INTERNATIONAL COURT OF JUSTICE
RE: LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHA GOS
ARCHIPELAGO FROM MAURITIUS IN 1965
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT COMMENTING ON
OTHER WRITTEN STATEMENTS
SUBMITTED BY
THE REPUBLIC OF CYPRUS
11 MAY 2018
TABLE OF CONTENTS
I. Introduction ............................................................................................................. 2
II. Jurisdiction of the Court ......................................................................................... 2
III. The Principle of Self-Determination ....................................................................... 3
The Principle ofSelf-Determination is a Continuing Obligation ................................... 3
The Principle of Self-Determination Applies as it Stands Today ................................... 5
The Principle of Self-Determination is Established in Customary International Law ........... 5
The Principle of Territorial Integrity is Part of the Principle ofSelf-Determination ........ .... 7
I. Introduction
1. The Republic of Cyprus considers the main points of principle applicable in the
context of this request for an Advisory Opinion to be the following:
(a) The principle of self-determination establishes continuing obligations for ail
Member States of the United Nations;
(b) The principle of self-determ ination is applicable as it stands today;
(c) The principle of self-determination had emerged as a rule of customary
international law by 1960 at the latest;
(d) The principle of self-determination contains a prohibition on excision of
colonial territory prior to or at the time of independence.
II. Jurisdiction of the Court
2. The Republic of Cyprus reiterates its view that the Court has jurisdiction to render the
Advisory Opinion requested by the General Assembly, and that there are no
compelling reasons preventing the Court from exercising what essentially amounts to
"its participation in the activities of the [United Nations] Organization", which "in
principle, should not be refused".1
3. A number of Written Statements submitted to the Court, however, have taken the
position that the question before the Court is actually a bilateral dispute, and therefore
the Court should decline to exercise its advisory jurisdiction lest it circumvent the
principle of consent to the judicial settlement of disputes.
4. As the Court's jurisprudence makes clear, the fact that a request for an Advisory
Opinion refers to a legal question actually pending between States does not constitute
a compelling reason for the Court to refuse to render the Advisory Opinion.2 Further,
matters of decolonisation are not of exclusively bilateral concern. As UN General
Assembly Resolution 1514 (XV) ( 14 December 1960) indicates, these are matters
which relate to the Purposes and Princip les of the Charter of the United Nations, and
which remain a continuing responsibility of the United Nations.
5. This is reflected in paragraph 6 of General Assembly Resolution 1514 (XV), which
provides that "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". The effect not only of that specific
1 fnlerpretation of Peace Treaties with Bulgaria, /-lunga,y and Rumania (Adviso,y Opinion, First Phase) [ 1950]
ICJ Rep 65 at 71. See also Accordance with International Lmv of the Unilateral Dec/aration of lndependence in
Respect of Kosovo (Advisory Opinion) [201 O] ICJ Rep 403 at 416; Legal Consequences of the Construction of a
Wall in the Occupied Paleslinian Territo,y (Adviso,y Opinion) (2004] ICJ Rep 136 at 156.
2 Legat Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Adviso,y Opinion)
[2004] ICJ Rep 136 at 157-58; Western Sahara (Adviso,y Opinion) [ 1975] ICJ Rep 12 at 27; Legat
Consequences for States of the Conlinued Presence of South Afi'ica in Namibia (South West Africa)
Notwithstanding Security Counci/ Resolution 276 (1970) (Adviso1y Opinion) [ 1971] ICJ Rep 16 at 24.
2
prov1s1on, and of that resolution in general, but of the General Assembly's
competence over matters of decolonisation as a whole, is precisely to preclude the
characterisation of those matters as being of 'purely bilateral' concem and to restore
some semblance of balance of power between the administering power and the selfdetermination
unit.
6. This is so even when discussing the question of validity of consent to detachment of
part of the territory of a self-detennination unit in an agreement between that selfdetermination
unit and the administering power. Any consent in those circumstances,
where one entity's independence is essentially, if implicitly, conditioned upon its
simultaneous consent to whatever requirements the administering power establishes, is
unlikely to be 'free', and at any rate is not a purely bilateral question. Moreover, any
such ostensible consent cannot preclude the continuation of obligations relating to the
lawful completion of the process of decolonisation, or deprive them of their universal
character as a matter of importance and interest to the community of States as a
whole, and as a matter falling within the scope of competences of the United Nations
General Assembly.
7. There is thus no compelling reason for the Court to refuse to exercise the jurisdiction
that it undoubtedly has to respond to the questions put to it by the General Assembly.
III. The Principle of Self-Determination
The Principle of Self-Determination is a Continuing Obligation
8. Certain Written Statements seek to separate the two questions addressed to the Court
by the General Assembly, and portray the first question as one requiring the
determination of the content of the principle of self-determination as it may have
stood in the 1960s, or more specifically in 1968 and/or 1965. However, the question
before the Court refers to the lawful completion of the process of decolonisation.
Decolonisation is a process, not a single act; and until the process is entirely
completed it generates continuing obligations for both the administering State and the
international community of States as a whole, intertwined as it is with the principle of
self-detennination. This is also highlighted by the second question addressed to the
Court by the General Assembly, which is not conditioned on any specific response to
the first question. As such, the two questions are to be read together, each one
informing the other.
9. As the Republic of Cyprus stated during the debates on General Assembly Resolution
1514 (XV), "[t]he principle of self-determination [is] ... the cornerstone of the United
Nations and the master key of the Charter."3 This undoubtedly continues to be so; and
as such it is the content of the principle of self-detennination as it stands today that
3 Official Records of the United Nations General Assembly, 151h session, 945•h plenary meeting, UN Doc
A/PV .945 ( 1960), para 87.
3
ought to be determined and applied by the Court in responding to the questions put to
it by the General Assembly.4
1 O. The principle of self-determ ination was enshrined in Article 1 (2) of the UN Charter in
1945 as a "Purpose" of the United Nations, "giving the political principle that had
been so disputed since the nineteenth century a clearly programmatic character for the
new Organization", as the Simma Commentary on the Charter puts it.5 That is, the
principle was, and remains, a legal principle to which UN Member States are
committed and by which their conduct is directed. The principle indisputably binds
them legally as a treaty obligation, quite apart from its status as a principle of
customary international law. Again, as the Simma Commentary puts it:
"Although Art. 1 (2), due to its programmatic character, cannot define in detail
the content and scope of a right to self-determination, it sets forth beyond
dispute that it forms part of the law of the Charter and is binding upon ail
members of the UN."6
11. The Republic of Cyprus takes the position that the first and most important point in
answering the Request for the Advisory Opinion should be that self-determination is,
and has been since 1945, an "elementary structuring principle of the legal world order
created by the UN Charter."7 lt was and is binding upon the United Kingdom, as on
ail other UN Member States; and the United Kingdom, along with ail other UN
Member States, is under a continuing and-by virtue of Article 103 of the UN
Charter-supreme obligation to act in accordance with that principle. It is recalled
that, according to Article 103 of the UN Charter, "[i]n the event of a conflict between
the obligations of the Members of the United Nations under the present Charter and
their obligations under any other international agreement, their obligations under the
present Charter shall prevail".
12. The principle of self-determination creates enforceable legal obligations, irrespective
of whether self-determination is (and was at different times) better characterised as a
"principle" or as a "right"-a matter to which a number of Written Statements
devoted significant attention. Self-determination is a principle with normative
consequences: UN Member States must act in conformity with it.
13. The core principle of self-determination remains a "Purpose" of the United Nations
and a basic Principle of the UN Charter. Its implementation is currently monitored by
the UN Special Committee on the Situation with regard to the lmplementation of the
4 On the duty to comply with international law as it evolves see the statement of Arbitrator I-luber in Island of
Palmas Case (Netherlands v United States) (Award) ( 1928) li UNRIAA 829 at 845: "As regards the question
which of different legal systems prevailing at successive periods is to be applied in a particular case (the socalled
intertemporal law), a distinction must be made between the creation of rights and the existence of rights.
The same principle which subje[cjts the act creative of a right to the law in force at the time the right arises,
demands that the existence of the right, in other words its continued manifestation, shall follow the conditions
required by the evolution of the law".
5 B Simma et al, The Charter of the United Nations: A Commenta,y (3'd edn .. 2012), p. 3 15.
6 B Simma et al, The Charter of the United Nations: A Commentary (3'd edn., 2012), p. 316.
7 B Sim ma et al, The Charter of the United Nations. A Commenta,y (3'd edn., 2012), p. 3 15.
4
Declaration on the Granting of Independence to Colonial Countries and Peoples (also
known as the Special Committee on Decolonization, or Committee of 24).8
14. International law recognizes two situations where the right to self-determination
clearly accrues: (a) where a people are subject to colonial rule and (b) where a people
are subject to alien subjugation, domination or exploitation outside a colonial context.
This is codified, inter alia, in paragraph I of General Assembly Resolution 1514
(XV), as well as in General Assembly Resolution 2625 (XXV), and also recognised
and confirmed by, inter alia, the Supreme Court of Canada in the case of Reference re
Secession of Quebec [1998] 2 SCR 217 (at paragraphs 132-133). The principle of
self-determination includes the right to territorial integrity (on which see further paras
20-26 below). The principle of self-determination is widely regarded as having the
status ofjus cogens (on which see further para 19 below).
The Principle of Self-Determination Applies as it Stands Today
15. Member States of the United Nations are under a continuing and supreme duty under
the UN Charter to pursue and implement the principle of self-determination. The
essence of the principle of self-determination is that it persists until such time as it has
been fully realised; and an administering State can be called upon to implement, or
continue or complete the implementation of, the principle as it then stands, at any
time.
16. The Republic of Cyprus accordingly considers that the questions put by the General
Assembly require the Court to give an Opinion based on the law as it stands today,
reflecting the continuing obligations in relation to self-determination and
decolonisation under international law. Such determination does not require the
retrospective application of 2018 law to conduct which occurred in the 1960s; rather it
requires consideration of the present obligations of (current and former) administering
States.9 ln the current advisory proceedings, that means that the absence of continuing
consent to the excision and/or the administration of a parce! of territory from an area
granted independence in the 1960s triggers the obligation today to give effect to the
principle of self-determination in relation to that excised parce! of territory, including
by entering into negotiations aimed at resolving its future status.
The Principle of Self-Determination is Established in Customary International Law
17. The Republic of Cyprus considers that the principle of self-determination has long
been established as a principle of customary international law, in addition to its status
8
See< https://www.un.org/en/decolonization/specialcommittee.shtml >.
9
See, e.g., the Separate Opinion of Judge ad hoc Franck in Case Concerning Sovereignty over Pu/au Ligitan
and Pu/au Sipidan (lndonesia v Malaysia) (Application by the Philippines for Permission to lntervene) [2001]
ICJ Rep 575 which stated at 655: "Under traditional international law, the right to territory was vested
exclusively in rulers of States. Lands were the property of a sovereign to be defended or conveyed in accordance
with the laws relevant to the recognition, exercise and transfer of sovereign domain. ln order to judicially
determine a claim to territorial tille erga omnes, it was necessary to engage with the forms of international
conveyancing, tracing historie title through to a critical date or dates to determine which State exercised
territorial sovereignty at that point in lime. Under modern international law, however, the enquiry must
necessarily be broader, particularly in the context of decolonization. ln particular, the infusion of the concept of
the rights of a 'people' into this traditional legal scheme, notably the right of peoples to self-determination,
fundamentally allers the signilicance of historie title to the determination of sovereign title."
5
as a Charter obligation of UN Member States. Substantial support for this view can be
found in general terms in the State practice of the 1950s in moving towards
decolonisation. Admittedly, the practice in relation to self-determination from 1945 to
1960 was essentially the practice of States that were anyway bound by their
obligations under the Charter to pursue the principle of self-determination; and
practically ail administering States were UN Members throughout this period.10 While
compliance with a Charter obligation may not in itself reveal the opinio juris
necessary to establish self-detennination as a principle or rule of customary
international law as distinct from its status as a principle binding under the UN
Charter, 11 the language of many relevant General Assembly Resolutions during this
period should be taken into account as a reflection of the relevant opinio juris of
States.12 ln particular, UNGA Resolution 1514 (XV) of 1960, perhaps the most
important in that line of Resolutions, was couched in clearly normative terms,
declaratory of legal ru les.
18. There is thus a body of practice and opinio juris that for practical purposes puts the
legal validity and general acceptance of the principle of self-determination beyond
doubt. The Republic of Cyprus considers that the principle of self-determination had
emerged as a rule of customary international law by 1960 at the latest, in which year it
was reflected in Resolution 1514 (XV) and 17 newly-independent States joined the
UN.13 By that year the legal potency of the principle had been irreversibly established.
19. lt is widely accepted that the principle of self-determination has the status of a
peremptory norn1 of international Iaw, 14 with the consequences (among others) that no
State can except itself from the obligation to implement the principle when called
upon to do so by a 'people' duly invoking the right to self-determination, that no
10 Among administering States ltaly, Portugal and Spain became UN Member States in 1955.
11 North Sea Continental She/f Cases (F'ederal Republic of Germany v Denmark, f'ederal Republic ofGermany
v Netherlands) (Judgment) f 1969] ICJ Rep 3 at 41, 43; Military and Paramilita,y Activities in and against
Nicaragua (Nicaragua v United States of America) (Judgment (Merits)) [1986] lCJ Rep 14 at 96--97.
12 The Court has stated that opinio juris for a customary rule may be derived from the language of General
Assembly resolutions dcaling with the principle of self-determination: Mi/ita,y and Parami/i1a,y Activities in
and against Nicaragua (Nicaragua v United States of America) (Judgment (Merits)) [ 1986] ICJ Rep 14 al
100.0n the significance of General Assembly resolutions in providing evidence of the existence of opinio juris
see legality of the l'hreat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, para 70.
13 Cameroon, Central African Republic, Chad, Congo (Brazzaville) [now Congo], Congo (Leopoldvillc). [Now
Democratic Republic of the Congo], Cyprus, Dahomey [now Republic of Benin], Gabon, Ivory Coast lnow Côte
d'Ivoire], Malagasy Republic [now Madagascar], Mali, Niger, Nigeria, Senegal, Somalia, Togo, Upper Volta
[now Burkina Faso].
14 International Law Commission, Draft Articles on Responsibility of States for International/y Wrongful Acts,
with Commentaries, in "Report or the International Law Commission on the Work of its Fifty-third Session" in
(2001) 11(2) YILC 30, 85 (paragraph 5 of the Commentary to Draft Article 26): ·'The criteria for identifying
peremptory norms of general international law are stringent. Article 53 of the 1969 Vienna Convention requires
not merely that the norm in question should meet ail the criteria for recognition as a norn, of general
international law, binding as such, but further that it should be recognized as having a peremptory character by
the international community of States as a whole. So far, relatively few peremptory norms have been recognized
as such. But various tribunals. national and international, have affirmed the idea of peremptory norms in
contexts not limited to the validity of treaties. Those peremptory nonns that are clearly accepted and recognized
include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and
torture, and the right to self-determination."'
6
'people' can permanently alienate its right to self-determination, and that no third
State is entitled to condone a breach of the principle of self-determination.15
The Principle of Territorial Integrity is Part of the Principle of Self-Determination
20. Paragraph 6 of UNGA Resolution 1514 (XV) stipulates that:
"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."
The United Kingdom has argued that this text was merely "aspirational" and did not
set out binding legal obligations. 16 However, the Republic of Cyprus considers that
the text of paragraph 6 represents an authoritative statement of the content of the
principle of self-determination contained in the Charter. lt is difficult to see how a
provision describing conduct as "incompatible" with the Purposes and Principls of
the UN Charter can be said to be "aspirational".
2 I. The natural corollary of the principle of territorial integrity is that an exercise in the
implementation of the principle of self-determination that does in volve the disruption
of the national unity or the territorial integrity of a country would be contrary to the
UN Charter, unlawful, and legally ineffective. For the community of States as a
whole, any such exercise would attract a duty of non-recognition.17
22. A separate question arises as to how the territory of a colony or other non-selfgoverning
territory is to be assessed. In particular, the United Kingdom has argued
that the Chagos Archipelago did not form part of the territory of Mauritius as a colony
and therefore, even if there were a relevant right to territorial integrity, it would not
operate to prevent the perpetuation of the separateness of the Chagos Archipelago
from Mauritius. Mauritius has taken the opposing position, that the Chagos
Archipelago was integral to its territory during colonial times. The Republic of
Cyprus considers the following principles to be directly relevant:
(a) The assessment of what territory is "integral" to a colony or other non-selfgoverning
territory is highly fact-specific.
(b) Factors that may be relevant to that assessment in a given case are likely to
include: (i) the legal and administrative arrangements in respect of the colony
15 Vienna Convemion on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into
force 27 January 1980) Article 53; International Law Commission, Articles on Responsibility of States for
fmernationally Wrongful Acts, adopted through United Nations General Assembly Resolution 56/83, UN Doc
A/RES/56/83 (200 I) Article 41; Legat Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithslanding Security Council Resolution 276 (/970) (Adviso,y Opinion)
r1971] ICJ Rep 16 at56.
16
United Kingdom Written Statement, paras 8.33-8.36.
17 International Law Commission, Articles on Responsibility of States for International/y Wrong/iil Acis, adopted
through United Nations General Assembly Resolution 56/83, UN Doc A/RES/56/83 (200 I) Article 41; Le gal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (/970) (Advisory Opinion) [1 971] ICJ Rep1 6 at 56.
7
or other non-self-governing territory; (ii) the territory's geographical position
in relation to the rest of the colony or other non-self-governing territory; and
(iii) social, cultural, political and economic ties between the territory and the
remainder of the colony or other non-self-governing territory.
( c) Further, there may be features in an agreement to excise the terri tory in
question (such as the fact that the administering State paid compensation in
exchange for the excision, or that it entered into undertakings regarding the use
and/or potential future disposition of the territory) which support the view that,
prior to the excision, the territory was integral to the colony or other non-selfgoveming
territory.
23. The United Kingdom has asserted that the Republic of Cyprus (among other States)
"did not interpret paragraph 6 [ of General Assembly Resolution 1514 (XV)] as
prohibiting the adjustment of boundaries in the period preceding independence"18•
That is not an accurate characterisation of the Republic's position in relation to
paragraph 6.
24. The Republic's statement in the paragraph to which the United Kingdom referred (but
without quoting the text), said that paragraph 6 is "essential in order to counter the
consequences of 'divide and rule', which often is the sad legacy of colonialism and
carries evil effects further into the future" 19
• This statement, whilst inter alia also
affirming the prohibition on the use of force in Article 2( 4) of the Charter, indicated
the Republic's position that matters regarding the territorial integrity of a colony or
other non-self-governing territory are subject to a general prohibition on the excision
of territory therefrom, and that any such excision of territory prior to or at the time of
independence is inherently suspicious and in any case is not permissible without the
free and continuing consent of those entitled to exercise the right of selfdeterm
ination.
25. Belize, in its Written Statement, correctly refers to the Republic's statement in order
to support the claim that paragraph 6 was "understood by States during the drafting of
[Resolution 1514 (XV)] as an important prohibition on the dismemberment of nonself-
governing territories by the administering power prior to independence".20
26. The Republic of Cyprus offers these observations on the issues of principle to which
the present request for an Advisory Opinion gives rise. The observations should not
be understood as defining the position of the Republic in relation to any specific
situation.
18 United Kingdom Written Statement, para 8.41.
19 Official Records of the United Nations General Assembly, 151h session, 9451h plenary meeting, UN Doc.
A/PY.945 (1960), para 93.
20 Belize Written Statement, para 3.4.
8
Observations écrites de Chypre