Written Statement of the United States of America

INTERNATIONAL COURT OF JUSTICE
REQUEST BY THE UNITED NATIONS GENERAL ASSEMBLY
FOR AN ADVISORY OPINION ON THE
“LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS
ARCHIPELAGO FROM MAURITIUS IN 1965”
WRITTEN STATEMENT OF
THE UNITED STATES OF AMERICA
MARCH 1, 2018

TABLE OF CONTENTS
CHAPTER I – INTRODUCTION .............................................................................1
CHAPTER II – BACKGROUND: THE NATURE OF THE BILATERAL
DISPUTE ...................................................................................................................2
CHAPTER III – THIS CASE PRESENTS COMPELLING REASONS FOR
THE COURT TO DECLINE TO PROVIDE THE OPINION REQUESTED...........8
A. The Court was not provided advisory jurisdiction under its Statute to adjudicate
disputes between States....................................................................................................... 9
B. The Court’s jurisprudence affirms that the advisory opinion function should not be
used to adjudicate disputes between States.......................................................................10
C. The Court should decline to respond to the General Assembly’s request because the
request calls for the adjudication of a bilateral territorial dispute between Mauritius
and the United Kingdom, and the United Kingdom has not provided its consent to
judicial settlement by this Court. ......................................................................................12
CHAPTER IV – CONSIDERATIONS RELATING TO THE QUESTIONS
REFERRED .............................................................................................................17
A. The questions in the referral would need to be clarified in order for the Court to
address them......................................................................................................................18
B. The General Assembly’s decolonization policy is distinct from whether a specific
legal obligation existed at the relevant time. ....................................................................20
C. To answer the questions referred, the Court would need to determine whether a new
rule of international law had emerged at the relevant time...............................................21
D. Through the end of the 1960s, no rule had emerged under customary international law
that would have prohibited the establishment of the British Indian Ocean Territory.......23
CHAPTER V – CONCLUSION ..............................................................................40
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CHAPTER I
INTRODUCTION
1.1 In its Order dated July 14, 2017, the Court invited the United Nations and its Member
States to submit written statements on the questions referred to the Court by the U.N. General
Assembly in its resolution 71/292 of June 22, 2017. The United States appreciates the
opportunity to furnish its observations on these questions and to convey its concerns
regarding the Court’s consideration of the General Assembly’s request for an advisory
opinion.
1.2 The United States voted against the General Assembly’s referral resolution because it
concerns a bilateral territorial dispute between Mauritius and the United Kingdom concerning
sovereignty over the Chagos Archipelago.1 The United States believes that this case raises
serious questions about the propriety of utilizing the Court’s advisory jurisdiction in light of
the fundamental principle that a State is not obliged to allow its disputes to be submitted for
judicial settlement without its consent. It is clear that the United Kingdom, one of the parties
to this bilateral dispute, has not given that consent.2
1.3 This Statement begins, in Chapter II, by briefly describing the context in which the
General Assembly’s referral resolution should be understood.
1.4 Chapter III identifies compelling reasons why the Court should not provide an
advisory opinion in this case. Most notably, to do so would circumvent the fundamental
principle that a State is not obliged to submit its disputes to judicial settlement without its
consent.
1.5 Chapter IV first identifies several issues the Court would need to consider were it to
examine the questions referred, including the problematic framing of those questions.
Chapter IV then demonstrates the absence of any international law rule in 1965 that would
have made the establishment of the British Indian Ocean Territory (BIOT) unlawful. These
considerations help to confirm why the dispute that is the subject of the questions referred is
not appropriate to address through the Court’s advisory jurisdiction.
1.6 Chapter V concludes the Statement by respectfully requesting that the Court decline
to provide the opinion requested.
1 U.N. Doc. A/71/PV.88 (June 22, 2017) [Dossier No. 6], p. 13. This Statement uses the term “Chagos
Archipelago” to describe the group of islands that comprise the British Indian Ocean Territory.
2 See id., p. 11.
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CHAPTER II
BACKGROUND: THE NATURE OF THE BILATERAL DISPUTE
2.1 The United States anticipates that Mauritius and the United Kingdom will provide the
Court with the pertinent background on their dispute concerning sovereignty over the Chagos
Archipelago. The United States therefore does not intend to set forth here a comprehensive
factual overview.
2.2 Instead, in this Chapter, the United States will describe the context in which the
General Assembly’s referral resolution should be understood. This context will illustrate the
point that the present request for an advisory opinion concerns the longstanding territorial
dispute between the two States, and in fact represents an attempt to enlist the Court to
adjudicate the same sovereignty claim Mauritius has been pressing in other fora.
2.3 The General Assembly, in its resolution 71/292, 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,
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?
2.4 The United States voted against adoption of this resolution because of concerns that it
is not an appropriate subject for an advisory opinion. As the United States explained in the
General Assembly debate:
By pursuing the draft resolution, Mauritius seeks to invoke the Court’s advisory
opinion jurisdiction not for its intended purpose but rather to circumvent the Court’s
lack of contentious jurisdiction over this purely bilateral matter … . While Mauritius
is attempting to frame this as an issue of decolonization relevant to the international
community, at its heart it is a bilateral territorial dispute, and the United Kingdom has
not consented to the jurisdiction of the International Court of Justice … . The advisory
function of the International Court of Justice was not intended to settle disputes
between States.3
3 Id., p. 13.
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2.5 Indeed, the origin of this referral request stems from a State-to-State sovereignty
claim by Mauritius against the United Kingdom that arose more than a decade after Mauritius
gained its independence in 1968.
2.6 The United Kingdom has exercised sovereignty over the Chagos Archipelago without
interruption since the nineteenth century. For most of this time, the United Kingdom
administered the islands as a Lesser Dependency of the British colony of Mauritius. In
November 1965, the United Kingdom adjusted these administrative arrangements, and since
then it has administered the Chagos Archipelago as the BIOT.
2.7 In 1966, the United States entered into a bilateral agreement with the United Kingdom
regarding the establishment of a joint U.S.-U.K. military facility in the BIOT.4 The 1966
Agreement remains in force today, as amended. Over the years, the United States and United
Kingdom have also concluded supplemental agreements.5 The 1966 Agreement and
supplemental agreements have been registered with the United Nations Treaty Office
pursuant to Article 102 of the U.N. Charter, and published in the U.N. Treaty Series.6
2.8 In 1968, Mauritius gained its independence; its territorial boundaries did not include
the Chagos Archipelago. Over a decade later, Mauritius began asserting a claim to
sovereignty over the Chagos Archipelago, including in its annual statements at the opening of
the General Assembly.7
2.9 Given the joint military facility in the BIOT, Mauritius has raised its territorial claim
with the United States on a number of occasions. The United States has been clear in these
discussions that the United Kingdom is sovereign over the BIOT. That said, the United States
greatly values its warm relations with both Mauritius and the United Kingdom, and has
encouraged the two parties to the dispute to resolve the matter on a bilateral basis.
2.10 Prior to this request for an advisory opinion, Mauritius has also pursued its
sovereignty claim against the United Kingdom through legal avenues, including by seeking to
have the claim adjudicated as a contentious matter with the United Kingdom. Of particular
note, Mauritius has sought to bring a contentious dispute against the United Kingdom before
4 Agreement Concerning the Availability of Certain Indian Ocean Islands for the Defense Purposes of Both
Governments [hereinafter 1966 Agreement], United States-United Kingdom, Dec. 30, 1966, 18 U.S.T. 28,
T.I.A.S. 6196, 603 U.N.T.S. 273.
5 The 1966 Agreement was amended on June 22 and 25, 1976 (27 U.S.T. 3448, T.I.A.S. 8376) and on
November 16, 1987 (1576 U.N.T.S. 179). The 1966 Agreement was supplemented by an agreement in 1972
(Agreement Concerning a Limited United States Naval Communications Facility on Diego Garcia, British
Indian Ocean Territory, Oct. 24, 1972, 866 U.N.T.S. 302), which was superseded by a 1976 agreement
(Agreement Concerning a United States Naval Support Facility on Diego Garcia, British Indian Ocean
Territory, Feb. 25, 1976, 27 U.S.T. 315, T.I.A.S. 8230, 1018 U.N.T.S. 372). The 1966 Agreement, at Article 11,
provides that, absent notice to terminate, after the conclusion of the initial fifty-year period, the Agreement shall
continue in force for an additional 20 years. In 2016, there were discussions between the United Kingdom and
the United States concerning the continuing importance of the joint base. Neither party gave notice to terminate
and the Agreement remains in force until 2036.
6 The 1966 Agreement was registered with the United Nations on August 22, 1967; the two above-mentioned
supplemental agreements were registered on April 11, 1973 and July 27, 1976, respectively. The 1987
amendment was registered on August 24, 1990.
7 See, e.g., Dossier Nos. 269–321.
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this Court.8 The United Kingdom declined to consent to that procedure for resolving its
dispute, preferring instead to engage in direct, bilateral negotiations.
2.11 In 2010, Mauritius initiated arbitral proceedings against the United Kingdom under
Annex VII of the U.N. Convention on the Law of the Sea (UNCLOS) of 1982. Those
proceedings provide the most complete articulation to date of Mauritius’s sovereignty claim.
Mauritius claimed in the proceedings that it possesses sovereignty over the Chagos
Archipelago and that any sovereign rights claimed by the United Kingdom are without legal
basis.9 Mauritius also sought a declaration that “the United Kingdom is not a ‘coastal state’
within the meaning of the 1982 Convention” and that “only Mauritius is entitled to declare an
exclusive zone under Part V of the 1982 Convention … .”10
2.12 To support its contention, Mauritius argued that the “unlawful excision of the Chagos
Archipelago by the UK prior to Mauritius’ independence does not give the UK an entitlement
to be considered ‘the coastal State’ in relation to the Archipelago … .”11 Mauritius went on to
argue that:
The detachment of the Chagos Archipelago was, first and foremost, contrary to the
right of Mauritius to self-determination. This right—and the duty to recognise it—is a
fundamental norm of international law which is enshrined in the UN Charter, in
General Assembly resolutions interpreting and applying it, in the law and practice of
UN organs and in customary international law.12
In making this argument, Mauritius relied for support on the same General Assembly
resolutions that are now cited in the request for an advisory opinion currently before the
Court.
2.13 The arbitral tribunal, in its Award dated March 18, 2015, recognized that there was a
territorial dispute over the Chagos Archipelago between Mauritius and the United Kingdom,
and held that it lacked the jurisdiction to decide such a dispute.13 It found that it did have
jurisdiction to rule on the binding nature of the agreement reached prior to Mauritius’s
independence between the United Kingdom and the political representatives of Mauritius
concerning the detachment of the Chagos Archipelago.14
8 See, e.g., Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom) [hereinafter Chagos
Marine Arbitration], P.C.A. Case No. 2011-03 (Perm. Ct. Arb. 2015), Rejoinder of the United Kingdom,
para. 6.26. Relatedly, the United Kingdom’s declaration recognizing the Court’s compulsory jurisdiction
expressly excludes disputes with the government of any country which is or has been a member of the
Commonwealth. Declarations Recognizing the Jurisdiction of the Court as Compulsory: United Kingdom,
available at http://www.icj-cij.org/en/declarations/gb.
9 Chagos Marine Arbitration, supra note 8, Memorial of Mauritius, paras. 2.1, 6.36 (contending that “[s]ince, as
demonstrated, the excision of the Chagos Archipelago from Mauritius was void, the UK cannot rely on its
unlawful act of dismembering Mauritius to base its claim to be the ‘coastal State’ in regard to the Archipelago”).
10 Id., Notice of Arbitration, para. 11.
11 Id., Memorial of Mauritius, para. 6.2.
12 Id., Memorial of Mauritius, para. 6.10.
13 Id., Award, paras. 207–221; see also id., para. 230.
14 Id., Award, para. 425 (“The independence of Mauritius in 1968 … had the effect of elevating the package deal
reached with the Mauritian Ministers to the international plane and of transforming the commitments made in
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2.14 When it did not achieve its aim in the UNCLOS arbitration, Mauritius pursued an
advisory proceeding before this Court. In July 2016, Mauritius requested that a new item be
added to the General Assembly’s agenda under the heading of “Promotion of justice and
international law” seeking an advisory opinion from the Court.15 The records of debate in the
Mauritian parliament before, during, and after the addition of the new U.N. agenda item make
clear that Mauritius’s goal in seeking an advisory opinion was to advance its sovereignty
claim.16
2.15 Given this context, it is not surprising that the two questions that have been referred to
this Court, at the initiative of Mauritius, are a repackaging of Mauritius’s prior sovereignty
claim.
2.16 Although the questions refer to the political process of “decolonization,” and do not
use the word “sovereignty,” it is difficult, if not impossible, to understand them as raising any
issue other than whether it is the United Kingdom or Mauritius that is sovereign over the
Chagos Archipelago. Question (a) refers to the “the separation of the Chagos Archipelago
from Mauritius” in 1965, which goes to the heart of Mauritius’s claim to sovereignty. If there
were any doubt in the framing of Question (a), it is laid to rest by Question (b), which raises
the matter of legal consequences of the United Kingdom’s “continued administration” of the
Chagos Archipelago. It is difficult to discern how the Court could discuss legal consequences
without having adjudicated sovereignty. Indeed, Question (b) refers explicitly to a program
by Mauritius to resettle its nationals on the Chagos Archipelago, a prerogative reserved for a
sovereign.
2.17 As such, it is clear that the questions are designed to go directly to issues that are
central to the bilateral territorial dispute concerning sovereignty.
1965 into an international agreement. In return for the detachment of the Chagos Archipelago, the United
Kingdom made a series of commitments regarding its future relations with Mauritius. When Mauritius became
independent and the United Kingdom retained the Chagos Archipelago, the Parties fulfilled the conditions
necessary to give effect to the 1965 Agreement and, by their conduct, reaffirmed its application between
them.”).
15 Request for the Inclusion of an Item in the Provisional Agenda of the Seventy-First session, Request for an
Advisory Opinion of the International Court of Justice on the Legal Consequences of the Separation of the
Chagos Archipelago from Mauritius in 1965, Letter Dated 14 July 2016 from the Permanent Representative of
Mauritius to the United Nations Addressed to the Secretary-General, U.N. Doc. A/71/142 (July 14, 2016)
[Dossier No. 1].
16 See, e.g., Mauritian Parliamentary Debates of Feb. 26, 2015, 6th National Assembly (Debate No. 5, 1st
Session), available at http://mauritiusassembly.govmu.org/English/hansard/Documents/2015/hansa…,
p. 12 (Mauritian Prime Minister stating, in response to a question during parliamentary debate as to whether the
Mauritian Government was considering new initiatives at the United Nations including the General Assembly or
elsewhere to pursue sovereignty: “Definitely, we are working on it. We are considering the stand that we should
take and we want the matter of sovereignty to be thrashed out once and for all.”); Mauritian Parliamentary
Debates of May 17, 2016, 6th National Assembly (Debate No. 7, 1st Session), available at
http://mauritiusassembly.govmu.org/English/hansard/Documents/2016/hansa…, pp. 12–13, 15–16, 18
(discussing preparations for, and the purpose of, an advisory opinion by this Court); Mauritian Parliamentary
Debates of Nov. 29, 2016, 6th National Assembly (Debate No. 34, 1st Session), available at
http://mauritiusassembly.govmu.org/English/hansard/Documents/2016/hansa…, pp. 14–15 (Mauritian
Prime Minister describing discussions between Mauritian and U.K. officials following the item’s addition to the
General Assembly’s agenda and stating: “I made it very clear that we want sovereignty, we want our territory
back and discussions will be on this and nothing else.”).
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2.18 Notably, the record of the General Assembly debate on the referral resolution and the
explanations of vote demonstrate that U.N. Member States widely viewed the purpose of the
request as an attempt to seek resolution of the bilateral sovereignty dispute between Mauritius
and the United Kingdom. The statements of most of the speakers, whether voting for, against,
or abstaining on the referral resolution, reflect this understanding.
2.19 For instance, in introducing the draft resolution that became the request for an
advisory opinion, the representative of the African Group of States17 painted a clear picture of
the bilateral dispute over sovereignty, explaining the process that led to the General
Assembly’s consideration of the matter as follows:
• it was at the request of Mauritius that, in 2016, the General Assembly included on its
agenda the item entitled “Request for an advisory opinion of the International Court
of Justice on the legal consequences of the separation of the Chagos Archipelago from
Mauritius in 1965”;
• the context of the request was Mauritius’s effort to “complete its decolonization and
effectively exercise its sovereignty over the Chagos Archipelago”;
• the United Kingdom requested a delay of consideration of the agenda item;
• an understanding was reached between Mauritius and the United Kingdom, facilitated
by the President of the General Assembly, to defer consideration of the item until
June 2017 to allow Mauritius and the United Kingdom time to reach a solution; and
• the lack of “progress between the parties” resulted in the General Assembly’s
consideration of the item.18
2.20 In supporting the resolution, the representative of the Non-Aligned Movement stated
that its Heads of State and Government were
[a]ware that the Government of the Republic of Mauritius is committed to taking all
measures necessary to affirm the territorial integrity of the Republic of Mauritius and
its sovereignty over the Chagos archipelago under international law, [and that they]
decided to support such measures, in particular any action that might be taken in this
regard by the General Assembly.19
2.21 States that voted against the referral resolution, or that abstained, also saw the
proposed referral as implicating the bilateral sovereignty dispute; they spoke to the
fundamental principle of international law that a State is not obliged to allow its disputes to
be submitted for judicial settlement without its consent,20 or urged that the matter be resolved
bilaterally.21
17 Four African States did not take part in the vote.
18 A/71/PV.88, supra note 1, p. 5 (emphasis added).
19 Id., p. 9. Given that only 94 states voted in favor of the referral of the sovereignty dispute to this Court, not all
members of the approximately 125-member Non-Aligned Movement supported the referral. Id., pp. 17–18.
20 See id., p. 17 (France: “A sovereignty dispute between States, which is the case here, should be resolved in
accordance with the principle of the concerned States’ consent to court adjudication.”); id., p. 16 (Croatia:
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2.22 The reluctance of many States to bring this bilateral territorial dispute before the
Court through an advisory proceeding, particularly in the face of the opposition of one of the
parties to the dispute, is reflected in the vote count: 94 States were in favor, 15 against, and
65 abstained.22 Nineteen States did not vote. In other words, when it came to a vote, over half
of the U.N. membership did not support the request for an advisory opinion.
“[W]ith regard to bilateral disputes between States, we believe in the proper application of international law and
the use of appropriate avenues for addressing such disputes … . We shall vote against the draft resolution … and
continue to support the pursuit of direct talks in good faith between Mauritius and the United Kingdom… .”);
id., p. 18 (Germany: “[T]he dispute between Mauritius and the United Kingdom is bilateral in character … . We
note … that one party to the dispute has expressly not agreed to involve the International Court of Justice in this
matter, which is in conformity with the Court’s Statute.”); id., p. 19 (Sweden: “[B]ilateral disputes over
sovereignty should be dealt with in accordance with article 36 of the Statute.”); id., p. 20 (Canada: “[I]t is a
fundamental principle and key to the effectiveness of the Court’s work that the settlement of a contentious case
between States through the International Court of Justice requires the consent of both parties. Seeking the
referral of a contentious case between States through the General Assembly’s power to request an advisory
opinion circumvents that fundamental principle … .”); id., p. 18 (Australia: “[I]t is not appropriate for the
advisory opinion jurisdiction of the Court to be used to determine the rights and interests of States arising in a
specific context.”).
21 Id., p. 18 (China: “China calls upon the countries concerned … to continue to carry out bilateral negotiations
… .”); id., p. 19 (Mexico: “[T]he solution to this case must … be found at the bilateral level.”); (Indonesia:
“[T]o ensure that the outcome of this matter can be obtained through peaceful negotiations … my delegation
abstained … .”); id., p. 21 (Myanmar: “[O]ngoing bilateral negotiations represent the best way to avoid
confrontation and to bring a mutually accepted solution to Mauritius and the United Kingdom.”).
22 Id., pp. 17–18.
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CHAPTER III
THIS CASE PRESENTS COMPELLINGREASONS FOR THE COURT
TO DECLINE TO PROVIDE THE OPINION REQUESTED
3.1 It is well established that the Court has jurisdiction under Article 65, paragraph 1, of
its Statute to render an advisory opinion at the request of the General Assembly on “any legal
question.”23
3.2 Even where the Court’s jurisdiction is established, its authority to issue an advisory
opinion is discretionary.24 The Court has recognized that the “discretion whether or not to
respond to a request for an advisory opinion exists so as to protect the integrity of the Court’s
judicial function.”25 In this regard, and despite this otherwise broad grant of advisory
jurisdiction, both this Court and its predecessor, the Permanent Court of International Justice
(“Permanent Court”), have recognized inherent limitations stemming from the Court’s
judicial character.26 The Court not only has the power to decline an opinion, but also “the
duty to satisfy itself, each time it is seized of a request for an opinion, as to the propriety of
the exercise of its judicial function.”27
3.3 The United States recognizes that the Court, mindful of its responsibilities as the
principal judicial organ of the United Nations, has stated that only “compelling reasons
should lead the Court to refuse its opinion.”28 The Court has indicated that the lack of an
interested State’s consent could present such compelling reasons if responding to a request
for an advisory opinion would circumvent the principle that a State is not obliged to allow its
disputes to be submitted to judicial settlement without its consent.29
3.4 The present case falls squarely within the very circumstances envisaged by the Court,
such that it is difficult to see how the Court could exercise its advisory jurisdiction without
circumventing the fundamental principle of consent to judicial settlement.
23 See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory [hereinafter
Construction of a Wall], Advisory Opinion, I.C.J. Reports 2004, p. 136, para. 14. The Court would need to
satisfy itself of its jurisdiction in this case, including that the questions referred can be answered with reference
to international law.
24 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo
[hereinafter Kosovo], Advisory Opinion, I.C.J. Reports 2010, p. 403, para. 29.
25 Id.
26 Status of Eastern Carelia [hereinafter Eastern Carelia], Advisory Opinion, 1923, P.C.I.J., Series B, No. 5,
p. 29 (“The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential
rules guiding their activity as a Court.”); Interpretation of Peace Treaties, Advisory Opinion, I.C.J. Reports
1950, p. 65, 71 (“There are certain limits, however, to the Court’s duty to reply to a Request for an Opinion.”);
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, para. 23 (“The International Court of Justice, like
the Permanent Court of International Justice, has always been guided by the principle that, as a judicial body, it
is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions.”).
27 Construction of a Wall, supra note 23, Advisory Opinion, para. 45; see also Kosovo, supra note 24, Advisory
Opinion, para. 31.
28 Construction of a Wall, supra note 23, Advisory Opinion, para. 44.
29 See, e.g., Western Sahara, supra note 26, Advisory Opinion, paras. 32–33; Applicability of Article VI,
Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J.
Reports 1989, p. 177, paras. 37–38; Construction of a Wall, supra note 23, Advisory Opinion, para. 47.
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3.5 This Chapter is divided into three sections. Section A explains that the Court was not
provided advisory jurisdiction to adjudicate disputes between States. Section B discusses the
Court’s jurisprudence, which affirms that the advisory function should not be used to
adjudicate disputes between States. Section C explains that the Court should decline to
respond to the General Assembly’s request in this instance, because the request calls for the
adjudication of a bilateral sovereignty dispute between Mauritius and the United Kingdom,
and the United Kingdom has not provided its consent.
A. The Court was not provided advisory jurisdiction under its Statute to adjudicate
disputes between States.
3.6 The Court’s advisory jurisdiction is limited to “any legal question” asked by an
authorized U.N. organ or agency.30 This language reflects a deliberate decision by the
drafters of the Statute of the Court to adopt a narrower formulation of the provision granting
advisory jurisdiction as compared to that of the Permanent Court.
3.7 Article 14 of the Covenant of the League of Nations empowered the Permanent Court
to give an advisory opinion on “any dispute or question referred to it by the Council or by the
Assembly.”31 As one leading commentator has noted, this formulation envisaged two distinct
types of opinion, one on “disputes” and another on “questions.” 32
3.8 The drafters of the provisions that set forth the advisory jurisdiction of this Court,
however, quickly dispensed with the phrase “any dispute or question” in favor of the
narrower formulation “any legal question.”33
3.9 The drafters also rejected several proposals that would have extended the right to
request an advisory opinion to individual States, either acting alone or in concert with
others.34 The Informal Inter-Allied Committee, a group of experts charged with making
30 Statute of the International Court of Justice, art. 65(1).
31 League of Nations Covenant, art. 14.
32 1 SHABTAI ROSENNE, THE LAW AND PRACTICE OF THE INTERNATIONAL COURT, 1920–2005 276 (4th ed.
2006); see also Karin Oellers-Frahm, Chapter XIV The International Court of Justice: Article 96, in 2 THE
CHARTER OF THE UNITED NATIONS: A COMMENTARY 1897, p. 1978 (Bruno Simma et al. eds., 3d ed. 2012)
(explaining that the purpose of Article 14 of the Covenant of the League of Nations “was to create, within the
framework of the League of Nations, an additional and flexible means of peaceful settlement of disputes, less
binding than judgments in contentious cases between States, but also relating in the first place to interstate
controversies”).
33 See United Nations Conference on International Organization, Report of the Rapporteur (Nasrat Al-Farsy,
Iraq) of Committee IV/1, 13 U.N. CONF. ON INT’L ORG. 381 (1945), pp. 385–86 (explaining that the committee
charged with preparation of a draft of Chapter X of the Charter relating to the International Court of Justice and
a draft of the Statute of the Court proposed to vest the authority to make requests for advisory opinions in both
the General Assembly and the Security Council, which would be permitted “to request an opinion on any legal
question”); 1 ROSENNE, supra note 32, p. 63 (“In a departure from Article 14 of the Covenant of the League of
Nations, the advisory competence [of the International Court of Justice] is separated from the specific provisions
regarding the settlement of disputes … .”); Interpretation of Peace Treaties, supra note 26, Advisory Opinion
(separate opinion of Judge Azevedo), para. 9 (“To-day, we are no longer concerned with ‘disputes.’ Beginning
with the very first draft, we find no mention of anything but legal ‘questions.’”).
34 1 ROSENNE, supra note 32, p. 280; Report of the Informal Inter-Allied Committee on the Future of the
Permanent Court of International Justice (1945) [hereinafter Inter-Allied Committee Report], reprinted in 39
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recommendations on the structure and functions of the International Court of Justice,
explained the reason for not allowing an individual State to request an advisory opinion as
follows:
[G]iven the authoritative nature of the Court’s pronouncements, ex parte applications
would afford a means whereby the State concerned could indirectly impose a species
of compulsory jurisdiction on the rest of the world.35
3.10 States that adhered to the U.N. Charter and the Statute of the International Court of
Justice accepted the Court’s authority in principle to render an advisory opinion on “any legal
question” when requested by an authorized U.N. organ or agency. But they did so with the
understanding that there would be a clear demarcation between the Court’s advisory
jurisdiction on the one hand and its contentious jurisdiction on the other.
3.11 Those States, moreover, expected that the Court would preserve and protect its
judicial character, including through application of necessary judicial safeguards, such as the
fundamental principle of consent to judicial settlement. States did not intend to introduce
through the Court’s advisory jurisdiction a nonbinding substitute for the Court’s consentbased
contentious jurisdiction. To do so would have meant subjecting States to dispute
settlement without their consent, and without the normal procedural safeguards for
adjudicating bilateral disputes.36
B. The Court’s jurisprudence affirms that the advisory opinion function should not
be used to adjudicate disputes between States.
3.12 It is a fundamental principle that a State is not obliged to allow its disputes to be
submitted for judicial settlement without its consent.37 Both this Court and its predecessor
have addressed the application of this principle in the advisory opinion context. In Eastern
Carelia, the Permanent Court found that it could not exercise its advisory jurisdiction because
the question put to it “concerns directly the main point of the controversy between Finland
and Russia” and because “[a]nswering the questions would be substantially equivalent to
AM. J. INT’L L. Supp. (1945) 1, 22, para. 71. The Informal Inter-Allied Committee also highlighted a number of
other important judicial limitations that the Court would be expected to apply, including that the Court would
“refuse to allow the procedure by way of advisory opinions to be used as a means of reopening questions
already judicially determined, or for pronouncing on questions of municipal law where these lay solely within
the competence of domestic tribunals.” Id., para. 73.
35 Inter-Allied Committee Report, supra note 34, para. 71 (emphasis added).
36 Such procedural safeguards include the ability to raise preliminary objections to the Court’s jurisdiction or the
admissibility of the application, Rules of Court, art. 79, and to be consulted by the President of the Court on
questions of procedure, id., art. 31. Additionally, States generally have considerably more time to prepare and
present written and oral submissions to the Court in contentious proceedings.
37 See, e.g., Case of the Monetary Gold Removed from Rome in 1943, Preliminary Question, Judgment, I.C.J.
Reports 1954, p. 19, 32 (“To adjudicate upon the international responsibility of [a State] without [its] consent
would run counter to a well-established principle of international law embodied in the Court’s Statute, namely,
that the Court can only exercise jurisdiction over a State with its consent.”); Western Sahara, supra note 26,
Advisory Opinion, para. 33 ( “[T]he powers of the Court under the discretion given to it by Article 65,
paragraph 1, of the Statute … afford sufficient legal means to ensure respect for the fundamental principle of
consent to judicial settlement.”).
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deciding the dispute between the parties.”38 This Court has affirmed the applicability of this
principle to advisory proceedings on a number of occasions, including most recently in
Construction of a Wall.39
3.13 This Court first addressed the important issue of rendering an advisory opinion in the
absence of interested States’ consent in Interpretation of Peace Treaties, in which Bulgaria,
Hungary, and Romania contested the Court’s power to render a response.40 There, the Court
affirmed the fundamental principle of consent to judicial settlement and stressed the
continuing validity of the expression of that principle as set forth in Eastern Carelia, but
distinguished the facts of that case. It stated:
In the opinion of the Court, the circumstances of the present case are profoundly
different from those which were before the Permanent Court of International Justice
in the Eastern Carelia case (Advisory Opinion No. 5), when the Court declined to give
an Opinion because it found that the question put to it was directly related to the main
point of a dispute actually pending between two States, so that answering the question
would be substantially equivalent to deciding the dispute between the parties … .
As has been observed, the present Request for an Opinion is solely concerned with the
applicability to certain disputes of the procedure for settlement instituted by the Peace
Treaties, and it is justifiable to conclude that it in no way touches the merits of those
disputes … .
It follows that the legal position of the parties to these disputes cannot be in any way
compromised by the answers that the Court may give to the Questions put to it.41
3.14 As Judge Azevedo emphasized in his separate opinion, “the compelling reason which
had led to the abolition of [the ‘dispute’ clause in Article 14] of the Covenant—i.e. the refusal
to make use of the advisory function to decide a genuine dispute at law over the heads of the
parties concerned—continues to retain its force, for it is the only means of avoiding a misuse
of that function.”42
3.15 Twenty-five years later, in Western Sahara, the Court again reaffirmed the
fundamental principle of consent to judicial settlement as a constraint on the Court’s advisory
function.43 Citing Interpretation of Peace Treaties, it stressed that the lack of consent, while
not a jurisdictional bar in advisory cases, “might constitute a ground for declining to give the
38 Eastern Carelia, supra note 26, Advisory Opinion, pp. 28–29. Although the Court has since noted that
Eastern Carelia involved unique circumstances posed by Russia’s non-membership in the League of Nations,
that distinction does not undermine the continuing application of the principle as a constraint on the Court’s
advisory jurisdiction.
39 Construction of a Wall, supra note 23, Advisory Opinion, paras. 46–47. See also Western Sahara, supra
note 26, Advisory Opinion, para. 33; Interpretation of Peace Treaties, supra note 26, Advisory Opinion, pp. 71–
72.
40 Interpretation of Peace Treaties, supra note 26, Advisory Opinion, p. 70.
41 Id., p. 72 (emphasis added).
42 Id., Advisory Opinion (separate opinion of Judge Azevedo), para. 9.
43 Western Sahara, supra note 26, Advisory Opinion, para. 32.
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opinion if, in the circumstances of a given case, considerations of judicial propriety should
oblige the Court to refuse an opinion.”44 The Court explained:
In certain circumstances, therefore, 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.45
3.16 The Court has reaffirmed this language on several occasions, including most recently
in Construction of a Wall.46 In reaching the conclusion in that case that a response would not
have the effect of circumventing the principle of consent to judicial settlement, the Court
highlighted that “the opinion [was] requested on a question which is of particularly acute
concern to the United Nations, and one which is located in a much broader frame of reference
than a bilateral dispute.”47
3.17 Importantly, however, as Judge Owada stressed, it remains the case that rendering a
response to a request would be incompatible with the Court’s judicial function if doing so
would be “tantamount to adjudicating on the very subject-matter of the underlying concrete
bilateral dispute.”48
C. The Court should decline to respond to the General Assembly’s request because
the request calls for the adjudication of a bilateral territorial dispute between
Mauritius and the United Kingdom, and the United Kingdom has not provided
its consent to judicial settlement by this Court.
3.18 Applying the Court’s jurisprudence to the facts of this request, it is difficult to see
how responding to the questions that have been posed would be compatible with the judicial
character of the Court.
3.19 There is undoubtedly a bilateral territorial dispute between Mauritius and the United
Kingdom concerning sovereignty over the Chagos Archipelago49 and the questions
referred—however disguised—strike at the core of that dispute.
44 Id.
45 Id., para. 33.
46 Construction of a Wall, supra note 23, Advisory Opinion, para. 47; see also Applicability of Article VI,
Section 22, of the Convention on the Privileges and Immunities of the United Nations, supra note 29, Advisory
Opinion, paras. 37–38.
47 Construction of a Wall, supra note 23, Advisory Opinion, para. 50.
48 Id. (separate opinion of Judge Owada), para. 13.
49 See supra para. 2.13.
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3.20 The request does not merely touch on or relate indirectly to the merits of the bilateral
territorial dispute between Mauritius and the United Kingdom—it addresses itself to the
central elements of that very dispute. When viewed in light of the history of the bilateral
dispute discussed in Chapter II above, it becomes clear that the questions referred reflect an
attempt on the part of Mauritius to repackage its claim to sovereignty advanced in other fora.
As such, the questions put to the Court are “directly related to the main point of a dispute
actually pending” between Mauritius and the United Kingdom, and “answering the
question[s] would be substantially equivalent to deciding the dispute between the parties.”50
3.21 In addition, as the Court noted in Western Sahara, the “origin and scope of a dispute
… are important in appreciating, from the point of view of the exercise of the Court’s
discretion, the real significance” of a State’s lack of consent.51 It is notable in this regard that
Mauritius first asserted its sovereignty claim against the United Kingdom as a State-to-State
dispute over a decade after it gained its independence from the United Kingdom.52
3.22 In contrast to the requests in Western Sahara and Construction of a Wall, the dispute
between Mauritius and the United Kingdom did not arise during the proceedings of the
General Assembly and in relation to matters with which the General Assembly was dealing.53
The General Assembly did consider and adopt a resolution pertaining to the Chagos
Archipelago prior to Mauritius’s independence.54 However, when Mauritius’s application for
U.N. membership was presented to the U.N. Security Council and General Assembly for
consideration in 1968, there was neither any debate nor even mention of the territorial scope
of the newly independent State of Mauritius, nor any suggestion of Mauritius’s
decolonization as being “incomplete.”55
3.23 Mauritius has pursued its sovereignty claim bilaterally since 1980,56 twelve years
after its independence, and has since raised its claim to the Chagos Archipelago before
various U.N. bodies.57 As far as the United States is aware, however, no U.N. organ has
considered Mauritius or its claim to the Chagos Archipelago as falling within the United
50 Interpretation of Peace Treaties, supra note 26, Advisory Opinion, p. 72.
51 Western Sahara, supra note 26, Advisory Opinion, para. 42.
52 See supra para. 2.5.
53 Western Sahara, supra note 26, Advisory Opinion, para. 34; Construction of a Wall, supra note 23, Advisory
Opinion, para. 47.
54 See G.A. Res. 2066 (XX), Question of Mauritius, U.N. Doc. A/RES/2066(XX) (Dec. 16. 1965) [Dossier No.
146]. This resolution is discussed at paras. 4.54–4.57, infra.
55 U.N. Doc. S/PV.1414 (Apr. 18, 1968) [Dossier No. 261]; U.N. Doc. A/PV.1643 (Apr. 24, 1968) [Dossier No.
264].
56 Chagos Marine Arbitration, supra note 8, Award, para. 209.
57 See, e.g., General Debate, Letter Dated 5 December 1983 from the Permanent Representative of Mauritius to
the United Nations Addressed to the President of the General Assembly, U.N. Doc. A/38/711 (Dec. 8, 1983)
[Dossier No. 280]; Prevention of Discrimination, Letter Dated 15 August 2001 from the Permanent Mission of
Mauritius to the United Nations Office at Geneva Addressed to the Chairperson of the Sub-Commission on the
Promotion and Protection of Human Rights, U.N. Doc. E/CN.4/Sub.2/2001/39 (Aug. 17, 2001) [Dossier No.
352]; Universal Periodic Review, Letter Dated 16 April 2008 from the Ambassador and Permanent
Representative of Mauritius Addressed to the President of the Human Rights Council, U.N. Doc. A/HRC/8/G/3
(Apr. 30, 2008) [Dossier 336].
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Nations’ decolonization agenda since Mauritius gained its independence in 1968, until the
request for an advisory opinion was added to the General Assembly’s agenda on September
16, 2016.58
3.24 The lack of U.N. General Assembly involvement in this matter for the decades
following Mauritius’s independence, and the fact that a new General Assembly agenda item
needed to be created in 2016 for consideration of this referral request, belie any assertion that
a response to the General Assembly’s request is “necessary for [it] in [its] actions.”59
3.25 It is quite clear that Mauritius sought an advisory opinion in order to advance its
sovereignty claim against the United Kingdom, after failed attempts to seek adjudication of
that claim in other fora.60 The views expressed by many U.N. Member States during the
General Assembly debate on the request for an advisory opinion indicate that they understood
this as the purpose of the request.61
3.26 The centrality of the bilateral dispute to the request for an advisory opinion was also
evident in the General Assembly’s decision to include the request on its agenda with the
understanding that consideration of the request would be deferred until the following year so
that the parties to the dispute could continue their efforts to resolve the matter bilaterally.62
3.27 The United States is aware of the Court’s disinclination to give weight to the
motivation of individual states in seeking a General Assembly referral when assessing the
propriety of offering an advisory opinion. This practice follows from the fact that a request is
made by the General Assembly as a body and not by individual states. However, it may be
important, in assessing whether the questions posed are central to a bilateral dispute, to look
to the General Assembly’s purpose in making a request for an advisory opinion. In this case,
it is highly relevant that the request was widely understood—not only by individual States but
58 See U.N. Doc. A/71/PV.2 (Sept. 16, 2016) [Dossier No. 3], p. 6.
59 Construction of a Wall, supra note 23, Advisory Opinion, para. 60 (“As is clear from the Court’s
jurisprudence, advisory opinions have the purpose of furnishing to the requesting organs the elements of law
necessary for them in their action.”). While the Court has not found in particular cases that a requesting organ
lacked a sufficient interest to warrant a response, several judges believed that the record supported such a
finding in the Kosovo proceedings. See Kosovo, supra note 24, Advisory Opinion (dissenting opinion of Judge
Bennouna), paras. 19–20 (noting that “there was no real debate on the question of the status of Kosovo” when
the General Assembly adopted the resolution requesting an advisory opinion, and stating that “[i]t may be
questioned, therefore, whether the request for an advisory opinion… is compatible with the Court’s functions as
a judicial organ, as defined by the Charter of the United Nations and by the Statute of the Court”); id.
(declaration of Judge Tomka), paras. 2, 5 (expressing the view that the Court should have declined to respond to
the General Assembly’s request because, inter alia, the General Assembly lacked a sufficient interest in
receiving an advisory opinion, and noting in this regard that a new item had to be included on the General
Assembly’s agenda in order for that body to consider the request).
60 See supra paras. 2.10–2.17.
61 See supra paras. 2.18–2.22.
62 See A/71/PV.88, supra note 1, p. 5 (Congo: “This item was included by consensus by the General Assembly
on its agenda following an understanding between Mauritius and the United Kingdom, facilitated by the
president of the General Assembly, to defer, at the request of the United Kingdom, the consideration of the item
until June 2017 in order to allow time to the concerned delegation to reach a solution on the decolonization of
Mauritius.”).
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also by the requesting body, as demonstrated through its own actions—as an effort to seek the
Court’s assistance in resolving an outstanding bilateral territorial dispute.
3.28 This inquiry is particularly appropriate when, as discussed in Chapter IV below, the
questions referred are not adequately formulated and require clarification as to which legal
questions are really in issue.63 An understanding of the General Assembly’s purpose in
making the request would help to inform that determination, and hence to discern the type of
advice the General Assembly is seeking. Statements made by members of the General
Assembly in the context of the adoption of the referral resolution, along with the actions of
the requesting body itself, are an important source of that understanding.
3.29 Increased scrutiny is called for in the exercise of the Court’s advisory jurisdiction in
this instance because the dispute involves sovereignty over territory. Indeed, the Court
emphasized this consideration in Western Sahara, where, in discussing Spain’s lack of
consent, the Court stated that “[t]he issue between Morocco and Spain regarding Western
Sahara is not one as to the legal status of the territory today … ,” and noted that the questions
referred did not “relate to a territorial dispute … between the interested States.”64 There,
before responding to the General Assembly’s request, the Court first satisfied itself that “the
request for an opinion [did] not call for adjudication upon existing territorial rights or
sovereignty over territory.”65
3.30 In sharp contrast, the questions posed in the present case invite an examination of the
validity of the United Kingdom’s exercise of sovereignty over the Chagos Archipelago today,
such that it would be difficult to form a response that would not be tantamount to
adjudicating on the very subject matter of the territorial sovereignty dispute between
Mauritius and the United Kingdom.66
3.31 Allowing the advisory opinion process to be used to address territorial disputes—fifty
years after the boundaries were established, as here—could open the door to the adjudication
of any number of such disputes without the consent of interested parties. This attempt to
circumvent the Court’s lack of contentious jurisdiction over a bilateral matter creates a
potentially dangerous precedent, and could lead to the normalization of litigating bilateral
disputes through General Assembly advisory opinion requests, even when the States directly
involved have not consented to judicial settlement by the Court.
* * *
3.32 In sum, the United States believes that the dispute referred to the Court by the General
Assembly, as reflected in the two questions, is not an appropriate topic for an advisory
opinion. The General Assembly’s request invites the Court to adjudicate a bilateral territorial
dispute under the guise of a request for an advisory opinion. The Court’s advisory function is
not intended to provide a backdoor for individual States—whether acting alone or with the
63 See infra paras. 4.8–4.17.
64 Western Sahara, supra note 26, Advisory Opinion, paras. 42–43.
65 Id., para. 43.
66 See id.; Construction of a Wall, supra note 23, Advisory Opinion (separate opinion of Judge Owada), para. 13.
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support of others—to bring contentious disputes before the Court for adjudication. It is
difficult to see how a response to this request could avoid circumventing the fundamental
principle of consent to judicial settlement. In accordance with the Court’s jurisprudence and
to protect the integrity of its judicial function, the United States requests the Court not to
exercise jurisdiction over this matter.
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CHAPTER IV
CONSIDERATIONS RELATINGTO THEQUESTIONS REFERRED
4.1 For the reasons discussed in Chapter III, the Court should refrain from taking up the
referral of this bilateral dispute between Mauritius and the United Kingdom. This Chapter
identifies some of the issues the Court would need to examine were it to consider responding
to the questions referred.
4.2 Section A explains why the questions as framed would not be appropriate inquiries
for the Court. For example, Question (a) assumes certain answers to the questions. Therefore,
at minimum, the Court would first need to clarify which issues it should and should not
address in its response.
4.3 Section B then provides relevant context for interpreting the questions, first by briefly
reviewing the General Assembly’s policy toward decolonization in the 1960s, and then by
explaining that this policy is distinct from the issue of whether a specific legal obligation
existed that would have prohibited the establishment of the BIOT in 1965.
4.4 Section C reviews the principles that would be relevant to ascertaining the substantive
law applicable to Question (a). Importantly, the Court would need to look to the law as it
stood at the time of the relevant events, more than fifty years ago.
4.5 Section D explains why no legal obligation existed at that time that would have
prohibited the establishment of the BIOT. Even if Resolution 1514 (XV) were interpreted to
relate to the adjustment of colonial boundaries, neither it nor the other resolutions cited in
Question (a) were supported by extensive and virtually uniform practice of States undertaken
out of a sense of legal obligation (opinio juris).
4.6 Before turning to these sections, the United States wishes to offer a few preliminary
observations. Question (a) appears to invite the Court to reach conclusions on a wide range of
issues related to the bilateral dispute between Mauritius and the United Kingdom. These
include, inter alia, the role of consent of the elected representatives of Mauritius; Mauritius’s
reaffirmation, after achieving independence, of the 1965 agreement reflecting this consent;
and the applicability of the doctrine of uti possidetis in these circumstances.67 The United
States will not address these issues in this submission.68
4.7 If, however, as the United States demonstrates below, international law did not
prohibit the establishment of the BIOT, then the answer to Question (a) would be that the
process of decolonization of Mauritius was in fact lawfully completed in 1968. Such an
answer would obviate the need to address Question (b).
67 Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 554, para. 23 (explaining that the principle of uti
possidetis secures respect for territorial boundaries “at the moment when independence is achieved,” including
where such boundaries are based on “delimitations between different administrative divisions … all subject to
the same sovereign”). See also, e.g., Constitutive Act of the African Union, July 11, 2000, 2158 U.N.T.S. 33,
art. 4(b) (“The Union shall function in accordance to with the following principles: … respect of borders
existing on achievement of independence … .”).
68 Nevertheless, the United States believes the Court could not resolve these issues in a manner that would
support a finding that Mauritius’s decolonization was not lawfully completed in 1968.
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A. The questions in the referral would need to be clarified in order for the Court to
address them.
4.8 It is well established that the Court is free to determine that any questions referred to
it have not been adequately formulated or that a request for an advisory opinion does not
reflect “the legal questions really in issue.”69 In this regard, both questions referred to this
Court would require clarification. As explained in Chapter II,70 although framed as questions
about international law and decolonization, they are in reality a repackaging of Mauritius’s
bilateral territorial claim to the Chagos Archipelago.
4.9 To address Question (a), it would first be necessary to identify the legal questions that
are really in issue. The question reads:
(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?
4.10 First, it is beyond serious dispute that the decolonization of Mauritius was complete as
of its independence on March 12, 1968. Mauritius was admitted to the United Nations on
April 24, 1968.71 It thereafter ceased to appear on the list of territories monitored by the
United Nations Special Committee on Decolonization.72
4.11 Second, the question on its face requests an opinion regarding the lawfulness of “the
process of decolonization.” Decolonization is a political process that results in the
termination of a colonial relationship between a State and a territory. To address whether this
political process was “lawfully” completed with respect to Mauritius, the Court would need
to determine whether any international legal obligations existed at the time that would have
applied to the United Kingdom and would have regulated that process.
4.12 In doing so, the Court would need to distinguish the General Assembly’s efforts
during the 1960s to advance the political goals of decolonization from the existence of any
69 Kosovo, supra note 24, Advisory Opinion, para. 50 (quoting Interpretation of the Agreement of 25 March
1951 Between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 89, para. 35).
70 See supra paras. 2.15–2.22.
71 G.A. Res. 2371 (XXII), Admission of Mauritius to Membership in the United Nations, U.N. Doc.
A/RES/2371(XXII) (Apr. 24, 1968) [Dossier No. 263]. See also Report of the Special Committee on the
Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples, U.N. Doc. A/7623.Rev.1 (1969) [hereinafter 1969 Report of the Special Committee on
Decolonization], para. 146 (Special Committee on Decolonization noting that Mauritius had attained
independence the prior year and therefore no longer including Mauritius in its report).
72 See, e.g., 1969 Report of the Special Committee on Decolonization, supra note 71; The Situation with Regard
to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples,
UNITED NATIONS YEARBOOK 1969, pp. 627–28 [hereinafter U.N. YEARBOOK 1969] (Mauritius not listed among
the territories studied by the Special Committee on Decolonization in 1969).
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specific legal obligations on administering States. As is often the case, the political efforts
preceded the legal realities.73
4.13 Third, the question appears to suggest that the legally relevant date is 1968, when
Mauritius became independent, but the title of the referral resolution refers to the “separation
of the Chagos Archipelago from Mauritius in 1965.”74 Moreover, Question (a) asks whether
the process of decolonization of Mauritius was “lawfully completed … following the
separation of the Chagos Archipelago from Mauritius … ,”75 which occurred in 1965. The
United States therefore understands the question to ask whether the establishment of the
BIOT by the United Kingdom in 1965 was prohibited by international law.
4.14 Fourth, Question (a), as framed, improperly seeks to prejudge the legal answer.76 It
does so by suggesting that the General Assembly resolutions referenced therein reflected
international legal obligations binding on the United Kingdom that would have constrained
its establishment of the BIOT. Yet as the Court explained in Kosovo, where a matter is
capable of affecting the answer to the question posed, “[i]t would be incompatible with the
proper exercise of the judicial function for the Court to treat that matter as having been
determined by the General Assembly.”77
4.15 In light of these considerations, the “legal questions really in issue”78 in Question (a)
are directly related to the main point of the pending bilateral dispute. Specifically, Mauritius
has most recently argued that the 1965 separation of the Lesser Dependency of the Chagos
Archipelago from the colony of Mauritius was unlawful because it violated the right of selfdetermination
of the people of Mauritius. Mauritius has asserted that the United Kingdom
was legally obligated to respect this right by 1965 and was prohibited from establishing the
BIOT in the absence of consent through the freely expressed wishes of the people of
Mauritius. Mauritius has also recently argued that the people did not freely express their
wishes before the United Kingdom established the BIOT in 1965, and thus the Chagos
Archipelago is Mauritian territory.79
4.16 Were the Court to answer the questions referred despite the bilateral nature of the
dispute, it should be aware that Mauritius’s arguments do not accurately represent the state of
international law at the relevant time, as explained below. Even if the Court were to consider
the relevant time period to extend to 1968, the analysis and the answer would be the same, as
73 See infra paras. 4.18–4.22.
74 G.A. Res. 71/292, Request for an Advisory Opinion of the International Court of Justice on the Legal
Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, U.N. Doc. A/RES/71/292
(June 22, 2017) [Dossier No. 7] (emphasis added).
75 Id., Question (a) (emphasis added).
76 Question (b) similarly seeks to prejudge the answer to Question (a) by assuming that there are “consequences”
under international law arising from the United Kingdom’s “continued administration” of the BIOT. Id.,
Question (b). See also supra para. 2.16.
77 Kosovo, supra note 24, Advisory Opinion, para. 52.
78 Id., para. 50.
79 See supra paras. 2.11–2.12. See also, e.g., Chagos Marine Arbitration, supra note 8, Memorial of Mauritius,
paras. 6.10, 6.34–6.35; id., Hearing on Jurisdiction and the Merits, Apr. 24, 2014, pp. 242–49; id., May 5, 2014,
p. 970.
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set forth in Sections C and D, because a relevant legal rule did not crystallize between 1965
and 1968.
4.17 Thus, the appropriate answer to Question (a) is that the process of decolonization of
Mauritius was lawfully completed in 1968, following the establishment of the BIOT.
Answering Question (a) in the affirmative would obviate the need to address Question (b),
which concerns legal consequences.
B. The General Assembly’s decolonization policy is distinct from whether a specific
legal obligation existed at the relevant time.
4.18 During the 1950s and 1960s, the General Assembly actively promoted decolonization,
as the United Nations welcomed scores of new States as Members. Over the course of several
decades, the United Nations, administering States, and the peoples of non-self-governing and
trust territories devised different solutions tailored to the unique circumstances of each
territory.
4.19 At the center of this important international dialogue was how the Charter’s
references to the principle of self-determination80 should be understood in the context of
decolonization.
4.20 The United States was an active participant in this dialogue, and regards the
advancement of decolonization as one of the great success stories of the twentieth century.
Indeed, the United States has long championed self-determination as a guiding principle in
international relations. One hundred years ago, President Woodrow Wilson articulated
principles of self-determination in his Fourteen Points.81 Addressing the General Assembly in
1961, President John F. Kennedy pledged U.S. “sympathy and … support” for the
“continuing tide of self-determination,” and committed the United States to active
participation “in the peaceful, expeditious movement of nations from the status of colonies to
the partnership of equals.”82 As scores of newly decolonized States joined the United
Nations’ ranks, the United States repeatedly welcomed them as sovereign and equal
partners.83
80 U.N. Charter, arts. 1(2), 55.
81 Woodrow Wilson, President of the United States, Address to Joint Session of the Two Houses of Congress
(Jan. 8, 1918), in Rights and Duties of States, 5 DIGEST OF INT’L LAW (WHITEMAN), “Self-Determination,”
pp. 38, 42–43 (1965) (setting forth the Fourteen Points).
82 John F. Kennedy, President of the United States, Address in New York City Before the General Assembly of
the United Nations (Sept. 25, 1961), available at http://www.presidency.ucsb.edu/ws/?pid=8352. Accord, e.g.,
U.N. Doc. A/PV.1061 (Nov. 22, 1961) [Dossier No. 114] (U.S. representative discussing United States’
historical political support for self-determination as “the first nation in modern times to emerge from colonial
domination into independence”).
83 See, e.g., U.N. Doc. A/PV.937 (Dec. 6, 1960), para. 12 (United States: “When a former colony emerges as a
new nation, we instinctively remember our own origin and respond with heartfelt rejoicing.”); accord Jewel
Lafontant, U.S. Representative, Statement Before the U.N. General Assembly Third Committee (Nov. 23,
1972), in 67 DEP’T OF STATE BULLETIN 740 (1972), p. 740 (similar).
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4.21 In Western Sahara in 1975, the Court noted efforts undertaken since 1960 to establish
a set of “basic principles governing the decolonization policy of the General Assembly.”84
Today most States, including the United States, recognize as indisputable that the peoples of
non-self-governing territories enjoy an international legal right of self-determination, and that
this right includes independence as one of the political status options.85
4.22 The Court is not, however, being asked to opine on the General Assembly’s historical
policy or on the state of the law today. Rather, in order to answer Question (a), the Court
would need to examine whether a new right and a corresponding obligation had crystallized
under international law by 1965 that would have prohibited the establishment of the BIOT by
the United Kingdom. As discussed below, the historical record does not support any such
finding, despite widespread support for the policy of decolonization.
C. To answer the questions referred, the Court would need to determine whether a
new rule of international law had emerged at the relevant time.
4.23 If it were to consider Question (a), the Court would need to look to the law as it
existed during the relevant time period. As the Court has explained, “the meaning of a
juridical notion in a historical context[] must be sought by reference to the way in which that
notion was understood in that context.”86 In seeking to ascertain whether a particular juridical
notion was understood to connote a legally binding obligation, the Court would need to
consider the relevant State practice at the time.87 The Court should not look to how a juridical
notion may later have been understood in light of subsequent developments.88
4.24 Thus, the Court would need to ascertain the state of international law in 1965, when
the BIOT was established. The international law relevant to this inquiry would take the form
of (1) treaty law or (2) customary international law.89
84 Western Sahara, supra note 26, Advisory Opinion, para. 60. See also Kosovo, supra note 24, Advisory
Opinion, para. 79; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, para. 29; Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)
Notwithstanding Security Council Resolution 276 (1970) [hereinafter Namibia], Advisory Opinion, I.C.J.
Reports 1971, p. 16, para. 52.
85 See, e.g., Written Statement of Japan, Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Government of Kosovo, p. 4 (Apr. 17, 2009); Written
Statement of the Russian Federation, Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Government of Kosovo, paras. 80–81 (Apr. 16, 2009).
Outside the colonial context, however, States have maintained “radically different views” on self-determination,
as the Court acknowledged in Kosovo and States’ written statements in those proceedings demonstrate. Kosovo,
supra note 24, Advisory Opinion, para. 82.
86 South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 6, para. 16. Accord Western Sahara,
supra note 26, Advisory Opinion, para. 79.
87 See Western Sahara, supra note 26, Advisory Opinion, para. 80.
88 See South West Africa, supra note 86, Second Phase, Judgment, para. 16.
89 Statute of the International Court of Justice, art. 38(1)(a)–(b). The United States does not set forth in this
statement any views on the applicability of “the general principles of law recognized by civilized nations.” Id.,
art. 38(1)(c).
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4.25 As noted above,90 Mauritius has argued elsewhere that a relevant and specific right of
self-determination had emerged in international law that should have constrained the United
Kingdom’s actions in establishing the BIOT. However, neither treaty law nor customary
international law supplied such a rule as of 1965—or, for that matter, 1968, when Mauritius
became independent.
4.26 First, there were no treaties in force at that time that established a right of selfdetermination
that would have prohibited the establishment of the BIOT. Although the
Charter contained legal obligations that administering States owed toward non-self-governing
territories,91 it did not regulate or even require a process of decolonization for non-selfgoverning
territories.92 Moreover, while the Charter includes the “principle of equal rights
and self-determination of peoples” in its purposes and principles,93 it did not specify any
implications of this principle for decolonization.94 The Human Rights Covenants set forth a
right of self-determination for “[a]ll peoples,” and obliged States parties, including those
administering non-self-governing and trust territories, to promote and respect that right.95 But
whatever implications these provisions may later have had for decolonization, these treaties
were not adopted until 1966 and did not enter into force until 1976.
4.27 Second, there was no rule of customary international law establishing a right of selfdetermination
that would have prohibited the establishment of the BIOT. Such a new rule
could only have existed if, at the time, there was extensive and virtually uniform State
practice accompanied by opinio juris. In North Sea Continental Shelf, the Court set forth the
test for determining the existence of a customary international law rule:
[T]wo conditions must be fulfilled. Not only must the acts concerned amount to a
settled practice, but they must also be such, or be carried out in such a way, as to be
evidence of a belief that this practice is rendered obligatory by the existence of a rule
of law requiring it [i.e., opinio juris]. … The States concerned must therefore feel that
90 See supra para. 4.15.
91 U.N. Charter, arts. 73–74. These articles make up Chapter XI of the Charter, the “Declaration Regarding
Non-Self-Governing Territories.”
92 By contrast, Chapter XII of the Charter obligated States administering trust territories to promote the
territories’ “progressive development towards self-government or independence” in accordance with “the freely
expressed wishes of the peoples concerned.” Id., art. 76(b). Unlike Chapter XII, moreover, Chapter XI did not
establish an institutional architecture for the United Nations to oversee administering States’ administration of
non-self-governing territories, beyond the requirement for administering States to transmit information “of a
technical nature” on economic, social, and educational conditions. Id., art. 73(e). See also Ulrich Fastenrath,
Chapter XI Declaration Regarding Non-Self-Governing Territories: Article 73, in 2 THE CHARTER OF THE
UNITED NATIONS: A COMMENTARY 1829, pp. 1830–31 (Bruno Simma et al. eds., 3d ed. 2012) (contrasting
Chapters XI and XII).
93 U.N. Charter, supra note 80, art. 1(2). See also id., art. 55.
94 As explained below, see infra paras. 4.33–4.34, negotiating States could not agree on any specific application
of the Charter principle of self-determination.
95 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, arts. 1(1), 1(3)
(quotation at art. 1(1)); accord International Covenant on Economic, Social, and Cultural Rights, Dec. 16, 1966,
993 U.N.T.S. 3, arts. 1(1), 1(3) (identical language). Negotiating States’ substantial disagreements about this
provision are discussed at paragraphs 4.35–4.40, infra.
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they are conforming to what amounts to a legal obligation. The frequency[] or even
habitual character of the acts is not in itself enough.96
The Court in North Sea Continental Shelf provided clarification as to what constitutes
“settled” practice and opinio juris:
[W]ithin the period in question … State practice, including that of States whose
interests are specially affected, should have been both extensive and virtually uniform
in the sense of the provision invoked;—and should moreover have occurred in such a
way as to show a general recognition that a rule of law or legal obligation is
involved.97
4.28 There is no basis to treat the resolutions cited in Question (a) as legally binding on
Member States.98 For the Court to conclude that the resolutions cited in Question (a) reflected
rules of customary international law, it would need to establish that, at the time, there was
extensive and virtually uniform practice of States undertaken out of a sense of legal
obligation to act in accordance with principles articulated in such resolutions.99
4.29 As explained in the remainder of this Chapter, the resolutions cited in Question (a) do
not reveal a meeting of the minds among States—much less an opinio juris—on international
legal rules establishing a right of self-determination that would have prohibited the
establishment of the BIOT. Nor was there the requisite uniformity of State practice, either
during the years leading up to Resolution 1514 or through the end of the 1960s. As such, the
resolutions did not reflect then-existing rules of international law, and their adoption did not
bring such rules into existence.
D. Through the end of the 1960s, no rule had emerged under customary
international law that would have prohibited the establishment of the British
Indian Ocean Territory.
4.30 As noted in Section A above, Question (a) erroneously refers to “obligations reflected
in” Resolution 1514, the Declaration on the Granting of Independence to Colonial Countries
and Peoples, adopted in 1960. Resolution 1514 proclaimed, inter alia, that “[a]ll peoples have
the right to self-determination”100 and that “[i]mmediate steps shall be taken” in non-selfgoverning
territories “to transfer all powers to the peoples of those territories, without any
conditions or reservations, in accordance with their freely expressed will and desire … in
order to enable them to enjoy complete independence and freedom.”101 Resolution 1514
96 North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p. 3, para. 77 (emphasis added).
97 Id., para. 74 (emphasis added).
98 With limited exceptions not applicable here, General Assembly resolutions are nonbinding. See, e.g., U.N.
Charter, arts. 10, 11, 13, 14 (setting forth recommendatory powers of the General Assembly).
99 See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226,
para. 70; North Sea Continental Shelf, supra note 96, Judgment, para. 77.
100 G.A. Res. 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N.
Doc. A/RES/1514(XV) (Dec. 14, 1960) [Dossier No. 55], para. 2.
101 Id., para. 5.
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followed several other resolutions on self-determination adopted by the General Assembly
since 1952.
4.31 Certain passages of Resolution 1514 are today characterized as articulating some of
the basic elements of the right of self-determination, as the right later developed.
Nevertheless, the resolution itself did not reflect customary international law either at the
time it was adopted or through the end of the 1960s.
1. Prior to Resolution 1514, there was no opinio juris supporting an
international legal right of self-determination.
4.32 The international discussions during the fifteen years preceding the adoption of
Resolution 1514 highlight the divergences in how members of the international community
approached self-determination and decolonization.
4.33 During U.N. Charter negotiations in 1945, several States initially expressed concerns
about proposals to include a provision on self-determination, fearing such a provision could
encourage civil unrest and secessionist claims.102 The ultimate inclusion of the principle of
self-determination in Articles 1(2) and 55 of the Charter does not reveal a meeting of the
minds on any specific obligations entailed by this concept.103
4.34 The articles of the Charter that do set forth obligations on administering States—those
contained in Chapters XI, XII, and XIII—do not mention self-determination and, as noted
above, do not contain requirements related to the independence of non-self-governing
territories.104 These omissions were no accident: the consensus of States did not support
binding obligations that might limit administering States’ territorial sovereignty over nonself-
governing territories,105 including obligations that would prohibit administering States
from adjusting administrative boundaries.
4.35 The discussions on self-determination that took place during negotiations of the
Human Rights Covenants from 1950 to 1955 were “characterized by fundamental differences
of opinion.”106 In 1950, the Soviet Union proposed inclusion of a “right” of self-
102 ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL 39–40 (1995); see also, e.g.,
United Nations Conference on International Organization, Summary Report of the Sixth Meeting of Committee
I/1 [hereinafter 1945 Report of Committee I/1], 6 U.N. CONF. ON INT’L ORG. 296 (1945) (noting the position of
some delegations that the principle of self-determination would only “conform[] to the purposes of the Charter”
if it did not imply a right of secession).
103 See CASSESE, supra note 102, pp. 38–43 (citing, inter alia, debates of the First Committee of First
Commission of the San Francisco Conference, May 14–15 and June 11, 1945); see also, e.g., 1945 Report of
Committee I/1, supra note 102, p. 455.
104 See supra para. 4.26.
105 See, e.g., ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT 111
(1994) (reflecting on the development of the Charter and stating: “There were, certainly, recognized duties that
colonial powers had towards the peoples they governed. But at that time that did not clearly include any duty to
grant independence. The common assumption that the UN Charter underwrites self-determination in the current
sense of the term is in fact a retrospective rewriting of history.”).
106 MANFRED NOWAK, U.N. COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR COMMENTARY 10 (2d ed.
2005).
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determination.107 Several States supported the idea of including such a right.108 Other States
opposed it, with concerns expressed about secession and about the scope of the right.109
4.36 In Resolution 545 (VI) of 1952, on a 47–7–5 vote, the General Assembly directed the
inclusion of an article on self-determination in both Covenants and specified several
substantive elements.110 This was the first Assembly resolution to include the language “[a]ll
peoples shall have the right of self-determination.”111
4.37 Debate continued for three additional years. A significant number of States continued
to voice misgivings.112 Some asserted that any right of self-determination must apply not only
107 Draft First International Covenant on Human Rights and Measures of Implementation, Union of Soviet
Socialist Republics: Amendments to Joint Draft Resolution Submitted by Brazil, Turkey and United States
(A/C.3/L.75), U.N. Doc. A/C.3/L.96 (Nov. 6, 1950), p. 2.
108 See CASSESE, supra note 102, pp. 48–49. After the Soviet proposal, the General Assembly adopted, on a
contested vote, a resolution calling for the Commission on Human Rights to study self-determination in its work
on the Covenants. G.A. Res. 421 (V), Draft International Covenant on Human Rights and Measures of
Implementation: Future Work of the Commission on Human Rights, U.N. Doc. A/RES/421(V) (Dec. 4, 1950),
para. 6; U.N. Doc. A/PV.317 (Dec. 4, 1950), para. 170 (vote was 38–7–12).
109 See, e.g., Draft International Covenants on Human Rights, Annotation Prepared by the Secretary-General,
U.N. Doc. A/2929 (July 1, 1955), ch. IV, para. 3 (noting concerns, inter alia, that self-determination was a
political principle but not a legal right); U.N. Doc. A/C.3/SR.400 (Jan. 23, 1952), para. 19 (Australia advancing
this argument); U.N. Doc. A/C.3/SR.399 (Jan. 23, 1952), para. 27 (France calling self-determination a “political
right”); U.N. Doc. A/C.3/SR.312 (Nov. 13, 1950), para. 5 (Nicaragua arguing that self-determination “was a
purely national and political question and outside the scope of human rights”); U.N. Doc. A/C.3/SR.361 (Dec. 7,
1951), para. 13 (Belgium: “It was impossible to speak of the right of self-determination without also providing
for the right of secession.”). Several States argued that a collective right would be out of place in a treaty on
individual rights. See, e.g., U.N. Doc. A/C.3/SR.400, supra, para. 30 (Turkey: “The concept of selfdetermination
itself would be weakened if classified in a category of rights designed to define relations between
the sovereign States and the individuals falling under [their] jurisdiction.”); accord, e.g., U.N. Doc.
A/C.3/SR.401 (Jan. 24, 1952), para. 27 (United Kingdom); U.N. Doc. A/C.3/SR.400, supra, para. 15 (Canada);
U.N. Doc. A/C.3/SR.398 (Jan. 22, 1952), para. 40 (the Netherlands); U.N. Doc. A/C.3/SR.367 (Dec. 12, 1951),
para. 8 (New Zealand); U.N. Doc. A/C.3/SR.309 (Nov. 9, 1950), para. 62 (France).
110 G.A. Res. 545 (VI), Inclusion in the International Covenant or Covenants on Human Rights of an Article
Relating to the Right of Peoples to Self-Determination, U.N. Doc. A/RES/545(VI) (Feb. 5, 1952); U.N. Doc.
A/PV.375 (Feb. 5, 1952), para. 83 (plenary vote count—without roll call—on full resolution, as amended to
simplify a request to the Commission on Human Rights for recommendations); see also id., paras. 70–82
(contested votes on each component of the resolution). In the Third Committee, the vote had been 33–9–10.
U.N. Doc. A/C.3/SR.403 (Jan. 25, 1952), para. 58 (roll-call vote). Voting “no” were Australia, Belgium,
Canada, France, the Netherlands, New Zealand, Turkey, the United Kingdom, and the United States; abstaining
were Chile, China, Colombia, Cuba, Denmark, Ecuador, Israel, Norway, Peru, and Sweden. In remarks after the
Committee vote, China called the resolution “seriously defective both in form and substance.” Id., para. 65.
Colombia agreed it was “an unsound document not only in form but in substance.” Id., para. 82. Cuba called it
“confused and incoherent.” Id., para. 71.
111 G.A. Res. 545 (IV), supra note 110, para. 1. In the Third Committee, the provision of Resolution 545
directing the inclusion of this language in the Covenants was adopted on a 36–11–12 vote, with Australia,
Belgium, Brazil, Canada, Denmark, France, Luxembourg, the Netherlands, New Zealand, the United Kingdom,
and the United States voting “no”; and Argentina, China, Colombia, Costa Rica, Honduras, Iceland, Israel,
Norway, Sweden, Turkey, Uruguay, and Venezuela abstaining. U.N. Doc. A/C.3/SR.403, supra note 110,
para. 78.
112 See, e.g., U.N. Doc. A/C.3/SR.647 (Oct. 28, 1955), para. 1 (Greece remarking on States’ “profound
disagreement”); U.N. Doc. A/C.3/SR.650 (Nov. 2, 1955), para. 13 (Ecuador fearing the provision “as it stood
was bound to raise the greatest difficulties”); U.N. Doc. A/C.3/SR.649 (Nov. 1, 1955), para. 6 (Turkey’s
concerns made it “unable to agree to the inclusion of the article”); U.N. Doc. A/C.3/SR.648 (Oct. 31, 1955),
paras. 1–5 (Colombia criticizing several aspects of the draft). States argued, for example, that the prospective
obligations would be unclear if key terms such as “peoples” and “self-determination” were left undefined. See,
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to colonial peoples, but also to those within States oppressed by their own government.113
Some States called for the provision’s deletion entirely.114 Many delegations, from all regions
of the world, supported postponing a vote on the provision due to the persistent divergence of
views. Postponement failed on a narrow vote.115
4.38 After contested votes on each component,116 the Third Committee adopted Article 1
of the Covenants in 1955 on a vote of 33–12–13.117 There continued to be a lack of common
understanding about the article. Denmark, for example, lamented that Article 1 was “vague
and imperfect and did not meet the requirements of a legal instrument intended to be binding
and enforceable under international law.”118 Lebanon opined that Article 1 “needed
improvement.”119 Pakistan felt it “left much to be desired.”120 Cuba thought it required
“further study.”121
4.39 Article 1, and its attendant ambiguities, remained substantively unchanged until the
General Assembly adopted the Covenants in 1966.122 States’ discussions surrounding the
adoption did not reconcile these ambiguities.
e.g., U.N. Doc. A/C.3/SR.649, supra, para. 5 (Turkey); U.N. Doc. A/C.3/SR.646 (Oct. 27, 1955), paras. 5–7
(Pakistan); U.N. Doc. A/C.3/SR.643 (Oct. 25, 1955), para. 9 (Belgium); U.N. Doc. A/C.3/SR.641
(Oct. 21, 1955), para. 18 (Sweden). Some believed inclusion of a collective right was inappropriate in a treaty
on individual rights. See, e.g., U.N. Doc. A/C.3/SR.650, supra, para. 20 (Ecuador); U.N. Doc. A/C.3/SR.645
(Oct. 27, 1955), para. 1 (Canada); U.N. Doc. A/C.3/SR.644 (Oct. 26, 1955), para. 3 (Denmark). Others
distinguished the principle of self-determination from a legal right. See, e.g., U.N. Doc. A/C.3/SR.647
(Oct. 28, 1955), para. 18 (Australia); U.N. Doc. A/C.3/SR.642 (Oct. 24, 1955), para. 11 (United Kingdom).
113 See, e.g., Eleanor Roosevelt, U.S. Representative to the U.N. General Assembly, The Universal Validity of
Man’s Right to Self-Determination (Nov. 18, 1952), in 27 DEP’T OF STATE BULLETIN 917 (1952), p. 919
(address before Third Committee); see also U.N. Doc. A/C.3/SR.447 (Nov. 18, 1952), para. 30 (summarizing
these U.S. views). Accord, e.g., U.N. Doc. A/C.3/SR.644, supra note 112, para. 2 (Denmark); U.N. Doc.
A/C.3/SR.642, supra note 112, para. 2 (China).
114 Draft International Covenants on Human Rights, Report of the Third Committee, U.N. Doc. A/3077
(Dec. 8, 1955), para. 47 (Brazil, Australia, the Netherlands, United Kingdom).
115 U.N. Doc. A/C.3/SR.676 (Nov. 29, 1955), para. 14 (vote to reject postponement prevailed on 28–25–5 vote).
States favoring postponement included, inter alia, Brazil, Burma, China, Colombia, Cuba, Ethiopia, Honduras,
Lebanon, Liberia, Panama, Paraguay, and Turkey. States abstaining were Bolivia, Dominican Republic, Iran,
Israel, and Venezuela.
116 U.N. Doc. A/C.3/SR.676, supra note 115, paras. 17–26.
117 Id., para. 27. States voting “no” were Australia, Belgium, Canada, France, Luxembourg, the Netherlands,
New Zealand, Norway, Sweden, Turkey, the United Kingdom, and the United States. Abstaining States were
Brazil, Burma, China, Cuba, Denmark, the Dominican Republic, Ethiopia, Honduras, Iceland, Iran, Israel,
Panama, and Paraguay.
118 Id., para. 33; accord U.N. Doc. A/C.3/SR.677 (Nov. 30, 1955), paras. 13, 24 (similar concerns of the
Netherlands and France); U.N. Doc. A/C.3/SR.676, supra note 115, para. 42 (similar concerns of New Zealand);
U.N. Doc. A/C.3/SR.677, supra, para. 9 (Norway calling Article 1“defective, both in substance and in form”).
See also id., para. 8 (Norway “could not accept the idea of stating a political principle in covenants dealing with
individual human rights”); id., paras. 6, 17 (similar concerns of Luxembourg and Sweden).
119 U.N. Doc. A/C.3/SR.676, supra note 115, para. 34.
120 Id., para. 39.
121 Id., para. 35.
122 G.A. Res. 2200 (XXI), International Covenant on Economic, Social and Cultural Rights, International
Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and
Political Rights, U.N. Doc. A/RES/2200(XXI) (Dec. 16, 1966); U.N. Doc. A/C.3/SR.1451 (Dec. 7, 1966),
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4.40 As such, the Covenants could not provide evidence of a rule of customary
international law in the time period relevant to this case (1965, or at the latest, 1968).
Moreover, as noted above,123 they did not enter into force until 1976, and so had not attained
the status of treaty law during the relevant period.
4.41 Other General Assembly resolutions involving self-determination, such as
Resolution 637 (VII) (1952)124 and Resolution 1188 (XII) (1957),125 likewise did not
represent a substantive consensus regarding binding legal obligations.
2. Resolution 1514 did not reflect opinio juris about a right of selfdetermination
or territorial integrity for non-self-governing territories.
4.42 Resolution 1514 was introduced in November 1960.126 Its drafters intentionally
limited the text to statements of principles rather than specific prescriptions for applying
them.127 The General Assembly plenary discussions reflected Member States’ view of
Resolution 1514 as an aspirational document—distinguished in nature from the binding
obligations in the Charter itself—intended to promote the completion of decolonization.128
part A, paras. 8–9 (unanimous votes in the Third Committee); U.N. Doc. A/PV.1496 (Dec. 16, 1966), paras. 58–
59 (unanimous votes in the General Assembly).
123 See supra para. 4.26.
124 G.A. Res. 637 (VII), The Right of Peoples and Nations to Self-Determination, U.N. Doc. A/RES/637(VII)
(Dec. 16, 1952). Opinions on Resolution 637 were “sharply divided.” Human Rights: Recommendations
Concerning International Respect for the Self-Determination of Peoples, Report of the Third Committee, U.N.
Doc. A/2309 (Dec. 13, 1952), para. 8. Some States, for example, felt the resolution failed to adequately take
account of the “particular circumstances of each Territory.” Id., para. 9. Others complained about the lack of
clear definitions for the terms “peoples,” “nations,” and “right of self-determination.” Id., para. 10. Several
States voted “no” and several abstained. U.N. Doc. A/PV.403 (Dec. 16, 1952), para. 210 (adopting Resolution
637, part A, on a 40–14–6 vote, with, Ecuador, Israel, Nicaragua, Paraguay, Thailand, and Turkey abstaining);
see also, e.g., id., para. 149 (U.S. delegate Eleanor Roosevelt explaining that the United States had to vote “no”
due to unacceptable defects in the resolution, notwithstanding its “wholehearted[]” belief in the principle of selfdetermination).
125 G.A. Res. 1188 (XII), Recommendations Concerning International Respect for the Right of Peoples and
Nations to Self-Determination, U.N. Doc. A/RES/1188(XII) (Dec. 11, 1957), para. 1(a)–(b) (calling upon
administering States to “promote the realization of” the right of self-determination in non-self-governing
territories, and upon States generally to “give due respect” to the right “in their relations with one another”).
States in negotiations expressed “diverging opinions … on the legal nature and scope of self-determination.”
Recommendations Concerning International Respect for the Right of Peoples and Nations to Self-
Determination, Report of the Third Committee, U.N. Doc. A/3775 (Dec. 9, 1957), para. 13. The resolution was
adopted with 13 abstentions. U.N. Doc. A/PV.727 (Dec. 11, 1957), para. 87 (adopting Resolution 1188 on a 65–
0–13 vote).
126 U.N. Doc. A/PV.926 (Nov. 28, 1960), [Dossier No. 57], para. 9 (Cambodia introducing draft resolution).
127 See U.N. Doc. A/PV.946 (Dec. 14, 1960) [Dossier No. 73], para. 46 (Iran: “We have tried, in the text now
before you, to state as clearly as possible the principles that we wanted to defend … . [F]or reasons which will…
derive from the special circumstances of each State, we did not want to be specific how these principles should
be applied.”).
128 See, e.g., U.N. Doc. A/PV.944 (Dec. 13, 1960) [Dossier No. 71], para. 135 (India asserting that the resolution
contains “no attempt at recrimination” and “no attempt to place responsibility on anyone but the United Nations
as a whole”); U.N. Doc. A/PV.929 (Nov. 30, 1960) [Dossier No. 60], para. 92 (Colombia supporting the
resolution “not in the spirit of recrimination that some would attach to it, but rather with the noble aim of
making this a further step forward on the road to human freedom”); U.N. Doc. A/PV.935 (Dec. 5, 1960)
[Dossier No. 66], para. 125 (Malaya describing the aim of the resolution to “assist and accelerate” the wave of
decolonization already underway); U.N. Doc. A/PV.933 (Dec. 2, 1960) [Dossier No. 64], para. 81 (Australia:
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4.43 Member States, including the United States, expressed virtually universal political and
moral support for the resolution’s underlying ideals.129 But States repeatedly raised concerns
over ambiguous, suggestive, inaccurate, or otherwise problematic language, with some
concluding that the text was contrary to the Charter.130 Administering States also sharply
objected to language suggesting they were not complying with their obligations under the
Charter.131
4.44 Against this backdrop of general political support but sharp divergence about
substance, Resolution 1514 was adopted by a vote of 89–0–9.132 Many States that voted in
favor did so despite misgivings,133 and only after carefully delineating the scope of their
support. These States underscored the resolution’s broad focus on decolonization in general
and not on particular mechanisms of implementation.134
“This declaration is different from the Charter. The Charter, as I say, is a treaty obligation and precisely worked
out … . [T]his declaration, not being able to override the Charter or go beyond the powers of this Assembly,
represents rather a general statement of agreed aspirations.”); id., para. 118 (Israel: “[W]e shall vote for [the
resolution] and support its aspirations.” (emphasis added)); U.N. Doc. A/PV.932 (Dec. 2, 1960) [Dossier No.
63], para. 12 (New Zealand: “What is here contemplated is not a treaty instrument, every stipulation of which
would have to be minutely weighed by each country that contemplated adherence … . Rather it is the object of a
declaration to capture and reflect faithfully ideals and principles … .”); U.N. Doc. A/PV.929, supra note 128,
para. 25 (Libya describing the draft declaration as “expressing the wish of all the peoples of the earth to get rid
of colonialism once and for all” (emphasis added)); U.N. Doc. A/PV.928 (Nov. 30, 1960) [Dossier No. 59],
para. 17 (Ethiopia describing the resolution as “a consolidation of ideals and principles”).
129 See, e.g., U.N. Doc. A/PV.947 (Dec. 14, 1960) [Dossier No. 74], para. 142 (United States: “The support of
freedom is a concept springing from deeply-held beliefs of the American people. We accordingly welcomed the
underlying purpose of this resolution sponsored by the forty-three delegations, which we understand to be the
advancement of human freedom in the broadest sense.”).
130 See U.N. Doc. A/PV.947, supra note 129, paras. 47–48 (United Kingdom: “[W]e would like to have been
able to vote for the declaration… . But in a matter as important as this, we have felt bound to look more closely
at the wording of the resolution, and, to our regret, we came to the conclusion that its wording in certain respects
was not such that we could support it.”); id., para. 144 (United States: “[T]here are difficulties in the language
and thought of this resolution … which made it impossible for us to support it, because they seem to negate
certain clear provisions of the United Nations Charter.”); U.N. Doc. A/PV.945 (Dec. 13, 1960) [Dossier No. 72],
paras. 171–79 (Denmark providing several examples where the resolution’s wording could be clarified and
improved upon).
131 See, e.g., U.N. Doc. A/PV.947, supra note 129, paras. 49–52 (United Kingdom describing its strict adherence
to the Charter in administering its remaining territories and objecting to the resolution’s implications to the
contrary); U.N. Doc. A/PV.945, supra note 130, para. 142 (France emphasizing that it recognized and respected
its obligations under the Charter and objecting to the admonitions implicit in the draft); U.N. Doc. A/PV.932,
supra note 128, para. 13 (New Zealand: “To take its place among the great documents of the United Nations,
[the resolution] must also be scrupulously fair and must not attribute to administering Powers motives and
intentions which are the antithesis of their settled policies and the results they have already achieved.”).
132 U.N. Doc. A/PV.947, supra note 129, para. 34.
133 See id., para. 60 (the Netherlands: “Our agreement with the principles of the resolution does not mean that we
are entirely happy about all of its wording.”); U.N. Doc. A/PV.946, supra note 127, para. 12 (Sweden
expressing similar concerns); U.N. Doc. A/PV.945, supra note 130, para. 188 (Austria voicing support for the
resolution while noting frankly “certain misgivings with regard to some of the expressions used in the
declaration, some of the requests made and some of the procedures envisaged in it”).
134 See U.N. Doc. A/PV.935. supra note 128, para. 134 (China: “I hope that the present debate will be useful in
hastening the end of colonialism everywhere. I am, however, certain that it is not, and cannot be, a substitute for
the systematic study of particular concrete colonial questions.”); U.N. Doc. A/PV.933, supra note 128,
paras. 92–94 (Japan: “It may, therefore, be unreasonable to expect a mechanically uniform implementation of
the declaration in all territories of the world.”).
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4.45 Supporting States also reiterated that their interpretations of the resolution did not
contemplate new legal obligations beyond those already affirmed in the Charter.135 For
example, some States interpreted the phrase “[i]mmediate steps shall be taken … to transfer
all powers to the peoples of those territories” to mean that administering States should not
unduly delay initiating implementation of their Charter obligations to progressively develop
self-government over time.136
4.46 For Paragraph 2, which declared a “right to self-determination,” concerns were voiced
again that any such right had yet to be defined in a universally acceptable form.137
4.47 Paragraph 6 also proved problematic. The paragraph states that “[a]ny attempt aimed
at the partial or total disruption of the national unity or territorial integrity of a country is
incompatible with the purposes and principles of the Charter of the United Nations.” States
expressed a variety of views on the meaning of this language, and on the relevance of
territorial integrity to the process of decolonization. Some States saw paragraph 6 as a
reaffirmation of Article 2, paragraph 4 of the Charter, and others emphasized that newly
independent states were entitled to territorial integrity.138
135 See, e.g., U.N. Doc. A/PV.946, supra note 127, para. 16 (Sweden: “We understand [the resolution] to be
meant as a statement of general objectives and not as an act of legislation which would place immediate
juridical obligations on Member States and which is designed to be applied literally.”); U.N. Doc. A/PV.935,
supra note 128, para. 134 (China: “If the purpose of the present debate is to achieve a general agreement on the
principles relating to colonialism, such debate does not seem particularly necessary … . The principles relating
to colonialism are all enshrined in the Charter of the United Nations, to the fulfilment of which we are all legally
and morally committed.”)
136 See, e.g., U.N. Doc. A/PV.945, supra note 130, para. 178 (Denmark: “It appears from statements made by
responsible speakers that it is recognized that the meaning of the words ‘immediate steps shall be taken’ is that
we shall proceed toward the goal and shall not allow ourselves to be stopped by unnecessary hindrance.”); U.N.
Doc. A/PV.936 (Dec. 5, 1960) [Dossier No. 67], para. 21 (Iceland: “[T]he Icelandic delegation wishes to stress
the importance of the words ‘immediate steps’, which mean that independence cannot come like lightning from
the skies but only through evolution and progressive development. These words, in our opinion, mean that such
evolution should commence immediately and the first steps should be taken without delay.”).
137 See U.N. Doc. A/PV.947, supra note 129, para. 53 (United Kingdom: “[M]embers of the Assembly will be
familiar with the difficulties which have arisen in connexion with the discussions of the draft International
Covenants on Human Rights and in defining the right to self-determination in a universally acceptable form.
These difficulties have not yet been finally resolved by the Assembly, and we feel it might have been better not
to make the attempt now in a rather different context.”).
138 See, e.g., U.N. Doc. A/PV.930 (Dec. 1, 1960) [Dossier No. 61], para. 73 (Pakistan: “Lest our fellow
Members be inclined to think that, in putting forth these imperatives without clarification, we are becoming
oblivious to certain related demands of international security and a stable world order, we would point out the
provisions of paragraph 6. This paragraph embodies an important safeguard against any attempt to disrupt the
national unity and territorial integrity of a country.”); U.N. Doc. A/PV.926, supra note 126, para. 71 (Iran:
“Member States, and especially the former Administering Powers, must, moreover, refrain from any attempt
aimed at the partial or total disruption of the national unity and the territorial integrity of a country. Thus, it
would be desirable if, in the declaration on the termination of colonialism, all Member States would solemnly
reaffirm the undertaking they assumed under the United Nations Charter never in any way whatever to violate
the national sovereignty and territorial integrity of another State.”); U.N. Doc. A/PV.929, supra note 128,
para. 126 (Tunisia: “[T]he colonial Powers must give a firm undertaking to refrain from any action that may
cause disturbances in the liberated countries and avoid any attempt to create difficulties for the new
governments. They must strictly respect the independence, sovereignty and territorial integrity of the new
States.”).
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4.48 Late in the negotiations, Guatemala proposed inserting language immediately after
paragraph 6 aimed at excluding a right of self-determination for the people of contested
territories, in order to support its claim to sovereignty over British Honduras (Belize).139
Guatemala withdrew the amendment after Indonesia, which also had asserted sovereignty
over the non-self-governing territory of West Irian, assured Guatemala that existing language
in paragraph 6 reflected Guatemala’s concerns.140 The Netherlands rejected Indonesia’s
interpretation as inconsistent with paragraph 2’s reference to the right of “all peoples” to selfdetermination.
141
4.49 Paragraph 6 was adopted without a common understanding as to its meaning.
4.50 The Court has recognized that Resolution 1514 marked an “important stage” in the
development of international law regarding self-determination.142 Nevertheless, while the
resolution may have provided a key aspirational foundation for the General Assembly’s
decolonization policy, it did not reflect States’ acceptance of new international legal
obligations relevant to the process by which decolonization would be achieved, or on the
adjustment of colonial boundaries during the period of colonial administration.
3. This lack of opinio juris continued through the end of the 1960s.
4.51 During the 1960s, the General Assembly adopted resolutions on decolonization with
increasing regularity. States also engaged in six years of negotiations on what would
eventually be adopted in 1970 as the Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation Among States in Accordance with the
Charter of the United Nations (“Friendly Relations Declaration”), which contains a
significant section on self-determination that differs in material aspects from Resolution
1514. Although some of these resolutions reference Resolution 1514, their content and the
conditions of their adoption do not indicate that Member States had accepted the principles of
Resolution 1514 as articulations of international law.
139 The proposed amendment would have inserted after paragraph 6 the following language: “The principle of
self-determination of people may in no case impair the right of territorial integrity of any state or its right to the
recovery of territory.” Declaration on the Granting of Independence to Colonial Countries and Peoples,
Guatemala: Amendments to the Draft Resolution Contained in Document A/L.323 and Add.1-6, U.N. Doc.
A/L.325 (Dec. 7, 1960) (emphasis added); see also U.N. Doc. A/PV.933, supra note 128, paras. 133–34
(Guatemala expressing its wish that the United Kingdom return British Honduras (Belize) to Guatemala out of
respect for Guatemala’s territorial integrity).
140 See U.N. Doc. A/PV.947, supra note 129, paras. 9–11 (Indonesia explaining that, as one of the sponsors of
the resolution, it had brought paragraph 6 into the draft with the situation of West Irian in mind); id., para. 64
(Guatemala withdrawing amendment based on the statement made by Indonesia and “on the understanding that
the rights it was seeking to safeguard would be duly protected by paragraph 6”). See also U.N. Doc. A/PV.946,
supra note 127, para. 31 (Afghanistan explaining that Guatemala’s amendment was covered by paragraph 6); id.
at para. 54 (Iran expressing similar views). On West Irian, see infra note 180.
141 See U.N. Doc. A/PV.947, supra note 129, para. 62 (the Netherlands confirming its interpretation of
paragraph 6 only as a reaffirmation of article 2, paragraph 4 of the Charter). The Soviet Union also felt
Guatemala’s amendment would improperly limit the applicability of paragraph 2 of Resolution 1514. See U.N.
Doc. A/PV.945, supra note 130, para. 128.
142 Western Sahara, supra note 26, Advisory Opinion, para. 56 (quoting Namibia, supra note 84, Advisory
Opinion, para. 52).
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4.52 In 1960, one day after the adoption of Resolution 1514, the General Assembly
adopted Resolution 1541 (XV) on a vote of 69–2–21.143 Resolution 1514 had focused solely
on independence and called for administering States to take immediate steps to transfer all
powers “without any conditions or reservations.” By contrast, Resolution 1541 recognized
that peoples of non-self-governing territories could enter into free association or integrate
with an independent State through democratic processes, which could take time to develop.144
States did not elaborate on, much less attempt to reconcile, the inconsistencies between these
two resolutions.145
4.53 The next year, the General Assembly adopted Resolution 1654 (XVI) on a vote of 97–
0–4.146 Resolution 1654 created a Special Committee “to examine the application of
[Resolution 1514], to make suggestions and recommendations on the progress and extent of
the implementation of [Resolution 1514], and to report to the General Assembly… .”147 In
debating the resolution, Member States recognized that while decolonization was an
important goal, the specific process of decolonization for any given territory was not, and
should not be, uniform.148
4.54 Question (a) refers to three General Assembly resolutions in addition to
Resolution 1514: 2066 (XX), 2232 (XXI), and 2357 (XXII), all of which were adopted in the
143 U.N Doc. A/PV.948 (Dec. 15, 1960) [Dossier No. 79], para. 88.
144 G.A. Res. 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, U.N. Doc.
A/RES/1541(XV) (Dec. 15 1960) [Dossier No. 78], Annex, principles VI–IX.
145 The Fourth Committee, in which Resolution 1541 was drafted, was aware of the ongoing negotiations over
Resolution 1514 and proceeded with negotiations on several territory-specific resolutions with the
understanding that they would not be submitted to the General Assembly until a decision had been taken on
Resolution 1514. Information from Non-Self-Governing Territories, Dissemination of Information on the United
Nations in Non-Self-Governing Territories, Participation of the Non-Self-Governing Territories in the Work of
the United Nations and of the Specialized Agencies, Offers by Member States of Study and Training Facilities
for Inhabitants of Non-Self-Governing Territories, Report of the Fourth Committee, U.N. Doc. A/4650 (Dec. 14,
1960), para. 12. On December 15, 1960, the General Assembly took up these Fourth Committee resolutions,
including Resolution 1541, for consideration. See U.N Doc. A/PV.948, supra note 143, paras. 46–112.
146 U.N. Doc. A/PV.1066 (Nov. 27, 1961) [Dossier No. 117], para. 149.
147 G.A. Res. 1654 (XVI), The Situation with Regard to the Implementation of the Declaration on the Granting
of Independence to Colonial Countries and Peoples, U.N. Doc. A/RES/1654(XVI) (Nov. 27, 1961) [Dossier No.
101], para. 4. According to Pakistan, one of the resolution’s sponsors, Resolution 1654 was intended to establish
machinery in the United Nations to “hasten the process of decolonization.” U.N. Doc. A/PV.1061, supra note
82, para. 14.
148 See, e.g., U.N. Doc. A/PV.1061, supra note 82, para. 11 (Pakistan: “Each dependent territory has to be
considered in light of its own peculiar conditions and circumstances.”); id., para. 93 (Iran expressing similar
views); id., paras. 131–33 (United States noting that “[t]he nature of United Nations action must vary with the
types of situations presented which, as we have seen, are radically different in different places,” and citing some
examples) (quotation at para. 131); id., paras. 175–77 (New Zealand also pointing out differences among
territories and emphasizing the need to develop the capacity of territories before the people decided on
independence or another status); U.N. Doc. A/PV.1066, supra note 146, para. 9 (Mexico stating the view that
“independence should [not] be granted as a matter of blind, mechanical routine on a fixed date and under
conditions which are the same in all cases” and that the remaining dependent territories “present an
extraordinary range of possible conditions and the same procedure cannot be followed in all cases”); id.,
para. 137 (El Salvador: “[I]t is an undeniable fact that not all peoples of these territories are yet in a position to
attain full self-government, and still less full independence.”).
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mid-1960s. These resolutions likewise do not reflect a legally binding obligation that would
have prohibited the establishment of the BIOT.
4.55 Resolution 2066 states that “any step taken by the administering Power to detach
certain islands from the Territory of Mauritius for the purpose of establishing a military base
would be in contravention of [Resolution 1514], and in particular of paragraph 6
thereof… .”149 It further “[i]nvites the administering Power to take no action which would
dismember the Territory of Mauritius and violate its territorial integrity… .”150
4.56 This language does not represent the articulation of a binding legal obligation. First,
Resolution 2066 states that the detachment of the Chagos Archipelago would be in
contravention of another nonbinding General Assembly resolution, not with any independent
international law obligation.151
4.57 Second, this interpretation of paragraph 6 of Resolution 1514 did not represent a
consensus view in either the Fourth Committee152 or the General Assembly. In the Assembly,
votes on Resolutions 2066, 2232, and 2357, included, respectively, eighteen, twenty-four, and
twenty-seven abstentions.153 As previously discussed,154 this interpretation was not a
common understanding when Resolution 1514 was adopted.
4.58 States disagreed particularly sharply over language on territorial integrity in the
context of the adoption of Resolutions 2232 and 2357. The Assembly held a separate vote on
paragraph four of Resolution 2232, which “reiterate[d]” that disruptions of national unity and
territorial integrity of colonial territories, and the establishment of military bases and
installations in territories, are incompatible with both Resolution 1514 and Charter principles.
Eighteen States voted “no” and twenty-seven abstained.155 When the identical operative
149 U.N. Doc. A/RES/2066(XX), supra note 54, pmblr. para. 5.
150 Id., para. 4.
151 As noted above, General Assembly resolutions are nonbinding, except in very limited circumstances not
applicable here. See supra note 98.
152 See, e.g., U.N. Doc. A/C.4/SR.1570 (Nov. 26, 1965) [Dossier No. 154], para. 6 (Denmark stating that it was
“not convinced that steps envisaged by the administering Power, in full agreement with the Government of
Mauritius, with respect to certain small islands in the Indian Ocean was in conflict with General Assembly
resolution 1514”); id., para. 18 (United Kingdom stating similar views); id., para. 30 (vote of 77–0–17 in Fourth
Committee).
153 U.N. Doc. A/PV.1398 (Dec. 16, 1965) [Dossier No. 148], para. 110 (Resolution 2066 adopted on 89–0–18
vote, without roll call); U.N. Doc. A/PV.1500 (Dec. 20, 1966) [Dossier No. 172], para. 110 (Resolution 2232
adopted on 93–0–24 vote, by roll call); U.N. Doc. A/PV.1641 (Dec. 19, 1967) [Dossier No. 199], para. 150
(Resolution 2357 adopted on a 86–0–27 vote, by roll call).
154 As discussed in paras. 4.47–4.49 supra, States expressed a variety of views on the meaning of paragraph 6.
155 U.N. Doc. A/PV.1500, supra note 153, para. 109. States voting “no” on the territorial integrity paragraph
were Australia, Belgium, Canada, Denmark, France, Greece, Iceland, Japan, Luxembourg, the Netherlands,
New Zealand, Norway, Philippines, Portugal, South Africa, Sweden, the United Kingdom, and the United
States. Those abstaining were Argentina, Austria, Bolivia, Brazil, China, Costa Rica, Dominican Republic,
Ecuador, El Salvador, Finland, Guatemala, Haiti, Iran, Ireland, Israel, Italy, Ivory Coast, Laos, Madagascar,
Maldive Islands, Nicaragua, Paraguay, Peru, Thailand, Turkey, Uruguay, and Venezuela. The text of the draft
resolution appears in Implementation of the Declaration on the Granting of Independence to Colonial Countries
and Peoples, Territories Not Considered Separately, Report of the Fourth Committee, U.N. Doc. A/6628 (Dec.
19, 1966) [Dossier No. 173], pp. 9–10.
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paragraph of Resolution 2357 was put to a separate vote, it received sixteen “no” votes and
sixteen abstentions.156
4.59 Significantly, after Mauritius became independent and applied for U.N. membership,
no objections to the BIOT arrangements were pressed in the General Assembly.157
Thereafter, Mauritius no longer appeared on the list of non-self-governing territories.158
4.60 For the next half-century, as far as the United States is aware, neither the Special
Committee on Decolonization nor the General Assembly considered another resolution
concerning the BIOT until the General Assembly debated the request now before the
Court.159
4.61 Although the period after Mauritius gained independence is not directly relevant to
consideration of Question (a) referred to the Court, it is notable that there continued to be a
lack of consensus among States regarding a right of self-determination through at least the
end of the 1960s. In 1964, States began negotiating the text adopted in 1970 as the Friendly
Relations Declaration.160 In contrast to Resolution 1514, negotiations over the Friendly
Relations Declaration occurred methodically over six years.161 Importantly, also unlike
Resolution 1514, it was adopted by consensus.162
4.62 During the negotiations, several States pushed for language that differed from
analogous formulations in Resolution 1514.163 Resolution 1514’s unconditional call for
156 U.N. Doc. A/PV.1641, supra note 153, para. 149. States voting “no” on the territorial integrity paragraph
were Australia, Austria, Belgium, Canada, Denmark, Greece, Iceland, Japan, Luxembourg, the Netherlands,
New Zealand, Philippines, Portugal, Sweden, the United Kingdom, and the United States. Those abstaining
were Bolivia, Brazil, China, Costa Rica, Dahomey, Finland, France, Ireland, Israel, Italy, Malawi, Malaysia,
Maldive Islands, Norway, Panama, and Turkey. The text of the draft resolution appears in Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples, Territories Not Considered
Separately, Report of the Fourth Committee, U.N. Doc. A/7013 (Dec. 18, 1967) [Dossier No. 200], pp. 22–23.
157 See generally U.N. Doc. A/PV.1643, supra note 55.
158 See, e.g., 1969 Report of the Special Committee on Decolonization, supra note 71; U.N. YEARBOOK 1969,
supra note 72, pp. 627–28.
159 See supra para. 3.23.
160 See G.A. Res. 1815 (XVII), Consideration of Principles of International Law Concerning Friendly Relations
and Co-operation Among States in Accordance with the Charter of the United Nations, U.N. Doc.
A/RES/1815(XVII) (Dec. 18, 1962), para. 2 (resolving to undertake a study of principles of international law
concerning friendly relations and cooperation among States); G.A. Res. 1966 (XVIII), Consideration of
Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance
with the Charter of the United Nations, U.N. Doc. A/RES/1966(XVIII) (Dec. 16, 1963), para. 1 (establishing a
Special Committee to conduct this study); Piet-Hein Houben, Principles of International Law Concerning
Friendly Relations and Co-operation Among States, 61 AM. J. INT’L L. 703, 704 (1967) (this Special Committee
held its first session in 1964).
161 “[I]n view of the general importance and the technical aspect” of the study, the General Assembly
recommended that States members of the Special Committee “appoint jurists as their representatives.” See G.A.
Res. 1966, supra note 160, para. 2.
162 U.N. Doc. A/PV.1883 (Oct. 24, 1970), para. 8.
163 The relevant reports of the Special Committee on Friendly Relations detail States’ divergent proposals for
self-determination language and sharp disagreements about key aspects. Some of these disagreements remained
unresolved until shortly before the Declaration’s adoption in October 1970. See 1966 Report of the Special
Committee on Friendly Relations, U.N. Doc. A/6230 (June 27, 1966), paras. 456–521; 1967 Report of the
Special Committee on Friendly Relations, U.N. Doc. A/6799 (Sept. 26, 1967), paras. 171–235; 1968 Report of
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independence was replaced by language making it clear that the status choice—
independence, free association, integration, or “any other political status”—was up to the
freely expressed wishes of the people in a given territory.164 And although the Friendly
Relations Declaration repeats Resolution 1514’s call to bring a “speedy” end to colonialism,
it eschews Resolution 1514’s call for immediate transfer of all powers to non-self-governing
territories.
4.63 The Friendly Relations Declaration also introduced new elements not found in
Resolution 1514. For example, it specifies that non-self-governing territories have a separate
status from the territory of the administering State. It also introduced a “safeguard clause”
aimed at precluding actions that would impair the territorial integrity of sovereign States
“conducting themselves in compliance with the principle of equal rights and selfdetermination
of peoples … and thus possessed of a government representing the whole
people belonging to the territory without distinction as to race, creed or colour.”165
4.64 Indeed, Resolution 1514 is not even mentioned in the Friendly Relations Declaration.
Material differences between the Friendly Relations Declaration and Resolution 1514 make it
even more difficult to conclude that Resolution 1514 reflected an opinio juris about existence
of an international legal right of self-determination that would have applied to the
establishment of the BIOT in 1965 because States were still manifestly disagreeing about key
elements of self-determination until at least until the end of the 1960s.
4. State practice was not extensive and virtually uniform until at least the end
of the 1960s.
4.65 The above sections reveal the absence of evidence demonstrating an opinio juris that
the principles expressed in or attributed by some to Resolution 1514 amounted to legal
obligations. This lack of opinio juris, by itself, compels the conclusion that customary
international law did not prohibit the establishment of the BIOT. Importantly, however, the
other prerequisite for a rule of customary international law was also missing: there was not
extensive and virtually uniform State practice during the relevant time period.166
4.66 To demonstrate State practice supporting the proposition that a particular
interpretation of Resolution 1514 reflected international law, it would need to be shown that
States were acting virtually uniformly in conformity with that principle at the relevant time.
Although the factual circumstances of each situation of decolonization were different, State
the Special Committee on Friendly Relations, U.N. Doc. A/7326 (1968), paras. 135–203; 1969 Report of the
Special Committee on Friendly Relations, U.N. Doc. A/7619 (1969), paras. 137–92; 1970 Report of the Special
Committee on Friendly Relations, U.N. Doc. A/8018 (1970), paras. 61–78.
164 In this sense, it hearkens back to Resolution 1541, adding the “catch-all” phrase at the end. See supra
para. 4.52; see also, e.g., Richard H. Gimer, U.S. Representative, Statement to the General Assembly (Sept. 24,
1970), in 63 DEP’T OF STATE BULLETIN 623 (1970), p. 626 (lauding the ultimate listing of these several
alternatives as “the correctly stated rule”); see also U.N. Doc. A/C.6/SR.1190 (Sept. 24, 1970), para. 25
(summarizing these U.S. views).
165 G.A. Res. 2625 (XXV), Declaration on Principles of International Law Concerning Friendly Relations and
Co-operation Among States in Accordance with the Charter of the United Nations, U.N. Doc. A/RES/25/2625
(Oct. 24, 1970), Annex, “The Principle of Equal Rights and Self-Determination of Peoples,” para. 7.
166 See North Sea Continental Shelf, supra note 95, Judgment, para. 74.
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practice during the 1950s and 1960s diverged in material ways from some of
Resolution 1514’s key provisions, often with U.N. approval or acquiescence. These
differences demonstrate how it would be ahistorical to interpret that resolution as accurately
reflecting the emergence of clear, legally binding rules.
4.67 A few examples illustrate this absence of extensive and virtually uniform State
practice. Several territories changed their boundaries before or upon independence, and such
changes were not considered inconsistent with paragraph 6 of Resolution 1514, concerning
territorial integrity.167 For example, the trust territories of British Cameroons and Ruanda-
Urundi were each split into two and each part took a different path to independence. The
relevant decisions regarding status of these territories occurred both before and after the
adoption of Resolution 1514 and were endorsed by the United Nations.168
4.68 A few years before Jamaican independence, the United Kingdom made administrative
changes to the colony of Jamaica by separating from it the Cayman Islands and the Turks and
Caicos Islands.169 Despite the separation, Jamaica retained governing authority over both
territories, to varying degrees, until 1962.170 When Jamaica opted for independence in 1962,
the two territories respectively reaffirmed their desire to remain U.K. colonies.171 The United
167 G.A. Res. 1514 (XV), supra note 100, para. 6 (declaring that “[a]ny attempt aimed at the partial or total
disruption of national unity and territorial integrity of a country is incompatible with the purposes and principles
of the Charter of the United Nations”).
168 In 1959, the United Nations recommended that separate plebiscites be held in the Northern and Southern
regions of the British Cameroons in order to determine the wishes of the people. G.A. Res. 1350 (XIII), The
Future of the Trust Territory of the Cameroons under United Kingdom Administration, U.N. Doc.
A/RES/1350(XIII) (Mar. 13, 1959), para. 1. Voters in each region were only given a choice between joining
Nigeria or joining the Republic of Cameroon. G.A. Res. 1473 (XIV), The Future of the Trust Territory of the
Cameroons under United Kingdom Administration: Organization of a Further Plebiscite in the Northern Part of
the Territory, U.N. Doc. A/RES/1473(XIV) (Dec. 12, 1959), para. 3; G.A. Res. 1352 (XIV), The Future of the
Trust Territory of the Cameroons under United Kingdom Administration: Organization of the Plebiscite in the
Southern Part of the Territory, U.N. Doc. A/RES/1352(XIV) (Oct. 16, 1959), para. 2. Voters in the North chose
to join Nigeria, and voters in the South chose to join Cameroon. G.A. Res. 1608 (XV), The Future of the Trust
Territory of the Cameroons under United Kingdom Administration, U.N. Doc. A/RES/1608(XV) (Apr. 21,
1961). At no point did the United Nations offer the people of the entire territory an opportunity to make a
decision as a unified group, or present them with the option of independence as a unified territory. The General
Assembly concluded that these votes reflected the freely expressed wishes of the people of the territory, and the
Trusteeship Agreement for the British Cameroons was terminated. Id., para. 3.
With respect to Ruanda-Urundi, the General Assembly initially recommended that the territory become
independent as a single state. G.A. Res. 1743 (XVI), Question of the Future of Ruanda-Urundi, U.N. Doc.
A/RES/1743(XVI) (Feb. 23, 1962), pmblr. para. 7. However, after reviewing a report on the political realities in
the territory, the General Assembly endorsed the division of the territory and emergence of two separate
sovereign and independent states, Rwanda and Burundi. G.A. Res. 1746 (XVI), The Future of Ruanda-Urundi,
U.N. Doc. A/RES/1746(XVI) (June 27, 1962), pmblr. para. 2, para. 2. In doing so, it recalled Resolution 1514.
Id., pmblr. para. 8.
169 IAN HENDRY & SUSAN DICKSON, BRITISH OVERSEAS TERRITORIES LAW 312, 344 (2011) (citing Cayman
Islands and Turks and Caicos Islands Act 1958, 6 & 7 Eliz. 2 c. 13 (United Kingdom)).
170 Id., pp. 312, 344 (Cayman Islands were “governed from Jamaica” and Turks and Caicos Islands had an
administrator “under the authority of the Governor of Jamaica” from 1959 to 1962).
171 See, e.g., Turks, Caicos No Longer Share Governor, SUNDAY GLEANER (Jamaica), May 27, 1962, p. 1,
available at https://newspaperarchive.com/kingston-gleaner-may-27-1962-p-1/ (reporting decision by Turks and
Caicos Legislative Assembly “re-affirming their desire to remain under British administration as a colony after
Jamaica’s [i]ndependence”); Information from Non-Self-Governing Territories: Summaries of Information
Transmitted Under Article 73 e of the Charter of the United Nations: Report of the Secretary-General:
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Nations admitted Jamaica to membership and thereafter treated the Cayman Islands and the
Turks and Caicos Islands as separate non-self-governing territories.172 Neither the United
Nations nor Member States apparently complained that the separation of these territories
from Jamaica and their maintenance as U.K. territories was inconsistent with Resolution
1514.
4.69 These examples demonstrate that even if Resolution 1514 were interpreted to address
the adjustment of colonial boundaries, it did not do so in a manner that reflected State
practice, either before or after Resolution 1514’s adoption.
4.70 State practice differed materially from the aspirational language of Resolution 1514 in
other ways. For example, despite Resolution 1514’s call for independence as the only
outcome for all trust and non-self-governing territories,173 several territories—both before
and after Resolution 1514—chose another status. The international community welcomed or
acquiesced in the results. Among these territories are Alaska (1959), Hawaii (1959), and
Puerto Rico (1952),174 as well as British Togoland (1956)175 and the Northern Mariana
Islands (1976).176
Caribbean and Western Atlantic Territories: Cayman Islands, U.N. Doc. A/5080/Add.12 (Apr. 27, 1962), p. 4
(United Kingdom, in report under Article 73(e) of the U.N. Charter, noting the unanimous Caymans Legislative
Assembly resolution opting to remain under British administration); Cayman Islands to Seek Internal Self-
Government, DAILY GLEANER (Jamaica), Jan. 22, 1962, p. 2, available at
https://newspaperarchive.com/kingston-gleaner-jan-22-1962-p-2/ (quoting this resolution, which read in part: “It
is the wish of the Cayman Islands … [t]o continue their present association with … the United Kingdom.”).
172 See, e.g., G.A. Res. 1750 (XVII), Admission of Jamaica to Membership in the United Nations, U.N. Doc.
A/RES/1750(XVII) (Sept. 18, 1962); G.A. Res. 2069 (XX), Question of American Samoa, Antigua, Bahamas,
Barbados, Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and
Ellice Islands, Grenada, Guam, Montserrat, New Hebrides, Niue, Pitcairn, St. Helena, St. Kitts-Nevis-Anguilla,
St. Lucia, St. Vincent, Seychelles, Solomon Islands, Tokelau Islands, Turks and Caicos Islands and the United
States Virgin Islands, U.N. Doc. A/RES/2069(XX) (Dec. 16, 1965) (including the Turks and Caicos Islands and
the Cayman Islands among several other non-self-governing territories in an omnibus resolution on
decolonization).
173 Resolution 1514 provides that “[i]mmediate 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 … .” G.A. Res. 1514 (XV), supra note 100, para. 5;
see also id., para. 4 (referring to dependent peoples’ “right to complete independence”).
174 All these territories chose to integrate into the United States. The General Assembly thereafter removed each
from the list of non-self-governing territories. G.A. Res. 1469 (XIV), Cessation of the Transmission of
Information Under Article 73 e of the Charter in Respect of Alaska and Hawaii, U.N. Doc. A/RES/1469(XIV)
(Dec. 12, 1959), para. 4; G.A. Res. 748 (VIII), Cessation of the Transmission of Information Under Article 73 e
of the Charter in Respect of Puerto Rico, U.N. Doc. A/RES/748(VIII) (Nov. 27, 1953), para. 6. For a discussion
of U.S. notifications to the United Nations about Alaska’s, Hawaii’s, and Puerto Rico’s respective selfdetermination
decisions, see 1 DIGEST OF INT’L LAW (WHITEMAN) (1963), pp. 390–406.
175 In 1956, the General Assembly called for a plebiscite in the U.K. trust territory of British Togoland that
would give the people the option to choose between integration with the neighboring U.K. colony of Gold Coast
or continuation as a separate trust territory; independence was not presented as an option. G.A. Res. 944 (X),
The Togoland Unification Problem and the Future of the Trust Territory of Togoland Under British
Administration, U.N. Doc. A/RES/944(X) (Dec. 15, 1955), para. 2. After a majority opted for integration, the
United Nations approved of British Togoland’s integration with Gold Coast. See G.A. Res. 1044 (XI), The
Future of Togoland Under British Administration, U.N. Doc. A/3905 (Dec. 13, 1956), pmblr. para. 4, para. 1.
176 See, e.g., S.C. Res. 683 (1990), U.N. Doc. S/RES/683(1990) (Dec. 22, 1990), pmblr. para. 7 (expressing
satisfaction that the people of the Northern Mariana Islands had “freely exercised their right of selfdetermination”
in approving commonwealth status); U.S. Public Law 94-241 (Mar. 24, 1976) (U.S. Congress
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4.71 Moreover, despite Resolution 1514’s declaration that “all peoples have the right of
self-determination” by which they may “freely determine their political status,”177 in several
instances the political status of a non-self-governing territory changed without a prior attempt
to ascertain the freely expressed wishes of the people of the territory. Examples include the
former Portuguese territories of Goa, Daman, Diu (1961),178 and São João Batista de Ajuda
(1961);179 the former Dutch territory of West Irian (1962);180 and the former Spanish territory
approving the Covenant to Establish a Commonwealth of the Northern Mariana Islands); id., pmblr. para. 4
(noting that the Covenant had been “approved by the unanimous vote of the Mariana Islands District Legislature
on February 20, 1975 and by 78.8 per centum of the people of the Northern Mariana Islands voting in a
plebiscite held on June 17, 1975”).
177 G.A. Res. 1514 (XV), supra note 100, para. 2 (emphasis added).
178 On December 18, 1961, Indian military forces took over Goa, Daman, and Diu. Pritam T. Merani, The Goa
Dispute, 14 J. PUB. L. 142 (1965), p. 166. During a Security Council meeting to discuss Portugal’s complaint
that India had violated the Charter in using force against Portugal’s sovereign territory, some States called for an
assessment of the freely expressed wishes of the peoples of the territories. U.N. Doc. S/PV.988 (Dec. 18, 1961),
para. 14 (Ecuador stating that the peoples of non-self-governing territories “should be free to exercise their right
of self-determination in deciding whether to join another State or to set themselves up as an independent State”);
id., para. 30 (Chile emphasizing that both Portugal and India should take into consideration the wishes of the
inhabitants of the territories). India responded that self-determination was not necessary in some cases, but did
not address how this interpretation would be consistent with Resolution 1514’s reference to the right of “all
peoples” to self-determination. Id., paras. 84–85. The majority of the Security Council supported a resolution
calling on India to withdraw and for both parties to negotiate a peaceful resolution, but it was vetoed by the
Soviet Union. Id., para. 129. The following year, Goa, Daman, and Diu were removed from the list of non-selfgoverning
territories. Compare G.A. Res. 1542 (XV), Transmission of Information Under Article 73 e of the
Charter, U.N. Doc. A/4684 (Dec. 15, 1960), para. 1 (identifying “Goa and dependencies, called the State of
India” as non-self-governing territories under Portuguese administration) with Report of the Special Committee
on Territories Under Portuguese Administration, U.N. Doc. A/5160 (Aug. 25, 1962), para. 6 (noting that “Goa
and dependencies were no longer under the administration of Portugal, having been nationally united with …
India” and deciding that they no longer came within the Committee’s purview).
179 São João Batista de Ajuda was integrated into Benin. See Report of the Special Committee on Territories
Under Portuguese Administration, supra note 178, para. 6 (noting that São João Batista de Ajuda was nationally
united with Dahomey (Benin)).
180 After Indonesia’s independence, the Netherlands administered West Irian as a separate non-self-governing
territory despite Indonesia’s claim to the territory. See, e.g., U.N. Doc. A/C/1/SR.726 (Nov. 23, 1954),
paras. 79–93; The Question of West Irian (West New Guinea), UNITED NATIONS YEARBOOK 1957, pp. 77–78.
The Netherlands argued that the territory’s political status should be decided by the West Irianese people. Id.,
para. 78. In 1961, the Netherlands proposed a study into the possibility of a plebiscite but the idea did not attract
sufficient support. See The Situation with Regard to the Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples, Netherlands New Guinea, Netherlands: Draft Resolution, U.N.
Doc. A/L.354 (Oct. 9, 1961), para. 2. Ultimately, the parties agreed to transfer administration without first
ascertaining the wishes of the West Irianese people. Agreement (with Annex) Concerning West New Guinea
(West Irian), Aug. 15, 1962, 437 U.N.T.S. 292. The General Assembly concluded that “Indonesia and the
Netherlands ha[d] resolved their dispute” through “peaceful settlement.” G.A. Res. 1752 (XVII), Agreement
between the Republic of Indonesia and the Kingdom of the Netherlands concerning West New Guinea (West
Irian), U.N. Doc. A/RES/1752(XVII) (Sept. 21, 1962), pmblr. paras. 1–2. U.N. Doc. A/PV.1127 (Sept. 21,
1962), para. 197 (adopted by a vote of 89–0–14).
West Irianese wishes would only be ascertained in 1969 through a process that only gave the people two
choices: remain part of Indonesia or sever ties with it. See Agreement (with Annex) Concerning West New
Guinea (West Irian), supra, Art. XVIII(c). The Assembly resolution noting the vote’s preference for remaining
with Indonesia garnered 30 abstentions, with several States expressing concerns about the vote’s undemocratic
elements. See G.A. Res. 2504 (XXIV), Agreement between the Republic of Indonesia and the Kingdom of the
Netherlands concerning West New Guinea (West Irian), U.N. Doc. A/RES/2504(XXIV) (Nov. 19, 1969). U.N.
Doc. A/PV.1813 (Nov. 19, 1969), para. 182 (adopted by a vote of 84–0–30); see also, e.g., id., para. 13 (Gabon
questioning, inter alia, “why the principle of ‘one man, one vote’ … was not adopted”); id., para. 31 (Togo
expressing doubts about the vote’s compatibility with Resolution 1514 and “whether what has happened in West
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of Ifni (1969).181 Also noteworthy is the 1952 placement of Eritrea within a federation with
Ethiopia upon recommendation by the General Assembly,182 and Ethiopia’s unilateral
dissolution of Eritrea’s autonomy in 1962, without discernible U.N. complaint.183
4.72 These examples illustrate some of the ways in which the status of non-self-governing
and trust territories changed during the 1950s and 1960s in a manner inconsistent with the
principles expressed in or attributed by some to Resolution 1514. Decolonization was a
complicated political process that was implemented in a wide variety of ways. These
examples also illustrate why deeming the establishment of the BIOT unlawful could call into
question the lawfulness and stability of the political borders established for numerous other
former colonies that gained their independence through decolonization processes.
* * *
4.73 This Chapter has focused on why it would be ahistorical to attribute a legally binding
character to the principle of self-determination in the 1960s and apply it to the decolonization
process resulting in Mauritius’s independence in 1968. In particular:
• there was no treaty in force in 1965 or 1968 that established a new legally binding
rule of international law that would have prohibited the establishment of BIOT;
• with respect to customary international law, through the period relevant to this case,
there was no opinio juris supporting a new rule of international law that would have
prohibited the establishment of the BIOT;
• the resolutions of the General Assembly dealing with decolonization did not reflect a
consensus either on international law or on specific decolonization rules, including
with respect to territorial boundaries; and
Irian was really an act of free choice by the population”); id., paras. 63–64, 147 (Zambia and the Democratic
Republic of the Congo expressing concerns with the vote).
181 Ifni was integrated into Morocco. See Information from Non-Self-Governing Territories Transmitted under
Article 73 e of the Charter, Report of the Secretary-General, U.N. Doc. A/7753 (Nov. 7, 1969), p. 2 of Annex
(noting that Ifni had been retroceded by Spain to Morocco by treaty).
182 G.A. Res. 390 (V), Eritrea: Report of the United Nations Commission for Eritrea; Report of the Interim
Committee of the General Assembly on the Report of the United Nations Commission for Eritrea, U.N. Doc.
A/RES/390(V) (Dec. 2, 1950), para. A.1 (Ethiopia “shall constitute an autonomous unit federated with Ethiopia
under the Ethiopian Crown”); G.A. Res. 617 (VII), Eritrea: Report of the United Nations Commissioner in
Eritrea, U.N. Doc. A/RES/617(VII) (Dec. 17. 1952), para. 1 (welcoming the establishment of the federation).
The General Assembly adopted Resolution 390 despite conflicting evidence about whether the people of Eritrea
desired union with Ethiopia or independence, as demonstrated by disagreements among the five members of a
U.N. Commission set up to ascertain Eritreans’ wishes. See Report of the U.N. Commission for Eritrea, U.N.
Doc. A/1285 (Jun. 8, 1950), para. 132 (Burmese, Norwegian, and South African Commissioners concluding
jointly that “it is not unlikely that a majority of the Eritreans favour political association with Ethiopia” but
conceding that “[i]n the circumstances obtaining in Eritrea, … accurate figures cannot be compiled”) with id.,
para. 173 (Norwegian Commissioner concluding separately that “the overwhelming majority of the people of
Eritrea” favored union) and id., para. 205 (Guatemalan and Pakistani Commissioners concluding that a majority
wanted independence).
183 See Bereket Habte Selassie, Self-Determination in Principle and Practice: The Ethiopian–Eritrean
Experience, 29 COLUM. HUM. RTS. L. REV. 91, 115–17 (1997).
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• actual state practice regarding decolonization, including changes to territorial
boundaries prior to independence, was not extensive and virtually uniform.
As a result, the General Assembly resolutions referenced in Question (a) must be understood
as steps toward the development of a broader international consensus, not reflections of thenexisting
international law.
4.74 It is worth repeating, however, that to answer the questions referred, the Court would
also need to address a variety of legal issues particular to the pending dispute between
Mauritius and the United Kingdom concerning sovereignty over the Chagos Archipelago.
These include, but are not limited to, such issues as the role of consent of the elected
representatives of Mauritius and the reaffirmation of this agreement by Mauritius after
achieving independence. These purely bilateral issues, along with the other issues in dispute
between Mauritius and the United Kingdom, serve to reinforce why the case would not be
appropriate for the exercise of advisory opinion jurisdiction.
4.75 Should the Court nevertheless decide to address the questions in the referral, the
United States believes that the absence of any newly established obligation under
international law in 1965 that would have prohibited the establishment of the BIOT provides
an independent basis to answer Question (a) in the affirmative—namely, that the
establishment of the BIOT was lawful. This result, in turn, would obviate the need to answer
Question (b).
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CHAPTER V
CONCLUSION
5.1 As described above, the request before the Court presents fundamental challenges to
the integrity of the Court’s advisory proceedings and to the preservation of the critical
distinction between its advisory and contentious jurisdiction. The United States believes that
a decision to render an opinion on the merits would undermine the Court’s advisory function
and circumvent the right of States to determine for themselves the means by which to
peacefully settle their disputes.
5.2 The United States acknowledges that in prior advisory proceedings, the Court has not
found it necessary to exercise the discretion provided by Article 65, paragraph 1 of its Statute
to decline a referral. In its jurisprudence regarding advisory opinions, however, the Court has
set forth circumstances that may merit such a course of action. Those very circumstances are
clearly present in this case. In particular:
• the case is, at its core, about an ongoing bilateral dispute concerning sovereignty over
territory;
• one of the parties to that dispute, the United Kingdom, has not consented to judicial
settlement of the dispute by this Court;
• the legal questions really in issue are directly related to the main point of that dispute;
and
• answering the questions would be substantially equivalent to deciding the dispute
between the parties.
5.3 As a result, it is difficult to see how the Court could address the questions referred by
the U.N. General Assembly without disregarding the fundamental principle that a State is not
obliged to allow its disputes to be submitted to judicial settlement without its consent. Indeed,
it is difficult to imagine a clearer instance in which the Court’s exercise of its discretion to
decline a referral is warranted.
5.4 For the foregoing reasons, the United States respectfully requests that the Court
decline to provide the opinion requested.