I. Introduction
[The] Pacific [Ocean] is one of the last regions of the world where the heavy hand of colonialism continues to be played … These remnants of the past must be lifted from our ocean, for, in all truth … until all of us are free, none of us are.Footnote 1
The above words are by Father Walter Lini, the first Prime Minister of an independent Vanuatu, and spoken in 1982. It still has resonance today, as peoples on islands (and in other territories) across the globe are too often seen as being without the ability to resist the waves of power and economic interests of colonial and other States.Footnote 2 It was into such a situation that the International Court of Justice (ICJ) gave its Advisory Opinion on the Chagos Archipelago (Chagos Opinion).Footnote 3
The Chagos Opinion in its factual and legal context has been insightfully reviewed by Stephen Allen in the companion article. The focus of this article is what the Chagos Opinion means in terms of territorial integrity and consent for those seeking the right to self-determination in colonial (or other non-self-governing) territories. In particular it seeks to answer the questions about whose territorial integrity and what type of consent is now required under customary international law in relation to the right to self-determination.
These are critical issues as often core arguments made by States to resist the right to self-determination are that such exercise would be contrary to the territorial integrity of the State concerned, and that only a State's consent is relevant to any decisions about that territory. We aim to show in this article how there is another territorial integrity and another type of consent that is relevant—that of the colony and that of the people of the colonial territory. We also show that the Chagos Opinion is applicable in other situations, with a special focus on West Papua.
II. Territorial Integrity
Territorial integrity was an issue before the ICJ in the Chagos Opinion. The Court had to determine if the actions of the United Kingdom (UK) in dividing the one colonial territory comprising Mauritius and the Chagos Archipelago into two, being that of Mauritius and a new colony which became the British Indian Ocean Territory (BIOT), which comprised the Chagos Archipelago. The facts are set out in the companion article, with the relevant facts for our purposes being that the UK divided the colony in two in November 1965.
In the Chagos Opinion, the ICJ took the view that the right to self-determination was crystallised by the United Nations (UN) General Assembly Resolution 1514 (XV), being the Declaration on the Granting of Independence to Colonial Countries and Peoples, which was passed on 15 December 1960. In paragraph 152 of the Chagos Opinion, the ICJ stated:
The Court considers that, although resolution 1514 (XV) is formally a recommendation, it has a declaratory character with regard to the right to self-determination as a customary norm, in view of its content and the conditions of its adoption.
Thus the ICJ concluded that the right to self-determination was customary international law as at December 1960.
The ICJ then considered what was the consequence of this position for territorial integrity. It stated:
The Court recalls that the right to self-determination of the people concerned is defined by reference to the entirety of a non-self-governing territory, as stated in the aforementioned paragraph 6 of resolution 1514 (XV) … Both State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination … The Court considers that the peoples of non-self-governing territories are entitled to exercise their right to self-determination in relation to their territory as a whole, the integrity of which must be respected by the administering Power.Footnote 4
This statement clarifies four matters: first, that the right to territorial integrity of a colonial territory is a corollary of the right to self-determination; second, that the territorial integrity is of the colonial territory; third, that the right to territorial integrity of a colonial territory is a matter of customary international law as from December 1960; and fourth, that it is the colonial territory as a whole which has territorial integrity.
In its Written Statement before the ICJ, Mauritius argued that a ‘legal corollary’ of the right to self-determination is the territorial integrity of the totality of a colonial territory, which prohibits the arbitrary division of that territory prior to independence.Footnote 5 It relied on jurists such as Malcolm Shaw, who commented that ‘[a]s a rule, the need to maintain the colonial unit during the period leading up to independence is clearly a crucial element in the viability of the concept of self-determination’.Footnote 6 The UK disputed this, in stating that ‘[t]erritorial integrity and self-determination are not neat corollaries. The principles can pull in different directions: a claim to self-determination may be a claim against territorial integrity (e.g. if the arbitrarily drawn colonial boundaries suppress the political empowerment of a people by creating divisions on the ground).’Footnote 7 The ICJ accepted the former argument and determined that territorial integrity was a right which was directly linked to, and associated with, the right to self-determination.
This conclusion by the ICJ is hinged on its interpretation of paragraph 6 of Resolution 1514, as seen in the statement in para 160 quoted above. Paragraph 6 provides:
Any 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 Charter of the United Nations.
In the situation before the ICJ, the issue concerned a particular instance of ‘disruption’ to the territorial integrity of a colonial territory by the division of that territory.
A number of States before the ICJ argued that paragraph 6 did not refer to the territorial integrity of a colonial territory but to the territorial integrity of a State.Footnote 8 In so arguing, some of the States relied in part on the terminology used in General Assembly Resolution 2625, being the Declaration on Principles of International Law, Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations 1970. Resolution 2625 is one of the few other General Assembly resolutions which have been considered by the ICJ to crystallise customary international law.Footnote 9 This Resolution provides in paragraph 7:
Nothing in the foregoing paragraph [about the right to self-determination] shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
While there is clearly a limitation on the territorial integrity of States in this provision, as it is restricted to situations where international self-determination is exercised,Footnote 10 nevertheless it indicates that there is a territorial integrity of a State to be taken into account in relation to some issues in the exercise of the right to self-determination. Indeed, many jurists tend to focus on this aspect of territorial integrity in relation to the right to self-determination.Footnote 11
Yet there are strong arguments that the territorial integrity referred to in paragraph 6 of Resolution 1514 was that of a colonial territory and not of a State. The four main arguments are, first, that the use of the non-State terminology of a ‘country’ in paragraph 6 aims at distinguishing between territorial integrity applicable to a State and the territorial integrity of colonial territories, which follows from the context of Resolution 1514 in which its Preamble includes the words ‘that all peoples have an inalienable right to … the integrity of their national territory’. Second, the title given to Resolution 1514 is the Declaration on the Granting of Independence to Colonial Countries and Peoples; hence it is the ‘colonial countries’ which are the subject of the words set out in paragraph 6. Third, the French text of the Declaration uses the word ‘pays’ rather than ‘état’, when referring to the territorial integrity of countries, making it clear that it is not a State's territorial integrity in issue. Fourth, a proposed amendment to paragraph 6 to include the words ‘the right of territorial integrity of any state’ was not adopted.Footnote 12
The ICJ accepted these latter arguments, as the Court continually referred to the territorial integrity of a colonial (non-self-governing) territoryFootnote 13 and not that of the territorial integrity of States. This is made clear in the Separate Opinion of Judge Robinson:
[T]he 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 [Resolution] 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 … . 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.Footnote 14
Accordingly, the ICJ made clear that the right to territorial integrity of a colonial territory is the right protected by paragraph 6 of Resolution 1514.
It is this right to territorial integrity that the ICJ considered was part of the customary international law. As noted above, the ICJ in paragraph 160 stated: ‘[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination’. While there was some, though not plentiful, evidence of direct State practice and opinio juris on the right to self-determination being customary international law as at December 1960,Footnote 15 there was less State practice and opinio juris on there being a right to territorial integrity of colonial territories as at that date.
However, as shown in the written and oral arguments of Belize, there were some examples of State practice on this issue, such as in Algeria and South West Africa (now Namibia), subsequent to Resolution 1514 which showed that paragraph 6 of Resolution 1514 was being applied as customary international law by States.Footnote 16 Indeed, when the UK separated the Chagos Archipelago from the colony of Mauritius in November 1965, the General Assembly passed Resolution 2066 shortly afterwards, in which it criticised this action and stated:
[A]ny step taken by the administering Power to detach certain islands from the Territory of Mauritius … would be in contravention of [Resolution 1514], and in particular paragraph 6 thereof [and invites the UK] to take no action which would dismember the Territory of Mauritius and violate its territorial integrity.Footnote 17
This Resolution specifically refers to paragraph 6 of Resolution 1514.
The conclusion of the ICJ was that the right to territorial integrity, as a corollary of the right to self-determination, was customary international law as at December 1960. By December 1960 customary international law prohibited the disruption of the territorial integrity of a colonial territory, without the free and genuine consent of the people of that territory (which is discussed in the next section).
The final element in the ICJ's view on territorial integrity of colonial territory was that it was in relation to the territory ‘as a whole’. This follows from paragraph 6 of Resolution 1514 in that it provides that there should be no ‘partial or total disruption’ of the territorial integrity of a colonial territory. This approach was strongly argued against by the UK and the United States (US) before the ICJ. As the UK argued in their Written Comments:
[D]ecolonization practice during the 1950s and 1960s involved non-self-governing territories changing their boundaries prior to and upon independence through detachment, merger, partition and other arrangements, often with the acquiescence of the UN. A ‘right’ to the territorial integrity of the totality of the non-self-governing territory prior to independence is not only unsupported by extensive and virtually uniform State practice, but such a finding would put many existing, settled boundaries into doubt.Footnote 18
Eminent international lawyers took a starkly different view, with James Crawford stating:‘Administering States are not at liberty to divide up or dismember those territories in violation of self-determination.’Footnote 19
The ICJ clearly favoured the latter view. Of course, in the particular instance of the Chagos Archipelago separation from Mauritius, the General Assembly had, as noted above, already declared it to be contrary to Resolution 1514.
Accordingly, the ICJ considered that there was a territorial integrity of colonial territories crystallised by paragraph 6 of Resolution 1514. It was this colonial territory—as a whole—that has territorial integrity under customary international law. This is distinct from the territorial integrity of a State. A colonial power could not lawfully divide, integrate or otherwise disrupt the territory of a colonial territory after December 1960. If it did so then it was in violation of customary international law. Indeed, the reason for including territorial integrity of a colonial territory as part of the right to self-determination was to protect the peoples of that territory from actions of the administering power that would divide or otherwise deal with the colonial territory against those peoples’ interests. This protection was to make clear that the interests of the peoples of a colonial territory had legal protection over the financial, military or other interests of colonial powers. From December 1960, the territorial integrity of a colonial territory was no longer to be sacrificed for the self-interests of a colonial power or of any other State.
This position in 1960 is in marked contrast to the position after the First World War, where the diary of a participant at the Versailles conference had these notes about dividing an empire:
May 8 1919 – During the afternoon [at the Quai d'Orsay] … the fate of the Austro-Hungarian Empire is finally settled. Hungary is partitioned by these five distinguished gentlemen – indolently, irresponsibly partitioned – while the water sprinkles on the lilac outside – while the experts watch anxiously – while AJB [Balfour, UK Foreign Minister], in the intervals of dialectics on secondary matters, relapses into somnolence – while Lansing [US Secretary of State] draws hobgoblins on his writing pad – while Pichon [French Foreign Minister], crouching in his large chair, blinks owlishly as decision after decision is actually recorded … . They begin with Transylvania, and after some insults flung like tennis balls between Tardieu [Coordinator of the Versailles Treaties] and Lansing, Hungary loses her south. Then Czechoslovakia, and while the flies drone in and out of the open windows Hungary loses her north and east. Then the frontier with Austria, which is maintained intact. Then the Jugo-Slav frontier, where the Committee's report is adopted without change. Then tea and macaroons.Footnote 20
This method of decision-making over territorial boundaries without regard to the interests of the territory concerned seems to have continued for many decades. However, the Chagos Opinion that the territorial integrity of a colonial territory is a matter of customary international law will, it is hoped, put an end to decisions about territory which are not based on law and are too focussed on tea and macaroons.
III. Consent of the People of the Territory
The ICJ did expressly acknowledge an exception to the customary international law prohibition on disrupting the territorial integrity of a colonial territory: being when it is undertaken with the free and genuine consent of the people of that territory. At paragraph 157 of its Opinion, the ICJ made clear that any change to the territorial integrity of a colonial territory ‘must be [by] the expression of the free and genuine will of the people concerned’ and not by any State or States. Further, the ICJ determined:
It follows that any detachment by the administering Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination.Footnote 21
This position arises from paragraph 5 of Resolution 1514, which provides:
Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.Footnote 22
The ICJ had previously made clear that this provision was customary international law, as in its Western Sahara Opinion it stated that ‘the application of the right to self-determination requires a free and genuine expression of the will of the people concerned’.Footnote 23 Indeed, Judge Nagendra Singh in his Declaration in the Western Sahara Opinion made clear that ‘ascertaining the freely expressed will of the people [is] the very sine qua non of all decolonization’.Footnote 24
There was general agreement by the many States appearing before the ICJ,Footnote 25 that the free and genuine expression of the will of the people was needed as part of the exercise of the right to self-determination.Footnote 26 Therefore, much of the argument on this issue concerned particular factual issues as to whether the various Mauritius officials had given the necessary consent and what type of legal method was needed to determine this consent. For example, the UK agreed that there needed to be consent and argued that consent could be given in many ways:
There are, in fact, a variety of ways in which a population [of a colonial territory] may express its consent, including constitutional conferences, agreement of elected representatives, elections and parliamentary votes. A referendum is not required for the overall determination of their political status let alone for the specific situation of the modification of territorial boundaries prior to independence, such as the detachment of a dependency.Footnote 27
In contrast, Mauritius and other States argued that the only lawful means was by a referendum or plebiscite.Footnote 28
In the end, the ICJ did not decide if a referendum and/or a general election was needed. However, they did look at the factual situation as to whether the people of Mauritius (after the separation of the Chagos Archipelago but before Mauritius’ independence) had in fact exercised such free and genuine consent when, in 1965, Mauritian Ministers agreed in principle to the detachment of the Chagos Archipelago from Mauritius in the ‘Lancaster House Agreement’. They concluded:
The Court observes that when the Council of Ministers [of Mauritius] agreed in principle to the detachment from Mauritius of the Chagos Archipelago, Mauritius was, as a colony, under the authority of the United Kingdom. As noted at the time by the [UN] Committee of Twenty-Four [on Decolonisation]: ‘the present Constitution of Mauritius … do[es] not allow the representatives of the people to exercise real legislative or executive powers, and that authority is nearly all concentrated in the hands of the United Kingdom Government and its representatives’ (UN doc. A/5800/Rev.1 (1964–1965), p. 352, para. 154). The Court is of the view that heightened scrutiny should be given to the issue of consent in a situation where a part of a non-self-governing territory is separated to create a new colony. Having reviewed the circumstances in which the Council of Ministers of the colony of Mauritius agreed in principle to the detachment of the Chagos Archipelago on the basis of the Lancaster House agreement, the Court considers that this detachment was not based on the free and genuine expression of the will of the people concerned.Footnote 29
Here the ICJ applied a test of ‘heightened scrutiny’ in order to determine whether Mauritius had in fact consented to a territorial change to its colonial territory, in light of the power imbalances that arise between an administering colonial power and the people of the colonial territory. In practice, this test of heightened scrutiny means that the existence of consent by the people of a colonial territory should be critically examined and not just assumed to exist where the administering power—or other powerful States—make that claim.
Therefore, the ICJ made clear that the right to self-determination under customary international law requires the free and genuine consent of the people of the colonial territory. Where there are statements that this consent has been given outside a referendum or general election, there needs to be heightened scrutiny as to whether this consent is genuine and freely given, and is not decided as a consequence of an imbalance of power.
IV. Applications of the Chagos Opinion
The focus of this section is on a particular situation: that of West Papua, being part of an island in the Pacific Ocean. However, an additional comment is first needed on its application in relation to the UK.
A. United Kingdom
In the companion article, Stephen Allen has clarified the international actions that have occurred since the Chagos Opinion, and some of the national actions taking place in relation to the European Convention on Human Rights.Footnote 30 The Chagos Opinion is also relevant to English domestic law.
In English domestic law, customary international law is a source of the common law.Footnote 31 Indeed, English courts have directly applied ICJ Advisory Opinions as expressing the relevant customary international law. For example, in Serdar Mohammed v Ministry of Defence Lord Sumption stated:
In Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion [1971] ICJ Rep 16, paras 115–116, the International Court of Justice confirmed that these provisions [of the UN Charter] are binding not only by treaty on members of the United Nations but as a matter of customary international law on the small number of States which are not members.Footnote 32
The Namibia Advisory Opinion, which is referred to by Lord Sumption, also determined that the right to self-determination was a matter of customary international law, as has the Chagos Opinion.Footnote 33
There are limits to the application of customary international law in the English courts. In R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs, Lord Mance stated:
Speaking generally, in my opinion, the presumption when considering any such policy issue is that [customary international law], once established, can and should shape the common law, whenever it can do so consistently with domestic constitutional principles, statutory law and common law rules which the courts can themselves sensibly adapt without it being, for example, necessary to invite Parliamentary intervention or consideration.Footnote 34
Whether the customary international law of the right to self-determination is consistent with UK constitutional principles, legislation and the common law will be a matter to be decided in 2020 by the Court of Appeal in R (on the Application of Hoareau and Bancoult) v Secretary of State for Foreign and Commonwealth Affairs.Footnote 35
B. West Papua
From the late 16th century, there was a Dutch presence in the Micronesian islands, in what was called the Dutch East Indies. Initially, these territories were controlled by the Dutch East India Company (being an early example of significant corporate territorial power)Footnote 36 before coming under the sovereignty of the Dutch government in 1800. West Papua, which was then called ‘West New Guinea’ and is part of Melanesia and not Micronesia, was not under formal Dutch administration until 1898, though there was very limited administration before World War Two.Footnote 37
After the end of that war, the Netherlands agreed to Indonesian independence over the rest of the Dutch East Indies. However, before it agreed to this, it made West Papua a separate colonial territory, which was for the following reasons:
The exclusion of West New Guinea from [what became] newly independent Indonesia was largely the result of strong Papuan opposition that made it clear that the inhabitants of West New Guinea had no interest in being grouped with Indonesia … with differences in language and ethnic background as the major factors separating the people of Papua from the rest of the archipelago … [T]he Dutch promised to bring West New Guinea into the modern world by educating and training the indigenous Papuans to govern the country and then pulling out of the area.Footnote 38
In General Assembly Resolution 448(V) of 12 December 1950, the General Assembly noted that:
[T]he communication dated 29 June 1950 from the Government of the Netherlands in which it is stated that the Netherlands will no longer present a report pursuant to Article 73e on Indonesia with the exception of West New Guinea.Footnote 39
From December 1950 West Papua, which was then known as ‘Netherlands New Guinea’ or ‘West New Guinea’, was listed by the United Nations as a Non-Self-Governing Territory (ie a colonial territory) and the Netherlands reported on its colonial administration of that territory.Footnote 40
Over time, the Indonesian government increasingly insisted that West Papua was part of the original colony of Dutch East Indies and so should be returned to it, as part of their own argument for the territorial integrity of a colonial territory.Footnote 41 Eventually external pressure, especially from the US,Footnote 42 led to the Agreement Concerning West New Guinea (West Irian) in 1962,Footnote 43 which became known as the New York Agreement. It was brokered by the US between the Netherlands and Indonesia and no West Papuans were involved. The Agreement included the following provision:
Article XVIII: Indonesia will make arrangements, with the assistance and participation of the United Nations Representative and his staff, to give the people of the territory [of West Papua] the opportunity to exercise freedom of choice. Such arrangements include:
Formulation of the questions in such a way as to permit the inhabitants to decide (a) whether they wish to remain with Indonesia; or (b) whether they wish to severe ties with Indonesia.
The eligibility of all adults, male and female, not foreign nationals to participate in the act of self-determination to be carried out in accordance with international practice, who are resident at the signing of the present Agreement and at the time of the act of self-determination, including those residents who departed after 1945 and who return to the territory to resume residence after the termination of Netherlands administration.Footnote 44
General Assembly Resolution 1752 (XVII) dated 21 September 1962 authorised the Secretary-General to play the role set forth in the Agreement to provide transitional arrangements and assist in the implementation of the Agreement.Footnote 45
In 1969, after seven years of transition, a referendum was to be arranged. The New York Agreement required that the inhabitants of West Papua would have the opportunity to exercise their freedom of choice on whether to integrate with Indonesia or become independent.Footnote 46 That Agreement required, as quoted above, that the free will of the people of West Papua be ascertained by universal suffrage of the territory's inhabitants, ‘in accordance with international practice’. This international practice had seen State practice from the late 1950s in which plebiscites or elections—both based on universal suffrage—were organised or supervised in colonial territories before their division or integration with other States. For example, plebiscites or elections were held in British Togoland Trust Territory (1956), French Togoland (1958), British Northern Cameroons (1959), British Southern Cameroons (1961), Rwanda-Urundi (1961), Western Samoa (1962), the Cook Islands (1965), Equatorial Guinea (1968), Papua New Guinea (1972), Niue (1974), the Ellice Islands (1974), the Northern Marianas (1975) and French Comores (1974, 1976).Footnote 47 Thus State practice in the late 1950s and 1960s is practically uniform in its requirement that there must be a vote, based on universal suffrage, and which must allow a free and genuine choice about the division or integration of a non-self-governing territory. Thus the New York Agreement clearly intended that there be a referendum in which there was universal suffrage by all the inhabitants of West Papua, which was freely obtained.
What actually happened in West Papua was that there was no universal adult suffrage, as only 1,026 men were allowed to vote out of about 1 million inhabitants, being less than 2 per cent of the West Papuan population. These people were self-selected by the Indonesian forces, without any opportunity for them to be representative of all the people of the colonial territory.Footnote 48 In addition, there was intimidation, lack of freedom of expression and arrests of people by the Indonesian forces in West Papua,Footnote 49 which meant that the referendum was conducted under considerable duress. This was compounded by the lack of a secret ballot, as the vote was held in public before Indonesian government and military forces. This situation was confirmed by the UN Representative who was present at the time.Footnote 50 Interestingly, the General Assembly did not specifically approve the outcome but merely took ‘note’ of it.Footnote 51 Today, more than 50 years later, the people of West Papua are still demanding the exercise of their right to self-determination.Footnote 52
This situation is similar to the situation facing the people of the Chagos Archipelago. In relation to West Papua, its territory was separated by colonial power of the Netherlands from the territory of the Dutch East Indies in 1950. This date is important, as there was no suggestion at all by the ICJ in its Chagos Opinion that there were any customary international law obligations on States concerning the division of colonial territories on or before 1950. The ICJ made clear that it was only in December 1960 that there was the ‘defining moment’Footnote 53 of Resolution 1514, following which the right to self-determination of colonial peoples bound all States as a matter of customary international law. While Indonesia has sought to include West Papua into its sovereignty on the basis that that territory was, prior to Indonesia's independence, a part of the one colony,Footnote 54 this argument has been disputed.Footnote 55 In any event, the separation of the Dutch East Indies by The Netherlands in 1950 into a two colonies, one of which became independent Indonesia and the other being the separate colony of West Papua (then called West New Guinea), was clearly lawful under international law in 1950 according to the ICJ.
Further, the colonial territory of West Papua was expressly acknowledged by the General Assembly in Resolution 448 as being a separate colony, as is noted above. From that date in 1950, West Papua was listed by the United Nations as a non-self-governing territory and the Netherlands reported to the UN on its administration of that colonial territory. This is in contrast with the situation of the Chagos Archipelago, since the UK separated the colonial territory in 1965 (after Resolution 1514), did not include the Chagos Archipelago in the list of non-self-governing territories, and was directly criticised at the time by the General Assembly for its actions in dividing the colony.
As the ICJ made clear in the Chagos Opinion, customary international law as at December 1960 required that any ‘disruption’ (to use the words of paragraph 6 of Resolution 1514) to a colonial territory could only be with the free and genuine consent of the people of that colonial territory. In the particular instance of the Chagos Archipelago, the issue was disruption by the division of a colonial territory in two, where one part became independent shortly afterwards and the other part became a new colony. However, ‘disruption’ could, in principle, include any type of action which affected the territorial integrity of a colonial territory, including by integration, free association, detachment or other actions.Footnote 56 So an integration of the colonial territory of West Papua into the State of Indonesia, at least after December 1960, would require the free and genuine consent of the people. Indeed, the legal requirement of free and genuine consent of the people of West Papua was expressly accepted in the terms of the New York Agreement in 1962, as quoted above.Footnote 57
While the ICJ did not clarify what type of method is required for discerning the free and genuine consent of a people of a colonial territory, there was general agreement by the States appearing before it, as noted above, that, whatever method was used, it required a free and genuine choice by all the population of the colonial territory.Footnote 58 Indeed, Resolution 1541, which was passed the day after Resolution 1514, with the aim of setting out how the right to self-determination could be exercised, provided for procedural requirements about how the will of the people is to be determined in circumstances where independence was not sought, such as integration:
The integration [of a colonial territory with another territory] should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage.Footnote 59
The distinct procedural requirements in Resolution 1541 probably reflect the need to ensure that the people of a colonial territory must be given a full informed, free and genuine choice before accepting a status less than independence. That choice required that there be a democratic vote, impartially conducted, and based on universal suffrage.
It is clear from the evidence of the UN Special Representative and others referred to above that the ‘vote’ which occurred in 1969 in West Papua was not democratic, it was not by universal suffrage and it was impaired by intimidation. It was certainly not a free and genuine expression of the will of the people of West Papua.
It should be noted that in the Western Sahara Opinion the ICJ did note that there may be an exception to the requirement of a free and genuine consent of the people:
The validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a ‘people’ entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances.Footnote 60
While the ICJ did not provide any examples when the freely expressed will of the peoples of a colonial territory has been dispensed with by the General Assembly, it did make clear that it would only be dispensed with where this was ‘totally unnecessary’. This is a very high threshold for when the requirement for a referendum could be dispensed with.
Dispensing with the requirement for ascertaining the freely expressed will of the peoples of a colonial territory can certainly not apply to the situation of West Papua. In that situation a referendum was expressly agreed upon by a treaty with clear requirements for the vote by universal suffrage, and the General Assembly did not approve the abandonment of these requirements; it merely noted the situation without stating its approval of them. Further, the ICJ in the Chagos Opinion stated that ‘heightened scrutiny’ is needed in instances where a colonial territory is being disrupted,Footnote 61 such as occurred with West Papua. In practice, this test of heightened scrutiny means that the existence of consent by the people of a colonial territory should be critically examined and not just assumed to exist, or dispensed with, even in situations where the General Assembly has passed a resolution about it. The assertions of a colonial power or a powerful neighbouring State are, as the UK found in the Chagos Opinion, insufficient to deny the colonial peoples this right.
Therefore, in analysing the implications of the Chagos Opinion for the situation in West Papua, there are clear analogies. The colonial territory of West Papua was disrupted by integration with the State of Indonesia in 1969, being after the right to self-determination became customary international law in December 1960. The customary international law right to self-determination required that this integration could only be done where this was the free and genuine wish of the people of West Papua. That choice required that there be a democratic vote, impartially conducted, and based on universal suffrage. This did not occur.
The ICJ determined in the Chagos Opinion, that, as a consequence of the lack of the right to self-determination in the Chagos Archipelago:
[I]t follows that the United Kingdom's continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State … . It is an unlawful act of a continuing character which arose as a result of the separation of the Chagos Archipelago from Mauritius. Accordingly, the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible.
Similarly, the integration of West Papua was, and remains, unlawful as contrary to customary international law. Moreover, as stated in the Chagos Opinion,Footnote 62 other States are under an obligation to act so as to give effect to this legal position.
V. Conclusions
In the Chagos Opinion, the ICJ has made very clear that the right to self-determination was crystallised into customary international law by Resolution 1514. Part of this customary international law is that there was a right to territorial integrity of the whole colonial territory as one entity. This affirmed that this right is completely distinct from that of the territorial integrity of independent States, such as found in Resolution 2625, and should not be confused. Accordingly, a colonial territory could not lawfully be disrupted after December 1960 by the division of a colonial territory, as in the Chagos Archipelago situation, or by integration with another territory, as in the West Papua situation.
The only lawful exception to this prohibition on the division or integration of a colonial territory after December 1960 is where there is a free and genuine choice by the people of that colonial territory. This requires a democratic vote, impartially conducted, with universal suffrage and which is free from coercion. This can be by a referendum or possibly by a general election where these issues are directly put to the people. The situation in Mauritius in 1965 and in West Papua in 1969 did not fulfil these requirements. The consequences of this is that the division and integration in each situation is, and remain, unlawful under international law. This legal position will also have implications for other territories, whether colonies or not, which were forcibly separated or integrated by powerful States after 1960 without regard to the right to self-determination of the people of that territory.Footnote 63
Above all, the Chagos Opinion has reasserted the right to self-determination as a right which protects the whole territory, and which upholds the importance of the free and genuine consent of the people of that territory. It rejects colonialism in all its forms and manifestations, and asserts the right of oppressed peoples over powerful States. After all, it confirms that ‘until all of us are free, none of us are’.
