LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHA GOS
ARCHIPELAGO FROM MAURITIUS IN 1965
(REQUEST FOR ADVISORY OPINION)
OROER OF 14 JULY 2017
OROER OF 17 JANUARY 2018
WRITTEN COMMENTS OF THE AFRICAN UNION
ON OTHER WRITTEN STATEMENTS
(ARTICLE 66, PARAGRAPH 4, OF THE STA TUTE)
15 May 2018
TABLE OF CONTENTS
LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS
ARCHIPELAGO FROM MAURITIUS IN 196S ............ ........................................................... 1
PART I ................................................................................................................................................. 1
PRELIMINARY REMARKS .............................................................................................................. 1
1. INTRODUCTION ................................................................................................................................... 1
Il. THE LIMITED RELEVANCE OF FACTS IN THE PRESENT PROCEEDINGS ..................................... 3
Ill. EVIDENCE CONFIRMS THAT THE DECOLONIZATION PROCESS OF MAURITIUS WAS
CONSIDERED AS UNLAWFUL AND INCOMPLETE UNDER CUSTOMARY INTERNATIONAL LAW ............ 6
PART Il ............................................................................................................................................ 12
THE COURT HAS JURISDICTION TO GIVE THE REQUESTED ADVISORY OPINION ... 12
1. INTRODUCTION ................................................................................................................................. 12
Il. No COMPELLING REASONS PREVENT THE COURT FROM GIVING THE REQUESTED
ADVISORY OPINION ........................................................................................................................................ 14
A. The Genera/ Assembly is not seeking to establish territorial rights ........................... 14
B. The requested opinion does not circumvent the princip/e of consent to judicial
settlement ..................................................................................................................................................... 19
C. The Request does not concern a bilateral dispute ............................................................. 21
D. The advisory procedure is fit to determine complex and disputed issues of fact. 26
E. The opinion will assist the General Assembly in the performance of its functions
28
Conclusion: The Court shou/d not exercise its discretion not to give an advisory
opinion ............................................................................................................................................................ 33
PART 111 ......................................................................................................................................... 35
THE QUESTIONS ARE CLEAR AND INTERLINKED .................................................... 35
AND SHOULD BE FULL Y ANSWERED ............................................................................... 35
1. THE SCOPE OF THE REQUEST .......................................................................................................... 35
Il. THE QUESTIONS ARE CLEAR AND Do NOT NEED ANY REFORMULATION ............................. 37
Ill. THE QUESTIONS POSED TO THE COURT ARE CLEARLY INTERLINKED AND SHOULD BE
80TH FULL Y ANSWERED BY THE COURT .................................................................................................... 4 7
PART IV ........................................................... ,,, .•••••••••••••••.•••••.•.•.•.•.•••••••••.••••......•••••••••••.•.•.•.•.••••••• S 1
THE ILLEGAL SEPARATION OF THE CHAGOS ARCHIPELAGO BREACHED
THE RIGHT TO SELF-DETERMINATION AND THE TERRITORIAL INTEGRITY
OF l\,'IA URITI US .................................................................................................................................... 51
1. INTRODUCTION ................................................................................................................................. 51
JI. THE EXISTENCE OF THE RIGHT TO SELF-DETERMINATION IN CUSTOMARY INTERNATIONAL
LAW BY 1965 ........................................................................................................ ........................................... 52
Ill. THE RIGHT TO SELF-DETERMINATION WAS AND IS STILL INTRINSICALLY LINKED TO THE
RIGHT TO TERRITORIAL INTEGRITY ....................................... ...................................................................... 58
IV. THE DECOLONISATION OF MAURITIUS WAS NOT LAWFULLY COMPLETED IN 1968 ......... 69
V. THE COURT SHOULD ADOPT A BROAD APPROACH IN DETERMINING THE LEGAL
CONSEQUENCES OF THE CONTINUED UNLAWFUL ADMINISTRATION OF THE CHAGOS ARCHIPELAGO
75
PART V ................................................................ .................................................................................. .. 84
CONCLUSIONS AND SU BMISSIONS ........................................................ ................................ ........ 84
I. Introduction
PARTI
PRELIMINARY REMARKS
1. The African Union has the honour to submit to the Court, in accordance with Article
66, paragraph 4 of the Statute, and the Court's Orders of 14 July 2017 and 17
January 2018, its written comments on other written statements (the "Written
Comments") in respect of the Questions submitted to the Court, seeking its
Advisory Opinion concerning the Legat Consequences of the Separation of the
Chagos Archipelago from Mauritius in 1965, pursuant to Resolution
NRES/71/292 of the General Assembly of the United Nations.• That Resolution
was adopted by a large majority of the Member States of the United Nations.
2. The Written Statement of the African Union of 1 March 2018, together with its
present Written Comments, constitute the position of the African Union and of its
Member States - i.e., 55 African countries 2
- on the Questions. 3 The Union
maintains, and incorporates herein by reference, its submissions completing and
concluding its Written Statement.
3. The African Union notes that a large majority of the States who have presented
written statements relating to the two Questions have adopted the same views as
those of the Union. lt is also noted that those States who have not addres sed the
merits have yet commended the General Assembly for its work on decolonization.
1 Dossier No. 7, Gcneral Assembly Rcsolution 71/292, Request for an advisory opinion of the
International Court of Justice on the lcgal consequcnces of the scparation of the Chagos Archipelago
from Mauritius in 1965, (A/RES/71/292 of 22 June 2017) (hercinafler "Rcsolution 71/292"). ln these
Written Cornments, the terrns 'scparation', 'excision' and 'detachmcnt' arc used interchangcably.
2 Algcria, Angola, Benin, Botswana, Burkina Faso, Burundi, Carneroon, Cabo Verde, Central African
Republic, Chad, Comoros, Republic of Congo, Republic of Côte d'Ivoire, Dcmocratic Republic of
Congo, Djibouti, Egypt, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Guinea, Guinea-Bissau,
Kenya, Lesotho, Liberia, Libya, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco,
Mozambique, Namibia, Niger, Nigeria, Rwanda, Saharawi Arab Democratic Republic, Sao Tome and
Principe, Sencgal, Seychelles, Sierra Leone, Somalia, South Africa, Sudan, Swaziland, Tanzania,
Togo, Tunisia, Uganda, Zambia, and Zimbabwe.
3 Occision Asscrnbly/AU/Dec.684 (XXX), Occision on Chagos Archipelago, January 2018.
4. Indeed, among the 31 States who have made submissions, 21 support the
jurisdiction of the Court to give an advisory opinion in respect to the Questions
posed by the General Assembly in its Request.4 Together they represent more than
two thirds of the States that have submitted written statements in the present
Advisory Proceedings.
5. Against this strong majority, only a minority of States have argued against the
jurisdiction of the Court to give an opinion on the Questions asked by the General
Assembly. 5 Noteworthy is the fact that, even among those States, some did not
address the issue of decolonization under international law altogether.6 Only two
of them, the United Kingdom and the United States, have denied the existence of
the right to self-determination at the time of the excision of the Chagos
Archipelago from Mauritius.7
6. A few States have invited the Court to be cautious in determining its jurisdiction
in the present proceedings or that have doubts about the Court's jurisdiction to
give the Opinion requested. Nevertheless, those States strongly support the right
to self-determination and the need to achieve the complete decolonization of
Mauritius. 8
7. This case is one of many on decolonization under the Charter of the United Nations,
which the Court has seen throughout its existence and to which it has made landmark
contributions. lt is expected at this last phase of decolonization, with very few
instances left, that the Court makes a remarkable statement on the law in the present
Request to uphold its historical achievements on the confirmation of international
law on decolonization.
-1 Argentina, Belize, Brazil, Cuba, Cyprus, Djibouti, Guatemala, (ndia, Kingdom of Lesotho,
Liechtenstein, Madagascar, Mauritius, Niger, Marshall Islands, Namibia, Nethcrlands, Nicaragua,
Serbia, Seychelles, South Afiica and Vietnam.
5 Australia, France, Israel, Republic of Korea, United Kingdom and United States.
6 Australia, Israel, France and Republic of Korea.
' Written Statcment of the United Kingdom, paras. 8.31-8.33, 8.41, 8.46; and Written Statcmcnt of the
United States, paras. 4.32, 4.42, 4.47, 4.49, 4.67.
x Chile, China, Gennany and Russia.
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II. The Limited Relevance of Facts in the Present Proceedings
8. The historical back ground made available in these proceedings, especially in the
Dossier, and by Mauritius and the United Kingdom (being the two countries that
have witnessed most the colonial history of the Chagos Archipelago ), is useful in
so far as it indicates that, 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 United Kingdom acknowledged this ail the way by declaring
that the Chagos Archipelago would be retumed to Mauritius if no longer needed
for defence purposes. 9
9. Thus, the Chagos Archipelago was connected to and administered in law as part
of Mauritius until it was detached by Ortler in Council on 8 November 1965. 10
10. However, the detailed factual accounts of Mauritius and of the United Kingdom
serves the purpose of putting the case before the Court in a historical context,
identifying and determining the critical date, at which the legal situation has to be
assessed, and confirming that the Archipelago was in fact separated from
Mauritius in 1965 be/ore independence was granted to it in 1968. Ali the other
factual and historical argumnts have relative relevance to the subject-matter of
the present Advisory Proceedings.
11. For the avoidance of doubt, it is emphasized here that the Court is not concemed to
establish a "critical date" in the sense given to this term in territorial disputes; for the
Questions do not ask the Court to adjudicate between conflicting legal titles to the
Chagos Archipelago, as is suggested by some States in their written statements. It is
here concemed on/y to identify the period of the historical context in which the
Request places the Questions referred to the Court and the answers to be given to
those questions, as the Court has observed in earlier advisory activities. 11
9 E.g. Written Statemcnt of the United Kingdom, para. 3.14.
10 Written Statcment of Mauritius, para. 2.15 el pa!i'sim.
11 Western Sahara, Adviso,y Opinion, l.C.J. Reports 1975, p. 12 (hereinal\cr "We.vtem Sahara
Atlvisary Opinio11 "), p. 38, para. 76.
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12. The Afiican Union holds the view that only one main fact - which is undeniable and
undisputed - matters for the Court to give its Opinion in the present proceedings: the
separation of the Chagos Archipe/agofrom Mauritius.
13. The Request is very precise in that respect and any other interpretation would be
incompatible with its clear terms. Indeed, Question (a) read::;, in relevant part, as
follows: "Was the process of decolonization of Mauritius lawfully completed
when Mauritius was granted independence in 1968, following the separation of
the Chagos Archipelago fi-am Mauritius". ( emphasis added) The word
"following" in its ordinary meaning shows that the focus of the present advisory
proceedings should be the "separation of the Chagos Archipelago from
Mauritius". Nothing more, nothing less.
14. What the Court is jirst invited to determine is whether that "separation", be/ore
Mauritius was granted independence, was in accordance with international law.
Then, the Court is invited to determine the legal consequences of the continued
presence of the United Kingdom in Chagos, because of the said "separation". The
Court should not burden itself with analyzing facts that have occurred ex post
facto - that is after the separation of the Chagos Archipelago - and that have little
significance for the clarification of the legal issues at stake. This is evident as the
Court's advisory mandate involves the giving of legal advice on legal questions
requested by the General Assembly. 12
15. This does not mean, of course, that any other factual information, regarding the legal
status at other times before or after the period from 1965 to 1968, is wholly without
relevance for the purposes of the present proceedings. lt does, however, mean that
such factual information has relevance on/y in so far as it is part of the "same factual
complex"13 than the issue/fact of the separation ofChagos from Mauritius in 1965.
1 :? The Court has stated that "questions 'framcd in tenns of law and raisfingJ problcms of international
law ... arc by thcir very nature susceptible of a rcply based on law"' (Accordanc:e with lntemational
Law ql the Unilateral Dec:/aration of Jndependence in Respe,·/ of Ko:wvo, Advisory Opinion, 22 July
2010; and Western Sahara Adviso,y Opinion, para. 15).
13 The African Union borrows this expression from the law as dcvelopcd by the Court. Cf, Applù:atÎon
o
f
the Convention on the Prevention and P1111ishme11t of the Crime of Genocide, Co1111ter-c/aims, Ordl!r
of 17 Dec:ember 1997, I.C.J. Reports /997, p. 243; Oil Plaljàrms (lslamic Republic of Iran v. United
4
16. In other words, the Court should only be concemed with those facts that inextricably,
intrinsically and extrinsically relate to the "separation of the Chagos Archipelago
from Mauritius" in 1965.
17. The African Union does not subscribe to the view of certain States that an analogy
may be drawn between the present Advisory Proceedings and the fact-intense issues
raised in the Western Sahara Advisory Opinion. 14 In the latter, the questions put to
the Court called for a thorough factual examination.
18. A quick look at the Questions put to the Court in General Assembly Resolution 3292
(XXIX) in the Western Sahara Advisory Opinion instantly reveals a profound and
inevitable need for a full-fledged factual and historical examination. The questions
read as follows:
"I. Was Western Sahara (Rio de Oro and Sakiet El Harnra) at the time
of colonization by Spain a terri tory belonging to no one (terra nullius)?
If the answer to the first question is in the negative,
II. What were the legal ties between this territory and the Kingdom of
Morocco and the Mauritanian entity?"15
As such, they raised fact-intense problems of public international law, such as, inter
alia, whether the territory - subject of the advisory opinion - was terra nullius at the
time of its colonization and what legal ties were between that territory and
Morocco and Mauritania.
States of America), Counter-Claim, Ordcr of JO March 1998, I.C.J Reports /998, p. 190; and Armed
Activities 011 the Territory of the Congo {Democratic Republic of the Congo v. Uganda), Orcier of 29
November 200/, I.C.J. Reports 200/, p. 660.
14 E.g., WriUcn Statcmcnt of Israel, paras. 3.1 and 3.21 ff; and Writtcn Statemcnt of Australia, paras. 55
n:
15 Western Salwra Advis01y Opinion. para. 75.
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19. It is surely injudicious to try to draw an analogy between the questions raised in both
cases, as the difference is obvious to the naked eye. In the present case, the
Questions are so defined in legal and almost fact-free tenns, as has already been
explained in the Written Statement of the Afiican Union and in the above
paragraphs.
20. Therefore, the Court is invited not to dwell at length into the factual and historical
considerations more than they deserve for moving it to the next step; the legal
consideration of the Jegal questions raised in the Request. After ail, the Court has
stated that it may
.. be requested to give its opinion on questions of law which do not call
for any pronouncement . . . [ on existing rights and obligations, or on their
coming into existence, modification or tennination, or on the powers of
international organs], though they may have their place within a wider
problem the solution ofwhich could involve such matters."16
III. Evidence Confirms that the Decolonization Process of Mauritius Was
Considered as Unlawful and lncomplete under Customary
International Law
21. The Written Statement of the African Union has emphasized that, in practice, the
decolonization process of Mauritius has always been considered incomplete and
unlawful under customary international law.
22. Resolutions adopted by the General Assembly between 1965 and 1967 are a first
evidence of practice condemning the unlawful and incomplete process of
decolonization of Mauritius under customary international law:
16 /bù/., para. 19.
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23.
i)
ii)
General Assembly Resolution 2066 (XX), 16 December 1965: "Invites
the administering Power to take no action which would dismember the
Territory of Mauritius and violate its territorial integrity". 17
General Assembly Resolution 2232 (XXI), 20 December 1966:
"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)"18
As the Court has underlined in the North Sea Continental Shelf Cases, the practice
that is essential to look at when dealing with an issue of international law is the
practice of the "concemed states". 19 There is no doubt that those who are the
concemed States in the present proceeding are, first and foremost, the African States
and then those States that have been victims of colonialism (most of whom are part
of the Non-Aligned Movement).
24. The Court should take into account the strong body of practice, which has been
developed by African States, as Members of the Organization of African Unity
(OAU) and later of the African Union, as well as by the Non-Aligned Movement.
The Resolution containing the Request takes note, in relevant part, that:
11 11 Dossier No. 146, General Assembly Resolution 2066(XX), Question of the Mauritius, 16
December 1965, para. 4.
18 Dossier No. 171, General Assembly resolution 2232 (XXI), Question of American Samoa, Antigua,
Bahamas, Bennuda, 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, 20 December 1966, (hereinafter
"Rcsolution 2232 (XXI)") para. 4. See also Dossier No. 198, General Assembly Resolution 2357
(XXII), 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. Kilts-Nevis-Anguilla, St. Lucia, St. Vincent,
Seychelles, Solomon Islands, Swaziland, Tokelau Islands, Turks and Caicos Islands and the United
States Virgin Islands, 19 December 1967 (hereinafter "Resolution 2357"), para. 4.
1'1 North Sea Continental Shelf (Federal Republic of Germt11tv1Denmark; Federa/ Republic of
Germany!Netherlanclç}, [CJ Reports 1969, p. 3, p. 42, para. 73.
7
"the resolutions on the Chagos Archipelago adopted by the
Organization of African Unity and the African Union since 1980, most
recently at the Twenty- Eighth Ordinary Session of the Assembly of
the Union, held in Addis Ababa on 30 and 31 January 2017, and the
resolutions on the Chagos Archipelago adopted by the Movement of
Non-Aligned Countries since 1983, most recently at the Seventeenth
Conference of Heads of State or Govemment of Non-Aligned
Countries, held on Margarita Island, Bolivarian Republic of
Venezuela, from 13 to 18 September 2016, and in particular the deep
concem expressed therein at the forcible removal by the United
Kingdom of Great Britain and Northem Ireland of all the inhabitants of
the Chagos Archipelago".20
25. The African Union has continuously 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
deco/onization of Africa incomp/ete".21 (emphasis added) There is an abundance
of evidence on the constant practice, at the level of the two Pan African
Organizations, regarding the unlawful and incomplete decolonization process of
Mauritius.
26. As early as 1980, it was resolved by the OAU that Diego Garcia "has always been
an integral part of Mauritius" and that it should "be unconditionally retumed to
Mauritius. "22 Also, in 1980, it denounced the "militarization of Diego Garcia" and
recognized that "Diego Garcia was not ceded to Britain".23 The OAU continued to
express its concern "that the Chagos Archipelago was unilaterally and illegally
excised ... in violation of UN Resolution 1514."24 Subsequently, the African
Union constantly emphasized the fact that the excision of the Chagos Archipelago
from Mauritius in 1965 was contrary to international law and relevant resolutions
:?o Dossier No. 7, Resolution 71/292, Prcambular para. 6.
:?1 Resolution on Chagos Archipelago, Assembly/AU/Rcs.l(XXV), June 2015 (hcreinafler "Resolution
on Chagos Archipelago, June 2015"), preamble para. 3 (emphasis added).
:?:? Rcsolution on the Diego Garcia, AHG/Res.99 (XVII), July 1980 (hereinaftcr "Resolution on Diego
Garein"), Prcambular para. 1 and Operative para. 3.
:?J Resolution on the Diego Garcia, Prcambular paras. 2, 4 and 5.
H Decision on Chagos Archipclago, AHG/Dec.159 (XXXVI), July 2000, para. 1.
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of the General Assembly, including Resolution 1514, white also making
references to UN Resolutions 2232 (XXI) and 2357 (XXIl).25 lt called 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
effective/y exercise its sovereignty over the Archipelago"26 ( emphasis added) and
declared that "the decolonization of the Republic of Mauritius wi/1 not be
complete until it is able to exercise its Juil sovereignty over the Chagos
Archipelago". 27 Further, the Malabo Africa-South America Summit Declaration
noted "with grave concern that despite the strong opposition of the Republic of
Mauritius, the United Kingdom purported to establish a 'marine protected area'
around the Chagos Archipelago which contravenes international law and further
impedes the exercise by the Republic of Mauritius of its sovereignty over the
Archipelago and of the right of retum of Mauritian citizens who were forcibly
removed from the Archipelago by the United Kingdom".28 At the last Summit, in
January 2018, the Assembly recalled that the situation of the Archipelago would
have to be assessed in light of Resolutions 2232 (XXI) and 2357 (XXII), which
have reiterated "that any attempt aimed at the partial or total disruption of. .. the
territorial integrity of colonial Territories in the decolonization process... is
incompatible with the purposes and principles to the Charter of the United
Nations."29
27. Following the same trend as than the two Pan African Organizations, there is an
equally abundant body of evidence at the level of other organizations and groups
of States. For example, the Non-Aligned Movement confinned that the Chagos
Archipelago was unlawfully excised from Mauritius and expressed grave concems
regarding "the exercise of the right of retum of Mauritian citizens who were
2S Decision Assembly/AU/Dec.331 (XV), Decision on the Sovcreignty of the Republic of Mauritius
Over the Chagos Archipelago, July 2010, para. !; Resolution Assembly/AU/Res.l (XVI), Resolution
on Chagos Archipelago, January 2011, Preambular para. 1; Resolution on Chagos Archipelago June
2015, preamble para. 1; and Decision on the Chagos Archipclago January 2018, Preambular para. 2.
16 Occision on the Sovereignty of the Republic of Mauritius Over the Chagos Archipclago, para. 1.
11 Assembly/AU/Res.l(XXVIII), Resolution on Chagos Archipelago, January 2017, Prcambular para.
3.
18 Third Africa-South America Summit, Malabo Declaration, February 2013, para. 28.
?9 Dossier No. 171, Rcsolution 2232 (XXI), par.i. 4; Dossier No. 198, Resolution 2357 (XXII), para. 4.
9
forcibly removed from the Archipelago by the United Kingdom". 30 Likewise, the
Group of 77 and China stated in several declarations that the excision of Chagos
constituted a violation of international law and that "failure to resolve
decolonization and sovereignty issues would seriously damage and underrnine the
development and economic capacities and prospects of developing countries".31
28. To the best knowledge of the African Union, the United Kingdom never reacted to
those condemnations from the African Union, the Non-Aligned Movement or the
Group of 77 and China.
29. lt is ail these considerations that confirrn the position of the African Union,
according to which both the detachment of the Chagos Archipelago from Mauritius
in 1965 and the continued administration by the United Kingdom of Chagos are
contrary to international law.
30. In the present Written Comments, the African Union will first show that the Court is
competent to give the Advisory Opinion requested and that there are no compelling
reasons for it not to do so (Part ll). The African Union will, then, explain that the
two Questions posed by the General Assembly in the Request are clear and
interlinked and that they should be both fully answered (Part Ill). The African
Union highlights that the illegal separation of Chagos from Mauritius is a violation
of both the right to self-deterrnination and the territorial integrity of Mauritius and, as
consequence, the Court should adopt a broad perspective to the legal consequences
3 ° Cf., Non-Aligned Movement, 17th Mid-Tenn Ministerial Meeting of the Non-Aligned Movement.
Final Document: Chagos Archipelago (26-29 May 2014). paras. 307- 309; Non-Aligned Movement,
17th Summit of Heads of State and Govemment of the Non-Aligned Movement, Final Document:
Chagos Archipelago (17-18 Sept. 2016), paras. 336-337; Chair of the Coordinating Bureau of the NonAligned
Movement Political Declaration of New York (20 Sept.2017), para. 17.
31 Cf., Dossier No. 466, U.N. Confercnce on Trade and Development, 13th Session, Ministerial
Declaration of the Group of77 and China on the occasion ofUNCTAD XIII (extract) (23 Apr. 2012);
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 ofMinisters for Foreign Affairs of the
Member States of the Group of 77 (28 Sept. 2012 and 26 Sept. 2013); Group of77 and China, Summit
ofHeads ofState and Govemment of the Group of 77, Declaration: For a New World Order for Living
Weil (14-15 June 2014); Group of77 and China, 38th Annual Meeting ofMinisters for Foreign Affairs,
Ministerial Declaration (26 Sept. 2014); Dossier No. 471. Group of 77 and China, 14th Session,
Ministcrial Declaration of the Group of 77 and China on the occasion of UNCTAD XIV, TD/507 ( 17-
22 July 2016); Group of 77 and China, 40th Annual Meeting of Ministers for Foreign Affairs,
Ministerial Declaration (23 Sept. 2016); and Group of 77 and China, 41 st Annual Meeting of Ministers
for Foreign Affairs, Ministcrial Declaration (22 Sept. 2017).
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deriving from the illegal separation and continued administration of the Chagos
Archipelago (Part IV).
fi
I.
PART Il
THE COURT HAS JURISDICTION TO GIVE THE REQUESTED
ADVISORY OPINION
Introduction
31. Sorne States have opposed the Court's jurisdiction to entertain the Request. For
them, the Request does not comply with the requirements of Article 65 of the
Statute of the Court, since the Questions do not contain an exact statement of the
legal questions upon which the opinion of the Court is sought; but rather, a proxy
for those questions,32 and that the General Assembly either acted ultra vires or acted
without competence outright. 33
32. Those, and other States, have also maintained that, even if the Court were to
conclude that it had jurisdiction, the question would arise as to whether il should
exercise its discretion to decline to give the Advisory Opinion sought in this case
on the basis of"judicial propriety", as the "circumstances of the present case are of
such a character as to lead the Court to exercise its discretionary power under
Article 65 of its Statute and decline to give the requested advisory opinion".34
They invite the Court not to give the Advisory Opinion, because there were several
"compelling reasons" for it not to do so, e.g., that "the request before the Court
presents fundamenta/ challenges to the integrity of the Court 's advisory
proceedings ... a decision to render an opinion on the merits would undermine the
Court's advisory function and circumvent the right of States to determine for
themselves the means by which to peacefully sertie their disputes". 35 (emphasis
added)
33. The reasons given by the proponents of this negative attitude can be grouped and
formulated as follows:
32 E.g., Written Statement of Australia, para. 4.
n E.g., Written Statcment of the Russian Federation, para. 29.
34 Written Statcment oflsrael, para. 1.4.
H Writtcn S!alcmcnt of the United States, para. 5.1.
12
i) The General Assembly has no right to establish the legal status of
terri tories;
ii) The requested Opinion would have the effect of circumventing the
principle that a State is not obliged to allow its disputes to be submitted for
judicial settlement without its consent;
iii) The Request concerns a dispute that has arisen independently in bilateral
relations;
iv) The advisory procedure is illequipped for the determination of complex
and disputed issues of fact, given the lack of adversarial procedures and
protections available in contentious proceedings;
v) The Opinion will not assist the General Assembly in the performance of its
functions, because the Assembly is not perfonning any substantive
functions with respect to the Chagos Archipelago; and accordingly,
vi) The Court should exercise its discretion, so as not to give an advisory
opinion.
34. These unfitting arguments are examined and refuted in turn.
35. For the avoidance of doubt, however, it is not submitted by the Afiican Union that
the Court's prerogatives are fettered or impaired, even if there was no question
over its competences or the propriety to give the Opinion requested. The Court
has unambiguously stated that,
"a/though no question has been raised in the statements and comments
submitted to the Court in the present proceedings either as to the
competence of the Court to give the opinion or as to the propriety of its
13
II.
doing so, the Court wi/1 examine these two questions in tum." 36
(emphasis added)
No Compelling Reasons Prevent the Court from Giving the Requested
Advisory Opinion
36. It has been claimed that "compelling reasons" bar the Court from giving the
Advisory Opinion requested for various reasons refuted below. 37
37. But, it is submitted, however, the Court cannot arbitrarily refuse to give an opinion;
it can only do so if "the circumstances of the case are of such a character as should
lead it to decline to answer the Request".38
A. Tl,e General Assemhly is not seeking to establis/1 territorial rig/its
38. lt has been claimed that there is a longstanding dispute between the United
Kingdom and Mauritius over the Chagos Archipelago, with respect to
sovereignty,39 and that the General Assembly acted ultra vires in requesting the
Advisory Opinion of the Court, as it had no right to establish the legal status of
territories, as the case before the Court involved a territorial dispute. 40 Therefore,
the Court lackedjurisdiction to respond to such a request.41 But, this is not correct
for reasons that will be discussed below.
36 Application for Revieiv of J11dgeme111 No. J 58 of the United Na/ions Administrative Tribunal,
Advisory Opinion, J.C.J. Reports /973, p. 166 (hereinafter "Review of J11dgeme11t No. 158 Advisory
Opinio11'ï, p. 171, para. 13.
17 Written Statement of the United Kingdom, paras. 7.12-7.2 l.
38 /nterprewtion of Peace Treaties ivith Bulgaria, Htmgary and Romania, (First Phase), Advisory
Opinion, I.C.J. Reports 1950, p.65 (hereinafter "lnterprctation of Peace Trcaties (First Phase)
Advisory Opinion"), p. 72.
19 Writtcn Statement of the United Kingdom, paras. 5.3 - 5.18.
40 Written Statement of the Russian Federation, para. 29; Written Statement of France, para. 6; and
Writtcn Statement of the Republic of Korea, para. 21.
"' Written Statement of the Russian Federation, para. 29. Cf, alo Writtcn Stalcment of France,
para.15; Written Statement of the Republic of Chile, para. 4; and Writtcn Statcmcnt of the Republic of
Korca, para. 21.
14
'
39. True, it is among the primary objectives of the African Union to .. defend the
sovereignty, territorial integrity and independence of its Member States"42; just as
did the Organization of African Unity before it. And, true, it is in this capacity and
intent that the Union is participating in these proceedings. But, it is a different
proposition altogether to say why and over what the General Assembly is making
its Request.
40. The African Union, thus, submits that the question of the separation of the Chagos
Archipelago from Mauritius is a matter of deco/onization.43 As such, the present
proceedings are neither about a sovereignty claim nor a territorial dispute, as it
will be also shown in Part IV of the present Written Comments. Many States have
confirmed this.44 Even among those few written statements that raise the issue of a
bilateral dispute between Mauritius and the United Kingdom, as a reason for the
Court not to give its opinion, some of them have been cautious not to characterize
the dispute as one of sovereignty.45
41. Therefore, the characterisation that the Request seeks to establish the legal status
of territories and to settle a sovereignty dispute, is misleading, as the questions of
the Request do not ask the Court to adjudicate between conflicting legal titles to the
Chagos Archipelago.
42. First of all, the reason behind the Request is to obtain from the Court an opinion,
which the General Assembly deems of assistance to it for the proper exercise of
its functions conceming the decolonization of a territory.
43. The Questions, as formulated in the Request, do not relate to a territorial dispute
between the interested States in the proper sense of the term, as they do not call
for adjudication upon existing territorial rights or sovereignty over territory, and
they do not convey any such implication. They confirm that the General Assembly
42 Constitutive Act of the African Union dated 11 July 200 l, Article 3 (b ).
-11 Cf, Writtcn Statement of Argentina, para. 11: and Written Statemcnt of Brazil, para. 11.
44 Cf. Written Statement of Argentina, para. 11; Written Statement of Djibouti, para. 22; Written
Statement of Guatemala, para. 24; Written Statcment of the Marshall Islands, para. 16; Written
Statement of Mauritius, para. 1.38; and Written Statcment of South Africa, para. 45.
45 See, e.g. • Written Statcment of China, para. 13.
15
never considered the issue of Chagos as constituting a sovereignty dispute, but
rather a decolonization issue - a decolonization issue that bas arisen from a
violation of the territorial integrity of Mauritius and from a violation of the right
of the Mauritian people, including those of Chagossian origin, to exercise their
right to self-determination in accordance with customary international law as
already applicable in 1965.
44. There is no issue before the Court on the validity of the so-called territorial titles;
it is about the verification of the legal consummation of a legal process
(decolonization) and its consequences. The issues raised by the General Assembly
reflect a broad concern of the international community regarding the need for
legal clarity with regard to the scope and application of a set of norms of
international law in the context of decolonization, such as territorial integrity and
the right of peoples to self-determination.
45. This was even confirmed by the United Kingdom itself, which very clearly said
that:
46.
"The Request appears to have been carefully framed so as to avoid
making an express re/erence to sovereignty, and does not expressly
seek an opinion as to which State is entitled to or should retain or
acquire sovereignty and when. "46
Even the second half, following this statement, in which the United Kingdom
said:
"Nevertheless, it is very difficult to read the Request in any way other
than as requiring an opinion from the Court on these long-disputed
issues, including through Question (b) as to the legal consequences of
the current UK administration. "47
46 Written Statemcnt of the United Kingdom, para. 1.20.
41 Loc. c:it.
16
does not change the view that the Request is not concemed with sovereignty, as it
relates to the consequences of not abiding by international law (thus entailing
consequences), as discussed in connection with the meaning of Question (b) and
its interlink with Question (a) further herein.
47. Therefore, the Advisory Opinion requested by the General Assembly is intended
to provide it with the necessary legal guidance on a matter within its competence
and interest, namely the granting of independence to colonial countries and
peoples and the protection of their inalienable right to sovereignty, national unity,
and territorial integrity, in particular for the full implementation of Resolution
1514 (XV).
48. ln fact, as already argued in the Written Statement of the African Union, the
General Assembly, in Resolution 1514, was "[ c ]onvinced that ail peoples have an
inalienable right to complete freedom, the exercise of their sovereignty and the
integrity of their national territory ... ".48 And, as a consequence, the Assembly
warned 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."49
49. These clear convictions and commands of the General Assembly truly confirm
that the Request is not about a territorial sovereignty dispute, but rather how the
issues of territorial integrity can affect the right to self-detennination and
constitute "by necessary implication"50 a violation of international law.
411 Dossier No. 55, General Assembly Rcsolution 1514 (XV) "Declaration on the granting of
independence to colonial countries and peoples" (NRES/1514 (XV) of 14 December 1960)
(hereinafter "Resolution 1514 (XV)"), Preamble.
49 Ibid., para. 6. "The relèrence lo "country" in parabrraph 6 is broader than "States" or "Mcmbcr States"
and mirrors the refcrcnce to "colonial countrics" in the title of the Dcclaration on the b'Tilnting of
indepcndencc lo colonial countries and peoples". See Written Statcmcnl of Argcntina, para. 40.
50 Repcwatio11 for i11j11rie.1· .mfferecl in the .'ien•ice ci t/,e Uniletl Natio11.1·, Aclvi.'imJ•
Opi11io11: I.C.J. Repom /9./9, p.182.
17
50. In that context, the African Union contests any and all assertions such as that
"[tJhe request ... in reality seeks to have the Court adjudicate upcn a pre-existing
bilateral dispute between the United Kingdom and Mauritius conceming
sovereignty over the Chagos Archipelago and related matters",51 or that the preexisting
bilateral dispute "that arose between the United Kingdom and Mauritius
in the early 1980s conceming territorial sovereignty over the Chagos Archipelago
and associated matters lies at the heart of the questions posed by the General
Assembly". 52 This is simply a wrong characterization of the content of the
Request. This was not in the mandate of the General Assembly and it was never
its intent to deal with those alleged issues.
51. At the heart of the present Request is the question whether the United Kingdom
could under international /aw, as expressed in relevant reso/utions of the General
Assembly, detach Chagos from Mauritius in 1965, before granting her
independence in 1968. This is not about a sovereignty dispute, but rather about
the powers of the administering authority over a colonial territory, the
ascertainment of territorial integrity and how its violation of territorial integrity
affects the exercise of the right to self-determination as will be shown in Part IV
of the present Written Comments. Under customary international law, the
administering authority does neither have the power nor the right to dismember
the territory under its administration. Hence, the United Kingdom has acted ultra
vires.
52. This means that the present proceedings are intended to focus on how the
detachment of the Chagos Archipelago in 1965 - which constitutes a violation of
the territorial integrity of Mauritius (as already emphasized in the Written
Statement of the African Union)- is not in accordance with international law, and
in particular the relevant resolutions of the General Assembly. There is simply no
dispute - and surely not a sovereignty one - to decide in the present advisory
proceedings.
51 Writtcn Statement of Australia, para. 5.
52/bid., para. 59.
18
53. In other words, the bilateral actions and/or omissions which took place with
respect to Chagos in 1965 and afterwards are part and parcel of the broader
interests of the international community as a whole (represented by the General
Assembly) with respect to decolonization. They are not part of a sovereignty
dispute between Mauritius and the United Kingdom.
54. Even considering that there might be a bilateral dispute between Mauritius and the
United Kingdom - quod non - the African Union considers that it is important to
stress that it is not such a bilateral dispute over sovereignty between them that led
to a violation of law of decolonization; it is the other way around. The violation of
the right to self-determination and territorial integrity, as an obligation placed
upon States, crystalized into a bilateral dispute, which overlaps with a multilateral
concern - which is behind the Request.
55. Even qualifying the situation as a territorial dispute - once again quod non - does
not preclude the Court from exercising jurisdiction in the present proceedings, as
the detachment of Chagos in 1965 does not only reveal the existence of a
territorial sovereignty dispute, but also that this dispute exists in a broader context,
that of the process of decolonization, which constitutes a matter of international
concern.53
B. Tl,e req11ested opi11ion does not circ11mvent tfle principle of consent to
j11dicial settlement
56. The power of the General Assembly to request an advisory opinion of the Court, it
was claimed, may not be used ultra vires in order to settle the legal status of a
territory by circumventing the agreement of parties to a territorial dispute.54 It has
been contended that the General Assembly, acting at the request of Mauritius,
seeks to bypass the required consent of the parties by requesting an advisory
opinion from the Court, whereas both the United Kingdom and Mauritius, in their
53 Written Statement of Argentina, para. 29. That international conccm is rcllcctcd, for examplc, in the
interest of the African Union, the Non-Aligned Movcment, the Group of 77 and China; the African,
Caribbcan, and Pacifie Group of States; and the AfricaSouth America Summit. Cf, Written Statcmcnt
of Cuba, p. 1; and Written Statement of Mauritius, para. 4.1.
5-1 Written Statemcnt of the Russian Federation, pam. 29.
19
respective declarations lodged under Article 36, paragraph 2, of the ICJ Statute,
excluded ail legal disputes between them from the contentious jurisdiction of the
Court. 55 Therefore, if granted. the opinion would not have the effect of
circumventing the principle that a State is not obliged to allow its disputes to be
submitted for judicial settlement without its consent.56
57. In support ofthese claims, the Court'sjurisprudence was recalled, particularly, the
Status of the Eastern Carelia and the Western Sahara Advisory Opinions.57
58. Therefore, before addressing the issue of the alleged existence of a bilateral
dispute between Mauritius and the United Kingdom, and its potential effect as to
the permissibility of the recourse by the General Assembly to the advisory
function of the Court, it is fitting to address whether the consent of States is
required for such a function in the first place.
59. The fact that there are States, including the United Kingdom, which have voted
against the Resolution A/RES/71/292, adopting the Request, does not constitute a
compelling reason preventing the Court from giving its advisory opinion, on the
grounds that they did not consent to the pending advisory procedure. 58
60. ln fact, the Court has repeatedly affirmed that its opinion ''is given not to the
States, but to the organ which is entitled to request it" ( emphasis added). 59 It has
indicated that by becoming a party to the Charter and the Statute of the Court, a
55 Written Statement of Australia, paras. 14 f.
56 Written Statement of the United Kingdom, paras. 7. t IT.; Written Statemcnt of the United States, paras.
2.21 and 3.3; Written Statemcnt of Israel, paras. 3.6, 3.17 1T; Written Statement of China, para. 15; and
Written Statement of France, paras. 7 and 15.
57 Status of the Eastern Carelia, Advisory Opinion, 1923 P.C.l.J. (.ser. B) No. 5, p. 27 (hereinafter
''Eastern Carelia Advisory Opinion"); and Western Sahara, Advi.sory Opinion, pp. 32-33, para. 25,
referring to lnterpretation of Peace Treaties Advisory Opinion, para. 71.
58 The record shows that 94 Member States voted in fav our of the Rcsolution and 15 votcd against it.
59 lnterpretalion of Peace Treaties Adviw1y Opinion; and legaliry of the Threat or Use of Nt1clear
Weapo11s, Advisory Opinion, /. C.J. Reports 1996. p. 226 (hercinaftcr "N11cleur Weapons Advisory
Opinion"), p. 235, para. 14.
20
State has already given its consent to the exercise of the Court's advisory
jurisdiction. 60
61. The Court also confinned that "[n]o State ... can prevent the giving of an
Advisory Opinion which the United Nations considers to be desirable in order to
obtain enlightenment as to the course of action it should take. •'6!
62. ln sum, the Court does not need the consent of any State to give an advisory
opinion.
63. But the issue is not this; the States who have made this protestation are actually
preoccupied with consent in adjudicating bilateral disputes. As it will be shown
below, the Request does not concerna bilateral dispute.
C The Reqr,est does not concern a bilateral dispute
64. The African Union does not share the view that the present proceedings concem a
bilateral dispute. At the outset, the African Union would like to recall what the Court
said in the Namibia Advisory Opinion: "The fact that ... in order to answer the
question submitted to it, the Court may have to pronounce on Iegal issues upon
which radically divergent views exist between ... [interested parties], does not
convert the present case into a dispute nor bring it within the compass of Articles 82
and 83 of the Rules of Court .... Differences of views among States on legal issues
have existed in practically every advisory proceeding; if ail were agreed, the need to
resort to the Court/or advice would not arise."62 (emphasis added) Thus, the Court
finds that the controverted political background of the question is not a reason to
decline to give the advisory opinion requested.
60 lega/ Conseq11ences for States of the Contim1ed Presenc:e af South Africa in Namibia (South West
Africa) 11otwithstandi11g Secttrily Cormeil Re.w/11/ion 276 (1970), Advisory Opinion, l.C.J. Reports
1971, p. 16, (hereinafter "Namibia Advisory Opi11io11" at p. 23, para. 31.
61 lnterpretalion of Peace Treaties (First Phase) Aclvismy Opinion, p. 71; sce also Applicability of
Article VI, Section 22, of the Convention on the Privileges e1ncl bmmmilies of the United Ne1tions,
Adviso,y Opinion, I.C.J. Reports 1989, p. 177, pp. 188-189.
62 Namihia Aclvisory Opinion, p. 24, para. 34.
21
65. The allegation of the existence of a bilateral dispute has been pursued under two
different concepts: origination and characterization.
66. As to the origin of the dispute, it has been contended that the Court has been asked
to adjudicate a pre-existing bilateral dispute between the United Kingdom and
Mauritius concerning sovereignty over the Chagos Archipelago and related
matters,63 and that the Request concerns a longstanding bilateral dispute that has
arisen "independently in bilateral relations•'64 (i.e., that is independently from the
General Assembly), in a reference to the request concerning Western Sahara
Advisory Opinion. 65 ln that early case, the Court had found that a legal
controversy did indeed exist, "but one which arose during the proceedings of the
General Assembly and in relation to matters with which it was dealing";66 but, not
one that had arisen "independently in bilateral relations".67
67. lt was claimed that, unlike the cases where the Court has decided to give an
advisory opinion despite an underlying bilateral dispute, because the legal position
of the parties cannot be compromised by the Court's answers, ''the current
Request would compromise the legal positions of the United Kingdom and
Mauritius in their dispute concerning sovereignty over the Chagos Archipelago".68
In particular, it was suggested, that in responding to Question (b), the Court will
have to confront directly the substantive legal issue in dispute between the United
Kingdom and Mauritius; that being a dispute that concerns the present day rights
of the parties, that has not already been decided, and that specifically relates only
to the existing bilateral dispute. 69
68. The present Request finds its whole Jons et origo in, and springs directly from, the
activities of the General Assembly relative to decolonization. ln the present
proceedings, the nature of the dispute has been stretched thin by States wishing to
hl Written Statcment of Australia, para. 5; Writtcn Statcment of France, para.15; and Written Statement
of Chile, para. 4.
6" Written Statement of the United Kingdom, para. 1.18 and also 5.3 and 5.22.
65 Western Sahara Advisory Opinion, p. 25, para. 34.
66 Loc. cil.
67 Westem Sahara Aclvisory Opinion, p. 25, para. 34.
68 Written Statement of Australia, para. 48.
69 Loc. cil.
22
hinder the Court's perfonnance of its duties towards the General Assembly. True,
there is a dispute. Any decolonization process that would not be made in accordance
with international law necessarily leads to disputes between the fonner colonial
power and the newly independent State. The separation of Chagos from Mauritius
created a fait accompli that would necessarily lead to a series of disagreements
between the United Kingdom and Mauritius. And, it did. But those disagreements
did not sole/y arise independently in the context of the bilateral relations of these two
countries. Just like any dispute, which begins in a confined context and then evolves
into a larger one in a wider context, it originated in the days of the independence of
Mauritius from the United Kingdom, but was later the subject of a wider multilateral
context, in particular within the United Nations and the two successive African
Organizations.
69. That it had initial/y arisen in a bilateral context, does not debar it from becoming
other en titi es' concern; thus, for the international community represented, inter a lia,
by the UN, OAU and the AU, it is nota "bilateral dispute". What counts is that the
General Assembly itself (being the requesting organ) did not view it as such. The
simple fact that the General Assembly made a mention in its Request to its
Resolution 65/119 of lO December 2010, in which it declared the period 2011-
2020 to be 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 confinns that the General Assembly sees the
question of the decolonization of the Chagos Archipelago as a question of
international concern and interest.
70. To claim that it is .. a uniquely bilateral matter given that the relevant consent is to
be found in the bilateral 1965 Agreement and the subsequent exchanges of the
United Kingdom and Mauritius, both before and after independence",70 departs
from, and changes, the comprehensive and true context.
70 Written Statement of the United Kingdom, para. 1.18.
23
•
71. It has also been suggested that the Request has arisen out of a "bilateral dispute";71
as a matter of characterization. Thus, the Court has been asked by some States to
decide on the implication of the existence of a bilateral dispute in the
subject-matter of the request for an advisory opinion. On that, the Court has a rich
jurisprudence. 72
72. The subject-matter of the General Assembly's Request cannot be regarded as on/y
a bilateral matter between the United Kingdom and Mauritius. Given the powers
and responsibilities of the United Nations in questions relating to decolonization
and its consequences under international law, such as those arising from the
continued administration by the United Kingdom of the Chagos Archipelago, it
must be deemed that such are directly of concem to the United Nations. The
responsibility of the United Nations in this matter has its origin in the Charter and
relevant United Nations resolutions, as well as jus cogens, reflected in
international treaties or customary international law.
73. Within the institution al framework of the United Nations, this responsibility has
been manifested by the adoption of many resolutions, and by the creation of
several subsidiary bodies within the Organization, specifical1y established to assist
in the realization of decolonization.
74. Thus, whether the United Kingdom and Mauritius have a bilateral dispute between
them, over the matters put to the Court in these proceedings, the Court will
appreciate that a matter, which is of concem to the international community and,
yet, constitutes a bilateral dispute between two States, may co-exist
simultaneously. Ergo, answering a question, involving opposing positions
between two States over the issue raised before the Court, does not by necessity
have to assume the nature of an adjudication of a bilateral dispute; it is a request
for elucidation of the applicable Jaw, which the Court has never held back.73
11 Writtcn Statcmcnt of Gennany, para. 30; Writtcn Statemcnt of USA, paras. 2.2 et .'îeq; Written
Statement of Israel, para. 1.5; and Writtcn Slatcmcnt of France, para. 9; Written Statement of the
Republic ofKorca, para. 21; and Written Statcmenl of the Russian Fcderation, para. 32.
71 Legal Co11seque11ces of the Co11stn1ction of a Wall in the Dccupied PC1lesti11ia11 Territo,y, Advisory
Opinion, /.C.J. Reports 2004, p. 136 (hereinaller "Wull Atlvisory Opi11itm"), pp.158-159, paras. 48-50;
Namibiu 1ldl'ismy Opinion, p. 24, para. 34.
73 Cf, Wall Advisory Opinion, Separatc opinion of Judge Kororna, p. 204, para. 3.
24
75. Moreover, it is worth noting that raising the issue of an existing bilateral dispute is a
classical counter-argument by the party opposing the jurisdiction of the Court in an
advisory opinion. Y et, the Court has always been alert to the invalidity of such an
argument to hamper it from giving its opinion, as long as it has established its
jurisdiction on a legal question put to it by a competent organ of the United Nations.
76. In a very specific analogous description of the present situation, the Court has said in
its Wall Adviso,y Opinion 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 /ocated 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. "74 ( emphasis added)
77. What happened in the Wall Advisory Opinion - in light of the case Iaw
accumulated in the course of the life of the two Courts, on the questions of
jurisdiction in advisory proceedings and of propriety - is that the Court's
conclusion was that the existence of a dispute on a bilateral basis should not bar it
from giving the advisory opinion requested.
78. The Court had even went far enough as to explain that "the existence, in the
background, of a dispute the parties to which may be affected as a consequence of
the Court's opinion, does not change the advisory nature of the Court's task,
which is to answer the questions put to it".75 (emphasis added)
7-1 Wall Advisory Opinion p. 159, para. 50.
15 Review of J11dgeme111 No. J 58 Advismy Opinion, p. 1 71, para. 14.
25
79. Thus, the legitimate interest of the General Assembly, in obtaining an opinion
with respect to its own future action, cannot be prejudiced by the fact that there
may exist a legal question, or even a dispute, actually pending between States and
raising issues related to those contained in a request for an advisory opinion.
Sorne States that have opposed the Court's jurisdiction in the present proceedings
have even acknowledged that it is true that bilateral disputes and agenda items of
the United Nations overlap with each other in many cases. 76 Such a parallel
existence of a dispute between two or more States and of a situation, of which the
political organ of the United Nations was seized, does not change the advisory
nature of the Court's task or prevent it from answering the questions put to it.
D. The advisory proced11re is fit to determine complex and disp11ted iss11es of
fact
80. It has been contended that the advisory procedure was ill-equipped or ill-adapted
for the determination of complex and disputed issues of fact, given the lack of
adversarial procedures and protections available in contentious proceedings. 77 It
was also contended that if the Court lacked sufficient information, it should
decline to provide an advisory opinion. 78
81. It has already been explained above, however, that the historical accounts given in
the present proceedings, be it in the Dossier (compiled pursuant to Article 65,
Paragraph 2, of the Statute of the Court), or in the written statements of certain
States, should serve no purpose for the Court other than identifying and determining
the critical date and confirming the fact that the Archipelago was in fact detached
from Mauritius. Ali the other factual and historical arguments may be important
for conserving the rights of either Mauritius or the United Kingdom for their
future bilateral interaction; but this has relative relevance to the subject-matter of
the Advisory Opinion.
76 E.g., Written Statemcnt of the Republic of Korea, para. 12.
77 Writtcn St atcment of Israel, paras. 3.1 and 3.21-3.24; and Written Statcmcnt of Australia, paras. 55-58.
78 Written Statcment of Australia, para. 56.
26
82. lt is to be recalled that the Court, in the Western Sahara Advisory Opinion, was
fumished with .. very extensive documentary evidence of the facts" by States and
the Secretary-General of the United Nations. The Court "consider[ed] that the
information and evidence be fore it are sufficient to enable it to arrive at a judicial
conclusion conceming the facts which are relevant to its opinion and necessary for
replying to the two questions posed in the request." 79 In the instance of the Wall
Advisory Opinion, the Court noted that it had at its disposai a voluminous dossier
submitted by the Secretary-General, as well as the information submitted by many
States. 80
83. The Court did not find that the factual and historical-intense material was a reason
for it not to give its opinion because, as alleged, the advisory function was il/equipped
and not fit for examining the relevant information.
84. Further, this matter of evidentiary material and their sufficiency is not left without
the control of the Court. The Court has itself observed that "the question whether
the evidence available to it is sufficient to give an advisory opinion must be
decided in each particular instance." 81 This is what the Court is expected to do in
the present proceedings, if it decided. that it needed to look further than the critical
date or the fact of the detachment of the Chagos Archipelago.
85. The sufficiency of the evidence will depend ultimately upon what the Court will
consider enough to determine the legal issues, which are requested form it in
dispensing with its advisory function; not what may be needed to settle a bilateral
dispute.
86. ln connection with modifying the Rules of the Permanent Court, to accommodate
a proposai by Judge Anzilotti, to allow national judges in advisory proceedings
when the question submitted to the Court related to an actual dispute between two
or more States, the Vice-President of the Court, Judge Weiss, noted that "(t]he
practice of the Court had been to establish a great similarity in procedure between
19 Western Sahara Advisory Opinion, p. 29, para. 47.
so Wall A,Msory Opinion, pp. 161-162, para. 57.
RIJbid., p. 161, para. 56.
27
affairs for judgment and for advisory opinions."82 The Committee appointed by
the Court to consider the proposai of Judge Anzilotti in September 1927, noted
that the Pennanent Court, not having had an advisory function under its Statute,
.. assimilated its advisory procedure to its contentious procedure". "[T]he results
have abundantly justitied its action."83 The Court explained that,
"The Statute does not mention advisory opinions, but leaves to the Court
the entire regulation of its procedure in the matter. The Court, in the
exercise of this power, deliberate/y and advisedly assimilated ils advisory
procedure to ils contentious procedure; and the results have abundantly
justified its action. Such prestige as the Court to-day enjoys as a judicial
tribunal is largely due to the amount of its advisory business and the
judicia/ way in which it has dea/t with suc/1 business. ln reality, where
there are ... contending parties, the difference between contentious cases
and advisory cases is only nominal. The main difference is the way in
which the case cornes before the Court, and even this difference may
virtually disappear, as it did in the Tunisian case. So the view that
advisory opinions are not binding is more theoretical than real." 84
( emphasis added)
E. Tl,e opinion will assist tl,e Ge11eral Asse111bly in tlte performance of its
ftmctio11s
87. lt has been contended that the Court should only answer the questions put to it if
they are relevant for the work of the General Assembly,85 and that in any case the
opinion will not assist the General Assembly in the perfonnance of its functions,
because the Assembly is not perfonning any substantive functions with respect to
the Chagos Archipelago. In other words, the General Assembly /acl<S a sufficient
H? Fourth Annual Report of the Pcnnanent Court of International Justice, P.C./.J., Series E, No. 4,
(hereinaficr "Fourth Annual Report of P.C.(.J,"), p. 73.
83 Report of the Committce appointcd on 2 Scptcmber 1927, rcproduccd in the Fourth Annual Report
of the P.C.I.J., p. 76.
H4 loc. cil.
MS Writtcn Statcmcnt ofGcrmany, para. 120.
28
interest in the subject of the opinion. 86 It was explained, that there was no
suggestion in the wording of Resolution NRES/71/292 that the opinion of the
Court ''is required to guide the General Assembly in discharging its
responsibilities in relation to decolonisation, or in matters relating to the Chagos
Archipelago". 87 Because the sovereignty over Chagos has "never been considered
actively in the General Assembly through any form of resolution", it was claimed,
the Assembly does 1101 have a sufficient interest. 88
88. The Court has also been called upon to interpret the Request before it, by
balancing the interests of the General Assembly, in submitting any legal question
necessary for it to fulfil its own functions, white at the same time protecting the
interests of those affected by the respective proceedings.89
89. At the outset, it must be noted that the Charter confers upon the General Assembly
a very broad power to discuss matters within the scope of the activities of the
United Nations, including questions relating to international peace and security
lato sensu. After ail, isn't it not true that, according to Article 96(1) of the Charter,
the General Assembly "may request the International Court of Justice to give an
advisory opinion on any legal question"?90 The broad scope of this Article reflects
the very broad competence of the General Assembly, under Charter Articles l 0,
11 and 13, and hence, the almost complete liberty of the Assembly in requesting
an opinion of the Court. The Court would also observe that Article l O of the
Charter has conferred upon the Assembly a competence relating to "any questions
or any matters" within the scope of the Charter, and that Article 11, paragraph 2,
specifically, provides it with competence on "questions relating to the
maintenance of international peace and security brought before it by any Member
of the United Nations" and to make recommendations under certain conditions
fixed by those Articles. 91
86 Writtcn Statcmcnt of Australia. paras. 50-54.
81 Ibid., para. 53.
KK Ibid., para. 54.
89 Written Statcment ofGennany, para. 94.
•io United Nations, Charter of the United Nations, 24 October l 945, 1 UNTS XVI, Article 96( 1)
(cmphasis addcd).
91 Cf, Nuclear Weapons AdvisOJy Opinion, p. 232, para. 11; and Wall Advismy Opinion, p. 144, para.
14.
29
90. Resolution 71/292 was drawn up in the general context of the Charter-based
prerogatives and policies of the General Assembly regarding the decolonization of
Non-Self-Governing Territories. The Resolution specifically confirmed the nexus
between the Request and the functions and interests of the General Assembly. In
its preambular paragraphs it was stated, inter alia, that:
"Bearing in mind its resolution 65/118 of l O 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 ro/e in
the process of deco/onization, and noting that the process of
deco/onization is not yet complete,
Recal/ing its resolution 65/119 of lO 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 il cal/edfor the immediate andfitll implementation of
the Declaration on the Granting of Independence to Colonial Countries
and Peoples". 92 (emphasis added)
9 I. lt is clear from these paragraphs, just a few out of many, that the General
Assembly was not acting as a transmitting agent or conduit, for any party or
country, as did, for example, Council of the League of Nations when it was
requesting the opinion of the Pennanent Court in Eastern Carelia; the Assembly
here is requesting on its own behalf, because it had a role to fulfil with respect to
decolonization.
92. And in any case, it is submitted that the practicalities, challenges and costs of
resettling Chagossians in the Chagos Archipelago should not be of concern to the
Court in these proceedings. The Court has already succinctly stated that
'l! Dossier No. 7, Rcsolution 71/292, Preambular paras. 4 and 5.
30
"In any event, to what extent or degree its opinion will have an impact
on the action of the General Assembly is not for the Court to decide.
The function of the Court is to give an opinion based on law, once it
bas corne to the conclusion that the questions put to it are relevant and
have a practical and contemporary effect and, consequently, are not
devoid of object or purpose."93
93. The Court has recognized that it is not for it to purport to decide whether or not an
advisory opinion is needed by the Assembly for the performance of its functions.
"The General Assembly has the right to decide for itself on the usefulness of an
opinion in the light of its own needs. "94
94. It recently reconfirmed its position that:
"the purpose of the advisory jurisdiction is to enable organs of the
United Nations and other authorized bodies to obtain opinions from the
Court which wi/1 assist them in the future exercise oftheir fimctions."95
( emphasis added}
95. ln any case, in exercising its functions, the Court (as a principal organ of the
Organization} is wholly independent of the other organs of the United Nations and
is in no way obliged or concerned to render a judgment or opinion which would
be politically acceptable. Its function is, in the words of Article 38 of the Statute,
"to decide in accordance with international law".
96. On the substantive plain, and bearing in mind that the two Questions m:Jst be
considered in the context of the comprehensive decolonization process, it is
reminded that the Court itself bas declared that "[t]he right of self-detennination
leaves the General Assembly a measure of discretion with respect to the forms
and procedures by which that right is to be realized."96 (emphasis added} Over the
93 Western Sahara Advisory Opinion, p. 37, para. 73
94 Nuc:lear Weapons Advisory Opinion, p. 237, para. 16.
95 Kosovo Advi.mry Opinion, p. 421, para. 44.
96 Cf Western Sahara Adviso1y Opinion, p. 36, para. 71.
31
years, the Assembly has indeed resorted to several fonns and procedures open to
it; not least are the facilities of Chapter VIII of the United Nations Charter.
97. In this connection, it is fitting to recall the operational Charter-based Iink between
the General Assembly and the African Union, by virtue of Chapter VIII, which
encourages .. every effort to achieve pacifie settlement of local disputes through
such regional arrangements or by such regional agencies".97 Within this formula,
the United Nations (through its Assembly and its Council) and the African Union
have promoted each other's values and assisted in each other's labours, when
possible. Indeed, the Assembly has made valuable contributions m
complementing the work of the Organization of African Unity and the African
Union in decolonizing Africa. lt is needles to draw the attention of the Court to
the many OAU/AU Decisions, that it has before it, where the two Organizations
have made explicit reference to the relevant General Assembly resolutions,
including on the Chagos case, thus promoting the work of the Assembly. The
African Union has also actively served as a regiona/ partner of the United
Nations, inter a/ia, by managing peacekeeping operations in different parts of
Africa. 98
98. Following from the above, the African Union, as a regional organization, is
helping the General Assembly pursue their common goal of the complete
decolonization of Africa, including Mauritius.
99. lndeed, the General Assembly is at liberty to use the African Union as a vehicle to
dispense with the findings of the Court in the anticipated Advisory Opinion. ln
this context too, the Court, while pronouncing itself on ail possible consequences
of the continued administration by the United Kingdom of the Chagos
Archipelago, must identify ail those affected, including international
organizations, among which is the African Union.
91 UN Charter, Article 52(2).
9K E.g., the AU Mission to Somalia (A MISOM); the two -phase rc configuration of UN AMID. Pursuant
to UN Rcsolution 2349 (2017), the UN Rcgional Oflice for Central Africa (UNOCA) and the UN
Office for West Africa and the Sahel continucd to conduct joint visits to countries affcctcd by Boko
Maram to assess the sit uation and propose additional support f or the eff orts of Lake Chad Basin
Commission Member States. Sccurity Councîl Rcsolution 2320 (2016) acknowlcdged the important
role of the AU in efforts to prevcnt, mcdiatc and seule conlticts on the African continent.
32
100. There is no reason why an authorized organ of the United Nations, such as the
General Assembly should not, a/so, be guided by the recommendations of other
relevant international organizations.
Conc/11sion: The Court sho11/d not exercise its discretion not to give an
advisory opinion
101. ln the past sections, it has been explained that there are no compelling reasons
preventing or barring the Court from giving the requested Advisory Opinion.
102. But, surprisingly, these arguments against the Court's engagement were taken
further: even if there was sufficient evidence to enable an opinion to be provided,
judicia/ propriety may, nevertheless, require the Court to decline to exercise its
advisory jurisdiction, if to exercise that jurisdiction would be un fair to a particular
State, or if to proceed would be incompatible with the Court's judicial character. 99
103. However, for the reasons set out in its Written Statement and in these Written
Comments, the African Union believes that the Court has jurisdiction to be seized
with the Request for an advisory opinion and that there are no compelling reasons
preventing the Court from giving the requested Advisory Opinion, and accordingly,
the Court should to respond to it.
104. lt has already been asserted in the Written Statement that Article 96{ 1) of the
Charter and Article 65( 1) of the Statute of the Court suffice to establish the
competence of the General Assembly to request an advisory opinion from the
Court and to establish the competence of the latter to give the requested opinion.
105. Once the Court has established ils jurisdiction, it will only exercise its discretion
not to render an advisory opinion where there are "compelling reasons" not to. It
has repeatedly stated that a reply to a request for an advisory opinion should not,
in principle, be refused and that only compelling reasons would justify such a
99 Written Statemcnt of Australia, para. 36.
33
106.
refusa 1. 100 And, to date, it has never declined to give a requested advisory opinion
through an exercise of discretion. ft has never refused an admissible request for
an advisory opinion from any authorized organ.
The one instance the Court refused to provide an advisory opinion tumed on the
fact that the Court did not consider it had the requisite jurisdiction. The
Permanent Court found its main ground for refusai upstream, namely, in the
incompetence of the Council to deal with the question. This was an a fortiori case
for the Court. Its refusai was mainly based, not as it is sometimes alleged, on the
absence of Russia's consent to the advisory procedure itself. In fact, the Court said
that it was "unnecessary" to deal with the issue "whether questions for advisory
opinion, if they relate to matters which fonn the subject of a pending dispute
between nations, should be putto the Court without the consent of the parties." 101
That was not the issue.
10° Cf., c.g., J11dgment.'i of the Administrative Tribunal of the /LO 11po11 Comp/(lill/s 1'v/(lc/e against
UNESCO, Adviso1y Opinion, J.C.J. Reports /956, p. 86; Namihia Ad1•i.m1:v Opinion, p. 27, para. 41;
Nuclear Weapons Adviso1y Opinion, p. 234, para. 14; and Wall Advi.\WJ' Opinion , p. 164, para. 65.
101 Et1stern Ct1re/ia Advis01y Opinion, p. 27.
34
PART III
THE QUESTIONS ARE CLEAR AND INTERLINKED
AND SHOULD BE FULL Y ANSWERED
• 107. The two Questions put to the Court by the General Assembly are, each, very clear
108.
and elaborate, and their interconnection is obvious, and as such, they must both be
fully answered, as has already been explained in the Written Statement of the
African Union. This shall be further elaborated hereunder.
I. The Scope of the Request
ln addition to the attempts to sway the Court towards declining to exercise its
jurisdiction, it was argued that, should it find that it had jurisdiction, and should it
further find that the decolonization of the territory in question has not yet been
lawfully completed, it "should only consider the legal consequences for the
United Nations generally, and for the General Assemb/y in particular, that might
then derive from the continued administration of the territory in question by the
United Kingdom",102 (emphasis original) as well as for the "Special Committee on
Decolonization" of the General Assembly. l03
109. Not only was the Court invited to answer very restrictively on the legal
consequences, but it was also requested to "refrain from considering what
remedies, if any, would follow from any violations of international law that might
have been committed by the States involved, especially with regard to the
question of the resettlement of the Chagossians."104 (emphasis added) And against
the very terms of the Request, it was claimed that it "cannot be assumed to have
been within the realm of what the General Assembly, as an organ seeking
1oz Writtcn Statemcnt ofGennany, para. 143.
10 1 Ibid., para. 146.
104 Ibid., para. 147.
35
guidance for its own future work", that the Assembly had in mind such remedies,
when requesting the present Advisory Opinion.105
llO. In order to disprove these contentions and put the scope of the advisory opinion
requested from the Court in the proper perspective of a "request", it is imperative
to look into the terms of the Request, which establish the scope of the opinion
sought. Therefore, it is important at the outset to be clear what the present case is
about and what it is not, and then to consider the adequacy and interconnection of
the two Questions.
111. The Questions seek to clarify whether the decolonisation of Mauritius was
Jawfully completed, having regard to international law, and to declare the legal
consequences, under international law arising out of the continued administration
by the United Kingdom of the Chagos Archipelago. These are, necessarily, and by
definition, legal questions in the meaning of Charter, the Statute and the Court's
own jurisprudence. They concern the international /egal aspects of a set of facts,
namely, the compatibility of a decolonisation process with international law,
including the Charter of the United Nations, the relevant United Nations
resolutions, and OAU/A U decisions. Furthermore, the Court is requested to advise
on the legal consequences, under international law, of a continued administration
by a Member State of the United Nations of the territories of another.
112. As such, these questions involve the interpretation of international norms, which
is essentially a judicial task. To use the very words of the Court, the Questions
submitted by the General Assembly have been "J,-amed in terms of law and raise
problems of international law ... [they are by their] ve,y nature susceptible of a
reply based on law"I06
, hence they are squarely questions of a Jegal character. 107
113. In contradistinction to the above restrictive position, the African Union had sought
in its Written Statement that, in answering the Questions put to it in the Request,
the Court should determine the consequences for the United Kingdom and all
ios Loc. cil.
106 Western Sahara, Advisory Opinion, p. 18, para. 15.
1 ° 7
Western Salwra, Aclvis01y Opinion, p. 18, para. 15; and Wall Adviso1J1 Opinion, p. 153, para. 3 7.
36
'
'
other States and international organizations, and in particular, the United Nations
and ail its organs, and that it should declare the appropriate commensurate
remedies. 108 In legal and practical tenns, this means that the Court should
enlighten the General Assembly on how it should follow up on its work related to
the decolonization of Mauritius from ail its legal angles; above ail, by
pronouncing itself on the responsibilities of ail those concemed and taking the
appropriate measure to discharge its Charter-based duties.
II. The Questions Are Clear and Do Not Need any Reformulation
A. Tl,e pri11ciple: the Court wi/1 reformulate a question only w/1e1111eed be (in
c/aris non fit interpretatio)
114. lt was argued that the Court had implied, in its earlier advisory opinions, that it
should not be assumed that the General Assembly wants to be provided with
answers to legal issues, unless it specifically referred to them itself in its
request. io9 lt was further argued that it cannot be assumed that the General
Assembly wanted to request the Court to provide .. a comprehensive answer
regarding the legal status of the terri tory in question and the legal consequences
for States of action taken with regard to the said territory" 110; otherwise, the
Assembly ought to have clearly said so.111 It was also speculatively contended,
that the General Assembly chose not to make such a request; rather, the Assembly
"only sought guidance as to the exercise of its own competences under Chapters
XI and XIII of the Charter of the United Nations, while not requesting the Court
to provide an answer as to possible legal consequences for States," 112 as "the text
of the request does not refer to the consequences for States that might arise from
the continued administration of the Chagos archipelago by the United
Kingdom." 113 (emphasis original)
1os Writtcn Stalement of the African Union, para. 258.
1o 9 Written Statemcnt ofGcrmany, para. 120.
11 0 Ibid, para. 120.
111 Ibid., para. 124.
11 :! Loc. cil.
l 13 Writtcn Statcmcnt of Gc rmany, para. 132.
37
9
9
9'
s 115. After having invited the Court to interpret, and possibly reformulate the questions,
in order to restrict them, it was advanced that the Court should not adopt a broad
interpretation of the Questions, contrary to what it did in the case of the Wall
Advisory Opinion, as the latter was based on the unique circumstances of the
situation, and is not comparable to the present situation regarding the Chagos
Archipelago.114
116. This, as it is submitted, is a very restrictive and presumptuous reading of the
Request and appreciation of the advisory function of the Court in general. It is
aimed at depriving the General Assembly of important elements of legal and
practical considerations sought in the Opinion.
117. ln building a case for that approach, it was pointed out that the Permanent Court
did not address issues on which the requesting organ could not be assumed to
have expected the Court to provide an opinion. lt did so even where it might not
be easy to discem the intention of the requesting organ. 115 lt has been, therefore,
advanced that the Court must search for and identify the "real question" that had
been asked of it; 116 as if the questions were not clear as they have been formulated.
118. As the backbone in support of this position, the earlier Court was quoted for having
said that it: 117
"considers that, as the letter referred to [requesting the Court's
opinion) does not exactly state the question upon which its opinion is
sought, it is essential that it should determine what this question is and
formulate an exact statement of it, in order more particularly to avoid
dealing with points of law upon which it was no/ the intention of the
Council or the Commission to obtain its opinion.
11" Ibid., para. 115.
• U Ibid., para. 76.
"6 Ibid., para. 77.
117 Loc. cil.
38
tt
,
)
)
,
t
•
119.
120.
By expressing in this fonn the question contemplated ... the Court is in
a position to reply to the request for an opinion submitted to it, always
keeping within the scope of the question thus fonnulated. It follows
that, in so far as the points in dispute between the interested
Govemments fall outside the scope of the question as set out above,
the Court cannot deal with them." 118 (emphasis added)
This quote from the Interpretation of the Greco-Turkish Agreement of l
December 1926 (Final Protocol, Article IV) Advisory Opinion, not being
accompanied by the relevant facts and clarifications of the background leading to
these statements by the Court, is misleading, when provided in connection with
the present Request.
The issues which the Court confronted, in casu, were total/y irrelevant to the
issues raised in the current Request and do not apply to it in any respect.
Therefore, a close look into the facts of that early opinion will reveal how
different and unrepresentative it is.
l21. That case originated in differences of interpretation over Article IV of the Final
Protocol of the Agreement of Athens, which stipulated that any "questions of
principle of importance", which may arise in the Mixed Greco-Turkish
Commission for the Ex-change of Greek and Turkish Populations, shall be
submitted to the President of the Greco-Turkish Arbitral Tribunal for arbitration.
The differences of interpretation revolved around the conditions for appeals to the
arbitrator.
l22. Consequently, the Mixed Commission applied to the Permanent Court, through
the agency of the Council of League of Nations, for an advisory opinion as to the
interpretation of that Article, so far as it concems the conditions for such. 119
Accordingly, the Council adopted a resolution referring to the letter of 4 February
1928, addressed to the Secretary-General of the League of Nations by the
1 IR /111e1pretatio11 of the Greco-Turkish Agreeme111 of I December 1926 (Final Pmtoco/, Article /V},
Aclviwry Opinion, PC/J, Series B, No. /6 (/), pp. 14 and 16.
119 Ibid., p. 5.
39
il
•
•
•
0
D
t
!)
)
,
•
•
•
123.
President of the Mixed Commission, whereby the Council requested the Court's
advisory opinion upon the question raised in the said letter, as to the
interpretation of Article IV, in regard to the conditions of referral to the
arbitrator. 120
The Court noted that differences of interpretation regarding the conditions for
appeals to the arbitrator, mentioned in the "letter" of the President of the Mixed
Commission, became apparent. The members of the Mixed Commission had
taken up diffe rent standpoints regarding the wording in which the Commission
was to state the persons allowed to benefit by the Agreement. The Greek members
had suggested that the dispute should be settled by arbitration. 121 The President of
the Commission asked its members to decide whether the dispute constituted "a
question of principle of importance" arising in connection with the duties of the
Commission; whereupon the Greek members expressed the opinion that the two
States, which had signed the Agreement and Protocol, were atone entitled to
appeal to the arbitrator (to whom the Greek Govemment had already referred the
matter); while, on the other hand, the Turkish members held that reference to the
arbitrator, without a decision of the Mixed Commission, would be contrary to the
agreements in force. 122 Therefore, as the question of the conditions goveming the
reference to the Final Protocol subsequently fonned the subject of further
discussion by the Mixed Commission, the Commission had decided to ask the
Council of the League of Nations to request the advisory opinion. 123 The
Commission had thought that the "minutes of its meetings", at which the question
had been argued, would sufficient/y indicate the doubts which had arisen within it,
regarding the application of Article IV. 124
124. When detennining the case, the Court recalled Article 72(2), of its Rules, that "the
request shall contain an exact statement of the question upon which an opinion is
required". It noted that the request "simply refers to the letter addressed ... to the
Secretary-General of the League of Nations" (emphasis added) for obtaining an
120 Loc. cit.
121 Ibid. • p. 10, para. 9.
122 Ibid., pp. 10 f.
123 Ibid .• p. 11, para. 20.
12" Ibid., p. 12, para. 27.
40
advisory opinion on "the conditions for appeals to the arbitrator" contemplated in
Article IV. It considered that, as the "letter" did not exactly state the question
upon which its opinion was sought, "it is essential that it should detennine what
this question is and fonnulate an exact statement of it, in order more particularly
to avoid dealing with points of law upon which it was not the intention of the
Council or the Commission to obtain its opinion."125
125. The Court, thus, observed that it had to ascertain that the conditions for appeals to
,
)
,
)
)
)
)
)
the arbitrator were clearly defined by the actual tenns of Article IV, so that no
difference of opinion can be presumed to exist. For the Court, there was no doubt
that only when these four conditions of Article IV were fulfilled, can a matter be
referred to the President of the Tribunal. 126 After having examined the documents,
as well as pleadings of the parties, the Court concluded that the differences did not
relate to the conditions to which the submission of a question to the arbitrator was
subject, but to whom it was to decide whether these conditions were fulfilled and
by whom a question may be referred to him?127
) 126. The Court then decided to "alter the tenns of the question put in order to be able
)
•
•
•
to reply thereto", by expressing the points on which, its opinion is required. 128
And here cornes the reason for the latter pari of the quote in paragraph 122 above
that
"By expressing in this fonn the question contemplated ... the Court is
in a position to reply to the request for an opinion submitted to it,
always keeping within the scope of the question thus formulated. lt
follows that, in so far as the points in dispute between the interested
Govemments Jal/ outs ide the scope of the question as set out above,
the Court cannot deal with them." 129 (emphasis added)
12s Ibid., p. 14, para. 36.
1 26 Ibid., p. 15, para. 38.
127 Ibid., para. 38.
11s Ibid., p. 16, para. 40.
129 Ibid., pp. 14 and 16.
41
8 127. What is striking in the part of the Court's opinion, quoted in paragraph 122 above,
is that the situation it had to address was entirely different than in the present case.
The Court recognized that the "letter" requesting the Court's opinion did not
exact/y state the question upon which its opinion was sought; that is quite contrary
to the present Request.
t
128. In addition to the foregoing, the several other instances cited, in order to
encourage to reformulate the questions restrictively, were very specific cases of
either obscurity or genera/ity, which were primarily related to the functionality
and procedures of the General Assembly or the Security Council; 130 especially,
the relationship between the United Nations on the one hand, and the former
mandate territory of South West Afiica/Namibia on the other.
129. No better words may retlect what Judge De Castro has stated in connection with
similar allegations:
"To challenge the validity of a resolution, it is not sufficient merely to
allege that it is possible to find a better interpretation; a resolution can
only be criticized if it is demonstrably absolutely impossible to find
any reason whatsoever, even a debatable one, upon which an
interpretation favourable to the validity of the resolution may be
based." 131
130. True, the Court in its past practice, has sometimes interpreted, clarified, and
reformulated the questions put to it. But, the Court itself has explained the
rationale for, and drawn the boundaries of this exercise, when it said
"The Court may interpret the tenns of the request and detennine the
scope of the questions set out in it. The Court may also take into
account any matters gennane to the questions submitted to it which
may be necessary to enable it to fonn its opinion. " 132
13o W ritten Statcment ofGermany, paras. 78-82.
131 Namihia Advisory Opinion, Separate Opinion of Judge De Castro, p. 185.
1 J:! Review of Judeme111 No. 158 Advisory• Opinion, p. 184, para. 41.
42
:a
•
•
131. These self-imposed guidelines actually broaden the scope of the Court's search
and reach, by "tak[ing] into account any matters germane to the questions". That
the Court "is, in principle, bound by the terms of the questions formulated in the
request", 133 does not retract that. This is an explicative statement, that only states
the obvious, in not departing from the questions asked. It is a natural corollary of
the Court's (and any other court) advisory or contentious functions.
a, 132. Moreover, the real concern for the Court is verification. The Court has pointed out
that "if it is to remain faithful to the requirements of its judicial character in the
,
,
,
,
,
•
t
•
t
t
•
exercise of its advisory jurisdiction, it must ascertain what are the legal questions
really in issue in questions formulated in a request". 134 In the present Request, the
two Questions have been framed in such a way that the legal consequences
investigated are expressly stated.
133. The Court bas in some previous cases departed from the language of the question
put to it where the question was not adequately formulated, or where the Court
detennined, "on the basis of its examination of the background to the request, that
the request did not rejlect the "/ego/ questions real/y in issue"". 135 (emphasis
added) Similarly, where the question asked was unclear or vague, the Court bas
clarified the question before giving its opinion. 136
134. The Court has also been told that, "absent a clear indication to the contrary" 137
, it
cannot be assumed that the General Assembly wanted to exclude or restrict the
Court's power to reformulate the questions put to it. 138 This, however, raises three
issues:
133 Loc. cil.
134 lnterpretalion of the Agreement of 25 Morch /951 be111'ee111he WHO and Egypt, Advisory Opinion,
I.C.J. Reports 1980, p. 73 (hereinafter "/11terpretatio11 tif Agreement betwee,, WHO and Egypt
Advisory Opinion"), p. 88, para. 35.
135 E.g., /nterpretation of the Agreement behl'een the WHO and Egypt Advismy Opinion, para. 35.
136 E.g., Application for Review of Judgement No. 273 of the UniJed Nation:; Adminitrc,tive Tribunal,
Advisory Opinion, l.C.J. Reports 1982, pp. 348-350, paras. 46-48.
137 Written Statement ofGennany, para. 91.
IJH Written Statement ofGennany, para. 91.
43
135. First, this proposition of an "indication to the contrary" attempts to shift the
.9 burden of proof to the Assembly, and not the party making it, which is legally
•
untenable. Second, the African Union is not suggesting, and no other State in
these proceedings has suggested, that the Court is exc/uded from or restricted in
refonnulating the questions put to it. Third, it is precisely for this and other
reasons that the General Assembly has drafted the questions in such a manner that
they would not need reformulating in the first place, as further explained
hereunder.
B. Tl,e Q11estions are specijic and adeq11ate
136. Having discussed above the propositions aimed at restricting the functionality of
the Court, as well as the theoretical and methodological considerations and
approaches used by the Court in discharging its judicial function, especially in
advisory opinions, it is now tum to explore, whether the questions addressed in
this Request require reformulation by the Court, on the basis of being unspecific
or inadequate.
137. It has been claimed that "the current request does not refer to legal consequences
for States. This is fully in line with the drafting history of the request as set out
above, and is also in line with the underlying intentions of its main sponsors who
were interested in the practical consequences of the Court's findings for the work
of the General Assembly only. Hence, unlike other previous requests, it possesses
a relatively limited and narrow scope."139 [t was stated that, because Resolution
A/RES/71/292- unlike in the case of the Wall Advis01y Opinion - did not specify
States or other entities, the Court had to first interpret Question (b), relevant to the
consequences, in order to decide if it had to determine the consequences for others
than the Assembly itself. In support, it was claimed that, because the question put
the Court in the case of the Wall Advisory Opinion included a specific reference to
the Geneva Convention relative to the Protection of Civilian Persons in Time of
War of 1949, it was implied that the General Assembly had thereby wanted to
139 fbid., para. 121.
44
make specific reference to obligations of third States arising under Article l of
that Convention. 140
138. It is submitted, however, that the task of the Court in the present case has been
facilitated by the manner in which the General Assembly has posed the Questions,
and the Court does not need to go through the route that it is being solicited to
take.
139. Regardless whether, or not, the Assembly had enumerated the entities for which
there were effects ensuing from the continued administration of Chagos by the
United Kingdom, be they States, the United Nations or other international
organizations, the Court has to pronounce itself on ail possible effects and identify
all those affected and their consequent obligations, as it will be shown in Part IV
of the present Written Comments. lt shall immediately be recalled here, that the
Charter "has defined the position of the Members in relation to the Organization
by requiring them to give it every assistance in any action undertaken by it
(Article 2, para. 5) . . . by authorizing the General Assembly to make
recommendations to the Members". 141 It goes without saying, the principles and
purposes of the United Nations must be observed by al 1 its organs, including the
General Assembly and, no less, by the Court, as well as also by each of the
Member States.
j 140. The Questions - each individually - make different express references to
"international law". These references indicate that the Court is requested to give
its opinion considering the full extenl of that /aw; this is true for the substantive
(objective) law (as the framework for the practice of stable and organized
international relations) to be applied, and is equally true for the subjects of the law
(its addressees, viz., the United Kingdom, ail other States and international
organizations ).
1 -io Ibid., para. 111 .
141 Reparation of Injuries Suflered in Service of the U.N., ..ldl•i.w1y Opinion, 1949 I.C.J., p. 174 al p.
178.
45
B 141. When, in Question (a), the Court was asked to decide whether "the process of
•
•
•
•
1
decolonization of Mauritius [was] lawfully completed ... having regard to
international law, including obligations reflected in General Assembly
resolutions" ( emphasis added), it was clear that it was asked to perform a two-tier
legal analysis; at the level of general international law and at the level of the
specific relevant resolutions of the General Assembly.
J 142. In fact, basic grammatical and textual analyses of the construction of Question (a)
, show that the preposition "including" referred to part (viz., the resolutions) of the
who/e being considered (viz., general international law). As such, that formula is
not mutual/y exhaustive; both tiers have to be answered.
143. The same line of analyses applies to Question (b) too. The preposition "including"
has been intentionally used twice, in addition to the idiomatic expression "in
particular"; which means specifica/ly (which, in turn, also implies part of a
who/e). Thus, the question has been unfolded telescopically, transitioning the
investigation of the Court /rom one /evel to the other. By asking 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 the Chagos Archipelago, "inc/uding 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"
( emphasis added), the Court is requested to address to the Juil extent the
consequences in view of the substantive /aw to be applied, and for subjects of the
law (viz., the United Kingdom, al! other States and international organizations).
144. After ail, the Court had unreservedly declared that
"there is nothing in Article 96 of the Charter or Article 65 of the
Statute of the Court which requires that the replies to the questions
shou/d be designed to assist the requesting body in its own future
operations or which makes it obligato,y that the effect to be given to an
46
J
advisory opinion should be the responsibility of the body requesting
the opinion." 142 (emphasis added)
Thus, the Court recognized a responsibility of other entities, besides the General
Assembly, the latter being "the requesting body".
145. What makes this declaration by the Court of particular importance and interest to
the present debate, is that it is a general statement by the Court, that is not related
to the specificities of the advisory opinion amidst which it was made, as the
position of the Court on the specific issues was made earlier in the opinion.
146. The two Questions asked by the General Assembly in the present Request meet ail
the criteria set by the Court itself and are clear and legal as could be. They require
absolutely no refonnulation. Moreover, they have been fonnulated in a manner
that interconnects and interlinks them, as further explained hereunder.
147.
III. The Questions Posed to the Court Are Clearly lnterlinked and Should
Be Both Fully Answered by the Court
It was further suggested that if the Court were to answer the first Question, it
should, however, exercise its discretion and refrain from answering the second.
The reason for this, it was claimed, was that Question (b) "is obscure and very
general" .143
148. Having demonstrated and concluded, however, that Question (b ), like Question
(a), was clear and did not require any reformulation, along the lines set in the
jurisprudence of the two Courts, it is now tum to show that the two Questions are
interconnected and interlinked and that they both must be fully answered.
149. However, for the avoidance of doubt, there is nothing in the Court's rules or
jurisprudence that suggests that in order to answer multiple questions, those
1 "2 Review of Judgemenl No. 158 Advisory Opinion, p. 75, para. 22.
i.iJ Writtcn Statcmcnt of the United Kingdom, paras. 9.15 and 9.21.
47
questions have to be interlinked; in the present Request, however, they are. And in
any case, the Court has to answer any questions put to it, as already amply
explained.
I 50. In every case, whether contentious or advisory, the first question which arises for the
Court is: What is being asked for? In the present case, right from the beginning of
the proceedings it was apparent that the General Assembly was asking the Court to
give it an opinion on precise legal questions, as already explained. The Court is
asked to opine on whether or not the decolonisation of Mauritius was lawfully
completed in light of the dismembennent of the Chagos Archipelago; and, to opine
on the consequences, un der international law, tlowing from that dismembennent.
The task of the Court has been facilitated by the manner in which the General
Assembly has posed the Questions.
151. The two Questions asked to the Court are so fonnulated that an answer to the
second is called for only if the answer to the first is in the negative.
152. The first Question reads:
(a) •• Was the process of decolonization of Mauritius lawfully completed
when Mauritius was granted independence in 1968, fo/lowing 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?" (emphasis added)
153. The textual analysis of Question (a) is very telling. 1t was fonnulated in the past
tense, as the Request specifically located the question in the context of the time
"when Mauritius was granted independence in 1968, following the separation of
the Chagos Archipelago from Mauritius", and it is, therefore, clear that these
words have to be interpreted by reference to that ( critical) date onwards.
48
154. Moreover, the phrase "having regard to international law" refers to primary
5' obligations, that is, to what States are obliged to do under international law. That
the phrase cornes after the statement on the investigated event and its temporal
context, can only mean that the event (whether it had occurred or not) is govemed
by international law, which, as a legal regime, has consequences.
155. The cumulative effect of the two textual and contextual observations is that there
wil/ be consequences running from the critical date, if the answer is in the
negative; and it should be.
156. The second Question reads:
(b) "What are the consequences under international law, including
obligations retlected in the above-mentioned resolutions, arising from
the continued administration by the United Kingdom of Great Britain
and Northern lreland 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?"
157. The Question (a) is followed by the conjunction "and", and Question(b) is
preceded by that conjunction ... And" is used as a function word to indicate a
connection. Therefore, it cannot be conceived that the General Assembly thought
for a moment that the Court was being given the choice, in Resolution
A/RES/71/292, of choosing not to answer the second question at whim; if the
Court had to do so, it will undoubtedly have its own judicial reasons for that. But,
if it didn 't, it will have to answer it.
158. Moreover, the drafters of the Request were well aware that Question (b) on the
consequences was unseparably interlinked with Question (a), as it was a corollary
of the core issue at the heart Question (a); if the decolonization of Mauritius was
not lawful(v comp/eted following the separation of the Chagos Archipelago from
Mauritius and having regard to international law, then there ivere consequences
to be drawn, as fonnulated in Question (b).
49
9
3 159. Therefore. if the answer to Question (a) is in the negative, meaning that the United
Kingdom continued to administer the Chagos Archipelago. the Court will have to
pronounce itself on the "consequences under international law ... arising from the
continued administration''. as requested in Question (b) and as it will be shown in
Part IV of the present Written Comments.
9 160. The two Questions should be taken up separately and in tum and should be fully
answered.
• •
161. ln the light of the foregoing. it is submitted that the Court should answer the
Questions put to it in the present Request. The underlying facts, the unescapable
practicalities and unambiguous legal design behind these two Questions merit the
full attention of the Court and a corresponding comprehensive pronouncement.
50
I.
PARTIV
THE ILLEGAL SEPARATION OF THE CHAGOS ARCHIPELAGO
BREACHED THE RIGHT TO SELF-DETERMINATION AND THE
TERRITORIAL INTEGRITY OF MAURITIUS
Introduction
> 162. There are three critical issues in relation to Question (a) on which the General
Assembly has requested an advisory opinion of the Court that can be distilled
from the written statements submitted to the Court:
i)
ii)
iii)
first, whether the right to self-determination was part of
customary international law at the time of the separation of the
Chagos Archipelago in 1965 and of the independence of
Mauritius in 1968;
second, whether the right to self-determination gives rise to a
correlative obligation on the part of States administering NonSelf-
Goveming Territories to enable the exercise of that right
within the entire territorial unit; and
third, whether the excision by the United Kingdom of the
Chagos Archipelago from Mauritius in 1965, before Mauritius
gained independence in 1968, violated the right to selfdetermination
of the people of Mauritius.
163. The African Union's position in respect to these issues is as follows:
i) first, the right to self-detennination was firmly established in
customary international law by the end of the 1950s;
51
3)
Ë)
g)
tt
J
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)
)
)
)
)
164.
ii) second, the right to self-determination is inextricably linked to
the principle of territorial integrity;
iii) third, the excision of the Chagos Archipelago from Mauritius
prevented the people of Mauritius from exercising its right to
self-determination within the relevant territorial unit, including
the Chagossians; and
iv) fourth, the process of decolonisation was not lawfully
completed when Mauritius gained independence in l 968.
Il. The Existence of the Right to Self-Determination in Customary
International Law by 1965
Important to the determination of Question (a) put to the Court, is whether the
right to self-determination existed as a legal right in customary international law
by 1965, the time of excision of the Chagos Archipelago, and in 1968, at the time
of Mauritius' independence. Over many pages in its Written Statement, the
African Union has already had the chance to explain how the right to selfdetermination
was part of customary international law by the late 1950s, and thus,
a legal right at the time of the separation of the Chagos Archipelago from
Mauritius. In doing so, it relied on abundant State practice, General Assembly and
Security Council resolutions, as well as the jurisprudence of this Court, in addition
to scholarly writings on international law. 144
165. Of the States that have deliberated the customary status of the right to selfdetermination
in 1965 and 1968, the majority share the African Union's view that
the right to self-determination was already firmly estab/ished as customary
international law by 1965.1"5 They resolutely believe that Resolution 1514 (XV)
retlects rules of customary international law, existing at the date of its adoption. 146
1-14 Writtcn Statement of the African Union, Part Ill.
145 Of the 11 States that addrcssed the question of the status of the right to sclf-dctcnnination at the
relevant time 9 arc of the view that the right of self-detcnnination was linnly cstablishcd in customary
52
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166. Adopting an opposing position are the United Kingdom and the United States,
who claimed that the right to self-determination did not crystallise in customary
international law by 1960 at the time of the adoption of Resolution 1514. 147 The
United Kingdom, in particular, explained that in subsequent General Assembly
resolutions and other international instruments "[t]he principle was elaborated
upon, though not transformed into a 'right'." 148 (emphasis added) But this
contradicts some express positions previously adopted by the United Kingdom.
For instance, in the proceedings of the Kosovo Advisory Opinion, it unequivocally
stated that:
"The principle of self-determination was articulated as a right of ail
colonial countries and peoples by General Assembly resolution
l 514(XV)". 149 ( emphasis added)
167. Also, when speaking before the Security Council on the question conceming the
situation in the Falkland Islands, the United Kingdom said that:
"182. [t is true that we took the position in the 1960s that selfdetermination
was a principle and not a right. However, in 1966 the
two International Covenants ... were adopted ...
183. The United Kingdom has ratified both ... Furthermore, in 1970,
the General Assembly adopted by consensus - that is, with the United
Kingdom joining in the consensus - resolution 2625 (XXV), containing
international law by 1965. Cf Writtcn Statements of Argentina, Belize, Brazil, Djibouti, Guatemala,
Mauritius, Namibia, the Netherlands and South Africa.
146 Written Statement of Argentina, para. 48; Writtcn Statcmcnt of Belize, para. 3. 7; Written Statcment
of Brazil, para. 17; Written Statement of Djibouti, paras. 31-32; Writtcn Statement of Mauritius, paras.
6.29 and 6.32; Written Statemcnt of the Nctherlands, para. 3.4; Written Statcment of Nicaragua, paras.
8-9; and Written Statement of South Africa, para. 63.
1-17 Writtcn Statcment of the United Kingdom, paras. 8.24, 8.31 and 8.65 et seq; and Written Statement
of the United States, paras. 4.22, 4.29 and 4.31.
148 Writtcn Statcment of the United Kingdom, para. 8.66.
1-19 Writtcn Statement of the United Kingdom in the Requesl for mi Advismy Opinion of the
llllenwtional Court of Justice on the Question "[s the Unilateral Declaratio11 of lndependence by the
Provisional Institutions of Self-Government of Kosovo in Accord,mce witl, International Law!", para.
5.2. See also Writtcn Statemcnt of Belize, para. 3.7.
S3
the Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States ...
Not only has my country endorsed the right to self-determination in the
sense of the Charter, the Covenants and this Declaration, but we have
gone a great deal further to disprove the allegation that we are the
colonial Power par excellence. Since General Assembly resolution
1514 (XV), containing the Declaration on the Granting of
Independence to Colonial Countries and Peoples, was adopted at the
end of 1960, we have brought to sovereign independence and
membership of the United Nations no less than 28 States". 150
168. The United Kingdom also claimed that the content of "the principle of equal rights
and self-determination", as recognised by Article 1(2) of the UN Charter, was not
detined by the Charter. 151 However, as the Afiican Union has previously
stated, 152 it is noteworthy that the French version of Article 1 (2) of the UN Charter
- equally authorilative as the English version - refers to the right (droit) to selfdetermination
of peoples:
.. Développer entre les nations des relations amicales fondées sur le
respect du principe de l'égalité de droits des peoples et leur droit à
disposer d'eux-mêmes, et prendre toutes autres mesures propres à
consolider la paix du monde." ( emphasis added)
169. The United Kingdom also claimed that the General Assembly resolutions on
decolonisation adopted during the 1960s .. were non-binding and did not reflect
extant obligations under international law". 153 But, this generalisation faits to
consider the importance of the Assembly's resolutions, as declaratory evidence of
150 Security Council Otlicial Records, 37th year, 2366lll Meeting, 25 May 1982, New York, S/PV.2366,
paras. 182 and 183.
151 Written Statemcnl of the United Kingdom, para. 8.66.
152 Written Stalcment of the African Union, para. 81. Set: also Writtcn Statcmcnt of Belize, para. 2.3
and Writtcn Statcment of Mauritius, para. 6.22.
153 Wrillen Statement of the United Kingdom, para. 8.69.
54
international practice, conceming the existence of a right to self-detennination in
customary international law.
170. Moreover, the process of decolonisation of a significant number of Non-SelfGoveming
and Trust Territories during the 1950s and early 1960s, having
occurred contemporaneously with the adoption of these General Assembly
resolutions, is evidence of a wide acceptance by the administering powers of the
existence of a right to self-detennination under international law 154. ln fact, thirty
Non-Self-Goveming and Trust Territories achieved independence be/ore the
adoption of Resolution 1514 and 19 countries between 1960 and 1965.
155
171. The resolutions addressing decolonisation of the 1950s and 1960s, also
consistently and explicitly referred to the right to self-detennination. 156 As early
as 1950, General Assembly resolution 42l(V) referred to "the right ofpeoples and
nations to self-detennination". 157 Two years later Resolution 545(VI) in 1952
decided that .. States having the responsibility for the administration of Non-SelfGoveming
Territories, should promote the realization of [the right of selfdetennination],
in confonnity with the Purposes and Principles of the United
Nations". 158
172. For example, General Assembly resolution 1188 (XII) adopted in 1957, provided
in clear and mandatory tenns that Member States were under an obligation to
promote and facilitate the exercise of the right to self-detennination by colonial
peoples. lt stated:
is.i Written Statement of the Afiican Union, paras. 97-98. Also, Written Statcment of Brazil, para. 13;
Written Statement of Mauritius, para. 6.33; and Written Statcment of the Nctherlands, para. 3.7.
155 Written Statemcnt of the African Union, paras. 97-98.
156 See e.g., Writtcn Statemcnt of Belize, paras. 2.5-2.12; and Writtcn Statcment of Mauritius, paras.
6.23-6.29.
l S7 Gcneral Assembly Resolution 421 (V), Draji /ntematirmal Cuvemmt un Human Rights and
mea.mres of implementation: future work of the Commission m1 Human Rigl,ts, (A/RES/421 (V) of 4
Deccmber 1950), para. 6.
158 Gcncral Asscmbly Resolution 545(VI), Inclusion in the /11temationul Cove1w111 or Cove,umts un
Humcm Rights ofcm article relating to the right of peoples to :wlfdeterminutiun, (NRES/545(VI) of 5
Fcbruary 1952), para. 1.
55
(a) Member States shall, in their relations with one another, give due
respect to the right of self-detennination;
(b) Member States having responsibility for the administration ofNonSelf-
Goveming Territories shall promote the realization and
facilitate the exercise of this right by the peoples of such
Territories. 159
173. Subsequent resolutions adopted by the General Assembly continued to affinn the
Cl existence of a right to self-detennination. 160
174. The African Union notes the observation of The Netherlands that the principal
concern of abstaining States was not the use of the tenn "right" with regard to the
right to self-detennination, but a concern that the scope of that right was not
confined to the populations of Non-Self-Governing Territories.161 By the time
Resolution 1514 was adopted in 1960 any opposition to the General Assembly's
continued affirmation of the right to self-determination had waned.162
l 75. Further, the United Kingdom and the United States submit that the negotiation
history of Article l, Common to the International Covenant on Civil and Political
Rights and the International Covenant on Economie, Social and Cultural Rights
reveals a lack of consensus amongst Member States, as to the existence, meaning
and scope of a right to self-determination that continued to exist at the time the
Covenants were adopted in 1966. 163 The United States observed that, during the
drafting process, the United Kingdom voted to delete draft Article 1.164 But, the
United Kingdom ultimately abstained in the final vote on adoption of draft Article
159 Gcnernl Assembly Resolution l 188(XII), Recommendation concerning international respect for the
right of peoples and mitions to self-determination (NRES/I J 88(XII) of 11 Deccmber 1957)
(hercinafter "Resolution 1188"), adoptcd by 54 votes in favour, 0 against, and 13 abstentions,
Operative Para. I, subparagraphs (a) and (b). Operative Paragraph 1, subparagraphs (a) and (b).
160 Written Statement of the African Union, para. 93.
161 Written Statemcnt of the Nethcrlands, para. 3.6.
16:? Sec e.g. Written Statement of Mauritius, para. 6.27.
163 Written Statement of the United Kingdom, para. 8.70; and Writtcn Statcment of the United States,
paras. 4.37-4.39.
164 Writtcn Slatement of the United States, para. 4.37.
56
I . 165 Draft Article l was approved in 1955 by the Third Committee of the General
Assembly in November 1955 by 41 votes in favour to none, with 17
abstentions. 166
176. The division of opinion between those States that considered self-determination as
a political principle and those who considered it to be a legal right was resolved
early on in negotiations. 167 It appears from the Report of the Third Committee of
the General Assembly that some States were concemed that Article l would
impose on colonial powers greater obligations than the Charter itself, in that NonSelf-
Goveming Territories would be granted the immediate right to independence
rather than progressively. 168
177. Further, the United States claimed that State practice during the 1950s and 1960s
was not extensive and virtually uniform, so as to indicate a general acceptance of
the existence of the right to self-determination in international law on the basis
that in some instances the political status of a Non-Self-Goveming Territory
changed "without prior attempt to ascertain the freely expressed wishes of the
people of the territory". 169 However, contrary to the interpretation ofState practice
offered by the United States, and as comprehensively noted by Mauritius, in the
majority of cases conceming Non-Self-Goveming Territories plebiscites or
elections were organised or supervised by the United Nations before those
territories became independent or integrated with other States. 170
178. There is, thus, no doubt that the right to self-determination was part of customary
international law at the time of adoption of Resolution 1514 and that its customary
content, meaning and scope were clear at the critical moment of the separation of
the Chagos Archipelago from Mauritius in 1965.
lf,S Gcneral Assembly, Draji International Covenanls on Hu111a11 Rights: Report of the Thirtl
Commillee, (A/3077 of 8 Dcccmbcr 1955) (hcreinaflcr "Report of the Third Committee of the
Generul Assembly"), para. 74.
16'' Loc. cil.
1<,7 Writtcn Statemcnt of Mauritius, para. 6.24.
168 Report of the Third Committec of the Gcncral Asscmbly, para. 30.
169 Written Statcmcnt of the United States, para. 4.71.
'70 Wriltcn Statcment of Mauritius, para. 6.44.
57
179. The evolution of the principle of self-determination into a right by the end of the
1950s was inextricably linked to the process of decolonisation. As the Court
affinned, Resolution l 514 became "the basis for the process of decolonization". 171
III. The Right to Self-Determination Was and Is Still lntrinsically Linked
to the Right to Territorial lntegrity
l 80. The United Kingdom stated that the formulations of the principle of selfdetennination
are silent as to the territory on which the people is living. 172 This is
incorrect.
181. As emphasised in the Written Statement of the African Union, at the critical date
the right to self-detennination was intrinsically linked to the principle of territorial
integrity, in that, in the context of decolonisation, a people could only exercise its
right within a territorial unit. 173 As a matter of customary international law, a
people can only exercise its right of self- determination within a territory. This
had already been confirmed by Resolution 1514. 174 This position is also shared by
the majority of States who have commented on the issue in these proceedings. 175
182. The connection between self-determination and territorial integrity, as pertaining
to the fact that the definition of people was based on the territory on which they
lived, it was rightly explained, is that:
"in the context of decolonization the right of self-determination was
applied to ail inhabitants of a colonial territory and not to minority,
ethnical groups or segments of the population within that territory.
171 Western Sahara Advisory Opinion, p.32, para. 57.
172 Written Statement of the United Kingdom, para. 8.28.
173 Writtcn Statement of the African Union, paras. 135-157.
174 Dossier No. 55, Resolution 1514 (XV), op. c:it., para. 6.
11s E.g., Writtcn Slatcment of Argcntina, paras. 38-45; Writtcn Slatcment of Belize, paras. 3.1-3.13;
Writtcn Statcment of Brazil, paras. 20-24; Writtcn Statcment or Mauritius, para. 6.50(3); Written
Statemcnt of Djibouti, paras . 35-42; and Written Statcment ofNamibia, p. 3.
58
The holder of the right of self-detennination or 'right to
decolonization' was thus primarily territorially defined." 176
183. A corollary of the fact that the right to self-detennination was to be exercised
within a specific territorial unit, was that the unit in question could not be
dismembered prior to the exercise of the right of self-determination. 177 This was
clearly set out in the famous Paragraph 6 of Resolution 1514 (XV), which
provided 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."178 (emphasis added)
184. However, against the conviction of the majority of the States participating in these
proceedings, 179 the United Kingdom and the United States maintained that
Paragraph 6 did not reflect a rule of customary international law in 1965.180 They
contended that there was no uniform interpretation of the meaning of that
Paragraph or a unifonn State practice confinning it. 181
185. The United Kingdom maintained that the language of Paragraph 6 was "at most of
statement of policy not law". 182 Both the United States and the United Kingdom
further suggest that it related to the territorial integrity of newly independent
states, on the basis of comments made by Indonesia, Iran, Pakistan, Tunisia and
Cyprus in 1960. 183
176 Writtcn Statemcnt of the Netherlands, para. 3.17.
177 See paras. 142 to 157 of the Written Statcmcnt of the African Union.
178 Dossier No. 55, Resolution 1514 (XV), op. cit., para. 6.
119 E.g., Writtcn Statement of Argentina, paras. 38-45; Writtcn Stalemcnt of Belize, paras. 3.1-3.13;
Writtcn Statement of Brazil, paras. 20-24; Writtcn Statement of Mauritius, para. 6.50(3); Writtcn
Statement of Djibouti, paras. 35-42; Written Statemcnt of Namibia, p. 3; Written Statement of
Nicaragua, para. 9.
180 Writtcn Statement of the United Kingdom, paras. 8.31-8.61; and Written Slatcment of the United
States, paras. 4.47-4.72.
1111 Writtcn Statcmcnt of the United Kingdom, paras. 8.37-8.46; and Writtcn Statcmcnt of the United
States, paras. 4.47-4 .. 49.
l82 Written Statemcnt of the United Kingdom, para. 8.36.
llll(bid., paras. 8.40-8.45; and Written Stalcmcnl of the United States, par as. 4.47-4.50.
S9
186. A close analysis, however, yields different conclusions. First, there is nothing in
t» the language of Paragraph 6 that suggests that it is a statement of policy, rather
than law. In fact, the terms of Paragraph 6 are strictly legalistic. It refers to the
legal concepts of "national unity" and "territorial integrity", as well as to an
international treaty, namely "the Charter of the United Nations".
187. Actually, the United Kingdom is contradicting its own positions. On 7 December
1967, during the discussions of the Fourth Committee on the implementation of
Resolution 1514, the United Kingdom highlighted the importance of the principle
of territorial integrity in Paragraph 6, as it said:
"The term •territorial integrity' as used in paragraph 6 of resolution
1514 (XV), referred to the wholeness and indivisibility of Territories
which had been administered as a single unit - for example the former
Belgian Congo and Kenya. That was the principle which the
Organization of the African Unity (OAU) had wisely acknowledged in
recognizing ail former colonial boundaries, however illogical." 184
188. Second, it is clear that the prohibition of any attempt at the "partial or total
disruption of the national unity and territorial integrity of a country", as set out in
Paragraph 6, was applicable to colonial territories priar to their independence.
Argentina has aptly explained that:
''In paragraph 6, the addition of the expression 'or country' to
complete the mention of "any State" is significant and must have a
sense. lt necessarily implies that the reference to States was not
enough. The context demonstrates that what was at the core of
Resolution 1514 (XV) was the end of colonialism in ail its forms. In
some cases, the victim of colonialism through the disruption of
territorial integrity can be a State, but yet in many others they are
·colonial countries and peoples'. lndeed, the entire abject and purpose
of the resolution was to put an end to ail grievances originated by the
184 Dossier No. 201, Fourth Committee, summary record, 1741st Meeting, Thursday, 7 Deccmber
1967, 11 :00 a.m. (A/C.4/SR.1741 ), para. 3 J.
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189.
persistence of colonialism. The title of the resolution itself disposes of
any pretence that "country" is employed in paragraph 6 as a synonym
of "State": "Declaration on the Granting of lndependence to Colonial
Countries and Peoples". lt is obvious that sovereign States need not to
be granted independence." 185
Thus, the comments of Indonesia, Iran, Pakistan, Tunisia and Cyprus, relied on by
the United Kingdom and the United States do not support their argument that
Paragraph 6 of Resolution 1514 did not apply to Non-Self-Goveming Territories
prior to their independence. None of these comments explicitly excludes the
application of Paragraph 6 to Non-Self-Goveming Territories prior to their
independence. At best, they might support an argument that Paragraph 6 also
applied to such Territories, afier they had achieved independence:
• lndonesia 's comments are no indication that Paragraph 6 did not apply
to Non-Self-Goveming Territories prior to their independence. 186
They focus on the retention of West new Guinea/West Irian by the
Netherlands after Indonesia's independence. The retention had taken
place prior to Indonesia's independence, in 1949, when The
1 ss Written Statement of Argentina, para. 40.
186 Dossier No. 67, General Asscmbly, verbatim record, 15th Session, 936th Plenary Meeting, Monday,
5 December 1960, 8:30 p.m. (NPV.936), para. 55. The first comment relied upon by the United
Kingdom and the United States refers to the concept of territorial integrity in paragraphs 4, 6 and 7 of
Resolution 1514 (not only paragraph 6) and notes:
"Moreover, it is a malter of great importance to us that this declaration is designed to prevent
any attempt aimed al the partial or total disruption of the national unity and territorial integrity
of a country. It emphatically declares in paragraphs 4, 6 and 7 that the intcgrity of the national
terri tories of peoples which have attaincd indepcndencc shall be respected. This is a rejection
of colonial activities which crcate disputes such as that of Western Irian between lndonesia
and the Netherlands. It is a categorical rcjection, therefore, of the Dutch colonial policy which,
as I have already pointed out, misuses the sacred right of self-determination in order to
continue colonialism in an integral part ofour national territory, West Irian."
Dossier No. 74, General Assembly, verbatim record, 15th Session, 947th Plenary Meeting,
Wednesday, 14 December 1960, 3:00 p.m. (NPV.947), para. 9. The second comment relied on by the
United Kingdom and the United States confirms that Paragraph 6 of the Resolution applies to a
situation of disruplion of territorial integrity or national unity afler independence but does not exclude
its application prior to the country's indepen dence:
"When drafting this document my delegation was one of the sponsors of paragr aph 6, and in
bringing it into the draft resolution we had in mind the continuation of Dutch colonialism in
West Irian is a partial disruption of the national unity and the territorial intcgrity of our
country."
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Netherlands separated West New Guinea from the rest of Indonesia.
Indonesia's comments were made after it became independent.
• Iran's comments do not specifically refer to Paragraph 6 of Resolution
1514. Nowhere did it state that the Paragraph did not app/y to NonSelf-
Governing Territories prior to their independence. 187
• Pakistan 's comments do not even support the fact that Paragraph 6
applies to Non-Self-Goveming Territories afler they have achieved
independence. 188
• Tunisia's comments do not discuss Paragraph 6 altogether. They refer,
inter a/ia, to disturbances caused by Belgium in the Congo after the
country's independence, and concluded that there must be a
commitment from colonial powers to respect the independence,
sovereignty and territorial integrity of new States. 189
• Finally, Cyprus's comments are a general reference to the fact that
Paragraph 6 relates to the colonial policy of "divide and rule". There is
no indication as to whether it refers to partial or total disruption of the
187 Dossier No. 57, General Assembly, verbatim record, 15th Session, 926th Plenary Meeting, Monday,
28 November 1960, 3:00 p.m. (A/PV.926), para. 71. The relevant passage reads as follows:
"Member States, and especially the former Administering Powers, must, moreover, refrain
from any attempt aimed at the partial or total disruption of the national unity and the territorial
intcgrity of a country. Thus, it would be desirable if, in the declaration on the termination of
colonialism, all Member States would solemnly reaflirm the undertaking they assumed under
the United Nations Charter never in any way whatever to violate the national sovereignty and
territorial integrity of another State."
1 RH Dossier No.61, General Asscmbly, verbatim record, 15th Session, 930th Plenary Meeting,
Thursday, 1 December 1960, 10:30 a.m. (A/PV.930), para. 73. The relevant passage reads as follows:
"Lest our fellow Members be inclined to think that, in putting forth these imperatives without
clarification, we are bccome oblivious of certain rclatcd demands of international security and
a stable world order, we would point out the provisions of. paragraph 6. This paragraph
cmbodies an important safeguard against any altcmpt to d1srupt the national unity and
territorial intcbl'fity of a country."
1119 Dossier No.60, General Assembly, verbatim record, 15th Session, 929th Plcnary M eeting,
Wedncsday, 30 November 1960, 3:00 p.m. (A/PV.929), para. 126.
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national unity and territorial integrity of a country prior or after
independence. 190
190. To the extent that these comments support an argument that Paragraph 6 applied
to Non-Self-Goveming Territories, afier they had achieved independence, the
African Union takes no issue with this interpretation of Paragraph 6. It submits
that Paragraph 6 was sufficiently broad to cover territorial integrity of Non-SelfGoverning
Territories prior to and afier their independence.
191. Third, General Assembly and Security Council resolutions, as well as State
practice, in the years immediately following the adoption of Resolution 1514,
leave no room for doubt that Paragraph 6 prevented any State from dismembering
a colonial unit,prior to the exercise of the right to self-determination, and that this
was a rule of customary international law in 1965. A vast number of General
Assembly resolutions, adopted shortly after Resolution 1514, support the fact that
Paragraph 6 protected the territorial integrity of colonial territories. 191 For
instance, Resolution 1573 (XV) on the Question of Algeria, adopted just a few
days after Resolution 1514, stated:
"Taking note of the fact that the two parties concemed have accepted
the right of self-determination as the basis for the solution of the
Algerian problem ...
Convinced that al! 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
190 Dossier No.72, Gcncral Asscmbly, verbatim record, 15th Session, 945th Plcnary Meeting, Tuesday,
13 December 1960, 3:00 p.m. (A/PV.945), para. 93. The comment rends:
"This is essential in order to counter the conscqucnces of the policy of 'divide and rule'
which ottcn is the sad legacy of colonialism and carrics ils evil cffccts furthcr into the future.','
191 Writtcn Statement of the African Union, paras. 154-175. See also, c.g., Writtcn Stalcmcnt of
Mauritius, paras. 6.51-6.55; Writtcn St atcmcnl of the Marshall Islands, para. 20; Writtcn Statement of
Belize, paras. 3.5-3.6.
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right of self-determination on the basis of respect for the unity and
territorial integrity of Algeria". 192 {emphasis added)
192. A year after Resolution 1514 was adopted. Resolution 1654 (XVI) expressed
concems that 0contrary 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 deco/onisation
••• "
193 (emphasis added)
193. And, again, a month a fier the issuance of Resolution 1654, Resolution 1724 (XVI)
on the Question of Algeria recalled that the right to self-determination had to be
implemented respecting the territorial integrity of Algeria:
194.
0Recal/ing 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 hasis 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-detennination
and independence respecting the unity and territorial integrity of
Algeria. "194
No less than 22 General Assembly and Security Council resolutions were issued,
endorsing the principle embodied in Paragraph 6 of Resolution 1514 that the
I'>! General Asscmbly Rcsolution 1573 (XV), Question of Algcria (NRES/l 573(XV) of 19 Dccember
1960), Preambular paras. 9 and 11, and Operative Para. 2.
191 Gencral Asscmbly Rcsolution 1654 (XVI), The situation with regard to the implementation of the
Declaration on the granting of independcncc to colonial countrics and pcoplcs, (A/RES/1654(XVI) of
27 Novembcr 1961), Prcambular para. 6.
19-1 Gcncral Assembly Resolution 1724 (XV[), Question of Algcria, (A/RES/1724(XVI) of 20
Dcccmbcr 1961 ), Preambular para. 7.
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territorial integrity of colonial units prior to independence must be respected.195
They related to South West Africa,
196 Basutoland, Bechuanaland and
Swaziland, 197 Oman, 198 Aden, 199 Nauru, 200 Equatorial Guinea, 201 Gibraltar, 202
Cornaro Archipelago, 203 French Somaliland (Djibouti), 204 and 26 Non-Self
Goveming Territories, including Mauritius.205
195. What is remarkable about these resolutions is that they were adopted (i) prior to
the detachment of the Chagos Archipelago from Mauritius; (ii) prior to the
independence of Mauritius; or (iii) shortly thereafter.
196. State practice during the relevant period further demonstrates that there was a
customary international law principle that territorial integrity of colonial units had
to be respected so that the people could exercise their right to self-determination.
19s Written Statement of Mauritius, para. 6.55.
196 General Assembly, 18th Session, Question of South West Africa, (A/RES/1899(XVIII) of 13
Novcmber 1963); General Assembly, 20th Session, Question of South West Africa, (A/RES/2074(XX)
of 17 December 1965); General Assembly, 5th Special Session, Question of South West Africa,
(A/RES/2248(S-V) of 19 May 1967); Gem:ral Assembly, 22nd Session, Question of South West
Africa, (A/RES/2372(XXII) of 12 June 1968) (adopted by 96-2 with 18 abstentions); Security Council,
The Situation in Namibia, (S/RES/264 of 20 March 1969) (adopted by 13-0 with 2 abstentions);
Security Council, The Situation in Namibia, (S/RES/269 of 12 August 1969) (adopted by 11-0 with 4
abstentions).
197 Gcneral Assembly, 17th Session, Question of Basutoland, Bechuanaland and Swaziland,
(A/RES/l 8 l 7(XVII) of 18 December 1962); General Assembly, 20th Session, Question of Basutoland,
Bcchuanaland and Swaziland, (A/RES/2063(XX) of 16 December 1965).
198 General Assembly, 22nd Session, Question of Oman, (A/RES/2302(XXII) of 12 December 1967);
Gencral Assembly, 21st Session, Question of Oman, (NRES/2238(XXI) of20 Decembcr 1966).
199 General Asscmbly, 21st Session, Question of Aden, (A/RES/2183(XXI) of 12 Decembcr 1966).
:wo Gencral Asscmbly, 22nd Session, Question of the Trust Tcrritory of Nauru, (A/RES/2347(XXII) of
19 Dccembcr 1967).
201 General Assembly, 21st Session, Question of Equatorial Guinea, (NRES/2230(XXI) of 20
Dcccmber 1966); Gcneral Asscmbly, 22nd Session Question of Equatorial Guinca,
(A/RES/2355(XXII) of 19 Deccmbcr 1967).
202 General Asscmbly, 22nd Session, Question of Gibraltar, (NRES/2353(XXII) of 19 December
1967).
:?OJ Gcneral Assembly, 28th Session, Question of Comoro Archipelago, (A/RES/3161(XXVIII) of 14
Decembcr 1973); Gcneral Assembly, 29th Session, Question of Comoro Archipelago,
(NRES/3291(XXIX) of 13 December 1974).
2o4 General Assembly, 30th Session Question of French Somaliland, A/RES/3480(XXX) of 11
Dccember 1975).
20s Dossier No. 171, Resolution 2232 (XXI), op. cil.; Dossier No. 198, Rcsolution 2357 (XXII), op. cil.
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197. The United States insists that there was no uniform State practice in this
respect. 206 In support of its argument, it relies on (i) the decolonisation of British
Cameroons and Ruanda-Urundi, which it says, were each "split into two" and
each part took a different path to independence; (ii) the decolonisation of Jamaica,
where Jamaica was separated from the Cayman Islands and the Turks and Caicos
Islands, but retained governing authority over both territories, which did not
accede to independence at the same time as Jamaica and remained separate NonSelf-
Governing Territories; (iii) several Non-Self-Governing Territories, which
"chose another status" than independence; and (iv) several Non-Self-Governing
Territories, which changed status "without a prior attempt to ascertain the freely
expressed wished of the people of the territory". 207
198. Again, this is incorrect. As shown above, there was a principle of customary
international Iaw in 1965, whereby the territorial integrity of the colonial unit had
to be maintained until the right to self-determination had been freely exercised.
l 99. In this respect, the African Union notes that most of the examples relied on by the
United States in support of an alleged contrary State practice (i.e., States that have
voluntarily foregone their right to territorial integrity) are plainly irrelevant. The
facts that certain Non-Self-Governing Territories freely chose another status than
independence, or that others acceded to independence without an attempt to
ascertain the wish of the people of the territory, does not contradict the fact the
territorial integrity of the colonial unit had to be maintained until the right to selfdetermination
had been free/y exercised. These comments only address the three
examples that are connected to the question at stake, namely Ruanda-Urundi,
British Cameroons and Jamaica.
200. As correctly emphasised by Mauritius, the only exception to the principle that a
new State is formed from the totality of the previous Non-Self-Governing
Territory is where there have been circumstances in which maintaining the
06 Written Statemcnt of the United States, paras. 4.65-4.72.
iu1 Ibid., paras. 4.69-4.72.
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201.
integrity of the unit proved impossible as a consequence of disturbances. 208 This is
precisely what happened in respect of Ruanda-Urundi.209 The General Assembly
referred to the fact that efforts to maintain the unity of Ruanda-Urundi did not
succeed. It should nevertheless be recalled that ail prior General Assembly
resolutions had emphasised that Ruanda-Urundi should accede to independence
.. as a single, united and composite State".2,o
Where there was otherwise a question as to whether the territorial integrity should
be altered (by merger or division) the United Nations supervised plebiscites,
which were almost invariably held.211 This was, in fact, the case in respect of
British Cameroons,:?12 the very example relied on by the United States.
202. Further, as acknowledged by the United States, the Turks and Caicos and Cayman
Islands were given the possibility to become independent and voted to remain
United Kingdom 's colonies in 1962.213
t 203. Finally, the African Union notes that the United Kingdom bas invoked the
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'persistent objector' rule and submitted, in the alternative, that "[e]ven if there had
been a customary "right" for the people of a non-self-goveming territory to
territorial integrity in the 1960s, it would not be binding on the United Kingdom,
because it was a persistent objector".214 The United Kingdom stated that it has
found some elements of Resolution 1514 unacceptable, including the language of
Paragraph 6 pertaining to the territorial integrity of a country.215
2011 Written Statcment of Mauritius, para. 6.58 refcrring to Ruanda-Urundi, General Assembly, 16th
Session, The future of Ruanda-Urundi, (AIRES/ l 746(XVI) of 27 June 1962) (hcrcinafter "Resolution
l 746(XVI)").
209 Loc. cil.
:?IO Loc. Cil.
::? 11 Written Statcment of Mauritius, paras. 6.58-6.60.
:? 12 General Asscmbly, 13th Session, The future of the Trust Territory of lhe Cameroons under United
Kingdom administration, (A/RES/1350(XIII) of 13 March 1959; and Gcncral Asscmbly, 14th Session,
The future of the Trust Territory of the Camcroons under United Kingdom administration: organization
of n further plebiscite in the northem part of the Tcrritory, (NRES/1473(XIV) of 12 Deccmbcr 1959).
211 Writtcn Statement of the United States, para. 4.68.
Zl4 Written Statement of the United Kingdom, paras. 8.59-8.61 and 8.7I.
u Writtcn Slatcmcnt ofthe United Kingdom, para. 8.6I.
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204. But, as already explained above, the United Kingdom has previously reaffinned in
1967 as .. a basic principle" the "wholeness and indivisibility of Territories which
had been administered as a single unit."216 Furthermore, the United Kingdom does
not appear to have objected to the existence of a right to self-determination at the
relevant date. Rather, the United Kingdom appears to have been concemed that
the right to self-determination could be interpreted as imposing a duty on
administering powers to grant Non-Self-Goveming Territories immediate
independence.217
205. In any event, it is trite doctrine that once a rule of customary international law is
established that a State cannot unilaterally exempt itself from its obligations under
that rule.
206. As a Non-Self-Goveming Territory, Mauritius was expected to have enjoyed the
protections of the Charter. While it may have been not evident at the time of the
drafting of the Charter that the principle of self-determination applied to NonSelf-
Goveming Territories, the Court, in its seminal Namibia Advisory Opinion,
recognised that the
"development of international law in regard to non-self-goveming
territories, as enshrined in the Charter of the United Nations, made the
principle of self-determination applicable to ail of them. The concept of
the sacred trust was confinned and expanded to ail "territories whose
peoples have not yet attained a full me asure of self-government" (Art. 73).
Thus it clearly embraced territories under a colonial regime."218 (emphasis
added)
:16 Written Statement of Belize, para. 3.7 rcforring to Dossier No. 201, Fourth Committce, 1741st
Meeting, op. cil., para. 31.
17 Report of the Working Group of Officiais on the Question of Ratification of the International
Covenants on Human Rights, I August I974, Annex D. para. 5, Annex 86 to Writtc n Statement of the
United Kingdom. See also Writtcn Statemcnt of Mauritius, para. 6.40.
218 Namibia Advismy Opinion, op. cil., p. 31, para. 52.
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IV. The Decolonisation of Mauritius Was Not Lawfully Completed in
1968
207. Neither the United Kingdom nor the United States sought to establish that during
the decolonisation of Mauritius the United Kingdom respected the right to selfdetennination.
including the right to territorial integrity. They merely argued that
Resolution 2066 did not retlect a mandatory obligation. 219 The United States
further maintained that States strongly disagreed over the language in the context
of Resolutions 2332 (XXI) and 2357 (XXII). suggesting. that they. therefore, did
not represent opinio Juris at the time. 220 As has been clarified in the Written
Statement of the African Union. this is incorrect.
208. The African Union has submitted that the decolonisation of Mauritius was not
lawfully completed, in that the relevant territorial unit for self-determination,
Mauritius, including the Chagos Archipelago, was dismembered prior to the
independence of Mauritius without seeking the free consent of the population as a
whole. 221 This is evidenced by General Assembly Resolution 2066, which
explicitly refers to the violation by the United Kingdom of the right to selfdetennination
and territorial integrity of Mauritius. as well as by Resolutions 2232
and 2357, which also relate to the right to self-determination and its corollary of
territorial integrity.222 Many States shared the same position.223
209. Resolution 2066 used mandato,y language in relation to the detachment of the
Chagos Archipelago. lt noted with deep concem any step taken by the United
Kingdom of establishing a military base as a contravention to Resolution 1514
2, 9 Written Statement of the United Kingdom, paras. 8.49-8.54; and Writtcn Statcmcnt of the United
States, paras. 4.55-4.57.
no Written tatcment of the United States, paras. 4.57-4.58.
:m Written Statement of the African Union, paras. 129-198.
n /hic/., paras. 158-175 .
. m Writtcn Statement of Argentina, paras. 48-51 ; Writtcn Statcmcnt of Belize, paras. 4.1-4.2 ; Written
statcmcnt of Brazil, paras. 23-24; Written Statemcnt of Djibouti, paras. 35-42; Wriucn Statcmcnt of
fndia, paras. 57-65; Writtcn Statemcnt of Mauritius, paras. 6.62-6.108; Writtcn Statcmcnt ofNamibia,
p. 3; Writtcn Statcmcnt of Nicaragua, paras. 10-13; and Writtcn Statcmcnt ol'South Africa, para. 78.
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(XV).224 The Resolution further confinned that "the [United KingdomJ ha[dJ not
Jully implemented Resolution 1514", invited the United Kingdom "to take
effective measures with a view to the immediate and full implementation of the
Resolution 1514" and called on it "to take no action which would dismember the
Terri tory of Mauritius and violate its territorial integrity".225
2 I O. Resolutions 2232 and 2357 were adopted without a negative vote. This, alone,
puts into question the assertion of the United States, that States strongly disagreed
over the language on territorial integrity in the context of Resolutions 2332 and
2357. Had their disagreement been as strong as alleged by the United States, the
relevant States, inc/uding the United Kingdom and the United States themse/ves,
would have voted against them .
211. Resolution 2232, adopted in 1966, recalled Resolutions I 514 (XV) and 2066 (XX)
and reiterated "[the General Assembly'sJ 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)". 226
212. The Resolution reaffinned "the inalienable right of the people of these Territories
to self-detennination and independence" and called upon "the administering
Powers to implement without delay the relevant resolutions of the General
Assembly".227
213. The United Kingdom did not abide by Resolution 2232 (XXI). Ten days after the
General Assembly had passed the Resolution, on 30 December 1966, the United
Kingdom concluded a bilateral agreement with the United States, by exchange of
22-1 Dossier No. 146, Rcsolution 2066 (XX), op. cil., Prcambular para. 5 .
225 Ibid, Preambular para. 4 and paras. 3 and 4 .
226 Dossier No. 171, Resolution 2232 (XXI), op. dl., para. 4.
227 Ibid, paras. 2 and 3.
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notes, on the Availability for Defence Purposes of the British lndian Ocean
Territory.228
This fact did not escape the attention of the Special Committee. On 5 December
1967, the Special Committee transmitted its Sixth Report, which explicitly stated
that it had once again called on the United Kingdom "to retum to Mauritius ... the
islands detached from [it] in violation of [its] territorial integrity and to desist
from establishing military installations therein".229
Moreover, a number of representatives in the Committee explicitly condemned the
United Kingdom 's failure to comply with its obligations under Resolution
2066,230 with the Indian representative explicitly stating that the dismemberment
of the Chagos Islands from Mauritius constituted a "clear violation of General
Assembly resolution 2066 (XX)".231
Shortly after the Special Committee transmitted its Sixth Report, the Fourth
Committee of the UN General Assembly met again to discuss the implementation
of Resolution 1514 (XV). 232 During those discussions, a number of
representatives condemned the United Kingdom 's actions in respect of Mauritius
and the Chagos Islands. 233 At the conclusion of its meetings, the Fourth
Committee adopted draft resolution A/C.4/L.899 and subsequently recommended
228 "Ew:hange of Note.ç between the Government of the United Ki11gdom of Grelll Britain and Northern
Ire/and and the Government of the United SICltes of America concerning the Availability for Defence
Purposes of the British lndian Ocean Terrilory" (signed an entcred into force 30 Deccmbcr 1966)
Treaty Series No. 15 (1967) .
229 Dossier No. 254, Report of the Special Committee on the Situation with regard to the
lmplementation of the Declaration on the Granting of lndependence to Colonial Countries and Peoples,
Twenty-Second Session, 1967 (A/6700/Rcv.l (Part lII), p. 37.
23o Dossier No. 254, Report of the Specia[ Committce, Twcnty-Sccond Session, op. cil., p. 48 (Polish
representative) and p. 49 (Bulgarian representative).
1ll Dossier No. 254, Report of the Special Committec, Twenty.Second Session, p. 48 .
:m Dossier No. 201, Fourth Committee, 1741st Meeting, op. cit.; Dossier No. 202, Fourth Committce,
summary record, 1750th Meeting, Thursday, 14 Deccmber 1967, 4:05 p.m. (A/C.4/SR.1750); Dossier
No. 203, Fourth Committee, summary record, 1751st Meeting, Friday, 15 Dcccmber 1967, 11 :00 a.m.
(NC.4/SR.1751 ); Dossier No. 204, Fourth Committee, summary record, 1752nd Meeting, Friday, 15
December 1967, 3:25 p.m. (A/C.4/SR.1752); Dossier No. 205, Fourth Committce, summary record,
1755th Meeting, Saturday, 16 December I 967, 3:30 p.m. (A/C.4/SR.1755) .
233 Dossier No. 204, Fourth Committee, 1752nd Meeting, op. cil., paras. 3 (Rcprcsentative of India)
ami 82·84 (Representativc of Poland).
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it to the General Assembly . .234 The text of that resolution reflected what would
become General Assembly Resolution 2357 (XXII).
217. Resolution 2357 recalled, inter alia, Resolutions 1514 (XV), 2066 (XX) and 2232
(XXI), and referred to the Special Committee's Sixth Report, including the
chapter on Mauritius. In this Resolution, the General Assembly expressed its deep
concem
"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". 235
1 218. It, further, reaffirmed "the inalienable right of the people of these Territories to
self-determination and independence". Furthermore, it called "upon the
administering Powers to implement without delay the relevant resolutions of the
General Assembly" and reiterated "[the General Assembly's] 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)". 236
219. Therefore, in relation to the facts relevant to Question (a), of whether the
decolonisation of Mauritius was lawfully completed, it is submitted that:
(i) the relevant unit of decolonisation was the entire territory of
Mauritius, including the Chagos Archipelago,
:?H Dossier No. 205, Fourth Committee, 1755th Meeting, op. cil., p. 562; Dossier No. 200, Report of
the Fourth Committee, "lmplementation of the Dcclaration on the Granting of lndepcndence to
Colonial Countries and Peoples - Tcrritorics not Considcrcd Separatcly" (N7013 of 18 Occember
1967), pp. 15 and 22-24.
235 Dossier No. 198, Resolution 2357 (XXII), op. dl .. Prcambular para. 6.
236 Ibid,., Prcambular paras. 1, 2 and 5, and paras. 2-4.
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{ii) the United Nations recognised the entire territory of Mauritius
as the unit of self-detennination,
(iii) the decision of the administering power to dismember
Mauritius prior to independence had no effect on the selfdetennination
unit, which remained the entire territory of
Mauritius,
(iv) the right of self-detennination had to be exercised according to
the freely expressed will of the people of the territory
concerned,
(v) the detachment of the Chagos Archipelago was carried out in
secret without any attempt to ascertain the view of the people
of Mauritius, and
(vi) that the "Agreement" of the Council of Ministers of Mauritius
was not capable of meeting the requirements of selfdetennination,
in that Mauritius in fact had no choice at alI.237
On that very last point, viz., the Agreement of 1965, it should be asked how can a
colony manage under the authority of a colonial power, if it was threatened, either
to accept the detachment of part of its territory or remain a colony forever? The
African Union is not inviting the Court to consider the validity of the 1965
Agreement, because it is not part of the legal question put before it. On the
contrary, the use of that Agreement should be confined to the necessary facts
required to ensure that neither freewill nor self-detennination were exercised by
the representatives of Mauritius or by the people of Chagos in 1965.
221. The African Union respectfully invites the Court to conclude that the
decolonisation of Mauritius was not Jawfully completed, in that the relevant
117 Written Statcment of Mauritius, paras. 6.62-6. I 08.
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territorial unit for self-detennination, Mauritius, including the Chagos
Archipelago, was dismembered prior to the independence of Mauritius, without
seeking the free consent of the population as a whole. In other words, the Court's
answer should be in the negative.
222. The above demonstrates that there cannot be a sovereignty dispute or a territorial
dispute between Mauritius and the United Kingdom, when one of them - the
United Kingdom in casu - never had any title over a territory or could not even
claim a title over a territory. Territorial titles can only be acquired in confonnity
with general international law. No State can acquire a title over a territory that it
did not administer in accordance with international law. Moreover, no State can
claim title over a territory, and the people attached to it, when it has violated the
right of self-detennination of that said people by depriving them of deciding on
the future status of their territory. This is exactly what has happened in the case of
the Chagos Archipelago.
t 223. The maxims nemo auditur propriam turpitudinem allegans and ex injuria jus non
1 oritur are general principles of law that the Court has steadily recognised in its
own case law and that should be taken into account in the present proceedings.238
They imply that a State cannot derive a right from its own guilt or from an
internationally wrongful act. And as shown by the African Union, as well as by
other States in the present proceedings, the detachment of the Chagos Archipelago
in 1965 constituted, and continues to the present day to constitute an
internationally wrongful act, from which the United Kingdom cannot derive any
right, and surely not a territorial title that would allow it to characterise the issue
between Mauritius and the United Kingdom as an issue of (territorial)
sovereignty.
1311 Gahcikovo-Nagymaros Project (H1111gary!Slomkia), J11dgme111, I.C.J. Reports 1997, p. 7 al p. 76,
para. 133.
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V. The Court Should Adopt a Broad Approach in Determining the Legal
Consequences of the Continued Unlawful Administration of the Chagos
Archipelago
ln view of the above, the African Union 's position in respect of Question (b) can
be summed up as follows:
i) As a result of the continued administration by the United
Kingdom of the Chagos Archipelago, the United Kingdom has
violated, and continues to violate, a number of distinct
international obligations of erga omnes character, (which as
such, apply to Mauritius) inter alia: (i) the respect for the right
to self-detennination of the Mauritian people; (ii) the obligation
to refrain from any act violating the territorial integrity or the
national unity of Mauritius; and (iii) the fundamental human
rights of Mauritian nationals, in particular those of the
Chagossian origin.239
ii) The breach of international obligations by a State does not
release that State from fulfilling those obligations. 240
iii) The United Kingdom is under an obligation to complete the
process of decolonisation of Mauritius, to bring the unlawful
situation to an immediate end, and to give full reparation to
Mauritius
iv) Third States and international organisations are under an
obligation to assist in the completion of the decolonisation of
Mauritius, and to refrain from aiding or assisting the United
Kingdom in its continued administration of the Chagos
Archipelago and the maintenance of the present unlawful
situation.
239 Written Statemcnt of the African Union, para. 217.
.io Ibid., para. 219.
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225. As already indicated in the present Written Comments, the African Union notes
the submissions of the United Kingdom that Question (b) is .. both vague and
expressed in very broad tenns". 241 The African Union is of the view that, on the
contrary, Question (b) is clear. The Question is directed at the legal consequences
that flow from a specific factual situation. As stated in paragraph 151 of the
present Written Comments, in order to answer that Question, the Court will need
to detennine Question (a), namely, whether the process of decolonisation of
Mauritius was lawfully completed, and whether any legal consequences arise in
international law from the United Kingdom's continued administration of the
Chagos Archipelago. Thus, as has happened in the past,242 this Court is asked to
identify the relevant legal principles and provide guidance on how those principles
ought to be applied .
226. The African Union has already responded to claims that the Court should
narrowly interpret Question (b) so as to limit its consideration to .. issues that are
relevant for the General Assembly with regard to the overall process of
decolonization", and not the legal consequences that might arise for States. 243 It
has been contended that, had the General Assembly intended for this Court to
consider the legal consequences for States, it would have said so in express
tenns. 244 In addition, it was argued that according to its jurisprudence, the Court
should take into consideration previous confinnations made by those States
sponsoring the Request that "the only intention in submitting the request was to
provide the General Assembly with the necessary Iegal parameters to guide the
work of the General Assembly itself'.245
227. This reading of the political statements made before, during or after the adoption
of Resolution 71/292 is, again, very literai and restrictive and puts much into the
mouths of others. Even though, these allegations do not say in what exact words
m Written Statement of the United Kingdom, para. 9.4.
242 Nuclear Weapons Adviso1y Opinion, op. cil., p. 234 para. IJ; Wall Advismy Opinion, op. cil. p. 154,
para. 38.
w Written Statcmcnt ofGennany, paras. 131· 132.
244 Written Statement ofGennany, para.133.
14SWrittcn Statement ofGennany, para. 134.
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such exclusory statements were made, the reference to guiding the work of the
General Assembly ilse/J, can never reveal an intent that the Assembly wishes to
have an opinion that cannot be pursued by any parties beyond itself.
228. Moreover, Germany distinguished the present Questions from the question posed
in the Wall Advisory Opinion, on the basis that the latter included specific
reference to the 1949 Geneva Convention relative to the Protection of Civilian
Persons in Time of War, thereby implying that the General Assembly wanted to
make specific reference to the obligations of third States under that Convention.246
The African Union, however, submits that it is for this Court to determine for
which entilies the legal consequences arise in the present case. The African Union,
thus, recalls the findings of the Court in the Wall Advisory Opinion that:
"the Court considers that the question posed to it in relation to the legal
consequences of the construction of the wall is not an abstract one, and
moreover that il wou/d be for the Court to determine for whom any such
consequences arise."247 (emphasis added)
229. Furthennore, matters of decolonisation, self-determination and territorial integrity
are of concem not on/y to the United Nations but also to ail States and interested
international organisation; whether acting through the General Assembly or
otherwise. This is reflected in Question (b) that refers to the consequences in
international law, "including obligations retlected in the above-mentioned
resolutions". In this regard the African Union recalls that Resolution 1514 calls
upon ail States to observe the provisions of the UN Charter, UN Declaration on
Human Rights and the Declaration on the Granting of Independence to Colonial
countries and Peoples. Pursuant to Operative Paragraph 7:
"Ali States shall observe faithfully and strictly the provisions of the
Charter of the United Nations, the Universal Declaration of Human
Rights and the present Declaration on the basis of equality, non-
46 Writtcn Statement of Gennany, para. 111.
247 Wall AcMsory Opinion, op. cit., p. 155, para. 40.
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interference in the internai affairs of ail States, and respect for the
sovereign rights of ail peoples and their territorial integrity."248
230. Further, the African Union recalls General Assembly Resolution 2625 {XXV) on
the Declaration on Principles of Friendly Relations between States that:
"Every State has the duty to promote, through joint and separate
action, realization of the principle of equal rights and selfdetennination
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 "249
231. General Assembly resolutions that reaffirm Resolution 1514 and address the
implementation of the Declaration on the Granting of Independence to Colonial
countries and Peoples have addressed "ail States", as well as the administering
States. For example, General Assembly Resolution 72/111 {2017):
and
"12. Calls upon ait States, in particular the administering Powers, as
well as the specialized agencies and other organizations of the United
Nations system, to give effect within their respective spheres of
competence to the recommendations of the Special Committee for the
implementation of the Declaration and other relevant resolutions of the
United Nations;"250
14s Dossier No. 55, Rcsolution 1514 (XV), para. 7.
H9 Gcncral Assembly Rcsolution 2625 (XXV), "Declaration 011 Pri1tciples of International Law
cmtcerning Friendly Relations ami Cooperation among State.,· 111 accordanc:e with the Charter of the
United Nations" (NRES/2625 (XXV) of 24 October 1970) (hcrcinaftcr "Resolulion 2625 (XXV)"),
para. 1.
zso General Asscmbly Resolution 72/111 (2017), "lmp/ementatüm <if the Declaration 011 the Granting
of lnclefX!ndence to Colonial cmmtries and Peop/c,ç ", (NRES/72/111 of 15 Dcccmber 2017)
(hcrcinal\cr "Rcsolution 72/111 (2017)"), para. 12.
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'' l 6. Urges all States, directly and through their action in the
specialized agencies and other organizations of the United Nations
system, to provide moral and material assistance, as needed, to the
peoples of the Non-Self-Governing Territories."251
232. Furthermore, as the African Union has previously submitted, international
obligations relating to self-detennination are erga omnes and therefore the
concern of ail States. 252 As this Court has stated in the Wall Advisory Opinion,
"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 ail States" and, "In view of the importance of the rights
involved, all States can be held to have a legal interest in their
protection" (Barcelona Traction, Light and Power Company, Limited,
Second Phase, Judgment, !. C.J. Repol'ts 1970, p. 32, para. 33). 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."253
233. lt was suggested that, in order to answer Question (b), the Court would need to
express an opinion on whether the United Kingdom or Mauritius currently enjoys
sovereignty over the Chagos Archipelago, and that this in turn would require it to
consider the body of bilateral dealings between the two States before and after the
independence of Mauritius in l 968.2s4 The African Union submits, however, that,
to the contrary, addressing the question of sovereignty and the bilateral dealings
between the two States before and after the independence of Mauritius is not
necessary for the detennination of that Question.
m Resolution 72/111 (2017), op. dt., para. 16.
?S? Written Statcment of the African Union, para. 217.
?SJ Wall Advisory Opinion, op. cil., p. 199, para. 155.
?H Writtcn statement of the United Kingdom, p:ira. 9.5.
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234. Question (b) asks this Court to consider the legal consequences of the failure to
235.
complete the decolonisation process (should this Court so find) and of the
continued administration of the Chagos Archipelago by the United Kingdom. The
questions of sovereignty or the bilateral dealings between the two States have no
relevance to the question of the content of the United Kingdom 's international
responsibility that arises, as a consequence of its commission of an internationally
wrongful act, or acts resulting from the failure to lawfully complete
decolonisation and the continued administration of Chagos. In addition, as has
been amply explained, Question (b ), as such, does not enta il circumvention of the
requirement of consent to international litigation as the United Kingdom
suggests. 255
It has also been stated that .. [i]n order to be able to consider the Question, the
Court would presumably need to have information on the existence, feasibility of,
and intentions behind any resettlement programme that Mauritius might have for
resettling its nationals, 'including but not limited to those of Chagossian origin',
on the Chagos Archipelago."256 It is submitted, however, that this position runs
against the very principles of State Responsibility, as the consideration of the legal
consequences that flow from an internationally wrongful act is limited to the
obligations of the responsible State. 257 The intentions of the injured State are not
relevant and, thus, do not require examination.
J 236. ln this connection, the United Kingdom contends that the Court should not seek to
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reopen findings of the Arbitral Tribunal constituted under Annex VII to the 1982
United Nations Convention on Law of the Sea and that "the Parties would remain
bound by the Award even if the Court were to reach a conflicting or differing
interpretation as to their rights and obligations vis-à-vis each other." 258 In
particular, the United Kingdom referred to its undertaking in the 1965 Agreement,
that it would return the Chagos Archipelago to Mauritius when it was no longer
255Loc. cit.
256 Ibid., para. 9.9.
257 The texl of the draft articles with commenlarics thc rcto is rcproduccd in Ye'1rhook of the
International Law Commission 200!, vol. Il (Part Two), NCN.4/SER.N2001/Add. l (Par t 2), pp. 30-
143.
258 Writtcn slatcmcnt of the United Kingdom, para. 9.14.
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needed for defence purpose, 259 and to the finding that the undertaking gave
Mauritius an interest in the condition in which the Chagos Archipelago would be
retumed. 260
This position by the United Kingdom is untenable. A finding that the United
Kingdom is responsible for the commission of a continuing intemationally
wrongful act and that, as a consequence, the United Kingdom is under an
obligation to bring the unlawful situation to an immediate end and to make full
reparation to Mauritius for the injury caused, would not conflict with the findings
of the Arbitral Tribunal. It is recalled that the decision of the Tribunal concerned
the nature of Mauritius' rights, pursuant to the 1965 Agreement. The Tribunal
found, inter alia:
"( l) that the United Kingdom 's undertaking to ensure that fishing
rights in the Chagos Archipelago would remain available to Mauritius
as far as practicable is legally binding insofar as it relates to the
territorial sea;
(2) that the United Kingdom 's undertaking to return the Chagos
Archipelago to Mauritius when no longer needed for defence purposes
is legally binding; and
(3) that the United Kingdom's undertaking to preserve the benefit of
any minerais or oil discovered in or near the Chagos Archipelago for
Mauritius is legally binding".261
238. Thus, the obligations of the United Kingdom and Mauritius, pursuant to the
Award of the Arbitral Tribunal, are not in contlict with, and should not provide an
obstacle to, the United Kingdom 's obligation to complete the decolonisation
process. The United Kingdom's obligation to cede the Chagos Archipelago to
Mauritius when it is no longer needed for defence purposes would not be breached
lS9 /bid., para. 9.12 (a).
11,olbid., para. 9.12 (d).
:!61 Chagos Arbilration Awarcl, para. 54 7 B., (Dispostij), Pcnnancnt Court of Arbitration, 18 March
2015 (hercinaficr "Chngos Arbitrution Award").
81
by the retum of the Chagos Archipelago to Mauritius be fore the Archipelago is no
longer so needed. Furthennore, Mauritius has repeatedly made it clear to the
United Kingdom and the United States that ''it recognises the existence of the
military on Diego Garcia and accepts its future operation in accordance with
international law". 262 Therefore, in these circumstances, the existence of the
military base provides no basis for delaying the immediate completion of
decolonisation. 263
239. Further, the United Kingdom submitted that the findings of the Arbitral Tribunal
constituted the legal consequences for il with regard to its continued
administration of the Chagos Archipelago.264 But, this is not correct.
§) 240. This argument assumes that the decolonisation process was lawfully completed in
1968. However, as explained above, the decolonisation process was not lawfully
completed. Therefore, the legal consequences for the United Kingdom, with
regard to her continued administration of the Chagos Archipelago are the ones
that flow from an internationally wrongful act, as provided in Part II of the lLC
Articles on State responsibility. Generally, these legal consequences differ from
the findings of the Arbitral Tribunal that concern the nature of the rights of
Mauritius' rights, pursuant to the United Kingdom's undertakings in the 1965
Agreement, as already explained above.
241. The African Union believes that it is notable that the UNCLOS Arbitral Tribunal
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has found that the United Kingdom's "undertaking to retum the Chagos
Archipelago to Mauritius gives Mauritius an interest in significant decisions that
bear upon the possible future uses of the Archipelago",265 and that "Mauritius'
interest is not simply in the eventual retum of the Chagos Archipelago, but also in
the condition in which the Archipelago will be returned". 266 Mauritius has
correctly emphasised that:
261 Writtcn statemcnt of Mauritius, para. 7.22.
2113 loc:. dt.
16-1 Writtcn statcmcnt of the United Kingdom, para. 9.13.
265 Chagos Arbitrution Award. pam. 298.
266 loc. cil.
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.. 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 ail matters of administration and exercise of
sovereign rights".267
167Writtcn statement of Mauritius, paras. 7.45 et seq.
83
PART V
CONCLUSIONS AND SUBMISSIONS
!t 242. The African Union has demonstrated through its Written Statement of I March
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2018 and its present Written Comments, the extent to which it is concemed with
the complete decolonisation of Africa, including putting a peaceful and legal end
to the issue of the Chagos Archipelago in ail its aspects. [t has also explained that
the illegal detachment/excision/separation of the Chagos Archipelago in 1965
from Mauritius, by the administering power, the United Kingdom. This resulted
in breaching the inalienable rights of the Mauritian People, including the
Chagossian population, to self-determination and territorial integrity, which by
the time Chagos was detached, they were already part of international law
goveming the process of decolonisation. They constituted part of customary
international law at the time of the separation of Chagos.
243. So relevant are the words of Judge Ammoun, in his Separate Opinion in the
Namibia Advisory Opinion that:
"[f there is any 0general practice" which might be held, beyond
dispute, to constitute law within the meaning of Article 38, paragraph l
(b), of the Statute of the Court, it must surely be that which is made up
of the conscious action of the peoples themselves, engaged in a
detennined struggle ... for the purpose of asserting ... the right of selfdetennination
... lndeed one is bound to recognize that the right of
peoples to self-determination, before being written into charters that
were not granted but won in bitter struggle, had first been written
painfully, with the blood of the peoples, in the finally awakened
conscience of humanity. And without those same peoples ... who since
the Second World War have streamed into the new international
Organization, the first of a universalist character, would it have been
possible to achieve that impressive number of declarations and
resolutions whereby the great principles they had helped consecrate
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have been translated into law and applied to the reshaping of
international relations?"268 ( emphasis added)
244. According to the customary law of self-determination, as already applicable in
1965, the United Kingdom did not have any right to excise the Chagos
Archipelago from Mauritius before granting it independence. lt is not open to the
United Kingdom to claim that it had any territorial title over Chagos at that date
that would have allowed it to exercise sovereignty over the Archipelago.
245. The United Kingdom respected neither the right to self-determination of the
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people of Mauritius, nor the territorial integrity of Mauritius, including the
Chagossians, when it zmilaterally detached Chagos. No alleged subsequent
agreement between the United Kingdom and the Authorities of Mauritius can
change the fact that the detachment was contrary to customary international law .
246. As was shown by the African Union, as well as by many other States in the
present proceedings, the detachment of the Chagos Archipelago in l 965
constituted, and continues to the present day to constitute an intemationally
wrongful act from which the United Kingdom cannot derive any right, and surely
not a territorial title, that would allow it to characterise the issue between
Mauritius and the United Kingdom as an issue of (territorial) sovereignty.
247. ln the view of the African Union, the Agreement of 5 November 1965, by which
the Mauritius Council of Ministers agreed to detachment by the United Kingdom
Govemment of the Chagos Archipelago in retum for certain undertakings, on
which the UK relies extensively to justify a so-called territorial title over the
Chagos, is null and void under general international law, as reflected in Article 53
of the 1969 Vienna Convention on the Law of Treaties, as it has blatantly violated
the right of the people of Mauritius, including the Chagossians to fully exercise
their right of self-determination and in accordance with international law. The
right of the people to exercise self-determination is part of jus cogens, as
!68 Namihia Adviswy Opinion, op. cil., Separate Opinion of Judgc Ammoun, p. 74, para. 5.
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mentioned in the Written Statement of the African Union269 and in the Preliminary
Remarks to the present Written Comments.
248. lt is very telling to see how the United Kingdom laid extensive focus on the
matter of the characterisation of self-determination. It suffices to recall what the
Permanent Representative of the United Kingdom said when speaking before the
Security Council on the question concerning the situation in the Falkland
Islands,270 or the position it adopted in the proceedings of the Kosovo Advisory
Opinion, 271 to ascertain that the United Kingdom in fact shared how the
international community as a whole perceived self-determination.
249. The Court is reminded of its dictum in the Western Sahara Advisory Opinion, in
which the Court emphasised that "[i]ts answer is requested in order to assist the
General Assembly to deterrnine its future deco/onization policy".272 (emphasis
added) The Africa Union is convinced that the Court will play a definitive rote in
clarifying and consolidating the international law applicable to decolonisation.
250. For the reasons set out in the Written Statement and the present Written
Comments, the African Union respectfully submits that the Court should answer
the questions put to it by the General Assembly as follows:
a. The Court is competent to give the Advisory Opinion requested by the
General Assembly in its Resolution 71/292 of 22 June 2017 and should
answer the two Questions put to it;
b. The process of decolonisation of Mauritius was not 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
269 Writtcn Statement of the African Union, para. 69.
270 Security Council Meeting, 25 May, 1982, S/PV.2366, paras. 182-183.
27, Written Statcment of the United Kingdom in the Request for cm Advi.wry Opinion of the
International Court of Justice 011 the Question ''lç the Unilaterul DeclaraJion of lndependence by the
Provisional lnstitutions of Sel.fGovernment of Kosoi•o in Accordance with /11ter11uti01wl Laiv? ", para.
5 .21. See also Writtcn Statement of Belize, para. 3. 7.
2n Western Salwra Advùory Opinion, p. 68, para. 161.
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Assembly Resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of
l 6 December 1965, 2232 (XXl) of 20 December 1966 and 2357
(XXIl) of 19 December 1967;
c. The continued administration by the United Kingdom 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,
constitutes an intemationally wrongful act with several consequences
under international law;
d. The continued administration by the United Kingdom of the Chagos
Archipelago constitutes a breach of international obligations, reflected
in the relevant resolutions mentioned under paragraph "b"
hereinabove, as it violates a number of fundamental rules of
international law, and in particular:
1. the right of the people of Mauritius, m particular those of
Chagossian origin, to self-determination;
ii. the inviolability of the territorial integrity of States;
iii. the respect for State sovereignty;
1v. the binding relevant and applicable United Nations resolutions;
v. the relevant provisions of the lnternational Covenant on Civil
and Political Rights; and
v1. the relevant provisions of the International Covenant on
Economie, Social and Cultural Rights.
e. The United Kingdom is obliged under general international law to:
1. complete the process of decolonisation of Mauritius;
11. cease immediately its administration of the Chagos
Archipelago;
m. make restitutio in integrum by returning the Chagos
Archipelago to Mauritius; and
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iv. make compensation, covering both the material and moral
damage suffered by the people of Mauritius, and in particular
those of Chagossian origin.
f. Ali States and international organisations, and in particular the United
Nations and al1 its organs, have a duty to cooperate and to take the
appropriate measures in order to induce the United Kingdom to
comply with the obligations stated in paragraphs "d" and "e"
hereinabove.
g. Ail States and international organisations, and in particular the United
Nations and ail its organs, have a duty to refrain from cooperating with
the United Kingdom in pursuance of its continued administration of
the Chagos Archipelago and the maintenance of the present illegal
situation.
251. In light of the above, the African Union respectfully invites the Court to make, at the
very least, a declaration in the operative part of its advisory opinion that the
United Kingdom has failed to comply with its international obligations towards
Mauritius, its people, in particular those of Chagossian origin, so as to provide an
appropriate form of satisfaction.
252. Finally, the African Union respectfully invites the Court to recommend to the
General Assembly to take ail necessary measures to ensure the compliance by the
United Kingdom with its Advisory opinion.
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78. The African Union further reserves the right to respond to further submissions of
olher States during the oral hearings, or in any other manner the Court may prescribe .
A,
Nami, Negm
TJ,e Legat Co11nse
of
tlie African U11ion
89
Written Comments of the African Union