Written Statement of Brazil

INTERNATIONAL COURT OF JUSTICE
REQUEST FOR ADVISORY OPINION
Legal consequences of the separation of the Chagos
Archipelago from Mauritius in 1965
Written Statement of the Federative Republic of Brazil
1 st March 2018
INTRODUCTION
1. Pursuant to the International Court of Justice's Orders of 14 July 2017 and 17 January
2018, the Federative Republic ofBrazil has the ho nor to present this Written Statement
so as to furnish information regarding the advisory proceedings entitled "Legal
Consequences ofthe Separation ofthe Chagos Archipelago from Mauritius in 1965".
2. On 22 June 2017, at the 88th meeting of its seventy-first session, the United Nations
General Assembly adopted Resolution 711292, requesting that the Court render an
advisory opinion on the following questions:
(a) "Was the process of decolonization of Mauritius lawfully completed
when Mauritius was granted independence in 1968, following the
separation of the Chagos Archipelago from Mauritius and having regard
to international law, including obligations reflected in General Assembly
resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December
1965, 2232 (XXI) of20 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 tho se of Chagossian
origin?"
3. Brazil voted in favor of the aforementioned resolution and delivered the following
statement after its adoption:
"Brazil voted in favour of resolution 71/292. We continue to encourage all
of the parties involved to remain genuinely engaged in dialogue and
committed to the peaceful settlement ofthis issue.
Decolonization constitutes one of the unfinished tasks of the United
Nations and is therefore an issue ofinterest to the international community
as a whole. The General Assembly has a crucial role to play in advancing
the process of decolonization. One of the tools at its disposai, as set out in
the Charter of the United Nations, is to request that the International Court
of Justice provide clarification on legal issues through its advisory
jurisdiction.
A vote in favour of this resolution does not mean a commitment to any
particular interpretation of the underlying issue. It means a request for the
principal legal body of the United Nations to provide, through a nonbinding
opinion, legal elements that may guide all parties to definitively
settle this question" (A/71/PV.88)".
4. Brazil decided to submit this Written Statement based on its long-term
promoting international law and its full commitment to multilaterali
part1c1pating in this Advisory Opinion, Brazil reaffirms its confidence in the
International Court of Justice as the mainjudicial organ of the United Nations. It also
seeks to contribute to the clarification of international law on matters related to
decolonization and self-determination, which are at the core of the questions submitted
by the General Assembly. Brazil does not perceive this procedure as a bilateral dispute,
nor does it approach the present statement as being adversarial to any State.
5. This statement is structured in five parts, as follows:
(i) considerations on jurisdiction and judicial propriety; (ii) the right of peoples to selfdetermination;
(iii) territorial integrity; (iv) the forci ble removal of the Chagossians; and
(v) conclusion.
I. CONSIDERATIONS ON JURISDICTION AND JUDICIAL PROPRIETY
6. The Court may "give an advisory opinion on any legal question at the request of
whatever body authorized by or in accordance with the Charter of the United Nations
to make such a request".1 The General Assembly clearly has the authority to request
the Court to give advisory opinions "on any legal questions", as established in Article
96 of the Charter of the United Nations.2
7. In arder to determine whether the question submitted is of legal character, the Court
has explained that "a question which expressly asks whether or not a particular action
is compatible with international law certainly appears to be a legal question".3 The
present request has such a character, since it asks the Court to assess whether a
decolonization process was "lawfully completed" and to clarify the "consequences
under international law" that stem from the current situation. The issues raised by the
General Assembly are "framed in tenns oflaw", "raise problems of international law",
and are "by their very nature susceptible of a reply based on law", 4 thus fulfilling the
requirements of a legal question.
8. Based on the above, Brazil considers that all criteria for the Court to have advisory
jurisdiction according to Article 65(1) of the Statute have been met.
9. In advisory proceedings, once the Court has established its jurisdiction, it still has
discretion to exercise it or not. lt has clarified, however, that "it should not, in principle,
1 Article 65(1) of the Statu te of the International Court of Justice.
2 According to Article 96 of the UN Charter, "The General Assembly or the Security Council may request
the International Court of Justice to give an advisory opinion on any legal question" . See also Application
for Review of Judgment No. 273 of the United Nations Administrative Tribunal, Advismy Opinion, I.C.J.
Reports 1982, pp. 333-334, para. 21.
3 Accordance with International Law of the Unilateral Declaration of lndependence in Respect of
Advis01y Opinion, I. C. J. Reports 2010, pp. 414-415 , para. 25.
4 Western Sahara, Advisory Opinion, J.C.J. Reports 1975, p. 18, para. 15.
refuse to give an advisory opinion",5 unless there are "compelling reasons" for such a
refusal.6 This is because the "reply ofthe Court, itselfan organ ofthe United Nations,
represents its participation in the activities of the Organization". 7 Here, General
Assembly Resolution 71/292 was adopted by the required - and overwhelming -
majority of States present and voting. In replying to this request, the Court will thus
participate in a key activity of the United Nations, whose role in decolonization
processes has long been recognized. 8
1 O. Furthermore, Brazil considers that there are no compelling reasons for the Court
not to reply both questions formulated through Resolution 71 /292. It is important to
stress that the Court has never declined to exercise its advisory jurisdiction based on
judicial propriety. As it has previously clarified,9 only the Permanent Court of
International Justice took on one occasion the view that it would not exercise its
advisory jurisdiction. However, such a decision was only considered because the
question putto it concerned aState that was not a party to the Statute of the Permanent
Court neither a Member of the League of Nations, and that also refused to take part in
the proceedings. 10 This precedent finds no possible application here, since all States
that might be concerned are parties to the Charter and to the Statute and, therefore,
they had "in general given [their] consent to the exercise by the Com1 of its advisory
jurisdiction" .11
11. During the adoption of Resolution 71 /292, some Members States argued in the ir
statements that the proposed questions were of a bilateral nature, and th us an advisory
opinion would circumvent the principle of consent to the Court's contentious
jurisdiction. Arguably, as this Court has cautioned, "the lack of consent of an interested
State may render the giving of an advisory opinion incompatible with the Court' s
judicial character".12 This is particularly relevant on matters strictly of a bilateral
character, with no bearing on the powers and responsibilities of the United Nations. In
Brazil's view, that is not the case here. The issues raised by the General Assembly
reflect a broad concern of the international community regarding the need for legal
clarity with regard to the scope and application of a set of norms of international law
5 Legality of the Threat or Use ofNuclear Weapons, Adviso1y Opinion, J.C.J. Reports 1996, pp. 234-235,
para. 14. See also Reservations ta the Convention on the Prevention and Punishment of the Crime of
Genocide, Advis01y Opinion, J. C. J. Reports 1951, p. 19.
6 Judgments of the Administrative Tribunal of the lLO upon Complaints Made against UNESCO, Advis01y
Opinion, l.C.J. Reports 1956, p. 86 ("Notwithstanding the permissive character of Article 65 ofthe Statute
in the matter of advisory opinions, only compelling reasons could cause the Court to adopt in this matter a
negative attitude").
7 Interpretation of Peace Treaties with Bulgaria, Hungmy and Romania (First Phase), Advisory Opinion,
J.C.J Reports 1950, p. 72.
8 General Assembly resolution 1514 (XV), 14 December 1960; General Assembly Resolution establishing
the Special Committee on Decolonization General Assembly resolution 1654 (XVI), 27 November 1961.
9 Legality ofthe Threat or Use ofNuclear Weapons, Advis01y Opinion, l.C.J. Reports 1996, pp. 234-235 ,
para 14.
10 Status of Eastern Cm·elia, Permanent Court of International Justice, Series B, No 5.
11 Western Sahara, Advis01y Opinion, l. C.J. Reports 1975, pp. 23-24, para 30. In this Advisory Opinion,
this Court made a similar distinction to the case on the Status of Eastern Carelia (id): "the Jack of
competence of the League to deal with a dispute involving non-member States which refused its
intervention was a decisive reason for the Court's declining to give an answer".
12 Western Sahara, Advis01y Opinion, 1. C.J. Reports 1975, pp. 24-25 , paras. 32-33.
- such as territorial integrity and the right of peoples to self-determination - in the
context of decolonization.
12. The Comi asserted in the past that the right of peoples to self-determination in
colonial contexts creates erga omnes obligations, 13 which are owed to all, and to the
international community as a whole. The right to self-determination in the context of
decolonization has been recognized in United Nations resolutions, 14 in multilateral
declarations, 15 and even in this Court's own decisions.16 It is therefore clear that the
present request transcends the realm of any bilateral relationship, as it deals with
matters that are "directly of concern to the United Nations".17
13. As acknowledged by the Court in the "Wall" proceedings, exercising advisory
jurisdiction under these circumstances does not "have the effect of circumventing the
principle of consent to judicial settlement, and the Court accordingly cannat, in the
exercise of its discretion, decline to give an opinion on that ground". 18 As the principal
judicial organ of the United Nations, the Court has been diligently complying with
requests for advisory opinion, providing clarity and support to the United Nations in
legal matters. Here, it has again the opportunity to give a valuable contribution in a
matter that has been of concern to the General Assembly, 19 and that has stayed alive
ever since.20
14. Based on the above, Brazil understands that the Court has and should exercise its
advisory jurisdiction.
II. THE RIGHT OF PEOPLES TO SELF-DETERMINATION
15. When approaching the questions asked by the General Assembly and assessing
which norms of international law are applicable, the right of colonial peoples to selfdetermination
emerges as a central element. Brazil considers it a peremptory norm of
international law.
13 East Timor (Portugal v. Australia), Judgment, J. C. J. Reports 1995, p. 102, para. 29.
14 See, e.g., UNGA Resolutions 1514 (XV) and 2625 (XXV).
15 See, e.g., Vienna Declaration and Programme of Action (2003), 1, 2.
16 Legal Consequences f or States of the Continued Presence of South Ajhca in Namibia (So uth West Africa)
notwithstanding Security Council Resolution 276 (19 70), Advisory Opinion, l. C. J. Reports 197 1;
Sovereignty over Pulau Ligitan und Pu/au Sipadan (Jndonesia/Malaysia), Application ,for. Permission ta
lntervene, Judgment, J. C. J. Reports 2001 , p. 655 , para. 9.
17 Legal Consequences of the Construction of a Wall in the Palestinian Occupied Territories, Advis01y
Opinion, J.C.J. Rep orts 2004, pp. 158-159, para. 49.
18 Legal Consequences of the Construction of a Wall in the Palestinian Occupied Territ aries, AdvisOJy
Opinion, J.C.J. Reports 2004, p. 159, para. 50.
19 General Assembly Resolutions 2066 (XX), 2232 (XXI) and 2357 (XXII) .
20 See, e.g., Ministerial Declaration of the Group of 77 and China to UN CT AD XIV (TD/507), 22 July
2016; Declaration adopted by the Thirty-Seventh Annual Meetings ofMinisters for Foreign Affairs ofthe
Member States ofthe Group of77, New York, 26 September 2013; Resolution on Chagos Archipelago De. ,.--"". Z· â.· ·
EX.CL/901(XXVII) (AU/Res.! (XXV)), 14-15 June 2015 ; African Union Assembly ofHeads of State and.f"...--.. ~tV'~ ·
Government, 50th Anniversary Solemn Declaration, Addis Ababa, 26 May 2013 , p. 3. <::,:9 . ', · . , ~ ~~~/'::3r ·. ,,. "·~~"' .... ~·~ ~;t • ~ ·,lw•~jt~~Y.2:Jt::~·. ;-Y
..... ~ i " .,..,_.
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16. The self-determination principle has been explicitly included as one of the
"purposes" of the United Nations, according to Article 1 (2) of the Charter. It should
be stressed that the ( also authoritative) French version of Article 1 (2) of the Charter
refers to self-determination as a "right" ("droit à disposer d'eux-mêmes").
17. The General Assembly recognized the normative nature of self-determination on
several occasions, most importantly through Resolution 1514(XV) - the Declaration
on the Granting of Independence to Colonial Countries and Peoples (henceforth the
"1960 Declaration") - , that was adopted without dissenting votes. It made clear that
"all peoples have the right to self-determination" (paragraph 2). This Court has also
recognized the normative nature of self-determination in a number of cases,21
considering it "one of the essential principles of contemporary internationallaw".22
18. There is no question, therefore, that the right to self-determination in colonial
contexts forn1s part of customary international law today. Moreover, for Brazil, the
right of colonial peoples to self-determination was already established in international
law by the time of the excision by the administrative power of the Chagos Archipelago
from Mauritius (8 November 1965). Much of the history of international law during
that period dealt with the law of self-determination and decolonization, as the
independence of a number of states in the 1960s clearly demonstrates. The
independence of new colonies did not derive from comity or courtesy of the former
colonial powers. It was rather the due exercise of a right, whose application should
lead to "bringing all colonial situations to a speedy end".23
19. Self-determination is a collective right and, as such, the identification of its
holders - the "peoples" - might, in sorne cases, become a challenging exercise; less so
in the context of decolonization, where the "uti possidetis" principle generated a
consistent practice of distinguishing "peoples" according to the borders of former
colonies. The Chagos Archipelago has been a part of Mauritius at least since the 18th
century, when Mauritius was under French colonial rule. At the time of the
decolonization process, therefore, the inhabitants of the archipelago (henceforth the
"Chagossians") were an integral part of the Mauritian people, constituting a single
holder of the right to self-determination.
III. TERRITORIAL INTEGRITY
21 Legal Consequences for States of the Continued Presence of South A fr ica in Namibia (South West A fric a)
notwithstanding Security Council Resolution 276 (1 970), Advisory Opinion, !. C.J. Reports 1971, pp. 31-
32, paras. 52-53; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, pp. 31-33, paras. 54-59; East
Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, para. 29; Legal Consequences of the
Construction of a Wall in the Palestinian Occupied Territories, Advisory Opinion, I.C.J. Reports 2004, p.
171-172, para 88.
22 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, para. 29.
23 Western Sahara, Advismy Opinion, !. C.J. Reports 1975, p. 31, para. 55.
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20. The right of peoples to self-determination has a territorial projection: the people
must be able to exercise their rights over the entire territory. Territorial integrity is
therefore not only a corollary of sovereignty but also a corollary of self-determination.
The General Assembly acknowledged this wh en detailing sorne of the contents of selfdetermination
through the 1960 Declaration:
(i) "all armed action or repressive measures of all kinds directed against
dependent peoples shall cease in arder to enable them to exercise
peacefully and freely their right to complete independence, and the
integrity of the ir national terri tory shall be respected" (paragraph 4 );
(ii) "any attempt aimed at the partial or total disruption of the national unity
and the territorial integrity of a country is incompatible with the purposes
and principles of the Charter of the United Nations" (paragraph 6).
21. The 1960 Declaration states that the "transfer of all powers to the peoples of tho se
territories" - decolonization itself- is to be implemented, among others, "without any
conditions or reservations" and "in accordance with their freely expressed will and
desire". It follows that any modification in relation to the boundaries of a non-selfgoverning
territory can only be legally implemented following the free and genuine
consent of the people concerned. In the words of Judge Hardy Dillard, "it is for the
people to determine the destin y of the terri tory and not for the terri tory to determine
the destiny ofthe people".24
22. On 16 December 1965, the General Assembly adopted Resolution 2066(XX),
which "note[d] with deep concern 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 the Declaration, and in particular of
paragraph 6 thereof' (preambular paragraph 5). The General Assembly also "invite[ d]
the administering Power to take no action which would dismember the Territory of
Mauritius and violate its territorial integrity". It was adopted with 89 votes in favor -
including Brazil -, 18 abstentions and without any votes against it. Resolution
2066(XX) indicates the clear understanding of the most representative organ of the
UN on the legality of the detachrnent of the Chagos Archipelago.
23. The relationship between self-determination and territorial integrity is established
in a specifie moment in time: before any illicit interference to the territory or to the
population. The dismemberment of the Chagos Archipelago from Chagos was not in
conformity with international law and the passing of time does not correct such a
wrongdoing. It cannat be deemed to crea te a ''fait accompli" by virtue of the general
principle "ex iniuria ius non oritur". The principle of self-determination entitled the
Mauritian people to freely exercise their rights in their entire territory before the
dismemberment- that is, including the Chagos Archipelago.
24 Separate opinion of Judge Di liard, p. 122, in Western Sahara .
24. Based on the above, Brazil considers that the decolonization of Mauritius was not
lawfully completed- and remains incomplete to this day.
IV. THE FORCIBLE REMO V AL OF THE CHAGOSSIANS
25. International law applicable to decolonization prohibits administrative powers to
"disrupt the demographie composition" of the terri tories under colonial rule, since it
"may constitute a major obstacle to the genuine exercise of self-determination and
independence by the people ofthose territories" (excerpts from paragraph 8 of General
Assembly Resolution 35/118, which reflects customary international law). Brazil
understands that this prohibition covers not only the influx of outside migrants and
settlers, but also depopulation. The treatment granted to the inhabitants of the Chagos
Archipelago after its excision from Mauritius is therefore a relevant tapie when
approaching the second question formulated to the Court.
26. Following the dismemberment of the Chagos Archipelago from Mauritius and the
establishment of the "British Indian Ocean Territory" (BIOT), a depopulation process
was carried out from 1968 to 1973. Its inhabitants were forcibly removed to other
countries. Chagossians were not allowed to resettle in the archipelago, neither were
they properly compensated. Moreover, the administering power established a marine
protected area surrounding the archipelago, impairing the feasibility of a possible
return of the indigenous population. 25
27. Article 13(2) of the Universal Declaration of Human Rights determines that
"everyone has the right to leave any country, including his own, and to return to his
country". The fact that the administering power has be en preventing the resettlement
of Chagossians in the archipelago constitutes a violation ofthat right.
V. CONCLUSION
28. For the reasons presented above, Brazil submits that:
(a) the Court has and should exercise advisory jurisdiction;
(b) the right of peoples to self-determination was established in international law by the
time of the excision of the Chagos Archipelago from Mauritius;
( c) the exercise of self-determination by the Mauritian people was prevented to be
completed, since a portion of their terri tory remained under control of the administering
power;