded that, upon its independence from Great Britain in 1968, Mauritius had succeeded to the 1951 Refugee Convention. Yet Mauritius is not among the formal list of States Parties to the Convention and UNHCR regularly encourages it to accede to the Convention. Why then does the Supreme Court consider Mauritius a State Party while the International Community continues to see it as a non-signatory State?
The 1951 Refugee Convention and its 1967 Protocol are the cornerstones of the international refugee protection regime. The great majority of states have signed or ratified the Convention and its 1967 Protocol: 149 UN member states are currently party to the Refugee Convention, its Protocol or both, while 44 UN members are not. Some of these states ratified the Convention in 1951, while most states acceded to the Convention after its entry into force. Yet others have succeeded to the Convention, meaning that a new state inherits the legal commitments of its predecessor.
State succession in International Law
Of the three ways of becoming a State Party to a treaty, succession is perhaps the most controversial. As discussed by Philipp Janing, doctrinal debates on state succession date back centuries and are usually conceived as either promulgating the theories of universal succession or clean slate (tabula rasa). Until the mid-nineteenth century, the theory of universal succession was dominant. Any acquired rights in this capacity were to automatically pass to a new sovereign.
To challenge this classical theory of state succession, scholars of the mid-nineteenth century developed the clean slate theory. Based on a voluntarist understanding of international law, where law derives from state sovereignty, the legal obligations of the preceding state would be discontinued. The clean slate doctrine was widely accepted until the end of the Second World War.
During the period of decolonisation – when Mauritius became independent from Great Britain – the debates about state succession re-emerged with force. As European states assumed the role as predecessor states, some Western jurists sought to revive the doctrine of universal succession in an effort to minimise the perceived ‘disruptive’ effects of decolonisation. Seeking to reserve their sovereign right to reconsider the legal relationships contracted on their behalf by imperialist states, however, many newly independent states advocated for the clean slate approach.
In 1978 the Vienna Convention on the Succession of States in Respect of Treaties was adopted. Entering into force in 1996, it represented an attempt to reconcile the opposing doctrines of universal succession and clean slate. Heavily shaped by the experiences of decolonisation, the treaty applied a version of the clean slate theory for newly independent states based on the Nyerere doctrine. Declared by Julius Nyerere, the first Prime Minister of Tanganiyka (present day Tanzania), this doctrine rejected automatic continuation of any treaty obligations and opted instead for interim succession. With only 23 parties, the rules of the Convention nonetheless remain far from universal.
Mauritius Supreme Court
In a 2003 ruling the Supreme Court of Mauritius held that Mauritius had succeeded to the Convention as the UK had ratified and extended its application to the Colony of Mauritius in 1951. It stated that:
[T]he … Colony of Mauritius succeeded to the Convention relating to the status of Refugees by reason of the fact that the United Kingdom of Great Britain and Northern Ireland became a signatory of the said Convention on 28th July 1951, which was ratified on 11 March 1954 and extended to the Colony of Mauritius, as per the Notification of Territorial Application made by the United Kingdom on 25 October 1956…
The Mauritian government followed a similar approach to that of Tanganiyka. A letter addressed to the UN Secretary General in March 1968 informed that: ‘it is desired that it be presumed that each treaty has been legally succeeded to by Mauritius and that action be based upon this presumption until a decision is reached that it should be regarded as having lapsed’. The Mauritian declaration, however, differs from that of Tanganiyka by not setting any time limit for this reevaluation process and instead permits ‘notice of termination’ should the ‘Government of Mauritius be of the opinion that they had legally succeeded to a treaty but subsequently wish to terminate its operation.’
Taken together this means, as Jamil Ddamulira Mujuzi recently argued, that Mauritius is indeed a party to the Refugee Convention. A closer examination of this issue nonetheless reveals that such a conclusion may be less than straightforward.
Mauritius and the 1951 Refugee Convention
The position of the Supreme Court, that Mauritius is a State Party to the Refugee Convention, is not shared by other actors. The international community – through the UN human rights bodies and UNHCR – maintain that Mauritius is indeed not a State Party to the Convention, as do representatives of the Mauritius government. As noted by Malgosia Fitzmaurice, ‘whether a state is bound by legal obligations following succession depends to a large degree on the recognition of the position of a successor state by other states’.
In its 2018 national report to the UN Human Rights Council – that is, 15 years after the Supreme Court’s findings – Mauritiusstated that it ‘has not signed the 1951 Convention’, nor its Protocol. During this same process, UNHCR recommended that Mauritius accede to the Convention and its Protocol. The UN Committee Against Torture has on a separate occasion similarly encouraged Mauritius to consider ratification.
Although the question of whether Mauritius is a State Party to the Refugee Convention has limited practical value because Mauritius has not acceded to the 1967 Protocol, it illustrates how divergent doctrines and practices of state succession leave space for contrasting conclusions. Despite the government considering that it is not bound by the Convention, its failure to formally notify the discontinuance of the Convention has led the Supreme Court to reach a conclusion that the state indeed remains a party.
Of course, one may also wonder why Mauritius has formally clarified its position on a number of core human rights treaties while not completing the task of reviewing its commitment to the Refugee Convention. On the other hand, in 1969 Mauritius signed the OAU Refugee Convention, signaling a commitment to, if not a global refugee protection regime, a regional one.
The Mauritian case thus raises interesting questions about non-signatory states’ historical and contemporary approaches to the Refugee Convention, suggesting, as it does, that the linkages between these states and the Convention are more complex and legally intricate than previously recognised. It furthermore illustrates the need for cautious legal historical research into the circumstances of decolonisation and state succession to the Convention. We encourage further scholarly investigations to explore whether Mauritius is an exceptional case or whether this situation has arisen in other non-signatory states.
In January 2021, in the 70th anniversary year of the Refugee Convention, the BEYOND project kicked off at the University of Oslo. It seeks to explore the various ways non-signatory states relate to the international refugee regime. Follow us on Twitter for updates!
Header image: 22 October 1975 - Thirtieth Session of the General Assembly at which the debate continued in the Sixth Committee on the report of the International Law Commission containing draft articles on succession of States in respect of treaties, United Nations Headquarters, New York: at the presiding table are (from left to right) Mr. Abdul Hakim Tabibi (Afghanistan), Chairman of the International Law Commission; Mr. Frank X. Njenga (Kenya), Committee Chairman; Mr. Yuri M. Rybakov (USSR), Committee Secretary; and Mr. Eike Bracklo (Federal Republic of Germany), Rapporteur. (https://legal.un.org/avl/ha/vcssrt/vcssrt.html).
Copyright info: Material obtained on 24 August 2021 from the website of the United Nations Audiovisual Library of International Law, located at http://www.un.org/law/avl .
