DECLARATION OF JUDGE ABRAHAM
[Translation]
I have some reservations about how the Advisory Opinion deals with the principle of
“territorial integrity” in the context of the decolonization process. This question is addressed in
paragraphs 153 to 160 of the Advisory Opinion. The Court’s discussion of it is, in my view,
somewhat ambiguous. For this reason, I wish to set out below my opinion on this subject.
I agree, in principle, with the idea that respect for the territorial integrity of a non-selfgoverning
territory is “a corollary of the right to self-determination”, as asserted in paragraph 160
of the Opinion. However, this is only the case — at least indisputably and by reference to the
relevant time, i.e. 1965-1968 — if the colonial Power’s obligation to respect the “territorial
integrity” of the territory concerned is given the following scope. What this obligation seeks to
prevent is amputation of part of the territory under colonial administration by a unilateral decision
of the administering Power, at the time of or in the period immediately preceding that territory’s
accession to independence, for the sake of convenience, for strategic or military interests, or, more
generally, because of the political or economic interests of the colonial Power itself.
The Court should have stopped there, venturing no further than the above definition, which
provides sufficient legal basis for it to respond to the questions before it in the present case, once it
found that the detachment of the Chagos Archipelago “was not based on the free and genuine
expression of the will” of the Mauritian people, as noted in paragraph 172. Indeed, it having been
established that the people of Mauritius as a whole did not give their consent (since that consent
was not given in due and proper form) and since the British authorities at no point sought to
ascertain the will of the population of the Chagos Islands itself, the fact remains that the
detachment of the Chagos Archipelago arose from a unilateral decision of the administering Power,
motivated by the pursuit of political, strategic or military advantage.
The Advisory Opinion appears to go beyond that, however, by employing, in paragraph 160,
general and abstract formulations which could be understood as giving the principle of “territorial
integrity” a near absolute scope, which, in my view, at least under customary international law as it
existed at the relevant time, would be highly questionable.
The issue is the following. We know that the boundaries of colonial territories
(administrative boundaries separating entities subject to the same sovereign) were defined, by the
colonial Powers, somewhat arbitrarily in certain cases, sometimes for the sake of administrative
convenience, sometimes for strategic or other such reasons. There was thus no guarantee that the
population of a colonial entity was sufficiently homogenous to be animated by a clear common will
when it came to deciding its future.
In the case of Mauritius, for example, while it is true that the Chagos Archipelago always
formed part of the colony of Mauritius from the latter’s cession to the United Kingdom in 1814
until 1965, the geographical boundaries of the colonial entity composed of “the island of Mauritius
and its dependencies” varied over time, by decision of the British Government. The Seychelles
Islands were detached from Mauritius to form a separate colony in 1903 and, in the years that
followed, other islands were detached from the colony of Mauritius to be included in the new
colony of Seychelles. Many other examples could be drawn from colonial history, and not only that
of the United Kingdom, to illustrate the rather fluid character of colonial boundaries.
It could therefore happen — and in fact did happen in several cases — that the populations
of various geographical sub-units within a single colonial entity (according to the boundaries fixed
by the administering Power) might express different preferences in the course of the decolonization
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process. I doubt that in such a circumstance the colonial Power had an obligation to accede to
differing requests originating from the various geographical sub-units concerned. But I also doubt,
and even more so, that by acceding to them — by agreeing, for example, to partition a territory
because the population of a sub-unit of that territory had clearly and freely expressed its will not to
take the same path as the rest of the territory — the colonial Power could be regarded as having
breached its obligations under customary international law, on the grounds that it had violated the
principle of the “territorial integrity” of the territories under colonial administration. I believe this
would be to give too broad a scope to that principle. As I said earlier, it undoubtedly aims to
prevent the arbitrary break-up of a territory (i.e. dictated solely by the interests of the colonial
Power). It cannot, in my view, preclude taking into account, when the particular circumstances so
warrant, the freely expressed will of the different components of the population of that territory,
even if that leads to partition as a solution. It would, moreover, be paradoxical for the principle of
the right of peoples to self-determination enshrined in the Charter — the very foundation of the
entire legal edifice relating to decolonization that has been constructed over decades — ultimately
to be used as an argument against taking account of the genuine and freely expressed will of the
populations concerned. This would be to regard territory as being sacred in some way, its
indivisibility taking precedence over the will of the people.
An examination of State practice and the opinio juris at the relevant time confirms the
foregoing conclusion under customary international law (the only law on which the Court may base
its Advisory Opinion in these proceedings). In several cases, it has happened that various sub-units
of a single colonial entity — as delimited by the administering Power during the period preceding
accession to independence — have taken different paths during the decolonization process without
this being contested, sometimes (as in the case of the British colony of the Gilbert and Ellice
Islands in 1974) even with the co-operation of the competent organs of the General Assembly.
Moreover, following the adoption of resolution 1514 (XV) of 14 December 1960, which, as the
Court rightly notes, represented a “defining moment” in the evolution of the customary
international law on decolonization (para. 150), the General Assembly, in the series of resolutions
it adopted on this question between 1966 and 1974, consistently referred to the “territorial
integrity” of colonial entities. But it generally did so by tying “territorial integrity” to “national
unity” and, frequently, to the condemnation of the establishment by administering Powers of
military bases on the territories concerned (see, for example, resolution 2232 (XXI) of
20 December 1966, cited in paragraph 35 of the Advisory Opinion). The adoption of these
resolutions does not, in my view, indicate that States espoused an absolutist conception of the
principle of territorial integrity, which would preclude the partition of a colonial territory during the
independence process when such a partition allows the freely expressed will of the populations
concerned to be taken into account. This is the case even if the partition is not approved by the
majority of the population of the colonial territory taken as a whole. We know that the British
authorities at no point consulted or even, it would appear, contemplated consulting the inhabitants
of the Chagos Archipelago. If such a consultation had taken place, and the Chagossian people had
expressed their free and informed will not to be integrated into the new independent State of
Mauritius, the parameters of the question submitted to the Court would, in my view, have been
substantially different.
(Signed) Ronny ABRAHAM.
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Declaration of Judge Abraham