INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES OF THE SEPARATION
OF THE CHAGOS ARCHIPELAGO FROM
MAURITIUS IN 1965
(REQUEST FOR ADVISORY OPINION)
WRITTEN STATEMENT OF
THE PEOPLE'S REPUBLIC OF CHINA
1 MARCH 2018
1. On 22 June 2017, the United Nations General Assembly adopted
resolution 71/292 in which, pursuant to Article 65 of the Statute of the
International Court of Justice, the General Assembly requested the
International Court of Justice (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. On 14 July 2017, the Court made an order stating that the United
Nations and its Member States may present written statements on the
above-mentioned questions.
3. When the General Assembly voted on the draft resolution that has now
become resolution 71/292, China abstained in the voting and made an
explanatory statement, reiterating "China's firm support for the
decolonization process and its understanding of the position of Mauritius
on the question of decolonization". The statement proceeded:
Recently, the countries concerned made efforts, through
consultation and negotiation, to seek solutions to the question
concerning the Chagos archipelago. China notes that the
aforemen tioned negotiation has not yielded progress. China calls
upon the countries concerned to continue to make efforts in good
faith and to continue to carry out bilateral negotiations and
consultations, so as to seek an appropriate solution to the question
of Chagos archipelago as soon as possible.
4. China would like to further elaborate its positions on the international
law issues involved in this case for the reference of the Court when
rendering its advisory opinion.
5. Decolonization has been an important function of the United Nations.
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Article 1 of the Charter of the United Nations at the outset declares that
one of the purposes of the United Nations is "to develop friendly relations
among nations based on respect for the principle of equal rights and
self-determination of peoples, and to take other appropriate measures to
strengthen universal peace". The relevant provisions and institutional
arrangements stipulated in Chapter IX ("International Economic and
Social Co-operation"), Chapter XI ("Declaration regarding
Non-Self-Governing Territories"), Chapter XII ("International
Trusteeship System") and Chapter XIII ("The Trusteeship Council") of
the Charter have ensured progress in promoting the self-determination of
peoples and the process of decolonization after World War II. As the
Chinese delegation pointed out on 6 October 2003 at the Special Political
and Decolonization Committee of the 581h Session of the General
Assembly, "it has remained a cardinal goal in the endeavour made by the
United Nations to help the colonial countries and peoples to exercise their
right to self-determination and strive for independence".
6. The principle of self-determination of peoples has gradually
crystallized as a principle of international law in the course of the
decolonization movement. A large number of countries in Asia, Africa
and Latin America, which were under colonial rule or foreign occupation
at the end of World War II, have since exercised their right to
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self-determination and declared independence. This right has been
accepted by States as an inalienable right conferred by international law
upon peoples under colonial domination or foreign occupation. The
provisions on the principle of self-determination of peoples in the Charter
of the United Nations have been continuously improved and enriched in
the decolonization process championed by the United Nations. On 14
December 1960, the General Assembly adopted the historic resolution
1514 (XV), "Declaration on the Granting of Independence to Colonial
Countries and Peoples", which strongly condemned colonialism and
emphasized that "all peoples have the right to self-determination; by
virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development". The resolution
also confirmed the application of the principle of self-determination of
peoples to all Trust and non-self-governing territories. Resolution 1514
(XV) was reaffirmed in a large number of resolutions subsequently
adopted by the General Assembly. The Court also considered this
resolution as "a further important stage" in the development of
international law in regard to non-self-governing territories and "the basis
for the process of decolonization" ( Western Sahara, Advisory Opinion,
IC.J Reports 1975, p. 12, at paras. 56-57). On 27 November 1961, the
General Assembly adopted resolution 1654 (XVI), setting up a Special
Committee to monitor the implementation of the Declaration on the
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Granting of Independence to Colonial Countries and Peoples.
7. To supplement resolution 1514 (XV), the General Assembly on 15
December 1960 adopted resolution 1541 (XV), "Principles Which Should
Guide Members in Determining Whether or Not an Obligation Exists to
Transmit the Information Called for Under Article 73 e of the Charter",
clarifying the international obligation of the Administering Members to
transmit information in respect of territories whose peoples have not yet
attained a full measure of self-government. It provides the modes, and
sets forth objective and operable criteria, for the peoples of the
non-self-governing territories to exercise the right to self-determination.
8. On 24 October 1970, the General Assembly adopted resolution 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", which clearly recognizes the principle of
self-determination of peoples as an important principle of international
law. The declaration emphasizes that "the principle of equal rights and
self-determination of peoples constitutes a significant contribution to
contemporary international law, and that its ffective application is of
paramount importance for the promotion of friendly relations among
States, based on respect for the principle of sovereign equality", and
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stipulates that, "every State has the duty to promote ... realization of the
principle of equal rights and self-determination of peoples, in accordance
with the provisions of the Charter, and to render assistance to the United
Nations in carrying out the responsibilities entrusted to it by the Charter
regarding the implementation of the principle, in order . . . to bring a
speedy end to colonialism, having due regard to the freely expressed will
of the peoples concerned".
9. The Court, as the principal judicial organ of the United Nations, has
dealt with issues related to decolonization and self-determination on a
number of occasions, and played an important role in the performance of
the United Nations' function of decolonization. In its advisory opinion on
the Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), the Court stated that:
The . . . development of international law in regard to
non-self-governing territories, as enshrined in the Charter of the
United Nations, made the principle of self-determination
applicable to all of them. The concept of the sacred trust was
confinned and expanded to all "territories whose peoples have not
yet attained a full measure of self-government" (Art. 73). Thus it
clearly embraced territories under a colonial regime. (J. C.J.
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Reports 1971, p. 16, at para. 52.)
10. In the Western Sahara advisory opinion, the Court reiterated that the
principle of self-determination is applicable to non-self-governing
territories and observed that the principle of self-determination was
"defined as the need to pay regard to the freely expressed will of peoples"
(lC.J. Reports 1975, p. 12, at para. 59.), and that "the right of
self-determination leaves the General Assembly a measure of discretion
with respect to the forms and procedures by which that right is to be
realized" (ibid., at para. 71). And the Court noted that the object of the
request there was "to obtain from the Court an opinion which the General
Assembly deems of assistance to it for the proper exercise of its functions
concerning the decolonization of the territory" (ibid., at para. 39).
11. Furthermore, in its judgment in East Timor (Portugal v. Australia)
the Court held that the assertion that the right of peoples to
self-determination "has an erga omnes character" is "irreproachable", and
"the principle of self-determination of peoples has been recognized by the
United Nations Charter and in the jurisprudence of the Court [;] it is one
of the essential principles of contemporary international law" (I. C.J.
Reports 1995, p. 90, at para. 29). In its advisory opinion on Legal
Consequences of the Construction of a Wall in the Occupied Palestinian
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Territory, the Court pointed out that the obligation to respect the right to
self-determination is an obligation "erga omnes" (I. C.J. Reports 2004, p.
136, at para. 155).
12. Once a victim of aggression and oppression under imperialism and
colonialism, China sympathizes with the peoples under colonial rule and
knows full well their sufferings. The Constitution of the People's
Republic of China solemnly states in its preamble that "China
consistently opposes imperialism, hegemonism and colonialism, works to
strengthen unity with the people of other countries, supports the
oppressed nations and the developing countries in their just struggle to
win and preserve national independence and develop their national
economies, and strives to safeguard world peace and promote the cause of
human progress". On the international stage, China firmly supports the
efforts made by the United Nations to help colonial countries and peoples
exercise their right to self-determination and achieve independence, takes
an active part in the United Nations' work of decolonization, and gives
strong support, both politically and economically, to colonial countries
and peoples, including African countries.
13. Based on the above-mentioned position, China has fully understood
and supported Mauritius' legitimate quest for decolonization. China notes
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that the General Assembly has adopted several resolutions on the
decolonization of Mauritius, including resolution 2066 (XX) of 16
December 1965, resolution 2232 (XXI) of 20 December 1966 and
resolution 2357 (XXII) of 19 December 1967. Among them, resolution
2066 (XX), which was adopted by the General Assembly immediately
after the separation of the Chagos archipelago from Mauritius, 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' the Declaration on the Granting of
Independence to Colonial Countries and Peoples, and that the General
Assembly "invites the Government of the United King dom of Great
Britain and Northern Ireland to take effective measures with a view to the
immediate and full implementation of resolution 1514 (XV)", and
"invites the administering Power to take no action which would
dismember the Territory of Mauritius and violate its territorial integrity".
In light of the above situation and China's basic position of firmly
supporting the General Assembly in discharging its function of
decolonization, China understands that the General Assembly, if
circumstances so require, may seek legal guidance from the Court on
decolonization issues.
14. In the meantime, China also notes that a significant number of States,
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in explaining their votes on General Assembly resolution 71/292,
expressed their reservations on the General Assembly's request to the
Court for an advisory opinion. They pointed out that the related matters
essentially concern the dispute on tenitorial sovereignty between relevant
States. China believes that these concerns deserve due attention.
15. Under international law, every State is free to choose the means of
dispute settlement. The jurisdiction of any international dispute
settlement mechanism over a dispute between States depends on the prior
consent of the parties to the dispute. This is known as the principle of
consent, born of the fundamen tal principle of sovereign equality under
international law, enshrined in the Charter of the United Nations and the
Statute of the Court, and confinned in numerous international instruments,
including the aforementioned Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, and the Manila
Declaration on the Peaceful Settlement of International Disputes as
contained in General Assembly resolution 37/10 of 15 November 1982.
16. As we can see from the cases of the Court, the advisory proceedings
of the Court are different from contentious proceedings. The advisory
jurisdiction of the Court is derived from Article 96 of the Charter of the
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United Nations and Article 65 of the Statute of the Court. The giving of
an advisory opinion by the Court, as the principal judicial organ of the
United Nations, represents its participation in the activities of the United
Nations, in order to provide legal opinion to the requesting organ of the
United Nations, rather than decide a bilateral dispute between States.
Therefore, no consent of any State concerned with relevant matters is
required to establish the advisory jurisdiction. But this does not mean that
the principle of consent has no relevance in the Court's advisory
proceedings. Pursuant to Article 65 of the Statute of the Court, the Court
"may'' give an advisory opinion, affording the Court discretion whether
or not to exercise the advisory jurisdiction. The Court should consider, in
assessing the propriety of giving an opinion and deciding whether it
should exercise such discretion, whether the principle of consent is
violated by giving an opinion. As the Court clearly pointed out in Western
Sahara,
the Court recognized that lack of consent might constitute a
ground for declining to give the opinion requested if, in the
circumstances of a given case, considerations of judicial propriety
should oblige the Court to refuse an opinion. In short, the consent
of an interested State continues to be relevant, not for the Court's
competence, but for the appreciation of the propriety of giving an
opinion. (1.C.J Reports 1975, p. 12, at para. 32.)
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.
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The Court further stated that,
In certain circwnstances, 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. (ibid., at para. 33.)
17. In a series of advisory opiruons touching upon bilateral disputes, the
Court always took a cautious attitude and elaborated why giving an
advisory opinion would not entail a breach of the principle of consent.
These reasons include among others: that the issue was addressed as a
"situation" rather than a "dispute" in the dealings of the United Nations
organ that made a request (Legal Consequences for States of the
Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion, I.C.J. Reports 1971, p. 16, at para. 25.); that the request did not
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touch the merits of these disputes, g1vmg an op1mon would not
compromise the legal position of the parties to these disputes, or the
opinion was solely concerned with the applicability of certain rules of
international law, rather than the application of these rules (Interpretation
of Peace Treaties, Advisory Opinion, I.C.J. Reports 1950, p. 65, at p. 72;
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12, at para. 42;
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, at para. 38.); and that the questions put to the Court
"arose during the proceedings of the General Assembly", "did not arise
independently in bilateral relations" and were "located in a broader frame
of reference than the settlement of a particular dispute" ( Western Sahara,
Advisory Opinion, I.C.J. Reports 1975, p. 12, at paras. 34, 38; Legal
Consequences of the Construction of a Wal 1 in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, at paras. 47, 50).
18. China hopes that the Court will pay due regard to the special
circumstances in this case and strictly observe the relevant provisions of
the Charter of the United Nations and the Statute of the Court in handling
the case. While providing legal guidance to assist the General Assembly
in fulfilling its function of decolonization, the Court should continue to
uphold and respect the principle of consent when a purely bilateral
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dispute is invo]ved, thus to ensure that its opinion should not have the
effect of circumventing or prejudicing this principle.
19. China hereby reiterates its princip]ed position of firmly supporting
the process of decolonization. At the same time, China encourages and
calls upon States concerned to act in good faith, and seek appropriate
solution to relevant issues through negotiation or any other peaceful
means agreed to by both parties.
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Written Statement of the People's Republic of China