I. Events leading to the adoption of the request for the advisory opinion

25. Before examining the events leading to the adoption of the request for the advisory opinion, the Court recalls that the Republic of Mauritius consists of a group of islands in the Indian Ocean comprising approximately 1,950 sq km. The main island of Mauritius is located about 2,200 km south-west of the Chagos Archipelago, about 900 km east of Madagascar, about 1,820 km south of Seychelles and about 2,000 km off the eastern coast of the African continent.

26. The Chagos Archipelago consists of a number of islands and atolls. The largest island is Diego Garcia, located in the south-east of the archipelago. With an area of about 27 sq km, Diego Garcia accounts for more than half of the archipelago's total land area.

27. Although Mauritius was occupied by the Dutch from 1638 to 1710, the first colonial administration of Mauritius was established in 1715 by France which named it Ile de France. In 1810, the British captured Ile de France and renamed it Mauritius. By the Treaty of Paris of 1814, France ceded Mauritius and all its dependencies to the United Kingdom.

28. Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the colony of Mauritius. From as early as 1826, the islands of the Chagos Archipelago were listed by Governor Lowry-Cole as dependencies of Mauritius. The islands were also described in several ordinances, including those made by Governors of Mauritius in 1852 and 1872, as dependencies of Mauritius. The Mauritius Constitution Order of 26 February 1964 (hereinafter the “1964 Mauritius Constitution Order”), promulgated by the United Kingdom Government, defined the colony of Mauritius in section 90 (1) as “the island of Mauritius and the Dependencies of Mauritius”.

29. In accordance with General Assembly resolution 66 (I) of 14 December 1946, the United Kingdom as the administering Power regularly transmitted information to the General Assembly under Article 73 (e) of the Charter of the United Nations concerning Mauritius as a non-self-governing territory. The information submitted by the United Kingdom was included in several reports of the Fourth Committee (Special Political and Decolonization Committee) of the General Assembly. In many of these reports, the islands of the Chagos Archipelago, and sometimes the Chagos Archipelago itself, are referred to as dependencies of Mauritius. In its 1947 Report, Mauritius is described as comprising the island of Mauritius and its dependencies among which are mentioned the island of Rodriguez and the Oil Islands group of which the principal island is Diego Garcia. The Report of 1948 collectively referred to all of the islands as “Mauritius”. The Report of 1949 states that “there are dependent upon Mauritius a number of islands scattered over the Indian Ocean, of which the most important is Rodriguez … Other dependencies are: Chagos Archipelago … Agalega and Cargados Charajos”.

30. On 14 December 1960, the General Assembly adopted resolution 1514 (XV) entitled “Declaration on the Granting of Independence to Colonial Countries and Peoples” (hereinafter “resolution 1514 (XV)”). On 27 November 1961, the General Assembly, by resolution 1654 (XVI), established the United Nations Special Committee on Decolonization (hereinafter the “Committee of Twenty-Four”) to monitor the implementation of resolution 1514 (XV).

31. In February 1964, discussions commenced between the United States of America (hereinafter the “United States”) and the United Kingdom regarding the use by the United States of certain British-owned islands in the Indian Ocean. The United States expressed an interest in establishing military facilities on the island of Diego Garcia.

32. On 29 June 1964, the United Kingdom also commenced talks with the Premier of the colony of Mauritius regarding the detachment of the Chagos Archipelago from Mauritius. At Lancaster House, talks between representatives of the colony of Mauritius and the United Kingdom Government led to the conclusion on 23 September 1965 of an agreement (hereinafter the “Lancaster House agreement”, described in more detail in paragraph 108 below).

33. On 8 November 1965, by the British Indian Ocean Territory Order 1965, the United Kingdom established a new colony known as the British Indian Ocean Territory (hereinafter the “BIOT”) consisting of the Chagos Archipelago, detached from Mauritius, and the Aldabra, Farquhar and Desroches islands, detached from Seychelles.

34. On 16 December 1965, the General Assembly adopted resolution 2066 (XX) on the “Question of Mauritius”, in which it expressed deep concern about the detachment of certain islands from the territory of Mauritius for the purpose of establishing a military base and invited the “administering Power to take no action which would dismember the Territory of Mauritius and violate its territorial integrity”.

35. On 20 December 1966, the General Assembly adopted resolution 2232 (XXI) on a number of territories including Mauritius. The resolution reiterated that

36. The talks between the United Kingdom and the United States resulted in the conclusion on 30 December 1966 of the “Agreement concerning the Availability for Defence Purposes of the British Indian Ocean Territory” and the conclusion of an Agreed Minute of the same date.

37. Based on the 1966 Agreement, the United States and the United Kingdom agreed that the Government of the United Kingdom would take any “administrative measures” necessary to ensure that their defence needs were met. The Agreed Minute provided that, among the administrative measures to be taken, was “resettling any inhabitants” of the islands. The inhabitants of the Chagos Archipelago are referred to as Chagossians and, sometimes, as the “Ilois” or “islanders”. In this Opinion these terms are used interchangeably.

38. On 10 May 1967, Sub-Committee I of the Committee of Twenty-Four reported that:

39. On 15, 17 and 19 June 1967, the Committee of Twenty-Four examined the Report of Sub-Committee I and adopted a resolution on Mauritius. In this resolution, the Committee “[d]eplores the dismemberment of Mauritius and Seychelles by the administering Power which violates their territorial integrity, in contravention of General Assembly resolutions 2066 (XX) and 2232 (XXI) and calls upon the administering Power to return to these Territories the islands detached therefrom”.

40. On 7 August 1967, general elections were held in Mauritius and the political parties in favour of independence prevailed.

41. On 19 December 1967, the General Assembly adopted resolution 2357 (XXII) on a number of territories including Mauritius, and reaffirmed what it had declared in resolution 2232 (XXI) (see paragraph 35 above).

42. On 12 March 1968, Mauritius became an independent State and on 26 April 1968 was admitted to membership in the United Nations. Sir Seewoosagur Ramgoolam became the first Prime Minister of the Republic of Mauritius. Section 111, paragraph 1, of the 1968 Constitution of Mauritius, promulgated by the United Kingdom Government before independence on 4 March 1968, defined Mauritius as “the territories which immediately before 12th March 1968 constituted the colony of Mauritius”. This definition did not include the Chagos Archipelago in the territory of Mauritius.

43. Between 1967 and 1973, the entire population of the Chagos Archipelago was either prevented from returning or forcibly removed and prevented from returning by the United Kingdom. The main forcible removal of Diego Garcia's population took place in July and September 1971.

44. On 11 April 1979, in a discussion on the detachment of the Chagos Archipelago, Prime Minister Ramgoolam told the Mauritian Parliament “we had no choice”.

45. In July 1980, the Organisation of African Unity (hereinafter the “OAU”) adopted resolution 99 (XVII) (1980) in which it “demands” that Diego Garcia be “unconditionally returned to Mauritius”.

46. On 9 October 1980, the Mauritian Prime Minister, at the thirty-fifth session of the United Nations General Assembly, stated that the BIOT should be disbanded and the territory restored to Mauritius as part of its natural heritage.

47. In July 2000, the OAU adopted Decision AHG/Dec.159 (XXXVI) (2000) expressing its concern that the Chagos Archipelago was “excised by the colonial power from Mauritius prior to its independence in violation of UN Resolution 1514”.

48. On 1 April 2010, the United Kingdom announced the creation of a marine protected area in and around the Chagos Archipelago. On 20 December 2010, Mauritius instituted proceedings against the United Kingdom pursuant to Article 287 of the United Nations Convention on the Law of the Sea (hereinafter “UNCLOS” or “the Convention”) before an Arbitral Tribunal constituted under Annex VII of the Convention, challenging the creation of a marine protected area by the United Kingdom. In those proceedings, Mauritius submitted, inter alia, that (1) the United Kingdom was not entitled to declare a marine protected area or other maritime zones in and around the Chagos Archipelago as it was not a coastal State within the meaning of UNCLOS; (2) the United Kingdom was not entitled to declare unilaterally a marine protected area or other maritime zones because Mauritius had rights as a coastal State within the meaning of Articles 56, paragraph 1, and 76, paragraph 8, of UNCLOS; (3) the United Kingdom should not take any steps to prevent the Commission on the Limits of the Continental Shelf from making recommendations to Mauritius in respect of any submission that Mauritius may make to that Commission regarding the Chagos Archipelago; and (4) the marine protected area was incompatible with the United Kingdom's obligations under UNCLOS.

49. On 27 July 2010, the African Union adopted Decision 331 (2010), in which it stated that the Chagos Archipelago, including Diego Garcia, was detached “by the former colonial power from the territory of Mauritius in violation of [General Assembly] Resolutions 1514 (XV) of 14 December 1960 and 2066 (XX) of 16 December 1965 which prohibit colonial powers from dismembering colonial territories prior to granting independence”.

50. On 18 March 2015, the Arbitral Tribunal constituted under Annex VII of UNCLOS rendered an award in the Arbitration regarding the Chagos Marine Protected Area between Mauritius and the United Kingdom (hereinafter the “Arbitration regarding the Chagos Marine Protected Area”). The Tribunal found, in its Award, that it lacked jurisdiction on Mauritius’ first, second and third submissions, but had jurisdiction to consider Mauritius’ fourth submission. With respect to the first submission, the Tribunal observed that “[t]he parties’ dispute regarding sovereignty over the Chagos Archipelago does not concern interpretation or application” of UNCLOS. On the merits, the Arbitral Tribunal found, inter alia, that, in establishing the marine protected area surrounding the Chagos Archipelago, the United Kingdom had breached its obligations under Article 2, paragraph 3, Article 56, paragraph 2, and Article 194, paragraph 4, of the Convention, and that the United Kingdom's undertaking to return the Chagos Archipelago to Mauritius, when no longer needed for defence purposes, was legally binding.

51. On 30 December 2016, the 50-year period covered by the 1966 Agreement came to an end; however, it was extended for a further period of twenty years, in accordance with its terms.

52. On 30 January 2017, the Assembly of the African Union adopted resolution AU/Res.1 (XXVIII) on the Chagos Archipelago which resolved, among other things, to support Mauritius with a view to ensuring “the completion of the decolonization of the Republic of Mauritius”.

53. On 23 June 2017, the General Assembly adopted resolution 71/292 requesting an advisory opinion from the Court (see paragraph 1 above). Having recalled the events leading to the adoption of that request, the Court now turns to the consideration of the questions of jurisdiction and discretion.

II. Jurisdiction and discretion

54. When the Court is seised of a request for an advisory opinion, it must first consider whether it has jurisdiction to give the opinion requested and if so, whether there is any reason why the Court should, in the exercise of its discretion, decline to answer the request (see Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 144, para. 13; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 412, para. 17).

III. The factual context of the separation of the Chagos Archipelago from Mauritius

92. The Court notes that the questions submitted to it by the General Assembly relate to the separation of the Chagos Archipelago from Mauritius and the legal consequences arising from the continued administration by the United Kingdom of the Chagos Archipelago (see paragraph 1 above). Before addressing these questions, the Court deems it important to examine the factual circumstances surrounding the separation of the archipelago from Mauritius, as well as those relating to the removal of the Chagossians from this territory.

93. In this regard, the Court notes that, prior to the separation of the Chagos Archipelago from Mauritius, there were formal discussions between the United Kingdom and the United States and between the Government of the United Kingdom and the representatives of the colony of Mauritius.

IV. The questions put to the Court by the General Assembly

132. Having reviewed the factual background of the present request for an advisory opinion, the Court will now examine the two questions put by the General Assembly:

133. Some participants have asked the Court to reformulate both questions or to interpret them restrictively. In particular, they have contested the assumption that the resolutions referred to in Question (a) would create international obligations for the United Kingdom, thereby prejudging the answer the Court is requested to give. They have also contended that the legal questions really at issue concern the matter of sovereignty over the Chagos Archipelago, which is the subject of a bilateral dispute between Mauritius and the United Kingdom.

134. One participant has asserted that the General Assembly's request, which does not expressly refer to the legal consequences for States of the continued administration by the United Kingdom of the Chagos Archipelago, should be interpreted in such a way as to limit the advisory opinion to the functions of the United Nations, excluding all issues that concern States, in particular, Mauritius and the United Kingdom.

135. The Court recalls that it may depart from the language of the question put to it where the question is not adequately formulated (Interpretation of the Greco-Turkish Agreement of 1 December 1926 (Final Protocol, Article IV), Advisory Opinion, 1928, P.C.I.J., Series B, No. 16) or does not reflect the “legal questions really in issue” (Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 89, para. 35). Similarly, where the question asked is ambiguous or vague, the Court may clarify it before giving its opinion (Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, p. 348, para. 46). Although, in exceptional circumstances, the Court may reformulate the questions referred to it for an advisory opinion, it only does so to ensure that it gives a reply “based on law” (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15).

136. The Court considers that there is no need for it to reformulate the questions submitted to it for an advisory opinion in these proceedings. Indeed, the first question is whether the process of decolonization of Mauritius was lawfully completed in 1968, having regard to international law, following the separation of the Chagos Archipelago from its territory in 1965. The General Assembly's reference to certain resolutions which it adopted during this period does not, in the Court's view, prejudge either their legal content or scope. In Question (a), the General Assembly asks the Court to examine certain events which occurred between 1965 and 1968, and which fall within the framework of the process of decolonization of Mauritius as a non-self-governing territory. It did not submit to the Court a bilateral dispute over sovereignty which might exist between the United Kingdom and Mauritius. In Question (b), which is clearly linked to Question (a), the Court is asked to state the consequences, under international law, of the continued administration by the United Kingdom of the Chagos Archipelago. By referring in this way to international law, the General Assembly necessarily had in mind the consequences for the subjects of that law, including States.

137. It is for the Court to state the law applicable to the factual situation referred to it by the General Assembly in its request for an advisory opinion. There is thus no need for it to interpret restrictively the questions put to it by the General Assembly. When the Court states the law in the exercise of its advisory function, it lends its assistance to the General Assembly in the solution of a problem confronting it (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 21, para. 23). In giving its advisory opinion, the Court is not interfering with the exercise of the General Assembly's own functions.

138. The Court will now consider the first question put to it by the General Assembly, namely whether the process of decolonization of Mauritius was lawfully completed having regard to international law.

I. Prolegomena

1. I vote in support of the adoption today, 25 February 2019, of the present Advisory Opinion of the International Court of Justice (ICJ), on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, for concurring with the conclusions that the Court has reached, set forth in the dispositif. As I have come to such conclusions on the basis of a reasoning at times clearly distinct from that of the Court, and as there are some points which, in my understanding, either have not been sufficiently dealt with by the ICJ, or deserve more attention, - and even relevant points which have not been considered at all by the Court, - I thus feel obliged, in the present Separate Opinion, to dwell upon them and to lay on the records the foundations of my own personal position thereon.

2. To that end, I shall begin by addressing the long-standing United Nations acknowledgment of, and commitment to, the fundamental right to self-determination of peoples, from 1950 onwards, as reflected in successive resolutions of the General Assembly. Following this, I shall examine the eradication of colonialism, with the projection in time of the 1960 U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples, and of successive U.N. General Assembly resolutions. In logical sequence, I shall then dwell upon the formation of the international law of decolonization as a manifestation of the humanization of contemporary international law.

3. Next, I shall focus attention on the right to self-determination in the two U.N. Covenants on Human Rights of 1966, and on the contribution of the Human Rights Committee on the matter, followed then by the examination of the acknowledgment of that right in the case-law of the ICJ, as well as at the II U.N. World Conference on Human Rights (Vienna, 1993). I shall then turn attention to the question I put to all participating Delegations in the ICJ's oral advisory proceedings, and to their written answers, and comments thereon, and proceed to my own assessment of them.

4. I shall in sequence dwell upon the fundamental right to self-determination in the domain of jus cogens, from the early acknowledgment of this latter to reassertions of jus cogens in the present advisory proceedings. Following this, I shall proceed to my criticism of the insufficiencies in the ICJ's case-law relating to jus cogens. Accordingly, I shall then dedicate my following reflections to jus cogens and the existence of opinio juris communis, to the recta ratio in respect of jus cogens and the primacy of conscience above the “will”, as well as to the rights of peoples beyond the strict inter-State outlook. This will bring me to consideration of conditions of living and the longstanding tragedy of imposed human suffering.

5. In sequence, after examining opinio juris communis in U.N. General Assembly resolutions, I shall dwell upon the duty to provide reparations for breaches of the right of peoples to self-determination, reasserted by participating Delegations in the present ICJ's advisory proceedings. After singling out the indissoluble whole of breach and the duty of prompt reparation, I shall then examine the vindication of the rights of peoples, with reparations, in relation to the mission of international tribunals. This will lead me to address the vindication of the rights of individuals and of peoples and the important role of general principles of law in the realization of justice. Last but not least, I shall, in an epilogue, proceed to a recapitulation of the points sustained in my present Separate Opinion.

II. The Long-Standing United Nations Acknowledgment of, and Commitment to, the Fundamental Right to Self-Determination of Peoples

6. The present Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, requested to the ICJ by the U.N. General Assembly, can in my view be properly considered in the framework of the longstanding endeavours of the General Assembly itself in full support of the right of peoples and nations to self-determination. There have been moments of historical importance for the transformation and evolution of contemporary international law, the new jus gentium of our times, reflected, e.g., in its landmark 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, followed, one decade later, by its célèbre 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

7. There have been, along the years, several other resolutions of the General Assembly to be kept in mind to the same effect, as I shall survey in the present Separate Opinion. The two questions put to the ICJ by the General Assembly are clearly formulated in the following terms:

8. Those two questions lodged with the ICJ in the present request by the U.N. General Assembly for an Advisory Opinion are to be examined in the aforementioned framework of United Nations action. In this respect, may I initially point out that the fundamental right to self-determination has a long history, preceding the célèbre 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, going back to the earlier years of the U.N. General Assembly.

III. Eradication of Colonialism: Projection in Time of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples and of Successive U.N. General Assembly Resolutions

29. The ICJ itself addressed General Assembly resolution 2625(XXV) of 1970 containing the Declaration on Principles of International Law in the case Nicaragua versus United States (merits, Judgment of 27.06.1986): after referring to the “character of jus cogens” of the prohibition of the use of force in Article 2(4) of the United Nations Charter, it stated that the adoption by member States of the aforementioned 1970 Declaration afforded “an indication of their opinio juris as to customary international law” on the matter (para. 191).

30. For its part, the U.N. General Assembly, in other successive resolutions, has recognized the eradication of colonialism as one of the priorities of the United Nations. It has therein, accordingly, pursuant to its earlier resolutions on decolonization, again called for the attainment of the full exercise of the peoples’ right to self-determination. The General Assembly devoted its resolutions 43/47 of 22.11.1988, 55/146 of 08.12.2000, and 65/119 of 10.12.2010, to three succeeding international decades (periods 1990-2000, 2001-2010, and 2011-2020) for the eradication of colonialism. Furthermore, it subsequently reaffirmed (in 2015-2017) the incompatibility of colonialism, in any form, with the United Nations Charter, the Universal Declaration of Human Rights, and the U.N. Declaration on the Granting of Independence to Colonial Countries and PeoplesFootnote ⁵.

31. In this respect, on the occasion of the 50^th. anniversary of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, the U.N. General Assembly adopted its resolution 65/118, of 10.12.2010, whereby it again reiterated the “inalienable right of all peoples of the non-self-governing Territories to self-determination” (para. 1), after expressing its deep concern as to the fact that “colonialism has not yet been totally eradicated” (preamble). It then declared that

32. General Assembly resolution 65/118, of 2010, requested the administering Powers to preserve the “cultural identity” and national unity of the peoples concerned, so as to foster their “unfettered exercise” of their right to self-determination and independence (para. 8). It then urged member States “to ensure the full and speedy implementation of the [1960] Declaration and other relevant resolutions of the United Nations” (para. 10). At last, it requested the Special Committee on Decolonization to identify “the most suitable ways” for the speedy and total application of the 1960 Declaration, and to propose measures for “the complete implementation of the [1960] Declaration in the remaining non-self-governing Territories” (para. 12).

33. Half a decade later, the U.N. General Assembly adopted its resolution 70/231, of 23.12.2015, wherein it began again by calling for the prompt “eradication of colonialism”, which continued to be one of the priorities of the United Nations (preamble), reiterating that the persistence of colonialism was

34. It urged a speedy end to colonialism, so as to enable peoples to exercise their right to self-determination, including independence (paras. 3-4 and 8(a)(c)). This should be done, - it added, - in accordance with the relevant General Assembly resolutions on decolonization, focusing attention on the implementation by member States of General Assembly resolution 1514(XV) of 1960 and other relevant and successive General Assembly resolutions on the matter (para. 8(b)(c)).

35. In the following year, the U.N. General Assembly adopted its resolution 71/122, of 06.12.2016, warning first that the prompt eradication of colonialism has not yet been attained, and has remained “one of its priorities” (preamble). It then reiterated the same considerations found in the previous resolution 70/231, of 2015 (paras. 2-3). Moreover, it urged further advance in the “decolonization agenda” (para. 17), as well as the provision of “moral and material assistance, as needed, to the peoples of the non-self-governing Territories” (para. 15).

36. Once again, in the following year, in its resolution 72/111, of 07.12.2017, the U.N. General Assembly, reiterated these points (paras. 2-3, 18 and 16), and added its significant call upon the administering Powers concerned

37. It can thus be seen that, as from General Assembly resolution 1514(XV) of 1960, a new epoch in the progressive development of contemporary international law had started, with the condemnation of colonialism as a denial and breach of fundamental human rights, contrary to the United Nations Charter itself. General Assembly resolution 1514(XV) of 1960 provided the legal framework for such development. The right to self-determination emerged as a true human right in itself, a right of peoples, as promptly captured by expert writing since the adoption of General Assembly resolutions in the early sixtiesFootnote ⁶.

IV. THE INTERNATIONAL LAW OF DECOLONIZATION AS A MANIFESTATION OF THE HUMANIZATION OF CONTEMPORARY INTERNATIONAL LAW

38. Growing attention and care came to be devoted to the rights of peoples, and in particular to the right to self-determination as a right inherent to all peoples, as a fundamental human right (cf. part V, infra). There was accordingly a decisive move towards the universalization of the United Nations, with the gradual and considerable increase of its membershipFootnote ⁷, and greater attention to a matter of concern to the whole international community.

39. This move was fully in accordance with the United Nations Charter itself, which, may I here recall, as from its preamble presents the determination of “we, the peoples of the United Nations”, to “reaffirm faith in fundamental human rights, in the dignity and worth of the human person”, and in the “equal rights” of “nations large and small” (2nd. para.). Attention was focused on peoples - as shown in several of its provisions - and on the safeguard of values common to humankind.

40. According to its provisions, the realization of human rights without distinctions (Articles 1(3) and 13(1)(b)) was to be undertaken. There were express references to equal rights and self-determination of peoples (Articles 1(2) and 55), and to State duties towards peoples ensuing therefrom (“sacred trust”, Article 73). Respect was due to peoples, their rights and cultures. There was thus a new vision advanced by the United Nations Charter, so as “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (preamble, 1^st. para.).

41. In addition, the references to the principles and the purposes of the United Nations were to be kept in mind, as they imposed upon members of the United Nations a “legal obligation” to act in accordance with them. It became their “legal duty to respect” fundamental human rights. Such provisions were adopted, after prolonged consideration before and during the 1945 San Francisco Conference,

42. The humanist outlook of the law of nations was rescued. Civitas maxima gentium resurged in a new context, namely, that of the emergence, in the mid-XXth. century, of an “international law of decolonization”, moving towards a “universal common good”, keeping in mind the juridical equality of all States (including those that emerged from decolonization)Footnote ⁹. The United Nations, much attentive to peoples, with its universalist outlook, much contributed to foster this humanist perspective proper of the classical conceptions of the totus orbis, or of the civitas maxima gentium.

43. May I here recall that, in his book of remembrances, René Cassin pondered that the United Nations Charter itself could be seen as emanating from “human conscience” against the atrocities of the II world war in disregard for the principle of humanityFootnote ¹⁰. Already in its earlier years, - he added, - the United Nations, starting with the General Assembly, counted on the significant role, - from the 1955 Conference of Bandung onwards (infra), - of new States emerged from decolonization, including in the adoption of the two U.N. Covenants on Human Rights of 1966Footnote ¹¹, which provided in common Article 1 for the right to self-determination (cf. part V, infra). The importance of universality for the United Nations was rendered clear.

44. This new era in the progressive development of international law, of the acknowledgment of the right of peoples and nations to self-determination, was due to the awakening of the universal juridical conscience to the needs and aspirations of humankind as a whole, faithful to the perennial legacy of the jusnaturalist thinking of the “founding fathers” of the law of nations. In my own conception, this evolution is another significant manifestation of the historical process of humanization of contemporary international lawFootnote ¹².

45. In effect, by the mid-1950s, the right of peoples to self-determination was already being firmly adjudicated at multilateral level. Thus, the 1955 Asian-African Conference of Bandung, held on 18-24.04.1955, with the participation of 29 countries, condemned colonialism and discrimination as a denial of fundamental rights in the sphere of education and culture, and declared its full support for fundamental human rights enshrined into the United Nations Charter and the Universal Declaration on Human Rights, encompassing the right of peoples to self-determination - expressed in U.N. resolutions - as “a prerequisite of the full enjoyment of all fundamental human rights”Footnote ¹³.

46. The 1955 Asian-African Conference of Bandung condemned “colonialism in all its manifestations” as “an evil which should speedily be brought to an end”, for being “a denial of fundamental human rights” in breach of the United Nations Charter and “an impediment to the promotion of world peace”Footnote ¹⁴. Moreover, the 1955 Bandung Conference sustained universal membership of the United NationsFootnote ¹⁵. The 1955 Conference, at last, called for respect for fundamental human rights, for the principles and purposes of the United Nations, and for justice and international obligationsFootnote ¹⁶; it further called for complete disarmament, including the prohibition and elimination of nuclear weaponsFootnote ¹⁷.

47. The 1955 Bandung Conference was promptly followed by other Conferences of the kind (such as those of Cairo, in December 1957-January 1958; of Accra, in April 1958; and of Addis Ababa, in June 1960), giving continuity to their aims. The Asian-African countries came then to count on the support of Latin American and Arab countries as well, fostering the process of decolonizationFootnote ¹⁸. The principles initially adopted at the 1955 Conference of Bandung were to become the most immediate antecedent, as well as goals, of the Non-Aligned Movement, founded, six years later, in a Conference held in Belgrade, in the first week of September 1961.

48. Latin American contribution to it benefited from its already firmly-grounded doctrine of international lawFootnote ¹⁹. In effect, also in respect of the work of the aforementioned Special Committee on Decolonization (supra), as from its beginning, - and even before it, - delegates of Latin American and Caribbean countries marked their presence and gave their contribution to the U.N. plenary debates of the General Assembly (1960-1961 onwards) in support of decolonization and the right of self-determination of peoplesFootnote ²⁰.

49. The same occurred in even earlier debates of the IV Committee of the General Assembly (1949 onwards), as to the prospects of non-self-governing Territories and the U.N. trusteeship system, with the contribution likewise of delegates of Latin American and Caribbean countriesFootnote ²¹. The new world-wide movement of non-aligned countries, conformed in 1961, brought a change of paradigm for the United NationsFootnote ²², in pursuance of its universalist outlook.

50. The corpus juris gentium was thereby enriched, with the vindication of the right of peoples to self-determination. In this connection, General Assembly resolution 1514(XV) of 1960, containing the Declaration on the Granting of Independence to Colonial Countries and Peoples, as well as General Assembly resolution 2625(XXV) of 1970, containing the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (cf. supra), came to be regarded as “authentic interpretations” of the U.N. CharterFootnote ²³, rendering the “postulate of self-determination” of peoples a precept “directly binding on States”Footnote ²⁴, and evidencing such enrichment of the corpus juris gentium.

51. The international law of decolonization was conformed with the support of international organizations, in the line of the aforementioned contribution of the United Nations. Thus, in the African continent, for example, the African Union (AU) - preceded chronologically by the Organization of African Unity (OAU) - has endeavoured, along the years, to secure the achievement of the right to self-determination of peoples, including in respect of the Archipelago of Chagos.

52. The former OAU as well as its successor, the AU, have both categorically condemned the military basis established in the island Diego Garcia (in Chagos). Thus, in its resolution AHG/Res. 99(XVII) of 04.07.1980, the OAU stated that Diego Garcia “has always been an integral part of Mauritius” (para. 3), and “was not ceded to Britain for military purposes” (para. 4). Thus, - it added, - “the militarization of Diego Garcia is a threat to Africa, and to the Indian Ocean as a zone of peace” (para. 5). This being so, it demanded that “Diego Garcia be unconditionally returned to Mauritius and that its peaceful character be maintained” (para. 6).

53. Subsequently, the AU, in its decision CM/Dec. 26(LXXIV) of 08.07.2001, reiterated its

The AU then called upon “the international community to support the legitimate claim of Mauritius”, so as “to secure the return of the Chagos Archipelago to its jurisdiction” (para. 3).

54. More recently, the AU, in its resolution 1(XXV), of 15.06.2015, began by reasserting, in its preamble, that the “Chagos Archipelago, including Diego Garcia, forms an integral part of the territory” of Mauritius (para. 2); it then deplored

55. After recalling its own previous resolutions and declarations (in the period 2011-2013) on distinct legal mattersFootnote ²⁵ (para. 4), it supported, still in its preamble, the endeavours of Mauritius to exercise effectively “its sovereignty over the Chagos Archipelago, including Diego Garcia, in keeping with the principles of international law” (para. 8). Then, in its operative part, AU resolution 1(XXV), of 15.06.2015, it reiterated its support to Mauritius “in its legitimate pursuit to effectively exercise its sovereignty over the Chagos Archipelago, including Diego Garcia” (para. 3), as well as its full support to “the early and unconditional return of the Chagos Archipelago, including Diego Garcia, to the effective control” of Mauritius (para. 6). To this effect, it renewed its

V. The Right to Self-Determination in the Two U.N. Covenants on Human Rights of 1966

VI. The Acknowledgment of the Right to Self-Determination in the Case-Law of the International Court of Justice

69. The foundations of the consolidation of the right to self-determination came to be found not only at normative and doctrinal levels, as they encompassed international case-law as well. Thus, the ICJ, from 1971 onwards, gradually moved from the principle to the right of self-determination, that it clearly acknowledged and upheld, having thus much contributed to the recognition of its importance.

70. In its Advisory Opinion on Namibia (of 21.06.1971), the ICJ recognized that “the subsequent development of international law in regard to non-self-governing territories”, as enshrined in the U.N. Charter, “made the principle of self-determination applicable to all of them”. It further stated that another “important stage in this development” was the U.N. Declaration on the Granting of Independence to Colonial Countries and Peoples (in General Assembly resolution 1514(XV) of 14.12.1960), embracing all peoples and territories which had not yet attained independence (para. 52).

71. There was thus an expansion of the corpus juris gentium in the present domain. Moreover, in the same Advisory Opinion, the ICJ observed that it had to “take into consideration the changes which have occurred in the supervening half-century”, and its interpretation could not “remain unaffected by the subsequent development of law, through the Charter of the United Nations and by way of customary law”, and it added that

72. Four years later, in its Advisory Opinion on Western Sahara (16.10.1975), the ICJ reiterated its statement regarding the development of the right to self-determination of peoples and the importance of the U.N. Charter and the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, and added that the provisions of this Declaration emphasized that

73. Two decades later, in its Judgment on the East Timor case (1995), the ICJ recognized the erga omnes nature of “the right of peoples to self-determination”, as evolved from the U.N. Charter and its practice, in line with “one of the essential principles of contemporary international law” (para. 29). In the following decade, in its Advisory Opinion on the Construction of a Wall (2004), the ICJ had the occasion to reiterate that the developments of international law made the principle of self-determination applicable to all non-self-governing territories and that this right was “today a right erga omnes” (para. 88).

74. In this same Advisory Opinion, the ICJ further recalled the terms of General Assembly resolution 2625(XXV) of 1970, according to which

75. Subsequently, in its Advisory Opinion on the Declaration of Independence of Kosovo (of 22.07.2010), the ICJ stated that

76. In my Separate Opinion appended to the ICJ's aforementioned Advisory Opinion on the Declaration of Independence of Kosovo (of 22.07.2010), I addressed the people-centered outlook in contemporary international law (paras. 169-172), and its concern with the conditions of living of people (paras. 65-66). This was a manifestation of the overcoming of the inter-State paradigm in international law (paras. 182-188). And I added that

VII. The Acknowledgement of the Right to Self-Determination by the II U.N. World Conference on Human Rights (Vienna, 1993)

77. Furthermore, in my same Separate Opinion appended to the ICJ's Advisory Opinion on the Declaration of Independence of Kosovo (2010), I moreover recalled that, at the outcome of the historical II World Conference on Human Rights (in the Drafting Committee of which I worked, and of which I keep vivid memories)Footnote ³², the final document it adopted, the 1993 Vienna Declaration and Programme of Action, reasserted the right of all peoples to self-determination. Then, taking into account “the particular situation of peoples under colonial or other forms of alien domination or foreign occupation”, it further stated (para. 2) inter alia that

78. I then added, in my same Separate Opinion in the ICJ's Advisory Opinion on the Declaration of Independence of Kosovo (2010), that the final document of that memorable United Nations World Conference of 1993 “went further than the 1970 Declaration of Principles, in proscribing discrimination ‘of any kind’”, thus enlarging in scope the “entitlement to self-determination” (para. 181). This wider framework should not pass unnoticed. I then added that

79. By the turn of the century, the U.N. Millenium Declaration, contained in General Assembly resolution 55/2, of 08.09.2000, asserted “the right to self-determination of peoples which remain under colonial domination and foreign occupation” (para. 4.), as well as its commitment “to making the right to development a reality for everyone and to freeing the entire human race from want” (para. 11). The 2000 Declaration was particularly attentive to protecting the vulnerable ones (paras. 2, 17 and 26).

80. Half a decade later, the World Summit Outcome, contained in General Assembly resolution 60/1, of 16.09.2005, reasserted the right to self-determination of peoples (para. 5) and the need of respect for it (para. 77), again drawing particular attention to vulnerable people (paras. 55(c)(d) and 143). It recalled that “all human rights are universal, indivisible, interrelated, interdependent and mutually reinforcing” (para. 121). And it affirmed that “all States should act in accordance with the [1970] Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations” (para. 73).

81. One and a half decades after the II U.N. World Conference of Human Rights (1993), the U.N. Declaration on the Rights of Indigenous Peoples, enshrined into General Assembly resolution 61/295, of 13.09.2007, acknowledged that the U.N. Charter, the two U.N. Covenants on Human Rights, and the Vienna Declaration and Programme of Action (adopted at the II World Conference on Human Rights) affirmed

82. It added that “nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law” (17^th. preambular para.). In its operative part, the 2007 Declaration the indigenous peoples’ right to self-determination (Article 3) and its autonomous exercise (Article 4). In case of its breach, the Declaration stressed that indigenous peoples have the right to effective remedies and redressFootnote ³⁵.

83. Twenty-five years have gone by since the adoption of the 1993 Vienna Declaration and Programme of Action, - the same period between the I and II World Conferences on Human Rights (Tehran, 1968, and Vienna, 1993). Yet, regrettably there has been no initiative so far to convene a III World Conference of the kind, despite the world, currently torn by extreme violence, standing in great need of it. Lessons from the past are simply not learned. Despite this apparent indifference, the Declaration and Programme of Action of the II World Conference at least should not be forgotten.

84. As already pointed out, that final document confirmed the consolidation and enlarged scope of the right to self-determination, and, moreover, it underlined the importance of the right to development as a “universal and inalienable” human right to be “implemented and realized”, taking “the human person as the central subject of development” (paras. 10 and 72). The Vienna Declaration and Programme of Action was very attentive to persons belonging to vulnerable groups (para. 24), with a time dimension so as to meet the “needs of present and future generations” (para. 11).

85. Half a decade ago, when the II World Conference on Human Rights completed two decades, I proceeded to a reassessment of itFootnote ³⁶, the advances achieved and new challenges arisen. I pondered therein that the protection of the human being in any circumstances, against all manifestations of arbitrary power, corresponds to the new ethos of our times, reflected in the new jus gentium of our times, wherein the human persons and peoples occupy a central position. The corpus juris of the International Law of Human Rights came to be interpreted and applied bearing always in mind the pressing needs of protection of the victims (in particular those in situations of vulnerability or even defencelessness), fostering the historical process of humanization of international law (cf. supra).

86. Such corpus juris is a true law of protection (droit de protection) of the rights of human beings and peoples, and not of States, - a development which could hardly have been anticipated some decades ago. To this effect, it has developed its own canons, such as those of the realization of superior common values, of the human persons and peoples as subjects of rights (titulaires de droits) inherent to them, of the objective character of the obligations of protection, and of the collective guarantee of the safeguard of the rights to be protected. Hence the utmost importance of the right of access to justice lato sensu, with the new primacy of the raison d'humanité over the old raison d’État, in the framework of the new jus gentium of our times.

VIII. A question from the Bench to All Delegations of Participants in the Oral advisory Proceedings

87. In the course of the oral proceedings on the present matter before the ICJ of the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, I have deemed it fit, in the Court's public sitting of 05.09.2018, to put the following question to all Delegations of participants therein:

IX. The Answers from Delegations of Participants in the Oral Advisory Proceedings

X. The Fundamental Right to Self-Determination in the Domain of Jus Cogens.

XI. Criticism of the Insufficiencies in the ICJ'S Case-Law Relating to Jus Cogens.

151. As just seen, there has been special attention devoted, in the course of the present advisory proceedings, by participating Delegations, to jus cogens with its incidence on the fundamental right to self-determination (cf. part X, supra). Furthermore, I have already pointed out that the United Nations Charter, from the start, made express references to equal rights and self-determination of peoples (Articles 1(2) and 55) (part IV, supra), and that the United Nations became promptly committed to, and engaged in, the realization of the fundamental right to self-determination of peoples (part II, supra).

152. The evolution of the matter under the United Nations Charter led to the acknowledgment of the jus cogens character of that right: soon it became “overwhelmingly characterized as forming part of the peremptory norms of international law”, thus generating “effects erga omnes”Footnote ¹²⁷. Bearing this in mind, may I now proceed to a review of the presence of jus cogens in the case-law of the ICJ. In effect, there have been occasions when the ICJ expressly acknowledged, in rather brief terms, the concept of jus cogens (encompassing norms endowed with a peremptory character), as raised in the course of proceedings, but without providing explanations or elaborating on it.

153. One can find, e.g., brief references to jus cogens in its Judgments in the cases of North Sea Continental Shelf (of 20.02.1969, para. 72), Nicaragua versus United States (of 27.06.1986, para. 190), Arrest Warrant (of 14.02.2002, paras. 56 and 58), Jurisdictional Immunities of the State (of 03.02.2012, paras. 92-93 and 95-97), as well as in its Advisory Opinions of Threat or Use of Nuclear Weapons (of 08.07.1996, para. 83), and of Kosovo (of 22.07.2010, para. 81). The ICJ went further than that, in the case of the Obligation to Prosecute or Extradite, in stating, in its Judgment (of 20.07.2012), that “the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)” (para. 99).

154. In the case concerning Armed Activities on the Territory of the Congo (New Application, 2002) (D.R. Congo versus Rwanda, jurisdiction and admissibility, Judgment of 03.02.2006), the ICJ, in addressing the relationship between peremptory norms (of jus cogens) and the establishment of its own jurisdiction, observed that the fact that a dispute relates to compliance with a norm having the character of jus cogens, “which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute that jurisdiction is always based on the consent of the parties” (para. 64).

155. The ICJ reiterated its position in its subsequent Judgments in the two cases of the Application of the Convention against Genocide (in relation to Bosnia, of 26.02.2007, para. 161; and in relation to Croatia, of 03.02.2015, para. 87). In my own understanding, the determination of jus cogens has ineluctable legal consequences, largely overlookedFootnote ¹²⁸ by the ICJ in its case-law to date. In my understanding, the ICJ cannot at all keep on overlooking the legal consequences of jus cogens, obsessed with the consent of individual States to the exercise of its own jurisdiction (cf. part XVIII, infra, paras. 298-301).

156. In effect, I have been devoting special attention to the incidence of jus cogens with its legal consequences, e.g., in my lengthy Dissenting Opinion (paras. 318-320 and 536) in the case of the Application of the Convention against Genocide (Croatia versus Serbia, Judgment of 03.02.2015)Footnote ¹²⁹, wherein I warned that the 1948 Convention against Genocide is oriented to protection to groups of human beings in situation of vulnerability, and not to States, and ought to be thus interpreted and applied bearing in mind the pressing needs of protection of members of those groups, and not to susceptibilities of States (paras. 517-524 and 542)Footnote ¹³⁰.

157. Other examples may be referred to, e.g., my extensive three Dissenting Opinions in the three Judgments of the ICJ (of 05.10.2016) dismissing the cases of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands versus United Kindgom, India and Pakistan), wherein I sustained that the absolute prohibitions of jus cogens have come nowadays to encompass the threat or use of nuclear weapons, “for all the human suffering they entail: in the case of their use, a suffering without limits in space or in time, and extending to succeeding generations” (paras. 186-187).

158. Jus cogens thus goes beyond the law of treaties, - I added,- “extending itself to the law of the international responsibility of the State, and to the whole corpus juris of contemporary International Law, and reaching, ultimately, any juridical act” (para. 188). In this domain, there is, in my understanding need of a people-centred approach, with the raison d'humanité prevailing over the raison d’État, and attention being kept on “the devastating and catastrophic consequences of the use of nuclear weapons” (para. 321). Recta ratio (as cultivated in jusnaturalism), the universal juridical conscience, - I continued, - prevails over the “will” and the strategies of individual States, pointing to

159. In the path towards nuclear disarmament, - I proceeded, - “the peoples of the world cannot remain hostage of individual State consent” (para. 321). We are here before the absolute prohibitions of jus cogens, “of arbitrary deprivation of human life, of infliction of cruel, inhuman or degrading treatment, and of infliction of unnecessary suffering”, fostering the current historical process of humanization of international law (para. 321).

160. The positivist outlook unduly overlooks the opinio juris communis as to the illegality of all weapons of mass destruction, such as nuclear weapons, and the obligation of nuclear disarmament, under contemporary international law. I then concluded that the existence of nuclear weapons is “the contemporary tragedy of the nuclear age; today, more than ever, human beings need protection from themselves. Nuclear weapons have no ethics, and ethics cannot be separated from law, as taught by jusnaturalist thinking” (para. 322)Footnote ¹³¹.

161. I have considerably examined the matter of jus cogens, furthermore, in my Separate Opinion (paras. 212-217) appended to the Advisory Opinion on the Declaration of Independence of Kosovo (of 2010); in my two Dissenting Opinions (paras. 124-125 and 140-153; and paras. 117-129, 214-220, 225, 288-299 and 316, respectively) in the case of Jurisdictional Immunities of the State (Order of 2010; and Judgment of 2012); in my Dissenting Opinion (paras. 180 and 195) in the case of the Application of the U.N. Convention on the Elimination of All Forms of Racial Discrimination (CERD - Judgment of 2011); in my Separate Opinion (paras. 44-51, 82-94, 175 and 181) in the case of the Obligation to Prosecute or Extradite (Judgment of 2012); in my two Separate Opinions (para. 165; and para. 95) in the case of A.S. Diallo (Judgments of 2010 and 2012)Footnote ¹³².

162. In my two Separate Opinions in this case of A.S. Diallo, I addressed, at the merits stage (2010), the relationship of jus cogens with consular assistance and human rights (para. 165), and, at the reparations stage (2012), the relationship of jus cogens with the realization of justice itself (para. 95). It is not my intention to reiterate here, in the present Separate Opinion in the ICJ's Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, all that I have developed on the matter in my previous Individual Opinions in the case-law of the ICJ. I deem it sufficient to refer to them herein. Along one decade here in the ICJ, I have been dedicating considerable attention to the importance and the expansion of the material content of jus cogens in the contemporary law of nations, as recorded in my aforementioned successive Individual Opinions.

163. This being so, I feel obliged to express here my criticism that the case-law of the ICJ relating to the matter has appeared reluctant and far too slow; the ICJ could and should have developed much further its considerations as to the legal consequences of a breach of jus cogens, in particular when faced, - as it is now in the present Advisory Opinion, and in successive cases in recent years, - with situations of grave violations of the rights of the human person and of peoples.

164. This is an issue of the utmost importance, which has been brought to the attention of the Court already for a long time. For example, in the early seventies, in the course of the advisory proceedings of the ICJ in respect of Namibia (1970-1971), jus cogens was duly addressed by a couple of participating Delegations. On the occasion, while Hungary drew attention to the rights related to obligations erga omnes Footnote ¹³³, Pakistan referred to General Assembly resolution 2145(XXI) of 1966 as “the expression of the world community in respect of the most fundamental of all rights of a people, that is, the right of self-determination”, generally recognized as one of jus cogens, evidenced by its incorporation in Article 1(1) of the two U.N. Covenants on Human RightsFootnote ¹³⁴.

165. Subsequently, in the advisory proceedings of the ICJ in relation to Western Sahara (1975), likewise, Spain referred to the right of peoples to self-determination as a norm of jus cogens, in the sense of a peremptory norm of general international law recognized by the international community of States as a whole; Spain further characterized General Assembly resolution 1514(XV) of 1960 as the “Grande Charte de décolonisation”Footnote ¹³⁵.

166. For its part, Algeria also asserted the character of jus cogens of the right of peoples to self-determination; it added that jus cogens has become a “norme originaire” of contemporary international law, “d'où découle la construction de tout l’édifice de la communauté internationale de notre temps”, and that on the basis of the right of peoples to self-determination the international community “s'est en effet considérablement élargie et enrichie”Footnote ¹³⁶. Dwelling further upon that, Algeria stressed that it is the right to self-determination, “dénominateur commun englobant de ce fait la décolonisation, qui constitute la norme supérieure relevant du jus cogens”Footnote ¹³⁷.

167. As it can be seen, this issue has been brought to the ICJ's attention for a long time, almost half a century, and the Court could and should have developed much further its jurisprudential construction thereon. Moreover, breaches of jus cogens have been detected in expert writing in distinct contexts, for example, the acknowledgment that grave violations of the right to self-determination “amount to an international crime”Footnote ¹³⁸.

168. As to the present Advisory Opinion on Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, I find it most regrettable that the ICJ has not even mentioned the very important issue of the jus cogens character of the fundamental right to self-determination and its legal consequences, extensively dealt with by participating Delegations, in several of their written and oral submissions (in support of jus cogens) in the course of the present advisory proceedings, as I have already pointed out (cf. part X, supra).

169. The Court, for reasons which escape my comprehension, in face of such an important matter as that of the present request by the General Assembly of its Advisory Opinion, has avoided even mentioning jus cogens, limiting itself to refer in passim (in paragraph 180) to “respect for the right to self-determination” as “an obligation erga omnes”. This does not make much sense to me, as it is utterly incomplete. It appears as if the Court remains (in 2019) haunted by the Barcelona Traction ghost of 1970 (beholding only obligations erga omnes, without jus cogens), as well by the East Timor injustice (to its people) of 1995, resulting from its strictly inter-State outlook.

XII. Opinio Juris Communis and Jus Cogens: Conscience above the “Will”

170. Jus cogens is nowadays definitively related to the realization of justice itself. Other factual contexts can be referred to, as examined, e.g., in my recent studies of international adjudication of cases of massacresFootnote ¹³⁹. In such a difficult context, I have addressed, e.g., in my Dissenting Opinion in the case of Jurisdictional Immunities of the State (ICJ's Judgment of 2012), the breach of jus cogens in connection with the configuration of crimes of State, e.g., in cases of a criminal State policy (paras. 207-213), of large-scale human rights violations (paras. 214-217 and 231), and of impunity (paras. 294 and 305-306)Footnote ¹⁴⁰.

XIII. RIGHTS OF PEOPLES, BEYOND THE STRICT INTER-STATE OUTLOOK.

202. In the course of the present Separate Opinion, I have recalled, from the start (cf. part II, supra), that the prompt and long-standing United Nations’ acknowledgment of, and commitment to, the fundamental right to self-determination, were undertaken in the framework of the rights of peoples, in the light of the United Nations Charter itself, attentive to them. The United Nations, guided by its own Charter, has, since its earlier years, always supported and promoted the rights of peoples, acting beyond the traditional inter-State outlook.

203. There were historical antecedents to be taken into account, such as the minorities and mandates systems at the time of the League of NationsFootnote ¹⁸⁵, later followed by non-self-governing territories and the trusteeship system under the United Nations Charter. I just refer to them briefly here, as this is a point lying beyond the framework and scope of the present Separate Opinion.

204. May I add that, even before the current era of the ICJ, its predecessor, the Permanent Court of International Justice (PCIJ), issued Advisory Opinions on matters concerning “communities” (e.g., its Advisory Opinion on the Greco-Bulgarian “Communities”, 1930) as well as “minorities” (e.g., its Advisory Opinions on Access to German Minority Schools in Upper Silesia, 1931; on Treatment of Polish Nationals in Danzig, 1932; on Minority Schools in Albania, 1935)Footnote ¹⁸⁶.

205. Looking back in time, we find that the safeguard of the rights of peoples has thus its historical roots, preceding the United Nations. Nowadays, in the current era of the ICJ, a point to be underlined, in my perception, is that, in the course of the present advisory proceedings of the ICJ on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, there have been successive references to, and reliance upon, rights of peoples, in the submissions of participating Delegations.

206. Given the importance of the matter, may I retake it here, for additional considerations. In a key-note address I delivered in a ceremony held at the United Nations in Geneva, on 16.12.2009Footnote ¹⁸⁷, on the occasion of the retaking by the United Nations (by an initiative of Cuba) of the right of peoples’ to peace, I dwelt upon the matter, singling out, inter alia, the references to, and reliance upon, peoples’ rights in ICJ proceedings. In the early seventies, e.g., in the first Nuclear Tests cases (atmospheric testing, Australia and New Zealand versus France, 1973-1974), the right of peoples to live in peace was acknowledged and asserted before the ICJ.

207. The submissions of the parties, in the written and oral phases of the proceedings, were particularly significant, even more than the actual outcome of the cases. In its application instituting proceedings (of 09.05.1973), e.g., Australia contended that it purported to protect its people and the peoples of other nations, and their descendants, from the threat to life, health and well-being arising from potentially harmful radiation generated from radio-active fall-out generated by nuclear explosionsFootnote ¹⁸⁸. For its part, New Zealand went even further in its own application instituting proceedings (also of 09.05.1973)Footnote ¹⁸⁹, making clear that it was pleading on behalf not only of its own people, but also of the peoples of the Cook Islands, Niue and the Tokelau IslandsFootnote ¹⁹⁰.

208. In its memorial on jurisdiction and admissibility (of 29.10.1973), New Zealand further argued that “the atmospheric testing of nuclear weapons inevitably arouses the keenest sense of alarm and antagonism among the peoples and governments of the region in which the tests are carried out”Footnote ¹⁹¹. Moreover, in its request (of 14.05.1973) for the indication of provisional measures of protection, New Zealand recalled two precedents (in 1954 and 1961) of threats to peoples’ right to live in peaceFootnote ¹⁹². Thus, beyond the strict confines of the strictly inter-State contentieux before the ICJ, both New Zealand and Australia rightly looked beyond it, and vindicated rights of peoples to health, to well-being, to be free from anxiety and fear, in sum, to live in peace.

209. Two decades later, the matter was brought to the fore again, in the mid-nineties, in the second Nuclear Tests cases (underground testing, New Zealand versus France, 1995). Although this time only New Zealand was the applicant State (as from its request of 21.08.1995), five other States lodged with the ICJ applications for permission to interveneFootnote ¹⁹³: Australia, Solomon Islands, Micronesia, Samoa and Marshall Islands. Australia argued (on 23.08.1995) that the dispute between New Zealand versus France raised the issue of the observance of obligations erga omnes (paras. 18-20, 24-25 and 33-34).

210. On their part, Solomon Islands, Micronesia, Samoa and Marshall Islands, also underlining the need of fulfilment of obligations erga omnes (paras. 20 and 25), contended (on 24.08.1995) that, as member States of the South Pacific Forum, they have consistently opposed activities “related to nuclear weapons and nuclear waste disposal in their Region, for example, by seeking to establish and guarantee the status of the Region as a nuclear-free zone” (para. 5). And they added that

211. Other pertinent examples of resort to peoples’ rights before the ICJ could here be briefly recalled. In its Judgment of 22.12.1986 in the case of the Frontier Dispute (Burkina Faso versus Mali), the ICJ Chamber, in drawing the frontier line as requested by the parties (para. 148), took note of their contentions, inter alia, concerning the modus vivendi of the people living in four villages in the region (farming, land cultivation, pasturage, fisheries)Footnote ¹⁹⁴.

212. Shortly afterwards, in the course of the proceedings (of 1988-1990) in the case of Phosphate Lands in Nauru (Nauru versus Australia), e.g., the ICJ took cognizance of successive contentions invoking peoples’ rightsFootnote ¹⁹⁵ (e.g., over their natural resourcesFootnote ¹⁹⁶), and their modus vivendi Footnote ¹⁹⁷. Furthermore, earlier on, in its Advisory Opinion of 16.10.1975 on Western Sahara, the ICJ itself had utilized the expression “right of peoples” (para. 55), in the framework of the application of the “principle of self-determination” (paras. 55 and 59).

213. Two decades later, in the case concerning East Timor (Portugal versus Australia, Judgment of 30.06.1995), although the ICJ found that it had no jurisdiction to adjudicate upon the dispute (a decision much discussed in expert writing), yet it acknowledged the rights of peoples to self-determination (para. 29) and to permanent sovereignty over their natural resources (para. 33), and added that “the principle of self-determination of peoples” has been recognized by the U.N. Charter and in its own jurisprudence as “one of the essential principles of contemporary international law” (para. 29).

214. In the East Timor case, however, the ICJ did not extract the legal consequences therefrom. Attentive to the inter-State scheme of the contentieux before itself, it took into account the alleged interests of a third State (which had not even accepted its own jurisdiction), inconsistently taking them for granted (by means of the application of the so-called Monetary Gold “principle”), to the detriment of the people of East Timor. The lesson to be extracted therefrom is, in my understanding, that the outdated strictly inter-State mechanism of the contentieux before the ICJ cannot and does not amount to a restriction to the reasoning of the Court.

215. When the matter lodged with it concerns the rights of peoples, as in the aforementioned examples, the ICJ reasoning is to transcend ineluctably the strictly inter-State outlook. Otherwise justice cannot be done. The nature of the matters lodged with the ICJ is to lead to its proper reasoning. I have had the occasion to dwell upon the issue in my successive Dissenting Opinions in the case of the Application of the Convention against Genocide (2015), and in the three cases of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (2016).

216. Thus, in the case of the Application of the Convention against Genocide (Croatia versus Serbia, Judgment of 03.02.2015), I further warned that

217. Likewise, in my three recent Dissenting Opinions appended to the three Judgments of the ICJ (of 05.10.2016) in the cases of Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, I deemed it fit to warn, inter alia, that the submissions made, and elements put forward by the contending parties in the course of the proceedings before the ICJ, “have gone beyond the inter-State outlook. In my perception, there is great need, in the present domain, to keep on looking beyond States, so as to behold peoples’ and humankind's quest for survival in our times” (para. 295).

218. The present Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, which the ICJ has just adopted today, is yet another occasion marking the presence of the rights of peoples, in particular, the right of peoples to self-determination. This time, distinctly from previous occasions, the ICJ has taken due account of it, even if additional points could have been made, as I have pointed out in the present Separate Opinion. I shall next address another one of these latter.

XIV. Conditions of Living: the longstanding Tragedy of Imposed Human Suffering

219. In my own conception, the right to life - of forcefully displaced Chagossians and their descendants - comprises the right to dignified conditions of living. In the course of the present advisory proceedings before the ICJ, the following statement was made, in the public hearing of 03.09.2018, by the representative of the Chagossian community (Ms. M. Liseby Elysé):

220. Bearing this testimony in mind, the lessons of F. Vitoria and B. de Las Casas (supra), after five centuries, remain topical in our times; they both addressed sources of violence against people, which go much further back in time. There are several illustrations to this effect, many centuries earlier, in the ancient Greek tragedies of Aeschylus, Sophocles and Euripides. To recall but one example, may I refer to the sadness expressed by Euripides’ Hecuba (circa 423 b.C.):

221. Likewise, in Euripides’ Suppliant Women (also circa 423 b.C.), there are expressions of the need “to learn the truth from human suffering”Footnote ²⁰²; after all, those who generate human suffering do not recognize their duty towards the othersFootnote ²⁰³. An end should be put to that, ceasing struggles and living in peace with each other (951), as, after all,

222. Despite the awareness in such warning, the occurrence of human tragedy persisted. In Euripides's Trojan Women (415 b.C.), the lamentations of distinct characters seem remindful, some 25 centuries ago, of those of the expelled Chagossians in the present matter before the ICJ; one of them asks:

Another character says: “She will not go onto the same ship as us. (…) And once she has reached Argos, the wretched woman will meet the wretched death”Footnote ²⁰⁶. And the chorus complains:

223. Imposed human suffering is perennial, as much as the presence of good and evil are, everywhere. Tragedy thus kept on being studied along so many centuries; it was found to disclose, as paradigm, in addition to its inevitability, human insecurity and blindness, and the need to face truth; attention was to be turned to human fate, given the imperfection of human justiceFootnote ²⁰⁸. Euripides was particularly sensitive to human suffering and guilt, given the inhumanity with which many people treat each other, and the need for all to work together towards the common good.

224. Along the centuries, there have fortunately been, from time to time, a few lucid thinkers who were attentive to this need. For example, in the mid-XXth. century, the historian Marc Bloch, killed during the II world war (in 1944) by the nazis, left for posterity his book Apologie pour l'histoire, ou Métier d'historien, published only posthumously (in 1949); it contains a reflection worth recalling here briefly.

225. M. Bloch was, for example, critical of the positivist approach to history, having stressed the need to go beyond the simple observation of facts, in search of truth and values and the lessons from the past, given the persistence of human crueltyFootnote ²⁰⁹. This also applied to the history of lawFootnote ²¹⁰. Having experienced and kept in mind the profound sufferings during the two world wars in the XXth. century, in his Apology of History he further stressed the need to find truth and justice together, thus briefly referring to the contemporaneity of Aeschylus's Oresteia as a wholeFootnote ²¹¹.

226. In this respect, may I here add that, in Aeschylus's Oresteia, - composed of the trilogy of tragedies Agamennon, The Libation Bearers, and Eumenides, - first performed in 458 b.C. (two years before Aeschylus's death), - in face of human cruelty the contrast is shown between revenge and justice. Hope finds expression in the transition from personal revenge to institutionalized litigation and trial; towards the end of Eumenides, it is made clear that, instead of vengeance or retaliation, resort is to be made to the jury trial in order to render justice, and the chorus states:

227. Along the centuries, sufferings inflicted by human cruelty have persisted, but human conscience has awakened for the need to bring justice to the victims. The sufferings imposed by colonialism throughout the last centuries continue nowadays to be studiedFootnote ²¹³, with growing attention, for the sake of the preservation of memory in the search of justice. In his testimony of decolonization, Frantz Fanon pointed out in 1958 that, ever since the Conference of Bandung three years earlier (cf. supra), the emancipated Afro-Asian countries, moved by solidarity, were seeking to enhance the “libération” of human beings, giving rise to “un nouvel humanisme”Footnote ²¹⁴, thus contributing to “le processus d'humanisation du monde”Footnote ²¹⁵.

228. The statement which I have reproduced above (para. 219), made by the representative of the Chagossian community (Ms. M. Liseby Elysé) during the present ICJ's advisory proceedings on Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, brings to the fore, in my perception, the concern of ancient Greek tragedies with the painful human condition aggravated by violence and the imposition of human suffering, to the detriment of the vulnerable victims.

229. Already at their time, there was acknowledgment of the links between the living and their dead (e.g., in Sophocles's Antigone, of circa 442 b.C.), the right of all to be buried together, in the same place, - as here claimed by the forcefully displaced Chagossians. To ancient Greek tragedians, as death is inevitable, it is important to keep in mind the human condition, particularly in face of adversity. The perennial lesson remains, of the imperative of respect for the equal dignity of all human beings.

230. Along the years, in my Individual Opinions, both in the ICJ and earlier on in the IACtHR, I have been not seldom referring to ancient Greek tragedies, as I again do in the present Separate Opinion, in face of the urgent need to put a definitive end to colonialism unduly and unjustly prolonged in time. The United Nations, as I have pointed out (cf. parts II-III, supra), since its earlier years in the fifties, engaged itself in support of the prevalence of the fundamental right of peoples to self-determination, conscious of the need to put an end to the cruelty and evil of colonialism, the persistence of which amounts, in my understanding, to a continuing breach of jus cogens nowadays (cf. supra).

231. In our times, as to the matter here presented to the ICJ by the U.N. General Assembly's request for the present Advisory Opinion, the Chagossians expelled from their homeland were abandoned in other islands in extreme poverty, in slums and empty prisons, - in chronic poverty with social marginalization or exclusion which led even to suicidesFootnote ²¹⁶. In my aforementioned Dissenting Opinion in the case of the Application of the CERD Convention (2011), after upholding that the fundamental principle of equality and non-discrimination belongs to the realm of jus cogens Footnote ²¹⁷, I sustained that

XV. Opinio Juris Communis in U.N. General Assembly Resolutions

232. This is a key point, likely to remain in mind of the U.N. General Assembly, under the relevant provisions of the U.N. Charter, as from today's delivery by the ICJ of its present Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. After all, as already surveyed in the present Separate Opinion, successive U.N. General Assembly resolutions have been giving a remarkable contribution to the universal acknowledgment and consolidation of the right of peoples to self-determination (cf. supra).

233. In historical perspective, such contribution has been regarded as a most significant one in the history of the United Nations, bringing justice to peoples in the light of principles and in pursuance of universalismFootnote ²¹⁸. The two respective Declarations contained in General Assembly resolutions 1514(XV) of 1960 and 2625(XXV) of 1970 are of utmost significanceFootnote ²¹⁹, for their contribution to the progressive development of international law.

234. Other resolutions are also significant: for example, it has not passed unnoticed that General Assembly resolution 2621(XXV), also of 1970, characterized ongoing colonialism as a crime (in breach of the 1960 Declaration the Granting of Independence to Colonial Countries and Peoples, and of the principles of international law); and the subsequent 1974 U.N. Charter of Economic Rights and Duties of States determined that persisting colonialism called for a duty of restitution and full compensation, and the duty of liberating a territory occupied by force (Article 16)Footnote ²²⁰ (cf. part XVI, infra).

235. In the course of the present advisory proceedings of the ICJ, several participating Delegations have stressed the incompatibility with successive U.N. General Assembly's resolutions (1514(XV), 2066(XX), 2232(XXI) and 2357(XXII)) of the detachment of Chagos from Mauritius and the forced displacement of the Chagossians in the period 1967-1973. This has been underlined by Indiain its Written Statement (paras. 36-43 and 53), which has called for a rectification by the United Kingdom of such continuing situation not in accordance with international law (paras. 62 and 65).

236. Likewise, Cuba has stated, in its Written Statement, that such situation was in breach of the aforementioned U.N. General Assembly's resolutions, and has invoked jus cogens in support of compliance with these latter (pp. 1-2). Brazil’s Written Statement has recalled the relevance of the warning of U.N. General Assembly's resolution 2066(XX) against the detachment of Chagos from Mauritius (para. 22). In the same line of reasoning, Guatemala, in its Written Statement, has contended that the present situation of the Chagos Archipelago remained a continuing wrongful act, which must be brought to an end by the United Kingdom, in order to complete the decolonization of Mauritius (para. 36).

237. For its part, China has drawn attention, in its Written Statement, to the importance of the function of the U.N. General Assembly revealed by its several resolutions on the decolonization of Mauritius; it circumstances so required, it has added, the General Assembly may seek guidance from the ICJ on decolonization issues (paras. 5-6, 9-11 and 16-17). After reiterating the importance of self-determination of peoples as affirmed in General Assembly resolution 1514(XV) and subsequent resolutions (such as General Assembly resolution 2625(XXV) of 24.10.1970 (paras. 7-8 and 13), it has also drawn attention to its support to the historical process of decolonization advanced by a large number of countries of Asia, Africa and Latin America (paras. 6, 12-13 and 18-19).

238. The African Union’s Comment has identified, in the present General Assembly's request for an ICJ Advisory Opinion, the ascertainment of the administering authority's violation of territorial integrity, affecting the exercise of the right to self-determination (para. 51). Furthermore, in its Statement, the African Union has referred, first, to General Assembly resolutions, - like resolution 2066(XX), - holding the separation of the Chagos Archipelago to be a breach of international law (paras. 158 and 160-161); and, secondly, to resolutions of the former Organization of African Unity (OAU)Footnote ²²¹, expressing concern at the unilateral detachment of the Chagos Archipelago from Mauritius, and the situation of the island Diego Garcia (paras. 176-177).

239. Likewise, Mauritius has invoked, in its Statement, the relevant resolutions of the General Assembly (2066(XX), 2232(XXI) and 2357(XXII)) and the resolutions and decisions of the old OAU and the African Union (AU) to put an end to the unlawful occupation of the Chagos Archipelago, returning it to Mauritius, and to complete the process of decolonization thereon (paras. 2.41, 4.23-4.44 and 7.3). In this context, Liechtenstein’s Written Statement has emphasized the role of the U.N. General Assembly in overseeing decolonization (paras. 16-17).

240. In its Written Statement, South Africa has addressed the human rights effects of the violation of territorial integrity at issue. South Africa has held that it considered, - like the ECtHR's Judgment (of 10.05.2001) in the case Cyprus versus Turkey, - that forced displacement of persons constitutes a continuing violation of the International Law of Human Rights (paras. 80-84). There have been other statements to the same effect.

241. For example, Cyprus, for its part, in its Written Statement, has addressed the direct concern and role of the U.N. General Assembly in the decolonization process at issue, the jus cogens character of the right to self-determination, and the erga omnes nature of the obligations relating to self-determination (paras. 26-27). And Namibia has added, in its Written Statement, that the “firmly established” right to self-determination (including in the work of the United Nations on decolonization) requires the “free and genuine consent” of the population concerned, expressed through referenda or plebiscites, so as to determine the future of the country (p. 3).

XVI. The Duty to Provide Reparations for Breaches of the Right of Peoples to Self-Determination

XVII. The Vindication of the Rights of Peoples, with Reparations, and the Mission of International Tribunals

264. Another point which should not here pass unnoticed is that, nowadays, there is vindication of, besides rights of individuals and groups, also of rights of peoples, encompassing reparations. This brings to the fore the mission of contemporary international tribunals in this respect. In the course of the present advisory proceedings on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, references have been made by some of the participating Delegations to illustrative decisions of international tribunals.

265. In this connection, may I recall that the 1981 African Charter on Human and Peoples’ Rights expressly dwells upon the rights of peoples. As from its preamble, it refers to the consciousness of the duty of undertaking “to eliminate” colonialism and neo-colonialism, and “to dismantle aggressive foreign military bases” (para. 9). After asserting the equality of peoples (Article 19), it affirms that all peoples “have the unquestionable and inalienable right to self-determination” (Article 20(1)). Moreover, the Charter adds that all peoples are entitled to dispose of their natural resources (Article 21(1)), and, in “case of spoliation, the dispossessed people” has the right to recovery of its property and to “an adequate compensation” (Article 21(2))Footnote ²⁵². The Charter also asserts the States’ right to development (Article 22(2)).

266. This being so, it is understandable, and reassuring, that the issue started being addressed under the African Charter even before the era of the African Court of Human and Peoples’ RightsFootnote ²⁵³, also by its predecessor, the older African Commission on Human and Peoples’ Rights (set up in 1987). The issue has nowadays been considered by both the Commission and the Court, in the two relevant cases of the Endorois and the Ogiek communities (both concerning Kenya).

267. The landmark Endorois case, originally filed with the African Commission in 2003, was decided by it on 25.11.2009Footnote ²⁵⁴. The Commission declared that the expulsion of the Endorois indigenous community from their land in Kenya was unlawful, having violated some rights protected under the African CharterFootnote ²⁵⁵. Accordingly, in its recommendations, the Commission awarded reparations to the Endorois people for their forced eviction from their ancestral land, and for all the loss suffered (para. 298, and dispositif n. 1).

268. Having considered the situation of vulnerability of the victims, the reparations envisaged by the Commission comprised restitution of traditional land to the Endorois people, and compensation for the harm they suffered during their forced displacement. Furthermore, the Commission's decision referred to the interrelationship, under the African Charter, between civil and political rights, and economic, social and cultural rights, which cannot be dissociated from each other (para. 242). For the first time, a decision of the Commission addressed the right to development as well (para. 277).

269. Still in its decision in the Endorois case (merits), the African Commission, in order to reach its recommendations, examined carefully the relevant international jurisprudence on the matter, in particular and extensively that of the IACtHR (paras. 159-162, 190, 197-198, 205, 258-266, 284-285, 287 and 289)Footnote ²⁵⁶. Its award of reparations in the Endorois case was received with attention and good will, and its repercussions were promptly acknowledged in expert writingFootnote ²⁵⁷.

270. Subsequently, in 2012, the African Commision referred the other case, concerning the Ogiek community, to the African Court, which rendered its Judgment on 26.05.2017. The Court likewise found that the forced eviction of the Ogiek people from their ancestral lands in Kenya violated their rights to land (para. 131), in addition to some other rights protected under the African CharterFootnote ²⁵⁸. The Court then ordered that all appropriate measures should be taken within a reasonable time to provide distinct forms of reparations to the forcibly displaced Ogiek people: a separate judgment has thus been foreseen to that effect (paras. 222-223 and 227)Footnote ²⁵⁹. The matter remains currently with the African Court, expected to rule soon on the issue of reparations in the Ogiek case. The Judgment of 2017 of the African Court has likewise already had its first repercussionsFootnote ²⁶⁰.

271. References can also be made here to other regional (European and Inter-American) systems of international protection of human rights. As to the ECtHR, I have already indicated (part XV, supra), e.g., that, in the course of the present ICJ's advisory proceedings on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, South Africa referred, in its Written Statement, to the Judgment (of 10.05.2001) of the ECtHR in the case of Cyprus versus Turkey, concerning forced displacement of Greek-Cypriot nationals (para. 82); South Africa added that, as to the continuing forced displacement of Chagossians by the United Kingdom in the matter of the present ICJ's Advisory Opinion, it constituted a “continuing injury” calling for reparations (para. 84).

272. In effect, the ECtHR provided reparations in the aforementioned case of Cyprus versus Turkey, in its subsequent Judgment of 12.05.2014, - a decision which shows the relevance of that cas d'espèce, invoked by South Africa before the ICJ. Yet, the same cannot be said in respect of another decision (of 11.12.2012), of a Chamber the ECtHR, namely, the one it rendered in the case of Chagos Islanders versus United Kingdom, - briefly referred to by the ICJ in the present Advisory Opinion (para. 128). That decision, dismissive of the Chagossians’ claim as inadmissible, was unfortunate, as, apart from 471 of them, most of the Chagossians had received no reparation at all.

273. Moreover, in unduly requiring the large majority of the Chagossians then to exhaust local remedies, it left them without protection. In further holding that new generations of Chagossians, not born there (in Chagos), could not claim to be “victims” of expulsions, the ECtHR/4th. Chamber further limited their ability to seek redress in the future, inconsistently with the European Convention on Human Rights and with general principles of international law. An unknown “waiver” of the kind does further harm to the forcibly expelled Chagossians as well as to their victimized descendants.

274. In my understanding, the harm suffered by the originally expelled Chagossians extends to their descendants, to the new generations (even if regarded as “indirect” victims). May I add that the IACtHR has adopted a position quite distinct from that of the ECtHR/4^th. Chamber in the Chagos Islanders case, and a far more advanced one. In my book of memories of the IACtHR, I have dedicated a whole chapter (XIX) of it to the projection of human suffering of victims in timeFootnote ²⁶¹.

275. Not surprisingly, Chagossians have much resented the ECtHR Chamber's decision in the case of Chagos Islanders, which, in their perception, has endorsed the “colonial mentality”, in holding that the fact that only a part of the forcibly expelled persons received some compensation at domestic law level, in its view, unduly preempted the Chagossians, in their great majority, from lodging their claim with the ECtHRFootnote ²⁶². Furthermore, such a decision of the ECtHR/4th. Chamber of 11.12.2012, in the case of Chagos Islanders, briefly referred to by the ICJ in the present Advisory Opinion (para. 128), - may I add, - is not in conformity with the jurisprudence constante of the ECtHR itself on the matter.

276. Moreover, the ECtHR/4^th. Chamber, in dismissing the claims of the petitioners, stated that they had already been “settled” in domestic courts “definitively” (para. 83). At the same time that it decided to do nothing for the petitioners, it at least acknowledged that

277. This having been so, the petitioners deserved to have been treated by the ECtHR/4^th. Chamber in full accordance with the European Convention, as their claims had not at all been settled in domestic courts, and the great majority of them had received no compensation at all; moreover, along all this prolonged time, they and their descendants have been seeking justice. This is a situation to be kept in mind, in the United Nations search for the realization of justice, reflected, inter alia, in the already examined labour of the HRC (cf. part V, supra).

278. As to the IACtHR, - in another regional system of protection of human rights, - its contribution has been substantial in providing reparations for breaches of peoples’ rights, - like in its Judgments in the cases, inter alia, of Mayagna Awas Tingni Community versus Nicaragua (of 31.08.2001), of Indigenous Community Yakye Axa versus Paraguay (of 17.06.2005), of Moiwana Community versus Suriname(of 15.06.2005), of Indigenous Community Sawhoyamaxa versus Paraguay (of 29.03.2006).

279. As I have analysed this issue elsewhereFootnote ²⁶³, suffice if here, in the present Separate Opinion, to single out briefly a couple of those cases, which in fact concerned the peoples’ fundamental right to life lato sensu, comprising their cultural identity. To all the IACtHR's Judgments on such cases I appended my Separate Opinions, focusing on these points. Those Judgments have had a direct bearing on the safeguard of the rights of peoples, their cultural identity and their very survival.

280. Thus, shortly after the aforementioned Judgment of 2005 (merits and reparations) in the case of the Indigenous Community Yakye Axa, the IACtHR issued its Interpretation of Judgment of (06.02.2006); I appended likewise my Separate Opinion thereto, wherein I warned that:

281. This case of the Yakye Axa Community (2005-2006), like the case of the Indigenous Community Sawhoyamaxa (2006), pertained both to the forced displacement of the members of two local communities out of their lands (as a result of State-sponsored commercialization of such lands), and their survival at the border of a road in conditions of extreme poverty. In the latter case of the Indigenous Community Sawhoyamaxa (2006), in my Separate Opinion I deemed it fit to ponder:

282. Moreover, in the same Separate Opinion in the case of the Sawhoyamaxa Community, I further stressed the “close and ineluctable relationship” between the right to life lato sensu and cultural identity (as one of its components). In so far as members of indigenous communities are concerned, - I added, - “cultural identity is closely linked to their ancestral lands. If they are deprived of these latter, as a result of their forced displacement, their cultural identity is seriously affected, and so is, ultimately, their very right to life lato sensu, that is, the right to life of each one and of all the members of each community” (para. 28). When this occurs, they are driven into a situation of “great vulnerability”, of social marginalization and abandonment, as in the cas d'espèce (para. 29).

283. On yet another occasion in the aforementioned case of the Moiwana Community (2005), the IACtHR addressed the massacre of the N'djukas of the Moiwana village in Suriname and the drama of the forced displacement of the survivors. The Court duly valued the relationship of the N'djukas in Moiwana with their traditional land, having warned that “larger territorial land rights are vested in the entire people, according to N'djuka custom; community members consider such rights to exist in perpetuity and to be unalienable” (para. 86(6)). The Court's Judgment ordered a series of measures of reparationsFootnote ²⁶⁴, including measures to foster the voluntary return of the displaced persons to their original lands and communities, in Suriname, respectivelyFootnote ²⁶⁵.

284. In my extensive Separate Opinion (paras. 1-93), I recalled that the surviving members of the Moiwana Community had complained, in the course of the proceedings (public hearing of 09.09.2004) before the IACtHR, of the destruction (in 1986) of their “the cultural tradition” (para. 80)Footnote ²⁶⁶. There was, thus, in the cas d'espèce, beyond moral damage, - I added, - the configuration of a true spiritual damage (paras. 71-81). And, even beyond the right to a project of life, I dared to identify and attempted to conceptualize what I termed the right to a project of after-life (paras. 67-70)Footnote ²⁶⁷. In fact, the expert evidence produced before the IACtHR referred expressly to “spiritually-caused illnesses”Footnote ²⁶⁸. I then sustained, in my Separate Opinion, on this particular point, that

285. There are, thus, as it can be seen, elements in international jurisprudence in support of the vindication of the rights of peoples, accompanied by the provision of due reparations. In my perception, there was no reason for the ICJ, in the present Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, not to have taken into due account this significant issue of the vindication of the rights of peoples with due reparations, in pursuance of the mission of contemporary international tribunals.

286. After all, as I have already pointed out in the present Separate Opinion (cf. part XVI, supra), the duty to provide reparations for breaches of the right of peoples to self-determination has been addressed by some of the participating Delegations in the course of the present advisory proceedings. This should have been taken expressly into account by the Court in the present Advisory Opinion, in conformity with general principles of international law.

287. In any case, - as I have also already indicated (para. 259, supra), - the ICJ itself has correctly found (para. 177) that the United Kingdom's “continued administration” of the Chagos Archipelago “constitutes a wrongful act entailing the international responsibility of that State”. The ICJ has also rightly found (para. 181), as to “the resettlement on the Chagos Archipelago of Mauritian nationals, including those of Chagossian origin”, that “this is an issue relating to the protection of the human rights of those concerned, which should be addressed by the General Assembly during the completion of the decolonization of Mauritius”.

XVIII. The Vindication of the Rights of Individuals and of Peoples and the Important Role of General Principles of Law in the Realization of Justice

288. This brings me to my last line of reflections. Fundamental principles are, in effect, the foundations of the realization of justice itself, and jusnaturalist thinking has always stressed their importance. The jus necessarium is thus conformed by laws which are just, emanating from recta ratio. General principles of law, grasped by human conscience along the centuries, are thus of the utmost relevance in the interpretation, application, and progressive development of international lawFootnote ²⁷⁰.

289. The recognition of the “general principles of law”, and their insertion into the indication of “formal” sources of international law found in Article 38 of the Statute of the Hague Court (PCIJ/ICJ), are of the utmost relevance, and require greater attention on the part of contemporary legal thinking. After all, they inform and conform the norms of international law. The aforementioned general principles of law have always marked presence in the search for the realization of justice, wherein basic considerations of humanity have a role of the utmost importance.

290. The basic posture of an international tribunal can only be principiste, without making undue concessions to State voluntarism. Legal positivism has always attempted, in vain, to minimize the role of general principles of law, but the truth is that, without those principles, there is no legal system at all. Those principles give expression to the idea of an objective justice, paving the way to the application of the universal international law, the new jus gentium of our times.

291. Those principles assume a great importance, in face of the growing contemporary tragedy of forced displaced persons, or undocumented migrants, in situations of utmost vulnerability, in distinct parts of the worldFootnote ²⁷¹. Such continuing and growing human tragedy shows that lessons from the past seem to be largely forgotten. This reinforces the relevance of fundamental principles and values, already guiding the action of the United Nations - in particular its General Assembly, as shown in the present Separate Opinion, - as well as international jurisprudence (mainly of the IACtHR) on the matterFootnote ²⁷².

292. In effect, I have had the occasion to ponder, e.g., in my Concurring Opinion in the ground-breaking IACtHR's Advisory Opinion n. 18 (of 17.09.2003) on the Juridical Condition and Rights of Undocumented Migrants, that

293. In the ICJ likewise, I have been sustaining the same position. For example, in my lengthy Separate Opinion in the ICJ's earlier Advisory Opinion (of 22.07.2010) on the Declaration of Independence of Kosovo, I singled out, inter alia, the relevance of the principles of international law in the framework of the Law of the United Nations, and in relation with the human ends of the State (paras. 177-211), leading also to the overcoming of the strictly inter-State paradigm in contemporary international law. I do so again, in the present Separate Opinion in the ICJ's new Advisory Opinion of today, 25.02.2019, on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.

294. The addition, in Article 38(1)(c) of the PCIJ/ICJ Statute, to general principles of law, of the qualification “recognized by civilized nations”, was, in my perception, distracted, done without reflection and without a minimal critical spirit, - keeping in mind that in 1920, in 1945, and nowadays, it was and remains impossible to determine which are the “civilized nations”. No country is to consider itself as essentially “civilized”; we can only identify the ones which behave in a “civilized” way for some time, and while they so behave.

295. In my view, the aforementioned qualification was added to the “general principles of law” in Article 38 of the Statute of the PCIJ in 1920 by mental lethargy, and was maintained in the Statute of the ICJ in 1945, wherein it remains until now (beginning of 2019), by mental inertia, and without a critical spirit. We ought to have some more courage and humility, much needed, in relation to our human condition, given the notorious human propensity to unlimited cruelty. From the ancient Greek tragedies to contemporary ones, human existence has always been surrounded by tragedy. Definitively, there do not exist nations or countries “civilized” per se, but only those which behave in a civilized way for some time, and while they so behaveFootnote ²⁷³.

296. It is important to keep this awareness, especially in an epoch like the present one, in which there is lesser and lesser dedication to reading and thinking, and to seeking to extract lessons from the past. In sum, it is to be kept always in mind that, in effect, there are no nations which are by their own nature civilized. There are, precisely, nations which for some time behave in a civilized way, while and to the extent they act in conformity with international law, and with due respect to the rights of the human person and of peoples. And the ultimate material source of international law, and of all Law, is, as I have been sustaining for yearsFootnote ²⁷⁴, the human conscience, the universal juridical conscience.

297. The ICJ cannot here keep on pursuing a strictly inter-State outlook, as it is used to: in the present General Assembly's request for its Advisory Opinion, we are in face of the relevant rights of peoples, - which the U.N. General Assembly has always been attentive and sensitive to, - on the foundation of the United Nations Charter itself. The focus here is on the importance of the rights of peoples, such as their right to self-determination, which count on the firm support of the great majority of participating Delegations.

298. In the present Advisory Opinion, the ICJ is attentive, - as it is used to, - to individual States’ “consent”, either in referring to arguments of participating Delegations (paras. 67, 83, 95, 106) or in presenting its own reasoning (paras. 85, 90, 172); the ICJ even refers to “consent” as being a “principle” (para. 90). For years, within this Court, I have been sustaining that “consent” is not - cannot be - a “principle”.

299. Thus, in my extensive Dissenting Opinion in the ICJ's Judgment (of 01.04.2011) in the case concerning the Application of the Convention on the Elimination of All Forms of Racial Discrimination (Georgia versus Russian Federation), - in which the Court found it had no jurisdiction to examine the application, - I pointed out the ICJ's “outdated voluntarist conception”, together with the attitude of “a considerable part of the legal profession” to keep on stressing “the overall importance of individual State consent, regrettably putting it well above the imperatives of the realization of justice at international level” (para. 44, and cf. para. 127).

300. After referring to the dissatisfaction of the more lucid international legal doctrine with States’ reliance on their own terms of consent, and its endeavours “to overcome the vicissitudes of the ‘will’ of States” (paras. 188-189), I stressed the importance of general principles of law and fundamental values, standing well above State consent (para. 194), such as the fundamental principle of equality and non-discrimination, belonging to the realm of jus cogens (para. 195). And I added, in concluding my Dissenting Opinion, that:

301. The arguments of a tiny minority of participating Delegations overlooking or minimizing the rights of the human person and of peoples (such as their right to self-determination), could even have been dismissed by the Court, which however gave space to them in its own reasoning (cf. e.g., paras. 133-134). In this respect, the narration by the ICJ of the arguments presented to it by participating Delegations requires a precision, if not a correction.

302. For example, inter alia, in paragraphs 133 and 159, when the Court refers to arguments of “some participants”, they were only two (United Kingdom and United States); when in paragraph 145 it refers to “others”, they were only the same two participants; when in paragraph 176 it refers to “a few participants”, once again they were only the same two participants; when in paragraph 145 it again refers to “some participants”, although the language is the same, this time they were numerous, a majority of twenty participants (namely, African Union, Argentina, Belize, Botswana, Brazil, Chile, Cyprus, Djibouti, Guatemala, Kenya, Marshall Islands, Mauritius, Namibia, the Netherlands, Nicaragua, Serbia, Seychelles, South Africa, Vanuatu, Zambia).

303. The Court's narration is imprecise, using the same expression, e.g., “some participants”, which may refer to contentions by the majority of twenty of the participating Delegations, or else by only two of them. Inadequacies of the kind speak for themselves. Furthermore, the ICJ does not address opinio juris communis in a wider sense (keeping in mind all subjects of the law of nations, including individuals and peoples), it refers only to the element of opinio juris in the traditional sense. Some of the arguments of several participating Delegations (e.g., on jus cogens, and on the duty of reparations for damages) have not been addressed, nor even mentioned, by the Court, unlike other points (that it considered) raised by a tiny minority of participating Delegations (United Kingdom and United States).

304. After all, in examining a matter of the importance of the one contained in the General Assembly's request for an Advisory Opinion of the ICJ on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, - may I reiterate, - one cannot pursue here a strictly inter-State outlook. This is a matter of concern to the United Nations as a whole, whose Charter is particularly attentive to the right of peoples.

305. In any case, the conclusions of the ICJ, set forth in the dispositif, are constructive and deserving of attention, in addition to its findings - as I have also already indicated (paras. 259 and 287, supra), - of the occurrence of a continuing “wrongful act” entailing the international responsibility of the State concerned, and of the identification of the issue of “the resettlement on the Chagos Archipelago of Mauritian nationals, including those of Chagossian origin”, as “an issue relating to the protection of the human rights of those concerned”, to be duly “addressed by the General Assembly during the completion of the decolonization of Mauritius”. I thus trust this Advisory Opinion of the ICJ, despite its insufficiencies, may assist, with its conclusions in the dispositif, the U.N. General Assembly in seeking the realization of justice for those victimized in the Chagos Archipelago, in conformity with the United Nations Charter and the general principles of international law.

XIX. Epilogue: A Recapitulation

306. With the conclusion and presentation of my present Separate Opinion, I feel in peace with my conscience: from all the preceding considerations, I trust to have made it crystal clear that my own reasoning in respect of some of the points dealt with in the present Advisory Opinion is clearly distinct from that of the Court itself, as well as in respect of some points not addressed by it. My position is grounded not only on the assessment of the arguments produced before the ICJ by the participating Delegations, but above all on issues of principle and on fundamental values, to which I attach even greater importance.

307. This being so, I have thus felt obliged, in the faithful exercise of the international judicial function, to lay on the records, in the present Separate Opinion, the foundations of my reasoning, covering issues of principle and touching on the foundations of contemporary international law. I deem it fit, at this concluding stage, to recapitulate all the points I have made, faithful to my own conception of the law of nations, expressed herein, for the sake of clarity, also stressing their interrelatedness.

308. Primus: The United Nations has, from its earlier years onwards, made clear its longstanding acknowledgment of, and commitment to, the fundamental right of peoples to self-determination. Secundus: Illustrations to this effect are found in successive General Assembly resolutions, from 1950 onwards, stressing the importance of respect for that right of peoples to sustain friendly relations among nations, in conformity with the principles and purposes of the United Nations.

309. Tertius: General Assembly resolution 1514(XV), of 14.12.1960, containing the landmark Declaration on the Granting of Independence to Colonial Countries and Peoples, much contributed to the consolidation of the right to self-determination of peoples. Turning attention to the rights of peoples, it went beyond the strictly inter-State dimension. Quartus: Already in 1961, the General Assembly established the Special Committee on Decolonisation, to secure the implementation of the 1960 Declaration, endowed with a law-making character.

310. Quintus: The right to self-determination of peoples became solidly grounded in the contemporary law of nations, as acknowledged by successive General Assembly resolutions along the sixties. Sextus: In its resolution 2066(XX), of 16.12.1965, the General Assembly warned that the detachment of certain islands from the Territory of Mauritius “for the purpose of establishing a military base” would be in breach of the 1960 Declaration.

311. Septimus: On the occasion of the tenth anniversary of the 1970 Declaration, the General Assembly adopted resolution 2621(XXV), of 12.10.1970, wherein it typified the continuation of colonialism as as a crime. Octavus: In the same year, General Assembly resolution 2625(XXV), of 24.10.1970, containing the new Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, called for the realization of self-determination of peoples, so as to put a speedy end to colonialism.

312. Nonus: More recently, along the last decade, new General Assembly resolutions have insisted on the pressing need of prompt eradication of colonialism as one of the priorities of the United Nations, in the proper implementation of the inalienable right of all peoples to self-determination. Decimus: This comprises the termination of military bases and activities in non-self-governing territories.

313. Undecimus: The new era of the international law of decolonization, impulsed by Asian-African countries as from the 1955 Conference of Bandung, saw the light of the day, with the support also of Latin American and Arab countries. Duodecimus: Such international law of decolonization became a manifestation of the humanization of contemporary international law. Tertius decimus: The corpus juris gentium was thereby enriched, stressing the fundamental right of peoples to self-determination.

314. Quartus decimus: Other resolutions, adopted successively by the Organization of African Unity, and later on by the African Union, condemned the militarization of Diego Garcia and called for the return of the Chagos Archipelago (including Diego Garcia) to Mauritius, so as to complete the process of decolonization. Quintus decimus: Moreover, at United Nations level, the right of all peoples to self-determination was significantly inserted, with historical influence, in the two U.N. Covenants on Human Rights of 1966 (Civil and Political Rights; and Economic, Social and Cultural Rights, respectively).

315. Sextus decimus: The right to self-determination, under Article 1 of the two U.N. Covenants, is formulated in the same terms, thus enhancing the indivisibility of all human rights. Septimus decimus: The Human Rights Committee (HRC), in its General Comment n. 12 (of 1984), related the right to self-determination of peoples under Article 1 of the two U.N. Covenants to the 1970 Declaration on Principles of International Law.

316. Duodevicesimus: Furthermore, the HRC, in its Observations on a report by the United Kingdom, called for compliance with the right to return of Chagos islanders, and compensation for the prolonged denial of that right. Undevicesimus: In other General Comments, the HRC stressed the principle of humanity; the vulnerability of certain groups of persons; the right of redress (reparations).

317. Vicesimus: The foundations of the right to self-determination came to be found at normative, doctrinal and jurisprudential levels, including, as to this latter, the case-law of the International Court of Justice (ICJ). Vicesimus primus: It was, moreover, sustained in a wider framework by the U.N. II World Conference on Human Rights (1993). Vicesimus secundus: Such developments, with its repercussions, fostered the aforementioned historical process of humanization of contemporary international law.

318. Vicesimus tertius: It became clear that the corpus juris in this domain has become a true law of protection (droit de protection) of the rights of human beings and peoples, and not of States. Vicesimus quartus: The primacy of the raison d'humanité came to prevail over the old raison d’État, in the framework of the new jus gentium of our times. Vicesimus quintus: The participating Delegations, in their written answers (and comments thereon) to a question I put to them at the end of the present advisory proceedings, stressed the opinio juris communis as to the considerable importance of the fundamental right to self-determination to the progressive development of international law.

319. Vicesimus sextus: Such fundamental right became an imperative for the United Nations, belonging to the realm of jus cogens. Vicesimus septimus: Already in its work in the mid-sixties, the International Law Commission (ILC) also gave its contribution on the matter (jus cogens). Vicesimus octavus: A rapporteur of the old U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, on the implementation of U.N. resolutions on the right to self-determination, did the same, upholding the character of jus cogens of this fundamental right to self-determination.

320. Vicesimus nonus: Likewise, in the course of the present advisory proceedings, this issue has been brought to the ICJ's attention in several written and oral submissions of the participating Delegations, in support of the jus cogens nature of the fundamental right to self-determination, and the erga omnes obligations ensuing therefrom. Trigesimus: There is no justification for the ICJ not having addressed jus cogens in the present Advisory Opinion.

321. Trigesimus primus: The United Nations itself has, from the start, been deeply committed to, and engaged in, the realization of the fundamental right to self-determination of peoples, endowed with a jus cogens character. Trigesimus secundus: In the case-law of the ICJ, there are brief references to jus cogens, which, however, deserves far greater attention. Trigesimus tertius: The ICJ should have developed much further its jurisprudence on jus cogens.

322. Trigesimus quartus: There is a relationship between jus cogens and the realization of justice itself. Trigesimus quintus: There is here need of a people-centred approach: the raison d'humanité prevails over the raison d’État, in the line of jusnaturalist thinking. Trigesimus sextus: There is an opinio juris communis as to the fundamental right to self-determination in the domain of jus cogens, as shown by the great majority of participating Delegations in the present advisory proceedings.

323. Trigesimus septimus: The “consent” of individual States cannot deprive jus cogens of all its legal effects, nor of the legal consequences of its breach. Trigesimus octavus: This applies in respect of distinct situations, including the right of peoples to self-determination. Trigesimus nonus: Conscience - the universal juridical conscience - stands above the “will”. Quadragesimus: There is a manifest incompatibility with jus cogens (and the corresponding obligations erga omnes) of the positivist voluntarist conception of international law.

324. Quadragesimus primus: The current historical process of humanization of international law (inspired in the legacy of the thinking of the “founding fathers” of the law of nations) stands in reaction to the injustice done to all those in situations of vulnerability and repression. Quadragesimus secundus: There is, in humanist thinking, a conscience of the dignity inherent in all human beings. Quadragesimus tertius: The new jus gentium of our times pursues a universalist outlook, values objective justice, and is oriented by general principles of law.

325. Quadragesimus quartus: When the matter lodged with the Court concerns the rights of peoples, as in the present advisory proceedings, the ICJ reasoning is to transcend ineluctably the strictly inter-State outlook; otherwise justice cannot be done. Quadragesimus quintus: The nature of the matters lodged with the ICJ is to lead to its proper reasoning. Quadragesimus sextus: Along the centuries, sufferings inflicted by human cruelty have persisted (e.g., such as the ones imposed by colonialism), but human conscience has awakened for the need to bring justice to the victims.

326. Quadragesimus septimus: The fundamental principle of equality and non-discrimination belongs to the domain of jus cogens. Quadragesimus octavus: In contemporary jus gentium, the conditions of living of the population have become a matter of legitimate concern of the international community as a whole. Quadragesimus nonus: In the course of the present advisory proceedings, several participating Delegations have acknowledged the opinio juris communis expressed clearly in successive U.N. General Assembly resolutions as to the duty of all to respect the fundamental right of peoples to self-determination.

327. Quinquagesimus: Another key issue addressed by some participating Delegations in the course of the present advisory proceedings has been that of the duty to provide reparations to peoples for breaches of their fundamental right to self-determination. Quinquagesimus primus: Those Delegations sustained that the peoples who suffered harm are entitled to just and fair redress. Quinquagesimus secundus: The breaches of that right correctly established in this Advisory Opinion call for the ineluctable duty of reparation, in all its forms.

328. Quinquagesimus tertius: The breach of a right and the duty of prompt reparation form an indissoluble whole; the duty of redress cannot be overlooked. Quinquagesimus quartus: The provision of appropriate redress to the victims is clearly necessary and ineluctable here. Quinquagesimus quintus: There is no justification for the ICJ not having addressed their right to reparations, in their distinct forms, in the present Advisory Opinion.

329. Quinquagesimus sextus: This matter brings to the fore the mission of contemporary international tribunals in this respect - as to rights of peoples, - as also pointed out by some of the participating Delegations. Quinquagesimus septimus: There are relevant decisions in the case-law of the international courts (African, Inter-American, European) of human rights, in support of the vindication of rights of peoples, with reparations (in its distinct forms) for forced displacement.

330. Quinquagesimus octavus: General principles of law have always marked presence in the search for the realization of justice, wherein basic considerations of humanity are of the utmost importance. Quinquagesimus nonus: Legal positivism has always attempted, in vain, to minimize the role of general principles of law, but without them there is no legal system at all; they are in the foundations of any legal system.

331. Sexagesimus: It is the general principles of law (prima principia) which confer to the legal order its ineluctable axiological dimension. Sexagesimus primus: General principles of law give expression to the idea of an objective justice, paving the way to the application of the universal international law, the new jus gentium of our times. Sexagesimus secundus: The basic posture of an international tribunal can only be principiste, without making undue concessions to State voluntarism.

332. Sexagesimus tertius: General principles of law do not need the distracted qualification found in Article 38(1)(c) of the PCIJ/ICJ Statute. After all, it is impossible to determine which are the “civilized nations”; we can only identify the countries which behave in a “civilized” way for some time, and while they so behave. Sexagesimus quartus: In the present Advisory Opinion the ICJ is attentive to State “consent”, which however is not a “principle”.

333. Sexagesimus quintus: General principles of law and fundamental values stand well above State consent. Sexagesimus sextus: In addressing the jus cogens right of peoples to self-determination, opinio juris communis and the duty of reparations for damages have to be kept in mind; they cannot be overlooked, as they were in the present Advisory Opinion. Sexagesimus septimus: In addressing a matter of the importance of the jus cogens right of peoples to self-determination, one cannot pursue a strictly inter-State outlook: this is a matter of concern to the United Nations as a whole, whose Charter is particularly attentive to the rights of peoples.

334. Sexagesimus octavus: In any case, in the present Advisory Opinion the ICJ correctly determined the occurrence of a continuing “wrongful act” entailing the international responsibility of the State concerned. Sexagesimus nonus: The Court further related this to the protection of human rights, i.e., requiring “the resettlement on the Chagos Archipelago of Mauritian nationals, including those of Chagossian origin”, to be duly “addressed by the General Assembly during the completion of the decolonization of Mauritius”.

335. Septuagesimus: The present Advisory Opinion, thus, despite its insufficiencies, may assist, with its conclusions in the dispositif, the General Assembly in seeking the realization of justice for those victimized in the Chagos Archipelago, in conformity with the United Nations Charter and the general principles of international law. Septuagesimus primus: Fundamental principles are, in effect, the foundations of the realization of justice, giving expression to the idea of an objective justice for the application of the universal international law, the humanized new jus gentium of our times.

(Signed) Antônio Augusto Cançado Trindade.

II. The role of the United Nations in decolonization and the development of the right to self-determination

5. In their written and/or oral statements, some States have suggested that the United Nations General Assembly has not demonstrated sufficient interest in the status of the Chagos Archipelago once Mauritius attained its independence; at least not enough to justify the Court entertaining the request now before it. Others have cast doubt on the existence of the right to self-determination during the period leading up to Mauritius’ independence, suggesting that the request was in fact a ploy by the African Union to front a “bilateral dispute” on behalf of Mauritius. I respectfully disagree on both accounts.

6. Customary international law arises from a general and consistent practice of States, accepted as lawFootnote ¹. The Court in its jurisprudence, has relied on, and interpreted Article 38 (1) (b) of its Statute to include two elements that assist the Court to determine the existence of an alleged customary international law, namely, State practice and opinio juris. Furthermore, the Court has held that a series of resolutions may demonstrate the evolution of opinio juris towards the creation of a rule of customary international law. For example in the Nuclear Weapons Advisory Opinion, the Court stated:

7. From its inception, the United Nations has played a unique, continuous and undeniable role in supporting non-self-governing countries and peoples break the yoke of colonial bondage and domination through a number of avenues. When the United Nations was established in 1945, 750 million people, almost one third of the world's population, were under colonial domination. Today, as a result of efforts by the United Nations, fewer than two million people live in non-self-governing territories. In Article 1 (2) of the Charter of the United Nations (“Charter”) one of the purposes of the United Nations is to “develop friendly relations among nations, based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace”. Article 55 of the Charter also refers to “conditions of stability and well-being, which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination”. The right to self-determination is also reflected in Chapter XI (Arts. 73 and 74) of the CharterFootnote ³. Under those provisions, administering Powers in charge of non-self-governing territories recognize the principle that the interests of the inhabitants of those territories are paramount; and to accept as a sacred trust the obligation to promote to the utmost, the well-being of the inhabitants of those territories, and to that end to ensure due respect for their social, economic, political, and educational advancement; to assist in developing appropriate forms of self-government and to take into account the political aspirations and stages of development and advancement of each territory. Administering Powers are also obliged to submit periodic reports to the United Nations on the condition of the territories under their control, which reports assist the United Nations to monitor progress on the decolonization process in those territories.

8. Subsequently in 1950, the General Assembly reaffirmed the right to self-determination in multiple resolutions. In resolution 421 (V) of 4 December 1950 the Assembly called upon the Commission of Human Rights “to study ways and means which would ensure the right of peoples and nations to self-determination”, whilst on 5 February 1952 the Assembly passed resolution 545 (VI) referring to “the right of peoples and nations to self-determination”, which the General Assembly noted, had been recognized as “a fundamental human right”. In that resolution, the Assembly also directed the Commission of Human Rights which was considering the drafting covenants on human rights, to include an article to the effect that “[a]ll peoples shall have the right of self-determination”. That same year on 16 December 1952 the Assembly passed resolution 637 (VII) urging Member States to “recognize and promote the realization of the right to self-determination of the peoples of Non-Self-Governing and Trust Territories”, a right that was stated to be “a prerequisite to the full enjoyment of all fundamental human rights”. The General Assembly passed many resolutions in the 1950s urging respect for the right to self-determinationFootnote ⁴.

9. On 20 December 1960 the General Assembly unanimously adopted (with 97 votes to none and four abstentions) resolution 1514 (XV) known as the Declaration on the Granting of Independence to Colonial Countries and PeoplesFootnote ⁵ (“Declaration 1514”). This resolution declared, inter alia, that “[a]ll peoples have a right to self-determination” and proclaimed that colonialism should be brought to “a speedy and unconditional end”, thereby crystallizing that right. For the first time, the General Assembly recognized that the right to self-determination was to be exercised by the non-self-governing countries and peoples in respect of the whole of their territory as a single unit. The resolution provided that, “all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory”, adding that, “the integrity of their national territory shall be respected”, and that “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the United Nations” Footnote ⁶. Thus resolution 1514 is a pivotal declaration upon which subsequent resolutions, including those enumerated in the request, hang. All General Assembly resolutions adopted after resolution 1514 and concerned with its implementation with regard to Mauritius, refer to “the inalienable right” of the inhabitants to self-determination and urge the administering Power to “take no action which would dismember the territory of Mauritius and violate its territorial integrity” (emphasis added).

10. A year later, the General Assembly established the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence (“Special Committee”)Footnote ⁷, to monitor, on a case-by-case basis and in accordance with the relevant General Assembly resolutions on decolonization, the implementation of resolution 1514 and to make recommendations on its application. It is through this Special Committee that the United Nations General Assembly has, to date, kept its finger on the pulse of decolonization. Resolution 1514 was followed by many more General Assembly resolutions aimed at monitoring and calling for its implementation in response to the periodic findings of the Special CommitteeFootnote ⁸. In the 15 years between the adoption of the Charter in 1954 and resolution 1514 in 1960, nineFootnote ⁹ former non-self-governing territories gained independence, while between 1960 and 1965 a further 35Footnote ¹⁰ were decolonized and attained self-determination. These newly independent States joined the United Nations family where they continue to date, to promote and urge the implementation of the right to self-determination by voting in favour of various resolutions of the General Assembly calling on administering Powers that still hold on to colonial territories to implement resolution 1514. In particular, the General Assembly passed specific resolutions calling for the full decolonization of Mauritius, including resolutions 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967.

11. During the same period, legal scholars considered resolution 1514 to represent the wishes and beliefs of the full membership of the United Nations, noting that it confirmed the right of self-determination as an enforceable international legal rightFootnote ¹¹. Furthermore, certain members of the International Law Commission referred to the right of self-determination as “a settled rule of jus cogens”Footnote ¹². In 1966 two human rights covenants were adopted. Both recognized in common Article 1 that “All peoples have the right of self-determination” by which “they freely determine their political status and freely pursue their economic, social and cultural development” thereby reproducing the language of resolution 1514 verbatim. Article 3 thereof stated:

In 1990, the General Assembly proclaimed 1990-2000 as the International Decade for the Eradication of Colonialism and adopted a plan of action. 2001-2010 was declared as the Second Decade for the Eradication of Colonialism and 2011-2020 as the Third. In addition, the United Nations has through its various other organs assisted non-self-governing territories organize pre-independence processes such as referenda or plebiscites in order to ascertain the free will of the peoples concerned as to their future administration. Since 1945 more than 80 former colonies and trust territories have attained self-determination through independence or through free association with an independent State.

12. In its jurisprudence, the Court has endorsed the principle and right of self-determination as formulated in resolution 1514. In the Namibia Advisory Opinion Footnote ¹⁴, the Court referred to resolution 1514 as an “important stage” in the development of international law regarding non-self-governing territories. In the Western Sahara Advisory Opinion Footnote ¹⁵, the Court referred to that resolution as the process of decolonization, observing:

In the Wall Advisory Opinion, the Court noted that the principle of self-determination of peoples has been enshrined in the United Nations Charter and reaffirmed by the General Assembly in resolution 2625 (XXV), pursuant to which “[e]very State has the duty to refrain from any forcible action which deprives peoples referred to [in that resolution] of their right to self-determination”Footnote ¹⁷.

13. There is no doubt that by 1965 when the United Kingdom as administering Power, separated the Chagos Archipelago from Mauritius, the inalienable right of non-self-governing countries and peoples to self-determination existed under customary international law. The right inhered in the Mauritian peoples, including the Chagossians, in respect of Mauritius as a single non-self-governing territorial unit. The preservation of the territorial integrity of Mauritius as a single unit, prior to the attainment of independence, was therefore an integral part of the right to self-determination. That right gave rise to a corresponding obligation upon the United Kingdom as administering Power, not to take any measure that would dismember the territory of Mauritius or prevent her peoples (including the Chagossians) from being able to freely and genuinely express and implement their will concerning their political future with respect to the whole of their territory. While the inalienable right to self-determination is jus cogens (i.e. from which no derogation is permitted), the corresponding obligation incumbent upon the administering Power, is an obligation erga omnes (in which the international community as a whole is interested.) This brings me to the question whether the separation by the United Kingdom of the Chagos Archipelago from Mauritius in 1965 was in conformity with the right of the inhabitants to self-determination.

III. Whether the separation of the Chagos Archipelago from Mauritius was in conformity with the right to self-determination

14. In order for the separation of the Chagos Archipelago to have been in conformity with the right to self-determination, it would have had to occur subject to the free and genuine will of the people of Mauritius, including the Chagossians. Indeed some States that participated in these proceedings argue that Mauritius willingly ceded the archipelago to the United Kingdom (or at least acquiesced to its separation). However, the majority of States refute this assertion and maintain that the separation was without the free and genuine consent of the inhabitants of Mauritius. Accordingly, it is incumbent upon the Court to carefully examine the facts leading to the separation of the Chagos Archipelago in order to determine whether the free and genuine will of the Mauritians was obtained prior to the separation. I am of the view that the Court has glossed over some facts, which, in my view, are vital to this determination. In paragraph 172 of the Advisory Opinion, the Court opines that, “when the Council of Ministers agreed in principle to the detachment from Mauritius of the Chagos Archipelago, Mauritius was, as a colony, under the authority of the United Kingdom”. Citing from a report of the Special Committee of 24 to the effect that “real legislative or executive powers, and that authority is nearly all concentrated in the hands of the United Kingdom Government and its representatives”, the Court concludes that “it is not possible to talk of an international agreement when one of the parties to it, Mauritius … was under the authority of the latter”. In my view, the “free and genuine will of the people” was not necessarily vitiated simply because at the time of negotiating the separation Mauritius was a colony under the executive and legislative authority of the United Kingdom as administering Power. If that alone were the measure, many former colonies would argue that being in similar fiduciary positions, they were unable to realize full independence. There are additional circumstances omitted from the Advisory Opinion, which when considered in the context of the relationship between the administering Power and the colony, vitiated any expression of the free and genuine will of the Mauritians to the separation of the Chagos Archipelago. As the Opinion does not detail these circumstances I will throw more light on them in this separate opinion.

IV. Whether the process of decolonization was lawfully completed in 1968 when Mauritius attained independence without the Chagos Archipelago

22. As shown above, although Mauritius attained independence three years after the detachment of the Chagos Archipelago, the United Kingdom had ensured that the negotiations for the detachment and for independence formed a single package. Needless to say there was much international reaction to the detachment of the Chagos Archipelago from Mauritius and the forcible removal of the Chagossians from the islands. Unsurprisingly, there were statements of disapproval from Mauritius itself, from the United Nations and from important groupings like the Organisation of African Unity; the African Union; the Non-Aligned Movement; the Group of 77 and China; the African, Caribbean and Pacific Group of States and the Africa-South America Summit. Upon attaining independence, Sir Ramgoolam became the first Prime Minister of Mauritius but his Government faced widespread criticism over the detachment. He was however steadfast in pledging that Mauritius would seek the return of the archipelago from the United Kingdom by means of “patient diplomacy at bilateral and international levels”.

23. The immediate reaction of the United Nations General Assembly was to adopt resolution 2066 (XX) on 16 December 1965 specifically on Mauritius, in which it not only called upon the United Kingdom to take effective measures to implement resolution 1514 (XV), but also called upon it “to take no action which would dismember the Territory of Mauritius and violate its territorial integrity”Footnote ¹⁸. It can be argued that up until the day of Mauritius’ independence, it was legally possible for the United Kingdom to give back the archipelago to Mauritius. But perhaps that would have been wishful thinking on the part of the United Nations. More resolutions followed on 20 December 1966Footnote ¹⁹ and 19 December 1967Footnote ²⁰ calling upon the United Kingdom and other colonial Powers to implement resolution 1514. In the case of Mauritius these exhortations fell on deaf ears. Not only did Mauritius attain independence without the Chagos Archipelago, which by now formed part of a new colony under the United Kingdom (the British Indian Ocean Territories or “BIOT”); but its entire population on the islands was forcibly removed and prevented from returning thereto.

24. To answer the above question, the process of decolonization of Mauritius was not lawfully completed in 1968 when she attained independence because part of her territory (the Chagos Archipelago) remained colonized, to date. In order for decolonization to have been completed, the people of Mauritius, including the Chagossians, would have had to exercise their right to self-determination in respect of the whole of their territory. This brings me to Part V where I discuss in more detail, the consequences under international law, of the United Kingdom's continues administration of the BIOT.

V. Consequences under international law, of the United Kingdom's continued administration of the Chagos Archipelago

25. The Court makes an oblique reference, as late as paragraph 180, to “the right to self-determination [being] an obligation erga omnes”. However, the Court fails in the Opinion to recognize that the right to self-determination has evolved into a peremptory norm of international law (jus cogens), from which no derogation is permitted and the breach of which has consequences not just for the administering Power concerned, but also for all States. The legal controversy that the General Assembly has presented to the Court directly implicates the territorial integrity rule in the context of decolonization. Therefore, it is incumbent on the Court to properly identify the content and nature of the rule in order to render maximum assistance to the General Assembly. Having failed to recognize the peremptory nature of the rule at issue, the Court has, in my view, insufficiently articulated the consequences of the United Kingdom's continued administration of the Chagos Archipelago for third States. This represents a regrettable retreat from the more thorough and insightful explications of the right to self-determination that the Court has offered in previous opinions.

26. I will proceed in section (a), by recalling the nature of peremptory norms and the consequences arising from their breach. In section (b), I will demonstrate that, in the context of decolonization, the right to self-determination, including its territorial integrity component of self-determination has evolved into a peremptory norm of international law. In section (c), I will explain why the United Kingdom's violation of the territorial integrity of Mauritius during the decolonization process amounted to a serious breach of a peremptory norm. Finally, in section (d), I will explain the consequences that should flow from that serious breach for third States.

General Assembly resolutions in the period 1950-1957

4. From 1950 to 1957 the General Assembly on several occasions addressed the right to self-determination. The Advisory Opinion has not sufficiently addressed the significance of these resolutions and their contribution to the development of the right to self-determination as a rule of customary international law.

5. An important part of the history of the development of the right to self-determination as a rule of customary international law is that the United Nations has always been very clear in treating it as a fundamental human right. Thus, the first set of United Nations resolutions addressing this subject relate to the inclusion in the proposed International Covenants on Human Rights of an article on the right to self-determination. The significance of this approach is that the right has the same basis as all other fundamental human rights, that is, respect for the inherent dignity and worth of the human person.

6. Resolution 421 (V) of 1950 called on the Commission of Human Rights to “study ways and means which would ensure the right of peoples and nations to self-determination”. Section D of the resolution which was specifically devoted to this study was adopted by 30 to 9 votes with 13 abstentions.

7. In the preamble of resolution 545 (VI) of 1952, the General Assembly recognized the right to self-determination as a fundamental human right and decided that an article on the right should be included in the proposed International Covenants on Human Rights as follows: “All peoples shall have the right of self-determination.” The preamble was adopted by 41 votes in favour, 7 against, and 2 abstentions. The article for inclusion in the proposed Covenant was adopted by 36 votes in favour, 11 against and 12 abstentions.

8. In 1952, at its seventh session the General Assembly adopted resolution 637 A (VII), which stated in its preamble that the right of peoples and nations to self-determination is a “prerequisite to the full enjoyment of all fundamental human rights”. The resolution urged Member States to “recognize and promote the realization of the right of self-determination of the peoples of Non-Self-Governing and Trust Territories”. It also stated that the freely expressed wishes of the peoples should be “ascertained through plebiscites or other recognized democratic means, preferably under the auspices of the United Nations”. Resolution 637 A (VII) was adopted by 40 votes in favour, 14 against with 6 abstentions. Also, resolution 637 C (VII) called on the Commission of Human Rights to make recommendations concerning international respect for the right of peoples to self-determination. Resolution 637 C (VII) was adopted with 42 in favour, 7 against and 8 abstentions.

9. In 1953 the General Assembly adopted resolution 738 (VIII) “inviting the Commission on Human Rights to make recommendations concerning international respect for the right of peoples and nations to self-determination”. The resolution was adopted by 43 votes in favour with 9 against and 5 abstentions.

10. In 1954, in resolution 837 (IX) the General Assembly stepped up the pressure on the Commission on Human Rights by requesting it to “complete its recommendations concerning international respect for the right of peoples and nations to self-determination, including recommendations concerning their permanent sovereignty over their natural wealth and resources”. This resolution was adopted with 41 votes in favour, with 11 against and 3 abstentions.

11. Notably, from as early as 1955 the view was being expressed by the United Nations Secretariat that the General Assembly “had already recognized the right of peoples and nations to self-determination; the next step was to formulate an appropriate article by which States would undertake a solemn obligation to promote and respect that right”Footnote ¹.

12. In 1955, the Third Committee of the General Assembly adopted a provision to be inserted in the two draft Covenants on Human Rights in identical language, acknowledging that “all peoples have the right of self-determination”. What is to be noted here is the difference between this formulation and the earlier formulation in resolution 545 (VI) in 1952 that “[a]ll peoples shall have the right to self-determination”Footnote ². The formulation in the 1955 resolution is declaratory of an existing right. The provision also stipulated that all “States Parties, including those having responsibility for the administration of Non-Self-Governing … Territories [should] promote the realization of [that] right”. The records of the Third Committee reveal a marked difference in the position of those States supporting the right to self-determination and its inclusion in the two draft Covenants on Human Rights and those States, principally colonial Powers, opposing that position.

13. Perhaps the most important resolution adopted in the period, and certainly the one that received the greatest support, was resolution 1188 (XII) of 11 December 1957. In that resolution, which was adopted by 65 votes to none with 13 abstentions, the General Assembly reaffirmed that “Member States shall, in their relations with one another, give due respect to the right of self-determination”.

14. Thus, between 1950 and 1957, the General Assembly adopted eight resolutions on the right of peoples and nations to self-determination and independence. Each resolution was adopted by a majority of the membership of the United Nations. The records reveal that with the exception of one year the votes trended towards an increase in the majority supporting the resolutions. Generally, the resolutions called for respect for and implementation of the right to self-determination by States, particularly by including in the two proposed Covenants on Human Rights an article on that right. The seven-year period from 1950 to 1957 ended with the adoption of a resolution, with no negative votes, calling for States to respect the right to self-determination.

15. One can see in the resolutions the strong determination of the General Assembly to affirm the existence of the right to self-determination and to ensure that colonial Powers understood that they had an obligation to respect that right. An interesting feature of the debates in that seven-year period was the recognition that the right to self-determination was a human right and one that was indispensable for the enjoyment of all human rights. At the same time the States promoting the right to self-determination, no doubt inspired by the foundational principle in Article 1, paragraph 2, of the United Nations Charter (hereinafter “the Charter”), made a strong connection between the self-determination of peoples and the development of friendly relations among nations. That Article, along with Article 55 of the Charter, shows that the Charter saw self-determination as a basis for the development of friendly relations among all nations.

16. The General Assembly was unrelenting in the attention that it paid to the development of the right to self-determination. The resolutions adopted in the seven-year period instilled confidence in peoples under colonial domination. Between 1957 and 1960, and prior to the adoption of 1514 on 20 December 1960, 18 countries under colonial domination became independent.

17. It is arguable that the analysis of the flurry of General Assembly resolutions over the seven-year period 1950 to 1957 shows that State practice and opinio juris combined to establish the right to self-determination as a rule of international law by 1957 and that, consequently, when these 18 countries — all African with the exception of one — became independent, they did so in exercise of an existing right under international law. Addressing the South African Parliament in February 1960, the British Prime Minister, Sir Harold MacMillan, speaking of the growth of African independence, said: “The wind of change is blowing through this continent and whether we like it or not, this growth of national consciousness is a political fact.”Footnote ³ Sir Harold, in this famous speech, accurately foresaw that the momentum towards independence that had been building up — no doubt due in part to the activity of the General Assembly — would lead to the independence of dozens of African counties. In September of 1960 alone, 15 countries became independent.

Resolution 1514 (XV): Declaration on the Granting of Independence to Colonial Countries and Peoples

18. The right to self-determination, the nascent beginnings of which could be witnessed from the Covenant of the League of Nations, and the development of which progressed steadily from 1945 to 1950, experienced a very rapid growth from 1950 to 1957 and reached a crescendo when the landmark 1514 was adopted on 20 December 1960Footnote ⁴. 1514 and resolution 2625 of 1970, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (hereinafter the “Friendly Relations Declaration”) are among the greatest achievements of the United Nations, and their adoption at such a relatively early period in the life of the United Nations shows an admirable sensitivity on the part of that body to global issues relating to equality, justice, development and peace. They both reflect customary international law. Today the United Nations consists of 193 Members and about one half of that membership can with confidence trace their independence to rights and obligations established by 1514.

19. I set out below brief comments on 1514.

Preamble

20. Perhaps the most important preambular paragraph is the very last in which the General Assembly “solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations”. European colonialism had been in existence for over 400 years and had resulted in inequality, loss of liberty, untold human suffering, immeasurable loss of life and, generally, flagrant violations of fundamental human rights in Africa, Asia, the Americas and the Caribbean. This preamble makes it clear that the United Nations was resolute in its requirement that colonialism as a political and economic system had to end as quickly as possible.

21. Brief comments on the operative paragraphs of 1514 are set out below:

Paragraph 1

22. In 1955, 29 countries from Africa and Asia met in Bandung, Indonesia to discuss Western Colonialism and other related issues. Paragraph 1 of 1514 repeats verbatim paragraph 1 (b) of the Final Communiqué of that ConferenceFootnote ⁵.

23. Not much attention was paid during the proceedings to this paragraph, which enures for the benefit of dependent peoples. In the oral hearing, only one participant commented on it. But in my view it is of fundamental importance in understanding what 1514 seeks to achieve. Alien subjugation, alien domination and alien exploitation are the classic features of colonialism. In this paragraph, 1514 neatly encapsulates the horrors of colonialism. Exploitation is at the epicentre of colonialism. It was a political and economic system of governance that was wholly exploitative of dependent peoples; when it was twinned with the enslavement of people of African descent, as it was in Mauritius for over 100 years, and in North and South America and the Caribbean for hundreds of years, its ugly underbelly was exposed. In 1753, Jamaica was Britain's most valuable colony. The average white Jamaican was 52.3 times wealthier than the average white person in England and WalesFootnote ⁶. This apparent asymmetry was due to raw exploitation through enslavement, the economic crutch of colonialism.

24. Paragraph 1 provides the rationale for 1514, which must be read and interpreted against that background. The paragraph identifies three features of the subjection of peoples to alien subjugation, domination and exploitation. First, the subjection is a denial of fundamental human rights. It is therefore a denial of rights that exist under customary international law, some of them of a peremptory character. The paragraph stresses the link between the right to self-determination and the enjoyment of human rights that the resolutions adopted in the seven-year period between 1950 and 1957 also emphasized. Colonialism, seen through the prism of 1514, breaches customary international law. Second, the subjection of peoples to alien subjugation, domination and exploitation is contrary to the Charter; in particular it would be contrary to the purposes and principles of the Charter. Third, it is an impediment to the promotion of world peace and co-operation. Again, the principles set out in Article 1 of the Charter address the maintenance of peace and the achievement of international co-operation. In short this paragraph proclaims that colonialism is contrary to international law.

25. As envisaged by 1514, the three classic features of colonialism — alien subjugation, exploitation, and domination — are to be eliminated through the exercise of the right to self-determination.

Paragraph 2

26. As important as paragraph 1 is, paragraph 2 is the central pillar on which the entire resolution is structured. All the other paragraphs acquire meaning in light of this paragraph. In particular, the ills identified in paragraph 1 are to be remedied by the exercise of the right to self-determination, proclaimed by, and defined in this paragraph, which could easily have been placed first.

27. This paragraph enures for the benefit of dependent peoples and must be read against the background of several General Assembly resolutions that prodded the Human Rights Commission to include in the two draft Covenants on Human Rights, a provision on the right to self-determination. The language of this paragraph is similar to the wording recommended by the Third Committee to the General Assembly in 1955, and differs from the wording of the 1952 resolution which read: “All peoples shall have …” The paragraph is declaratory of an existing right. An important feature of this paragraph is that it tells us what self-determination means: self-determination finds expression through the freedom of peoples to determine their political status. It therefore sets the standard by which the transition from colonial to independent status is to be measured. For self-determination to be lawful, it must accord with the free and genuine expression of the will of the peoples as to their political status.

Paragraph 3

28. The paragraph makes clear that the exercise of the right to self-determination, reflected in the freedom of all peoples to determine their political status, is not to be delayed on the basis of inadequate preparedness. It directly addresses the conduct of colonial Powers. The background to the paragraph is the colonial practice of using lack of preparedness as a pretext for delaying independence. The mantra of colonial administrations was that dependent peoples cannot be independent until they had gone through a myriad of preparatory constitutional stages, the last of which was usually internal self-government. Gradualism in relation to the right of dependent peoples to independence through their freely expressed will was a basic feature of colonialism. It was outlawed by 1514. There is a subtle relationship between this paragraph and Article 73 (b) of the Charter, in which administering Powers are mandated to assist non self-governing territories “in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement”. This embrace of gradualism, which may have been warranted in 1945, is rejected by 1514. The distance between 1945 and 1960 is remarkable.

Paragraph 4

29. This paragraph shows a sensitivity on the part of the General Assembly to the imbalance in the power relationship between a colonial administration and a dependent people. Again, it directly addresses the conduct of colonial Powers. It is very blunt in the obligations it imposes on colonial Powers not to use repressive measures to prevent dependent peoples exercising their right to self-determination and independence. Importantly, it also tells colonial Powers that they must respect the integrity, that is, the wholeness of the national territory of dependent peoples.

Paragraph 5

30. Again, as in the case of the two previous two paragraphs, the addressees of this paragraph are the colonial Powers. It requires colonial States to transfer all powers to colonized peoples in conformity with their freely expressed will so that they can become free and independent. It is very relevant to this case. It has a temporal element in that it requires that colonial Powers take immediate steps to ensure that this is achieved.

31. When this paragraph is read in conjunction with paragraph 7, which requires all States to observe faithfully and strictly the provisions of the Declaration, it becomes clear that the attainment of independence by colonized peoples is not a grant or gift from the colonizing State. Rather, independence results from the discharge by the colonizing State of an obligation imposed on it by international law. It is also clear from this paragraph, as well as from paragraph 2, that the basis for the transfer of power from colonizer to colonized is the freely expressed will of the peoples. The Court said as much in Western Sahara when it held, in construing paragraphs 2 and 5, that the “application of the right of self-determination requires a free and genuine expression of the will of the peoples concerned”Footnote ⁷. Action by a colonial Power that prevents the transition from colonial domination to independence from taking place in accordance with the free and genuine expression of the will of the peoples is unlawful. However, the freely expressed will of dependent peoples is not only a criterion by which the lawfulness of the application of the right to self-determination is measured; it is also the basis for the exercise of that right, that is, it requires that, when colonial peoples through their freely expressed wishes, call for self-determination and independence, power should be transferred to them by the colonial authorities forthwith.

Paragraph 6

32. Again, the addressees of this paragraph are colonial Powers. It deals with the important question of the integrity of the national territory of dependent peoples. Territorial integrity is addressed four times in 1514. The last preambular paragraph speaks of the inalienable right that all peoples have to the integrity of their national territory. The fourth paragraph requires that colonial States respect the integrity of the national territory of dependent peoples. Paragraph 6 goes a step further by declaring that an attempt by an administering Power to dismember partially or totally the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter. This paragraph incorporates a very serious and solemn declaration. The fourth reference to territorial integrity is in paragraph 7, which calls for respect for the sovereign rights of all peoples and their territorial integrity. The relevance of this paragraph to this case is that it clarifies that the unit for self-determination for colonial peoples is their territory in its entirety.

33. Territorial integrity is presented in this paragraph and elsewhere as a critically important element of the right to self-determination. There are three references to the Charter in 1514, namely, in paragraphs 1, 6 and 7. Of the three, paragraph 6 is the only one that directly speaks of incompatibility with the purposes and principles of the Charter. Since these purposes and principles are generally recognized as reflecting customary international law, and by some, as embodying norms of jus cogens, 1514 has placed a breach of respect for the territorial integrity of dependent peoples at the very highest level in international law.

34. The United Kingdom argued that the right to self-determination did not become customary international law until the adoption of the Friendly Relations Declaration in 1970, which it agrees reflects customary international law. It stressed that the Friendly Relations Declaration was adopted by consensus after six years of negotiations and, hence, was more carefully considered than 1514, which was adopted within a shorter period. It also contended that there was a significant difference between paragraph 6 of 1514 and paragraph 7 of the Friendly Relations Declaration. Whereas the former addresses the territorial integrity of a “country”, the United Kingdom notes that paragraph 7 speaks of the territorial integrity or political unity of sovereign and independent States. Accordingly the United Kingdom argued that what was protected by customary international law was the territorial integrity of sovereign States and not the territorial integrity of a non-self-governing territory prior to independence. However, it is not surprising that resolution 2625 references States while 1514 does not. This is so because 1514 is wholly concerned with the rights of colonial peoples to self-determination and independence, while the subject of resolution 2625 is the rights and duties of sovereign States. In any event, although resolution 2625 does not set out to deal with colonial peoples, the 14th preambular paragraph treats with their situation as follows: “Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter.” This provision is a replica of paragraph 6 of 1514 except that there is a reference not only to the territorial integrity of a country, but also that of a State. It is made abundantly clear that the right to self-determination has a territorial dimension that colonial Powers are obliged to respect. The unit for self-determination is the territory of colonial peoples in its entirety.

Paragraph 7

35. This paragraph addresses an obligation that is imposed on all States. That 1514 is normative and binding is reflected in this paragraph which requires all States to observe “faithfully and strictly” the provisions of the resolution as well as those of the Charter and the Universal Declaration of Human Rights. 1514 is in good company when it is placed alongside those two instruments of such seminal and pivotal importance. It occupies the same lofty space as those two instruments. Certainly the Universal Declaration of Human Rights reflects customary international law. By placing 1514 in the same bracket as the Universal Declaration, the General Assembly sent a clear message as to how it was to be viewed by the international community.

36. While 1514, in a general sense, is addressed to the international community as a whole, there are some paragraphs in respect of which the direct addressees are colonial Powers, and these paragraphs specifically identify their obligations in respect of dependent peoples; other paragraphs enure more specifically for the benefit of dependent peoples, identifying the rights which they have on the road to independence. Of course, all the paragraphs directly implicate both dependent peoples and the colonial Powers as well as the international community at large.

Status of resolution 1514 (XV) and the right to self-determination as customary international law

37. 1514 was adopted with a vote of 89 in favour, none against and 9 abstentions. That 89 States supported 1514 and not a single State voted against it must count for something in assessing its legal status; it must be taken as strong evidence of the international community's acceptance, not only of its content and but also of the normative value of that content. In fact, the lack of negative vote is strong evidence of the element of opinio juris required for the formation of customary international law.

38. In Legality of the Threat or Use of Nuclear Weapons Footnote ⁸, the Court found that resolutions adopted with substantial numbers of negative votes and abstentions did not have the opinio juris necessary for the formation of customary international law. That finding has absolutely no application to 1514, which had no negative votes and relatively few abstentions — only 9 — about 10 per cent of the total votes. After commenting that the number of abstentions was relatively low, Rosalyn Higgins, later to become a Member and President of the Court, concluded that “[t]he Resolution must be taken to represent the wishes and beliefs of the full membership of the United Nations”Footnote ⁹. Plainly speaking, by the end of 1960, the colonial Powers recognized that the movement of colonial peoples to independence had become irreversible. The wind of change of which Sir Harold MacMillan had spoken ten months before had, by the end of 1960, taken on the force of a hurricane.

39. The development of the right to self-determination, which had commenced even before adoption of the Charter in 1945, reached a watershed with the adoption of 1514 in December 1960.

40. 1514 expresses in solemn form the right that had developed from the mandate system after the first World War, was enshrined in Article 1, paragraph 2, of the Charter and reflected in a number of General Assembly resolutions between 1950 and 1957. These resolutions played an important role in the development of the right as a rule of customary international law. In Legality of the Threat or Use of Nuclear Weapons, the Court held that “a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule”Footnote ¹⁰. It may be argued that the eight General Assembly resolutions adopted over a period of seven years show the evolution of the opinio juris required for the establishment of the right to self-determination as a rule of customary international law, and general practice sufficient to meet the requirement for the formation of a rule of customary international law.

41. The main difference between 1514 and the pre-1960 resolutions is that the latter did not fully define the right to self-determination. It was left to 1514 to demarcate the contours of that right. Nonetheless, 1514's relationship and connectedness with that group of resolutions cannot be overlooked. The largest number of countries to become independent in a single year did so in 1960, prior to the adoption of 1514, and achieved their independence on the back of these eight resolutions. Thus while they did not fully define the right to self-determination, they certainly laid the foundation for 1514's historic achievement in defining with greater clarity than had been done before the content and scope of the right to self-determination. In paragraph 150 of the Advisory Opinion — after noting that 28 countries achieved independence in the 1960s — the Court expressed the view that “there is a clear relationship between resolution 1514 (XV) and the process of decolonization following its adoption”. This is certainly a fair conclusion but, by the same token, would it not be equally true to speak of a clear relationship between the eight resolutions and the achievement of independence by 18 countries prior to the adoption of 1514? The fact that the pre-1960 resolutions do not fully define the right to self-determination does not mean that they do not have normative elements. For example, the resolutions recognize the right to self-determination as a fundamental human right, and envisaged it as a “prerequisite to the full enjoyment of all human rights”, urged Member States to recognize and promote the right of self-determination of the people of non-self-governing countries. They also stated that the freely expressed wishes of the people should be ascertained through recognized democratic means and declared that all peoples have the right to self-determination, implying that the right is existing. Moreover, one resolution called on States to give due respect to the right to self-determination, a resolution that had no negative votes and 13 abstentions. In light of the foregoing the pre-1960 resolutions should not be overlooked as they include normative elements contributing to the growth of the right to self-determination into a customary rule of international law.

42. Even though it is arguable that the right to self-determination became a rule of customary international law in 1957, it may be safer to conclude that its crystallization as a rule of customary international law took place in 1960 with the adoption of 1514. In 1963, Rosalyn Higgins concluded that 1514, “taken together with seventeen years of evolving practice by the United Nations organs, provides ample evidence that there now exists a legal right to self-determination”Footnote ¹¹.

43. In 1966, the General Assembly adopted by consensus the International Covenant on Economic Social and Cultural Rights (hereinafter “ICESCR”) and the International Covenant on Civil and Political Rights (hereinafter “ICCPR”). Common Article 1 of both Covenants provides that “all peoples have the right of self-determination by virtue of which they freely determine their political status and freely pursue their economic social and cultural development”. This is precisely the language used in 1514. Written in the present tense, this is very strong and forceful language, declaratory of existing rights. Indeed the entire Declaration is clear and unequivocal in the language it uses. Rosalyn Higgins captures very well the essence and spirit of the resolution when she commented that “the right to self-determination is regarded not as a right enforceable at some future time in indefinite circumstances, but a legal right here and now”Footnote ¹².

44. The question of the relationship between the right to self-determination in the context of decolonization and its broader application outside that context is addressed by the Court in paragraph 144. The Court clarified that its Advisory Opinion is confined to the right to self-determination in the context of decolonization. However, the fact that the right to self-determination set out in paragraph 2 of 1514 is not only included in the two Covenants, but included as the first article in both, speaks to its significance not merely as a fundamental human right, but as one that is seen as indispensable for the enjoyment of all the rights set out in the two Covenants. During the drafting of the two Covenants some countries, principally western colonial Powers, opposed the insertion of the right to self-determination in the two Covenants on the basis that it was a collective right. However, at the instigation of other countries, mainly developing countries, the right was included in the two Covenants on the basis that it was indispensable for the enjoyment of the individual rights set out in the two Covenants.

45. The incorporation of the right to self-determination as the first article in the two international covenants, which have received widespread ratifications, solidifies its development as a fundamental human right, and indeed, the foundation for all other human rights. There is a unity in the right to self-determination that serves the purposes of 1514 — the right of all peoples to determine their political status through their freely expressed will in the context of decolonization — and the right to self-determination that serves the purposes of the two Covenants — the enjoyment of fundamental rights by every individual. This unity is achieved by the existence of a common basis applicable to both purposes, namely, respect for the inherent dignity and worth of the human person.

46. The development of the right to self-determination as a basic human right is wholly consistent with the post-Second World War focus on individual human rights, itself the greatest advance in international law since 1945. The right is therefore located at the very centre of this great normative development. In that regard, the Court held that 1514 “provided the basis for the process of decolonization which has resulted since 1960 in the creation of many States”Footnote ¹³.

47. In conclusion, 1514 is a normative laden declaration, rich with ore protective of values fundamental to the international community. The resolution is as potent a force for liberation and justice as was emancipation following the abolition of enslavement in many parts of the world in the 1830s.

The Court's case law on jus cogens

57. In the North Sea Continental Shelf cases in 1969 the Court made it clear that it did not wish to enter into a discussion of jus cogens or even less, to pronounce on it. While it would not have been necessary for the Court to rule on the application of jus cogens in that case, one can detect a kind of reluctance to engage with the topic of jus cogens that many would say has become a feature of its work. Although the North Sea Continental Shelf cases were decided a few months before the adoption of the Vienna Convention on the Law of Treaties, (hereinafter “VCLT”), the Court would undoubtedly have been familiar with the 1966 Report of the International Law Commission on the Law of Treaties. That Report included a draft Convention on the Law of Treaties, Article 50 of which addressed jus cogens.

58. In the Military and Paramilitary Activities in and against Nicaragua case the Court addressed jus cogens as follows:

59. The Court's reasoning on the status of the prohibition of the use of force is in three stages. First, the statements of many State representatives confirm that the prohibition of the use of force is a rule of customary international law. Second, these statements also confirm that the prohibition is “a fundamental or cardinal principle of that law”. Here the Court might be understood as implying that the prohibition of the use of force is a norm of jus cogens. Third, that latter conclusion is supported by the Court apparently citing with approval the observation of the International Law Commission that the prohibition of the use of force is a norm of jus cogens.

60. Even though it is fair to infer from this paragraph that the Court endorses the view that the prohibition of the use of force is a norm of jus cogens, again, one can detect a slight hesitancy to become fully engaged in a discussion of that norm. Certainly, the Court does not delve deeply into the content of the norm of jus cogens, and its recognition that the prohibition of the use of force is a norm of jus cogens can only be described as oblique.

61. In Armed Activities on the Territory of the Congo, the Court had to consider the relationship between peremptory norms of general international law and consent to its jurisdiction. The Court referred to the following passage from its 1951 Advisory Opinion on Reservations to the Convention on the Crime of Genocide (see paragraph 52, above) that may be said to provide an insight into the Court's views on the jurisprudential underpinnings of a norm of jus cogens:

In the very same paragraph, that is, paragraph 64 of Armed Activities on the Territory of the Congo, the Court observed that the prohibition of genocide was “assuredly” a norm of jus cogens. The Court identified two principal features of jus cogens, namely it is a norm that is recognized as binding on States, irrespective of a treaty obligation to do so, and it has a universal character in that it is applicable to all States.

62. In his separate opinion in Armed Activities on the Territory of the Congo Footnote ²⁴, Judge ad hoc Dugard commented that this was the first time the Court had expressly embraced the concept of jus cogens, pointedly adding that this was so even though it had in the past endorsed the notion of obligations erga omnes Footnote ²⁵.

63. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide Footnote ²⁶, and Application of the Convention on the Prevention and Punishment of the Crime of Genocide Footnote ²⁷, the Court, by referring to its earlier finding in Armed Activities on the Territory of the Congo that the prohibition of genocide was “assuredly” a peremptory norm of international law, must be taken as confirming that finding. In fact, in its 2015 Judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, the Court went further and found that “the prohibition of genocide has the character of a peremptory norm (jus cogens)”Footnote ²⁸. It also cited the well-known passage from the 1951 Reservations to the Convention on the Crime of Genocide Advisory Opinion (see paragraph 52, above) which has been frequently relied on for its identification of the features of jus cogens. In Prosecutor v. Jelisic, a trial chamber of the International Criminal Tribunal for the former Yugoslavia held that, in the Reservations to the Convention on the Crime of Genocide Advisory Opinion, the International Court of Justice went beyond the identification of the prohibition of genocide as a customary norm and placed it “on the level of jus cogens because of its extreme gravity”Footnote ²⁹.

64. The values stressed in the 1951 Advisory Opinion in the Reservations to the Convention on the Crime of Genocide and confirmed 55 years later in Armed Activities on the Territory of the Congo (2006), and again 54 and 64 years later in the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (2007, 2015) cases, concern the inherent dignity of the human person and thus, fundamental human rights; it is in that context that we find references to “purely humanitarian and civilizing purpose” and “the most elementary principles of morality”. The 1951 Advisory Opinion therefore, although not containing any express reference to jus cogens, provides clear signposts and indicia for the identification of norms that are jus cogens.

65. In Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, the Court observed that “[t]he question whether a norm is a part of the jus cogens relates to the legal character of the norm”Footnote ³⁰. It decided not to determine whether norms of international humanitarian law are part of jus cogens. In the Court's view the General Assembly's request for its advice related to the applicability of principles and rules of humanitarian law in relation to the use of nuclear weapons and not to the legal character of those norms. The Court found that “the fundamental rules [of humanitarian law] are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law”Footnote ³¹. While scholars have pondered over the meaning of the biblical sounding phrase, “intransgressible principles”, the better view is that the Court was not just addressing rules of customary international law, but peremptory norms of general international law. Here again, the Court, notwithstanding its explanation for not dealing with jus cogens, appears to exhibit a reluctance to get to the heart of that concept.

66. In Questions relating to the Obligation to Prosecute or Extradite, we find the clearest explanation to date of the Court's view of the kind of evidence needed to substantiate a finding that a norm of general international law has become a peremptory norm within the meaning of Article 53 of the VCLT. Paragraph 99 of the Court's Judgment is set out below:

Article 53 of the Vienna Convention provides that jus cogens is a norm of general international law that is peremptory. In principle this means that any of the three sources of law set out in Article 38 (1) (a), (b) and (c) of the Court's Statute can give rise to a peremptory norm of general international law. However, peremptory norms of general international law most usually derive from rules of customary international law. Treaties, of course, will not — in and of themselves — give rise to peremptory norms, but when they contain provisions that reflect rules of customary international law, those provisions may become peremptory norms of general international law. The first sentence of this paragraph addresses the growth (“has become”) of the prohibition of torture, as part of customary international law and thus, general international law, into a peremptory norm (jus cogens).

67. The Court cites several instruments of universal application as evidence of State practice and opinio juris sufficient to establish that the prohibition of torture is a peremptory norm of general international law. An examination of the various instruments cited by the Court, which include the Universal Declaration of Human Rights and the ICCPR, shows that the prohibition of torture, which is part of customary international law, has become a peremptory norm. That is so because they all reflect the values that the Court identified in the often cited passage from the 1951 Reservations Advisory Opinion (see paragraph 52, above). These are values that protect a wider communitarian interest rather than the interest of individual States. The instruments are also very widely accepted by States, thereby signifying acceptance and recognition of the non-derogability of the norm prohibiting torture.

68. In paragraph 99 the Court also identifies the inclusion of the prohibition of torture in the domestic laws of many States and the regular denunciation of acts of torture in national and international fora as material with an evidentiary value in determining the jus cogens character of the prohibition of torture.

69. The first sentence in paragraph 99 refers to the prohibition of torture as part of customary international law and also as a peremptory norm. The next and longer sentence begins with the words, “[t]hat prohibition”, giving rise to some uncertainty as to whether the various evidentiary material that follows relates to the prohibition of torture as part of customary international law or as a norm of jus cogens. The Court had already noted in paragraph 97 that the parties in the case had agreed that acts of torture are regarded by customary international law as international crimes, independently of the Torture Convention. It is therefore reasonable to conclude that the prohibition that is referred to in the longer sentence relates to the prohibition of torture as a peremptory norm. Of course, it is possible that it could relate to the prohibition of torture both as a part of customary international law and as a peremptory norm. The first view is to be preferred, and would seem to be a necessary one for the approach taken in this Opinion, since the jus cogens requirement of recognition and acceptance by the international community of States as a whole of the non-derogability of the norm does not apply to a norm of customary international law.

Evidentiary material supporting the jus cogens character of the right to self-determination

70. The separate opinion now turns to an examination of the evidentiary material that substantiates the characterization of the right to self-determination as a norm of jus cogens, substantially following the approach in paragraph 99 of the Obligation to Extradite or Prosecute.

1. International Instruments of universal application

71. Below are international instruments referring to the right to self-determination:

1. (a) The right to self-determination is a Charter right. Not only is it set out in the Charter, it is reflected in Article 1, paragraph 2, as one of the purposes of the United Nations. The Charter identifies this purpose as “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”. The purposes of the Charter have a very special significance in the architecture established by the United Nations after the Second World War for the maintenance of international peace and security. The development of friendly relations among States is an important part of this system. This Opinion has already referred to the Court in Military and Paramilitary Activities in and against Nicaragua citing the International Law Commission's statement in its commentary on Article 50 of its draft Articles on the Law of Treaties that the prohibition of the use of force is a norm of jus cogens. This is a strong authority for concluding that a norm that derives from the Charter and which, in particular, reflects a purpose of the United Nations, as does the right of peoples to self-determination in Article 1, paragraph 2, of the Charter, is very likely to warrant characterization as jus cogens.

2. (b) Unsurprisingly, the 1970 Friendly Relations Declaration includes the principle of equal rights and self-determination of peoples as a principle of international law relating to friendly relations and co-operation among States, and imposes a duty on States to take the necessary action to promote the realization of that principle. In the Legal Consequences of the Construction of a Wall Advisory Opinion, the Court referred to this duty. In paragraph 148 of its current Advisory Opinion, the Court also refers to this principle, pointing out that consequent on the Charter making the principle of equal rights and self-determination one of the purposes of the United Nations, it then included provisions to “enable non-self-governing territories ultimately to govern themselves”.

3. (c) United Nations Declaration on the Elimination of All Forms of Racial Discrimination — General Assembly resolution 1904 of 20 December 1963 — the fourth preambular paragraph refers to the Declaration on the Granting of Independence to Colonial Peoples and Countries, that is, 1514.

4. (d) In 1966 the General Assembly adopted the ICCPR and the ICESCR. Paragraph 1 of Article 1 of both Covenants is identical to paragraph 2 of 1514. In its Advisory Opinion, the Court cited the two Covenants, indicating that paragraph 1 common to both Covenants affirms the right to self-determination. It has already been explained earlier in this separate opinion that the fact that the Advisory Opinion is confined to the right to self-determination in the context of decolonization does not in any way render the two Covenants irrelevant. The basis for the second paragraph in 1514 and Article 1, paragraph 1, of the Covenants is the same: respect for the inherent dignity and worth of the human person. This common basis points to the indivisibility of the rights set out in the two Covenants on the one hand and the rights addressed by the second paragraph of 1514 on the other. The entry into force of the two Covenants after the relevant date of 1968 becomes less important for the following reasons. First, the rights which the two Covenants entrench are based on the fundamental right of all peoples to self-determination as reflected in common Article 1, paragraph 1, of the Covenants and paragraph 2 of 1514; that right had crystallized as a customary rule before 1968. Second, General Assembly resolution 2200 A which annexed the two Covenants received extremely strong support, having both been adopted unanimously by a body which at that time had 106 Member States.

5. (e) General Comment No. 12 of the United Nations Human Rights Committee, established pursuant to the ICCPR, adopted on 13 March 1984 stated that

   “the right of self-determination is of particular importance because its realisation is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States … placed this provision as Article 1 apart from and before all of the other rights in the two Covenants.”

   There can hardly be any value requiring more protection than that relating to respect for the inherent dignity and worth of the human person. The two Covenants seek to provide that protection. How can a norm that is essential — some say indispensable — for the enjoyment of all the rights in the two Covenants be anything other than a compelling right from which, in the wider public interest of the international community, no derogation is permitted?

6. (f) In 1993, the Second World Conference on Human Rights adopted the Vienna Declaration and Programme of Action, paragraph 2 of which provided, inter alia, that “the World Conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realisation of this right”.

7. (g) In resolution 61/295 of 13 September 2007, the General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples which affirmed “the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic social and cultural development”.

8. (h) By resolution 2106 (XX), the fourth preambular paragraph of the International Convention on the Elimination of All Forms of Racial Discrimination, adopted by the General Assembly on 21 December 1965, affirms the right to self-determination as follows:

   “Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end”.

9. (i) General Assembly resolution 1803 of 14 December 1962 — the second preambular paragraph refers to the instruction given to the Commission on Permanent Sovereignty over Natural Resources to conduct a survey of the status of permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-determination.

10. (j) The Vienna Convention on Succession of States in respect of Treaties — the sixth preambular paragraph refers to the principles of international law embodied in the Charter such as the principle of equal rights and self-determination of peoples.

11. (k) The International Convention on the Suppression and Punishment of the Crime of Apartheid — General Assembly resolution 3068, 30 November 1973 — the third preambular paragraph refers to 1514.

The instruments referred to above that were adopted after 1968 are all confirmatory of the right to self-determination. Following the approach of the Advisory Opinion in paragraph 143, reference may be made to, and reliance placed, on them.

2. The views of States

72. States have on many occasions expressed the view that the right to self-determination is a norm of jus cogens:

1. (a) At the Vienna Conference on the Law of Treaties 1968-1969 various States made that assertion — the Soviet Union and several developing countries. On the occasion of the adoption of the Friendly Relations Declaration many counties also made the same assertion.

2. (b) In 1979 there was a very telling statement from the Legal Adviser to the United States State Department contained in a memorandum to the Acting Secretary of State, Warren Christopher. In that memorandum, the United States Legal Adviser expressed the view that the Soviet Union's invasion of Afghanistan was contrary to Article 2, paragraph 4, of the Charter as well as to the principle of self-determination of peoples. Given that Article 2 (4) was to be considered a peremptory norm of international law, he indicated that the 1978 Treaty between the USSR and Afghanistan was null and void by virtue of its conflict with a norm of jus cogens. Antonio Cassese describes this statement as “a very skilful and subtle way of elevating self-determination — albeit in an indirect and roundabout way — to the rank of jus cogens”Footnote ³³.

3. Views of international bodies and scholars

73. While it is principally State-oriented action, such as United Nations resolutions and multilateral conventions, that should be relied on to establish the right of self-determination as a norm of jus cogens — and this is so because Article 53 describes a peremptory norm of general international law as “one that is accepted and recognized by the international community of States as a whole” (my emphasis) — reference may also be made to influential views of certain international bodies and learned scholars:

1. (a) Although the work of the International Law Commission on peremptory norms of general international law (jus cogens) is not yet concluded, it is noted that the Special Rapporteur has on several occasions in his reports described the right to self-determination as a peremptory norm, for example, paragraphs 92, 97, and 99 of his Third Report.

2. (b) In that regard, paragraph 3 of the 1966 International Law Commission's commentary on Article 50 of the VCLT addressed, inter alia, the question whether the Commission should provide an illustrative list of norms of jus cogens. It was decided not to do so. However paragraph 3 of the Commentary on Article 50 indicated that some members of the Commission expressed the view that if examples were given, treaties violating the principle of self-determination should be included. Similarly, paragraph 5 of the International Law Commission's 2001 Commentary on Article 40 of the draft Articles on Responsibility of States for Internationally Wrongful Acts, identifies the right to self-determination as a peremptory norm that is “clearly accepted and recognised”Footnote ³⁴.

3. (c) Another example is James Crawford's (as he then was) description of 1514 as having “a quasi-constitutional status in international law which is similar to the Universal Declaration on Human Rights and the Charter itself”Footnote ³⁵. To place the right to self-determination in the same company as the Universal Declaration and the Charter is to put one's estimation of the status of the right at the very highest level.

Article 53 of the VCLT

74. Article 53 of the VCLT states:

75. This Article, which gave rise to so much controversy at the Vienna Conference on the Law of Treaties, is fairly straightforward in its presentation and meaning. There are four points to be made. First, the consequence of a breach of the norm by a treaty is that the treaty is rendered void. This was a seminal development in international law, based on the traditional principle of sovereignty of States, and in particular, in the law of treaties in which the principle of pacta sunt servanda is paramount. Ultimately the controversy at the Conference was resolved by the insertion of Article 66 in the Convention giving to a party to a dispute concerning the application of jus cogens to a particular treaty the right to bring that dispute to the International Court of Justice. Second, the norm in question must be a norm of general international law and must obviously meet the requirements for that status. As we have seen, it is most usually norms of customary international law that become peremptory norms of general international law. Third, the norm in question must not only be a norm of general international law; it must be a norm that is accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted. This is indeed the most important criterion for the identification of a norm of jus cogens. The material set out by the Court in Obligation to Extradite or Prosecuteat paragraph 99 provides evidence of this acceptance and recognition in relation to the prohibition of torture. What is required is acceptance and recognition by the international community of States as a whole — an important consideration, signifying that unanimity among all States is not required. Fourth, the consequence of a norm being a peremptory norm of general international law is that there can be no derogation from it. This consequence goes to the core of a norm of jus cogens. It is the distinguishing feature of such a norm.

76. The foregoing analysis shows that there is a close relationship between obligations erga omnes and a norm of jus cogens. Certainly both norms reflect fundamental values of the international community. While a jus cogens norm will always result in an obligation erga omnes, an erga omnes obligation will not always reflect a norm of jus cogens.

77. In light of the analysis of the case law of the Court and Article 53 of the VCLT, it is concluded that the right to self-determination is a norm of jus cogens and had that status at the relevant period for the following reasons:

1. (a) it is a norm of customary international law that has become a peremptory norm of general international law, which is recognized and accepted by States as a whole even without conventional obligation to do so;

2. (b) it is a norm that reflects principles that have a moral and humanitarian underpinning, serving a wider public, communitarian purpose;

3. (c) it is a norm that protects one of the most fundamental values of the international community, namely, the obligation to respect the inherent dignity and worth of the human person, which forms the basis of the right of peoples to freely determine their political status on the bases set out in 1514. Indeed, as a right that is seen as essential for the enjoyment of all the rights entrenched in the ICCPR and ICESCR, how could it not be a norm of jus cogens?

4. (d) it is a norm that is universally applicable in that it applies to all States;

5. (e) the evidentiary material set out in paragraphs 71 to 73 above establishes not only the existence of the norm of the right to self-determination as a rule of customary international law, but also as a peremptory norm of general international law; in particular, the instruments referred to show the recognition and acceptance by States of the non-derogability of the norm.

78. A comment is warranted on the Court's case law as a whole.

79. In its case law, the Court's reasoning on jus cogens is largely based on the well-known passage of the 1951 Reservations to the Convention on the Crime of Genocide Advisory Opinion, (paragraph 52 above) in which the term jus cogens does not appear. That, of course does not invalidate reliance on the passage.

80. Scholars have argued that Barcelona Traction was an apology for the 1966 Judgment on South West Africa. Given that that case established obligations erga omnes — itself a concept closely related to jus cogens — there would seem to be a historical, if not jurisprudential, connection between the development of the law on jus cogens and the development of the law on decolonization, which was at the heart of the 1966 Judgment in the South West Africa cases.

81. There is no need to venture into the stormy seas of the debate concerning the doctrinal basis of jus cogens: natural law or consent-based positivism. However, there is an inescapable contrast between the strong natural law tone of the 1951 Reservations case — “contrary to moral law” and “the most elementary principles of morality” — and the more positivist, consent and evidence-based approach in Obligations to Extradite or Prosecute. The contrast remains striking, notwithstanding the Court's description, 61 years later, of rules of international humanitarian law as “the intransgressible principles of international customary law” in the Legality of the Threat or Use of Nuclear Weapons. Twelve years before that decision, a trial chamber of the International Criminal Tribunal for the former Yugoslavia found that “most norms of international humanitarian law in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms or jus cogens i.e. of a non-derogable and overriding character”Footnote ³⁶. It may be that the doctrinal controversy will be settled along the lines of Judge Bedjaoui's declaration in the Legality of the Threat or Use of Nuclear Weapons that

Here the eminent judge seems to be steering a course, avoiding the pitfalls of both natural law and positivism and instead, mooring his approach to an international law reflecting what he calls a “collective juridical conscience”.

82. The most striking feature of the Court's case law is the apparent reluctance that it reveals on the part of the Court to engage fully with the subject of jus cogens, at times only finding its application in an indirect and oblique manner, and at other times, not pronouncing on the application of the norm. Consequently, the keen observer may conclude that, despite finding the application of jus cogens several times in its work, the Court's embrace of the concept is somewhat hesitant.

Application of the norm of jus cogens in the law of treaties in the context of these advisory proceedings

83. Having found that the right to self-determination is a norm of jus cogens, the question arises whether there was a treaty between the United Kingdom and the United States that conflicted with it. If that is the case, that treaty would, pursuant to Article 53 of the VCLT, be void.

84. On 30 December 1966, the United Kingdom and the United States adopted an Exchange of Notes constituting an Agreement concerning the Availability for Defence Purposes of the British Indian Ocean Territory (with Annexes) (“the 1966 Agreement”)Footnote ³⁸. Paragraph 2 (a) of the 1966 Agreement provides:

85. An Agreed Minute of the same date indicates that “the following agreement and understanding [was] reached:

86. In addition to the 1966 Agreement imposing an obligation on the United Kingdom to make the island available to the United States for defence purposes, it also dealt with the collateral matter of the administrative measures that the United Kingdom would have to take in relation to the discharge of that obligation. These measures are as much a part of the 1966 Agreement as the United Kingdom's agreement to make the islands available for defence purposes. Significantly the United Kingdom was charged with the responsibility of the resettlement of the inhabitants. Although the Agreed Minute speaks of resettlement, it necessarily implies removal of the inhabitants prior to their resettlement. The Court's Advisory Opinion indicates that all the Chagossians were removed between 1967 and 1973.

87. The objective of the 1966 Agreement to make the islands available to the United States for defence purposes and the obligations incurred by the United Kingdom under the Agreed Minute, including in particular, resettlement of the Chagossians who had been removed, are all in conflict with the right of the peoples of Mauritius including the Chagossians, to self-determination. The Advisory Opinion makes clear that the essence of this right is the obligation to respect the freely and genuinely expressed will of colonial peoples as to their political status and economic, social and cultural development. Nowhere in the proceedings is there any evidence that the peoples of Mauritius, including the Chagossians, were consulted and their freely and genuinely expressed will ascertained as to the establishment of the military base on the islands of the archipelago, and the removal and resettlement of the inhabitants of the islands. Of course, the 1966 Agreement was concluded against the background of the United Kingdom's detachment of the Chagos Archipelago from Mauritius some 13 months before, on 8 November 1965. The Court in its Advisory Opinion has found that this act contravened the right to self-determination. However that finding does not mean that other acts carried out in the decolonization process by the administering Power did not also contravene the jus cogens norm of the right to self-determination.

88. The 1966 Agreement therefore conflicts with the right to self-determination of the peoples of Mauritius including the Chagossians, and is void by virtue of Article 53 of the VCLT, since that right is a norm of jus cogens. The 1966 Agreement is incapable of producing any legal effects. According to the Monetary Gold principle, the Court will not exercise jurisdiction where the legal interests of a third State would form “the very subject matter” of the claimFootnote ³⁹. In my view, that principle would not prevent the Court making a finding of voidness of the 1966 Agreement in the circumstances of these proceedings.

Application of the norm of jus cogens in the law of State responsibility in the context of these advisory proceedings

89. In its Advisory Opinion, the Court found that the detachment of the archipelago by the United Kingdom was an unlawful act. The legal consequences of an unlawful act that breaches a peremptory norm are addressed by Articles 40 and 41 of the International Law Commission draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001. These Articles, which would appear to reflect general international law, relate to the consequences of serious breaches of an international obligation. Article 41 is devoted to consequences of a serious breach of an obligation arising under a peremptory norm of general international law. “Serious breach” is defined as a “gross or systematic failure by the responsible State to fulfil the obligation”. It is beyond question that the United Kingdom's detachment of the archipelago from Mauritius is a gross failure on the part of the United Kingdom. States have an obligation not to “recognize as lawful a situation created by a serious breach within the meaning of Article 40, nor render aid or assistance in maintaining that situation”. The Commentary to the Draft Articles makes clear that this duty applies to all States, including the responsible State. In the Legal Consequences of the Construction of a Wall, the Court found that all States had a similar obligation in respect of the breach of the right to self-determination, which it confirmed as a right establishing obligations erga omnes.