CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … The Court, thus, came to the conclusion that the law on self-determination constituted the applicable international law during the period in question (1965 – 1968). 88 cc) Functions of the General Assembly The Court continued by stating that the functions of the General Assembly with regard to the decolonization were provided in Chapter XI of the UN Charter and had been assumed by the General Assembly in numerous resolutions and the establishment of a special Committee. 89 In resolution 2066 (XX) of 16 December 1965, the General Assembly had determined that a detachment of the Chagos Archipelago for the purpose of establishing a military base contravened the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by resolution 1514 (XV) of 14 December 1960, and invited “the administering Power to take no action which would dismember the Territory of Mauritius and violate its territorial integrity.” 90 In resolutions 2232 (XXI) and 2357 (XXII), the General Assembly repeated that the declarations and actions in relation to the detachment are “incompatible with the purposes and principles of the Charter of the United Nations and of General Assembly resolution 1514 (XV).” 91 In doing so, the General Assembly acted within the framework of the Charter and within the scope of functions assigned to it to oversee the application of the right to self-determination; an essential part of these functions had been the Assembly´s consistent practice to pronounce on specific situations of any non-self- governing territory and its administering Powers. 92 dd)Application in the present proceedings Concluding this part of the Opinion, the Court applied these general principles to the case at hand. It set out by stating that, from 1814 on, Mauritius and its dependencies were administered by the UK and were therefore on the list of non-self-governing territories drawn up by the General Assembly. 93 In 1965, at the time of the detachment, the Chagos Archipelago was an integral part of that non-self-governing territory. 94 However, under the condition that the Chagos Archipelago could not be ceded to any third party and would be returned to Mauritius, Mauritius had agreed in principle, in the Lancaster House Agreement, to its detachment. 95 This agreement though was made at a time when Mauritius was still a colony under the authority of the UK. 96 This means, in the Court’s view, that the representatives of Mauritius were not in a position to exercise real legislative or executive powers because the authority remained in the hands of the UK itself. 97 Therefore, the Lancaster House Agreement could not be regarded as an international agreement as one of its parties, Mauritius, was 88 Id. at para. 161; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Res. 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 31, para. 52. 89 Opinion at paras. 163 et seq.

90 “Question of Mauritius” UN GA Res. 2066 (XX) of 16.12.1965; Opinion at para. 165. 91 “Question of Mauritius” UN GA Res. 2066 (XX) of 16.12.1965; Opinion at para. 166. 92 Opinion at paras. 167 et seq. 93 Id. at para. 170; Art. VIII Treaty of Paris. 94 Id. at para. 170. 95 Lancaster House Agreement; Opinion at para. 171. 96 Opinion at para. 172. 97 Id. at para. 172; UN doc. A/5800/Rev. 1 (1964–1965), p. 352, para. 154.

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