Written Comments of Argentina

INTERNATIONAL COURT OF JUSTICE
LEGAL CONSEQUENCES OF
THE SEPARATION OF CHAGOS FROM MAURITIUS IN 1965
REQUEST FOR AN ADVISORY OPINION
WRITTEN COMMENTS OF THE
ARGENTINE REPUBLIC
15MAY 2018
1
TABLE OF CONTENTS
Introduction
I. There are no compelling reasons to decline the exercise of the advisory jurisdiction
II. The content of the law of decolonization and its applicability to this case
A. Manda tory character of General Assembly resolutions in the field of decolonization
B. Resolution 1514 (XV) is the expression of general international law in the field of
decolonization
C. The scope ofparagraph 6 ofResolution 1514 (XV)
(a) Interpretation ofparagraph 6
(b) The travaux préparatoires
(c) Irrelevance of uti possidetis iuris in this context
D. Self-determination was a right recognized by international law in the 1960s
E. The legal scope of the specifie resolutions dealing with the separation ofChagos
III. The question of bilateral negotiations and unilateral measures
A. Bilateral negotiations before and after independence have not modified the legal situation
B. Unilateral measures taken by the administering power cannot modify the legal situation
C. The obligation to negotiate without conditions the immediate completion of the process of
decolonization
Conclusions
2
Introduction
1. The present Written Comments (hereinafter "WCA") are filed pursuant to the
Court's Order of 14 Ju1y 2017 upon the request for an advisory opinion made by the
General Assembly of the United Nations in its Resolution 71/292 of22 June 2017
on the Legal Consequences of the Separation ofChagosfrom Mauritius in 1965.
2. Pursuant to the same Order, the Argentine Republic (hereinafter "Argentina") filed
its Written Statement (hereinafter "WSA") on 1 March 2018. Twenty-nine other
States as weil as the African Union also produced written statements. At the outset,
points of agreement and disagreement can be mentioned.
3. The written statements reveal sorne significant points of agreement. For instance,
with the exception of one written statement (Australia), the participants have not
challenged that the Court has jurisdiction to render the requested advisory opinion
on the basis of Article 96 of the Charter of the United Nations and Article 65 of the
Statute of the Court. The crucial factual elements that are at the core of the request
by the General Assembly are not contested either: that the Chagos Archipelago was
part of Mauritius in 1965, that Mauritius was a non-self-governing territory
(hereinafter "NSGT") at that time, that the administering power separated Chagos
from Mauritius in 1965, that the population of the Archipelago was deported to other
areas, and that Mauritians, particularly those of Chagossian origin, are not allowed
to resettle in the Archipelago.
4. There is also no controversy with regard to sorne important legal aspects relating to
the present request for an advisory opinion. For example, no participant challenged
the competence of the General Assembly to deal with decolonization issues. The
importance of the principles of self-determination and territorial integrity was
recognized by ali participants that referred to these fundamental principles of
international law, although with different interpretations thereof. The obligation to
respect the territorial integrity in inter-State relations is endorsed in the same
manner. lt is also recognized that there is a territorial sovereignty dispute between
the Republic of Mauritius (hereinafter "Mauritius") and the United Kingdom of
Great Britain and Northern Ireland (hereinafter "the United Kingdom"). That the
process of decolonization can be assessed from an international law perspective was
not challenged either.
3
5. Unsurprisingly, there are important points of disagreement among the participants to
these advisory proceedings. While a considerable number of written statements are
of the view that there are no compelling reasons that would pre vent the Court from
exercising its jurisdiction, 1 a minority of participants defends the opposite view?
This minority bases its position on the existence of a bilateral dispute and on the
efforts made by one of the parties to this dispute to settle it through adjudicative
means. Sorne factual aspects discussed by sorne participants are also controversial.
They relate to the negotiations leading to independence in 1968 and those
concerning the payment of compensation and individual renouncement of claims
through the 1982 Agreement. However, the main differences arise as to the legal
interpretation of sorne relevant provisions of the law of decolonization and their
application to the case at issue in these advisory proceedings. There is disagreement
about the legal effect of United Nations General Assembly resolutions in the field of
decolonization in general and about the legal character of Resolution 1514 (XV) and
its scope, mainly its paragraph 6 in particular. Also challenged is the legal character
of the princip le of self-determination during the 1960s.
6. Since sorne of these arguments developed in written statements have already been
addressed by Argentina in its own written statement, Argentina respectfully refers
the Court to the WSA filed on 1 March 2018. The present WCA will be confined to
issues that still di vide the participants, are direct! y related to, and are of importance
to the present proceedings. Argentina reserves its position with regard to any aspect
of the questions submitted to the Court, both offact and law, which was addressed in
other texts submitted in the first round of these written pleadings. The fact that the
present WCA does not address a point of fact or law raised in other written
statements, in connection or with no direct connection to the questions raised by the
General Assembly's request, in no way can be interpreted as an acceptance by
Argentina ofthese points offact or law.
*
* *
1 WS African Union para. 43, WSA paras. 11-30, WS Brazil para. 14, WS Cuba, WS Cyprus para. 30, WS
Djibouti para. 24, WS Lesotho, WS Liechtenstein para. 18, WS Marshall Islands para. 31, WS Mauritius para.
5.20, WS Namibia, WS Nicaragua para. 5, WS Niger, WS Serbia para. 48, WS South Africa para.58, WS
Vietnam paras. 4~6.
2 This is the case of Australia, Chile, Germany, Israel, the United Kingdom and the United States of America.
4
7. The WCA are divided into three parts. The first part will briefly address those
arguments advanced to request the Court not to exercise its advisory jurisdiction,
and will demonstrate thal there are no compelling reasons to do so. In particular, the
question of the existence of a bilateral dispute, the role of the General Assembly in
the field of decolonization, and the concomitance of this ro le with attempts by those
directly concerned to settle their dispute by peaceful means, will be analysed.
8. The second part concerns the substantial legal issues relating to the law of
decolonization thal still divide the participants to these proceedings and are central
to answering Question (a). In particular the legal character of General Assembly
resolutions in this field will be examined, as will Resolution 1514 (XV) and the
scope of its paragraph 6 concerning territorial integrity, the right to selfdetermination
in the case at issue, the irrelevance of uti possidetis iuris to try to
justify the separation of Chagos from Mauritius, and the relevance of General
Assembly resolutions specifically dealing with Mauritius.
9. The third part will address the irrelevance of bilateral negotiations both be fore and
after Mauritius' independence for the purposes of responding to both questions put
by the General Assembly to the Court. The inappropriateness of unilateral measures
in the context of the decolonization of Mauritius will also be dealt with. This part
will also recall the obligation to negotiate without conditions the immediate
completion of the process of decolonization of Mauritius and thal these future
negotiations will have to implement the course of action decided by the General
Assembly.
10. The WCA will finish, with a summary of the relevant legal issues thal have been raised
by the General Assembly's request for an advisory opinion.
1. There are no compelling reasons to decline the exercise of the advisory
jurisdiction
Il. As mentioned, no participant with the exception of Australia3 has challenged the
jurisdiction of the Court in the se advisory proceedings. For the reasons set out in the
3 WS Australia, paras. 17-25.
5
WSA, Argentina considers that there is no doubt that the Court has jurisdiction.4 This
section will then focus on the arguments raised by a minority of States requesting the
Court not to exercise it, invoking reasons of propriety.
12. The reasons invoked are that the Court could not answer the questions without
determining the bilateral dispute over sovereignty and related matters, 5 thal Mauritius
has sought to settle that dispute through the contentious jurisdiction of the Court, 6
through arbitration and other means of dispute settlement, and thal the same matter
was analysed by the arbitral tribunal in the Chagos Marine Protect Area case.7
13. The existence of a bilateral dispute is not a reason not to exercise the advisory
jurisdiction in the present proceedings. The questions raised concern the
decolonization of a NSGT and the General Assembly has specifie competencies in this
field. As in past advisory opinions, it is not surprising thal sorne States or participants
are particularly concemed and may have a bilateral dispute related to questions thal
nevertheless are of international concern. The WSA has already rebutted the argument
thal the existence of a bilateral dispute would render an advisory opinion
inappropriate.8 The Court's case law analysis displayed in prior advisory opinions
cited there allows disposing of this argument also in the current case.9 The Court
rejected this argument even in cases in which there was no specifie competence ofthe
General Assembly, as is the case here in the field of decolonization, but just the
exercise of its general competence to deal "with any questions or any matters" within
the scope of the Organization.10 Ali the more applicable here is what the Court stated
in those cases: in the Chagos advisory opinion the questions raised by the General
Assembly are "located in a much broader frame of reference !han a bilateral dispute.
In the circumstances, the Court does not consider thal to give an opinion would have
the effect of circumventing the principle of consent to judicial settlement, and the
4 WSA, paras. 6-l O.
5 WS Australia, paras. 5-28; WS Chile, paras. 5-9; WS France para.l9; WS Israel, paras. 3.1-3.20; WS United
Kingdom, para. 7.15; WS USA paras.l.2-3.32.;
6 WS United Kingdom, para. 5.19.
7 WS United Kingdom, paras. 6.2 a, 6.21 a and 7.13 c.
8 WSA, paras. 23-30.
9 In particular: Western Sahara, Advismy Opinion, lC.J. Reports 1975, pp. 24-27, paras. 30, 34, 39 and pp. 30-
31, para. 53.
10 Article 10 of the Charter of the United Nations.
6
Court accordingly cannat, in the exercise of its discretion, decline to give an opinion
on thal ground."11
14. This is not the first request for an advisory opinion in which sorne States or entities are
particularly concemed. Indeed, in near1y ali advisory opinions rendered by the Court
this has been the case. The Court has even envisaged a privileged procedura1 situation
during the oral hearings for such actors particularly concerned. If there is a dispute
between two States or entities in the framework of an advisory opinion requested by
an organ of the United Nations in the realm of its competencies, the advisory opinion
will not sett1e the dispute, but it is for the parties concerned to duly pay attention to the
answers of the Court and the further decisions of the competent UN organ when they
comp1y with their obligation to sett1e their dispute by peaceful means.
15. Having stated that the existence of a bilateral dispute does not preclude the Court from
responding to the request of the General Assembly, the other two arguments raised to
convince the Court not to exercise its jurisdiction become moot. It is not relevant for
the purposes of this analysis to examine whether Mauritius sought to submit its
bilateral dispute to the Court through a contentions case, or if it discussed matters thal
are within the realm of the questions put by the General Assembly before other
jurisdictions, or even if an arbitral tribunal has already deal! with sorne aspects of
those questions. What is at stake here is the exercise by the General Assembly of its
powers in the field of decolonization. It should be recalled at this stage thal, according
to the Court, a member of the United Nations having accepted the provisions of the
Charter and Statute, "could not validly object to the General Assembly's exercise of its
powers to deal with the decolonization of a non-self-goveming territory and to seek an
opinion on questions relevant to the exercise ofthose powers". 12
II. The content of the law of decolonization and its applicability to this case
16. Sorne participants casted doubt on the legal nature of General Assembly resolutions in
the field of decolonization in general, and on that of Resolution 1514 (XV) in
particular. Also the scope of paragraph 6 of this resolution, as weil as the legal
1! Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territmy, Advismy Opinion,
I.C.J. Reports 2004, p 159, para. 50.
12 Western Sahara, Advismy Opinion, I.C.J. Reports 1975, p. 24, para. 30.
7
character of the right of peoples to self-determination were minimized by the same
participants. This part will address these issues, as well as explain that other
arguments are not relevant for the purpose of these proceedings, such as the
application of the principle of uti possidetis iuris in this case.
17. The wording of the questions putto the Court bas also been criticized. Allegedly, it
was not drafted in neutra! terms. 13 Question (a) is whether the process of
decolonization of Mauritius was lawfully completed when it was granted its
inde pen denee in 1968 following the separation of Chagos in 1965. As it is, the
question is absolutely neutra!, allowing an answer regarding legality in one way or
another. As mentioned above, the two facts stated (the independence of Mauritius in
1968 and the separation of Chagos in 1965) are undisputed. Question (a) refers to the
kind of legality that is at stake: international law. It goes on to specizy that this
includes specifie obligations: those reflected in General Assembly Resolutions 1514
(XV), 2066 (XX), 2232 (XXI) and 2357 (XXII). There is nothing extraordinary in this
approach which bas been used in the past as weiL For example, GA Resolution ES-
10/14 requesting the advisory opinion on the "Wall", after mentioning "the rules and
principles of international law" as applicable law, expressly added "including the
Fourth Geneva Convention of 1949 and relevant Security Council and General
Assembly resolutions". The General Assembly is simply drawing the attention of the
Court to the elements considered fundamental for its action in the relevant field. In the
present case, this is the law of decolonization as reflected in Resolution 1514 (XV)
and the specifie resolutions adopted by the General Assembly with respect to
Mauritius.
18. Question (b) is the kind of typical question putto the Court in advisory proceedings:
what are the legal consequences arising from the continued administration by the
United Kingdom of the Chagos Archipelago. The addition also draws the attention of
the Court to a factual situation which is not disputed: the inability of Mauritius to
implement a programme for the resettlement of its nationals in the Chagos
Archipelago, in particular th ose of Chagossian origin. As such, Question (b) does not
prejudge any answer and is sequential to Question (a). These legal consequences will
depend upon the answer the Court gives to the first question.
IJ WS United Kingdom, paras. 8.7 and 9.3; WS United States, para. 4.14.
8
A. Mandatory character of General Assembly resolutions in the field of
decolonization
19. It has been suggested that the four resolutions mentioned in Question (a) "are not
legally binding, as is the case with most General Assembly resolutions", 14 and thal in
very limited circumstances, General Assembly resolutions have binding effect:
"where they relate to the adoption of the scale of assessments, the budget, and
the internai administration and management of the Organization un der Article 17
of the Charter".15 Indeed, the Court has already noted "thal General Assembly
resolutions, even if they are not binding, may som elimes have normative value. They
can, in certain circumstances, provide evidence important for establishing the
existence of a rule or the emergence of an opinio juris". 16 This ascertainment is
applicable to resolutions in general. However, here we are in a specifie situation in
which the General Assembly is endowed with other powers than those mentioned in
Article 17 of the Charter. As the Court stated in its second advisory opinion, "[u]nder
international law, the Organization must be deemed to have those powers which,
though not expressly provided in the Charter, are conferred upon it by necessary
implication as being essential to the performance of its duties." 17 This is precisely the
case with the competence conferred upon the General Assembly in the field of
decolonization, with its exclusive power to list, delist or relist NSGTs, and to decide
on how to proceed to the decolonization ofthese territories. 18 These resolutions are not
mere recommendations as is the case when the General Assembly deals with other
kinds of questions or conflicts. In this particular context of the exercise of its power in
the field of decolonization, General Assembly resolutions necessarily possess
mandatory effect.
20. The Court had the opportunity to ascertain this mandatory effect of resolutions dealing
with territories subject to decolonization from the very beginning of its action. In its
first advisory opinion on South West Africa (later Namibia), the Court expressed that
14 WS United Kingdom, para. 8.7.
15 Ibid., para. 8.32. In paragraph 8.50, only "budgetary matters'' are considered to allow binding resolutions of
the General Assembly.
16 Legality of the Threat or Use ofNuciear Weapons, Acf.Jis01y Opinion, l.C.J Reports 1996, pp. 254-255, para.
70.
17 Reparation/or injuries suffered in the service of the United Nations, Advis01y Opinion: LCJ. Reports 1949,
p. 182.
18 See WSA, paras. 17-20.
9
"A resolution recommending to an Administrative State a specifie course of
action creates sorne legal obligation which, however rudimentary, elastic and
imperfect, is nevertheless a legal obligation and constitutes a measure of
supervision". 19
21. More than two decades later, once the General Assembly had adopted Resolution 1514
(XV) and a considerable number of resolutions dealing specifically with each territory
to be decolonized, the Court stated in another advisory opinion relating to
decolonization:
"For it would not be correct to assume that, because the General Assembly is
in princip le vested with recommendatory powers, it is debarred from adopting,
in specifie cases within the framework of its competence, resolutions which
make determinations or have operative design"?0
22. It is then in the framework of its competencies in the field of decolonization that the
General Assembly adopts resolutions making determinations and having operative
design. These resolutions are not mere recommendations like in other cases and their
determinations and operative design possess then a mandatory character in this field.
B. Resolution 1514 (XV) is the expression of general international law in the field
of decolonization
23. To sorne extent, it is surprising to see exposed be fore the Court in 2018 the allegation
that Resolution 1514 (XV) is not the expression of customary law, in the 1960s or
today, after the Court's careful analysis and conclusions reached in this regard in its
advisory opinions of 1971 and 1975.
24. There is no need to repeat he re the relevant passages of prior advisory opinions of the
Court?1 It will suffice to add that, answering the two questions raised by the General
Assembly in the Western Sahara advisory opinion, the Court referred to "the
application of resolution 1514 (XV) in the decolonization of Western Sahara".22 The
19 International Status of South-West Aji'ica, Advisoty Opinion, l.C.J. Reports 1950, p.118.
20 Legal Consequences for States of the Continued Presence of South Aji·ica in Namibia (South West Africa)
notwithstandingSecurity Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p. 50, para. 105.
21 See WSA, paras. 15-18.
22 Western Sahara, Advismy Opinion, l.C.J. Reports 1975, p. 68, para. 162.
10
wording employed is of significance. There is a direct reference to resolution 1514
(XV) as being applicable to the process of decolonization. The Court applies
international law in answering requests for advisory opinions. Indeed, Resolution
1514 (XV) is the master pillar of the applicable law in the field ofdecolonization, as
the expression of general international law in this field.
25. The General Assembly understood Resolution 1514 (XV) as the expression of
international obligations from the very beginning. For this reason, a year later, it
created its subsidiary organ, the Decolonization Committee (also known as Committee
of 24 or "C-24"), whose exact title refers to the implementation of Resolution 1514
(XV)23 and whose function is precisely monitoring such implementation?4 The
similarities with the function and work of the Trusteeship Council -an organ created
by the Charter of the United Nations- are apparent, although the decision as to listing
and delisting of territories rests, in the case of the decolonization of NSGTs, in the
hands of the General Assembly. Resolution 1654 (XVI) which creates this Special
Committee, while describing its tasks, "[ r ]equests the Special Committee to examine
the application of the Declaration, to make suggestions and recommendations on the
progress and extent of the implementation of the Declaration, and to report to the
General Assembly ( .. . )"?5
26. The text of Resolution 1514 (XV) is central and free of any ambiguity. Paragraph 1
declares that the subjection of peoples to alien subjugation, domination and
exploitation is contrary to the Charter of the United Nations. Paragraph 2 refers to the
right to self-determination. Paragraph 6 states that disruption of the national unity and
the territorial integrity of a country is incompatible with the purposes and principles of
the Charter. Paragraph 7 indicates that ail States shall observe faithfully and strictly
not only the provisions of the Charter and the Universal Declaration of Human Rights
(another GA resolution expressing the content of customary law), but also the
provisions of Resolution 1514 (XV) itself. Thus, the terms of Resolution 1514 (XV)
indicate its declaratory character of existing conventional and customary obligations.
27. In 1960, no State voted against Resolution 1514 (XV), and the administering powers
of NSGTs, with the exception of Portugal, immediately agreed to transmit the
23 Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples.
24 See : http://www.un.org/en/decolonization/specialcommittee.shtml
25 Resolutionl654 (XVI) of27 November 1961, para. 4.
Il
information required to the C-24, established to ensure the implementation of
Resolution 1514 (XV) one year later?6 Administering powers did not challenge the
power of the General Assembly to deal with decolonization matters either.
28. This WCA respectfully suggests the Court to follow the Written Statement of the
African Union in its precise description of the existence of the right ofpeoples to selfdetermination
in the period between the adoption of the Charter in 1945 and the
adoption of Resolution 1514 (XV), both through the analysis of General Assembly
resolutions and state practice.27
29. In the case thal is the subject matter ofthese proceedings, the administering power has
mentioned that, irrespective of the customary law character of the content of
Resolution 1514 (XV), this resolution could not be opposed to it because it has
allegedly always objected to that resolution?8 At the outset, it should be noted thal the
State concemed did not vote against Resolution 1514 (XV). Abstention, while not
meaning approval, does not mean objection either. A page will not suffice to
enumerate ali the General Assembly and Security Council resolutions explicitly
referring to Resolution 1514 (XV) adopted without the opposition of the United
Km. gd om. 29
30. Also of crucial importance is the explanation of the vote of Resolution 1514 (XV). Mr.
Ormsby-Gore, the representative of the United Kingdom, made a detailed analysis of
the text as weil as the object and purpose of the resolution. He confirmed that the basic
objectives of the 43 Afro-Asian authors of the draft resolution and those of the United
Kingdom were the same. He indicated thal, although they would like to have been able
to vote for the Declaration, "its wording in certain respects was not such that we could
support it". The British representative theo went onto make a careful analysis of each
of the paragraphs. He criticized paragraph 1 for the reference to "alien domination",
paragraph 7 of the preamble for not corresponding -according to him- to what his
country was doing in dependent territories, paragraph 3 for not mentioning steps
through "the preparation for independence", paragraph 2 for the difficulties existing
26 Until 1986, the United Kingdom actively collaborated with the Decolonization or C 24 Committee (see
General Assembly Resolution 41/41B of2 December 1986).
27 WS African Union, paras. 77-93 and 96-106.
28 WS United Kingdom, paras. 8.59-8.61.
29 For example, Resolutions 183 (1963) and 232 (1966) of the Security Council, and Resolutions 1746 (XVI) and
1742 (XV) of the General Assembly explicitly refer to Resolution 1514 (XV) and were adopted with the United
Kingdom voting in favor of them.
12
"in defining the right to self-determination in a universally acceptable form", and
paragraph 5 because he considered that the method and timing for independence
should be a matter for the peoples together with the administering power to work out
together. It is most significant that the British representative raised no criticism with
regard to paragraphs 6 and 7 at the very time when the Resolution was adopted.30
C. The Scope ofParagraph 6 of Resolution 1514 (XV)
31. At the outset, it is necessary to clarity a confusion introduced in one written statement,
one of its sub-titles reads "Paragraph 6 of General Assembly resolution 1514 (XV)
was not part of a legal right to self-determination in 1965/1968"?1 Paragraph 6
includes the principle of respect for the territorial integrity in the Declaration on the
Gran ting of Independence to Colonial Countries and Peop les. The right to selfdetermination
is included in paragraph 2 of the same Declaration. As such, there are
two different princip les applicable in the field of decolonization and this is the reason
why bath are included in the Declaration separately. It may be that one or the other is
applicable in one form or another. As explained in the WSA as weil as in other written
statements, 32 in the present case, due to the fact that the administering power detached
part of the territory of Mauritius, thus breaching its territorial integrity, it also
prevented the Mauritian people from exercising its right to self-determination over the
who le of its spatial sphere of application.
32. It has been argued that the terms of paragraph 6 of Resolution 1514 (XV) are not
"appropriate for a rule of customary international law", "do not use legal
terminology", they indicate "the highly political nature of the paragraph" and that "the
scope and meaning of paragraph 6 was unclear".33 Neither the terms in their context,
nor the abject and purpose of the Declaration justity these assertions. The travaux
préparatoires, in this case the drafts submitted to the General Assembly and their
30 United Nations, General Assembly, 15th session, Official Records, 94 7th plenary meeting, 14 December 1960,
NPV.947, pp. 1274-1276, paras. 45-58.
31 WS United Kingdom, chapter VIll, C (i), p. 127.
32 WS African Union, para. 157; WS Belize, paras. 4.1-4.2; WS Brazil, para. 23; WS Djibouti, para. 42, WS
Namibia, Question 1 c), d) ande); WS South Africa, paras. 64-65.
33 WS United Kingdom, para. 8.36.
13
discussions and vote, also contradict those assertions. The following paragraphs
address both points.
(a) Interpretation of Paragraph 6
33. For a start, it is worth repeating the text ofparagraph 6:
"Any attempt aimed at the partial or total disruption of the national unity and
the territorial integrity of a country is incompatible with the purposes and
principles of the Charter of the United Nations".34
34. The terms recall, as mentioned by a delegation in 1960,35 the wording of Article 2,
paragraph 4, of the Charter of the United Nations. In its 2010 advisory opinion, the
Court stated the following:
"The Court recalls that the princip le of territorial integrity is an important part
of the international legal order and is enshrined in the Charter of the United
Nations, in particular in Article 2, paragraph 4".36
35. This does not mean that territorial integrity must be encapsulated in Article 2,
paragraph 4. Indeed, respect for territorial integrity has been an elementary rule
governing international relations even long before the adoption of the Charter of the
United Nations. There is no doubt thal, even in times when war was permitted under
international law, respect for territorial integrity among States in time of peace was
universally accepted, as a corollary of the princip le of equal sovereignty, under which
each State must respect the territory of the other?7
36. The reference made by the Court to paragraph 4 of Article 2 of the Charter does not
confine respect for territorial integrity only to situations involving the use of force. It
has been simply referred to because territorial integrity is explicitly mentioned in that
provision of the Charter.
34 French text: "Toute tentative visant à détruire partiellement ou totalement l'unité nationale et l'intégrité
territoriale d'un pays est incompatible avec les buts et les pl'incipes de la Charte des Nations Unies." Spanish
text: "Todo intente encarninado a quebrantar total o parcialmente la unidad nacional y la integridad territorial de
un pais es incompatible con los prop6sitos y principios de la Carta de las Naciones Unidas."
35 United Nations, General Assembly, 15th session, Official Records, 947th plenary meeting, 14 December 1960,
AIPV.947, p. 1276, para. 62 (Mr. Schunnann (Nether!ands)).
36 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo,
Advisory Opinion. l.C.J. Reports 2010, p. 437, para. 80.
37 Cf. Struycken, A.A.H., 11La Société des Nations et l1intégrité ten·itoriale". Bibliotheca Visseriana
Dissertationvm ivs internationale illvstrantivm. Leiden, Brill, 1923, Vol. I, p. 105.
14
3 7. To invoke that the reference of paragraph 6 is identical in its content to Article 2
paragraph 4 of the Charter is tantamount to depriving paragraph 6 of Resolution 1514
(XV) of any ejjèt utile. Indeed, paragraph 6 is not the only one of the Declaration
referring to territorial integrity. Paragraph 4 of Resolution 1514 (XV) addresses
questions relating to the use of force, and it also includes a reference to territorial
integrity.38 It is not by chance that the Friendly Relations Declaration also refers to
territorial integrity both in the section relating to the use of force and in that relating to
the right of peoples to self-determination.
38. The interpretation to be given to the terms of paragraph 6 is straightforward. "Any
attempt" refers to any action or claim, actual or potential, going against territorial
integrity. Examples can be a mere exercise of authority on foreign territory or the
occupation of and claim of sovereignty over territory of others. The word "attempt"
also allows including a factual situation such as the latter, which cannot change the
legal situation: it is merely an attempt to change it.
39. The reference not only to territorial integrity but also to national unity reinforces the
idea of avoiding the division of nations. This must have also been clear to Mr.
Ormsby-Gore in 1960, when -referring to the manner the United Kingdom was
discharging its obligations under Chapters XI, XII and XIII of the Charter- he alluded
to "[t]he degree to which the peoples of these territories, with our help, can succeed in
creating new nations, undivided, strong and genuinely independent..."?9 As explained
in the WSA, the reference to the territorial integrity "of a country" meant not only
States, but also territories of the peoples still under process of decolonization.40 The
final part of the paragraph con tains a legal ascertainment, which is the consequence of
the conduct envisaged in the rule embodied in paragraph 6: this kind of conduct "is
incompatible with the purposes and princip les of the Charter of the United Nations",
which, as is weil known, are embodied in Articles 1 and 2 of the Charter of the United
Nations.
40. The Friendly Relations Declaration adopted by Resolution 2625 (XXV) confirms the
customary character and legal scope of paragraph 6 of Resolution 1514 (XV).
38 Resolution 1514 (XV), paragraph 4: "All arrned action or repressive measures of all kinds directed against
dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete
independence, and the integrity oftheir national territory shall be respected.
39 United Nations, General Assernbly, 15th session, Official Records, 94 7th plenary meeting, 14 Decernber 1960,
AIPV.947, p. 1275, para. 46 [emphasis added].
40 WSA, para. 3 8.
15
Obviously, there was no need to explicitly cite this latter resolution: the Friendly
Relations Declarations simply included and further explained the content of paragraph
6, as it also did with paragraph 2 of Resolution 1514 (XV). And the Friendly Relations
Declaration not only did not replace "country" with "State", but simply explained that
"[ e ]very State shall refrain from any action aimed at the partial or total disruption of
the national unity and territorial integrity of any State or country".41
(b) The travaux préparatoires
41. The prepara tory work also confirms this interpretation of paragraph 6. When the AfroAsian
draft was presented (including paragraph 6 as it is), Guatemala wished to adda
further paragraph after it, willing to make a particular situation clearer and specified.42
After the explanation given by one of the States authors of the draft resolution that the
situation envisaged by Guatemala was indeed included in paragraph 6, Guatemala
withdrew its draft amendment.43 Both Iran44 and Afghanistan,45 equally co-authors of
the Afro-Asian draft, also agreed on this interpretation. There was a discussion
between two States about a particular situation and whether this was covered by
paragraph 6 or not, 46 but no State challenged the content of this paragraph or criticized
it for that matter. It is significant that the United Kingdom, while explaining its
abstention, analyzed and criticized nearly all paragraphs of Resolution 1514 (XV)
except paragraph 6.47
41 See Written Statement United Kingdom, para. 8.48.
42 United Nations, General Assernbly, 15th session, Official Records, Annexes 1960-61, Part 2, Agenda Item 87,
GuatemalaAmendment to Document A/L.323, A/L.325, 7 December 1960, A/PV.947, p. 7.
43 United Nations, General Assernbly, 15th session, Official Records, 947th plenary meeting, 14 December 1960,
A/PV.947, p. 1271, paras. 8-15 and pp. 1276-1277, paras. 63-65.
44 United Nations, General Assembly, 15th session, Official Records, 947th plenary meeting, 14 December 1960,
A/PV.947, p. 1271, paras. 8-15 and pp. 1269-1270, paras. 31.
45 Ibid., pp. 1269-1270, para. 54.
46 United Nations, General Assernbly, 15th session, Official Records, 947th plenary meeting, 14 December 1960,
A/PV.947, p. 1276, para. 62 and p. 1279, paras. 95-98.
47 Supra, para. 30.
16
(c) Irrelevance ofuti possidetis iuris in this context
42. Paragraph 6 has been discussed by a participant of these proceedings as though it were
dealing with a question of prohibiting or not "changes of boundaries" of colonial
territories prior to independence.48 A reference to uti possidetis iuris and the fact that
it implies respect for the boundaries at the time of independence was also invoked in
this regard.49 Both contentions are inappropriate in the present context.
43. As the Court has already had the occasion to declare, uti possidetis iuris "is a general
principle, which is logically connected with the phenomenon of the obtaining of
independence, wherever it occurs" 50
• The purpose of uti possidetis, as it was
developed in Latin America in the 19'h century was twofold: to avoid fratricidal
struggles provoked by the challenging of boundaries, and also to a void recolonization
of territories assigned by the former colonial power to one administrative division or
another.51 The questions raised by the General Assembly's request for an advisory
opinion are totally different and do not concem "a boundary of colonial territories
prior to independence". They concem the capacity of an administering power to grant
independence to one of its colonies while keeping at the same time part of the terri tory
of this colony, claiming its own sovereignty over the territory kept. Thus, examples
mentioned of partition or of merger of former colonies at the time of their
independence, in order to constitute two different independent States or a single one,
are completely different situations to the one at stake in the present proceedings.
44. The real question under scrutiny here requires the analysis of whether the purpose of
the administering power in granting independence to a colony while keeping part of
the territory of the latter for itself constitutes conduct in accordance with paragraph 6
of Resolution 1514 (XV) or not. As mentioned by many written statements, this
conduct is not in accordance with the respect for the territorial integrity of the country
concemed.52
48 WSUK, para. 8.46.
49 WSUK, paras. 8.29-8.30.
5° Frontier Dispute, Judgment, I.C.J. Reports 1986, p. 565, para. 20.
51 Ibid., p. 565, para. 20 and p. 566, para. 23; Affaire desfi·ontières colombo-vénézuéliennes, R.lA.A., vol. 1, p.
228.
52 WSA, paras. 33-4 7 ; WS African Union, paras. 143-157, 187 ; WS Belize, para. 4.1 ; WS Brazil, paras. 20-
23 ; WS Cuba; WS Djibouti, paras. 33-34,42; WS Guatemala, para. 34; WS Madagascar; WS Namibia,
Question 1 c), d) ande) ; WS Nicaragua, paras. 7-10; WS Serbia para. 39; WS South Aft·ica, para. 60.
17
45. The reference to uti possidetis in this context is misleading. The underlying suggested
idea would be that, before independence the colonial power could decide on its own
on the boundaries of its colonies, and then the newly independent State becomes
sovereign over the territory to the extent decided by the colonizer. This was not the
understanding of the principle by the new South American States that fought for
independence from Spanish colonial rule in the first part of the 191
h century. As it is
weil known the princip le was called the uti possidetis iuris of 1810.53 The year 1810 is
not the year of the declaration of independence of those countries, but the year
marking the beginning of the liberation struggle for independence. Declarations of
independence were issued later, in different years.54 Since 1810 these countries no
longer recognized the metropolitan authorities, and consequently any change that
those authorities could make to the administrative limits would not matter for the
determination of the boundaries of the newly inde pendent States. 55 What was
applicable in the 191
h century was even more relevant a century later.
46. In the 201
h century context, there is a crucial element that obviously was not present at
the time of Latin American independence: the development of international law that
included the right to create independent States through the recognition of the right of
peoples to self-determination, the legal status of colonial territories as different from
the territories of the metropolis, and the existence of a universal organization
supervising the process of decolonization.
47. As a result of this, a colonial power cannot invoke uti possidetis iuris to keep part of
the territory of its colony when granting independence. It cannot unilaterally decide
the fate of a colonial territory, which falls within the realm of the competencies of the
United Nations under Chapter XI of the Charter and its development.
48. Situations like the one under review were called "incomplete territorial devolutions" in
the work of the International Law Commission. 5
6 In his first report on State succession
in matters other than treaties, the then Special Rapporteur and later Judge and
53 As the Swiss Federal Council (the Swiss Govemment)'s arbitral award in the ColombianMVenezuelan
Boundaries stated: "Lorsque les Colonies espagnoles de l'Amérique centrale et méridionale se proclamèrent
indépendantes, dans la seconde moitié du dix-neuvième siècle, elles adoptèrent un principe de droit
constitutionnel et international auquel elles donnèrent le nom d'uti possidetis juris de 1810, à l'effet de constater
que les limites des Républiques nouvellement constituées seraient les frontières des provinces espagnoles
auxquelles elles se substituaient.11 (Affaire desji·ontières colombo-vénézuéliennes, R.I.A.A., vol. 1, p. 228)
54 For example, Argentina declared its independence in 1816, Ch ile in 1818 and Peru in 1820.
55 Kohen, Marcelo, Possession contestée et souveraineté territoriale, Paris, P .U .F ., 1997, pp. 464-46.
56 It is also known as « décolonisation inachevée » in French.
18
President of the Court, Mohammed Bedjaoui, mentioned this as one of the problems
posed by the territorial aspect of State succession. He stated the following:
"The Commission could consider the question whether such incomplete
territorial devolution is compatible with the rules. of international law and, in
that connexion, study possible correlations between the princip le of territorial
integrity and the abolition of the colonial regime. In the language of private
law, such incomplete devolution could be regarded as partial failure to make
delivery."51
*
* *
49. To sum up, it can be said that:
a) Respect for territorial integrity has been a longstanding rule of international law;
b) Paragraph 6 of Resolution 1514 (XV) declares the application of the principle of
territorial integrity to decolonization;
c) No State rejected paragraph 6 nor challenge its legal character, in particular the
administering power involved in the situation under scrutiny.
D. Self-determination was a right recognized by international law in the 1960s
50. Two participants have questioned the legal nature of the right of peoples to selfdetermination
at the time of the separation of Chagos from Mauritius. 5
8 This not only
contradicts the analysis made by the Court on this issue, 5
9 but the explicit position of
one of these participants itself when Resolution 1514 (XV) was discussed, as
mentioned above.60
51. As written in 1963 by the former Judge and President of the Court, Dame Rosalyn
Higgins, in terms thal cannat allow any doubt:
57 Fîrst Report on succession of States in respect of rights and duties resulting from sources ether than treaties,
Yearbook of the International Law Commission, 1968, vol. II, p. 114.
58 WS United Kingdom, para. 8.65; WS United States, paras. 4.46, 4.61, 4.64.
59 Legal Consequences for States of the Continued Presence of South A/rica in Namibia (South West Ajhca)
notwithstanding Security Counci/ Resolution 276 (1970), Advis01y Opinion, J.CJ Reports 1971. p. 31, para. 52;
Western Sahara. Advis01y Opinian. J.CJ Reports 1975, pp. 31-33, paras. 54-59.
60 WCA, para. 31.
19
"It therefore seerns inescapable that self-determination has developed into an
international legal right, and is not an essentially dornestic matter. The extent
and scope of this right is still open to sorne debate".61
52. Indeed, there is nothing unusual in the existence of different interpretations on the
content, scope and extent of legal rules. Quite the contrary, this appears to be the case
in nurnerous international disputes. Nevertheless, the fact thal States disagree on the
content of a rule is by no rneans tantarnount to the deniai of the existence of thal rule.
The discussion about the content of a right or of an obligation is rather evidence of the
legal existence ofthat right or obligation.
53. It is true thal the General Assernbly, in the exercise of its cornpetencies in the field of
decolonization, has not always applied the principle of self-determination to
populations of NSGTs. However, this has been explained by the Court itself, not as a
deniai of the right of self-determination, but in terrns of its inapplicability in certain
circurnstances:
"The validity of the princip le of self-determination, defined as the need to pa y
regard to the freely expressed will of peoples, is not affected by the fact thal in
certain cases the General Assernbly has dispensed with the requirernent of
consulting the inhabitants of a given territory. Those instances were based
either on the consideration that a certain population did not constitute a
'people' entitled to self-determination or on the conviction that a consultation
was totally unnecessary, in view of special circurnstances".62
54. In the situation raised by the General Assernbly's request for the current advisory
opinion, neither of these instances are present: there is no doubt that the General
Assernbly recognized the existence of the Mauritian people and their right to selfdetermination
and consequently to becorne independent. The sarne resolution in which
the General Assernbly warned the adrninistering power against the disrnernberment of
Mauritius as contrary toits territorial integrity "[r]eaffirrn[ed] the inalienable right of
the people of the Territory of Mauritius to freedorn and independence in accordance
61 Higgins, Rosalyn, The Development of International law through the Political Organs of the United Nations,
London, New York, Toronto, Oxford University Press, 1963, p. 193.
62 Western Sahara, Advismy Opinion, LC.J. Reports 1975, p. 33, para. 59.
20
with General Assernbly resolution 1514 (XV)".63 This includes the Mauritians of
Chagossian origin, expelled as a consequence of the separation of the Archipelago
before granting the independence to Mauritius.
E. The legal scope of the specifie resolutions dealing with the separation of
Chagos
55. It is contended that the three specifie General Assernbly resolutions dealing with
Mauritius and rnentioned in Question (a) do not create obligations to the adrninistering
power or are not drafted in rnandatory terms.64 Both assertions are inaccurate. What
these resolutions have done is to ascertain thal thal po licy of separation constitutes a
disruption of the territorial integrity of Mauritius and contravenes the Charter,
Resolution 1514 (XV) and other relevant resolutions. For the sake of clarity, it is
worth recalling the relevant parts ofthose three resolutions.
56. By the fourth operative paragraph of Resolution 2066 (XX) of 16 Decernber 1965
"[the General Assernbly] [i]nvites the adrninistering Power to take no action which
would disrnernber the Territory of Mauritius and violate its territorial integrity". The
wording is clear and it was ernployed before the granting of independence: the verb
"to violate" in connexion with "the territorial integrity" cannot but refer to the
existence of a legal obligation not to do so. The "invitation" is "to lake no action", in
the sense of not to effectively produce thal disrnernberrnent, since steps to do so had
stattedjust sorne weeks before, as will be discussed below.
57. Resolutions 2232 (XXI) and 2357 (XXII) of the General Assernbly deals with the
situation of a specifie nurnber of NSGTs including Mauritius. The General Assernbly
expressed its deep concern for policies airning "at the disruption of the territorial
integrity of sorne of these Territories and the creation by adrninistering Powers of
military bases and installations in contravention of the relevant resolutions of the
General Assernbly". Operative paragraph 4 of both resolutions "[r]eiterates its
declaration that any atternpt airned at the partial or total disruption of the national
unity and the territorial integrity of colonial Territories and the establishment of
63 Resolution 2066 (XX), para. 2.
64 WS United Kingdom, paras. 8.7 and 8.50·8.51.
21
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)".65 Again, these resolutions were adopted before Mauritius was
granted its independence. They do not contain "invitations" any more, since the
original steps to dismember the territorial integrity had already laken place. It is the
"deep concern" about these measures that is pointed out by the General Assembly in
these resolutions.
58. The noun "declaration", the adjective "incompatible" and the reference to the UN
Charter and Resolution 1514 (XV) employed in Resolutions 2232 (XXI) and 2357
(XXII) cast no doubt on their scope: these resolutions have a declaratory effect with
regard to the fact that granting independence to Mauritius while disrupting its
tetTitorial integrity is not in accordance with the Charter, the rules relating to
decolonization as embodied in Resolution 1514 (XV) and the very specifie General
Assembly resolutions determining the manner in which Mauritius should be
decolonized.
59. As a last resort argument, it was advanced that Resolution 2066 (XX) referred to
"future" possible dismemberment of the territory of Mauritius, but not to that of
Chagos in 1965. The argument is that the creation of the "British Indian Ocean
Territory" [hereinafter "BIOT"] was informed to the Fourth Committee of the General
Assembly on 16 November 1965 and Resolution 2066 (XX) was adopted one month
later.66 Indeed, the BIOT Order 1965 was issued on 8 November 1965.67 There cannot
be any reasonable doubt that the General Assembly reacted in that manner because the
administering power adopted this decision. In the preamble of Resolution 2066 (XX),
the General Assembly "[ n ]ot[ ed] with deep concerned that any step taken by the
administering Power to detach certain islands from the Territory of Mauritius for the
purpose of establishing a military base would be in contravention of the Declaration,
in particular of paragraph 6 thereof'. If the administering power had followed the
General Assembly, it should have not implemented the 8 November 1965 Order. The
further adoption by the General Assembly of Resolutions 2232 (XXI) and 2357
(XXII) confirms this interpretation. They unequivocally refer to the detachment of
territory with the purpose of estab_Iïshing a military base, which is exactly what
65 Resolution 2232 (XXI) of20 December 1966 and Resolution 2357 (XXII) of 19 December 1967.
66 WS United Kingdom, para. 8.52
67 WS United Kingdom, Annex Il.
22
happened in the Chagos Archipelago. What the General Assembly look into
consideration when it adopted the three resolutions specifically dealing with Mauritius
was the separation of Chagos, not an hypothetical future separation thal no body had in
mind and which is furthermore even difficult to envisage practically.
III. The question of bilateral negotiations and unilateral measures
60. This section will examine the argument that Mauritian representatives allegedly
accepted the separation of Chagos in bilateral negotiations both before and after
independence. lt will be demonstrated that there is no need to enter into the analysis of
these negotiations, either because those prior to independence did not prevent the
General Assembly from adopting its position in this regard, or because those
subsequent to independence were not concemed with the legality of the separation of
Chagos (A). This section will also explain why unilateral measures taken by the
administering power cannot modify the legal situation (B). In order to answer
Question (b ), it is necessary to stress the existence of an obligation for the patti es
concerned to hold negotiations in order to fully and unconditionally implement
General Assembly resolutions aimed at the completion of the process of
decolonization (C).
A. Bilateral negotiations before and after independence have not modified the
legal situation
61. The two main participants to these proceedings expressed opposite views about the
conditions and content of the negotiations led by the administering power with
Mauritian delegates in 1965.68 Argentina is of the view thal, for the purposes ofthese
advisory proceedings, it is not necessary for the Court to examine these negotiations.
The crucial fact is that the General Assembly adopted Resolutions 2066 (XX), 2232
(XXI) and 2357 (XXII) after these negotiations were conducted. In other words, these
negotiations and their outcome, whatever they might have been, were immaterial to
68 WS Mauritius, paras. 3.39-3.96; WS United Kingdom, paras. 3-7-3.37.
23
the decision of the General Assembly that considered that the territorial integrity of
Mauritius was threatened by the separation of part of its territory.
62. The Agreement between the United Kingdom and Mauritius of 7 July 1982 needs not
be examined by the Court for the purposes of these advisory proceedings either. With
regard to Question (a), this agreement is irrelevant with regard to the decolonization of
Mauritius sin ce it did not in any way con cern the legality of the separation of Chagos.
No inference can be made from it. Mauritius in no way recognized the legality of the
separation ofChagos or the legality of the deportation of the !lois. It simply accepted a
modality for a payment of an ex gratia sum of money and assumed a best efforts
obligation to convince the persons concerned not to pursue individual claims. With
regard to Question (b) it could not have an impact in terms of the consequences of the
continued administration of the detached territory by the United Kingdom, including
the inability of Mauritius to resettle its nationals in the archipelago.
63. In consequence, neither the 1965 negotiations nor the 1982 Agreement are relevant to
the answer the Court will give to the questions raised by the General Assembly.
B. Unilateral measures taken by the administering power cannot modify the legal
situation
64. The present request for an advisory opinion not only raises the issue of the
competencies of the General Assembly, but also those of the administering powers
during the process of decolonization. Two elements must be taken into consideration
in this regard: first, that the territories of colonies (or NSGTs) have a separate and
distinct status from the territory of the territory of the State administering it,69 and
second, that it is the United Nations through the General Assembly that supervises the
process of decolonization.
65. Two consequences may be drawn from the se two key issues. First, it is the General
Assembly (and bence, not the administering power) that decides about listing or
69 Friendly Relations Declaration: "The territory of a colony or other Non-Self-Governing TelTitory bas, under
the Charter, a status separate and distinct from the terri tory of the State adrninistering it; and such separate and
distinct status under the Charter shall exist until the people of the colony or Non-Self-Goveming Tenitory have
exercised their right of self-detennination in accordance with the Charter, and particularly its put·poses and
princip les."
24
de listing terri tories for which Chapter XI of the Charter and Resolution 1514 (XV) are
applicable. As a result, it is also the General Assembly that decides the manner in
which decolonization must be accomplished with regard to the listed territories.
Second, the administering power cannot treal this territory as though it were for it to
decide on constitutional changes, uses of the territories for purposes other than
decolonization, or subordinating decolonization to conditions that it alone decides.
66. The United Kingdom's Written Statement explains: "From the date of the cession by
France in 1814 until 8 November 1965, when the Chagos Archipelago was detached
from the (then) colony of Mauritius, the Archipelago was administered by the United
Kingdom as a Dependency of Mauritius.''70 There follows a long digression about the
scope of the notion of "dependency" in British domestic law to conclude thal "[t]he
Chagos Archipelago was 'attached' to Mauritius for purely administrative purposes.
While included for sorne purposes within the definition of the 'Colony of Mauritius',
it was in law and in fact qui te distinct from Mauritius. "71
67. The treatment un der domestic law, as weil as the administrative distinction that
domestic law may establish with regard to a colonial territory under its administration
is irrelevant for the purposes of decolonization. The colonial power cannot invoke ils
domestic law to keep part of the terri tory of a colony at the lime of the independence
of the latter. What is applicable here is internationallaw.72 Indeed, this is a basic rule
governing the relations between international law and domestic law: a State cannot
invoke ils domestic law as a justification for its failure to perform a treaty (Article 27
of the Vienna Convention on the Law of Treaties) or a customary rule. Equally, an
internationally wrongful act is governed by international law, irrespective of how
domestic law characterizes the same act (Article 3 of the ILC Articles on State
responsibility).
68. What is crucial is thal, in exercising its powers in the field of decolonization, the
General Assembly recognized that the Chagos Archipelago was part and parce! of the
NSGT of Mauritius and warned the administering power against any action aimed at
breaching ils territorial integrity, as seen in the prior section.
70 WS United Kingdorn, para. 2.13.
71 Ibid., para. 2.38.
72 Part II of the WCA has explained how international law deals with this situation.
25
69. It was also mentioned in the same written statement that "[a]s a British Overseas
Territory, the BIOT had (and has) a constitution and govemment distinct from thal of
the United Kingdom"?3 Indeed, the creation of the BIOT was an Order of the British
Govemment and according to the Order itself, "[t]here shaH be a Commissioner for
the Territory who shaH be appointed by her Majesty by Commission under Her
Majesty's Sign Manual and Signet and shaH hold office during her Majesty's
pleasure".74 In these circumstances, it becomes difficult to understand any attempt at
showing thal the BIOT, by the fact of being later declared a "British Overseas
Territory" (BOT) is considered by the United Kingdom as a separate entity. Again, the
domestic characterization of the territory by the administering power is immaterial for
the purposes of the application of international law in the field of decolonization. The
example mentioned in the WSA of the treatment granted by Portugal to its colonies as
"overseas provinces" and its rejection by the General Assembly speaks volumes about
the irrelevance of unilateral characterizations by the administering powers when
international law cornes to apply in the field of decolonization?5
70. To sum up, the separation of Chagos in 1965 was a unilateral measure of the
administering power that did not receive the approval of the United Nations General
Assembly, the organ in charge of the supervision of the process of decolonization. As
such, this unilateral measure was unable to decide the fate of this territory. It is for the
General Assembly to detennine the manner in which a NSGT must be decolonized
and consequently when the colonial situation cornes to an end. It is for this reason thal
the General Assembly has requested the advisory opinion of the Court in the present
case.
C. The obligation to nnconditionally negotiate the immediate completion of the
process of decolonization
71. The position of the United Kingdom on the issue of Chagos was summarized by the
British representative at the General Assembly in the foHowing manner:
73 Ibid., para. 2.33.
74 The British Indian Ocean Territory Order !965, Ar1icle 4 (Annex Il of the WS United Kingdom).
75 WSA, para. 18.
26
"The British Government maintains that the British Indian Ocean Territory is
British and has been since 1814. It does not recognize the sovereignty claim of
the Mauritian Government. However, the British Government has recognized
Mauritius as the only State which has the right to assert a claim to sovereignty
when the United Kingdom relinquishes its own sovereignty. Successive British
Governments have given undertakings to the Government of Mauritius that the
Territory will be ceded when no longer required for deferree purposes.
The British Government remains open to discussions regarding arrangements
governing the British Indian Ocean Territory or the future of the Territory. The
British Government has stated that when the time cornes for the Territory to be
ceded it willliaise closely with the Government ofMauritius."76
72. This statement overlooks an essential element of the question: that the territory
concemed falls within the realm of decolonization, with ali the consequences already
examined both in the WSA and in the WCA, above ali the different and separate status
of the territory concerned. It also subordinates negotiations with Mauritius to the
unilateral decision of the administering power as to when it considers that the terri tory
is "no longer required· for deferree purposes". This position is incompatible with both
the law of decolonization and the obligation to settle disputes through peaceful means.
First, deferree purposes of the administering powers cannot be invoked to delay the
decolonization of NSGTs. Second, there is a "duty ( ... ) [t]o bring a speedy end to
colonialism".77 Third, one of the parties to a dispute cannot use its own appraisal of
the question to avoid negotiating with the other in order to settle it by peaceful
means.78 Consequently, the administering power has the obligation to negotiate with
Mauritius the immediate end of the colonial situation in Chagos without conditions, in
order to allow Mauritius to recover its territorial integrity that was breached at the time
of its independence and to bring to an end and in a complete manner the process of
decolonization of Mauritius.
76 General Assembly, verbatim record, 54th Session, !9th Plenary Meeting, Thursday,30 September 1999,
3:00pm (A/54/PV.l9) (UN Dossier No. 292). WS United Kingdom, para. 5.10.
77 Friendly Relations Declaration.
78 See WSA, paras. 61-65.
27
Conclusions
73. In the light of the analysis of the written statements submitted in these advisory
proceedings, Argen tina respectfully reiterates the proposed elements of the answers to
the questions raised by the General Assembly as indicated in the WSA.79
74. To summarize the essential points at issue in these proceedings:
A) The Court has jurisdiction and there are no compelling reasons not to exercise it:
a) The existence of a sovereignty dispute is coupled with a situation of
decolonization and as such does not deprive the General Assembly of its
competencies in the field of decolonization;
b) The attempts made by Mauritius to settle the bilateral dispute by different peaceful
means or the arbitral award on the Marine Protected Area do not affect the
exercise of advisory jurisdiction by the Court, and they do not impact the
answering of the questions put by the General Assembly;
B) With regard to Question (a):
c) The General Assembly possesses particular powers in the field of decolonization,
as recognized by the Court more than forty years ago;
d) lt is for the General Assembly to determine how and when a NSGT has been
decolonized;
e) The territory of a colony or a NSGT has a separate and distinct status to that of the
State administering it;
f) Resolution 1514 (XV) declared existing international law rules, in particular the
principles of self-determination of peoples and of respect for the territorial
integrity;
g) Resolutions 2066 (XX), 2232 (XXI) and 2357 (XXII) specified the manner in
which Resolution 1514 (XV) must be applied to the NSGT of Mauritius;
h) Respect for the territorial integrity is applicable to States and to peoples whose
right to self-determination has been recognized, in the manner established by the
relevant General Assembly resolutions;
79 WSA, paras. 67-68.
28
i) The administering power is not entitled to take unilateral measures that change the
status of the NSGT orto dispose of it for its own purposes;
j) Bilateral negotiations that took place in 1965 did not influence the General
Assembly's views expressed in its Resolutions 2066 (XX), 2232 (XXI) and 2357
(XXII) and consequently there is no need to examine their content;
k) The 1982 Agreement does not relate to the status of the Chagos Archipelago and
consequently does not influence the answers of the Court to the questions raised
by the General Assembly;
1) The unilateral constitution of the Chagos Archipelago as the "BIOT" and its
qualification as a "BOT" do not modify or affect the international legal situation of
the territory as a NSGT in the context of the decolonization process;
rn) The separation of the Chagos Archipelago from Mauritius disrupted the territorial
integrity of the latter and prevented the Mauritian people from exercising its right
to self-determination over the who le of its territory;
n) As a result, the process of decolonization was not lawfully completed when
Mauritius was granted independence in 1968;
C) With regard to Question (b ):
o) The treatment inflicted on the Mauritian population deported from Chagos
constituted a breach of fundamental human rights;
p) The administering power has the obligation to put an immediate end to the illegal
situation created by the separation ofthe Chagos Archipelago from Mauritius;
q) The administering power has the obligation to pursue negotiations in good faith
and without conditions with Mauritius in arder to render effective the immediate
termination of the illegal situation and to allow the completion of the
decolonization process.
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