Separate opinion of Judge Robinson

SEPARATE OPINION OF JUDGE ROBINSON
Right to self-determination under customary international law  Importance of pre-1960
General Assembly resolutions in the development of the right to self-determination as a rule of
customary international law  Role of the Declaration on the Granting of Independence to
Colonial Countries and Peoples (resolution 1514 (XV)) in the development of the right to
self-determination as a rule of customary international law  Whether purported consent to the
detachment of the Chagos Archipelago was a free and genuine expression of the will of the people
of Mauritius including the Chagossians  Right to self-determination as a norm of jus cogens 
The need to find a solution for the plight of the Chagossians.
1. I have voted in favour of all the findings in the operative paragraph of the Court’s
Opinion. The purpose of this separate opinion is to address issues that have either not been dealt
with in the Court’s Advisory Opinion or, in my view, not sufficiently stressed, clarified or
elaborated.
2. Part I will be devoted to an analysis of General Assembly resolutions in the period 1950 to
1957 and the Declaration on the Granting of Independence to Colonial Countries and Peoples
resolution 1514 (hereinafter “1514”) with a view to demonstrating their impact on the development
of the right to self-determination as a rule of customary international law. Part II will address the
status of the right to self-determination as a norm of jus cogens. Part III will examine the question
of Mauritius’ “consent” to detachment against the background of the requirement that
decolonization must reflect the free and genuine will of the peoples concerned. Part IV will be
devoted to the situation of the Chagossians.
INTRODUCTION
3. These proceedings present a snapshot of the classic workings of a political and economic
system  European colonialism  that, in its application, wrought more death, injury, suffering
and injustice than any other in the history of mankind. But man’s basic humanity came to the fore
and was reflected in the growth and maturation of a right whose basis is respect for the inherent
dignity and worth of the human person. This right  the right to self-determination and
independence  effected the release of more than one third of the population of the world from the
chokehold that colonialism had placed on almost every continent.
PART I: GENERAL ASSEMBLY RESOLUTIONS IN THE PERIOD 1950 TO 1957
AND RESOLUTION 1514
General Assembly resolutions in the period 1950-1957
4. From 1950 to 1957 the General Assembly on several occasions addressed the right to
self-determination. The Advisory Opinion has not sufficiently addressed the significance of these
resolutions and their contribution to the development of the right to self-determination as a rule of
customary international law.
5. An important part of the history of the development of the right to self-determination as a
rule of customary international law is that the United Nations has always been very clear in treating
it as a fundamental human right. Thus, the first set of United Nations resolutions addressing this
subject relate to the inclusion in the proposed International Covenants on Human Rights of an
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article on the right to self-determination. The significance of this approach is that the right has the
same basis as all other fundamental human rights, that is, respect for the inherent dignity and worth
of the human person.
6. Resolution 421 (V) of 1950 called on the Commission of Human Rights to “study ways
and means which would ensure the right of peoples and nations to self-determination”. Section D
of the resolution which was specifically devoted to this study was adopted by 30 to 9 votes with
13 abstentions.
7. In the preamble of resolution 545 (VI) of 1952, the General Assembly recognized the right
to self-determination as a fundamental human right and decided that an article on the right should
be included in the proposed International Covenants on Human Rights as follows: “All peoples
shall have the right of self-determination.” The preamble was adopted by 41 votes in favour,
7 against, and 2 abstentions. The article for inclusion in the proposed Covenant was adopted by
36 votes in favour, 11 against and 12 abstentions.
8. In 1952, at its seventh session the General Assembly adopted resolution 637 A (VII),
which stated in its preamble that the right of peoples and nations to self-determination is a
“prerequisite to the full enjoyment of all fundamental human rights”. The resolution urged Member
States to “recognize and promote the realization of the right of self-determination of the peoples of
Non-Self-Governing and Trust Territories”. It also stated that the freely expressed wishes of the
peoples should be “ascertained through plebiscites or other recognized democratic means,
preferably under the auspices of the United Nations”. Resolution 637 A (VII) was adopted by
40 votes in favour, 14 against with 6 abstentions. Also, resolution 637 C (VII) called on the
Commission of Human Rights to make recommendations concerning international respect for the
right of peoples to self-determination. Resolution 637 C (VII) was adopted with 42 in favour,
7 against and 8 abstentions.
9. In 1953 the General Assembly adopted resolution 738 (VIII) “inviting the Commission on
Human Rights to make recommendations concerning international respect for the right of peoples
and nations to self-determination”. The resolution was adopted by 43 votes in favour with 9 against
and 5 abstentions.
10. In 1954, in resolution 837 (IX) the General Assembly stepped up the pressure on the
Commission on Human Rights by requesting it to “complete its recommendations concerning
international respect for the right of peoples and nations to self-determination, including
recommendations concerning their permanent sovereignty over their natural wealth and resources”.
This resolution was adopted with 41 votes in favour, with 11 against and 3 abstentions.
11. Notably, from as early as 1955 the view was being expressed by the United Nations
Secretariat that the General Assembly “had already recognized the right of peoples and nations to
self-determination; the next step was to formulate an appropriate article by which States would
undertake a solemn obligation to promote and respect that right”1.
1 United Nations General Assembly, Tenth Session: Annotation on Draft International Covenants on Human
Rights, UN doc. A/2929, 1 July 1955, Chap. IV, p. 40, para.4.
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12. In 1955, the Third Committee of the General Assembly adopted a provision to be
inserted in the two draft Covenants on Human Rights in identical language, acknowledging that
“all peoples have the right of self-determination”. What is to be noted here is the difference
between this formulation and the earlier formulation in resolution 545 (VI) in 1952 that “[a]ll
peoples shall have the right to self-determination”2. The formulation in the 1955 resolution is
declaratory of an existing right. The provision also stipulated that all “States Parties, including
those having responsibility for the administration of Non-Self-Governing . . . Territories [should]
promote the realization of [that] right”. The records of the Third Committee reveal a marked
difference in the position of those States supporting the right to self-determination and its inclusion
in the two draft Covenants on Human Rights and those States, principally colonial Powers,
opposing that position.
13. Perhaps the most important resolution adopted in the period, and certainly the one that
received the greatest support, was resolution 1188 (XII) of 11 December 1957. In that resolution,
which was adopted by 65 votes to none with 13 abstentions, the General Assembly reaffirmed that
“Member States shall, in their relations with one another, give due respect to the right of
self-determination”.
14. Thus, between 1950 and 1957, the General Assembly adopted eight resolutions on the
right of peoples and nations to self-determination and independence. Each resolution was adopted
by a majority of the membership of the United Nations. The records reveal that with the exception
of one year the votes trended towards an increase in the majority supporting the resolutions.
Generally, the resolutions called for respect for and implementation of the right to
self-determination by States, particularly by including in the two proposed Covenants on Human
Rights an article on that right. The seven-year period from 1950 to 1957 ended with the adoption of
a resolution, with no negative votes, calling for States to respect the right to self-determination.
15. One can see in the resolutions the strong determination of the General Assembly to
affirm the existence of the right to self-determination and to ensure that colonial Powers understood
that they had an obligation to respect that right. An interesting feature of the debates in that
seven-year period was the recognition that the right to self-determination was a human right and
one that was indispensable for the enjoyment of all human rights. At the same time the States
promoting the right to self-determination, no doubt inspired by the foundational principle in
Article 1, paragraph 2, of the United Nations Charter (hereinafter “the Charter”), made a strong
connection between the self-determination of peoples and the development of friendly relations
among nations. That Article, along with Article 55 of the Charter, shows that the Charter saw
self-determination as a basis for the development of friendly relations among all nations.
16. The General Assembly was unrelenting in the attention that it paid to the development of
the right to self-determination. The resolutions adopted in the seven-year period instilled
confidence in peoples under colonial domination. Between 1957 and 1960, and prior to the
adoption of 1514 on 20 December 1960, 18 countries under colonial domination became
independent.
17. It is arguable that the analysis of the flurry of General Assembly resolutions over the
seven-year period 1950 to 1957 shows that State practice and opinio juris combined to establish the
right to self-determination as a rule of international law by 1957 and that, consequently, when these
2 United Nations General Assembly: Report of the Third Committee, Draft International Covenants on Human
Rights, UN doc. A/3077, 8 Dec. 1955.
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18 countries  all African with the exception of one  became independent, they did so in
exercise of an existing right under international law. Addressing the South African Parliament in
February 1960, the British Prime Minister, Sir Harold MacMillan, speaking of the growth of
African independence, said: “The wind of change is blowing through this continent and whether we
like it or not, this growth of national consciousness is a political fact.”3 Sir Harold, in this famous
speech, accurately foresaw that the momentum towards independence that had been building up 
no doubt due in part to the activity of the General Assembly  would lead to the independence of
dozens of African counties. In September of 1960 alone, 15 countries became independent.
Resolution 1514 (XV): Declaration on the Granting of Independence
to Colonial Countries and Peoples
18. The right to self-determination, the nascent beginnings of which could be witnessed from
the Covenant of the League of Nations, and the development of which progressed steadily
from 1945 to 1950, experienced a very rapid growth from 1950 to 1957 and reached a crescendo
when the landmark 1514 was adopted on 20 December 19604. 1514 and resolution 2625 of 1970,
Declaration on Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations (hereinafter the “Friendly
Relations Declaration”) are among the greatest achievements of the United Nations, and their
adoption at such a relatively early period in the life of the United Nations shows an admirable
sensitivity on the part of that body to global issues relating to equality, justice, development and
peace. They both reflect customary international law. Today the United Nations consists of
193 Members and about one half of that membership can with confidence trace their independence
to rights and obligations established by 1514.
19. I set out below brief comments on 1514.
Preamble
20. Perhaps the most important preambular paragraph is the very last in which the General
Assembly “solemnly proclaims the necessity of bringing to a speedy and unconditional end
colonialism in all its forms and manifestations”. European colonialism had been in existence for
over 400 years and had resulted in inequality, loss of liberty, untold human suffering,
immeasurable loss of life and, generally, flagrant violations of fundamental human rights in Africa,
Asia, the Americas and the Caribbean. This preamble makes it clear that the United Nations was
resolute in its requirement that colonialism as a political and economic system had to end as
quickly as possible.
21. Brief comments on the operative paragraphs of 1514 are set out below:
Paragraph 1
“The subjection of peoples to alien subjugation, domination and exploitation
constitutes a denial of fundamental human rights, is contrary to the Charter of the
3 Souvenir of visit by the Rt. Hon. Harold Macmillan, Prime Minister of the United Kingdom to the Houses of
Parliament, Cape Town on Wednesday 3 February 1960, pp. 5-14 (with Verwoerd’s Vote of Thanks, pp. 15-17)
(Cape Town: Cape Times, 1960).
4 Resolution 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples
(adopted 20 December 1960).
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United Nations and is an impediment to the promotion of world peace and
co-operation.”
22. In 1955, 29 countries from Africa and Asia met in Bandung, Indonesia to discuss
Western Colonialism and other related issues. Paragraph 1 of 1514 repeats verbatim
paragraph 1 (b) of the Final Communiqué of that Conference5.
23. Not much attention was paid during the proceedings to this paragraph, which enures for
the benefit of dependent peoples. In the oral hearing, only one participant commented on it. But in
my view it is of fundamental importance in understanding what 1514 seeks to achieve. Alien
subjugation, alien domination and alien exploitation are the classic features of colonialism. In this
paragraph, 1514 neatly encapsulates the horrors of colonialism. Exploitation is at the epicentre of
colonialism. It was a political and economic system of governance that was wholly exploitative of
dependent peoples; when it was twinned with the enslavement of people of African descent, as it
was in Mauritius for over 100 years, and in North and South America and the Caribbean for
hundreds of years, its ugly underbelly was exposed. In 1753, Jamaica was Britain’s most valuable
colony. The average white Jamaican was 52.3 times wealthier than the average white person in
England and Wales6. This apparent asymmetry was due to raw exploitation through enslavement,
the economic crutch of colonialism.
24. Paragraph 1 provides the rationale for 1514, which must be read and interpreted against
that background. The paragraph identifies three features of the subjection of peoples to alien
subjugation, domination and exploitation. First, the subjection is a denial of fundamental human
rights. It is therefore a denial of rights that exist under customary international law, some of them
of a peremptory character. The paragraph stresses the link between the right to self-determination
and the enjoyment of human rights that the resolutions adopted in the seven-year period between
1950 and 1957 also emphasized. Colonialism, seen through the prism of 1514, breaches customary
international law. Second, the subjection of peoples to alien subjugation, domination and
exploitation is contrary to the Charter; in particular it would be contrary to the purposes and
principles of the Charter. Third, it is an impediment to the promotion of world peace and
co-operation. Again, the principles set out in Article 1 of the Charter address the maintenance of
peace and the achievement of international co-operation. In short this paragraph proclaims that
colonialism is contrary to international law.
25. As envisaged by 1514, the three classic features of colonialism  alien subjugation,
exploitation, and domination  are to be eliminated through the exercise of the right to
self-determination.
5 Final Communiqué of the Asian-African Conference of Bandung (24 April 1955).
6 Burnard, Trevor Mastery, Tyranny and Desire: Thomas Thistlewood and His Slaves in the Anglo-Jamaican
World, University of North Carolina Press, 2004, p. 15, p. 104. Thomas Thistlewood was an Englishman who came to
Jamaica to make his fortune. He worked on several sugarcane plantations and eventually owned one. He kept a diary
recording his daily activities for the entirety of his life in Jamaica. His favourite punishment for a runaway enslaved
person was to coerce another enslaved person to defecate in the runaway’s mouth, which was then gagged for four to five
hours. This is an example of what is meant by alien subjugation and domination, condoned and legitimated by the
political, economic and legal systems established by colonialism. See also Douglas Hall, In Miserable Slavery:
Thomas Thistlewood in Jamaica, 1750-86, University of the West Indies Press, 1999.
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Paragraph 2
“All peoples have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.”
26. As important as paragraph 1 is, paragraph 2 is the central pillar on which the entire
resolution is structured. All the other paragraphs acquire meaning in light of this paragraph. In
particular, the ills identified in paragraph 1 are to be remedied by the exercise of the right to
self-determination, proclaimed by, and defined in this paragraph, which could easily have been
placed first.
27. This paragraph enures for the benefit of dependent peoples and must be read against the
background of several General Assembly resolutions that prodded the Human Rights Commission
to include in the two draft Covenants on Human Rights, a provision on the right to
self-determination. The language of this paragraph is similar to the wording recommended by the
Third Committee to the General Assembly in 1955, and differs from the wording of the
1952 resolution which read: “All peoples shall have . . .” The paragraph is declaratory of an
existing right. An important feature of this paragraph is that it tells us what self-determination
means: self-determination finds expression through the freedom of peoples to determine their
political status. It therefore sets the standard by which the transition from colonial to independent
status is to be measured. For self-determination to be lawful, it must accord with the free and
genuine expression of the will of the peoples as to their political status.
Paragraph 3
“Inadequacy of political, economic, social or educational preparedness should
never serve as a pretext for delaying independence.”
28. The paragraph makes clear that the exercise of the right to self-determination, reflected
in the freedom of all peoples to determine their political status, is not to be delayed on the basis of
inadequate preparedness. It directly addresses the conduct of colonial Powers. The background to
the paragraph is the colonial practice of using lack of preparedness as a pretext for delaying
independence. The mantra of colonial administrations was that dependent peoples cannot be
independent until they had gone through a myriad of preparatory constitutional stages, the last of
which was usually internal self-government. Gradualism in relation to the right of dependent
peoples to independence through their freely expressed will was a basic feature of colonialism. It
was outlawed by 1514. There is a subtle relationship between this paragraph and Article 73 (b) of
the Charter, in which administering Powers are mandated to assist non self-governing territories “in
the progressive development of their free political institutions, according to the particular
circumstances of each territory and its peoples and their varying stages of advancement”. This
embrace of gradualism, which may have been warranted in 1945, is rejected by 1514. The distance
between 1945 and 1960 is remarkable.
Paragraph 4
“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.”
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29. This paragraph shows a sensitivity on the part of the General Assembly to the imbalance
in the power relationship between a colonial administration and a dependent people. Again, it
directly addresses the conduct of colonial Powers. It is very blunt in the obligations it imposes on
colonial Powers not to use repressive measures to prevent dependent peoples exercising their right
to self-determination and independence. Importantly, it also tells colonial Powers that they must
respect the integrity, that is, the wholeness of the national territory of dependent peoples.
Paragraph 5
“Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or
all other territories which have not yet attained independence, to transfer all powers to
the peoples of those territories, without any conditions or reservations, in accordance
with their freely expressed will and desire, without any distinction as to race, creed or
colour, in order to enable them to enjoy complete independence and freedom.”
30. Again, as in the case of the two previous two paragraphs, the addressees of this
paragraph are the colonial Powers. It requires colonial States to transfer all powers to colonized
peoples in conformity with their freely expressed will so that they can become free and
independent. It is very relevant to this case. It has a temporal element in that it requires that
colonial Powers take immediate steps to ensure that this is achieved.
31. When this paragraph is read in conjunction with paragraph 7, which requires all States to
observe faithfully and strictly the provisions of the Declaration, it becomes clear that the attainment
of independence by colonized peoples is not a grant or gift from the colonizing State. Rather,
independence results from the discharge by the colonizing State of an obligation imposed on it by
international law. It is also clear from this paragraph, as well as from paragraph 2, that the basis for
the transfer of power from colonizer to colonized is the freely expressed will of the peoples. The
Court said as much in Western Sahara when it held, in construing paragraphs 2 and 5, that the
“application of the right of self-determination requires a free and genuine expression of the will of
the peoples concerned”7. Action by a colonial Power that prevents the transition from colonial
domination to independence from taking place in accordance with the free and genuine expression
of the will of the peoples is unlawful. However, the freely expressed will of dependent peoples is
not only a criterion by which the lawfulness of the application of the right to self-determination is
measured; it is also the basis for the exercise of that right, that is, it requires that, when colonial
peoples through their freely expressed wishes, call for self-determination and independence, power
should be transferred to them by the colonial authorities forthwith.
Paragraph 6
“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.”
32. Again, the addressees of this paragraph are colonial Powers. It deals with the important
question of the integrity of the national territory of dependent peoples. Territorial integrity is
addressed four times in 1514. The last preambular paragraph speaks of the inalienable right that all
peoples have to the integrity of their national territory. The fourth paragraph requires that colonial
States respect the integrity of the national territory of dependent peoples. Paragraph 6 goes a step
7 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 32, para. 55.
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further by declaring that an attempt by an administering Power to dismember partially or totally the
national unity and territorial integrity of a country is incompatible with the purposes and principles
of the Charter. This paragraph incorporates a very serious and solemn declaration. The fourth
reference to territorial integrity is in paragraph 7, which calls for respect for the sovereign rights of
all peoples and their territorial integrity. The relevance of this paragraph to this case is that it
clarifies that the unit for self-determination for colonial peoples is their territory in its entirety.
33. Territorial integrity is presented in this paragraph and elsewhere as a critically important
element of the right to self-determination. There are three references to the Charter in 1514,
namely, in paragraphs 1, 6 and 7. Of the three, paragraph 6 is the only one that directly speaks of
incompatibility with the purposes and principles of the Charter. Since these purposes and principles
are generally recognized as reflecting customary international law, and by some, as embodying
norms of jus cogens, 1514 has placed a breach of respect for the territorial integrity of dependent
peoples at the very highest level in international law.
34. The United Kingdom argued that the right to self-determination did not become
customary international law until the adoption of the Friendly Relations Declaration in 1970, which
it agrees reflects customary international law. It stressed that the Friendly Relations Declaration
was adopted by consensus after six years of negotiations and, hence, was more carefully considered
than 1514, which was adopted within a shorter period. It also contended that there was a significant
difference between paragraph 6 of 1514 and paragraph 7 of the Friendly Relations Declaration.
Whereas the former addresses the territorial integrity of a “country”, the United Kingdom notes
that paragraph 7 speaks of the territorial integrity or political unity of sovereign and independent
States. Accordingly the United Kingdom argued that what was protected by customary
international law was the territorial integrity of sovereign States and not the territorial integrity of a
non-self-governing territory prior to independence. However, it is not surprising that
resolution 2625 references States while 1514 does not. This is so because 1514 is wholly concerned
with the rights of colonial peoples to self-determination and independence, while the subject of
resolution 2625 is the rights and duties of sovereign States. In any event, although resolution 2625
does not set out to deal with colonial peoples, the 14th preambular paragraph treats with their
situation as follows: “Convinced in consequence that any attempt aimed at the partial or total
disruption of the national unity and territorial integrity of a State or country or at its political
independence is incompatible with the purposes and principles of the Charter.” This provision is a
replica of paragraph 6 of 1514 except that there is a reference not only to the territorial integrity of
a country, but also that of a State. It is made abundantly clear that the right to self-determination
has a territorial dimension that colonial Powers are obliged to respect. The unit for
self-determination is the territory of colonial peoples in its entirety.
Paragraph 7
“All States shall observe faithfully and strictly the provisions of the Charter of
the United Nations, the Universal Declaration of Human Rights and the present
Declaration on the basis of equality, non-interference in the internal affairs of all
States, and respect for the sovereign rights of all peoples and their territorial integrity.”
35. This paragraph addresses an obligation that is imposed on all States. That 1514 is
normative and binding is reflected in this paragraph which requires all States to observe “faithfully
and strictly” the provisions of the resolution as well as those of the Charter and the Universal
Declaration of Human Rights. 1514 is in good company when it is placed alongside those two
instruments of such seminal and pivotal importance. It occupies the same lofty space as those two
instruments. Certainly the Universal Declaration of Human Rights reflects customary international
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law. By placing 1514 in the same bracket as the Universal Declaration, the General Assembly sent
a clear message as to how it was to be viewed by the international community.
36. While 1514, in a general sense, is addressed to the international community as a whole,
there are some paragraphs in respect of which the direct addressees are colonial Powers, and these
paragraphs specifically identify their obligations in respect of dependent peoples; other paragraphs
enure more specifically for the benefit of dependent peoples, identifying the rights which they have
on the road to independence. Of course, all the paragraphs directly implicate both dependent
peoples and the colonial Powers as well as the international community at large.
Status of resolution 1514 (XV) and the right to self-determination
as customary international law
37. 1514 was adopted with a vote of 89 in favour, none against and 9 abstentions. That
89 States supported 1514 and not a single State voted against it must count for something in
assessing its legal status; it must be taken as strong evidence of the international community’s
acceptance, not only of its content and but also of the normative value of that content. In fact, the
lack of negative vote is strong evidence of the element of opinio juris required for the formation of
customary international law.
38. In Legality of the Threat or Use of Nuclear Weapons8, the Court found that resolutions
adopted with substantial numbers of negative votes and abstentions did not have the opinio juris
necessary for the formation of customary international law. That finding has absolutely no
application to 1514, which had no negative votes and relatively few abstentions  only 9  about
10 per cent of the total votes. After commenting that the number of abstentions was relatively low,
Rosalyn Higgins, later to become a Member and President of the Court, concluded that “[t]he
Resolution must be taken to represent the wishes and beliefs of the full membership of the
United Nations”9. Plainly speaking, by the end of 1960, the colonial Powers recognized that the
movement of colonial peoples to independence had become irreversible. The wind of change of
which Sir Harold MacMillan had spoken ten months before had, by the end of 1960, taken on the
force of a hurricane.
39. The development of the right to self-determination, which had commenced even before
adoption of the Charter in 1945, reached a watershed with the adoption of 1514 in December 1960.
40. 1514 expresses in solemn form the right that had developed from the mandate system
after the first World War, was enshrined in Article 1, paragraph 2, of the Charter and reflected in a
number of General Assembly resolutions between 1950 and 1957. These resolutions played an
important role in the development of the right as a rule of customary international law. In Legality
of the Threat or Use of Nuclear Weapons, the Court held that “a series of resolutions may show the
gradual evolution of the opinio juris required for the establishment of a new rule”10. It may be
argued that the eight General Assembly resolutions adopted over a period of seven years show the
evolution of the opinio juris required for the establishment of the right to self-determination as a
rule of customary international law, and general practice sufficient to meet the requirement for the
formation of a rule of customary international law.
8 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 255, para. 71.
9 Higgins, Rosalyn, The Development of International Law through Political Organs of the United Nations,
Oxford University Press (OUP), 1963, p. 101.
10 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 255, para. 70.
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41. The main difference between 1514 and the pre-1960 resolutions is that the latter did not
fully define the right to self-determination. It was left to 1514 to demarcate the contours of that
right. Nonetheless, 1514’s relationship and connectedness with that group of resolutions cannot be
overlooked. The largest number of countries to become independent in a single year did so in 1960,
prior to the adoption of 1514, and achieved their independence on the back of these eight
resolutions. Thus while they did not fully define the right to self-determination, they certainly laid
the foundation for 1514’s historic achievement in defining with greater clarity than had been done
before the content and scope of the right to self-determination. In paragraph 150 of the Advisory
Opinion  after noting that 28 countries achieved independence in the 1960s  the Court
expressed the view that “there is a clear relationship between resolution 1514 (XV) and the process
of decolonization following its adoption”. This is certainly a fair conclusion but, by the same token,
would it not be equally true to speak of a clear relationship between the eight resolutions and the
achievement of independence by 18 countries prior to the adoption of 1514? The fact that the
pre-1960 resolutions do not fully define the right to self-determination does not mean that they do
not have normative elements. For example, the resolutions recognize the right to self-determination
as a fundamental human right, and envisaged it as a “prerequisite to the full enjoyment of all
human rights”, urged Member States to recognize and promote the right of self-determination of
the people of non-self-governing countries. They also stated that the freely expressed wishes of the
people should be ascertained through recognized democratic means and declared that all peoples
have the right to self-determination, implying that the right is existing. Moreover, one resolution
called on States to give due respect to the right to self-determination, a resolution that had no
negative votes and 13 abstentions. In light of the foregoing the pre-1960 resolutions should not be
overlooked as they include normative elements contributing to the growth of the right to
self-determination into a customary rule of international law.
42. Even though it is arguable that the right to self-determination became a rule of customary
international law in 1957, it may be safer to conclude that its crystallization as a rule of customary
international law took place in 1960 with the adoption of 1514. In 1963, Rosalyn Higgins
concluded that 1514, “taken together with seventeen years of evolving practice by the
United Nations organs, provides ample evidence that there now exists a legal right to
self-determination”11.
43. In 1966, the General Assembly adopted by consensus the International Covenant on
Economic Social and Cultural Rights (hereinafter “ICESCR”) and the International Covenant on
Civil and Political Rights (hereinafter “ICCPR”). Common Article 1 of both Covenants provides
that “all peoples have the right of self-determination by virtue of which they freely determine their
political status and freely pursue their economic social and cultural development”. This is precisely
the language used in 1514. Written in the present tense, this is very strong and forceful language,
declaratory of existing rights. Indeed the entire Declaration is clear and unequivocal in the
language it uses. Rosalyn Higgins captures very well the essence and spirit of the resolution when
she commented that “the right to self-determination is regarded not as a right enforceable at some
future time in indefinite circumstances, but a legal right here and now”12.
44. The question of the relationship between the right to self-determination in the context of
decolonization and its broader application outside that context is addressed by the Court in
paragraph 144. The Court clarified that its Advisory Opinion is confined to the right to
self-determination in the context of decolonization. However, the fact that the right to
self-determination set out in paragraph 2 of 1514 is not only included in the two Covenants, but
included as the first article in both, speaks to its significance not merely as a fundamental human
11 Higgins, Rosalyn, op. cit., p. 104.
12 Ibid., p. 100.
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right, but as one that is seen as indispensable for the enjoyment of all the rights set out in the two
Covenants. During the drafting of the two Covenants some countries, principally western colonial
Powers, opposed the insertion of the right to self-determination in the two Covenants on the basis
that it was a collective right. However, at the instigation of other countries, mainly developing
countries, the right was included in the two Covenants on the basis that it was indispensable for the
enjoyment of the individual rights set out in the two Covenants.
45. The incorporation of the right to self-determination as the first article in the two
international covenants, which have received widespread ratifications, solidifies its development as
a fundamental human right, and indeed, the foundation for all other human rights. There is a unity
in the right to self-determination that serves the purposes of 1514  the right of all peoples to
determine their political status through their freely expressed will in the context of
decolonization  and the right to self-determination that serves the purposes of the two
Covenants  the enjoyment of fundamental rights by every individual. This unity is achieved by
the existence of a common basis applicable to both purposes, namely, respect for the inherent
dignity and worth of the human person.
46. The development of the right to self-determination as a basic human right is wholly
consistent with the post-Second World War focus on individual human rights, itself the greatest
advance in international law since 1945. The right is therefore located at the very centre of this
great normative development. In that regard, the Court held that 1514 “provided the basis for the
process of decolonization which has resulted since 1960 in the creation of many States”13.
47. In conclusion, 1514 is a normative laden declaration, rich with ore protective of values
fundamental to the international community. The resolution is as potent a force for liberation and
justice as was emancipation following the abolition of enslavement in many parts of the world in
the 1830s.
PART II: THE STATUS OF THE RIGHT TO SELF-DETERMINATION
AS A NORM OF JUS COGENS
48. This part commences with an examination of the Court’s case law on jus cogens with a
view to ascertaining the assistance that it offers in considering this question. The opinion will then
examine the jus cogens character of the right to self-determination from the point of view of the
law of treaties and the law of State responsibility.
49. An interesting feature of the Court’s Advisory Opinion is that it offers no comment on
the question of the status of the right to self-determination as a norm of jus cogens. This feature is
remarkable in light of the fact that a high number of participants in the proceedings argued that the
right to self-determination is a norm of jus cogens. While the Court is not obliged to address all the
arguments raised in proceedings brought before it, one would have expected that in view of the
obvious importance attached by so many participants to the characterization of the right to
self-determination as a norm of jus cogens, it would have devoted some time to this question. In its
Advisory Opinion the Court is content to follow its earlier characterization in the case concerning
East Timor of the right as one that establishes obligations erga omnes.
13 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 32, para. 57.
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50. This approach might appear to be an example of what some see as a general reluctance
on the part of the Court to engage fully with the concept of jus cogens. However, an examination of
the Court’s case law shows that in the past it has made reference to jus cogens on many occasions
and has actually pronounced on its application in a number of cases. In my view, the Court’s case
law, State practice and opinio juris, and scholarly writing are sufficient to warrant characterizing
the right to self-determination as a norm of jus cogens, and to justify the conclusion that it
possessed that status in the relevant period 1965-1968.
51. Before commencing an examination of the Court’s case law on jus cogens, it is useful to
comment briefly on three cases that are relevant to the issues raised by the norm of jus cogens in
these proceedings.
52. The Reservations to the Convention on the Crime of Genocide Advisory Opinion, 1951 is
cited because, although not addressing jus cogens in explicit terms, it contains a passage that has
been interpreted as highlighting features of that norm. Below is the passage:
“The origins of the Convention show that it was the intention of the
United Nations to condemn and punish genocide as ‘a crime under international law’
involving a denial of the right of existence of entire human groups, a denial which
shocks the conscience of mankind and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the United Nations
(Resolution 96 (I) of the General Assembly, December 11th 1946). The first
consequence arising from this conception is that the principles underlying the
Convention are principles which are recognized by civilized nations as binding on
States, even without any conventional obligation. A second consequence is the
universal character both of the condemnation of genocide and of the co-operation
required ‘in order to liberate mankind from such an odious scourge’ (Preamble to the
Convention) . . .
The objects of such a convention must also be considered. The Convention was
manifestly adopted for a purely humanitarian and civilizing purpose. It is indeed
difficult to imagine a convention that might have this dual character to a greater
degree, since its object on the one hand is to safeguard the very existence of certain
human groups and on the other to confirm and endorse the most elementary principles
of morality. In such a convention the contracting States do not have any interests of
their own; they merely have, one and all, a common interest, namely, the
accomplishment of those high purposes which are the raison d’etre of the
convention”14.
There are four propositions in this statement which, as will be seen later, have been considered very
relevant to the identification of a norm of jus cogens. First, genocide is a crime that shocks the
conscience of mankind. Secondly, the principles underlying the Genocide Convention are accepted
as binding on all States, even in the absence of a treaty. Third, condemnation of the crime of
genocide is universal. Fourth, the Genocide Convention has a “purely humanitarian purpose”15 that
reflects “the most elementary principles of morality”16.
14 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 23.
15 Ibid.
16 Ibid.
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53. In 1966 in the South West Africa cases17 the Court, by the casting vote of its President,
found that Ethiopia and Liberia had no jus standi to bring a claim against South Africa for its
violation of the various provisions of the Covenant of the League of Nations and the terms of the
Mandate in respect of South West Africa, including practising apartheid in its administration of
South West Africa. It is fair to say that no decision of the Court has received greater criticism than
this Judgment. James Crawford, as he then was, described the criticism as “severe and deserved”18.
54. Four years later, in the Barcelona Traction case, Belgium brought a claim against Spain
by way of diplomatic protection in respect of losses allegedly suffered by Belgian shareholders of
the Barcelona Traction Light and Power Company, that was incorporated in Canada and which had
been declared bankrupt by a court in Spain. The central issue was whether Belgium had standing to
bring its claims on behalf of Belgian shareholders. In a famous dictum the Court explained the
difference between obligations in the performance of which all States have an interest and those in
the performance of which all States do not have an interest. The Court held that:
“In particular, an essential distinction should be drawn between the obligations
of a State towards the international community as a whole, and those arising vis-à-vis
another State in the field of diplomatic protection. By their very nature the former are
the concern of all States. In view of the importance of the rights involved, all States
can be held to have a legal interest in their protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from
the outlawing of acts of aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of protection have
entered into the body of general international law (Reservations to the Convention on
the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J.
Reports 1951, p. 23); others are conferred by international instruments of a universal
or quasi-universal character.”19
55. The significance of the Barcelona Traction case is its recognition that some rights and
obligations do not only exist at a bilateral level or even multilateral level; there are rights and
obligations in the protection and observance of which all States have a legal interest. In that regard
the Court referred to obligations erga omnes relating to “the basic rights of the human person”. It
also cited a passage from its Advisory Opinion in Reservations to the Convention on the Crime of
Genocide20 (see paragraph 52 above). The dictum therefore means that there is a wider public,
communitarian interest that international law recognizes and protects. In fact the examples given by
the Court indicate that the essence of obligations erga omnes is that they protect the fundamental
values of the international community, such as those relating to respect for the inherent dignity and
worth of the human person, the prohibition of aggression and genocide.
56. Many scholars see this finding  which was not absolutely necessary for the Court’s
reasoning in the Judgment  as the Court compensating for its decision in the 1966
17 South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, Judgment, I.C.J.
Reports 1962, p. 347.
18 2013 Dreamers of the Day: Australia and the International Court of Justice, Melbourne Journal of International
Law, Vol. 14, p. 537.
19 Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, I.C.J.
Reports 1970, p. 32, paras. 33-34.
20 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 23.
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South West Africa cases, a decision that ignored the developments which had taken place in
international law in the field of decolonization and, more generally, wider communitarian interests.
According to James Crawford, as he then was, the Court “was in effect apologizing for getting it
wrong in 1966”21. It has been suggested that in Barcelona Traction the Court very much wanted to
address jus cogens, but avoided doing so and instead introduced the concept of obligations
erga omnes.
The Court’s case law on jus cogens
57. In the North Sea Continental Shelf cases in 1969 the Court made it clear that it did not
wish to enter into a discussion of jus cogens or even less, to pronounce on it. While it would not
have been necessary for the Court to rule on the application of jus cogens in that case, one can
detect a kind of reluctance to engage with the topic of jus cogens that many would say has become
a feature of its work. Although the North Sea Continental Shelf cases were decided a few months
before the adoption of the Vienna Convention on the Law of Treaties, (hereinafter “VCLT”), the
Court would undoubtedly have been familiar with the 1966 Report of the International Law
Commission on the Law of Treaties. That Report included a draft Convention on the Law of
Treaties, Article 50 of which addressed jus cogens.
58. In the Military and Paramilitary Activities in and against Nicaragua case the Court
addressed jus cogens as follows:
“A further confirmation of the validity as customary international law of the
principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of
the Charter of the United Nations may be found in the fact that it is frequently referred
to in statements by State representatives as being not only a principle of customary
international law but also a fundamental or cardinal principle of such law. The
International Law Commission, in the course of its work on the codification of the law
of treaties, expressed the view that ‘the law of the Charter concerning the prohibition
of the use of force in itself constitutes a conspicuous example of a rule in international
law having the character of jus cogens (paragraph (1) of the commentary of the
Commission to Article 50 of its draft Articles on the Law of Treaties, ILC Yearbook,
1966-11, p. 247). Nicaragua in its Memorial on the Merits submitted in the present
case states that the principle prohibiting the use of force embodied in Article 2,
paragraph 4, of the Charter of the United Nations ‘has come to be recognized as
jus cogens’. The United States, in its Counter-Memorial on the questions of
jurisdiction and admissibility, found it material to quote the views of scholars that this
principle is a ‘universal norm’, a ‘universal international law’, a ‘universally
recognized principle of international law’, and a ‘principle of jus cogens’22.
59. The Court’s reasoning on the status of the prohibition of the use of force is in three
stages. First, the statements of many State representatives confirm that the prohibition of the use of
force is a rule of customary international law. Second, these statements also confirm that the
prohibition is “a fundamental or cardinal principle of that law”. Here the Court might be
understood as implying that the prohibition of the use of force is a norm of jus cogens. Third, that
latter conclusion is supported by the Court apparently citing with approval the observation of the
International Law Commission that the prohibition of the use of force is a norm of jus cogens.
21 Multilateral Rights and Obligations in International Law. Collected Course of the Hague Academy of
International Law, Brill, Leiden, Vol. 319, pp. 410-411.
22 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits,
Judgment, I.C.J. Reports 1986, pp. 100-101, para. 190.
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60. Even though it is fair to infer from this paragraph that the Court endorses the view that
the prohibition of the use of force is a norm of jus cogens, again, one can detect a slight hesitancy
to become fully engaged in a discussion of that norm. Certainly, the Court does not delve deeply
into the content of the norm of jus cogens, and its recognition that the prohibition of the use of
force is a norm of jus cogens can only be described as oblique.
61. In Armed Activities on the Territory of the Congo, the Court had to consider the
relationship between peremptory norms of general international law and consent to its jurisdiction.
The Court referred to the following passage from its 1951 Advisory Opinion on Reservations to the
Convention on the Crime of Genocide (see paragraph 52, above) that may be said to provide an
insight into the Court’s views on the jurisprudential underpinnings of a norm of jus cogens:
“The first consequence arising from this conception is that the principles
underlying the [Genocide] Convention are principles which are recognized by
civilized nations as binding on States, even without any conventional obligation. A
second consequence is the universal character both of the condemnation of genocide
and of the co-operation required ‘in order to liberate mankind from such an odious
scourge’ (Preamble to the Convention).”23
In the very same paragraph, that is, paragraph 64 of Armed Activities on the Territory of the Congo,
the Court observed that the prohibition of genocide was “assuredly” a norm of jus cogens. The
Court identified two principal features of jus cogens, namely it is a norm that is recognized as
binding on States, irrespective of a treaty obligation to do so, and it has a universal character in that
it is applicable to all States.
62. In his separate opinion in Armed Activities on the Territory of the Congo24,
Judge ad hoc Dugard commented that this was the first time the Court had expressly embraced the
concept of jus cogens, pointedly adding that this was so even though it had in the past endorsed the
notion of obligations erga omnes25.
63. In Application of the Convention on the Prevention and Punishment of the Crime of
Genocide26, and Application of the Convention on the Prevention and Punishment of the Crime of
Genocide27, the Court, by referring to its earlier finding in Armed Activities on the Territory of the
Congo that the prohibition of genocide was “assuredly” a peremptory norm of international law,
must be taken as confirming that finding. In fact, in its 2015 Judgment in Application of the
Convention on the Prevention and Punishment of the Crime of Genocide, the Court went further
and found that “the prohibition of genocide has the character of a peremptory norm (jus cogens)”28.
It also cited the well-known passage from the 1951 Reservations to the Convention on the Crime of
Genocide Advisory Opinion (see paragraph 52, above) which has been frequently relied on for its
identification of the features of jus cogens. In Prosecutor v. Jelisic, a trial chamber of the
23 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory
Opinion, I.C.J. Reports 1951, p. 23.
24 Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v.
Rwanda), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 2006, p. 32, para. 64.
25 Ibid., p. 87, separate opinion of Judge ad hoc Dugard, para. 4.
26 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p. 111, para. 161.
27 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia),
Judgment, I.C.J. Reports 2015 (I), p. 47, para. 87.
28 Ibid.
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International Criminal Tribunal for the former Yugoslavia held that, in the Reservations to the
Convention on the Crime of Genocide Advisory Opinion, the International Court of Justice went
beyond the identification of the prohibition of genocide as a customary norm and placed it “on the
level of jus cogens because of its extreme gravity”29.
64. The values stressed in the 1951 Advisory Opinion in the Reservations to the Convention
on the Crime of Genocide and confirmed 55 years later in Armed Activities on the Territory of the
Congo (2006), and again 54 and 64 years later in the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (2007, 2015) cases, concern the inherent
dignity of the human person and thus, fundamental human rights; it is in that context that we find
references to “purely humanitarian and civilizing purpose” and “the most elementary principles of
morality”. The 1951 Advisory Opinion therefore, although not containing any express reference to
jus cogens, provides clear signposts and indicia for the identification of norms that are jus cogens.
65. In Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, the Court
observed that “[t]he question whether a norm is a part of the jus cogens relates to the legal
character of the norm”30. It decided not to determine whether norms of international humanitarian
law are part of jus cogens. In the Court’s view the General Assembly’s request for its advice related
to the applicability of principles and rules of humanitarian law in relation to the use of nuclear
weapons and not to the legal character of those norms. The Court found that “the fundamental rules
[of humanitarian law] are to be observed by all States whether or not they have ratified the
conventions that contain them, because they constitute intransgressible principles of international
customary law”31. While scholars have pondered over the meaning of the biblical sounding phrase,
“intransgressible principles”, the better view is that the Court was not just addressing rules of
customary international law, but peremptory norms of general international law. Here again, the
Court, notwithstanding its explanation for not dealing with jus cogens, appears to exhibit a
reluctance to get to the heart of that concept.
66. In Questions relating to the Obligation to Prosecute or Extradite, we find the clearest
explanation to date of the Court’s view of the kind of evidence needed to substantiate a finding that
a norm of general international law has become a peremptory norm within the meaning of
Article 53 of the VCLT. Paragraph 99 of the Court’s Judgment is set out below:
“In the Court’s opinion, the prohibition of torture is part of customary
international law and it has become a peremptory norm (jus cogens).
That prohibition is grounded in a widespread international practice and on the
opinio juris of States. It appears in numerous international instruments of universal
application (in particular the Universal Declaration of Human Rights of 1948, the
1949 Geneva Conventions for the protection of war victims; the International
Covenant on Civil and Political Rights of 1966; General Assembly resolution 3452/30
of 9 December 1975 on the Protection of All Persons from Being Subjected to Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment), and it has been
29 ICTY, IT-95-10-T, 14 December 1999, p. 18, para. 60.
30 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 258, para. 83.
31 Ibid., p. 257, para. 79.
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introduced into the domestic law of almost all States; finally, acts of torture are
regularly denounced within national and international fora.”32
Article 53 of the Vienna Convention provides that jus cogens is a norm of general international law
that is peremptory. In principle this means that any of the three sources of law set out in
Article 38 (1) (a), (b) and (c) of the Court’s Statute can give rise to a peremptory norm of general
international law. However, peremptory norms of general international law most usually derive
from rules of customary international law. Treaties, of course, will not  in and of themselves 
give rise to peremptory norms, but when they contain provisions that reflect rules of customary
international law, those provisions may become peremptory norms of general international law.
The first sentence of this paragraph addresses the growth (“has become”) of the prohibition of
torture, as part of customary international law and thus, general international law, into a
peremptory norm (jus cogens).
67. The Court cites several instruments of universal application as evidence of State practice
and opinio juris sufficient to establish that the prohibition of torture is a peremptory norm of
general international law. An examination of the various instruments cited by the Court, which
include the Universal Declaration of Human Rights and the ICCPR, shows that the prohibition of
torture, which is part of customary international law, has become a peremptory norm. That is so
because they all reflect the values that the Court identified in the often cited passage from the
1951 Reservations Advisory Opinion (see paragraph 52, above). These are values that protect a
wider communitarian interest rather than the interest of individual States. The instruments are also
very widely accepted by States, thereby signifying acceptance and recognition of the
non-derogability of the norm prohibiting torture.
68. In paragraph 99 the Court also identifies the inclusion of the prohibition of torture in the
domestic laws of many States and the regular denunciation of acts of torture in national and
international fora as material with an evidentiary value in determining the jus cogens character of
the prohibition of torture.
69. The first sentence in paragraph 99 refers to the prohibition of torture as part of customary
international law and also as a peremptory norm. The next and longer sentence begins with the
words, “[t]hat prohibition”, giving rise to some uncertainty as to whether the various evidentiary
material that follows relates to the prohibition of torture as part of customary international law or as
a norm of jus cogens. The Court had already noted in paragraph 97 that the parties in the case had
agreed that acts of torture are regarded by customary international law as international crimes,
independently of the Torture Convention. It is therefore reasonable to conclude that the prohibition
that is referred to in the longer sentence relates to the prohibition of torture as a peremptory norm.
Of course, it is possible that it could relate to the prohibition of torture both as a part of customary
international law and as a peremptory norm. The first view is to be preferred, and would seem to be
a necessary one for the approach taken in this Opinion, since the jus cogens requirement of
recognition and acceptance by the international community of States as a whole of the
non-derogability of the norm does not apply to a norm of customary international law.
32 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, I.C.J.
Reports 2012 (II), p. 457, para. 99.
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Evidentiary material supporting the jus cogens character of
the right to self-determination
70. The separate opinion now turns to an examination of the evidentiary material that
substantiates the characterization of the right to self-determination as a norm of jus cogens,
substantially following the approach in paragraph 99 of the Obligation to Extradite or Prosecute.
1. International Instruments of universal application
71. Below are international instruments referring to the right to self-determination:
(a) The right to self-determination is a Charter right. Not only is it set out in the Charter, it is
reflected in Article 1, paragraph 2, as one of the purposes of the United Nations. The Charter
identifies this purpose as “to develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples”. The purposes of the Charter have a
very special significance in the architecture established by the United Nations after the Second
World War for the maintenance of international peace and security. The development of
friendly relations among States is an important part of this system. This Opinion has already
referred to the Court in Military and Paramilitary Activities in and against Nicaragua citing the
International Law Commission’s statement in its commentary on Article 50 of its draft Articles
on the Law of Treaties that the prohibition of the use of force is a norm of jus cogens. This is a
strong authority for concluding that a norm that derives from the Charter and which, in
particular, reflects a purpose of the United Nations, as does the right of peoples to
self-determination in Article 1, paragraph 2, of the Charter, is very likely to warrant
characterization as jus cogens.
(b) Unsurprisingly, the 1970 Friendly Relations Declaration includes the principle of equal rights
and self-determination of peoples as a principle of international law relating to friendly
relations and co-operation among States, and imposes a duty on States to take the necessary
action to promote the realization of that principle. In the Legal Consequences of the
Construction of a Wall Advisory Opinion, the Court referred to this duty. In paragraph 148 of
its current Advisory Opinion, the Court also refers to this principle, pointing out that
consequent on the Charter making the principle of equal rights and self-determination one of
the purposes of the United Nations, it then included provisions to “enable non-self-governing
territories ultimately to govern themselves”.
(c) United Nations Declaration on the Elimination of All Forms of Racial Discrimination 
General Assembly resolution 1904 of 20 December 1963  the fourth preambular paragraph
refers to the Declaration on the Granting of Independence to Colonial Peoples and Countries,
that is, 1514.
(d) In 1966 the General Assembly adopted the ICCPR and the ICESCR. Paragraph 1 of Article 1
of both Covenants is identical to paragraph 2 of 1514. In its Advisory Opinion, the Court cited
the two Covenants, indicating that paragraph 1 common to both Covenants affirms the right to
self-determination. It has already been explained earlier in this separate opinion that the fact
that the Advisory Opinion is confined to the right to self-determination in the context of
decolonization does not in any way render the two Covenants irrelevant. The basis for the
second paragraph in 1514 and Article 1, paragraph 1, of the Covenants is the same: respect for
the inherent dignity and worth of the human person. This common basis points to the
indivisibility of the rights set out in the two Covenants on the one hand and the rights addressed
by the second paragraph of 1514 on the other. The entry into force of the two Covenants after
the relevant date of 1968 becomes less important for the following reasons. First, the rights
which the two Covenants entrench are based on the fundamental right of all peoples to
self-determination as reflected in common Article 1, paragraph 1, of the Covenants and
- 19 -
paragraph 2 of 1514; that right had crystallized as a customary rule before 1968. Second,
General Assembly resolution 2200 A which annexed the two Covenants received extremely
strong support, having both been adopted unanimously by a body which at that time had
106 Member States.
(e) General Comment No. 12 of the United Nations Human Rights Committee, established
pursuant to the ICCPR, adopted on 13 March 1984 stated that
“the right of self-determination is of particular importance because its realisation is an
essential condition for the effective guarantee and observance of individual human
rights and for the promotion and strengthening of those rights. It is for that reason that
States . . . placed this provision as Article 1 apart from and before all of the other
rights in the two Covenants.”
There can hardly be any value requiring more protection than that relating to respect for the
inherent dignity and worth of the human person. The two Covenants seek to provide that
protection. How can a norm that is essential  some say indispensable  for the enjoyment of
all the rights in the two Covenants be anything other than a compelling right from which, in the
wider public interest of the international community, no derogation is permitted?
(f) In 1993, the Second World Conference on Human Rights adopted the Vienna Declaration and
Programme of Action, paragraph 2 of which provided, inter alia, that “the World Conference
on Human Rights considers the denial of the right of self-determination as a violation of human
rights and underlines the importance of the effective realisation of this right”.
(g) In resolution 61/295 of 13 September 2007, the General Assembly adopted the United Nations
Declaration on the Rights of Indigenous Peoples which affirmed “the fundamental importance
of the right to self-determination of all peoples, by virtue of which they freely determine their
political status and freely pursue their economic social and cultural development”.
(h) By resolution 2106 (XX), the fourth preambular paragraph of the International Convention on
the Elimination of All Forms of Racial Discrimination, adopted by the General Assembly on
21 December 1965, affirms the right to self-determination as follows:
“Considering that the United Nations has condemned colonialism and all
practices of segregation and discrimination associated therewith, in whatever form and
wherever they exist, and that the Declaration on the Granting of Independence to
Colonial Countries and Peoples of 14 December 1960 (General Assembly
resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing
them to a speedy and unconditional end”.
(i) General Assembly resolution 1803 of 14 December 1962  the second preambular paragraph
refers to the instruction given to the Commission on Permanent Sovereignty over Natural
Resources to conduct a survey of the status of permanent sovereignty over natural wealth and
resources as a basic constituent of the right to self-determination.
(j) The Vienna Convention on Succession of States in respect of Treaties  the sixth preambular
paragraph refers to the principles of international law embodied in the Charter such as the
principle of equal rights and self-determination of peoples.
(k) The International Convention on the Suppression and Punishment of the Crime of Apartheid 
General Assembly resolution 3068, 30 November 1973  the third preambular paragraph
refers to 1514.
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The instruments referred to above that were adopted after 1968 are all confirmatory of the right to
self-determination. Following the approach of the Advisory Opinion in paragraph 143, reference
may be made to, and reliance placed, on them.
2. The views of States
72. States have on many occasions expressed the view that the right to self-determination is a
norm of jus cogens:
(a) At the Vienna Conference on the Law of Treaties 1968-1969 various States made that
assertion  the Soviet Union and several developing countries. On the occasion of the
adoption of the Friendly Relations Declaration many counties also made the same assertion.
(b) In 1979 there was a very telling statement from the Legal Adviser to the United States State
Department contained in a memorandum to the Acting Secretary of State, Warren Christopher.
In that memorandum, the United States Legal Adviser expressed the view that the Soviet
Union’s invasion of Afghanistan was contrary to Article 2, paragraph 4, of the Charter as well
as to the principle of self-determination of peoples. Given that Article 2 (4) was to be
considered a peremptory norm of international law, he indicated that the 1978 Treaty between
the USSR and Afghanistan was null and void by virtue of its conflict with a norm of
jus cogens. Antonio Cassese describes this statement as “a very skilful and subtle way of
elevating self-determination  albeit in an indirect and roundabout way  to the rank of
jus cogens”33.
3. Views of international bodies and scholars
73. While it is principally State-oriented action, such as United Nations resolutions and
multilateral conventions, that should be relied on to establish the right of self-determination as a
norm of jus cogens  and this is so because Article 53 describes a peremptory norm of general
international law as “one that is accepted and recognized by the international community of States
as a whole” (my emphasis)  reference may also be made to influential views of certain
international bodies and learned scholars:
(a) Although the work of the International Law Commission on peremptory norms of general
international law (jus cogens) is not yet concluded, it is noted that the Special Rapporteur has
on several occasions in his reports described the right to self-determination as a peremptory
norm, for example, paragraphs 92, 97, and 99 of his Third Report.
(b) In that regard, paragraph 3 of the 1966 International Law Commission’s commentary on
Article 50 of the VCLT addressed, inter alia, the question whether the Commission should
provide an illustrative list of norms of jus cogens. It was decided not to do so. However
paragraph 3 of the Commentary on Article 50 indicated that some members of the Commission
expressed the view that if examples were given, treaties violating the principle of
self-determination should be included. Similarly, paragraph 5 of the International Law
Commission’s 2001 Commentary on Article 40 of the draft Articles on Responsibility of States
for Internationally Wrongful Acts, identifies the right to self-determination as a peremptory
norm that is “clearly accepted and recognised”34.
33 Antonio Cassese, Self Determination of Peoples, Cambridge University Press, 1995 p. 138.
34 Commentary on the draft Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of
the International Law Commission, 2001, p. 85, para. 5.
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(c) Another example is James Crawford’s (as he then was) description of 1514 as having “a
quasi-constitutional status in international law which is similar to the Universal Declaration on
Human Rights and the Charter itself”35. To place the right to self-determination in the same
company as the Universal Declaration and the Charter is to put one’s estimation of the status of
the right at the very highest level.
Article 53 of the VCLT
74. Article 53 of the VCLT states:
“Treaties conflicting with a peremptory norm of
general international law (‘jus cogens’)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation
is permitted and which can be modified only by a subsequent norm of general
international law having the same character.”
75. This Article, which gave rise to so much controversy at the Vienna Conference on the
Law of Treaties, is fairly straightforward in its presentation and meaning. There are four points to
be made. First, the consequence of a breach of the norm by a treaty is that the treaty is rendered
void. This was a seminal development in international law, based on the traditional principle of
sovereignty of States, and in particular, in the law of treaties in which the principle of pacta sunt
servanda is paramount. Ultimately the controversy at the Conference was resolved by the insertion
of Article 66 in the Convention giving to a party to a dispute concerning the application of
jus cogens to a particular treaty the right to bring that dispute to the International Court of Justice.
Second, the norm in question must be a norm of general international law and must obviously meet
the requirements for that status. As we have seen, it is most usually norms of customary
international law that become peremptory norms of general international law. Third, the norm in
question must not only be a norm of general international law; it must be a norm that is accepted
and recognized by the international community of States as a whole as a norm from which no
derogation is permitted. This is indeed the most important criterion for the identification of a norm
of jus cogens. The material set out by the Court in Obligation to Extradite or Prosecute at
paragraph 99 provides evidence of this acceptance and recognition in relation to the prohibition of
torture. What is required is acceptance and recognition by the international community of States as
a whole  an important consideration, signifying that unanimity among all States is not required.
Fourth, the consequence of a norm being a peremptory norm of general international law is that
there can be no derogation from it. This consequence goes to the core of a norm of jus cogens. It is
the distinguishing feature of such a norm.
76. The foregoing analysis shows that there is a close relationship between obligations
erga omnes and a norm of jus cogens. Certainly both norms reflect fundamental values of the
international community. While a jus cogens norm will always result in an obligation erga omnes,
an erga omnes obligation will not always reflect a norm of jus cogens.
35 James Crawford, The Creation of States in International Law (2nd ed.), Oxford University Press, 1979, p. 604.
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77. In light of the analysis of the case law of the Court and Article 53 of the VCLT, it is
concluded that the right to self-determination is a norm of jus cogens and had that status at the
relevant period for the following reasons:
(a) it is a norm of customary international law that has become a peremptory norm of general
international law, which is recognized and accepted by States as a whole even without
conventional obligation to do so;
(b) it is a norm that reflects principles that have a moral and humanitarian underpinning, serving a
wider public, communitarian purpose;
(c) it is a norm that protects one of the most fundamental values of the international community,
namely, the obligation to respect the inherent dignity and worth of the human person, which
forms the basis of the right of peoples to freely determine their political status on the bases set
out in 1514. Indeed, as a right that is seen as essential for the enjoyment of all the rights
entrenched in the ICCPR and ICESCR, how could it not be a norm of jus cogens?
(d) it is a norm that is universally applicable in that it applies to all States;
(e) the evidentiary material set out in paragraphs 71 to 73 above establishes not only the existence
of the norm of the right to self-determination as a rule of customary international law, but also
as a peremptory norm of general international law; in particular, the instruments referred to
show the recognition and acceptance by States of the non-derogability of the norm.
78. A comment is warranted on the Court’s case law as a whole.
79. In its case law, the Court’s reasoning on jus cogens is largely based on the well-known
passage of the 1951 Reservations to the Convention on the Crime of Genocide Advisory Opinion,
(paragraph 52 above) in which the term jus cogens does not appear. That, of course does not
invalidate reliance on the passage.
80. Scholars have argued that Barcelona Traction was an apology for the 1966 Judgment on
South West Africa. Given that that case established obligations erga omnes  itself a concept
closely related to jus cogens  there would seem to be a historical, if not jurisprudential,
connection between the development of the law on jus cogens and the development of the law on
decolonization, which was at the heart of the 1966 Judgment in the South West Africa cases.
81. There is no need to venture into the stormy seas of the debate concerning the doctrinal
basis of jus cogens: natural law or consent-based positivism. However, there is an inescapable
contrast between the strong natural law tone of the 1951 Reservations case  “contrary to moral
law” and “the most elementary principles of morality”  and the more positivist, consent and
evidence-based approach in Obligations to Extradite or Prosecute. The contrast remains striking,
notwithstanding the Court’s description, 61 years later, of rules of international humanitarian law
as “the intransgressible principles of international customary law” in the Legality of the Threat or
Use of Nuclear Weapons. Twelve years before that decision, a trial chamber of the International
Criminal Tribunal for the former Yugoslavia found that “most norms of international humanitarian
law in particular those prohibiting war crimes, crimes against humanity and genocide, are also
peremptory norms or jus cogens i.e. of a non-derogable and overriding character”36. It may be that
36 Prosecutor v. Kupreskic, IT-95-16-T, para. 520.
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the doctrinal controversy will be settled along the lines of Judge Bedjaoui’s declaration in the
Legality of the Threat or Use of Nuclear Weapons that
“[t]he resolutely positivist, voluntarist approach of an international law still current at
the beginning of the century . . . has been replaced by an objective conception of
international law, a law more readily seeking to reflect a collective juridical
conscience and respond to the social necessities of States organized as a
community”37.
Here the eminent judge seems to be steering a course, avoiding the pitfalls of both natural law and
positivism and instead, mooring his approach to an international law reflecting what he calls a
“collective juridical conscience”.
82. The most striking feature of the Court’s case law is the apparent reluctance that it reveals
on the part of the Court to engage fully with the subject of jus cogens, at times only finding its
application in an indirect and oblique manner, and at other times, not pronouncing on the
application of the norm. Consequently, the keen observer may conclude that, despite finding the
application of jus cogens several times in its work, the Court’s embrace of the concept is somewhat
hesitant.
Application of the norm of jus cogens in the law of treaties in the context
of these advisory proceedings
83. Having found that the right to self-determination is a norm of jus cogens, the question
arises whether there was a treaty between the United Kingdom and the United States that conflicted
with it. If that is the case, that treaty would, pursuant to Article 53 of the VCLT, be void.
84. On 30 December 1966, the United Kingdom and the United States adopted an Exchange
of Notes constituting an Agreement concerning the Availability for Defence Purposes of the British
Indian Ocean Territory (with Annexes) (“the 1966 Agreement”)38. Paragraph 2 (a) of the
1966 Agreement provides:
“In the case of the initial United States requirement for the use of a particular
island the appropriate governmental authorities shall consult with respect to the time
required by the United Kingdom authorities for taking administrative measures that
may be necessary to enable any such defence requirement to be met.”
85. An Agreed Minute of the same date indicates that “the following agreement and
understanding [was] reached:
With reference to paragraph 2 (a) of the Agreement, the administrative
measures referred to are those necessary for modifying or terminating any economic
activity then being pursued in the islands, resettling any inhabitants, and otherwise
facilitating the availability of the islands for defence purposes.”
37 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 270,
declaration of Judge Bedjaoui, para. 13.
38 Exchange of Notes constituting an Agreement between the Government of the United Kingdom of
Great Britain and Northern Ireland and the Government of the United States of America concerning the Availability for
Defence Purposes of the British Indian Ocean Territory, United Nations, Treaty Series, 1967. Vol. 603, p. 274, No. 8737.
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86. In addition to the 1966 Agreement imposing an obligation on the United Kingdom to
make the island available to the United States for defence purposes, it also dealt with the collateral
matter of the administrative measures that the United Kingdom would have to take in relation to the
discharge of that obligation. These measures are as much a part of the 1966 Agreement as the
United Kingdom’s agreement to make the islands available for defence purposes. Significantly the
United Kingdom was charged with the responsibility of the resettlement of the inhabitants.
Although the Agreed Minute speaks of resettlement, it necessarily implies removal of the
inhabitants prior to their resettlement. The Court’s Advisory Opinion indicates that all the
Chagossians were removed between 1967 and 1973.
87. The objective of the 1966 Agreement to make the islands available to the United States
for defence purposes and the obligations incurred by the United Kingdom under the Agreed
Minute, including in particular, resettlement of the Chagossians who had been removed, are all in
conflict with the right of the peoples of Mauritius including the Chagossians, to self-determination.
The Advisory Opinion makes clear that the essence of this right is the obligation to respect the
freely and genuinely expressed will of colonial peoples as to their political status and economic,
social and cultural development. Nowhere in the proceedings is there any evidence that the peoples
of Mauritius, including the Chagossians, were consulted and their freely and genuinely expressed
will ascertained as to the establishment of the military base on the islands of the archipelago, and
the removal and resettlement of the inhabitants of the islands. Of course, the 1966 Agreement was
concluded against the background of the United Kingdom’s detachment of the Chagos Archipelago
from Mauritius some 13 months before, on 8 November 1965. The Court in its Advisory Opinion
has found that this act contravened the right to self-determination. However that finding does not
mean that other acts carried out in the decolonization process by the administering Power did not
also contravene the jus cogens norm of the right to self-determination.
88. The 1966 Agreement therefore conflicts with the right to self-determination of the
peoples of Mauritius including the Chagossians, and is void by virtue of Article 53 of the VCLT,
since that right is a norm of jus cogens. The 1966 Agreement is incapable of producing any legal
effects. According to the Monetary Gold principle, the Court will not exercise jurisdiction where
the legal interests of a third State would form “the very subject matter” of the claim39. In my view,
that principle would not prevent the Court making a finding of voidness of the 1966 Agreement in
the circumstances of these proceedings.
Application of the norm of jus cogens in the law of State responsibility
in the context of these advisory proceedings
89. In its Advisory Opinion, the Court found that the detachment of the archipelago by the
United Kingdom was an unlawful act. The legal consequences of an unlawful act that breaches a
peremptory norm are addressed by Articles 40 and 41 of the International Law Commission draft
Articles on Responsibility of States for Internationally Wrongful Acts, 2001. These Articles, which
would appear to reflect general international law, relate to the consequences of serious breaches of
an international obligation. Article 41 is devoted to consequences of a serious breach of an
obligation arising under a peremptory norm of general international law. “Serious breach” is
defined as a “gross or systematic failure by the responsible State to fulfil the obligation”. It is
beyond question that the United Kingdom’s detachment of the archipelago from Mauritius is a
gross failure on the part of the United Kingdom. States have an obligation not to “recognize as
lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or
assistance in maintaining that situation”. The Commentary to the Draft Articles makes clear that
39 Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United States of America),
Preliminary Question, Judgment, I.C.J. Reports 1954, p. 19.
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this duty applies to all States, including the responsible State. In the Legal Consequences of the
Construction of a Wall, the Court found that all States had a similar obligation in respect of the
breach of the right to self-determination, which it confirmed as a right establishing obligations
erga omnes.
PART III: THE QUESTION OF MAURITIUS’ “CONSENT” TO DETACHMENT
90. The principal findings of the Court in relation to this question are set out in
paragraph 172 of the Advisory Opinion. First, it is stated that at the time of the “consent” to the
detachment, Mauritius “was, as a colony, under the authority of the United Kingdom”. The Court
then cites a passage from a report from the Committee of Twenty-Four to the effect that by the
Constitution of Mauritius, it was the United Kingdom and its representatives and not the people of
Mauritius that had real power. Second, it was the view of the Court that one could not speak of an
international agreement when one “party” to it “was under the authority of the latter”. Third, the
Court concludes that, having reviewed the circumstances in which the Council of Ministers agreed
in principle, the detachment was not based on the “free and genuine expression of the will of the
people concerned”.
91. In my view, the circumstances in which Mauritius is said to have “consented” to the
detachment may be seen as forming part of a single transaction commencing with the meetings
between the Mauritian Premier and the United Kingdom’s Prime Minister on 23 September 1965,
and ending with the Council of Ministers confirming “agreement” with the detachment on
5 November 1965. The Advisory Opinion does not sufficiently identify the particular
circumstances which demonstrate that the detachment was not based on the free and genuine
expression of the will of the people of Mauritius, including the Chagossians. The separate opinion
will now examine these particular circumstances.
92. The Advisory Opinion referred to the meeting on 23 September 1965 between the
Premier of Mauritius and the British Prime Minister, and to the following brief that the
Prime Minister’s Private Secretary sent to him in advance of the meeting:
“Sir Seewoosagur Ramgoolam is coming to see you at 10.00 tomorrow
morning. The object is to frighten him with hope: hope that he might get
independence; Fright lest he might not unless he is sensible about the detachment of
the Chagos Archipelago . . . The key sentence in the brief is the last sentence of it on
page three.”40
The key last sentence read: “The Prime Minister may therefore wish to make some oblique
reference to the fact that H.M.G. have the legal right to detach the Chagos by Order in Council,
without Mauritius consent but this would be a grave step.” (Emphasis in original.)
93. During the meeting at 10 a.m. on 23 September 1965, the British Prime Minister made it
abundantly clear to Sir Seewoosagur that he could return to Mauritius “either with Independence or
without it” and that “the best solution of all might be Independence and detachment by
agreement”41. Sir Seewoosagur was between the proverbial rock and a hard place. He “agreed” to
40 United Kingdom Colonial Office, Note for the Prime Minister’s Meeting with Sir Seewoosagur Ramgoolam,
Premier of Mauritius, PREM 13/3320 (22 Sept. 1965), p. 1.
41 United Kingdom Foreign Office, Record of a Conversation between the Prime Minister and the Premier of
Mauritius, Sir Seewoosagur Ramgoolam, at No. 10, Downing Street, at 10 a.m. on Thursday, September 23, 1965,
FO 371/184528 (23 Sept. 1965), p. 3.
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the excision in order to obtain independence. The attempt by the United Kingdom to depict
Mauritius as misrepresenting what actually happened during the meeting is not convincing; nor is
the attempt to downplay the significance of the meeting with the submission that “Mauritius
focuses on a short internal minute prepared for the Prime Minister ahead of the meeting, and also
on a small part of the United Kingdom’s record of the meeting”. September 23, 1965 was a dark
day in British diplomacy; on that day British colonial relations reached a nadir. The intent to bully,
frighten and coerce the Mauritian Premier was all too obvious. If one needs an explanation of what
was meant in paragraph 1 of 1514 by alien subjugation, domination and exploitation, one need look
no further than the United Kingdom’s treatment of the Mauritian Premier. The intent was to use
power to frighten the Premier into submission. It is wholly unreasonable to seek to explain the
conduct of the United Kingdom on the basis that it was involved in a negotiation and was simply
employing ordinary negotiation strategies. After all, this was a relationship between the Premier of
a colony and its administering Power. Years later, speaking about the so-called consent to the
detachment of the Chagos Archipelago Sir Seewoosagur is reported to have told the Mauritian
Parliament, “we had no choice”42. It is also reported that Sir Seewoosagur told a news organization,
the Christian Science Monitor that: “There was a nook around my neck. I could not say no. I had to
say yes, otherwise the [noose] could have tightened.”43 It is little wonder then that, in 1982, the
Mauritian Legislative Assembly’s Select Committee on the Excision of the Archipelago concluded
that the attitude of the United Kingdom in that meeting could “not fall outside the most elementary
definition of blackmailing”44.
94. The Premier of Mauritius was appointed by the Governor under a constitutional
provision45 that directed him to appoint as the Premier the person in the Legislative Assembly who
appeared to him to command the support of the majority of the members of that Assembly. The
people of Mauritius gained adult suffrage in 1957. The Assembly consisted of 40 elected and
15 nominated members. It is possible that the Premier as well as any decision that he made could
be seen as reflecting the will of the peoples of Mauritius, provided he was himself free and
independent in making decisions affecting his people. But the circumstances in which the Premier
gave his “consent” to the detachment of the Chagos Archipelago during his meeting with the
British Prime Minister were wholly antithetical and repugnant to the free expression of his own
will. The general atmosphere was one of intimidation and coercion. Therefore any “consent” to the
detachment given by the Premier in those circumstances would not accord with what was required
by the customary and peremptory norm of the right to self-determination. That norm, as we have
seen, required the free and genuine expression of the will of the peoples as to their political future.
This subversion of Sir Seewoosagur’s personal will meant that his decision could not reflect the
collective will of the people of Mauritius including the Chagossians.
95. The United Kingdom argued that the Mauritian Council of Ministers consented to the
detachment on 23 September and on 5 November 1965. However, the Council of Ministers that
gave its consent could not, by virtue of the manner in which it was constituted, be seen as reflecting
the free and genuine expression of the will of the people. It simply was not sufficiently independent
of the Governor to be capable of reflecting in its decision-making the will of the peoples of
Mauritius including the Chagossians. The Council consisted of 10 to 13 members, the Chief
Secretary and the Premier. The members of the Council were appointed by the Governor, after
42 Mauritius Legislative Assembly, Speech from the Throne  Address in Reply: Statement by the Prime Minister
of Mauritius, 11 Apr. 1979, p. 456.
43 See reference to that statement in Mauritius Legislative Assembly, Reply to PQ No. B/1141 (25 Nov. 1980),
p. 4223.
44 Mauritius Legislative Assembly, Report of the Select Committee on the Excision of the Chagos Archipelago,
No. 2 of 1983, June 1983, para. 52 E.
45 Mauritius (Constitution) Order 1964, 26 February 1964, Article 60 (1).
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consultation with the Premier. They were persons who were either elected or nominated members
of the Legislative Assembly, which consisted of 40 elected members and up to 15 members
nominated by the Governor46. The nominated members of the Legislative Assembly held office at
the pleasure of the Governor47. The Governor presided over the meetings of the Council and
determined whether a meeting could take place at all. Questions regarding membership of the
nominated members of the Council were determined by the Governor acting in his discretion48.
Moreover, although under Section 59 of the Constitution, the Governor was obliged to consult with
the Council of Ministers on policy matters, he was not obliged to do so in any situation where, in
his judgment, “Her Majesty’s service would sustain material prejudice if the Council was consulted
thereon”49. The important point about this Council is that every single member (even those elected)
ultimately owed his appointment to the Governor. There could be no Council without the
Governor. It is entirely possible that, showing scant regard for democratic governance, the Council
of Ministers could have been constituted by the Governor with 13 persons nominated by him and
holding office at his pleasure. The lack of real power by the representatives of Mauritius has been
highlighted by the Court in its reference to the Committee of Twenty Four’s Report that in
Mauritius power was effectively in the hands of the United Kingdom and its representatives, and
not the representatives of Mauritius.
96. Although the Governor’s appointment of members of the Council of Ministers was done
after consultation with the Premier, he had no obligation to give effect to any recommendation that
might have been made by the Premier. In those circumstances a decision of that Council
“consenting” to the detachment could never be taken as reflecting the free and genuine expression
of the will of the people. Structured as it was, it is not unlikely that the Council would reflect the
will of the Governor rather than the will of the people. The Governor’s allegiance was not to the
people of Mauritius including the Chagossians but to Her Majesty. That is why the Mauritius
(Constitution) Order provided that the Governor was not obliged to consult the Council in any
situation where, in his view, such consultation would prejudice Her Majesty’s service. On that
basis therefore the “consent” of the Council of Ministers to the detachment amounts to nothing
because it was not representative of the will of the peoples of Mauritius including the Chagossians.
97. No doubt it was the presence of undemocratic features in colonial governance of the kind
described above that prompted the General Assembly to emphasize that the will of the people was
to be ascertained through “plebiscites or other recognized democratic means, preferably under the
auspices of the United Nations”50. Principle IX of resolution 1541 (XV) of 15 December 1960
reiterates that integration should be based on the result of the “freely expressed wishes of the
territory’s peoples acting with full knowledge of the change in their status, their wishes having
been expressed through informed and democratic processes, impartially conducted and based on
universal adult suffrage”.
98. The United Kingdom also argued that the “consent” of Mauritius to the detachment was
given in the general election that was held in 1967. The United Kingdom maintained that the
political party which supported the detachment won the majority in those elections and therefore
this meant there was no negative public reaction to the detachment. The reality, however, is that by
the time of the elections in 1967 the detachment was a fait accompli in that it had already been
carried out and the United Kingdom had already entered into an agreement with the United States
46 Mauritius (Constitution) Order, Art. 27 (1). It also included the Speaker and the Chief Secretary ex officio.
47 Mauritius (Constitution) Order, Art. 32 (1).
48 Mauritius (Constitution) Order, Art. 34 (1).
49 Mauritius (Constitution) Order, 2. 59 (2).
50 United Nations General Assembly, res. 637 A (VII).
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of America for the archipelago to be used for defence purposes for 50 years. In the election the
people were not given the option of retaining the archipelago as part of Mauritius with
independence. That election therefore cannot be seen as a reflection of the will of the peoples of
Mauritius, including the Chagossians, as to the detachment.
99. The story of the Chagossians as told in these proceedings is in three parts  the
detachment of the archipelago in 1965, the Agreement to allow the United States to install a
military base on the islands and the removal of the Chagossians from the islands. Both in its several
parts and as a whole, this is a story of alien subjugation, domination and exploitation, condemned
by 1514, and which in every respect breached the jus cogens right of the people of Mauritius,
including the Chagossians, to self-determination and independence.
100. This analysis substantiates the conclusion of the Court that the detachment was not
based on the free and genuine expression of the will of the people concerned.
PART IV: THE PLIGHT OF THE CHAGOSSIANS
101. The Court’s Advisory Opinion devotes a section to what is described as “the situation
of the Chagossians”. Given the circumstances in which they find themselves some five and a half
decades after the detachment of the archipelago, it might be more appropriate to speak of “the
plight of the Chagossians”.
102. The Chagossians are a people uprooted from their homeland and taken against their will
to other places, an act strikingly redolent of the abduction of millions from Africa four centuries
ago, their transportation to other countries and enslavement to work on plantations. The majority of
Chagossians were forcibly removed. Others who had travelled outside the archipelago for various
purposes were prevented from returning. Mr. Louis Olivier Bancoult, was born on Peros Banhos in
1964. His family and himself had travelled to Mauritius for medical treatment. They were
prevented from returning to their home. Mr. Bancoult would have left the archipelago when he was
about one year old. He is the founder and Chairperson of the Chagos Refugee Group and has been
involved in a representative capacity either directly or indirectly in all of the litigation that has
taken place since the Chagossians’ removal from the archipelago. He has challenged the action of
the United Kingdom Government in its courts on several occasions over the last twenty years, the
last case being Bancoult No. 5, a decision of the United Kingdom’s Divisional Court on 8 February
2019. Mr. Bancoult, who deserves a prestigious international award for the courage and tenacity he
has shown on behalf of his people, has not succeeded in any of his actions. Today, as the Court has
said in its Advisory Opinion, he and the other Chagossians have not been able to return to their
home as a result of United Kingdom laws and decisions of its courts.
103. A number of Chagossians attended the advisory proceedings in the Great Hall of
Justice. Ms Marie Liseby Elyse was one. She made a statement for presentation to the Court. Since
she would have only been able to address the Court in Kreol and is unable to read a written
statement, her statement was presented in the form of a video recording. An English translation of
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her speech was submitted to the Court. It is attached as an annex to this separate opinion. Ms Elyse
presents a human face in this distressing saga, an aspect of which  the administration of the
archipelago by the United Kingdom  the Court has found must now be brought to an end.
104. Ms Elyse’s statement paints a picture of a simple, happy and almost idyllic life on the
archipelago. It was her “paradise lost” that Mr. Bancoult, just a year old when he left, has spent the
last two decades of his life trying to “regain”.
105. Ms Elyse said that the conditions in the hull of the ship that transported the Chagossians
from the archipelago were “bad”, and that they were “like animals and slaves in that ship”. The
irony of this statement should not be lost on the international community, since some two centuries
before her ancestors had been brought to the island and enslaved to work on coconut plantations;
they were freed in the 1830s, but in the hull of the ship she experienced another enslavement.
106. The right to return to one’s country is a basic human right protected by Article 12 of the
ICCPR. It is the humanity of the Chagossians that has been violated. The 1951 Reservations to the
Convention on the Crime of Genocide Advisory Opinion speaks about that humanity when it refers
to conduct “contrary to moral law” and a purpose that “endorses the most elementary principles of
morality”. The Court in the well-known passage of which these phrases are a part, identifies the
very essence of a norm of jus cogens and an obligation erga omnes: principles that protect the
fundamental values of the international community.
107. In Secretary of State for the Foreign and Commonwealth Affairs v. the Queen (on
application of Bancoult) 2007 EWCA Civ. 498, Judge Sedley spoke persuasively of the right to
return to one’s home when he said in the Court of Appeal judgment:
“The point is that the two Orders in Council negate one of the most fundamental
liberties known to human beings, the freedom to return to one’s own homeland,
however poor and barren the conditions of life, and contingent though return may be
on the property rights of others; and that they do this for reasons unconnected with the
well-being of the people affected.”
This judgment of the Court of Appeal that was in favour of Mr. Bancoult’s position was overturned
by the House of Lords.
108. The story of the Chagossians is a human tragedy that has no place in the twenty-first
century. It is a story that would appear to bely the greatest advance in international law since 1945:
as a response to the atrocities of the Second World War, the development of a body of law based on
respect for the inherent dignity and worth of the human person. The United Kingdom itself was a
significant actor in that development, which must now be made by all those concerned to work to
the advantage of the Chagossians.
109. The Court has rightly taken note of the apology given by the United Kingdom for the
treatment of the Chagossians.
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110. The General Assembly identified the question of the resettlement of the Chagossians as
an issue on which it wished to be advised by the Court. The Court, noting that this question relates
to fundamental rights of the individual, has remitted it to the General Assembly, stressing that it
should be taken into account during the completion of the decolonization of Mauritius.
(Signed) Patrick ROBINSON.
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