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International Court of Justice Request By INTERNATIONAL COURT OF JUSTICE REQUEST BY THE UNITED NATIONS GENERAL ASSEMBLY FOR AN ADVISORY OPINION ON THE “LEGAL CONSEQUENCES OF THE SEPARATION OF THE CHAGOS ARCHIPELAGO FROM MAURITIUS IN 1965” WRITTEN STATEMENT OF THE UNITED STATES OF AMERICA MARCH 1, 2018 TABLE OF CONTENTS CHAPTER I – INTRODUCTION .............................................................................1 CHAPTER II – BACKGROUND: THE NATURE OF THE BILATERAL DISPUTE ...................................................................................................................2 CHAPTER III – THIS CASE PRESENTS COMPELLING REASONS FOR THE COURT TO DECLINE TO PROVIDE THE OPINION REQUESTED ........... 8 A. The Court was not provided advisory jurisdiction under its Statute to adjudicate disputes between States....................................................................................................... 9 B. The Court’s jurisprudence affirms that the advisory opinion function should not be used to adjudicate disputes between States. ...................................................................... 10 C. The Court should decline to respond to the General Assembly’s request because the request calls for the adjudication of a bilateral territorial dispute between Mauritius and the United Kingdom, and the United Kingdom has not provided its consent to judicial settlement by this Court. ...................................................................................... 12 CHAPTER IV – CONSIDERATIONS RELATING TO THE QUESTIONS REFERRED .............................................................................................................17 A. The questions in the referral would need to be clarified in order for the Court to address them...................................................................................................................... 18 B. The General Assembly’s decolonization policy is distinct from whether a specific legal obligation existed at the relevant time. .................................................................... 20 C. To answer the questions referred, the Court would need to determine whether a new rule of international law had emerged at the relevant time. .............................................. 21 D. Through the end of the 1960s, no rule had emerged under customary international law that would have prohibited the establishment of the British Indian Ocean Territory. ...... 23 CHAPTER V – CONCLUSION ..............................................................................40 CHAPTER I INTRODUCTION 1.1 In its Order dated July 14, 2017, the Court invited the United Nations and its Member States to submit written statements on the questions referred to the Court by the U.N. General Assembly in its resolution 71/292 of June 22, 2017. The United States appreciates the opportunity to furnish its observations on these questions and to convey its concerns regarding the Court’s consideration of the General Assembly’s request for an advisory opinion. 1.2 The United States voted against the General Assembly’s referral resolution because it concerns a bilateral territorial dispute between Mauritius and the United Kingdom concerning sovereignty over the Chagos Archipelago.1 The United States believes that this case raises serious questions about the propriety of utilizing the Court’s advisory jurisdiction in light of the fundamental principle that a State is not obliged to allow its disputes to be submitted for judicial settlement without its consent. It is clear that the United Kingdom, one of the parties to this bilateral dispute, has not given that consent.2 1.3 This Statement begins, in Chapter II, by briefly describing the context in which the General Assembly’s referral resolution should be understood. 1.4 Chapter III identifies compelling reasons why the Court should not provide an advisory opinion in this case. Most notably, to do so would circumvent the fundamental principle that a State is not obliged to submit its disputes to judicial settlement without its consent. 1.5 Chapter IV first identifies several issues the Court would need to consider were it to examine the questions referred, including the problematic framing of those questions. Chapter IV then demonstrates the absence of any international law rule in 1965 that would have made the establishment of the British Indian Ocean Territory (BIOT) unlawful. These considerations help to confirm why the dispute that is the subject of the questions referred is not appropriate to address through the Court’s advisory jurisdiction. 1.6 Chapter V concludes the Statement by respectfully requesting that the Court decline to provide the opinion requested. 1 U.N. Doc. A/71/PV.88 (June 22, 2017) [Dossier No. 6], p. 13. This Statement uses the term “Chagos Archipelago” to describe the group of islands that comprise the British Indian Ocean Territory. 2 See id., p. 11. - 1 - CHAPTER II BACKGROUND: THE NATURE OF THE BILATERAL DISPUTE 2.1 The United States anticipates that Mauritius and the United Kingdom will provide the Court with the pertinent background on their dispute concerning sovereignty over the Chagos Archipelago. The United States therefore does not intend to set forth here a comprehensive factual overview. 2.2 Instead, in this Chapter, the United States will describe the context in which the General Assembly’s referral resolution should be understood. This context will illustrate the point that the present request for an advisory opinion concerns the longstanding territorial dispute between the two States, and in fact represents an attempt to enlist the Court to adjudicate the same sovereignty claim Mauritius has been pressing in other fora. 2.3 The General Assembly, in its resolution 71/292, requested 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, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?; (b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin? 2.4 The United States voted against adoption of this resolution because of concerns that it is not an appropriate subject for an advisory opinion. As the United States explained in the General Assembly debate: By pursuing the draft resolution, Mauritius seeks to invoke the Court’s advisory opinion jurisdiction not for its intended purpose but rather to circumvent the Court’s lack of contentious jurisdiction over this purely bilateral matter … . While Mauritius is attempting to frame this as an issue of decolonization relevant to the international community, at its heart it is a bilateral territorial dispute, and the United Kingdom has not consented to the jurisdiction of the International Court of Justice … . The advisory function of the International Court of Justice was not intended to settle disputes between States.3 3 Id., p. 13. - 2 - 2.5 Indeed, the origin of this referral request stems from a State-to-State sovereignty claim by Mauritius against the United Kingdom that arose more than a decade after Mauritius gained its independence in 1968. 2.6 The United Kingdom has exercised sovereignty over the Chagos Archipelago without interruption since the nineteenth century. For most of this time, the United Kingdom administered the islands as a Lesser Dependency of the British colony of Mauritius. In November 1965, the United Kingdom adjusted these administrative arrangements, and since then it has administered the Chagos Archipelago as the BIOT. 2.7 In 1966, the United States entered into a bilateral agreement with the United Kingdom regarding the establishment of a joint U.S.-U.K. military facility in the BIOT.4 The 1966 Agreement remains in force today, as amended. Over the years, the United States and United Kingdom have also concluded supplemental agreements.5 The 1966 Agreement and supplemental agreements have been registered with the United Nations Treaty Office pursuant to Article 102 of the U.N. Charter, and published in the U.N. Treaty Series.6 2.8 In 1968, Mauritius gained its independence; its territorial boundaries did not include the Chagos Archipelago. Over a decade later, Mauritius began asserting a claim to sovereignty over the Chagos Archipelago, including in its annual statements at the opening of the General Assembly.7 2.9 Given the joint military facility in the BIOT, Mauritius has raised its territorial claim with the United States on a number of occasions. The United States has been clear in these discussions that the United Kingdom is sovereign over the BIOT. That said, the United States greatly values its warm relations with both Mauritius and the United Kingdom, and has encouraged the two parties to the dispute to resolve the matter on a bilateral basis. 2.10 Prior to this request for an advisory opinion, Mauritius has also pursued its sovereignty claim against the United Kingdom through legal avenues,
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