I am not aware of any applicable law governing such a case.
Would be interesting to understand more.
SEVENTY-FIRST SESSION, 88TH MEETING (AM)
GA/11924
22 JUNE 2017
General Assembly Adopts Resolution Seeking International Court’s Advisory Opinion on Pre-independence Separation of Chagos Archipelago from Mauritius
Minister Cites Need to Complete Decolonization Process as United Kingdom Says It Will Cede Territory When No Longer Needed for Defence
The General Assembly requested today that the International Court of Justice render an advisory opinion on the legal consequences arising from the separation of the Chagos Archipelago from Mauritius before that Indian Ocean island nation’s independence in the 1960s.
By a recorded vote of 94 in favour to 15 against, with 65 abstentions, the Assembly adopted the text contained in document A/71/L.73, recalling its 1965 resolution in which it asked the United Kingdom not to dismember the territory of Mauritius ahead of its independence in 1968. It asked the Court whether the decolonization of Mauritius had been carried out in a lawful manner, given the Archipelago’s subsequent separation.
Also by the text, the Assembly asked the Court to advise on the consequences arising from the United Kingdom’s continuing administration of the Chagos Archipelago under international law, including the Declaration on the Granting of Independence to Colonial Countries and Peoples. It pointed, in particular, to Mauritius’ inability to resettle its nationals, including those of Chagossian origin, on the islands.
Speaking before the action, Anerood Jugnauth, Mauritius’ Minister Mentor and Minister for Defence and Rodrigues – also a former Prime Minister and President – said “a vote for the draft resolution […] is a vote in support of completing the process of decolonization, respect for international law and the rule of law”. Recalling that that he had been accompanied by Chagossians forcibly evicted from their islands following the separation, he emphasized that his country had never accepted the situation, and had not been in a position to consent before gaining statehood, even if the United Kingdom claimed that compensation had been given for its consent.
Describing the Chagos Archipelago as part of his country since at least the eighteenth century, when France had governed it, he said the entire territory had been ceded to the United Kingdom in 1810, and kept intact until the unlawful excision of the Chagos Archipelago on 8 November 1965. He added that information had come to light about British efforts to manipulate the international community at the time, and to present the United Nations with a fait accompli regarding the separation. Those facts alone should warrant a fresh look at the situation, he emphasized.
The United Kingdom’s representative called for withdrawal of the draft resolution in order to keep a more constructive path open. Emphasizing that his country would not consent to having a bilateral dispute submitted for judicial settlement, he recalled that, in recent talks, the United Kingdom’s offers had clearly signalled acknowledgement of Mauritius’ long-term interest in the Archipelago, offering a framework for joint management of all its islands except Diego Garcia, the site of a military base.
He went on to state that United Kingdom had decided against resettling the Chagossians on the grounds of feasibility, cost, defence and security interests. However, it was implementing a $50 million support package designed to improve their livelihoods. The focus of Mauritius throughout recent talks had not been on the Chagossians, but rather on transferring sovereignty, he said. However, since the territory had been created for defence purposes in a joint agreement with the United States, sovereignty would revert to Mauritius when the territory was no longer required for that purpose.
Other speakers voiced respect for the principles of self-determination of peoples, the sovereignty of States and international law. Those opposing the resolution underlined the need for a consensual bilateral approach to resolving disputes between States, pointing out that the Court did not have mandatory jurisdiction in such issues. The representative of the United States said the Assembly’s action represented the circumvention of normal procedure, describing it as a “back-door” way to get the issue on the Court’s docket.
Many of those supporting the text prioritized the need to complete the decolonization process. India’s representative, while conceding his country’s security concerns relating to the Indian Ocean, said that, on balance, it was a matter of principle for India to uphold the decolonization process, as well as respect for the sovereignty of nations.
El Salvador’s representative called for broadening the Court’s jurisdiction, pointing out that his small country lacked large armies and nuclear weapons. “It is international law that protects us,” he pointed out.
On the budgetary implications of the resolution, a Secretariat official reported that it was not possible to determine an exact figure, but based on recent precedents, the cost of an advisory opinion concerning the Chagos Archipelago could range from $450,000 to $600,000.
Also speaking today were representatives of Congo, Venezuela (for the Non‑Aligned Movement), Angola (for the Southern African Development Community), Egypt, Kenya, United Republic of Tanzania, Chile, Croatia, France, Trinidad and Tobago, Australia, Uruguay, Germany, China, Mexico, New Zealand, Sweden, Canada, Portugal, Israel, Brazil, Myanmar and Indonesia.
Before the action on the resolution, the Assembly paid tribute to the late President Baldwin Lonsdale of Vanuatu. Following a minute of silence and a statement by the Assembly President, the following delegates delivered statements: Congo (on behalf of the Group of African States), Mongolia (on behalf of the Group of Asia-Pacific States), Romania (on behalf of the Group of Eastern European States), Honduras (on behalf of the Group of Latin American and Caribbean States), Australia (on behalf of the Western European and other States), United States (the host country) and Vanuatu.
The General Assembly will meet again at a date and time to be determined.
Action on Draft Resolution
RAYMOND SERGE BALÉ (
Congo), introduced the draft resolution on behalf of the Group of African States, saying the text supported their efforts to complete the decolonization process on their continent. The continuing separation of the Chagos Archipelago was a violation of international law, defying, in particular, actions by the General Assembly prohibiting the dismemberment of territories by administering Powers, including resolution 2066 (XX) of 1965, relating to Mauritius specifically. The current action was the result of a request by Mauritius, supported by the African Group, after a delay had been requested to allow talks with the United Kingdom. Emphasizing that the right to self-determination was central to the concerns of the United Nations, he said an advisory opinion from the International Court of Justice would clarify the issues involved, thereby strengthening that particular agenda, as well as international law, he said. “A ‘yes’ vote would be a vote for the principles of the UN Charter,” he stressed.
ANEROOD JUGNAUTH, Minister Mentor, Minister for Defence and Rodrigues of
Mauritius, associated himself with the African Group. Explaining his personal knowledge of the situation as the only surviving participant in the 1965 Mauritius Constitutional Conference of 1965, he recalled that he had been accompanied by Mauritians of Chagossian origin, forcibly evicted from the Archipelago and pinning their hopes of return on the United Nations. The Archipelago had been part of Mauritius’ territory since at least the eighteenth century, when France governed it, he said, adding that the entire territory had been ceded to the United Kingdom in 1810 and kept intact until what the Archipelago’s unlawful excision on 8 November 1965.
As noted in the resolution, the General Assembly had recognized the unlawfulness of that excision in its actions of the time, he said, noting that information had since come to light showing British efforts to manipulate the international community at the time, and to present the United Nations with a fait accompli regarding the separation. Those facts alone should warrant a fresh look at the situation, he emphasized, pointing out that Mauritius had continued to voice its opposition in international forums over the years with the support of many countries around the world. The dismemberment of Mauritius’ territory without its freely given consent was a violation of the principle of self‑determination and a breach of fundamental principles of human rights, he stressed.
Countering the United Kingdom’s position — that some form of monetary compensation had been provided in return — he underlined that Mauritius had not enjoyed the legal competence as a State to give consent. “Breaches of principles of international law and General Assembly resolutions remain breaches that can never validly be acquiesced in or consented or traded off with money,” he stressed. The mere request for an advisory opinion had no bearing on, nor adversely affect, the security interests of any other State. “The vote on the draft resolution […] is a vote in support of completing the process of decolonization, respect for international law and the rule of law,” he said.
RAFAEL DARÍO RAMÍREZ CARREÑO (
Venezuela), speaking on behalf of the Non-Aligned Movement, explained that the Movement’s founding principles were rooted in the rejection of colonialism. During its seventeenth summit, held on Venezuela’s Margarita Island in September 2016, member States had reaffirmed that the Chagos Archipelago, including Diego Garcia, had been illegally removed from Mauritius and constituted an integral part of that country’s territory, he recalled. The Movement had observed with concern the United Kingdom’s intention to establish a marine protected area around the Archipelago, he said, welcoming the Arbitration Tribunal convened under the 1982 United Nations Convention on the Law of the Sea. By the provisions of that instrument, that marine protected area had been established illegally, he said, noting that, following proceedings initiated by Mauritius to challenge its legality, the Tribunal had ruled unanimously that the marine protected area had been established in violation of international law. The Movement had decided to support fully any General Assembly action in that direction, and during its recent summit, had appealed to all member States to support today’s action, initiated by African Group.
ISMAEL ABRAÃO GASPAR MARTINS (
Angola) spoke on behalf of the Southern African Development Community (SADC) and associated himself with the African Group and the Non-Aligned Movement. Recalling that SADC had been formed to help member States win both political and economic independence, pointed out that its members had experienced different forms colonialism, including periods when minority governments had catered to external interests rather than those of the local people. The Community’s moral duty was to support the African Group’s endeavour to realize the completion of Mauritius’ decolonization, he said, pointing out that the Chagos Archipelago had been illegally excised from Mauritius prior to its independence in blatant violation of international law. Noting that General Assembly resolution 2066 (1965) called upon the United Kingdom to take no action that would dismember Mauritius and violate its territorial integrity, he said the former colonial Power’s actions remained incompatible with the Charter. The SADC had consistently supported Mauritius’ full and effective control over its whole territory, including the Chagos Archipelago, he said, adding that its member States would vote in favour of the draft resolution under consideration.
MATTHEW RYCROFT (
United Kingdom) said bilateral talks were needed to settle bilateral differences, emphasizing that questions on the British Indian Ocean Territory had long been and should remain bilateral. Calling for the draft resolution’s withdrawal so as to keep a more constructive path open, he emphasized that his country did not and would not consent to the bilateral dispute being submitted for judicial settlement. Urging all States to vote against the draft resolution, he said the United Kingdom had held three substantive rounds of talks with Mauritius since September 2016, but had not been able to bridge their differences. During those talks, the United Kingdom’s offers had clearly signalled acknowledgement of Mauritius’ long-term interest in the Archipelago, offering a framework for the joint management of all the Territory’s islands except Diego Garcia, he said, adding that strategic and tactical forms of bilateral security cooperation had also been offered. It was regrettable that Mauritius had not engaged with those offers, which would have given it a more tangible and direct stake in the Archipelago.
He went on to emphasize that the welfare of Chagossians was of real concern to the United Kingdom. After considering all available information, it had decided against resettling them on grounds of feasibility, cost, defence and security interests. Nevertheless, the United Kingdom was determined to address the desire of the Chagossians for a better life, as well as connections with the Territory. As such, it was implementing a $50 million support package designed to improve their livelihoods. The focus of Mauritius throughout the talks had not been the Chagossians, he stressed, adding that it sought instead a claim for sovereignty over the Chagos Archipelago. Recalling that Mauritius had repeatedly pressed the United Kingdom to specify a date for the transfer of sovereignty, he said that would occur when the Territory was no longer required for defence.
MICHELE SISON (
United States) said she would vote against the draft resolution because it was an attempt to circumvent the Court’s lack of jurisdiction over a bilateral issue in which one of the parties had not consented to the submission. The military base on Diego Garcia, jointly operated by the United States and the United Kingdom, was critical to regional and global security, she emphasized. She maintained that the issue was not decolonization, but a bilateral territorial dispute that would undermine the Court’s advisory function.
SYED AKBARUDDIN (
India) said he would vote in favour of the draft as part of his country’s “ceaseless efforts to put an end to colonialism”. Recalling that his country had co-sponsored the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, he said that, regrettably, the decolonization process that had begun with his country’s independence remained unfinished seven decades later. While India shared the security concerns relating to the Indian Ocean, on balance, it was a matter of principle to uphold the decolonization process and to respect the sovereignty of nations, he emphasized.
AMR ABDELLATIF ABOULATTA (
Egypt) said that his delegation’s vote would be based on its commitment to the common African stance on the issue, as well as its commitment to the principles of the Non-Aligned Movement, as contained in the final communiqué from its last summit. The question was a pending one standing in the way of decolonization, he noted.
MACHARIA KAMAU (
Kenya), associating himself with the Non-Aligned Movement and the African Group, said his delegation would vote in favour for the draft resolution. Describing the vote as an historical imperative in solidarity with a sister African nation, he said that the human rights abuses that had accompanied the Archipelago’s occupation demanded that all States support the draft. All it sought was an advisory opinion from an international court respected by all, he said, asking: “What can be so unpalatable about that?”
MODEST JONATHON MERO (
United Republic Tanzania), associating himself with the Non-Aligned Movement, the African Group and SADC, said the time had come for the two countries to finalize the matter, adding that his delegation would join other African countries in supporting Mauritius.
Mr. RYCROFT (
United Kingdom) said that for reasons already stated, he would vote against the draft resolution and urged others to do the same. Emphasizing the bilateral nature of the dispute, he described the General Assembly’s proposed referral to the International Court of Justice as a back-door way to get the Court’s opinion, cautioning that the proposal could undermine that institution’s legitimacy.
Ms. SISON (
United States) also cautioned against the possibility of undermining the Court, and reiterated that she would vote against the draft.
CRISTIÁN BARROS MELET (
Chile) said he could not associate himself with the statement delivered on behalf of the Non-Aligned Movement, emphasizing that his delegation would base its position on the rule of law, by which the matter should be handled on a bilateral basis. Chile would abstain from the vote, he added.
VLADIMIR DROBNJAK (
Croatia), while emphasizing the importance of the decolonization process, said proper judicial procedures must nevertheless be followed, and for that reason, he would oppose the draft.
The representative of
France said the situation under consideration was a bilateral dispute and should be resolved accordingly. Recalling his country’s calls, over several months, for Mauritius and the United Kingdom to reach bilateral agreement, he said the possibilities offered by negotiation had not yet been exhausted. France was not convinced that an advisory opinion would facilitate such a solution, he said, emphasizing that the issue of sovereignty should be regulated between States and that the International Court of Justice considered respect for that principle to be fundamental. The delegation of France could therefore not vote for the draft.
The representative of
Trinidad and Tobago reiterated her country’s commitment to non-alignment and the peaceful settlement of disputes. She also noted that decisions of the International Court of Justice were non-binding, adding that her delegation would vote in favour of the draft.
Taking up the text titled “request for an advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965” (document A/71/L.73), the Assembly adopted it by a recorded vote of 94 in favour to 15 against, with 65 abstentions.
The representative of
Australia then said that her country respected Mauritius’ decision to bring forward the resolution, while stressing her country’s strong support of the United Nations decolonization agenda. Today’s vote, however, had been about a more specific question, and Australia’s long-standing position was that it was not appropriate to use the Court’s advisory opinion jurisdiction to determine the rights and interests of States arising from a specific context. The Diego Garcia military base played a pivotal part in the global fight against terrorism, she noted, emphasizing that it was in the interest of all to ensure there was no uncertainty about its status that could jeopardize its contribution to international peace and security. For those reasons, Australia had voted against the resolution, she added.
The representative of
Uruguay said his country supported the resolution and the decolonization process, adding that his delegation valued the initiative while continuing to encourage dialogue in the quest for a just and lasting solution.
The representative of
Germany emphasized that her delegation’s abstention should not to be understood as a legal view. The dispute under consideration was bilateral in character and Germany welcomed a peaceful resolution by both parties, she said, while noting that one of the parties had not involved the International Court of Justice.
The representative of
China said his delegation had abstained. Reiterating his country’s firm support for decolonization and its understanding of Mauritius’ position, he said that although negotiations had not yielded progress, the parties should continue bilateral consultations to find an appropriate solution.
The representative of
Mexico said that, while his delegation accepted the mandatory jurisdiction of the Court and the importance of advisory opinions, he had abstained because the solution to the problem must be found at the bilateral level. He called upon the parties to negotiate a solution quickly.
The representative of
New Zealand said he had voted against the draft because the issue should be resolved at the bilateral level.
The representative of
Sweden said his delegation had abstained due to the importance of separating the procedures of Court’s various functions. He urged the parties to deal constructively with the matter at the bilateral level.
The representative of
El Salvador said that, while bilateral discussions were suitable for certain matters, the issue under consideration was one of sovereignty and decolonization. It was up to the United Nations, he said, emphasizing that his delegation had decided to vote in favour of the resolution because it was about a colonial Power appropriating territory. As such, the matter was a political and legal one, and as with any legal issue, the General Assembly had the right to request an advisory opinion from the International Court of Justice. Emphasizing that the Assembly was not taking the matter to the Court, he said it seeking an advisory opinion, pointing out that that was the right of all Member States. It had been exercised in the past, as in 1971 when the Court had resolved a case involving Namibia, he recalled. “As a small country, we do not have international armies or nuclear weapons,” he noted, stressing: “It is international law that protects us.”
The representative of
Canada said his country did not take sides in such disputes and encouraged both parties to resolve the issue amicably. Canada supported the International Court of Justice and its role in the peaceful settlement of disputes, but for the Court to settle contentious cases between States required the consent of both parties, he noted. However, seeking a referral to the International Court of Justice through the General Assembly’s ability to seek an advisory opinion was a circumvention of that principle.
The representative of
Portugal, while also avowing respect for the decolonization process and the role of the International Court of Justice, said she had abstained and called for both parties to resolve the matter bilaterally.
The representative of
Israel said his delegation had voted against the text because it ignored important distinctions relating to the Court’s procedures.
The representative of
Brazil said he had voted in favour of the resolution due to the importance of concluding the decolonization process. However, Brazil encouraged the parties to continue their dialogue.
The representative of
Myanmar said he had abstained because the ongoing negotiations were the best way to resolve the issue.
The representative of
Indonesia, underlining the importance of the decolonization process and the principle of territorial integrity, appealed to the parties to explore all avenues of dialogue in order to resolve the dispute within a clear time frame. Indonesia had abstained, he added.
https://www.un.org/press/en/2017/ga11924.doc.htm
