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Written Statement, the African Union LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965 (REQUEST FOR ADVISORY OPINION) ORDER OF 14 JULY 2017 ORDER OF 17 JANUARY 2018 WRITTEN STATEMENT OF THE AFRICAN UNION 1 March 2018 TABLE OF CONTENTS PART I .................................................................................................................................................. 1 PRELIMINARY REMARKS .............................................................................................................. 1 I. INTRODUCTION ........................................................................................................................................... 1 II. THE INTEREST OF THE AFRICAN UNION IN THE ADVISORY PROCEEDINGS BEFORE THE COURT 3 III. THE SCOPE OF THE REQUEST .................................................................................................................. 7 PART II ............................................................................................................................................. 10 THE COURT HAS JURISDICTION TO GIVE THE ADVISORY OPINION REQUESTED ... 10 I. INTRODUCTION ......................................................................................................................................... 10 II. THE GENERAL ASSEMBLY IS AUTHORISED TO REQUEST THE ADVISORY OPINION ..................... 11 III. THE QUALIFICATION OF THE QUESTIONS AS “LEGAL” ONES .......................................................... 11 IV. THE DUTY OF THE COURT TO GIVE THE REQUESTED OPINION ...................................................... 13 PART III ............................................................................................................................................ 16 THE DECOLONISATION OF MAURITIUS WAS NOT LAWFULLY COMPLETED WHEN MAURITIUS WAS GRANTED INDEPENDENCE IN 1968 ..................................................... 16 I. INTRODUCTION ......................................................................................................................................... 16 II. THE RIGHT TO SELF-DETERMINATION WAS PART OF CUSTOMARY INTERNATIONAL LAW AT THE TIME OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS ........................... 17 A. Customary InternatIonaL Law .................................................................................................................................. 18 B. GeneraL AssembLy Resolutions .............................................................................................................................. 19 C. OAU practIce In reLatIon to ResoLutIon 1514 ................................................................................................... 23 D. State practice during the 1950s and after the adoption of Resolution 1514 .................................... 24 E. Decisions of the Court ................................................................................................................................................ 27 F. Decisions of the Court of Justice of the European Union ............................................................................ 29 G. Scholarly consensus ................................................................................................................................................... 29 III. THE RIGHT TO SELF-DETERMINATION WAS BREACHED DURING THE DECOLONISATION PROCESS OF MAURITIUS ................................................................................................................................. 32 A. The scope of the right to self-determinatIon ................................................................................................... 33 B. ResoLutIons of the GeneraL AssembLy Issued durIng the decoLonIsatIon process of MaurItIus . 38 C. ResoLutIons and DecIsIons of the OAU/AfrIcan UnIon on the decoLonIsatIon of MaurItIus ........ 43 IV. THE DECOLONISATION PROCESS OF MAURITIUS WAS UNLAWFUL AND INCOMPLETE UNDER INTERNATIONAL LAW ..................................................................................................................................... 45 PART IV ............................................................................................................................................ 50 THE CONSEQUENCES UNDER INTERNATIONAL LAW ARISING FROM THE CONTINUED ADMINISTRATION BY THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND OF THE CHAGOS ARCHIPELAGO .......................................... 50 I. GENERAL OBSERVATIONS ...................................................................................................................... 50 II. LEGAL CONSEQUENCES OF THE CONTINUED ADMINISTRATION OF THE CHAGOS ARISING FOR THE UNITED KINGDOM ................................................................................................................................... 54 A. The contInued duty of the UnIted KIngdom to perform the obLIgatIons that It breached ........... 54 B. Cessation and non-repetition ................................................................................................................................. 57 C. Reparation and restitution ...................................................................................................................................... 59 D. CompensatIon to MaurItius and to its nationals, in particular those of ChagossIan orIgin ........ 60 E. Satisfaction ..................................................................................................................................................................... 63 III. LEGAL CONSEQUENCES OF THE CONTINUED ADMINISTRATION OF THE CHAGOS FOR OTHER STATES AND INTERNATIONAL ORGANISATIONS ........................................................................................ 63 PART V ............................................................................................................................................. 67 CONCLUSIONS AND SUBMISSIONS .......................................................................................... 67 PART I PRELIMINARY REMARKS I. Introduction 1. It is with great honour that, for the first time since its creation, the African Union provides information to the International Court of Justice (the “Court”) and expresses its views in respect of a request for an advisory opinion. In this Written Statement, the African Union sets out its preliminary observations on, and initial submissions in respect of, the questions submitted to the Court concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, pursuant to Resolution A/RES/71/292 of the General Assembly of the United Nations (the “General Assembly”). 2. The African Union was one of the driving forces behind Resolution A/RES/71/292. It fully supported the efforts of the Government of the Republic of Mauritius (“Mauritius”) in having the General Assembly adopt it. This support is, inter alia, reflected in Resolution AU/Res. 1 (XXVIII) dated 30-31 January 2017 of the Assembly of the African Union on the Chagos Archipelago, which resolved: “to fully support the action initiated by the Government of the Republic of Mauritius at the level of the United Nations General Assembly with a view to ensuring the completion of the decolonization of the Republic of Mauritius and enabling the Republic of Mauritius to effectively exercise its sovereignty over the Chagos Archipelago, including Diego Garcia.”1 1 Exhibit AU-12, Resolution Assembly/AU/Res.1(XXVIII), Resolution on Chagos Archipelago, January 2017, para. 6. References to “Exhibit-AU” in this Written Statement are references to exhibits submitted by the African Union together with this Written Statement. References to “Dossier No.” are references to the documents that have provided to the Court by the Secretariat of the United Nations in these proceedings. 1 3. The tragic fate of the Chagossians was sealed in 1965, when the archipelago they inhabited was dismembered from Mauritius by the then administering power of Mauritius, the United Kingdom of Great Britain and Northern Ireland (the “United Kingdom”). Three years later, in 1968, Mauritius had gained its independence, but the Chagos Archipelago remained a British colonial territory, and its inhabitants remained British. 4. This situation, which remains the same to date, is contrary to international law. 5. The United Kingdom has never taken any steps to remedy this state of affairs, in spite of the repeated calls of the international community for it to comply with international law and to put an end to what may be described as a human tragedy. 6. Over a period of fifty years, the General Assembly, the African Union and its predecessor, the Organisation of the African Unity (the “OAU”), have adopted a number of resolutions and decisions calling on the United Kingdom to comply with international law and to put an end to the continued colonisation of the Chagos Archipelago, including Diego Garcia. 7. On 22 June 2017, the General Assembly decided to take a further step and adopted Resolution A/RES/71/292, requesting the Court to render an advisory opinion on the following questions: (a) “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965,
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