Written Statement of Namibia

01-MAR-2018 16:44 FROM
TO [email protected]. P.003
REPUBLIC OF NAMIBIA
OFFICE OF THE DEPUTY PRIME MINI STER AND MINISTER OF
INTERNATIONAL RELATIONS AND COOPERATION
Tel: (061) 2112 9111
Fax: (061) 223 937/2211451220265
E-mail: [email protected]
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I 111nna1iD11al ( :, ,urr , ,f_lustin· l' l'at't· Palan·
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2517 1,,1
The Hague
Nt·therl:inds
Private Bag 1334 7
WINDHOEK
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LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS
ARCHIPELAGO FROM MAURITIUS IN 1965
(REQUEST FOR ADVJSORY OPINION)
l·'.xcdkncy,
\\:'it h re fort·ncc: to th c nbo\'c-mcntionnl procl't·di11gs, I h a\'e t ht· honour to su bmi 1_,1_ \l"ri It cn
s1a11.·mt·11t of the Republic of Namibia in accordance with the timetable st·I hy the Court.
It is rt·callnl that On 22 June 2017, the L 1 N Ct·neral .\ssembly adoplc,I Hes1>l 11 1ion , I /2')2,
rt't]Ut·s1:11g the IC.J 10 gin: an atl\'isnry opinion 011 two t)llt·stions:
11"1 \\'as the process of tlecolonil'.ation of 1\ lauri tius !awfull 􀊨· complt ·tnl wht·n l\!auri I iu􀊩 \\'as
gra11 1t:d illlk-pt·11<lt·nt:t· in I 'X,H, following the scp:1ra1i1>11 of ilw <:h;igos Ard 1ipelago fn •Ill
l\lauritius and having n·g:tnl to i111crnn1ional law, including ohlig:ttio11s rdlt·ctt"tl in C􀊪:111.·ral
:\sst·mbly rcsolu lions 151-t (X\') ol' 1-t Dccl'mb<:r I 9(,0, 20(,(, (XX) of l (, D<:ctmbn t %5,
::?2.12 (XX I) of 20 Dccl'1l1bcr 1966 and ::?]57 (xxii) of 19 December J 9(,7;,
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A..1 Al i. d
01-MAR-2018 16:44 FROM
TO [email protected].
(2) \X'hat 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?
Jurisdiction and admissibility
The Court has jurisdiction to answer the questions that have been referred to it, and it should
exercise its discretion to do so.
The questions have been duly referred by the UNGA, which is legally authorised to make such a
referral. Resolution 71 /292 was adopted by the required majority of States present and voting
under rule 85 of the General Assembly Rules of Procedure (94 votes to 15).The two questions
posed are of a legal character and in line with the !CJ Statute (Art.65 (1) ICJ Statute;). they arc clear
and precise, and the related factual issues are appropriate for determination by the Court.
Moreover:
a. The questions addressed to the Court fall within the competence of the UNGA, which
has been dealing with the decolonisation of Mauritius as part of its decolonisation
mandate and pursuant to Resolution 15H (XV) (1960).
b. The questions addressed to the Court are located in "a broader frame of reference than
the settlement of a particular dispute and embrace other elements"; these elements "are
not confined to the past but arc also directed to the present and the future", and are
"directly of concern to the United Nations." (\'vestern Sahara Advisory Opinion, para.
38; Wall Advisory Opinion, para. 49].
c. The Resolution raises questions of a broad nature which are of concern to the entire
international community, requiring the Court to apply the UNGA's resolutions on
decolonisation and other relevant international obligations, to assist the UNGA in
fulfilling its decolonisation mandate.
d. The international community's concern about the issues raised by the UNGA is
reflected in a number of resolutions adopted by international organisations, including
the Org:misation of African Unity/ African Union, Non-Aligned Movement and
Group of 77 and China.
. 2.
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01-MAR-2018 16:45 FROM TO [email protected].
Question 1
The process of decolonisation was not lawfully completed when Mauritius was granted
independence in 1968.
This is as a result of the unilateral detachment by the administering power of the Chagos
Archipelago from Mauritius on 8 November 1965, which was carried out in secret.
In this regard:
a. The right of self-determination was firmly established􀄻relcvant time - the
mid-1960s - including the work of the United Nations in supervising the process
of decolonisation.
b. Self-determination required the free and genuine consent of the population
concerned - as expressed through referenda/plebiscites - so as to determine the
future of the territory.
c. Self-determination should not be impeded by the arbitrary partition or division of
a tecritocy in the period before independence.
d. The Chagos Archipelago was excised from the territory of Mauritius by the
administering power, without any consultation with the people of Mauritius.
e. Dismembering l\fauritius' territory prior to independence prevented Mauritius
from the effective exercise in 1968 of its right of self-determination and viol:ited
I\1auritius' associated right of territorial integrity.
f. Accordingly, the decolonisation of Mauritius was not lawfully completed in 1968,
and remains incomplete. An internationally wrongful situation continues to this
day.
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P.005
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Question 2
As regards the consequences, international law requires that the process of decolonization of
Mauritius be completed immediately and without delay.
This is necessary to enable Mauritius to exercise sovereignty over the totality of its territory, and
to be able to implement a programme for the resettlement in the Chagos Archipelago of its
nationals, in particular those of Chagossian origin.
The decolonisation process shall be promptly completed, under the supervision of the UN.
States have an obligation to (a) refrain from assisting the unlawful conduct, through inter alia not
recognizing, benefiting, or rendering assistance to the illegal situation; and (b) assist the UN to
bring the unlawful conduct to an immediate end.
The Republic of Namibia reserves its right to supplement this written statement in written
comments on the written statements submitted by other States, in accordance with the timetable
set by the Court, and to participate in any hearings as set by the Court in due course.
Please accept, ExcellenC}', the assurances of my highest consideration.
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