INTERNATIONAL COURT OF JUSTICE
. RE: LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT
SUBMITTED BY
THE REPUBLIC OF CYPRUS
12 FEBRUARY 2018
2
TABLE OF CONTENTS
1. Introduction
....................................................................................................
................... 4
II. Jurisdiction of the Court
..................................................................................................
5
A. The General Assembly is Competent to Make the Request
...................................6
B. The Request isjor an Opinion on Legal
Questions...............................................7
C.
Conclusion..........................................................................................
.....................8
Ill. There Are No Compelling Reasons Preventing the Court from Providing the
Requested Advisory Opinion
........................................................................................... 8
IV. Conclusion
....................................................................................................
................... 12
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WRITTEN STATEMENT
1. Introduction
1. This Written Statement is filed by the Republic of Cyprus in accordance with the Order
of the Court dated 14 July 2017 in response to the United Nations General Assembly's request for
an advisory opinion contained in resolution 711292 (A/RES/71/292), dated 22 June 2017.
2. In accordance with Article 96 of the Charter of the United Nations and pursuant to Article 65
of the Statute of the Court, the General Assembly in resolution 711292 requested that the Court
render an advisory opinion on the following questions:
"(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted
independence in 1968, following the separation of the Chagos Archipelago from Mauritius and
having regard to international law, including obligations reflected in General Assembly resolutions
1514 (XV) of
14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20
December 1966 and 2357 (XXII) of 19 December 1967?
(b) What are the consequences under international law, including obligations reflected in the
above-mentioned resolutions, arising from the continued administration by the United Kingdom of
Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the
inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of
its nationals, in particular those of Chagossian origin?"
3. The Republic of Cyprus submits this Written Statement for the following reasons.
First, as a member of the international community, the Republic of Cyprus holds the view that the
international legal framework governing decolonization must be further clarified, inter alia due
to the jus cogens character of the right of self-determination and the erga omnes nature of
the obligations stemming from it. It considers that decolonization is a proper subject-matter
for an advisory opinion given the critical raie of the General Assembly in the decolonization
process. As a result, the Republic of Cyprus is further of the view that the General Assembly, and
the international community, would substantially benefit from an advisory opinion on the legality
of the decolonization process of Mauritius and its consequences. To this end, the
Republic of Cyprus emphasizes the essential role that the Court serves in issuing advisory
opinions on matters requested by authorized bodies, such as the General Assembly.
4. Second, Cyprus is itself a former colony, where at the end of British colonial rule in
1960, the United Kingdom retained two areas of the territory of the island as bases, to be used
solely for military purposes. The guidance of the Court on, and the clarification
of, the international legal framework governing the decolonization
4
process and its consequences are therefore of direct interest to the Republic of
Cyprus.
5. lt is with these considerations in mind that the Republic of Cyprus voted in faveur of
resolution 711292 (A/RES/71/292), dated 22 June 2017, containing the General Assembly's request
for an advisory opinion.
6. At this stage in the proceedings, the Republic of Cyprus will make reference to the
jurisdiction of the Court to render an advisory opinion on the questions set out in General
Assembly resolution 71/292 and will submit its views in faveur its jurisdiction,
fully reserving its right to make any further submissions regarding issues of substance on the said
questions at a later stage.
II. Jurisdiction of the Court
7. Article 65(1) of the Statute of the Court provides:
"The Court may give an advisory opinion on any legal question at the request of whatever body may
be authorized by or in accordance with the Charter of the United Nations to make such a
request."
8. Article 96(1) of the Charter of the United Nations provides:
"The General Assembly ... may request the Lnternational Court of Justice to give an advisory
opinion on any legal question."
9. In accordance with these provisions, the Court has jurisdiction on the basis that (i) the
General Assembly is authorized by At1icle 96(1) of the Charter to make a request for an advisory
opinion and it has done so by General Assembly Resolution 711292,
adopted on 22 June 2017;1 (ii) the General Assemb1y is competent to make the
request since the request concems matters within the scope of the General
Assembly 's activities; and (iii) the request is for an opinion on legal questions. The Republic
of Cyprus considers it necessary to comment only in relation to the last two of these points, given
that the aforementioned Resolution was passed by a recorded vote of94 in favour, 1 5 against,
and 65 abstentions, and was thus properly adopted by the required majority of UN Member States
present and voting, in accordance with
Rule 86 of the General Assembly's Rules of Procedure.2
UN Doc A/ RES/71 /292.
Rule 86 of the General Assembly 's Ru les of Procedure defines the terms "members present and
voting" at paragraphs 2-3 of Article 18 of the UN Charter to mean members casting
affirmative or negative votes and excludi ng those that abstain.
5
A. The General Assembly is Competent to Make the Request
1O. Paragraph 1 of Article 96 authorizes the General Assernbly to rnake a request for an advisory
opinion "on any legal question" (ernphasis added). The provision does not require that such a
request should fall within the scope of the General Assembly 's activities, unlike the power
to request advisory opinions given to the organs rnentioned in paragraph 2 of the
same Article. The Court has clearly drawn this distinction in its previous jurisprudence.3
However, also in previous jurisprudence,
the Court has given consideration as to whether the subject-matter of the request
concerns the activities ofthe General Assernbly.4
11. In the present case, it is clear that the subject-matter of the request relates to the
activities of the General Assembly. In accordance with Article 10 of the Charter, the powers of
the General Assernbly are broad, and encompass the power to "discuss any questions or any matters
within the scope of the present Charter". Articles 1(2) and 55 of the Charter, along with Article
73, as interpreted and applied in what constitutes established practice of the General Assernbly
over many decades, and in particular against the background of Resolution 1514 (XV) of
1960 and many subsequent
resolutions,5 clearly establish that questions of self-determination and of the process
of decolonization fall within the scope of the Charter and thus within the scope of the activities
of the General Assembly.6 The General Assembly has in fact specifically concerned itself with the
process of decolonization of Mauritius, in particular in Resolutions 2066 (XX) of 16 Decernber
1965, 2232 (XXI) of 20 Decernber 1966 and
2357 (XXII) of 19 December 1967.
12. The opinion of the Court on whether the process of decolonization of Mauritius has been
lawfully completed, and on the legal consequences of the continued administration of the
Chagos Archipelago by the United Kingdorn, will be of crucial significance to any further
consideration of the process of decolonization of Mauritius
See. e.g., Accordance with International Law of the Unilateral Declaration of lndependence in
Respect of Kosovo, Advisory Opinion, J.C.J. Reports 2010, para. 19 (quoting Application for Review
ofJudgment No. 273 of the United Nations Administrative Tribunal, Advis01y Opinion, I.C.J. Reports
1982, para. 2 1 ).
See Accordance wilh International Law of the Unilateral Declaration of lndependence in
Respect of Kosovo, Advis01y Opinion, /.C.J. Reports 2010, para. 21; Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territ01y, Advisory Opinion, I.C.J. Reports
2004, para.16; Legalit y of the Threat or Use of Nuclear Weapons, Advisory Opinion, !.C.J.
Reports 1996, paras 11 -1 2; Interpretation of Peace Treaties with Bulgaria, Hungmy and Rumania,
First Phase, Advisory Opinion, !.C.J. Reports /950, p. 65 at p. 70.
See, e.g., General Assembly Resolutions 1 654 (XV I ) of 27 November 1961 ; 43/47 of 22 November
1988;
55/ 146 of 8 December 2000; 6511 18 of 1 0 December 201 0; 651119 of 1 0 December 201 0; 7111 22 of
6 December
20 16; the annual resolutions regard ing dissemination of information on decolonization; as well
as the work of the so-called 'Committee of 24' established by Resolution 1654 (XVI) to
monitor the implementation of Resolution
1514 (XV) and in continuous operation since then.
6 See also Western Sahara, Advisory Opinion, l.C.J. Reports 1975, paras 54 et
seq.
6
by the General Assembly, within the scope of its powers, including its power to make
recommendations on the matter.
B. The Request is for an Opinion on Legal Questions
13. Under Article 96(1) of the UN Charter and Article 65(1) of the Statute, the Court's advisory
opinion may be given only on a "legal question". The Court has held that questions "framed in
terms of law and rais[ing] problems of international law" are "by their very nature
susceptible of a reply based on law."7 Resolution 711292
requests the Court to interpret rules and principles of international law regarding fundamenta1
aspects of the international legal order and of the United Nations system, including
decolonization and self-determination. The questions asked in the Resolution are, indisputably,
eminently legal in nature.
14. To address the above-referenced questions, the Court will need to analyze the
requirements for the lawful completion of decoloni zation under international law,
including UN Resolutions and jurisprudence, and the consequences of any departure from this
process. The questions are, therefore, of a legal character.
15. The fact that a question may also have "political aspects", does not negate
jurisdiction. 8 The Court has observed that a question's "political aspects do [] not suffice
to depri ve it of its character as a legal question."9 It has also made clear that
"in determining the jurisdictional issue of whether it is confronted with a legal
question," it "is not concerned with the political nature of the motives which may have
inspired the request or the political implications which its opinion might have."10
Legality of the Use by aState of Nuclear W ea pons in Armed Conjlict, Advisory Opinion, J.C.J.
Reports
1996, para. 1 3 (quoting W estern Sahara, Advisory Opinion, l.C.J. Reports 1975, para. 15).
8 See, e.g., Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, para. 41; Application for
Review of Judgment No. /58 of the United Nations Administrative Tribunal, Advismy Opinion, l.C.J.
Reports 1973 , para. 14.
9 Accordance with international Law of the Unilateral Declaration of
lndependence in Respect of Kosovo, Advisory Opinion, l.C.J. Re ports 2010, para. 27.
10 Accordance with International Law of the Unilateral Declaration of lndependence
in Respect of Kosovo, Advisory Opinion. l.C.J. Reports 20 10 , para. 27 ("The Court has repeatedl
y stated that the fact that a question has political aspects does not suffice to depri ve it of
its character as a legal question. Whatever its political aspects, the Cowt cannot refuse to
respond to the legal elements of a question which invites it to discharge an essentially judicial
task, namel y, in the present case, an assessment of an act by reference to international law. The
Court has also made clear that, in determining the jurisdictional issue of whether it is
confronted with a legal question, it is not concerned with the pol itical nature of the motives
which may ha ve inspired the request or the political implications which its opinion might have (
Conditions of Admission of a State in Membership of the United Nations (Article 4 of the Charter),
Advisory Opinion, 1948, l.C.J. Reports 1947-1948, p. 61, and Legality ofthe Threat or Use
ofNuclear Weapons, Advismy Opinion, J.C.J. Reports 1996 (!), p. 234, para. 13).")
7
16. Thus, the Court found it had jurisdiction over a request that asked whether the "use of nuclear
weapons by a State" would "be a breach of its obligations under international law," despite the
political context in which it was generated and the political motives behind it, because it raised
"a legal question."11 Likewise, the Court accepted as a
legal question, a request asking it to pronounce on the "legal consequences" of Israel's
construction of a wall in Occupied Palestinian Territory. The Court found that it had
jurisdiction, because the request required it to "identify the existing legal principles
and rules, interpret them and appl y them ... thus offering a reply to the
question posed based on law."12
17. In the present case, the General Assembly has requested the Court for its opinion asto whether
the process of decolonization of a particular territory has been completed in accordance with
the relevant rules of international law, and as to the legal consequences stemming
from a State's continued administration of a particular territory. The questions require
the Court to identify the existing legal principles and rules regarding lawful completion of the
process of decolonization, interpret them, and apply them. As such, the questions invite the
Court to "discharge an essentially judicial task". 13
C. Conclusion
18. lt follows that, in the present case, the Court has jurisdiction to render an advisory
opinion, since this was requested by the General Assembly as a duly authorized organ and in
relation to its activities, and concems legal questions, thus satisfYing the conditions
of Article 65(1) of the Statute of the Court and Article 96(1) of the Charter.
III. There Are No Compelling Reasons Preventing the Court from Providing the
Requested Advisory Opinion
19. Even ifthe conditions for jurisdiction are met, the Court has interpreted Article 65(1) of
its Statute as giving it discretion to render or refuse to render the opinion req
uested. 14 However, the present Court has never refused to give an advisory opinion
Il Legality ofthe Threat or Use ofNuclear Weapons, Advisory Opinion, l.C.J. Reports 1996
(I), paras. 1 6-17.
12 Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Ad visory
Opinion, I .C.J. Reports 2004, para. 38 (quoting Nuclear W eapons, l.C.J. Reports 1 996, para.
13).
13 Accordance with International Law of the Unilateral Declaration of
!ndependence in Respect of Kosovo, Advisory Opinion, I.C..J. Reports 2010, para. 27.
14 Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, J.C.J. Reports 2004, para. 44 (citing Legality ofthe
Threat or Use ofNuclear Weapons, Advisory Opinion, l.C.J. Reports /996, para. 14).
8
through the exercise of this discretion. 1 5 As the Court has repeatedly held, "[t]he reply of the
Court, itself an 'organ of the United Nations', represents its particifnation in the activities of
the Organization, and, in principle, should not be refused." 6 The Court has further held that
only "compelling reasons" should serve as a basis for the Court to exercise its discretion to
decline to issue an opinion. 17
20. The purpose of advisory opinions is to furnish the organ which has made the request with the
elements of law necessary for its action. 18 In the present case, there are no compelling reasons
for the Court to decline to issue an advisory opinion. Advisory opinions regarding questions of
decoloni zation are of great importance to the General Assembly. They are sought to assist the
General Assembly in its activities; and they
are given to the requesting organ, rather than to States. lndeed, the Court has found that the
motives of individual States sponsoring or voting in favour of a resolution requesting an
advisory opinion "are not relevant to the Court's exercise of its discretion whether or
not to respond".19 Motives are thus as iiTelevant with respect to
15 lts predecessor court, the Permanent Court of International Justice, did
so only once, in 1 923: Sratus of Eastern Carelia, Advis01y Opinion, 1923, P.C.I.J., Series B,
No. S. However, the particular circumstances which prompted the Court to refuse to give an
advisory opinion in that case were that the question directly concerned an existing dispute,
one of the parties to which was neither a party to the Court's Statute nor a member of the
League of Nations, objected to the proceedings and refused to take part in them (see Legality
of the Threat or Use of Nuclear Weapons, Advis01y Opinion, I.C.J. Reports 1996, para. 1 4).
lndeed, the lack of competence of the League to deal with a dispute involving a non-m ember
State which refused its intervention was "a decisive reason" for the Court declining to render
an advisory opinion i n that case (see Western Sahara, Adviso1y Opinion, I.C.J. Reports 1975,
para. 30). ln the present case, the focus i s not on an ex i sting dispute but rather on
the lawful completion of the process of decolonization of a particular terri tory and
the legal conseq uences stemming from the continued administration of a terri tory by a
State that is both party to the Court 's Statute and a founding member of the United Nations,
and which , f urther, is taking part i n the proceedin gs.
16 Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania, Firsl Phase,
Advis01y Opinion, I.C.J. Reports 1950, p. 65 at 71 . See also Accordance with Int ernational Law
of the Unilateral Declaration of Independence in Respect of Kosovo, Advis01y Opinion, I.C.J.
Reports 2010, para. 30; Legal Consequences of the Construction C?f a Wall in the Occupied
Palestinian Territory, AdvisOIJ' Opinion, I.C.J. Reports 2004, para. 44.
17 Judgments of the Administrative Tribunal of the lLO upon Complaints Made against
UNESCO, Advisory Opinion, I.C.J . Reports 1 956, p. 77, at 86; see also Legality of the Threat
or Use ofNuclear Weapons, Advisory Opinion, I.C.J. Re ports 1996, p. 226, para. 14 (same).
The United Kingdom also ack now ledged in its Written Statement in the Wall advisory opinion
thal, as the Court held in Legality of the Threal or Use of Nuc/ear Weapons, "only 'compelling
reasons' should l ead it to refuse to give an opinion when requested to do so by a competent
organ or agency," and that "[o]n no occasion amongst the 23 req uests for an advisory opi
nion considered by the Court prior to this date has the Court found such compelling
reasons to exist ... ". Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advis01y Opinion, Written Statement of the U nited Kingdom of Great
Britain and Northern Ireland, 30 January 2004, para. 3.4.
18 ln its Opinion concerning Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide (I.C. J. Reports 1951, p. 15, at 1 9) the Court observed: "The
object of thi s req uest for an Opinion is to guide the United Nations in respect of its own
action."
19 See Accordance with International Law of the Unilateral Declara/ion of
!ndependence in Respect of
Kosovo, Advis01y Opinion, !.C.J. Reports 2010, para. 33.
9
the Court's discretion to render an advisory opinion as they are with respect to the
Court'sjurisdiction (see also paragraph 14, supra).
21. The Court has further found that it is for the requesting organ to determine whether it needs
a particular advisory opinion for the proper performance of its functions. In the present case, it
is clear that the questions put to the Court by the General Assembly are both urgent and relevant
to the work of the Assembly, and are likely to have a practical and contemporary effect in light
of the General Assembly's critical role in
eliminating the vestiges of colonization.20 General Assembly Resolution 65/119 of 10
December 2010 declared the period 2011-2020 the Third International Decade for the Eradication of
Colonialism. Furthermore, Resolution 71/122 of 6 December 2016 called for the immediate and
full implementation of the Declaration on the Granting of Independence to Colonial Countries and
Peoples. The General Assembly continues to oversee the process of decolonization in
accordance with its powers, and is working towards its ultimate completion.
22. The requested Advisory Opinion would advance these goals as the request directly relates to
these resolutions and raises important issues specified in paragraphs 3, supra, and 25,
infra. The opinion will provide guidance for the General Assembly in the exercise of its
responsibilities regarding decolonization.
23. In the debate on the draft which became General Assembly Resolution 71/292, and in their
explanations of vote, certain States raised the issue that the subject-matter of the advisory
opinion is a bilateral matter between Mauritius and the United Kingdom, and sought to cast
doubt on the motives of States supporting the Resolution as seeking to circumvent the
principle of consent to the judicial resolution of disputes between States or a bilateral
territorial dispute between the two States, and sought to cast doubt on the motives of
States supporting the Resolution as seeking to circumvent the principle of consent to
the judicial resolution of disputes between States?' ·
24. As the Court has stated in the Peace Treaties Advisory Opinion, consent is not the basis of
its advisory jurisdiction, even where the request relates to a legal question actually pending
between States.22 However, the Court does regularly examine the opposition of interested States
in the context of issues of judicial propriety,23 as "[i]n
20 See Standa rd set out in Western Sahara, Advisory Opinion, I.C.J. Reports
1975, p. 12, at 37, para. 73; see a/so Resolution 1 514 (XV) of 14 December 1960; Resolution
2066 (XX) of 16 December 1965; Resolution 2232 (XX I) of20 December 1966; Resolution 2357
(XXII) of 1 9 December 1967; Resolution 2625 (XXV) of24 October
1 970.
21 See UN Doc. A/71 / PV.88 of22 June 201 7.
22 Interpretation of Peace Treaties with Bulgaria, Hungary and Rumania, Firsl
Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 7 1.
23 Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory
Opinion, /.C.J. Re ports 2004 , para. 47.
10
certain circumstances . . . the Jack of consent of an interested State may render the giving of an
advisory opinion incompatible with the Court's judicial character".24
25. In this connection, the Republic of Cyprus submits that, as the Court stated in the Kosovo
Advisory Opinion, and as already discussed in paragraph 19, supra, the motives of
individual States sponsoring or voting in favour of a resolution requesting an advisory opinion
"are not relevant to the Comi's exercise of its discretion whether or not to respond".
26. Furtherrnore, as the Court pointed out in the Wall and Namibia Advisory Opinions, while
interested States have expressed divergent views on the questions on which the present advisory
opinion is sought, such differences of views on legal issues have
existed in practically every advisory proceeding.25 In any case, the subject-matter of the
present request for an advisory opinion cannot be regarded as a purely bilateral
matter between Mauritius and the United Kingdom. Matters pertaining to decolonization are
proper subjects for an advisory opinion, given the critical role of the General Assembly in thi s
process, the jus cogens nature of self-determination, and the erga omnes nature of the obligations
with respect to decolonization. The UN, as a whole, and the General Assembly in particular, shall
benefit substantially from the guidance of and clarification by the UN's principal judicial
organ on the legality of the decolonization process and its consequences. This is undoubtedly
a matter of direct concem to the United Nations.
27. Finally, as the Court stated in Western Sahara , and as explained above, the object of the
advisory opinion requested in this case is for the General Assem bly to obtain an opinion which it
deems of assistance to it for the proper exercise of its functions conceminf decolonization, and
in particular the decolonization process of a specifie
territory.2 This legitimate interest of the General Assembly in obtaining an opinion
with respect to its own future action cannet be prejudiced by the fact that there may exist a
legal question, or even a dispute, actually pending between States and raising issues related to
those contained in the request for an advisory opinion.27
28. In conclusion, whether the Court issues an advisory opinion on a matter of direct concem
to the United Nations, and its General Assem bly, does not and may not depend on the
consent of any particular State or States. This would defeat the purpose
24 Western Sahara, Advisory Opinion, J.C.J. Reports /975, paras 32-33.
25 Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, 1.C..J. Reports 2004, para. 47; Legal Consequences for
States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Counci/ Resolution 276 (1970), Advisory Opinion, 1. C. J. Reports 1971 , para. 34.
26 See West ern Sahara, Advismy Opinion, J.C.J. Reports 1975, paras 39-40.
27 Western Sahara, Advisory Opinion, J.C.J. Reports /975, para. 41.
11
of the authorized organs' requests, which are made when the organ is in need of
assistance from the UN's principal judicial organ when a matter is "deemed to be directly of
concem to the United Nations."28
29. There are thus no compelling reasons why the Court should not render the advisory opinion,
which has been requested of it. Indeed, the advisory opinion will be of crucial
significance to the work of the General Assembly of the United Nations.
IV. Conclusion
30. The Republic of Cyprus accordingly submits that:
a. The General Assembly's request for an advisory opm10n satisfies the conditions
of the Statute of the Court and the United Nations Charter both as regards the competence of the
requesting organ and as regards the substance of the request; and the Court accordingly has
jurisdiction in this case.
b. There are no "compelling reasons" why the Court should not render the advisory
opinion which has been requested of it.
The Republic of Cyprus reserves the right to fumish information and/or to make any further
submissions on the questions submitted to the Court for an advisory opinion in a possible second
written statement, the time - limit for which has been fixed for
15 May 2018.
28 See Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, /.C.J. Re ports 2004, para. 50 (''The object of the
request before the Court is to obtain from the Court an opinion w hich the General Assembly deems
of assistance to it for the proper exercise of its functions. The opinion is requested on a
question which is of particular acute concem to the United Nations, and one which is located in
a much broader frame of reference than a bilateral dispute. In the circumstances, the Court does
not consider that to give an opinion wou Id have the effect of circumventing the principl e of
consent to judicial settlement, and the Court accordingly cannot, in the exercise of its
discretion, decline to give an opinion on that ground.")
12
Written Statement of Cyprus