CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … and the Mauritian independence. 62 However, this choice did not prevent the Court from taking into account the evolution of the law on self-determination since 1945, including resolution 1514 (XV) of 1960 as far as existence of a customary law character of the right to self-determination is concerned. 63 Insofar, the Court stressed that State practice and opinio juris , i.e. the acceptance of such practice as law (Article 38 of the Statute of the Court), are consolidated and confirmed gradually over time. 64 bb)Applicable international law The Court then determined the nature, content and scope of the right to self-determination applicable to the process of decolonization of Mauritius which had been a non-self-governing territory from 1946 onwards. It held that the right to self-determination, as a fundamental human right, had a broad scope of application. 65 For the purposes of the present case and in order to answer the questions posed by the General Assembly, the Court analyzed the right to self-determination in the specific context of decolonization. 66 According to the UN Charter, “respect for the principle of equal rights and self- determination of peoples” is a main purpose of the UN. 67 This includes that member states having responsibilities for non-self-governing territories are obliged to “develop self-government” of the peoples of such territoriest. 68 This is underlined by the fact that the Charter includes provisions enabling non-self-governing territories ultimately to govern themselves. 69 Moreover, the Court identified the point in time at which the right to self-determination became binding on all states as customary international law. 70 The Court recalled that the necessary components of customary international law are general State practice and opinio juris as set out in Article 38 of the Statute of the Court. According to the Court, these two elements are closely linked to each other. 71 Resolution 1514 (XV) of 1960 had clarified the content and scope of the right to self-determination and followed resolutions 637 (VII) of 1952, 738 (VIII) of 1953, 1188 (XII) of 1957. 72 Additionally, several non-self-governing territories had acceded to independence during that time. 73 As resolution 1514 (XV) had been adopted in the aforementioned context by 89 votes with only 9 abstentions and in view of the fact that some General Assembly resolutions have normative value, the Court concluded that resolution 1514 (XV) is of a declaratory character as concerns the status of the right to self-determination as customary law. 74 In addition to the context of its adoption, this assessment results from the normative wording of the resolution: “All peoples have the 62 Id. at para. 140. 63 Id. at para. 142. 64 Id. at para. 142. 65 Id. at para. 144. 66 Id. at para. 144. 67 Art. 1 (2) of the Charter. 68 Art. 73 of the Charter; Opinion at para. 146. 69 Chapter XI of the Charter; Opinion at paras. 147 et seq. 70 Opinion at para. 148. 71 Id. at para. 149; North Sea Continental Shelf, Judgement, I.C.J. Reports 1969, p. 44, para. 77. 72 Opinion at para. 150. 73 Id. at para. 150. 74 Id. at paras. 151 et seq.; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 254-255, para. 70.

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