Written Statement of the Netherlands

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INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS
ARCHIPELAGO FROM MAURITIUS IN 1965
(REQUEST FOR AN ADVISORY OPINION)
WRITTEN STATEMENT OF THE KINGDOM OF THE NETHERLANDS
27 February 2018
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1. Introduction
1.1 In Resolution 71/292, adopted on 22 June 2017, the General Assembly of the United Nations
decided, pursuant to Article 65 of the Statute of the International Court of Justice, to request
the Court to 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 abovementioned
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?”.
1.2 In its Order of 14 July 2017, the Court designated 30 January 2018 as the time limit within
which written statements on the question may be presented to it, by the United Nations and
States entitled to appear before the Court, in accordance with Article 66.2 of the Court’s Statute.
1.3 As the Kingdom of the Netherlands is a Member State of the United Nations and by virtue
of Article 92 of the Charter of the United Nations (UN Charter) also a Party to the Statute of
the Court, it wishes to avail itself of the opportunity afforded by the Court’s Order of 14 July
2017 to make a written statement on the abovementioned request by the General Assembly for
an advisory opinion of the Court.
1.4 It is submitted that the question put before the Court essentially relates to the international
legal rules applicable to the exercise and realization of the right of self-determination of
peoples, as well as the international legal consequences of a possible violation of the right of
self-determination, in the context of decolonization.
1.5 According to the Kingdom of the Netherlands, the right of self-determination of peoples is
not exhausted by a one-off exercise, but a permanent, continuing, universal and inalienable right
with a peremptory character. However, there are essential differences between the colonial and
post-colonial context in regard of the entitlement of peoples to the particular implementation of
this right. In Accordance with International Law of the Unilateral Declaration of Independence
by the Provisional Institutions of Self-Government of Kosovo, the Kingdom of the Netherlands
has expressed it views in regard of a number of aspects related to the implementation of the
right of self-determination in the post-colonial context. In this submission, the Kingdom of the
Netherlands expresses its views in respect of the subject, legal status, implementation and
exercise of the right of self-determination in the colonial context, with particular attention to
the transition from the implementation of the right of self-determination in the colonial context
to the implementation and exercise of the right of self-determination in the post-colonial
context.
2. Scope of the right of self-determination
2.1 Relevant international instruments contain comparable formulations regarding the content
of the right of self-determination of peoples. Paragraph 2 of Resolution 1514 states:
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“[a]ll 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.”
An identical formulation has been included in Articles 1 of the 1966 Covenants. Resolution
2625 states:
“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the
United Nations, all peoples have the right freely to determine, without external interference, their political
status and to pursue their economic, social and cultural development, and every State has the duty to respect
this right in accordance with the provisions of the Charter.”
And Article 20(1) of the African Charter holds that “[a]ll peoples [...] shall have the
unquestionable right to self-determination. They shall freely determine their political status and
shall pursue their economic and social development according to the policy they have freely
chosen.”
2.2 It is submitted that, on the basis of these formulations in international treaties and
authoritative United Nations’ declarations, the right of self-determination of peoples relates to
the determination of the political status of a people, and the pursuit of its economic, social and
cultural development and future. On the basis of these formulations, it must also be concluded
that the decisions on the political status and the economic, social and cultural development are
made by the people itself, or its legitimate representatives, not by others. Moreover, such
decisions shall be made in full freedom, without any outside pressure or interference.
2.3 The right of self-determination is a right that was of crucial importance to the decolonization
of dependent territories and peoples. However, from the outset it must be observed that
decolonization was only one particular manifestation of the exercise and implementation of this
right. As observed by Judge Kreća in his dissenting opinion in the Case concerning Application
of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro):
“[t]he fact that in the Court’s practice [...], the right to [...] self-determination has been linked to non-selfgoverning
territories cannot be interpreted as a limitation of the scope of the right to self-determination
rationae personae, but as an application of universal law ad casum.” (ICJ Reports 1996, p. 595, at para.
72).
2.4 Indeed, from its inclusion in the Charter of the United Nations, the concept of selfdetermination
of peoples developed from a legal principle into a right of peoples that was
implemented in a particular manner in the context of decolonization. It is submitted, however,
that the right of self-determination of peoples continues to apply in the post-colonial era. As
will be elaborated below (para. 3.32), the exercise and realization of the right of selfdetermination
by a people in a colonial context in accordance with the applicable rules of
international law terminates the status of such a people as a ‘colonial people’ and their territory
as a ‘colonial territory’. Together with the termination of that status, the entitlement to
decolonization and the related modes of implementation of the right of self-determination in
the context of decolonization also come to an end. In case the relevant people of the colonial
territory have opted, in full freedom, for integration in or association with an existing State, this
does not, however, end the applicability of the right of self-determination to that people nor
does it terminate the corresponding legal obligation of the State in which the territory has been
integrated, or with which the territory has become associated, to respect and promote the right
of self-determination of that people in the new, post-colonial situation. Moreover, it is
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submitted, in the case that a people of a colonial territory chooses, in full freedom, to establish
an independent State, under international law this newly established State is obliged to respect
and promote the right of self-determination of the peoples residing within its international
boundaries.
2.5 The arguments above are based on the view of the Kingdom of the Netherlands that the
right of self-determination of peoples is a permanent, continuing, universal and inalienable right
with a peremptory character (see also Written Statement of the Kingdom of the Netherlands, 17
April 2009, para. 3.2) that extends beyond situations of decolonization and foreign occupation.
The right of self-determination has been included in several international instruments that do
not, or do not exclusively, deal with situations of decolonization or foreign occupation.
Reference can be made to Articles 1 of the 1966 Covenants, General Assembly Resolution
2625, the African Charter on Human and Peoples’ Rights, Section I.2 of the 1993 Vienna
Declaration and Programme of Action, as adopted by the World Conference on Human Rights,
and Part VIII of the Final Act of the Conference on Security and Co-operation in Europe. A
common feature of these instruments is that they all refer to “all peoples” and not merely to
‘colonial’ or ‘oppressed’ peoples as the holders of the right of self-determination; a terminology
which in itself denotes a universal and continuous character of at least some aspects of the right
of self-determination.
2.6 In the context of the advisory proceedings before this Court in Accordance with
International Law of the Unilateral Declaration of Independence by the Provisional Institutions
of Self-Government of Kosovo, the Kingdom of the Netherlands submitted that under
international law a distinction must be made between situations in which the right of selfdetermination
is
“exercised in a manner that preserves international boundaries (internal self-determination) or in a manner
that involves a change of international boundaries (external self-determination)” (Written Statement of
the Kingdom of the Netherlands, 17 April 2009, para. 3.5).
In the colonial context, the right of self-determination can be realized through independence,
association or integration. It is submitted that in the post-colonial era the right of selfdetermination
of peoples must, in principle, be exercised within the international boundaries of
the State in which a people resides and that it is this internal dimension of the right of selfdetermination
that is referred to in Articles 1 of the 1966 Covenants as well as in the other
international instruments referred to above.
2.7 Even though in the post-colonial era the right of self-determination must, in principle, be
exercised within the international boundaries of a State, situations exist in which a legitimate
claim to external self-determination can be made by a people. In such post-colonial situations,
the right of self-determination can still be realized through independence, association or
integration through (a) the dissolution of a State, (b) the merger of one or more States, or (c)
the secession from a State. On the basis of the right of self-determination, peoples residing in a
State may, by free and consensual agreement, decide to dissolve a State and create two or more
States on its territory or allow one or more of those peoples to secede from that State (consensual
secession). Such a consensual agreement can be agreed ad hoc or embedded in, for instance,
the Constitution of a State. The Kingdom of the Netherlands continues to be of the opinion that
in the post-colonial era a right to unilateral secession only arises when particular substantive
and procedural conditions that apply cumulatively have been met: (a) a persistent and serious
violation of the right to internal self-determination of the people concerned (substantive
condition), such as the absence of a government representing the whole people belonging to the
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territory of the State (Resolution 2625), and the exhaustion, in good faith, by the people
concerned of all available remedies to exercise its right to self-determination within the
international boundaries of the State (procedural condition), or (b) the existence of widespread
and grave violations of fundamental rights of the members of the people concerned (substantive
condition). In regard of the procedural condition the Kingdom of the Netherlands stated in
Accordance with International Law of the Unilateral Declaration of Independence by the
Provisional Institutions of Self-Government of Kosovo:
“all avenues must have been explored to secure respect for the and the promotion of the right of selfdetermination
through available procedures, including through bilateral negotiations, the assistance of
third parties and, where accessible or agreed, recourse to domestic and/or international courts and
arbitral tribunals” (Written Statement of the Kingdom of the Netherlands, 17 April 2009, para. 3.11).
In the same Written Statement, the Kingdom of the Netherlands continued by stating:
“The right to political self-determination may [thus] evolve into a right to external self-determination
in exceptional circumstances, in unique cases or cases sui generis. This is an exception to the rule and
should therefore be narrowly construed. The resort to external self-determination [via unilateral
secession] is an ultimum remedium” (Written Statement of the Kingdom of the Netherlands, 17 April
2009, para. 3.11).
3. The right of self-determination and decolonization
Legal status of the right of self-determination in the context of decolonization
3.1 After self-determination was proclaimed by the United States and the United Kingdom
during World War II in the Atlantic Charter (Third Principle), self-determination was
subsequently included in the Charter of the United Nations. The principle of self-determination
is referred to twice in the Charter. Article 1(2) mentions as one of the purposes and principles
of the United Nations:
“[t]o develop friendly relations among nations based on respect for the principle of equal rights and selfdetermination
of peoples, and to take other appropriate measures to strengthen universal peace.”
The second reference to self-determination is in Article 55(c) of the Charter. However, the UN
Charter did not define the content of the principle of self-determination nor did it define the
term ‘peoples’. Through the adoption of numerous resolutions in the following years, in
particular by the General Assembly, insights were given into the content of the principle and its
subject in the context of decolonization.
3.2 As United Nations’ and State practice developed, it became clear that Chapter XI and
Chapter XII of the UN Charter became the background for the evolution of self-determination
from a principle into a positive legal right in the field of decolonization in the first two decades
after the establishment of the United Nations.
Although self-determination was not explicitly mentioned, the principle underlies Chapter XI
and Chapter XII of the Charter, of which Chapter XII can be seen as the successor regime to
the League of Nation’s Mandate System, having essentially similar purposes. Chapter XI, on
the other hand, laid down a rather new regime for Non-self-governing territories which were
referred to in Article 73 of the Charter as “territories whose peoples have not yet attained a full
measure of self-government”. In this way, the scope of application of the notion of selfdetermination
was substantially expanded in comparison to the era of the League of Nations.
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Pursuant to Article 73(e), under which “Members of the United Nations which have or assume
responsibilities for the administration of territories whose peoples have not yet attained a full
measure of self-government” were to “transmit regularly to the Secretary-General for
information purposes, subject to such limitation as security and constitutional considerations
may require, statistical and other information of a technical nature relating to economic, social,
and educational conditions in the territories for which they are respectively responsible other
than those territories to which Chapters XII and XIII apply”, the Secretary-General invited
Member States to give their opinion with regard to the factors that should be taken into account
in determining whether or not a territory constituted a non-self-governing territory (UN Doc.
A/47, 29 June 1946, and UN Doc. A/47, Ann. I to VIII and Add. 1 and Add. 2). On the basis of
the information received, seventy-four territories constituting territories under Article 73 of the
Charter were listed by the General Assembly in its Resolution 66(I) (UN Doc. A/Res/66 (I), 14
Dec. 1946). In 1960, four Spanish and nine Portuguese territories (UN Doc. A/Res/1542 (XV),
15 Dec. 1960) and, in 1962, Southern Rhodesia (UN Doc. A/Res/1747 (XVI), 28 June 1962)
were added to the list of Non-self-governing territories by the General Assembly. In 1963 the
list was expanded with the addition of Western Sahara (UN Doc. A/5514, Annex III). In 1986
New Caledonia (UN Doc. A/Res/41/41, 2 Dec. 1983) and in 2013 French Polynesia (UN Doc.
A/Res/67/265, 17 May 2013) were re-listed.
Both Chapter XI and Chapter XII provided for a gradual development of Non-self-governing
territories towards self-government, or, in the case of Trust Territories, towards independence
“as may be appropriate” (Article 76(b)). But in the early 1950s, this policy of progressive and
gradual development towards increased self-government was put under pressure more and more
by the General Assembly (see, e.g., UN Doc. A/Res/637 (VII), 16 Dec. 1952). Eventually, the
General Assembly set aside the policy of gradual development and replaced it with a policy
which asserted that subject and dependent or colonial territories should immediately be granted
independence.
3.3 General Assembly Resolution 1514 (XV) (“Declaration on the Granting of Independence
to Colonial Countries and Peoples”) was of fundamental importance to the development of selfdetermination
into a right of colonial territories and peoples. The Resolution was adopted with
eighty-nine Member States voting in favour, no vote against, and nine abstentions. In the
Preamble, the General Assembly stresses “[t]he necessity of bringing to a speedy and
unconditional end colonialism in all its forms and manifestations” as one of the main objectives
of the Resolution. In its operative part, the General Assembly declares that:
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 United Nations and is an impediment
to the promotion of world peace and co-operation.
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.
3. Inadequacy of political, economic, social or educational preparedness should never serve as a
pretext for delaying independence.
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.
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.
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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.”
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations,
the Universal Declaration of Human Rights and this Declaration on the basis of equality, noninterference
in the internal affairs of all states, and respect for the sovereign rights of all peoples
and their territorial integrity.”
3.4 In Resolution 1514, the General Assembly refers to self-determination as a right and not as
a principle. This raises the question whether the General Assembly regarded self-determination
as a right under international customary law at the time of the adoption of Resolution 1514. The
Kingdom of the Netherlands is of the view that this question must be answered in the
affirmative.
3.5 It is recalled that, as early as 1952, the General Assembly adopted a number of resolutions
under the title of “The right of peoples and nations to self-determination”. In these resolutions,
it was stated that “the States Members of the United Nations shall recognize and promote the
realization of the right of self-determination of peoples of Non-Self-Governing and Trust
Territories who are under their administration” (UN Doc. A/Res/637 A-B-C, 16 Dec. 1952).
And in 1953 the General Assembly adopted a resolution containing factors which should be
used by the Assembly as a guide in determining whether a territory is still or no longer within
the scope Chapter XI of the Charter. The Resolution declared that “each concrete case should
be considered and decided upon in the light of the particular circumstances of that case and
taking into account the right of self-determination of peoples” (UN Doc. A/Res/742 (VIII), 27
Nov. 1953). In addition, Resolution 1188 (XII), adopted by the General Assembly in 1957,
reaffirms in its first operative paragraph that those member States bearing responsibility “for
the administration of Non-Self-Governing Territories shall promote the realization and
facilitate the exercise of the right [of self-determination] by the peoples of such Territories”.
3.6 Of the thirteen States abstaining from voting with respect to the draft of Resolution 1188
(XII) as a whole, a number of States voted against paragraph 1 of the draft. These States
included those States that administered colonial territories. It has sometimes been suggested
that if the principal colonial powers voted against or abstained from voting with regard to
resolutions proclaiming self-determination as a right of peoples, it seems impossible to state
that a rule of customary law had emerged at the relevant time. However, this conclusion would
not seem to be supported by the debates preceding the adoption of the draft of Resolution 1188
(XII). As comes to the fore from the debates, for many (colonial) States the principal reason for
voting against or abstaining from voting in 1957 was not so much the use of the term ‘right’,
but the fact that according to these States self-determination was not confined to the populations
of Non-self-governing territories (see, e.g., UN GAOR, 12th Sess., Third Comm., 821st mtg.,
26 Nov. - 3 Dec. 1957: United Kingdom (pp. 303, para. 4, and 325, para. 62: “[the United
Kingdom] had voted against operative paragraph 1, since even in independent States the
principle of self-determination could be disregarded [...]”); the Netherlands (p. 313, para. 4: the
Kingdom of the Netherlands “emphasized the distinction between internal and external selfdetermination
and expressed [its] surprise that some representatives limited their views to the
colonial side of the question, whereas there many peoples outside the colonial sphere who
would like to exercise their right of self-determination and were unable to do so”); Canada (p.
319, para. 2: “the discussion has shown that the question of self-determination was not confined
to situations relating to traditional colonialism”); New Zealand (p. 321, para. 21: “it had been
suggested that self-determination was a practical question only in cases of NSGT’s. Article 1
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of the draft Covenants [on Human Rights] had however not been adopted on such premises. It
could hardly be explained to a large segment of the world public, including the subjects of
police States, that the right of self-determination was in their cases a kind of constitutional
fiction. Such an interpretation would deprive the [draft] Covenants [on Human Rights] and the
United Nations of all moral authority”).
3.7 It would appear that there was not only opinio juris in regard of the character of the right of
self-determination as a right under customary international law in the course of the 1950s, but
also widespread state practice reflected in the fact that some thirty non-self-governing and Trust
Territories achieved independence prior to the adoption of Resolution 1514 on 14 December
1960. Moreover, if the terminology used by the General Assembly in its resolutions on the right
of self-determination between 1952 and 1957 is compared with the terminology used in
Resolution 1514, the latter is formulated in a much more mandatory manner by which the
impression at least is created that this Resolution aims at expressing the applicable law. It would
therefore appear that Resolution 1514 reflects an existing rule of customary international law
insofar as a right of self-determination for “colonial countries and peoples” is concerned.
3.8 In any event, it would appear that the right of self-determination in the sense of a right of
peoples in a colonial context to choose either independence, association or integration
developed into a rule of customary international law in the course of the 1960s. This is reflected
in the numerous resolutions adopted both by the Security Council and by the General Assembly
affirming the existence of a right of self-determination, as well as in the dismantling of almost
the entire dependency system in terms of Non-self-governing territories, Trust Territories and
other colonial territories in the course of the 1960s and 1970s. In this respect, it should be noted
that, in its advisory opinion on Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), the Court stated:
“the last fifty years [...] have brought important developments. These developments leave little doubt that
the ultimate objective of the sacred trust was the self-determination and independence of the peoples
concerned. In this domain, as elsewhere, the corpus iuris gentium has been considerably enriched [...].”
(ICJ Reports 1971, p. 16, at para. 52)
3.9 It is, furthermore, submitted that the obligation to respect and promote the right of selfdetermination
of peoples in a colonial context, as well as the obligation to refrain from any
forcible action which deprives such peoples of this right, is an obligation arising under a
peremptory norm of international law. During the discussions preceding the adoption of
Resolution 2625 in 1970, States have characterized the right of self-determination as “a
fundamental principle of contemporary international law binding on all States”
(A/AC.125/SR.41 (Poland)), “one of the fundamental norms of contemporary international
law” (A/AC.125/SR.40 (Yugoslavia)), “one of the most important principles embodied in the
Charter” (A/AC.125/SR.69 (Japan)), “a universally recognized principle of contemporary
international law” (A/AC.125/SR.70 (Cameroon)), and “indispensable for the existence of
community of nations” (A/AC.125/SR.68 (United States)). The fundamental character of the
right of self-determination has been stressed with regard to the process of decolonization, and
in that respect it has been explicitly qualified by States as a peremptory norm of international
law (Spain, Western Sahara case, ICJ Pleadings, Vol. I, pp. 206-208; Algeria, Western Sahara
case, ICJ Pleadings, Vol. IV, pp. 497-500; Morocco, Western Sahara case, ICJ Pleadings, Vol.
V, 179-80; Guinea-Bissau, Case Concerning the Arbitral Award of 31 July 1989, (Guinea9
Bissau v. Senegal), ILR, Vol. 83, p. 1 at p. 24; and A/AC.125/SR.70, 4 Dec. 1967, p. 4
(Romania)). The right to self-determination has been characterized as an “inalienable right”
(e.g. S/Res/264, 20 March 1969); 1993 Vienna Declaration and Programme of Action, as
adopted by the World Conference on Human Rights, Section I.2; 1984 General Comment No.
12 of the Human Rights Committee on Articles 1 of the 1966 Covenants, para. 2). In the East
Timor case, the Court observed that the right of self-determination “is one of the essential
principles of contemporary international law” and described as “irreproachable” the assertion
that the right of peoples to self-determination has an erga omnes character (ICJ Reports 1995,
p. 90, at para. 29). In its advisory opinion on the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, the Court observed that the obligation to respect
the right of peoples to self-determination is an obligation erga omnes (ICJ Reports 2004, p.
136, at para. 155). And with reference to the East Timor case, the International Law
Commission describes “the obligation to respect the right of self-determination” as a norm
whose peremptory character is “generally accepted” (Commentary to Article 40 of the Draft
Articles on Responsibility of States for Internationally Wrongful Acts, para. 5). The
International Law Commission continues by stating:
“[s]o far, relatively few peremptory norms have been recognized as such. But various tribunals, national
and international, have affirmed the idea of peremptory norms in contexts not limited to the validity of
treaties. Those peremptory norms that are clearly accepted and recognized include the prohibitions of
aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to
self-determination” (Commentary to Article 26 of the Draft Articles on Responsibility of States for
Internationally Wrongful Acts, para. 5).
3.10 The Court has recognized the existence in international law of peremptory norms in the
Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002),
Jurisdiction of the Court and Admissibility of the Application (ICJ Reports 2006, p. 32, at para.
64).
The subject of the right of self-determination and the principle of territorial integrity
3.11 Although the UN Charter refers to self-determination of “peoples”, and Resolution 1514
proclaims that “all peoples” have the right to self-determination, United Nations’ practice until
the mid-1960s reveals that it was mainly the right of self-determination in a colonial context
which was developed during that period.
3.12 In its advisory opinion on Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970), the Court observed that the development of the scope of the right of self-determination
was not limited to Trust Territories. In particular, the Court stated that:
“the subsequent development of international law in regard to non-self-governing territories, as enshrined
in the Charter of the United Nations, made the principle of self-determination applicable to all of them.
The concept of the sacred trust was confirmed and expanded to al1 "territories whose peoples have not
yet attained a full measure of self-government" (Art. 73). Thus it clearly embraced territories under a
colonial regime.” (ICJ Reports 1971, p. 16, at para. 52)
3.13 An indication of what constitutes a non-self-governing territory as the object of the right
to self-determination was given in Resolution 1541 which defines a non-self-governing territory
in Principle IV as a “territory which is geographically separate and is distinct ethnically and/or
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culturally from the country administering it”. This phrasing is often referred to as the ‘salt water
barrier’ or ‘salt water’ theory. Principle IV is supplemented by Principle V which lays down
possible additional criteria for the determination of a non-self-governing territory.
3.14 United Nations decolonization practice was almost entirely along the lines of the ‘salt
water barrier’. Thus, the identified object of the right of self-determination during this period
of history was – in addition to Trust Territories – a territory, as the Court noted in its advisory
opinion on Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), “under
a colonial regime” (ICJ Reports 1971, p. 16, at para. 52). By doing so, the Court, in accordance
with the overwhelming majority of cases of United Nations’ decolonization practice, applied a
territorial rather than an ethnical definition of the subject or holder of the right of selfdetermination
in the context of decolonization.
3.15 This territorial definition of the subject or holder of the right of self-determination is
inextricably linked to the applicability of the principle of territorial integrity to the colonial
territory in regard of the implementation of the right of self-determination.
In Resolution 1514, the General Assembly stipulates in paragraph 6 that:
“[a]ny 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.”
In addition, paragraph 4 of the same Resolution stresses that “the integrity of [the] national
territory [of dependent peoples] shall be respected”. The term “country” in paragraph 6 of
Resolution 1514 would seem to refer to “Trust and Non-Self-Governing Territories or all other
territories which have not yet attained independence” (paragraph 5 of Resolution 1514). The
practice of the United Nations and its Member States may be taken to suggest that this paragraph
on the principle of territorial integrity of a colonial territory is a reflection of international
customary law. The Kingdom of the Netherlands would like to make three observations in this
respect.
3.16 First, according to the Kingdom of the Netherlands, neither Resolution 1514 nor
subsequent State practice in the field of decolonization should be interpreted in a way that the
title to the colonial territory of the administering State became illegal or void ab initio. The
Charter of the United Nations does not regard the existence of colonies or colonial regimes as
a violation of international law per se. What it did mean, it is submitted, was that a positive
legal rule was developed which held that States administering these territories were under an
obligation to decolonize these colonial territories in accordance with the wishes of the
inhabitants of these territories. In those cases where, in violation of this obligation,
administering States did not transfer sovereignty to the people or authorities of the colonial
territory, the right of self-determination of the people of the colonial territory prevailed over
any claim by the administering State to the maintenance of its sovereignty over the colonial
territory. Therefore, no violation of the principle of territorial integrity occurred when the
people of a colonial territory chose to dissolve the bonds with the State administering the
colonial territory without the administering State’s consent.
Second, the applicability of the principle of territorial integrity to the colonial territory meant
that States administering colonial territories, as well as third States, were under an international
legal obligation to respect the territorial integrity of the colonial territory. A prime example of
a violation of this principle is formed by South Africa’s attempt to fragment Namibia by
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creating a number of ‘bantustans’. The United Nations declared this conduct illegal and contrary
to the provisions of the Charter of the United Nations (see, e.g., UN Doc. S/Res/ 264, 20 March
1969; UN Doc. S/Res/301, 20 Oct. 1971; UN Doc. S/Res/366, 17 Dec. 1974; UN Doc.
S/Res/385, 30 Jan. 1976. See also UN Doc. A/Res/2372 (XXII), 12 June 1968; UN Doc.
A/Res/2403 (XXIII), 16 Dec. 1968; UN Doc. A/Res/31/146, 20 Dec. 1976).
Third, it would appear that in United Nations’ and State practice the right of self-determination
was interpreted in the light of the principle of territorial integrity, which meant that the
fragmentation of the colonial territory before the realization of independence (or integration or
association) as a result of unilateral secession by a segment of the colonial population was not
accepted by the United Nations and the international community at large.
3.17 In sum, in the context of decolonization the right of self-determination was applied to all
inhabitants of a colonial territory and not to minority, ethnical groups or segments of the
population within that territory. The holder of the right of self-determination or ‘right to
decolonization’ was thus primarily territorially defined. Therefore, as a general rule, selfdetermination
had to be granted to Trust Territories and Non-self-governing territories as a
whole. But exceptions were accepted.
3.18 The United Nations’ insistence on the preservation of the territorial integrity of a
dependent or colonial territory did not form a bar to partition, but only if that was the clear wish
of the majority of all inhabitants of the territory in question. For instance, in the case of the nonself-
governing territory of the Gilbert and Ellice Islands, the General Assembly first agreed to
an administrative division of the colonial territory and subsequently approved the partition of
the colony as a result of the express wishes of the inhabitants of the Ellice Islands resulting
from a referendum, which became the State of Tuvalu (see UN Docs. A/Res/32/407, 28 Nov.
1977 and A/Res/3288 (XXIX), 13 Dec. 1974). Furthermore, mention may be made of the
separation of the Trust Territory of Ruanda-Urundi in two separate States, Rwanda and Burundi
(see UN Doc. A/Res/1746 (XVI), 27 June 1962) and the division, following the results of
plebiscites held among the people of Northern Cameroons and the people of Southern
Cameroons, by the United Kingdom of the Trust Territory of British Cameroons into a southern
and northern region, of which the former acceded to Cameroon and the latter to Nigeria (see
UN Doc. A/Res/63 (I), 13 Dec. 1946, A/Res/1350(XIII), 13 May 1959 and A/Res/1608(XV),
21 April 1961). Another example is formed by the division of the ‘strategic’ Trust Territory of
the Pacific Islands in 1978 with the agreement of the inhabitants expressed in referendums and
the Trusteeship Council (see UN Doc. S/Res/683, 22 Dec. 1990 and Report of the Trusteeship
Council to the Security Council on the Trust Territory of the Pacific Islands, 1977-1978, UN
SC Official Records, 33rd year, Special Supplement No. 1, p. 75 ff.). Four separate entities were
created, three of which became independent States, namely the Federated States of Micronesia,
Palau and the Marshall Islands, and one – the Northern Mariana Islands – came to be associated
with the United States. Following the freely expressed wishes of the people concerned, the
United Nations was prepared to accept the partition of these colonial territories.
3.19 In conclusion, in the context of the decolonization of colonial territories, administering
States as well as third States were obliged under international law to respect the territorial
integrity of the colonial territory. Partition of the colonial territory was only permitted if that
was the clear wish of the majority of all inhabitants of the territory in question. This condition
of the freely expressed wishes of the people concerned constitutes a core principle in the
exercise of the right of self-determination which will be discussed in more detail in para. 3.23
below.
12
Decolonization and the realization of the right of self-determination
3.20 One day after the adoption of Resolution 1514, on 15 December 1960, the General
Assembly adopted Resolution 1541 (XV) (“Principles which should guide Members in
determining whether or not an obligation exists to transmit the information called for under
Article 73 e of the Charter”). Principle VI mentions three results on the basis of which it must
be “concluded that a non-self-governing territory had reached a full measure of selfgovernment”:
(a) Emergence as a sovereign independent State;
(b) Free association with an independent State; or
(c) Integration with an independent State.
3.21 As stated in Resolution 1541, any specific territorial status chosen by the inhabitants of a
colonial territory in their exercise of self-determination, whether this concerned independence,
association or integration of the territory, meant that the colonial territory and people “had
reached a full measure of self-government” and had thus realized the right of self-determination,
at least in the context of decolonization.
3.22 It must be noted that ‘independence’ is but one mode of realizing the right of selfdetermination
by a colonial territory. In numerous resolutions of the General Assembly on
decolonization, self-determination has been connected with independence – so much that it has
been popularly (and incorrectly) assumed that the terms were synonymous in theory or, at least,
that they were so in United Nations’ practice. As stated in Principle V (‘The principle of equal
rights and self-determination of peoples’) of Resolution 2625, any other political status chosen
by a people in a colonial context, short of independence, integration or association, can also be
considered as a realization of the right of self-determination:
“The establishment of a sovereign and independent State, the free association or integration with an
independent State or the emergence into any other political status freely determined by a people constitute
modes of implementing the right of self-determination by that people.”
The principle of ‘free choice’
3.23 Resolution 1514 states that the choice by a people in a colonial context for a particular
political status should be “freely” determined by that people (para. 2). Principle VII of
Resolution 1541 states that association
“should be the result of the free and voluntary choice by the peoples of the territory concerned expressed
through informed democratic processes”,
and Principle IX(b) that integration
“should be 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 [...].”
3.24 Even though Resolution 1541 specifies the general ramifications for the implementation
of the requirement of a ‘free’ determination by a people in a colonial context in regard of
13
integration and association, it is submitted that United Nations’ and State practice shows that
this requirement equally applies to a choice for independence “or the emergence into any other
political status freely determined by a people” (Resolution 2625). As was stated by Judge
Nagendra Singh in his Declaration in Western Sahara, “ascertaining the freely expressed will
of the people [is] the very sine qua non of all decolonization” (ICJ Reports 1975, p. 12, at p.
81).
3.25 The principle that the determination of the future political status by a people shall be free
and a genuine expression of the will of the people as the subject of the right of political selfdetermination
is also reflected in other international instruments dealing with decolonization:
“freely to determine their political status” (Articles 1 of the 1966 Covenants), “freely to
determine, without outside interference, their political status” (Resolution 2625).
3.26 This core principle, which may be referred to as the ‘principle of free choice’, has been
confirmed by the Court in the Western Sahara case, where, on the basis of Resolution 1514 and
its own statements in Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), the
Court stated that “the application of the right to self-determination requires a free and genuine
expression of the will of the people concerned” (ICJ Reports 1975, p. 12, at para. 55). The Court
continued by defining “the principle of self-determination […] as the need to pay regard to the
freely expressed will of peoples” (ICJ Reports 1975, p. 12 at para. 59).
3.27 According to the Court in the Western Sahara case, only in those instances where a
population of a colonial territory “did not constitute a ‘people’ entitled to self-determination”
(as in the case of Gibraltar where the inhabitants were not considered to constitute a people for
the purpose of external self-determination; see UN Doc. A/Res/2353 (XXII), 19 Dec. 1967) or
when the conviction existed “that a consultation was totally unnecessary, in view of special
circumstances,” the obligation “to pay regard to the freely expressed will of peoples” could be
dispensed with (ICJ Reports 1975, p. 12, at para. 59). Or as put by Judge Singh in his
Declaration in this case: “the principle of self-determination could be dispensed with only if the
free expression of the will of the people was found to be axiomatic in the sense that the result
was known to be a foregone conclusion or that consultations had already taken place in some
form or that special features of the case rendered it unnecessary” (ICJ Reports 1975, p. 12, at
p. 81).
3.28 While recalling Resolution 1514, the General Assembly declared in Resolution 54/90,
addressing the future status of a number of Non-self-governing territories, that “referendums,
free and fair elections and other forms of popular consultation play an important role in
ascertaining the wishes and aspirations of the people” and it recognized “that all available
options for self-determination of the Territories are valid as long as they are in accordance with
the freely expressed wishes of the peoples concerned” (UN Doc. A/Res/54/90, 4 Feb. 2000
(‘Resolution Adopted by the General Assembly on the Report of the Special Political and
Decolonization Committee’)).
3.29 United Nations practice with respect to requiring compliance with the principle of free
choice appears practically uniform. Compliance with the principle was sought, to be guaranteed
by the United Nations, through the organization and supervision of elections, referenda and/or
plebiscites, especially in cases where association or integration would presumably be the result
14
of the exercise of self-determination. Examples include the British Togoland Trust Territory
(UN Doc. A/Res/944(X), 15 Dec. 1955), French Togoland (UN Doc. A/Res/1182(XII), 29 Nov.
1957), Western Samoa (A/Res/1569(XV), 18 Dec. 1960), the Cook Islands (A/Res/2005(XIX),
18 Feb. 1965), Equatorial Guinea (A/Res/2067(XX), 16 Dec. 1965), the New Zealand Territory
of Niue (A/Res/3285(XXIX), 13 Dec. 1974), the Northern Marianas (A/Res/2160(XLII), 4 June
1975) and the French Comoros Islands (A/Res/3161(XXVIII), 14 Dec. 1973). In cases where
the population of the colonial territory was expected to opt for independence, the wishes of the
people were normally to be established by the usual political processes of the territory, save for
those special cases where it was considered necessary to make special arrangements as, for
example, with regard to the Ellice Islands in 1974 where a referendum – leading to
independence – was held in the presence of United Nations observers (see Report of the United
Nations Visiting Mission to the Gilbert and Ellice Islands, (A/AC. 109/L 984), 1974 and
A/Res/3288(XXIX), 13 Dec. 1974). Thus, as a matter of principle, strict democratic standards
were required for association or integration, while the choice for independence had to be free,
but not necessarily based on ‘democratic’ verification standards, that is, in accordance with (the
Western view of) the principle of ‘one man one vote’. For instance, an acceptable procedure of
consultation with leaders of opinion and organizations took place in Bahrain pursuant to an
agreement between Iran and the United Kingdom in 1970. The latter had been a protecting
power and the former had claimed sovereignty. Under their agreement, a representative of the
United Nations Secretary-General consulted representative leaders in Bahrain in the course of
March - April 1970 and concluded in his report that “the Bahrainis [...] were virtually
unanimous in wanting a fully independent sovereign State” (UN Doc. S/9772, 30 Apr. 1970, p.
11). The report was unanimously endorsed by the Security Council (UN Doc. S/Res/278, 11
May 1970).
3.30 In practice, “the will of the people” meant the will of the majority of the inhabitants of a
colonial territory (H. Gros Espiell, Implementation of United Nations Resolutions Relating to
the Right of Peoples Under Colonial and Alien Domination to Self-Determination, Study
Prepared by the Special Rapporteur, UN Doc. E/CN.4/Sub.2/¬405 (Vol. 1), 20 June 1978, pp.
10-11). In those cases where serious doubts existed as to the genuine expression of the wish for
independence, additional safeguards were required. The situation of Southern Rhodesia under
the Smith régime serves as a prime example. In this respect, reference can be made to the
Security Council’s determination of the invalidity of the proclamation of independence by the
white minority régime in Southern Rhodesia in 1965 (S/Res/216, 12 Nov. 1965) and the
Council’s subsequent demand for “arrangements [...] for a peaceful and democratic transition
to genuine majority rule and independence”, which arrangements “include the holding of free
and fair elections on the basis of universal adult suffrage under United Nations supervision” in
order to “effect the genuine decolonization of the Territory” (S/Res/423, 14 March 1978). The
Lancaster House Agreement of 12 December 1979 called for elections and a transition period
under British rule. The Agreement was endorsed by the Security Council (S/Res/463, 2 Feb.
1980), which no longer demanded United Nations supervision of the elections, but which did
require the United Kingdom to create conditions in Southern Rhodesia to ensure free,
democratic and fair elections resulting in genuine majority rule, calling upon “all Member
States to respect only the free and fair choice of the people of Zimbabwe” (S/Res/463, 2 Feb.
1980, para. 9).
3.31 In respect of the principle of free choice, the Kingdom of the Netherlands considers that,
in principle, negotiations between the administering State and the (legitimate representatives of
15
the) inhabitants of the colonial territory about the future relationship between the territory and
the administering State do not form part of the exercise of the right of self-determination by the
people concerned. Such negotiations may involve arrangements on future military cooperation
or development cooperation as well as matters regarding citizenship. However, if negotiations
on such future cooperation are used by the administering State to influence the act of free choice
by the people concerned, this may amount to unlawful interference and thus to a violation of
the right of self-determination of this people.
Termination of colonial status
3.32 It is submitted that once the inhabitants of a colonial territory have, through their freely
expressed will, genuinely exercised their right to self-determination through a choice for either
independence, integration or association or the emergence into any other political status, the
colonial status of the territory and the people concerned comes to an end. Practice shows that
in cases of Non-self-governing territories this termination of colonial status is formalized
through the removal of the territory by the General Assembly from the United Nations list of
Non-self-governing territories. This also means that the obligations contained in Article 73 of
the UN Charter no longer apply to the former administering State. In cases of Trust Territories,
the Trusteeship Agreement with the Trustee is terminated. The practice of the United Nations
in regard of Non-self-governing territories has been practically uniform in declaring,
subsequent to a report by an administering State on the genuine exercise of the right to selfdetermination
by the inhabitants of the colonial territory and a verification of that process by
the United Nations, that the transmission of information under Article 73 e of the Charter could
cease, after which the territory is removed from the United Nations list of Non-self-governing
territories. Examples are Puerto Rico (A/RES/748(VIII) 27 Nov. 1953), Greenland
(A/RES/849(IX) 22 Nov. 1954), the Netherlands Antilles and Surinam (A/RES/945(X) 15 Dec.
1955), Alaska and Hawaii (A/RES/1469(XIV) 12 Dec. 1959), Nyasaland (A/RES/1953(XVIII)
11 Dec 1963), Malta (A/RES/1950(XVIII) 11 Dec 1963), Cook Islands (A/RES/2064(XX) 16
Dec. 1965), Niue Island (A/RES/3285(XXIX) 13 Dec 1974), Cocos (Keeling) Islands
(A/RES/39/30 5 Dec. 1984), and East Timor (A/RES/56/282, 1 May 2002).
As for Trust Territories, the Trust Agreement was terminated after a verification of the
realization of the objectives of the Agreement. Examples are Somaliland (Somalia)
(A/RES/1418(XIV), 5 Dec. 1959), Ruanda-Urundi (A/RES/1746(XVI), 27 June 1962),
Western Samoa (A/RES/1626(XVI) 18 Oct. 1961), Zanzibar (A/RES/1642(XVI) 6 Nov. 1961),
Nauru (A/RES/2347(XXII) 19 Dec. 1967), Papua (A/RES/3284(XXIX) 13 Dec. 1974), and
Palau (SC/RES/956 (1994) 10 Nov. 1994).
3.33 Thus, the entitlement of peoples in a colonial context to exercise the right of selfdetermination
through either independence, integration or association or the emergence into
any other political status comes to an end after such a people has freely chosen for any of these
options. From that moment onwards, the right of self-determination evolves into an entitlement
of that people to exercise this right within the boundaries of the State in which this people
resides (internal self-determination). Without prejudice to the possibility of consensual
secession, the right to external self-determination through unilateral secession is, under
international law, only applicable as an ultimum remedium (see para. 2.7, above).
16
4. Violation of the right of self-determination
Self-determination and obligations and rights erga omnes
4.1 Under the law of self-determination, the administering State is under an obligation to respect
and promote the right of self-determination of the inhabitants residing in the administered
colonial territory. These inhabitants have a corresponding right vis-à-vis the administering State
to have their right to self-determination respected and promoted. This situation thus concerns
an obligation and a corresponding right erga singulum. A violation of the right of selfdetermination
by the administering State amounts to an internationally wrongful act that entails
the international responsibility of that administering State.
4.2 It is submitted that the obligation of the administering State to respect and promote the right
of self-determination of the inhabitants residing in the administered colonial territory is not only
owed vis-à-vis the inhabitants of the colonial territory, but also vis-à-vis the international
community as a whole. This obligation is an obligation erga omnes. As a result, a violation of
the right of self-determination of the inhabitants of the colonial territory by the administering
State does not only entail the international responsibility of the administering State in respect
to the inhabitants of the colonial territory, but also in respect to third States.
4.3 In the Barcelona Traction case, the Court drew “an essential distinction” between
obligations owed to particular States and those owed “towards the international community as
a whole” (ICJ Reports 1970, p. 32, at para. 33). With regard to the latter, the Court went on to
state that “[i]n 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”. The Court provided a nonexhaustive
list of obligations owed to the international community as a whole, including “the
principles and rules concerning the basic rights of the human person […]” (ICJ Reports 1970,
p. 32, at para. 34). In its advisory opinion on Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, the Court explicitly recognized that the obligation to
respect the right of self-determination constituted an obligation erga omnes (ICJ Reports 2004,
p. 136, at para. 155). With reference to the East Timor case, the International Law Commission
observes that the obligation to respect the right of self-determination is an obligation to the
international community as a whole (Commentary to Chapter III and to Article 48 of the
Articles on Responsibility of States for Internationally Wrongful Acts, para. 3 and para. 2,
respectively).
4.4 It is submitted, however, that not only the obligation to respect the right of selfdetermination,
but also the obligation to promote the realization of this right constitutes an
obligation erga omnes. In this respect the Court in the Wall case directly connects the erga
omnes character of the obligation of States in regard of the right of self-determination to the
terms of General Assembly Resolution 2625 (XXV), which states:
“Every State has the duty to promote, through joint and separate action, realization of the principle of
equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to
render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter
regarding the implementation of the principle […].” (ICJ Reports 2004, p. 136, at para. 156 (emphasis
added))
The obligation of States not only to respect, but also to promote the realization of the right of
self-determination is also contained in Article 1(3) of the 1966 Covenants, and, it is submitted,
must be regarded as a rule of international customary law.
17
4.5 However, the right of self-determination does not only give rise to an obligation erga omnes.
In the East Timor case the Court held:
“[i]n the Court’s view, Portugal’s assertion that the right of peoples to self-determination, as it evolved
from the Charter and from United Nations practice, has an erga omnes character, is irreproachable.” (ICJ
Reports 1995, p. 90, at para. 29).
It is submitted that this finding of the Court is of an essentially different nature than the Court’s
statements in the Barcelona Traction case and the Wall case, and is of fundamental importance
to the legal protection of the right of self-determination of peoples under international law. In
the view of the Kingdom of the Netherlands, the Court’s qualification of the right of selfdetermination
as a right that shall be respected erga omnes means that a people is not only
entitled to respect for its right of self-determination vis-à-vis the State within which
international boundaries that people resides, but also vis-à-vis all other States and, indeed, the
international community as a whole. In regard to decolonization this means that the inhabitants
of a colonial territory are not only entitled to respect for their right of self-determination vis-àvis
the administering State, but also vis-a-vis the international community as a whole. In turn,
the members of the international community are under a corresponding obligation to respect
the right of self-determination of the inhabitants of the colonial territory. It is submitted that,
given the Court’s statements in the Barcelona Traction case and the Wall case and because of
the fundamental character of the right of self-determination under international law, the
corresponding obligation on the part of the members of the international community must be
deemed to have an erga omnes character as well.
Legal consequences of a violation of the right of self-determination
4.6 It has been submitted above (para. 3.1 ff, above) that the inhabitants of a colonial territory,
whether it concerns a Trust Territory, a non-self-governing territory, or any “other territories
which have not yet attained independence” (paragraph 5 of Resolution 1514), have a right to
self-determination on the basis of which they shall be enabled to freely determine their future
political status through a choice for either independence, integration or association or the
emergence into any other political status.
4.7 It has also been observed (paras. 3.11 – 3.19, above) that the principle of territorial integrity
in regard to colonial territories meant that States administering colonial territories as well as
third States were under an international legal obligation to respect the territorial integrity of
colonial territories. Furthermore, it was set out that the United Nations’ insistence on the
preservation of the territorial integrity of a dependent or colonial territory did not form a bar to
partition, but only if that was the clear wish of the majority of all inhabitants of the territory in
question.
4.8 Against this background, the Kingdom of the Netherlands wishes to make three
observations. First, it is submitted that the right of self-determination of the people concerned
is violated if it has been established that (a) the partition of a colonial territory has not resulted
from the freely expressed wishes of the inhabitants of the colonial territory or (b) approval for
partition of the colonial territory has been obtained by the administering State or a third State
through the exercise of pressure of any nature on the inhabitants or their legitimate
representatives. If the intended result of such conduct by the administering State is to maintain
18
a legal title to part of the colonial territory or if the intended result of such conduct by a third
State is to obtain such a legal title, it is submitted that no such title can be maintained or will be
transferred under international law. Given the peremptory character of the right of selfdetermination
of colonial territories and peoples, any such title is null and void ab initio, in
accordance with the principle ex injuria jus non oritur. This also means that the right of selfdetermination
of the people concerned would still be applicable to that part of the colonial
territory that has been detached from the colonial territory in violation of international law.
However, the absence of freely expressed consent by the inhabitants of a colonial territory or
their representatives in regard of the partition of the colonial territory should be clearly
established.
4.9 Second, the corollary of the right erga omnes of the inhabitants of a colonial territory is the
obligation of third States to respect the right of self-determination of the inhabitants of that
colonial territory. As has been observed above (para. 4.5, above), it is submitted that this
obligation incumbent on third States is itself an obligation erga omnes. This means that the
conduct of a third State, whether or not in conjunction with the conduct of the administering
State, in violation of the right of self-determination of the inhabitants of a colonial territory
under the responsibility of the administering State amounts to an internationally wrongful act
entailing the international responsibility of that third State. Such responsibility arises not only
vis-à-vis the inhabitants of the colonial territory, but also vis-à-vis third States who have a legal
interest in the protection of the right of self-determination of the inhabitants of the colonial
territory.
4.10 Finally, Article 41 of the Articles on the Responsibility of States for Internationally
Wrongful Acts requires third States not to recognize as lawful a situation created by a serious
breach of a peremptory norm of general international law. In its Commentary to Article 41, the
International Law Commission observed that “[t]he obligation applies to “situations” created
by these breaches, such as, for example, attempted acquisition of sovereignty over territory
through the denial of the right of self-determination of peoples” (para. 5). The Commission
continued by observing that the obligation of non-recognition “not only refers to the formal
recognition of these situations, but also prohibits acts which would imply such recognition.”
This international legal rule and its applicability in cases of a violation of the right of selfdetermination
of peoples has been confirmed by the Court. In the Namibia case, the Court
observed that “the termination of the Mandate and the declaration of the illegality of South
Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the
legality of a situation which is maintained in violation of international law” (ICJ Reports 1971,
p. 16, at para. 126). The same obligations are reflected in the resolutions of the Security Council
and General Assembly concerning the situation in Rhodesia (e.g. S/Res/216, 12 Nov. 1965) and
the Bantustans in South Africa (e.g. A/Res/31/6 A of 26 Oct. 1976). In its advisory opinion on
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the
Court, after having concluded that the obligation erga omnes to respect the right of selfdetermination
of the Palestinian people had been violated (ICJ Reports 2004, p. 136, at para.
155), observed that “[g]iven the character and the importance of the rights and obligations
involved […] all States are under an obligation not to recognize the illegal situation resulting
from the construction of the wall in the Occupied Palestinian Territory, including in and around
East Jerusalem.” The Court continued by stating that all States “are also under an obligation not
to render aid or assistance in maintaining the situation created by such construction”.
Furthermore, the Court observed “[i]t is also for al1 States, while respecting the United Nations
Charter and international law, to see to it that any impediment, resulting from the construction
of the wall, to the exercise by the Palestinian people of its right to self-determination is brought
19
to an end” (ICJ Reports 2004, p. 136, at para. 159). In sum, the Kingdom of the Netherlands
submits that, given the peremptory character of the right of self-determination, a serious breach
of the right of self-determination obliges all States not to recognize the situation created as a
result of that breach and not to render aid or assistance in maintaining the situation created as a
result of the serious breach of that right.
******