Written Statement of Mauritius

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 Republic of Mauritius
VOLUME I
1 March 2018

i
Table of Contents
CHAPTER 1 INTRODUCTION ...........................................................................1
I. The involvement of the U.N. General Assembly .............7
II. The questions posed by the U.N. General Assembly .....11
III. Summary of Mauritius’ Written Statement ....................14
CHAPTER 2 GEOGRAPHY AND COLONIAL HISTORY .....................................23
I. Introduction ....................................................................23
II. Geography ......................................................................23
III. Early and colonial history ..............................................29
IV. The Chagos Archipelago has always been an
integral part of the territory of Mauritius .......................34
A. Constitutional, legislative and
administrative arrangements ..............................34
B. Economic, cultural and social links ....................39
C. Recognition of the Chagos Archipelago
as an integral part of the territory of
Mauritius ............................................................43
V. Conclusion ......................................................................53
CHAPTER 3 THE PROCESS OF DECOLONISATION AND THE
DETACHMENT OF THE CHAGOS ARCHIPELAGO FROM
MAURITIUS ...............................................................................55
I. Introduction ....................................................................55
II. The struggle for independence .......................................57
III. The secret plan to detach the Chagos Archipelago ........63
IV. The 1965 Constitutional Conference ..............................79
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A. Uncertainty about whether Mauritius
would be granted independence .........................80
B. The U.K. had already decided to detach
the Chagos Archipelago .....................................82
C. Mauritian Ministers opposed the
detachment of the Chagos Archipelago .............84
D. The Colonial Secretary sought to obtain
Mauritian Ministers’ “agreement” to
detachment to shield the U.K. from
domestic and international criticism ..................84
V. Private meetings on “defence matters” ..........................87
VI. Premier Ramgoolam’s meeting with Prime
Minister Wilson ..............................................................91
VII. The Lancaster House Undertakings ...............................98
VIII. The formal detachment of the Chagos
Archipelago ..................................................................104
IX. Subsequent actions, including the forcible
removal of the inhabitants ............................................108
A. The forcible removal of the Chagossians .........110
B. The return of Aldabra, Farquhar and
Desroches to Seychelles ...................................114
X. Conclusion ....................................................................116
CHAPTER 4 NATIONAL AND INTERNATIONAL REACTIONS TO THE
DETACHMENT OF THE CHAGOS ARCHIPELAGO .......................119
I. Introduction ..................................................................119
II. The reaction of Mauritius .............................................119
A. Mauritius’ reaction to the detachment
of the Chagos Archipelago ...............................121
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B. Mauritius’ reaction to the announcement
of a “Marine Protected Area” in and
around the Chagos Archipelago .......................131
III. International reaction to the detachment of the
Chagos Archipelago .....................................................135
A. Reaction at the United Nations .........................136
B. Reaction of the international community .........151
IV. Reaction to the forcible removal of the Chagossians ...156
V. Conclusion ....................................................................166
CHAPTER 5 THE COURT HAS JURISDICTION TO GIVE THE ADVISORY
OPINION REQUESTED BY THE GENERAL ASSEMBLY, AND
THERE ARE NO REASONS FOR THE COURT TO DECLINE
TO GIVE IT ...............................................................................167
I. The Court Has jurisdiction to give the Advisory
Opinion requested by the General Assembly in
Resolution 71/292 ........................................................167
A. The General Assembly is an organ duly
authorised to request an Advisory Opinion
from the Court ..................................................168
B. The General Assembly has asked the
Court to give an Advisory Opinion on
legal questions ..................................................170
II. There are no compelling reasons for the Court to
decline to give the Advisory Opinion that has
been requested ..............................................................173
CHAPTER 6 THE DECOLONISATION OF MAURITIUS WAS NOT
LAWFULLY COMPLETED WHEN MAURITIUS WAS
GRANTED INDEPENDENCE IN 1968 ..........................................187
I. Introduction ..................................................................187
II. The legal principles governing decolonisation .............189
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A. The Mandate system and the League of
Nations .............................................................189
B. The Charter of the United Nations ...................191
C. The Declaration on the Granting of
Independence to Colonial Countries and
Peoples .............................................................198
D. The practice of the Security Council ................208
III. Self-determination as the modus operandi of
decolonisation ...............................................................212
IV. The fundamental elements of self-determination
in the process of decolonisation ...................................216
V. The decolonisation of Mauritius was not lawfully
completed in 1968 ........................................................228
A. The unit of self-determination was the
entire territory of Mauritius ..............................228
B. The United Nations recognised the entire
territory of Mauritius as the unit of selfdetermination
....................................................230
C. The decision of the administering power to
dismember Mauritius prior to independence
had no effect on the self-determination unit .....233
D. The right of self-determination had to be
exercised according to the freely-expressed
will of the people of the territory concerned ....235
E. The detachment of the Chagos Archipelago
was carried out in secret without any
attempt to ascertain the views of the
people of Mauritius ..........................................238
F. The “agreement” of the Council of Ministers
of Mauritius was not capable of meeting the
requirements of self-determination ..................242
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VI. Conclusion ....................................................................248
CHAPTER 7 THE CONSEQUENCES UNDER INTERNATIONAL LAW
ARISING FROM THE ADMINISTERING POWER’S
CONTINUED ADMINISTRATION OF THE CHAGOS
ARCHIPELAGO .........................................................................251
I. Introduction ..................................................................251
II. The Administering Power’s continued
administration of the Chagos Archipelago is a
continuing internationally wrongful act that must
cease .............................................................................253
III. The unlawful colonial administration of part of
Mauritius’ territory must be brought to an
immediate end ..............................................................255
A. Immediate cessation is required .......................255
B. Full decolonisation of Mauritius can and
should be achieved immediately ......................259
IV. The legal consequences while decolonisation is
being completed ...........................................................270
V. The legal consequences that apply to third States
and international organisations .....................................280
CONCLUSIONS................................................................................................. 285
LIST OF ANNEXES .......................................................................................... 289

1
CHAPTER 1
INTRODUCTION
1.1 On 22 June 2017, the United Nations General Assembly, by a vote of 94 to
15, adopted Resolution 71/292, which requested the Court to render the present
Advisory Opinion pursuant to Article 65 of its Statute. On 14 July 2017, the Court
fixed 30 January 2018 as the time-limit within which written statements may be
submitted to the Court by the United Nations and its Member States, in accordance
with Article 66, paragraph 2 of its Statute. On 17 January 2018, the Court adopted
an Order by which it extended the time-limit for the filing of written statements to
1 March 2018. This Written Statement is submitted by Mauritius pursuant to the
Order of the Court.
***
1.2 The request from the General Assembly asks the Court to render an
Advisory Opinion on the completion of the decolonisation of Mauritius, which
attained its independence on 12 March 1968. The Chagos Archipelago was
purportedly detached from the colonial territory of Mauritius three years earlier, by
an Order in Council dated 8 November 1965. By that time, the United Nations had
played a central role in the process of decolonisation for the two decades since its
inception.
1.3 On 14 December 1960, the General Assembly adopted, by a vote of 89 votes
to none, the Declaration on the Granting of Independence to Colonial Countries and
Peoples (General Assembly Resolution 1514 (XV)), which proclaimed that “[a]ll
peoples have the right to self-determination” and provided that “[a]ny attempt
aimed at the partial or total disruption of the national unity and the territorial
integrity of a country is incompatible with the purposes and principles of the
2
Charter of the United Nations.”1 The Resolution “provided the basis for the process
of decolonisation which has resulted since 1960 in the creation of many States
which are today Members of the United Nations.”2 By the time the Chagos
Archipelago was detached from Mauritius by the administering power, clear
principles of international law had emerged to govern the process of decolonisation,
chief among them the principles of self-determination and territorial integrity.
1.4 These principles were not merely general guidelines or vague aspirations.
They were binding rules under international law, with corollary rights, the breach
of which not only inflicted a wrong on the people concerned, but also amounted to
a violation of norms of paramount importance to the international community as a
whole.
1.5 These rules required, at their heart, that the people of a non-self-governing
territory had a right to determine their own future. After decades – and in the case
of Mauritius more than two centuries – of colonial rule, colonised peoples were, as
a matter of international law, finally able to take control of their own destiny,
determining whether they wished to be independent and, if so, in what form. Selfdetermination
required that the will of the people as a whole be freely expressed
and, once expressed, respected. Territorial integrity required that a colonial territory
could not be divided or dismembered other than as a result of the freely-expressed
will of the people.
1 U.N. General Assembly, 15th Session, Declaration on the granting of independence to colonial
countries and peoples, U.N. Doc. A/RES/1514(XV) (14 Dec. 1960) (hereinafter “Colonial
Declaration (14 Dec. 1960)”) (Dossier No. 55). There were only 9 abstentions.
2 Western Sahara, Advisory Opinion, I.C.J. Reports 1975 (hereinafter “Western Sahara (Advisory
Opinion)”), p. 32, para. 57. Crawford notes, in that regard, that the Colonial Declaration “has
achieved in practice a quasi-constitutional status”. James Crawford, The Creation of States in
International Law (2006) (hereinafter “Crawford, Creation of States (2006)”), p. 604 (Annex 150).
3
1.6 Yet despite the clarity of these principles, on 8 November 1965, the
administering power purported to dismember the territory of Mauritius. A portion
of that dependent territory, the Chagos Archipelago, was detached and turned into
a new colony, to be known as the “British Indian Ocean Territory” (or “BIOT”).3
The Archipelago remains colonised in that form to the present day. Accordingly,
although Mauritius gained independence in 1968, the process of decolonisation
was, and remains, incomplete. That situation is inconsistent with international law,
and gives rise to continuing consequences.
1.7 The detachment (or excision) of the Chagos Archipelago was carried out
without any regard to the will of the people of Mauritius, including those who lived
in the Chagos Archipelago. The administering power had already decided that the
territory would be excised and turned into a new colony, in order to allow one of
its allies to build a military base on the island of Diego Garcia. This decision was
taken in secret, without any consultation with either the people of Mauritius or their
representatives.
1.8 The excision also involved the forcible expulsion of the entire population
of the Chagos Archipelago, many of whose families had lived on the islands for
generations. The administering power attempted to cover up the expulsion with the
false claim that the islands were uninhabited other than by a few “contract
labourers”. Almost fifty years later, the administering power expressed “regret” for
the circumstances in which the inhabitants were removed from the islands and
recognised that “what was done then should not have happened.”4 The shameful
3 Mauritius does not recognise the so-called “British Indian Ocean Territory” (sometimes referred
to as “BIOT”).
4 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Hearing on
Jurisdiction and the Merits, UNCLOS Annex VII Tribunal, Transcript (Day 1) (22 Apr. 2014), p.
43:21-23 (Annex 169).
4
expulsion caused, and continues to cause, immense suffering to this part of the
Mauritian population, who are commonly referred to as Chagossians. They have
fought for decades for the right to return to their place of birth. Mauritius supports
the Chagossians’ right of return to the Chagos Archipelago.
1.9 Fully aware that the excision would lead to international condemnation, the
administering power sought, for presentational purposes, to extract the “consent”
of Mauritian Ministers at a 1965 Constitutional Conference at Lancaster House in
London.
1.10 As the contemporary records demonstrate, the choice that was given to the
Mauritian Ministers was, in fact, no choice at all. A meeting took place between
the British Prime Minister, Harold Wilson, and Sir Seewoosagur Ramgoolam, the
Premier of Mauritius, on 23 September 1965. A minute prepared for the Prime
Minister described the purpose of the meeting with brutal clarity:
Sir Seewoosagur Ramgoolam is coming to see you at 10.00
tomorrow morning. The object is to frighten him with hope: hope
that he might get independence; Fright lest he might not unless
he is sensible about the detachment of the Chagos Archipelago.5
1.11 These words admit of no ambiguity. The Mauritian Ministers at Lancaster
House were told in no uncertain terms that the Chagos Archipelago was going to
be detached and remain a British territory. The only question for discussion was
whether the rest of Mauritius would also remain a colony, or would attain
5 U.K. Colonial Office, Note for the Prime Minister’s Meeting with Sir Seewoosagur Ramgoolam,
Premier of Mauritius, PREM 13/3320 (22 Sept. 1965) (hereinafter “Note for the Prime Minister’s
Meeting with Sir Seewoosagur Ramgoolam, Premier of Mauritius (22 Sept. 1965)”) (emphasis
added) (Annex 59).
5
independence. Faced with this non-choice, in a situation of duress, the Mauritian
Ministers took independence for the rest of Mauritius.
1.12 The administering power then moved swiftly to present the United Nations
with what it described as a fait accompli, noting that:
From the United Nations point of view the timing is particularly
awkward. We are already under attack over Aden and Rhodesia, and
whilst it is possible that the arrangements for detachment will be
ignored when they become public, it seems more likely that they
will be added to the list of ‘imperialist’ measures for which we are
attacked. We shall be accused of creating a new colony in a period
of decolonisation and of establishing new military bases when we
should be getting out of the old ones. If there were any chance of
avoiding publicity until this session of the General Assembly
adjourns at Christmas there would be advantage in delaying the
Order in Council until then. But to do so would jeopardise the whole
plan.
The Fourth Committee of the United Nations has now reached the
item on Miscellaneous Territories and may well discuss Mauritius
and Seychelles next week. If they raise the question of defence
arrangements on the Indian Ocean Islands before we have detached
them, the Mauritius Government will be under considerable
pressure to withdraw their agreement to our proposals. Moreover we
should lay ourselves open to an additional charge of dishonesty if
we evaded the defence issue in the Fourth Committee and then made
the Order in Council immediately afterwards. It is therefore
important that we should be able to present the U.N. with a fait
accompli.6
1.13 Condemnation at the U.N. was swift and strong, but the administering
power, then and subsequently, ignored the international community’s calls to
restore Mauritius’ territorial integrity. These included General Assembly
6 U.K. Foreign Office, Minute from Secretary of State for the Colonies to the Prime Minister, FO
371/184529 (5 Nov. 1965) (hereinafter “Minute from Secretary of State for the Colonies to the Prime
Minister (5 Nov. 1965)”), paras. 6-7 (emphasis in the original) (Annex 70).
6
Resolution 2066 (XX), passed shortly after the excision, which required the
administering power “to take effective measures with a view to the immediate and
full implementation of resolution 1514 (XV)” and “to take no action which would
dismember the Territory of Mauritius and violate its territorial integrity”.7 This
resolution of the General Assembly was adopted decades before the full facts about
what had happened in 1965 would come to be known.
1.14 Two international judges have carefully considered these matters, in
proceedings brought under Annex VII of the 1982 U.N. Convention on the Law of
the Sea. They concluded that, in detaching the Chagos Archipelago, the
administering power showed “a complete disregard for the territorial integrity of
Mauritius”.8 They expressed the view that “[t]he detachment of the Chagos
Archipelago was already decided whether Mauritius gave its consent or not” and
that the Prime Minister’s “threat that Ramgoolam could return home without
independence amounts to duress”, while “[t]he Colonial Secretary equally resorted
to the language of intimidation.”9 The threats and intimidation were, in their view,
all the more serious since Mauritius was a colony at the time, and thus “there was
a clear situation of inequality between the two sides.”10 No international judge has
expressed a contrary view.
7 U.N. General Assembly, 20th Session, Question of Mauritius, U.N. Doc. A/RES/2066(XX) (16
Dec. 1965) (hereinafter “Question of Mauritius (16 Dec. 1965)”), paras. 3-4 (Dossier No. 146).
8 The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Dissenting and
Concurring Opinion of Judge James Kateka and Judge Rüdiger Wolfrum, UNCLOS Annex VII
Tribunal (18 Mar. 2015) (hereinafter “The Chagos Marine Protected Area Arbitration, Dissenting
and Concurring Opinion (18 Mar. 2015)”), para. 91 (Dossier No. 409).
9 Ibid., paras. 76-77.
10 Ibid., para. 77.
7
I. The involvement of the U.N. General Assembly
1.15 The U.N., and in particular the General Assembly, has played a central role
in the decolonisation process, under its Charter mandate. Its practice on
decolonisation, and its central role in relation to Mauritius in particular, are
reviewed in the chapters which follow. Thus it was entirely appropriate for the
General Assembly to continue to take up the issue of the decolonisation of
Mauritius by way of this request for an Advisory Opinion. The process by which
this came about is as follows.
1.16 On 16 September 2016, the General Assembly adopted its Agenda for the
71st session, which included at item 87: “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.”11 This item was included on the
understanding that there would be no consideration of the matter before June 2017,
in order to allow for Mauritius and the administering power to consult on the
completion of the decolonisation of Mauritius.12 In March 2017 the administering
power expressed the view that the decolonisation process of Mauritius was
completed at the time it granted independence to Mauritius and that it had lawfully
detached the Chagos Archipelago.
1.17 Consequently, on 1 June 2017, the Permanent Representative of Mauritius
to the U.N. in New York wrote to the President of the General Assembly, requesting
that a date be set for the consideration of Agenda item 87 by the General
11 U.N. General Assembly, 71st Session, Agenda of the seventy-first session of the General
Assembly, U.N. Doc. A/71/251 (16 Sept. 2016) (Annex 184).
12 Talks were held on 9 November 2016, 2 February 2017 and 7 March 2017.
8
Assembly.13 The President of the General Assembly decided to convene a meeting
on 22 June 2017.14
1.18 On 15 June 2017, the Republic of Congo, acting on behalf of the Group of
African States, submitted a draft resolution to the U.N. Secretariat.
1.19 On 22 June 2017, the U.N. General Assembly, by a vote of 94 to 15, adopted
Resolution 71/292, by which the Court was requested to render the present
Advisory Opinion pursuant to Article 65 of its Statute.15 The resolution was
opposed by only two of the five Permanent Members of the Security Council, one
of which was the administering power.
1.20 Introducing the draft resolution at the plenary meeting, the representative of
the Republic of Congo explained that:
As everyone is aware, the right to self-determination and the
completion of the decolonization process continue to be a central
concern of the United Nations as a whole. That is why we firmly
believe that the United Nations would benefit from the guidance of
a principal judicial organ of the United Nations on the
decolonization process with respect to the two questions posed in
the draft resolution. An advisory opinion of the International Court
of Justice would assist the General Assembly in its work and would
contribute to the promotion of the international rule of law.16
13 Letter from H.E. Mr Jagdish Koonjul, Ambassador and Permanent Representative of the Republic
of Mauritius to the United Nations, to H.E. Mr Peter Thomson, President of the 71st session of the
United Nations General Assembly (1 June 2017) (Annex 191).
14 Letter from H.E. Mr Peter Thomson, President of the 71st session of the United Nations General
Assembly, to all Permanent Representatives and Permanent Observers of the United Nations in New
York (1 June 2017) (Annex 192).
15 There were 65 abstentions.
16 U.N. General Assembly, 71st Session, 88th Plenary Meeting, Agenda item 87: Request for an
advisory opinion of the International Court of Justice on the legal consequences of the separation
9
1.21 The representative of Mauritius, Sir Anerood Jugnauth, the only surviving
member of the Mauritian delegation to the Constitutional Conference in London in
1965, stated that:
The position that the administering Power brought about in 1965
remains unchanged today. Consequently, as there is no prospect of
any end to the colonization of Mauritius, the General Assembly has
a continuing responsibility to act. More than five decades have
passed and now is the time to act.
It is fitting for the General Assembly to fulfil that function on the
basis of guidance from the International Court of Justice as to the
legality of the excision of the Chagos Archipelago in 1965. The draft
resolution before the General Assembly contains two legal questions
which are linked to the issue of decolonization – a matter of direct
interest to the General Assembly. An advisory opinion would no
doubt contribute significantly to the work of the General Assembly
in fulfilling its functions under Chapters XI to XIII of the Charter of
the United Nations.
…
The vote on the draft resolution before the General Assembly would
be a vote in support of completing the process of decolonization,
respect for international law and the rule of law, and respect for the
international institutions that we States Members of the United
Nations have created. It is also a vote of confidence in the
International Court of Justice, the principal judicial organ of the
United Nations.17
1.22 The representative of Venezuela, speaking on behalf of the Non-Aligned
Movement (“NAM”), expressed the “unshakable” support of NAM for all
of the Chagos archipelago from Mauritius in 1965, U.N. Doc. A/71/PV.88 (22 June 2017), p. 6
(Dossier No. 6).
17 Ibid., pp. 7-8.
10
decolonisation initiatives, including in the case of Mauritius “any action that might
be taken in this regard by the General Assembly.”18
1.23 The representative of India noted that, when the United Nations was
established in 1945, “almost a third of the world’s population lived in territories
that were non-self-governing and dependent on colonial Powers.”19 However,
As a result of the sustained collective efforts of the United Nations
membership, today fewer than 2 million people live in non-selfgoverning
territories, according to United Nations documentation.
Since the creation of the United Nations, more than 80 former
colonies have gained their independence and taken their rightful
place in the General Assembly. However, the process of
decolonization that began with our own independence is still
unfinished, seven decades later. In fact, in 2011 the Assembly
proclaimed the decade 2011-2020 to be the third International
Decade for the Eradication of Colonialism. We would like to see
that long-drawn-out process concluded.20
1.24 The representative of Egypt stated that “this is one of the pending issues
that are preventing us from putting an end to colonization, and we therefore hope
that we can find an appropriate solution to it that accords with the Charter of the
United Nations and the principles of international law.”21
1.25 The representative of Kenya stated that:
The historical injustice and deep scars of the human rights abuses
that have accompanied the occupation and exploitation of the
archipelago demand that all nations that believe in the principles of
the Charter of the United Nations should stand up to be counted in
18 Ibid., p. 9.
19 Ibid., p. 14.
20 Ibid.
21 Ibid.
11
support of today’s draft resolution. After all, all that is being asked
for here is an advisory opinion from the International Court of
Justice – a mere advisory opinion of an international court that we
all respect. What could possibly be so unpalatable about that? There
can be no difference, indeed no moral or ethical space, between a
commitment to human rights today and the correction of grave
historical injustices perpetrated in the past, no matter how
embarrassing or how high the cost. We believe that our civilization
and our membership in the United Nations demand this of us.22
1.26 The representative of Brazil stated that:
Decolonization constitutes one of the unfinished tasks of the United
Nations and is therefore an issue of interest to the international
community as a whole. The General Assembly has a crucial role to
play in advancing the progress of decolonization. One of the tools at
its disposal, 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 non-binding opinion, legal elements that may guide all
parties to definitively settle this question.23
II. The questions posed by the U.N. General Assembly
1.27 As Resolution 71/292 makes clear, the Advisory Opinion requested by the
General Assembly is intended to provide it with legal guidance which is necessary
to enable it to address matters that have long been among its highest priorities.
These include the granting of independence to colonial countries and peoples; the
protection of colonial peoples’ inalienable rights to sovereignty, national unity and
territorial integrity; and the full and immediate implementation of Resolution 1514
22 Ibid., p. 15.
23 Ibid., p. 21.
12
(XV), as well as compliance with Resolution 2066 (XX). As the voting record
shows, the request for an Advisory Opinion comes before the Court with the
overwhelming support of U.N. Member States, 94 of whom voted for the resolution
while only 15 opposed it.24
1.28 As Mauritius explains in Chapter 5 below, the Court plainly has jurisdiction
to answer the questions posed by the General Assembly, and there are powerful
reasons why it should exercise its discretion to do so, rather than denying the
General Assembly the benefit of the legal opinion which it has sought. Further, the
two questions are inextricably linked and, in Mauritius’ submission, the Court must
answer both of them.
1.29 In setting out its observations on the two questions before the Court,
Mauritius proceeds on the basis that the request, and in particular the second
question, is forward-looking. Accordingly, while Mauritius fully reserves all its
rights in relation to the administering power’s prior wrongful conduct, as well as
the consequences thereof, it does not itself ask the Court to address issues of
compensation or reparation for that conduct, although the Court is of course free to
do so if it considers this necessary in answering the second question. For its part,
Mauritius’ focus in approaching the second question is first and foremost on the
need for the wrongful situation to be brought to an immediate end, in conformity
with well-established principles of international law.
1.30 It is important to underscore that, since it attained independence almost
exactly 50 years ago, Mauritius has been a peaceful, stable democracy, with
excellent relations with all States interested in the questions referred to the Court.
24 Ibid., p. 18.
13
It is committed to the rule of law, to the maintenance of international peace and
security, and to the protection of the environment. Its firm commitment to these
objectives underlines that this request for an Advisory Opinion is not intended to
bring into question the existence of the military base on Diego Garcia, or to
undermine the protection of the environment of the Chagos Archipelago. In
particular:
i. Defence and security: Mauritius recognises the existence of the military
base on Diego Garcia and has repeatedly made clear to the United States
and the United Kingdom that it accepts the future operation of the base
in accordance with international law.25
ii. The protection of the environment: Mauritius has been a responsible
guardian of the other areas of great environmental importance within its
territory, and has clearly stated its commitment to protecting the
environment of the Chagos Archipelago to the highest possible
standard.26
25 See Chapter 7, Part III. B. 2. See also Letter from the Minister of Foreign Affairs and Regional
Cooperation, Republic of Mauritius, to Secretary of State for Foreign & Commonwealth Affairs,
United Kingdom (21 Dec. 2000) (Annex 141); Letter from the Prime Minister of Mauritius to the
Prime Minister of the United Kingdom (22 July 2004) (Annex 147); Letter from the Minister of
Foreign Affairs, International Trade and Regional Co-operation of the Republic of Mauritius to
Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom (22 Oct. 2004)
(Annex 148); Note Verbale from the Ministry of Foreign Affairs of the Republic of Mauritius to the
Embassy of the United States of America in Mauritius, No. 26/2014 (1197/28) (28 Mar. 2014)
(Annex 168); Letter from the Prime Minister of the Republic of Mauritius to the President of the
United States (11 July 2017) (Annex 193).
26 Mauritius is a party to numerous international instruments concerning environmental protection
and conservation, including: the Convention on Fishing and Conservation of the Living Resources
of the High Seas 1958; the Convention on Wetlands of International Importance 1971; the
Convention on International Trade in Endangered Species of Wild Flora and Fauna 1973; the
Convention on the Conservation of Migratory Species of Wild Animals 1979; the Convention on
the Conservation of Antarctic Marine Living Resources 1980; the United Nations Convention on
the Law of the Sea 1982; the Convention on Biological Diversity 1992; the United Nations
Framework Convention on Climate Change 1992; the Agreement on the Establishment of the Indian
Ocean Tuna Commission 1993; the Straddling Stocks Agreement 1995; the Agreement on the
14
III. Summary of Mauritius’ Written Statement
1.31 Mauritius’ Written Statement is in seven chapters. Following this
introductory chapter, Chapters 2-4 set out a summary of the relevant facts, and
Chapters 5-7 address the legal issues.
1.32 Chapter 2 examines Mauritius’ geography and colonial history. Mauritius
was first occupied by the Dutch between 1638 and 1710, then colonised by France
from 1715 to 1810, followed by 157 years of British colonial rule, from 3 December
1810 until Mauritius’ independence on 12 March 1968. During the period of French
colonial rule, the Chagos Archipelago was administered as part of the colony of
Mauritius.27 This continued without interruption throughout the entirety of the
period of British colonial rule. In law and in practice, therefore, the Chagos
Archipelago has always been – and has been treated as – an integral part of
Mauritius.28
1.33 Chapter 3 addresses factual matters which are central to the present
request. It considers the decolonisation of Mauritius, from the limited measures of
self-government in the early 1940s to the 1965 Constitutional Conference in
London, when the British Government announced that it had reached the
Conservation of African-Eurasian Migratory Waterbirds 1995; the Kyoto Protocol 1998; the
Memorandum of Understanding on the Conservation and Management of Marine Turtles and Their
Habitats of the Indian Ocean and South-East Asia 2001; the Paris Agreement 2015; and the
Minamata Convention on Mercury 2017. See also Republic of Mauritius, National Report of the
Republic of Mauritius in view of the Third International Conference on Small Island Developing
States (July 2013) (Annex 166); Republic of Mauritius, National Biodiversity Strategy and Action
Plan 2017-2025 (May 2017) available at https://www.cbd.int/doc/world/mu/mu-nbsap-v2-en.pdf
(last accessed 13 Feb. 2018).
27 The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award,
UNCLOS Annex VII Tribunal (18 Mar. 2015) (hereinafter “The Chagos Marine Protected Area
Arbitration, Award (18 Mar. 2015)”), para. 58 (Dossier No. 409).
28 See Chapter 2, Part IV.
15
conclusion “that it was right that Mauritius should be independent and take her
place among the sovereign nations of the world.”29 In setting out the historical and
factual background, the chapter addresses:
i. Mauritius’ struggle for independence, and the concurrent development
of a secret plan to detach the Chagos Archipelago;
ii. The talks with Mauritian Ministers at the 1965 Constitutional
Conference in London at which the colonial authorities were to decide
on Mauritius’ final status;
iii. The U.K.’s undertakings to the Mauritian Government, and the
subsequent detachment of the Chagos Archipelago by Order in Council;
iv. The 1966 agreement by which the administering power made the island
of Diego Garcia available to a military ally for an indefinite period, for
the establishment of a military base; and
v. The forcible expulsion of the Chagossians.
1.34 Chapter 4 proceeds to describe the reactions and responses to the purported
detachment of the Chagos Archipelago from Mauritius, over the half century that
has since passed. It includes the statements and actions of Mauritius itself, of the
United Nations, and of important groups of States, including: the Organisation of
African Unity and the African Union; the Non-Aligned Movement; the Group of
77 and China; the African, Caribbean and Pacific Group of States; and the Africa-
South America Summit. It also describes the reactions of Mauritius and the
29 United Kingdom, Mauritius Constitutional Conference Report (24 Sept. 1965) (hereinafter
“Mauritius Constitutional Conference Report (24 Sept. 1965)”), p. 5, para. 20 (Annex 64).
16
international community to the forcible removal of all the inhabitants of the Chagos
Archipelago, and the prevention of their return by the United Kingdom ever since.
1.35 Moving on to the legal issues, Chapter 5 addresses the jurisdiction of the
Court to render the advisory opinion that has been requested, and the propriety of
its doing so.
1.36 The first part of the Chapter shows that the Court has jurisdiction to render
the Advisory Opinion, because the General Assembly is an organ duly authorised
to seek an Advisory Opinion from the Court, and because the request raises
questions of a legal character.
1.37 The Chapter then demonstrates that there are no reasons for the Court to
decline to render an opinion on the matters which the General Assembly has placed
before it. There is no “compelling reason” for the Court to decline to exercise the
advisory jurisdiction which the Charter and the Statute have conferred upon it, and,
on this basis and in keeping with all relevant precedents, it should exercise that
jurisdiction and render the opinion which the General Assembly has sought.
1.38 As Mauritius sets out in greater detail below, it has for decades sought to
bring the colonisation of the Chagos Archipelago to an end, raising the matter in a
range of international fora as well as directly with the administering power. That
does not make the dispute a “bilateral” one: although plainly any ongoing unlawful
colonisation will give rise to a sovereignty dispute between the State whose
territory is colonised and the administering power, this does not remove the matter
from the advisory jurisdiction of the Court. Otherwise the perverse result would be
that some of the most important legal issues in the international legal order could
17
not be the subject of advice from the Court in accordance with its advisory function:
this is not a result which would assist either the U.N. or its Member States.
1.39 The Court’s response to the first question would assist the General
Assembly in establishing whether under international law the process of
decolonisation of Mauritius was lawfully completed when Mauritius was granted
independence in 1968, or whether the excision of the Chagos Archipelago from
Mauritius by the administering power, and the continued exercise of colonial
authority over the “British Indian Ocean Territory”, prevents the lawful
decolonisation of Mauritius from being completed.
1.40 The Court’s response to the second question – which is inextricably
connected to the first question – is necessary for the General Assembly to determine
what legal consequences under international law follow from the continued
administration of the Chagos Archipelago by the administering power. This
includes, but is not limited to, the ongoing inability of Mauritius to implement a
programme for the resettlement of its nationals, in particular those of Chagossian
origin in the Chagos Archipelago.
1.41 In Chapter 6, Mauritius addresses the first question before the Court. The
Chapter reviews and analyses the law of decolonisation, from its origins through its
development over the course of the last century, and then applies the law to the
specific situation of Mauritius’ own incomplete decolonisation. In summary:
i. The main legal obligation in respect of decolonisation is that it must
accord fully with the right of self-determination under international law.
ii. The right of self-determination had already been firmly established by
the time of Mauritius’ independence in 1968 (and indeed by the time of
18
the excision of the Chagos Archipelago in 1965), including in the work
of the United Nations in supervising the process of decolonisation.
iii. Self-determination required the free and genuine consent of the
population concerned – for example as expressed through
referenda/plebiscites – so as to determine the future of the territory. This
was particularly so in cases in which straightforward independence of
the non-self-governing territory as a single unit was not envisaged.
iv. A corollary to this was that self-determination should not be impeded
by the arbitrary division (or dismemberment, or excision) of territory
before independence. The division of territory was legitimate only in
cases in which it ensued as a consequence of the freely expressed
consent of the people concerned.
v. The right of self-determination applied to the entire territory of
Mauritius, including the Chagos Archipelago. However, the Chagos
Archipelago was excised from the territory of Mauritius by the
administering power in service of its own interests rather than those of
the Mauritian people, who were never given an opportunity to express
their wishes as to the proposed division and dismemberment of the
territory.
vi. The pressure placed upon Mauritian Ministers at the Constitutional
Conference in 1965, in which it was made clear by the administering
power that independence was only available with the excision of the
Chagos Archipelago, vitiated any purported consent on the part of the
Mauritian people or their representatives.
vii. As a consequence, Mauritius came to independence in 1968 with its
territory having been dismembered less than three years earlier.
19
Dismembering Mauritius’ territory shortly prior to independence,
without the freely-expressed consent of the people, prevented Mauritius
from the effective exercise of its right of self-determination and violated
its associated right of territorial integrity, with effect from 1968 and at
all times thereafter.
viii. The inescapable conclusion is that the decolonisation of Mauritius was
not lawfully completed in 1968. At the point when Mauritius came to
independence with its territory having been dismembered, an
internationally wrongful situation crystallised. That wrongful situation
has continued to this day.
1.42 Chapter 7 then examines the consequences of this situation, in response to
the second question before the Court, which is inextricably connected to the first.
The question requests the Court’s legal opinion on the legal consequences that arise,
including, but not limited to, those that pertain to the resettlement of Mauritian
nationals, in particular those of Chagossian origin, in the Chagos Archipelago. As
Chapter 7 explains, Mauritius considers that the main legal consequences may be
summarised as follows:
i. The failure to complete the decolonisation of Mauritius is a continuing
wrongful act that persists to this day. This situation must be brought to
an end and full legality restored, a result that can only be achieved by
the completion of the process of decolonisation as required by
international law. Decolonisation will be complete when the colonial
administration has been fully withdrawn from the Chagos Archipelago,
Mauritius is able to exercise full rights of sovereignty, and the
administering power recognises Mauritius’ sovereignty over the
Archipelago.
20
ii. In regard to the timeframe for completing the process of decolonisation,
Mauritius notes that the Court stated in its Namibia Advisory Opinion
that the colonial administration must be withdrawn “immediately”.30
This temporal obligation is reinforced by the principle that all colonial
arrangements must be brought to a speedy end.
iii. Decolonisation elsewhere demonstrates that this can be achieved
quickly, often in less than a year. That is so even when the process is
much more complex than is the case with the Chagos Archipelago,
where the existing colonial administration is minimal.
iv. The existence of a military base on Diego Garcia provides no basis for
delaying the immediate completion of decolonisation. Mauritius
recognises the existence of the base and accepts its future operation in
accordance with international law.
v. In addition, and in particular, the administering power must cooperate
with Mauritius to facilitate its efforts to resettle, as a matter of urgency,
Mauritian nationals of Chagossian origin in the Archipelago and to
ensure the access of other Mauritian citizens to the Archipelago.
vi. Pending the immediate completion of decolonisation, the administering
power is under a legal obligation to act in the best interests of the people
of Mauritius. In order to effectuate the transfer of administrative
responsibilities to Mauritius in an orderly and timely manner, the
administering power must consult and cooperate with Mauritius to
ensure that: (a) the Chagos Archipelago is administered in a manner
30 See 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 (hereinafter “South West Africa (Advisory Opinion)”), p. 58, para. 133.
21
which promotes the economic well-being of the Mauritian people; (b)
Mauritius is afforded access to its natural resources; (c) the environment
of the Chagos Archipelago is fully protected; (d) Mauritius participates
in the authorisation, oversight and regulation of scientific research in
and around the Archipelago; (e) Mauritius is allowed to make
submissions to the U.N. Commission on the Limits of the Continental
Shelf in regard to the Archipelago; and (f) Mauritius is able to proceed
to a delimitation of the Archipelago’s maritime boundaries with the
Maldives.
vii. Third States and international organisations, including the United
Nations, are under an obligation to assist in the completion of the
process of decolonisation, and may not render any aid or assistance that
would help maintain the illegal situation presented by the continued
colonial administration of the Chagos Archipelago. The duty to assist in
completing Mauritius’ decolonisation is a positive one.
1.43 Mauritius is respectful of the fact that in addition to the matters it has raised
and is principally concerned with, the Court may itself identify additional matters
which it considers should be addressed, in responding to the second question. This
Written Statement is accompanied by four volumes of Annexes, comprising
documents which may be of assistance to the Court and that are not included in the
Dossier which the Secretariat of the United Nations has compiled for the purposes
of the present Request.
22
23
CHAPTER 2
GEOGRAPHY AND COLONIAL HISTORY
I. Introduction
2.1 This Chapter addresses matters of geography, as well as early and colonial
history. Mauritius was first occupied by the Dutch between 1638 and 1710, then
colonised by France from 1715 to 1810, followed by 157 years of British colonial
rule, from 3 December 1810 until Mauritius’ independence on 12 March 1968.
During the period of French colonial rule, the Chagos Archipelago was
administered as part of the colony of Mauritius.31 This continued without
interruption throughout the entire period of British colonial rule. In law and in
practice, the Chagos Archipelago has always been an integral part of Mauritius.32
II. Geography
2.2 The Republic of Mauritius comprises a group of islands in the Indian Ocean,
which collectively amount to approximately 1,950 square kilometres. The main
Island of Mauritius is located approximately 900 kilometres east of Madagascar.
The capital, Port Louis, is located on that island.
2.3 In addition to the main Island, the Republic of Mauritius includes the islands
of Cargados Carajos (the St. Brandon Group of 16 islands and islets), which lie 402
kilometres north; Rodrigues Island, situated 560 kilometres to the north-east;
Agalega, located 933 kilometres to the north; Tromelin, 580 kilometres to the north-
31 The Chagos Marine Protected Area Arbitration, Award (18 Mar. 2015), para. 58 (Dossier No.
409).
32 See Part IV below.
24
west; and the Chagos Archipelago, located approximately 2,200 kilometres to the
north-east.33 The Chagos Archipelago is approximately 517 kilometres from
Maldives, with which it shares a maritime boundary, and 9,114 kilometres to the
south-east of the United Kingdom.
2.4 The Chagos Archipelago is composed of numerous atolls and islands. In the
north are Peros Banhos, Salomon Islands and Nelsons Island; in the south-west are
Three Brothers, Eagle, Egmont and Danger Islands. Diego Garcia lies in the southeast
part of the Archipelago. The largest individual islands are Diego Garcia (27.20
square kilometres), Eagle (Great Chagos Bank, 2.45 square kilometres), île Pierre
(Peros Banhos, 1.50 square kilometres), Eastern Egmont (Egmont Islands, 1.50
square kilometres), île du Coin (Peros Banhos, 1.28 square kilometres) and île
Boddam (Salomon Islands, 1.08 square kilometres).
33 See The Constitution of the Republic of Mauritius (12 Mar. 1968) (as amended, including by the
Constitution of Mauritius (Amendment No. 3) Act of 17 Dec. 1991), Section 111(1) (Annex 96).
60°E 65°E 70°E 75°E 80°E
55°E
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60°E 65°E 70°E 75°E 80°E
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I N D I A N
O C E A N
ETHIOPIA
SOMALIA
MADAGASCAR
SRI
LANKA
Island of Mauritius
COMOROS
REPUBLIC OF MAURITIUS
REPUBLIC OF
MAURITIUS
Tromelin I.
Glorioso I.
Mayotte I.
Juan de Nova I.
Europa I.
Réunion I.
(FRANCE)
Bassas da India I.
SEYCHELLES
MALDIVES
Rodrigues I.
Agalega
Cargados
Carajos
Shoals
Chagos
Archipelago
Diego Garcia
Peros Banhos Salomon Is.
Egmont Is.
Prepared by: International Mapping
THE LOCATION OF THE
REPUBLIC OF MAURITIUS
Mercator Projection
WGS-84 Datum
(Scale accurate at 10°S)
0 50 100 150
Nautical Miles
200 250
0 100 200 300 400 500
Kilometers
Coastal Data: NOAA’s GSHHS coastal database (version 2.2.0) & NGA charts 702, 61550, 61551,
61591, 61601 & 61610.
Figure 1
26
Chagos
Archipelago
INDIAN
OCEAN
72°E
72°E
70°E
4°S
6°S
8°S
4°S
6°S
8°S
Egmont Is.
Danger I.
Eagle Is.
Nelsons I.
Diego Garcia
Peros Banhos Salomon Is.
West I. East I.
Middle I.
Three Brothers
Blenheim Reef
Colvocoresses Reef
Cauvin Bank
Centurion Bank
Ganges Bank
Pitt Bank
Speakers
Bank
Great
Chagos Bank
Figure 2
Prepared by: International Mapping
Coastal Data: NOAA’s GSHHS coastal database (version 2.2.0) & NGA chart 61610
THE CHAGOS ARCHIPELAGO
Mercator Projection
WGS-84 Datum
(Scale accurate at 6°S)
0 25 50 75
Nautical Miles
100
0 50 100 150 200
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28
29
2.5 Mauritius has a population of 1.26 million, of which about 119,600 reside
in the capital city of Port Louis.34 Sugar cane has traditionally been of vital
importance to the Mauritian economy; it is grown on 90% of all cultivated land and
was first introduced by Dutch settlers in the 17th century. Since attaining
independence, Mauritius’ economy has become increasingly diversified and now
encompasses inter alia tourism, financial services, textiles, and seafood processing
and exports.
III. Early and colonial history
2.6 The available evidence indicates that Mauritius was known to Arab sailors
as early as the 10th century,35 and that Phoenician sailors, as well as Malays and
Indonesians, may have visited the island even earlier.36 In the late 15th and 16th
centuries Portuguese expeditions came to the Indian Ocean,37 including that of
Vasco da Gama, who in 1498 rounded the Cape of Good Hope to enter the Indian
Ocean.38 Diogo Dias, a Portuguese captain, is said to have discovered Mauritius in
July 1500.39 The Island and its neighbours were collectively known as the
34 See Republic of Mauritius, Ministry of Finance & Economic Development, Mauritius in Figures
(2016), p. 8 (Annex 177). As of 1 July 2017, the resident population of Mauritius was estimated at
1,264,887, of which 1,221,975 live in the main Island of Mauritius, 42,638 in the Island of Rodrigues
and 274 in Agalega and St. Brandon. There are presently no Mauritian residents living in the Island
of Tromelin or in the Chagos Archipelago. (There may be some Mauritians working in Diego Garcia
on a contractual basis). See Republic of Mauritius, Population and Vital Statistics (Jan.-June 2017)
(2017) (Annex 188).
35 J. Addison & K. Hazareesingh, A New History of Mauritius (1993) (hereinafter “Addison &
Hazareesingh, History of Mauritius (1993)”), p. 1 (Annex 137).
36 Ibid.
37 Ibid., p. 2.
38 Ibid.
39 Alfred North-Coombes, La découverte des Mascareignes par les Arabes et les Portugais:
rétrospective et mise au point: contribution à l’histoire de l’océan Indien au XVIe siècle (1979), p.
141.
30
Mascarenes after another Portuguese captain, Pedro Mascarenhas. The Chagos
Archipelago (known to the Portuguese as Chagas) was discovered by Diego García
de Moguer, although it did not appear on Portuguese maps until 1538.40
2.7 Despite numerous expeditions, the Portuguese showed no interest in
colonising any of the islands discovered in the Indian Ocean, and Mauritius,
including the Chagos Archipelago, remained uninhabited. At the end of the 16th
century, the Dutch and English arrived in the Indian Ocean and respectively
established the Dutch and English East India companies to challenge the Portuguese
commercial hegemony.
2.8 In 1598 Dutch admiral Wybrandt van Warwyck landed at Grand Port in
south-west Mauritius and took possession of the island, naming it in honour of
Maurice of Nassau, Prince of Orange.41 The Dutch made no attempt to colonise
Mauritius for a number of years, opting instead for Indonesia as their first
permanent establishment in the region.42 In 1638 agents for the Dutch East India
Company occupied Mauritius, together with a contingent of convicts and slaves
from Indonesia and Madagascar. This first attempt to establish a permanent
settlement and colonise Mauritius lasted only 20 years, primarily motivated by a
desire to counter British and French plans to do so.43 The Dutch abandoned
Mauritius in 1710 and the French took control of the island in 1715, renaming it Île
40 Auguste Toussaint, History of Mauritius, 8th Ed., Macmillan (1977), p. 16.
41 Addison & Hazareesingh, History of Mauritius (1993), p. 3 (Annex 137).
42 Auguste Toussaint, History of Mauritius, 8th Ed., Macmillan (1977), p. 19.
43 Ibid.
31
de France. The Chagos Archipelago remained largely untouched during this period
and was rarely visited by Europeans.44
2.9 In 1744 a Dutch captain, van Keulen, reported the position of Diego Garcia,
and slaves were sought from Mozambique and Madagascar to work on coconut
plantations on the larger islands of the Chagos Archipelago. The first slave colony
was likely situated on Peros Banhos. The French surveyed the Archipelago in the
1740s, and claimed Diego Garcia in 1769. Permanent settlement on Diego Garcia
appears to have come about through a concession granted in 1783 by the French
colonial government in Île de France to a prominent French planter, Pierre Marie
Normande.45 However, there is also a historical account of the grant of Diego
Garcia by the French Governor in Île de France to Mr Dupuit de la Faye, in 1778.46
2.10 A coconut plantation society was gradually established in the Chagos
Archipelago by commercial enterprises under further concessions granted by the
French authorities in Île de France. Lying only 4-8° from the Equator, the climate
of the Chagos Archipelago was well suited to the cultivation of coconuts and, unlike
the Island of Mauritius further to the south, the Archipelago was less threatened by
tropical cyclones. The Chagos Archipelago became dependent on the coconut
plantations for the production of copra (dried coconut flesh used to produce coconut
oil).47 Most of the copra was sent from the Chagos Archipelago to Île de France,
44 Richard Edis, Peak of Limuria: The Story of Diego Garcia (1993) (hereinafter “Edis, Peak of
Limuria (1993)”), p. 24 (Annex 136).
45 David Vine, Island of Shame: The Secret History of the U.S. Military Base on Diego Garcia
(2009) (hereinafter “Vine, Island of Shame (2009)”), p. 23 (Annex 151).
46 Edis, Peak of Limuria (1993), p. 28 (Annex 136).
47 Coconut oil was of such importance to the Chagos Archipelago that the Archipelago has been
historically referred to as the “Oil Islands”.
32
but some coconut oil is known to have been extracted in Diego Garcia from 1793.48
During this period France was at war with Britain, and a British blockade caused a
significant rise in oil prices, spurring businessmen in Île de France to establish
more coconut plantations on Diego Garcia and the outlying islands.49
2.11 The French and British surveyed and mapped the islands of the Chagos
Archipelago in the later stages of the 18th century, as they became prizes fought
over by the two powers. A British party from the British East India Company set
off from Bombay in March 1786 with the intention of colonising Diego Garcia to
establish a provisions station. The British expedition landed on Diego Garcia in
April of that year and were surprised to come across French planters. The French
planters retreated to Île de France and the British expedition took possession of the
island, claiming it for Britain.50
2.12 On the news of the British expedition, the French Governor in Mauritius,
Vicomte de Souillac, sent a letter of protest to the British authorities in Bombay
and a French warship set off for the Chagos Archipelago.51 To avoid any conflict
with the French, the British Governor in Bombay, Rawson Hart Boddam, instructed
the British expedition to evacuate Diego Garcia immediately.52 Following the
departure of the British expedition, the French erected a stone marker on Diego
Garcia to proclaim France’s sovereignty over the island.53 Throughout the period
48 Edis, Peak of Limuria (1993), p. 32 (Annex 136). During the 1790s, salted fish, sea slugs and
rope made of coconut fibre were exported from the Chagos Archipelago.
49 Ibid., p. 32.
50 Ibid., pp. 29-30.
51 Ibid., pp. 30-31.
52 Ibid., p. 31.
53 Ibid.
33
of French rule in Île de France, France governed the Chagos Archipelago, along
with Seychelles, as dependencies of Île de France.54
2.13 French power in the Indian Ocean waned towards the end of the 18th century
when the British captured Seychelles in 1794, and eventually Île de France in 1810.
France ceded Île de France and all its dependencies to the U.K. through the Treaty
of Paris, signed on 30 May 1814. Article VIII refers collectively to the cession of
Mauritius and its dependencies:
His Britannic Majesty, stipulating for himself and his Allies,
engages to restore to His Most Christian Majesty, within the term
which shall be hereafter fixed, the Colonies, Fisheries, Factories,
and Establishments of every kind which were possessed by France
on the 1st of January, 1792, in the Seas and on the Continents of
America, Africa, and Asia; with the exception, however, of the
Islands of Tobago and St. Lucie, and of the Isle of France and its
Dependencies, especially Rodrigues and Les Séchelles, which
several Colonies and Possessions His Most Christian Majesty cedes
in full right and Sovereignty to His Britannic Majesty, and also the
portion of St. Domingo ceded to France by the Treaty of Basle, and
which His Most Christian Majesty restores in full right and
Sovereignty to His Catholic Majesty.55
2.14 After the British conquest of 1810, Île de France was renamed Mauritius.
Mauritius largely retained French laws, customs, culture, religion, language, and
way of life. Britain remained the administering power from 1810 until Mauritius’
independence in 1968.
54 The Chagos Marine Protected Area Arbitration, Award (18 Mar. 2015), para. 58 (Dossier No.
409).
55 Treaty of Paris (30 May 1814) (Dossier No. 445).
34
IV. The Chagos Archipelago has always been an integral part of the
territory of Mauritius
2.15 Like the French before them, the British administered the Chagos
Archipelago as a dependency of Mauritius, with the Archipelago treated as an
integral part of Mauritius without interruption throughout the entire period of
colonial rule. The Chagos Archipelago was connected to and administered in law
as a part of Mauritius until it was detached by Order in Council on 8 November
1965.56 The close and inextricable connection between the Chagos Archipelago and
the rest of the territory of Mauritius is evidenced by inter alia (i) constitutional,
legislative and administrative arrangements; (ii) economic, cultural and social
links; and (iii) conduct, practice and statements of the administering power, the
United Nations, the international community, and domestic and international
authorities.
A. CONSTITUTIONAL, LEGISLATIVE AND ADMINISTRATIVE ARRANGEMENTS
2.16 By the 1814 Treaty of Paris, Mauritius and its dependencies – including the
Chagos Archipelago – were formally ceded to the U.K. by France. The islands of
the Chagos Archipelago were included by the British colonial authorities in a list
of dependencies of Mauritius as early as 1826.57 The Chagos Archipelago remained
a dependency of Mauritius throughout British colonial rule, until the Archipelago
56 See Chapter 3, Part VIII.
57 See Sir Lowry Cole’s Despatch from Mauritius, List of Dependencies (British) of Mauritius
(1826), FCO 31/3836 (19 Sept. 1826) (Annex 1). The islands listed include Diego Garcia, Six Isles,
Trois Frères, Salomon and Peros Banhos. See also Records of the Chief Clerk’s and General
Departments, Records of the Colonial Office, U.K. National Archives, Selected maps from CO
700/Mauritius4, Minor Dependencies of Mauritius (circa 1829), available at https://files.pcacpa.
org/mu-uk/Annexes%20to%20Memorial/MM%20Charts.pdf (last accessed 14 Feb. 2018),
Figures 12-17.
35
was detached from Mauritius on 8 November 1965.58 Successive constitutions of
the dependent territory of Mauritius defined Mauritius as including its
dependencies:
a) Section 52 of the 1885 Letters Patent defined the colony of Mauritius as
“the Island of Mauritius and its Dependencies”;59
b) Section 1(1) of the Mauritius (Legislative Council) Order in Council
1947 and Section 2(1) of the Mauritius (Constitution) Order in Council
1958 defined the colony of Mauritius as “the Island of Mauritius
(including the small islands adjacent thereto) and the Dependencies of
Mauritius”;60
c) Section 90(1) of the Mauritius (Constitution) Order 1964, which was in
force up to the detachment of the Chagos Archipelago in 1965, defines
Mauritius as “the island of Mauritius and the Dependencies of
Mauritius”.61
2.17 Under British colonial rule the Governor of Mauritius was granted
legislative authority over the Chagos Archipelago. In 1815 the first British
Governor of Mauritius, Sir Robert Farquhar, issued a proclamation by which
British Acts of Parliament abolishing the slave trade “extend to every, even the
most remote and minute portion, of the Possession, Dominions and Dependencies
of Her Majesty’s Government”.62 By virtue of Ordinances of 1852 and 1853, the
58 See, e.g., Governor of Mauritius and the Council of Government, Courts Ordinance No. 5, 1945
(3 Mar. 1945), Section 2 (Annex 12).
59 Letters Patent, Section 52 (16 Sept. 1885) (emphasis added) (Annex 8).
60 The Mauritius (Legislative Council) Order in Council, 1947 (19 Dec. 1947), Section 1(1)
(emphasis added) (Annex 13); Mauritius (Constitution) Order in Council, 1958 (30 July 1958),
Section 2(1) (emphasis added) (Annex 16).
61 Mauritius (Constitution) Order, 1964 (26 Feb. 1964), Section 90(1) (emphasis added) (Annex
24).
62 Edis, Peak of Limuria (1993), p. 35 (Annex 136).
36
Governor of Mauritius was further empowered to extend laws and regulations of
Mauritius to its dependencies.63
2.18 In the late 19th and early 20th centuries, Special Commissioners and
Magistrates from Mauritius made visits to the Chagos Archipelago.64 Ordinance
No. 5 of 1872 provides that:
The Junior District Magistrate of the District of Port Louis, in the
Island of Mauritius, for the time being, is hereby constituted to be
the District Magistrate for the said Islands, and he, the said Junior
District Magistrate of Port Louis, and all the Officers of his Court,
shall have the same powers, authority and jurisdiction respectively,
to all intents and purposes, as if the said Islands formed part of the
District of Port Louis.65
2.19 Ordinance No. 41 of 1875 provided for the appointment of a permanent
Police and Stipendiary Magistrate for the Chagos Archipelago, headquartered in
Port Louis and tasked with visiting the islands for the purposes of “administer[ing]
Justice therein between private individuals and between Master and Servant”.66 The
Stipendiary Magistrate for the Chagos Archipelago was vested with the same
powers and authority as the Magistrates in Mauritius, and had a duty to report
directly to the Governor of Mauritius on the occasion of each visit.67 In addition to
63 Governor of Mauritius and the Council of Government, Ordinance No. 20 of 1852 (2 June 1852)
(Annex 3); Governor of Mauritius and the Council of Government, Ordinance No. 14 of 1853 (23
Mar. 1853) (Annex 4).
64 Edis, Peak of Limuria (1993), p. 43 (Annex 136).
65 Governor of Mauritius, its Dependencies, and the Council of Government Ordinance No. 5 of
1872 (10 Feb. 1872), Section 3 (Annex 5). The Islands to which the Ordinance applies are listed in
Section 5.
66 Governor of Mauritius, its Dependencies, and the Council of Government, Ordinance No. 41 of
1875 (28 Dec. 1875), Section 2 and Schedule A (Annex 6).
67 Ibid., Sections 2, 6 and 13. If any Servants or Labourers were found to have been detained in the
Chagos Archipelago against their will, or refused passage back to Mauritius, the Stipendiary
Magistrate was empowered to take necessary measures to return them to Mauritius. Ibid., Section
8. Complaints regarding any breach of the law committed in the Chagos Archipelago could be
37
the appointment of a Stipendiary Magistrate, provision was made for the Manager
of each of the islands in the Chagos Archipelago to be appointed Officer of the
Civil Status with responsibility for the notification of births, deaths and marriages
to the Registrar General of Mauritius.68
2.20 In 1904 an Ordinance on the administration of justice in the Lesser
Dependencies of Mauritius provided for the appointment of two District and
Stipendiary Magistrates, as well as Additional Magistrates if necessity arose.69 Like
the 1875 Ordinance, the Magistrates were vested with the powers and authority of
the District and Stipendiary Magistrates on the Island of Mauritius.70 Any warrant
for imprisonment could be executed in the Chagos Archipelago, or by the removal
of the person to a prison in Mauritius.71 As well as exercising jurisdiction over the
islands of the Chagos Archipelago, the Magistrates could in some circumstances
exercise jurisdiction in the main Island of Mauritius.72
brought before the Stipendiary Magistrate in Port Louis, who would “deal with the said offence
according to the provision of the laws of Mauritius applicable to such offence, and in the same way
as if the said offence had been committed in Port Louis, provided no judgment or order has been
given in the matter by the Stipendiary Magistrate of the said Islands”. Ibid., Section 10.
68 Ibid., Section 20.
69 Officer Administering the Government of Mauritius and its Dependencies, and the Council of
Government, Ordinance No. 4 of 1904 (18 Apr. 1904), Section 3 (Annex 9). The 1904 Ordinance
provides that each of the islands in the Chagos Archipelago should, as far as possible, be visited at
least once in every 12 months. Ibid., Section 4.
70 Ibid., Section 8.
71 Ibid., Section 20.
72 Ibid., Section 21. The 1904 Ordinance also provided that powers given to the Governor of
Mauritius under Article 284 of the Labour Law 1878 “shall apply mutatis mutandis to the Islands”.
Ibid., Section 37. While the day-to-day administration of the workforce was largely left to the
plantation managers, the Magistrates reviewed all punishments and fines imposed on the workforce
by the plantation managers. A former commissioner of the “BIOT” gave this account of visiting
Special Commissioners and District Magistrates: “They probed with surprising intrusiveness into
the island’s affairs and their painstaking reports give fascinating glimpses of life on the island. They
clearly saw it as their duty to guard against tyrannous behaviour on behalf of the management, which
could all too easily have sprung up. They were not slow to upbraid and punish any such
38
2.21 The administration of justice in the Chagos Archipelago and the rest of
Mauritius was further consolidated by a 1945 Ordinance relating to “the
Organisation and Jurisdiction of Courts of Law in Mauritius”.73 Under Section 83,
Magistrates could exercise jurisdiction throughout Mauritius, including the Chagos
Archipelago:
It shall be lawful for the Governor to appoint as many fit and proper
persons as may be needed to be Magistrates for Mauritius and the
Dependencies, and every person so appointed shall by virtue of such
appointment have and may exercise jurisdiction as a District
Magistrate in each and every district of the Colony and as Magistrate
of the Dependencies, subject to the provisions of section 87:
Provided that he shall exercise such jurisdiction only in such district
or districts or in such Dependencies as may be assigned to him by
the Governor.74
2.22 Mauritian Magistrates assigned to the Chagos Archipelago possessed and
exercised “the same rights, duties, powers and jurisdiction as any other District
Magistrate”.75 From 1945 onwards, Magistrates in Mauritius were given the title
“Magistrate for Mauritius and the Dependencies” or “District Magistrate for
manifestations”. See Edis, Peak of Limuria (1993), p. 43 (Annex 136). Edis also gives examples of
the fines and instructions issued by the Magistrates: “Pakenham Brooks, who paid a visit as Special
Magistrate in 1875, handed out sizeable fines both to an under-manager at Point Marianne for
striking a labourer and to James Spurs, the Manager at East Point, for unjustifiably imprisoning
three labourers without sufficient cause. The management at Point Marianne and Minni Minni were
also instructed to provide sick-bays for their workforce. Prices and weights and measures in the
Company’s shops were carefully checked and the labourers’ accommodation, the hospital and the
jail measured to ensure that they fulfilled minimum specifications.” Ibid., pp. 43-44.
73 Governor of Mauritius and the Council of Government, Courts Ordinance No. 5, 1945 (3 Mar.
1945) (Annex 12).
74 Ibid., Section 83. Section 87 provides that: “Whenever two or more Magistrates have been
appointed to any District, it shall be lawful for the Governor by Proclamation to declare that the
Court for the District shall sit in two or more Divisions, as the case may be, and the names by which
such Divisional Courts shall be designated.” Ibid., Section 87. See also Section 2, which sets out the
list of “Lesser Dependencies” to which the Ordinance applies.
75 Ibid., Section 86.
39
Mauritius and its Dependencies”.76 The Magistrates assigned to the Chagos
Archipelago toured all its main settlements and provided detailed reports on the
conditions of the infrastructure and the wellbeing of the workforce; they also gave
accounts of births, marriages and deaths.77
2.23 The colonial authorities in Mauritius also sent police forces to the Chagos
Archipelago to quell disturbances. A police presence from Mauritius is first
recorded in 1885 in Minni Minni (Diego Garcia), made up of an inspector, a
sergeant, and six constables.78 In 1931 a Magistrate from Mauritius and 12 police
officers were sent to Peros Banhos in order to suppress a disturbance.79
B. ECONOMIC, CULTURAL AND SOCIAL LINKS
2.24 By the time Britain became the administering power in Mauritius in 1810,
a plantation system of agriculture was common to both the Chagos Archipelago
and the main Island of Mauritius. In the early 1800s there were several hundred
slaves in the Archipelago, working on the coconut plantations and operating fishing
settlements. Following the arrival in 1783 of 22 enslaved Africans, hundreds more
came, predominantly from Mozambique and Madagascar.80 Some of the Mauritian
nationals who were removed from the Chagos Archipelago (“Chagossians”) after
76 See Extracts from the Mauritius Gazette, General Notices (1951-1965) (Annex 15).
77 See Ivanoff Dupont, Report of the Acting Magistrate for the Lesser Dependencies on the Islands
of the Chagos Group for the Year 1882 (11 June 1883) (Annex 7); Maurice Rousset, Acting
Magistrate for Mauritius and the Lesser Dependencies, Report of Mr. Magistrate M. Rousset on the
Chagos Group (19 June 1939) (Annex 10).
78 Edis, Peak of Limuria (1993), p. 50 (Annex 136). While the police presence was withdrawn three
years later on grounds of cost, Special Constables were appointed as needed.
79 Vine, Island of Shame (2009), p. 33 (Annex 151).
80 Ibid., pp. 21-24.
40
1967 can trace their roots back as much as 200 years to the first 22 slaves.81 Over
time, there was a well-established community in the Chagos Archipelago. By 1826
the Chagos Archipelago supported a plantation society numbering more than 400,82
and in 1880 the population had risen to around 760.83 The plantation society
provided employment, housing, pensions and education.84
2.25 Slavery was a defining feature of life in the Chagos Archipelago until its
abolition in Mauritius in 1833, when 60,000 slaves were set free.85 Some of the
freed slaves emigrated to work on the plantations on Diego Garcia, where the
native-born Mauritians (including those born in the Archipelago) very largely
outnumbered the small minority of plantation managers of European descent. In
1835, the British Assistant Protector of Slaves was sent to the Chagos Archipelago
to supervise the emancipation of former slaves.86 Special Justice Charles Anderson
visited the Archipelago three years later, and complete emancipation was achieved
in the Chagos Archipelago by 1840.87
2.26 Proprietors of plantations in the Chagos Archipelago resided in Mauritius,
and the on-site managers and administrators were also from Mauritius.88 During the
late 19th century, the Chagos Archipelago briefly served as a coal refuelling station,
following the opening of the Suez Canal in 1869. In 1882 the Orient and Pacific
81 Ibid., p. 21.
82 Ibid., p. 25.
83 Ibid., p. 29.
84 Ibid., p. 3.
85 Moonindra Varma, The Road to Independence (1976), p. 1.
86 Edis, Peak of Limuria (1993), pp. 36-38 (Annex 136).
87 Ibid., p. 38.
88 Ibid., pp. 37-39.
41
Steam Navigation Company established a coaling station on Diego Garcia.89 By
1883, three plantations on Diego Garcia were merged, creating the Société Huilière
de Diégo et Péros. This operated for almost eighty years until 1962, when a joint
Mauritian and Seychellois company, Chagos Agalega Ltd, acquired most of the
freeholds in the Archipelago.90
2.27 The Mauritians living in the Chagos Archipelago fished, raised chickens
and pigs, and maintained vegetable gardens. Shops sold items for everyday use, and
basic healthcare was available. Land was passed down through the generations and
the inhabitants built their own houses. A Catholic priest who visited Diego Garcia,
Father Roger Dussercle, wrote that in 1933 about 60% of the population were
“children of the islands”, having been born and raised there.91
2.28 The economy of the Chagos Archipelago was closely linked to the main
Island of Mauritius. The coconut oil extracted from copra produced in the Chagos
Archipelago, and the copra itself, were shipped to Mauritius.92 Some of the copra
shipped to Mauritius was then sold for export.93 The harvesting of coconuts
represented the major economic activity in the Chagos Archipelago, but efforts
were also made in the mid-19th century to diversify the economy by introducing
new crops such as maize, Indian corn, cotton, tobacco and citrus trees.94 By the end
of the 19th century the Chagos Archipelago was producing copra, coconut oil, salted
89 Ibid., pp. 47-48.
90 Ibid., p. 39.
91 Ibid., p. 57.
92 Ibid., pp. 32, 46, 58, and 71; Vine, Island of Shame (2009), p. 26 (Annex 151).
93 Vine, Island of Shame (2009), p. 31 (Annex 151).
94 Edis, Peak of Limuria (1993), p. 44 (Annex 136).
42
fish, vegetables, timber, honey, pigs, maize, wooden toys, guano and model boats.95
The inhabitants no longer solely worked on the plantations; some were blacksmiths,
bakers, mechanics, carpenters or had carved out some other specialised role.96
2.29 The colonial authorities in Mauritius subsidised a transport and cargo
service between Mauritius and the Chagos Archipelago. Goods from the
dependencies of Mauritius (including the Chagos Archipelago) were admitted on
the main Island of Mauritius free of duty.97 Throughout the 19th and 20th centuries,
the only point of arrival and departure from the Chagos Archipelago was via
Mauritius.
2.30 In addition to the economic ties, the Chagos Archipelago also shared close
cultural and social links with the main Island of Mauritius. Mauritian entrepreneurs
in the Chagos Archipelago adopted the same technology that was used in the sugar
plantations in Mauritius.98 Workers employed on the plantations had free passage
to Mauritius.99 The creole spoken by the inhabitants was similar to that spoken on
the main Island of Mauritius.100
2.31 Colonial authorities in Mauritius provided schoolteachers, midwives and
dispensers, and established nurseries in the main islands of the Chagos
95 Vine, Island of Shame (2009), p. 29 (Annex 151).
96 Ibid., p. 35.
97 Anonymous, An Account of the Island of Mauritius, and its Dependencies (1842) (“All goods, the
produce of the dependencies of Mauritius, or the Island of Madagascar, with the exception of ebony,
if imported in British bottoms, are admitted free of duty”) (Annex 2).
98 Vine, Island of Shame (2009), p. 25 (Annex 151).
99 Ibid., p. 35.
100 Ibid., p. 29.
43
Archipelago.101 They also provided a refuse removal service and maintained a
meteorological station on Diego Garcia.102 There were regular missions to survey
health conditions, visits by officials from the Mauritian Labour Office, and
inspections by various technical officers.103 Amateur radio enthusiasts were
recruited to develop closer communications between the Island of Mauritius and
the Chagos Archipelago.104
C. RECOGNITION OF THE CHAGOS ARCHIPELAGO AS AN INTEGRAL PART OF THE
TERRITORY OF MAURITIUS
2.32 Throughout the period of British colonial rule, the Chagos Archipelago was
always treated by the administering power, in law and in practice, as an integral
part of the territory of Mauritius. In the period prior to, during and after the
detachment of the Chagos Archipelago, British authorities recognised the Chagos
Archipelago as a full and constitutive part of Mauritius. As explained in Chapter 6
below, the unit of self-determination that enjoyed the right to decolonisation in
international law and U.N. practice was the whole of the territorial unit of
Mauritius. The U.N. and the international community have recognised the entire
territory of Mauritius – including the Chagos Archipelago – as the unit of selfdetermination.
105
101 Ibid., p. 35; Robert Newton, Report on the Anglo-American Survey in the Indian Ocean, C.O.
1036/1332 (1964) (hereinafter “Newton, Survey in the Indian Ocean (1964)”), para. 52 (Annex 22).
102 Vine, Island of Shame (2009), p. 35 (Annex 151); Newton, Survey in the Indian Ocean (1964),
para. 52 (Annex 22).
103 See Alfred J. E. Orian, Department of Agriculture, Mauritius, Report on a Visit to Diego Garcia
(9-14 Oct. 1958) (Annex 17); Vine, Island of Shame (2009), p. 28 (Annex 151); Newton, Survey in
the Indian Ocean (1964), para. 52 (Annex 22).
104 Vine, Island of Shame (2009), p. 35 (Annex 151). The British developed communications and
meteorological stations to connect the Chagos Archipelago with Mauritius and Seychelles.
105 See Chapter 4, Part III.
44
1. The administering power recognised the Chagos Archipelago as an
integral part of Mauritius
2.33 In the period immediately prior to the detachment of the Chagos
Archipelago, British representatives at all levels expressed the unambiguous view
that the Chagos Archipelago was part of the territory of Mauritius. By way of
example:
A note from the Colonial Office dated 10 May 1965 addressed proposals
to detach the Chagos Archipelago, and stated that it would be necessary
to compensate the Government of Mauritius “for their loss of
territory.”106 Likewise, in a telegram dated 19 July 1965, the Colonial
Secretary expressed the view that it would be necessary to compensate
the Government of Mauritius “in respect of loss of territory”.107
On 27 April 1965, the Colonial Secretary circulated a note in which he
recognised that the Chagos Archipelago is “legally established” as being
part of the colony of Mauritius, and that separation would require “the
making of amendments to existing constitutional instruments.”108
A Foreign Office telegram addressed to the U.K. Embassy in
Washington dated 30 April 1965 stated that “[i]t is now clear that in
each case the islands are legally part of the territory of the colony
concerned.”109
106 Letter from D. J. Kirkness, PAC.93/892/01 (10 May 1965), para. 1 (Annex 35).
107 Telegram from the Secretary of the State for the Colonies to Mauritius and Seychelles, Nos. 198
and 219, FO 371/184526 (19 July 1965), para. 2(ii) (Annex 37).
108 United Kingdom, Defence and Oversea Policy Committee, Defence Interests in the Indian
Ocean: Legal Status of Chagos, Aldabra, Desroches, and Farquhar - Note by the Secretary of State
for the Colonies, O.P.D. (65) 73 (27 Apr. 1965), para. 2 (Annex 32).
109 Telegram from the U.K. Foreign Office to the U.K. Embassy in Washington, No. 3582, FO
371/184523 (30 April 1965), para. 3 (Annex 33).
45
On 13 July 1965, an official at the Colonial Office acknowledged that
“[w]e are all agreed that the Islands must be constitutionally separate
from the Colonies of which at present they form part.”110
A memorandum dated 26 August 1965 jointly prepared by the Deputy
Secretary of State for Defence and the Parliamentary Under-Secretary
of State for Foreign Affairs recognises that the islands of the Chagos
Archipelago “belong to Mauritius” and that the U.S. Government
“should be asked to contribute to the cost of compensating Mauritius
and Seychelles for the loss of their islands.”111
2.34 Before granting independence to Mauritius, the administering power paid
£3 million in compensation to the Mauritius Government and made undertakings
to Mauritius, including that:
the Chagos Archipelago would be returned to Mauritius if no longer
needed for defence purposes;
navigational and meteorological facilities, as well as fishing rights,
would remain available to Mauritius; and
the benefit of any minerals or oil discovered in or near the Chagos
Archipelago should revert to Mauritius.112
2.35 It is inconceivable that the administering power would have paid
compensation to Mauritius, and entered into these undertakings for the benefit of
Mauritius, if it did not regard the Chagos Archipelago as an integral part of the
110 Note from Trafford Smith of the U.K. Colonial Office to J. A. Patterson of the Treasury, FO
371/184524 (13 July 1965), para. 3 (Annex 36).
111 Memorandum by the U.K. Deputy Secretary of State for Defence and the Parliamentary Under-
Secretary of State for Foreign Affairs on Defence Facilities in the Indian Ocean, OPD(65)124 (26
Aug. 1965) (hereinafter “Memorandum on Defence Facilities in the Indian Ocean (26 Aug. 1965)”),
paras. 1 and 5(c) (Annex 48).
112 The Chagos Marine Protected Area Arbitration, Award (18 Mar. 2015), para. 77 (Dossier No.
409).
46
territory of Mauritius. The administering power’s consistent conduct vis-à-vis the
islands’ inhabitants reflects a clear understanding that Mauritius and the Chagos
Archipelago were part of the same territorial unit:
The administering power made legal provision for the Chagossians to
become Mauritian citizens automatically on the independence of
Mauritius;113
The Chagossians were taken to Mauritius when they were forcibly
removed from the Chagos Archipelago, and most of them were resettled
there; and
In 1982 the administering power settled a claim brought by one of the
former inhabitants of the Chagos Archipelago on the basis of a £4
million contribution to a Mauritian trust fund for the benefit of the
Chagossians.114
2.36 In the years that followed the detachment, there continued to be recognition
by senior British officials and politicians in various statements to Parliament that
the Chagos Archipelago has been part of the territory of Mauritius:
On 21 October 1975, in response to a parliamentary question, the then
British Minister of State for Foreign and Commonwealth Affairs, David
Ennals, explained that grants had been paid to Mauritius “as
113 This was by virtue of Section 20(4) of the Independence Constitution of Mauritius set out in the
Schedule to the Mauritius Independence Order 1968, which provided in effect that with the
exception of persons with fathers born in Seychelles, a person born in the Chagos Archipelago
before the “BIOT” was created was to be regarded as having been born in Mauritius and therefore
automatically entitled to Mauritian citizenship on independence. See United Kingdom, The
Mauritius Independence Order 1968 and Schedule to the Order: The Constitution of Mauritius (4
Mar. 1968), Section 20(4) (Annex 95).
114 See R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth
Affairs, [2008] UKHL 61 (22 Oct. 2008), para. 13.
47
compensation for the loss of sovereignty over the Chagos
Archipelago.”115
On 11 July 1980, the then British Prime Minister, Margaret Thatcher,
told Parliament that “in the event of the islands no longer being required
for defence purposes, they should revert to Mauritius.”116
The term “revert” was also used by a Parliamentary Under Secretary of
State at the Foreign Office in a statement to Parliament on 23 June
1977,117 and it appears in notes prepared in response to a parliamentary
question in the House of Lords on 23 July 1980.118
2.37 It follows from the term “revert” that Prime Minister Thatcher understood
the Chagos Archipelago to have been part of the territory of Mauritius prior to
detachment. The same may be said of Mr Ennals’ reference to “loss of sovereignty”.
2.38 By Article VIII of the 1814 Treaty of Paris, Mauritius was ceded to the U.K.
including “its Dependencies, especially Rodrigues and Les Séchelles”.119 Upon
Mauritius’ independence, Rodrigues automatically remained part of the territory of
the newly independent State of Mauritius. Officials at the Foreign Office accepted
that the Chagos Archipelago would have been subject to the same automatic
consequence had it not been detached from Mauritius. Following the adoption of a
resolution by the Organization of African Unity in July 1980, which recognised that
115 U.K. House of Commons, Written Answers: Foreign and Commonwealth Affairs - Indian Ocean,
FCO 31/3836 (21 Oct. 1975), p. 130 (emphasis added) (Annex 106).
116 U.K. House of Commons, Written Answers: Diego Garcia, FCO 31/3836 (11 July 1980)
(emphasis added) (Annex 120).
117 U.K. House of Commons, “Written Answers: British Indian Ocean Territory” (23 June 1977)
(emphasis added) (Annex 112).
118 United Kingdom, House of Lords Parliamentary Question for Oral Answer: Notes for
Supplementaries, FCO 31/2759 (23 July 1980), para. 3 (emphasis added) (Annex 121).
119 See para. 2.13. The Seychelles was established as a separate colony from Mauritius in 1903.
48
“Diego Garcia has always been an integral part of Mauritius”,120 an official at the
Foreign Office Research Department concluded that:
Diego Garcia and the other Chagos islands were among the
dependencies of Mauritius ceded to Britain by France under the
Treaty of Paris (1814). Britain continued to administer them from
Port Louis (or at least – if not actively to administer – they were
included by Britain in official catalogues of the dependencies of
Mauritius ever since the first schedule was compiled in 1826). From
1921 onwards the Chagos Archipelago, Agalega, and St. Brandon
were known as the Lesser Dependencies of Mauritius. In 1965 the
Chagos islands were detached from Mauritius to form part of the
British Indian Ocean Territory. Agalega and St. Brandon remained
part of Mauritius and since independence in 1968 have formed part
of the Mauritian state; had the Chagos islands not previously been
detached they would presumably have done the same.121
2.39 Likewise, a “Commissioner” of the “British Indian Ocean Territory”, Nigel
Wenban-Smith, expressed the view that, but for the detachment, the Chagos
120 Organization of African Unity, Assembly of Heads of State and Government, 17th Ordinary
Session, Resolution on Diego Garcia, AHG/Res.99(XVII) (1-4 July 1980) (hereinafter “Resolution
on Diego Garcia (1-4 July 1980)”) (Annex 118).
121 Note from M. Walawalkar of the African Section Research Department to Mr Hewitt, FCO
31/2759 (8 July 1980), para. 2 (emphasis added) (Annex 119). The text as quoted is the original
printed version. There are handwritten annotations to the last sentence to the effect that: “Agalega
and St. Brandon remained attached to Mauritius and since independence in 1968 have remained
dependencies of the Mauritian state; had the Chagos islands not previously been detached they
would presumably have done the same”. The Foreign Office official, Margaret Walawalkar, went
on to explain that: “I suspect that the reasoning behind the statement that Diego Garcia has ‘always’
been ‘an integral part’ of Mauritius may lie along these lines. Territorial integrity and the
inviolability of colonially-inherited boundaries are two of the main consensus principles which have
held the OAU together. It is obvious that if any exceptions are made the arbitrary nature of
practically every international boundary in Africa would be open to dispute. In its application to
island-states – which present their own problems – the OAU in general has a short memory.
Although historically there are frequent cases of detachment of island dependencies for
administrative convenience by both Britain and France, eg. the creation of the separate colony of
Seychelles in 1903 out of the colony of Mauritius, the OAU in general only concerns itself with the
situation at, or shortly before, independence. Thus ‘always’ should not be taken too literally, for
although the Chagos archipelago and the island of Mauritius are far apart and can have had no
possible connection until both were settled by the French at different times in the eighteenth century,
1814 onwards must seem a very long period of unbroken association under one colonial power to
the OAU”. Ibid., para. 3.
49
Archipelago would have become part of the independent State of Mauritius.
Reflecting on Mr Ennals’ statement to Parliament, Mr Wenban-Smith wrote that:
If reminded of the 1975 answer, we should probably have to say
something to the effect that all that Mauritius was being
compensated for was not receiving the sovereignty it would
otherwise have acquired on independence.122
2.40 Against the backdrop of growing international pressure for the return of the
Chagos Archipelago to Mauritius in the early 1980s, a Foreign Office legal advisor
– Michael Wood – warned against the use of the words “revert” or “reversion”,
urging instead that the words “cede” or “transfer” be used.123 However, the legal
advisor acknowledged that the Chagos Archipelago “was for a long time part of the
Colony of Mauritius” before it was “removed from Mauritius”.124
122 Letter from W. N. Wenban-Smith of the Foreign and Commonwealth Office to M. J. Williams,
with draft, FCO 31/3835 (25 Mar. 1983), para. 6 (emphasis added) (Annex 128). An earlier draft of
this letter states “If reminded of the 1975 answer, we should be obliged to say that all that Mauritius
was being compensated for was the delay in receiving the sovereignty they would have acquired on
independence”. Ibid., para. 5 (draft).
123 Letter from M. C. Wood to Mr Hewitt, FCO 31/2759 (22 Sept. 1980) (Annex 122).
124 Ibid. Another Foreign Office legal advisor, Arthur Watts, opposed the words “revert” and
“return” on the basis that: “[b]oth suggest the Chagos were previously Mauritius, and that that state
of affairs will be resumed: the first limb of that proposition is, of course, not one we would readily
go along with, at least without a lot of supplementary explanation about ‘administrative
conveniences’ and so on”. See Note from A. Watts to Mr Campbell, FCO 31/3836 (received 23 Aug.
1983) (Annex 134). It was proposed by a diplomat of the U.K. Mission to the U.N. that a “new
locus classicus” be developed to “expunge the ambiguities and inconsistencies that have appeared
in previous Ministerial pronouncements” which did “not square with the policy we are under
instructions to defend (Mr Ennals’ 1975 statement and the Prime Minister’s answer in July 1980 are
I think particularly unfortunate examples).” See Letter from D. A. Gore-Booth to W. N. Wenban-
Smith of the East African Department, FCO 58/3286 (15 July 1983), para. 3 (Annex 133). In a letter
dated 25 March 1983, the then “Commissioner” of the “British Indian Ocean Territory” remarked
of Mr Ennals’ statement that: “This was, and is, a potentially embarrassing statement.” See Letter
from W. N. Wenban-Smith of the Foreign and Commonwealth Office to M. J. Williams, with draft,
FCO 31/3835 (25 Mar. 1983), para. 3 (Annex 128).
50
2. The U.N. and the international community
2.41 Following the detachment of the Chagos Archipelago, the U.N. General
Assembly adopted Resolution 2066 (XX), by which the administering power was
invited “to take no action which would dismember the Territory of Mauritius and
violate its territorial integrity”.125 The U.N. General Assembly repeated the
requirement to maintain the territorial integrity of Mauritius in Resolutions 2232
(XXI) and 2357 (XXII).126 It is clear from these resolutions that the U.N. has
regarded the Chagos Archipelago as an integral part of the territory of Mauritius.
2.42 The great majority of States have consistently rejected the argument that the
Chagos Archipelago is not part of Mauritius.127 When a British representative in
the U.N. Committee of 24 stated that “the British Indian Ocean Territory was not
part of Mauritius and Seychelles”, the Tanzanian delegation:
rejected that argument, since the United Kingdom Government
would not have agreed to pay compensation to the inhabitants of the
islands concerned if those islands were not an integral part of
Mauritius and the Seychelles.128
125 Question of Mauritius (16 Dec. 1965), para. 4 (Dossier No. 146).
126 U.N. General Assembly, 21st Session, Question of American Samoa, Antigua, Bahamas,
Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and
Ellice Islands, Grenada, Guam, Mauritius, 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/2232(XXI) (20 Dec.
1966) (Dossier No. 171); U.N. General Assembly, 22nd Session, Question of American Samoa,
Antigua, Bahamas, Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands,
Dominica, Gilbert and Ellice Islands, Grenada, Guam, Mauritius, Montserrat, New Hebrides, Niue,
Pitcairn, St. Helena, St. Kitts-Nevis-Anguilla, St. Lucia, St. Vincent, Seychelles, Solomon Islands,
Swaziland, Tokelau Islands, Turks and Caicos Islands and the United States Virgin Islands, U.N.
Doc. A/RES/2357(XXII) (19 Dec. 1967) (Dossier No. 198).
127 See Chapter 4, Part III.
128 U.N. General Assembly, 21st Session, Report of the Special Committee on the Situation with
regard to the Implementation of the Declaration on the Granting of Independence to Colonial
51
2.43 The Organization of African Unity (and later the African Union), the Non-
Aligned Movement, the Group of 77 and China, the African, Caribbean and Pacific
Group of States, and the Africa-South America Summit have all adopted
declarations and resolutions expressly recognising the Chagos Archipelago as part
of the territory of Mauritius.129
3. Domestic and international judicial findings
2.44 There is also judicial support, domestic and international, for the contention
that the Chagos Archipelago has been an integral part of the territory of Mauritius.
In a 2016 judgment of the U.K. Supreme Court, Lord Kerr (with whom Lady Hale
agreed) held that:
The Chagos Islands are in the middle of the Indian Ocean. Since the
early 19th century they had been part of the British colony of
Mauritius but they were detached from that country before
Mauritius gained its independence in 1968.130
2.45 In an earlier 2008 judgment of the U.K. House of Lords (the predecessor to
the Supreme Court), Lord Hoffmann held that: “It is true that the territory of BIOT
was, until the creation of the colony in 1965, part of Mauritius”.131
Countries and Peoples, U.N. Doc. A/6300/Rev.1 (1966), Chapter XIV – Mauritius, Seychelles and
St. Helena, para. 176 (emphasis added) (Dossier No. 253).
129 See Chapter 4, Part III. B.
130 R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs,
[2016] UKSC 35 (29 June 2016), para. 81 (emphasis added).
131 R (on the application of Bancoult) v. Secretary of State for Foreign Commonwealth Affairs,
[2008] UKHL 61 (22 Oct. 2008), para. 64. See also ibid., para. 4: “The islands were a dependency
of Mauritius when it was ceded to the United Kingdom by France in 1814 and until 1965 were
administered as part of that colony.”
52
2.46 International judges have come to the same conclusion as that reached by
Lord Kerr, Lord Hoffmann and Lady Hale. In 2011, seven judges of the Fourth
Section of the European Court of Human Rights considered an application alleging
that the forced removal of the Chagossians, and the prohibition against their return,
amounted to a breach of Articles 3, 6, 8, 13, and Article 1 of Protocol 1, of the
European Convention of Human Rights. As to the territorial scope of the
Convention, the Court noted that the U.K. had made a declaration in 1953 by which
the application of the Convention was extended to Mauritius. Although the
declaration only referred to “Mauritius”, the Court interpreted this to include the
Chagos Archipelago. It held that:
until 8 November 1965, the Chagos Archipelago was part of the
Colony of Mauritius in respect of which the United Kingdom had
made a declaration under former Article 63 of the Convention (now
Article 56) acknowledging the Colony as territory for whose
international relations the United Kingdom was responsible and to
which the Convention was to apply.132
2.47 In the Chagos Marine Protected Area Arbitration proceedings, Judges
Kateka and Wolfrum reached the same conclusion. In so doing they made clear
their conclusion that “the Chagos Archipelago was more closely linked to Mauritius
than is conceded by the United Kingdom”, and that it was “not appropriate to
consider the Archipelago as an entity, somewhat on its own, which the United
Kingdom could decide on without taking into account the views and interests of
Mauritius.”133
132 Chagos Islanders v. United Kingdom, Decision on Application No. 35622/04, European Court
of Human Rights (11 Dec. 2012) (emphasis added), para. 61.
133 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), paras. 68-69 (Dossier No. 409).
53
V. Conclusion
2.48 The historical and colonial record clearly demonstrates that the Chagos
Archipelago has been an integral part of Mauritius. Under French colonial
occupation and then throughout more than 150 years of British rule, Mauritius and
the Chagos Archipelago were governed as part of the same, indivisible unit. The
U.N. and the international community have recognised that the Chagos Archipelago
has always been an integral part of Mauritius. Judges in the U.K.’s highest court, at
the European Court of Human Rights and in international arbitral proceedings have
consistently expressed the view that the Chagos Archipelago has been part of the
colony of Mauritius. There is no legal or judicial authority of which Mauritius is
aware in support of a contrary position. The conduct and practice of British
authorities in particular, including statements by U.K. officials and representatives
at the highest levels, are incompatible with a view which does not recognise that
the main Island of Mauritius and the Chagos Archipelago have always been treated
in law and in fact as part of the same territory.
54
55
CHAPTER 3
THE PROCESS OF DECOLONISATION AND THE DETACHMENT OF
THE CHAGOS ARCHIPELAGO FROM MAURITIUS
I. Introduction
3.1 This chapter addresses the decolonisation of Mauritius, from the limited
measures of self-government in the early 1940s to the 1965 Constitutional
Conference in London, when the British Government announced that it had reached
the conclusion that “it was right that Mauritius should be independent and take her
place among the sovereign nations of the world.”134 Two and a half years before
Mauritius achieved independence, however, the administering power detached the
Chagos Archipelago from its territory, creating what it called the “British Indian
Ocean Territory” (also referred to as “BIOT”).135 Five decades after achieving
independence, the decolonisation of Mauritius remains incomplete.
3.2 In setting out the historical and factual background, this chapter addresses:
Mauritius’ struggle for independence,136 and the concurrent
development by the administering power of a secret plan to detach the
Chagos Archipelago;137
Talks with Mauritian Ministers at the 1965 Constitutional Conference
in London, at which the colonial authorities were to decide on
134 Mauritius Constitutional Conference Report (24 Sept. 1965), para. 20 (Annex 64).
135 In addition to the Chagos Archipelago, the “BIOT” also comprised the islands of Aldabra,
Desroches and Farquhar belonging to the Seychelles. These islands were subsequently returned to
Seychelles on 29 June 1976. See Section IX. B. below.
136 See Section II below.
137 See Section III below.
56
Mauritius’ final status.138 As explained below, these talks were carried
out against the backdrop of:
i. uncertainty about whether or not Mauritius would be granted
independence;139
ii. resolve on the part of the British Foreign Office and Ministry of
Defence to detach the Chagos Archipelago;140
iii. opposition by Mauritian Ministers to the detachment of the Chagos
Archipelago;141 and
iv. insistence on the part of the Colonial Secretary that Mauritian
Ministers must “agree” to the detachment of the Chagos
Archipelago, to shield the U.K. from domestic and international
criticism, including at the U.N.;142
Private meetings on “defence matters” devised by the colonial
authorities, for the purpose of securing the “agreement” of Mauritian
Ministers to the detachment of the Chagos Archipelago;143
A meeting held on 23 September 1965 between Sir Seewoosagur
Ramgoolam (the then leader of the largest political party in Mauritius)
and the British Prime Minister, Harold Wilson, during which Mr Wilson
made clear that Mauritius would not be granted independence unless
138 See Section IV below.
139 See Section IV. A. below.
140 See Section IV. B. below.
141 See Section IV. C. below.
142 See Section IV. D. below.
143 See Section V below.
57
Premier Ramgoolam and his Ministerial colleagues “agreed” to the
detachment of the Chagos Archipelago;144
The U.K.’s undertakings to the Mauritian Government,145 and the
subsequent detachment of the Chagos Archipelago by Order in Council;
and146
The 1966 Agreement by which the U.K. made the Chagos Archipelago
available to the U.S. Government for an indefinite period for the
establishment of a military base on Diego Garcia, and subsequent
developments, including the forcible removal of the inhabitants of the
Chagos Archipelago and the return to Seychelles of three islands
forming part of “BIOT”.147
II. The struggle for independence
3.3 When the United Nations was established in 1945, almost one third of the
world’s population lived in non-self-governing territories dependent on
administering powers.148 With the entry into force of the U.N. Charter in 1945, and
in the face of severe financial constraints at the end of the Second World War, the
British Government agreed in principle to work towards self-government and
independence for all of its colonial territories. With rising anti-colonialist sentiment
and the accession of India and Pakistan to independence in August 1947, it became
increasingly difficult for the British Government to resist demands for self-
144 See Section VI below.
145 See Section VII below.
146 See Section VIII below.
147 See Section IX below.
148 U.N. Department of Public Information, What the U.N. Can Do to Assist Non-Self-Governing
Territories (June 2017), p. 8 available at
http://www.un.org/en/decolonization/pdf/What%20the%20UN%20can%20do.pdf (last accessed
15 Feb. 2018).
58
determination, including in Mauritius.149 This shift reflects the principles enshrined
in the Atlantic Charter, issued by U.K. Prime Minister Winston Churchill and U.S.
President Franklin D. Roosevelt on 14 August 1941. By the Charter, the two leaders
sought to make known “certain common principles in the national policies of their
respective countries on which they base their hopes for a better future for the
world”, including:
First, their countries seek no aggrandizement, territorial or other;
Second, they desire to see no territorial changes that do not accord
with the freely expressed wishes of the peoples concerned;
Third, they respect the right of all peoples to choose the form of
government under which they will live; and they wish to see
sovereign rights and self government restored to those who have
been forcibly deprived of them… .150
3.4 In 1947 the colonial authorities established a new Constitution for
Mauritius, by the Mauritius (Legislative Council) Order in Council. The 1947
Constitution introduced two new bodies: a Legislative Council, consisting of the
British Governor as President, 19 elected members, 12 nominated by the Governor
and 3 ex-officio members (the British Colonial Secretary, the Procureur and the
Financial Secretary); and an Executive Council which included four elected
Legislative Council members.151
3.5 Elections under the new Constitution were held in 1948. Out of a population
of over 420,000, the electorate was composed of no more than 72,000.152 The
149 Addison & Hazareesingh, History of Mauritius (1993), p. 91 (Annex 137).
150 The Atlantic Charter (14 Aug. 1941) (Annex 11).
151 Moonindra Varma, The Road to Independence (1976), pp. 43-46.
152 Sydney Selvon, A Comprehensive History of Mauritius (2012), vol. 2, p. 98. In the previous
election held in 1936 there had been only 11,427 registered voters. See Addison & Hazareesingh,
History of Mauritius (1993), p. 92 (Annex 137).
59
Mauritius Labour Party (“MLP”) secured 12 of 19 seats in the Legislative Council,
and increased this tally to 14 seats in the 1953 election, just short of an overall
majority (as a result of the presence on the Council of the 12 members nominated
by the Governor and the 3 ex-officio members).
3.6 After the 1953 election, the MLP voiced concern that the British Governor,
rather than exercising his right to nominate members to the Legislative Council to
reflect the overwhelming preference that electors had shown for MLP candidates,
had flouted the wishes of the electorate.153
3.7 In 1955, at the request of the MLP, the British Colonial Secretary agreed to
receive a Mauritian delegation to discuss further constitutional reforms, at a
Constitutional Conference held in London in July of that year. The MLP demanded
universal suffrage and a Ministerial system of government, by which elected
members of the Legislative Council would have power to manage Mauritius’
internal affairs without interference from the colonial authorities.154 The MLP
sought to curtail the powers of the British Governor, which included control over
the civil service, finance and the judiciary.155
3.8 A second Constitutional Conference was held in February 1957, followed
by a new Constitution for Mauritius in 1958.156 The Legislative Council was
153 Addison & Hazareesingh, History of Mauritius (1993), p. 92 (Annex 137).
154 Moonindra Varma, The Political History of Mauritius, Vol. 1: (1883–1983) (2011) (hereinafter
“Varma, The Political History of Mauritius (2011)”), p. 92.
155 Ibid.
156 Mauritius (Constitution) Order in Council, 1958 (30 July 1958) (Annex 16). At the second
Constitutional Conference in February 1957, the Colonial Secretary proposed to implement
universal suffrage. He proposed to enlarge the Legislative Council to 40 elected members, but 12
members would still be nominated by the Governor. The Executive Council would consist of seven
members elected by the Legislative Council, three ex-officio members and two nominated by the
Governor.The Colonial Secretary’s proposals were debated in the Legislative Council but the MLP,
60
expanded to 40 elected members, three ex-officio members, and 12 members
appointed by the Governor.157 The non-elected Executive Council was designated
as the “principal instrument of policy”.158 The British Governor had a reserved
power to make and amend laws without the consent of the Legislative Council if it
was deemed “expedient in the interest of public order, public faith or good
government”.159 No Bill could become law without the Governor’s assent (acting
on behalf of the Queen), and the British Colonial Secretary had the express power
to disallow any law.160 By these means the colonial authorities retained power and
control over Mauritius.
despite having 13 votes in the Council, was defeated because the three members of the largely
conservative Ralliement Mauricien party (which later became the Parti Mauricien Social Démocrate
and represented the interests of the wealthy Franco-Mauritians) voted with the nominated and exofficio
members. A large majority of elected members had found themselves in the minority. As a
result of the imposition of these new constitutional measures, the MLP’s members staged a walkout
and boycotted the Legislative Council, leading to a serious constitutional crisis.These new measures
were completely unacceptable to the MLP, which accused the British Government of blindly
accepting the views of the Governor. The new constitutional measures were not deemed to go far
enough to stem the Governor’s power and absolute discretion to control Mauritian political life. See
Moonindra Varma, The Road to Independence (1976), pp. 68-70; Sydney Selvon, A Comprehensive
History of Mauritius (2005), p. 414.
157 Mauritius (Constitution) Order in Council, 1958 (30 July 1958), Sections 17-18 (Annex 16).
158 Ibid., Section 5.
159 Ibid., Section 43(1) (“If the Governor considers that it is expedient in the interest of public order,
public faith or good government (which expressions shall, without prejudice to their generality,
include the responsibility of the Colony as a territory within the Commonwealth, and all matters
pertaining to the creation or abolition of any public office or to the salary or other conditions of
service of any public officer), that any Bill introduced, or any motion proposed, in the Legislative
Council should have effect, then, if the Council fail to pass such Bill or to carry such motion within
such time and in such form as the Governor thinks reasonable and expedient, the Governor may, at
any time that he thinks fit, and notwithstanding any provisions of this Order or any Standing Orders
of the Council, declare that such Bill or motion shall have effect as if it had been passed or carried
by the Council either in the form in which it was so introduced or proposed or with such amendments
as the Governor thinks fit that have been moved or proposed in the Council, including any committee
thereof; and the Bill or motion shall be deemed thereupon to have been so passed or carried, and the
provisions of this Order, and in particular the provisions relating to assent to Bills and disallowance
of laws, shall have effect accordingly.”)
160 Ibid., Sections 44-45.
61
3.9 An election was held on 9 March 1959, contested by four political parties:
the MLP; the Parti Mauricien Social Démocrate (“PMSD”); the Muslim Committee
of Action (“MCA”); and the Independent Forward Bloc (“IFB”). The electorate had
increased to 277,500.161 Whereas the PMSD had negative views on democracy and
the need for constitutional reform, the MCA and IFB were largely supportive of the
MLP’s efforts to reduce Britain’s influence over Mauritian internal affairs.162 The
MLP-MCA coalition obtained a majority of 29 out of the 40 seats in the Legislative
Council, with the IFB and PMSD winning six and three seats respectively.163 Led
by Dr Seewoosagur Ramgoolam, the MLP reiterated its demands that the U.K.
grant Mauritius immediate internal autonomy, and declared that it would seek
complete independence by 1964.
3.10 A third Constitutional Conference was held in June 1961. It was agreed that
Mauritius could achieve self-government after successful implementation of
constitutional reforms in two stages.164 The first stage was achieved after Dr
Ramgoolam became Chief Minister in 1962. However, Dr Ramgoolam protested
that he was not permitted to run a free and unfettered government and that Mauritius
was “a colony subject to colonial laws and subject to the control and direction of
the Secretary of State through his officers.”165
161 Ibid., Section 30. The 1958 Constitution extended the vote to British subjects aged 21 and above
who resided in Mauritius for at least two years.
162 Varma, The Political History of Mauritius (2011), p. 92; Addison & Hazareesingh, History of
Mauritius (1993), pp. 93-94 (Annex 137).
163 Addison & Hazareesingh, History of Mauritius (1993), p. 93 (Annex 137). Two seats were won
by independent candidates.
164 During the Conference there was a rift between the PMSD, which “favoured some form of
integration or association with Britain”, and the other political parties led by the MLP, which were
calling for independence. See Addison & Hazareesingh, History of Mauritius (1993), p. 94 (Annex
137).
165 Varma, The Political History of Mauritius (2011), p. 106.
62
3.11 The MLP performed strongly in the 1963 elections, winning 23 out of 40
seats in the Legislative Council in coalition with the MCA. For the purposes of
reassuring the electorate that all Mauritians would be represented in government,
and to be able to approach the colonial authorities with a united front for discussions
on independence, Dr Ramgoolam formed an all-party coalition government.166
3.12 The second stage of constitutional reform was implemented on 12 March
1964.167 By the Mauritius (Constitution) Order 1964, the Legislative Council was
renamed the Legislative Assembly, and the Executive Council became the Council
of Ministers.168 Dr Ramgoolam became the Premier of Mauritius, responsible for
Home Affairs. However, the Colonial Secretary refused to fix any firm date for
Mauritius’ independence.
3.13 Notwithstanding these constitutional developments, the colonial authorities
continued to exercise far-reaching control over Mauritian internal affairs. The
Governor presided over the Council of Ministers, which now comprised the
Premier, the Chief Secretary and between 10 and 13 Ministers. Although the
Governor was expected to consult the Council of Ministers, he retained
considerable power, including the power to make and amend laws without the
consent of the Legislative Assembly.169 The colonial authorities also had the power
to assent to the making of laws by the Assembly, and to disallow laws approved by
166 Addison & Hazareesingh, History of Mauritius (1993), p. 95 (Annex 137).
167 This was on the basis of a motion which was passed by 41 votes to 11 on 19 November 1963.
168 Mauritius (Constitution) Order, 1964 (26 Feb. 1964) (Annex 24).
169 See Section 50(1) of the Mauritius (Constitution) Order 1964, which is drafted in the same terms
as Section 43(1) of the 1958 Constitution. Ibid., Section 50(1). See also Mauritius (Constitution)
Order in Council, 1958 (30 July 1958) (Annex 16).
63
that body.170 It was at the discretion of the Governor to appoint the Premier and up
to 15 members of the Legislative Assembly.171
3.14 The fourth and final Constitutional Conference was held in London between
7 and 24 September 1965. On the final day of the Conference the British Colonial
Secretary, Anthony Greenwood, announced that the U.K. Government was
agreeable to the granting of independence to Mauritius, but independence was not
formally achieved until 12 March 1968. As set out below, independence was
granted on a condition, namely that Mauritian Ministers must “agree” to the
detachment of the Chagos Archipelago from the territory of Mauritius.
III. The secret plan to detach the Chagos Archipelago
3.15 In the meantime, unknown to Mauritian Ministers, during the early 1960s
the administering power devised a plan by which the Chagos Archipelago would
be detached from the territory of Mauritius for the purpose of making certain islands
available for joint U.K.-U.S. defence purposes. These plans were developed in
secret, apparently with no regard for the interests of the newly emerging Mauritian
State, or the Mauritian nationals then residing in the Chagos Archipelago
(“Chagossians”).
3.16 In April 1963 the U.S. State Department proposed discussions on the
“strategic use of certain small British-owned islands in the Indian Ocean”, an idea
welcomed by the Foreign Office.172 In August 1963, the State Department
170 See Mauritius (Constitution) Order, 1964 (26 Feb. 1964), Sections 51-52 (Annex 24).
171 See ibid., Sections 27, 58-60 and 68(1).
172 United Kingdom, “British Indian Ocean Territory 1964-1968: Chronological Summary of Events
relating to the Establishment of the B.I.O.T. in November 1965 and subsequent agreement with the
United States concerning the Availability of the Islands for Defence Purposes”, FCO 32/484 (1964-
64
“expressed interest in establishing a military communications station on Diego
Garcia and asked to be allowed to make a survey.”173 The U.S. Ambassador in
London submitted a memo to the Foreign Office proposing further discussions on
“the Island Base question and communications facilities on Diego Garcia”.174 In
January 1964, a further U.S. memo set out proposals for the U.K. Government to
“acquire certain islands, compensating and resettling the inhabitants as
necessary”.175 The U.S. required “austere” support facilities on Diego Garcia, with
the island of Aldabra (which then formed part of Seychelles) as the next possible
staging post.176 None of this information was made available to, or known by, the
Mauritian Ministers.
3.17 The U.K. and U.S. held the first round of formal talks on defence interests
in the Indian Ocean from 25 to 27 February 1964. The U.S. delegation “confirmed
their positive interest in the development of a communications facility, subject to
joint survey, in Diego Garcia in the Chagos Archipelago, which is now under the
administration of Mauritius.”177 It was agreed that the U.K. would “be responsible
for acquiring land, re-settlement of population and compensation at H.M.G.’s
expense” and that the U.K. should “[p]ursue as rapidly as possible the feasibility of
1968) (hereinafter “‘British Indian Ocean Territory 1964-1968: Chronological Summary’ (1964-
1968)”), item no. 1 (Annex 23).
173 Ibid. Diego Garcia is the largest island in the Chagos Archipelago. See Chapter 2, Figure 2.
174 Ibid., item no. 2. See also United Kingdom, Foreign Office, Permanent Under-Secretary’s
Department, Secretary of State’s Visit to Washington and New York, 21-24 March: Defence Interests
in the Indian Ocean, Brief No. 14, FO 371/184524 (18 Mar. 1965) (hereinafter “Secretary of State's
Visit to Washington and New York, 21-24 March (18 Mar. 1965)”), para. 2 (Annex 31).
175 “British Indian Ocean Territory 1964-1968: Chronological Summary” (1964-1968), item no. 4
(Annex 23).
176 Ibid. See also Secretary of State's Visit to Washington and New York, 21-24 March (18 Mar.
1965), para. 5 (Annex 31).
177 U.K. Foreign Office, U.S. Defence Interests in the Indian Ocean: Memorandum of U.K./U.S.
London Discussions, FCO 31/3437 (27 Feb. 1964), para. 6 (Annex 25).
65
transfer of the administration of Diego Garcia (and other islands in the Chagos
Archipelago) and the Agalega Islands from Mauritius.”178
3.18 It was seen as imperative that the islands be detached from Mauritius and
placed under direct British administration to ensure “security of tenure” and
freedom from “local pressures”,179 and to insulate the islands from “future political
and economic encumbrances, which might nullify [their] strategic usefulness.”180
A memo jointly prepared by the U.K. Foreign Office, Colonial Office and Ministry
of Defence, recognised the potential difficulties of achieving that aim:
8. We must, nevertheless, not overlook the United Kingdom’s
reputation as a Colonial power. It would be imprudent to expose
ourselves to international and local criticism of trafficking in
Colonial territory without regard to the reasonable interests of the
colonies concerned (Mauritius and Seychelles)… .
…
11. Formally, we have the constitutional power to take action
without the consent of the Mauritius Government, although it
consists almost entirely of elected Ministers. To do this, however,
would expose us to criticism in Parliament and the United Nations
and damage our future relations with Mauritius. Moreover, in as
much as there would still be a local population, albeit very small in
number, in the Chagos Islands other than Diego Garcia, we might
be criticised for creating for strategic purposes a new Colony with a
less advanced constitution than it theoretically enjoys as part of
Mauritius, and with no prospect of evolution. But this criticism
would lose most of its force if the action were accepted by Mauritian
178 Ibid., para. 12.
179 Secretary of State’s Visit to Washington and New York, 21-24 March (18 Mar. 1965), para. 2
(Annex 31). See also “British Indian Ocean Territory 1964-1968: Chronological Summary” (1964-
1968), item no. 5 (Annex 23).
180 U.K. Foreign Office, Colonial Office and Ministry of Defence, U.S. Defence Interests in the
Indian Ocean, D.O. (O)(64)23, FCO 31/3437 (23 Apr. 1964) (hereinafter “U.S. Defence Interests
in the Indian Ocean (23 Apr. 1964)”), para. 9 (Annex 26).
66
Ministers in advance. It is therefore desirable to secure their positive
consent, or failing that, at least their acquiescence.
12. If we are to do this we are bound to take them reasonably fully
into our confidence at the outset. We have promised the Americans
that we will consult them before this is done and on the terms to be
used. The Americans will be reluctant to accept that the Mauritians
should be told about the extent of United States participation or
about their specific strategic interests. In the short term it might at
first sight appear that, if only to avoid the risk of premature leaks,
and the consequent raising of the price, it would suit us better to
confront the Mauritians with a fait accompli or at most tell them at
the last moment what we are doing. But the Colonial Office are
convinced, as is the Governor, that this would do lasting damage to
our relations with Mauritius and would adversely affect the facilities
which our Services now enjoy in Mauritius itself. We have
considered whether the Americans’ share in the enterprise could be
concealed, but since it would eventually become know[n], we could
be charged with duplicity and the damage would be as great and
possibly greater. We might, however, be able to frame our
explanation to the Mauritians in language which the Americans
would accept and which would refer to the United Kingdom/ United
States joint interest in the Chagos Archipelago for the defence of the
free world in which the Mauritians might, as future members of the
Commonwealth, be expected to share. Such an explanation would
eschew any particular description of the nature of the strategic
facilities or their purpose.181
3.19 The joint memo recommended that U.K. Ministers approve the proposals,
and the Colonial Secretary was invited to consult with the Mauritius Government
with a view to detaching the Chagos Archipelago from the administration of
Mauritius.182 A British official commenting on the joint memo noted that:
2. The paper is obviously a compromise between the desire of the
Foreign Office and the Ministry of Defence to provide the facilities
required by the Americans in the Indian Ocean and the reluctance of
181 U.S. Defence Interests in the Indian Ocean (23 Apr. 1964), paras. 8, 11 and 12 (emphasis in the
original) (Annex 26).
182 Ibid., para. 15.
67
the Colonial Office to detach the islands in question from the
administrative control of Mauritius and Seychelles.
3. As a compromise document the arguments and counterarguments
are so carefully balanced that the final recommendations
are muffled. The key recommendation is in paragraph 12: the
implication there is that while we are prepared to give as convincing
an explanation of our intentions as possible to the Mauritians we are
presenting them with a fait accompli. It is however stated in
paragraph 15(c) that the Colonial Secretary will be invited to
‘consult’ the Mauritians on this point. I think we must be clear about
this and give Ministers a firm recommendation.
4. If the Colonial Office take their stand on consulting rather than
telling the Mauritians, I think a separate study should be made of the
importance of our relations with Mauritius; their capacity to do us
harm; and the usefulness of the facilities which the Services now
enjoy there.
5. From the point of view of our foreign and defence policy, it seems
hard to believe that the advantages we should gain from a joint
Anglo-United States policy in the Indian Ocean could be
outweighed by the disadvantage of having a row with Mauritius or
the Seychelles.183
3.20 The plan to detach the Chagos Archipelago as a fait accompli proceeded
with considerable haste. On 27 April 1964, the State Department confirmed U.S.
agreement to establishing defence facilities on Diego Garcia.184 Less than two
weeks later, U.K. Ministers approved proposals for the development of joint
facilities in principle, but resolved that these plans should not be disclosed to the
people of Mauritius and Seychelles. It was agreed that Mauritian Ministers and the
183 United Kingdom, Minutes from C. C. C. Tickell to Mr. Palliser: United States Defence Interests
in the Indian Ocean, FCO 31/3437 (28 Apr. 1964) (emphasis in the original) (Annex 27).
184 “British Indian Ocean Territory 1964-1968: Chronological Summary” (1964-1968), item no. 10
(Annex 23).
68
Seychelles Executive Council would only: “at a suitable time be informed in
general terms about proposed detachment of islands.”185
3.21 On 29 June 1964, the then British Governor of Mauritius, Sir John Rennie,
consulted for the first time with the Mauritian Premier, Dr. Ramgoolam, about the
idea of a detachment. Dr. Ramgoolam expressed his unease. Governor Rennie
reported that although Premier Ramgoolam was “favourably disposed to provision
of facilities” he had “reservations on detachment” and “expressed preference for
[a] long-term lease”.186 On 13 July 1964, Governor Rennie informed the Mauritian
Council of Ministers of a proposed survey of certain islands. However, the
Governor did not disclose that the U.K. intended to detach the Chagos Archipelago
from Mauritius.187
3.22 In July and August 1964, a joint U.K.-U.S. survey of the Chagos
Archipelago and Agalega (and the Seychelles islands of Coëtivy, Desroches and
Farquhar) was carried out. Robert Newton, of the U.K. Colonial Office, prepared a
detailed report. Consistent with the policy of secrecy, the true nature and purpose
of the survey was concealed from the local Mauritians and Seychellois. Mr Newton
reported that, faced with concern on Diego Garcia about the reason for the survey,
he “took the line with island Managers that in a scientific age there was a growing
need for accurate scientific surveys” and “made vague allusions to the
185 Ibid., item no. 11.
186 Ibid., item no. 12.
187 Ibid., item no. 13.
69
developments in radio communications.”188 Efforts were also made to conceal the
presence of American military personnel.189
3.23 The Chagos Archipelago was surveyed from 17 to 31 July 1964, with a
strong focus on Diego Garcia, which was regarded as “the most promising for
technical purposes.”190 The reason for the survey was “to determine the
implications on the civilian population of strategic planning, and especially to
assess the problems likely to arise out of the acquisition of the islands of Diego
Garcia and Coetivy for military purposes.”191 Mr Newton concluded inter alia that:
“There should be no insurmountable obstacle to the removal, resettlement and reemployment
of the civilian population of islands required for military purposes”.192
3.24 The Newton Report describes Diego Garcia as “eminently suitable” for the
construction of an airstrip, naval storage tanks, a jetty, radio installations, housing,
as well as recreational and administrative facilities.193 The Report acknowledges
that the “acquisition” of the islands “for military purposes, and changes in their
administration, will almost certainly involve repercussions in the local politics of
Mauritius and the Seychelles.”194 It is noted that acquiring property on Diego
Garcia by means of a Land Acquisition Ordinance of Mauritius “would involve the
consent of Mauritian Ministers which would not necessarily be forthcoming,
especially if it were represented to them that Mauritius was being deprived of
188 Newton, Survey in the Indian Ocean (1964), Covering Letter, para. 7 (Annex 22).
189 Ibid.
190 Newton, Survey in the Indian Ocean (1964), Report, para. 1 (Annex 22).
191 Ibid., para. 2.
192 Ibid., para. 3.
193 Ibid., para. 20
194 Ibid., para. 13.
70
opportunities for improved trade and employment.”195 The Report recommends that
the U.K. Government should accept responsibility for “facilitating re-employment
of the Mauritians and Seychellois on other islands and for the re-settlement in
Mauritius and the Seychelles of those unwilling or unable to accept reemployment.”
196 It acknowledges that the cost of resettlement “will be relatively
heavy.”197
3.25 The Newton Report makes proposals for the administrative future of the
surveyed islands “based on the assumption that it is essential to remove them from
the unpredictable course of politics that tends to follow independence.”198 The
Report recommends that the islands should “become direct dependencies of the
British Crown” and should be “administered under the authority of the Governor of
the Seychelles as High Commissioner.”199 The Report warns, however, of “a risk
that to remove the islands from the jurisdiction of Mauritius would give rise to
considerable political difficulties.”200 On the subject of compensation, Mr Newton
noted that “it would scarcely be politic to deprive Mauritius of its dependencies
without some quid pro quo.”201 Recognising Mauritius’ continuing “beneficial
interest” in the Chagos Archipelago, the Newton Report states that:
The issue is primarily one of relative advantages and disadvantages
in regard to long-term strategy and is not a matter that can be
examined in this report. It can be summarised in the question, how
far adverse, but doubtless temporary, reactions in Mauritius should
outweigh the need for security of tenure in certain of the islands, or
195 Ibid., para. 32.
196 Ibid., para. 35.
197 Ibid.
198 Ibid., para. 48.
199 Ibid., para. 60.
200 Ibid., para. 49.
201 Ibid., para. 67.
71
at least in Diego Garcia. A further issue is the assessment of the
extent to which Mauritius might embarrass H.M.G.’s existing
interests in the island before they can be replaced. Stated thus, the
problem may appear over-simplified. The final decision cannot be
independent of any obligations or commitments that H.M.G. might
have towards Mauritius arising out of past history or any beneficial
interest of Mauritius in the [Chagos Archipelago].202
3.26 Following the Newton survey, on 14 January 1965, the U.S. sent its
proposals to the U.K.203 Three categories of islands were identified, in order of
priority:
First, the U.S. “required” Diego Garcia for the “establishment of a
communications station and supporting facilities, to include an air strip
and improvement of off-loading capability.” The U.S. considered that
“detachment proceedings should include the entire Chagos archipelago,
primarily in the interest of security, but also to have other sites in this
archipelago available for future contingencies.”204 The State
Department wanted Diego Garcia to be made available as soon as
possible, suggesting that austere communications could be established
within three to five months and that work on permanent facilities could
commence in late 1966.205
Second, the island of Aldabra, forming part of Seychelles, was singled
out as a potential air staging post, which “impels strong
202 Ibid., para. 49.
203 Letter from George S. Newman, Counselor for Politico-Military Affairs, U.S. Embassy in
London to Geoffrey Arthur, Head of the Permanent Under-Secretary’s Department, U.K. Foreign
Office (14 Jan. 1965) (Annex 28).
204 Ibid., p. 1.
205 Ibid. See also Letter from N. C. C. Trench of the British Embassy in Washington to E. H. Peck
of the U.K. Foreign Office, FO 371/184522 (15 Jan. 1965), para. a (Annex 29).
72
recommendation that this island be included in any detachment
package”.206
The third category comprised five islands belonging to Mauritius and
Seychelles – Coëtivy, Agalega, Farquhar, Desroches and Cosmoledo –
listed in order of preference.207 As the U.K. intended “single-bite …
detachment proceedings”, the U.S. strongly urged it to “consider
stockpiling” these islands and to detach them “on precautionary
planning basis”.208
3.27 The U.S. recognised “the difficulties that Her Majesty’s Government will
face in undertaking the necessary steps to detach these islands.”209 Responding to
the proposals, a British Official noted that “the amount of real estate involved was
rather formidable.”210 The Foreign Office wanted to carry out the detachment as a
single operation: this was explicitly in order to minimise scrutiny at the U.N.211 The
British Embassy in Washington recognised that the U.K. “could not take two bites
206 Letter from N. C. C. Trench of the British Embassy in Washington to E. H. Peck of the U.K.
Foreign Office, FO 371/184522 (15 Jan. 1965), para. b (Annex 29).
207 Letter from George S. Newman, Counselor for Politico-Military Affairs, U.S. Embassy in
London to Geoffrey Arthur, Head of the Permanent Under-Secretary’s Department, U.K. Foreign
Office (14 Jan. 1965), para. c (Annex 28).
208 Letter from N. C. C. Trench of the British Embassy in Washington to E. H. Peck of the U.K.
Foreign Office, FO 371/184522 (15 Jan. 1965), para. c (Annex 29).
209 Letter from George S. Newman, Counselor for Politico-Military Affairs, U.S. Embassy in
London to Geoffrey Arthur, Head of the Permanent Under-Secretary’s Department, U.K. Foreign
Office (14 Jan. 1965), p. 2 (Annex 28).
210 Letter from N. C. C. Trench of the British Embassy in Washington to E. H. Peck of the U.K.
Foreign Office, FO 371/184522 (15 Jan. 1965), p. 1 (Annex 29).
211 See Section VIII below and Chapter 4, Section III. A. See also United Kingdom, Record of UKUS
Talks on Defence Facilities in the Indian Ocean, FO 371/184529 (23-24 Sept. 1965) (hereinafter
“Defence Facilities in the Indian Ocean (23-24 Sept. 1965)”), Record of a Meeting with an
American Delegation headed by Mr. Kitchen, on 23 September, 1965, Mr. Peck in the chair, p. 3.
(“Mr. Peck made the point that we would want to avoid a second row in the United Nations if
possible, and therefore to carry out the detachment as a single operation.”) (Annex 62).
73
at the cherry of detachment” and that it would be prudent to detach at one time all
the islands which could be useful in the long run.212
3.28 On 26 January 1965, the U.K. urgently asked the U.S. whether the entire
Chagos Archipelago should be detached from Mauritius, or just the island of Diego
Garcia. The U.S. response was:
We would not regard the detachment of the entire Chagos
Archipelago as essential, but consider it highly desirable. It appears
to us that full detachment now might more effectively assure that
Mauritian political attention, including any recovery pressure, is
diverted from Diego Garcia over the long run. In addition […] full
detachment is useful from the military security standpoint, and
provides a source for additional land areas should requirements arise
which could not be met on Diego Garcia.213
3.29 In preparation for a visit to Washington and New York in March 1965, the
British Foreign Secretary was briefed that:
any islands chosen for military facilities must be free from local
pressures which would threaten security of tenure, and… in practice
this must mean that the islands would be detached from the
administration of Mauritius (soon due for independence) and of the
Seychelles (where pressure for independence is beginning to be
felt).214
212 Letter from N. C. C. Trench of the British Embassy in Washington to E. H. Peck of the U.K.
Foreign Office, FO 371/184522 (15 Jan. 1965), p. 1 (Annex 29).
213 Letter from George S. Newman, Counselor for Politico-Military Affairs, U.S. Embassy in
London to Geoffrey Arthur, Head of the Permanent Under-Secretary’s Department, U.K. Foreign
Office (10 Feb. 1965), para. a (Annex 30).
214 Secretary of State’s Visit to Washington and New York, 21-24 March (18 Mar. 1965), para. 2
(Annex 31). See also African Section Research Department, Detachment of the Chagos
Archipelago: Negotiations with the Mauritians (1965) (15 July 1983) (hereinafter “Detachment of
the Chagos Archipelago (15 July 1983)”), paras. 1 and 2 (Annex 132).
74
3.30 The secret brief records Premier Ramgoolam’s “guarded”215 reaction to the
proposal and, as word emerged about what was being proposed, the growing
“unfavourable reactions” from African and Asian States, the U.N. and the Cairo
Conference of Non-Aligned Countries.216 Nevertheless, U.K. Ministers would
“shortly be asked to reaffirm Her Majesty’s Government’s general support for this
scheme and to agree that the Colonial Office should undertake the necessary
constitutional steps in Mauritius and the Seychelles.”217 In response to rumours that
the U.S. was to build military “bases” in the Indian Ocean, the U.K. attempted to
deflect criticism by adopting the public line that “certain communications and other
facilities were a possibility but that no decision had been taken.”218
3.31 On 12 April 1965, British Ministers accepted the “general lines” of the U.S.
proposal and decided “to seek an American contribution to the cost of detaching
the islands.”219 Three days later, the British Prime Minister told the U.S. Secretary
of State that “HMG wishes to press ahead, despite possible political embarrassment
in U.N. and elsewhere.”220 A Foreign Office telegram notes that Prime Minister
Wilson was “anxious to press ahead with this project as rapidly as possible”.221 The
U.K. had selected the Chagos Archipelago and the Seychelles islands of Aldabra,
Farquhar and Desroches for detachment and the development of defence facilities
215 Secretary of State’s Visit to Washington and New York, 21-24 March (18 Mar. 1965), para. 4
(Annex 31). See also Detachment of the Chagos Archipelago (15 July 1983), para. 1 (Annex 132).
216 Secretary of State’s Visit to Washington and New York, 21-24 March (18 Mar. 1965), para. 4
(Annex 31). See also Chapter 4, Section III.
217 Ibid., para. 6.
218 Ibid., para. 4.
219 “British Indian Ocean Territory 1964-1968: Chronological Summary” (1964-1968), item no. 25
(Annex 23).
220 Ibid., item no. 26.
221 Telegram from the Foreign Office to Washington, No. 3582, FO 371/184523 (30 April 1965),
para. 2 (Annex 33).
75
thereon. The telegram records the unambiguous view of the British Government
that:
It is now clear that in each case the islands are legally part of the
territory of the colony concerned. Generous compensation will,
therefore, be necessary to secure the acceptance of the proposals by
the local Governments (which we regard as fundamental for the
constitutional detachment of the islands concerned) in addition to
compensation for the inhabitants and commercial interests which
will be displaced. The total may come to as much as £10 million.
We should, therefore, like to discuss with the United States
Government the possibility of a contribution to these costs from
their side.222
3.32 It was decided that the timing of an approach to Mauritian Ministers had to
be carefully considered and that it would be prudent to discuss in advance “what
publicity line should be taken if the details should leak”.223 In mid-May 1965, the
U.S. agreed to explore the possibility of making a financial contribution by means
of an offset in U.S./U.K. research and development programmes. However, since
the U.S. Congress was unlikely to agree to provide funds, “[g]reat secrecy was
essential”.224 On 24 June 1965, the U.S. decided to contribute up to half the
estimated cost of £10 million thought to be required to detach the islands.225 The
U.K. agreed to keep the U.S. contribution secret from Mauritius and the Seychelles.
3.33 On 19 July 1965, Governor Rennie was instructed to communicate
detachment proposals to the Mauritian Council of Ministers and to report on their
222 Ibid., para. 3 (emphasis added).
223 Ibid., para. 5.
224 “British Indian Ocean Territory 1964-1968: Chronological Summary” (1964-1968), item no. 29
(Annex 23).
225 Ibid., item no. 30.
76
reactions as soon as possible.226 Colonial Secretary Anthony Greenwood instructed
the Governor that:
Americans have been informed that while we could not agree to their
proposals in full we are nevertheless willing in principle to pursue
proposed joint development further on the basis that, subject to the
agreement of the [Government of Mauritius], which we regard as
essential, we would be prepared to detach from Mauritius… the
whole of the Chagos Archipelago (including Diego Garcia)… .227
3.34 The Colonial Secretary informed U.K. Ministers of his view that the
Mauritius Government would likely demand compensation “in respect of loss of
territory” and that such compensation was “clearly unavoidable” and “necessary to
secure acceptance of these proposals”.228 The Governors of Mauritius and
Seychelles were instructed by Mr Greenwood that the U.S. financial contribution
“must be kept strictly secret” but that an indication should be sought as to the
amount of compensation “necessary to secure Mauritius and Seychelles
agreement.”229 The Colonial Secretary noted that the British Government
“recognises that it would be reasonable for the Governments of Mauritius and
Seychelles to expect some element of compensation in view of the proposed
detachment of territory” and that “H.M.G.… attach considerable importance to
securing the support” of Mauritian Ministers.230 Governor Rennie was told to
explain that the Chagos Archipelago would be “constitutionally separated” from
226 Telegram from the Secretary of State for the Colonies to Mauritius & Seychelles, Nos. 198 and
219, FO 371/184526 (19 July 1965) (Annex 37). See also “British Indian Ocean Territory 1964-
1968: Chronological Summary” (1964-1968), item no. 32 (Annex 23). Prior to Mauritius’
Independence, the Governor was the Queen’s representative and formal head of the Government of
Mauritius.
227 Telegram from the Secretary of State for the Colonies to Mauritius & Seychelles, Nos. 198 and
219, FO 371/184526 (19 July 1965), para. 1 (Annex 37).
228 Ibid., paras. 2-3.
229 Ibid., para. 4.
230 Ibid., paras. 5 and 7.
77
Mauritius.231 The islands would not be made available on any other basis, such as
a lease.232
3.35 Legal and administrative arrangements were agreed long before Mauritian
Ministers were approached. It was decided in London that the islands would be
detached from Mauritius and Seychelles to form a new separate territory
“established by Order in Council similar to [the] British Antarctic Territory Order
in Council 1962.”233
3.36 On 23 July 1965, Governor Rennie wrote to Colonial Secretary Greenwood
to report that Mauritian Ministers had asked for more time to consider the British
proposals.234 Governor Rennie explained that Premier Ramgoolam and one of his
colleagues had expressed “[d]islike of detachment”235 and that it was clear that “any
attempt to detach without agreement would provoke strong protest.”236 Governor
Rennie held a further meeting of the Council of Ministers on 30 July 1965 at which
Mauritian Ministers expressed their strong objection to the detachment of the
Chagos Archipelago. Governor Rennie reported to Colonial Secretary Greenwood
that:
Ministers objected however to detachment which would be
unacceptable to public opinion in Mauritius. They therefore asked
231 Ibid., para. 8.
232 Ibid. On the refusal to make the islands available on the basis of a lease, see also Defence
Facilities in the Indian Ocean (23-24 Sept. 1965), Record of a Meeting with an American
Delegation headed by Mr. Kitchen, on 23 September, 1965, Mr. Peck in the chair, p. 2 (Annex 62).
233 Telegram from the Secretary of State for the Colonies to Mauritius and Seychelles, PAC
93/892/05, FO 371/184524 (21 July 1965), para. 2(b) (Annex 38).
234 Telegram from the Governor of Mauritius to the Secretary of State for the Colonies, No. 170, FO
371/184526 (23 July 1965) (Annex 40).
235 Ibid., para. 2.
236 Ibid. See also Detachment of the Chagos Archipelago (15 July 1983), para. 3 (Annex 132).
78
that you consider ‘with sympathy and understanding’ how
U.K./U.S. requirements might be reconciled with the long term lease
e.g. for 99 years. They wished also that provision should be made
for safeguarding mineral rights to Mauritius and ensuring preference
for Mauritius if fishing or agricultural rights were ever granted.
Meteorological and air navigation facilities should also be assured
to Mauritius.237
3.37 Governor Rennie also reported that the views expressed by Premier
Ramgoolam “were subscribed to by all the Ministers present”.238 His conclusion
was that:
Attitude to detachment is awkward but not unexpected despite my
warning that lease would not be acceptable. Proposals for
compensation are also highly inconvenient though Ministers are
setting sights high in the hope of doing the best for Mauritius. I
should like to emphasise, however, that… Ministers have taken
responsible line and given collective view after consultation among
themselves, and that so far there has been no attempt to exploit for
party advantage with a view to constitutional conference.239
3.38 Colonial Secretary Greenwood responded to Governor Rennie with
instructions to reiterate to Mauritian Ministers that a lease was not possible.240 The
Colonial Secretary suggested that Mauritian Ministers be told that a leasehold
arrangement would make them vulnerable to “extremely troublesome” domestic
and international accusations of harbouring “foreign bases.”241 Mr Greenwood
reaffirmed that acceptance by Mauritian Ministers was “the only acceptable
237 Telegram from the Governor of Mauritius to the Secretary of State for the Colonies, No. 175, FO
371/184526 (30 July 1965), para. 2 (Annex 42).
238 Ibid., para. 5.
239 Ibid., para. 6.
240 Telegram from the U.K. Secretary of State for the Colonies to J. Rennie, Governor of Mauritius,
No. PAC 93/892/01 (10 Aug. 1965), para. 2 (Annex 44).
241 Ibid., paras. 2-3.
79
arrangement”.242 Nevertheless, Mauritian Ministers continued to oppose U.K.
proposals to detach the Chagos Archipelago and suggested talks with U.K. and U.S.
representatives. Governor Rennie was unable to obtain agreement and proposed
that Colonial Secretary Greenwood meet with Premier Ramgoolam in London
before the next Constitutional Conference which was scheduled for 7 to 24
September 1965.243
IV. The 1965 Constitutional Conference
3.39 The 1965 Constitutional Conference (“the Conference”) was held in
London. The talks between Mauritian delegates and colonial authorities took place
against the backdrop of (i) uncertainty about whether Mauritius would be granted
independence; (ii) an irreversible commitment on the part of the British government
to detach the Chagos Archipelago from Mauritius; (iii) opposition by Mauritian
Ministers to the detachment of the Chagos Archipelago; and (iv) insistence on the
part of Colonial Secretary Greenwood that Mauritian Ministers “agree” to the
detachment to shield the U.K. from domestic and international criticism.244
242 Ibid., para. 4.
243 Telegram from the Governor of Mauritius to the Secretary of State for the Colonies, No. 188, FO
371/184526 (13 Aug. 1965) (Annex 46).
244 The 1965 Conference was attended by 28 Mauritian delegates. This included the following
Mauritian Ministers and party leaders: Sir Seewoosagur Ramgoolam (MLP); Attorney General Jules
Koenig (PMSD), Minister Sookdeo Bissoondoyal (IFB) and Minister Abdool Razack Mohamed
(MCA); Minister Maurice Paturau (independent) and Minister Jean Ah-Chuen (independent). See
Mauritius Constitutional Conference Report (24 Sept. 1965), List of those attending Conference
(Annex 64).
80
A. UNCERTAINTY ABOUT WHETHER MAURITIUS WOULD BE GRANTED
INDEPENDENCE
3.40 Before and during the 1965 Constitutional Conference, Mauritius’ future
status was uncertain, as British officials at the highest levels continued to express
doubts about the granting of independence to Mauritius. On 3 May 1965, the
Foreign Office believed that the outcome of the upcoming Conference was:
unlikely to take Mauritius further than full internal self-government.
It is impossible to estimate when or indeed if Mauritius will achieve
full independence.245
3.41 Less than a month before the Conference, the Colonial Office also
expressed doubt as to whether Mauritius would be granted independence:
The Mauritian political parties are divided over the question of longterm
status. Some are demanding independence within the
Commonwealth; others look to some form of continued association
with Britain. We doubt whether it will be possible for the conference
to resolve these differences, but it might succeed in arriving at
definitions of ‘independence’ and ‘free association’ which could in
due course be put to the Mauritius electorate, and in deciding that
the future status of the island should depend on the outcome of an
election or a referendum.246
3.42 It was believed that, depending on the approach taken by the Colonial
Secretary to questions of defence and internal security, “it may well turn out to be
impossible for Mauritius to advance from the status of dependency at all”.247 Two
weeks before the Conference the Colonial Office remained pessimistic about the
245 Telegram from the U.K. Foreign Office to the U.K. Embassy in Washington, No. 3665, FO
371/184523 (3 May 1965), para. 1 (Annex 34).
246 Letter from R. Terrell of the U.K. Colonial Office to P.H. Moberly of the U.K. Ministry of
Defence, PAC 36/748/08, FO 371/184527 (11 Aug. 1965), para. 2 (Annex 45).
247 Ibid., para. 12.
81
likelihood that the U.K. would accept that Mauritius should be granted
independence:
MR SMITH (Colonial Office) outlined the present position in
Mauritius and the possible outcome of the Constitutional
Conference. … The outcome of the Conference was uncertain and
his Secretary of State had stated that he was open to consider any
kind of solution. The most likely course of events was that the
Conference was unlikely to agree on full autonomy, but would
accept that Mauritius should proceed to full internal selfgovernment,
with the possibility of further progress after a future
referendum.248
3.43 A Colonial Office note prepared for the Prime Minister made clear that the
fate of Mauritius’ long-term status was solely in the hands of the British
Government:
The gap between the parties led by Sir S. Ramgoolam wanting
independence, and the Parti Mauricien and its supporters who seek
continuing association with Britain, will not be closed by
negotiation. H.M.G. will have to impose a solution.249
3.44 Even during the Conference, British officials questioned whether Mauritius
would achieve independence:
it seems that the strength of feeling against independence may make
it impossible for the Conference to accept a programme by which
Mauritius would proceed straightforwardly to independence.250
248 U.K. Ministry of Defence, Chiefs of Staff Committee, Mauritius Constitutional Conference, No.
COS 154/65 (26 Aug. 1965) (hereinafter “Mauritius Constitutional Conference (26 Aug. 1965)”),
p. 6 (Annex 47).
249 Note for the Prime Minister’s Meeting with Sir Seewoosagur Ramgoolam, Premier of Mauritius
(22 Sept. 1965), p. 4 (emphasis added) (Annex 59). See also Mauritius Constitutional Conference
Report (24 Sept. 1965), para. 14 (Annex 64).
250 U.K. Pacific and Indian Ocean Department, Points for the Secretary of State at D.O.P. meeting,
9:30 a.m. Thursday, Sept. 16th, CO 1036/1146 (15 Sept. 1965), para. 4 (Annex 54).
82
3.45 The grant of independence to Mauritius thus lay entirely in the hands of the
British Government. The talks between Mauritian delegates and the colonial
authorities took place under a cloud of uncertainty, which would not be lifted until
the very last day of the Conference on 24 September 1965.251
B. THE U.K. HAD ALREADY DECIDED TO DETACH THE CHAGOS ARCHIPELAGO
3.46 Long before the Conference, the U.K. and U.S. had already decided that the
Chagos Archipelago would be detached from Mauritius and placed under direct
British administration.252 Mauritian Ministers were thus confronted with a fait
accompli.253
3.47 In April 1964 the U.K. Foreign Office, Colonial Office and Ministry of
Defence jointly recognised that it was imperative that detachment should be carried
out “well in advance of Mauritian independence”.254 On 26 July 1965, the Foreign
Office reported to the U.K. Mission to the U.N. that:
we believe that it will get progressively more difficult to detach the
islands if Mauritius gets nearer to independence and impossible to
do so if she becomes full independent.255
3.48 This was a view shared by the Deputy Secretary of State for Defence and
the Parliamentary Under-Secretary of State for Foreign Affairs:
251 Mauritius Constitutional Conference Report (24 Sept. 1965), para. 20 (Annex 64).
252 See Section III above.
253 United Kingdom, Minutes from C. C. C. Tickell to Mr. Palliser: United States Defence Interests
in the Indian Ocean, FCO 31/3437 (28 Apr. 1964), para. 3 (Annex 27).
254 U.S. Defence Interests in the Indian Ocean (23 Apr. 1964), para. 10 (Annex 26).
255 Letter from S. Falle of the U.K. Foreign Office to F. D. W. Brown of the U.K. Mission to the
U.N., FO 371/184526 (26 July 1965), para. 2 (Annex 41).
83
the line taken by the Colonial Secretary with Mauritius leaders at the
Conference on future defence arrangements will profoundly affect
our chances of carrying them with us in the proposed detachment of
Diego Garcia and the Chagos Archipelago. If we fail to persuade
them now, we may never again be in a position to do so at an
acceptable cost. Indeed if Mauritius opts for independence at this
conference, this will be our last chance to secure the Chagos
Archipelago.256
3.49 One week before the Conference, the British Prime Minister, Harold
Wilson, made clear to Mr Greenwood that “our position on the detachment of the
islands should in no way be prejudiced” during the course of the Conference and
that the Colonial Secretary should bring the matter back to the Prime Minister and
the Foreign Secretary “in good time for a decision to be reached on this issue before
the conference reached any conclusion.”257 This was reiterated on 16 September
1965 at a Cabinet Committee meeting:
it was pointed out that an urgent and satisfactory decision for the
detachment of the islands was necessary both in our own defence
interests and in order to maintain our political and military relations
with the United States.258
3.50 Prime Minister Wilson expressed “the hope that agreement for the
detachment of the islands would be reached urgently, and in any case by the end of
the present Constitutional Conference.”259
256 Memorandum on Defence Facilities in the Indian Ocean (26 Aug. 1965), para. 3 (Annex 48).
257 U.K. Defence and Oversea Policy Committee, Minutes of a Meeting held at 10 Downing Street,
S.W.1, on Tuesday 31st August, 1965, at 11 a.m., OPD(65), CAB 148/18 (31 Aug. 1965), p. 7
(Annex 51).
258 U.K. Defence and Oversea Policy Committee, Minutes of a Meeting held at 10 Downing Street,
S.W.1, on Thursday, 16th September, 1965 at 9:45 a.m., OPD(65) (16 Sept. 1965), p. 5 (Annex 56).
259 Ibid.
84
C. MAURITIAN MINISTERS OPPOSED THE DETACHMENT OF THE CHAGOS
ARCHIPELAGO
3.51 As explained above, Mauritian Ministers were steadfastly and consistently
opposed to the detachment of the Chagos Archipelago.260 Less than two weeks
before the Conference, the U.K. Chief of the Defence Staff recognised that Mr
Greenwood:
had not been able to persuade the Mauritian Ministers to agree to the
detachment from Mauritius of Diego Garcia and the other islands of
the Chagos Archipelago… in advance of the Mauritius
Constitutional Conference… .261
3.52 Mauritian Ministers continued to oppose the detachment of the Chagos
Archipelago during the Conference.262 A Minute prepared for the British Prime
Minister on 22 September 1965 records that when proposals were discussed with
Ministers in Mauritius, and more recently in London, their reaction was strong:
“they cannot contemplate detachment”.263
D. THE COLONIAL SECRETARY SOUGHT TO OBTAIN MAURITIAN MINISTERS’
“AGREEMENT” TO DETACHMENT TO SHIELD THE U.K. FROM DOMESTIC AND
INTERNATIONAL CRITICISM
3.53 The Foreign Office and Ministry of Defence were keen to accept U.S.
defence proposals, and determined to proceed with the detachment of the Chagos
Archipelago regardless of the views of Mauritian Ministers. Shortly before the
260 See paras. 3.30 and 3.36-3.38.
261 Mauritius Constitutional Conference (26 Aug. 1965), p. 5 (Annex 47).
262 See Section V below.
263 Note for the Prime Minister’s Meeting with Sir Seewoosagur Ramgoolam, Premier of Mauritius
(22 Sept. 1965), p. 3 (Annex 59).
85
Conference, the Deputy Secretary of State for Defence and the Parliamentary
Under-Secretary of State for Foreign Affairs proposed that:
As negotiation in Mauritius has failed to establish agreement on
terms, we regard it as essential that, during their stay in London,
Mauritius Ministers should be made aware of HMG’s determination
to go through with this project on terms which in HMG’s view
adequately compensate Mauritius for the loss of the remote and
neglected Chagos Archipelago.
These terms should be financial compensation for Mauritius in the
form of development or other aid comparable to the sum of about £3
million to be offered to the Seychelles, plus a promise of continued
British responsibility for the external defence of Mauritius… .
If Mauritius Ministers refuse this offer, they should be told that, in
that case, HMG will have to consider any proposals for the future
status of Mauritius without the Chagos Archipelago, and will
exercise their right to transfer Chagos to permanent British
sovereignty under order-in-council, financial compensation as
above being paid to the Mauritius Government.264
3.54 Taking note of these proposals, an official at the Colonial Office wrote that:
If Mauritian acquiescence cannot be obtained, then the course
recommended by the joint Foreign Office/Ministry of Defence
paper, i.e. forcible detachment and compensation paid into a fund,
seems essential.265
3.55 Mr Greenwood – the Colonial Secretary – preferred, for political reasons,
that the detachment of the Chagos Archipelago be accompanied by the “agreement”
264 Memorandum on Defence Facilities in the Indian Ocean (26 Aug. 1965), paras. 6b-d (Annex 48).
265 United Kingdom, Secretary of State’s Private Discussion with the Secretary of State for Defence
on 15 September: Indian Ocean Islands, FO 371/184528 (15 Sept. 1965) (hereinafter “Secretary of
State’s Private Discussion with the Secretary of State for Defence (15 Sept. 1965)”), para. 2 (Annex
55).
86
of Mauritian Ministers. A note prepared by the Foreign Office after the event, in
1982, records that:
the consent of Mauritian Ministers to the detachment of the Chagos
Archipelago in 1965 was sought for essentially political reasons, and
at the insistence of the then Colonial Secretary, Mr Greenwood.
Constitutionally, it was open to Britain, the colonial power, to
detach the islands by Order in Council without that consent.266
3.56 This is also reflected in the contemporaneous records. At a Chiefs of Staff
Committee meeting on 26 August 1965, a Colonial Office official said that:
The Colonial Secretary was anxious to detach the Chagos
Archipelago by consent and was disinclined to detach it arbitrarily
by an Order in Council, which would have international political
repercussions.267
3.57 A brief prepared for the Colonial Secretary two days later warned that:
The Secretary of State will no doubt wish to resist strongly any
suggestion that there should be any question of the matter being
handled in the only other way that would be open to us for securing
these facilities in the Indian Ocean if the acquiescence of the
Mauritian Ministers could not be obtained… i.e. by simply forcing
the thing through, using our constitutional powers. To do so would
have disastrous consequences from the point of view of world
opinion. It would completely disrupt the Mauritius Constitutional
Conference and would in all probability make impossible for some
time to come to any agreement on the constitutional future of
266 Note from M. Walawalkar of the African Section Research Department to Mr Campbell of the
East African Department - Diego Garcia: Research on Mauritian Government’s Claim to
Sovereignty, FCO 31/3437 (8 Oct. 1982), para. 9 (Annex 124). See also U.S. Defence Interests in
the Indian Ocean (23 Apr. 1964) (Annex 26); Telegram from U.K. Secretary of State for the
Colonies to J. Rennie, Governor of Mauritius, No. PAC 93/892/01 (10 Aug. 1965) (Annex 44).
267 Mauritius Constitutional Conference (26 Aug. 1965), p. 6 (Annex 47).
87
Mauritius; this in turn could pose considerable internal security
difficulties… .268
3.58 At a Cabinet Committee meeting on 31 August 1965, the Foreign Secretary
was also alive to the potential political advantage to be garnered by securing the
“agreement” of Mauritian Ministers. The Foreign Secretary predicted that “if both
the Seychelles and the Mauritius Governments agreed to our proposals, there would
be no international criticism of our actions.”269
V. Private meetings on “defence matters”
3.59 In the days leading up to the September 1965 Conference, the Colonial
Office devised a plan by which talks on detachment would take place “in parallel
(and in a smaller group) with the constitutional talks, the object being to link both
up in a possible package deal at the end.”270 Private meetings on “defence matters”
would be chaired by Colonial Secretary Greenwood and attended by Governor
Rennie, Premier Ramgoolam, three other Mauritian party leaders, and a leading
independent Mauritian Minister.271
3.60 The first private meeting on “defence matters” took place on 13 September
1965. The Colonial Secretary and Governor Rennie met privately with Premier
268 United Kingdom, Mauritius and Diego Garcia: The Question of Consent - Note from 28 August
1965, FCO 31/3437 (undated) (Annex 49).
269 U.K. Defence and Oversea Policy Committee, Minutes of a Meeting held at 10 Downing Street,
S.W.1, on Tuesday 31st August, 1965, at 11 a.m., OPD(65), CAB 148/18 (31 Aug. 1965), p. 6
(Annex 51).
270 U.K. Foreign Office, Minute from E. H. Peck to Mr. Graham: Indian Ocean Islands, FO
371/184527 (3 Sept. 1965), p. 2, para. 2 (Annex 52).
271 Premier Ramgoolam was joined by three other Mauritian party leaders: Attorney General Jules
Koenig (PMSD), Minister Sookdeo Bissoondoyal (IFB) and Minister Abdool Razack Mohamed
(MCA). The fourth colleague was the leading independent Minister, Maurice Paturau.
88
Ramgoolam in advance to ask him about the likely reactions of his colleagues.
Premier Ramgoolam recalled that:
after the Governor had put the proposals to the Council of Ministers
he [Premier Ramgoolam] had had a separate meeting with his
colleagues. At that time he had found them almost unanimously
against the proposal to excise the islands from Mauritius’s
jurisdiction but ready to consider granting a lease on any conditions
satisfactory to the British Government.272
3.61 It is recorded that at the private meeting with Mr Greenwood and Governor
Rennie on 13 September, Premier Ramgoolam “expressed preference for a lease as
against detachment.”273
3.62 Following this meeting, the U.K. Foreign Secretary and Defence Secretary
had a private discussion during which it was decided that they would stress to Mr
Greenwood the “great importance” that the U.S. attached to obtaining Diego
Garcia.274 It was noted that if Mauritian “acquiescence” could not be obtained, it
would seem essential to adopt the Foreign Office and Ministry of Defence
recommendation of “forcible detachment and compensation paid into a fund”.275
3.63 The second private meeting on “defence matters” took place a week later,
on 20 September 1965. Jules Koenig, the leader of the PMSD, referred to a meeting
held at the American Embassy five days earlier at which no concessions had been
272 United Kingdom, Draft Record of the Secretary of State’s Talk with Sir S. Ramgoolam at 10.00
Hours on Monday, 13th September, in the Colonial Office, FCO 31/3834 (13 Sept. 1965), p. 1
(Annex 53).
273 “British Indian Ocean Territory 1964-1968: Chronological Summary” (1964-1968), item no. 40
(Annex 23). See also Detachment of the Chagos Archipelago (15 July 1983), para. 8 (Annex 132).
274 Secretary of State’s Private Discussion with the Secretary of State for Defence (15 Sept. 1965),
para. 2 (Annex 55).
275 Ibid.
89
offered by the U.S. Government.276 In response Mr Greenwood suggested that
Mauritian Ministers should reflect on the U.S. Government’s “insistence on
excision and their refusal to consider a lease”.277 Premier Ramgoolam again made
expressly clear that Mauritius could not accept detachment of the Chagos
Archipelago:
the Mauritius Government was not interested in the excision of the
islands and would stand out for a 99-year lease. They envisaged a
rent of about £7 [million] a year for the first twenty years and say £2
[million] for the remainder. They regarded the offer of a lump sum
of £1 [million] as derisory and would rather make the transfer gratis
than accept it. The alternative was for Britain to concede
independence to Mauritius and allow the Mauritius Government to
negotiate thereafter with the British and United States Governments
over Diego Garcia.278
3.64 Mr Greenwood argued that Diego Garcia “was not in present conditions a
source of wealth to Mauritius” and that it would be in Mauritius’ own interest to
have an Anglo-U.S. military presence in the area.279 In response, Premier
Ramgoolam, supported by two of his colleagues, reiterated that he understood the
facilities to be in the interest of the whole Commonwealth, and repeated that:
he would prefer to make the facilities available free of charge rather
than accept a lump sum of £1 [million] which was insignificant seen
against Mauritius’ annual recurrent budget amounting to about
276 Mauritian party leaders had met with the U.S. Embassy Minister for Economics, Mr Armstrong,
who “did his best to persuade the Mauritian Ministers that there was no chance of the US increasing
Mauritius’ sugar or immigration quotas.” See Detachment of the Chagos Archipelago (15 July
1983), para. 8 (Annex 132).
277 United Kingdom, Mauritius - Defence Issues: Record of a Meeting in the Colonial Office at 9:00
a.m. on Monday, 20th September, 1965, FO 371/184528 (20 Sept. 1965), p. 1 (Annex 57).
278 Ibid., pp. 2-3 (emphasis in the original).
279 Ibid., p. 3.
90
£13.5 [million] – with the development budget the total was about
£20 [million].280
3.65 Premier Ramgoolam again stressed that excision was not an option,
insisting instead on a 99-year lease.281 The Colonial Secretary said that the U.S.
Government had been “categorical in insisting that British sovereignty must be
retained over Chagos” and warned the Mauritian Ministers that if detachment could
not be achieved “the whole project might well fall through” and the U.S.
Government would “look elsewhere for the facilities”.282 Premier Ramgoolam
“suggested that it might be better if the whole matter were left until Mauritius were
independent and were then negotiated with the independent Government.”283
3.66 The Colonial Secretary replied that “it might be possible for him to secure
agreement to increasing the proposed compensation from £1 million in the direction
of £2 million.”284 Premier Ramgoolam said that “Mauritius ministers had not come
to bargain”, adding that they “could not bargain over their relationship with the
United Kingdom and the Commonwealth.”285
3.67 Later that day, 20 September, Colonial Secretary Greenwood met with the
British Prime Minister and the Defence Secretary and reported on the latest stage
280 Ibid., p. 4.
281 Ibid., p. 5.
282 Ibid., pp. 5-6.
283 Ibid., p. 7.
284 Ibid.
285 Ibid.
91
of the Conference. It was agreed that the Prime Minister would meet with Premier
Ramgoolam to have “a private word”.286
VI. Premier Ramgoolam’s meeting with Prime Minister Wilson
3.68 The meeting between the British Prime Minister, Harold Wilson, and
Premier Ramgoolam took place at 10.00 am on 23 September 1965 at 10 Downing
Street.
3.69 A minute prepared by the Prime Minister’s private secretary – in advance
of the meeting – spells out the objective of Harold Wilson’s “private word” with
Premier Ramgoolam:
Sir Seewoosagur Ramgoolam is coming to see you at 10.00
tomorrow morning. The object is to frighten him with hope: hope
that he might get independence; Fright lest he might not unless he is
sensible about the detachment of the Chagos Archipelago. I attach a
brief prepared by the Colonial Office, with which the Ministry of
Defence and the Foreign Office are on the whole content. The key
sentence in the brief is the last sentence of it on page three.287
3.70 The brief prepared by the Colonial Office confirms that the Mauritian
Ministers “cannot contemplate detachment but propose a long lease”.288 The
conclusion of the brief, including the “key last sentence”, states that:
Throughout consideration of this problem, all Departments have
accepted the importance of securing consent of the Mauritius
Government to detachment. The Premier knows the importance we
286 United Kingdom, Note for the Record relating to a Meeting held at No. 10 Downing Street on 20
September 1965 between the U.K. Prime Minister, the Colonial Secretary and the Defence Secretary
(20 Sept. 1965), paras. 1-2 (Annex 58).
287 Note for the Prime Minister’s Meeting with Sir Seewoosagur Ramgoolam, Premier of Mauritius
(22 Sept. 1965), p. 1 (emphasis added) (Annex 59).
288 Ibid., p. 3.
92
attach to this. In the last resort, however, detachment could be
carried out without Mauritius consent, and this possibility has been
left open in recent discussions in Defence and Overseas Policy
Committee. The Prime Minister may therefore wish to make some
oblique reference to the fact that H.M.G. have the legal right to
detach Chagos by Order in Council, without Mauritius consent, but
this would be a grave step.289
3.71 A separate minute from Colonial Secretary Greenwood expresses anxiety
that the “bases issue” would make the Constitutional Conference more difficult,
and that care should be taken not to make it obvious that the U.K. was in fact
offering independence to Mauritius on condition of detachment of the Chagos
Archipelago:
I am sure that we should not seem to be trading Independence for
detachment of the Islands. That would put us in a bad light at home
and abroad and would sour our relations with the new state.290
3.72 At the meeting with Premier Ramgoolam, Prime Minister Wilson said that
he “wished to discuss with Sir Seewoosagur a matter which was not strictly
speaking within the Colonial Secretary’s sphere: it was the Defence problem and
in particular the question of the detachment of Diego Garcia.”291 Following the
advice of Colonial Secretary Greenwood, and for the sake of appearances, Prime
Minister Wilson added: “This was of course a completely separate matter and not
289 Ibid. (emphasis in the original). It is noteworthy that, in a handwritten note at the top of the first
page, Prime Minister Wilson asked for the last sentence of this paragraph to be further explained to
him.
290 Ibid., p. 2.
291 U.K. Foreign Office, Record of a Conversation between the Prime Minister and the Premier of
Mauritius, Sir Seewoosagur Ramgoolam, at No. 10, Downing Street, at 10 A.M. on Thursday,
September 23, 1965, FO 371/184528 (23 Sept. 1965), p. 1 (Annex 60).
93
bound up with the question of Independence.”292 However, the British Prime
Minister went on to say that:
in theory, there were a number of possibilities. The Premier and his
colleagues could return to Mauritius either with Independence or
without it. On the Defence point, Diego Garcia could either be
detached by order in Council or with the agreement of the Premier
and his colleagues. The best solution of all might be Independence
and detachment by agreement, although he could not of course
commit the Colonial Secretary at this point.293
3.73 Premier Ramgoolam understood Prime Minister Wilson’s words to be in
the nature of a threat. He understood that if he and his colleagues did not “agree”
to the detachment of the Chagos Archipelago, Mauritius would not be granted
independence.294 In the years that followed this meeting, senior British civil
servants, diplomats and politicians, including Prime Minister Wilson, have
(privately) acknowledged that Mauritius was granted independence on condition of
“agreement” to detachment.295 This was also the view expressed by Judges Kateka
and Wolfrum in their Dissenting and Concurring Opinion in the Chagos Marine
Protected Area Arbitration.296 No contrary view was expressed by any of the three
other arbitrators who sat in that case.
3.74 On 25 May 1967, less than two years after the meeting with Premier
Ramgoolam, Prime Minister Wilson attended a Cabinet Committee meeting in the
292 Ibid., pp. 1-2.
293 Ibid., p. 3.
294 In the years that followed, Premier Ramgoolam (who was to become Prime Minister of newly
independent Mauritius) spoke of having chosen independence for Mauritius over the retention of
the Chagos Archipelago. See Chapter 4, Section II. A.
295 See paras. 3.74-3.80 below.
296 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), paras. 76-77 (Dossier No. 409).
94
company of inter alia the Chancellor of the Exchequer, and the Secretaries of State
for Commonwealth Affairs, Economic Affairs, Defence and the Home Department.
The Commonwealth Secretary is recorded as having said that:
at the time when the agreement for the detachment of BIOT was
signed in 1965, Mauritian Ministers were unaware of our
negotiations with the United States Government for a contribution
by them towards the cost of compensation for detachment. They
were further told that there was no question of a further contribution
to them by the United States Government since this was a matter
between ourselves and Mauritius, that the £3 million was the
maximum we could afford, and that unless they accepted our
proposals we should not proceed with the arrangements for the grant
to them of independence.297
Prime Minister Wilson, who spoke shortly thereafter to summarise the meeting, did
not make any comment on, correction or clarification to, the Commonwealth
Secretary’s statement.298
3.75 On 4 March 1983, shortly before a Mauritian Parliamentary Select
Committee was to publish a report on the detachment of the Chagos Archipelago,
the British High Commissioner in Port Louis wrote to the Foreign Office to warn
that:
de Lestrac [the Mauritian Minister of External Affairs, Tourism &
Emigration] is reported as saying in Paris that Ramgoolam had to
agree to the excision under duress because the alternative put to him
297 U.K. Defence and Oversea Policy Committee, Minutes of a Meeting held at 10 Downing Street,
S.W.1., on Thursday, 25th May 1967 at 9:45 a.m., OPD(67) (25 May 1967), p. 2 (emphasis added)
(Annex 90).
298 Ibid., p. 3.
95
was a referendum on Independence (which presumably he feared
because of the strength in those days of Duval)… .299
3.76 Five days later, Margaret Walawalkar, of the Foreign Office Research
Department, responded as follows:
Although a referendum on independence was the demand of Duval’s
PMSD it is my firm recollection that the record of the 1965
Conference and of the side-meetings on the detachment of Chagos
contain no hint that the threat of a referendum was used by HMG to
blackmail Ramgoolam. The Prime Minister did, however, implicitly
threaten Ramgoolam with detachment by Order in Council if
agreement were not forthcoming. … Given that the Constitutional
Conference was considering the question of the ultimate status of
Mauritius and that the main debate was between the advocates of
independence and of continuing association with Britain, however,
I imagine that the Prime Minister’s further suggestion that the ‘best
solution … might be Independence and detachment by agreement
…’ could also have been interpreted by Ramgoolam as a threat (or
a promise). The trouble is that the official record does not tell us
everything. It cannot, for example, convey atmosphere and
innuendo.300
3.77 The British Government organised the September 1965 Conference in such
a way that independence and “agreement” to detachment formed part of an
inseparable “package deal”.301 An official at the Foreign Office, Edward Peck,
299 Letter from J. N. Allan of the British High Commission in Port Louis to P. Hunt of the East
African Department, FCO 31/3834 (4 Mar. 1983), para. 2(a) (Annex 126). On the Select
Committee’s Report, see paras. 4.10-4.14 below.
300 Letter from M. Walawalkar of the African Section Research Department to P. Hunt of the East
African Department on the Mauritian Agreement to Detachment of Chagos, FCO 31/3834 (9 Mar.
1983), para. 2 (emphasis added, save that the word “could” is underlined in the original) (Annex
127).
301 U.K. Foreign Office, Minute from E. H. Peck to Mr. Graham: Indian Ocean Islands, FO
371/184527 (3 Sept. 1965), p. 2, paras. 1-2 (Annex 52).
96
writing one week before Premier Ramgoolam’s meeting with Prime Minister
Wilson, noted that:
It seems likely that the detachment of the islands may have to be
arranged as a package deal at the conclusion of the Constitutional
Talks.302
3.78 The fact that independence and detachment were part of a “package deal”
was also acknowledged in a Minute dated 14 February 1967 to Mr Fairclough, a
senior Colonial Office official:
H.M.G.’s decision to come out publicly in favour of independence
for Mauritius was part of the deal between our own present Prime
Minister and the Premier of Mauritius regarding the detachment of
certain Mauritius dependencies for Biot.303
3.79 Mr Fairclough had first-hand knowledge of the link between independence
and detachment: he had attended the first two private meetings with Mauritian
Ministers on “defence matters”. On the same day as Prime Minister Wilson’s
meeting with Premier Ramgoolam, the U.K. held separate (and secret) talks on the
detachment of the Chagos Archipelago with a large U.S. delegation in London.304
Mr Fairclough described the progress of the talks with Mauritian Ministers to the
American delegation in these terms:
The British side had tried to keep the independence issue which the
conference was really meant to deal with, separate from the defence
302 Secretary of State’s Private Discussion with the Secretary of State for Defence (15 Sept. 1965),
para. 1 (Annex 55).
303 United Kingdom, Minute from M. Z. Terry to Mr. Fairclough - Mauritius: Independence
Commitment, FCO 32/268 (14 Feb. 1967), para. 4 (Annex 86).
304 Defence Facilities in the Indian Ocean (23-24 Sept. 1965), Record of a Meeting with an
American Delegation headed by Mr. Kitchen, on 23 September, 1965, Mr. Peck in the chair (Annex
62).
97
project, but the outcome of the latter was found to depend partly on
the former problem.305
3.80 Writing on this subject in a top secret note 11 years later, Mr Fairclough
again acknowledged that Mauritian Ministers “agreed” to the detachment of the
Chagos Archipelago as a necessary condition, and in exchange for, obtaining the
independence of Mauritius. In the context of discussing the implications of the U.S.
secret financial contribution, Mr Fairclough expressed concern that Premier
Ramgoolam would be:
held up to ridicule in the forthcoming election campaign for having
been ‘duped’ by the British and would again be attacked for having
sold Chagos too cheaply in order to secure the agreement of the
British Government that Mauritius should proceed to
independence.306
3.81 Five decades later, Judges Kateka and Wolfrum, having carefully
considered the nature and context of the meeting between Prime Minister Wilson
and Premier Ramgoolam, came to the following conclusion:
It was further pointed out—correctly—that Mauritius had no choice.
The detachment of the Chagos Archipelago was already decided
whether Mauritius gave its consent or not.
A look at the discussion between Prime Minister Harold Wilson and
Premier Sir Seewoosagur Ramgoolam suggests that the [sic]
Wilson’s threat that Ramgoolam could return home without
independence amounts to duress. The Private Secretary of Wilson
used the language of “frighten[ing]” the Premier “with hope”. The
Colonial Secretary equally resorted to the language of intimidation.
Furthermore, Mauritius was a colony of the United Kingdom when
305 Ibid., p. 1 (emphasis added).
306 U.K. Colonial Office, Minute from A. J. Fairclough of the Colonial Office to a Minister of State,
with a Draft Minute appended for signature by the Secretary of State for Commonwealth Affairs
addressed to the Foreign Secretary, FCO 16/226 (22 May 1967), para. 7 (emphasis added) (Annex
89). The spelling of the word “duped” appears to have been corrected by hand.
98
the 1965 agreement was reached. The Council of Ministers of
Mauritius was presided over by the British Governor who could
nominate some of the members of the Council. Thus there was a
clear situation of inequality between the two sides.307
VII. The Lancaster House Undertakings
3.82 The third and final private meeting between Mauritian Ministers and
Colonial Secretary Greenwood on “defence matters” took place only a few hours
after Premier Ramgoolam’s meeting with Prime Minister Wilson. Mr Greenwood
“explained that he was required to inform his colleagues of the outcome of his talks
with Mauritian Ministers about the detachment of the Chagos Archipelago at 4 p.m.
that afternoon and was therefore anxious that a decision should be reached at the
present meeting.”308 Mr Greenwood urged Mauritian Ministers to agree to the
detachment of the Chagos Archipelago and not “lose this opportunity.”309 He
reiterated that, in the absence of their “agreement”, “it would be possible for the
British Government to detach [the Chagos Archipelago] from Mauritius by Order
in Council.”310
3.83 Premier Ramgoolam made one last attempt to reject detachment in favour
of a lease. The Colonial Secretary told him bluntly that this was “not acceptable.”311
307 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), paras. 76-77 (footnotes omitted) (Dossier No. 409). The other three members of the Tribunal
considered that the Tribunal lacked jurisdiction over the issue, and therefore expressed no view on
that part of the case.
308 United Kingdom, Record of a Meeting Held in Lancaster House at 2.30 p.m. on Thursday 23rd
September: Mauritius Defence Matters, CO 1036/1253 (23 Sept. 1965), para. 1 (Annex 61).
309 Ibid., para. 2.
310 Ibid.
311 Ibid., para. 3.
99
The record of that meeting sets out the U.K.’s view of the understanding that was
eventually reached with Mauritian Ministers:
22. Summing up the discussion, the SECRETARY OF STATE
asked whether he could inform his colleagues that Dr. Ramgoolam,
Mr. Bissoondoyal and Mr. Mohamed were prepared to agree to the
detachment of the Chagos Archipelago on the understanding that he
would recommend to his colleagues the following:-
(i) negotiations for a defence agreement between Britain and
Mauritius;
(ii) in the event of independence an understanding between the
two governments that they would consult together in the
event of a difficult internal security situation arising in
Mauritius;
(iii) compensation totalling up to £3 [million] should be paid to
the Mauritius Government over and above direct
compensation to landowners and the cost of resettling others
affected in the Chagos Islands;
(iv) the British Government would use their good offices with the
United States Government in support of Mauritius’ request
for concession over sugar imports and the supply of wheat
and other commodities;
(v) that the British Government would do their best to persuade
the American Government to use labour and materials from
Mauritius for construction work in the islands;
(vi) the British Government would use their good offices with the
U.S. Government to ensure that the following facilities in the
Chagos Archipelago would remain available to the Mauritius
Government as far as practicable:
(a) Navigational and Meteorological facilities;
(b) Fishing Rights;
(c) Use of Air Strip for emergency landing and for
refuelling civil planes without disembarkation of
passengers.
100
(vii) that if the need for the facilities on the islands disappeared
the islands should be returned to Mauritius;
(viii) that the benefit of any minerals or oil discovered in or near
the Chagos Archipelago should revert to the Mauritius
Government.312
3.84 Against this background of escalating pressure to “agree” to detachment as
a condition of independence – described by Judges Kateka and Wolfrum as
“duress”313 – Premier Ramgoolam reluctantly “agreed”. He told Colonial Secretary
Greenwood that, under the circumstances, these proposals were “acceptable to him
and Messrs. Bissoondoyal and Mohamed in principle”, but that he would discuss
the matter with his other ministerial colleagues.314 He did so in the knowledge that
in absence of such an “agreement”, Mauritius would not obtain independence. Mr
Paturau could not accept the detachment and noted that “since the decision was not
unanimous, he foresaw serious political trouble over it in Mauritius.”315 Mr Koenig
did not attend the meeting.316
3.85 A further U.K.-U.S. meeting was held the next day. Mr Fairclough reported
to the U.S. delegation that “Dr. Ramgoolam and a majority of Ministers present had
agreed to the detachment of the Chagos Archipelago”.317 Mr Fairclough went on to
312 Ibid., para. 22. See also Handwritten amendments proposed by S. Ramgoolam, FCO 31/3834
(Annex 63).
313 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), para. 77 (Dossier No. 409).
314 United Kingdom, Record of a Meeting Held in Lancaster House at 2.30 p.m. on Thursday 23rd
September: Mauritius Defence Matters, CO 1036/1253 (23 Sept. 1965), para. 23 (Annex 61).
315 Ibid., para. 18.
316 Ibid., para. 6.
317 Defence Facilities in the Indian Ocean (23-24 Sept. 1965), Summary record of ‘Plenary’ meeting
between the United Kingdom and United States officials (led by Mr. Kitchen), Mr. Peck in the Chair
on 24 September, 1965, p. 1 (Annex 62).
101
assure the Americans that “the necessary legal measures would be comparatively
quick”.318 However, it was agreed that:
the term ‘detachment’ should be avoided in any public statements
on this subject, and that some other phrase – e.g. the retention under
the administration of Her Majesty’s Government should be devised
in its place.319
3.86 It was decided that the U.K. would proceed to “make the necessary
constitutional and administrative arrangements for the detachment of [the] Chagos
Archipelago from Mauritius”.320 At a side meeting it was explained how the U.K.
would carry out the detachment:
the Colonial Office envisaged the detachment operation taking place
in three stages. During the first stage normal life would continue on
the islands detached but not yet needed for defence facilities. In the
middle stage the population would have to be cleared off any island
when it was needed for defence purposes. This process would take
a little time. During the final stage it was envisaged that an island
with defence facilities installed on it would be free from local
civilian inhabitants.321
3.87 Before proceeding with the detachment, the U.K. sought the approval of the
Mauritian Government. In a despatch to the Foreign Office, a Colonial Office
official explained that this was necessary because “the Governor [of Mauritius]
originally broached the subject with the full Council of Ministers, and our talks in
London were only with the main party leaders and an Independent Minister”.322
318 Ibid.
319 Ibid.
320 Ibid., Note on Further Action, p. 1 (Annex 62).
321 Ibid., Record of a Meeting of U.K. and U.S. Officials on 24 September, 1965, to Discuss Draft
B, Mr. Peck in the Chair, para. 3 (Annex 62).
322 Letter from T. Smith of the U.K. Colonial Office to E. Peck of the U.K. Foreign Office, PAC
93/892/01, FO 371/184529 (8 Oct. 1965), para. 2 (Annex 67).
102
Moreover, “the last and critical meeting” had taken place without Mr Koenig, who
had walked out of the Constitutional Conference.323 It was noted that securing
Mauritian Ministers’ agreement “was not a very easy proceeding” and that the U.K.
had agreed to stipulations “some of which are perhaps rather tiresome”.324
3.88 On 6 October 1965, instructions were sent to Governor Rennie to secure the
“agreement” of the Mauritius Government to the detachment “on the conditions
enumerated in (i) – (viii) in paragraph 22” of the Record of the Meeting held on 23
September 1965.325 The Colonial Secretary specified that:
3. Points (i) and (ii) of paragraph 22 will be taken into account in
the preparation of a first draft of the Defence Agreement which is to
be negotiated between the British and Mauritius Governments
before independence. The preparation of this draft will now be put
in hand.
4. As regards point (iii), I am arranging for separate consultations to
take place with the Mauritius Government with a view to working
out agreed projects to which the £3 million compensation will be
devoted. …
5. As regards points (iv), (v) and (vi) the British Government will
make appropriate representations to the American Government as
soon as possible. You will be kept fully informed of the progress of
these representations.
323 Ibid. See also Minute from Secretary of State for the Colonies to the Prime Minister (5 Nov.
1965), para. 4 (Annex 70).
324 Letter from T. Smith of the U.K. Colonial Office to E. Peck of the U.K. Foreign Office, PAC
93/892/01, FO 371/184529 (8 Oct. 1965), para. 2 (Annex 67).
325 U.K. Colonial Office, Despatch No. 423 to the Governor of Mauritius, PAC 93/892/01, FO
371/184529 (6 Oct. 1965), para. 2 (Annex 65). Subsequently, on 20 October 1965, formal
instructions were sent to the Governor of Seychelles to confirm the agreement of the Executive
Council to detach Aldabra, Farquhar and Desroches from Seychelles. See also “British Indian Ocean
Territory 1964-1968: Chronological Summary” (1964-1968), item no. 47 (Annex 23).
103
6. The Chagos Archipelago will remain under British sovereignty,
and Her Majesty’s Government have taken careful note of points
(vii) and (viii).326
3.89 In the meantime, on 27 October 1965, the Foreign Office wrote to the U.K.
Mission to the U.N. to find out when discussions on the decolonisation of Mauritius
were likely to take place, citing concern that “any hostile reference” to the
detachment of the Chagos Archipelago could have the effect of “jeopardiz[ing]
final discussions in the Mauritius Council of Ministers”.327 The U.K. Mission
replied that discussions were imminent, but that it was not possible to predict
exactly when.328
3.90 On 5 November 1965, Governor Rennie informed the Colonial Secretary
that the Mauritius “Council of Ministers today confirmed agreement to the
detachment of Chagos Archipelago” on the conditions set out at paragraph 22 of
the Record of the Meeting of 23 September 1965.329 He added that PMSD Ministers
had dissented and were “considering their position in the government.”330 The
“agreement” of Mauritian Ministers was expressly on the understanding that:
(1) [the] statement in paragraph 6 of your despatch ‘H.M.G. have
taken careful note of points (vii) and (viii)’ means H.M.G. have in
fact agreed to them.
326 U.K. Colonial Office, Despatch No. 423 to the Governor of Mauritius, PAC 93/892/01, FO
371/184529 (6 Oct. 1965), paras. 3-6 (Annex 65).
327 Telegram from the U.K. Foreign Office to the U.K. Mission to the U.N., No. 4104, FO
371/184529 (27 Oct. 1965) (hereinafter Telegram from the U.K. Foreign Office to the U.K. Mission
to the U.N., No. 4104 (27 Oct. 1965)”) (Annex 68).
328 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 2697, FO
371/184529 (28 Oct. 1965) (hereinafter “Telegram from the U.K. Mission to the U.N. to the U.K.
Foreign Office, No. 2697 (28 Oct. 1965)”) (Annex 69).
329 Telegram from the Governor of Mauritius to the Secretary of State for the Colonies, No. 247, FO
371/184529 (5 Nov. 1965), para. 1 (Annex 71).
330 Ibid., para. 2.
104
(2) As regards (vii) undertaking to Legislative Assembly excludes
(a) sale or transfer by H.M.G. to third party or
(b) any payment or financial obligation by Mauritius
as condition of return.
(3) In (viii) ‘on or near’ means within area within which Mauritius
would be able to derive benefit but for change of sovereignty. I
should be grateful if you would confirm this understanding is
agreed.331
VIII. The formal detachment of the Chagos Archipelago
3.91 On 5 November 1965, Colonial Secretary Greenwood wrote to Prime
Minister Wilson to confirm that the Mauritius Council of Ministers had “agreed”
to detachment.332 He added that it is “essential that the arrangements for detachment
of these islands should be completed as soon as possible.”333 The need for rapid
action was explained explicitly as being based on concerns as to the reaction at the
United Nations:
6. From the United Nations point of view the timing is
particularly awkward. We are already under attack over Aden and
Rhodesia, and whilst it is possible that the arrangements for
detachment will be ignored when they become public, it seems more
likely that they will be added to the list of ‘imperialist’ measures for
which we are attacked. We shall be accused of creating a new colony
in a period of decolonisation and of establishing new military bases
when we should be getting out of the old ones. If there were any
chance of avoiding publicity until this session of the General
Assembly adjourns at Christmas there would be advantage in
331 Ibid., para. 1.
332 Minute from Secretary of State for the Colonies to the Prime Minister (5 Nov. 1965), para. 3
(Annex 70).
333 Ibid., para. 5.
105
delaying the Order in Council until then. But to do so would
jeopardize the whole plan.
7. The Fourth Committee of the United Nations has now
reached the item on Miscellaneous Territories and may well discuss
Mauritius and Seychelles next week. If they raise the question of
defence arrangements on the Indian Ocean Islands before we have
detached them, the Mauritius Government will be under
considerable pressure to withdraw their agreement to our proposals.
Moreover we should lay ourselves open to an additional charge of
dishonesty if we evaded the defence issue in the Fourth Committee
and then made the Order in Council immediately afterwards. It is
therefore important that we should be able to present the U.N. with
a fait accompli.
8. In these circumstances I propose to arrange for an Order in
Council to be made on Monday 8th November. A prepared written
Parliamentary Question will be tabled on 9th November and
answered on 10th November in the terms of the attached draft.
Supplementary background guidance has been prepared for use with
the press.
9. If we can meet the timetable set out in the previous paragraph
we shall have a good chance of completing the operation before
discussion in the Fourth Committee reaches the Indian Ocean
Islands. We shall then be better placed to meet the criticism which
is inevitable at whatever time we detach these islands from
Mauritius and Seychelles.334
3.92 On 6 November 1965, Mr Greenwood informed Governor Rennie that for
“planning purposes” the Colonial Office was assuming that an Order in Council
would be made on 8 November 1965 with immediate effect, but that no publicity
334 Ibid., paras. 6-9 (emphasis added, save that “fait accompli” is underlined in the original). See
also Telegram from the U.K. Foreign Office to the U.K. Mission to the U.N., No. 4104 (27 Oct.
1965) (Annex 68); Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No.
2697 (28 Oct. 1965) (Annex 69); Telegram from the U.K. Foreign Office to the U.K. Mission to the
U.N., No. 4310, FO 371/184529 (6 Nov. 1965) (Annex 72); Telegram from the U.K. Foreign Office
to the U.K. Mission to the U.N., No. 4327 (8 Nov. 1965) (Annex 75); Telegram from the U.K.
Mission to the U.N. to the U.K. Foreign Office, No. 2837 (8 Nov. 1965) (Annex 77); Telegram
from the U.K. Foreign Office to the U.K. Mission to the U.N., No. 4361 (10 Nov. 1965) (Annex
78).
106
would be given until 10 November. The Colonial Secretary explained that the Order
would detach the islands and create “a separate colony”.335
3.93 On the same day, the Foreign Office reported to the U.K. Mission to the
U.N. in New York that Mauritian Ministers had “accepted proposals on 5
November subject to certain understandings”.336 The Foreign Office, like the
Colonial Office, wished for detachment to occur as soon as possible:
2. In view of possible publicity and consequent pressure on the
Mauritius and Seychelles Governments to change their minds, we
are proceeding with detachment immediately. We are arranging for
an Order in Council to be made on 8 November and for a prepared
Parliamentary Question to be tabled on 9 November for written
answer on 10 November… .
3. If this operation is complete before Mauritius comes up in
the Fourth Committee it seems to us that you will then be better
placed to deal with the inevitable criticism. We hope therefore that
you will do your best to ensure that discussion of Mauritius and
other territories in the Indian Ocean is put off for as long as possible,
and at least until 11 November.337
3.94 The Foreign Office advised the U.K. Mission to “concert tactics with the
United States Delegation”338 and sent additional Guidance to the U.K. Mission.339
This Guidance falsely stated that: “The islands chosen have virtually no permanent
335 Telegram from the U.K. Secretary of State for the Colonies to the Governor of Mauritius (No.
267) and the Governor of Seychelles (No. 356), PAC 93/892/01, FO 371/184529 (6 Nov. 1965),
paras. 1-2 (Annex 73).
336 Telegram from the U.K. Foreign Office to the U.K. Mission to the U.N., No. 4310, FO
371/184529 (6 Nov. 1965), para. 1 (Annex 72).
337 Ibid., paras. 2-3.
338 Ibid., para. 5.
339 Telegram from the U.K. Foreign Office to the U.K. Mission to the U.N., No. 4327 (8 Nov. 1965)
(Annex 75).
107
inhabitants”.340 Lord Caradon, the British Permanent Representative to the U.N. in
New York, reported to the Foreign Office that there was nothing that could be done
to prevent a debate on the detachment, and he recognised that this position “may
well lead to charges of failure to carry out our Charter obligations to those who are
permanent inhabitants.”341 The British Permanent Representative noted that: “If we
could say there are… no permanent inhabitants many of these difficulties would
not arise, but the use of ‘virtually’… seems to preclude this.”342
3.95 On 8 November 1965, the Colonial Secretary informed Governor Rennie
that the “British Indian Ocean Territory” had been established by Order in Council:
A meeting of the Privy Council was held this morning, 8th
November, and an Order in Council entitled the British Indian
Ocean Territory Order 1965… has been made constituting the
‘British Indian Ocean Territory’ consisting of the Chagos
Archipelago and Aldabra, Farquhar and Desroches islands.343
3.96 The Order in Council established the “BIOT” with a “Commissioner”
having wide-ranging powers inter alia to make laws and grant pardons or respite
from the execution of any criminal sentence.344 Section 18(2) of the Order in
340 Ibid., para. 2(h). On the expulsion of the Chagossians by the U.K., see Section IX below and
Chapter 4, Section IV.
341 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 2837 (8 Nov. 1965),
para. 2 (Annex 77).
342 Ibid., para. 4.
343 Telegram from the U.K. Secretary of State for the Colonies to the Governor of Mauritius, No.
298, FO 371/184529 (8 Nov. 1965), para. 5 (Annex 76).
344 United Kingdom, “The British Indian Ocean Territory Order 1965” (8 Nov. 1965) (Annex 74).
Section 3 of the Order provides that:
3. As from the date of this Order–
(a) the Chagos Archipelago, being islands which immediately before the date of
this Order were included in the Dependencies of Mauritius, and
108
Council amended Section 90(1) of the 1964 Mauritius Constitution to remove the
Chagos Archipelago from the definition of “Mauritius”.345
IX. Subsequent actions, including the forcible removal of the inhabitants
3.97 One month after the detachment of the Chagos Archipelago, the U.N.
General Assembly adopted Resolution 2066 (XX) on the Question of Mauritius.
This expressed “deep concern” as to the steps taken to detach the Chagos
Archipelago. It invited “the administering Power to take no action which would
dismember the Territory of Mauritius and violate its territorial integrity”,346 an
invitation that has been ignored by the British Government.
3.98 On 30 December 1966, a secret exchange of notes between the U.K. and
U.S. concluded an “Agreement Concerning the Availability for Defense Purposes
(b) the Farquhar Islands, the Aldabra Group and the Island of Desroches, being
islands which immediately before the date of this Order were part of the Colony
of Seychelles,
shall together form a separate colony which shall be known as the British Indian Ocean
Territory.
The 1965 Order was amended in 1968 by the “British Indian Ocean Territory (Amendment) Order
1968” (26 Jan. 1968), to correct inaccuracies in the description of the Chagos Archipelago and the
Aldabra Group in Schedules 2 and 3 of the 1965 Order.
345 Ibid., Section 18(2):
Section 90(1) of the Constitution set out in schedule 2 to the Mauritius (Constitution) Order
1964 is amended by the insertion of the following definition immediately before the
definition of ‘the Gazette’:–
‘Dependencies’ means the islands of Rodrigues and Agalega, and the St. Brandon
Group of islands often called the Cargados Carajos… .
Section 18 also amended the Seychelles Letter Patent 1948, deleting the words “and the Farquhar
Islands” from the definition of “the Colony” in Article 1(1); deleting references to “Desroches”; and
the “Aldabra Group” from the first schedule and also made corresponding deletions to Section 2(1)
of the Seychelles (Legislative Council) Order in Council 1960.
346 Question of Mauritius (16 Dec. 1965) (Dossier No. 146). See also paras. 4.29-4.31 below.
109
of the British Indian Ocean Territory” (“the 1966 Agreement”).347 This provided
that the “BIOT” was to remain under U.K. sovereignty and be available to “meet
the needs of both Governments for defense.”348 The Agreement provided that “[t]he
required sites shall be made available to the United States authorities without
charge”349 and that “the islands shall remain available to meet the possible defense
needs of the two Governments for an indefinitely long period.”350 Paragraph 11 sets
out the temporal scope of the Agreement:
after an initial period of 50 years this Agreement shall continue in
force for a further period of twenty years unless, not more than two
years before the end of the initial period, either Government shall
have given notice of termination to the other, in which case this
Agreement shall terminate two years from the date of such notice.351
3.99 The initial 50-year period ran from 30 December 1966 to 30 December
2016. Neither the U.K. nor the U.S. gave notice of termination during the period
December 2014 to December 2016. As a result, by operation of paragraph 11, the
1966 Agreement was extended for a further period of 20 years, until 30 December
2036.352 That extension was not the subject of any prior consultation with
347 “Exchange of Notes Constituting an Agreement between the Government of the United Kingdom
of Great Britain and Northern Ireland and the Government of United States of America Concerning
the Availability for Defence Purposes of the British Indian Ocean Territory”, 603 U.N.T.S. 273 (No.
8737) (22 Aug. 1967), entered into force 30 Dec. 1966. The U.S. and U.K. signed two further
Agreements on 30 December 1966: a Secret Exchange of Notes on Financing and an Exchange of
Notes on the Seychelles Satellite Tracking Facility. The Seychelles Satellite Tracking Station
Agreement was published on 25 January 1967.
348 Ibid., paras. 1 and 2.
349 Ibid., para. 4.
350 Ibid., para. 11.
351 Ibid.
352 Mauritius was not consulted about the extension of the 1966 Agreement. See para. 4.22 below.
See also U.K. House of Lords, “Written Statement: Update on the British Indian Ocean Territory”,
No. HLWS257 (16 Nov. 2016) (hereinafter ““Update on the British Indian Ocean Territory” (16
Nov. 2016)”) (Annex 185).
110
Mauritius. Mauritius first learned about it in media reports.353
A. THE FORCIBLE REMOVAL OF THE CHAGOSSIANS
3.100 The 1966 Agreement required that the administering power take “those
administrative measures that may be necessary” to enable defense requirements to
be met.354 An Agreed Minute confirms that the “administrative measures” referred
to are “those necessary for modifying or terminating any economic activity then
being pursued in the islands, resettling any inhabitants, and otherwise facilitating
the availability of the islands for defence purposes.”355 Accordingly, between 1967
and 1973, the administering power forcibly removed the entire population of the
Chagos Archipelago. It did so in steps: by preventing the return of those who had
temporarily left the Chagos Archipelago, by relocating those living on Diego
Garcia to other islands, and finally by forcibly removing those who remained.
3.101 The administering power was fearful that it might be subjected to the
obligations arising under Article 73(e) of the U.N. Charter, which requires reports
to be transmitted to the U.N. regarding economic and social conditions in non-selfgoverning
territories. The U.K. Mission to the U.N. in New York acknowledged
that “it would not be difficult for our critics to develop the arguable thesis that
detachment by itself was a breach of Article 73.”356 The administering power
353 Owen Bowcott, “Chagos islanders cannot return home, UK Foreign Office confirms”, The
Guardian (16 Nov. 2016), available at https://www.theguardian.com/world/2016/nov/16/chagosislanders-
cannot-return-home-uk-foreign-office-confirms (last accessed 17 Feb. 2018).
354 “Exchange of Notes Constituting an Agreement between the Government of the United Kingdom
of Great Britain and Northern Ireland and the Government of United States of America Concerning
the Availability for Defence Purposes of the British Indian Ocean Territory”, para. 2(a), 603
U.N.T.S. 273 (No. 8737) (22 Aug. 1967), entered into force 30 Dec. 1966.
355 Government of the United Kingdom and Government of the United States, Agreed Minute, FO
93/8/401 (30 Dec. 1966), para. I. (emphasis added) (Annex 85).
356 Despatch from F. D. W. Brown of the U.K. Mission to the U.N. to C. G. Eastwood of the Colonial
Office, No. 15119/3/66 (2 Feb. 1966), para. 11 (Annex 80).
111
thereupon depopulated the Chagos Archipelago in part to avoid the “BIOT” being
added by the U.N. Committee of 24 to its list of non-self-governing territories.357
3.102 The Foreign Office noted a U.S. recommendation to use the term “migrant
laborers” when referring to the Chagossians, but conceded that although “it was a
good term for cosmetic purposes… it might be difficult to make completely
credible as some of the ‘migrants’ are second generation Diego residents.”358
Nevertheless, the administering power went on to assert in the U.N. and in
statements to Parliament that – contrary to what it well knew to be the facts – there
was no “permanent population” in the Chagos Archipelago. The Chagossians were
described by the administering power as mere “contract laborers” and “contract
workers”.359 One British official wrote:
We detach these islands – in itself a matter which is criticised. We
then find, apart from the transients, up to 240 ‘ilois’ whom we
propose either to resettle (with how much vigour of persuasion?) or
to certify, more or less fraudulently, as belonging somewhere else.
This all seems difficult to reconcile with the ‘sacred trust’ of Art.
73, however convenient we or the US might find it from the
viewpoint of defence. It is one thing to use ‘empty real estate’;
another to find squatters in it and to make it empty.360
3.103 The Permanent Under-Secretary in the Foreign Office asserted that: “We
must surely be very tough about this. The object of the exercise is to get some rocks
357 See Telegram from the U.K. Foreign Office to the U.K. Mission to the U.N., No. 4361 (10 Nov.
1965), para. 5 (Annex 78).
358 See Vine, Island of Shame (2009), p. 102 (Annex 151).
359 See ibid., pp. 92 and 105. Mauritius has objected to the designation of the Chagossians as
“contract workers” and “contract laborers”, and has maintained that the Chagossians have always
been, and are citizens of Mauritius and as such have always been residing in Mauritius.
360 See ibid., p. 91. The term “ilois” is sometimes used to refer to the Chagossians. It is estimated
that there were between 1,000 and 1,500 Chagossians living in the Chagos Archipelago at this time,
and at least 250 and 500 in mainland Mauritius. See also Telegram from the U.K. Foreign Office to
the U.K. Mission to the U.N., No. 4361 (10 Nov. 1965), para. 3 (Annex 78).
112
which will remain ours; there will be no indigenous population except seagulls”.361
Denis Greenhill (later the Baron of Harrow) replied that: “Unfortunately along with
the Birds go some few Tarzans or Men Fridays whose origins are obscure, and who
are being hopefully wished on to Mauritius etc. When this has been done, I agree
we must be very tough.”362
3.104 In March 1967, the U.S. announced that it intended to begin construction
work in Diego Garcia in the second half of 1968.363 The administering power
purchased the land in the Chagos Archipelago from Chagos Agalega Ltd for
£660,000 and leased the islands back to the company to continue operating the
plantations on its behalf.364 After May 1967, the administering power ordered
Chagos Agalega Ltd to prevent the return of inhabitants who had travelled away
from the Chagos Archipelago.365 Those who sought to board vessels from the main
Island of Mauritius were turned away.366 At the end of 1967, Moulinie & Co took
over the management of the Chagos Archipelago from the Chagos Agalega Ltd.367
Faced with the impending closure of the plantations, medical and school staff began
leaving the Chagos Archipelago, and food stocks diminished.368
361 Ibid., p. 91 (emphasis in the passage quoted by Vine).
362 Ibid.
363 A survey to that end took place in June and July 1967. See “British Indian Ocean Territory 1964-
1968: Chronological Summary” (1964-1968), items no. 71 and 78 (Annex 23). The U.S. proposal
was for a $46 million facility, including a 12,000-foot runway. See Vine, Island of Shame (2009),
p. 100 (Annex 151).
364 Vine, Island of Shame (2009), p. 92 (Annex 151).
365 Ibid.
366 Ibid. By 1969 at least 356 Chagossians were prevented from returning to the Archipelago. See
ibid., p. 94.
367 Ibid., p. 92.
368 Ibid., p. 93.
113
3.105 On 24 January 1971, the “Administrator” of the “BIOT” announced to the
inhabitants of Diego Garcia that the island would shortly be closed. Bewildered,
many Chagossians chose to stay in the Chagos Archipelago and relocated to Peros
Banhos and Salomon.369 Those who refused to leave Diego Garcia were threatened
that they would be shot or bombed.370 The “BIOT Commissioner”, Sir Bruce
Greatbatch, passed the Immigration Ordinance 1971, by which no person could
enter or be present in the Chagos Archipelago without being in possession of a
permit.371 Shortly thereafter, agents of the “BIOT” and Moulinie & Co continued
removing inhabitants to the outlying islands, including Peros Banhos and
Salomon.372
3.106 In the days before the last inhabitants were removed from Diego Garcia, Sir
Bruce Greatbatch ordered Marcel Moulinie, who had been left in charge of the
island, to kill the Chagossians’ pet dogs. It is recorded that:
he first tried to shoot the dogs with the help of Seabees armed with
M16 rifles. When this failed as an expeditious extermination
method, he attempted to poison the dogs with strychnine. This too
failed. Sitting in his home overlooking a secluded beach in the
Seychelles 33 years later, Moulinie explained to me how he finally
used raw meat to lure the dogs into a sealed copra-drying shed, the
Kalorifer. Locking them in the shed, he gassed the howling dogs
with exhaust piped in from U.S. military vehicles. Setting coconut
husks ablaze, he burnt the dogs’ carcasses in the shed. The
Chagossians were left to watch and ponder their fate.373
369 Ibid, pp. 108-109.
370 Ibid., p. 112. During this period military aircraft frequently flew low over the islands. See also J.
Pilger, Freedom Next Time (2006), p. 46.
371 See para 4.52 below.
372 Vine, Island of Shame (2009), p. 113 (Annex 151).
373 Ibid., pp. 113-114 (footnotes omitted). See also J. Pilger, Freedom Next Time (2006), pp. 45-46.
114
3.107 At the end of October 1971, the final 146 inhabitants of Diego Garcia were
packed into a ship, the Nordvær, which had a maximum capacity of 72. During the
initial four-day journey to Seychelles and the ensuing 1200 miles to Mauritius, most
of those aboard were exposed to the elements. Many became ill and two women
are reported to have miscarried.374 By May 1973, all those individuals remaining in
Peros Banhos and Salomon had been rounded up and permanently removed from
the Chagos Archipelago.375 The Mauritian and international reaction to the forcible
removal of the Chagossians is addressed at paragraphs 4.49 to 4.61 below.376
B. THE RETURN OF ALDABRA, FARQUHAR AND DESROCHES TO SEYCHELLES
3.108 For 10 years after the creation of the “BIOT” the three ex-Seychelles islands
remained empty, save for a Royal Society scientific station on Aldabra and
temporary coconut plantations on Farquhar and Desroches.377 Before granting
independence to Seychelles, the U.K. acknowledged that the “BIOT islands will be
an issue” at the forthcoming Seychelles Constitutional Conference in March
1975.378 It was noted that although Seychelles’ leaders had “agreed to the
arrangement in 1965”, the opposition Seychelles Peoples United Party had since
consistently demanded the return of the islands.379
374 See Vine, Island of Shame (2009), p. 114 (Annex 151).
375 David Vine, “From the Birth of the Ilois to the ‘Footprint to Freedom’: A History of Chagos and
the Chagossians”, in EVICTION FROM THE CHAGOS ISLANDS (S. Evers & M. Kooy eds., 2011), p. 34.
376 Mauritius reserves the right to provide supplementary information pertaining to the expulsion of
the Chagossians in its Written Comments on the written statements of other Member States.
377 Memorandum by the Secretary of State for Foreign and Commonwealth Affairs on the “British
Indian Ocean Territory: The Ex-Seychelles Islands”, OPD(75)9, FCO 40/674 (27 Feb. 1975), para.
1 (Annex 103).
378 Ibid., para. 3.
379 Ibid.
115
3.109 In November 1975, the Foreign Office indicated that it was minded to return
the ex-Seychelles islands to Seychelles prior to independence.380 The U.K.
recognised the impossibility of using the islands for defence purposes, as they were
populated, and “[a]fter the outcry over the workers removed from the Chagos
Archipelago, it would be extremely difficult politically to do the same thing in the
ex-Seychelles islands.”381 The British Foreign Secretary expressed strong
preference for returning the islands to Seychelles and avoid “a potential continuing
embarrassment.”382 The Foreign Office recognised that, given “the determination
of some elements in Seychelles political life and in the OAU and in the United
Nations to make an issue of the matter”, return of the islands to Seychelles was
more likely to “permit the peaceful transition to independence” and “might also
create less international complications over the maintenance of the rest of BIOT,
particularly Diego Garcia.”383 A Foreign Office brief recognised that retention of
the Seychelles islands could lead to “a united front in pressing for ‘territorial
integrity’”, based on a sympathetic claim that the U.K. took unfair advantage over
its colony in pressing it to agree to the excision of part of its territory.384
380 United Kingdom, Minutes of Anglo-U.S. Talks on the Indian Ocean Held on 7 November 1975
at the State Department, Washington DC, FCO 40/687 (7 Nov. 1975), para. 48 (Annex 108).
381 United Kingdom, Anglo/US Consultations on the Indian Ocean: November 1975-Agenda Item
III, Brief No. 4: Future of Aldabra, Farquar and Desroches, FCO 40/687 (Nov. 1975), para. 2(d)
(Annex 107).
382 United Kingdom, “British Indian Ocean Territory: The Ex-Seychelles Islands”, FCO 40/686 (22
July 1975), p. 1 (Annex 104).
383 U.K. Foreign and Commonwealth Office, “BIOT: The Ex-Seychelles Islands”, FCO 40/686 (15
Oct. 1975), para. 2 (Annex 105).
384 See United Kingdom, Anglo/US Consultations on the Indian Ocean: November 1975-Agenda
Item III, Brief No. 4: Future of Aldabra, Farquar and Desroches, FCO 40/687 (Nov. 1975), para.
2(a) (Annex 107). See also ibid., para. 4(e) (“It is arguable that there is a continuing obligation on
Seychelles to respect the agreement setting up the BIOT and they received generous compensation
for loss of sovereignty. The trouble is that it is all too easy to win sympathy for the claim that we
took advantage of the ‘colonial’ state of Seychelles in the 1960’s.”)
116
3.110 On 18 March 1976, representatives of the U.K. and Seychelles signed an
agreement providing for the return of Aldabra, Farquhar and Desroches to
Seychelles on 29 June 1976, the day of Seychelles’ independence.385 The return of
these islands to Seychelles stands in stark contrast to the U.K.’s decision to retain
the Chagos Archipelago as a British colony.
X. Conclusion
3.111 The historical record paints a clear and incontrovertible picture as to the
process of the decolonisation of Mauritius. Mauritian Ministers attending the 1965
Constitutional Conference in London were confronted with a fait accompli. The
detachment of the Chagos Archipelago had long been pre-determined by two great
powers, acting in secrecy and without regard to the wishes of the Mauritian
Government and its citizens. British officials and politicians at the highest levels
have acknowledged – before, during and since the event – that independence was
offered to Mauritius only as part of a “package deal”, and that the British
Government threatened that Mauritius would not be granted independence if its
Ministers did not “agree” to the detachment of the Chagos Archipelago.
3.112 Mauritian Ministers faced an impossible choice: there was no genuine
alternative, or choice to be made. In the words of Prime Minister Wilson, Mauritian
385 United Kingdom, “Heads of Agreement Between the Government of the United Kingdom of
Great Britain and Northern Ireland, the Administration of the British Indian Ocean Territory and
the Government of Seychelles Concerning the Return of Aldabra, Desroches and Farquhar to
Seychelles to be Executed on Independence Day”, FCO 40/732 (18 Mar. 1976) (Annex 110). See
also The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), UNCLOS
Annex VII Tribunal, Memorial of the Republic of Mauritius, Volume IV, Figure 3 (“‘British Indian
Ocean Territory’: 1965 – 1976”), available at https://files.pca-cpa.org/muuk/
Annexes%20to%20Memorial/MM%20Charts.pdf (1 Aug. 2012) (last accessed 17 Feb. 2018).
117
Ministers could return to Mauritius “either with Independence or without it.”386 The
price to pay for independence, which should have been freely granted under
international law, was an “agreement” to detachment of an integral part of
Mauritius’ territory, and to its conversion into a new British colonial possession,
contrary to the interests of the Mauritian people.
386 U.K. Foreign Office, Record of a Conversation between the Prime Minister and the Premier of
Mauritius, Sir Seewoosagur Ramgoolam, at No. 10, Downing Street, at 10 A.M. on Thursday,
September 23, 1965, FO 371/184528 (23 Sept. 1965), p. 3 (Annex 60).
118
119
CHAPTER 4
NATIONAL AND INTERNATIONAL REACTIONS TO THE
DETACHMENT OF THE CHAGOS ARCHIPELAGO
I. Introduction
4.1 This Chapter describes the reactions and responses to the detachment of the
Chagos Archipelago from Mauritius, over the half century that has since passed. It
includes the statements and actions of Mauritius itself, of the United Nations, and
of important groups of States, including: the Organisation of African Unity and the
African Union; the Non-Aligned Movement; the Group of 77 and China; the
African, Caribbean and Pacific Group of States; and the Africa-South America
Summit. This Chapter also describes the reaction of Mauritius and the international
community to the forcible removal of all the inhabitants of the Chagos Archipelago.
II. The reaction of Mauritius
4.2 Following a general election held in Mauritius on 7 August 1967, the parties
favouring independence achieved a clear majority.387 At the first meeting of the
newly-elected Legislative Assembly, on 22 August 1967, a resolution was adopted
by which the administering power was requested to “take the necessary steps to
387 Three parties (the Labour Party led by Sir Seewoosagur Ramgoolam, the Muslim Committee of
Action and the Independent Forward Bloc) jointly contested the election as the Independence Party.
The Parti Mauricien Social Démocrate campaigned on a platform of “something less than complete
independence”. The Independence Party secured 54.8% of the vote and 43 out of 70 seats in the
Legislative Assembly. See Addison & Hazareesingh, History of Mauritius (1993), p. 96 (Annex
137).
120
give effect, as soon as practicable this year, to the desire of the people of Mauritius
to accede to independence within the Commonwealth of Nations”.388
4.3 On 29 February 1968, the Mauritius Independence Act was enacted, by
which 12 March 1968 was designated as the “appointed day” on and after which
“Her Majesty’s Government in the United Kingdom shall have no responsibility
for the government of Mauritius.”389 The Chagos Archipelago was excluded from
the territorial scope of the Mauritius Independence Act 1968 by operation of
Section 5(1), which defined “Mauritius” as comprising “the territories which
immediately before the appointed day constitute the Colony of Mauritius.”390 On 4
March 1968, the administering power promulgated a new Constitution for
Mauritius by means of an Order in Council, which took effect on the appointed day
and replaced the pre-existing constitutional orders.391 Whereas the Chagos
Archipelago was included in the territory of Mauritius under Section 90(1) of the
1964 Constitution, Section 111 of the 1968 Constitution confined the territory of
Mauritius to “the territories which immediately before 12th March 1968 constituted
the colony of Mauritius”.392 The effect of these legislative provisions, in
combination with the Order in Council of 8 November 1965, was that on 12 March
1968 Mauritius attained independence only in part; the Chagos Archipelago
388 Mauritius Legislative Assembly, Accession of Mauritius to Independence within the
Commonwealth of Nations (22 Aug. 1967), p. 856 (Annex 91).
389 United Kingdom, Mauritius Independence Act 1968 (1968), Section 1(1) (Annex 93).
390 Ibid., Section 5(1).
391 See United Kingdom, The Mauritius Independence Order 1968 and Schedule to the Order: The
Constitution of Mauritius (4 Mar. 1968), Section 4(1) of the Order and Section 2 of the Constitution
(Annex 96).
392 Ibid., Section 111 of the Constitution. C.f. Mauritius (Constitution) Order, 1964 (26 Feb. 1964),
Section 90(1), which provides that “‘Mauritius’ means the island of Mauritius and the Dependencies
of Mauritius” (Annex 24).
121
remained under the control of the administering power as the “British Indian Ocean
Territory”.
A. MAURITIUS’ REACTION TO THE DETACHMENT OF THE CHAGOS
ARCHIPELAGO
4.4 Upon independence, Sir Seewoosagur Ramgoolam became the first Prime
Minister of Mauritius. From the outset, his government faced widespread popular
criticism over the conditions upon which independence had been achieved, in
particular the detachment of the Chagos Archipelago. In response, Prime Minister
Ramgoolam, who served until June 1982, repeatedly explained that he and his
fellow Mauritian Ministers had been given no choice by the administering power:
they were told that independence would be granted only upon Mauritius’
“acceptance” of detachment of the Chagos Archipelago, and that absent such
“acceptance” there would be no independence.393 Prime Minister Ramgoolam also
pledged that Mauritius would seek the return of the Chagos Archipelago from the
U.K. by means of “patient diplomacy at bilateral and international levels”.394
4.5 In the period immediately following its independence, while Mauritius was
still heavily dependent economically on the administering power, it exercised
393 In response to criticism from opposition parties, the Mauritian Government consistently
explained that it would not have been possible to prevent the detachment of the Chagos Archipelago
from Mauritius. During a Parliamentary debate on 26 June 1974, the Mauritian Prime Minister set
out in more detail the modalities of the detachment and explained why it was unavoidable. The
illegality of the detachment was recognised across the domestic political spectrum. See, e.g.,
Mauritius Legislative Assembly, Committee of Supply, Consideration of the Appropriation (1974-
75) Bill (No. XIX of 1974) (26 June 1974), pp. 1946-1947 (Annex 102); Mauritius Legislative
Assembly, Speech from the Throne – Address in Reply: Statement by Hon. G. Ollivry (9 Apr. 1974),
p. 266 (Annex 101); Mauritius Legislative Assembly, Speech from the Throne – Address in Reply:
Statement by Hon. M. A. Peeroo (15 Mar. 1977) (Annex 111).
394 See Mauritius Legislative Assembly, Diego Garcia – Anglo-American Treaty, No. B/539 (8 Nov.
1977), p. 3179 (Annex 113); Mauritius Legislative Assembly, Reply to PQ No. B/967 (20 Nov.
1979), p. 5025 (Annex 116).
122
caution in pursuing its claim to restoration of its full territorial integrity. However,
it became increasingly assertive in calling for the return of the Chagos Archipelago
to Mauritius, and the disbandment of the “British Indian Ocean Territory”. On 9
October 1980, Prime Minister Ramgoolam, in his address to the 35th session of the
United Nations General Assembly, reaffirmed the position of Mauritius that the
colonial administration of the Chagos Archipelago should be disbanded and the
territory restored to Mauritius as part of its “natural heritage”:
Here it is necessary for me to emphasize that Mauritius, being in the
middle of the Indian Ocean, has already – at the seventeenth
ordinary session of the Assembly of Heads of State and Government
of the Organization of African Unity [OAU], held at Freetown from
1 to 4 July this year – reaffirmed its claim to Diego Garcia and the
Prime Minister of Great Britain in a parliamentary statement has
made it known that the island will revert to Mauritius when it is no
longer required for the global defence of the West. Our sovereignty
having thus been accepted, we should go further than that, and
disband the British Indian Ocean Territory and allow Mauritius to
come into its natural heritage as before its independence.395
4.6 The following month, Prime Minister Ramgoolam was asked by a news
organisation why he “agreed” to the detachment of the Chagos Archipelago by the
administering power. He responded: “There was a nook [sic] around my neck. I
could not say no. I had to say yes otherwise the noose could have tightened.”396
Similarly, when a member of the Opposition stated during a debate that the Prime
Minister’s Mauritian Labour Party had given its “consent” to detachment, he
responded: “We had no choice.”397 He explained: “We were a colony and Great
395 See Republic of Mauritius, References to the Chagos Archipelago in Annual Statements Made
by Mauritius to the United Nations General Assembly (extracts) (1974-2017) (Annex 100). See also
U.N. General Assembly, 35th Session, Address by Sir Seewoosagur Ramgoolam, Prime Minister of
Mauritius, U.N. Doc. A/35/PV.30 (9 Oct. 1980), para. 40 (Dossier No. 269).
396 Mauritius Legislative Assembly, Reply to PQ No. B/1141 (25 Nov. 1980), p. 4223 (Annex 123).
397 Mauritius Legislative Assembly, Speech from the Throne – Address in Reply: Statement by the
Prime Minister of Mauritius (11 Apr. 1979), p. 456 (Annex 115).
123
Britain could have excised the Chagos Archipelago.”398 This was the consistent
position of the Government of Mauritius post-independence.
4.7 According to Sir Harold Walter, the Minister of External Affairs:
at the moment that Britain excised Diego Garcia from Mauritius, it
was by an Order in Council! The Order in Council was made by the
masters at that time! What choice did we have? We had no choice!
We had to consent to it because we were fighting alone for
independence! There was nobody else supporting us on that issue!
We bore the brunt!399
4.8 The same view was expressed by Mauritius’ Minister of Economic Planning
and Development:
There is no doubt that, when the islands were excised, it was done
through an undue influence. England was a metropolis, we were a
Colony. Even all our leaders who were there, even if they consented
to it, their consent was viciated [sic], because of the relationship.
The major issue was to gain independence, and therefore the consent
was viciated [sic], there was no consent at all.400
4.9 On 15 June 1982, Sir Anerood Jugnauth, who had attended the 1965
Constitutional Conference, became the second Prime Minister of Mauritius. He
served until December 1995.401 Prime Minister Jugnauth maintained the same
position and policy as his predecessor: that the detachment of the Chagos
Archipelago from Mauritius had been a condition imposed on Mauritius by the
398 Mauritius Legislative Assembly, Reply to PQ No. B/1141 (25 Nov. 1980), p. 4223 (Annex 123).
399 Mauritius Legislative Assembly, The Interpretation and General Clauses (Amendment) Bill (No.
XIX of 1980), Committee Stage (26 June 1980), p. 3413 (Annex 117).
400 Ibid., p. 3399.
401 Minister Mentor, Minister of Defence, Minister for Rodrigues, Sir Anerood Jugnauth GCSK
KCMG QC served as Prime Minister of Mauritius on three separate occasions: from 15 June 1982
to December 1995; from 21 September 2000 to September 2003; and from 15 December 2014 to 23
January 2017.
124
administering power in return for the granting of independence, that as such it was
unlawful, and that the Archipelago rightly belonged to Mauritius and should be
returned to Mauritius without delay.
4.10 In furtherance of that policy, on 21 July 1982, the Mauritius Legislative
Assembly set up a Select Committee to look into the circumstances that had led to
the detachment of the Chagos Archipelago. The Select Committee was composed
of nine members of the Mauritian Parliament and was chaired by the Minister of
External Affairs, Tourism & Emigration.
4.11 On 11 November 1982, in advance of the publication of the Select
Committee’s Report, the British High Commissioner in Port Louis warned the
Foreign Office that:
While there is nothing very alarming in this at present I feel sure you
will wish to dust off the 1965 papers since we may well be faced
with embarrassing assertions about the connection between the
excision of the Chagos Archipelago and the British Government’s
undertaking to give Mauritius independence.402
4.12 The Select Committee’s Report was published on 1 June 1983. Reflecting
on the final communiqué issued by U.K. Colonial Secretary Anthony Greenwood
at the Mauritius Constitutional Conference on 24 September 1965, the Report notes
that:
That section of the communiqué which touches upon military
arrangements makes no mention of any agreement in regard to the
excision of any part of the Mauritian territory in the context of either
mutual defence or what was ultimately termed ‘in the general
402 Letter from J. N. Allan of the British High Commission in Port Louis to P. Hunt of the East
African Department, FCO 31/3622 (11 Nov. 1982) (Annex 125).
125
western interest to balance increased Soviet activities in the Indian
Ocean.’
However, in the light of evidence produced by representatives of the
political parties which took part in the Mauritius Constitutional
Conference 1965,… the Committee is convinced, without any
possible doubt, that, at a certain time while the Constitutional talks
were on, the question was mooted. And, further, the Committee is
satisfied that the genesis of the whole transaction is intimately
connected with the constitutional issue then under consideration.403
4.13 The Select Committee heard evidence from eight witnesses, including Sir
Seewoosagur and representatives of the other participating political parties.404 The
Report notes that “Sir Seewoosagur maintained that the choice he made between
the independence of Mauritius and the excision of the archipelago was a most
judicious one.”405 It is recorded that in his evidence before the Select Committee,
Sir Seewoosagur made clear that he was given a straight choice, as between
independence and no independence. He stated:
A request was made to me. I had to see which was better – to cede
out a portion of our territory of which very few people knew, and
independence. I thought that independence was much more
primordial and more important than the excision of the island which
is very far from here, and which we had never visited, which we
could never visit… If I had to choose between independence and the
ceding of Diego Garcia I would have done again the same thing.406
4.14 Paragraph 52E of the Select Committee Report concludes that:
Sir Seewoosagur Ramgoolam’s statement before the Select
Committee is highly indicative of the atmosphere which prevailed
403 Mauritius Legislative Assembly, Report of the Select Committee on the Excision of the Chagos
Archipelago, No. 2 of 1983 (June 1983), para. 23 (footnotes omitted) (Annex 129).
404 Ibid., Appendix A.
405 Ibid., para. 25.A.
406 Ibid., para. 36.
126
during the private talks he had, at Lancaster House, with the British
authorities. He averred that he was put before the choice of either
retaining the archipelago or obtaining independence for his country,
but refused to describe the deal as blackmail. Sir Gaëtan Duval
argued that the choice was between the excision and a referendum
on independence. This contradiction is substantially immaterial to
the Committee. What is of deeper concern to the Select Committee
is the indisputable fact that a choice was offered through Sir
Seewoosagur to the majority of delegates supporting independence
and which attitude cannot fall outside the most elementary definition
of blackmailing. Sir Harold Walter, deponing before the Select
Committee on 11th January 1983, will even go to the length of
stating that the position was such that, had Diego Garcia which ‘was,
certainly, an important tooth in the whole cogwheel leading to
independence’ not been ceded, the grant of national sovereignty to
Mauritius ‘would have taken more years probably.’
The Declaration on the Granting of Independence to Colonial
Countries and Peoples voted by the General Assembly of the United
Nations on 14th December 1960… clearly sets out at para. 5 that the
transfer of power to peoples living in ‘Trust and Non-Self
Governing Territories or all other Territories’ should be effected
‘without any conditions and reservations’. In addition, at para. 6, it
expressly lays down that, ‘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.’
Hence, notwithstanding the blackmail element which strongly puts
in question the legal validity of the excision, the Select Committee
strongly denounces the flouting by the United Kingdom
Government, on these counts, of the Charter of the United
Nations.407
407 Ibid., para. 52E. On 17 June 1983, the British High Commissioner in Mauritius forwarded the
Select Committee Report to the Foreign Office, noting that “I do not in fact think we will come out
of this too badly since the Report shows that we did indeed consult those concerned before the
excision”. Letter from J. N. Allan of the British High Commission in Port Louis to P. Hunt of the
East African Department, FCO 31/3834 (17 June 1983) (Annex 130). One month later, an official
relayed the Foreign Office’s view back to the High Commissioner: “Our view here is that the Report
is reasonably well written and well argued, at least until paragraph 52E with its rather blunt and
emotional allegation of blackmail.” Letter from P. Hunt of the East African Department to J. N.
Allan of the British High Commission in Port Louis, FCO 31/3834 (14 July 1983) (Annex 131).
127
4.15 Mauritius has been consistent in its clear and explicit denunciation of the
detachment of the Chagos Archipelago as unlawful, and its assertion of sovereignty
over the Archipelago. It has made statements to this effect before the U.N. General
Assembly on more than 30 occasions.408 In particular, Mauritius has repeatedly
emphasised that the Chagos Archipelago was detached from its territory in
contravention of international law and General Assembly Resolutions 1514 (XV)
and 2066 (XX), and that, as a result, the process of decolonisation in Mauritius
remains incomplete. Of the many examples one may cite:
On 15 October 1982, at the 37th session of the General Assembly, Prime
Minister Sir Anerood Jugnauth, said:
At this juncture I should like to dwell on an issue
which affects the vital interests of Mauritius; I mean
the Mauritian claim of sovereignty over the Chagos
Archipelago, which was excised by the then colonial
Power from the territory of Mauritius in
contravention of General Assembly resolutions 1514
(XV) and 2066 (XX).409
On 27 September 1989, at the 44th session of the General Assembly,
Deputy Prime Minister and Minister of External Affairs and Emigration,
Sir Satcam Boolell said:
As the Assembly is aware, the Government and
people of Mauritius have not accepted the fact that
an important part and parcel of their territory has
Although the Foreign Office note takes issue with the use of the word “blackmail” in paragraph 52E
of the Report, it does not challenge Sir Seewoosagur’s evidence, which appears earlier at paragraph
25, that he had been required to make a choice between independence and retention of the Chagos
Archipelago.
408 See Republic of Mauritius, References to the Chagos Archipelago in Annual Statements Made
by Mauritius to the United Nations General Assembly (extracts) (1974-2017) (Annex 100).
409 Republic of Mauritius, References to the Chagos Archipelago in Annual Statements Made by
Mauritius to the United Nations General Assembly (extracts) (1974-2017) (Annex 100). See also
U.N. General Assembly, 12th Special Session, Agenda Item 8: General Debate, U.N. Doc. A/S-
12/PV.25 (23 June 1982), para. 68 (Dossier No. 271).
128
been excised by the former colonial Power in
contravention of United Nations General Assembly
resolutions 1514 (XV) and 2066 (XX).410
On 30 September 1999, at the 54th session of the General Assembly,
Deputy Prime Minister and Minister of Foreign Affairs and
International Trade, Rajkeswur Purryag said:
We have consistently drawn the attention of the
Assembly to the issue of the Chagos Archipelago,
which was detached from Mauritius by the former
colonial Power prior to our independence in 1968,
and also to the plight of over 2000 people who were
forced to leave the land of their birth, where they had
lived for generations, for resettlement in Mauritius.
This was done in total disregard of the United
Nations declaration embodied in resolution 1514
(XV), of 14 December 1960 and resolution 2066
(XX), of 16 December 1965, which prohibit the
dismemberment of colonial Territories prior to
independence.
Mauritius has repeatedly asked for the return of the
Chagos Archipelago, including Diego Garcia, on
which a United States military base has been built,
and thereby the restoration of its territorial integrity.
The over 2,000 displaced Ilois people have been
facing tremendous difficulties in adapting in
mainland Mauritius, in spite of all the efforts that
Mauritius has made to assist them in this process.411
410 Republic of Mauritius, References to the Chagos Archipelago in Annual Statements Made by
Mauritius to the United Nations General Assembly (extracts) (1974-2017) (Annex 100). See also
U.N. General Assembly, 44th Session, Provisional Verbatim Record of the Eighth Meeting, Agenda
Item 9: General Debate, U.N. Doc. A/44/PV.8 (28 Sept. 1989), p. 87 (Dossier No. 284).
411 Republic of Mauritius, References to the Chagos Archipelago in Annual Statements Made by
Mauritius to the United Nations General Assembly (extracts) (1974-2017) (Annex 100). See also
U.N. General Assembly, 54th Session, 18th Plenary Meeting, Agenda Item 9: General Debate, U.N.
Doc. A/54/PV.18 (30 Sept. 1999), p. 12 (Dossier No. 291).
129
On 28 September 2007, at the 62nd session of the General Assembly,
Prime Minister Dr Navinchandra Ramgoolam said:
In 1965 when the Constitutional Conference for the
granting of independence to Mauritius was
convened, the Chagos Archipelago, amongst many
other islands, formed an integral part of the territory
of Mauritius and should have remained as such in
accordance with the Charter of the United Nations
and General Assembly resolutions 1514 of 1960 and
2066 of 1965. Resolution 1514 (1960) states inter
alia: ‘Any attempt aimed at the partial or total
disruption of the national unity and territorial
integrity of a country is incompatible with the
purposes and principles of the Charter of the United
Nations.’ The excision of the Chagos Archipelago by
the colonial power at the time of our independence
constitutes a dismemberment of our territory in total
disregard of resolutions 1514 of 1960 and 2066 of
1965. Furthermore, it is also a violation of the
Charter of the United Nations itself.412
On 28 September 2013, at the 68th session of the General Assembly,
Prime Minister Dr Navinchandra Ramgoolam said:
The dismemberment of part of our territory, the
Chagos Archipelago – prior to independence – by the
then colonial power, the United Kingdom, in clear
breach of international law, leaves the process of
decolonisation not only of Mauritius but of Africa,
incomplete.413
412 Republic of Mauritius, References to the Chagos Archipelago in Annual Statements Made by
Mauritius to the United Nations General Assembly (extracts) (1974-2017) (Annex 100). See also
U.N. General Assembly, 62nd Session, 10th Plenary Meeting, Agenda Item 8: General Debate, U.N.
Doc. A/62/PV.10 (28 Sept. 2007), p. 21 (Dossier No. 306).
413 Republic of Mauritius, References to the Chagos Archipelago in Annual Statements Made by
Mauritius to the United Nations General Assembly (extracts) (1974-2017) (Annex 100). See also
U.N. General Assembly, 68th Session, 18th Plenary Meeting, Agenda Item 8: General Debate, U.N.
Doc. A/68/PV.18 (28 Sept. 2013), p. 6 (Dossier No. 316).
130
On 2 October 2015, at the 70th session of the General Assembly, Prime
Minister Sir Anerood Jugnauth said:
In this regard, this Assembly has a direct institutional
interest in the resolution of this matter. The
Assembly, of course, has historically played a central
role in addressing decolonisation, through the
exercise of its powers and functions especially in
relation to Chapters XI through XIII of the UN
Charter. Under its Resolution 1514 (XV) of 14
December 1960 on the granting of independence to
colonial countries and peoples, this Assembly
declared that any attempt aimed at the disruption of
the territorial integrity of such a country is
incompatible with the purposes and principles of the
UN Charter. In Resolution 2066 (XX) of 16
December 1965, a resolution dealing specifically
with Mauritius, the Assembly drew attention to the
duty of the administering power not to dismember
the territory and not to violate the territorial integrity
of the then colony. Therefore, this Assembly has the
responsibility in helping to complete the historic
process of decolonisation which it was so successful
in instigating and overseeing in the second half of the
last century. This is why, Mr. President, we are
convinced that this Assembly should now establish a
mechanism to allow and monitor the full
implementation of the UNGA resolutions.414
4.16 Mauritius has also consistently protested in other instances, including
against inter alia (i) the inclusion of the “British Indian Ocean Territory” in the list
of Overseas Countries and Territories of the U.K. as part of the proposal of the
European Commission relating to the association of overseas countries and
414 Republic of Mauritius, References to the Chagos Archipelago in Annual Statements Made by
Mauritius to the United Nations General Assembly (extracts) (1974-2017) (Annex 100). See also
U.N. General Assembly, 70th Session, 25th Plenary Meeting, Agenda Item 8: General Debate, U.N.
Doc. A/70/PV.25 (2 Oct. 2015), p. 16 (Dossier No. 318).
131
territories with the European Community;415 (ii) the inclusion of the “British Indian
Ocean Territory” in the list of Overseas Countries and Territories to which the
provisions of Part Four of the Lisbon Treaty apply;416 and (iii) the declaration
deposited with the Swiss Federal Council concerning the applicability of the
Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to
the Adoption of an Additional Distinctive Emblem insofar as it purports to extend
ratification of the Protocol to the “British Indian Ocean Territory”.417
B. MAURITIUS’ REACTION TO THE ANNOUNCEMENT OF A “MARINE PROTECTED
AREA” IN AND AROUND THE CHAGOS ARCHIPELAGO
4.17 In the decades since Mauritius’ independence, the U.K. has made creeping
assertions of maritime zones and imposed various restrictions. This culminated in
the unilateral announcement on 1 April 2010 of a no-take “Marine Protected Area”
(“MPA”) in and around the Chagos Archipelago (excluding Diego Garcia)
spanning some 640,000 square kilometres.418 On 9 February 2009, the British
415 Notes Verbales from the Embassy of the Republic of Mauritius in Brussels to the Commission
of the European Communities and Council of the European Union, No. MBX/ACP/5005 (13 Feb.
2001 & 5 Mar. 2001) (Annex 142).
416 Notes Verbales from the Mauritius Ministry of Foreign Affairs to the General Secretariat of the
Council of the European Union, Nos. 1197/28/8 & 1197/28 (21 July 2005 & 19 Apr. 2010) (Annex
149).
417 Note Verbale from the Permanent Mission of the Republic of Mauritius to the United Nations
Office and other International Organisations in Geneva to the Permanent Mission of Switzerland to
the United Nations Office and other International Organisations in Geneva, No. 361/2011
MMG/HR/19 (28 Nov. 2011) (Annex 159).
418 See The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), UNCLOS
Annex VII Tribunal, Memorial of the Republic of Mauritius (1 Aug. 2012), Chapter 4, available at
https://www.pcacases.com/web/sendAttach/1796 (last accessed 17 Feb. 2018). On 29 May 2001,
States Parties to UNCLOS decided that, for States for which the Convention entered into force
before 13 May 1999 (which include Mauritius and the United Kingdom), the 10-year time period
within which submissions for an extended continental shelf have to be made to the Commission on
the Limits of the Continental Shelf (“CLCS”) shall be taken to have commenced on 13 May 1999.
See UNCLOS Meeting of States Parties, 11th Meeting, Decision regarding the date of
commencement of the ten-year period for making submissions to the Commission on the Limits of
the Continental Shelf set out in article 4 of Annex II to the United Nations Convention on the Law
132
newspaper The Independent published an article setting out “[a]n ambitious plan”
to turn the Chagos Archipelago into “a huge marine reserve”.419 The news came as
a surprise to Mauritius, which had no prior knowledge of any such plans. Mauritius
strenuously protested against the unilateral initiative, making clear that while it was
“supportive of domestic and international initiatives for environmental protection”
it stressed that “any party initiating proposals for promoting the protection of the
marine and ecological environment of the Chagos Archipelago, should solicit and
obtain the consent of the Government of Mauritius prior to implementing such
proposals.”420
of the Sea, U.N. Doc. SPLOS/72 (29 May 2001). At the 18th meeting of States Parties to the
Convention, on 20 June 2008, it was decided that the 10-year time limit for the submission of claims
to an extended continental shelf beyond 200 nautical miles would be satisfied by submitting to the
U.N. Secretary-General preliminary information indicative of the outer limits of the continental
shelf. See UNCLOS Meeting of States Parties, 18th Meeting, Decision regarding the workload of
the Commission on the Limits of the Continental Shelf and the ability of States, particularly
developing States, to fulfil the requirements of article 4 of Annex II to the Convention, as well as the
decision contained in SPLOS/72, paragraph (a), U.N. Doc. SPLOS/183 (20 Jun. 2008). At bilateral
talks held on 14 January 2009, the U.K. delegation led by Colin Roberts of the Overseas Territories
Directorate at the Foreign Office, informed Mauritius that the U.K. was not interested in submitting
on its own a claim to the CLCS for an extended continental shelf in respect of the Chagos
Archipelago. On 6 May 2009, Mauritius submitted Preliminary Information to the CLCS concerning
the Extended Continental Shelf in the Chagos Archipelago Region. See Republic of Mauritius,
Preliminary Information Submitted by the Republic of Mauritius Concerning the Extended
Continental Shelf in the Chagos Archipelago Region Pursuant to the Decision Contained in
SPLOS/183, MCS-PI-DOC (May 2009) (Dossier No. 415). No State, including the U.K., has lodged
any objection to Mauritius’ submission, nor has any other State made any competing submission.
This compares with other situations where objections have been lodged. See the list of relevant
communications at: United Nations, Preliminary information indicative of the outer limits of the
continental shelf beyond 200 nautical miles, available at
http://www.un.org/Depts/los/clcs_new/commission_preliminary.htm (last accessed 17 Feb. 2018).
Now that the 10-year limit has passed, no other State – including the United Kingdom – can avail
itself of the procedures under UNCLOS with respect to an extended continental shelf for the Chagos
Archipelago.
419 Sadie Gray, “Giant Marine Park Plan for Chagos – Islanders may return to be environmental
wardens”, The Independent (9 Feb. 2009) (Annex 152).
420 Note Verbale from the Mauritius Ministry of Foreign Affairs to the U.K. Foreign and
Commonwealth Office, No. 1197/28 (10 Apr. 2009) (Annex 153).
133
4.18 On 12 May 2009, Colin Roberts, the then Director of the Overseas
Territories Directorate at the Foreign Office, attended a meeting with a Political
Counselor at the U.S. Embassy in London, along with Joanne Yeadon, the head of
the Foreign Office “BIOT and Pitcairn Section”. On 2 December 2010, The
Guardian newspaper published a copy of a U.S. diplomatic cable in which it was
reported that Mr Roberts had said to his U.S. counterpart that “establishing a marine
park would, in effect, put paid to resettlement claims of the archipelago’s former
residents” (who are referred to as “Man Fridays”) and that the British Government
“‘do not regret the removal of the population,’ since removal was necessary for the
BIOT to fulfil its strategic purpose”.421
4.19 Following the announcement of the “MPA” in and around the Chagos
Archipelago, Mauritius issued a Notification and Statement of Claim on 20
December 2010, instituting proceedings against the U.K. under Article 287 and
Annex VII, Article 1 of UNCLOS.422 Mauritius’ case before the UNCLOS Tribunal
was in two parts:
the U.K. does not have sovereignty over the Chagos Archipelago, is not
“the coastal State” for the purposes of UNCLOS and cannot declare an
“MPA” or other maritime zones around the Chagos Archipelago; and
the “MPA” is fundamentally incompatible with the rights and
obligations provided for by UNCLOS.
421 “U.S. embassy cables: Foreign Office does not regret evicting Chagos islanders”, The Guardian
(15 May 2009) (Annex 154). Under cross-examination in domestic litigation, whereas Mr Roberts
admitted that it is likely he would have said words to the effect that there should be no human
footprint in the Chagos Archipelago other than Diego Garcia, he denied using the term “Man
Fridays” in relation to the Chagossians. See R (on the application of Bancoult) v. Secretary of State
for Foreign and Commonwealth Affairs, [2013] EWHC 1502 (Admin) (11 June 2013), para. 59.
422 The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Notification
Under Article 287 and Annex VII, Article 1 of UNCLOS and the Statement of Claim and Grounds
on Which it is Based (20 Dec. 2010) (Dossier No. 407).
134
4.20 Following two rounds of written submissions and a hearing in Istanbul from
22 April to 9 May 2014, the Tribunal delivered its Award on 18 March 2015.423 As
to the first limb of Mauritius’ argument, the Tribunal held by three votes to two that
it lacked jurisdiction to consider whether the U.K. is “the coastal State” for the
purposes of UNCLOS. As such, the unanimous Award does not express any view
as to the legal consequences that flow from the detachment of the Chagos
Archipelago. However, Judges James Kateka and Rüdiger Wolfrum, in their
Dissenting and Concurring Opinion, concluded that the detachment of the Chagos
Archipelago showed “a complete disregard for the territorial integrity of Mauritius
by the United Kingdom which was the colonial power.”424
4.21 As to the second limb of Mauritius’ argument, the Tribunal unanimously
found that:
the establishment of the “MPA” was in violation of Articles 2(3), 56(2)
and 194(4) of UNCLOS;
the U.K.’s undertakings (i) to return the Chagos Archipelago to
Mauritius when no longer needed for defence purposes; (ii) to ensure
fishing rights would remain available to Mauritius; and (iii) to preserve
the benefit of any minerals or oil discovered in or near the Chagos
Archipelago for Mauritius; are legally binding as a matter of
international law; and
423 The Tribunal was composed of Professor Ivan Shearer (President), Judge Albert Hoffmann,
Judge James Kateka, Judge Sir Christopher Greenwood CMG QC and Judge Rüdiger Wolfrum.
424 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), para. 91 (Dossier No. 409).
135
the undertaking to return the Chagos Archipelago to Mauritius “gives
Mauritius an interest in significant decisions that bear upon the possible
future uses of the Archipelago.”425
4.22 In the three years since the Tribunal delivered its Award, Mauritius has not
been made aware of any measures taken by the U.K. to implement it. Moreover, as
explained in Chapter 3 above, without prior consultation with Mauritius, the 1966
“Agreement Concerning the Availability for Defense Purposes of the British Indian
Ocean Territory” was extended for a further 20 years in December 2016.426 It is a
matter of concern that despite the Tribunal’s ruling that Mauritius has “an interest
in significant decisions that bear upon the possible future uses” of the Chagos
Archipelago, Mauritius was not consulted with regard to the extension of the 1966
Agreement.427
III. International reaction to the detachment of the Chagos Archipelago
4.23 The detachment of the Chagos Archipelago was widely criticised at the
international level, including at the U.N., both before and after Mauritius’
independence. There has been sustained international criticism directed at the
administering power in relation to the dismemberment of Mauritius and the failure
to lawfully complete the process of decolonisation.
425 The Chagos Marine Protected Area Arbitration, Award (18 Mar. 2015), paras. 298 and 547
(Dossier No. 409).
426 See paras. 3.98-3.99 above. See also “Update on the British Indian Ocean Territory” (16 Nov.
2016) (Annex 185).
427 The Chagos Marine Protected Area Arbitration, Award (18 Mar. 2015), para. 298 (Dossier No.
409).
136
A. REACTION AT THE UNITED NATIONS
4.24 Well before the detachment, the scene had been set at the United Nations
for the reaction that would follow. On 14 December 1960, five years prior to the
detachment of the Chagos Archipelago, the General Assembly adopted Resolution
1514 (XV) on the Granting of Independence to Colonial Countries and Peoples.
Operative paragraph 6 provides that: “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.”428
4.25 On 27 November 1961, the U.N. General Assembly adopted Resolution
1654 (XVI), noting with deep concern that “contrary to the provisions of paragraph
6 of [Resolution 1514], acts aimed at the partial or total disruption of national unity
and territorial integrity are still being carried out in certain countries in the process
of decolonization”.429 Recalling the requirement that “[i]mmediate steps shall be
taken” to enable peoples of non-self-governing and non-independent territories to
“enjoy complete independence and freedom”,430 the General Assembly established
the Special Committee on the Situation with regard to the Implementation of the
Declaration on the Granting of Independence to Colonial Countries and Peoples
428 Colonial Declaration (14 Dec. 1960) (Dossier No. 55).
429 U.N. General Assembly, 16th Session, 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) (27 Nov. 1961) (hereinafter “Implementation of the Colonial Declaration (27
Nov. 1961)”) (Dossier No. 101).
430 Ibid., Preamble.
137
(“the Committee of 24”) tasked with monitoring the implementation of Resolution
1514 (XV).431
4.26 The U.N.’s reaction to the detachment of the Chagos Archipelago came as
no surprise to the administering power. The day after the creation of the “BIOT”,
on 9 November 1965, the British Permanent Representative to the U.N. in New
York, Lord Caradon, foresaw that there would be widespread recognition that the
detachment of the Chagos Archipelago from Mauritius was a breach of paragraph
6 of General Assembly Resolution 1514 (XV):
An alternative line may be against the alleged breach of paragraph
6 of resolution 1514(xv) involved in detachment (and this may
somewhat direct attention from status of the new territory). This is
likely to attract wide support. We would reply that Islands were
administered under Mauritius and Seychelles for convenience and
that paragraph 6 is therefor [sic] irrelevant.432
4.27 The Foreign Office was concerned that “any hostile reference” to the
detachment in the U.N. might jeopardise efforts to procure the “agreement” of
Mauritian Ministers.433 British representatives openly discussed the possibility of
delaying discussion of the Indian Ocean Islands, “e.g. by prolongation of Rhodesia
debate or resumption of discussion on Aden” in order to present the detachment as
431 Ibid., paras. 3-9.
432 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 2837 (8 Nov. 1965),
para. 7 (Annex 77).
433 Telegram from the U.K. Foreign Office to the U.K. Mission to the U.N., No. 4104 (27 Oct. 1965)
(Annex 68). See para. 3.89 above. See also Telegram from the U.K. Mission to the U.N. to the U.K.
Foreign Office, No. 2697 (28 Oct. 1965) (Annex 69); Telegram from the U.K. Foreign Office to the
U.K. Mission to the U.N., No. 4310, FO 371/184529 (6 Nov. 1965) (Annex 72); Telegram from the
U.K. Foreign Office to the U.K. Mission to the U.N., No. 4327 (8 Nov. 1965) (Annex 75); Telegram
from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 2837 (8 Nov. 1965) (Annex 77);
Telegram from the U.K. Foreign Office to the U.K. Mission to the U.N., No. 4361 (10 Nov. 1965)
(Annex 78).
138
a “fait accompli”.434 A briefing paper prepared by the Foreign Office in consultation
with the Commonwealth Office and Ministry of Defence notes (under the heading
“tactics”) that:
So far, the United Nations has dealt with the subject of B.I.O.T.
almost entirely in the context of Mauritius. In last year’s Fourth
Committee and General Assembly no cognisance was taken of the
existence of B.I.OT. as a separate entity and many delegations may
not then have tumbled to the fait accompli of separation.435
4.28 On 16 November 1965, Lord Caradon reported to the Foreign Office that
the “BIOT” had been raised at a U.N. General Assembly Fourth Committee debate
and that speakers had accused the U.K. of:
(a) creation of a new ‘colony’;
(b) inadmissibility of detaching land from a colonial
Government regardless of compensation (‘hush money’)
paid;
(c) damage to interests of a minority even if representatives of
the majority had been persuaded to agree; and
(d) violation of Resolution 1514 (XV).436
434 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 2697 (28 Oct. 1965)
(Annex 69). See para. 3.91 above. See also Minute from Secretary of State for the Colonies to the
Prime Minister (5 Nov. 1965), para. 7 (Annex 70).
435 U.K. Foreign Office, “Presentation of British Indian Ocean Territory in the United Nations”,
IOC (66)136, FO 141/1415 (8 Sept. 1966), para. 13 (emphasis in the original) (Annex 81). See also
Despatch from F. D. W. Brown of the U.K. Mission to the U.N. to C. G. Eastwood of the Colonial
Office, No. 15119/3/66 (2 Feb. 1966), para. 3 (“Many delegations may not have tumbled to the fait
accompli of separation”.) (emphasis in the original) (Annex 80).
436 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 2971 (16 Nov.
1965) (Annex 79).
139
4.29 On 24 November 1965, India and Tanzania proposed a draft resolution in
the Fourth Committee, which was to become General Assembly Resolution 2066
(XX). Speaking in the Fourth Committee, the Tanzanian representative stated that:
2. The United Kingdom Government had stated that plans were
afoot to grant independence to the Territory of Mauritius not later
than 1966. Although that might be true, such plans had not yet
become concrete and the situation was still nebulous. Hence, after
reaffirming the inalienable right of the people of Mauritius to
freedom and independence, the sponsors of the draft resolution had
invited the administering Power to take effective measures with a
view to the immediate and full implementation of General Assembly
resolution 1514 (XV). There were the gravest misgivings about the
method by which independence would be granted. Freedom was
indivisible and it would be a denial of freedom to grant
independence while attaching to it obligations or conditions which
would result in a loss of that independence.
3. The United Kingdom Government had spoken of its vested legal
rights in some of the islands of Mauritius and had mentioned
divisions of administrative and other responsibilities. Operative
paragraph 6 of resolution 1514 (XV) contained a clear statement on
the territorial integrity of colonial Territories and it must be
interpreted unequivocally, without legal quibbles. … To dismember
the territory of Mauritius and to create a new colonial entity and
establish a military base there would create a point of tension which
would be detrimental to the peaceful transition of a colonial
Territory and people to freedom and independence.437
4.30 The Indian representative, co-sponsoring the draft resolution, noted that:
5.… Mauritius was ripe for independence and General Assembly
resolution 1514 (XV) should be implemented in its regard without
further delay. The steps taken by the administering Power
concerning the constitutional future of the Territory had been noted.
He drew particular attention to the last preambular paragraph of the
draft resolution, which recalled paragraph 6 of resolution 1514
(XV). Operative paragraph 4 of the draft resolution invited the
437 U.N. General Assembly, Fourth Committee, 20th Session, 1566th Meeting, Agenda items 23, 69
& 70, U.N. Doc. A/C.4/SR.1566 (24 Nov. 1965) (Dossier No. 153).
140
administering Power to take no action which would contravene that
provision. From any point of view, military or economic,
dismemberment was undesirable and contrary to resolution 1514
(XV).
6. The Prime Minister of India, speaking in the Indian Parliament
recently, had referred to a report that the United Kingdom Secretary
of State for the Colonies had stated that the United Kingdom would
have a new Territory in the Indian Ocean, the British Indian Ocean
Territory, which would be available for the construction of defence
facilities by the United Kingdom and United States Governments,
although no plans had so far been made. A few days later, India’s
position with regard to that report had been stated in the Indian
Parliament: namely, that the idea of a colonial Power detaching part
of a Territory for such purposes was repugnant and contrary to
General Assembly resolution 1514 (XV). India, which was a
signatory of the Cairo Declaration of the Second Conference of
Heads of State or Government of Non-Aligned Countries, was
strongly opposed to any move by an administering Power to
dismember a Territory for any reason.438
4.31 On 16 December 1965, just over a month after the detachment of the Chagos
Archipelago, the General Assembly adopted Resolution 2066 (XX) on the
“Question of Mauritius”. That resolution, in full, provides that:
The General Assembly,
Having considered the question of Mauritius and other islands
composing the Territory of Mauritius,
Having examined the chapters of the reports 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 relating to the Territory of Mauritius,
Recalling its resolution 1514 (XV) of 14 December 1960 containing
the Declaration on the Granting of Independence to Colonial
Countries and Peoples,
438 Ibid.
141
Regretting that the administering Power has not fully implemented
resolution 1514 (XV) with regard to that Territory,
Noting 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,
1. Approves the chapters of the reports 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
relating to the Territory of Mauritius, and endorses the conclusions
and recommendations of the Special Committee contained therein;
2. Reaffirms the inalienable right of the people of the Territory of
Mauritius to freedom and independence in accordance with General
Assembly resolution 1514 (XV);
3. Invites the Government of the United Kingdom of Great Britain
and Northern Ireland to take effective measures with a view to the
immediate and full implementation of resolution 1514 (XV);
4. Invites the administering Power to take no action which would
dismember the Territory of Mauritius and violate its territorial
integrity;
5. Further invites the administering Power to report to the Special
Committee and to the General Assembly on the implementation of
the present resolution;
6. Requests the Special Committee to keep the question of the
Territory of Mauritius under review and to report thereon to the
General Assembly at its twenty-first session.439
4.32 The following year, in 1966, there was further criticism of the detachment
of the Chagos Archipelago, at meetings of Sub-Committee I of the Committee of
24. This was reported to the Foreign Office by the U.K. Mission to the U.N. in New
York:
439 Question of Mauritius (16 Dec. 1965) (emphasis added and footnotes omitted) (Dossier No. 146).
142
The representative from Tanzania, chairing a meeting on 9 September,
stated that negotiations between a colony and the administering power
could not be valid as these “could not be on an equal basis.”440
Another Tanzanian representative at a meeting on 12 September noted
the significance that the “dismemberment of Mauritius and Seychelles
had been carried out by [the] United Kingdom a few days before
General Assembly Resolution 2066(XX)”, and that although the U.K.
asserted that the islands were uninhabited they “belonged to Mauritius
and Seychelles.”441 The representative “demanded guarantees that the
territories’ integrity would be respected”.442
The Syrian representative urged the Committee to investigate the
“creation of a new colony.”443
The representative of Mali stated that the administering power’s
establishment of military bases was “contrary to the colonial peoples’
right to self-determination and independence.”444
The Russian representative “demanded immediate self-determination
and independence for all.”445
The Tunisian representative called for the immediate implementation of
Resolution 1514 (XV) and for the dismemberment of Mauritius and
440 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 1872 (9 Sept. 1966),
para. 5 (Annex 82).
441 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 1877 (12 Sept.
1966), para. 2 (Annex 83).
442 Ibid.
443 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 1872 (9 Sept. 1966),
para. 1 (Annex 82).
444 Ibid., para. 2.
445 Ibid., para. 4.
143
Seychelles to be renounced.446
The representative from Yugoslavia said that: “The United Kingdom
was not entitled to dismember the territories or to use them for military
purposes.”447
4.33 On 27 September 1966, Sub-Committee I issued a report on Mauritius,
Seychelles and St. Helena which concluded that:
The study of the situation in Mauritius, Seychelles and St. Helena
shows that the administering Power has so far not only failed to
implement the provisions of resolution 1514 (XV) in these
Territories, but has also violated the territorial integrity of two of
them by creating a new territory, the British Indian Ocean Territory,
composed of islands detached from Mauritius and Seychelles, in
direct contravention to resolution 2066 (XX) of the General
Assembly.448
4.34 On 20 December 1966, the U.N. General Assembly adopted resolution 2232
(XXI) concerning a number of non-self-governing territories, including Mauritius
and Seychelles. The resolution recalls Resolutions 1514 (XV) and 2066 (XX) and
provides:
The General Assembly,
…
Deeply concerned at the information contained in the report of the
Special Committee on the continuation of policies which aim,
among other things, at the disruption of the territorial integrity of
446 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 1877 (12 Sept.
1966), para. 1 (Annex 83).
447 Ibid., para. 3.
448 U.N. General Assembly, Special Committee on the Situation with Regard to the Implementation
of the Declaration on the Granting of Independence to Colonial Countries and Peoples, Report of
Sub-Committee I: Mauritius, Seychelles and St. Helena, U.N. Doc. A/AC.109/L.335 (27 Sept.
1966), para. 54 (Annex 84).
144
some of these Territories and at the creation by the administering
Powers of military bases and installations in contravention of the
relevant resolutions of the General Assembly,
…
Conscious that these situations require the continued attention and
the assistance of the United Nations in the achievement by the
peoples of the Territories of their objectives, as embodied in the
Charter of the United Nations and in the Declaration on the Granting
of Independence to Colonial Countries and Peoples,
…
2. Reaffirms the inalienable right of the peoples of these Territories
to self-determination and independence;
3. Calls upon the administering Powers to implement without delay
the relevant resolutions of the General Assembly;
4. Reiterates its declaration that any attempt aimed at the partial or
total disruption of the national unity and the territorial integrity of
colonial Territories and the establishment of military bases and
installations in these Territories is incompatible with the purposes
and principles of the Charter of the United Nations and of General
Assembly resolution 1514 (XV)… .449
4.35 The General Assembly further resolved that the U.N. should render all help
to the peoples of Mauritius in their efforts to freely decide their future status and
requested the Committee of 24 to “continue to pay special attention to these
Territories and to report on the implementation of the present resolution”.450
449 U.N. General Assembly, 21st Session, Question of American Somoa, Antigua, Bahamas,
Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and
Ellice Islands, Grenada, Guam, Mauritius, 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/2232(XXI) (20 Dec.
1966) (Dossier No. 171).
450 Ibid., paras. 6 and 7.
145
4.36 On 21 April 1967, Lord Caradon reported to the Foreign Office further
strong criticism at Sub-Committee I:
The representative from Mali stated that the U.N. Charter “requirement
of respect for territorial integrity had not been observed.”451
The representative from Ethiopia said that the U.K. had done little “to
implement numerous United Nations resolutions.”452
The Syrian representative asked whether the “BIOT” facilities “had the
truly free consent of the Mauritian people who owned the islands.”453
4.37 In its report of 17 May 1967, Sub-Committee I reiterated its view that:
By creating a new territory, ‘the British Indian Ocean Territory’,
composed of islands detached from Mauritius and Seychelles, the
administering Power continues to violate the territorial integrity of
these Non-Self-Governing Territories and to defy resolutions 2066
(XX) and 2232 (XXI) of the General Assembly.454
4.38 One month later, on 19 June 1967, the Committee of 24 adopted a resolution
which notes “with deep regret the failure of the administering Power to implement
General Assembly resolution 1514 (XV)” and endorses the conclusions and
451 Telegram from the U.K. Mission to the U.N. to the U.K. Foreign Office, No. 60 (21 Apr. 1967),
para. 1 (Annex 87).
452 Ibid., para. 2.
453 Ibid., para. 3.
454 U.N. General Assembly, Special Committee on the Situation with Regard to the Implementation
of the Declaration on the Granting of Independence to Colonial Countries and Peoples, Report of
Sub-Committee I: Mauritius, Seychelles and St. Helena, U.N. Doc. A/AC.109/L.398 (17 May 1967),
para. 126 (annexed to U.N. General Assembly, 22nd Session, 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: Agenda Item 23, U.N. Doc. A/6700/Add.8* (11 Oct. 1967))
(Annex 88).
146
recommendations of the report of Sub-Committee I.455 The resolution states that
the Committee of 24:
6. Deplores the dismemberment of Mauritius and Seychelles by the
administering Power which violates their territorial integrity, in
contravention of General Assembly resolutions 2066 (XX) and 2232
(XXI), and calls upon the administering Power to return to these
Territories the islands detached therefrom… .456
4.39 On 19 December 1967, the General Assembly adopted Resolution 2357
(XXII), in which it again expressed deep concern at the continuation of policies
aimed “at the disruption of the territorial integrity of some of the Territories”. The
General Assembly reiterated that:
any attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of colonial Territories and the
establishment of military bases and installations in these Territories
is incompatible with the purposes and principles of the Charter of
the United Nations and of General Assembly resolution 1514
(XV)… .457
4.40 Since the adoption of Resolution 2357 (XXII), numerous U.N. bodies –
including inter alia the General Assembly, the Committee of 24, and the Human
Rights Committee – have remained heavily involved in matters concerning the
decolonisation of Mauritius, the detachment of the Chagos Archipelago, the
455 U.N. General Assembly, 22nd Session, 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: Agenda Item 23, U.N. Doc. A/6700/Add.8* (11 Oct. 1967), para. 194
(emphasis omitted) (Annex 92).
456 Ibid.
457 U.N. General Assembly, 22nd Session, Question of American Samoa, Antigua, Bahamas,
Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and
Ellice Islands, Grenada, Guam, Mauritius, Montserrat, New Hebrides, Niue, Pitcairn, St. Helena,
St. Kitts-Nevis-Anguilla, St. Lucia, St. Vincent, Seychelles, Solomon Islands, Swaziland, Tokelau
Islands, Turks and Caicos Islands and the United States Virgin Islands, U.N. Doc.
A/RES/2357(XXII) (19 Dec. 1967), para. 4 (Dossier No. 198).
147
creation of the “BIOT”, the construction and maintenance of military facilities in
Diego Garcia, and the forcible removal of the Chagossians and the prevention of
their return. This is illustrated by the following eight examples, taken from the
Dossier prepared by the U.N. Secretariat:
In a Report adopted at its 700th meeting in 1969, the Committee of 24
reiterated that “any actions, whether on the part of the administering
Power alone or in conjunction with another power, to construct military
bases in the so-called ‘British Indian Ocean Territory’ are incompatible
with the Charter and would lead to increased tension in Africa and
Asia”.458
In a 1972 Report on Military Activities and Arrangements by
administering powers in Territories under their Administration, the
Committee of 24 concluded that military activities (including the
construction of a military base in Diego Garcia) “inevitably delays the
process of decolonization”. The Committee reaffirmed that
the military activities and arrangements by colonial
Powers in the Territories under their administration
458 United Nations, 24th Session, 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, Doc. No. A/7623/Rev.1, Vol. III, Supplement No. 23 (1974), p. 4, Recommendations, para.
9 (Dossier No. 323). In a Report adopted at its 757th meeting in 1970, the Committee of 24 also
noted that the Chagos Archipelago was “formerly part of Mauritius”. See U.N. General Assembly,
25th Session, 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, Doc. No.
A/8023/Rev.1, Vol. III, Supplement No. 23 (1973), p.14, para. 34 (Dossier No. 324). In relation to
the three islands detached from Seychelles, the Committee concluded that the administering power
“has persistently refused to comply with the provisions of resolution 1514 (XV)” and “continues to
violate the territorial integrity of the Seychelles”. Ibid., p. 3, Conclusions, para. 4. In its
recommendations, the Committee confirmed “that the detachment of a number of islands from the
Seychelles by the administering Power, and the setting up of the so-called ‘British Indian Ocean
Territory’ with the purpose of establishing a military base in that Territory jointly with the United
States of America, is incompatible with the Charter of the United Nations and the Declaration on
the Granting of Independence to Colonial Countries and Peoples. It reiterates its decision that such
actions are not in keeping with either the interests of the inhabitants or with those of the African
continent or with international peace and security”. Ibid., p. 4, Recommendations, para. 4. The
Committee called upon the administering power to “respect the territorial integrity of the Seychelles
and to return immediately to that Territory the islands detached from it in 1965”. Ibid., para. 5.
148
and the existence of foreign military bases in those
Territories constitute one of the most serious
impediments to the implementation of the
Declaration on the Granting of Independence to
Colonial Countries and Peoples contained in General
Assembly resolution 1514 (XV) of 14 December
1960, and pose a grave threat to international peace
and security.459
In a Report adopted at its 876th meeting in 1972, the Committee of 24
recognised that the administering power detached the Chagos
Archipelago from Mauritius and three islands from Seychelles “without
prior consultation with the people of the Territory.”460
In a Report adopted at its 1011th meeting in 1975, the Committee of 24
reaffirmed that military activities and arrangements by administering
powers are “a serious impediment” to the implementation of General
Assembly Resolution 1514 (XV) and that these activities “are thus
contrary to the aims and purposes of the Charter of the United Nations
and are an abuse by the administering Powers of their responsibilities
towards peoples under their administration.”461
At a 1983 meeting of the Ad Hoc Committee on the Indian Ocean, the
representative from Mozambique expressed the view that “Diego
Garcia, a territory arbitrarily wrenched from the national whole of
459 United Nations, 27th Session, 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: Decision of the Special Committee, Doc. No. A/8723/Rev.1, Vol. II, Supplement No. 23
(1975), pp. 169-170, Conclusions, paras. 9 and 11 (Dossier No. 326).
460 United Nations, 27th Session, 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: Decisions of the Special Committee, Doc. No. A/8723/Rev.1, Vol. IV, Supplement No. 23
(1975), p. 7, Conclusions, para. 6 (Dossier No. 327).
461 United Nations, 30th Session, 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, Doc. No. A/10023/Rev.1, Vol. I, Supplement No. 23 (1977), pp. 177-178, Conclusions,
para. 13 (Dossier No. 332). The Committee also called upon the U.K. “to withdraw from the
agreement with the United States of America on the establishment of military installation in the
Indian Ocean”. Ibid., p. 179, Recommendations, para. 10.
149
Mauritius, has now become the most threatening base of aggression
against the peoples and countries of the Indian Ocean region.”462
Likewise, the representative from the Union of Soviet Socialist
Republics described Diego Garcia as having been “torn away from
Mauritius” and stated that “the creation and consolidation of military
bases on Diego Garcia are a threat to the sovereignty, territorial integrity
and peaceful development of Mauritius and other States.”463
At a plenary meeting of the General Assembly on the implementation
of Resolution 1514 (XV) on 6 December 1983, the Byelorussian
representative stated that the establishment of military bases, including
in Diego Garcia, is directly contrary to “the aims of decolonization
proclaimed in [Resolution 1514 (XV)] and hinder the fulfilment of the
Declaration.”464 The delegation from Mongolia called for Resolution
1514 (XV) to be “fully implemented in the case of all other colonial
peoples and dependent Territories, including Diego Garcia”.465 Cuba’s
representative, referring to Diego Garcia, said that “the struggle against
the vestiges of colonialism has not ended”.466 The delegation from
Madagascar expressed the view that the presence of military bases in
certain non-self-governing territories are “obstacles to the
implementation” of Resolution 1514 (XV).467 The representative from
Hungary said that military bases in the Pacific and Indian Oceans, the
462 U.N. General Assembly, First Committee, 38th Session, 48th Meeting, Agenda Item 59:
Implementation of the Declaration of the Indian Ocean as a Zone of Peace: Report of the Ad Hoc
Committee on the Indian Ocean, U.N. Doc. A/C.1/38/PV.48 (2 Dec. 1983), p. 19 (Dossier No. 277).
463 Ibid., p. 26.
464 U.N. General Assembly, 38th Session, 84th Plenary Meeting, Agenda Item 18: Implementation
of the Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N. Doc.
A/38/PV.84 (6 Dec. 1983), para. 98 (Dossier No. 278).
465 U.N. General Assembly, 38th Session, 85th Plenary Meeting, Agenda Item 18: Implementation
of the Declaration on the Granting of Independence to Colonial Countries and Peoples, U.N. Doc.
A/38/PV.85 (6 Dec. 1983), para. 23 (Dossier No. 279). See also the statement by the representative
from Vietnam at para. 56.
466 Ibid., para. 114.
467 Ibid., para. 9.
150
Caribbean and South Atlantic “impede decolonization”.468 Ukraine’s
delegation referred to the denial, for strategic interests, of “the sacred
right of the peoples to self-determination” and described the seizure of
the Chagos Archipelago as illegal.469
In 1985, the Human Rights Committee considered the situation with
regard to territories that had not yet become independent, and asked the
U.K. “what its intentions were concerning islands which had belonged
to Mauritius and which had subsequently been incorporated into the
British Indian Ocean Territories”.470 Likewise, in 1989, the Human
Rights Committee enquired about “whether the population of the
Archipelago had been asked its opinion about self-determination” and
asked for more information concerning the current social and political
status of the former inhabitants of the Chagos Archipelago.471
At the 23rd meeting of the Sub-Commission on the Promotion and
Protection of Human Rights in 2000, it was stated that the General
Assembly “had adopted a number of resolutions emphasizing that the
detachment of the Chagos islands from Mauritius was in contravention
of [Resolution 1514 (XV)]” and that “[t]he case of the displaced Ilois
population, whose right to return was still being denied, was a human
tragedy that deserved the attention of the Sub-Commission.”472
468 Ibid., para. 30.
469 Ibid., para. 146.
470 U.N. Human Rights Committee, 40th Session, Report of the Human Rights Committee, U.N.
Doc. A/40/40, Supplement No. 40 (1985), para. 536 (Dossier No. 385). The U.K. representative
said in response that “the United Kingdom had no intention of detaching any part of Mauritius”.
Ibid., para. 537.
471 U.N. Human Rights Committee, 44th Session, Report of the Human Rights Committee, U.N.
Doc. A/44/40 (1989), para. 494 (Dossier No. 386).
472 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human
Rights, 52nd Session, 23rd Meeting, Summary Record, U.N. Doc. E/CN.4/Sub.2/2000/SR.23 (30
May 2001), p. 5, para. 9 (Mr Sik Yuen) (Dossier No. 348). See also the comments by the Observer
for Mauritius at para. 18.
151
4.41 For the past fifty years, the U.N. General Assembly has manifested a clear
and continuing interest in the decolonisation of Mauritius and the detachment of
the Chagos Archipelago. As described above, Mauritius has raised these matters
before the General Assembly on more than 30 occasions since 1980.473 And, as
addressed below, there has been extensive and ongoing criticism of the
administering power’s forcible removal of the inhabitants of the Chagos
Archipelago, and the refusal to allow their resettlement (on which see paragraphs
4.49 to 4.61).
B. REACTION OF THE INTERNATIONAL COMMUNITY
4.42 For more than five decades, continued and sustained international
condemnation has been directed at the unlawful detachment of the Chagos
Archipelago from the territory of Mauritius. This is reflected in resolutions and
declarations adopted by the Organisation of African Unity (“O.A.U.”)474 and
subsequently the African Union (“A.U.”);475 the Non-Aligned Movement
473 See paras. 4.5 and 4.15. See also Republic of Mauritius, References to the Chagos Archipelago
in Annual Statements Made by Mauritius to the United Nations General Assembly (extracts) (1974-
2017) (Annex 100).
474 Resolution on Diego Garcia (1-4 July 1980) (Annex 118); Organization of African Unity,
Assembly of Heads of State and Government, 36th Ordinary Session, Decision on Chagos
Archipelago, AHG/Dec.159(XXXVI) (10-12 July 2000) (Annex 140); Organization of African
Unity, Council of Ministers, 74th Ordinary Session, Decision on the Chagos Archipelago Including
Diego Garcia, CM/Dec.26(LXXIV) (5-8 July 2001) (Annex 144).
475 Assembly of the African Union, 15th Ordinary Session, Decision on the Sovereignty of the
Republic of Mauritius Over the Chagos Archipelago, Assembly/AU/Dec.331(XV) (27 July 2010)
(Annex 156); African Union, Assembly of Heads of State and Government, 16th Ordinary Session,
Resolution adopted at the 16th Ordinary Session, Assembly/AU/Res.1(XVI) (30-31 Jan. 2011)
(Annex 158); Assembly of the African Union, 21st Ordinary Session, Declaration on the Report of
the Peace and Security Council on its Activities and the State of Peace and Security in Africa,
Assembly/AU/Decl.1(XXI) (26-27 May 2013) (Annex 165); Assembly of the African Union, 21st
Ordinary Session, Solemn Declaration on the 50th Anniversary of the OAU/AU,
Assembly/AU/2(XXI)Rev.1 (26 May 2013) (Annex 164); Assembly of the African Union, 25th
Ordinary Session, Resolution on Chagos Archipelago, Doc. EX.CL/901(XXVII),
Assembly/AU/Rev.1(XXV) (14-15 June 2015) (Annex 175); Executive Council of the African
Union, 30th Ordinary Session, Decision on the 2016 Annual Report of the Chairperson of the AU
152
(“N.A.M.”);476 the Group of 77 and China (“G77”);477 the Africa-South America
Summit;478 and the African, Caribbean, and Pacific Group of States (“A.C.P.”).479
What follows is a sample of those resolutions and declarations.
1. Organisation of African Unity and the African Union
4.43 In a resolution adopted as early as July 1980, the O.A.U. demanded “that
Diego Garcia be unconditionally returned to Mauritius and that its peaceful
Commission, Doc. EX.CL/994(XXX) (27 Jan. 2017); (Annex 189); African Union, 28th Session,
Resolution on Chagos Archipelago, Doc. EX.CL/994(XXX), Assembly/AU/Res.1 (XXVIII) (30-31
Jan. 2017) (Annex 190).
476 Non-Aligned Movement, Extracts from Selected Non-Aligned Movement Declarations (1964-
2012) (Annex 21); Non-Aligned Movement, 17th Mid-Term Ministerial Meeting of the Non-
Aligned Movement, Final Document: Chagos Archipelago (26-29 May 2014) (Annex 172); Non-
Aligned Movement, 17th Summit of Heads of State and Government of the Non-Aligned
Movement, Final Document: Chagos Archipelago (17-18 Sept. 2016) (Annex 186); Chair of the
Coordinating Bureau of the Non-Aligned Movement Political Declaration of New York (20 Sept.
2017) (Annex 194). See also Note Verbale from the High Commission of India in Port Louis to the
Mauritius Ministry of Foreign Affairs, POR/162/1/97 (9 May 1997) (Annex 139).
477 U.N. Conference on Trade and Development, 13th Session, Ministerial Declaration of the Group
of 77 and China on the occasion of UNCTAD XIII (extract) (23 Apr. 2012) (Dossier No. 466);
Ministers for Foreign Affairs of the Member States of the Group of 77, Ministerial Declarations
adopted at the Thirty-Sixth and Thirty-Seventh Annual Meetings of Ministers for Foreign Affairs of
the Member States of the Group of 77 (28 Sept. 2012 & 26 Sept. 2013) (Annex 162); Group of 77
and China, Summit of Heads of State and Government of the Group of 77, Declaration: For a New
World Order for Living Well (14-15 June 2014) (Annex 173); Group of 77 and China, 38th Annual
Meeting of Ministers for Foreign Affairs, Ministerial Declaration (26 Sept. 2014) (Annex 174);
Group of 77 and China, 14th Session, Ministerial Declaration of the Group of 77 and China on the
occasion of UNCTAD XIV, TD/507 (17-22 July 2016) (Annex 181); Group of 77 and China, 40th
Annual Meeting of Ministers for Foreign Affairs, Ministerial Declaration (23 Sept. 2016) (Annex
183); Group of 77 and China, 41st Annual Meeting of Ministers for Foreign Affairs, Ministerial
Declaration (22 Sept. 2017) (Annex 195).
478 Africa-South America Summit, 2nd Summit, Declaration of Nueva Esparta (26-27 Sept. 2009)
(Annex 155); Africa-South America Summit, 3rd Summit, Malabo Declaration (20-22 Feb. 2013)
(Annex 163).
479 African, Caribbean and Pacific Group of States, Declaration of the 8th Summit of Heads of State
and Government of the ACP Group of States: Port Moresby Declaration (31 May-1 June 2016)
(Annex 179); African, Caribbean and Pacific Group of States, 104th Session of the ACP Council of
Ministers, Support for the Claim of Sovereignty of Mauritius over the Chagos Archipelago, Decision
No. 7/CIV/16 (29-30 Nov. 2016) (hereinafter “Support for the Claim of Sovereignty of Mauritius
over the Chagos Archipelago (29-30 Nov. 2016)”) (Annex 187).
153
character be maintained.”480 The O.A.U. has also called upon “the United Kingdom
to put an end to its continued unlawful occupation of the Chagos Archipelago and
to return it to Mauritius thereby completing the process of decolonization”.481 On
27 July 2010, the A.U. adopted a decision in which it:
RE-AFFIRMS that the Chagos Archipelago, including Diego
Garcia, which was unlawfully excised by the former colonial power
from the territory of Mauritius in violation of UN Resolutions 1514
(XV) of 14 December 1960 and 2066 (XX) of 16 December 1965
which prohibit colonial powers from dismembering colonial
territories prior to granting independence, forms an integral part of
the territory of the Republic of Mauritius and CALLS UPON the
United Kingdom to expeditiously put an end to its continued
unlawful occupation of the Chagos Archipelago with a view to
enabling Mauritius to effectively exercise its sovereignty over the
Archipelago.482
4.44 Most recently, on 31 January 2017, the A.U. adopted a resolution in which
it:
4. RECALLS in this regard the previous resolutions adopted by the
Assembly, in particular, Resolution Assembly/AU/Res.1(XXV) of
June 2015 of the Assembly of the African Union held in
Johannesburg, South Africa, expressing its full support to the efforts
and actions in accordance with international law, including those of
a diplomatic and legal nature at the level of the United Nations
system, which may be taken by the Government of the Republic of
Mauritius for the early and unconditional return of the Chagos
Archipelago, including Diego Garcia, to the effective control of the
Republic of Mauritius;
480 Resolution on Diego Garcia (1-4 July 1980) (Annex 118).
481 Organization of African Unity, Council of Ministers, 74th Ordinary Session, Decision on the
Chagos Archipelago Including Diego Garcia, CM/Dec.26(LXXIV) (5-8 July 2001) (Annex 144).
482 Assembly of the African Union, 15th Ordinary Session, Decision on the Sovereignty of the
Republic of Mauritius Over the Chagos Archipelago, Assembly/AU/Dec.331(XV) (27 July 2010)
(Annex 156).
154
5. NOTES that at the request of the Government of the Republic of
Mauritius, an 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” has
been included in the agenda of the 71st Session of the United
Nations General Assembly and that action on that item is likely to
be taken in June 2017;
6. RESOLVES to fully support the action initiated by the
Government of the Republic of Mauritius at the level of the United
Nations General Assembly with a view to ensuring the completion
of the decolonization of the Republic of Mauritius and enabling the
Republic of Mauritius to effectively exercise its sovereignty over the
Chagos Archipelago, including Diego Garcia… .483
2. Non-Aligned Movement
4.45 Since March 1983, the N.A.M. has recognised that the Chagos Archipelago
“was detached from the territory of Mauritius by the former colonial power in 1965
in contravention of United Nations General Assembly resolutions 1514(XV) and
2066(XX).”484 The N.A.M. has acknowledged that the Chagos Archipelago “forms
an integral part of the territory of the Republic of Mauritius”485 and has called upon
the administering power to effect its “early return”486 and to do so “without
delay.”487
483 African Union, 28th Session, Resolution on Chagos Archipelago, Doc. EX.CL/994(XXX),
Assembly/AU/Res.1 (XXVIII) (30-31 Jan. 2017) (Annex 190).
484 Non-Aligned Movement, Extracts from Selected Non-Aligned Movement Declarations (1964-
2012), p. 5, para. 81 (Annex 21).
485 See, e.g., ibid., p. 20, para. 285.
486 See, e.g., ibid., p. 10, para. 171.
487 Ibid., p. 9, para. 14.
155
3. Group of 77 and China
4.46 The G77 has repeatedly affirmed that the Chagos Archipelago was
“unlawfully excised by the United Kingdom from the territory of Mauritius, prior
to independence, in violation of international law and UN General Assembly
resolutions 1514 (XV) of 14 December 1960 and 2066 (XX) of 16 December
1965”488 and that “[f]ailure to resolve these decolonization and sovereignty issues
would seriously damage and undermine the development and economic capacities
and prospects of developing countries.”489
4. Africa-South America Summit
4.47 The 2013 Malabo Declaration adopted by the Third Africa-South America
Summit affirms that:
the Chagos Archipelago, including Diego Garcia, which was
unlawfully excised by the former colonial power from the territory
of the Republic of Mauritius in violation of international law and
UN Resolutions 1514 (XV) of 14 December 1960 and 2066 (XX) of
16 December 1965, forms an integral part of the territory of the
Republic of Mauritius.490
5. African, Caribbean and Pacific Group of States
4.48 The 2016 Port Moresby Declaration, adopted by the 8th Summit of A.C.P.
Heads of State and Government, recognised the unlawful excision of the Chagos
Archipelago by the former administering power, in violation of General Assembly
488 Group of 77 and China, 41st Annual Meeting of Ministers for Foreign Affairs, Ministerial
Declaration (22 Sept. 2017), para. 200 (Annex 195).
489 Group of 77 and China, 40th Annual Meeting of Ministers for Foreign Affairs, Ministerial
Declaration (23 Sept. 2016), para. 150 (Annex 183).
490 Africa-South America Summit, 3rd Summit, Malabo Declaration (20-22 Feb. 2013), para. 28
(Annex 163).
156
Resolutions 1514 (XV) and 2066 (XX).491 At its 104th Session on 30 November
2016, the A.C.P. Council of Ministers deplored “the continued unlawful occupation
by the United Kingdom of the Chagos Archipelago, thereby denying the Republic
of Mauritius the exercise of its sovereignty over the Archipelago and making the
decolonization of the Republic of Mauritius and of Africa incomplete”.492
IV. Reaction to the forcible removal of the Chagossians
4.49 The forcible removal of the Chagossians, and the denial by the
administering power, over five decades, of their right to resettle in the Chagos
Archipelago, have been heavily criticised and have resulted in numerous domestic
legal challenges in the U.K. The Government of Mauritius has committed, as soon
as the process of decolonisation is complete, to allow for the resettlement of the
Chagossians, and any other Mauritian citizen who wishes to live in the Chagos
Archipelago. Mauritius has also made clear that “there is no strategic or defence
impediment” for the return to the outer islands of the Archipelago of persons of
Mauritian origin who were living in the Chagos Archipelago, and that it has “no
objection to the continued presence of the US military base on Diego Garcia”.493
491 African, Caribbean and Pacific Group of States, Declaration of the 8th Summit of Heads of State
and Government of the ACP Group of States: Port Moresby Declaration (31 May-1 June 2016),
para. 21 (Annex 179).
492 Support for the Claim of Sovereignty of Mauritius over the Chagos Archipelago (29-30 Nov.
2016) (Annex 187).
493 Letter from the Minister of Foreign Affairs and Regional Cooperation, Republic of Mauritius, to
the Secretary of State for Foreign & Commonwealth Affairs, United Kingdom (21 Dec. 2000)
(Annex 141). See also Letter from the Prime Minister of Mauritius to the Prime Minister of the
United Kingdom (22 July 2004) (Annex 147); Letter from the Minister of Foreign Affairs,
International Trade and Regional Co-operation of the Republic of Mauritius to the Secretary of State
for Foreign and Commonwealth Affairs of the United Kingdom (22 Oct. 2004) (Annex 148); Note
Verbale from the Ministry of Foreign Affairs of the Republic of Mauritius to the Embassy of the
United States of America in Mauritius, No. 26/2014 (1197/28) (28 Mar. 2014) (Annex 168); Letter
157
4.50 On 23 February and 23 June 1972, the Prime Minister of Mauritius had
discussions with British representatives on a resettlement scheme for the former
residents of the Chagos Archipelago.494 The U.K. agreed to pay £650,000 to the
Mauritian Government, “provided that the Mauritius Government accept such
payment in full and final discharge of [the U.K.’s] undertaking, given at Lancaster
House, London, on 23 September 1965, to meet the cost of resettlement of persons
displaced from the Chagos Archipelago”.495 On 4 September 1972, the Mauritian
Prime Minister accepted payment of £650,000 as the cost of the resettlement
scheme.
4.51 In 1975, Michel Vencatassen, a former resident of the Chagos Archipelago
who was forcibly removed in 1971, brought a compensation claim in the High
Court in London against the British Government. The claim was for “damages for
intimidation and deprivation of liberty in connection with his departure from Diego
Garcia, but the proceedings came to be accepted on both sides as raising the whole
question of the legality of the removal of the Chagossians from the islands.”496
After lengthy negotiations, the claim was settled in 1982 on the basis that the U.K.
Government pay £4 million into a trust fund for the former residents of the Chagos
Archipelago, on the condition that they renounce their rights to future claims arising
from the Prime Minister of the Republic of Mauritius to the President of the United States (11 July
2017) (Annex 193). See also Chapter 7, Part III. B. 2.
494 Letter from the British High Commission in Port Louis to the Prime Minister of Mauritius (26
June 1972) (Annex 98).
495 Ibid., para. 2.
496 As summarised by Lord Hoffmann in R (on the application of Bancoult) v. Secretary of State for
Foreign Commonwealth Affairs, [2008] UKHL 61 (22 Oct. 2008), para. 12.
158
out of their removal from the islands.497 The Ilois Trust Fund Act was enacted on
30 July 1982, and put in place the mechanism required by the 1982 Agreement.498
4.52 In 1998, another former resident of the Chagos Archipelago, Olivier
Bancoult, applied to the High Court in London for judicial review of the U.K.
Immigration Ordinance 1971, Section 4(1) of which provided that: “No person shall
enter the Territory or, being in the Territory, shall be present or remain in the
Territory, unless he is in possession of a permit…”.499 This provision provided the
purported legal basis for the expulsion, and then the continued exclusion, of the
Chagossians from the Chagos Archipelago. Mr Bancoult sought a declaration that
the Ordinance was void because it purported to authorise the expulsion of
Chagossians from the Chagos Archipelago, and a declaration that the policy which
prevented him from returning to and residing in the Archipelago was unlawful. On
3 November 2000, the High Court gave judgment in favour of Mr Bancoult, holding
that the 1971 Ordinance was unlawful on the basis that the Government had
purported to make it under a power to legislate for the “peace, order and good
497 Ibid., para. 13. On 7 July 1982, Mauritius and the U.K. signed an Agreement relating to the
payment of further compensation. See Agreement concerning the Ilois from the Chagos Archipelago
(with exchange notes of 26 October 1982), 1316 U.N.T.S. 21924 (7 July 1982), entered into force
28 Oct. 1982. In a report of the Commission on Human Rights’ Working Group on Minorities, it is
suggested that the “no return” clause in the 1982 agreement was not understood by many of the
Chagossians who were illiterate. See Commission on Human Rights, Sub-Commission on the
Promotion and Protection of Human Rights, Working Group on Minorities, Report on the visit by
the Working Group to Mauritius, Examining Possible Solutions to Problems Involving Minorities,
Including the Promotion of Mutual Understanding Between and Among Minorities and
Governments, U.N. Doc. E/CN.4/Sub.2/AC.5/2002/2 (3 April 2002), para. 37 (Dossier No. 363).
498 Republic of Mauritius, Ilois Trust Fund Act 1982, Act No. 6 of 1982 (30 July 1982). Section 12
of the Act provided that: “Nothing in this Act shall affect the sovereignty of Mauritius over the
Chagos Archipelago, including Diego Garcia.”
499 R (on the application of Bancoult) v. Secretary of State for the Foreign and Commonwealth
Office, [2001] Q.B. 1067 (3 Nov. 2000), para. 5.
159
government” of the territory, which did not include the power to expel the residents.
Accordingly, the Court quashed the Ordinance.500
4.53 In response, the then Foreign Secretary Robin Cook stated that the British
Government accepted the ruling and did not intend to appeal; that work on the
feasibility of resettling the former residents took on a new importance in light of
the judgment; that in the meantime a new Immigration Ordinance would be put in
place in order to allow the former residents to return to the outer islands of the
Archipelago; and that: “This Government has not defended what was done or said
thirty years ago… we made no attempt to conceal the gravity of what happened.”501
The British Government adopted the Immigration Ordinance 2000, largely identical
to the 1971 Ordinance, but providing that the restrictions on entry to the Chagos
Archipelago did not apply to the Chagossians, save in respect of Diego Garcia.
4.54 In April 2002, the High Court dismissed a claim brought by Chagossians
against the British Government, claiming compensation and restoration of their
property rights, and declarations of their entitlement to return to all the islands of
the Chagos Archipelago, and to measures facilitating their return.502 On 9 October
2003, the High Court dismissed additional claims.503 The Court of Appeal refused
leave to appeal on grounds relating to English law, while recognising that the
compensation which the former residents had received “has done little to repair the
wrecking of their families and communities, to restore their self-respect or to make
500 R (on the application of Bancoult) v. Secretary of State for the Foreign and Commonwealth
Office, [2001] Q.B. 1067 (3 Nov. 2000).
501 Quoted by Lord Hoffmann in R (on the application of Bancoult) v. Secretary of State for Foreign
Commonwealth Affairs, [2008] UKHL 61 (22 Oct. 2008), para. 17.
502 Summarised by Lord Hoffmann in R (on the application of Bancoult) v. Secretary of State for
Foreign Commonwealth Affairs, [2008] UKHL 61 (22 Oct. 2008), para. 20.
503 Chagos Islanders v. The Attorney General, [2003] EWHC 2222 (QB) (9 Oct. 2003).
160
amends for the underhand official conduct now publicly revealed by the
documentary record.”504
4.55 In 2004, in disregard of its previous commitment to work towards
resettlement of the Chagos Archipelago, the British Government repealed the
Immigration Ordinance 2000 and introduced the “British Indian Ocean Territory
(Constitution) Order 2004”, Section 9 of which restored the pre-2001 position of
complete exclusion of all persons from the Chagos Archipelago, including the
former residents whose right to be present on all islands other than Diego Garcia
had been recognised in 2001 by the High Court.505
4.56 Mr Bancoult challenged the 2004 Order by way of a further claim for
judicial review. The High Court held that the 2004 Order, and an immigration order
made in parallel to it,506 were irrational in that they did not promote the interests of
the Chagossians; the Court therefore quashed the Orders.507 The Court of Appeal
upheld this decision, on the basis that (i) the removal or subsequent exclusion of
the Chagossians for reasons unconnected with their collective wellbeing was an
abuse of the power of colonial governance exercisable by Her Majesty in Council;
and (ii) Foreign Secretary Robin Cook’s press statement after the 2000 High Court
504 Chagos Islanders v. The Attorney General, [2004] EWCA Civ 997 (22 July 2004), para. 54.
505 Section 9(2) provides that “no person is entitled to enter or be present in the Territory except as
authorised by or under this Order or any other law for the time being in force in the Territory.” See
R (on the Application of Bancoult) v. The Secretary of State for Foreign and Commonwealth Affairs
[2006] EWHC 1038 (Admin) (11 May 2006), para. 91.
506 United Kingdom, “British Indian Ocean Territory (Immigration) Order 2004” (10 June 2004).
See R (on the Application of Bancoult) v. The Secretary of State for Foreign and Commonwealth
Affairs [2006] EWHC 1038 (Admin) (11 May 2006), para. 9 (“By virtue of the British Indian Ocean
Territory (Immigration) Order 2004… also made by Her Majesty in Council, presence within the
Territory without a permit became an offence punishable by 3 years’ imprisonment. It is clear that
no permit will be granted to allow Chagossians to resume living in any of the islands.”)
507 R (on the Application of Bancoult) v. The Secretary of State for Foreign and Commonwealth
Affairs [2006] EWHC 1038 (Admin) (11 May 2006).
161
decision, and the Immigration Ordinance 2000, were promises to the former
residents which gave rise to a legitimate expectation that, in the absence of a
relevant change of circumstances (and none had been identified), their rights of
entry to and abode in the Chagos Archipelago would not be revoked.508
4.57 The British Government appealed to the House of Lords (then the highest
court in the U.K.), which allowed the appeal by a 3-2 majority, holding that the
power to take the measures in question was not limited to objectives connected to
the “peace, order and good government” of the territory, but extended to the wider
interests of the U.K.; that such matters were the primary responsibility of the
executive, not the courts; and that the measures could not be said to be irrational,
given a broader interpretation of the power to make them.509 The Court was,
however, highly critical of the Government’s conduct in the Chagos Archipelago.
Lord Hoffmann stated that:
My Lords, it is accepted by the Secretary of State that the removal
and resettlement of the Chagossians was accomplished with a
callous disregard of their interests.510
508 R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs,
[2007] EWCA Civ 498 (23 May 2007).
509 R (on the application of Bancoult) v. Secretary of State for Foreign Commonwealth Affairs,
[2008] UKHL 61 (22 Oct. 2008).
510 Ibid., para. 10. Mr Bancoult challenged the decision of the House of Lords before the European
Court of Human Rights. See Chagos Islanders v. The United Kingdom, Decision on Application No.
35622/04, European Court of Human Rights (11 Dec. 2012), available at
http://hudoc.echr.coe.int/eng?i=001-115714 (last accessed 20 Feb. 2018). The European Court of
Human Rights (Fourth Section) rejected the application on the basis that the applicants had accepted
and received compensation, and had effectively renounced further claims. In August 2010, Mr
Bancoult issued a further judicial review claim before the High Court in London challenging the
lawfulness of the U.K.’s decision to establish the “MPA”, on the basis that the decision had an
ulterior motive (namely the continued exclusion of the former residents of the Chagos Archipelago),
and that the purported process of consultation had been seriously flawed by reason of the nondisclosure
of significant information. On 8 February 2018, the U.K. Supreme Court dismissed an
appeal brought by Mr Bancoult by 5-2 (R (on the application of Bancoult) v. Secretary of State for
Foreign and Commonwealth Affairs, [2018] UKSC 3).
162
4.58 On 8 July 2013, the British Government announced a feasibility study into
the resettlement of the Chagossians, which would entail consultation with
interested parties.511 Of the Chagossian respondents to the consultation, 98%
expressed a desire to return to the Chagos Archipelago.512 The Government
commissioned the consulting firm KPMG to carry out the study, which considered
three resettlement options (large-scale, medium-scale and small-scale
resettlement). The study concluded that there were no fundamental legal obstacles
preventing resettlement and that potential environmental impacts could be
ameliorated through mitigation measures. It was recognised that there are income
opportunities in the Chagos Archipelago in artisanal fishing and the development
of small coconut plots, as well as the potential to develop high-end and ecotourism.
513
4.59 Nevertheless, on 16 November 2016, the British Government declared,
without prior consultation with Mauritius, that it “has decided against resettlement
of the Chagossians people … on the grounds of feasibility, defence and security
interests and cost to the British taxpayer.”514 At the same time, the Government
announced it would fund a package worth approximately £40 million over the next
511 U.K. Foreign and Commonwealth Office, Written Ministerial Statement, “Update on the British
Indian Ocean Territory Policy Review” (8 July 2013) (Annex 167).
512 U.K. Foreign and Commonwealth Office, “BIOT Resettlement Policy Review: Summary of
Responses to Public Consultation” (21 Jan. 2016), p. 3 (Annex 178).
513 KPMG LLP, “Feasibility study for the resettlement of the British Indian Ocean Territory” (31
Jan. 2015), available at https://www.gov.uk/government/speeches/policy-review-of-resettlementof-
the-british-indian-ocean-territory (last accessed 20 Feb. 2018).
514 “Update on the British Indian Ocean Territory” (16 Nov. 2016) (Annex 185). This decision is
the subject of judicial review proceedings in the U.K. See R (on the application of Bancoult) v.
Secretary of State for Foreign and Commonwealth Affairs, [2018] UKSC 3, para. 1.
163
10 years to support improvements in the livelihood of the Chagossian community
outside the Archipelago.515
4.60 On 6 December 2017, following the General Assembly’s request for an
Advisory Opinion, the “Chagos Islands (BIOT) All-Party Parliamentary Group”
(“A.P.P.G.”), a cross-party Group comprising 20 members of the House of
Commons and the House of Lords of the U.K. Parliament,516 issued a Statement,
which provides that:
The most pressing issue for the APPG is the continuing exile of the
Chagossian people, a shameful blot on the UK’s human rights
record. The Group has urged successive governments to restore the
right of abode and the right of return to their homeland for all those
wishing to do so, whether for resettlement, work or visits and to
establish a pilot resettlement on Diego Garcia, as recommended by
KPMG in 2015. There is no need for the UK to postpone a pilot
resettlement any longer. The ICJ proceedings, which can take
several years, must not be used as an excuse for delaying the
restoration on moral, ethical and political grounds, of the right of
abode. It is noted that the Government of Mauritius strongly
supports the right of return and resettlement.
The Group believes that an overall settlement with Mauritius and
the Chagos Islanders is long overdue. For the UK to continue to
argue against an ICJ Advisory Opinion would have consequences
for the UK’s reputation in the UN. An Advisory Opinion, which
addresses the question put by the General Assembly, would provide
a way forward and a solid basis for settling these issues, thus
contributing to a resolution of an urgent human rights tragedy that
has endured for over 50 years. Members hope that the ICJ will
expedite its work and that its forthcoming Advisory Opinion will
inspire the United Nations General Assembly to work with the
515 Ibid.
516 Membership of the A.P.P.G. includes inter alia the current leader of the Labour Party (Jeremy
Corbyn, who is the Honorary President) and Lord Steel (the former leader of the Liberal Democrats
and the Liberal Party). Lord Luce, a Conservative peer who was Minister of State for Foreign and
Commonwealth Affairs between in 1981-1982 and 1983-1985, has also been a member of the
A.P.P.G.
164
parties directly concerned to bring an end to the exile of the
Chagossian people and contribute to the process of decolonisation.
The APPG has been persistent in analysing the fluctuating
arguments deployed by governments against resettlement such as
cost, infeasibility, defence, security, treaty obligations to the US,
child safeguarding, climate change, erosion, rising sea levels and
conservation. The Group continues to believe that with political will
these issues can be addressed and resolved. Indeed the Group
understands that the US has no objection to a pilot resettlement on
Diego Garcia.517
4.61 The expulsion of the Chagossians and the denial of their right to return has
also been criticised by the international community, including at the U.N. In
November 2016, the A.C.P. Council of Ministers “reiterated that the denial of the
right of Mauritians, particularly those of Chagossian origin, to settle in the Chagos
Archipelago is a manifest breach of international law and outrageously flouts their
human rights”.518 As illustrated by the four examples below, various U.N. bodies,
including the Human Rights Committee and the Committee on the Elimination of
Racial Discrimination, have shown a continuing interest in the removal of the
Chagossians and their right of return:
In April 2002, the Working Group on Minorities reported on a visit to
Mauritius between 7 and 10 September 2001. It was noted that the
former inhabitants of the Chagos Archipelago “were forced to evacuate
their homes and move to the main island”.519 The Working Group
517 Chagos Islands (BIOT) All-Party Parliamentary Group, Statement issued at its 65th meeting on 6
December 2017 by the Chagos Islands (BIOT) All-Party Parliamentary Group on the legal
consequences of the separation of the Chagos Archipelago from Mauritius in 1965 to be considered
by the International Court of Justice (6 Dec. 2017) (Annex 196).
518 Support for the Claim of Sovereignty of Mauritius over the Chagos Archipelago (29-30 Nov.
2016) (Annex 187).
519 Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human
Rights, Working Group on Minorities, Examining Possible Solutions To Problems Involving
Minorities, Including the Promotion of Mutual Understanding Between and Among Minorities and
Governments, Doc. No. E/CN.4/Sub.2/AC.5/2002/2 (3 Apr. 2002), para. 36 (Dossier No. 363).
165
expressed concern with regard to the social and economic difficulties
faced by the Chagossians.520
In its Concluding Observations on the sixth periodic report submitted
by the U.K. under Article 40 of the International Covenant on Civil and
Political Rights in 2008, the Human Rights Committee recommended
that: “[t]he State party should ensure that the Chagos islanders can
exercise their right to return to their territory and should indicate what
measures have been taken in this regard.”521
At the 2112th meeting of the Committee on the Elimination of Racial
Discrimination in 2011, considering the 18th to 20th periodic reports of
the U.K., the British Government was asked which measures it
“intended to take to resolve the problem of persons expelled by the
United Kingdom from the Chagos Islands”.522 It was also recalled that
“thousands of persons of African descent had been forced by the United
Kingdom to leave the Chagos archipelago ... and that many of them still
hoped to be able to return to their homes one day.”523
In a 2011 Report relating to its 78th and 79th sessions, the Committee on
the Elimination of Racial Discrimination stated that it was “deeply
concerned” that the International Convention on the Elimination of All
Forms of Racial Discrimination does not apply to the “BIOT” and
expressed regret that “the BIOT (Immigration) Order 2004 not only
bans Chagossians (Ilois) from entering Diego Garcia but also bans them
from entering the outlying islands located over 100 miles away, on the
520 Ibid., para. 47.
521 U.N. Human Rights Committee, 93rd Session, Consideration of Reports Submitted by States
Parties Under Article 40 of the Covenant - Concluding observations of the Human Rights
Committee: United Kingdom of Great Britain and Northern Ireland, U.N. Doc. CCPR/C/GBR/CO/6
(30 July 2008) (hereinafter “Concluding observations of the Human Rights Committee: United
Kingdom and Northern Ireland (30 July 2008)”), para. 22 (Dossier No. 397).
522 Committee on the Elimination of Racial Discrimination, 79th Session, 2112th Meeting, Summary
Record, U.N. Doc. CERD/C/SR.2112 (13 Jan. 2012), p. 7, para. 29 (Mr Avtonomov) (Dossier No.
375).
523 Ibid., p. 8, para. 32 (Mr Murillo Martínez).
166
grounds of national security”.524 The Committee recommended that “all
discriminatory restrictions on Chagossians (Ilois) from entering Diego
Garcia or other Islands in the BIOT be withdrawn.”525
V. Conclusion
4.62 As set out above, the purported detachment of the Chagos Archipelago and
the failure by the administering power to complete the process of decolonisation
has been strongly and consistently rejected by Mauritius, which has received strong
support from around the world. Despite concerted efforts by the administering
power to shield itself from scrutiny, there has been widespread and repeated
international criticism – including in the U.N. General Assembly and in the
Committee of 24 – for more than 50 years. The vast majority of States have
expressed the view, including by reference to General Assembly Resolutions 1514
(XV) and 2066 (XX), that the detachment of the Chagos Archipelago was unlawful
since it amounted to the disruption of the national unity and territorial integrity of
Mauritius shortly before independence. The legal consequences that flow from this,
by reference to the two questions posed by the General Assembly, are addressed in
the Chapters that follow.
524 United Nations General Assembly, 66th Session, Report of the Committee on the Elimination of
Racial Discrimination relating to the 78th and 79th sessions, U.N. Doc. A/66/18 (2011), p. 115,
para. 12 (Dossier No. 374).
525 Ibid.
167
CHAPTER 5
THE COURT HAS JURISDICTION TO GIVE THE ADVISORY OPINION
REQUESTED BY THE GENERAL ASSEMBLY, AND THERE ARE NO
REASONS FOR THE COURT TO DECLINE TO GIVE IT
5.1 This Chapter addresses the jurisdiction of the Court to issue the Advisory
Opinion that has been requested in General Assembly Resolution 71/292 of 22 June
2017, and the propriety of doing so. Section I shows that the Court has jurisdiction
to give the Advisory Opinion requested, because the General Assembly is an organ
duly authorised to seek an advisory opinion from the Court, and because the request
raises questions of a legal character. Section II demonstrates that there are no
reasons for the Court to decline to give its advisory opinion on the matters which
the General Assembly has placed before it.
I. The Court Has jurisdiction to give the Advisory Opinion requested
by the General Assembly in Resolution 71/292
5.2 The Court derives its advisory jurisdiction from Article 65(1) of its Statute,
which provides that “[t]he Court may give an advisory opinion on any legal
question at the request of whatever body may be authorized by or in accordance
with the Charter of the United Nations to make such a request.”
5.3 In its application of this provision, the Court has explained that “[i]t is… a
precondition of the Court’s competence that the advisory opinion be requested by
an organ duly authorized to seek it under the Charter, that it be requested on a legal
question, and that, except in the case of the General Assembly or the Security
168
Council, that question should be one arising within the scope of the activities of the
requesting organ.”526
5.4 It follows that in the present case two conditions must be satisfied for the
Court to exercise its advisory jurisdiction: (i) the request for an advisory opinion
must be made by a duly authorised organ, and (ii) the questions put to the Court
must be of a legal character.527 For the reasons set out below, both conditions are
fulfilled here.
A. THE GENERAL ASSEMBLY IS AN ORGAN DULY AUTHORISED TO REQUEST AN
ADVISORY OPINION FROM THE COURT
5.5 For the Court to have jurisdiction to give an advisory opinion, it is
“necessary at the outset for the body requesting the opinion to be ‘authorized by…
the Charter of the United Nations to make such a request.’”528
5.6 The U.N. Charter provides in Article 96(1) that the General Assembly “may
request the International Court of Justice to give an advisory opinion on any legal
question.” The express terms of this provision leave no doubt that the General
526 Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1982, pp. 333-334, para. 21. See also Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004
(hereinafter “Construction of a Wall (Advisory Opinion)”), p. 144, para. 14. Accordance with
International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory
Opinion, I.C.J. Reports 2010 (hereinafter “Declaration of Independence in Respect of Kosovo
(Advisory Opinion)”), p. 413, para. 19.
527 Because the request has been made by the General Assembly, there is no need to establish that
the questions set out in the General Assembly’s Resolution 71/292 of 22 June 2017 should be ones
arising within the scope of the Assembly’s activities.
528 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996
(hereinafter “Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)”), p. 232, para.
11 (quoting Statute of the International Court of Justice, Art. 65(1)).
169
Assembly is “an organ duly authorized to seek [an advisory opinion] under the
Charter”.529
5.7 When the General Assembly requests an advisory opinion from the Court
in accordance with its own rules, the presumption is that the Assembly has
exercised its power validly. As the Court has explained, “[a] resolution of a properly
constituted organ of the United Nations which is passed in accordance with that
organ’s rules of procedure, and is declared by its President to have been so passed,
must be presumed to have been validly adopted.”530 Resolution 71/292 was adopted
by the General Assembly pursuant to its established rules by a recorded vote of 94
in favour to 15 against, with 65 abstentions.531
5.8 Unlike other organs of the United Nations and specialised agencies, whose
power to request advisory opinions is restricted to legal questions “arising within
the scope of their activities”,532 the General Assembly’s power is not so restricted.
Nonetheless, as shown in Chapter 4, the subject matter of Resolution 71/292 has
529 Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal,
Advisory Opinion, I.C.J. Reports 1982, p. 333, para. 21. See also Legality of the Threat or Use of
Nuclear Weapons (Advisory Opinion) p. 232, para. 11; Declaration of Independence in Respect of
Kosovo (Advisory Opinion), p. 413, para. 21.
530 South West Africa (Advisory Opinion), p. 22, para. 20. See also Legality of the Use by a State of
Nuclear Weapons in Armed Conflict, Advisory Opinion, I.C.J. Reports 1996 (hereinafter “Use of
Nuclear Weapons (Advisory Opinion)”), p. 82, para. 29.
531 See U.N. General Assembly, 71st Session, 88th Plenary Meeting, Agenda item 87: 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/71/PV.88 (22 June 2017), pp. 17-
18 (Dossier No. 6).
532 U.N. Charter (1945), Art. 96(2).
170
been regularly addressed by the Assembly in the exercise of its powers and
functions under Chapters XI to XIII of the Charter.533
5.9 Because the request for an advisory opinion was validly adopted by a duly
authorised organ acting within its competence and raises questions directly relating
to its mandate, the first requirement for the exercise of the advisory jurisdiction
under Article 65(1) of the Statute of the Court is fully satisfied.
B. THE GENERAL ASSEMBLY HAS ASKED THE COURT TO GIVE AN ADVISORY
OPINION ON LEGAL QUESTIONS
5.10 Pursuant to Article 96(1) of the U.N. Charter and Article 65(1) of the
Statute, the Court may give an advisory opinion only on a “legal question.”
5.11 Addressing this requirement, the Court has explained that “questions…
framed in terms of law and rais[ing] problems of international law… are by their
very nature susceptible of a reply based on law” and “therefore they appear… to be
questions of a legal character.”534 Further: “a question which expressly asks
whether or not a particular action is compatible with international law certainly
appears to be a legal question”.535
533 See paras. 4.28-4.41 above.
534 Western Sahara (Advisory Opinion), p. 18, para. 15. See also Declaration of Independence in
Respect of Kosovo (Advisory Opinion), pp. 414-415, para. 25; Legality of the Threat or Use of
Nuclear Weapons (Advisory Opinion), pp. 233-234, para. 13.
535 Declaration of Independence in Respect of Kosovo (Advisory Opinion), pp. 414-415, para. 25
(“It is also for the Court to satisfy itself that the question on which it is requested to give its opinion
is a ‘legal question’ within the meaning of Article 96 of the Charter and Article 65 of the Statute. In
the present case, the question put to the Court by the General Assembly asks whether the declaration
of independence to which it refers is ‘in accordance with international law’. A question which
expressly asks the Court whether or not a particular action is compatible with international law
certainly appears to be a legal question; as the Court has remarked on a previous occasion, questions
171
5.12 The questions raised by the General Assembly in Resolution 71/292 are
expressly of a legal character. Both questions are framed in legal terms, raise issues
of international law, and ask the Court to determine the legal consequences arising
from specific circumstances. To address those questions, the Court will have to
perform a quintessentially judicial task: to assess whether or not the process of
decolonisation of Mauritius was lawfully completed, and to determine the
international legal consequences arising from the administering power’s continued
administration of the Chagos Archipelago.
5.13 In discharging its judicial task, the Court will have to identify, interpret and
apply the relevant rules of international law, including obligations reflected in the
General Assembly’s prior resolutions on decolonisation. This exercise will result
in an Advisory Opinion that is squarely based on law. Indeed, the questions in the
present case are “scarcely susceptible of a reply otherwise than on the basis of
law.”536
5.14 That the Court will have to address issues of fact in rendering its Advisory
Opinion is not a bar to the request. As the Court explained in South West Africa,
“the contingency that there may be factual issues underlying the question posed
does not alter its character as a ‘legal question’ as envisaged in Article 96 of the
‘framed in terms of law and rais[ing] problems of international law... are by their very nature
susceptible of a reply based on law’ (Western Sahara (Advisory Opinion), p. 18, para. 15) and
therefore appear to be questions of a legal character for the purposes of Article 96 of the Charter
and Article 65 of the Statute.”) See also Legality of the Threat or Use of Nuclear Weapons (Advisory
Opinion), p. 234, para. 13 (“The question put to the Court by the General Assembly is indeed a legal
one, since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons
with the relevant principles and rules of international law. To do this, the Court must identify the
existing principles and rules, interpret them and apply them to the threat or use of nuclear weapons,
thus offering a reply to the question posed based on law.”)
536 Western Sahara (Advisory Opinion), p. 18, para. 15. See also Construction of a Wall (Advisory
Opinion), p. 153, para. 37.
172
Charter.”537 The reference in this provision to legal questions “cannot be interpreted
as opposing legal to factual issues”, because “to enable a court to pronounce on
legal questions, it must also be acquainted with, take into account and, if necessary,
make findings as to the relevant factual issues.”538
5.15 Nor is the legal character of the questions undermined by the fact that they
may also touch on issues of a political nature.539 The Court has affirmed that “the
political nature of the motives which may be said to have inspired the request and
the political implications that the opinion given might have are of no relevance in
the establishment of its jurisdiction to give such an opinion.”540 Rather, the Court’s
“long-standing jurisprudence” makes clear that it “cannot refuse to admit the legal
character of a question which invites it to discharge an essentially judicial task,
537 South West Africa (Advisory Opinion), p. 27, para. 40.
538 South West Africa (Advisory Opinion), p. 27, para. 40.
539 Declaration of Independence in Respect of Kosovo (Advisory Opinion), p. 415, para. 27 (“[T]he
Court has repeatedly stated that the fact that a question has political aspects does not suffice to
deprive it of its character as a legal question… . Whatever its political aspects, the Court cannot
refuse to respond to the legal elements of a question which invites it to discharge an essentially
judicial task, namely, in the present case, an assessment of an act by reference to international law.
The Court has also made clear that, in determining the jurisdictional issue of whether it is confronted
with a legal question, it is not concerned with the political nature of the motives which may have
inspired the request or the political implications which its opinion might have (Conditions of
Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory
Opinion, 1948, I.C.J. Reports 1947-1948, p. 61, and Legality of the Threat or Use of Nuclear
Weapons (Advisory Opinion), p. 234, para. 13).”)
540 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), p. 234, para. 13. See also
Construction of a Wall (Advisory Opinion), p. 155, para. 41; Declaration of Independence in Respect
of Kosovo (Advisory Opinion), p. 415, para. 27; Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 87, para. 33 (“Indeed, in
situations in which political considerations are prominent it may be particularly necessary for an
international organization to obtain an advisory opinion from the Court as to the legal principles
applicable with respect to the matter under debate”).
173
namely, an assessment of the legality of the possible conduct of States with regard
to the obligations imposed upon them by international law”.541
5.16 It follows that the second requirement for the exercise of advisory
jurisdiction under Article 65(1) of the Statute of the Court is also fulfilled.
5.17 With both requirements satisfied, the Court plainly has jurisdiction to give
the Advisory Opinion requested by the General Assembly in Resolution 71/292.
II. There are no compelling reasons for the Court to decline to give the
Advisory Opinion that has been requested
5.18 Article 65(1) of the Court’s Statute “leaves the Court a discretion as to
whether or not it will give an Advisory Opinion that has been requested of it, once
it has established its competence to do so.”542
5.19 However, notwithstanding the discretionary character of its advisory
jurisdiction, “the present Court has never, in the exercise of this discretionary
power, declined to respond to a request for an advisory opinion.”543 Indeed, the
541 Construction of a Wall (Advisory Opinion), p. 155, para. 41 (quoting Application for Review of
Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports
1973, pp. 171-72, para. 14). See also Legality of the Threat or Use of Nuclear Weapons (Advisory
Opinion), p. 234, para. 13; Declaration of Independence in Respect of Kosovo (Advisory Opinion),
p. 415, para. 27.
542 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), pp. 234-335, para. 14.
See also Construction of a Wall (Advisory Opinion), p. 156, para. 44 (“The Court has recalled many
times in the past that Article 65, paragraph 1, of its Statute, which provides that ‘The Court may
give an advisory opinion…’ (emphasis added), should be interpreted to mean that the Court has a
discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are
met…”); Declaration of Independence in Respect of Kosovo (Advisory Opinion), pp. 415-416, para.
29.
543 Construction of a Wall (Advisory Opinion), p. 156, para. 44. It is only in Legality of the Use by
a State of Nuclear Weapons in Armed Conflict that the Court declined to give its advisory opinion,
174
Court has been “mindful of the fact that its answer to a request for an advisory
opinion ‘represents its participation in the activities of the Organization, and, in
principle, should not be refused’”.544 The Court’s advisory opinions “have the
purpose of furnishing to the requesting organs the elements of law necessary for
them in their action.”545 Given its responsibilities “as the principal judicial organ of
the United Nations”, the Court has repeatedly stated that “only ‘compelling
on the ground that the request for an advisory opinion submitted by the World Health Organization
did not relate to a question arising “within the scope of [the] activities” of that organisation. See Use
of Nuclear Weapons (Advisory Opinion), p. 77, para. 23. However, this limitation has no application
in the present case, since Article 96(1) of the U.N. Charter confers on the General Assembly the
competence to request an advisory opinion on any legal question.
On only one occasion, many decades ago, did the Court’s predecessor, the Permanent Court of
International Justice, take the view that it should not respond to a question put to it for an advisory
opinion by the Council of the League of Nations (in the Eastern Carelia case). However, the ratio
decidendi of that case is not applicable to cases such as the present. The differences between that
case and a case such as the present were clearly highlighted by the Court in Western Sahara: “[i]n
[Eastern Carelia], one of the States concerned was neither a party to the Statute of the Permanent
Court nor, at the time, a Member of the League of Nations, and lack 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. In the present case, Spain is a member of the
United Nations and has accepted the provisions of the Charter and Statute; it has thereby in general
given its consent to the exercise by the Court of its advisory jurisdiction. It has not objected, and
could not validly object, to the General Assembly’s exercise of its powers to deal with the
decolonization of a non-self-governing territory and to seek an opinion on questions relevant to the
exercise of those powers.” Western Sahara (Advisory Opinion), pp. 23-24, para. 30. In the present
case too, all States concerned are members of the United Nations and have accepted the provisions
of the Charter and the Statute. As such, they have given their consent to the exercise by the Court
of its advisory jurisdiction, and none of them could validly object to the General Assembly’s
exercise of its powers to deal with the decolonisation process and to seek an opinion about legal
aspects of that process.
544 Construction of a Wall (Advisory Opinion), p. 156, para. 44 (emphasis added). See also Legality
of the Threat or Use of Nuclear Weapons (Advisory Opinion), p. 235, para. 14 (“The Court’s
Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the
Court, itself an ‘organ of the United Nations’, represents its participation in the activities of the
Organization, and, in principle, should not be refused.”)
545 Construction of a Wall (Advisory Opinion), p. 162, para. 60.
175
reasons’ should lead the Court to refuse its opinion in response to a request falling
within its jurisdiction”.546
5.20 No compelling reason exists to refuse to give the Advisory Opinion that has
been requested in the present case. To the contrary, there are compelling reasons
for giving the Advisory Opinion. These were identified by the General Assembly
in introducing the operative text of Resolution 71/292:
Reaffirming that all peoples have an inalienable right to the exercise
of their sovereignty and the integrity of their national territory,
Recalling the Declaration on the Granting of Independence to
Colonial Countries and Peoples, contained in its resolution 1514
(XV) of 14 December 1960, and in particular paragraph 6 thereof,
which states that 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,
Recalling also its resolution 2066 (XX) of 16 December 1965, in
which it invited the Government of the United Kingdom of Great
Britain and Northern Ireland to take effective measures with a view
to the immediate and full implementation of resolution 1514 (XV)
and to take no action which would dismember the Territory of
Mauritius and violate its territorial integrity, and its resolutions 2232
(XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967,
Bearing in mind its resolution 65/118 of 10 December 2010 on the
fiftieth anniversary of the Declaration on the Granting of
Independence to Colonial Countries and Peoples, reiterating its view
that it is incumbent on the United Nations to continue to play an
active role in the process of decolonization, and noting that the
process of decolonization is not yet complete,
546 Declaration of Independence in Respect of Kosovo (Advisory Opinion), p. 416, para. 30
(emphasis added). See also Construction of a Wall (Advisory Opinion), p. 156, para. 44; Difference
Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human
Rights, Advisory Opinion, I.C.J. Reports 1999, p. 78, para. 29.
176
Recalling its resolution 65/119 of 10 December 2010, in which it
declared the period 2011–2020 the Third International Decade for
the Eradication of Colonialism, and its resolution 71/122 of 6
December 2016, in which it called for the immediate and full
implementation of the Declaration on the Granting of Independence
to Colonial Countries and Peoples… .
5.21 As this language makes clear, the Advisory Opinion requested by the
General Assembly is intended to provide it with necessary legal guidance as it
addresses matters that have long been among its highest priorities: the granting of
independence to colonial countries and peoples; the protection of colonial peoples’
inalienable rights to sovereignty, national unity, and territorial integrity; the full and
immediate implementation of Resolution 1514 (XV), in circumstances where the
process of decolonisation has not yet been completed; compliance with Resolution
2066 (XX) on the decolonisation of Mauritius without dismembering it or violating
its territorial integrity; and the need for the General Assembly to play an active role
in the process of decolonisation wherever it has not yet been completed. The
importance of these matters to the General Assembly, and the need for the Court’s
guidance with respect to them, are underscored by the fact that 94 States voted in
favour of Resolution 71/292, with only 15 voting against it.
5.22 Some of the States which opposed Resolution 71/292 took the position that
the questions put to the Court concern a bilateral dispute between the Mauritius and
the administering power, and that answering those questions would circumvent the
requirement of consent to jurisdiction.547 This argument is misconceived. In fact,
547 The United Kingdom stated that “questions on the British Indian Ocean Territory have long
been… [and] should remain bilateral”. The U.K. stressed that it does not and will not consent to the
bilateral dispute being submitted for judicial settlement. For its part, the United States stated that
the resolution was an attempt “to circumvent the Court’s lack of contentious jurisdiction over this
purely bilateral matter.” Similarly, Canada stated that “settlement of contentious cases between
States through the International Court of Justice requires the consent of both parties”, but “[s]eeking
the referral of a contentious case between States through the General Assembly’s power to request
177
the same arguments have been made in opposition to the Court’s exercise of its
advisory jurisdiction in other cases, and have always been rejected by the Court.
5.23 For example, in the Wall case, Israel contended that “the subject-matter of
the question posed by the General Assembly [was] ‘an integral part of the wider
Israeli-Palestinian dispute concerning questions of terrorism, security, borders,
settlements, Jerusalem and other related matters’”.548 Israel emphasised that it had
never consented to the settlement of this dispute by the Court or by other means of
compulsory jurisdiction. Accordingly, Israel submitted that the Court should
decline to give the Advisory Opinion, because “the request concern[ed] a
contentious matter between Israel and Palestine, in respect of which Israel has not
consented to the exercise of that jurisdiction.”549
5.24 Notably, the U.K. similarly argued in the Wall case that the construction of
the wall had “undoubtedly given rise to a bilateral dispute between Israel and
Palestine”, with “title to territory hav[ing] been identified as a principal concern.”550
The U.K. also submitted that answering the question put to the Court “would be
deciding an issue in a bilateral dispute and thereby circumventing the requirement
of consent in the contentious jurisdiction.”551
an advisory opinion circumvents that fundamental principle”. U.N. General Assembly, 71st Session,
88th Plenary Meeting, U.N. Doc. A/71/PV.88 (22 June 2017) (Dossier No. 6).
548 Construction of a Wall (Advisory Opinion), p. 157, para. 46.
549 Ibid.
550 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Request
for an Advisory Opinion by the United Nations General Assembly), Written Statement of the United
Kingdom of Great Britain and Northern Ireland (Jan. 2004), p. 21, para. 3.32.
551 Ibid., p. 21, para. 3.31.
178
5.25 The Court dismissed the arguments made by Israel and the U.K. While
acknowledging that “Israel and Palestine have expressed radically divergent views
on the legal consequences of Israel’s construction of the wall, on which the Court
has been asked to pronounce”,552 the Court emphasised that the subject-matter of
the General Assembly’s request could not “be regarded as only a bilateral matter
between Israel and Palestine.”553 The Court explained that “[g]iven the powers and
responsibilities of the United Nations in questions relating to international peace
and security, it is the Court’s view that the construction of the wall must be deemed
to be directly of concern to the United Nations.”554 On that basis, the Court
determined that:
The object of the request before the Court is to obtain from the Court
an opinion which the General Assembly deems of assistance to it for
the proper exercise of its functions. The opinion is 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. In the circumstances, the Court
does not consider that to give an opinion would have the effect of
circumventing the principle of consent to judicial settlement, and the
Court accordingly cannot, in the exercise of its discretion, decline to
give an opinion on that ground.555
5.26 The Court’s decision in the Wall case was consistent with its earlier decision
in Western Sahara. There, the General Assembly, recalling the Declaration on the
Granting of Independence to Colonial Countries and Peoples (Resolution 1514
(XV)), requested that the Court give an advisory opinion on two questions related
to the ongoing decolonisation efforts in regard to Western Sahara: whether Western
552 Construction of a Wall (Advisory Opinion), p. 158, para. 48.
553 Ibid., pp. 158-159, para. 49.
554 Ibid., p. 159, para. 49.
555 Ibid., p. 159, para. 50.
179
Sahara at the time of colonisation by Spain was terra nullius, and if not, what the
legal ties were between Western Sahara and Morocco and Mauritania.
5.27 Those questions were put to the Court against the backdrop of a pending
dispute between Spain and Morocco, which had competing sovereignty claims over
Western Sahara.556 Spain did not consent to Morocco’s request to submit the
dispute to the Court,557 and opposed the exercise of the Court’s advisory
jurisdiction. During the proceedings, Spain invited the Court to refuse to exercise
that jurisdiction, arguing that:
The subject of the dispute which Morocco invited it to submit jointly
to the Court for decision in contentious proceedings, and the subject
of the questions on which the advisory opinion is requested, are
substantially identical; thus the advisory procedure is said to have
been used as an alternative after the failure of an attempt to make
use of the contentious jurisdiction with regard to the same question.
Consequently, to give a reply would, according to Spain, be to allow
the advisory procedure to be used as a means of bypassing the
consent of a State, which constitutes the basis of the Court’s
jurisdiction.… Such circumvention of the well-established principle
of consent for the exercise of international jurisdiction would
556 Western Sahara (Advisory Opinion), p. 25, para. 34. Spain in its communication addressed on 10
November 1958 to the Secretary-General of the United Nations stated: “Spain possesses no nonself-
governing territories, since the territories subject to its sovereignty in Africa are, in accordance
with the legislation now in force, considered to be and classified as provinces of Spain.” Ibid. “This
gave rise to the ‘most explicit reservations’ of the Government of Morocco, which, in a
communication to the Secretary-General of 20 November 1958, stated that it ‘claim[ed] certain
African territories at present under Spanish control as an integral part Moroccan national territory.’”
Ibid.
557 On 23 September 1974, several months before the General Assembly’s submission of its request
for the advisory opinion, Morocco proposed to Spain the joint submission to the I.C.J. of a dispute
expressed in the following terms: “You, the Spanish Government, claim that the Sahara was res
nullius. You claim that it was a territory or property left uninherited, you claim that no power and
no administration had been established over the Sahara: Morocco claims the contrary. Let us request
the arbitration of the International Court of Justice at The Hague… It will state the law on the basis
of the titles submitted”. Ibid., p. 22, para. 26.
180
constitute, according to this view, a compelling reason for declining
to answer the request.558
5.28 The Court rejected Spain’s argument. First, observing that the General
Assembly’s request contained “a proviso concerning the application of General
Assembly Resolution 1514 (XV)”, the Court concluded that “the legal questions of
which the Court ha[d] been seized [were] located in a broader frame of reference
than the settlement of a particular dispute and embrace[d] other elements.”559
Second, the Court pointed out that the object of the request for the Advisory
Opinion 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.”560 The Court concluded that “[t]he legitimate
interest of the General Assembly in obtaining an opinion from the Court in respect
of its own future action cannot be affected or prejudiced by the fact that Morocco
made a proposal, not accepted by Spain, to submit for adjudication by the Court a
dispute raising issues related to those contained in the request.”561
5.29 The Court’s exercise of its advisory jurisdiction in the Wall and Western
Sahara cases demonstrates, therefore, that the principle of consent to judicial
settlement is not circumvented if: (i) the advisory opinion is requested on questions
located in a broader frame of reference than a bilateral dispute; and (ii) the object
of the request is to obtain from the Court an opinion which the General Assembly
deems of assistance for the proper exercise of its functions.562 Both elements are
558 Ibid., pp. 22-23, para. 27.
559 Ibid., p. 26, para. 38.
560 Ibid., p. 27, para. 39.
561 Ibid., para. 41.
562 See ibid., pp. 26-27, paras. 38-39; Construction of a Wall (Advisory Opinion), p. 159, para. 50.
181
fully present in the instant case.
5.30 The first element is established, because the legal questions put to the Court
are located in a frame of reference that is far broader than a mere bilateral dispute,
namely the General Assembly’s commitment to the full and immediate
implementation of Resolution 1514 (XV) and the completion of the decolonisation
process wherever it remains incomplete. As in Western Sahara, the terms of the
General Assembly’s request for an Advisory Opinion in respect of the
decolonisation of Mauritius contain a proviso concerning the full and immediate
implementation of Resolution 1514 (XV). Indeed, in the present case the Court is
specifically asked to render an Advisory Opinion on whether the process of
decolonisation of Mauritius was lawfully completed having regard to international
law, including the obligations reflected in Resolution 1514 (XV) and other related
resolutions of the General Assembly. This places the legal questions of which the
Court has been seized “in a much broader frame of reference than a bilateral
dispute.”563
5.31 Further, since the obligations relating to decolonisation – including the
principle of self-determination – are obligations erga omnes,564 they cannot be
regarded as simply a bilateral matter. As the Court stated in the Wall case:
Every State has the duty to promote, through joint and separate
action, realization of the principle of equal rights and selfdetermination
of peoples, in accordance with the provisions of the
Charter, and to render assistance to the United Nations in carrying
563 Construction of a Wall (Advisory Opinion), p. 159, para. 50. See also Western Sahara (Advisory
Opinion), p. 26, para. 38.
564 Construction of a Wall (Advisory Opinion), p. 199, para. 156 (reaffirming that “the right of
peoples to self-determination, as it evolved from the Charter and from United Nations practice, has
an erga omnes character”) (emphasis added).
182
out the responsibilities entrusted to it by the Charter regarding the
implementation of the principle.565
5.32 The second element for the exercise of the Court’s advisory jurisdiction is
also satisfied, since, as in the case of Western Sahara, the object of the present
request for an Advisory Opinion is “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.”566 The General Assembly has a
direct institutional interest in this matter. It has played a historic and central role in
addressing decolonisation, especially through the exercise of its powers and
functions in relation to Chapters XI to XIII of the Charter of the United Nations.
Under its Resolution 1514 (XV), the General Assembly declared that the integrity
of the national territory of dependent peoples shall be respected, and that any
attempt at the disruption of the territorial integrity of a colonial country is
incompatible with the purposes and principles of the Charter.
5.33 In 2010, on the fiftieth anniversary of the adoption of Resolution 1514
(XV), the General Assembly noted with deep concern that “fifty years after the
adoption of the Declaration, colonialism has not yet been totally eradicated.” It
further declared that “the continuation of colonialism in all its forms and
manifestations is incompatible with the Charter of the United Nations, the
Declaration and the principles of international law”, and considered it “incumbent
565 Ibid., p. 199, para. 156. See also ibid., para. 155 (“The Court would observe that the obligations
violated by Israel include certain obligations erga omnes. As the Court indicated in the Barcelona
Traction case, such obligations are by their very nature ‘the concern of all States’ and, ‘In view of
the importance of the rights involved, all States can be held to have a legal interest in their
protection’. … The obligations erga omnes violated by Israel are the obligation to respect the right
of the Palestinian people to self-determination, and certain of its obligations under international
humanitarian law.”)
566 Western Sahara (Advisory Opinion), p. 27, para. 39. See also Reservations to the Convention on
Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 19 (“The object of this request for an Opinion
is to guide the United Nations in respect of its own action.”)
183
upon the United Nations to continue to play an active role in the process of
decolonization and to intensify its efforts for the widest possible dissemination of
information on decolonization, with a view to the further mobilization of
international public opinion in support of complete decolonization”.567
5.34 In carrying out its prominent role in the process of decolonisation, the
General Assembly has undertaken, inter alia, a continuing responsibility to ensure
that the decolonisation of Mauritius is completed. To fulfill that function, the
General Assembly has determined that it would benefit from the Court’s Advisory
Opinion. The Court’s response to the first question would assist the General
Assembly in establishing whether under international law the process of
decolonisation of Mauritius was lawfully completed when Mauritius was granted
independence in 1968, or whether the detachment of the Chagos Archipelago from
Mauritius by the administering power, and the continued exercise of colonial
authority over the Chagos Archipelago, have prevented the lawful decolonisation
of Mauritius from being completed.
5.35 The Court’s response to the second question is necessary for the General
Assembly to determine what legal consequences under international law flow from
the continued administration of the Chagos Archipelago by the administering
power, including the inability of Mauritius to implement a program for the
resettlement of its nationals of Chagossian origin in the Chagos Archipelago.
567 U.N. General Assembly, 65th Session, Fiftieth anniversary of the Declaration on the Granting
of Independence to Colonial Countries and Peoples, U.N. Doc. A/RES/65/118 (10 Dec. 2010)
(hereinafter “Fiftieth anniversary of the Declaration on the Granting of Independence to Colonial
Countries and Peoples (10 Dec. 2010)”), pp. 2-3, paras. 2 and 9 (emphasis added).
184
5.36 The Court’s response to these questions would inevitably “furnish the
General Assembly with elements of a legal character relevant to its further
treatment of the decolonization” of Mauritius.568
5.37 As the Court stated in Western Sahara, no State could “validly object… to
the General Assembly’s exercise of its powers to deal with the decolonization…
and to seek an opinion on questions relevant to the exercise of those powers.”569
The same logic applies to the present case. As noted by Rosenne, “[o]wing to the
organic relation now existing between the Court and the United Nations, the Court
regards itself as being under the duty of participating, within its competence, in the
activities of the Organization, and no State can stop that participation.”570 The
Court’s task is “to ensure respect for international law, of which it is the organ”.571
That task applies to advisory proceedings as much as to contentious proceedings.
***
5.38 In conclusion, the Court has jurisdiction to give the Advisory Opinion
requested by the General Assembly in Resolution 71/292 of 22 June 2017: the
General Assembly is an organ duly authorised to seek an advisory opinion from the
Court, and the request raises questions of a legal character. The Court’s exercise of
568 Western Sahara (Advisory Opinion), p. 37, para. 72. It would then be for the Assembly “to decide
for itself on the usefulness of an opinion in the light of its own needs.” Legality of the Threat or Use
of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 237, para. 16. See also Construction
of a Wall (Advisory Opinion), p. 163, para. 61. Because “the purpose of the advisory jurisdiction is
to enable organs of the United Nations and other authorized bodies to obtain opinions of the Court
which will assist them in the future exercise of their functions”, the “Court cannot determine what
steps the General Assembly may wish to take after receiving the Court’s opinion or what effect that
opinion may have in relation to those steps.” Declaration of Independence in Respect of Kosovo
(Advisory Opinion), p. 421, para. 44.
569 Western Sahara (Advisory Opinion), p. 223, para. 30.
570 Shabtai Rosenne, The Law and Practice of the International Court, 1920-1996, Vol. II,
Jurisdiction (1997), p. 1021 (Annex 176).
571 Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J. Reports 1949, p. 35.
185
its advisory jurisdiction will not circumvent the principle of consent to judicial
settlement: the questions put to the Court are located in a broader frame of
reference, and the object of the request is to obtain from the Court an Opinion that
the General Assembly deems of assistance for the immediate and full
implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples. There is no “compelling reason” for the Court to decline to
exercise the advisory jurisdiction which the Charter and the Statute have conferred
upon it, and, on this basis and in keeping with past precedent, it should exercise that
jurisdiction and render the Advisory Opinion that the General Assembly has
requested.
186
187
CHAPTER 6
THE DECOLONISATION OF MAURITIUS WAS NOT LAWFULLY
COMPLETED WHEN MAURITIUS WAS GRANTED INDEPENDENCE
IN 1968
I. Introduction
6.1 The first question before the Court asks:
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?
6.2 In Mauritius’ view, the question calls upon the Court to identify and
consider the rules of international law pertaining to decolonisation, and to provide
an advisory opinion on whether, under those rules, the decolonisation of Mauritius
has been lawfully completed.
6.3 In this Chapter, Mauritius reviews and analyses the law of decolonisation,
from its origins through its subsequent development, and then applies the law to the
specific situation of its own decolonisation. In summary:
(1) The main legal obligation in respect of decolonisation is that it must
accord fully with the right of self-determination under international
law.
(2) The right of self-determination had already been firmly established
by the time of Mauritius’ independence in 1968 (and indeed by the
time of the excision of the Chagos Archipelago in 1965), including
188
in the work of the United Nations in supervising the process of
decolonisation.
(3) Self-determination required the free and genuine consent of the
population concerned – as expressed, for example, through
referenda, elections and plebiscites – so as to determine the future
of the territory. This was particularly so in cases in which
straightforward independence of the Non-Self-Governing Territory
as a single unit was not envisaged.
(4) A corollary to this was that self-determination should not be
impeded by the arbitrary division of territory before independence.
The division of territory was legitimate only in cases in which it
ensued as a consequence of the freely expressed consent of the
people concerned.
(5) The right of self-determination applied to the entire territory of
Mauritius, which included the Chagos Archipelago. Nevertheless,
the Chagos Archipelago was excised from the territory of Mauritius
by the administering power in the service of its own interests rather
than those of the Mauritian people, who were never given an
opportunity to express their wishes as to the proposed division and
dismemberment of the territory.
(6) The pressure placed upon Mauritian representatives at the
Constitutional Conference in 1965, in which it was made clear by
the administering power that independence was only available with
the excision of the Chagos Archipelago, vitiated any purported
consent on the part of the Mauritian people or their representatives.
189
(7) As a consequence, Mauritius came to independence in 1968 with its
territory having been dismembered three years earlier.
Dismembering Mauritius’ territory prior to independence, without
the freely-expressed consent of the people, prevented Mauritius
from the effective exercise of its right of self-determination and
violated its associated right of territorial integrity, with effect from
1968 and at all times thereafter.
(8) The inescapable conclusion is that the decolonisation of Mauritius
was not lawfully completed in 1968. At the point when Mauritius
came to independence with its territory having been dismembered,
an internationally wrongful situation crystallised. That wrongful
situation has continued to this day.
II. The legal principles governing decolonisation
A. THE MANDATE SYSTEM AND THE LEAGUE OF NATIONS
6.4 The legal regime governing decolonisation had its origins not merely in the
law and practice of the United Nations as it was to evolve in the period after 1945,
but further back in the mandate system, as embodied in Article 22 of the Covenant
of the League of Nations. Following the end of the First World War, Article 22 had
placed a number of territories detached from the defeated powers under the
“tutelage” of Mandatory States (on behalf of the League), which would hold such
territories as part of a “sacred trust of civilisation” until such time as those colonies
and territories might stand by themselves.
190
6.5 As the language of the trust suggests, Mandatory States did not enjoy
plenary rights of sovereignty over the territories concerned572 (and were, as the
I.C.J. subsequently affirmed in the Status of South West Africa573 and Namibia
cases,574 precluded from annexing the territory). They were also explicitly
committed to promoting the “well-being and development” of such peoples. The
territories concerned, for their part, enjoyed a status distinct from the Mandatory
powers. Although Article 22 made no direct mention of the principle of selfdetermination,
the Mandate system promoted, in nascent form, the idea that the
inhabitants of such colonies and territories should ultimately enjoy the privileges
of self-government and independence. This, indeed, was made explicit in the case
of category A Mandates, as Article 22(4) of the Covenant provided. Those
communities formerly belonging to the Turkish empire:
have reached a stage of development where their existence as
independent nations can be provisionally recognized subject to the
rendering of administrative advice and assistance by a Mandatory
until such a time as they are able to stand alone. The wishes of those
communities must be a principal consideration… .575
572 Crawford, Creation of States (2006), p. 573 (“The notion of ‘sovereignty’… was inapplicable to
the system of Mandates and Trusteeships”.) (Annex 150). This was a view informed, on one side
by the conclusions of the Court in the South West Africa (Status) case, I.C.J. Reports 1950, pp. 128
and 132, in which it was held that the establishment of the Mandate did not constitute the “cession”
of that territory to the Mandatory, and by the fact that in most cases the inhabitants did not lose their
previous nationality, nor automatically gain that of the Mandatory. Ibid., p. 571. Lord McNair
famously described sovereignty over a Mandated territory to be “in abeyance” (International Status
of South West Africa, Advisory Opinion, Separate Opinion by Sir Arnold McNair, I.C.J. Reports
1950, p. 150) – a view which would work equally effectively in case of Trusteeships.
573 International Status of South West Africa, Advisory Opinion, I.C.J Reports 1950, pp. 131-132.
The Court noted, there, that “two principles were considered to be of paramount importance: the
principle of non-annexation and the principle that the well-being and development of such peoples
form a ‘sacred trust of civilisation’.” Ibid., p. 131 (emphasis added).
574 South West Africa (Advisory Opinion), pp. 28, 30 and 43.
575 The Covenant of the League of Nations (1919), Art. 22(4).
191
6.6 In accordance with this provision, the mandate for Iraq was terminated in
1932 on its admission to the League, and that of Syria, Lebanon, and Transjordan
in 1946, even without the consent of the League Council. The explanation for the
latter practice was that no authorisation was necessary in order to bring an end to
the Mandate when its ultimate purpose (independence and self-government) was
fulfilled.576
6.7 Self-determination, in other words, was a principle already implicit in the
practice of the Mandate system. This was significant for its later evolution in the
practice of the United Nations.
B. THE CHARTER OF THE UNITED NATIONS
6.8 If the Mandate system envisaged self-determination (qua self-government
and independence) as the implicit outcome of the sacred trust, it was an idea that
would become even more explicit in the Trusteeship system that was established
under the U.N. Charter to replace it. Article 76 of Chapter XII of the Charter spells
out the “basic objectives” of the Trusteeship system as being, inter alia:
b. to promote the political, economic, social, and educational
advancement of the inhabitants of the trust territories, and their
progressive development towards self-government or independence
… and the freely expressed wishes of the peoples concerned.
6.9 Moreover, those objectives were specified as being expressive of the
Purposes of the U.N. “as laid down in Article 1” of the Charter. Those Purposes
576 Crawford, Creation of States (2006), p. 579 (Annex 150).
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included, in turn, the development of “friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples”.577
6.10 The inclusion of the principle of self-determination of peoples within the
Trusteeship system was clearly premised upon the idea that, as in the case of the
Mandate system, the territories in question (which included, according to Article
77, former Mandate territories, territories detached from enemy States, and
territories voluntarily placed under the system) enjoyed a status distinct from that
of the administering powers; that those territories should be governed in the
interests of the inhabitants; and that the ultimate objective of the trust was to
facilitate political independence and self-government.
6.11 The inclusion of the phrase, in Article 76(b), that this should be pursuant to
the “freely expressed wishes of the peoples concerned”, also makes clear that selfdetermination
was a legal principle that would inform the modalities by which
independence was ultimately to be gained. No political destiny could be imposed
upon a people against its wishes.
6.12 The recognition given to the principle of self-determination, as one of the
purposes of the U.N. Charter, was further reinforced in the text of Articles 55 and
56 in Chapter IX of the Charter. Article 55 specified that the United Nations should
work towards “the creation of conditions of stability and well-being… based on
respect for the principle of equal rights and self-determination”, and in Article 56
Member States pledged themselves “to take joint and separate action in cooperation
with the Organization for the achievement” of those purposes. Even if, as
Cassese remarks, these provisions did not, in themselves, “impose direct and
577 U.N. Charter (1945), Art. 1(2) (emphasis added).
193
immediate legal obligations on Member states” they nevertheless marked “an
important turning point”, signalling the maturation of the principle of selfdetermination
and foreshadowing its evolution, through practice, into a precept
“directly binding on states.”578
6.13 Of special significance here was the inclusion within Chapter XI of the U.N.
Charter of the “Declaration Regarding Non-Self-Governing Territories”. Articles
73 and 74 provide inter alia that:
Article 73
Members of the United Nations which have or assume
responsibilities for the administration of territories whose peoples
have not yet attained a full measure of self-government recognize
the principle that the interests of the inhabitants of these territories
are paramount, and accept as a sacred trust the obligation to promote
to the utmost… the well-being of the inhabitants of those territories,
and, to this end:
(a) to ensure, with due respect for the culture of the peoples
concerned, their political, economic, social, and
educational advancement, their just treatment, and their
protection against abuses;
(b) to develop self-government, to take due account of the
political aspirations of the peoples, and to assist them in
the progressive development of their free political
institutions… ;
(c) to further international peace and security;
(d) to promote constructive measures of development… ;
and
578 Antonio Cassese, Self-determination of peoples: A legal reappraisal (1995) (hereinafter
“Cassese, Self-determination of peoples (1995)”), p. 43 (Annex 138).
194
(e) to transmit regularly to the Secretary-General for
information purposes… statistical and other information
of a technical nature relating to economic, social, and
educational conditions in the territories for which they
are respectively responsible other than those territories
to which Chapters XII and XIII apply.
Article 74
Members of the United Nations also agree that their policy in respect
of the territories to which this Chapter applies, no less than in respect
of their metropolitan areas, must be based on the general principle
of good-neighbourliness… .
6.14 While Chapter XI did not immediately provide for the application of a right
of self-determination to Non-Self-Governing Territories (speaking rather of an
obligation to develop self-government), it was evident that the more general terms
of Articles 55 and 56 were not merely limited to Trust territories, and were also
relevant to the category of Non-Self-Governing Territories.
6.15 Indeed, Articles 73 and 74 represented an attempt, as Professor Crawford
has noted, to apply “similar ideas to those embodied in Article 22 of the
Covenant”.579 Insofar as the principle of self-determination clearly applied to Trust
territories under the terms of the Charter, and insofar as Non-Self-Governing
Territories were similarly governed by the same “sacred trust”, it was only a small
step of logic to the conclusion that Non-Self-Governing Territories also enjoyed
such a right on a par with Trust territories.580 The only material differences were
579 Crawford, Creation of States (2006), p. 603 (Annex 150).
580 Mensah, in his discussion of the drafting of the Charter, notes that “[a]lthough at a later date
different interpretations were to be put on these general proclamations, the impression was not at
this time challenged that, in Chapters XI to XIII, the Charter of the United Nations was guaranteeing,
in some form, the right of the colonial and dependent peoples to exercise self-determination – even
if that exercise was to be in the distant future.” Thomas Mensah, Self-Determination Under United
Nations’ Auspices: The role of the United Nations in the application of the principle of selfdetermination
for nations and peoples (1968), pp. 21-22 (Annex 94).
195
the reporting requirements and correlative responsibilities assumed by the organs
of the United Nations (and specifically the Security Council, the General Assembly
and the Trusteeship Council). As the Court later made clear in the Western Sahara
Advisory Opinion:
54. The Charter of the United Nations, in Article 1, paragraph 2,
indicates, as one of the purposes of the United Nations: ‘To develop
friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples...’ This purpose is
further developed in Articles 55 and 56 of the Charter. Those
provisions have direct and particular relevance for non-selfgoverning
territories, which are dealt with in Chapter XI of the
Charter.581
As discussed further below, this interpretive position has been further developed
and reinforced through the practice of the U.N. and its Member States.
6.16 It is notable that, while Chapter XI distinguished categorically between
metropolitan territories and territories “whose peoples have not yet attained a full
measure of self-government”, it did not define the category of Non-Self-Governing
Territories. Rather, Chapter XI left the matter to be determined on one part by the
administering States – which, pursuant to General Assembly Resolution 9(1)
(1946), were invited to submit information relating to such territories to the
Secretary General582 – and, on the other part, by the United Nations General
Assembly which, in the exercise of its general powers under Article 10, asserted its
581 Western Sahara (Advisory Opinion), p. 31, para. 54. It followed, in that respect, the view adopted
in the earlier Namibia Advisory Opinion, in which it had remarked that “the subsequent
development of international law in regard to non-self-governing territories, as enshrined in the
Charter of the United Nations, made the principle of self-determination applicable to all of them.”
South West Africa (Advisory Opinion), p. 31, para. 52.
582 An initial list of which was compiled in Resolution 66(1) (1946). See U.N. General Assembly,
1st Session, Transmission of Information under Article 73(e) of the Charter, U.N. Doc. A/RES/66(I)
(14 Dec. 1946) (Dossier No. 8).
196
competence to determine independently whether or not a territory had attained
entitlement to self-government.583
6.17 Following the adoption of Resolution 1514 (XV) in 1960 (see below para.
6.20), the General Assembly established a Special Committee, later to become the
Committee of Twenty-Four,584 to oversee its implementation. In practice, this
involved the addition or removal of territories from the list of Non-Self-Governing
Territories. In the exercise of its powers to determine which territories had yet to
be afforded the opportunity to exercise the right of self-determination (originating
in Article 10 of the Charter), the General Assembly spelled out in more detail the
modalities through which self-determination was to be exercised.585
583 U.N. General Assembly, 4th Session, Territories to which Chapter XI of the Charter applies,
U.N. Doc. A/RES/334(IV) (2 Dec. 1949) (Dossier No. 13); U.N. General Assembly, 8th Session
Factors which should be taken into account in deciding whether a Territory is or is not a Territory
whose people have not yet attained a full measure of self-government, U.N. Doc. A/RES/742(VIII)
(27 Nov. 1953) (Dossier No. 42); U.N. General Assembly, 14th Session, General questions relating
to the transmission and examination of information, U.N. Doc. A/RES/1467(XIV) (12 Dec. 1959)
(establishing a Special Committee of Six on the Transmission of Information under Article 73e of
the Charter); U.N. General Assembly, 15th Session, 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) (15 Dec. 1960) (Dossier No. 78); U.N. General
Assembly, 15th Session, Transmission of information under Article 73(e) of the Charter, U.N. Doc.
A/RES/1542(XV) (15 Dec. 1960). See further Rosalyn Higgins, The Development of International
Law through the Political Organs of the United Nations (1963) (hereinafter “Higgins, The
Development of International Law (1963)”, pp. 112-113 (Annex 19); Crawford, Creation of States
(2006), pp. 608-609 (Annex 150). The General Assembly asserted, on a number of occasions, its
competence to list territories as Non-Self-Governing Territories as against the administering State’s
assertion otherwise. See, e.g., U.N. General Assembly, 15th Session, Transmission of information
under Article 73(e) of the Charter, U.N. Doc. A/RES/1542(XV) (15 Dec. 1960); U.N. General
Assembly, 16th Session, The question of Southern Rhodesia, U.N. Doc. A/RES/1747(XVI) (28 June
1962); U.N. General Assembly, 23rd Session, Information from Non-Self-Governing Territories
transmitted under Article 73(e) of the Charter of the United Nations, U.N. Doc. A/RES/2422(XXIII)
(18 Dec. 1968).
584 Implementation of the Colonial Declaration (27 Nov. 1961) (Dossier No. 101).
585 In the removal of territories from the list of Non-Self-Governing Territories, the General
Assembly frequently referred to the right to self-determination. See, e.g., in relation to Puerto Rico,
U.N. General Assembly, 8th Session, Cessation of the transmission of information under Article
197
6.18 Given the evident “gaps” or “silences” within the Charter as regards the
application of the principle of self-determination in respect of Non-Self-Governing
Territories, it is clear that, as in the case of Article 22 of the Covenant of the League,
much was left to be subsequently determined through the practice of the organs of
the United Nations and its Member States. As was noted by the Court in the
Namibia case, in relation to the Covenant of the League:
the concepts embodied in Article 22 of the Covenant... were not
static, but were by definition evolutionary, as also, therefore, was
the concept of the ‘sacred trust’. The parties to the Covenant must
consequently be deemed to have accepted them as such. That is why,
viewing the institutions of 1919, the Court must take into
consideration the changes which have occurred in the supervening
half-century, and its interpretation cannot remain unaffected by the
subsequent development of law, through the Charter of the United
Nations and by way of customary law.586
6.19 In the Court’s view, similar considerations applied to the terms of Chapter
XI of the U.N. Charter:
the subsequent development of international law in regard to nonself-
governing territories, as enshrined in the Charter of the United
Nations, made the principle of self-determination applicable to all
of them. The concept of the sacred trust was confirmed and
expanded to all “territories whose peoples have not yet attained a
full measure of self-government” (Art. 73). Thus it clearly embraced
territories under a colonial régime… .
Central to this development, of course, was the practice of the U.N. organs
themselves, and in particular the General Assembly, acting within the competence
73e of the Charter in respect to Puerto Rico, U.N. Doc. A/RES/748(VIII) (27 Nov. 1953); Alaska
and Hawaii, U.N. General Assembly, 14th Session, 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)
(12 Dec. 1959).
586 South West Africa (Advisory Opinion), p. 31, para. 53.
198
afforded to it under Article 10.587
C. THE DECLARATION ON THE GRANTING OF INDEPENDENCE TO COLONIAL
COUNTRIES AND PEOPLES
6.20 A key development in State practice, as noted by the Court in the Namibia
case, was the adoption of the Declaration on the Granting of Independence to
Colonial Countries and Peoples (General Assembly Resolution 1514 (XV) of 14
December 1960), which embraced all peoples and territories which “have not yet
attained independence”.588 In that Resolution, the General Assembly proclaimed
“the necessity of bringing to a speedy and unconditional end colonialism in all its
forms and manifestations” and provided, inter alia, that:
2. All peoples have the right to self-determination; by virtue of that
right they freely determine their political status and freely pursue
their economic, social and cultural development.
3. Inadequacy of political, economic, social or educational
preparedness should never serve as a pretext for delaying
independence.
4. All armed action or repressive measures of all kinds directed
against dependent peoples shall cease in order to enable them to
exercise peacefully and freely their right to complete independence,
and the integrity of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing
Territories or all other territories which have not yet attained
587 Higgins, The Development of International Law (1963), pp. 110-113 (Annex 19). It is to be noted
here, that in the Namibia case the Court emphasised the fact that just because the General Assembly
was vested with recommendatory powers did not mean it “is debarred from adopting, in specific
cases with the framework of its competence, resolutions which make determinations or have
operative design.” South West Africa (Advisory Opinion), p. 50, para. 105.
588 Such people enjoyed, in the view of the General Assembly, “an inalienable right to complete
freedom, the exercise of their sovereignty and the integrity of their national territory”. Colonial
Declaration (14 Dec. 1960), Preamble (Dossier No. 55).
199
independence, to transfer all powers to the peoples of those
territories, without any conditions or reservations, in accordance
with their freely expressed will and desire, without any distinction
as to race, creed or colour, in order to enable them to enjoy complete
independence and freedom.
6. Any attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with
the purposes and principles of the Charter of the United Nations… .
6.21 Noting that Resolution 1514 (XV) “provided the basis for the process of
decolonisation which has resulted since 1960 in the creation of many States which
are today Members of the United Nations”589, the Court in the Namibia case
concluded:
In the domain to which the present proceedings relate, the last fifty
years, as indicated above, have brought important developments.
These developments leave little doubt that the ultimate objective of
the sacred trust was the self-determination and independence of the
peoples concerned. In this domain, as elsewhere, the corpus iuris
gentium has been considerably enriched, and this the Court, if it is
faithfully to discharge its functions, may not ignore.590
6.22 A first notable feature of Resolution 1514 (XV) was the fact that it spoke,
not merely of the principle of self-determination, but of the right to selfdetermination.
In the view of some writers, the existence of a right to selfdetermination
can be dated back to the coming into force of the Charter.591 Indeed,
589 South West Africa (Advisory Opinion), p. 19, para. 52. Crawford notes, in that regard, that the
Colonial Declaration “has achieved in practice a quasi-constitutional status.” Crawford, Creation of
States (2006), p. 604 (Annex 150).
590 South West Africa (Advisory Opinion), pp. 31-32, para. 53.
591 Mensah affirms that “[t]he right of self-determination: the right of ‘every people to determine
how and by whom they will be governed’ has been one of the corner stones of the United Nations’
activities since 1945.” Thomas Mensah, Self-Determination Under United Nations’ Auspices: The
role of the United Nations in the application of the principle of self-determination for nations and
peoples (1963), p. 23 (Annex 94). Oeter, in the same vein, states in reference to Article 1(2) of the
U.N. Charter, that “[w]ith the new formula, it was put beyond doubt that in principle colonial
peoples had a right to self-determination, but it was left to the discretion of the governing powers to
200
the French text of Article 1(2) – “principe de l’égalité des droits des peuples et de
leur droit à disposer d’eux-mêmes”, with its clear reference to the right to selfdetermination
– is as authoritative as the English – “principle of equal rights and
self-determination of peoples”.
6.23 Whether or not it was clear as from the adoption of the Charter that there
was a legal right to self-determination, in the practice of States the Charter was soon
interpreted in this way. As long ago as 1950, the U.N. General Assembly referred
to the “right of peoples and nations to self-determination” when it mandated the
study of means to ensure the fulfilment of the right.592 In 1952, the Assembly
decided to include in the Covenants on Human Rights the following provisions:
Whereas the General Assembly at its fifth session recognized the
right of peoples and nations to self-determination as a fundamental
human right (resolution 421 D (V) of 4 December 1950),
…
1. Decides to include in the International Covenant or Covenants on
Human Rights an article on the right of all peoples and nations to
self-determination in reaffirmation of the principle enunciated in the
Charter of the United Nations. This article shall be drafted in the
decide when these peoples would be ready for full self-government.” Stefan Oeter, “Self-
Determination” in THE CHARTER OF THE UNITED NATIONS: A COMMENTARY (Bruno Simma et al.
eds., 2012), p. 319 (Annex 160). See also ibid., pp. 315-316 (“Subsequent development in the UN,
in particular the practice of decolonisation, transformed the old (political) principle of selfdetermination
into a collective right – a trend which became more or less irrebuttable with the
codification of the right of self-determination in the two UN Human Rights Covenants of 1966. …
Although Art.1(2)… cannot define in detail the content and scope of a right to self-determination,
it sets forth beyond dispute that it forms part of the law of the Charter and is binding upon all
members of the UN.”)
592 U.N. General Assembly, 5th Session, 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) (4 Dec. 1950), Section D, para. 6 (The General Assembly: “6. Calls upon the
Economic and Social Council to request the Commission on Human Rights to study ways and means
which would ensure the right of peoples and nations to self-determination, and to prepare
recommendations for consideration by the General Assembly at its sixth session”.)
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following terms: “All peoples shall have the right of selfdetermination”,
and shall stipulate that all States, including those
having responsibility for the administration of Non-Self-Governing
Territories, should promote the realization of that right, in
conformity with the Purposes and Principles of the United Nations,
and that States having responsibility for the administration of Non-
Self-Governing Territories should promote the realization of that
right in relation to the peoples of such Territories… .593
6.24 The negotiation of the Covenants led to discussions about the nature of the
concept of self-determination. The divisions of opinion594 between those who saw
it as a political principle and those who maintained that it was a legal right were
resolved early in the negotiations in favour of the latter. And at the same time as
the Covenants were being negotiated, the General Assembly was adopting
resolutions which referred to the right of self-determination, and various aspects of
that right, such as the right freely to determine political status and the right to
territorial integrity. Thus, in Resolution 637 (VII) of 16 December 1952 the General
Assembly recommended that:
States Members of the United Nations shall recognize and promote
the realization of the right of self-determination of the peoples of
593 U.N. General Assembly, 6th Session, 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) (2 Feb. 1952) (adopted by 42-7-5 (non-recorded)) (underlining added). This was
re-affirmed in U.N. General Assembly, 7th Session, The right of peoples and nations to selfdetermination,
U.N. Doc. A/RES/637(VII) (16 Dec. 1952); U.N. General Assembly, 8th Session,
The right of peoples and nations to self-determination, U.N. Doc. A/RES/738(VIII) (28 Nov. 1953);
U.N. General Assembly, 9th Session, Recommendations concerning international respect for the
right of peoples and nations to self-determination, U.N. Doc. A/RES/837(IX) (14 Dec. 1954).
594 In a document prepared by the U.N. Secretariat on the negotiations on the Covenants, the
divisions of opinion are described thus: “3. One school of thought maintained that self-determination
was a political principle of the highest importance, but not a right in the strict legal sense, not a
human right or an individual right. … 4. Another school of thought maintained that selfdetermination
was a ‘right’ as well as a ‘principle’ and that it was indeed the most fundamental of
all human rights. … The General Assembly, the highest organ in the international community, had
already recognised the right of peoples and nationals to self-determination; the next step was to
formulate an appropriate article by which States would undertake a solemn obligation to promote
and respect that right.” U.N. Secretary-General, Annotation on the text of the draft International
Covenants on Human Rights, U.N. Doc. A/2929 (1 July 1955), Chapter IV, pp. 13-14.
202
Non-Self-Governing and Trust Territories who are under their
administration and shall facilitate the exercise of this right by the
peoples of such Territories according to the principles and spirit of
the Charter of the United Nations in regard to each Territory and to
the freely expressed wishes of the peoples concerned, the wishes of
the people being ascertained through plebiscites or other recognized
democratic means, preferably under the auspices of the United
Nations.595
6.25 Subsequent resolutions of the General Assembly continued to affirm the
existence of a right to self-determination, and as time went on, opposition fell away.
Thus in 1952 the General Assembly adopted by 36 votes to 15 (with 7 abstentions)
Resolution 648 (VII) of 10 December 1952, which, in approving a list of factors to
serve as a guide in deciding whether a Territory had attained a full measure of selfgovernment,
noted that each case should be “considered and decided in the light of
the particular circumstances of that case and taking into account the right of selfdetermination
of peoples”.596
6.26 In 1957, the General Assembly adopted Resolution 1188 (XII) of 11
December 1957, in which it reaffirmed the importance of Member States giving
“due respect to the right of self-determination” in their relations with one another.597
595 U.N. General Assembly, 7th Session, The right of peoples and nations to self-determination,
U.N. Doc. A/RES/637(VII) (16 Dec. 1952) (adopted by 40-14-6).
596 U.N. General Assembly, 7th Session, Factors which should be taken into account in deciding
whether a Territory is or is not a Territory whose people have not yet attained a full measure of
self-government, U.N. Doc. A/RES/648(VII) (10 Dec. 1952) (adopted by 36-15 with 7 abstentions)
(Dossier No. 30).
597 U.N. General Assembly, 12th Session, Recommendations concerning international respect for
the right of peoples and nations to self-determination, U.N. Doc. A/RES/1188(XII) (11 Dec. 1957).
203
This was adopted by a non-recorded vote of 60 votes to none (with 13
abstentions).598
6.27 Resolution 1514 (XV) itself was adopted by 89 votes to none (with only 9
abstentions),599 and in the following year Resolution 1654 (XVI) of 27 November
1961 was adopted by a vote of 97 votes to none (with a mere 4 abstentions).600
6.28 In the latter Resolution, the General Assembly reiterated the need for
“immediate steps” to be taken in all Trust and Non-Self-Governing territories to
transfer powers to the peoples of those territories, and expressed its deep concern
that “contrary to the provisions of paragraph 6 of the Declaration, acts aimed at the
partial or total disruption of national unity and territorial integrity are still being
carried out in certain countries in the process of decolonization”.601
6.29 By the time Resolution 1514 (XV) was adopted in 1960, with its statement
“[a]ll peoples have the right to self-determination”, it was legitimate to reach the
view adopted by Dame Rosalyn Higgins that the Declaration “taken together with
seventeen years of evolving practice by United Nations organs, provides ample
evidence that there now exists a legal right of self-determination.”602 Raic, in his
598 U.N. General Assembly, 12th Session, 727th Plenary Meeting, Agenda Item 32:
Recommendations concerning international respect for the right of peoples and nations to selfdetermination,
U.N. Doc. A/PV.727 (11 Dec. 1957), para. 87.
599 U.N. General Assembly, 15th Session, 947th Plenary Meeting, Agenda Item 87: Declaration on
the granting of independence to colonial countries and peoples, U.N. Doc. A/PV.947 (14 Dec.
1960), para. 34 (Dossier No. 74).
600 U.N. General Assembly, 16th Session, 1066th Plenary Meeting, The situation with regard to the
implementation of the Declaration on the granting of independence to colonial countries and
peoples, U.N. Doc. A/PV.1066 (27 Nov. 1961), para. 149 (Dossier No. 117).
601 Implementation of the Colonial Declaration (27 Nov. 1961), Preamble (Dossier No. 101).
602 Higgins, The Development of International Law (1963), p. 104 (Annex 19). See also her review
of the practice of the General Assembly and other U.N. organs on self-determination, in which she
concludes that: “[i]t therefore seems inescapable that self-determination has developed into an
204
more recent study of the practice in the 1950s, comes to a similar conclusion,
observing that it “seems tenable that Resolution 1514 reflected an existing rule of
customary law as far as a right of self-determination for colonial countries and
peoples is concerned.”603
6.30 Whether the recognition of the right to self-determination emerged, as per
Raic, as an independent right in customary international law, or rather as a stabilised
interpretation of Articles 55 and 56 of the U.N. Charter, the effect is the same. As
Shaw notes:
The large number of Assembly resolutions calling for selfdetermination
in specific cases represents international practice
regarding the existence and scope of a rule of self-determination in
customary law. They also constitute subsequent practice relevant to
the interpretation of particular Charter provisions. 604
6.31 Both depend upon the same corpus of State practice. As Crawford notes:
State practice is just as much State practice when it occurs in the
context of the General Assembly as in bilateral forms. The practice
of States in assenting to and acting upon law-declaring resolutions
may be of probative importance, in particular where that practice
achieves reasonable consistency over a period of time. In Judge
Petren’s words, where a resolution is passed by ‘a large majority of
States with the intention of creating a new binding rule of law’ and
is acted upon as such by States generally, their action will have
international legal right, and is not an essentially domestic matter. The extent and scope of the right
is still open to some debate.” Ibid., p. 103.
603 David Raic, Statehood and the Law of Self-Determination (2002) (hereinafter “Raic, Statehood
(2002)”), p. 217 (Annex 145).
604 Malcolm Shaw, Title to Territory in Africa: International Legal Issues (13 Mar. 1986)
(hereinafter “Shaw, Title to Territory in Africa (13 Mar. 1986)”), p. 84 (Annex 135).
205
quasi-legislative effect. The problem is one of evidence and
assessment.605
6.32 The evidence is incontrovertible that the existence of a right to selfdetermination
in the case of Non-Self-Governing Territories was already widely
recognised by the late 1950s, and that its application to such territories was already
then treated as peremptory.
6.33 Against this background, the adoption of Resolution 1514 (XV) in 1960 was
a watershed for the formal recognition of a legal right to self-determination on the
part of Non-Self-Governing Territories. From that time onwards, the “Colonial
Declaration”, as it was commonly known, was the repeated point of reference in
nearly every discussion of the situation of Non-Self-Governing Territories,606 and
the right to self-determination was regularly invoked in the consideration of
605 Crawford, Creation of States (2006), p. 114 (Annex 150). See also advice by the U.N. Office of
Legal Affairs: “there is probably no difference between a ‘recommendation’ or a ‘declaration’ in
UN practice as far as strict legal principle is concerned. A ‘declaration’ or a ‘recommendation’ is
adopted by resolution of a UN organ. As such it cannot be made binding upon Member States, in
the sense that a treaty or convention is binding upon the parties to it, purely by the device of terming
it a ‘declaration’ rather than a ‘recommendation’. However, in view of the greater solemnity and
significance of a ‘declaration’, it may be considered to impart, on behalf of the organ adopting it, a
strong expectation that Members of the international community will abide by it. Consequently, in
so far as the expectation is gradually justified by State practice, a declaration may become
recognised as laying down rules binding upon States.” U.N. Economic and Social Council,
Commission on Human Rights, 18th Session, Use of the Terms “Declaration” and
“Recommendation”, U.N. Doc. E/CN.4/L.610 (2 Apr. 1962).
606 See Shaw, Title to Territory in Africa (13 Mar. 1986), p. 80 (Annex 135).
206
individual territories including, for example, Aden,607 Angola,608 Algeria,609
Basutoland, Bechuanaland and Swaziland,610 British Guiana,611 Cook Islands,612
Equatorial Guinea,613 East Timor,614 Fiji,615 French Somaliland,616 Ifni and Spanish
607 U.N. General Assembly, 18th Session, Question of Aden, U.N. Doc. A/RES/1949(XVIII) (11
Dec. 1963); U.N. General Assembly, 20th Session Question of Aden, U.N. Doc. A/RES/2023(XX)
(5 Nov. 1965).
608 U.N. General Assembly, 17th Session, The situation in Angola, U.N. Doc. A/RES/1819(XVII)
(18 Dec. 1962); U.N. General Assembly, 16th Session, The situation in Angola, U.N. Doc.
A/RES/1742(XVI) (30 Jan. 1962) (Dossier No. 42).
609 U.N. General Assembly, 15th Session, Question of Algeria, U.N. Doc. A/RES/1573(XV) (19
Dec. 1960) (hereinafter “Question of Algeria (19 Dec. 1960)”); U.N. General Assembly, 16th
Session, Question of Algeria, U.N. Doc. A/RES/1724(XVI) (20 Dec. 1961).
610 U.N. General Assembly, 17th Session, Question of Basutoland, Bechuanaland and Swaziland,
U.N. Doc. A/RES/1817(XVII) (18 Dec. 1962); U.N. General Assembly, 18th Session, Question of
Basutoland, Bechuanaland and Swaziland, U.N. Doc. A/RES/1954(XVIII) (11 Dec. 1963); U.N.
General Assembly, 20th Session, Question of Basutoland, Bechuanaland and Swaziland, U.N. Doc.
A/RES/2063(XX) (16 Dec. 1965).
611 U.N. General Assembly, 18th Session, Question of British Guiana, U.N. Doc.
A/RES/1955(XVIII) (11 Dec. 1963); U.N. General Assembly, 20th Session, Question of British
Guiana, U.N. Doc. A/RES/2071(XX) (16 Dec. 1965).
612 U.N. General Assembly, 20th Session, Question of the Cook Islands, U.N. Doc.
A/RES/2064(XX) (16 Dec. 1965).
613 U.N. General Assembly, 20th Session, Question of Equatorial Guinea (Fernando Póo and Río
Muni), U.N. Doc. A/RES/2067(XX) (16 Dec. 1965).
614 U.N. General Assembly, 30th Session, Question of Timor, U.N. Doc. A/RES/3485(XXX) (12
Dec. 1975).
615 U.N. General Assembly, 18th Session, Question of Fiji, U.N. Doc. A/RES/1951(XVIII) (11 Dec.
1963); U.N. General Assembly, 20th Session, Question of Fiji, U.N. Doc. A/RES/2068(XX) (16
Dec. 1965); U.N. General Assembly, 22nd Session, Question of Fiji, U.N. Doc. A/RES/2350(XXII)
(19 Dec. 1967).
616 U.N. General Assembly, 22nd Session, Question of French Somaliland, U.N. Doc.
A/RES/2356(XXII) (19 Dec. 1967).
207
Sahara,617 Kenya,618 Malta,619 Malvinas,620 Mauritius,621 New Guinea and Papua,622
Northern Rhodesia,623 Nauru,624 Nyasaland,625 Oman,626 Seychelles,627 South West
Africa,628 and Southern Rhodesia.629 In a still wider range of resolutions, the
language used was that of the “inalienable” right to freedom, independence or to
617 U.N. General Assembly, 20th Session, Question of Ifni and Spanish Sahara, U.N. Doc.
A/RES/2072(XX) (16 Dec. 1965).
618 U.N. General Assembly, 17th Session, Question of Kenya, U.N. Doc. A/RES/1812(XVII) (17
Dec. 1962).
619 U.N. General Assembly, 18th Session Question of Malta, U.N. Doc. A/RES/1950(XVIII) (11
Dec. 1963).
620 U.N. General Assembly, 20th Session, Question of the Falkland Islands (Malvinas), U.N. Doc.
A/RES/2065(XX) (16 Dec. 1965).
621 Question of Mauritius (16 Dec. 1965) (Dossier No. 146).
622 U.N. General Assembly, 20th Session, Question of the Trust Territory of New Guinea and the
Territory of Papua, U.N. Doc. A/RES/2112(XX) (21 Dec. 1965).
623 U.N. General Assembly, 18th Session, Question of Northern Rhodesia, U.N. Doc.
A/RES/1952(XVIII) (11 Dec. 1963).
624 U.N. General Assembly, 20th Session, Question of the Trust Territory of Nauru, U.N. Doc.
A/RES/2111(XX) (21 Dec. 1965).
625 U.N. General Assembly, 17th Session, Question of Nyasaland, U.N. Doc. A/RES/1818(XVII)
(18 Dec. 1962).
626 U.N. General Assembly, 18th Session, Territories under Portuguese administration, U.N. Doc.
A/RES/1973(XVIII) (16 Dec. 1963); U.N. General Assembly, 20th Session, Question of Oman,
U.N. Doc. A/RES/2073(XX) (17 Dec. 1965) (hereinafter “Question of Oman (17 Dec. 1965)”); U.N.
General Assembly, 22nd Session, Question of Oman, U.N. Doc. A/RES/2302(XXII) (12 Dec. 1967).
627 U.N. General Assembly, 26th Session, Question of the Seychelles, U.N. Doc.
A/RES/2866(XXVI) (20 Dec. 1971).
628 U.N. General Assembly, 16th Session, Question of South West Africa, U.N. Doc.
A/RES/1702(XVI) (19 Dec. 1961); U.N. General Assembly, 18th Session, Question of South West
Africa, U.N. Doc. A/RES/1899(XVIII) (13 Nov. 1963); U.N. General Assembly, 20th Session,
Question of South West Africa, U.N. Doc. A/RES/2074(XX) (17 Dec. 1965).
629 U.N. General Assembly, 17th Session, Question of Southern Rhodesia, U.N. Doc.
A/RES/1760(XVII) (31 Oct. 1962); U.N. General Assembly, 18th Session, Question of Southern
Rhodesia, U.N. Doc. A/RES/1889(XVIII) (6th Nov. 1963); U.N. General Assembly, 18th Session,
Question of Northern Rhodesia, U.N. Doc. A/RES/1952(XVIII) (11 Dec. 1963); U.N. General
Assembly, 20th Session, Question of Southern Rhodesia, U.N. Doc. A/RES/2012(XX) (12 Oct.
1965).
208
self-government.630 As the Court was later to affirm, Resolution 1514 (XV) was
not merely an “important stage” in the development of international law regarding
Non-Self-Governing Territories,631 but became “the basis for the process of
decolonisation”.632
D. THE PRACTICE OF THE SECURITY COUNCIL
6.34 The position adopted by the General Assembly in relation to Resolution
1514 (XV) was also reflected in the practice of the Security Council. In a series of
resolutions relating to territories under Portuguese administration, the Security
Council specifically endorsed the position adopted by the General Assembly. First,
in Resolution 180 (1963)633 the Security Council affirmed the terms of General
Assembly Resolution 1514 (XV), finding the Portuguese practice of treating
overseas territories as integral parts of metropolitan Portugal to be “contrary to the
principles of the Charter”, and called upon Portugal to recognise the rights of those
peoples to “self-determination and independence”. In a subsequent resolution634
adopted later in the same year by 10 votes to none (with 1 abstention), the Security
Council criticised Portugal’s failure to comply with its earlier resolution and
reaffirmed “the interpretation of self-determination laid down in General Assembly
resolution 1514 (XV)” as follows:
630 U.N. General Assembly, 18th Session, Question of British Guiana, U.N. Doc.
A/RES/1955(XVIII) (11 Dec. 1963).
631 South West Africa (Advisory Opinion), p. 31, para. 52.
632 Western Sahara (Advisory Opinion), p. 32, para. 57.
633 U.N. Security Council, Question relating to Territories under Portuguese administration, U.N.
Doc. S/RES/180 (31 July 1963) (adopted by 8-0 with 3 abstentions).
634 U.N. Security Council, Question relating to Territories under Portuguese administration, U.N.
Doc. S/RES/183 (11 Dec. 1963).
209
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… .
6.35 The Security Council later roundly condemned Portugal for its failure to
implement General Assembly Resolution 1514 (XV) in relation to the peoples of
Angola, Mozambique and Guinea (Bissau).635
6.36 In a similar manner, the Security Council repeatedly endorsed General
Assembly Resolution 1514 (XV) when dealing with the case of Southern Rhodesia.
In Resolution 217 (1965)636 it “reaffirmed” Resolution 1514 (XV) and called upon
the United Kingdom “to take immediate measures in order to allow the people of
Southern Rhodesia to determine their own future consistent with the objectives” of
that Resolution. The following year, Resolution 232 (1966) stated that the Security
Council:637
[r]eaffirms the inalienable rights of the people of Southern Rhodesia
to freedom and independence in accordance with the Declaration on
the Granting of Independence to Colonial Countries and Peoples
contained in General Assembly resolution 1514 (XV) of 14
December 1960… .
6.37 This was followed by Resolution 253 (1968),638 further reaffirming the
terms of General Assembly Resolution 1514 (XV), and by Resolution 277
635 U.N. Security Council, Territories under Portuguese administration, U.N. Doc. S/RES/312 (4
Feb. 1972).
636 U.N. Security Council, Southern Rhodesia, U.N. Doc. S/RES/217 (20 Nov. 1965) (adopted by
10-0 with 1 abstention (France)).
637 U.N. Security Council, Southern Rhodesia, U.N. Doc. S/RES/232 (12 Dec. 1966) (adopted by
11-0 with 4 abstentions (Bulgaria, France, Mali and U.S.S.R.)).
638 U.N. Security Council, Question concerning the situation in Southern Rhodesia, U.N. Doc.
S/RES/253 (29 May 1968) (adopted unanimously).
210
(1970),639 in which the Security Council declared the introduction of new measures
aimed at repressing the African people to be “in violation of General Assembly
resolution 1514 (XV)”.640
6.38 Accordingly, from the time of Resolution 1514 (XV) onwards the right to
self-determination was regularly invoked in the work of U.N. organs in the exercise
of their powers “to deal with the decolonisation” of Non-Self-Governing
Territories641 and, through the same medium, in the practice of Member States. The
Resolution itself became, in the process, a measure by which the legality of the
actions of Member States might be determined and, to that extent, was indicative
639 U.N. Security Council, Southern Rhodesia, U.N. Doc. S/RES/277 (18 Mar. 1970) (adopted 14-0
with one abstention (Spain)).
640 Other Security Council Resolutions (up until 1980) that refer affirmatively to General Assembly
Resolution1514(XV) include: U.N. Security Council, West Africa, U.N. Doc. S/RES/246 (14 Mar.
1968); U.N. Security Council, The Situation in Namibia, U.N. Doc. S/RES/264 (20 Mar. 1969);
U.N. Security Council, The Situation in Namibia, U.N. Doc. S/RES/276 (30 Jan. 1970); U.N.
Security Council, Namibia, U.N. Doc. S/RES/283 (29 July 1970); U.N. Security Council, Southern
Rhodesia, U.N. Doc. S/RES/288 (17 Nov. 1970); U.N. Security Council, Namibia, U.N. Doc.
S/RES/301 (20 Oct. 1971); U.N. Security Council, The Situation in Namibia, U.N. Doc. S/RES/310
(4 Feb. 1972); U.N. Security Council, Southern Rhodesia, U.N. Doc. S/RES/318 (28 July 1972);
U.N. Security Council, Provocation of Southern Rhodesia, U.N. Doc. S/RES/326 (2 Feb. 1973);
U.N. Security Council, Southern Rhodesia, U.N. Doc. S/RES/328 (10 Mar. 1973); U.N. Security
Council, Western Sahara, U.N. Doc. S/RES/377 (22 Oct. 1975); U.N. Security Council, Western
Sahara, U.N. Doc. S/RES/379 (2 Nov. 1975); U.N. Security Council, Eastern Timor, U.N. Doc.
S/RES/384 (22 Dec. 1975); U.N. Security Council, Mozambique-Southern Rhodesia, U.N. Doc.
S/RES/386 (17 Mar. 1976); U.N. Security Council, East Timor, U.N. Doc. S/RES/389 (22 Apr.
1976); U.N. Security Council, Botswana-Southern Rhodesia, U.N. Doc. S/RES/403 (14 Jan. 1977);
U.N. Security Council, Mozambique-Southern Rhodesia, U.N. Doc. S/RES/411 (30 June 1977);
U.N. Security Council, Southern Rhodesia, U.N. Doc. S/RES/423 (14 Mar. 1978); U.N. Security
Council, Complaint by Zambia, U.N. Doc. S/RES/424 (17 March 1978); U.N. Security Council,
Complaint by Angola Against South Africa, U.N. Doc. S/RES/428 (6 May 1978); U.N. Security
Council, Question Concerning the Situation in Southern Rhodesia, U.N. Doc. S/RES/445 (8 Mar.
1979); U.N. Security Council, Southern Rhodesia, U.N. Doc. S/RES/448 (30 Apr. 1979); U.N.
Security Council, Question Concerning the Situation in Southern Rhodesia, U.N. Doc. S/RES/463
(2 Feb. 1980).
From 1972 onwards the Security Council moved to affirming “the inalienable and imprescriptible
right of people” to self-determination. See U.N. Security Council, Namibia, U.N. Doc. S/RES/319
(1 Aug. 1972); U.N. Security Council, Namibia, U.N. Doc. S/RES/323 (6 Dec. 1972).
641 Western Sahara (Advisory Opinion), pp. 23-24, para. 30.
211
of opinio iuris for purposes of its status as customary international law.642 The
adoption by consensus in 1966 of the Covenants on Human Rights, each of which
includes in its first Article the confirmation that “[a]ll peoples have the right of selfdetermination”,
was in accordance with this general trend.
6.39 The norm evolved, ultimately, via General Assembly Resolution 2625
(XXV) of 1970, into one of ius cogens643, having an erga omnes character.644
However, the norm was well-established before then. In the Chagos Marine
Protected Area Arbitration, Judges Kateka and Wolfrum rejected the proposition
that the norm crystallised only in 1970: they took the view that “the principle of
self-determination developed earlier”, noting that “between 1945 and 1965 already
more than 50 States gained independence in the process of decolonisation”.645 They
accepted the view that, as counsel for Mauritius put it in the arbitration proceedings,
“[i]t’s impossible to look back to the 1960s and view what was happening as
anything but the achievement of independence on the basis of the exercise of the
legal right categorically affirmed by the General Assembly in 1960.”646
642 See, e.g., Western Sahara, Advisory Opinion, Separate Opinion of Vice-President Ammoun,
I.C.J. Reports 1975, p. 83; Western Sahara, Advisory Opinion, Separate Opinion of Judge Dillard,
I.C.J. Reports 1975, p. 121 (“[T]he pronouncements of the Organization thus indicate… that a norm
of international law has emerged applicable to the decolonization of those non-self-governing
territories which are under the aegis of the United Nations”.). Cassese remarks that the Colonial
Declaration “in conjunction with the UN Charter, contributed to the gradual transformation of the
‘principle’ of self-determination into a legal right for non-self-governing peoples.” Cassese, Selfdetermination
of peoples (1995), p. 70 (Annex 138).
643 See, e.g., Western Sahara, Advisory Opinion, Separate Opinion of Vice-President Ammoun,
I.C.J. Reports 1975, p. 90. That conclusion is also reached by Cassese following a detailed review
of State practice. Cassese, Self-determination of peoples (1995), pp. 134-140 (Annex 138).
644 East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995 (hereinafter “East Timor,
Judgment”), p. 102, para. 29; Construction of a Wall (Advisory Opinion), p. 199, para. 156.
645 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), para. 71 (Dossier No. 409).
646 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Hearing on
Jurisdiction and the Merits, UNCLOS Annex VII Tribunal, Transcript (Day 3) (24 Apr. 2014), p.
212
III. Self-determination as the modus operandi of decolonisation
6.40 In large measure, early opposition to the recognition of a right to selfdetermination
related to the inference that it would have entailed a duty, on the part
of administering powers, to grant the right on demand.647 This did not constitute,
however, a rejection of self-determination as the driving force in the practice of
decolonisation.648
6.41 What was generally accepted – and indeed had already been implicit in
practice prior to 1945 – was that self-determination should control the process, or
manner, by which decolonisation was to be achieved. There was little, if any, doubt
that the full and free consent of the population should inform all future dispositions
of territory even if, in the view of a minority of administering States, they should
not be compelled to move in that direction within any particular timescale.
238:10-12 (Crawford) (Annex 170). And as counsel went on to explain, the legal position at the
date of Mauritian independence in 1968 and at the date of excision in 1965 was the same: “There
wasn’t a date between 1965 and 1968 in which the law had changed. The law had been developing,
in fact, ever since the enactment of the conclusion of the Charter being articulated through the Fifties
and coming to effective fruition in 1960.” Chagos Marine Protected Area Arbitration (Mauritius v.
United Kingdom), Hearing on Jurisdiction and the Merits, UNCLOS Annex VII Tribunal, Transcript
(Day 8) (5 May 2014), p. 965:11-13 (Annex 171). So although “[t]he crucial date is the date of
independence because that’s the date the excision has definitive effect” (ibid., p. 964:14-15), nothing
in fact turns on whether one analyses the legal framework as at 1965 or 1968.
647 As specified, for example, in the Commission on Human Rights’ recommendation in U.N. Doc.
E/CN.4/664 of 24 April 1952. See U.N. Economic and Social Council, Commission on Human
Rights, 8th Session, Recommendations Concerning International Respect for the Self-
Determination of Peoples, U.N. Doc. E/CN.4/664 (24 Apr. 1952). It may be noted, however, that
General Assembly Resolution 1514 (XV) emphasised the necessity of “bringing to a speedy and
unconditional end colonialism in all its forms” and that “[i]nadequacy of political, economic, social
or educational preparedness should never serve as a pretext for delaying independence”. Colonial
Declaration (14 Dec. 1960) (Dossier No. 55).
648 See in this respect, the remarks by Judge Dillard in his Separate Opinion in the Western Sahara
case, in which he notes that those more sceptical “deny that the principle has developed into a
‘right’”. Western Sahara, Advisory Opinion, Separate Opinion of Judge Dillard, I.C.J. Reports
1975, p. 121.
213
6.42 Indeed, the very evolution of the legal principle of self-determination into a
right after 1945 may be said to have emerged, in part at least, as a response to a
concern that certain administering powers were not taking sufficient measures to
give effect to the obligation under Article 73 of the Charter to enable selfgovernment
on the part of the peoples of Non-Self-Governing Territories, or,
worse, were actively preventing decolonisation from taking place.649
6.43 During this period, self-determination came to be seen as the prime modus
operandi through which decolonisation would be effectuated, and it was recognised
that, as per paragraph 2 of Resolution 1514 (XV), all peoples subject to colonial
rule should be able to “freely determine their political status and freely pursue their
economic, social and cultural development.”
6.44 This was reflected in the ongoing practice of the United Nations from at
least 1954 onwards, in which plebiscites or elections were organised or supervised
in Non-Self-Governing Territories before their accession to independence or
association/integration with other States. Plebiscites and elections were held in
British Togoland Trust Territory (1956), French Togoland (1958), British Northern
Cameroons (1959), British Southern Cameroons (1961), Rwanda-Urundi (1961),
Western Samoa (1962), the Cook Islands (1965), Equatorial Guinea (1968), Papua-
New Guinea (1972), Niue (1974), the Ellice Islands (1974), the Northern Marianas
(1975) and French Comores (1974, 1976).650 Self-determination was also
649 See, e.g., Resolutions 558 (VI) and 752 (VIII) in which the General Assembly called upon
administering states to fix timetables and targets for the attainment of independence. U.N. General
Assembly, 6th Session, Attainment by the Trust Territories of the objective of self-government or
independence, U.N. Doc. A/RES/558(VI) (18 Jan. 1952); U.N. General Assembly, 8th Session,
Attainment by the Trust Territories of the objective of self-government or independence, U.N. Doc.
A/RES/752(VIII) (9 Dec. 1953).
650 See Cassese, Self-determination of peoples (1995), pp. 76-79 (Annex 138); Marcel Merle, “Les
plébiscites organisés par les Nations Unies”, Annuaire français de droit international, Vol. 7 (1961),
pp. 425-444 (Annex 18).
214
emphasised in the subsequent criticism of minority rule in Southern Rhodesia,651
and of South Africa’s Bantusan policies.652
6.45 A corollary to the idea that the “essential feature” of self-determination was
the exercise of free choice on the part of the inhabitants653 was that it was concerned
with ensuring, not so much a particular outcome, as a legitimate process.654 This
was made clear when the General Assembly, in Resolution 1541 (XV), specified
that the outcome of the process of decolonisation for non-self-governing territories
might result in more than one possibility, namely:
(a) emergence as a sovereign independent State;
(b) free association with an independent State; or
(c) integration with an independent State.
6.46 In all cases, however, the connection with the right of self-determination is
made evident. Thus principle VII of Resolution 1541 (XV) declares that: “[f]ree
association should be the result of a free and voluntary choice by the peoples of the
651 See, e.g., U.N. General Assembly, 20th Session, Question of Southern Rhodesia, U.N. Doc.
A/RES/2024(XX) (11 Nov. 1965). Examining the practice of non-recognition, Crawford concludes
that “[i]t must be concluded that Southern Rhodesia was not a State because the minority
government’s declaration of independence was and remained internationally a nullity, as a violation
of the principle of self-determination.” Crawford, Creation of States (2006), p. 130 (Annex 150).
652 See, e.g., U.N. General Assembly, 26th Session, The policies of apartheid of the Government of
South Africa: Establishment of Bantustans, U.N. Doc. A/RES/2775E(XXVI) (29 Nov. 1971); U.N.
General Assembly, 27th Session, Policies of apartheid of the Government of South Africa: Situation
in South Africa Resulting from the Policies of apartheid, U.N. Doc. A/RES/2923E(XXVII) (15 Nov.
1972).
653 Western Sahara (Advisory Opinion), p. 32, para. 57.
654 See Catriona Drew, “The East Timor Story: International Law on Trial”, Eur. J. Int’l L., Vol. 12
(2001), pp. 658-662 (Annex 143).
215
territory concerned expressed through informed and democratic processes.”
Principle IX of Resolution 1541 (XV) declares that:
(b) The integration should be the result of the freely expressed
wishes of the territory’s peoples acting with full knowledge of the
change in their status, their wishes having been expressed through
informed and democratic processes, impartially conducted and
based on universal adult suffrage.
6.47 This is further reiterated in General Assembly 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 specifies that:
The establishment of a sovereign and independent State, the free
association or integration with an independent State or the
emergence into any other political status freely determined by a
people constitute modes of implementing the right of selfdetermination
by that people.655
6.48 Resolution 2625 (XXV) further provides that:
Every State has the duty to promote, through joint and separate
action, realization of the principle of equal rights and selfdetermination
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:
…
655 U.N. General Assembly, 25th Session, 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/2625(XXV) (24 Oct. 1970) (hereinafter “Friendly Relations
Declaration (24 Oct. 1970)”) (emphasis added).
216
(b) To bring a speedy end to colonialism, having due regard to the
freely expressed will of the peoples concerned.656
6.49 As noted in the Western Sahara Advisory Opinion, self-determination,
defined as the need to pay regard to the freely expressed will of peoples, has in
practice only been dispensed with in circumstances in which the population
concerned “did not constitute a ‘people’ entitled to self-determination or on the
conviction that a consultation was totally unnecessary”.657
IV. The fundamental elements of self-determination in the process of
decolonisation
6.50 As counsel for Mauritius put it in the Chagos Marine Protected Area
Arbitration proceedings, “self-determination provided the legal underpinning for
the process of decolonisation”.658 In other words, the requirements of selfdetermination
gave shape to the process by which decolonisation was to be carried
out. And self-determination carried with it at least four vitally important legal
corollaries:
(1) The prohibition of the subversion of self-determination: The first of
these was that decolonisation should not be obstructed through
measures that would subvert the possibility of self-government or
independence by the installation, for example, of a system of
656 Ibid.
657 Western Sahara (Advisory Opinion), p. 33, para. 59. Aréchaga notes that in respect of the latter,
the court had in mind the position of colonial enclaves such as Goa and Ifni. See Eduardo Jiménez
de Aréchaga, “International Law in the Past Third of a Century”, Recueil des Cours, Vol. 159
(1978), p. 107 (Annex 114).
658 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Hearing on
Jurisdiction and the Merits, UNCLOS Annex VII Tribunal, Transcript (Day 3) (24 Apr. 2014), p.
234:17-18 (Crawford) (Annex 170).
217
minority rule659 or “through the systematic influx of foreign
immigrants and the dislocation, deportation and transfer of the
indigenous inhabitants”660 or by way of “forcible action” against the
people.661 Thus, for example, the General Assembly and Security
Council repeatedly requested the United Kingdom “not to transfer
under any circumstances to its colony of Southern Rhodesia, as at
present governed, any of the powers or attributes of sovereignty, but
to promote the country’s attainment of independence by a
democratic system of government in accordance with the aspirations
of the majority of the population”.662
(2) The prohibition on annexation: The second, associated, corollary
was that Non-Self-Governing territories should not be liable to
annexation or incorporation within the territory of the administering
659 See, e.g., U.N. General Assembly, 20th Session, Question of Southern Rhodesia, U.N. Doc.
A/RES/2012(XX) (12 Oct. 1965), para. 2 (“Declares that the perpetuation of such minority rule
would be incompatible with the principle of equal rights and self-determination of peoples
proclaimed in the Charter of the United Nations and in the Declaration on the Granting of
Independence to Colonial Countries and Peoples contained in General Assembly Resolution 1514
(XV)”).
660 U.N. General Assembly, 20th Session, Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples, U.N. Doc. A/RES/2105(XX) (20 Dec. 1965),
para. 5 (Dossier No. 155).
661 Friendly Relations Declaration (24 Oct. 1970). See also U.N. Security Council, Territories under
Portuguese administration, U.N. Doc. S/RES/322 (22 Nov. 1972); Crawford, Creation of States
(2006), p. 147 (noting that “[t]he use of force against a self-determination unit by a metropolitan
State is a use of force against one of the purposes of the United Nations, and a violation of Article
2 paragraph 4 of the Charter. Such a violation cannot effect the extinction of the right.”) (Annex
150).
662 U.N. Security Council, Southern Rhodesia, U.N. Doc. S/RES/202 (6 May 1965), para. 5.
(adopted by 7-0 with 4 absentions). See also U.N. Security Council, Question concerning the
situation in Southern Rhodesia, U.N. Doc. S/RES/253 (29 May 1968) (adopted by 11-0 with no
abstentions); U.N. General Assembly, 18th Session, Question of Southern Rhodesia, U.N. Doc.
A/RES/1883(XVIII) (14 Oct. 1963) (adopted by 90-2 with 3 abstentions); U.N. General Assembly,
21st Session, Question of Southern Rhodesia, U.N. Doc. A/RES/2138(XXI) (22 Oct. 1966) (adopted
by 86-2 with 18 abstentions); U.N. General Assembly, 21st Session, Question of Southern Rhodesia,
U.N. Doc. A/RES/2151(XXI) (17 Nov. 1966) (adopted by 89-2 with 17 abstentions).
218
State without the free consent of the population. This was a
proposition developed very early on in U.N. practice, when the
General Assembly rejected, in Resolution 65(1), South Africa’s
proposals to incorporate South West Africa into the territory of the
Union of South Africa. The proposition was endorsed by the Court
in the Status of South West Africa case.663 It was also a principle
incorporated in a number of General Assembly resolutions relating
to Basutoland, Bechuanaland and Swaziland, including Resolutions
1817 (XVII) of 18 December 1962, 1954 (XVIII) of 11 December
1963,664 and Resolution 2649 (XXV) of 30 November 1970. In the
latter Resolution, it was declared that “the acquisition and retention
of territory in contravention of the right of the people of that territory
to self-determination is inadmissible and a gross violation of the
Charter”.665
(3) The right to territorial integrity, and the obligation to maintain it:
The third legal corollary was that self-determination should be
exercised on the part of the entirety of the population within the
existing limits of the territory concerned, and that, as a consequence,
any attempt at the “partial or total disruption of the national unity
663 U.N. General Assembly, 1st Session, Future Status of South West Africa, U.N. Doc. A/RES/65(1)
(14 Dec. 1946). (adopted by 37-0 with 9 abstentions). See further International Status of South West
Africa, Advisory Opinion, I.C.J. Reports 1950, pp. 142-143. The Court adopted a similar stance in
relation to East Timor. See East Timor, Judgment, p. 103, para. 31.
664 In the latter, the General Assembly “solemnly warns the Government of the Republic of South
Africa that any attempt to annex or encroach upon the territorial integrity of these three Territories
shall be considered an act of aggression”. U.N. General Assembly, 18th Session, Question of
Basutoland, Bechuanaland and Swaziland, U.N. Doc. A/RES/1954(XVIII) (11 Dec. 1963), para. 4.
665 U.N. General Assembly, 1st Session, The importance of the universal realization of the right of
peoples to self-determination and of the speedy granting of independence to colonial countries and
peoples for the effective guarantee and observance of human rights, U.N. Doc. A/RES/2649(XXV)
(30 Nov. 1970), para. 4.
219
and territorial integrity” was inadmissible. This view of the law
emerged well before the dismemberment of Mauritius: in 1958, for
example, while debating the U.K.’s proposal for the partition of
Cyprus, the vast majority of States in the First Committee to the
General Assembly strongly opposed partition as violating the right
to self-determination. A number of States, including Greece, India,
Ethiopia, Guatemala, Iran, Ireland, the Federation of Malaya,
Liberia, Morocco, Nepal, Panama, Poland, Spain, Tunisia, the
U.S.S.R., Saudi Arabia and Yugoslavia gave statements opposing
partition as contrary to the right to self-determination.666 Then in
1960, as noted above, paragraph 6 of General Assembly Resolution
1514 (XV) provided that “[a]ny attempt aimed at the partial or total
disruption of the national unity and the territorial integrity of a
country is incompatible with the purposes and principles of the
Charter of the United Nations.” This was re-iterated later in General
Assembly Resolution 2625 (XXV) of 1970, which stated that
“[e]very State shall refrain from any action aimed at the partial or
total disruption of the national unity and territorial integrity of any
other State or country.”667
666 U.N. General Assembly, First Committee, 13th Session, 996th-1001st Meetings, Agenda Item
68: Question of Cyprus, U.N. Docs. A/C.1/SR.996-A/C.1/SR.1010 (Nov.-Dec. 1958).
667 As counsel for Mauritius expressed it in the UNCLOS proceedings, “the territorial integrity of
non-self-governing territories is an essential aspect of the right to self-determination, which can only
be waived by the freely expressed wishes of the people concerned. The colonial power did not have
the right or the authority arbitrarily to dismember a non-self-governing territory before the people
had any chance to exercise the right to decide on its own political future. Affirming otherwise would
deprive the right to self-determination of its meaning; it would also negate the obligations that a
colonial power has to enable the exercise of the right.” Chagos Marine Protected Area Arbitration
(Mauritius v. United Kingdom), Hearing on Jurisdiction and the Merits, UNCLOS Annex VII
Tribunal, Transcript (Day 3) (24 Apr. 2014), p. 243:6-12. (Crawford) (Annex 170). Counsel went
on to state that “while international law does not, generally speaking, govern the relations between
constituent units within a State, the law of self-determination by the early 1960s directly governed
the relations between metropolitan States and their colonies and included a guarantee of territorial
220
(4) Permanent sovereignty over natural resources: A final corollary
was that the principle of self-determination also required recognition
of the rights of peoples to “permanent sovereignty over their natural
wealth and resources”. As was affirmed in General Assembly
Resolution 1803 (XVII), the “[v]iolation of the rights of peoples and
nations to sovereignty over their natural wealth and resources is
contrary to the spirit and principles of the Charter of the United
Nations”.668
6.51 The principle that the territorial integrity of non-self-governing territories
should be respected was to become, as Crawford notes, “an established part of
United Nations practice”.669 In the context of French proposals to divide the
territory of Algeria, for example, the U.N. General Assembly repeatedly
emphasised the need to respect Algeria’s unity and territorial integrity. General
Assembly Resolution 1573 (XV) on Algeria states:670
Taking note of the fact that the two parties concerned have accepted
the right of self-determination as the basis for the solution of the
Algerian problem,…
integrity for the colonial territory. If metropolitan States could lawfully dismember the territory of
the colonies for the administration of which they are responsible, the right of self-determination
would be an empty shell. Metropolitan States could keep the bits they wanted and discard the rest.
Territorial integrity may not protect States against internal attempts at separation, but it surely
protects a colony against decisions of the colonial power that affect the territory with respect to
which the right of self-determination is to be exercised.” Ibid., p. 246:6-14.
668 U.N. General Assembly, 17th Session, Permanent Sovereignty over Natural Resources, U.N.
Doc. A/RES/1803(XVII) (14 Dec. 1962) (adopted by 87-2 with 12 abstentions).
669 Crawford, Creation of States (2006), p. 336 (Annex 150).
670 Question of Algeria (19 Dec. 1960), Preamble (adopted by 63-8 with 27 abstentions). Although
Algeria was part of French North Africa, only Morocco and Tunisia were listed in General Assembly
Resolution 66(I). U.N. General Assembly, 1st Session, Transmission of Information under Article
73(e) of the Charter (extract), U.N. Doc. A/RES/66(I) (14 Dec. 1946).
221
Convinced that all peoples have an inalienable right to complete
freedom, the exercise of their sovereignty and the integrity of their
national territory,…
2. Recognises the imperative need for adequate and effective
guarantees to ensure the successful and just implementation of the
right of self-determination on the basis of respect for the unity and
territorial integrity of Algeria;… .
6.52 This was re-affirmed in General Assembly Resolution 1654 (XVI)671 on the
implementation of General Assembly Resolution 1514 (XV):
Deeply concerned that, contrary to the provisions of paragraph 6 of
the Declaration, acts aimed at the partial or total disruption of
national unity and territorial integrity are still being carried out in
certain countries in the process of decolonisation… .
6.53 And again in General Assembly Resolution 1724 (XVI)672 on Algeria:
Recalling further its resolution 1573 (XV) of 19 December 1960 by
which it recognized the right of the Algerian people to selfdetermination
and independence, the imperative need for adequate
and effective guarantees to ensure the successful and just
implementation of the right to self-determination on the basis of
respect for the unity and territorial integrity of Algeria, and the fact
that the United Nations has a responsibility to contribute towards the
successful and just implementation of that right,… .
Calls upon the two parties to resume negotiations with a view to
implementing the right of the Algerian people to self-determination
and independence respecting the unity and territorial integrity of
Algeria.
671 Implementation of the Colonial Declaration (27 Nov. 1961) (adopted by 97-0 with 4 abstentions)
(Dossier No. 101).
672 U.N. General Assembly, 16th Session, Question of Algeria, U.N. Doc. A/RES/1724(XVI) (20
Dec. 1961) (adopted by 62-0 with 38 abstentions).
222
6.54 These resolutions confirm the principle embodied in paragraph 6 of
Resolution 1514 (XV) which, as counsel for Morocco made clear in the Western
Sahara case, ruled out the dismemberment of Non-Self-Governing territories:
Ainsi, le sens de la résolution 1514 (XV) est, à notre avis, clairement
posé: la décolonisation partielle est condamnée. La libre
détermination ne peut se réaliser que dans le respect de l'unité
nationale du peuple concerné.673
6.55 Similar resolutions were subsequently adopted by both the General
Assembly and Security Council in relation to:
(1) South West Africa (Trust Territory)674 (General Assembly
Resolutions 1899 (XVIII),675 2074 (XX),676 2248 (S-V)677 and 2372
(XXII)678 and Security Council Resolutions 264 (1969)679 and 269
673 Western Sahara (Advisory Opinion), Vol. IV (Exposé Oral M. Bennouna), p. 182 (“Thus, the
meaning of resolution 1514 (XV) is, in our view, clearly stated: partial decolonization is forbidden.
Self-determination can only be achieved with respect for the national unity of the people
concerned.”)
674 See Shaw, Title to Territory in Africa (13 Mar. 1986), pp. 105-110 (Annex 135).
675 U.N. General Assembly, 18th Session, Question of South West Africa, U.N. Doc.
A/RES/1899(XVIII) (13 Nov. 1963) (adopted by 84-6 with 17 abstentions). (“Considering that any
attempt by the Government of South Africa to annex a part or the whole of the Territory of South
West Africa would be contrary to the advisory opinion of the International Court of Justice of 11
July 1950 and would constitute a violation of the Government’s obligations under the Mandate and
of its other international obligations, ... 4. Considers that any attempt to annex a part or the whole
of the Territory of South West Africa constitutes an act of aggression”.) (underlining added).
676 U.N. General Assembly, 20th Session, Question of South West Africa, U.N. Doc.
A/RES/2074(XX) (17 Dec. 1965) (“5. Considers that any attempt to partition the Territory or to
take any unilateral action, directly or indirectly, preparatory thereto constitutes a violation of the
Mandate and of resolution 1514 (XV). … 6. Considers further that any attempt to annex a part or
the whole of the Territory of South West Africa constitutes an act of aggression”.) (underlining
added).
677 U.N. General Assembly, 5th Special Session, Question of South West Africa, U.N. Doc.
A/RES/2248(S-V) (19 May 1967).
678 U.N. General Assembly, 22nd Session, Question of South West Africa, U.N. Doc.
A/RES/2372(XXII) (12 June 1968), para. 7 (“Condemns the action of the Government of South
Africa designed to consolidate its illegal control over Namibia and to destroy the unity of the people
and the territorial integrity of Namibia”.) (underlining added) (adopted by 96-2 with 18 abstentions).
679 U.N. Security Council, The Situation in Namibia, U.N. Doc. S/RES/264 (20 Mar. 1969), para. 4
(“Declares that the actions of the Government of South Africa designed to destroy the national unity
223
(1969)680);
(2) Basutoland, Bechuanaland and Swaziland (General Assembly
Resolutions 1817 (XVII),681 2063 (XX)682);
(3) Oman (General Assembly Resolutions 2302 (XXII),683 2073
and territorial integrity of Namibia through the establishment of Bantustans are contrary to the
provisions of the Charter of the United Nations”.) (adopted by 13-0 with 2 abstentions).
680 U.N. Security Council, The Situation in Namibia, U.N. Doc. S/RES/269 (12 Aug. 1969), para. 3
(“Decides that the continued occupation of the Territory of Namibia by the South African authorities
constitutes an aggressive encroachment on the authority of the United Nations, a violation of the
territorial integrity and a denial of the political sovereignty of the people of Namibia”.) (adopted by
11-0 with 4 abstentions).
681 U.N. General Assembly, 17th Session, Question of Basutoland, Bechuanaland and Swaziland,
U.N. Doc. A/RES/1817(XVII) (18 Dec. 1962) (“6. Declares solemnly that any attempt to annex
Basutoland, Bechuanaland or Swaziland, or to encroach upon their territorial integrity in any way,
will be regarded by the United Nations as an act of aggression violating the Charter of the United
Nations.”)
682 U.N. General Assembly, 20th Session, Question of Basutoland, Bechuanaland and Swaziland,
U.N. Doc. A/RES/2063(XX) (16 Dec. 1965) (“Noting the resolutions adopted by the Assembly of
Heads of State and Government of the Organization of African Unity at its first regular session in
July 1964, and the Declaration adopted by the Second Conference of Heads of State or Government
of Non-Aligned Countries in October 1964 to the effect that the United Nations should guarantee
the territorial integrity of Basutoland, Bechuanaland and Swaziland and should take measures for
their speedy accession to independence and for the safeguarding of their sovereignty, ... Having
regard to the grave threat to the territorial integrity and economic stability of these Territories
constituted by the policies of the present régime in the Republic of South Africa, ... 5. Requests the
Special Committee to consider, in co-operation with the Secretary-General, what measures are
necessary for securing the territorial integrity and sovereignty of Basutoland, Bechuanaland and
Swaziland, and to report to the General Assembly at its twenty-first session”.) (underlining added).
683 U.N. General Assembly, 22nd Session, Question of Oman, U.N. Doc. A/RES/2302(XXII) (12
Dec. 1967) (“2. Reaffirms the inalienable right of the people of the Territory as a whole to selfdetermination
and independence”).
224
(XX),684 and 2238 (XXI)685);
(4) Aden (General Assembly Resolution 2183 (XXI)686);
(5) Nauru (Trust Territory) (General Assembly Resolution 2347
(XXII)687);
(6) Equatorial Guinea (General Assembly Resolutions 2230 (XXI)688,
2355 (XXII)689);
684 See Question of Oman (17 Dec. 1965) (“3. Recognizes the inalienable right of the people of the
Territory as a whole to self-determination and independence in accordance with their freely
expressed wishes”).
The reference to “[t]erritory as a whole” (regarded as a reference to the Sultanate of Muscat and
Oman) is notable because there was some suggestion that Oman was a separate state. See Crawford,
Creation of States (2006), p. 326 (Annex 150). See also United Nations, Office of Public
Information, “Questions Concerning the Middle East”, in YEARBOOK OF THE UNITED NATIONS 1964
(1966), pp. 186-188.
685 U.N. General Assembly, 21st Session, Question of Oman, U.N. Doc. A/RES/2238(XXI) (20 Dec.
1966) (“2. Reaffirms the inalienable right of the people of the Territory as a whole to selfdetermination
and independence”).
686 U.N. General Assembly, 21st Session, Question of Aden, U.N. Doc. A/RES/2183(XXI) (12 Dec.
1966) (“Having taken note of the assurances given by the representative of the administering Power,
on 10 November 1966, concerning the territorial integrity and unity of South Arabia as a whole”).
The assurances were noted in the resolution as there was concern regarding the sincerity of the U.K.
when it said that all the states of South Arabia, including Aden, would be included in the new
independent state of South Arabia. See Repertory of Practice of United Nations Organs, “Article
73”, Supplement No. 4, Vol. 2 (1966-1969), paras. 285-289.
687 U.N. General Assembly, 22nd Session, Question of the Trust Territory of Nauru, U.N. Doc.
A/RES/2347(XXII) (19 Dec. 1967), para. 4 (“Calls upon all States to respect the independence and
territorial integrity of the independent State of Nauru”.). Nauru was not yet independent when the
resolution was adopted.
688 See, e.g., U.N. General Assembly, 21st Session, Question of Equatorial Guinea, U.N. Doc.
A/RES/2230(XXI) (20 Dec. 1966) (“Reaffirms the inalienable right of the people of Equatorial
Guinea to self-determination and independence in accordance with the Declaration on the Granting
of Independence to Colonial Countries and Peoples contained in General Assembly resolution 1514
(XV). … 5. Requests the administering Power to ensure that the Territory accedes to independence
as a single political and territorial unit and that no step is taken which would jeopardize the territorial
integrity of Equatorial Guinea”).
689 U.N. General Assembly, 22nd Session Question of Equatorial Guinea, U.N. Doc.
A/RES/2355(XXII) (19 Dec. 1967) (“4. Reiterates its request to the administering Power to ensure
that the Territory accedes to independence as a single political and territorial entity not later than
July 1968”).
225
(7) Gibraltar (General Assembly Resolution 2353 (XXII)690);
(8) Comoro Archipelago (General Assembly Resolutions 3161
(XXVIII)691, 3291 (XXIX)692);
(9) French Somaliland (Djibouti), (General Assembly Resolution 3480
(XXX)693)
(10) 26 Non-Self-Governing Territories, including Mauritius694
(General Assembly Resolutions 2232 (XXI)695 and 2357
690 U.N. General Assembly, 22nd Session, Question of Gibraltar, U.N. Doc. A/RES/2353(XXII)
(19 Dec. 1967) (“Considering that any colonial situation which partially or completely destroys the
national unity and territorial integrity of a country is incompatible with the purposes and principles
of the Charter of the United Nations, and specifically with paragraph 6 of General Assembly
resolution 1514 (XV)”).
691 U.N. General Assembly, 28th Session, Question of Comoro Archipelago, U.N. Doc.
A/RES/3161(XXVIII) (14 Dec. 1973), paras. 4 and 5 (“4. Affirms the unity and territorial integrity
of the Comoro Archipelago; 5. Requests the Government of France, as the administering Power, to
ensure that the unity and territorial integrity of the Comoro Archipelago are preserved”).
692 U.N. General Assembly, 29th Session, Question of Comoro Archipelago, U.N. Doc.
A/RES/3291(XXIX) (13 Dec. 1974), para. 3 (“Reaffirms the unity and territorial integrity of the
Comoro Archipelago”).
693 U.N. General Assembly, 30th Session Question of French Somaliland, U.N. Doc.
A/RES/3480(XXX) (11 Dec. 1975), paras. 5 and 6. (“5. Calls upon all States, particularly the
administering Power and the neighbouring States, to refrain from any action, unilateral or otherwise,
which might alter the independence and the territorial integrity of so-called French Somaliland
(Djibouti); 6. Calls upon all States to renounce forthwith any and all claims to the Territory and to
declare null and void any and all acts asserting such claims”).
694 The territories concerned included: American Samoa, Antigua, Bahamas, Bermuda, British
Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and Ellice Islands,
Grenada, Guam, Mauritius, Montserrat, New Hebrides, Niue, Pitcairn, St Helena, St Kitts-Nevis-
Anguilla, St Lucia, Tokelau Islands, Turks and Caicos Islands and the United States Virgin Islands.
695 U.N. General Assembly, 21st Session, Question of American Samoa, Antigua, Bahamas,
Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and
Ellice Islands, Grenada, Guam, Mauritius, 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/2232(XXI) (20 Dec.
1966) (“Deeply concerned at the information contained in the report of the Special Committee on
the continuation of policies which aim, among other things, at the disruption of the territorial
integrity of some of these Territories and at the creation by the administering powers of military
bases and installations in contravention of the relevant resolutions of the General Assembly, ... 4.
Reiterates its declaration that any attempt aimed at the partial or total disruption of the national unity
and territorial integrity of colonial Territories and the establishment of military bases and
installations in these Territories is incompatible with the purposes and principles of the Charter of
226
(XXII)696).
6.56 This practice, as Shaw notes, was indicative of the fact that:
the development of the right of self-determination clearly introduced
constraints upon the authority and capacity of the colonial power.
To permit the administering authority to alter the territorial
composition of the colonial entity upon independence would be to
undermine the concept of self-determination and would allow the
colonial power to affect the choice to be made by a process of
territorial severance… .697
6.57 Raic offers a similar conclusion:
In sum, the right of self-determination, which in this context has
been referred to as “a right to decolonisation” was applied to all
inhabitants of a colonial territory and not to minority groups or
segments of the population within that territory. … Therefore, as a
general rule, self-determination had to be granted to Trust
Territories and Non-Self-Governing Territories as a whole.698
the United Nations and of General Assembly resolution 1514 (XV)”.) (underlining added) (Dossier
No. 171).
696 U.N. General Assembly, 22nd Session, Question of American Samoa, Antigua, Bahamas,
Bermuda, British Virgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and
Ellice Islands, Grenada, Guam, Mauritius, Montserrat, New Hebrides, Niue, Pitcairn, St. Helena,
St. Kitts-Nevis-Anguilla, St. Lucia, St. Vincent, Seychelles, Solomon Islands, Swaziland, Tokelau
Islands, Turks and Caicos Islands and the United States Virgin Islands, U.N. Doc.
A/RES/2357(XXII) (19 Dec. 1967) (“Deeply concerned at the information contained in the report
of the Special Committee on the continuation of policies which aim, among other things, at the
disruption of the territorial integrity of some of these Territories and at the creation by the
administering powers of military bases and installations in contravention of the relevant General
Assembly resolutions, ... 4. Reiterates its declaration that any attempt aimed at the partial or total
disruption of the national unity and territorial integrity of colonial Territories and the establishment
of military bases and installations in these Territories is incompatible with the purposes and
principles of the Charter of the United Nations and of General Assembly resolution 1514 (XV)”.)
(underlining added) (Dossier No. 198).
697 Shaw, Title to Territory in Africa (13 Mar. 1986), pp. 131-132 (Annex 135).
698 Raic, Statehood (2002), p. 209 (underlining added; italics in the original) (Annex 145). See also
Stefan Oeter, “Self-Determination” in THE CHARTER OF THE UNITED NATIONS: A COMMENTARY
(Bruno Simma et al. eds., 2012), p. 325 (“‘people’ in the sense of self-determination [in the case of
non-self-governing territories] is the autochthonous population of the non-self-governing territory
227
6.58 As this suggests, a fundamental element of decolonisation is that the new
State is formed from the totality of the previous Non-Self-Governing Territory.699
The only exceptions to this principle have been in circumstances in which
maintaining the integrity of the unit proved impossible as a consequence of internal
disturbances,700 or pursuant to an expression of free consent on the part of the
people through the medium of a plebiscite. As Franck noted, “where in the process
of becoming independent there was an open question as to whether the territorial
integrity of the colony should be altered in favour of a union or secession, it had
become virtually mandatory for the UN to be present during the elections or
plebiscite in which that issue was to be determined.”701
6.59 By 1968, for example, U.N.-supervised plebiscites had been routinely used
to ascertain the wishes of a people in case of both the merger or division of the
territory of former colonies. In case of the former, such plebiscites were held prior
to the merger of British Togoland with Ghana in 1956, the merger of Northern
that has been grouped together to a polity by carving out a certain territory in colonial times in order
to form a distinct political entity.”) (Annex 160).
699 There is a certain connection here to the principle of uti possidetis which, as a chamber of the
Court noted in the Burkina Faso and Mali Frontier Dispute is “logically connected with the
phenomenon of the obtaining of independence”. Case Concerning the Frontier Dispute (Burkina
Faso/ Republic of Mali, Judgment, I.C.J. Reports 1986, p. 565, para. 20. “The essence of the
principle”, the Court noted, “lies in its primary aim of securing respect for the territorial boundaries
at the moment when independence is achieved.” Case Concerning the Frontier Dispute (Burkina
Faso/ Republic of Mali, Judgment, I.C.J. Reports 1986, p. 566, para. 23. As seems clear from this,
however, it is a principle concerned with preserving the status quo after independence, and has a
role distinct from that of the principle of territorial integrity, insofar as the latter was applied to selfdetermination
units prior to independence.
700 See, e.g., in relation to Ruanda-Urundi. See U.N. General Assembly, 16th Session, The future of
Ruanda-Urundi, U.N. Doc. A/RES/1746(XVI) (27 June 1962). This, however, was only agreed on
the grounds that “efforts to maintain the unity of Ruanda-Urundi did not succeed”. It is to be noted
that all prior General Assembly resolutions had emphasised that Ruanda-Urundi should accede to
independence “as a single, united and composite State”. See, e.g., U.N. General Assembly, 15th
Session, The Future of Ruanda-Urundi, U.N. Doc. A/RES/1605(XV) (21 Apr. 1961).
701 T. Franck & P. Hoffman, “The Right to Self-Determination in Very Small Places”, N.Y.U. J. Int’l
L. & Pol., Vol. 8 (1976), p. 336 (Annex 109).
228
Cameroons with Nigeria in 1959 and 1961, the merger of Southern Cameroons with
Cameroons in 1961, and the free association between Western Samoa and New
Zealand in 1962.
6.60 In case of the division of territory plebiscites were held in: the Netherlands
Indies (Dutch NSGT), British Cameroons (a Trust Territory administered by the
U.K.)702 and St. Kitts-Nevis-Anguilla (originally part of the U.K. Non-Self-
Governing Territory of the Leeward Islands). After that date, plebiscites were also
used in relation to Gilbert and Ellice Islands Colony, and the Trust Territory of the
Pacific Islands.
6.61 In sum, it was uniformly accepted in practice that decolonisation should
take place in accordance with the right of self-determination. That required the full
and free consent of the population of a Non-Self-Governing territory in the
determination of its political future and, as a necessary corollary, prohibited all
measures that would subvert that process including the excision or detachment of
territory prior to independence.
V. The decolonisation of Mauritius was not lawfully completed in 1968
A. THE UNIT OF SELF-DETERMINATION WAS THE ENTIRE TERRITORY OF
MAURITIUS
6.62 As shown above, the entity which enjoyed the right to decolonisation in
international law and U.N. practice – the unit of self-determination – was the whole
702 See U.N. General Assembly, 13th Session, The future of the Trust Territory of the Cameroons
under United Kingdom administration, U.N. Doc. A/RES/1350(XIII) (13 Mar. 1959); U.N. General
Assembly, 14th Session, 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) (12 Dec. 1959).
229
of the territorial unit concerned. The “self” of self-determination was understood in
largely territorial terms, so that the right inhered in a colonial people within the
framework of the existing territorial unit. The principle of territorial integrity for
the non-self-governing territory was (and continues to be) paramount. As General
Assembly Resolution 1514 (XV) affirms in paragraph 6:
Any attempt aimed at the partial or total disruption of the national
unity and the territorial integrity of a country is incompatible with
the purposes and principles of the Charter of the United Nations.
6.63 Thus, in the case of Mauritius, the unit of self-determination – in relation to
which the administering power owed the duty to accord the right to selfdetermination
– was the totality of the territory of Mauritius before independence.
That territory included the Chagos Archipelago.
6.64 It is plain from the law and facts set out above Chapters 2-4 that the Chagos
Archipelago was an integral part of the territory of Mauritius. As there described,
the legal position of the former colony, and the cultural, social and economic links
between the mainland and the Archipelago, provide clear evidence of the fact that
the Archipelago was – and was always treated by the administering power as – an
integral part of the territory of Mauritius.
6.65 This was recognised by the two international judges who expressed a view
on the issue in the UNCLOS proceedings:
The United Kingdom emphasized that the Chagos Archipelago was
a dependency of Mauritius, only attached to the latter for
administrative purposes. The intensive discussion of this point – the
fine points of colonial constitutional law – shows that the notion of
dependency was used to describe situations which differed
significantly. In this case it seems to be of relevance that the
extension of the European Convention on Human Rights was
230
interpreted to cover the Chagos Archipelago although the
notification only referred to Mauritius. Also the Mauritius
(Constitution) Order of 1964 by definition included the
dependencies of Mauritius (section 90). This indicates that the
Chagos Archipelago was more closely linked to Mauritius than is
conceded by the United Kingdom.
For that reason, it is not appropriate to consider the Archipelago as
an entity, somewhat on its own, which the United Kingdom could
decide on without taking into account the views and interests of
Mauritius. The way the detachment was executed in reality proves
this view to be correct. In particular, the instructions given to the
Governor of Mauritius on 6 October 1965 are a clear indication that
the United Kingdom considered consent by the cabinet of Mauritius
to be essential.703
6.66 As demonstrated below, this fact was also recognised by the United Nations,
both at the time and subsequently.
B. THE UNITED NATIONS RECOGNISED THE ENTIRE TERRITORY OF MAURITIUS
AS THE UNIT OF SELF-DETERMINATION
6.67 As summarised in Part II above, it was through the policy of the General
Assembly and its Committee of 24 that the right of self-determination was
developed and implemented. The General Assembly acquired a recognised
competence to decide the status of a territory with regard to the right, and to decide
how the right should be exercised.704 In the Western Sahara case, the Court
703 The Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Dissenting and
Concurring Opinion of Judge James Kateka and Judge Rüdiger Wolfrum, UNCLOS Annex VII
Tribunal (18 Mar. 2015), paras. 68-69 (emphasis added) (Dossier Number 409).
704 See Andrés Rigo Sureda, The Evolution of the right of self-determination: a study of United
Nations Practice (1973), pp. 65-82 and passim) (Annex 99). See also Oscar Schachter, “The
Relation of Law, Politics and Action in the United Nations”, Recueil des Cours, Vol. 109 (1963),
p.187. (“… the right of the United Nations General Assembly to determine which territories fall
within the scope of Article 73 has received such continuing support that it may now be regarded as
fairly well settled. … [W]hen the practice of states in the United Nations has served by general
agreement to vest in the organs the competence to deal definitively with certain questions, then the
decisions of the organs in regard to those questions acquire an authoritative juridical status even
231
recognised and accepted the role of the General Assembly in overseeing the
exercise of the right to self-determination and in taking decisions regarding the way
in which the right is implemented.705 The Court affirmed that “the right of selfdetermination
leaves the General Assembly a measure of discretion with respect to
the forms and procedures by which the right is to be realised.”706
6.68 In respect of Mauritius, the General Assembly recognised the undivided
territory of Mauritius as the unit of self-determination in its Resolution 2066 (XX)
on the Question of Mauritius. In that resolution, the Assembly noted:
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
[Resolution 1514 (XV)], and in particular paragraph 6 thereof.
6.69 In fact, by 16 December 1965, the date on which Resolution 2066 (XX) on
the Question of Mauritius was finally adopted by the General Assembly, the Chagos
Archipelago had already been excised from the territory of Mauritius. The
administering power had, in effect, acted to present the United Nations with a fait
accompli, and internal documents reveal that this was its intention.707 General
Assembly Resolution 2066 (XX) nevertheless invited the U.K. to “take effective
measures with a view to the immediate and full implementation of resolution 1514
though these decisions had not been taken by unanimous decision or ‘general approval’.”) (Annex
20).
705 Western Sahara (Advisory Opinion), pp. 35-37.
706 Ibid., p. 36, para. 71.
707 See paras. 3.18-3.20; 3.91 and 4.27.
232
(XV)” and “to take no action which would dismember the Territory of Mauritius
and violate its territorial integrity”.708
6.70 The General Assembly repeated the requirement to maintain the territorial
integrity of non-self-governing territories in its Resolutions 2232 (XXI) and 2357
(XXII); Mauritius was expressly included in the list of the territories to which both
of the resolutions applied. Each resolution expressed deep concern at:
the continuation of policies which aim, among other things, at the
disruption of the territorial integrity of some of these Territories and
at the creation by the administering Powers of military bases and
installations in contravention of the relevant resolutions of the
General Assembly.709
6.71 It is clear from the language of those resolutions – and from the serious
concerns expressed by Member States in the Committee of 24 at the time of
detachment710 – that the firm view of the United Nations was that the Chagos
Archipelago was an integral part of Mauritius for the purposes of selfdetermination,
and that no part of the territory of Mauritius could be detached at
will.
6.72 The General Assembly resolutions cited above – in the general terms of
paragraph 6 of Resolution 1514 (XV), and in the specific application of the right of
self-determination to Mauritius in later resolutions – must be regarded as
confirming the right of Mauritius to come to independence with its territory intact:
708 U.N. General Assembly, 20th Session, Question of Mauritius, U.N. Doc. A/RES/2066(XX) (16
Dec. 1965) (hereinafter “Question of Mauritius (16 Dec. 1965)”), paras. 2-4 (Dossier No. 146).
709 See paras. 4.34-4.35 and 4.39.
710 See paras. 2.42; 4.32; 4.38 and 4.40.
233
that is, with the whole of its territory, including the Chagos Archipelago, and the
whole of its population, including all the residents of the Archipelago.
C. THE DECISION OF THE ADMINISTERING POWER TO DISMEMBER MAURITIUS
PRIOR TO INDEPENDENCE HAD NO EFFECT ON THE SELF-DETERMINATION
UNIT
6.73 As described in Chapter 3 above, however, three years before Mauritius
became independent the Chagos Archipelago was detached from the territory of
Mauritius. That detachment has been maintained until the present day, meaning that
Mauritius came to independence with part of its territory excised, and has never in
its history as an independent nation been permitted to exercise effective control
over that territory.
6.74 This excision of part of Mauritius’ territory three years before it gained
independence raises a temporal question: under the law of self-determination, could
changes by the administering power in contemplation of independence have any
effect on the self-determination unit?
6.75 It is clear from paragraph 6 of Resolution 1514 (XV) that they could not:
actions of the administering power before independence were not permitted to
override the territorial integrity of the entity concerned. Professor Shaw has
commented on the temporal issue in relation to the Chagos Archipelago: “As a rule,
the need to maintain the colonial unit during the period leading up to independence
is clearly a crucial element in the viability of the concept of self-determination”.711
711 Shaw, Title to Territory in Africa (13 Mar. 1986), p. 134 (Annex 135).
234
The administering power itself interpreted paragraph 6 in this way. In 1964 it
described that paragraph as:
clearly aimed at protecting colonial territories or countries which
have recently become independent against attempts to divide them
or to encroach on their territorial integrity, at a time when they are
least able to defend themselves, with all the stresses and strains of
approaching or newly achieved independence.712
6.76 The history of the mandated territory of South-West Africa presents an
analogous situation. The General Assembly, from the establishment of the United
Nations, had the objective of maintaining the territorial integrity of South-West
Africa and preventing South Africa from annexing or dividing it. General Assembly
resolutions over the decades showed the concern of the United Nations that the unit
of self-determination was the whole territory and that, prior to the independence of
Namibia, territorial integrity was to be maintained, against all attempts by South
Africa to dismember it.713
6.77 The excision of a part of a territory before independence is impermissible
because it violates the right to self-determination of the people of that territory. In
its Advisory Opinion on the Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, the Court found that the route taken by the Wall
in the occupied Palestinian territory contributed to the departure of some of the
population and presented a risk to the demographic composition of the area. In view
of that, the Court found that the construction of the Wall, with other measures taken,
“severely impedes the exercise by the Palestinian people of its right to self-
712 U.N. General Assembly, Special Committee on Decolonization, 284th Meeting, U.N. Doc.
A/AC.109/PV.284 (30 Sept. 1964), p. 22 (remarks of the representative of the United Kingdom)
(underlining added).
713 A brief account is given in Shaw, Title to Territory in Africa (13 Mar. 1986), pp. 105-110 (Annex
135).
235
determination, and is therefore a breach of Israel’s obligation to respect that
right.”714
6.78 Accordingly, the decision to excise the Chagos Archipelago from the
territory of Mauritius three years before independence can have no effect on the
self-determination unit, which remained at all times the entire territory of Mauritius.
D. THE RIGHT OF SELF-DETERMINATION HAD TO BE EXERCISED ACCORDING TO
THE FREELY-EXPRESSED WILL OF THE PEOPLE OF THE TERRITORY
CONCERNED
6.79 The need for the right of self-determination to be exercised by the freelyexpressed
will of the people is underlined in General Assembly Resolution 1514
(XV), which provides in paragraph 5 that:
Immediate steps shall be taken, in Trust and Non-Self-Governing
Territories or all other territories which have not yet attained
independence, to transfer all powers to the peoples of those
territories, without any conditions or reservations, in accordance
with their freely expressed will and desire… .
6.80 The Court explained in the Western Sahara Advisory Opinion that this
paragraph confirms “that the application of the right of self-determination requires
a free and genuine expression of the will of the peoples concerned.”715 The same
principle is evident in General Assembly Resolution 2625 (XXV) (the “Friendly
Relations Declaration”), which provides in part that:
Every State has the duty to promote, through joint and separate
action, realization of the principle of equal rights and selfdetermination
of peoples in accordance with the provisions of the
714 Construction of a Wall (Advisory Opinion), p. 184, para. 122.
715 Western Sahara (Advisory Opinion), p. 32, para. 55.
236
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:
…
(b) To bring a speedy end to colonialism, having due regard to the
freely expressed will of the peoples concerned.716
6.81 The Court has gone so far as to say that the principle of self-determination
is “defined as the need to pay regard to the freely expressed will of peoples”.717
6.82 Accordingly, the requirements of self-determination could only be met in
Mauritius’ case by ensuring that if the territorial integrity of the former colony was
not to be preserved, that would be only with the freely expressed consent of the
people of Mauritius as a whole – including the inhabitants of the Chagos
Archipelago. As Raic says, the
United Nations insistence on the preservation of the territorial
integrity of a dependent or colonial territory did not form a bar to
partition … only if that was the clear wish of the majority of all
inhabitants of the territory in question.718
6.83 It follows from the need to ascertain the wishes of the people concerned
that, if an administering power had in mind a particular proposal as to the structure
of the territory, that proposal had to be clearly put to the people, in circumstances
which allow them to make an informed and meaningful choice about the future of
the territory. The administering power had an obligation positively to enable the
people of Mauritius to exercise their right of self-determination through the
716 Friendly Relations Declaration (24 Oct. 1970) (emphasis added).
717 Western Sahara (Advisory Opinion), p. 33, para. 59 (emphasis added).
718 Raic, Statehood (2002), p. 209 (Annex 145). Some exceptions are admitted.
237
mechanism of a free expression of their views on the future of their territory, and
then to respect the views expressed.
6.84 It is important to recall in this context that the dismemberment of Mauritius
did not simply involve the division of a colony where the newly-divided units both
obtained independence – itself a serious matter requiring the consent of the people
concerned. Here, the excision of the Chagos Archipelago led to the creation of a
new colony, the so-called “British Indian Ocean Territory”, from which the
population was expelled, and which has been maintained as a colony to the present
day. The two judges who expressed a view on the issue in the UNCLOS
proceedings considered it essential in this context to “distinguish between cases
where the detached parts of a colony became independent and cases where a new
colony was established.”719
6.85 The decision on which the people of Mauritius would have had to be
consulted was not, therefore, the question of whether the colony of Mauritius
should be divided so as to gain independence as two separate territorial units.
Rather, the question was whether the colony of Mauritius should be divided so that
only one part would gain independence, with the other part becoming a new colony
of the existing administering power. It would also have been essential to consult
the people of Mauritius – including the inhabitants of the Chagos Archipelago – on
the proposal that the new colony would be cleared of its population and that they,
or any other Mauritians, would from that point on not be permitted to live in, or
even enter, the Archipelago.
719 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), para. 72 (Dossier No. 409).
238
6.86 However, as discussed below, the people of Mauritius were never given the
required opportunity to express their wishes as to the future of their nation.
E. THE DETACHMENT OF THE CHAGOS ARCHIPELAGO WAS CARRIED OUT IN
SECRET WITHOUT ANY ATTEMPT TO ASCERTAIN THE VIEWS OF THE PEOPLE
OF MAURITIUS
6.87 Contrary to the clear and settled legal framework summarised above,
Mauritius was dismembered in 1965 by legal instruments promulgated by the
administering power, to give effect to a clandestine agreement which had already
been reached between the administering power and one of its military allies.
6.88 The development of this plan, and the manner in which the detachment was
carried out, have been considered in detail in Chapter 3 above. The
contemporaneous records reviewed in that chapter make it clear that the detachment
had been decided in advance between the administering power and its ally. The
intention was that Mauritian Ministers would only “at a suitable time be informed
in general terms about proposed detachment of islands.”720
6.89 As shown in Chapter 3, the detachment was going to be carried out by the
administering power in any event. There was never any intention to consult the
people of Mauritius: quite the reverse, as the plan was expressly to be kept from
them. The records demonstrate that, in so far as there were any discussions of
“consultation” with the “Mauritius Government”, the concern was merely
presentational, motivated by the desire to minimise damage to relations with
Mauritius when it achieved independence, and to avoid criticism both domestically
720 “British Indian Ocean Territory 1964-1968: Chronological Summary” (1964-1968), item no. 11
(Annex 23).
239
and at the United Nations. A note prepared by the Foreign Office in 1982 records
that:
the consent of Mauritian Ministers to the detachment of the Chagos
Archipelago in 1965 was sought for essentially political reasons, and
at the insistence of the then Colonial Secretary, Mr Greenwood.
Constitutionally, it was open to Britain, the colonial power, to
detach the islands by Order in Council without that consent.721
6.90 At no time was the population of Mauritius as a whole consulted on the
proposal that the Chagos Archipelago be detached from the territory of Mauritius
and turned into a new colony, with its population removed. Such discussions as
took place with the “representatives” of Mauritius at the 1965 Constitutional
Conference were held only after a firm decision had been taken to dismember
Mauritius. The detachment was going to be carried out regardless of any views
expressed by those “representatives” (let alone the Mauritian people as a whole).
Indeed, the “representatives” were told by the administering power that the
detachment would occur with or without their “consent” and that the only question
which remained open was whether they would “return to Mauritius either with
Independence or without it”.722 As Judges Kateka and Wolfrum put it in the
UNCLOS case, “[t]he detachment of the Chagos Archipelago was already decided
whether Mauritius gave its consent or not.”723
721 Note from M. Walawalkar of the African Section Research Department to Mr Campbell of the
East African Department - Diego Garcia: Research on Mauritian Government’s Claim to
Sovereignty, FCO 31/3437 (8 Oct. 1982), para. 9 (Annex 124). See also U.S. Defence Interests in
the Indian Ocean (23 Apr. 1964) (Annex 26); Telegram from U.K. Secretary of State for the
Colonies to J. Rennie, Governor of Mauritius, No. PAC 93/892/01 (10 Aug. 1965), para. 4 (Annex
44).
722 U.K. Foreign Office, Record of a Conversation between the Prime Minister and the Premier of
Mauritius, Sir Seewoosagur Ramgoolam, at No. 10, Downing Street, at 10 A.M. on Thursday,
September 23, 1965, FO 371/184528 (23 Sept. 1965), p. 3 (Annex 60). See also para. 3.72 above.
723 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), para. 76 (Dossier No. 409).
240
6.91 There was no attempt to secure information on the wishes of the people of
Mauritius as a whole. This must have been considered by the administering power,
however, not least since it had to respond to a query from Canada about the matter.
The Canadian Department of External Affairs had asked whether the U.K.
envisaged a referendum on the issue of detachment:
The Department of External Affairs would be grateful for more
information about how consultation with Mauritius and the
Seychelles would be conducted. Would the Legislative Assembly of
Mauritius and the Legislative Council of the Seychelles be consulted
and if so were the inhabitants of the islands ear-marked for
detachment directly represented in those bodies? Did we
contemplate some method of direct consultation with the inhabitants
of the islands in question? Satisfactory answers to these questions
might well make it easier for Canada to help us at the United
Nations… .724
6.92 In its reply to the British High Commission on 2 August 1965, the
Commonwealth Relations Office mentioned that as yet the Governor of Mauritius
and the Acting Governor of Seychelles had been instructed to consult only the
Council of Ministers and the Executive Council respectively, and that those
consultations were on a strictly confidential basis.725 As the records show, the
administering power took this approach because it expected that the excision would
attract the criticism of the United Nations:
We count on United States support in the United Nations and
elsewhere to defend this project against criticism with which we
may be faced once it becomes public. We hope to keep it
confidential for the moment, at least until the agreement of the
724 Letter from E. J. Emery of the British High Commission in Canada to J. S. Champion of the U.K.
Ministry of Defence, Commonwealth Relations Office (22 July 1965), para. 3 (Annex 39).
725 Letter from J. S. Champion of the U.K. Ministry of Defence, Commonwealth Relations Office,
to E.J. Emery of the British High Commission in Canada (2 Aug. 1965) (Annex 43).
241
Seychelles and Mauritius Governments has been formally
confirmed.726
6.93 In the case of Mauritius, although the administering power went on to claim
that there was a “final general election in which all the people were able freely to
express their views before independence was achieved”,727 in that election the
people were, self-evidently, not able to express a view on the issue of detachment,
which had already occurred.
6.94 The contemporary records make it clear, not only that there was no attempt
to ascertain the views of the people of Mauritius, but that this was a deliberate
decision, so as to present the United Nations and its members with a fait accompli.
The people of Mauritius were not consulted precisely because they were not
supposed to know about the detachment until it was too late. As noted above, the
detachment had been decided on well before it took place, foreclosing any
opportunity for those affected to express their views on the matter. A thorough
review of the relevant materials led Judges Kateka and Wolfrum to conclude in the
UNCLOS proceedings that:
The 1965 excision of the Chagos Archipelago from Mauritius shows
a complete disregard for the territorial integrity of Mauritius by the
726 U.K. Foreign Office, Secretary of State’s Visit to Washington 10-11 October 1965: Defence
Facilities in the Indian Ocean (7 Oct. 1965), para. 3 (Annex 66). See also U.K. Foreign Office and
U.K. Ministry of Defence, Brief for the Secretary of State at the D.O.P. Meeting on Tuesday, 31
August: Defence Facilities in the Indian Ocean, No. FO 371/184527 (31 Aug. 1965), para. 3 (“Even
if Mauritius does not opt for full independence at this conference – and it seems unlikely that she
will do so – it is unlikely that we shall be able to keep consultations with Mauritius confidential for
much longer. Widespread public discussion of the proposal before agreement had been reached
would make the achievement of a successful conclusion much more difficult.”) (Annex 50).
727 U.N. General Assembly, 22nd Session, 1643rd Plenary Meeting, U.N. Doc. A/PV.1643 (24 Apr.
1968), para. 87 (Dossier No. 264).
242
United Kingdom which was the colonial power. British and
American defence interests were put above Mauritius’ rights.728
F. THE “AGREEMENT” OF THE COUNCIL OF MINISTERS OF MAURITIUS WAS NOT
CAPABLE OF MEETING THE REQUIREMENTS OF SELF-DETERMINATION
6.95 Before detaching the Chagos Archipelago from Mauritius, the
administering power sought to obtain the approval of the “Mauritian Government”,
during and following the Constitutional Conference which took place in London in
1965. The “agreement” of some of the Mauritian delegates at the final
Constitutional Conference was given “in principle” on 23 September 1965, subject
to consultation with the Council of Ministers.729 On 5 November 1965, Governor
Rennie informed the Colonial Secretary that the Mauritius “Council of Ministers
today confirmed agreement to the detachment of Chagos Archipelago” on the
conditions set out at paragraph 22 of the Record of the Meeting of 23 September
1965.730
6.96 The administering power sought to argue, at the time and subsequently, that
the representatives of Mauritius gave their “consent” to the detachment, and that
this satisfied the requirements of self-determination. As summarised above and in
Chapter 3, such “consultation” as took place was purely presentational: the decision
to detach the Archipelago had already been taken and was not open to discussion.
728 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), para. 91 (Dossier No. 409).
729 It should be noted that, as set out in Chapters 2 and 3 above, at that time the colonial authorities
continued to exercise far-reaching control over Mauritian internal affairs, including through the fact
that the colonial Governor presided over the Council of Ministers and retained far-reaching powers.
Accordingly, the “Council of Ministers” which “agreed” to the detachment at its meeting on 5
November 1965 was part of a political structure which remained fundamentally controlled by the
administering power.
730 Telegram from the Governor of Mauritius to the Secretary of State for the Colonies, No. 247, FO
371/184529 (5 Nov. 1965), para. 1 (Annex 71). For a summary of the Record of the Meeting of 23
September 1965, see para. 3.90 above.
243
As the records make clear, the reason why such “consultation” took place was
precisely in order to allow the administering power to advance the spurious claim
– to the United Nations, Member States and the domestic public – that Mauritius
had consented to its own dismemberment. That claim is fundamentally flawed for
a number of reasons:
(1) As discussed in the previous section, the right of self-determination
could only be exercised in accordance with the freely-expressed will
of the entire people of the territory. In this case, that meant that the
people of Mauritius as a whole, including the inhabitants of the
Chagos Archipelago, would have had to be given a free opportunity
to express their views on the future of the territory, including – if it
was to be pursued by the administering power – the proposal that
the territory be dismembered in order to turn the Chagos
Archipelago into a new colony from which the inhabitants would be
removed.
(2) The forced “acquiescence” of the Council of Ministers did not fulfil
the requirements of self-determination. There was no genuine
consultation: the detachment of the Chagos Archipelago was a
predetermined result and the only question open for discussion was
whether independence would be granted (if the Ministers acquiesced
in the detachment) or withheld (if they opposed it). Thus, the socalled
“consent” which was given was extracted in circumstances of
duress and on conditions that vitiated any notion that it was freely
given. It could by no stretch of the imagination be considered the
free expression of the will of the people of Mauritius.
6.97 The first of these points has been examined in the previous Sections above;
this Section examines the second.
244
1. The 1965 Constitutional Conference
6.98 The events before and during the Conference are considered in detail in
Chapter 3 above. Less than two weeks before the Conference, the U.K. Chief of the
Defence Staff recognised that Mr Anthony Greenwood:
had not been able to persuade the Mauritian Ministers to agree to the
detachment from Mauritius of Diego Garcia and the other islands of
the Chagos Archipelago… in advance of the Mauritius
Constitutional Conference.731
6.99 During the Conference, Mauritian Ministers continued to oppose the
detachment of the Chagos Archipelago.732 A Minute prepared for the British Prime
Minister on 22 September 1965 records that when proposals were discussed with
Ministers in Mauritius, and more recently in London, their reaction was that “they
cannot contemplate detachment”.733
6.100 The records of the U.K. Government prepared before and after the meetings
with the Mauritian Ministers indicate the circumstances in which the much-vaunted
“agreement” was finally elicited. A note to the U.K. Prime Minister in preparation
for his meeting on 23 September 1965 with the Mauritius Premier states:
Sir Seewoosagur Ramgoolam is coming to see you at 10.00
tomorrow morning. The object is to frighten him with hope: hope
that he might get independence; Fright lest he might not unless he is
sensible about the detachment of the Chagos Archipelago.734
731 Mauritius Constitutional Conference (26 Aug. 1965), Annex A, p. 5 (Annex 47).
732 See Chapter 3, Part IV. C and Part V.
733 Note for the Prime Minister’s Meeting with Sir Seewoosagur Ramgoolam, Premier of Mauritius
(22 Sept. 1965), p. 3 (Annex 59).
734 See para. 3.69 above.
245
6.101 At the meeting, the U.K. Prime Minister is recorded as saying that the
“Premier and his colleagues could return to Mauritius either with Independence or
without it.”735 The U.K. Government had thus made clear the link between the
achievement of independence and Mauritian consent to the excision of the Chagos
Archipelago. It was also made clear that the excision could take place even without
consent: the record of the meeting between the U.K. Prime Minister and the
Mauritian Premier recorded the former as saying that “Diego Garcia could either
be detached by Order in Council or with the agreement of the Premier and his
colleagues.”736
6.102 In the UNCLOS proceedings, Judges Kateka and Wolfrum, having
carefully considered the nature and context of the meeting between Prime Minister
Wilson and Premier Ramgoolam, came to the following conclusion:
It was further pointed out—correctly—that Mauritius had no choice.
The detachment of the Chagos Archipelago was already decided
whether Mauritius gave its consent or not.
A look at the discussion between Prime Minister Harold Wilson and
Premier Sir Seewoosagur Ramgoolam suggests that the [sic]
Wilson’s threat that Ramgoolam could return home without
independence amounts to duress. The Private Secretary of Wilson
used the language of “frighten[ing]” the Premier “with hope”. The
Colonial Secretary equally resorted to the language of intimidation.
Furthermore, Mauritius was a colony of the United Kingdom when
the 1965 agreement was reached. The Council of Ministers of
Mauritius was presided over by the British Governor who could
735 U.K. Foreign Office, Record of a Conversation between the Prime Minister and the Premier of
Mauritius, Sir Seewoosagur Ramgoolam, at No. 10, Downing Street, at 10 A.M. on Thursday,
September 23, 1965, FO 371/184528 (23 Sept. 1965), p. 3 (Annex 60). See also para. 3.72.
736 Ibid. The same message was repeated in a meeting with the U.K. Colonial Secretary on 23
September 1965. See para. 3.70 above.
246
nominate some of the members of the Council. Thus there was a
clear situation of inequality between the two sides.737
6.103 The inextricable link between the excision of the Chagos Archipelago and
the grant of independence to Mauritius is clear from the contemporaneous records,
and was so understood by the Mauritian side.738 The stark question which faced the
Ministers was whether they would return to Mauritius with independence (if they
acquiesced in the excision) or without it (if they opposed it). It was made brutally
clear that the Archipelago was lost to Mauritius, and that if they withheld their
“consent” to the excision then independence would be lost as well. There was no
option of independence for the full territory.
6.104 In these circumstances, the “choice” which faced the Ministers was in fact
not a choice at all. And in placing them in that situation, the administering power
acted in disregard of the clear requirements of self-determination (including the
prohibition, in paragraph 5 of Resolution 1514 (XV), on imposing “conditions or
reservations” on the transfer of power to the non-self-governing territory in
accordance with the will of its people). There was no free expression of the will of
the people of Mauritius. Nor, as outlined below, did the administering power’s
violation of the fundamental elements of the right of self-determination pass muster
with the United Nations or the international community.
2. The reaction of the United Nations
6.105 The forced acquiescence of the Council of Ministers, obtained as it was
under duress and relating to a breach of fundamental principles of law, has never
737 The Chagos Marine Protected Area Arbitration, Dissenting and Concurring Opinion (18 Mar.
2015), paras. 76-77 (Dossier No. 409).
738 See Chapter 3, Part VI.
247
been regarded by the General Assembly as validating the unlawful dismemberment
of Mauritius.
6.106 While the General Assembly has on occasion approved the division of a
territory before independence in accordance with the freely expressed will of its
inhabitants,739 in respect of Mauritius the Assembly did not regard the “agreement”
of the representatives of Mauritius, obtained in the circumstances outlined above,
as sufficient to constitute the freely expressed will of the people as to the form in
which their territory would gain its independence. That “agreement” clearly failed
to satisfy the United Nations or the international community, at the time or since.
The General Assembly resolutions noting with concern the dismemberment of
Mauritius were adopted after the excision had taken place with the “agreement” of
Mauritius.
6.107 Mauritius itself has made repeatedly clear its rejection of any so-called
“agreement”. It has long protested its dismemberment by the administering power,
right up to the present day. It has never wavered in its attempt to vindicate its rights
and correct the international wrong that was perpetrated on it, by diplomatic,
political and legal means. It has been supported in these efforts by the General
Assembly, through its various resolutions condemning the detachment of the
Chagos Archipelago, and by the vast majority of States, as reflected in the
739 For example, in the case of the non-self-governing territory of the Gilbert and Ellice Islands,
there was first an administrative division of the colonial territory and then, as a result of the express
wishes of the inhabitants of the Ellice Islands, a partition of the colony; an independent State,
Tuvalu, emerged. The Assembly had approved both the administrative division and the later
partition: it was clear to the Assembly that the inhabitants had freely agreed. There was a U.N.
mission to the Ellice Islands – at the request of the administering power – before independence. See
U.N. General Assembly, 29th Session, Question of the Gilbert and Ellice Islands, U.N. Doc.
A/RES/3288(XXIX) (13 Dec. 1974). The conduct of the administering power in inviting the U.N.
mission and ensuring that the wishes of the inhabitants of the Ellice Islands were properly
ascertained must be contrasted with the conduct of the administering power with regard to Mauritius
and the Chagos Archipelago.
248
resolutions of the Organisation of African Unity/African Union, Non-Aligned
Movement, Group of 77 and China, African, Caribbean and Pacific Group of States,
and Africa-South America Summit.
6.108 It is that near universal support which ultimately culminated in the decisive
vote of the General Assembly to refer the matter to this Court for advice. As the
representative of India stated during the debate on Resolution 71/292:
the process of decolonisation that began with our own independence
is still unfinished, seven decades later. In fact, in 2011 the Assembly
proclaimed the decade 2011-2020 to be the third International
Decade for the Eradication of Colonialism. We would like to see
that long-drawn-out process completed.740
VI. Conclusion
6.109 As this chapter has demonstrated, the right of self-determination was firmly
established in international law by the time of Mauritius’ independence, including
through several decades of consistent practice of the United Nations in its role of
supervising the decolonisation process. The requirements of self-determination
provide the fundamental legal structure by which the decolonisation process is
carried out. Central to the right of self-determination is the requirement that the
future of a Non-Self-Governing Territory be determined by the free expression of
the will of the entire people of the territory.
6.110 Such an expression of will was lacking in respect of the excision of the
Chagos Archipelago from Mauritius. On the contrary, the decision to excise the
740 U.N. General Assembly, 71st Session, 88th Plenary Meeting, Agenda item 87, 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/71/PV.88 (22 June 2017), p. 14
(Dossier No. 6).
249
Archipelago was taken without consulting the Mauritian people, including those
who were to lose the homes in the Archipelago where they and their families had
lived for generations. The forced and reluctant acquiescence, at the Constitutional
Conference in 1965, of the Mauritian representatives – who were compelled to
accept the excision only when it was starkly presented to them as a foregone
conclusion and as the inescapable price of independence – can be no substitute for
a free expression of the will of the people.741
6.111 Accordingly, the process of decolonisation of Mauritius was not lawfully
completed when it gained its independence in 1968, given that it reached
independence after having been dismembered in 1965. As counsel for Mauritius
put it in the UNCLOS proceedings, “[w]hen Mauritius became an independent
state, the sovereignty that the UK continued to exercise over territory unlawfully
detached became untenable. That breach had a continuing character”. Accordingly,
the state of affairs from 1968 to the present day is “an unlawful situation that denies
the right of Mauritius to self-determination and to its territorial integrity.”742
6.112 For these reasons, Mauritius respectfully submits that the answer to the first
question put to the Court by the General Assembly is clear and does not permit of
any ambiguity in the response that should be given by the Court: the process of
741 Counsel posed the question as follows: “does an agreement given to a measure that was not
proposed but imposed, and required in return for independence to which Mauritius was already
entitled, constitute a genuine expression of the will of the people? Did the UK comply with its
obligations under the law of self-determination when it obtained the agreement in such a way?”
Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Hearing on Jurisdiction
and the Merits, UNCLOS Annex VII Tribunal, Transcript (Day 3) (24 Apr. 2014), pp. 249:23-250:3
(Crawford) (Annex 170).
742 Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Hearing on
Jurisdiction and the Merits, UNCLOS Annex VII Tribunal, Transcript (Day 3) (24 Apr. 2014), p.
252:7-13 (Crawford) (Annex 170).
250
decolonisation of Mauritius was not lawfully completed when Mauritius was
granted its independence in 1968, and it remains incomplete today.
251
CHAPTER 7
THE CONSEQUENCES UNDER INTERNATIONAL LAW ARISING FROM
THE ADMINISTERING POWER’S CONTINUED ADMINISTRATION OF
THE CHAGOS ARCHIPELAGO
I. Introduction
7.1 In this Chapter, Mauritius addresses the second question that the General
Assembly has referred to the Court for an Advisory Opinion. That question asks:
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?
7.2 The question seeks the Court’s opinion on the legal consequences under
international law that follow from the continued colonial administration of the
Chagos Archipelago, in light of the administering power’s failure to complete the
decolonisation of Mauritius. Mauritius understands the question as requesting the
Court’s opinion on all the legal consequences that arise, including, but not limited to,
those that pertain to the resettlement of Mauritian nationals in the Chagos
Archipelago.
7.3 As detailed below, Mauritius considers that the legal consequences include
the following matters:
(1) The failure to complete the decolonisation of Mauritius is a continuing
wrongful act that persists to this day. This situation must be brought
to an end and full legality restored, a result that can only be achieved
252
by the completion of the process of decolonisation as required by
international law. Decolonisation will be complete when the colonial
administration has been fully withdrawn from the Chagos
Archipelago, Mauritius is able to exercise full rights of sovereignty,
and the administering power recognises Mauritius’ sovereignty over
the Archipelago.
(2) In regard to the timeframe for completing decolonisation, Mauritius
notes that: (a) the Court stated in its Namibia Advisory Opinion that
the colonial administration must be withdrawn “immediately”;743 and
(b) decolonisation has often been completed in less than a year, even
when the process is more complex than is the case with the Chagos
Archipelago, where the exercise of colonial administration is minimal.
Because Mauritius recognises the existence of the military base on
Diego Garcia and accepts its future operation in accordance with
international law, there are no grounds for delaying the immediate
completion of decolonisation.
(3) Pending the immediate completion of decolonisation, the
administering power shall henceforth act in the best interests of the
people of Mauritius, including by consulting and cooperating with
Mauritius so as to facilitate its efforts to allow the resettlement in the
Chagos Archipelago, as a matter of urgency, of Mauritian nationals of
Chagossian origin. In order to effectuate the transfer of administrative
responsibilities to Mauritius in an orderly and timely manner, the
administering power must also consult and cooperate with Mauritius
so that inter alia: (a) the Chagos Archipelago is administered in a
manner which promotes the economic well-being of the Mauritian
743 South West Africa (Advisory Opinion), p. 58, para. 133.
253
people; (b) Mauritius is afforded access to its natural resources; (c) the
environment of the Chagos Archipelago is fully protected; (d)
Mauritius participates in the authorisation, oversight and regulation of
scientific research in and around the Archipelago; (e) Mauritius is
allowed to make submissions to the U.N. Commission on the Limits
of the Continental Shelf in regard to the Archipelago; and (f)
Mauritius is able to proceed to a delimitation of the Archipelago’s
maritime boundaries with the Maldives.
(4) Third States and international organisations, including the United
Nations, are under an obligation to assist in the completion of the
process of decolonisation, and may not render any aid or assistance
that would help maintain the illegal situation presented by the
continued colonial administration of the Chagos Archipelago. The
duty to assist in completing Mauritius’ decolonisation is a positive
one.
II. The Administering Power’s continued administration of the Chagos
Archipelago is a continuing internationally wrongful act that must cease
7.4 Mauritius demonstrated in the preceding Chapter that the continued colonial
administration of the Chagos Archipelago is manifestly incompatible with the
requirements of international law, including the right of Mauritius to territorial
integrity, the right of self-determination of peoples, and the obligation of
administering powers to complete the process of decolonisation. These rights and
obligations arise under international law, as reflected inter alia in General Assembly
Resolution 1514 (XV). As such, any administration of the Chagos Archipelago that
is not consistent with these requirements is a wrongful act under international law,
and one that continues until such time as the process of decolonisation is completed.
254
7.5 Article 14(2) of the ILC Articles on State Responsibility provides: “The
breach of an international obligation by an act of a State having a continuing character
extends over the entire period during which the act continues and remains not in
conformity with the international obligation.” There can be no doubt that this
describes the administering power’s continued administration of the Chagos
Archipelago: the Commentary to Article 14(2) specifically refers to the “maintenance
by force of colonial domination” as a “continuing wrongful act”.744
7.6 The legal consequences of this continuing wrongful act extend beyond its
mere characterisation as unlawful. As the Court found in Legal Consequences for
States of the Continued Presence of South Africa in Namibia, “the qualification of a
situation as illegal does not by itself put an end to it. It can only be the first, necessary
step in an endeavour to bring the illegal situation to an end.”745
7.7 Relatedly, Article 30 of the ILC Articles on State Responsibility provides that
a State which is responsible for an internationally wrongful act is required to “cease
that act, if it is continuing”. The Commentary to Article 30 explains, “[c]essation of
conduct in breach of an international obligation is the first requirement in eliminating
the consequences of wrongful conduct.” As the Court held in Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory:
The obligation of a State responsible for an internationally wrongful
act to put an end to that act is well established in general international
744 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with commentaries (2001), Commentary to Art. 14, para. 3. Other analogous examples
include “unlawful occupation of part of the territory of another State” and “stationing armed forces in
another State without its consent.” Ibid.
745 See South West Africa (Advisory Opinion), p. 52, para. 111.
255
law, and the Court has on a number of occasions confirmed the
existence of that obligation.746
7.8 The need for cessation of a wrongful act serves an important function, namely
“to put an end to a violation of international law and to safeguard the continuing
validity and effectiveness of the underlying primary rule.”747 In so doing, cessation
of the wrongful act not only protects the injured State, it protects “the interests of the
international community as a whole in the preservation of, and reliance on, the rule
of law.”748 That function is particularly important in regard to a breach of obligations
concerning decolonisation, which have an erga omnes character and thus implicate
the interests of all States and the United Nations itself.749
7.9 In the present case, the continuing wrongful act will cease only when the
Chagos Archipelago’s colonial administration has been fully “withdraw[n]”,
Mauritius is able to exercise full rights of sovereignty, and the administering power
recognises Mauritius’ sovereignty over the Archipelago.750
III. The unlawful colonial administration of part of Mauritius’ territory
must be brought to an immediate end
A. IMMEDIATE CESSATION IS REQUIRED
7.10 The law of state responsibility is clear that where a State is in continuing
breach of an international legal obligation, such as when there is a wrongful
746 Construction of a Wall (Advisory Opinion), p. 197, para. 150.
747 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with commentaries (2001), Commentary to Art. 30, para. 5.
748 Ibid.
749 See Part V below.
750 South West Africa (Advisory Opinion), p. 58, para. 133.
256
maintenance of a colonial administration, cessation of the unlawful situation must
occur immediately.
7.11 In Legal Consequences for States of the Continued Presence of South Africa
in Namibia, the Court held that South Africa’s colonial mandate over Namibia had
been “validly terminated and that in consequence South Africa’s presence in Namibia
[was] illegal”.751 The Court therefore ruled:
the continued presence of South Africa in Namibia being illegal,
South Africa is under obligation to withdraw its administration from
Namibia immediately and thus put an end to its occupation of the
Territory.752
7.12 The Court’s ruling that South Africa had to withdraw its unlawful colonial
administration “immediately” reflects a general principle of state responsibility
regarding the cessation of wrongful acts. In the Wall case, the Court held that Israel
“has the obligation to cease forthwith the works of construction of the wall being
built by it in the Occupied Palestinian Territory”.753 In Diplomatic and Consular
Staff, Iran was required to “immediately terminate the unlawful detention of the
United States Chargé d’affaires and other diplomatic and consular staff and other
United States nationals now held hostage in Iran”.754 In Military and Paramilitary
Activities, the United States was found to be “under a duty immediately to cease and
to refrain from all such acts as may constitute breaches” of its legal obligations.755
751 Ibid., para. 132.
752 Ibid., para. 133 (emphasis added). See also ibid., p. 54, para. 118.
753 Construction of a Wall (Advisory Opinion), p. 197, para. 151 (emphasis added).
754 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 44, para.
95 (emphasis added).
755Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits,
Judgment, I.C.J. Reports 1986, p. 149, para. 292 (emphasis added).
257
7.13 In Belgium v. Senegal, where Senegal was found to have breached its
obligations under the Convention Against Torture to prosecute or extradite, the Court
framed Senegal’s obligation to cease its unlawful act as follows:
The Court emphasizes that, in failing to comply with its obligations
under Article 6, paragraph 2, and Article 7, paragraph 1, of the
Convention, Senegal has engaged its international responsibility.
Consequently, Senegal is required to cease this continuing wrongful
act, in accordance with general international law on the responsibility
of States for internationally wrongful acts. Senegal must therefore
take without further delay the necessary measures to submit the case
to its competent authorities for the purpose of prosecution, if it does
not extradite Mr. Habré.756
7.14 The same legal consequence applies in the present case. The administering
power must, “without further delay”, take the “necessary measures” to complete the
decolonisation of Mauritius. As noted above, this will be achieved only when the
colonial administration has been fully withdrawn from the Chagos Archipelago,
Mauritius is able to exercise full rights of sovereignty, and the administering power
recognises Mauritius’ sovereignty over the Archipelago.757
7.15 In the present case, the time period in which this must be accomplished is
reinforced by the general principle that decolonisation must be completed speedily.
General Assembly Resolution 1514 (XV) “provide[s] the basis for the process of
decolonization”,758 and it has “achieved... a quasi-constitutional status.”759 This
756 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment,
I.C.J. Reports 2012, p. 461, para. 121 (emphasis added).
757 See Part II above.
758 Western Sahara (Advisory Opinion), p. 32, para. 57; Sovereignty Pulau Ligitan and Pulau Sipadan
(Indonesia/Malaysia), Application for Permission to Intervene, Separate Opinion of Judge Franck,
I.C.J. Reports 2001, p. 656, para. 12 (referring to the Colonial Declaration as “fundamental to the
process of decolonization”).
759 Crawford, Creation of States (2006), p. 604 (Annex 150). See also Repertory of Practice of United
Nations Organs, “Article 73”, Supplement No. 5, Vol. 4 (1970-1978), para. 1 (“references to the
258
includes, among other things, the Declaration’s “[s]olemn[] proclam[ation]” of the
“necessity of bringing to a speedy and unconditional end colonialism in all its forms
and manifestations”.760 To achieve that objective, the Declaration requires that
“[i]mmediate steps shall be taken” in all “territories which have not yet attained
independence, to transfer all powers to the peoples of those territories”.761
7.16 The obligation to bring colonial arrangements to a speedy end is repeated in
the Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United Nations. It
provides that “[e]very State has the duty… 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”.762 There is
ample support for the proposition that this formulation reflects an international legal
obligation. As the Court held in Military and Paramilitary Activities, the unanimous
consent of States to the Friendly Relations Declaration “may be understood as an
acceptance of the validity of the rule or set of rules declared by the resolution by
themselves.”763
Declaration on decolonization in the Repertory have come to take on a quasi-constitutional character,
particularly with regard to the studies under Article 73. In other words, for the purposes of the
Repertory, issues relating to the implementation of Article 73 of the Charter of the United Nations are
inseparable from issues relating to the implementation of the Declaration on decolonization.”)
760 Colonial Declaration (14 Dec. 1960), Preamble (emphasis added) (Dossier No. 55).
761 Ibid., Art. 5 (emphasis added).
762 Friendly Relations Declaration (24 Oct. 1970), para. 1 (emphasis added).
763Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits,
Judgment, I.C.J. Reports 1986, p. 100, para. 188. See, e.g., Samuel A. Bleicher, “The Legal
Significance of Re-Citation of General Assembly Resolutions”, American Journal of International
Law, Vol. 63 (1969), p. 474 (“The language and the circumstances of the passage of Resolution
1514(XV), set out briefly above, indicate that the resolution was intended to set out a binding
interpretation of the Charter, and the continual re-citation and other actions of the General Assembly
259
B. FULL DECOLONISATION OF MAURITIUS CAN AND SHOULD BE ACHIEVED
IMMEDIATELY
1. Administrative Responsibilities Can Be Easily Transferred to Mauritius
7.17 It is beyond doubt that in relation to the Chagos Archipelago there is no
impediment to the immediate completion of decolonisation. Nearly all activities in
the Archipelago take place in or around the military base on Diego Garcia, which is
addressed in Part III. B. 2, below. Under the existing Order in Council, “no person is
entitled to enter or be present in the Territory except as authorised by or under this
Order or any other law for the time being in force in the Territory.”764 The only
“temporary inhabitants” in the Chagos Archipelago “are the armed forces at the
United States defence facility on Diego Garcia, civilian employees of contractors to
the United States military, and a small Royal Navy contingent.”765 There are
accordingly “no commercial, industrial or agricultural activities in the Territory”.766
Nor is there any privately owned land, since “the Crown purchased the freehold title
to all land in the islands that was not already Crown land.”767
7.18 With regard to environmental protection, Mauritius is not aware of any
regulations that implement the purported “Marine Protected Area” which was
declared – in a manner found by the UNCLOS Arbitration to be unlawful – in 2010.
in support of the resolution display the seriousness of the belief.”); ibid., p. 475 (“No state could
honestly claim that it was unaware of this expectation or that the resolution was merely a
‘recommendation’ with no normative force as an authoritative interpretation of the United Nations
Charter, and few colonial Powers have attempted to permanently obstruct decolonization. In short,
Resolution 1514(XV) is as much a part of our international law as any of the familiar traditional
doctrines.”) (Annex 97).
764 United Kingdom, “British Indian Ocean Territory (Constitution) Order 2004” (10 June 2004), Art.
9 (Annex 146).
765 I. Hendry & S. Dickson, British Overseas Territory Law (2011) p. 302 (Annex 157).
766 Ibid., p. 305.
767 Ibid., p. 303.
260
Mauritius understands that the “MPA” is given effect solely by the administering
power’s decision not to issue new fishing licenses, or to renew existing ones. With
respect to environmental protection on the Archipelago’s island features, as far as
Mauritius is aware, the administering power’s regulatory actions consist only of
declaring part of Diego Garcia a Ramsar site and of placing certain other areas of the
Archipelago off-limits to human activity.768
7.19 Accordingly, there is almost no administration that requires transfer from the
administering power to Mauritius. Indeed, most of the usual indicators of
governmental regulation are absent in this case: the administering power maintains
only a minimal local presence in the Chagos Archipelago, which it administers
remotely from London. Mauritius is unaware of any significant budget expenditures
by the administering power, or of any staff (in significant numbers) allocated to
governance or administration. The colonial administration appears to be comprised
of little more than “a Commissioner appointed by the Queen”, assisted by a Deputy
Commissioner and Administrator.769 None of these officials is resident in the Chagos
Archipelago.770 In the Archipelago itself, the representative of the putative “civilian
Administration” is not, in fact, a civilian. The Royal Navy Commander who
commands a small detachment of British Forces in Diego Garcia is “appointed as the
Commissioner’s Representative”.771 There is no Senior Magistrate in the Chagos
Archipelago; the Royal Navy Commander serves as the “local magistrate” as well.772
768 United Kingdom, “British Indian Ocean Territory: Terrestrial Protected Areas”, available at
https://biot.gov.io/environment/terrestrial-protected-areas/ (last accessed 3 Jan. 2018) (Annex 197).
769 See United Kingdom, “British Indian Ocean Territory: Governance”, available at
https://biot.gov.io/governance/ (last accessed 3 Jan. 2018) (Annex 198).
770 Ibid.
771 Ibid.
772 I. Hendry & S. Dickson, British Overseas Territory Law (2011), p. 304 (Annex 157).
261
7.20 Reflecting the lack of administration, for the fiscal year beginning on 1 April
2016 – the last fiscal year for which information is available – the administering
power’s total budgetary appropriation for the “BIOT” was only £4,225,000. Most of
the appropriation (£3,405,000) is earmarked for “Marine”, which Mauritius believes
is for marine surveillance-related activities. Only £446,000 is for
“Administration”.773 By comparison, the 2016/17 gross expenditure of West
Somerset, the smallest local authority in the United Kingdom by population, which
has approximately 35,300 residents and covers 280 square miles, was £22,698,000.774
7.21 The administering power, moreover, is able quickly to make any legal
changes that might be needed to facilitate decolonisation. The Commissioner serves
as both the territory’s executive and legislature, and has plenary authority to enact,
amend, and enforce its laws and regulations. Further, the Constitution of the “BIOT”
is contained in an Order in Council that was made under the Royal prerogative;
accordingly, any change to the existing constitutional framework can also be swiftly
made under the prerogative.
773 Of the remainder, £150,000 is for “Legal”, £11,000 is for “Commercial”, £90,000 is for “Science”,
£3,000 is for “Finance”, and £120,000 is for “Diego Garcia”. See United Kingdom, “British Indian
Ocean Territory Ordinance No. 1 of 2016: An ordinance to make provision for the expenditure of
public funds between 1 April 2016 and 31 March 2017” (30 June 2016) (Annex 180).
774 See West Somerset Council, “Statistics and Census Information”, available at
https://www.westsomersetonline.gov.uk/Council---Democracy/About-Your-Co…---
Census-Information (last accessed 18 Feb. 2018); and West Somerset Council, “West Somerset
District Council Audited Statement of Accounts 2016/17”, available at
https://www.westsomersetonline.gov.uk/getattachment/Council---Democracy…---
Spending/Statement-of-Accounts/West-Somerset-Council-Statement-of-Accounts-2016-17.pdf.aspx
(last accessed 18 Feb. 2018).
262
2. The Existence of a Military Base on Diego Garcia Does Not Impede the
Immediate Completion of Decolonisation
7.22 Mauritius has repeatedly made clear to the United States and the United
Kingdom, over the course of many years, that it recognises the existence of the
military base on Diego Garcia, and accepts its future operation in accordance with
international law. In these circumstances, the existence of the base provides no basis
for delaying the immediate completion of decolonisation.
7.23 For example, on 21 December 2000, the Minister of Foreign Affairs of
Mauritius informed the United Kingdom Secretary of State for Foreign and
Commonwealth Affairs: “As you are aware, Mauritius has officially announced that
we have no objection to the continued presence of the U.S. military base on Diego
Garcia and we have informed the United States that there is no risk with regard to
their security of tenure on the island.”775
7.24 On 22 July 2004, the Prime Minister of Mauritius informed the Prime
Minister of the United Kingdom that “we, in Mauritius, have made it clear on
numerous occasions that we do not object to Diego Garcia’s use as a military base in
the larger interest of the security of the international community. I would wish to
reiterate this to you.”776
7.25 On 22 October 2004, the Minister of Foreign Affairs of Mauritius informed
the United Kingdom Secretary of State for Foreign and Commonwealth Affairs: “I
775 Letter from the Minister of Foreign Affairs and Regional Cooperation, Republic of Mauritius, to
the Secretary of State for Foreign & Commonwealth Affairs, United Kingdom (21 Dec. 2000) (Annex
141).
776 Letter from the Prime Minister of Mauritius to the Prime Minister of the United Kingdom (22 July
2004) (Annex 147).
263
should like to reiterate that, from our perspective, we see no real or perceptible threat
to security, having made it clear repeatedly that we have no problem whatsoever with
the military and naval base on Diego Garcia.”777
7.26 On 12 June 2012, the Prime Minister of Mauritius told the Mauritian
Parliament:
I informed the British Prime Minster that I intend, during a proposed
visit to Washington, to put across our proposal that all three States sit
together and come to an agreement on the sovereignty issue without
causing any prejudice to the continued use of Diego Garcia as a
military base to meet prevailing security needs. The British Prime
Minister took note of this initiative vis-à-vis the US.778
7.27 On 11 July 2017, shortly after the U.N. General Assembly referred the present
request for an Advisory Opinion to the Court, the Prime Minister of Mauritius
informed the President of the United States: “In line with its aspirations for a safer
world, Mauritius would like to reaffirm that it has no objection to the continued
operation of the military base in Diego Garcia after the completion of its
decolonisation process under an agreed framework.”779
7.28 Mauritius’ commitment in regard to the military facility on Diego Garcia has
been confirmed by Governments led by both major political parties in Mauritius. On
28 March 2014, when the party which is now in opposition led the Mauritian
777 Letter from the Minister of Foreign Affairs, International Trade and Regional Co-operation of the
Republic of Mauritius to the Secretary of State for Foreign and Commonwealth Affairs of the United
Kingdom (22 Oct. 2004) (Annex 148).
778 National Assembly of Mauritius, Reply to Private Notice Question (12 June 2012) (Annex 161).
779 Letter from the Prime Minister of the Republic of Mauritius to the President of the United States
(11 July 2017) (Annex 193).
264
Government, Mauritius, in advance of the oral hearings in the Chagos Marine
Protected Area Arbitration, informed the United States:
As the Government of the United States of America is aware, the
Republic of Mauritius is currently involved in proceedings against the
United Kingdom in an arbitration under Annex VII to the United
Nations Convention on the Law of the Sea, in connection with the
United Kingdom’s decision in 2010 to declare a ‘marine protected
area’ around the Chagos Archipelago. That case is due to be heard in
April and May 2014.
In light of the imminent hearing of the Republic of Mauritius’ claim,
the Government of the Republic of Mauritius would like to take this
opportunity to assure the Government of the United States of America
that, as the Republic of Mauritius has previously made clear, it has no
objection to the United States of America retaining the military base
on Diego Garcia to meet prevailing security needs.
In the event that the Republic of Mauritius prevails in its claim against
the United Kingdom, it does not foresee any impact on its relations
with the United States of America, or on the ability of the United
States of America to retain the military base on Diego Garcia.
The Government of the Republic of Mauritius wishes to confirm that
it will be keen to work with the Government of the United States of
America to ensure the continued use of the Diego Garcia military base,
and that this situation will not be affected by the award of the Arbitral
Tribunal.780
7.29 Mauritius reaffirms those assurances here. For the avoidance of doubt,
Mauritius places on the record before this Court its recognition of the existence of
the base, and its acceptance of the future operation of the base in accordance with
international law.
780 Note Verbale from the Ministry of Foreign Affairs of the Republic of Mauritius to the Embassy of
the United States of America in Mauritius, No. 26/2014 (1197/28) (28 Mar. 2014) (Annex 168).
265
7.30 Mauritius undertakes this commitment in the context of the close, cooperative
relationship it has enjoyed, since its independence, with the United States. The United
States Africa Command (“U.S. AFRICOM”) is the component of the United States
military that is “responsible for all U.S. Department of Defense operations, exercises,
and security cooperation on the African continent, its island nations, and surrounding
waters.”781 With regard to relations with Mauritius, U.S. AFRICOM has stated:
The United States established diplomatic relations with Mauritius in
1968, following its independence from the United Kingdom. In the
years following independence, Mauritius became one of Africa’s most
stable and developed economies, as a result of its multi-party
democracy and free market orientation. Relations between the United
States and Mauritius are cordial, and we collaborate closely on
bilateral, regional, and multilateral issues. Mauritius is a leading
beneficiary of the African Growth and Opportunity Act and a U.S.
partner in combating maritime piracy in the Indian Ocean.782
7.31 In short, under these conditions the existence of a military base on Diego
Garcia provides no grounds for any delay in completing the immediate decolonisation
of Mauritius.
3. Decolonisation Has Been Rapidly Completed in More Complex
Circumstances
7.32 In light of the foregoing, it is apparent that there are no practical or principled
objections or hurdles which might limit the prompt completion of Mauritius’
decolonisation. Indeed, the United Kingdom deemed a period of just six months
adequate for the granting of independence to Mauritius itself. After the September
1965 Constitutional Conference, the British authorities informed the United Nations
781 United States Africa Command, About the Command, available at http://www.africom.mil/aboutthe-
command (last accessed 5 Jan. 2018) (Annex 199).
782 United States Africa Command, Republic of Mauritius, available at http://www.africom.mil/areaof-
responsibility/southern-africa/mauritius (last accessed 5 Jan. 2018) (Annex 200).
266
that, if the newly elected Mauritian legislature favoured independence, “the United
Kingdom Government would accept that request and independence would be
achieved after a six-month period of full internal self-government following the new
elections.”783
7.33 Similarly modest lengths of time were needed for terminating colonial
arrangements in other places, even though there were significant political and legal
hurdles to be overcome. For example, on 19 December 1967, the General Assembly
requested that Spain ensure that Equatorial Guinea gain independence “as a single
political and territorial entity not later than July 1968”.784 During the intervening
seven months, Spain was expected, among other things, to:
• “reconvene [a] constitutional conference… in order to work out the
modalities of the transfer of power, including the drawing up of an
electoral law and of an independence constitution”;
• “institute an electoral system based on universal adult suffrage”;
• “hold, before independence, a general election for the whole Territory
on the basis of a unified electoral role”; and
783 U.N. General Assembly, 21st Session, 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/6300/Rev.1 (1966), para. 164 (Dossier No. 253). See also ibid., para. 17 (“[T]he
United Kingdom would be prepared to fix a date and take the necessary steps to declare Mauritius
independent, after a period of six months’ full internal self-government if a resolution asking for this
was passed by a simple majority of the new Assembly.”) The United Kingdom stated that elections
would likely be held in early 1967, and if the party seeking independence prevailed, “independence
could thus come about by the middle of 1967.” Ibid., para. 164.
784 U.N. General Assembly, 22nd Session Question of Equatorial Guinea, U.N. Doc.
A/RES/2355(XXII) (19 Dec. 1967), para. 4.
267
• “transfer effective power to the government resulting from this
election”.785
7.34 On 5 December 1959, the General Assembly took note of Italy’s agreement
to terminate its trusteeship over Somalia, whereby it would become independent no
more than six months later.786 During that time, Italy had to expand the “composition
of the Political Committee and the Constituent Assembly”; confirm through a
referendum a constitution that was still “under preparation”; and carry out a
“modification of the existing electoral law”.787
7.35 In November 1967, the Administering Authority of Nauru informed the
Trusteeship Council that Nauru would become independent less than three months
later.788 Over that period, Nauru was to elect representatives to attend the
constitutional convention and adopt a constitution.789
7.36 On 3 November 1976, France informed the General Assembly that it
anticipated that “the Territory [of the Afars and the Issas] would accede to
independence during the summer of 1977”,790 that is, less than a year later. During
785 Ibid., paras. 5-6.
786 U.N. General Assembly, 14th Session, Date of the Independence of the Trust Territory of
Somaliland Under Italian Administration, U.N. Doc. A/RES/1418(XIV) (5 Dec. 1959), para. 5
(resolving, “in agreement with the Administering Authority, that on 1 July 1960, when Somalia shall
become independent, the Trusteeship Agreement approved by the General Assembly on 2 December
1950 shall cease to be in force, the basic objectives of trusteeship having been attained”).
787 Ibid., para. 4.
788 U.N. Trusteeship Council, 13th Special Session, 1323rd Meeting (22 Nov. 1967), para. 7 (“Mr.
SHAW (Australia) informed the Council that, following the resumed talks between representatives of
Nauru and representatives of the Governments of the United Kingdom, New Zealand and Australia, it
had been agreed that Nauru should accede to independence on 31 January 1968.”)
789 Ibid., paras. 13 and 19.
790 U.N. General Assembly, Special Political and Decolonization Committee (Fourth Committee),
Summary Record of the 14th Meeting, U.N. Doc. A/C.4/31/SR.14 (3 Nov. 1976), para. 16. See also
268
the interval, a referendum would be held and, in the event of a vote favoring
independence, a Constituent Assembly would be established.791
7.37 With respect to Malta, on 11 December 1963, the General Assembly invited
the United Kingdom to “take the necessary measures for the transfer of powers, not
later than 31 May 1964, to the people of Malta, in accordance with their will and
desire”.792 A referendum was then held on the proposed constitution, and Malta
became independent nine months later, in September 1964.793
7.38 On 8 December 1975, the General Assembly noted the desire of the coalition
Government of the Seychelles “that the Territory should attain independence not later
than June 1976 and the continued readiness of the administering Power to grant
independence to the people of the Seychelles in accordance with their wishes”.794 It
also noted “that an electoral review commission ha[d] been established with a view
to agreeing on the system of elections and the size and composition of the legislature
and that a renewed conference [was] envisaged in early 1976 to work out the
General Assembly, 31st Session, Question of French Somaliland, U.N. Doc. A/RES/31/59 (1 Dec.
1976), para. 3 (calling upon France “to implement scrupulously and equitably, under democratic
conditions, the programme for the independence of so-called French Somaliland (Djibouti), as
outlined by the representative of France in his statement before the Fourth Committee of the General
Assembly, within the indicated time frame, namely, the summer of 1977”).
791 U.N. General Assembly, Special Political and Decolonization Committee (Fourth Committee),
Summary Record of the 14th Meeting, U.N. Doc. A/C.4/31/SR.14 (3 Nov. 1976), para. 14.
792 U.N. General Assembly, 18th Session Question of Malta, U.N. Doc. A/RES/1950(XVIII) (11 Dec.
1963), para. 3.
793 See U.N. International Covenant on Civil and Political Rights, Human Rights Committee,
Consideration of reports submitted by States parties under article 40 of the Covenant, U.N. Doc.
CCPR/C/MLT/2 (7 Dec. 2012).
794 U.N. General Assembly, 30th Session Question of the Seychelles, U.N.Doc. A/RES/3430(XXX) (8
Dec. 1975), Preamble.
269
provisions of an independence constitution”.795 Independence was achieved six
months later, in June 1976.796
7.39 For the Northern Cameroons, the General Assembly “decide[d]” to terminate
the United Kingdom’s trusteeship agreement less than four months after a plebiscite
supported joining Nigeria.797 This was “completed and the decisions” embodied in
the relevant General Assembly resolution were “duly implemented”.798
7.40 The time period within which the administering power can be expected to
complete Mauritius’ decolonisation is also reflected in the dispatch with which
administrative responsibilities have been transferred following a Judgment of the
Court. In Libya/Chad, two months after the Court’s Judgment establishing the
boundary, the parties concluded an agreement “concerning the practical modalities”
for its implementation, which provided that “operations for the withdrawal of the
Libyan administration” would commence within two weeks, and withdrawal would
be completed a month-and-a-half later.799 The parties subsequently signed a joint
795 Ibid.
796 See U.N. General Assembly, Human Rights Council, 18th Session, Report of the Working Group
on the Universal Periodic Review, Seychelles, U.N. Doc. A/HRC/18/7 (11 July 2011).
797 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, I.C.J.
Reports 1963, p. 23 (citing U.N. General Assembly, 15th Session, The future of the Trust Territory of
the Cameroons under United Kingdom administration, U.N. Doc. A/RES/1608(XV) (21 Apr. 1961),
para. 4).
798 Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, Judgment, Separate
Opinion of Judge Wellington Koo, I.C.J. Reports 1963, p. 51, para. 29.
799 See Repertoire of the Practice of the Security Council, Agreement signed on 4 April 1994 between
the Governments of Chad and the Libyan Arab Jamahiriya concerning the practical modalities for the
implementation of the Judgment delivered by the International Court of Justice on 3 Feb. 1994,
Supplement No. 12, Chapter 8, Item 10 (1993-1995), p. 508.
270
declaration confirming that the “withdrawal of the [Libyan] administration” had been
“effected as of that date to the satisfaction of the parties.”800
7.41 These precedents – each of which involved the termination of colonial (or
quasi-colonial) arrangements or the transfer of administrative responsibilities in
circumstances more complex than is the case here – demonstrate that there is no
reason why the decolonisation of Mauritius could not be completed in a similar
timeframe. In all these cases less than a year was needed to complete the process of
decolonisation.
IV. The legal consequences while decolonisation is being completed
7.42 Mauritius recognises that there may be a short period between the issuance of
the Court’s Advisory Opinion and the immediate completion of the process of
decolonisation. In that limited period, the administering power is required to engage
in good faith consultations and cooperation with Mauritius to protect and promote
the interests of Mauritius, and to endeavour to transfer to Mauritius administrative
responsibilities at the earliest practicable date.
7.43 These legal consequences follow from Article 73 of the U.N. Charter, which
requires the administering power to give effect to “the principle that the interests of”
the “inhabitants [of Mauritius] are… paramount”, and to “accept as a sacred trust the
obligation to promote to the utmost” their “well-being”.801 Among other things, under
Article 73, the administering power is required to “ensure” the “political, economic,
social, and educational advancement” of the Mauritian people, as well as “their just
treatment, and their protection against abuses”, having due regard for the culture of
800 See ibid., p. 510.
801 U.N. Charter (24 Oct. 1945), Art. 73.
271
the peoples concerned.802 The administering power is also required to “promote
constructive measures” for their “development”.803 The United Kingdom has “taken
a consistently firm position insisting upon a most literal and strict adherence to the
language” of Article 73.804
7.44 The same legal consequences follow from the unanimous Award in the
Chagos Marine Protected Area Arbitration, which held that the administering
power’s “undertaking to return the Chagos Archipelago to Mauritius gives Mauritius
an interest in significant decisions that bear upon the possible future uses of the
Archipelago.”805 The Award emphasised that “Mauritius’ interest is not simply in the
eventual return of the Chagos Archipelago, but also in the condition in which the
Archipelago will be returned.”806
7.45 Accordingly, in order to assist with bringing decolonisation to an immediate
end in an orderly fashion, the administering power must consult and cooperate with
Mauritius with regard to all matters of administration and exercise of sovereign
rights, including, inter alia, the following.
7.46 First, and most significantly in terms of the desires of the relevant population,
the administering power must cooperate with Mauritius to advance efforts by
Mauritius to resettle – as a matter of urgency – those Mauritians of Chagossian origin
that were unlawfully displaced by the administering power, and to ensure the access
802 Ibid., Art. 73(a).
803 Ibid., Art. 73(d).
804 “Draft of Position Paper from Background Book for Colonial Policy Discussions” in FOREIGN
RELATIONS, VOL. II (21 June 1950), p. 455 (Annex 14).
805 The Chagos Marine Protected Area Arbitration, Award (18 Mar. 2015), para. 298 (Dossier No.
409).
806 Ibid.
272
of other Mauritian citizens to the Chagos Archipelago in accordance with Mauritian
law.
7.47 To date, the administering power’s treatment of Mauritians of Chagossian
origin has manifestly failed to meet its obligations under Article 73 of the U.N.
Charter, even though the General Assembly has repeatedly condemned the
deportation, transfer and displacement of colonial populations. Resolution 2105
(XX), for example, calls upon the “colonial Powers to discontinue their policy of
violating the rights of colonial peoples”, including through “the dislocation,
deportation and transfer of the indigenous inhabitants”.807
7.48 It is plain that the administering power’s expulsion of those Mauritians who
resided in the Chagos Archipelago – together with the continued refusal to allow them
to exercise a right of return – violated its “sacred trust” to promote their “well-being”
to the “utmost”.808
7.49 The administering power’s expressions of regret described in Chapters 1 and
4 are insufficient.809 Having unlawfully expelled the Chagos Archipelago’s
population, the administering power must now, while decolonisation is being
completed, cooperate with Mauritius to facilitate their return to the Archipelago.
7.50 The General Assembly has underscored the importance of such efforts. In
calling upon States to cease “all acts of repression, discrimination, exploitation and
807 U.N. General Assembly, 20th Session, Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples, U.N. Doc. A/RES/2105(XX) (20 Dec. 1965), para.
5 (Dossier No. 155).
808 U.N. Charter (1945), Art. 73.
809 See paras. 1.4 and 4.53.
273
maltreatment” in colonial territories, it has emphasised the “right” of refugees and
persons displaced by such acts “to return to their homes voluntarily in safety and
honour”.810 This right extends to peoples who have been unlawfully “exiled” or
“forbidden to reside” in territories, which, like the Chagos Archipelago, are under
colonial administration.811
7.51 Facilitation of the return of Mauritians of Chagossian origin gives effect to
Article 13 of the Universal Declaration of Human Rights, which provides that
“[e]veryone has the right to… return to his country”, as well as the “right to freedom
of movement and residence within the borders of each State.”812
810 See U.N. General Assembly, 56th Session, Universal Realization of the Right of Peoples to Selfdetermination,
U.N. Doc. A/RES/56/141 (19 Dec. 2001), paras. 3-4. See also U.N. General Assembly,
62nd Session, Universal Realization of the Right of Peoples to Self-determination, U.N. Doc.
A/RES/62/144 (18 Dec. 2007), paras. 3-4; U.N. General Assembly, 63rd Session, Universal
Realization of the Right to Peoples to Self-determination, U.N. Doc. A/RES/63/163 (18 Dec. 2008),
paras. 3-4; U.N. General Assembly, 64th Session, Universal Realization of the Right to Peoples to
Self-determination, U.N. Doc. A/RES/64/149 (18 Dec. 2009), paras. 3-4; U.N. General Assembly,
31st Session, Question of French Somaliland, U.N. Doc. A/RES/31/59 (1 Dec. 1976), para. 8. (calling
on France “to allow and facilitate the return to [French Somaliland] of all refugees who are bona fide
citizens of the Territory”); 17th Summit of Heads of State and Government of the Non-Aligned
Movement, Chagos Archipelago, No. NAM 2016/CoB/DOC.1. Corr.1 (17-18 Sept. 2016), para. 337
(expressing “grave concern that despite the strong opposition expressed by the Republic of Mauritius,
the United Kingdom purported to establish a ‘marine protected area’ (‘MPA’) around the Chagos
Archipelago, further infringing the territorial integrity of the Republic of Mauritius and impeding the
exercise of its sovereignty over the Chagos Archipelago as well as the exercise of the right of return
of Mauritian citizens who were forcibly removed from the Archipelago by the United Kingdom.”)
(emphasis added) (Annex 182).
811 U.N. General Assembly, 18th Session, Question of Aden, U.N. Doc. A/RES/1949(XVIII) (11 Dec.
1963), para. 7 (calling upon the United Kingdom to “allow the return of those people who have been
exiled or forbidden to reside in [Aden] because of political activities”.). See also, e.g., U.N. General
Assembly, 20th Session Question of Aden, U.N. Doc. A/RES/2023(XX) (5 Nov. 1965), para. 8(d);
Question of Oman (17 Dec. 1965), para. 5(c); U.N. General Assembly, 34th Session, Palestine
refugees in the Gaza Strip, U.N. Doc. A/RES/34/52F (23 Nov. 1979), Preamble (“measures to resettle
Palestinian refugees… away from the homes and property from which they were displaced constitute
a violation of their inalienable right of return”).
812 U.N. General Assembly, 3rd Session, Universal Declaration of Human Rights, U.N. Doc.
A/RES/3/217A (10 Dec. 1948), Art. 13.
274
7.52 As the Commission on Human Rights’ Sub-Commission on Prevention of
Discrimination and Protection of Minorities explains:
the right to return [is] a positive right. It is considered a part of
conventional international law as well as one of the “general
principles of law recognized by civilized nations”. It has also been
affirmed that this right based upon usual State practice, is
uncontroversial and it is not the subject of diplomatic and juridical
contention.813
7.53 Indeed, Lord Mance, in the 2008 Bancoult decision of the Appellate
Committee of the House of Lords, referred to “the freedom to return to one’s
homeland, however poor and barren the conditions of life”, as “one of the most
fundamental liberties known to human beings”.814
7.54 The administering power’s obligation to cooperate with Mauritius in the
resettlement of the Chagos Archipelago is also founded in the International Covenant
on Civil and Political Rights (“ICCPR”). Article 12 provides that “[n]o one shall be
arbitrarily deprived of the right to enter his own country”,815 and that “[e]veryone
813 U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on
Prevention of Discrimination and Protection of Minorities, 40th Session, Analysis of the current trends
and developments regarding the right to leave any country including one’s own, and to return to one’s
own country, and some other rights or considerations arising therefrom: Final report prepared by
Mr. C.L.C. Mubanga-Chipoya, U.N. Doc. E/CN.4/Sub.2/1988/35 (20 June 1988), para. 88. See also
U.N. Economic and Social Council, Commission on Human Rights, Sub-Commission on Prevention
of Discrimination and Protection of Minorities, “Resolution 1997/31: The Right to Return”, Preamble,
in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its
Forty-Ninth Session, U.N. Doc. E/CN.4/1998/2 (5 Nov. 1997), p. 72 (recognising “the fundamental
significance of the observance and promotion of the right to return voluntarily to one’s country or
place of origin”).
814 R (on the application of Bancoult) v. Secretary of State for Foreign Commonwealth Affairs, [2008]
UKHL 61 (22 Oct. 2008), para. 172 (quoting R (on the application of Bancoult) v. Secretary of State
for Foreign and Commonwealth Affairs, [2007] EWCA Civ 498 (23 May 2007), para. 71).
815 International Covenant on Civil and Political Rights, 999 U.N.T.S. 172 (19 Dec. 1966), entered
into force 23 Mar. 1976 (hereinafter “ICCPR (19 Dec. 1966)”), Art. 12(4).
275
lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.”816
7.55 There can be no doubt that these principles apply to the Mauritian nationals
who were forcibly removed from the Chagos Archipelago by the administering
power. The United Nations Human Rights Committee has stated that the
administering power “should ensure that the Chagos islanders can exercise their right
to return to their territory”.817 The Committee rejected the administering power’s
objection that the ICCPR did not apply to the Chagos Archipelago “owing to an
absence of population”.818
7.56 Second, the administering power is required to consult and cooperate with
Mauritius so that the Chagos Archipelago is administered in a manner that promotes
the economic well-being of the Mauritian people. The General Assembly has urged
that activities carried out in “Territories under colonial domination do not run counter
to the present or future interests of the indigenous inhabitants of those Territories”.819
816 Ibid., Art. 12(1). Article 17 further provides that “[n]o one shall be subjected to arbitrary or unlawful
interference with his privacy, family, [or] home”, and that “[e]veryone has the right to the protection
of the law against such interference or attacks.” In its Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory, the Court ruled that the I.C.C.P.R. is “applicable in respect
of acts done by a State in the exercise of its jurisdiction outside its own territory.” Construction of a
Wall (Advisory Opinion), p. 180, para. 111. It also found that Israel’s “construction of the wall and its
associated régime impede[d] the liberty of movement of the inhabitants of the Occupied Palestinian
Territory… as guaranteed under Article 12, paragraph 1” of the I.C.C.P.R. Construction of a Wall
(Advisory Opinion), pp. 191-192, para. 134.
817 Concluding observations of the Human Rights Committee: United Kingdom and Northern Ireland
(30 July 2008), para. 22 (Dossier No. 397).
818 Ibid.
819 U.N. General Assembly, 22nd Session, Activities of foreign economic and other interests which
are impeding the implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples in Southern Rhodesia, South West Africa and Territories under Portuguese
domination and in all other Territories under Colonial domination and efforts to eliminate
colonialism, apartheid and racial discrimination in southern Africa, U.N. Doc. A/RES/2288(XXII)
(7 Dec. 1967), para. 6 (calling upon “all States concerned to fulfil their fundamental obligation to
ensure that the concessions granted, the investments authorized and the enterprises permitted to their
276
The administering power must therefore work with Mauritius to promote the
“economic and financial viability” of the Chagos Archipelago,820 and ensure that
“economic activities in the [Archipelago are] aimed at improving” the standards of
living and the self-sufficiency of the Mauritian people.821 In addition, the
administering power is required to cooperate with Mauritius to “ensure that economic
and other activities in the [Chagos Archipelago] do not adversely affect” Mauritian
“interests”.822
7.57 Third, the administering power is required to cooperate with Mauritius in
order to give the Mauritian people access to the living and non-living natural
resources of the Chagos Archipelago, so that they can be explored and exploited in a
sustainable and environmentally sensitive manner.823 The Colonial Declaration
nationals in the Territories under colonial domination do not run counter to the present or future
interests of the indigenous inhabitants of those Territories”). See also Fiftieth anniversary of the
Declaration on the Granting of Independence to Colonial Countries and Peoples (10 Dec. 2010), para.
4.
820 See, e.g., U.N. General Assembly, 40th Session, Activities of foreign economic and other interests
which are impeding the implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples in Namibia and in all other Territories under colonial domination
and efforts to eliminate colonialism, apartheid and racial discrimination in southern Africa, U.N. Doc.
A/RES/40/52 (2 Dec. 1985), para. 7 (requesting “the Special Committee on the Situation with regard
to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and
Peoples to continue to monitor closely the situation in the remaining colonial Territories so as to ensure
that all economic activities in those Territories are aimed at strengthening and diversifying their
economies in the interests of the indigenous peoples, at promoting the economic and financial viability
of those Territories and at speeding their accession to independence”).
821 See, e.g., Repertory of Practice of United Nations Organs, “Article 73”, Supplement No. 6, Vol. 5
(1970-1978), para. 14.
822 U.N. General Assembly, 71st Session, Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples, U.N. Doc. A/RES/71/122 (6 Dec. 2016), para. 13.
See also, e.g., U.N. General Assembly, 40th Session, Activities of foreign economic and other interests
which are impeding the implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples in Namibia and in all other Territories under colonial domination
and efforts to eliminate colonialism, apartheid and racial discrimination in southern Africa, U.N. Doc.
A/RES/40/52 (2 Dec. 1985), para. 10; Fiftieth anniversary of the Declaration on the Granting of
Independence to Colonial Countries and Peoples (10 Dec. 2010), para. 4.
823 ICCPR (19 Dec. 1966), Art. 1(2) (“All peoples may, for their own ends, freely dispose of their
natural wealth and resources without prejudice to any obligations arising out of international economic
277
“[a]ffirm[s] that peoples may, for their own ends, freely dispose of their natural
wealth and resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and international
law”.824 While decolonisation is being completed, the administration of the Chagos
co-operation, based upon the principle of mutual benefit, and international law. In no case may a
people be deprived of its own means of subsistence.”); ibid., Art. 47 (“Nothing in the present Covenant
shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely
their natural wealth and resources.”); U.N. Human Rights Committee, 21st Session, I.C.C.P.R.
General Comment No. 12: Article 1, The Right to Self-determination of Peoples (13 Mar. 1984), para.
5 (“Paragraph 2 affirms a particular aspect of the economic content of the right of self-determination,
namely the right of peoples, for their own ends, freely to ‘dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic cooperation, based upon the
principle of mutual benefit, and international law. In no case may a people be deprived of its own
means of subsistence’. This right entails corresponding duties for all States and the international
community.”); Repertory of Practice of United Nations Organs, “Article 73”, Supplement No. 6, Vol.
5 (1970-1978), para. 14 (“[T]he General Assembly continued to adopt resolutions that were applicable
to all colonial Territories. Those resolutions were based on the principle that peoples of dependent
Territories had the right to dispose of their natural and economic resources in their best interests”).
824 U.N. General Assembly, 15th Session, Declaration on the granting of independence to colonial
countries and peoples, U.N. Doc. A/RES/1514(XV) (14 Dec. 1960), Preamble (Dossier No. 55). See
also, e.g., Repertory of Practice of United Nations Organs , “Article 73”, Supplement No. 5, Vol. 4
(1970-1978), para. 16 (“The Assembly also continued to pay particular attention to the rights of
colonial peoples to freely dispose of their natural wealth and resources.”); General Assembly, 41st
Session, Declaration on the Right to Development, U.N. Doc. A/RES/41/128 (4 Dec. 1986) (“The
human right to development also implies the full realization of the right of peoples to selfdetermination,
which includes, subject to the relevant provisions of both International Covenants on
Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth
and resources.”); General Assembly, 34th Session, Activities of foreign economic and other interests
which are impeding the implementation of the Declaration on the Granting of Independence to
Colonial Countries and Peoples in Southern Rhodesia and Namibia and in all other territories under
colonial domination and efforts to eliminate colonialism, apartheid and racial discrimination in
southern Africa, U.N. Doc. A/RES/34/41 (21 Nov. 1979) (“Reaffirms the inalienable right of the
peoples of dependent Territories to self-determination and independence and to the enjoyment of the
natural resources of their Territories, as well as their right to dispose of those resources in their best
interests”.); General Assembly, 34th Session, Activities of foreign economic and other interests which
are impeding the implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples in Southern Rhodesia and Namibia and in all other territories under colonial
domination and efforts to eliminate colonialism, apartheid and racial discrimination in southern
Africa, U.N. Doc. A/RES/34/41 (21 Nov. 1979) (“Reiterates that any administering or occupying
Power which deprives the colonial peoples of the exercise of their legitimate rights over their natural
resources or subordinates the rights and interests of those peoples to foreign economic and financial
interests violates the solemn obligations it has assumed under the Charter of the United Nations”.);
U.N. General Assembly, 22nd Session, Activities of foreign economic and other interests which are
impeding the implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples in Southern Rhodesia, South West Africa and Territories under Portuguese
domination and in all other Territories under Colonial domination and efforts to eliminate
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Archipelago must therefore take care not to obstruct “the access of the [the Mauritian
people] to their natural resources”.825
7.58 Fourth, the administering power is required to cooperate with Mauritius to
ensure that the environment of the Chagos Archipelago is fully protected. This
requires, inter alia, cooperation in regard to the environmental protection obligations
that pertain to the marine environment which are codified in Part XII of UNCLOS,
as well as all other environmental obligations, whether based in treaty or customary
international law. In practical terms this means that the administering power should
formally bring to an end its purported “MPA”, the declaration of which was
unanimously ruled to have been unlawful by the tribunal in the Chagos Marine
Protected Area Arbitration, and allow Mauritius to take the steps to which it has
committed itself in order to protect the environment of the Chagos Archipelago.
Mauritius places a very high value on protection of the environment. It is conscious
colonialism, apartheid and racial discrimination in southern Africa, U.N. Doc. A/RES/2288(XXII)
(7 Dec. 1967) (“Reaffirms the inalienable right of the peoples of the colonial Territories to selfdetermination
and independence and to the natural resources of their Territories, as well as their right
to dispose of these resources in their best interests”.); U.N. General Assembly, 22nd Session, Activities
of foreign economic and other interests which are impeding the implementation of the Declaration on
the Granting of Independence to Colonial Countries and Peoples in Southern Rhodesia, South West
Africa and Territories under Portuguese domination and in all other Territories under Colonial
domination and efforts to eliminate colonialism, apartheid and racial discrimination in southern
Africa, U.N. Doc. A/RES/2288(XXII) (7 Dec. 1967) (“Further calls upon the colonial Powers to
prohibit the following practices, which run counter to the principles of the Charter, violate the
economic and social rights of the peoples of the Territories under colonial domination and impede the
rapid implementation of resolution 1415 (XV): … The obstruction of the access of the indigenous
inhabitants to their natural resources”).
825 U.N. General Assembly, 22nd Session, Activities of foreign economic and other interests which
are impeding the implementation of the Declaration on the Granting of Independence to Colonial
Countries and Peoples in Southern Rhodesia, South West Africa and Territories under Portuguese
domination and in all other Territories under Colonial domination and efforts to eliminate
colonialism, apartheid and racial discrimination in southern Africa, U.N. Doc. A/RES/2288(XXII)
(7 Dec. 1967), para. 7(b).
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of the extraordinary diversity of the waters of the Chagos Archipelago, and the need
to safeguard the region against the environmental challenges it faces today.
7.59 Fifth, the administering power is required to cooperate with Mauritius in
connection with the authorisation, oversight and regulation of scientific research that
occurs in and around the Chagos Archipelago, including, inter alia, in discharge of
the rights and obligations set out in Part XIII of UNCLOS with respect to marine
scientific research.
7.60 Sixth, the outer limits of the continental shelf of the Chagos Archipelago
beyond 200 nautical miles have not been delineated. The administering power is
therefore required to cooperate with Mauritius to allow Mauritius to submit forthwith
the information called for by Article 76(8) of UNCLOS to the U.N. Commission on
the Limits of the Continental Shelf. For the purposes of facilitating such a submission,
the administering power must share with Mauritius all data in its possession that
pertain to whether there exists a continental shelf beyond 200 nautical miles.
7.61 Seventh, the maritime boundary between Mauritius and the Republic of the
Maldives remains to be delimited. The administering power is required to allow
Mauritius to take all reasonable steps to proceed to the delimitation of those
boundaries by agreement with the Maldives in accordance with Articles 74(1) and
83(1) of UNCLOS, and to refrain from seeking to negotiate such an agreement itself.
The administering power is also required to allow Mauritius to seek to agree upon
provisional arrangements of a practical nature, as provided for in Articles 74(3) and
83(3) of the Convention. The administering power must provide Mauritius with all
information in its possession that could bear upon maritime delimitation with the
Maldives and/or the negotiation of provisional arrangements of a practical nature
pending a final delimitation.
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V. The legal consequences that apply to third States and international
organisations
7.62 The administering power’s failure to complete the decolonisation of
Mauritius also entails legal consequences for third States and for international
organisations, including in particular the United Nations. This follows from the fact
that self-determination is an erga omnes norm826 that “gives rise to an obligation to
the international community as a whole to permit ... its exercise.”827
7.63 In the Wall case, the Court observed that Israel had violated “certain
obligations erga omnes”, including “the right of the Palestinian people to selfdetermination”.
The Court emphasised that such obligations “are by their very nature
‘the concern of all States’” and that “‘[i]n view of the importance of the rights
involved, all States can be held to have a legal interest in their protection’.”828
826 East Timor, Judgment, p. 102, para. 29 (“In the Court’s view, Portugal’s assertion that the right of
peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an
erga omnes character, is irreproachable. The principle of self-determination of peoples has been
recognised by the United Nations Charter and in the jurisprudence of the Court”.); South West Africa
(Advisory Opinion), p. 56, para. 126; East Timor (Portugal v. Australia), Judgment, Dissenting
Opinion of Judge Skubiszewski, I.C.J. Reports 1995, p. 266, para. 135.
827 International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, with commentaries (2001), Commentary to Art. 40, para. 5. See also Western Sahara
(Advisory Opinion), p. 31, para. 54 (“The Charter of the United Nations, in Article 1, paragraph 2,
indicates, as one of the purposes of the United Nations: ‘To develop friendly relations among nations
based on respect for the principle of equal rights and self-determination of peoples... ’. This purpose
is further developed in Articles 55 and 56 of the Charter. Those provisions have direct and particular
relevance for non-self-governing territories, which are dealt with in Chapter XI of the Charter.”);
Construction of a Wall (Advisory Opinion), p. 200, paras. 159-160 (“the Court is of the view that the
United Nations, and especially the General Assembly and the Security Council, should consider what
further action is required to bring to an end the illegal situation resulting from the construction of the
wall and the associated régime, taking due account of the present Advisory Opinion.”); Question of
Algeria (19 Dec. 1960) (“Recognizes further that the United Nations has a responsibility to contribute
towards the successful and just implementation of this right [to self-determination].”)
828 Construction of a Wall (Advisory Opinion), p. 199, para. 155 (quoting Barcelona Traction, Light
and Power Company, Limited (New Application: 1962) (Belgium v. Spain), Second Phase, Judgment,
I.C.J. Reports 1970, para. 33).
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7.64 Third States and international organisations are therefore required not to aid
or assist in maintaining a situation that denies the right of self-determination. The
Court’s Wall Advisory Opinion stated:
Given the character and the importance of the rights and obligations
involved, the Court is of the view that all States are under an obligation
not to recognize the illegal situation resulting from the construction of
the wall in the Occupied Palestinian Territory, including in and around
East Jerusalem. They are also under an obligation not to render aid or
assistance in maintaining the situation created by such construction. It
is also for all States, while respecting the United Nations Charter and
international law, to see to it that any impediment, resulting from the
construction of the wall, to the exercise by the Palestinian people of
its right to self-determination is brought to an end.829
7.65 Such obligations necessarily apply to third States and international
organisations in the context of decolonisation. In Legal Consequences for States of
the Continued Presence of South Africa in Namibia, the Court explained:
States Members of the United Nations are under obligation to
recognize the illegality of South Africa's presence in Namibia and the
invalidity of its acts on behalf of or concerning Namibia, and to refrain
from any acts and in particular any dealings with the Government of
South Africa implying recognition of the legality of, or lending
support or assistance to, such presence and administration… .830
829 Construction of a Wall (Advisory Opinion), p. 200, para. 159. See also South West Africa (Advisory
Opinion), p. 56, para. 126 (“the termination of the Mandate and the declaration of the illegality of
South Africa’s presence in Namibia are opposable to all States in the sense of barring erga omnes the
legality of a situation which is maintained in violation of international law”.); East Timor (Portugal v.
Australia), Judgment, Dissenting Opinion of Judge Skubiszekwski, I.C.J. Reports 1995, pp. 266-267,
para. 138; East Timor (Portugal v. Australia), Judgment, Dissenting Opinion of Judge Weeramantry,
I.C.J. Reports 1995, p. 209 (“if the people of East Timor have a right erga omnes to self-determination,
there is a duty lying upon all Member States to recognize that right. To argue otherwise is to empty
the right of its essential content and, thereby, to contradict the existence of the right itself.”); ibid., pp.
190, 205 and 221.
830 South West Africa (Advisory Opinion), para. 133. See also ibid., p. 54, para. 119 (noting that States
were “under obligation to refrain from lending any support or any form of assistance to South Africa
with reference to its occupation of Namibia”).
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7.66 The obligations of third States and international organisations in relation to
the decolonisation of Mauritius are not limited to refraining from recognising or
assisting the administering power in maintaining an unlawful situation. They also
have a positive obligation to advance the decolonisation process. The Declaration on
Friendly Relations makes clear that every State has an affirmative duty to help the
United Nations bring about a “speedy end to colonialism”.831
7.67 As the Court held in the Wall case: “every State has the duty to promote,
through joint and separate action, realization of the principle of… 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”.832 Consequently, “[i]t is… for all
States, while respecting the United Nations Charter and international law, to see to it
that any impediment, resulting from the construction of the wall, to the exercise by
the Palestinian people of its right to self-determination is brought to an end.”833
***
7.68 In conclusion therefore, the failure to complete the decolonisation of
Mauritius carries the legal consequence that the continuing wrongful act must be
831 Friendly Relations Declaration (24 Oct. 1970), Annex I, para. 1. See also U.N. General Assembly,
29th Session, Charter of Economic Rights and Duties of States, U.N. Doc. A/RES/3281(XXIX) (12
Dec. 1974), Art. 16(1) (“It is the right and duty of all States, individually and collectively, to eliminate
colonialism”.); East Timor (Portugal v. Australia), Judgment, Dissenting Opinion of Judge
Weeramantry, I.C.J. Reports 1995, p. 205 (“Corresponding to the rights so generated, which are
enjoyed by the people of East Timor, there are corresponding duties lying upon the members of the
community of nations. Just as the rights associated with the concept of self-determination can be
supported from every one of the sources of international law, so also can the duties, for a right without
a corresponding duty is no right at all.”)
832 Construction of a Wall (Advisory Opinion), p. 199, para. 156 (quoting Friendly Relations
Declaration (24 Oct. 1970), para. 1).
833 Construction of a Wall (Advisory Opinion), p. 200, para. 159.
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brought to an end and Mauritius’ decolonisation must be completed immediately.
This will be achieved when the administering power has fully withdrawn its
administration from the Chagos Archipelago, Mauritius is able to exercise full rights
of sovereignty, and the administering power recognises Mauritius’ sovereignty over
the Archipelago. The time period within which this must come to completion must
take account of the principle that colonial arrangements must be brought to a speedy
end, a process that has often taken less than a year in circumstances more complex
than those present here.
7.69 The failure to complete Mauritius’ decolonisation carries the further legal
consequence that the administering power must consult and cooperate with Mauritius
to facilitate Mauritius’ efforts to resettle its nationals, in particular those of
Chagossian origin in the Archipelago. The administering power must also consult
and cooperate with Mauritius so as to inter alia: (a) advance the economic well-being
of the Mauritian people; (b) give Mauritius access to the Chagos Archipelago’s
natural resources; (c) ensure that its environment is fully protected; (d) allow
Mauritius to participate in the authorisation, oversight and regulation of scientific
research in and around the Archipelago; (e) permit Mauritius to make submissions to
the U.N. Commission on the Limits of the Continental Shelf in regard to the
Archipelago; and (f) allow Mauritius to proceed to a delimitation of its maritime
boundaries with the Maldives.
7.70 Finally, third States and international organisations are required not to
recognise the existing unlawful situation, or assist the administering power in
maintaining it. Rather, they are affirmatively required to aid in bringing Mauritius’
decolonisation to full and final completion.
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Conclusions
For the reasons set out in this Written Statement, Mauritius submits as follows:
(1) The Court has jurisdiction to give the Advisory Opinion requested, and
there are no grounds for declining to exercise such jurisdiction;
(2) The process of decolonisation of Mauritius was not lawfully completed in
accordance with international law when Mauritius was granted
independence in 1968, and has not been lawfully completed to this day, as a
result of the separation of the Chagos Archipelago from Mauritius; and
(3) As regards the consequences, international law requires that:
(a) The process of decolonisation of Mauritius be completed immediately,
including by the termination of the administration by the United
Kingdom of Great Britain and Northern Ireland of the Chagos
Archipelago, so that Mauritius is able to exercise sovereignty over the
totality of its territory;
(b) Mauritius be able to implement with immediate effect a programme
for the resettlement on the Chagos Archipelago of its nationals, in
particular those of Chagossian origin;
(c) No State may render aid or assistance that will prevent the process of
decolonisation from being completed; and
(d) The United Nations, and especially the General Assembly, shall take
all actions necessary to enable the process of decolonisation to be
completed without further delay.
(4) In addition, the Court is invited to offer an Opinion on such other relief or
measures as may be required by the totality of the circumstances.
1 March 2018
Dheeren umar Dabee G.O.S.K., S.C.
Solicitor-General of Mauritius
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Certification
I certify that the copies of documents annexed to this Written Statement are true
copies of the original documents referred to.
1 March 2018
Dheerendra
Solicitor-General of Mauritius
287