LEGAL CONSEQUENCES OF THE SEPARATION
OF THE CHAGOS ARCHⅢELAGO FROM MAURITIUS IN 1965
(Request for advisory opinion)
馳練随C軸毒蛾pO櫨Se巾ひ車Or S融桝はiss o謡
addressed to the
Intemational Court of Justice
bythe
Republic of the Marshall Islands
in accordance with
the order ofthe Court
Of 17 January 201 8
I. INTRODUCTION
l. On 22 June 2017, the General Assembly ofthe United Natious adopted resolution A/RES/71/292 in
which, referring to Article 65 ofthe Sta請e ofthe Court of Intemational Justice, it requested the Court
to give an advisory opmlOn On the following conclusions:
(a) `髄娃p馳C粥Ofd歌粗め旺盛蜜艶め轍鮒読経高郷釦砂嚢艦頭鵬d流血組蝉靭壷出窓獅弼邸融疏
壁e血燐8あ的研三時洗§印ar菰粗ofむC血go雷Arc軽e軸や缶om M那壷確組帥闘i嘩
regard to inte皿ational law, including obligatious reflected in General Assembly Resolutions 1 5 14
(XV) of 14 Deceinber 1960, 2066 (ⅩX) of 16 December 1965, 2232 (XXI) of20 December 1966 and
2357 (XXⅡ) of 19 December 1967?”;
(b) What are the consequences under intemational law, including 。bligations reflected in the aboveme
血ioned reso庇ions㍉ITising from the con血med administration by the United Kingdom of Great
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Mauritius to implement a program for the resettlement on the Chagos Archipelago of its nationals, in
pa証cular血ose of Chagossian origin?”
2. The Request for an Advisory Opinion was transmitted to the Court by the Secretary-General of血e
United Natious in a letter dated 23 June 2017 which was飢ed with the Registry on 28 June 2017.
3. H蛇Co職膿叙ed 15 May 2018 as the tine-龍mit wiぬin w址ch餌ぬer wr出en comme血s onぬe
question’in response to prior submissions’may be presented to the Court in accordance with Article
66, Paragraph 2, Of也e Statute.
4. Having presented its written statemeut on OI March 2018’the Republic ofthe Marshall Isl狐ds
wishes to avail itself of the possibilfty of fumishing written comments and, in respecting the time l血it
fixed, Submits the following considerations to the CourL
II. PRELIMINARY CONSIDERATIONS
a) Questions presented are regarding decolonization, and not about sovereignty
5. The written statemeut offered by the United Kingdon introduces血e argument that the questious
preseuted to the Intemational Court of Justice which would resoIve sovereignty and thus are bilateral in
捌如榔㍉ whieh therefore should nof be decided in a mu榔ateral prcoess by means of an Advisory
・Op血io軋
6. The Marsha11 Islands has another view. The purpose ofthe request for an advisory op皿On On
questions `a’and ・b・ is not to conclude or肌y resoIve questions ofsovereignty’Which is neither
within the powers ofthe General Assembly’s majority vote, nor the function of an advisory opinion.
Such a complete conclusion of the issue of sovereignty would have essential bilateral actions・ The
nature and function of a non-binding advisory op血on requested by a mu皿ateral e血ity3 relat血g to
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b血g to the co調a case in need ofbinding resolution, and one in which suchjudgment would be
binding as to a mutual agreement on sovereignty.
7. Clarifying relevant p血ciples of intemationa=aw’inchading in regards to decoIonization and the
Chagos situation, regarding decolonization膏directly relevant to and may infom discourse within血e
General Assembly regarding both Chagos, Which remains under its purview ofthe basis ofboth Chagos
SPeCi宜ca11y, regarding prior resolutions, and decoIonization generally, regarding active agenda items.
8. It is important to note that if intemationa=aw was clear about decoIonization, there would be no
need for an advisory opinion. That 3 1 states and one organization糾ed wr誼en statements, With a range
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advisory opinion is relevant to multilateral discourse within the General Assembly.
b) The non-binding language of Resolutio皿1514 a皿d ResoIution 2066
9. The United Kingdom posits that General Assembly Resolution 1 5 14 and General Assembly
Reschtion 2066 do not provide binding language that would sustain the a堪ument that Mauritius’
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COustruCtion is that, aIthough with non-binding lang肋ge, the resolutio腿should not be read as dead
letter law or wi也out legal e熊光t, Or the whole purpose of血e General Assembly would be questioned.
10. According to Article 1 3 0f the Charter ofthe United Nations,
[t]he General Assembly shall initiate studies and make recommendatious for the purpose
o曇
a. promo血g血temationaI co-OPeration in the poIitical fieid and encouraging the
PrOgreSSive development of intemational law and its codification;
b. promoting intemational co-OPeration in the economic, SOCial, ou血鵬l,
educational, and health fields, and assisting in the realization of human rights and
fundamental freedoms for a11 wi血out distinction as to race, SeX, 1anguage, Or religion.
1 1. Th餅efore, in that the General Assembly reso鵬まon does not provide binding l弧guage, it should be
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law, eVen aS di節er血g views and perspectives admittedly remain‘ “The resolutions passed by the GA
can then be successfully presented as crystallizing, formulating and expressing the view or api血on of
血e intemational com剛mity of states.,,1
12. General Assembly Resolution 2066 was a tool used to express the deep concem the intemational
COmm皿jty had with the appare血inequdy of the decoIonization process ofMauritius, Although not a
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necessary on the detachment of Chagos and the entire process of decoIonization ofMauritius.
13. Even if one argues that no formal approval was necessary, it is unquestiohable that the existence of
a fomal rejection should be enough reason to impede the contin脚tion of an unfair agreement・
14, General Assembly Reso山tion 2066 was the formal rqiection to the detachment agreement as of
Ope簾孔ti鴻P税鮭準で呼h 4:
l vAN DEN RUL, Celine. Why Have Resolutions ofthe UN General Assembly IfThey Are Not Lega=y Binding?
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血d血勤し卸之0>
hVites the administering Power to take no action which would dismember the Territory
Of Mauritius and violate its territorial integrity.
1 5. The fact that detachment of Chagos was so scrutinized by the General Assembly corrupts the
decoIonization process of Mauritius. For this reason, heightened scrutiny should be applied in
evaluating the issue of decoIonization in the context of Mauritius - and elsewhere, and in evaluating
agreements reached therein.
C) Vitiated consent in the agreement of 1965
16. The United Kingdom states there are two occasions designated by the Viema Convention in which
COnSent WOuld be vitiated hence invalidating an intemational agreement:
Article 51. COERCION OF A REPRESENTATIVE OF A STATE
The expression ofa State’s consent to be bound by a treaty which has been procured by
the coercion of its representative through acts or t血eats directed against him shall be
Without any legal effect.
Article 52. COERCION OF A STATE BY THE THREAT OR USE OF FORCE
A treaty is void ifits conclusion has been procured by the threat or use of force in
Violation of the principles of intemational law embodied in the Charter of the United
N加ions.
1 7. Therefore, acCOrding to the United Kingdom’s argunent, COnSent tO detachment of Chagos by
means ofthe agreement of 1 965 must be considered valid since none ofthe abovementioned theories
are applicable.
1 8. This argunent should not be accepted by the court because the Viema Convention is not applicable
to the agreement of 1965.
1 9. According to Article 4 ofthe Viema Convention,
[w]ithout pr匂udice to the application of any rules set forth in the present Convention to
Which treaties would be subject under intemational law independently of the
Convention, the Convention applies only to treaties which are concluded by States
after the entry into force of the present Convention with regard to such States.
20. Not only Mauritius was not an independent state at the time of celebration ofthe agreement that
resulted in Chagos’detachment, but also the Viema Convention was adopted only in 1 969 what
PreVentS the application of such law to prior agreements.
2 1. In view of the abovementioned article, the principle of non-retrOaCtivity was recognized by the
Viema Convention, PreCluding the application of血e convention to the present case. Moreover, the
COIonial govemment of Mauritius was in the gemination of statehood, and not yet a餌I State. The
Convention is not the correct lens, but rather the decoIonization process as defined within the General
Assembly must be used to evaluate the context and nature wherein an administering authority was
dealing with selfLbenefit with a people dependent upon it㍉md seeking independence. There is an
Obvious and inescapable context which demands cIoser scrutiny.
d)The need of a plebiscite prior to detachment
22. As provided in Mauritius’written statement, the free and voluntary choice ofthe peoples of Chagos
WaS a neCeSSary SteP tO Validate the detachment ofChagos from Mauritius, On the basis ofthe right of
SelfLdetemination. This could only be achieved by means of a referendum or a plebiscite, Which did
not occur in Chagos’detachment. And, eVen With such plebiscites, heightened scrutiny is still to be
applied wherein the administering authority has both seIfLbenefit as we11 a higher intemational
expectation of responsibility and sacred trust.
23. Obtaining the free and voluntary choice ofthe peoples invoIved in a merger or division of territory
WaS VaStly used by the United Kingdom by organizing plebiscites in several of its coIonies. The fact
that these plebiscites occurred before and after the detachment of Chagos, nu11ifies the point that
referenduns were a new policy of the administrating power. On the contrary, the absence of plebiscite
in Chagos and Mauritius only proves the point of an organized action, With the objective of attaining
the intended results, Which were the dismembement of Mauritius’territory.
24. The Marshall Islands, On the basis of a plebiscite organized during the eventual process of UN
Trusteeship temination, has agreed to host an ongomg military installation of the United States at
Kwqjalein Atoll. Although not without challenges or controversy, the agreement was achieved as part
Ofthe democratic approval of a Compact with the United States, and includes a long-term lease
agreement, a joint management committee framework between the two nations to raise and resoIve
mutual differences, and jointly-adopted envirormental standards. Indeed言t is certainly possible that a
Small island and Atoll nation has the free will and capacity to enter a host country arrangement, best
expressed in deliberate sovereign state-tO-State frameworks. While the Marsha11 Islands maintains that
heightened scrutiny should be applied in the context wherein there is selfLbenefit of the administering
authority, it is also nonetheless possible to evidence freewill when expressed in joint or equal state-tOstate
frameworks.
IⅡ. CONCLUSIONS
25. The advisory opinion ofthe Court should not be focused on concluding an essential question of
sovereignty - aS tO Whether Chagos should remain with the United Kingdom or be returned to
Mauritius, - but rather to those principles of intemational law should apply in order to reassure equity
to proces誓that were guided by power imbalances (a process not exclusive to Mauritius) and relevant
to discussIOnS Within the General Assembly. The fact that 3 1 states and one organization鍋ed wr誼en
StatementS SuPPOrtS the argunent that a multilateral debate is necessary and relevant・
26. The principle of non-retrOactivity recognized by in Article 4 of the Viema Convention precludes
the application ofthe rules for vitiated consent defined by Article 5 1 and 52 ofthe Viema Convention
to the agreement that resulted in Chagos’detachment. The lens of decoIonization must be applied in
evaluating such agreements and in considering the need for heightened scrutiny of situations where an
administering authority deals in selfLbenefit with a dependent people.
27. Not only a referendun or plebiscite was a necessary step to validate the detachment of Chagos’this
was the procedure the United Kingdom used in several other cases, PrOVing that it was feasible
recognizing the free and voluntary choice of the peoples invoIved. Although heightened scrutiny
should sti11 be applied when the administering authority has selfbenefit from a dependent people, One
Can distinguish between sovereign frameworks and detachment.
Submitted 1 1 May 2018
Pemanent Mission ofthe Republic ofthe Marshall Islands to the United Nations
Written Comments of the Marshall Islands