LEGAL CONSEQUENCES OF
THE SEP A RATION OF CHAGOS FROM MAURITIUS IN 1965
(REQUEST FOR ADVISORY OPINION)
Answer of the Argentine Republic to the question put by Judge Cançado Trindade
Question by Judge Cançado Trindade:
As recalled in paragraph (a) of the UN General Assembly's Request for an adviso,y opinion of
the Intemational Court of Justice, Gene ra/ Assembly resolution71/292 of 22June 2017, the
General Assembly refers to obligations enshrined into successive pertinent resolutions of its own,
as .from 1960, namely: Gene rai Assembfv resolutions 1514 (XV) of 14 December 1960, 2066 (XX)
of 16 December 1965, 2232 (XXI) of 20 December 1966, and 2357 (XX/l) of 19 December 1967.
ln the course of the present oral advisory proceeding.'i, references were often made to such
resolutions by several delegations of Participants.
ln your understanding, wlzat are the /egal consequences ensuing from the formation of customary
international Law with the significant presence ~f opinio juris communis for ensuring compliance
·with the obligations stated in those Gene ra/ Assembly resolutions?
Answer by Argentina
1. The question relates to the obligations stated in Genera1 Assembly resolutions 1514 (XV),
2066 (XX), 2232 (XXI) and 2357 (XXII). These reso]utions are the expression of the
opinio iuris communis and also interpret obligations stenuning from both conventional
law (the Charter of the United Nations in particular) and customary law. Resolution 1514
(XV) is of general character and interprets and app]ies fundamental principles of
International Law relating to co]onialism. The three other General Assembly resolutions
refer to the particular situation of Mauritius (2066 (XX), 2232 (XXI) and 2357 (XXII)).
2. The response by Argentina will start by identifying those obligations in each of the
abovementioned resolutions (A). It will continue by outlining which are the legal
consequences envisaged in customary law sternming from these obligations, including the
conduct that the international legal order requires for ensuring compliance (B).
A. Obligations enshrined in resolutions 1514 (XV), 2066(XX), 2232 (XXI) and 2357
(XXII)
3. We start with resolution 1514 (XV). Its paragraph 1 considers colonialism as contrary to
the United Nations Charter. It follows, as a consequence, the obligation to put an end to
colonialism. Paragraph 2 defines the right of peoples to self-determination. It follows as a
consequence that those hurnan cornrnunities that are recognized as "peoples" and are then
holder of this right determine their political status and freely pursue their economic, social
and cultural development. As a result, States have the obligation to respect this right.
Paragraph 4 reilects the obligation to cease ail anned actions or repressive measures
against dependent peoples, in order to enable them to exercise peacefully and freely their
right to complete independence, and to respect the integrity of their national territory.
Paragraph 5 sets out the obligation to take imrnediate steps to transfer all powers to the
peoples of territories that have not yet attained independence, without any conditions or
reservations. Paragraph 6, by reaffimling 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 United Nations Charter, states the obligation to respect the territodal integrity of
any country, which includes bath States and dependent peoples victims of colonialism.
Paragraph 7 also reaffirms the obligation to observe faithfully and strictly the provisions
of the Charter of th~ United Nations, the Universal Declaration of Human Rights and the
Declaration contaiiùng in resolution 1514 (XV). Tt is to be noticed that the Universal
Declaration of Human Rights was adopted by another General Assembly resolution
having declaratory effect, also with abstentions, which did not hinder the Com1 from
referring to it without any further analysis1
•
4. Resolution 2066 (XX) reaffomed the right of Mauritius to freedom and independence and
"invited" the United Kingdom to take effective measures for the immediate and full
iinplementation of resolution 1514 (XV), to take no action wlùch wou]d dismember the
ten-itory and Mauritius and violate its territorial integrity, and to report to the
Decolonization Committee on the implementation of the present resolution. Clearly, these
"invitations" are to respect existing substantial and procedural obligations, not a matter
left to the discretion of the administering Power. The resolution also requested the
Decolonization Committee to keep tlùs question under review and to report to the General
Assembly.
5. Resolutions 2232 (XXI) and 2357 (XXII) reaffirmed the right of peoples to selfdetermination
and independence, reiterated that any attempt aiined at the partial or total
disruption of the national unity and the territorial integrity of colonial territories and the
installation of military bases is incompatible with the Charter and with resolution 1514
(XV), and called upon the administering Powers to implement without delay the relevant
General Assembly resolutions.
B. Legal Consequences for ensuring compliance with the abovementioned
obligations
6. The legal consequences arising from the obligations reflected in these resolutions are: (a)
those established by customary International Law in the field of responsibility of States,
(b) those stemming from the obligation to settle international disputes through peaceful
1 "Wrongfully to deprive human beings oftheir freedom and to subject Ülem Lo physical constraint in conditions of
hardship is in itself manifestly incompatible with the principles of the Charter of Üle United Nations, as well as with
the fondamental principles enunciated in the Uni versai Declaration of Human Rights" United States Diplomatie and
ConsularStaffin Tehran, Judgment, l.C.J. Rep011s /980, p. 42, para. 91
means, (c) those resulting from the practice of the United Nations in the fie)d of
decolonization and (d) those incumbent to the United Nations themselves.
7. (a) By virtue of the law of State responsibi]ity, administering Powers in breach of the
ob]igations referred to in the resolutions enunciated by .Tudge Cançado Trindade in his
question must cease their illegal conduct, restore the territorial integrity of the peoples
concerned, allow the peoples entitled to self-determination to exercise their right, and
make appropriate reparation for their illegal conduct. Given the nature of these
obligations, ail States are under the obligation not to recognize the illegal situation
resulting from those breaches and to refrain from rendering any aid or assistance that
would help maintain the colonial situation;
8. (b) By virtue of the customary (as well as conventional) obligation to settle international
disputes through peaceful means, the administering Power bas the obligation to negotiate
with the subject concerned (in this case with the Republic of Mauritius) the completion of
its decolonization without conditions, whether of timing or otherwise. This obligation is
reinforced by "the duty ( ... ) [t]o bring a speedy end to colonialism", as established by the
Declarations adopted by General Assembly resolutions 1514 (XV), 2625 (XXV) and as
stressed by the Court in its 1975 Advisory Opinion.2
9. (c) By virtue of the powers of the United Nations in the field of decolonization, there are
obligations of substantial and of procedural nature. States have the obligation not to take
Uiùlateral measures that may affect the process of decolonization, such as dismembering
the territory, exploiting its natural resources, or using its territory for military purposes.
States must also respect the competences of the United Nations in the field of
decolonization, exerdsed through the General Assembly and its Decolonization
Committee. In particular, State conduct must be in line with the resolutions taken by the
said organs regarding the manner to put an end to the colonial situation, without
conditions and without delay.
10. (d) Given the specific fonctions and powers of the United Nations, and especia11y of the
General Assembly, this organ but also the Security Council, should consider what further
action is required to bring to an end illegaJ situations resulting from the breaches of the
different obligations included in the generaJ obligation to put an end, unconditionally and
without delay, to colonialism in all its forms and manifestations and in ail pending cases.
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MARJO OYARzABAL
CONSEJERO LEGAL
2 Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 31, para. 55.
Written Reply of Argentina to the question put by Judge Cançado Trindade at the end of the hearing held on 5 September 2018