Written Comments of Mauritius on the Written Replies of the United Kingdom and the United States of America to the question put by Judge Cançado Trindade's at the end of the hearing held on 5 Septembe

WRITTEN COMMENTS OF THE REPUBLIC OF MAURITIUS
ON THE RESPONSES OF THE UNITED KJNGDOM AND THE UNITED STATES TO
,JUDGE CANÇADO TRINDADE'S QUESTION
The United Kingdom and the United States have replied to Judge Cançado Trindade's
question by repeating their arguments that General Assembly resolutions 15 l 4(XV), 2066(XX),
2232(XXI), and 2357(XXII) did not reflect customary international law at the time the Chagos
Archipelago was detached from Mauritius, were not legally binding on the administering power and
other States, and could not give rise to legal consequences.1 Mauritius notes that neither the
administering power nor the United States has made any effort to respond to the submissions made
by various States and the African Union during the recent hearings, including in relation to positions
taken by each State which contradicts their position in this malter. ln response, Mauritius wishes to
make the following brief comments, which are confined to matters raised in Judge Cançado
Trindade's question:
1. As Mauritius and many States, as well as the African Union, demonstrated in their
written and oral submissions,2 Resolution l 5 l 4(XV) reflected a rule of customary
international law already in 1960, conferring on the peoples of colonial territories the right to
self-determination, including the associated right of territorial integrity. The process of
1 See, e g, United Kingdom of Great Britain and Northem lreland, Response to Question Put By Judge <. unçado I rindadc
( 10 Sept. 2018); United States of America, Response to Question Put By Judge t ,1nçado Trindad1.. ( 10 Sept. 2018).
~ See, e.g . Written S1atement of the Republic of Mauritius ( 1 Mar. 2018), paras. 6.20-6.61; Written Comments of the
Republic of Mauritius ( 15 May 2018), paras. 3 .7-3.67 (summarising the positions of numerous other States on this issue),
Oral Submissions of the Republic of Mauritius, Verbatim Record (3 Sept. 2018), paras. 5-17 (Ms Macdonald); Oral
Submissions of the Argentine Republic, Verbatim Record (4 Sept. 2018), paras. 11 -28 (Mr Kohen); Oral Submissions of
Belize, Verbatim Record (4 Sept. 2018), paras. 9-28 (Mr Juratowitch); Oral Submissions ofBrazil, Verbatim Record (4
Sept. 2018), paras. 10-17 (Ms. Dunlop); Oral Submissions ofGua1emala, Verbatim Record (5 Sept 2018), paras. 23-29
(Ms Sanchez de Vielman); Oral Submissions of Nigeria, Verbatim Record (5 Sept.2018), paras. 20, 25 (Mr Apnta); Oral
Submissions of the Republic of Vanuatu. Verbatim Record (6 Sept. 2018), paras. 10-11, 18, 21 (Mr McCorquodale); Oral
Submissions of the Republic ofZambia. Verbatim Record (6 Sept. 2018), paras. 7-12 (Mr Akande); Oral Submissions of
the Republic of lndia, Verbatim Record (5 Sept. 2018), para. 20 (Mr Rajamony); Oral Submissions of the Republic of
Botswana, Verbatim Record (4 Sept. 2018), paras. 4-21 (Mr Nchunga Nchunga); Oral Submissions of the Republic of
Cyprus, Verbatim Record (4 Sept 2018), para 3 (Mr Polyviou); Oral Submissions of the Republic of Kenya, Verbatim
Record (5 Sept. 2018), paras. 22·32 (Ms Mcharo); Oral Subm1ssions of the Marshall Islands, Verbatim Record (5 Sept.
2018), paras. 19, 36 (Mr Christopher): Oral Submissions of the Republic of Nicaragua, Verbatim Record (5 Sept.2018),
paras. 39-43 (Mr ArgOello G6mez); Oral Submissions of 1he Republic of Serbia, Verbatim Record (6 Sept.2018), para
33 (Mr Gajië); Oral Submissions of the Republic of South Afr1ca, Verbatim Record (3 Sept. 2018), paras. 21 . 23. 26 (Ms
de Wet), Oral Submissions of the African Union. Verbatim Record (6 Sept. 2018), paras. 7-13 (Mr Mbengue); Written
Submission ofthe Republic of Djibouti (1 Mar. 2018), paras. 27-34; Wnnen Statement of the Netherlands para 3.7.
DC 1877(16.4
decolonisation, including the decolonisation of Mauritius, was governed by that rule, binding
under international law.1
2. The only two States to argue that there was no obligation to respect the right of selfdetennination
at the time the Chagos Archipelago was detached from Mauritius are the
administering power and the United States. Yet, contemporaneously with the adoption of
Resolution 1514(XV), and subsequently, they have taken the opposite position in making
statements that recognise the existence of the right to self-detennination, and voting for
resolutions that reaffinned the existence of this right.4 ln 2009 the United Kingdom declared
3 Resolution 1514(XV) renected opinio juris co111n11111is, as demonstrated by the fact that 89 countries voted in favour,
and none voted against. The nine states that abstained, including the United Kingdom and United States, did not contest
the existence of the right to self-detennination or ils application to the peoples of non-sclf-goveming terrilories. Among
the abstaining States, only the United Kingdom, Portugal and the United States gave explanations of vote. The United
Kingdom and Portugal did not contest the existence of the right 10 self..detennination, and the United States accepted the
existence of the right. See U.N. General Assembly, 15th Session, 947th Plenary Meeting, Agenda Item 8- Dec/aration
011 the granting of independence lo colonial countries and peoples, U.N. Doc. A PV.947 ( 14 Dec. 1960), p. 1283, para.
145 ("One thing is clear, however. This resolution applies equally 10 ail areas of the world which arc nol free ... lt
proclaims that all people have the right lo self-determination") (United States) (Dossier No. 74) (emphasis added). See
also, e.g., U.N. General Assembly, 15th Session, 933rd Plenary Meeting, Agenda Item 87: Declaration 011 the gra11ti11g
of i11depe11de11ce to colonial co11nlries and peoples, U .N. Doc. A PV .933 (2 Dec. 1960), p. 1093, para. 87 ("The Prime
Minister of Australia said in this very Assembly hall on 5 October 1960: 'we regard ourselves as having a d111y 10 produce
as soon as it is practicable an opportunity for complete self-detennination for the people of Papua and New Guinea"')
(Australia) (Dossier No. 64) (emphasis added); U.N. General Assembly, 15th Session, 946th Plenary Meeting, Agenda
Item 87: Declaration on the granting of independence to colonial co1111tries and peoples, U.N. Doc. A PV.946 (14 Dec.
1960), p. 1266, para. 13 (accepting the "1111impeachable principle" that "ail peoples have an inalienable right 10 complete
freedom, the exercise oftheir sovereignty and the integrity oftheir national territory", but observing that its application
could lead to controversy) (Sweden) (Dossier No. 73) (emphasis added); U.N. General Assembly, 15th Session, 947th
Plenary Meeting, Agenda Item 87· Declaration 011 the granting of mdependence to colonial countries and peoples, U.N.
Doc. A/PV.947 (14 Dec. 1960), P- 1276, para. 62 (accepting the right 10 self•detennination, and questioning lndonesia's
application of the right to Netherlands New Guinea) (Netherlands) (Dossier No. 74). The opinio juris in regard of the
character of the right of self-detennination as a right under customary international law was also accompanied by
widespread State practice reflected in the fact that some thirty non-self-goveming and Trust Territories achieved
independence prior 10 the adoption ofResolution 1514 See, e g, Written Statement of the Netherlands, para. 3.7 .
.i For example, the United Kingdom, during the debate on G1braltar before the Committee of 24, in 1964, noted "the
uhimate irony ... that Spain should attempt 10 take over the people of Gibraltar under the cover of General Assembly
resolution 1514 (XV), which proclaimed the right of all peoples 10 self-detennination". U.N. General Assembly, 19th
Session, Report of the Special Committee on th .: Si111ation with regard to the lmplementalion of the Dec/aration on the
Granting of l11depe11dem.e to Colonial Co1mtrh:r and P~oples, U.N Doc A/5800/Rev. l (1964-1965), para. 143 (Dossier
No. 251) (emphasis added). The United Kingdom also noted. in that same session of the Committee in that same period,
that paragraph 2 of the Colonial Declaration •·qu1te rightly stated that ail peoples had the right of self•determination".
Ibid., para. 149. Both the United States and the United Kingdom voted for Security Council resolution 183 of 11 December
1963, which "[r]eaffirms the interpretation of self•determination laid down in General Assembly resolution 1514 (XV) as
follows: Ali peoples have 1he riglu to self•determination''. U.N. Security Council, Q11es1io11 relating 10 Territories zmder
Port11g11ese admimstration, U.N. Doc S RES 183 ( 11 Dec. 1963). See al:w, e.g .• United Nations, Official Ri:cords oftl,e
Ge11eral .-lssemb(v. Twemy-second Meeting, Fourth Commiuee, 1741 51 meeting, U.N. Doc. A C.4 SR.1741 (7 Dec. 1967).
para. 31 (in which the United Kingdom reaffinned as a "basic principle" the "wholeness and indivisibility of Territories
which had been admmistered as a single unit", as protected by the rule on territorial integrity in paragraph 6 ofresolution
1 Cl87766.4
before this Court that "(t]he principle of self-determination was articulated as a right of ail
colonial countries and people.\· by Gene rai Assembly re.m/ution 151./ ()(V). "5
3. The legal obligations set out in Resolution 15 J 4(XV), which are addressed to "ail
States", including Members of the United Nations and administering Powers, were reaffinned
in resolutions 2066(XX), 2232(XXI) and 2357(XXII). These condemned the dismemberment
of non-self-goveming territories, including Mauritius, as contraventions of Resolution
1514(XV), making it clear that compliance with these rcsolutions is obligatory as a malter of
international law.6
1514 (XV)); U.N. Security Council, S0111hern Rhodesia, U.N. Doc. S RES,217 (20 Nov. 1965); U.N. Security Council,
So111hern RhocJej·ia, U N. Doc. S, RES,232 (12 Dec. 1966); U.N . Ocneral Assembly, 15th Session, 925th Plenary Meeting,
Agenda /rem 8 -. Dedararion on the gra/1/ing of independence to colonial cmmtries and peoples, U.N. Doc. A PV.925
(28 Nov. 1960), p. 983, para. 32 (Dossier No. 56); ibid, p. 985, para. 50; U.N. Gencral Assembly, 15th Session, 947th
Plenary Meeting, Agenda /lem 8 "' Dec/aration on the gra/1/ing ofindepenclcnce to colonial cormtries and people.\·, U.N.
Doc. A 'PV.947 (14 Dcc. 1960), paras. 47, 53 (Dossier No. 74); U.N. General Assembly, 15th Session, 937th Plenary
Meeting, Agenda /lem s-.- Declaration 011 the granting of independence to colonial co11111ries and peoples, U.N. Doc.
AIPV.937 (6 Dec. 1960), p. 1158, para. 27 (Dossier No. 68); ibid., p. 1159, para. 27; U.N. General Assembly, 19th
Session, Report of the Special Commillee on the Sit11U1ion with regard to the lmplementalion of the Dec/aration on the
Granting of /11depe11clence /0 Co/011ia/ Countries and Peoples, U.N. Doc . A 5800/Rev. l ( 1964-1965), paras. 143, 146,
148-149 and 151 (Dossier No. 251); U.N . General Assembly. 24th Session, Report oftheSpecial Commillee on Princip/es
of lnternarional Law Concerning Friendly Relations and Co-operarion Among States, U.N. Doc. A 7619, Supplement
No. 19 (1969), p. 51 ; U.N. General Assembly, 22nd Session, 1641st Plenary Meeting, Agenda /lem 13: lmplementation
of the Dec/aration on the Granting of lndependence to Colonial Countries and Peoples, U.N. Doc A PV.1641 ( 19 Dec.
1967), para. 97 (Dossier No. 199); U.N. General Assembly, 22nd Session, Agenda Item 23 Reporl of the Special
Commil/ee on the Situation with regard to the lmplementation of the Declaration on the Granting of lndependence to
Colonial Co,mtries and Peoples, U.N. Doc. A/6700/Add.9 (28 Nov. 1967), para. 36; U.N. General Assembly, 17th
Session, Permanent sovereignty over 11a111ral reso11rces, A/RES l 803(XVII) ( 14 Dec. 1962), Preamble; Oral Submissions
of the Republic ofZambia, Verbatim Record (6 Sept.2018), paras. 10-11 (Mr Akande); Oral Submissions of the Republic
of Mauritius, Verbatim Record (3 Sept. 2018), para. 13 (Ms Macdonald); Written Comments of the Republic of Mauritius
(15 May 2018), paras. 3.31-3.55.
s See Accordance with i11ternatio110/ lcmi of the 1111ilateral declara1io11 of independence in respect of Koso\lO (Req11estfor
AdvisorJ' Opinion), Written Stalement of the United Kingdom ( 17 Apr. 2009), para. 5.21 (emphasis added).
6 See U.N. General Assembly, 20th Session, Q11eslion of Mauritius, U.N. Doc. AIRES 1066(XX) (16 Dec. 1965),
preambular para. 5 & para. 4 (in which the General Assembly considered that "any step taken by the administering Power
to detach certain islnnds from the Terrilory of Mauritius ... would be m co111rm•en1ion of the Dec/aration, and inparticu/ar
poragraph 6 thereof' and invited the United Kingdom "to take 110 action which would dismember the Temtory of
Mauritius and vio/ate ils territorial integrity") (Dossier No. 146) (cmphasis added). The obligation to maintain the
territorial integrity of Mauritius was repeated in resolutions 2232 (XXI) and 2357 (XXII). See UN. General Assembly,
21 st Session, Question of American Samoa, Antigua, Bahamas, Bermuda, British Virgin Islands, CU) ma11 ls/a11ds, Cocos
(Keeli11g) /slandr, Dominica, Gilberr and Ellice Islands, Grenada, Guam, Mauritius, Montserrat Ne11 Hebrides. Niue,
Pircairn. Sr. Helena, Sr. Ki11s-Nevis-Ang11illa, St. Lucia, St. Vince111, Seychelle'î, Solomon Islands, Tokelau Islands. Turks
and Caicos Js/and.r and the Unilecl Srares l'irgin Islands, U.N. Doc A RES 2232(XXI) (20 Dec. 1966), preambular para.
4 and para. 4 (after ex pressing its deep concem about the continuation of policies aimed at the disruption of the territorial
integrity of non-self-goveming territories, the General Assembly "[r]eirerares its declaration thnt any attempt aimed at
the partial or total disruption of the national unity and the territorial integrity of colonial Territories.. is incompatible
with the purposes and principles of the Charter of the United Nations and ofGeneral Assembly resolution 1514 (XV).")
(Dossier No. 171) (emphasis added); U.N. General Assembly, 22nd Session, Q11eJtio11 of A1111.r1can Samoa Antigua.
DCl87766..I
4. As a malter of general international law, the breach of an obligation gives rise to legal
consequenccs. The breaches of the obligations sel forth in Resolutions l 514(XV), 2066(XX),
2232(XXI), and 2357(:XXII) give rise to legal consequences for the United Kingdom, as the
administering Power, and for all other States and international organisations. This is as set out
in the written and oral submissions of Mauritius,7 and in Mauritius' answer to Judge Cançado
Trindade's question, submitted to the Court on 10 September 2018. 8 Mauritius will not burden
the Court by repeating those consequences here.
Bahamas, Bermuda, British Virgin Islands, Caymun Islands, Cocos (Keeling) Islands, Dominica, Gilbert and Ellice
Islands, Grenada, Guam, Mauritius, Montserrat, New Hebrides, Niue, Pitcairn, St. Helena, St. Ki11s-Nevis-Ang11illa, St
Lucia, St. Vincent, Seychelles, Solomon Islands, Swa=iland, Tokelau Islands, Turks and Caicos lsland'i and the United
States Virgin lslands, U.N. Doc. A,RES'2357(XXII) (19 Dec. 1967), preambular para. 6 & para. 4 (to the same effect)
(Dossier No. 198). Other resolutions nlso called for strict compliance with and implementation of resolution l 5 l 4(XV).
See, e.g .. U.N. General Assembly, 20th Session, Question of South West Africa, U.N. Doc. A/RES/2074(XX) (17 Dec.
1965), para. 5 (in which the General Assembly considered, in respect of South West Africn, that "any attempt to partition
the Territory or to take any unilateral action, directly or indirectly, preparatory thereto constitutes a violation of ...
resolution 1514 (XV)".). See also ibid., para. IO; U.N. General Assembly, 15th Session, Question of Algeria, U.N. Doc.
A/RES/1573(XV) (19 Dec. 1960), para. 2; U.N. General Assembly, 16th Session, Question of Algeria, U.N. Doc.
A/RES/l 724(XVI) (20 Dec. 1961 ), Preamble (in which the General Assembly recognized, in respect of Algeria, the necd
"to ensure the successful and just implementation of the right of self-detennination on the bnsis of respect for the unity
and territorial integrity of Algeria")· U.N. General Assembly, 16th Session, The situation with regard to the
impleme111ation of the Decluralion on the granting of independence to colonial co11ntries and peop/es, U.N. Doc.
A/RES/1654(XVI) (27 Nov. 1961), preambular para. 6 (in which the General Assembly expressed its deep concem that,
contrary to paragraph 6 of the Declaration on the granting ofindependence to colonial countries and peoples, "acts aimed
at the partial or total disruption of national unity and territorial integrity" were being carried out in the process of
decolonization), 11 N. General Assembly , 17th Session, Question of Basutoland Bec/mana/and and Sw,dland, U.N. Doc.
A/RES/1817(XVII) (18 Dec. 1962), para. 6; U.N. General Assembly, 18th Session, Question of Bas11tola11d,
Bec/mana/and and Swazi/und, U.N. Doc. A/RES/1954(XVIII) (11 Dec 1963), para. 4 (in which the General Assembly
wamed South Africa against any anempt to encroach upon the territorial integrity of Basutoland, Bechuanaland or
Swaziland in any way).
7 See Written Statement of the Republic of Mauritius ( 1 March 2018), Chapter 7, Written Comments of the Republic of
Mauritius ( 15Mny2018), Sections Ill and IV; Oral Submissions of the Republic of Mauritius. Verbatim Record (3 Sept.
2018), paras 33-57 (Mr Reichler)
8 Republic of Mauritius, Response to Question Put By Judge Cançado I rimladc ( 10 Sept. 2018), para. 8. See also
Argentine Republic . Response to Question Put By Judge Cançado lrimladc (10 Sept. 2018), paras. 6-10; Oral
Submissions of Belize. Verbatim Record (4 Sept. 2018), para. 62 (a)-(e) (Mr Juratowitch); Republic of Botswana and
Republic of Vanuatu. Response to Question Put By Judge Cançad l r rindadc, p. 2; Republic of Nicaragua, Response to
Question Put B} Judge Cança<lo Trin<ladc ( 10 S..:pt. 20 '< • p. 2.
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