Exposé écrit de l'Argentine

INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES OF
THE SEPARATION OF CHAGOS FROM MAURITIUS IN 1965
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT OF THE
ARGENTINE REPUBLIC
1 MARCH 2018
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TABLE OF CONTENTS
Page
Introduction 3
A. The General Assembly has competence to request an advisory opinion and there
are no compelling reasons not to respond to this request 4
(1) Chagos is a matter of decolonization 5
(2) The General Assembly has specific competence in the field of decolonization 6
(3) The existence of a bilateral dispute does not preclude the exercise of the General
Assembly’s decolonization duties and a fortiori that of the Court’s advisory
jurisdiction 10
B. The applicable law and its application to the separation of Chagos 13
(1) The separation of Chagos infringed the territorial integrity of Mauritius 14
(2) The separation of Chagos infringed the right of the Mauritian people to selfdetermination
19
(3) The breach of the obligation for the administering Power not to adopt unilateral
measures contrary to the decolonization process 20
(4) The separation of Chagos entailed and continues to entail a breach of fundamental
human rights 21
(5) The refusal of the administering Power to negotiate with Mauritius for the full
implementation of its obligation to decolonize the entire territory also constitutes a
breach of the obligation to settle international disputes through peaceful means 23
C. How the Court might address the questions raised by the request for an advisory
opinion 25
(1) Question a) 25
(2) Question b) 25
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Introduction
1. The present written statement is filed pursuant to the Court’s Order of 14 July 2017
upon the request for an advisory opinion made by the General Assembly of the
United Nations in its Resolution 71/292 of 22 June 2017.
2. The terms of the request made by the General Assembly are as follows:
(a) “Was the process of decolonization of Mauritius lawfully completed when
Mauritius was granted independence in 1968, following the separation of the
Chagos Archipelago from Mauritius and having regard to international law,
including obligations reflected in General Assembly Resolutions 1514(XV) of
14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20
December 1966 and 2357 (XXII) of 19 December 1967?”
(b) “What are the consequences under international law, including obligations
reflected in the above-mentioned resolutions, arising from the continued
administration by the United Kingdom of Great Britain and Northern Ireland of
the Chagos Archipelago, including with respect to the inability of Mauritius to
implement a programme for the resettlement on the Chagos Archipelago of its
nationals, in particular those of Chagossian origin?”
3. The Argentine Republic (hereinafter, “Argentina”) is a co-sponsor of the draft
resolution requesting this advisory opinion and hence voted in favour of this request.
Likewise, Argentina voted in favour of all General Assembly resolutions mentioned
in the above-mentioned questions. By endorsing this request for an advisory opinion,
Argentina reaffirms its recognition of the high function of the International Court of
Justice as the principal judicial organ of the United Nations, its respect for
international law, its commitment to the duties and responsibilities of the General
Assembly in the process of decolonization and its support for the completion of this
process in all its aspects and in all pending cases. The present written statement
(hereinafter WSA) constitutes Argentina’s contribution to the Court in these
advisory proceedings.
4. As the Court stated: “The jurisdiction of the Court under Article 96 of the Charter
and Article 65 of the Statute, to give advisory opinions on legal questions, enables
United Nations entities to seek guidance from the Court in order to conduct their
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activities in accordance with law”.1 This is exactly what the General Assembly is
looking for in this matter, which has lasted for more than half a century.
5. In the WSA, Argentina addresses some of the significant legal issues arising from
the questions submitted to the Court, both with regard to its jurisdiction and
propriety and to the merits. The WSA is divided into three parts. The first part (“A”)
refers to the competence of the General Assembly to request this advisory opinion
and the reasons for the Court to exercise its jurisdiction in this regard. The second
part (“B”) addresses the substance of the request, dealing with some of the important
legal questions that it raises. The last part (“C”) concludes with the proposed content
of the answers to the questions posed by Resolution 71/292.
A. The General Assembly has competence to request an advisory opinion and there are
no compelling reasons not to respond to this request
6. The competence of the General Assembly to request an advisory opinion of the
International Court of Justice is derived directly from Article 96 (1) of the UN
Charter, which reads as follows: “The General Assembly or the Security Council
may request the International Court of Justice to give an advisory opinion on any
legal question.”
7. Both the reference to the General Assembly as one of the two named principal
organs of the United Nations and the phrase “any legal question” cast little doubt on
the capacity of the General Assembly to request the present advisory opinion. “The
questions submitted by the General Assembly have been framed in terms of law and
raise problems of international law”, 2 relating as they do to the legality of the
separation of Chagos from Mauritius in 1965 and to the legal consequences of the
maintenance of this situation until today.
8. The request currently under review is the seventeenth request made by the General
Assembly out of a total of 27 requests for advisory opinions. Up to today, the Court
1 Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United
Nations, Advisory Opinion, I.C.J. Reports 1989, pp. 188-189, para. 131.
2 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15.
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has never declined to render an advisory opinion requested by the General
Assembly.
9. Article 18 of the Charter of the United Nations does not stipulate that the decision to
request an opinion from the International Court of Justice must be adopted by a twothird
majority. Nor do the Rules of Procedure of the UN General Assembly.3 To
date, with the exception of the request regarding the Reparation for Injuries Suffered
in the Service of the United Nations, which was adopted unanimously, all requests
by the General Assembly for an advisory opinion have been adopted by a majority
vote. The adoption of Resolution 71/292 was undoubtedly a legally valid decision,
adopted by a clear majority vote of 94 to 15, with 65 abstentions. It can be recalled
that according to Rule 86 of the General Assembly, “the phrase ‘members present
and voting’ [of Article 18 of the Charter and the related General Assembly Rules]
means members casting an affirmative or negative vote. Members which abstain
from voting are considering as not voting”. Hence, in all circumstances, even if a
majority of two thirds were required, this majority would have been met.
10. This part will be divided into three sections: the first one will explain that the
question under scrutiny is one of decolonization (1). The second section will address
the specific competencies of the General Assembly in the field of decolonization (2).
The third section will reaffirm the constant position of the Court that the consent of
an interested State is not necessary for the exercise of its advisory jurisdiction and
that the concomitant existence of a bilateral dispute is not a reason for the Court not
to exercise its advisory jurisdiction (3).
(1) Chagos is a matter of decolonization
11. The question of the separation of Chagos Archipelago from Mauritius is a matter of
decolonization. The separation occurred in 1965, at the time when Mauritius was a
non-self-governing territory in the sense of Chapter XI of the Charter of the United
Nations. It is not contested that before that separation, Chagos was part of Mauritius.
It is not contested either that this separation was the result of an action of the United
Kingdom, the administering Power. Mauritius achieved independence in 1968 but
3 See Rules 83 to 86 of the Rules of Procedure of the UN General Assembly.
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was impeded from the exercise of sovereignty over part of its territory, as it
extended during the whole period in which it was considered to be a non-selfgoverning
territory by the United Nations.
12. A crucial element for the understanding of the problems now under examination in
this case is the legal status of territories under colonial regime. This legal aspect has
been explicitly dealt with in the Friendly Relations Declaration:
“The territory of a colony or other Non-Self-Governing Territory has, under
the Charter, a status separate and distinct from the territory of the State
administering it; and such separate and distinct status under the Charter shall
exist until the people of the colony or Non-Self-Governing Territory have
exercised their right of self-determination in accordance with the Charter, and
particularly its purposes and principles.”4
13. The separation of the Chagos Archipelago from Mauritius could have not deprived
the former of its status as part of a non-self-governing territory, hence under process
of decolonization. Irrespective of the manner the question is understood, both the
territory concerned and its separation from the rest of the then colony constitute a
matter of decolonization. Mauritius was deprived of its national unity and territorial
integrity in breach of the obligation set out in paragraph 6 of Resolution 1514 (XV)
of the General Assembly. These questions are at the core of the advisory opinion
requested by the General Assembly and will be examined in some detail below.
(2) The General Assembly has specific competences in the field of decolonization
14. Having determined that the questions referred to the Court by Resolution 71/292 fall
within the realm of decolonization, the crucial role played by the General Assembly
in this matter is explained in this part of the WSA. Indeed, this principal organ of the
United Nations does not address this matter just in its general and broad
competence. It has a specific competence in this field demonstrated by a practice
dating back to the very beginning of the existence of the United Nations which
continues until today.
4 UN General Assembly Resolution 2625 (XXV) of 24 October 1970.
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15. Article 73 of the Charter sets out a number of goals to be achieved for these
territories and obligations for the colonial States (administering Powers) that have
been extensively developed by the practice of the General Assembly. The Court has
already recognized this in its 1971 and 1975 advisory opinions, focusing on the
importance of Resolution 1514 (XV):
“The Court had occasion to refer to this resolution in the above-mentioned
Advisory Opinion of 21 June 1971. Speaking of the development of
international law in regard to non-self-governing territories, the Court there
stated:
‘A further important stage in this development was the Declaration on the
Granting of Independence to Colonial Countries and Peoples (General
Assembly Resolution 1514 (XV) of 14 December 1960), which embraces al1
peoples and territories which ‘have not yet attained independence’.’ (I.C.J.
Reports 1971, p. 31.)
It went on to state:
‘… the Court must take into consideration the changes which have occurred in
the supervening half-century, and its interpretation cannot remain unaffected
by the subsequent development of law, through the Charter of the United
Nations and by way of customary law’ (ibid.).”5
16. Indeed, it is with the strong participation of the UN in general and the General
Assembly in particular that many current members of the Organization achieved
their independence. More than 80 former colonies comprising some 750 millions
people gained independence since the creation of the United Nations.6 As the Court
stated in 1975 again:
“General Assembly Resolution 1514 (XV) provided the basis for the process of
decolonization which has resulted since 1960 in the creation of many States
which are today Members of the United Nations.”7
17. As early as its first session, the General Assembly started requesting the
administering Powers to present more precise reports concerning the political and
constitutional developments of the colonies. Soon later, it established subsidiary
organs in the form of committees in order to examine the situation of the non-selfgoverning
territories, following the model of the Trusteeship Council. As mentioned
above, a decisive moment for the establishment of a true law of decolonization was
5 Western Sahara, advisory opinion, I.C.J. Reports 1975, p. 32, para. 56.
6 http://www.un.org/en/decolonization
7 Ibid., p. 32, para. 57. See also Accordance with International Law of the Unilateral Declaration of
Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 436, para. 79 and p. 438, para. 82.
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the adoption of Resolution 1514 (XV) of 14 December 1960. A huge mass of
General Assembly resolutions were adopted in this field, of a general nature as well
as addressing specifically each non-self-governing territory.
18. This law of decolonization developed not without resistance from some colonial
powers. In some cases, they denied that particular territories fell within the
classification of non-self-governing or colonial territory. The General Assembly
considered that it was not for the administering Power to unilaterally determine
whether the territories fall under Chapter XI. Rather, it was for the General
Assembly itself to make this ascertainment. That was for instance the case of the
colonies held by Portugal, since the Portuguese government of that time denied that
they had such status, claiming they were mere overseas provinces.8 Through the
analysis of the situation in the colonies, the General Assembly also established the
general rules for the administration of the territory during the transitional period as
well as the modalities for the decolonization of different territories. The monitoring
of the decolonization process has been ensured up till now through the work of the
Special Committee on the Situation with regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples,
also known as the “Decolonization Committee”, created in 1961 as the subsidiary
organ of the General Assembly exclusively devoted to the issue of decolonization.9
19. In this process, other General Assembly resolutions also played an important role in
the development of the law of decolonization. Of particular importance are the
following:
a) Resolution 1541 (XV) of 15 December 1960: Principles which should guide
Members in determining whether or not an obligation exists to transmit the
information called for under Article 73 e of the Charter;
b) Resolution 2621 (XXV) of 12 October 1970: Programme of action for the full
implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples, which states inter alia that “Members shall intensify
8 See UN General Assembly Resolution 1542 (XV): Transmission of information under Article 73 e) of the
Charter, para. 1, adopted also on 15 December 1960.
9 UN General Assembly Resolution 1654 (XVI) of 27 November 1961: The situation with regard to the
implementation of the Declaration on the granting of independence to colonial countries and peoples.
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their efforts to promote the implementation of the resolutions of the General
Assembly and the Security Council relating to Territories under colonial
domination”, considered that “military activities and arrangements by colonial
Powers in Territories under their administration (…) constitute an obstacle to the
full implementation of Resolution 1514 (XV)” and determined that the
Decolonization Committee “shall continue to examine the full compliance of all
States with the Declaration and with other relevant resolutions on the question of
decolonization” and “[w]here the Resolution 1514 (XV) has not been fully
implemented with regard to a given Territory, the General Assembly shall
continue to bear responsibility for that Territory until such time as the people
concerned has had an opportunity to exercise freely its right to selfdetermination
and independence in accordance with the Declaration”;
c) Resolution 2625 (XXV) of 24 October 1970: Declaration on Principles of
International Law concerning Friendly Relations and Co-operation among
States in accordance with the Charter of the United Nations, whose importance
with regard to the separate and distinct status of colonial territories from the
territories of the administering Powers has already been mentioned. It could be
added that, according to this Declaration, “[e]very State has the duty (…) [t]o
bring a speedy end to colonialism, having due regard to the freely expressed will
of the peoples concerned”;
d) Resolution 35/118 of 11 December 1980: Plan of the Action for the full
implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples, adopted at the 20th anniversary of Resolution 1514 (XV)
and being a development of Resolution 2621 (XXII). For the purposes of this
case, the condemnation of measures of disruption of the demographic
composition of the colonial territories and the request for the immediate and
unconditional withdrawal from colonial territories of military bases and
installations of colonial powers are specifically relevant;
e) Resolution 65/119 of 10 December 2010: Third International Decade for the
Eradication of Colonialism, which declared the period 2011–2020 as the
Third International Decade for the Eradication of Colonialism.
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20. In this regard, it can be said that resolutions of the General Assembly establishing
which territories are subject to decolonization, as well as the determination of the
manner in which these territories must be decolonized, and when the process has
come to an end and consequently the territory ceased to be a “non-self-governing”
one, are more than simple recommendations. Since the General Assembly has the
competence to make these ascertainments, its resolutions are authoritative in this
regard.10
21. In the exercise of those competencies, the General Assembly has adopted resolutions
of a general or particular nature that are applicable to the separation of Chagos from
Mauritius. These are the resolutions cited in the questions submitted to the Court.
22. The Court has abundantly recognized those roles of the General Assembly in the
field of decolonization. The Court has even done so in a similar context to that of the
present advisory proceedings. As discussed in the following part, it referred to the
powers of the General Assembly in the field of decolonization while rejecting the
position of some States that claimed that the matter was a bilateral dispute, thus
confirming the exercise of its advisory jurisdiction.
(3) The existence of a bilateral dispute does not preclude the exercise of the General
Assembly’s decolonization duties and a fortiori that of the Court’s advisory jurisdiction
23. Some States having voted against General Assembly Resolution 71/292, or
abstained, raised the question of the existence of a bilateral dispute as a potential
obstacle to the request for an advisory opinion or the exercise of the advisory
jurisdiction. There is no doubt that a territorial dispute exists between Mauritius and
the United Kingdom on matters directly related to the questions put by the General
Assembly to the Court. However, as will be explained here, this is not an obstacle to
the existence of the Court’s advisory jurisdiction, nor to its exercise, precisely
because the matter falls within the powers of the General Assembly in
decolonization issues.
10 Cf. Virally, Michel; “Droit international et décolonisation devant les Nations Unies”, Annuaire français de
droit international, 1963, vol. IX, pp. 508-541.
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24. The Court has consistently explained when dealing with matters of propriety for the
exercise of its advisory jurisdiction that “the reply of the Court, itself an organ of the
United Nations, represents its participation in the activities of the Organization and,
in principle, should not be refused. By lending its assistance in the solution of a
problem confronting the General Assembly, the Court would discharge its functions
as the principal judicial organ of the United Nations. The Court has further said that
only ‘compelling reasons’ should lead it to refuse to give a requested advisory
opinion”.11
25. In the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
Western Sahara and Wall advisory procedures, some States invoked the fact of the
existence of a dispute and the need of the consent of the parties for the exercise of
jurisdiction. They expressly mentioned that they did not consent to the jurisdiction
of the Court for dealing with the matters submitted by way of an advisory opinion,12
In all these cases, the Court rejected that argument. In the closest advisory procedure
to the present one, Western Sahara, the Court categorically asserted that the State
that raised these objections, a member of the United Nations having accepted the
provisions of the Charter and the Statute, “has not objected, and could not validly
object, to the General Assembly's exercise of its powers to deal with the
decolonization of a non-self-governing territory and to seek an opinion on questions
relevant to the exercise of those powers”.13 This is the same exact situation present
in these advisory proceedings: it refers to the exercise of the powers of the General
Assembly in the field of decolonization, it concerns the decolonization of Mauritius
–then a non-self-governing territory which could not complete its decolonization
process due to the disruption of its territorial integrity–, and the questions raised are
relevant to the work of the General Assembly for the exercise of those powers.
11 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 21, para. 23. Cf. Interpretation of Peace Treaties
with Bulgaria, Hungary and Romania, First Phase, I.C.J. Reports 1950, p. 72; Judgments of the Administrative
Tribunal of the ILO upon Complaints Made against UNESCO, I.C.J. Reports 1956, p. 86; Legal Consequences
for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156,
para. 44; Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 416, para. 30.
12 Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J.
Reports 1950, p. 71; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 24, para. 3; Legal Consequences
of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, pp.
157-158, para. 47.
13 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 24, para. 30.
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26. The Court explained that in some circumstances it could abstain from exercising its
advisory jurisdiction if giving a reply would entail circumventing the principle of
consent to its contentious jurisdiction. Again, what the Court affirmed in 1975 is
applicable in these proceedings: “The situation existing in the present case is not,
however, the one envisaged above. There is in this case a legal controversy, but one
which arose during the proceedings of the General Assembly and in relation to
matters with which it was dealing. It did not arise independently in bilateral
relations”. 14 The question that requires answers from the Court here arose during
the proceedings of the General Assembly in the exercise of its powers in the field of
decolonization. The separation of parts of the territory of Mauritius was explicitly
mentioned by General Assembly Resolution 2066 (XX). Furthermore, as the Court
explained in 1975 and is still relevant to this case, “[i]n any event, the terms of the
request contain a proviso concerning the application of General Assembly
Resolution 1514 (XV). Thus the legal questions of which the Court has been seized
are located in a broader frame of reference than the settlement of a particular dispute
and embrace other elements. These elements, moreover, are not confined to the past
but are also directed to the present and the future”.15
27. What the Court stated in Western Sahara’s advisory opinion applies once again to
the present case:
“The object of the General Assembly has not been to bring before the Court, by
way of a request for advisory opinion, a dispute or legal controversy, in order
that it may later, on the basis of the Court's opinion, exercise its powers and
functions for the peaceful settlement of that dispute or controversy. The object
of the request is an entirely different one: to obtain from the Court an opinion
which the General Assembly deems of assistance to it for the proper exercise
of its functions concerning the decolonization of the territory.”16
28. As in the request for an advisory opinion in Western Sahara, Resolution 2066 (XX)
was “drawn up in the general context of the policies of the General Assembly
regarding the decolonization of non-self-governing territories”.17
14 Ibid., p. 25, para 34.
15 Ibid., p. 26, para. 38.
16 Ibid., pp. 26-27, para. 39.
17 Ibid., pp.30-31, para. 53.
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29. To sum up, this is not a mere territorial sovereignty dispute, for which the Court has
also played a very important role in the exercise of its contentious jurisdiction and
for which the consent of the relevant States is required. The separation of Chagos
from Mauritius in 1965 does not only reveal the existence of a territorial sovereignty
dispute between Mauritius and the United Kingdom, but also that this dispute exists
in a broader context, that of the process of decolonization, which constitutes a matter
of international concern, since the international community through the United
Nations set itself the goal “of bringing to a speedy and unconditional end to
colonialism in all its forms and manifestations”,18 one of which is the situation that
constitutes the object of these advisory proceedings.
30. Finally, it must be recalled that the Rules of the Court themselves envisage the
possibility of the exercise of its advisory jurisdiction in situations in which the
opinion requested relates to “a legal question actually pending between two or more
states”.19
B. The applicable law and its application to the separation of Chagos
31. The present section addresses the law applicable to the questions raised by the
General Assembly, and examines the relevant principles and rules in the light of the
situation created by the separation of Chagos from Mauritius, to wit: respect for the
territorial integrity of Mauritius (1), the right of peoples to self-determination (2),
the breach of the obligation for the administering Power not to adopt unilateral
measures contrary to the decolonization process (3), respect for human rights (4),
and the obligation to settle international disputes through peaceful means (5).
32. As has been established in the prior section, the rules and principles of the law of
decolonization are at the core of the question regarding which the Court is requested
to render an advisory opinion. The two main principles in this field are of relevance
in this particular case: the right of peoples to self-determination and the obligation to
respect territorial integrity. Given that in the present case the non-respect of
territorial integrity leads to the breach of the right to self-determination, the analysis
will start with the former and continue with the latter. Taking into account that this
18 Ibid., p. 31, para. 55.
19 Rules of the Court, Article 102, paras. 2 and 3.
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request for an advisory opinion concerns a matter of decolonization, the rule
prohibiting administering Powers to adopt unilateral measures in matters within the
competence of the General Assembly is also addressed. In addition, as arises from
the second question, this case concerns the expulsion of the inhabitants of the
Chagos Archipelago and the right of Mauritius to implement the resettlement of its
nationals on that territory. As a result, human rights obligations are also at stake, as
well as the sovereign right of the State whose nationals are concerned to ensure their
respect and effective implementation in its territory. Also the obligations for the
administering Power to pursue negotiations in good faith and to settle international
disputes through peaceful means are at the core of this matter. Finally, since the
second question requests the ascertainment of the legal consequences arising from
the continued administration of the Chagos Archipelago by the United Kingdom, the
rules relating to State responsibility must be taken into consideration.
(1) The separation of Chagos infringed the territorial integrity of Mauritius
33. Respect for territorial integrity is recognized in Article 2 paragraph 4 of the Charter
of the United Nations, one of the fundamental provisions of the Charter. It was
mentioned as an autonomous and customary principle in the Nicaragua judgment,20
in which the Court stressed “the duty of every State to respect the territorial
sovereignty of others”. 21 The first judgment rendered by the Court had already
mentioned the particular importance of the rule: “Between independent States,
respect for territorial sovereignty is an essential foundation of international
relations”.22
34. The obligation to respect the territorial integrity of others is not confined to the idea
of exercising State authority over the territory of another State or to avoid trespassing
across borders, but to acknowledge and protect the territorial composition of other
States. It includes a guarantee against dismemberment. This stems from the use of
the noun “integrity”: not only territorial sovereignty is protected, but also the
20 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 424, para. 73.
21 Ibid., p. 111, para. 213 and p. 128, paras. 251-252.
22 Corfu Channel case, Judgment of April 9th, 1949, I.C.J. Reports 1949, p. 35.
14
integrity of this territorial sovereignty.
35. In its Kosovo advisory opinion, the Court stressed the importance of the principle of
respect for the territorial integrity in inter-State relations.23 In international law,
States have the obligation to respect the territorial integrity not only of other States,
but also that of the countries of the peoples who have not been able to achieve
statehood, i.e. who are under colonial rule or foreign occupation.
36. Numerous United Nations resolutions, both those having a general nature and those
referring to particular situations, insist upon respect for the territorial integrity in the
context of decolonization, which includes that of the countries of the peoples entitled
to self-determination.
37. Paragraph 4 of General Assembly Resolution 1514 (XV) declares that “All armed
action or repressive measures of all kinds directed against dependent peoples shall
cease in order to enable them to exercise peacefully and freely their right to complete
independence, and the integrity of their national territory shall be respected”.
Paragraph 6 of the same resolution reads as follows: “Any attempt aimed at the partial
or total disruption of the national unity and the territorial integrity of a country is
incompatible with the purposes and principles of the Charter of the United Nations”.24
Similarly, Resolution 2625 (XXV) proclaims: “Every State shall refrain from any
action aimed at the partial or total disruption of the national unity and territorial
integrity of any State or country”.25
38. The right interpretation of paragraph 6 of Resolution 1514 (XV), as confirmed by
subsequent practice, shows that this paragraph not only protects the territorial
integrity of States that are already independent, but also that of peoples still under
process of decolonization, as in this case, where the process of decolonization has
not been completed due to, precisely, a disruption of the territorial integrity of
Mauritius.
23 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 437, para. 80.
24 Declaration on the Granting of Independence to Colonial Countries and Peoples. Emphasis added.
25 Emphasis added.
15
39. The ordinary meaning of the terms employed by paragraph 6 is clear: States must
refrain from any kind of action whose purpose is the total or partial disruption of the
national unity and the territorial integrity of any country.
40. In paragraph 6, the addition of the expression “or country” to complete the mention
of “any State” is significant and must have a sense. It necessarily implies that the
reference to States was not enough. The context demonstrates that what was at the
core of Resolution 1514 (XV) was the end of colonialism in all its forms. In some
cases, the victim of colonialism through the disruption of territorial integrity can be a
State, but yet in many others they are “colonial countries and peoples”. Indeed, the
entire object and purpose of the resolution was to put an end to all grievances
originated by the persistence of colonialism. The title of the resolution itself disposes
of any pretence that “country” is employed in paragraph 6 as a synonym of “State”:
“Declaration on the Granting of Independence to Colonial Countries and Peoples”. It
is obvious that sovereign States need not to be granted independence.
41. Subsequent practice shows as well that the United Nations has also taken action to
preserve the territorial integrity of different “countries and peoples” not having
attained statehood. Some examples follow. General Assembly Resolution 2063 (XX)
of 16 December 1965 “[r]equests the Special [Decolonization] Committee to
consider, in cooperation with the Secretary-General, what measures are necessary for
securing the territorial integrity and sovereignty of Basutoland, Bechuanaland and
Swaziland”. Security Council Resolution 389 (1976) of 22 April 1976 in its first
operative paragraph “[c]alls upon all States to respect the territorial integrity of East
Timor, as well as the inalienable right of its people to self-determination”.
Particularly, the General Assembly reaffirmed “the inalienable right of the peoples of
Namibia and Zimbabwe, of the Palestinian people and of all peoples under alien and
colonial domination to self-determination, national independence, territorial integrity,
and national unity and sovereignty without external interference”.26 General Assembly
26 UN General Assembly Resolution 33/24 of 29 November 1978: Importance of the universal realization of the
right of peoples to self-determination and of the speedy granting of independence to colonial countries and
peoples for the effective guarantee and observance of human rights, amongst other.
16
Resolution 52/67 of 10 December 1997 affirms “the need to preserve the territorial
integrity of all the Occupied Palestinian Territory”.27
42. Resolution 2066 (XX) of 16 December 1965 is absolutely clear. Its fourth operative
paragraph reads: “[The General Assembly] [i]nvites the administering Power to take
no action which would dismember the Territory of Mauritius and violate its territorial
integrity”.
43. This situation was also mentioned by Judges Kateka and Wolfrum in their dissenting
and concurring opinion appended to the arbitral award in the Chagos Marine
Protected Area Arbitration: “The 1965 excision of the Chagos Archipelago from
Mauritius shows a complete disregard for the territorial integrity of Mauritius by the
United Kingdom which was the colonial power.”28
44. The position of Argentina with regard to the situation under consideration by the
present request for an advisory opinion has been established since the very
beginning. In 1965, when the draft that became Resolution 2066 (XX) was
discussed, the Argentine representative at the General Assembly explained the vote
in favour of that resolution putting particular emphasis on the fifth preambular
paragraph that declared that the detachment of certain islands [those of Chagos
Archipelago] “for the purpose of establishing a military base would be in
contravention of the Declaration [contained in Resolution 1514 (XV)], and in
particular of paragraph 6 thereof”. This is the record of the intervention by
Argentina:
“Mr. GIMENEZ MELO (Argentina) congratulated the sponsors of draft
resolution A/C.4/L.806/Rev. l and Add. 1, relating to Mauritius, on having
demonstrated their concern to safeguard the rights of the people of the
Territory. They had also taken into account the aspirations of the people to
independence and the right of the inhabitants to preserve their territorial
integrity, thereby recognizing a principle which had deep roots in the
consciousness of the Latin American countries and was enshrined in paragraph
6 of the Declaration on the Granting of Independence to Colonial Countries
and Peoples contained in General Assembly Resolution 1514 (XV). He had
one objection to raise, in connection with the fifth preambular paragraph,
27 See also UN General Assembly Resolutions 53/56 of 3 December 1998, 54/79 of 22 February 2000, 55/133 of
8 December 2000 and 56/62 of 14 February 2002 (Israeli practices affecting the human rights of the Palestinian
people in the Occupied Palestinian Territory, including Jerusalem).
28 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Dissenting and concurring opinion
by Judge Kateka and Judge Wolfrum, para. 91. Available at: https://www.pcacases.com/web/sendAttach/1570.
17
which seemed to imply that contravention of the Declaration, and in particular
of paragraph 6, would result only from the establishment of the military base.
In the opinion of the Argentine delegation, there could be a contravention of
paragraph 6 whether military bases were involved or not; for example, it might
be the result of the activities of an industrial corporation. His delegation would
in any event vote in favour of the draft resolution.”29
45. Argentina deems it important to emphasise once again, as it did in 1965, that the
violation of the territorial integrity of Mauritius caused by the detachment of Chagos
was in contravention of the Declaration on the Granting of Independence to Colonial
Countries and Peoples (Resolution 1514 (XV), in particular its paragraph 6,
regardless of what use was given to the detached territory.
46. In Resolutions 2232 (XXI) and 2357 (XXII) –which are explicitly mentioned in the
request for an advisory opinion–, the General Assembly, dealing with a specific
number of non-self-governing territories including Mauritius, expressed its deep
concern for policies aiming “at the disruption of the territorial integrity of some of
these Territories and the creation by administering Powers of military bases and
installations in contravention of the relevant resolutions of the General Assembly”, in
a clear reference to the situation of Mauritius. Operative paragraph 4 of both
resolutions “[r]eiterates its declaration that any attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of colonial Territories and
the establishment of military bases and installations in these Territories is
incompatible with the purposes and principles of the Charter of the United Nations
and of General Assembly Resolution 1514 (XV)”.30
47. The analysis above demonstrates that it is beyond question that States have the
obligation to respect the territorial integrity not only of other States but also that of
the non-self-governing territories in which peoples still have to exercise their right to
self-determination. This is particularly true for those administering them. Mauritius,
even though it had not yet achieved statehood and was still under colonial rule in
1965, was and still is entitled to respect for its territorial integrity. The administering
Power did not have the right to retain part of the territory of one of its colonies at the
time of granting it its independence.
29 UN General Assembly, Twentieth Session, Official Records, Fourth Committee, 1570th Meeting, 26
November 1965, p. 317.
30 UN General Assembly Resolutions 2232 (XXI) of 20 December 1966, and 2357 (XXII) of 19 December 1967.
18
(2) The separation of Chagos infringed the right of the Mauritian people to selfdetermination
48. The right of peoples to self-determination is also a fundamental principle of
contemporary international law, embodied in the Charter of the United Nations at
Articles 1 (2) and 55, Resolution 1514 (XV) and subsequent pertinent General
Assembly resolutions relating to decolonization. Argentina has always recognized
and supported it in its right interpretation, which led to the independence of many
countries of Africa, Asia, the Caribbean and the Pacific. It is to a great extent thanks
to the developments of the Court in the Namibia and Western Sahara advisory
opinions that the legal status of self-determination is no longer questioned. The
Court has certainly played a key role also in the determination of the content of this
principle. In the above-mentioned advisory opinions, the Court affirmed the
customary character of Resolution 1514 (XV) and the rules relating to
decolonization, clarifying the role of the General Assembly in this field, and ruling
out the possibility for administering Powers to unilaterally decide the fate of
territories undergoing the process of decolonisation. The Court also emphasised that,
in order to hold this right, it is necessary to be recognised as a “people”, mentioning
that in some cases the General Assembly has not granted this status to given
populations.31 The 1995 East Timor judgment, while upholding the inability of the
Court to exercise its jurisdiction, underlined the erga omnes nature of the right of
peoples to self-determination.32
49. The Mauritian people was indeed able to exercise its right to self-determination by
deciding to become independent in 1968. However, this exercise was not permitted
to be complete: part of its territory was separated in order to be kept under the
control of the administering Power and the native population of the territory was
deported to other areas. The breach of the territorial integrity of Mauritius led at the
same time to a breach of the obligation to fully respect the right of peoples to selfdetermination.
The exercise of this right contains a territorial dimension. The people
concerned must be able to exercise its rights over the whole territory. The fact is that
31 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 31-32,
paras. 52-53; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 31-33, paras. 54-59. See also pp. 171-
172, para. 88 and p.182, para. 118.
32 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29.
19
the people of Mauritius were prevented from exercising their right to selfdetermination
within the entirety of its territory. Furthermore, part of the Mauritian
people, those of Chagossian origin (Ilois), were prevented from living in their own
land and deported to other islands.
50. One of the elements of the law of decolonization is the prohibition for the colonial
powers to change the demographic composition of the territories under their
administration.33 The deportation of the Mauritian population of Chagos is a blatant
case of demographic change of the territory concerned. This change can result from
both the installation of another population in it or from its depopulation.
51. To sum up, it can be ascertained that the separation of the Chagos Archipelago put
the Mauritian people in the impossibility of exercising to its full extent its right to
self-determination, by not allowing it to extend the exercise of sovereignty over the
entirety of its territory and by preventing the Mauritian population of Chagos from
living in its own territory. Consequently, the process of decolonization was not fully
completed.
(3) The breach of the obligation for the administering Power not to adopt unilateral
measures that are in contradiction with the decolonization process
52. As mentioned above, international practice shows that in the process of
decolonization it is for the General Assembly to determine which territories fall
within the realm of Chapter XI of the Charter and Resolution 1514 (XV), the manner
in which the territory must be decolonized, the steps to be taken for the completion
of the process and when a territory ceases to be included in the list of non-selfgoverning
territories. As a corollary, administering Powers cannot unilaterally adopt
measures that are incumbent upon the General Assembly in the process of
decolonization. As the United Nations practice depicted above demonstrates, this
prohibition against taking unilateral measures includes constitutional, economic and
military measures. In other words, when it comes to matters of international concern
and responsibility dealt with within the UN framework, administering Powers do not
possess the capacity to unilaterally decide on these matters. This is also the
33 UN General Assembly Resolution 35/118 of 11 December 1980, Plan of the Action for the full implementation
of the Declaration on the Granting of Independence to Colonial Countries and Peoples, para. 8.
20
consequence of the “different and separate status” of the territory under the process
of decolonization and the territory of the State administering it, as the Friendly
Relations Declaration cited above indicates.
53. The practice of the General Assembly shows that this organ has not accepted
unilateral action, such as the organization of referenda by colonial powers without
its participation and decision, the attempt at unilaterally delisting a territory from the
category to which Chapter XI and Resolution 1514 (XV) applies, and it has
condemned the use of natural resources in a manner unilaterally decided by the
administering Power, or the establishment of military bases. A unilateral declaration
of independence in a non-self-governing territory was also disregarded. 34 The
exercise of the administering authority in this framework is confined to the purpose
of putting an end to colonialism without conditions. Any other exercise is beyond
the scope of the competencies of the administering Powers.
54. The separation by the administering Power of part of a non-self-governing territory
under process of decolonization in order to keep it under its sovereignty is a
unilateral measure incompatible with international law. Indeed, by definition,
unilateral measures in this regard are inconsistent with the very idea of
multilateralism and in particular with the role and attributions of the United Nations
in this field through the General Assembly and its subsidiary relevant organ.
(4) The separation of Chagos entailed and continues to entails a breach of fundamental
human rights
55. The obligation to respect human rights is a fundamental principle of international
law for the characterization of which the Court also played an important role.35 Both
34 This was the case of the alleged declaration of independence of Southern Rhodesia. See UN General Assembly
Resolution 2024 (XX) of 11 November 1965, and UN Security Council Resolution 216 (1965) of 12 November
1965.
35 Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 32, para. 33;
United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, I.C.J.
Reports 1980, p. 42, par. 91; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports
1996, p. 240, para. 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, I.C.J. Reports 2004, pp. 177-181, paras. 104-113; Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, pp. 243-245, paras. 216-
221, among other decisions.
21
Mauritius and the United Kingdom are parties to a number of conventions in this
field and they are also bound by the obligations stemming from customary law.
56. The separation of Chagos from Mauritius, the deportation of its population and the
impossibility for the Mauritian citizens, particularly those of Chagossian origin, to
resettle in Chagos, affects in particular the rights embodied in Articles 1, 2 and 12 of
the International Covenant on Civil and Political Rights and Articles 1, 2 and 6 of
the International Covenant on Economic, Social and Cultural Rights.
57. The Committee on the Elimination of Racial Discrimination, in its analysis of the
21st to 23rd period reports of the United Kingdom asserted:
“The Committee regrets that no progress has been made in implementing the
Committee’s previous recommendation to withdraw all discriminatory
restrictions on Chagossians (I􀞛lois) from entering Diego Garcia or other islands
in the Chagos Archipelago (see CERD/C/GBR/CO/18-20, para. 12), that the
State party continues to maintain its position that the Convention does not
apply to the British Indian Ocean Territory on the grounds that it has no
permanent population and that the State party has not yet extended the
application of the Convention to the Territory (arts. 2, 5 and 6).
Taking note of the decision, adopted on 18 March 2015, of the arbitral tribunal
constituted under annex VII of the United Nations Convention on the Law of
the Sea in the matter of the Chagos Marine Protected Area Arbitration, the
Committee reiterates its previous recommendation (see CERD/C/GBR/CO/18-
20, para. 12) that the State party has an obligation to ensure that the
Convention is applicable in all territories under its control, including the
British Indian Ocean Territory, and urges the State party to hold full and
meaningful consultations with the Chagossians (I􀞛lois) to facilitate their return
to their islands and to provide them with an effective remedy, including
compensation.”36
58. The Universal Declaration of Human Rights establishes in Article 2 that “no
distinction shall be made on the basis of the political, jurisdictional or international
status of the country or territory to which a person belongs, whether it be
independent, trust, non-self-governing or under any other limitation of sovereignty.”
Preventing Mauritians, particularly those from Chagossian origin (Ilois), from
settling in, or even going to, the Chagos Archipelago is a breach of this provision.
36 Doc. CERD/C/GBR/CO/21-23, 3 October 2016, paras. 40-41.
22
59. Of particular importance for the present case is the obligation for States to respect
the rights declared by Article 13 of the Universal Declaration of Human Rights:
“(1) Everyone has the right to freedom of movement and residence within the
borders of each State.
(2) Everyone has the right to leave any country, including his own, and to
return to his country.”
In this regard, the deportation of the Mauritian population from the Chagos
Archipelago and the continued administration by the United Kingdom of this
territory, preventing Mauritius from implementing a programme for the resettlement
of its nationals, in particular those of Chagossian origin (Ilois), constitutes a breach
of rights declared by both paragraphs of Article 13.
60. To sum up, the decisions and facts leading to the separation of the Chagos
Archipelago from Mauritius, while deporting its inhabitants and preventing their
return, also amounts to a breach of fundamental human rights of Mauritian nationals.
(5) The refusal of the administering Power to negotiate with Mauritius for the full
implementation of its obligation to decolonize the entire territory also constitutes a breach
of the obligation to settle international disputes through peaceful means
61. The obligation of States to settle their disputes by peaceful means is a fundamental
principle of contemporary international law set out in Article 2 paragraph 3 of the
United Nations Charter. The Court has underlined its nature as an obligation of
performance, rather than a principle of abstention: it “has however also to recall a
further principle of international law, one which is complementary to the principles
of a prohibitive nature examined above, and respect for which is essential in the
world of today: the principle that the parties to any dispute, particularly any dispute
the continuance of which is likely to endanger the maintenance of international
peace and security, should seek a solution by peaceful means”.37 The obligation to
negotiate, according to the Court, “constitutes a special application of a principle
which underlies all international relations, and which is moreover recognized in
Article 33 of the Charter of the United Nations as one of the methods for the
37 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
Merits, Judgment, I.C.J. Reports 1986, p. 145, para. 290.
23
peaceful settlement of international disputes. There is no need to insist upon the
fundamental character of this method of settlement”.38
62. In the Pulp Mills case, “[t]he Court has also had occasion to draw attention to the
characteristics of the obligation to negotiate and to the conduct which this imposes
on the States concerned: “[the Parties] are under an obligation so to conduct
themselves that the negotiations are meaningful” (North Sea Continental Shelf
(Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969, p. 47, para. 85).”39
63. Finally, the obligation to negotiate must be performed in good faith, as explicitly
required in Article 26 of the Vienna Convention on the Law of Treaties and largely
referred to by the Court.40
64. In the context of decolonization, this obligation is reinforced by “the duty (…) [t]o
bring a speedy end to colonialism”, as established by the Declarations contained in
Resolutions 1514 (XV), 2625 (XXV) of the General Assembly and stressed by the
Court in its 1975 Advisory Opinion.41
65. The administering Power recognizes the existence of a dispute with Mauritius about
the Chagos Archipelago. This dispute is framed in the context of decolonization.
The administering Power has the obligation to pursue in good faith negotiations with
Mauritius in order to settle this dispute taking into account the ascertainments made
by the General Assembly in the exercise of its powers in the field of decolonization.
It cannot impose any condition to pursue these negotiations and has to take into
account that there is an obligation to put an immediate end to colonial situations, one
of which is the unfinished decolonization of Mauritius because of the situation
examined in this WSA.
38 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 47, para. 86
39 Pulp Mills in the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 67, para. 146.
40 See Application of the interim accord of 13 September 1995 (The Former Yugoslav Republic of Macedonia v.
Greece), Judgment, I.C.J. Reports 2011, p. 684, para. 131; Delimitation of the Maritime Boundary in the Gulf of
Maine Area (Canada/United States of America), Judgment, I.C.J. Reports 1984, p. 292, para. 87; Fisheries
Jurisdiction (United Kingdom v. Iceland), Judgment, I.C.J. Reports 1974, pp. 33-34, paras. 78-79; Fisheries
Jurisdiction (Federal Republic of Germany v. Iceland), Merits, Judgment, I.C.J. Reports 1974, p. 202, para. 69;
Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 268, para. 46; Nuclear Tests (New
Zealand v. France), Judgment, I.C.J. Reports 1974, p. 473, para. 49; North Sea Continental Shelf (Federal
Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Reports 1969, pp.
46-47, para. 85.
41 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 31, para. 55.
24
C. How the Court might address the questions raised by the request for an advisory
opinion
66. In the light of the analysis made above, Argentina respectfully submits that the
following elements should be part of the answers of the Court to the questions raised
by the General Assembly in its request for an advisory opinion contained in
Resolution 71/292:
(1) Question a)
67. The process of decolonization of Mauritius was not lawfully completed when
Mauritius was granted independence in 1968, following the separation of the Chagos
Archipelago from Mauritius, since this separation and the measures taken for its
implementation breached the territorial integrity of Mauritius, and due to this breach,
the right of the Mauritian people to self-determination could not be entirely
exercised over the whole of its territory. The expulsion of the inhabitants of the
Chagos Archipelago and the prevention of their resettlement and of that of their
descendants also constitute a breach to fundamental human rights of the Mauritian
nationals, particularly those of Chagossian origin (Ilois). The separation of the
Chagos Archipelago was also accomplished in disregard of the powers and
competencies of the United Nations General Assembly in the field of
decolonization.
(2) Question b)
68. The consequences under international law arising from the continued administration
by the United Kingdom of Great Britain and Northern Ireland of the Chagos
Archipelago are the following:
(a) The administering Power has the obligation to put an immediate end to the
illegal situation created by the separation of the Chagos Archipelago from
Mauritius;
(b) The administering Power has the obligation to pursue negotiations in good faith
and without conditions with Mauritius in order to render effective the
termination of the illegal situation without delay, including the possibility for
Mauritius to implement a programme for the resettlement on the Chagos
25
Archipelago of its nationals, in particular those of Chagossian origin (Ilois);
(c) All States are under the obligation not to recognize the illegal situation resulting
from the separation of the Chagos Archipelago from Mauritius and not to render
aid or assistance in maintaining the situation created by such separation;
(d) The United Nations, and especially the General Assembly and the Security
Council, should consider what further action is required to bring to an end the
illegal situation resulting from the separation of the Chagos Archipelago from
Mauritius, taking into account the advisory opinion of the Court.
* * *
26