Written Statement of the Russian Federation

INTERNATIONAL COURT OF JUSTICE
Legal consequences o f the separation o f the Chagos Archipelago
from Mauritius in 1965
(Request for advisory opinion)
WRITTEN STATEMENT
BY THE RUSSIAN FEDERATION
27 February 2018
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TABLE OF CONTENTS
I. Introduction................................................................................................................3
II. Jurisdiction of the Court........................................................................................6
II. (1) General Assembly's functions and powers and the right to selfdetermination
of peoples in the decolonization context
.....................................................................................................................................8
II. (2) General Assembly's functions and powers and the status of
territories..................................................................................................................... 10
III. Conclusions...........................................................................................................12
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I. Introduction
1. By Resolution 71/292, adopted on 22 June 2017, the United Nations General
Assembly, acting in accordance with Article 96, paragraph 1 of the Charter of the
United Nations and referring to Article 65 of the Statute of the International Court
of Justice requested 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 above-mentioned resolutions, arising from the continued
administration by the United Kingdom of Great Britain and Northern Ireland of the
Chagos Archipelago of its nationals, in particular those of Chagossian origin?”.
2. Resolution 71/292 of 22 June 2017 was approved by a recorded vote of 94 in
favor, 15 against with 65 abstentions including the Russian Federation. Although
the Russian Federation abstained during the vote on the above-mentioned
resolution, it has decided to submit its written statement to the Court in order to set
forth its position on some issues of international law that are relevant to t he
consideration of this matter by the Court.
3. While deciding on whether to give an advisory opinion, and if answered in
affirmative, on how to formulate the opinion requested, the Court will inevitably
address a number of important issues, in particular those pertaining to the role and
mandate of the principal organs of the Organization, including the United Nations
General Assembly, and division of powers among them. It may also address the
issue of correlation between the settlement of territorial disputes and the institute
of advisory proceedings.
4. The United Nations is a unique universal organization established in order to
be a center for harmonizing actions of nations in the attainment of common goals,
such as maintenance of international peace and security, development of friendly
relations among nations based on the principle of equal rights and selfdetermination
of peoples, cooperation in solving international problems1.
5. The successful attainment of these goals is inextricably linked to the smooth
and effective functioning of the Organization, which cannot be achieved without
consistent interpretation and application of the mandates of the principle organs of
the Organization. The mandate of the United Nations General Assembly although
significantly broad does not encompass questions concerning legal status of
territories, with exception related to the powers of the Assembly with respect to the
Trusteeship system and related issues of the mandate system.
6. The fundamental principles of contemporary international law are a
cornerstone for just and equitable international relations, including the principle of
equal rights and self-determination of peoples. By virtue of this principle more
than 80 peoples under colonial rule gained independence since the establishment of
the United Nations. Recognizing its fundamental role our country made a
significant contribution to the decolonization process by supporting the African
and Asian peoples' struggle for independence.
7. States shall resolve their disputes through the mechanisms that they have
agreed upon in accordance with applicable international law, thus leading to deescalation
of tensions and promotion of peaceful cooperation among disputing
parties.
4
1 Art. 1, Charter o f the United Nations.
8. It is in this spirit that the Russian Federation submits the present written
statement to the International Court of Justice, pursuant to its Orders of 14 July
2017 and of 17 January 2018.
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II. Jurisdiction and discretion of the Court
9. Pursuant to Article 96, paragraph 1 of the UN Charter, the General
Assembly may request the International Court of Justice to give an advisory
opinion on any legal question.
10. Under Article 65, paragraph 1, of the ICJ Statute 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.
11. As the Court stated in its advisory opinion “Accordance with International
Law o f the Unilateral Declaration o f Independence in Respect o f Kosovo ”, “when
seized of a request for an advisory opinion, the Court must first consider whether it
has jurisdiction to give the opinion requested and whether, should the answer be in
the affirmative, there is any reason why the Court, in its discretion, should decline
. 9 to exercise any such jurisdiction in the case before it.” .
12. In this opinion the Court further noted that “while paragraph 1 of Article 96 [of
the UN Charter] confers on the General Assembly the competence to request an
advisory opinion on “any legal question”, the Court has... given certain indications
as to the relationship between the question which is the subject of a request for an
advisory opinion and the activities of the General Assembly (“Interpretation o f
Peace Treaties with Bulgaria, Hungary and Romania, First Phase”, Advisory
Opinion, I.C.J. Reports 1950, p. 70; “Legality o f the Threat or Use o f Nuclear
Weapons”, Advisory Opinion, I.C.J. Reports 1996 (I), pp. 232-233, paras. 11-12;
“Legal Consequences o f the Construction o f a Wall in the Occupied Palestinian
Territory”, Advisory Opinion, I.C.J. Reports 2004 (I), p. 145, paras. 16-17)”.
Accordance with International Law o f the Unilateral Declaration o f Independence in Respect o f Kosovo,
Advisory Opinion, I.C.J. Reports 2010, p. 403, para. 17.
13. In all these cases the issue was raised as to whether the UN General Assembly
while addressing a request for an advisory opinion to the Court was acting ultra
vires. Although the Court did not reject the request on this basis it has carefully
examined the relation between the question posed and the competence of the
Assembly.
14. The examination of the mandate of the General Assembly in the field of
advisory proceedings on the part of the Court is indispensable and is to be
conducted rigorously each time.
15. Unfortunately, recent practice shows less respect for the mandate and
procedures of the United Nations organs, which leads to the collision of their
competences and undermines the international legal order.
16. The Court's own jurisprudence confirms that the purpose of its advisory
opinions is the furnishing to the requesting organs the elements of law necessary
for them in their action or in other words “the object of ... request for an Opinion
is to guide the United Nations in respect to its own action”4. According to the
Opinion concerning the Legal Consequences for States of the Continued Presence
of South Africa in Namibia, “the request is put forward by a United Nations organ
with reference to its own decisions and it seeks legal advice from the Court on the
consequences and implications of these decisions”.
17. The purpose of the Court's advisory jurisdiction is not to settle, at least directly,
inter-state disputes, but rather to offer legal advice to the organs and institutions
requesting the opinion.5 Thus, "the advisory jurisdiction is not a form of judicial
recourse for States but the means by which the General Assembly ... in accordance
7
See, inter alia, Reservations to the Convention on the Prevention und Punishment o f the Crime o f
Genocide, I.C.J. Reports 1951, p. 19; Legal Consequences fo r States o f the Continued Presence o f South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), l.C.J. Reports 1971, p. 24,
para. 32; Western Sahara, I. C. J. Reports 1975, p. 37, para. 72.
4 Reservations to the Convention on the Prevention and Punishment o f the crime o f Genocide ICJ Reports 1951, p.
19.
See, inter alia, The Legality o f the Threat or Use o f Nuclear Weapons case, ICJ Reports, 1996, pp.
226,236;
with Article 96, paragraph 2, of the Charter, may obtain the Court’s opinion in
order to assist them in their activities. The Court’s opinion is given not to States
but to the organ which has requested it”.6
18. Therefore it is submitted that the UN General Assembly may request an
advisory opinion only on the questions within its mandate, pertaining to its work
and necessary for its future actions.
( l )The General Assembly's functions and powers and the right to
self-determination of peoples in the decolonization context
19. Article 10 of the UN Charter entitles the General Assembly “to discuss any
questions or any matters within the scope of the present Charter or relating to the
powers and functions of any organs provided for in the present Charter, and, except
as provided in Article 12, may make recommendations to the Members of the
United Nations or to the Security Council or to both on any such questions or
matters”.
20. The self-determination of peoples is mentioned in Articles 1(2), 55 and
related article 56 of the United Nations Charter. Article 1 (2) sets forth the selfdetermination
of peoples among the purposes of the Organization. The Rapporteur
of Committee 1/1 to the San Francisco Conference referred to the purposes as “the
raison d’etre of the Organization,... the aggregation of the common ends... the
cause and object of the Charter to which member states collectively and severally
subscribe”7. Decisions of the organs taken under other Articles may be regarded -
if one takes a constitutional view - as bearing upon, or even implementing, such
8
Interpretation o f Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 71, Accordance with International Law o f the Unilateral Declaration o f Independence in
Respect o f Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403, para.33.
7 UNCIO VI, 447, Doc. 944
purposes and principles . The important role in establishing the self-determination
of peoples among the purposes of the United Nations was played by the USSR9.
21. According to the Court, those provisions have direct and particular relevance
for non-self-goveming territories, which are dealt with in Chapter XI of the
Charter. As the Court stated in its Advisory Opinion of 21 June 1971 on “The
Legal Consequences for States o f the Continued Presence o f South Africa in
Namibia (South West Africa) notwithstanding Security Council Resolution 276
(1970) “...the subsequent development of international law in regard to non-selfgoveming
territories, as enshrined in the Charter of the United Nations, made the
principle of self-determination applicable to all of them”10.
22. The self-determination in the decolonization context is firmly established as
part of the mandate of the UN General Assembly. The UN General Assembly over
the years has adopted a number of resolutions on the implementation of the
Declaration and in particular resolutions 9 and 66 (I) of 1946, resolutions 334 and
569 (IV) of 1949, resolution 567 (VI) of 1951, resolutions 637 and 648 (VII) of
1952, 742 (VIII) of 1953, resolution 1188 (XIV) of 1959, resolutions 1514 (XV)
and 1541 (XV) of 1960.
23. Since 1946 the UN General Assembly has special subsidiary organs dealing
with the issue of non-self-goveming territories and self-determination. With the
adoption of the breakthrough Declaration on the Granting of Independence to
Colonial Countries and Peoples of 1960 a Special Committee on the Situation with
regard to the Implementation of the Declaration was established (also known as the
Special Committee on decolonization or C-24).11 Currently, decolonization is one
9
The Charter o f the United Nations, A commentary, third edition, Volume I, edited by B.Simma. D-E Khan,
G.Nolte, A.Paulus, Oxford University Press, 2012, p. 109, p. 6
The Charter o f the United Nations, A commentary, third edition, Volume I, edited by B.Simma. D-E Khan,
G.Nolte, A.Paulus, Oxford University Press, 2012, p. 318, para 6.
The Legal Consequences fo r States o f the Continued Presence o f South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970). I.C.J. Reports 1971, p. 31
General Assembly Resolution 1514 (XV) o f 14 December 1960.
of the main subjects that the Special Political and Decolonization Committee
(Fourth Committee) of the General Assembly deals with.
24. In the Western Sahara case the Court stated that a United Nations Member
“could not validly object, to the General Assembly’s exercise of its powers to deal
with the decolonization of a non-self-goveming territory and to seek an opinion on
I л questions relevant to the exercise of those powers...” . According to the Court
“the object of the General Assembly has not been to bring before the Court, by
way of a request for advisory opinion, a dispute or legal controversy, in order that
it may later, on the basis of the Court’s opinion, exercise its powers and functions
for the peaceful settlement of that dispute or controversy. The object of the request
is an entirely different one: to obtain from the Court an opinion which the General
Assembly deems of assistance to it for the proper exercise of its functions
concerning the decolonization of the terri• tory”.13
25. Consequently, the General Assembly may have an institutional interest in
the decolonization process given its mandate and activities in this sphere.
(2). The General Assembles functions and powers and the status of
territories
26. Articles 10-17 of the UN Charter describing the mandate of the UN General
Assembly do not contain any provisions regarding the competence of the UN
General Assembly to establish the legal status of the territories.
27. The UN “General Assembly is not generally entitled to exercise rights of
ownership and title of territories or to impose permanent status changes. These
10
Western Sahara Advisory Opinion, l.C.J. Reports 1975, p. 15, para. 30
Western Sahara Advisory Opinion, l.C.J. Reports 1975, p. 18, para. 39
powers remain with the territorial sovereign, or ultimately with the inhabitants of
the territory ”.7
28. An exception to this rule is related to the powers of the Assembly with respect
to the Trusteeship system and related issues of the mandate system. As it was
stated in the South-West Africa Advisory opinion, “the Court has arrived at the
conclusion that the General Assembly of the United Nations is legally qualified to
exercise the supervisory functions previously exercised by the League if Nations
with regard to the administration of the Territory, and that the Union of South
Africa is under an obligation to submit to supervision and control of the General
Assembly and render annual reports to it”15.
29. Any territorial disputes between States may be resolved by peaceful means
agreed upon by them in accordance with applicable international law. The power
of the UN General Assembly to request an advisory opinion of the International
Court of Justice may not be used ultra vires in order to settle the issue of legal
status of a te rritory by circumventing t he agreement of parties to a territorial
dispute. Therefore the Court lacks jurisdiction to respond to such a request.
30. In the Western Sahara advisory opinion the Court noted that “in certain
circumstances... the lack of consent of an interested State may render the giving of
an advisory opinion incompatible with the Court’s judicial character. An instance
of this would be when the circumstances disclose that to give a reply would have
the effect of circumventing the principle that a State is not obliged to allow its
disputes to be submitted to judicial settlement without its consent. If such a
situation should arise, the powers of the Court under the discretion given to it by
Article 65, paragraph 1, of the Statute, would afford sufficient legal means to
ensure respect for the fundamental principle of consent to jurisdiction”16.
11
See, inter alia, C. Stahn. The Law and Practice o f International Territorial Administration : Versailles to
Iraq and Beyond. Cambridge University Press. 2008, P. 545.
L' "International status o f South-West Africa, Advisory Opinion : I.C. J. Reports 1950, p. 128.page 137
16 Western Sahara Advisory Opinion, I.C.J. Reports 1975, p. 12, para.33
31. As a criterion for resolving the issue the Court analyzed the question whether
the dispute arose independently in bilateral relations or during the proceedings of
the UN General Assembly 11.
32. The Court deals with a request for an advisory opinion which in fact transmits
to the Court not just a dispute but a bilateral territorial dispute the criterion must be
even higher. It is supported, inter alia, by the fact that in “Western Sahara”
Advisory Opinion the Court did not dismiss Spain’s objection that the consent of a
State to adjudication of a dispute concerning attribution of territorial sovereignty is
always necessary, but responded that “the questions in the request do not... relate
• • • • 18 to a territorial dispute, in the proper sense of the term, between interested States” .
Conclusions
33. It is important for the Court to carefully evaluate the circumstances of each
request for an advisory opinion in order to take an informed decision as to whether
a particular request is adopted within the mandate of the requesting organ (even if
this organ is the UN General Assembly) for the purposes of discharging its
functions.
34. In “Certain expenses o f the United Nations ” Advisory Opinion the Court
stated: “as anticipated in 1945,... each organ must, in the first place at least,
determine its own jurisdiction”19. This assertion remains true today. However, in a
request for advisory opinion the competence of the UN General Assembly is the
basis for the Court’s jurisdiction and, therefore, the scrutiny of the mandate of the
General Assembly in this request is appropriate.
35. In this context it should be noted also that in some previous cases the Court
“has departed from the language of the question put to it where the question was
r Western Sahara Advisory Opinion, I.C.J. Reports 1975, p. 12, para. 34
Western Sahara Advisory Opinion, I.C.J. Reports 1975, p. 12, para.43
Certain expenses o f the United Nations (Article 17, paragraph 2, o f the Charter), Advisory Opinion o f 20
July 1962:1.C. J . Reports 1962, p. page. 21
12
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not adequately formulated (see, for example, in Interpretation of the Greco-Turkish
Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion,
1928, P.C.I.J., Series B, No. 16) or where the Court determined, on the basis of its
examination of the background to the request, that the request did not reflect the
“legal questions really in issue” {Interpretation o f the Agreement o f 25 March 1951
between the WHO and Egypt, Advisory Opinion, l.C.J. Reports 1980, p. 89, para.
35). Similarly, where the question asked was unclear or vague, the Court has
clarified the question before giving its opinion (“Application for Review o f
Judgement No. 273 o f the United Nations Administrative Tribunal”, Advisory
Opinion, l.C.J. Reports 1982, p. 348, para. 46)”20.
Accordance with International Law o f the Unilateral Declaration o f Independence in Respect o f Kosovo,
Advisory Opinion, l.C.J. Reports 2010, p. 403, para 50.
Alexander V.SHULGIN
Ambassador of the Russian Federation
To the Kingdom of the Netherlands