WRITTEN REPLY OF THE REPUBLIC OF
MAURITIUS TO JUDGE CANC.ADO TRINDADE'S
QUESTION
"As recalled in paragraph (a) of the U.N. General
Assembly's request for an Advisory Opinion of the
International Court of Justice (General Assembly
resolution 71/292 of 22.06.2017), the General Assembly
refers to obligations enshrined into successive pertinent
resolutions of its own, as from 1960, namely: General
Assembly resolutions 1514(XV) of 14.12.1960, 2066(XX)
of 16.12.1965, 2232(XXI) of 20.12.1966, and 2357(XXII)
of 19.12.1967.
In the course of the present oral advisory proceedings,
references were often made to such resolutions by
several delegations of participants.
In your understanding, what are the legal consequences
ensuing from the formation of customary international
law, with the significant presence of opinio juris
communis, for ensuring compliance with the obligations
stated in those General Assembly resolutions?"
1. Mauritius understands the question to be concerned
with the meaning and effects of the obligations referred
to in resolutions 1514(XV), 2066(XX), 2232(XXI), and
2357(XXII). As many States, including Mauritius, and
the African Union demonstrated in their written and
oral submissions:
(i) the obligations expressed in those resolutions
reflected obligations under customary
international law, with the significant presence
of opinio juris comunis, as at 1960, and thus as
at 1965;
(ii) the obligations were addressed to all States, to
Members of the United Nations, to all
administering powers and, in certain cases, to
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the United Kingdom in particular;
(iii) the United Kingdom is bound by those
obligations, whether as a State, a Member of
the United Nations, or an administering power;
(iiii) because the Chagos Archipelago was detached
from Mauritius in 1965 in violation of those
obligations, the decolonisation of Mauritius was
not and has not been lawfuJly completed, and
the United Kingdom remains in breach of
international law.
2. Resolution 1514(XV), which crystallised the
customary international law on decolonisation, sets
forth obligations for "all States", including Members of
the United Nations and administering powers.
Paragraph 7 provides that:
"All States shall observe faithfullY. and
strictly_ the provisions of the Charter of
the United Nations, the Universal
Declaration of Human Rights and the
12resent Declaration on the basis of
equality, non-interference in the
internal affairs of all States, and respect
for the sovereign rights of all peoples
and their territorial integrity."
3. The language is drafted in mandatory terms. The
obligations are recognised to reflect obligations under
customary law, and to have a peremptory and erga
omnes character. The obligations include:
(i) The obligation (under paragraph 5 of resolution
1514) to take "[i]mmediate steps" to "transfer
all powers to the peoples of those territories,
without any conditions or reservations, in
accordance with their freely expressed will and
desire... in order to enable them to enjoy
complete independence and freedom";
(ii) The obligation (under paragraph 6 of resolution
1514) not to dismember non-self-governing
territories prior to their independence: "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"· and '
(iii) The obligation under Article 73 of the United
Nations Charter to regard the interests of the
people of the non-self-governing territory as
paramount, and exercise authority in sacred
trust for their well-being, until independence is
attained in accordance with the freely exercised
will and desire of those people.
4. The legal obligations reflected in resolution
l 5 l 4(XV) are reaffirmed in resolutions 2066(XX),
2232(XXI) and 2357(XXII).
5. Resolution 2066(XX) specifically addresses the
decolonisation of Mauritius and the obligations of the
United Kingdom. It "[i}nvites the Government of the
United Kingdom of Great Britain and Northern Ireland
to take effective measures with a view to the immediate
and full implementation of resolution 1514 (XV)" and
to "take no action which would dismember the
Territory of Mauritius and violate its territorial
integrity." The reference to resolution I 5 l 4(XV) - a
resolution that sets out mandatory obligations - makes
clear that compliance with resolution 2066(XX) is
intended to be obligatory as a matter of international
law.
6. Resolution 2232(XXI), concernmg the
decolonisation of certain non-self-governing territories,
including Mauritius, "[c}alls upon the administering
Powers to implement without delay the relevant
resolutions of the General Assembly," including
obligations set out in resolution 1514(XV) and
resolution 2066(XX).
7. Similarly, resolution 2357(XXII), dealing with the
decolonisation of non-self-governing territories,
including Mauritius, "[c]alls upon the administering
Powers to implement without delay the relevant
resolutions of the General Assembly." These include
resolutions 1514 (XV), 2066 (XX) and 2232 (XXI).
I
8. The breaches of the obligations set forth in these
resolutions give rise to a number of legal consequences
for the United Kingdom, as administering power, and
for all other States and international organisations,
including:
(i) The obligation of the administering power to
cease forthwith its internationally wrongful
conduct. This means that the administering
power must immediately terminate its unlawful
colonial administration of the Chagos
Archipelago, return the Archipelago to
Mauritius in order to restore Mauritius'
territorial integrity, and allow Mauritius to
exercise sovereignty over its entire territory.
(ii) The obligation of the administering power to
cease to impair or interfere with Mauritius'
exercise of its sovereignty over the Chagos
Archipelago, including the implementation of
Mauritius' desire to allow for the settlement or
resettlement of the Mauritian people, including
those of Chagossian origin, in the islands of the
Archipelago.
(iii) During the period prior to withdrawal of the
unlawful colonial administration, which must
be as brief as practically possible, the obligation
of the administering power to treat the interests
of the people of Mauritius, including those of
Chagossian origin, as paramount, and to
conduct all of its activities in sacred trust for
their well-being.
(iiii) In conformity with well-established rules of
customary international law, as confirmed by
the Court in its prior judgments and advisory
opinions, the obligations for all other States and
international organisations to not recognise the
legitimacy of the existing colonial
administration, either directly or indirectly, and
not to aid or assist the United Kingdom m
maintaining it, either directly or indirectly.
Written Reply of Mauritius to the question put by Judge Cançado Trindade at the end of the hearing held on 5 September 2018