Written Reply of Guatemala to the question put by Judge Cançado Trindade at the end of the hearing held on 5 September 2018

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393-18-01
Mr Registmr
On behalf of the Republic of Guatemala, it is an lwnour to address you within the context of
the procedures of the request for an advisory opinion 011 the Legal consequcnces of the
separation of the Chagos Archipelago in 1965 of Mauritius, and refer to the question of H.E.
Judge Cançado Trinidade, namely:
"As recalled in paragraph (a) of the U.N. General Assembly's request for an Advisory
Opinion of the lntemational Court of justice (General Assembly resolution 711292 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.
ln the course of the present oral advisory proceedings, references were often made to sucl1
resolutions by several delegations of participants.
In your understanding, what are the legal consequences ensuing from the formation of
custommy international law, with the significant presence of opinio juris communis, for
ensuring compliance wi th the obligations stated in those General Assembly resolutions?"
In that regard, the Republic of Guatemala would like firstly to thank the Court and Judge
Cançado Trinidade for the question and submits the following reply:
A. The Republic of Guatemala would liloe to point out that it is its understanding, the formation
of customaiy intemational law comprises not only opinion juris but also generalised practice.
B. At the same time, as confirmed by the Court and the Intemational Law Commission, the
United Nations Resolutions do not create norms of lntemational CustomanJ Law, albeit thetJ
may give evidence of the said.
C. Whilst certain norms may c1ystallize into customary intemational law "instantly", some
others go through longer processes (not necessarily inveterata consuetudo) during which,
obligations may or may not be derived from the said norm. 11iat matter ought to be assessed
on a case by case basis and rather carefully, particularly when practice is yet to be generalised
H.E.
Mr Philippe Couvreur
Regish-m·
Intemationa/ Court oflust,ce
Pence Palace
The Hague, 111e Netherlands
Javastraat 44, 2585 AP, La Haya, Paises Bajos - Teléfonos: +31 70 302 02 53 / +31 70 369 8589
. -----;.e.m..b.p.a,is [email protected] !,
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D. In the case of the referrcd United Nations Rcsolutions, they ail derive from U.N. General
Assembly Rcsolution 1514(XV) and the said, constituted back then a statement of what was
happening in practice through the sclf-detcrmination-driven proccss of decolonization the
world witnessed from 1950's and onwards. As suc/1, Resolution 1514 cannot be construed as
progressive development of international law, but a codification resolution if anything.
E. With regards ta Paragraph 6 of Resolution 1514(XV) the Republic of Guatemala has clarified
its position abundantly bath in its written observations as in its intervention during the oral
proceedings of the Request for an Advisory Opinion, as it did during the Western Sahara
Opinion tao.
F. Tiie General Assembly Resolutions 2066 (XX), 2232(XXI) and 2357 (XXII) utilise language
sufficiently clear in their operative paragraphs 2 and 4, as ta the obligations thetJ refer ta, the
contraventions thetj denounce, and the level of compliance the General Assembly requested
from the Administering Powers.
G. The Republic of Guatemala reserves its position on any question concerning the substance of
the principles set out in these resolutions, as well as its right ta further expound 011 the above
on the basis of the replies filed by other participants.
The Republic of Guatemala remains at the Court's disposal for any further matters related ta
the Request for an Advisory Opinion at hand.
I take tlûs opportunity ta renew ta you Mr Registrar, the assurances of the Republic of
Guatemala's and my own assurances of our higliest esteem and consideration. -- The Hague, Monday 101" of September, 2018
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Lesther~a Lenm;
rentative
..
Javastraat 44, 2585 AP, La Haya, Pafses Bajos - Teléfonos: +31 70 302 02 53 / +31 70 369 8589
[email protected]
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