Trinidad - Self-Determination in Disputed Colonial Territories (2018)

SE L F- D E T E R M I NAT IO N I N D I SP U T E D
C O L O N IA L T E R R I T O R I E S
Self-Determination in Disputed Colonial Territories addresses the relation-

ship between self-determination and territorial integrity in some of the
most difficult decolonization cases in international law. It investigates his-
torical cases, such as Hong Kong and the French and Portuguese territories
in India, as well as cases that remain very much alive today, such as the
Western Sahara, Gibraltar, the Falkland Islands, and the Chagos Islands.
This book provides a comprehensive analysis of colonial territories that are,
or have been, the subject of adverse third-party claims, invariably by their
neighbouring states. Self-Determination in Disputed Colonial Territories
takes a contextual, historical approach to mapping the existing law and will
be of interest to international lawyers, as well as scholars of international
relations and students of the history of decolonization.
Jamie Trinidad is Fellow of Wolfson College, University of Cambridge

and the Lauterpacht Centre for International Law. He was called to the Bar
of England and Wales in 2001, and the Bar of Gibraltar in 2005. He holds
postgraduate degrees in international law and international relations from
the University of Cambridge and the University of Oxford.
Cambridge Studies in International and
Comparative Law: 134
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SE L F- D E T E R M I NAT IO N
I N D I SP U T E D C O L O N IA L
TERRITORIES
JA M I E T R I N I DA D
University of Cambridge
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www.cambridge.org
Information on this title: www.cambridge.org/9781108418188
DOI: 10.1017/9781108289436
© Jamie Trinidad 2018
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
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permission of Cambridge University Press.
First published 2018
Printed in the United Kingdom by Clays, St Ives plc
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Trinidad, Jamie.
Title: Self-determination in disputed colonial territories / Jamie Trinidad.
Description: Cambridge [UK] ; New York : Cambridge University Press, 2017. |
Series: Cambridge studies in international and comparative law ; 134 |
Includes bibliographical references and index.
Identifiers: LCCN 2017042286 | ISBN 9781108418188 (hardback)
Subjects: LCSH: Self-determination, National. | Colonies (International law)
| Autonomy. | Decolonization. | BISAC: LAW / International.
Classification: LCC KZ1269 .T75 2017 | DDC 341.2/8—dc23 LC record available
at https://lccn.loc.gov/2017042286
ISBN 978-1-108-41818-8 Hardback
Cambridge University Press has no responsibility for the persistence or
accuracy of URLs for external or third-party internet websites referred to
in this publication and does not guarantee that any content on such
websites is, or will remain, accurate or appropriate.
For my parents
CONTENTS
Acknowledgements page xiii

Abbreviations xv
Table of Cases xix
Table of Treaties xxi
1 Introduction 1
1.1 Methodology and Problématique 2
1.2 Self-Determination: The Emergence of an International
Legal Rule 6
1.3 The Progression of the Chapters 17
2 Territorial Integrity and the Limits of Self-Determination:

Paragraph 6 of the Colonial Declaration 21
2.1 The Drafting History of Paragraph 6 of the Colonial
Declaration 23
2.1.1 The Geopolitical Context of the Debate: The Crises in Katanga
and West Irian 24
2.1.1.1 Katanga 25
2.1.1.2 West Irian 26
2.1.2 The General Assembly Debate on Paragraph 6 30
2.2 Paragraph 6 and ‘Legal Ties of Territorial Sovereignty’: The Western
Sahara Advisory Opinion of the ICJ 38
2.2.1 Background 38
2.2.1.1 Western Sahara in the Context of Spanish
Colonialism in Northern Africa 38
2.2.1.2 The General Assembly Resolutions on Ifni and
Western Sahara 41
2.2.2 The Western Sahara Advisory Opinion 43
2.2.2.1 The Request by the General Assembly for an
Advisory Opinion 43
2.2.2.2 Diverse Interpretations of Paragraph 6 in the
Submissions on ‘Legal Ties’ 44
2.2.2.3 The ICJ’s View on ‘Legal Ties’ and the Scope of
Paragraph 6 50
vii
viii contents
2.2.2.4 ‘Non-peoples’, and ‘Special Circumstances’: A
Lifeline for the ‘Irredentist’ Interpretation of
Paragraph 6? 56
2.2.2.4.1 ‘Non-peoples’, and the Scope of
Self-Determination 58
2.2.2.4.2 ‘Special Circumstances’, and
the Content and Status of
Self-Determination 62
2.2.2.4.3 The Dangers of Judicial Ambiguity 63
2.3 Conclusion 66
3 Territorial Integrity, Irredentist Claims, and the Identification

of Self-Determination Units in State Practice 70
3.1 The (General) Prohibition on the Fragmentation of
Non-Self-Governing Territories 73
3.1.1 The Primacy of Territorial Integrity in Contested Cases of
Partition and Alienation of Colonial Territory 74
3.1.1.1 Mayotte 74
3.1.1.1.1 Background to the Dispute 74
3.1.1.1.2 The Response of UN Organs and Other
International Bodies to the Separation
of Mayotte 76
3.1.1.1.3 Rationalizing the Treatment
of Mayotte in International Legal
Doctrine 78
3.1.1.2 The Scattered Islands (Îles Éparses) 80
3.1.1.3 The Chagos Islands 83
3.1.1.3.1 Background to the Dispute 83
3.1.1.3.2 International Reaction to the
Detachment of the Chagos Islands 86
3.1.2 Accepted Departures from Uti Possidetis in Exceptional
Cases 91
3.1.2.1 British Cameroons 92
3.1.2.2 Ruanda-Urundi 93
3.1.2.3 The Trust Territory of the Pacific
Islands 94
3.1.2.4 The Gilbert and Ellice Islands Colony 95
3.1.2.5 The Cocos (Keeling) Islands and Christmas
Island 96
3.2 Irredentist Claims Based on Ties of Territorial Sovereignty Evidenced
by Treaty 102
3.2.1 The Panama Canal Zone 103
3.2.1.1 The Nature of the Grant 104
3.2.1.2 The ‘Listing’, and Subsequent ‘Delisting’, of the
Zone as a Non-Self-Governing Territory under
Chapter XI of the Charter 106
contents ix
3.2.2 Hong Kong 108
3.2.2.1 The ‘Mixed’ Nature of Britain’s Territorial Rights
over Hong Kong in International Law 109
3.2.2.2 The ‘Delisting’ of Hong Kong as a
Non-Self-Governing Territory under Chapter XI
of the UN Charter, as a Prelude to the
Sino-British Joint Declaration of 1984 110
3.2.2.3 The ‘Unequal Treaties’ Doctrine 113
3.2.2.4 The Denial of Self-Determination 117
3.2.3 Macau 119
3.2.4 Gibraltar: Treaty-Based Considerations 120
3.2.4.1 Are There Present-Day ‘Legal Ties of Territorial
Sovereignty’ between Spain and Gibraltar? 121
3.2.4.2 Does the Reversionary Clause Create ‘Legal Ties’
between Spain and Gibraltar That Would Trump
the Exercise of Self-Determination? 128
3.3 The Falkland/Malvinas Islands: A Dispute over Title,
Not Historical Title 133
3.3.1 Historical Background and the Legal Arguments
of the Parties 135
3.3.1.1 Background to the Dispute 135
3.3.1.2 The Arguments of the Parties 138
3.3.2 The UN Approach towards the Decolonization of
the Falkland/Malvinas Islands 143
3.3.3 Situating the Case of the Falkland/Malvinas Islands within a
Doctrinal Account of the Right to Self-Determination 147
3.4 Conclusion 152
4 Is There a ‘Colonial Enclaves’ Exception to the

Self-Determination Rule? 157
4.1 Enclaves and Decolonization Doctrine 162
4.1.1 Enclaves 162
4.1.2 Doctrinal Efforts to Address a Perceived ‘Enclave Problem’ in the
Context of Decolonization 164
4.1.2.1 Rigo-Sureda (1973) 166
4.1.2.2 Crawford (1979 and 2006) 170
4.1.2.3 Shaw (1986) 175
4.1.2.4 Higgins (1983) 177
4.2 Disputed Enclaves in Decolonization Practice – Apparent Deviations
from the Norm 178
4.2.1 The French Territorial Possessions in India 179
4.2.2 São João Baptista de Ajudá 186
4.2.3 Goa and Dependencies 188
4.2.3.1 Goan Self-Determination as the Rhetorical
Driving Force Prior to the Indian Invasion
in 1961 188
x contents
4.2.3.2 A Shift in the Indian Rhetoric after the 1961
Invasion 190
4.2.3.3 A Divided International Response 191
4.2.3.4 A New Legal Doctrine Subversive of Eurocentric
International Law? 193
4.2.4 Ifni 195
4.2.4.1 Did the General Assembly Treat Ifni as a
‘Colonial Enclave’? 196
4.2.4.2 Did the ICJ Approve of the General Assembly’s
Treatment of Ifni as a ‘Colonial Enclave’? 197
4.2.5 Gibraltar: ‘Exceptionalist’ Aspects of the Spanish Claim 199
4.2.5.1 Gibraltar in the General Assembly 200
4.2.5.2 Ethnic and Economic Labelling as a Putative
Basis for Setting Aside Self-Determination 205
4.2.6 Walvis Bay 210
4.3 Other Disputed Enclave-Like Territories 214
4.3.1 Belize and East Timor: Self-Determination Delayed but Not
Denied 214
4.3.1.1 Belize 215
4.3.1.1.1 The Guatemalan claim 215
4.3.1.1.2 Belize Compared with Other
Anomalous Cases 217
4.3.1.2 East Timor 220
4.3.2 Spain’s Remaining (Non-colonial?) Enclaves in Africa 223
4.3.2.1 The Territories 223
4.3.2.1.1 Ceuta 223
4.3.2.1.2 Melilla 224
4.3.2.1.3 Vélez de la Gomera 224
4.3.2.1.4 Alhucemas 225
4.3.2.1.5 Islas Chafarinas 225
4.3.2.1.6 Perejil/Parsley Island 225
4.3.2.2 The Pursuit of Morocco’s Claims in the UN 226
4.3.2.3 The Analogy with Gibraltar 228
4.3.2.4 The Parallels between São João Baptista de Ajudá
and the Three Spanish Fortress Territories (and
Perejil) 232
4.4 Conclusions 235
5 Overall Conclusions 239

5.1 Self-Determination and Territorial Integrity 239
5.2 A Broad Conception of Territorial Sovereignty 240
5.3 Ethnographic versus Territorial Conceptions of ‘Peoplehood’ 241
5.4 ‘Palliative’ Internal Self-Determination 243
5.5 Can the Hardest Cases Be Explained by a Doctrine of
Exception? 244
contents xi
Appendix: Quantitative Analysis of the Terms ‘Colonial Enclaves’
(English), ‘Enclaves Coloniales’ (Spanish), and ‘Enclaves
Coloniales’ (French) 247
Bibliography 251
Index 261
Cambridge Studies in International and
Comparative Law 267
AC K N OW L E D G E M E N T S
This book began life as a PhD thesis undertaken under the supervision
of Marc Weller and Tom Grant, and examined by James Crawford and
Malcolm Shaw. I wish to thank them all for their thoughtful and criti-
cal comments. I am also indebted to the anonymous referees who gave
up their time to review the manuscript for Cambridge University Press.
Nicholas Maciolek was kind enough to read and comment on an earlier
draft. While I have benefited greatly from the insights of all these individu-
als, I am of course to blame for any errors or deficiencies that remain in
the text.
Others have contributed in indirect, but no less valuable, ways. My wife,
family, and friends have been a constant source of support. The Bakers
were like a second family during much of the writing process. Roger Clark,
Linda Fisher, Pervaiz Nazir, and Sarah Nouwen offered valuable advice
and assistance, without which this book would probably not have materi-
alized. My colleagues at Wolfson College and the Lauterpacht Centre have
provided me with a friendly and stimulating work environment.
Among my many wonderful colleagues in the world of legal practice,
I owe special thanks to the Isola family for their unfailing support. Peter
J. Isola sparked my interest in some of the issues discussed in this book.
Peter A. Isola and Albert Isola understood why I wanted to embark on this
research, and have encouraged me at every stage. The same can be said for
Michael Llamas, whom I have been privileged to work with and learn from
in recent years.
My research has been funded by generous grants from the Government
of Gibraltar and the Kusuma Trust.
I have strived to be objective throughout this book, not least in the treat-
ment of my native Gibraltar, whose government I sometimes advise and
represent. I will leave it to the reader to judge whether I have succeeded in
this aim. All the views I express in the book are personal and should not be
attributed to any other person or organization.
xiii
xiv acknowledgements
I am especially grateful to Finola O’Sullivan of Cambridge University
Press, who has been enthusiastic and helpful from the moment she took
this project under her wing.
The sections in this book that deal with the Spanish enclaves in Morocco
and the French enclaves in India have appeared, in slightly modified form,
as articles in the International and Comparative Law Quarterly and the
Max Planck Encyclopaedia of Public International Law, respectively.
Finally, and above all, I thank my parents for their steadfast love, sup-
port, and encouragement. This book is dedicated to them.
A B B R EV IAT IO N S
AFDI Annuaire français de droit international
AJIL American Journal of International Law
AU African Union
Aust YIL Australian Yearbook of International Law
BFSP British and Foreign State Papers
BYIL British Yearbook of International Law
C24 Committee of Twenty-Four (United Nations Special

Committee on Decolonization)
CJICL Cambridge Journal of International and Comparative Law
Cmd, Cmnd United Kingdom, Command Papers
Colum J Transnat’l L Columbia Journal of Transnational Law
CTS Consolidated Treaty Series
EEZ Exclusive Economic Zone
EJIL European Journal of International Law
GA Res Resolution of the United Nations General Assembly
GAOR General Assembly Official Records
GYIL German Yearbook of International Law
Harv Int’l L J Harvard International Law Journal
HRLR Human Rights Law Review
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural

Rights
ICJ International Court of Justice
xv
xvi abbreviations
ICJ Rep Reports of the International Court of Justice
ICLQ International and Comparative Law Quarterly
ILC International Law Commission
ILC Ybk Yearbook of the International Law Commission
ILM International Legal Materials
ILR International Law Reports
ITLOS International Tribunal for the Law of the Sea
JO Journal officiel de la République française
LNTS League of Nations Treaty Series
MPEPIL Max Planck Encyclopedia of Public International Law
NYUJILP New York University Journal of International Law and Politics
OAU Organisation of African Unity
PCIJ Permanent Court of International Justice
PCA Permanent Court of Arbitration
PRO United Kingdom Public Records Office
PUF Presses Universitaires de France
REDI Revista española de derecho internacional
RGDIP Revue génerale de droit international public
RIAA United Nations, Reports of International Arbitral Awards

SC Res Resolution of the United Nations Security Council
Span YIL Spanish Yearbook of International Law
UKHL United Kingdom House of Lords
UKMIL United Kingdom Materials on International Law
UN United Nations
UN Charter Charter of the United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNGA United Nations General Assembly
UNSC United Nations Security Council

abbreviations xvii
UNTS United Nations Treaty Series
Va J Int’l L Virginia Journal of International Law
VCLT Vienna Convention on the Law of Treaties
Yale J Int’l Law Yale Journal of International Law
ZaöRV Zeitschrift für Ausländisches Öffentliches Recht und

Völkerrecht
TA B L E O F C A SE S
Aegean Sea Continental Shelf (Greece v. Turkey) [1978] ICJ Rep.

Antarctica Case (UK v. Argentina) Order of 16 March 1956 [1956] ICJ Rep.
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment
of 14 Feb 2002 [2002] ICJ Rep.
Bancoult v. Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61
(Judicial Committee of the House of Lords).
Barcelona Traction, Light and Power Co Ltd (Belgium v. Spain) [1970] ICJ Rep.
Beagle Channel arbitration [1977] 52 ILR 93.
Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Merits [1986]
ICJ Rep.
Case concerning the Northern Cameroons (Cameroon v. UK), Preliminary Objections,
Judgment of 2 December 1963 [1963] ICJ Rep.
Chagos Marine Protected Area Arbitration (Mauritius v. UK), Award, PCA (18 March
2015) MU-UK_20150318.
Chau Kwai-chiu & another v. Wong Shin (1900) 9 CILC 298 (Supreme Court of Hong
Kong).
Clipperton Island (Mexico v. France) (1931) 2 RIAA 1105.
Decision Regarding the Status of Mayotte, No 75–59 DC (30 December 1975) (French
Conseil Constitutionnel).
East Timor (Portugal v. Australia) (Judgment) [1995] ICJ Rep.
Eritrea/Yemen Case Award of the Arbitral Tribunal in the First Stage – Territorial
Sovereignty and Scope of the Dispute (9 October 1998) 114 ILR, 1 (Permanent Court
of Arbitration).
Fisheries Jurisdiction (UK v. Iceland) [1974] ICJ Rep.
Gosalia v. Agarwal (1981) 118 ILR 429 (Supreme Court of India).
Island of Palmas Case (Netherlands v. USA) (1928) 2 RIAA 845 (Permanent Court of
International Arbitration).
Laguna del Desierto (Chile v. Argentina), Judgment of 21 October 1994, 113 ILR 1.
Land and Maritime Boundary between Cameroon and Nigeria [2002] ICJ Rep.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory
Opinion) [1971] ICJ Rep.
xix
xx table of cases
Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No 53 (Permanent Court of
International Justice).
Luckenbach SS Co v. United States 280 US 173 (1930) (US Supreme Court).
North Sea Continental Shelf Judgment of 20 February 1969 (Germany v. Netherlands)
[1969] ICJ Rep.
O’Connor v. United States 479 US 27, 28 (1986) (US Supreme Court).
R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067
(Divisional Court of England and Wales).
Right of Passage over Indian Territory (Portugal v. India) [1960] ICJ Rep.
Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia v. Malaysia), Application by
the Philippines to Intervene [2001] ICJ Rep.
Temple of Preah Vihear (Cambodia v. Thailand) [1962] ICJ Rep.
Territorial Dispute Case (Libyan Arab Jamahiriya v. Chad) [1994] ICJ Rep.
Vermilya-Brown v. Connell 335 US 377, 385 (1948) (US Supreme Court).
Western Sahara (Advisory Opinion) [1975] ICJ Rep.
Wilson v. Shaw 204 US 24 (1906) (US Supreme Court).
TA B L E O F T R E AT I E S
Charter of the United Nations, adopted 26 June 1945, entered into force 24 October 1945,
as amended by GA Res 1991 (XVIII) 17 December 1963, entered into force 31 August
1965 (557 UNTS 143); 2101, 20 December 1965, entered into force 12 June 1968 (638
UNTS 308); and 2847 (XXVI) 20 December 1971, entered into force 24 September
1973 (892 UNTS 119).
Convention between Britain, France and Spain Regarding the Organisation of the Statute
of the Tangier Zone (signed at Paris, 18 December 1923) 28 LNTS 541.
Convention between China and Great Britain respecting an Extension of Hong Kong
Territory (signed at Peking, 9 June 1898) 186 CTS 310.
Convention between France and Spain for the Delimitation of their Possessions in West
Africa (signed 27 June 1900, entered into force 22 March 1901). Reprinted in Hertslet,
E The Map of Africa by Treaty (3rd edition London: Harrison and Sons 1909) Vol III,
1165–7.
Convention between Great Britain and Guatemala relative to the Boundary of British
Honduras (signed 30 April 1859, entered into force 12 September 1859) 120 CTS 371.
Convention between Portugal and the Netherlands (signed at Lisbon, 10 June 1893)
NRG 2:22:463.
Convention between the US and Panama for the Construction of a Ship Canal (signed 18
November 1903) 33 Stat 2234, TS 431.
Convention Ceding Alaska between Russia and the United States (signed 30 March 1867,
entered into force 20 June 1867) 134 CTS 332.
Convention of Friendship between China and Great Britain (signed at Peking, 24
October 1860) 123 CTS 73.
Declaration by the Governments of Spain and Morocco on the Independence of
Morocco (and Protocol) (signed 7 April 1956) Royal Institute of International Affairs
Documents on International Affairs (Oxford: Oxford University Press 1956) 694.
Exchange of Notes Regarding the Cession of the French Loges in India to the Government
of India (annex enclosed), 12 August–30 September 1947, French Diplomatic
Archives, Agreement No 19470025.
Exchange of Notes Regarding the Date of the Cession of the French Loges to the
Government of India, 3–4 October 1947, French Diplomatic Archives, Agreement
No 19470031.
xxi
xxii table of treaties
Exchange of Notes Respecting the Boundary between British Honduras and Guatemala
(British Note of 25 April 1931/Guatemalan Reply 26 April 1931, registered with the
League of Nations 29 April 1932) 128 LNTS 427.
Franco-Indian Agreement (signed 2 February 1951) 203 UNTS 156.
Franco-Indian Treaty (signed 28 May 1956) 162 BFSP 848.
Franco-Spanish Convention (signed 27 June 1900) 92 BFSP 1014.
Franco-Spanish Treaty (signed at Madrid, 14 January 1526), Marino, P (ed.) Tratados
internacionales de España: periodo de la prepondorencia española Vol III (Madrid:
CSIC 1986) 122.
Indo-Portuguese Treaty on Recognition of Indian Sovereignty over Goa, Daman, Diu,
Dadra and Nagar-Haveli and Related Matters (signed 31 December 1974, entered
into force 3 June 1975) [1974] ITS 53.
International Covenant on Civil and Political Rights, adopted 16 December 1966,
entered into force 23 March 1976, GA es 2200A(XXI), UN Doc A/6316 (1966) 999
UNTS 171, reprinted in 6 ILM 368 (1967).
International Covenant on Economic, Social and Cultural Rights, adopted 16 December
1966, entered into force 3 January 1976, GA Res 2200A(XXI), UN Doc A/6316 (1966)
993 UNTS 3, reprinted in 6 ILM 360 (1967).
Joint Declaration of the Government of the People’s Republic of China and the
Government of the Republic of Portugal on the Question of Macau (signed 13 April
1987) 1498 UNTS 195 (English version in 5 Asian Yearbook of International Law
(1995) 567).
Joint Declaration of the Government of the United Kingdom of Great Britain and
Northern Island and the Government of the People’s Republic of China, on the
Question of Hong Kong (initialled at Peking 26 September 1984) 23 ILM 1371.
Linggadjati Agreement between Indonesia and the Netherlands (signed 25 March 1947)
[1948] 18 Dept St Bull 325.
Louisiana Purchase Treaty between the US and France (1803) 7 Bevans 812 (signed 30
April 1803).
Round-Table Conference Agreement between the Government of the Kingdom of the
Netherlands and the Government of the Republic of Indonesia [signed and entered
into force 27 December 1949] 69 UNTS 200.
Treaty between China and Great Britain (signed at Nanking, 29 August 1842) 93
CTS 467.
Treaty of Amity and Commerce between Portugal and China, with Appended
Convention and Agreement (adopted 1 December 1887) in Stoerk, F (ed.) Series II,
Vol 18, Martens Nouveau recueil général de traités et autres actes relatifs aux rapports
de droit international (Nendeln: Kraus Reprint 1967) 787.
Treaty of Angra de Cintra between Spain and Morocco (signed 1 April 1958), in Olson,
JS et al. (eds.) Historical Dictionary of European Imperialism (Westport: Greenwood
1991) 586.
table of treaties xxiii
Treaty of Fez between Spain and Morocco (signed 30 March 1912) in MP-L Rivière
Traités, codes et lois du Maroc vol 1 Accords internationaux conclus par le Maroc avec
les Puissances étrangères ou intervenus entre ces Puissances au sujet du Maroc de 1767 à
1923 (Paris: Librairie de la Société du Recueil Sirey 1924) 120.
Treaty of Lisbon between Portugal and the Netherlands (signed 10 June 1893), NRG
2:22:463.
Treaty of Paris between France and Britain (signed 30 May 1814) 63 CTS 171.
Treaty of Tetuan under which Morocco ceded the territory of Ifni to Spain (signed 26
April 1860) 51 BFSP 928.
Treaty of Utrecht between Spain and Great Britain (signed 13 July 1713, entered into
force 4 August 1713) 28 CTS 295.
Treaty under which Spain retroceded the territory of Ifni to Morocco (signed at Fez,
4 January 1969) Repertorio Cronológico de Legislación (Pamplona: Aranzadi 1969)
1008.
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27
Jan 1980), UN Doc A/CONF 39/26, reprinted in 8 ILM 679 (1969).
1
Introduction
The law of self-determination has been instrumental in shaping contem-

porary international relations. Its most important contribution has been
as a normative framework for the dismantling of European empires in the
second half of the twentieth century. Yet with decolonization now almost
complete, the contemporary focus has shifted away from the problems of
classical colonialism. Modern scholarship on self-determination is chiefly
preoccupied with how the concept might be relevant in confronting some
of the challenges of a fragmenting, postcolonial world; from ethnic unrest
in the Balkans and Caucasus to the claims of indigenous peoples to greater
self-government within States. While the modern debate tends to focus
on these novel developments, several colonial cases remain unresolved,
and certain aspects of the normative framework governing colonial self-
determination remain poorly understood.
In particular, there is a degree of confusion surrounding the treatment
of a number of disputed colonial territories, where self-determination
appears to have been denied or qualified in some way. As the era of classi-
cal colonialism draws to a close, it seems an opportune moment to survey
the entire landscape and reflect on the conceptual difficulties that the most
troublesome, contentious colonial cases have given rise to.
The present work can be situated within a broad school of investigation
into the modern development and ramifications of self-determination as
a legal norm.1 Its primary focus is on international practice and doctrine
regarding ‘Non-Self-Governing Territories’ under Chapter XI of the UN
Leading works include A. Cassese Self-Determination of Peoples: A Legal Reappraisal

1
(Cambridge: Cambridge University Press 1995); A. Rigo-Sureda The Evolution of the Right of
Self-Determination: A Study of United Nations Practice (Leiden: Sijthoff 1973); J. R. Crawford
The Creation of States in International Law (2nd edn Oxford: Oxford University Press
2006); M. Pomerance Self-Determination in Law and Practice (The Hague: Nijhoff 1982);
O. U. Umozurike Self-Determination in International Law (Hamden: Archon Books 1972);
K. Knop Diversity and Self-Determination in International Law (Cambridge: Cambridge
University Press 2004); H. Hannum Autonomy, Sovereignty and Self-Determination: The
1
2 introduction
Charter. It is more specifically concerned with disputed colonial territories
where external self-determination has been denied or qualified. It aims to
provide a comprehensive account of international practice in relation to
these disputed colonial territories.
The adjective ‘colonial’ is used here rather loosely. It will be applied not
only to Chapter XI Non-Self-Governing and Chapter XII Trust territories,
but also occasionally to parts of such territories. Use of the term in this
work does not necessarily imply a relationship of subordination between
the territory in question and the metropole. For example, the island of
Mayotte will be considered to fall within the class of ‘disputed colonial
territories’ for the purposes of this work, even though Mayotte is not a
Chapter XI territory in its own right, and even though it is today integrated
administratively with France.
1.1 Methodology and Problématique

In his seminal overview of the international law of self-determination,
Cassese asserts that his approach is ‘unashamedly doctrinal: its by-word
is lex lata’.2 The present work shares a similar ‘positivist’ commitment to
mapping the lex lata. It will largely avoid discussion of the direction in
which the law might be, or ought to be, heading, and in this sense it could
be said to be more modest in scope than Cassese’s work.3
The present work also shares Cassese’s concern with pursuing a ‘contex-
tual’, ‘historical’ approach to the international law of self-determination.4
The approach taken herein is broadly informed by the kind of ‘sociological’
approach to international law pioneered by Max Huber.5 This is character-
ized by a ‘strong emphasis on elucidating the development of the history of
international law in the context of the prevailing socio-political conditions’,
with the purpose of understanding ‘when and why rules for the conduct of
intergroup or interstate relations have developed’.6 It is also concerned with
the question of ‘why and under what conditions legal rules of intergroup/
Accommodation of Conflicting Rights (Philadelphia, PA: University of Pennsylvania Press

1990; rev edn 1996).
2
Cassese (n 1) 2.
3
Ibid., 3.
4
Ibid.
5
Especially M. Huber Die soziologischen Grundlagen des Völkerrechts (Berlin: Rothschild
1928).
6
J. Delbrück ‘Max Huber’s Sociological Approach to International Law Revisited’ 18:1 EJIL
(2007) 97, 111.
1.1 methodology and problématique 3
interstate relations become effective beyond voluntary compliance’.7 The
aim is not to go ‘beyond the realm of law’ (as Cassese puts it) but rather
to seek to understand how the law of self-determination is shaped, and to
integrate this understanding into an account of what the law is.8
Crawford has observed that the lex lata of self-determination is also lex
obscura.9 A contention in the present work is that the lex lata may be more
obscure than even some of the more insightful commentators on self-
determination are prepared to acknowledge. This is partly because while
the importance of politics in determining the scope of self-determination
may be widely accepted,10 the role of political discretion in the applica-
tion of self-determination is sometimes overlooked. While the differen-
tial treatment of ostensibly similar colonial cases will sometimes suggest
a rational justification for placing certain cases outside the scope of colo-
nial self-determination (most notably in cases where clear ties of territo-
rial sovereignty exist between a colonial territory and a State other than
the administering power, such as in the case of a ‘leased’ territory), other
anomalous cases pose a more difficult interpretive challenge, especially
for proponents of a strong (perhaps even jus cogens) rule mandating the
emancipation of overseas colonies.
There is a tendency in much of the literature to treat the application of
self-determination in a colonial context as settled law, applying to a nar-
row set of ‘core’ cases.11 The ‘penumbra’ is widely believed to lie outside
the colonial sphere, in the space where debates over minority rights and
secession disputes unfold. There, it is said, lie the ‘hard’ cases, where the
7
Ibid.
8
Compare Cassese (n 1) who suggests (at 3) that a contextual approach involves a departure
from ‘the realm of law’, a statement which is queried by J. Crawford in his review of Cassese’s
book, in 90 AJIL (1996) 331.
9
J. Crawford ‘The Right to Self-Determination in International Law: Its Development and
Future’ in P. Alston (ed.) Peoples Rights (Oxford: Oxford University Press 2001) 7, 38.
On the indeterminate nature of self-determination see M. Koskenniemi ‘National Self-
Determination’ (1994) 43 ICLQ 241.
10
See e.g. Crawford (n 1) 115.
11
The core/penumbra distinction is taken from H. L. A. Hart The Concept of Law (2nd edn
Oxford: Oxford University Press 1994 (1961)). Hart states (at 123) that
[a]ll rules require recognizing or classifying particular cases as instances of gen-
eral terms, and in the case of everything which we are prepared to call a rule it is
possible to distinguish clear central cases, where it certainly applies and others
where there are reasons for both asserting and denying that it applies. Nothing
can eliminate the duality of this core of certainty and penumbra of doubt when
we are engaged in bringing particular situations under general rules.
4 introduction
normative power of principles (as opposed to rules) comes to the fore, and
where interpretation ‘involves a politico-legal choice’.12
It is striking that even some of the more critical accounts of self-
determination in the literature appear to have been swayed by this clas-
sification, to the extent that it leads authors to neglect the potential
significance of cases where self-determination has been applied inconsist-
ently even in the colonial context (that is to say, within the supposedly
settled ‘core’ of self-determination). For instance, when discussing the
problem of identifying ‘nations’, Koskenniemi states:
It is sometimes suggested that this problem does not present itself to inter-
national law because the legally relevant unit is a territorial one and thus
recognisable through the territorial criterion. In as much as the UN law of
decolonisation – with its normative basis in General Assembly resolutions
1514 and 1541 of 1960 and Chapter XI of the Charter – is concerned, this
is no doubt true.13
This statement does not account for the fact that claims to ‘nationhood’
by some of the Chapter XI territories that the present work will focus on
have not been received sympathetically. As Koskenniemi observes later
in the same article, in certain cases – such as Gibraltar (a Chapter XI ter-
ritory) – ‘the will of the population, it appears, may at least in a colonial
context be overridden by the self-determination of a larger entity’, thus
confirming that ‘the subjective will of a population to exist as a nation and
enjoy a right of self-determination cannot be a sufficient condition for
its application’.14 It cannot therefore be ‘no doubt true’, on Koskenniemi’s
account, that in relation to all Chapter XI cases the legally relevant unit for
determining nationhood is a territorial one and thus recognizable through
the territorial criterion. If something else is occurring in anomalous
Chapter XI cases such as Gibraltar, the phenomenon in question surely
merits scrutiny.
It is also worth highlighting Knop’s position in this respect. She states:
It is common ground that the population of an overseas colony is a ‘people’,
that these peoples have the right of self-determination and that their right
of self-determination gives them the choice of independent statehood.15
Beyond this, ‘it is unclear who else qualifies’.16
12
Knop (n 1) 38.
13
Koskenniemi (n 9) 262.
14
Ibid., 263.
15
Knop (n 12) 18.
16
Ibid., 38.
1.1 methodology and problématique 5
According to such accounts, it is beyond the colonial context that self-
determination becomes really problematic. This approach overlooks
some of the cases that will be considered in this work, where the ‘people-
hood’ of the inhabitants of certain overseas colonies has been contested.
Indeed, arguments about the status of the population continue to feature
prominently in the debates surrounding the future of territories such as
Gibraltar, the Falkland/Malvinas Islands, Mayotte and Western Sahara.
Knop purports to present, ‘from the margins’, a more ‘complex’ account
than some of the ‘rigid’ and ‘linear’ mainstream accounts.17 However, she
overlooks certain marginal colonial cases that call into question the solid-
ity of the supposed ‘core’ of self-determination.18
Other authors confront apparent inconsistencies in the context of colo-
nial self-determination more directly. Some have sought to rationalize the
different treatment of some Chapter XI territories by arguing for the exist-
ence of special categories of territory, whose members possess a given set
of factual characteristics which render self-determination inapplicable,
and which mandate a merger with a neighbouring claimant State. Such
doctrines, the most influential of which posits an exception to the rule in
the case of so-called ‘colonial enclaves’ will be examined in this work.19 In
the final analysis, such rationalizing efforts appear unconvincing, both in
terms of their basis in State practice and also occasionally in terms of their
internal coherence.
The analysis of anomalous cases contained in this work will expose ways
in which the political interests of States can come to bear not only on the
scope of colonial self-determination but also on its application, especially
when decolonization takes place under the shadow of an irredentist claim
over the territory in question.20
Before explaining how this work is organized, it is necessary to say
something about the evolution of self-determination, from its origins as
17
Knop’s stated aim is to present an alternative account of self-determination ‘as a series of
challenges from the margins’ (ibid., 14), which includes an interesting feminist critique of
standard accounts.
18
Note, however, that Knop does consider the ICJ’s approach in its Western Sahara opinion
towards the different treatment of Western Sahara and Ifni by the General Assembly. See
ibid., 162–4.
19
See Chapter 4. The most popular definition of ‘colonial enclaves’ is Crawford’s: ‘. . . minute
territories which approximate to “enclaves” of the claimant State, which are ethnically and
economically parasitic upon or derivative of that State, and which cannot constitute sepa-
rate territorial units’. See (n 10) 647.
20
On this point, see D. W. Greig ‘Reflections on the Role of Consent’ 12 Aust YBIL (1988–9)
125, 157.
6 introduction
a vaguely defined political ideal to its emergence as a rule of international
law during the latter half of the twentieth century.
1.2 Self-Determination: The Emergence

of an International Legal Rule
Self-determination is a notoriously slippery concept. It has been
described as
. . . an idée-force of powerful magnitude, a philosophical stance, a moral
value, a social movement, a potent ideology, that may also be expressed, in
one of its many guises, as a legal right in international law.21
The philosophical origins of the principle can be found in the work of

Enlightenment thinkers such as Locke and Rousseau.22 Early formula-
tions of self-determination give expression, at their most basic level, to
the human desire to be master of one’s own destiny. As a political prin-
ciple, self-determination was invoked on behalf of people who wished
to govern themselves, or at least choose their own governments, rather
than be governed by their monarchs. The principle provided the ideologi-
cal impetus for political movements that led to the drafting of documents
like the French Declaration on the Rights of Man and the Citizen and the
American Declaration of Independence, and it has been appropriated in
the context of countless political struggles since. It has been remarked that
self-determination, broadly conceived, is a constant feature in the field of
human conflict.23
It would have been difficult to predict the emergence of self-
determination as a legal norm in the years prior to World War II. Neither
the rhetoric of Lenin, who championed self-determination as a principle
of anti-colonialism and class-struggle,24 nor that of Wilson, who spoke
during World War I of the ‘evident principle . . . of justice to all peoples and
nationalities’25 and later proclaimed national self-determination to be ‘an
21
R. Stavenhagen ‘Self-Determination: Right or Demon?’ IV Law and Society Trust, Issue No
67 (1993) 12.
22
See D. Raic Statehood and the Law of Self-Determination (The Hague, Netherlands: Kluwer
2002) 174 and the works cited therein: J. Locke Two Treatises of Government (1690) Chapter
7; J. J. Rousseau Du Contrat Social (Amsterdam: Rey 1762) Book I, Chapter 6.
23
Crawford (n 9) 7.
24
See H. Carrère D’Encausse ‘Unité prolétarienne et diversité nationale. Lénine et la théorie
de l’autodétermination’ 21 Revue française de science politique (1971) 221–55.
25
President Wilson, ‘Speech on the Fourteen Points’ delivered to Congress in Joint Session,
Congressional Record 65th Congress 2nd Session, 8 January 1918.
1.2 Emergence of an International Legal Rule 7
imperative principle of action’,26 bore fruit in any operational sense during
the inter-war years.27 The Covenant of the League of Nations was silent
on self-determination, and it was certainly not accepted at the interna-
tional institutional level that the principle might play a systematic role in
enfranchising peoples who found themselves under foreign domination
(perhaps unsurprisingly, given the economic benefits still being derived
from many of the Allies’ colonial holdings).
The case of the Aaland Islands is often cited in support of the proposi-
tion that self-determination had not crystallized into a legal norm dur-
ing the inter-war years. The Islands were taken by Russia from Sweden
and Finland in the early nineteenth century, and were then subsumed by
a newly liberated Finland at the end of World War I. Two reporting bod-
ies were established by the Council of the League of Nations to report on
various aspects of a dispute between Sweden and Finland over the Islands.
Sweden had attempted to invoke the principle of self-determination
on behalf of the inhabitants of the Islands, most of whom wished to be
attached to Sweden rather than Finland.
An International Committee of Jurists ruled that self-determination
was not a positive rule of law and that the right to dispose of territory thus
remained the prerogative of sovereign States.28 However, according to the
Committee, Finland ‘had not yet acquired the character of a definitively
constituted State’ at the time it separated from the Russian Empire, and the
matter was therefore deemed to fall within the competence of the League
of Nations.29 The Council of the League of Nations subsequently appointed
a Commission of Rapporteurs to advise on a programme of action. The
Commission acknowledged that over 95 per cent of the islanders were
‘Swedish in origin, in habits, in language and in culture’ and feared Finnish
even more than Russian domination, but it nevertheless ruled that Sweden
could not justify its claim by invoking the principle of self-determination
on behalf of the Islands’ inhabitants.30 The Islands would therefore remain
under Finnish control, albeit with substantial guarantees of autonomy in
place. These guarantees were described by the Council as necessary for
ensuring ‘the interests of the world, the future of cordial relations between
Finland and Sweden, [and] the prosperity and happiness of the Islands
26
Interview with President Wilson The New York Times 12 February 1918.
27
Cassese (n 1) discusses the legacies of Lenin and Wilson in detail at 14–23.
28
Aaland Islands Case (1920) League of Nations Official Journal Spec Supp 3, 5.
29
Ibid., 14.
30
League of Nations Doc B7 21/68/106 (1921).
8 introduction
themselves’.31 Most notable for present purposes was the Commission’s find-
ing that self-determination was not a rule of international law but rather ‘a
principle of justice and liberty, expressed by a vague and general formula’.32
The signing and entering-into-force of the UN Charter in 1945 marked
a key turning point in the emergence of self-determination as an interna-
tional legal norm. Self-determination is referred to directly in Articles 1(2)
and 55 of the Charter, while its application is implicit in Chapters XI and
XII, which relate to Non-Self-Governing Territories and Trust territories
respectively. Article 73 describes the obligation assumed by Members of
the UN to promote self-government in these territories as a ‘sacred trust’
and the interests of the inhabitants of those territories are described as
‘paramount’. While the nature of the norm itself was not defined in the
text, its subsequent development through a series of General Assembly
resolutions left no doubt that self-determination would find concrete
application within the limited sphere of classical colonialism.
In 1952, General Assembly Resolution 637 (VII) recognized that
‘every Member of the United Nations, in conformity with the Charter,
should respect the maintenance of the right of self-determination’.33 Early
attempts to extend the right of self-determination beyond the colonial
context found little sympathy within the General Assembly. In the wake
of Resolution 637 (VII), Belgium made the argument that ‘colonies’ can-
not be the only ‘non-self-governing’ territories envisaged by Chapter XI.34
According to this argument, if self-determination applies as a means of
enfranchising the inhabitants of colonies, it should also apply to all peo-
ples who are non-self-governing, including minorities and indigenous
peoples within existing States.35 The so-called ‘Belgian thesis’ was rejected
by the General Assembly.36 This was unsurprising, given the nervousness
among some States regarding secessionist elements with their borders,
and the recent memory of how the principle of self-determination could
be manipulated by politicians; Hitler’s invocation of self-determination on
31
Council Res of 24 June 1921, 13th Sess, Supp, League of Nations Official Journal (1921) 24.
32
Ibid. Prominent authors have observed that the League of Nations reports on this issue con-
tribute significantly to the development of the principle of self-determination as a catalyst
for policy, particularly in defence of minorities within oppressive states: Cassese (n 1) 30–1
and 33; Crawford (n 1) 111–12.
33
GA Res 637 (VII), 16 December 1952.
34
UN Doc A/AC.67/2 (8 May 1953) 3–31.
35
Ibid. For discussion of the Belgian thesis see J. Castellino International Law and Self-
Determination (Dordrecht: Nijhoff 2000) 65.
36
See Castellino (ibid.).
behalf of the Sudeten Germans was a case in point.37 States thus moved ‘in
the direction of accepting whole colonial territories as the subjects of self-
determination – the “people” – and not ethnic, etc., groups within them’.38
It was clear that the General Assembly was not prepared to countenance
anything more far-reaching than ‘a right of territorially defined peoples
to emancipate from imperial rule’; that is to say, a right of ‘external’ self-
determination in the colonial context.39
Colonial self-determination in this limited sense crystallized as a legal norm
during the 1960s. It is no coincidence that by this time the burden of maintain-
ing empires had become too much to bear for most European colonizers who,
economically and politically weakened after World War II, had resolved to
accept the inevitability of decolonization. It was principally the dictatorships
in Portugal and Spain that continued to resist the tide of decolonization.40
The role of the General Assembly in framing colonial self-determination
as a legal norm was crucial during this period. While resolutions of the
General Assembly may not be legally binding per se, it is widely contended
that they play an important role in shaping international law, especially
when they are adopted with the support of an overwhelming majority of
States. At least it is fair to argue, as Higgins does, that the resolutions of the
General Assembly as a whole provide ‘a rich source of evidence about the
development of customary international law’.41 The most momentous act of
the General Assembly with regard to self-determination was the adoption
of Resolution 1514 (XV), the Declaration on the Granting of Independence
to Colonial Countries and Peoples (‘the Colonial Declaration’), by eighty-
nine votes to none, with nine abstentions.42 The Colonial Declaration pro-
claimed that ‘[a]ll peoples have the right to self-determination’43 and laid
down concrete guidelines for the implementation of this ‘right’:
Immediate steps shall be taken, in Trust and non-self-governing territo-
ries or all other territories which have not yet attained independence, to
37
See the microfilmed minutes (unpublished) of the debates of the First Committee of the
First Commission of the San Francisco Conference, 14–15 May and 1 and 11 June 1945,
Library of the Palais des Nations, Geneva, cited in Cassese (n 1) 39–40.
38
P. Thornberry ‘Self-Determination, Minorities, Human Rights: a Review of the International
Instruments’ 38 ICLQ (1989) 867, 93.
39
Ibid.
40
See M. Weller Escaping the Self-determination Trap (Leiden: Martinus Nijhoff 2008) 35.
41
R. Higgins The Development of International Law Through the Political Organs of the United
Nations (Oxford: Oxford University Press 1963) 5.
42
GA Res 1514 (XV), 14 December 1960.
43
Ibid., para 2.
10 introduction
transfer all powers to the peoples of those territories, without any condi-
tions or reservations.44
If the language of ‘peoples’ and ‘rights’ was suggestive of a norm with the
potential to subvert the statist underpinnings of the international system, the
drafters of the Colonial Declaration left no doubt that self-determination as
a legal norm would be administered so as to uphold an international order
founded on sovereign States and respect for existing territorial boundaries.
Central to the Colonial Declaration was the warning that:
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.45
The Colonial Declaration thus epitomizes an international concern for

managing two broad imperatives, which often exist in a state of uneasy
tension: the interest in preserving international order on the one hand,
and the interest in promoting international justice on the other.
‘International order’ and ‘international justice’ are understood here in the
sense that Hedley Bull used these terms. International order is understood
narrowly, as ‘a pattern of activity that sustains the elementary or primary
goals of the society of states’.46 It is distinct from the more ‘fundamental and
primordial’, and ‘morally prior’ concept of ‘world order’ (or ‘order in human
society as a whole’).47 If international order has value, ‘this can only be
because it is instrumental to the goal of order in human society as a whole’.48
The meaning of justice escapes objective definition, and Bull makes no
attempt to define it subjectively, noting merely that ‘there are certain ideas
or beliefs as to what justice involves in world politics, and that demands
formulated in the name of these ideas play a role in the course of events’.49
Within this scheme, ‘international justice’ (as distinct from ‘individual
or human justice’, or ‘cosmopolitan or world justice’) is also understood
narrowly, by reference to ‘the moral rules held to confer rights and duties
upon . . . nations’.50 Bull includes among these ‘the idea that all nations are
44
Ibid., para 5.
45
Ibid., para 6.
46
H. Bull The Anarchical Society: A Study of Order in World Politics (3rd edn Basingstoke:
Palgrave 2002) 8.
47
Ibid., 21.
48
Ibid.
49
Ibid., 75.
50
Ibid., 78. This type of justice, like the idea of ‘justice between states’, may be no more than a
metaphor, as Franck contends: The Power of Legitimacy Among Nations (New York, Oxford:
Oxford University Press 1990) 232. It may be, to paraphrase R. Keohane, that a justification
equally entitled [(morally)] to the rights of national self-determination’.51
There is considerable overlap with Bull’s concept of ‘interstate justice’,
given the ‘broad consensus that states should be nation-states’. However,
Bull notes the potential for conflict between the two concepts, given that
‘the principle of national self-determination has been invoked to destroy
the sovereign integrity of states and even now threatens many of them’.52
If international justice is ‘categorically imperative’ (an end in itself rather
than a means to an end), international order is only ‘hypothetically imper-
ative’, in the sense that its achievement is seen as necessary for securing
advanced or secondary goals.53 Bull notes that ‘justice, in any of its forms
is realisable only in a context of order’.54 The delicate balancing of these
order- and justice-based imperatives lies at the heart of the modern law of
self-determination, which has been described by Franck as the product of
a ‘redefinition and synthesis’ of the principles of territorial integrity and
self-determination.55
These two principles can operate synergistically. Established national
communities will sometimes assert a right to self-determination through
the principle of territorial integrity. For instance, territorial integrity was
invoked, with external approval, as a self-determination right when the
Apartheid government attempted to separate territory from South Africa
to create new States. However, very often the principles of territorial integ-
rity and self-determination pull in opposite directions. Self-determination
claims are frequently claims against territorial integrity. Several commen-
tators have drawn attention to this paradox.56
of the morality of nations ‘must ultimately be made in terms of the rights and interests of
individual human beings’: After Hegemony: Cooperation and Discord in the World Political
Economy (Princeton, NJ: Princeton University Press 1984) 249. The point however is that
‘justice-based’ claims are sometimes made by and on behalf of nations, and that such claims
have a role in shaping events.
51
Bull (n 46) 78.
52
Ibid.
53
Ibid., 75, 83.
54
Ibid., 83.
55
T. Franck Fairness in International Law and Institutions (Oxford: Oxford University Press
1995) 247; Also I. Brownlie ‘The Rights of Peoples in Modern International Law’ in J. R.
Crawford (ed.) The Rights of Peoples (1988) 1, 7, who discusses the ‘delicate balancing’ of
interests involved.
56
See (n 52) above and accompanying text. Koskenniemi (n 9) observes (at 249) that self-
determination ‘both supports and challenges statehood’. Cassese (n 1) argues (at 1) that
self-determination ‘perfectly reflects the cyclical oscillation . . . between a “statist” and a
communitarian vision of world order’.
12 introduction
Although the preamble to the Colonial Declaration makes reference to
‘territories which have not yet attained independence’, Resolution 1541
(XV) – entitled ‘Principles which should guide Members in determining
whether or not an obligation exists to transmit the information called for
under Article 73e of the Charter’ – adopted by the General Assembly the
day after the Colonial Declaration, makes clear that independent statehood
is only one of the options available to the peoples of Non-Self-Governing
Territories in their exercise of self-determination, in addition to ‘free asso-
ciation with an independent State’ and ‘integration with an independent
State’ (a further option, ‘any other political status freely determined by a
people’ was added in Resolution 2625 (XXV) of 1970).57 Resolution 1541
(XV) also sets out the General Assembly’s procedural definition of a ‘non-
self-governing’ territory for the purposes of article 73 of the UN Charter
as ‘a territory which is geographically separate and is distinct ethnically
and/or culturally from the country administering it’.58 This notion of ‘salt
water colonialism’, when taken alongside the provision on territorial integ-
rity in the Colonial Declaration, is an important factor in the restrictive
application of self-determination as a legal norm. Self-determination may
be said to be a right of ‘peoples’, but the ‘peoples’ in question are territori-
ally defined,59 and the territories themselves are defined in cases of classical
colonial self-determination according to pre-existing colonial bounda-
ries.60 The upholding of these (often arbitrarily drawn) colonial boundaries
at the moment of decolonization, a practice expressed in the principle of
uti possidetis juris, can have disenfranchising effects for the distinct ethnic
groups that exist within and across those boundaries, but it has been widely
accepted by States, and affirmed by the ICJ in the Frontier Dispute case.61
57
GA Res 1541 (XV) 15 December 1960, Principle VI; GA Res 2625 (XXV), 24 October 1970,
Annex, Art 1.
58
GA Res 1541 (XV) 15 December 1960, Principle IV.
59
Thornberry (n 38) 872.
60
Weller (n 40) 37.
61
Ibid., 38–9. See also, Case concerning the Frontier Dispute (Burkina Faso/Republic of Mali),
Merits [1986] ICJ Rep 554, 564. D. M. Ahmed argues that uti possidetis is relevant only
at the moment of decolonization, not afterwards. He criticizes the Frontier Dispute deci-
sion for confusing uti possidetis with the broader principle of the stability of international
boundaries, and for asserting (at 565–6 of the decision) that the OAU had ‘deliberately
defined and stressed the principle of uti possidetis’ in its 1964 Cairo Resolution, when that
Resolution had in fact sought to preclude any non-consensual interference with the exist-
ing boundaries of African States: see Boundaries and Secession in Africa and International
Law: Challenging Uti Possidetis (Cambridge: Cambridge University Press 2015) 89–91.
C Tomuschat similarly argues that uti possidetis is important for determining a State’s
boundaries at the moment of independence, but once it has ‘served its purpose’ it becomes
Another seminal General Assembly resolution, 2625 (XXV), the
Declaration on Principles of International Law Concerning Friendly
Relations and Co-operation among States in Accordance with the Charter
of the United Nations, asserts that the right of self-determination is to be
enjoyed equally by all ‘peoples’.62 The Declaration states that ‘[b]y virtue of
the principle of equal rights and self-determination of peoples enshrined
in the Charter of the United Nations, all peoples have the right freely to
determine, without external interference, their political status and to pur-
sue their economic, social and cultural development’, and it goes on to
repeat the caveat that ‘[e]very State shall refrain from any action aimed at
the partial or total disruption of the national unity or territorial integrity
of another country’.63
Despite being administered in a way that privileged the territorial status
quo, self-determination quickly found its way into the growing body of
norms commonly referred to as international human rights law. Indeed,
it attained pride of place within this canon through its inclusion in com-
mon Article 1 of the International Covenant on Civil and Political Rights
and the International Covenant on Economic, Social and Cultural Rights,
approved by the General Assembly in 1966:
All peoples have the right to self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic,
social and cultural development.64
It is often argued that the right of peoples to self-determination has

attained the status of jus cogens – ‘a peremptory norm of international law’
which is ‘accepted and recognised by the international community of States
as a whole as a norm from which no derogation is permitted and which can
be modified only by a subsequent norm of general international law hav-
ing the same character’, as defined in Article 53 of the Vienna Convention
on the Law of Treaties 1969.65 A treaty incompatible with a jus cogens rule
is deemed to be void, even if the treaty predates the emergence of the rule
‘irrelevant’: ‘Secession and Self-Determination’ in M. G. Cohen (ed.) Secession: International

Law Perspectives (Cambridge University Press 2006) 38.
62
GA Res 2625 (XXV), 24 October 1970.
63
Ibid., para 1.
64
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered
into force 23 March 1973) 999 UNTS 171 (ICCPR); International Covenant on Economic,
Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976)
993 UNTS 3 (ICESCR).
65
Adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331 (VCLT).
14 introduction
or indeed predates an ordinary rule’s elevation to jus cogens status.66 It is
moreover well established that the category applies to customary obliga-
tions and not merely within the context of treaties.67 The reference in the
Vienna Convention to ‘the international community of States as a whole’
is widely taken to mean that most states – rather than all States – must
consent to the rule for it to achieve jus cogens status.68 As such, the category
of jus cogens presents a challenge to the consensual basis of international
legal obligation, and there is little contemporary support for the expansion
of the category beyond a very small number of fundamental rules.69
Lowe points to the paradox that a dissenting State, previously unbound
by an ‘ordinary’ rule of international law, suddenly becomes bound by the
same rule when it achieves the ‘super-normativity’ of jus cogens. This leads
him to the reasonable conclusion that the category of peremptory rules
should be limited to ‘rules that are either logically or morally necessary’.70
Rules that are logically necessary might include, on this view, the rule that
treaty obligations are binding (pacta sunt servanda), without which the
very concept of international law could not stand (although such logically
necessary rules do not ordinarily draw the jus cogens label). Morally neces-
sary rules might include the prohibition of genocide and the prohibition
on the waging of aggressive war.
The rule on colonial self-determination is a controversial candidate for
jus cogens status on such a view because: (a) it is highly debatable whether
it is logically necessary for maintaining the systemic coherence of interna-
tional law; and (b) even those who wish to see the moral authority of inter-
national law extend beyond the upholding of certain fundamental moral
principles like the prohibition against genocide may be hard-pressed to
argue that the rule on colonial self-determination, as it has developed, is
morally necessary. A claim for moral necessity would have to take into
account the fact that the rule is exceptional, contingent, and restrictively
administered, and therefore not central to the moral fabric of a function-
ing international legal system. Moreover, the practical consequences of the
rule’s contingent nature have at best equivocal moral value. The rule evi-
dently has disenfranchising consequences in certain circumstances; it can
66
Art 64 VCLT.
67
See ILC Articles on Responsibility of States for Internationally Wrongful Acts annexed to
GA Res 56/83, 12 December 2001, Arts 26, 40, 50(1)(d).
68
V. Lowe International Law (Oxford: Oxford University Press 2007) 59–60.
69
Indeed, some States, such as France, have refused to accept the concept of jus cogens at all:
Lowe, ibid., 76.
70
Ibid., 60.
operate for moral ill as well as good.71 The suppression of the ambitions of
ethnic and tribal groups as a result of the upholding of arbitrarily drawn
colonial boundaries (a corollary of the implementation of colonial self-
determination) is not always easy to justify on moral grounds.72
More permissive approaches to the category of jus cogens hold that it
can legitimately encompass rules that are necessary for the preservation
of international order, rules concerning peaceful cooperation, and those
protecting the most fundamental human rights.73 The evolution of colo-
nial self-determination, as was noted above, has been characterized by a
concern for international order and international justice, and the delicate
balancing of those often-competing goals. However, it is perhaps stretch-
ing the argument to say that the norm, as it has developed, is necessary for
achieving those goals, in the same way as the prohibition of genocide is
necessary. International order, for instance, can be preserved through any
number of means.74 Bull acknowledges that international law may be one
of the means through which international order can be preserved, but he
argues that in principle it can be preserved in other ways, such as through
powerful States ‘maintaining local systems of hegemony’.75 As for peace-
ful cooperation and the protection of human rights, one must again take
account of the highly contingent nature of the colonial self-determination
rule and its occasionally disenfranchising consequences.
Despite these difficulties, the view that colonial self-determination has
attained the status of a peremptory norm has been expressed in the work
of such scholars as Brownlie,76 Rigo-Sureda,77 Gros-Espiell,78 Crawford,79
71
For a more detailed critique of the moral legitimacy of ‘classical’ colonial self-determina-
tion, see Weller (n 40) 30–45. Weller’s opening statement, ‘[s]elf-determination kills’ (at 1),
speaks for itself.
72
Franck notes that such denials of self-determination, for example by Nigeria to the seces-
sionist Ibo tribal state of Biafra, were ‘vigorously defended on grounds not of fairness but
of order and legitimacy. The application of the principle to permit tribal secession, it was
argued, would create chaos throughout Africa and end in economically and politically dev-
astating balkanization’: Franck (n 50) 228.
73
U. Scheuner, ‘Conflict of Treaty Provisions with a Peremptory Norm of International Law
and its Consequences’ 27 ZaöRV (1967) 520–32.
74
Bull (n 46) 87–9.
75
Ibid.
76
I. Brownlie Principles of International Law (7th ed. Oxford: Oxford University Press 2008)
511.
77
A. Rigo Sureda The Evolution of the Right to Self-Determination: A Study of United Nations
Practice (Leiden: Sijthoff 1973) 353.
78
H. Gros-Espiell The Right to Self-Determination: Implementation of United Nations
Resolutions UN Doc E/CN4/Sub.2/405/Rev.1 (1980) para 85.
79
Crawford (n 1) 101 and 447.
16 introduction
and Pellet.80 The same view has been expressed unequivocally by the
International Law Commission (ILC) in its commentary on its Draft
Articles on State Responsibility.81
Discussions within the ILC indicate that while there was disagreement
on whether the right of self-determination should be listed in the commen-
tary among examples of peremptory norms, there was general agreement
that it could be described as such ‘in the context of colonial domination’.82
Crawford (the Special Rapporteur) made clear in the discussion that ‘the
last two sentences in paragraph (5) were very carefully phrased to be as
neutral as possible, and they merely paraphrased what the ICJ had said in
the East Timor case’.83
In the East Timor case the ICJ, while not explicitly endorsing the view
that self-determination is jus cogens, characterized the obligation on colo-
nial powers to decolonize in accordance with the wishes of the inhabitants
of the colonial territory as erga omnes, its violation constituting an offence
against all members of the international community. The Court stated as
follows:
. . . Portugal’s assertion that the right of peoples to self-determination, as it
evolved from the Charter and from UN practice, has an erga omnes char-
acter, is irreproachable. The principle of self-determination of peoples has
been recognized by the UN Charter and in the jurisprudence of the Court
. . . it is one of the essential principles of contemporary international law.84
In the Namibia case the Court endorsed the principle of equal treatment
expressed in General Assembly Resolution 2625 (XXV), stating that ‘the
subsequent development of international law in regard to non-self-gov-
erning territories, as enshrined in the Charter of the United Nations, made
the principle of self-determination applicable to all of them’.85
80
A. Pellet, ‘The Destruction of Troy Will Not Take Place’ in E. Playfair (ed.) International
Law and the Administration of Occupied Territories (Oxford: Clarendon 1992) 169, 184.
81
J. R. Crawford The International Law Commission’s Articles on State Responsibility:
Introduction, Text and Commentaries (Cambridge: Cambridge University Press 2002) 188.
82
ILC Ybk, summary records of the second part of the 53rd session, Vol I (2001) 270, paras
74–7.
83
Ibid., para 77.
84
East Timor (Portugal v. Australia) (Judgment) [1995] ICJ Rep 90. On obligations erga omnes
more generally see Barcelona Traction, Light and Power Co Ltd (Belgium v. Spain) [1970]
ICJ Rep 3, 32.
85
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)
[1971] ICJ Rep 31.
1.3 the progression of the chapters 17
In summary, the picture that emerges is of the General Assembly deter-
mining from an administrative standpoint which territories are ‘non-
self-governing’ in accordance with the principles set out in the Colonial
Declaration. In doing so it determines implicitly which ‘peoples’ – being
the inhabitants of those territories that are deemed ‘non-self-governing’ –
will be entitled to exercise the right to self-determination. It was observed
earlier that this procedural exercise is restrictive in scope and applica-
tion. However, the rule on colonial self-determination has been applied
to great effect in the context of ‘salt water’ decolonization, and it is some-
times argued that the right of self-determination in a colonial context is
jus cogens, meaning that States supposedly ‘accept’ and ‘recognize’ that no
derogation from this right is possible.
When articulated in this way, the colonial self-determination rule
appears solid. However, several examples exist of apparent deviations from
the rule. The cases in question often involve disputed colonial territories
where the wishes of the inhabitants have been overridden or qualified by
the territorial ambitions of a neighbouring claimant State. The present
work is primarily concerned with understanding how the self-determina-
tion rule operates in such cases.
It will be argued that a number of cases involving apparent failures of
self-determination can be explained by reference to the procedure for iden-
tifying self-determination units. These anomalous cases, it is submitted,
are not evidence of inconsistency of application of the self-determination
norm; rather, they seem to highlight how strictly the scope of the norm is
circumscribed. Other apparent deviations from the norm are more dif-
ficult to explain according to principled criteria. The latter group of cases
seems to be limited to a handful of small, disputed, enclave-like territories.
An important aim of the present work is to consider whether and how
such cases can be accommodated within a rational doctrinal account of
colonial self-determination.
1.3 The Progression of the Chapters

The remainder of this work is organized as follows:
Chapter 2 examines the interplay between the principles of territo-
rial integrity and self-determination. It considers the drafting history of
paragraph 6 of the Colonial Declaration (on territorial integrity), which
took place against the backdrop of the crises in Katanga and West Irian.
It then considers the judicial interpretation of paragraph 6 in the Western
Sahara Advisory Opinion of the ICJ. The chapter evaluates competing
18 introduction
interpretations of paragraph 6 in the context of irredentist claims to colo-
nial territories (such as the Moroccan claim to Western Sahara). It high-
lights the distinction between ‘conventional’ interpretations of paragraph
6 (which some States and Non-Self-Governing Territories have invoked
in defence of the integrity of their present-day borders), and ‘irredentist’
interpretations of paragraph 6 (which some States invoke, more controver-
sially, as a basis for annexing territories with which they shared pre-colonial
ties). The purpose of this enquiry is to shed light on the temporal ambit of
the territorial integrity principle, and the extent to which it operates to
circumscribe the contemporary right to self-determination. The chapter
concludes that while some doubt remains concerning the relevance of pre-
colonial territorial ties in the decolonization process, it would appear that
such ties (even pre-colonial ties of territorial sovereignty) cannot trump
the exercise of the right to self-determination by a colonial territory; at
most it appears they might affect the modalities of the exercise of the right.
Chapter 3 deals with the identification of self-determination units in
State practice. Its focus is primarily on disputed territories that are claimed
by neighbouring States on the basis of a ‘conventional’ (rather than an
‘irredentist’) understanding of territorial integrity. These are cases where
it is contended that there exist present-day ties of territorial sovereignty
between the irredentist claimant and the coveted territory.
The first section of Chapter 3 examines the (general) prohibition on
the fragmentation of Non-Self-Governing Territories, with reference
to the contentious cases of Mayotte, the Îles Éparses (Scattered Islands)
and the Chagos Islands (or British Indian Ocean Territory). Exceptions
to the general prohibition seem limited to non-contentious cases, where
fragmentation is justified on the basis of the consent of the affected colo-
nial populations and/or concerns of international order and stability.
This point is supported by reference to the cases of British Cameroons,
Ruanda-Urundi, the Trust Territory of the Pacific Islands, the Gilbert and
Ellice Islands Colony, the Cocos (Keeling) Islands, and Christmas Island.
The differential treatment of the Cocos (Keeling) Islands and Christmas
Island (both of which were excised from the Colony of Singapore) raises
questions about the definition of a ‘people’ as holder of the right to self-
determination. Ostensible reasons for the holding of a popular consulta-
tion in Cocos (Keeling) Islands, and ostensible reasons for the absence of
such a consultation in Christmas Island, will therefore be examined.
The next section of Chapter 3 considers irredentist claims based on
the existence of legal ties of territorial sovereignty evidenced by treaty. In
such cases, the irredentist claimants contend that they retain present-day
1.3 the progression of the chapters 19
territorial sovereignty over neighbouring colonial territories, by virtue of
treaty arrangements between the irredentist claimants and the colonial
administering powers. Cases involving international ‘leases’, namely the
Panama Canal Zone, Hong Kong, and Macau are considered under this
rubric. The case of Gibraltar is also considered, in light of Spain’s argument
that it transferred something less than territorial sovereignty to Britain
under the Treaty of Utrecht 1713.
The final section of the chapter deals with the case of the Falkland/
Malvinas Islands. It conceives of the Anglo-Argentine dispute over the
islands as a dispute over present-day title under customary international
law, rather than as a dispute over the relevance of pre-colonial ties. The
case is thus capable of being understood according to a ‘conventional’
understanding of how the principle of territorial integrity circumscribes
the right of external self-determination in the decolonization process. It
will be argued that uncertainty surrounding the status of the islands as
a self-determination unit can be attributed principally to the unresolved
complexities of the territorial dispute. It will be argued further that the
contemporary emphasis (by all parties) on the ethnographic characteris-
tics of the population is an unhelpful distraction when it comes to deter-
mining the external status of the islands in accordance with contemporary
international law.
Chapter 4 asks whether there is an exception to the rules for identifying
self-determination units, in the form of a special ‘colonial enclaves’ cat-
egory. The chapter focuses on a small number of highly anomalous cases
that are difficult to rationalize according to a ‘conventional’ understand-
ing of the territorial integrity principle. The cases in question involve tiny
enclaves or quasi-enclaves: the French territorial possessions in India,
São João Baptista de Ajudá, the Portuguese Dependencies in India, Ifni,
Gibraltar and Walvis Bay. Some of these territories appear to be prima facie
self-determination units, where self-determination has nevertheless been
denied or qualified in some way.
The reason Gibraltar is considered in Chapters 3 and 4 is that the
Spanish claim rests on two conceptually distinct pillars. The first (exam-
ined in Chapter 3) is that Britain acquired something less than territorial
sovereignty under the Treaty of Utrecht. If one accepts this argument, it
follows that a denial of external self-determination could be explained in
conventional terms. Spain could argue – as Panama did in relation to the
Panama Canal Zone – that Spanish de jure rights over the territory were
never extinguished, and that the restoration of Spanish territorial integrity
should therefore prevail over the desire of the Gibraltarians to determine
20 introduction
the external status of the territory. On such a view, Gibraltar would not
be a prima facie self-determination unit. The second pillar of the Spanish
argument (examined in Chapter 4) is that, even if territorial sovereignty
over Gibraltar was validly transferred by Spain to Britain, self-determina-
tion should nevertheless exceptionally be set aside and the pre-Treaty of
Utrecht territorial boundaries of Spain restored.
The analysis of the cases in Chapter 4 is conducted in parallel with an
evaluation of influential doctrinal approaches that seek to rationalize the
treatment of certain territories by reference to their purported factual
characteristics.
The unusual treatment of the territories that feature in the first section of
the chapter is then contrasted with the treatment of Belize and East Timor,
where external self-determination was delayed by the irredentist claims of
Guatemala and Indonesia, respectively, but eventually not denied.
The final section of the chapter compares some of the idiosyncratic
cases considered in the first section with the Spanish coastal enclaves in
northern Africa, and asks whether principled distinctions can be drawn
between these enclaves and those considered in the first section.
The chapter finds little evidence for the existence of a coherent exception
to the rule on colonial self-determination. Its findings point instead to the
important, and sometimes decisive, role that political interests play in the
application of decolonization rules to small disputed colonial territories.
Chapter 5 contains an overall summary of conclusions.
2
Territorial Integrity and the Limits

of Self-Determination
Paragraph 6 of the Colonial Declaration
It was observed in the Introduction that the colonial self-determination

rule is the product of a synthesis of the principles of territorial integrity and
self-determination.1 It was observed moreover that the task of construct-
ing a normative framework for the achievement of self-determination
calls for a ‘very delicate balancing of interests’2 and that the interests in
question broadly reflect a conservative concern for preserving interna-
tional order on the one hand, and a progressive concern for promoting a
measure of international justice on the other.3 The resulting framework, it
is suggested here, opens up new (but limited) space for the enjoyment of
self-determination, while remaining grounded in a State-centric interna-
tional legal order.
The Colonial Declaration epitomizes the attempt by States to synthesize
the principles of territorial integrity and self-determination.4 The approval
of this instrument (by eighty-nine votes to none, with nine abstentions) had
far-reaching ramifications, even though its operational scope is limited to
situations of ‘salt-water’ colonialism. In proclaiming that ‘all peoples have
the right to self-determination’, and requiring that ‘immediate steps’ be
taken to transfer powers to the peoples of Non-Self-Governing Territories,
paragraph 2 of the Declaration signalled the beginning of the end for the
European empires that had dominated international relations for half a
millennium, and reflected a seismic shift in the international system.
1
See Ch 1, 10, citing T. Franck Fairness in International Law and Institutions (Oxford: Oxford
University Press 1995) 247.
2
Ibid., citing I. Brownlie ‘The Rights of Peoples in Modern International Law’ in J. R.
Crawford (ed.) The Rights of Peoples (1988) 1, 7.
3
Franck (n 1) 153: ‘Order and stability versus justice and change’ is, according to Franck, ‘the
great substance and dichotomy of all fairness discourse’ (ibid.).
4
21
22 Territorial Integrity & Limits of Self-Determination
It is recalled that paragraph 6 enshrines the principle of territorial
integrity by providing 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 Charter of the
United Nations.’ Paragraph 7 enshrines the principles of ‘equality, non-
interference in the internal affairs of all States, and respect for the sover-
eign rights of all peoples and their territorial integrity’.5 Paragraphs 6 and
7 thus provide ‘order-based’ caveats to the revolutionary change envisaged
in paragraph 2.6 Emancipation from colonial rule is thus conceived of as a
controlled exercise in international justice. Its disruptive effects are man-
aged by ensuring that emancipatory change is underpinned by a concern
for international order, which encompasses a concern for preserving the
existing system of States and the stability of international boundaries.
It was observed in the introduction that the competing concerns that lie
at the heart of the self-determination rule have always existed in a state of
uneasy tension. The difficulties in managing this tension are most appar-
ent in the drafting history and subsequent interpretation of paragraph 6 of
the Colonial Declaration (the ‘territorial integrity’ provision), one of the
most problematic and contested provisions in an international instrument
in the contemporary era.7
Conflicting interpretations of paragraph 6 feature prominently in dis-
cussions of the anomalous decolonization cases that are the focus of this
work. As a prelude to the analysis of these case studies in Chapters 3 and 4,
this chapter will give detailed consideration to the meaning of paragraph
6 by reference to its drafting history and its subsequent judicial interpre-
tation in the ICJ’s Western Sahara Advisory Opinion. The chapter will
demonstrate that ambiguity in the drafting and subsequent interpretation
5
The alternate references to ‘countries’ and ‘States’ reflect an intention to preserve the integ-
rity of self-determination units both prior to and after the achievement of statehood.
6
T. Franck The Power of Legitimacy Among Nations (New York, Oxford: Oxford University
Press 1990) 228.
7
As to the status of the Declaration, it was noted in the introduction that, as a resolution of
the General Assembly, it has no binding force, although it is widely accepted that General
Assembly resolutions are ‘a rich source of evidence about the development of custom-
ary international law’: See R. Higgins The Development of International Law Through the
Political Organs of the United Nations (Oxford: Oxford University Press 1963) 5. This is espe-
cially so when they are passed by an overwhelming majority. Compare H. Quane, who is
sceptical about the weight that should be accorded to the Declaration, given ‘the abstention
of all the colonial powers’, while conceding that ‘it did contribute to the subsequent develop-
ment of international law in this area’: ‘The United Nations and the Evolving Right to Self-
Determination’ 47 ICLQ (1998) 537, 551.
2.1 Drafting History of Paragraph 6 23
of paragraph 6 has generated uncertainty regarding the role of territorial
integrity as a limit on self-determination in the decolonization process,
especially in the context of irredentist claims to Non-Self-Governing
Territories. This ambiguity has arguably created space for a range of ‘irre-
dentist’ interpretations of paragraph 6, the most far-reaching of which
hold that paragraph 6 can be invoked to justify the subversion of present-
day territorial sovereignty over a Non-Self-Governing Territory in favour
of a ‘reintegration’ claim by a neighbouring State, grounded on the exist-
ence of pre-colonial ties between the irredentist State and the Non-Self-
Governing Territory in question.
It will be observed that certain key sponsors of paragraph 6, States
which latterly have favoured an expansive, irredentist interpretation of
that provision (notably Indonesia and Morocco), were concerned more
narrowly during the drafting process with addressing attempts to dismem-
ber Non-Self-Governing Territories during the process of decolonization,
rather than with irredentist claims based on pre-colonial ties, let alone
with prohibiting self-determination more generally in territories that hap-
pen to be disputed. The complex Western Sahara Opinion of the ICJ pro-
vides some clarification regarding the types of territorial claim that might
affect the exercise of self-determination, but it also generates uncertainty
concerning the territorial definition of a ‘people’ and the sort of special
circumstances that might lead the General Assembly to dispense with a
consultation of the inhabitants of a Non-Self-Governing Territory.
Section 2.1 of this chapter deals with the drafting history of paragraph 6.
Section 2.2 deals with the ICJ’s interpretation of the provision in the
Western Sahara Advisory Opinion. The chapter concludes by arguing that
despite the difficulties surrounding paragraph 6, the scope of its applica-
tion may not be as unclear as some have suggested, even in the context of
cases where decolonization takes place under the shadow of an irredentist
claim over the decolonizing territory (Section 2.3).
2.1 The Drafting History of Paragraph 6

of the Colonial Declaration
The Colonial Declaration was adopted on 14 December 1960. The preced-
ing days saw lively debate in the General Assembly over the wording of the
draft Declaration, and in particular over the meaning of draft paragraph 6.
A central concern of the Asian and African States that drafted the
Declaration was to counter attempts by colonial powers to carve up colo-
nies that were in the process of achieving independence, as part of a policy
of ‘divide and rule’.8 While there was broad consensus that paragraph 6
prohibited such practices,9 a major source of uncertainty was whether
paragraph 6 also precluded, more generally, the exercise of a right of self-
determination in territories that were the subject of ‘reintegration’ claims.
It was this uncertainty that prompted the introduction by Guatemala of an
amendment to the draft.
Guatemala, which had obtained its independence from Spain in 1821,
maintained a territorial claim over neighbouring British Honduras (later
the independent State of Belize).10 It proposed the insertion, after draft
paragraph 6, of a new draft paragraph 7, in the following terms: ‘The prin-
ciple of the self-determination of peoples may in no case impair the right
of territorial integrity of any State or its right to the recovery of territory.’11
Before examining the discussions that persuaded Guatemala to drop its
proposed amendment, and the ambiguous consensus that was reached as
a result, it is helpful to consider the immediate geopolitical context, which
to a large extent was responsible for shaping the terms of the debate. The
UN was at the time facing two of the most significant international crises
in its short history: the secession conflicts in Katanga and West Irian (or
Western New Guinea).
2.1.1 The Geopolitical Context of the Debate:

The Crises in Katanga and West Irian
In the cases of Katanga and West Irian, the approach of the UN testifies to
the strong international preference in favour of uti possidetis as a vector
of international order in the decolonization process. It also testifies to the
limitations of self-determination as a vector of international justice.12 This
section will consider both cases in turn.
8
See the Moroccan delegate’s comments at UN Doc A/PV.947 (14 December 1960) 1284,
paras 158–61.
9
See generally the debate at UN Doc A/PV.947 (14 December 1960).
10
For details of the Guatemalan claim see E. Lauterpacht et al., ‘Legal Opinion on Guatemala’s
Territorial Claim to Belize’, November 2001: www.mfa.gov.bz/public/Data/281717574571
.pdf. The case of Belize is examined in Ch 4, at p. 224 et seq.
11
UN Doc A/L.325 (7 December 1960) Annexes, Agenda item 87.
12
J. R. Crawford Brownlie’s Principles of International Law (8th edn Oxford: Oxford University
Press 2013) notes (at 239) that the operation of uti possidetis often produces unsatisfactory
results due to boundaries that were ill-defined, difficult to prove or drawn without ethnic
sensitivity. It is also liable to ‘impede the recognition of new states due to the unwillingness
of states to acknowledge a desire for independence contrary to uti possidetis. In a worst case
scenario, this may result in an otherwise successful polity being shackled to a “failed state”’.
2.1.1.1 Katanga
The Republic of Congo achieved its independence from Belgium on 30
June 1960. Tribal rioting broke out in the days that followed and there was
a mutiny in the Congolese army on 5 July. Amid the mayhem, the Congo’s
wealthiest province, Katanga, declared its independence under the protec-
tion of Belgian troops.13
Katanga is roughly the size of France and its land contains substantial
reserves of copper, zinc, cobalt, uranium and radium.14 In the immediate
aftermath of Congolese independence these mineral reserves remained
under the control of the Belgian- and British-controlled Union Minière.
The leader of the Katangese separatists, Moïse Tshombe, who was consid-
ered by international observers to be closely allied with the former coloniz-
ers, was unable to muster sufficient international support for the separatist
cause. Even in the United States, where one might have expected to find
more sympathy for Katangese independence, given the USSR’s support
for the leftist Congolese Prime Minister Patrice Lumumba, the position
adopted by the government was that it would not support the attempted
secession. According to one commentator, the Americans: ‘had disap-
proved of the Katangese secession because they feared it would leave the
remainder (poorest part) of the country open to communist (in particular,
Chinese) influence’.15
On 12 July 1960, the central Congolese government of President
Kasavubu and Prime Minister Lumumba cabled the UN Secretary
General requesting urgent military assistance. The cable alleged that the
Belgian government had planned the secession of Katanga ‘with a view
to maintaining a hold on our country’.16 The purpose of the requested UN
intervention, according to the central government, would be ‘to protect
the national territory of the Congo against present external aggression
which is a threat to international peace’.17 The next day, the UN Security
Council adopted a resolution calling on Belgium to withdraw its troops
from the ‘territory of the Republic of Congo’ and authorising the provision
13
The relevant events are summarized in Arrest Warrant of 11 April 2000 (Democratic Republic
of the Congo v Belgium), Judgment of 14 Feb 2002 [2002] ICJ Rep 3 at paras 6–15, Judge
Ad Hoc Bula, separate opinion. See also F. Baetens ‘Decolonization of Belgian Territories’
MPEPIL Online.
14
Baetens (ibid.) para 8.
15
Ibid., para 15.
16
UN Doc S/4382 (13 July 1960) 1.
17
Ibid.
of ‘technical and military assistance’ by the UN to the central govern-
ment.18 On 21 February 1961, Security Council Resolution 161 explicitly
authorized the use of force by UN troops to prevent civil war.19 After failed
attempts at peace negotiations, the UN Operation in Congo (UNOC)
launched military operations in late 1962 that effectively extinguished the
prospect of Katangese secession.
This historical sketch cannot do justice to the complex mix of tribal and
Cold War politics that shaped events in the Congo and within Katanga
itself. While it would be overly simplistic to characterize the Katangese
separatists as mere puppets of the Belgian regime, support for seces-
sion within Katanga was by no means overwhelming, and it was actively
opposed in the northern Baluba areas of the province (thus raising the
spectre of further fragmentation within Katanga itself).20 What should
be clear is the prevailing view in the UN at the time: that any attempt to
secede from a country that was in the process of gaining its independence
from colonial rule would be looked upon as a threat to international order,
especially if it was perceived as a veiled attempt by the former colonizers to
maintain a foothold in the territory. The response of the Security Council
reflected an emerging consensus regarding the stability of pre-existing
colonial boundaries and the limitations that this placed on the exercise of
self-determination.
The Katangese secession crisis was unfolding at the same time that
the General Assembly was debating the wording of the draft Colonial
Declaration. Indeed, the crisis was explicitly referred to in the General
Assembly debate as an example of the type of situation that draft para-
graph 6 of the Declaration was intended to cover.21
2.1.1.2 West Irian

By the time of World War II, the Dutch East Indies had been under the
colonial rule of the Netherlands for some 300 years.22 Japanese forces
occupied the islands in 1942. When Japan capitulated in 1945, the islands
18
SC Res 143, 14 July 1960.
19
SC Res 161, 21 February 1961.
20
On the complexities of Katangese tribal politics, see M. Mamdani ‘The Invention of the
Indigène’ London Review of Books (20 January 2011) 31.
21
Statement of the Moroccan representative, UN Doc A/PV.947 (14 December 1960) 1284,
paras 158–61.
22
The Dutch presence in what is now Indonesia dates back to 1619, with the founding of the
port city Batavia (now Jakarta): see generally A. Vickers A History of Modern Indonesia
(Cambridge: Cambridge University Press 2005) Ch 1.
passed under the administration of the Anglo-American South-East Asia
Command. Japan’s intervention and subsequent withdrawal had created a
power vacuum, which was exploited by Indonesian nationalists, who took
up arms against the Dutch and proclaimed an independent Republic of
Indonesia in 1945. The Dutch strategy for retaining control over the ter-
ritory was to divide it into a number of federated states, and to this end it
was able to reach agreement with the new Government for the Republic of
Indonesia to ‘co-operate in the rapid formation of a sovereign democratic
state on a federal basis’.23
The agreement did not provide a sustainable basis for peaceful govern-
ment of the territory. Dutch attempts to impose puppet regimes in the fed-
erated states met with violent resistance from the Indonesian nationalists,
which in turn met with Dutch ‘police action’. After a 1948 truce overseen
by the UN Security Council, the Netherlands attempted to impose a fed-
eral structure of government by force. This prompted the Security Council
to adopt Resolution 67, which called for the cessation of hostilities and the
creation of a ‘United States of Indonesia’, to which the Netherlands was to
transfer sovereignty by July 1950.24
The State of Indonesia duly achieved its independence on 27 December
1949, following a roundtable conference in The Hague.25 However, the for-
mer colonial power and the new State were not able to reach agreement at
the conference on the status of West Irian, a province covering the western
peninsula of the island of New Guinea. According to the Netherlands, the
700,000 inhabitants of West Irian were racially and culturally unrelated to
the Indonesians.26 Indonesia’s position was that its nationalist project had
a territorial, rather than a racial, basis and was rooted in common suffer-
ing endured during the Dutch colonial occupation.27
Provision was made for the maintenance of the status quo in West Irian
for one year and for a process of negotiations to determine the final status
of the territory. The negotiations collapsed, and tensions increased over
the disputed territory in the years that followed. Indonesia broke diplo-
matic relations with the Netherlands on 17 August 1960, four months
23
Linggadjati Agreement of 25 March 1947 ([1948] 18 DeptStBull 325) Art 2.
24
SC Res 67, 28 January 1949.
25
Round-Table Conference Agreement between the Government of the Kingdom of the
Netherlands and the Government of the Republic of Indonesia [signed and entered into
force 27 December 1949] 69 UNTS 200.
26
T. Franck Nation Against Nation (New York: Oxford University Press 1985) 77.
27
6:2 Revue des Nations Unies (1957) 67.
before the debate over paragraph 6 of the Declaration took place in the
General Assembly.28
As will be seen, the Indonesian delegate played a prominent role in the
General Assembly debate regarding paragraph 6 of Resolution 1514 (XV),
making repeated reference to the situation in West Irian as an example of
the type of situation that paragraph 6 would cover.29
Before turning to the substance of the debate, it is worth considering the
rather anomalous outcome of the dispute over West Irian. Following
the passage of Resolution 1514 (XV), the Netherlands proposed that the
inhabitants of West Irian should be given the choice freely to decide
the future of the territory in a referendum overseen by the UN. It found
support from the Brazzaville Group of thirteen (mainly francophone)
African States, which proposed a draft resolution supporting the right
of the people of West Irian to self-determination, arguing in the ensuing
debate that it was for the ‘people of New Guinea’ to decide who was entitled
to claim sovereignty over their territory.30 The draft resolution received
a significant measure of support in the General Assembly, but fell short
of the necessary majority (fifty-three votes in favour, forty-one against,
and nine abstentions).31 Indonesia continued to oppose the notion of an
UN-organized referendum in West Irian, and sought to portray calls for
self-determination in the territory as yet another manifestation of colonial
‘divide and rule’ policy.32
Indonesia benefited from the influential support of India, which Franck
notes already had one eye on military intervention in Goa.33 Franck argues
moreover that Indonesia was ‘encouraged’ by India’s forceful annexa-
tion of Goa in 1961 to launch an invasion of West Irian, which it did in
May 1962.34 A US-mediated truce was agreed following the invasion. It
provided inter alia for an ‘act of free choice’ by the population of West
Irian, but stipulated that this was to take place after the administration of
the territory had been transferred to Indonesia, which was to occur on 1
28
J. van Aggelen, ‘Decolonization: Dutch Territories’ MPEPIL Online, para 5.
29
See e.g. comments of Indonesian delegate, UN Doc A/PV.936 (1960) 1153, paras 53–5.
30
UN Doc A/PV.1065 (27 November 1961) at 841 (for comments by the Nigerien representa-
tive) and at 855 (for comments by the Dahomian representative).
31
UN Doc A/L.368 (27 November 1961).
32
Franck (n 26) 78.
33
Ibid. See the discussion of Goa in Ch 4, p. 188 et seq. While Indonesia’s claim to West Irian
might have been justified by reference to the principle of uti possidetis, India’s claim to Goa
could not be so justified.
34
Franck (ibid.).
May 1963, after a period of interim administration by a UN Temporary
Executive Authority.35
When the ‘act of free choice’ did eventually come, in 1969, it turned out
to be a farcical fait accompli.36 1,025 delegates, ‘specially selected’ by the
Indonesian authorities from a population of 800,000, voted unanimously in
favour of maintaining Indonesian rule. Despite a report from the Secretary-
General’s representative pointing out severe deficiencies in the way the vote
was conducted, the General Assembly opted to take no further action.37
Uti possidetis thus prevailed in the decolonization of the Dutch East
Indies, though not quite in the same way as it had done in the Congo.
Perhaps because the Papuan and Pygmy population of West Irian was
perceived as markedly distinct from the broader population of Indonesia,
there was greater international concern for their plight than there was for
the Katangese cause.38 Nonetheless, support for self-determination in West
Irian was not sufficiently strong to trump Indonesia’s territorial integrity.
The relative weight accorded to the principles of self-determination and
territorial integrity is reflected in the fact that a token public concession
to ‘justice-based’ fairness (in the form of the faulty plebiscite) proved
sufficient for the UN to draw a line under the issue.
35
See GA Res 1752 (XVII), 21 September 1962. Also, ‘West New Guinea – UNCF Background’,
at: www.un.org/en/peacekeeping/missions/past/unsfbackgr.html.
36
A contemporaneous US Embassy telegram observes that the arrangements for the ‘Act of
Free Choice’ unfolded ‘like a Greek tragedy, the conclusion preordained’: US Embassy in
Jakarta to Secretary of State, POL 19 West Irian, Confidential 126, Djakarta 3614, 28 May
1969, at 1 (Declassified 1 July 2002, 769000). US National Security Adviser Kissinger and
President Nixon were in Indonesia at the time of the vote, the former advising the latter
to avoid mention of West Irian altogether: ‘Memorandum from Kissinger to President
Nixon’ 18 July 1969, EO 12956 (Declassified 11 July 2002). Kissinger was keen to avoid
any association between the United States and the ‘act of free choice’, and expressed the
view that a ‘direct election . . . would be almost meaningless among the stone age cultures of
New Guinea’ (ibid.). These and related secret US documents can be viewed at: www2.gwu
.edu/~nsarchiv/NSAEBB/NSAEBB128/.
37
Report of the Secretary General Concerning the Act of Self-Determination in West Irian UN
Doc A/7723, Agenda item 98 (6 November 1969). The Rapporteur states that the rights of
free speech, freedom of movement and of assembly were not fully implemented, and ‘the
Administration exercised at all times a tight control over the population’ (at 70, para 251).
See also Franck (n 26) 82.
38
See GA Res 2504 (XXIV), 19 November, 1969, the preamble of which recognizes the ‘spe-
cific conditions’ of the population of West Irian. On the eve of the vote, there was appar-
ently a ‘stormy meeting’ between representatives of a number of African States and an
Indonesian representative, where there was ‘much talk about the African origins of the
West Irianese’: J. Saltford The United Nations and the Indonesian Takeover of West Papua
1962–1969 (London: Routledge 2003) 173.
The outcome in West Irian, and the treatment of the inhabitants of that
territory, are difficult to justify in terms of international justice. The events
there have been referred to as a ‘substantial denial of self-determination’
by Cassese,39 and a ‘perversion of the U.N.’s principles’ by Franck.40 Cassese
is correct that self-determination was, in substance, denied to the inhabit-
ants of West Irian as a distinct group.41 However, in contending that this
involved a ‘perversion’ of the UN’s principles, Franck arguably fails to see
those principles for what they really are. After all, the very same UN prin-
ciples have led to self-determination being accorded a role that is very
strictly circumscribed in the decolonization process by the countervailing
principle of territorial integrity. Rigo-Sureda offers a convincing rationali-
zation of UN practice in relation to West Irian:
. . . the attitude taken by the General Assembly can be assumed to mean that
West Irian was regarded as an ‘integral part’ of Indonesia and, therefore,
that there was no need for it to go through the process indicated by the
General Assembly to achieve self-determination.42
Crawford agrees that the preservation of the territorial integrity of

Indonesia, as a Chapter XI territory, ‘is the only satisfactory explanation
of the West Irian case’, although he adds – rightly acknowledging the anom-
alous characteristics of the case – ‘if indeed there is such an explanation’.43
As the year 1960 drew to a close, international practice in Katanga and
West Irian had already done much to consolidate the role of uti possidetis
as a strong guiding principle underpinning the decolonization process.
Echoes of both crises can be found in the General Assembly debate on the
meaning of paragraph 6 (the ‘territorial integrity’ provision) of the draft
Colonial Declaration, in December of the same year.
2.1.2 The General Assembly Debate on Paragraph 6

It is significant that the wording of the African-Asian draft Colonial
Declaration was adopted by the General Assembly without a single vote
39
A. Cassese Self-Determination of Peoples: A Legal Reappraisal (Oxford: Oxford University
Press 1995) 84.
40
Franck (n 26) 82.
41
J. Crawford The Creation of States in International Law (2nd edn Oxford: Oxford University
Press 2006) 648 cites the same passage from Cassese’s book but substitutes the words ‘sub-
stantial denial’ for (the rather more charged) ‘substantive betrayal’, which gives the state-
ment a less neutral flavour reminiscent of Franck’s assessment.
42
A. Rigo-Sureda The Evolution of the Right to Self-Determination (Leiden: Sijthoff 1973) 232.
43
Crawford (n 41) 646.
of dissent; even the European colonial powers abstained rather than vote
against it. However, in the days before the final vote, a proposed amend-
ment to the draft by Guatemala threatened to derail the consensus.
The amendment was proposed because of uncertainty surrounding
the meaning of draft paragraph 6, the wording of which would remain
unchanged in the final text of the Declaration:
Any attempt aimed at the partial or total disruption of the national unity
and the territorial integrity of a country is incompatible with the pur-
poses and principles of the Charter of the United Nations.
Guatemala was concerned that paragraph 6, as drafted, placed insufficient

restrictions on the exercise of self-determination in territories that were
the subject of dispute or litigation. There can be little doubt that Guatemala
was concerned that its claim to British Honduras might be compromised
by the wording of the Declaration, although it did not raise this issue
explicitly. It proposed the insertion after paragraph 6 of a new paragraph 7,
in the following terms:
The principle of the self-determination of peoples may in no case impair
the right of territorial integrity of any State or its right to the recovery of
territory.44
The Guatemalan amendment was introduced two days after a lengthy

intervention by the Indonesian representative. Indonesia had been one of
the sponsors of the draft Declaration, and on 5 December 1960 its repre-
sentative had set out to explain the intention of the drafters.
According to the Indonesian representative, the draft resolution was
concerned ‘exclusively with those still dependent peoples and territories
whose fate was in the minds of the drafters of the United Nations Charter’.45
Although he did not list concrete examples, he expressed a view regarding
the types of situation the draft Declaration was not intended to cover. It was
‘not concerned with so-called satellites or with military bases’.46 Nor could
the right of self-determination referred to in the draft Declaration be relied
on as a pretext for the breakup of a ‘sovereign nation’. Not surprisingly, the
Indonesian representative had the situation in West Irian in mind:
In West Irian, the Dutch are perverting this right of self-determination into
a justification for an amputation of Indonesian sovereign territory. Again,
44
UN Doc A/L.325, Annexes, Agenda item 87 (7 December 1960): Guatemala, proposed
amendment to UN Doc A/L.323.
45
UN Doc A/PV.936 (5 December 1960) 1153, para 53.
46
Ibid.
the ‘white man’s burden’ is being used as a cloak for the retention of colonial
rule and the unilateral annexation of a part of a sovereign nation.47
He continued:
Dutch colonial policy . . . misuses the sacred right of self-determination in
order to continue colonialism in an integral part of our national territory,
West Irian.48
In the eyes of Indonesia, which had been recognized as an independent

State for over a decade by the time of the debate, the Dutch policy was not
only contrary to draft paragraph 6 – it was also tantamount to ‘interference
in the internal affairs of another State’ contrary to draft paragraph 7, which
provided for ‘non-interference by colonial Powers in the internal affairs of
their former dependent territories’.49
The emphasis on West Irian may have been disconcerting for Guatemala,
which had gained its independence from Spain in 1821, and which, as
has been observed, maintained a longstanding claim over neighbouring
British Honduras. Although Guatemala claimed British Honduras as an
integral part of its territory, ostensibly under the doctrine of uti possi-
detis, its dispute with Britain over title had its roots in the late eighteenth
and early nineteenth centuries and was not obviously analogous with the
Indonesian claim over West Irian.50
In any event, the Guatemalan amendment received little support in the
General Assembly. Some States took the view that the amendment added
nothing of substance to the wording of draft paragraph 6. The Afghan rep-
resentative stated:
. . . we have no objection in principle to them but we think that the provi-
sions of these amendments are covered in paragraph 6 of the draft declara-
tion of the African-Asian countries.51
47
Ibid., 1152, para 44.
48
Ibid., 1153, para 55.
49
Ibid., para 53.
50
The Guatemalan claim to British Honduras, and the emergence of Belize as an independent
State in 1981, is examined in Ch 4, p. 215 et seq., as an example of decolonization in accord-
ance with the principle of self-determination, notwithstanding the existence of an irreden-
tist claim by a neighbouring State. As will be seen in that chapter, it is difficult to construe
British support for self-determination in British Honduras as an ‘attempt aimed at the par-
tial or total disruption of the national unity and the territorial integrity of ’ Guatemala, let
alone as an attempt to interfere in the internal affairs of Guatemala. Crawford (n 41) 641 has
characterized the Guatemalan claim as a ‘third State claim’ which is ‘extraordinarily weak in
[its] own terms, quite apart from any supervening act of self-determination by the people
of the territory’.
51
Iran also considered the amendment to be ‘superfluous’, and stated that
it would not vote for it for fear of spoiling the ‘delicate balance’ struck by
the draft declaration, despite agreeing with the ‘intentions’ behind the
amendment (without elaborating on what it understood those intentions
to be).52
Earlier in the debate the USSR raised a more principled objection:
the Soviet delegation is unable to support these amendments since they
provide for a limitation of the fundamental right of all peoples to self-deter-
mination and are thus contrary to paragraph 2 of the declaration in the
African-Asian draft resolution, which quite rightly states that ‘All peoples
have the right of self-determination’. If any States have any claims or reser-
vations to put forward with regard to the disposition of any particular ter-
ritory, such matters should, in our opinion, be settled according to merit in
each individual case; no attempt should be made to raise private claims and
reservations to the level of a general principle restricting the inalienable
right of every people to self-determination.53
The next day, Indonesia set out to provide ‘an explanation of paragraph 6
in the draft resolution’ in order to persuade Guatemala to withdraw its pro-
posed amendment, which was threatening to undermine the consensus
that the African-Asian sponsors of the draft had been hoping to secure.54
The Indonesian representative left no doubt that in sponsoring paragraph
6 and bringing it into the draft resolution, his delegation ‘had in mind that
the continuation of Dutch colonialism in West Irian is a partial disruption
of the national unity and the territorial integrity of our country’.55
Significantly, the Indonesian representative expressed the view that the
Guatemalan amendment should be withdrawn not for any principled rea-
son, but because ‘we consider that the idea expressed in the Guatemalan
amendments is already fully expressed in paragraph 6 of our draft
resolution’.56 On-the-record discussion of Guatemala’s claim to British
Honduras, which might have encouraged comparisons with Indonesia’s
claim to West Irian, appears to have been deliberately avoided. Despite
the general nature of Indonesia’s assurances, Guatemala agreed not to
put its amendment to the vote, ‘although [it] would have liked to have the
principle of territorial integrity more clearly expressed’.57 The Guatemalan
52
Ibid., 1269–70, paras 54–6.
53
Ibid., 1258, para 128.
54
55
Ibid., para 9.
56
Ibid., para 10.
57
Ibid., para 16.
r epresentative, evidently not entirely reassured by the Indonesian explana-
tion, set out to protect his delegation’s position by explaining the reasons
behind the introduction of the amendment and its subsequent withdrawal:
. . . my delegation had introduced the amendment contained in document
A/L.325 to the effect that the principle of the self-determination of peoples
may in no case impair the right of territorial sovereignty of any State or its
right to the recovery of territory. This reservation seemed to be absolutely
desirable since there are many territories disputed or claimed by other
States as an integral part of their respective countries which are improp-
erly held by colonial Powers, and in such disputes the solution cannot run
counter to the principle of self-determination, as that would infringe the
other very important principle of a country’s territorial integrity.58
He continued, appearing to raise the bar higher still: ‘my delegation main-
tains that the resolution adopted will not affect territories which are the
subject of dispute or litigation’.59 He persisted in avoiding any reference to
the elephant in the room – British Honduras – as an example of the sort of
territory he had in mind.
The Guatemalan understanding of paragraph 6 was not supported by
later practice, and the Soviet fear that if Guatemala were to get its way the
mere existence of a territorial claim would be ‘raised to the level of a gen-
eral principle’, regardless of the claim’s merits, never materialized. In the
years that followed, the populations of certain territories that were the sub-
ject of dispute or litigation would exercise their right to self-determination
in accordance with the Colonial Declaration. One of those territories was
British Honduras. Belize (as it became known) was granted UN member-
ship in 1981 after an overwhelming majority vote in the General Assembly;
144 (including Indonesia) voted in favour, there were no abstentions and
only Guatemala voted against the resolution.60
The Guatemalan understanding of paragraph 6 was further under-
mined in 1998 when, ‘following intense debate’, an omnibus text deal-
ing with eleven undisputed Non-Self-Governing Territories presented
by the Special Committee on Decolonization achieved consensus in the
General Assembly only after the incorporation of an amendment strik-
ing the qualifying phrase ‘and where there is no dispute over sovereignty’
58
Ibid., 1276, para 63. The confusing nature of this statement may be due to an error of tran-
scription or translation. ‘Run counter to’ should probably read ‘be based on’ to better con-
vey the intention behind the sentence.
59
Ibid., 1277, para 68.
60
GA Res 36/3, 25 September 1981.
from its operative paragraph on self-determination.61 Indonesia’s posi-
tion – that it ‘could not but support’ the Special Committee’s original text,
with the inclusion of the saving ‘and where there is no dispute over sover-
eignty’ – was perhaps not surprising given that it occupied the Chair of the
Special Committee at the time. However, its support for the inclusion of
the qualification ‘where there is no dispute over sovereignty’ in 1998 may
be contrasted with its assurances in 1960 ‘that the idea expressed in the
Guatemalan amendments is already fully expressed in paragraph 6 of our
draft resolution’.62
Another territory that eventually achieved decolonization in accord-
ance with the principle of self-determination, notwithstanding the exist-
ence of an irredentist claim by a third State, was the Portuguese colony
of East Timor, which was claimed by Indonesia. Like Belize, this case is
considered in more detail in Chapter 4. For present purposes, it is interest-
ing to note that it was not until the mid-1970s that Indonesia started to lay
claim to the ‘reintegration’ of East Timor as its twenty-seventh Province.63
Indonesia never once mentioned the case of East Timor in the debate over
the meaning of paragraph 6 – its political focus at the time was exclusively
on West Irian.
The evolution of Morocco’s position on paragraph 6 is similar. Like
Indonesia, Morocco had been a sponsor of draft paragraph 6, and in the
debate the Moroccan representative had set out his delegation’s under-
standing of the provision:
paragraph 6 explains very well what our delegation understands by territo-
rial integrity. When we discussed this document and agreed to become a
sponsor, we had in mind a long list of examples of the partitioning and
disruption of the unity of national territories.64
The three examples the Moroccan representative gave were: (i) the attempt
to dismember the Congo, particularly in Katanga; (ii) the occupation
of Palestine ‘by this new phenomenon of foreign colonialism known as
61
UN Doc GA/SPD/406 (20 October 2008). The amendment was tabled by the United
Kingdom, which argued that the qualifying phrase ‘introduced conditions that could have
unexplored ramifications’ (ibid.). The divisive nature of the issue is reflected in the recorded
vote of 61 in favour to 40 against, with 47 abstentions. The territories that were the subject of
the omnibus resolution were: American Samoa, Anguilla, Bermuda, British Virgin Islands,
Cayman Islands, Guam, Montserrat, Pitcairn, St. Helena, Turks and Caicos Islands, and US
Virgin Islands.
62
See (n 56) above and accompanying text.
63
See Ch 4 at p. 220 et seq. for an analysis of the East Timor case.
64
international Zionism’; (iii) French attempts ‘to partition Morocco and
disrupt its national territorial unity, setting up an artificial State in the area
of Southern Morocco which the colonialists call Mauritania’.65
In the years that followed this intervention, Morocco would rely
increasingly on paragraph 6 in support of claims based on pre-colonial
ties to Western Sahara, Ifni, Ceuta, Melilla, and the other small Spanish
territories that lie along its northern coastline. None of these territories
was mentioned in the 1960 debate, and significantly, none can be said to
be analogous with Katanga and the other examples of ‘partitioning and
disruption’ that Morocco referred to as examples of situations covered by
paragraph 6.66
Franck and Hoffman offer a persuasive assessment of the debate over
paragraph 6:
. . . most states voting for Resolution 1514’s paragraph 6 probably did so
in the belief that they were creating a sort of ‘grandfather clause’: setting
out the right of self-determination for all colonies but not extending it to
parts of decolonized states and seeking to ensure that the act of self-deter-
mination occur within the established boundaries of colonies, rather than
within sub-regions. The U.N. debates and their juxtaposition with events in
the former Belgian Congo make clear that the desire to prevent self-deter-
mination from becoming a justification for Katanga-type secessions was
uppermost in the minds of most delegates.67
Clark offers a similar analysis, elaborating on what he considers to

be the ‘underlying purpose’ of paragraph 6 (although his view appears
to be informed as much by the context of the debate – particularly the
Katanga crisis – as by the debate itself):
. . . the underlying purpose was to prevent a part of the non-self-govern-
ing territory, in particular the wealthiest part, from negotiating a separate
agreement with the former colonial power. There were also fears that the
wealthier part might become, apart from the remainder of the territory, an
associate state of that power.68
65
Ibid., paras 158–61.
66
The territories in question were (and still are) claimed by Morocco on the basis of the alleged
existence of pre-colonial ties. See Ch 4, at p. 223 et seq. See also J. Trinidad, ‘An Evaluation
of Morocco’s Claims to Spain’s Remaining Territories in Africa’ 61 ICLQ (2012) 861.
67
T. Franck and P. Hoffman ‘The Right of Self-Determination in Very Small Places’ 8 NYU
JILP (1975–6) 331, 370.
68
R. S. Clark, ‘The “Decolonization” of East Timor and the United Nations Norms on Self-
Determination and Aggression’ 7:2 Yale J World Pub Ord (1980) 2, 30.
One derives the impression from the debate that the purpose of para-
graph 6 was indeed to address situations like Katanga and West Irian. It is
submitted that the issue of the Guatemalan amendment was ‘fudged’ in the
debate, and explicit discussion of Guatemala’s claim to British Honduras
was avoided, in order to preserve the fragile consensus that the African-
Asian sponsors of the draft had worked hard to achieve. The resulting
ambiguity arguably created space for an interpretation of paragraph 6 that
prevents the exercise of (external) self-determination not only in sub-
units of Non-Self-Governing Territories, but also in territories that are the
subject of ‘reintegration’ claims based on pre-colonial ties.
This ambiguity was exploited by certain States (not least Indonesia and
Morocco) in the years that followed. Occasionally, paragraph 6 was invoked
by a number of States looking to preserve their uti possidetis boundaries –
for example, Comoros and Mauritius, which were aggrieved at the exci-
sion of Mayotte and the Chagos Islands respectively.69 However, paragraph
6 was also relied upon by those intent on reconstituting pre-colonial ter-
ritorial formations, occasionally by military means. A few months after
the vote on the Colonial Declaration, Dahomey (later renamed Benin)
took the opportunity to seize the Portuguese enclave of São João Baptista
de Ajudá.70 India annexed the Portuguese territories of Goa, Daman and
Diu a few months later. India in particular relied on an ‘irredentist’ inter-
pretation of paragraph 6 in support of its actions.71 While the UN neither
endorsed this interpretation of paragraph 6 nor approved of the forceful
means by which these territories were annexed, most States soon acqui-
esced to the new status quo in both cases.72 By the mid-1960s, the claims of
Argentina to the Falkland/Malvinas Islands, and of Spain to Gibraltar were
gathering support in the General Assembly.73 Both Argentina and Spain
invoke paragraph 6, but both have been (perhaps deliberately) unclear
about whether they are asserting present-day territorial sovereignty, or
demanding the reconstitution of pre-colonial territorial formations. As
is well known, Argentina launched an unsuccessful military invasion of
the Falkland/Malvinas Islands in 1982. It is also known that Guatemala
planned to invade Belize in the early 1970s, although it refrained from
69
See Ch 3, pp. 74–80 (on Mayotte), and pp. 83–91 (on the Chagos Islands).
70
Ch 4, pp. 186–188.
71
See Ch 4, pp. 188–195 for an evaluation of the Indian arguments.
72
See Ch 4, pp. 186–195.
73
See Ch 3 pp. 133–52 (on the Falkland/Malvinas Islands), and Ch 3, pp. 120–33 and Ch 4
pp. 199–210 (on Gibraltar).
doing so after Britain reinforced its military presence there.74 In the mid-
1970s, the Moroccan annexation of Western Sahara and the Indonesian
annexation of East Timor were accompanied by strategic rhetoric that
asserted the ‘territorial integrity’ of the irredentist claimants.75
In a contemporary international legal order affording scant opportunity
for territorial revisionism, the ‘irredentist’ interpretation of paragraph 6 of
the Colonial Declaration had become the normative justification of choice
for claimant States. Its invocation by Morocco in relation to Western
Sahara was one of the key arguments dealt with by the ICJ in its Western
Sahara Advisory Opinion. The decision is somewhat instructive on the
content and status of self-determination in the decolonization process,
and the circumstances in which the right of self-determination might be
affected by the existence of pre-colonial legal ties between a third party
claimant State and the colonial territory. However, the Opinion also con-
tains ambiguous and unhelpful pronouncements, not least the unsubstan-
tiated observation that the General Assembly has occasionally dispensed
with a consultation of the inhabitants of a territory, ‘based either on the
consideration that a certain population did not constitute a “people” enti-
tled to self-determination or on the conviction that a consultation was
totally unnecessary, in view of special circumstances’.76 The following sec-
tion considers these aspects of the Opinion in detail.
2.2 Paragraph 6 and ‘Legal Ties of Territorial Sovereignty’:

The Western Sahara Advisory Opinion of the ICJ
2.2.1 Background
2.2.1.1Western Sahara in the Context of Spanish
Colonialism in Northern Africa
Western Sahara is a territory covering some 266,000 square kilometres,
with 1,062 kilometres of Atlantic coastline and land borders with Morocco,
Mauritania and Algeria. According to a Spanish census of 1974, the pop-
ulation stood at 95,019 (73,497 of whom were indigenous Saharawi, a
mainly nomadic population of Moorish and Bedouin descent);77 today
74
P. A. B. Thomson Belize: A Concise History (2004) 168.
75
The Indonesian arguments are summarized in Clark (n 68) 12, and in Ch 4, pp. 220–2. The
Moroccan arguments are dealt with in detail in Section 2.2.
76
Western Sahara (Advisory Opinion) [1975] ICJ Rep 33, at para 59.
77
M. Shaw ‘The Western Sahara Case’ 49 BYIL (1978) 119, 121. For information regard-
ing the inhabitants of Western Sahara at the time of the case, see ‘Report of the United
2.2 The Western Sahara Advisory Opinion of ICJ 39
the territory has over 500,000 inhabitants, the majority of whom are of
Moroccan origin and inhabit urban areas.78
Spain occupied part of the territory in 1884. A series of subsequent
Franco-Spanish Conventions established the borders of what became
the Spanish Sahara, covering the territories of Río de Oro and Sakiet
El-Hamra.79 Spain already had a presence in the area – Morocco had ceded
the territory of Ifni, a coastal enclave which lies in the Tarfaya region a short
distance north of Western Sahara, to Spain in 1860.80 The ‘plazas de sober-
anía’ along Morocco’s northern coastline (the coastal enclaves of Ceuta and
Melilla, the peninsula of Vélez de la Gomera, the islet of Alhucemas, and the
Chafarinas Islands) fell under Spanish rule in 1580, 1497, 1508, 1663, and
1848, respectively.81 Spain extended its presence in North Africa further
with the Treaty of Fez 1912, pursuant to which a segment of the north-
ern area of Morocco became a Spanish Protectorate, while the much larger
southern area became a French Protectorate.82 In 1916, Spain occupied the
Tarfaya region in the south of the country (also known as Cape Juby), a
strip of territory which became known as Spanish South Morocco and was
administered as part of Western Sahara, and which still serves as a ‘buffer
zone’ between Morocco and Western Sahara.83
Nations Visiting Mission to Spanish Sahara, 1975’ in The Report of the Special Committee
on the Situation With Regard to the Implementation of the Declaration on the Granting of
Independence to Colonial Countries and Peoples UN Doc A/10023/Add 5, Annex (1975)
28. For general analysis of Western Sahara from an international law perspective see gen-
erally see M. Shaw Title to Territory in Africa: International Legal Issues (Oxford: Oxford
University Press 1986) 123–30 and Cassese (n 39) 214–18.
78
The CIA World Factbook’s entry on Western Sahara puts the population at 522,928 as of
July 2012: www.cia.gov/library/publications/the-world-factbook/geos/wi.html.
79
Franco-Spanish Conventions of 1886, 1900, 1904, and 1912 delineated the borders of
the (then) Spanish Sahara, which encompassed the colonies of Río de Oro and Sakiet el-
Hamra. The smaller protectorate of Spanish South Morocco immediately to the north of
this area was not occupied by Spain until 1916: see T. Hodges ‘The Western Sahara File’ 6:1
Third World Quarterly (1984) 74, 80.
80
Treaty of Tetuan (signed 26 April 1860) 51 BFSP 928.
81
For discussion of these territories and how they came to be occupied by Spain see Ch 4 at
p. 223 et seq.
82
Treaty of Fez (30 March 1912) in MP-L Rivière Traités, codes et lois du Maroc vol 1 Accords
internationaux conclus par le Maroc avec les Puissances étrangères ou intervenus entre ces
Puissances au sujet du Maroc de 1767 à 1923 (Librairie de la Société du Recueil Sirey 1924)
120; also, the Franco-Spanish Convention (27 November 1912) ibid. at 123. The northern
city of Tangier was subsequently administered as an international zone following an agree-
ment between Britain, France, and Spain (Convention Regarding the Organization of the
Statute of the Tangier Zone, 28 LNTS 541, signed Paris 18 December 1923) a status which
also ended in 1956.
83
T. Hodges ‘The Western Sahara File’ 6:1 Third World Quarterly (1984) 74, 80–1.
Morocco gained its independence from France in March 1956 and from
Spain a month later. The joint declaration of Morocco and Spain dated 7
April 1956, which declared an end to the Spanish Protectorate established
by the Treaty of Fez 1912, recognized Morocco’s independence and its ‘ter-
ritorial unity’.84 Spain nevertheless retained control over Western Sahara,
the Tarfaya region, Ifni, Ceuta, Melilla, and the other plazas de soberanía.
Spain’s continuing presence on what Morocco regarded as integral parts
of its own territory was declared by the newly independent Morocco to
be unacceptable. When referring to the issue in his independence speech,
the Moroccan King declared: ‘nous n’avons jamais dissocié indépendence
et unité’.85
The year 1957 saw the outbreak of the Ifni War, in which forces from the
Moroccan Liberation Army fought to take positions in the Tarfaya region.
The war lasted eight months and hostilities culminated in an abortive siege
of Ifni’s capital, Sidi Ifni, after Moroccan forces had gained ground else-
where in the region.86 Morocco and Spain agreed terms for the resolution
of the conflict in 1958. Under the Treaty of Angra de Cintra, Spain ceded
control of the Tarfaya region (Spanish South Morocco) to Morocco, exclud-
ing Ifni, which remained as a Spanish coastal enclave within that region.87
In 1969, in the face of continuing resistance to Spanish rule among Ifni’s
50,000 inhabitants,88 mounting pressure from the General Assembly to
withdraw from Ifni and Western Sahara,89 and the fact that Spain’s control
of the territory had become economically and militarily unviable,90 Spain
84
Declaration by the Governments of Spain and Morocco on the Independence of Morocco
(and Protocol) (7 April 1956) Royal Institute of International Affairs Documents on
International Affairs (Oxford: Oxford University Press 1956) 694.
85
Statement of Mohammed V, 3 April 1956 cited in J. D. Gonzalez Campos ‘Las pretensiones
de Marruecos sobre los territorios españoles en el Norte de Africa (1956–2002)’ (2004) Real
Instituto Elcano, Documento de Trabajo No 15/2004, 13.
86
See ‘Ifni: la Guerra que perdió Franco’ (‘Ifni: the war that Franco lost’) El País 18 November
2007: http://elpais.com/diario/2007/11/18/eps/1195370811_850215.html.
87
Treaty of Angra de Cintra (1 April 1958), in J. S. Olson et al. (eds.) Historical Dictionary
of European Imperialism (Westport: Greenwood, 1991) 586. The Tarfaya region, as a
Protectorate, was never technically under Spanish sovereignty, so its return to Morocco did
not amount to a cession of title (unlike its subsequent retrocession of Ifni).
88
S. K. N. Blay ‘Self-Determination versus Territorial Integrity in Decolonization’ 18 NYU
JILP (1985–6) 441, 467.
89
See e.g. GA Res 2428 (XXIII), 18 December 1968.
90
According to G. Pérez García, between 1958 and 1967, subsidies from mainland Spain
accounted for 76.4 per cent of public spending in Ifni. Prior to the Spanish Cortes voting to
ratify the Treaty of Fez 1969, the Minister for External Affairs confirmed that Ifni had no
strategic or economic value and would require disproportionate costs (both material and
concluded a treaty with Morocco providing for the ‘retrocession’ of Ifni in
1969, without a consultation of the territory’s inhabitants.91
2.2.1.2The General Assembly Resolutions

on Ifni and Western Sahara
The General Assembly began to agitate for the decolonization of Ifni and
Western Sahara in the mid-1960s. Resolution 2072 (XX), on 16 December
1965, ‘urgently’ requested that Spain ‘take immediately all necessary meas-
ures for the liberation of the territory of Ifni and Spanish Sahara from
colonial domination and, to this end, … enter into negotiations on the
problems relating to sovereignty presented by these two Territories’.92
The following year, on 20 December 1966, the General Assembly
adopted Resolution 2229 (XXI), reaffirming ‘the inalienable right of the
peoples of Ifni and Spanish Sahara to self-determination in accordance
with General Assembly Resolution 1514 (XV)’.93 The resolution stated
that this should take place ‘bearing in mind’ (in the case of Ifni) and ‘in
conformity with’ (in the case of Spanish Sahara) ‘the aspirations of the
indigenous population’.94 In both cases the General Assembly resolved
that the transfer of the territories should take place ‘in consultation with’
the contiguous States (Morocco in the case of Ifni; Morocco, Mauritania
‘and any other interested party’ in the case of Spanish Sahara).95 A notable
difference in the approach towards the two territories is the reference to
the need to organize a referendum in Spanish Sahara, ‘to be conducted on
an entirely free, democratic and impartial basis’ – a reference which was
absent in the case of Ifni.96
In Resolution 2354 (XXII), on 19 December 1967, the General Assembly
insisted on the holding of a referendum in the case of Spanish Sahara. In
human) to defend militarily. He also described the capital, Sidi Ifni, as nothing more than
‘a big warehouse of munitions, provisions and equipment’ (present author’s translation):
‘La falacia histórica sobre la colonia de Ifni’ 8 Historia y Comunicación Social (2003) 207,
219–20.
91
Tratado por el que el Estado Español retrocede al Reino de Marruecos el territorio de Ifni
(Fez, 4 January 1969) Repertorio Cronológico de Legislación (Pamplona: Aranzadi 1969)
1008. The Treaty includes a grant of fishing concessions to Spain off the coast of Ifni.
92
At para 2.
93
At para 1.
94
At paras 3 and 4.
95
Ibid. The third neighbouring State, Algeria, declared its support for the right of the Saharawi
people to self-determination (see n 128–30 below and accompanying text).
96
Para 4.
relation to Ifni, it merely noted that negotiations had begun between the
Spanish and Moroccan governments.
Resolution 2428 (XXIII), on 18 December 1968 once again reaffirmed
the ‘inalienable right’ of both ‘peoples’ to ‘self-determination in accord-
ance with General Assembly resolution 1514 (XV)’.97 However, the General
Assembly noted the intention of Spain to sign a treaty with Morocco on
the subject of the transfer of Ifni, and continued to insist on the holding
of a referendum in Spanish Sahara. A notable aspect of this resolution for
present purposes was the wording of the preamble:
Noting the difference in nature of the legal status of these two Territories,
as well as the processes of decolonization envisaged by General Assembly
resolution 2354 (XXII) for these Territories.
Ifni dropped off the General Assembly’s agenda after the retrocession of
the territory to Morocco, which occurred without a formal consultation of
Ifni’s inhabitants.98 No objection was raised within the General Assembly
concerning the manner of the territory’s decolonization. Subsequent reso-
lutions continued to insist that Spain expedite the organization of a referen-
dum in Western Sahara ‘with a view to enabling the indigenous population
of the Territory to exercise freely its right to self-determination’.99
The differential treatment of Ifni and Western Sahara by the General
Assembly is a matter of some significance in the context of the present study.
Ifni, like Western Sahara, was a Spanish Non-Self-Governing Territory. It
was, moreover, a ceded territory: if there were doubts concerning the valid-
ity of Spain’s title to some of its other territories in North Africa,100 such
doubts were not present in the case of Ifni. Nevertheless, it will be seen from
the analysis of the Western Sahara Opinion below that Spain, Morocco,
and Mauritania understand the retrocession of Ifni in terms of the restora-
tion of Morocco’s ‘territorial integrity’, in accordance with paragraph 6 of
the Colonial Declaration. Spain also pleaded (in addition, rather than in the
alternative, and unopposed by the other parties) that Ifni was disposed
97
Part I, para 1 and Part II, para 1.
98
Tratado por el que el Estado Español retrocede al Reino de Marruecos el territorio de Ifni
(Fez, 4 January 1969) Repertorio Cronológico de Legislación (Pamplona: Aranzadi 1969)
1008.
99
GA Res 2591 (XXIV), 16 December 1969, at para 4; and GA Res 2711 (XXV), 14 December
1970, at para 6.
100
For instance, Spain’s claim to the Chafarinas Islands rests on the proposition that they
were terrae nullius at the time of occupation, an argument which is rejected by Morocco
(see Ch 4, pp. 225–6).
of as an ‘enclave’.101 This argument appears, on its face, to resonate with
Crawford’s view that ‘[t]he Court in Western Sahara by inference approved
the Assembly’s treatment of Ifni as a colonial enclave’.102 However – and
this is of key importance when seeking to understand the main doctrinal
approaches to anomalous decolonization cases – the two arguments differ
at a fundamental level. As will be seen below, Spain considers that the spe-
cial treatment of ‘colonial enclaves’ flows from the application of the self-
determination rule, and in particular from the application of paragraph 6
of the Colonial Declaration; Crawford sees the special treatment of ‘colo-
nial enclaves’ as an exception to the self-determination rule (though not all
proponents of a ‘colonial enclaves’ doctrine share his view).103 The ‘colo-
nial enclaves’ doctrine and its possible application to Ifni are examined in
Chapter 4. The purpose of the present chapter is to analyse the meaning of
paragraph 6 of the Colonial Declaration, and this will include a considera-
tion of whether Spain, Morocco, and Mauritania were correct to argue in
the Western Sahara proceedings that the treatment of Ifni could be brought
within the scope of paragraph 6.
2.2.2 The Western Sahara Advisory Opinion

2.2.2.1The Request by the General Assembly for
an Advisory Opinion
Although Spain had agreed to submit reports to the General Assembly
on the Spanish Sahara under Article 73e of the Charter as far back as
1960,104 the series of resolutions referred to above indicate that Spain was
in no hurry to withdraw from the territory. Spain’s reluctance may be
explained, at least in part, by the discovery of rich deposits of phosphate
that it had begun to exploit in the 1960s.105 Morocco and Mauritania had
from 1966 assented to the holding of a referendum, while insisting that
Western Sahara constituted an integral part of their respective territories,
and that any decolonization process therefore had to respect their territo-
rial integrity, pursuant to paragraph 6 of the Colonial Declaration.106
101

See (n 125) below and accompanying text.
102

103

Ibid., 337–8, where Crawford takes issue with Rigo-Sureda’s treatment of the problem
of ‘colonial enclaves’ as an aspect of the self-determination rule, arguing that ‘it is better
regarded as an exception to the rule’.
104

See the preamble to GA Res 1542 (XV), 15 December 1960.
105

Cassese (n 39) 215.
106
Western Sahara Advisory Opinion (n 76) 35, para 65.

In 1974, shortly after Spain had finally begun to introduce measures for
the holding of a referendum and a new political statute for the territory,
Morocco and Mauritania withdrew their support for a referendum. The
ICJ refers to this move in its Advisory Opinion as a ‘significant change’.107
Following a proposal from Morocco, the General Assembly adopted
Resolution 3292 (XXIX) postponing a referendum, mandating the deploy-
ment of a fact-finding mission to Western Sahara and seeking an Advisory
Opinion from the ICJ on the following questions: (a) Was Western Sahara
a territory belonging to no one (terra nullius) at the time of colonization
by Spain?; and, if the answer to that question was in the negative (b) what
were the legal ties between this territory and the Kingdom of Morocco and
the Mauritanian entity?108
The ICJ held unanimously that Western Sahara was not terra nullius at
the time of colonization.109 It therefore proceeded to consider the question
of ‘legal ties’ between Western Sahara and the two claimant States, and
heard extensive submissions from interested States on this issue.
2.2.2.2 Diverse Interpretations of Paragraph

6 in the Submissions on ‘Legal Ties’
The written and oral submissions in Western Sahara reflect a broad diver-
sity of interpretations of paragraph 6 of the Colonial Declaration, fifteen
years after it was adopted. While one must bear in mind that such legal
submissions are shaped by the strategic objectives of the States making
representations before the ICJ, the sheer range of argument on the mean-
ing and effect of paragraph 6 nevertheless serves as a testament to the
conceptual confusion that was sown during the debate preceding the vote
on the Colonial Declaration, and specifically during the discussions con-
cerning the Guatemalan amendment.
Morocco wished to absorb Western Sahara, and counsel for Morocco
cited Resolution 2229 (XXI) in support of the proposition that self-
determination could be achieved by reintegrating a territory with its
‘motherland’.110 The ICJ summarized the essence of Morocco’s argument
on paragraph 6 in the body of its Opinion:
Morocco has expressed the view that the General Assembly has not finally
settled the principles and techniques to be followed, being free to choose
107
Ibid., para 66.
108
GA Res 3292(XXIX), 13 December 1974.
109
See Western Sahara Advisory Opinion (n 76) 79–83 for the Court’s reasoning on this point.
110
Western Sahara Vol IV [1975] ICJ Pleadings 160.
from a wide range of solutions in the light of two basic principles: that of
self-determination indicated in paragraph 2 of resolution 1514 (XV), and
the principle of the national unity and territorial integrity of countries,
enunciated in paragraph 6 of the same resolution. Morocco points out that
decolonization may come about through the reintegration of a province
with the mother country from which it was detached in the process of colo-
nization. Thus, in the view of Morocco, the questions are relevant because
the Court’s answer will place the General Assembly in a better position to
choose the process best suited for the decolonization of the territory.111
Counsel for Morocco also argued that Spain – in calling for self-deter-
mination in Western Sahara while accepting that the retrocession of Ifni
restored Morocco’s territorial integrity – was ‘dissociating arbitrarily’
between the territories of Ifni and Western Sahara.112 It was Morocco’s sub-
mission, in essence, that Western Sahara should be transferred by Spain to
Morocco in much the same way as Ifni was.
Mauritania, like Morocco, argued that the retrocession of Ifni had
taken place in accordance with paragraph 6 of Resolution 1514 (XV), and
that Mauritania’s territorial integrity would be re-established if it were to
absorb Western Sahara in the same way, on the basis that Western Sahara
was an integral part of Mauritanian territory.113 Counsel for Mauritania
stressed the importance of ‘geographical integrity’, and argued that in
cases where reintegration was mandated by paragraph 6 it was clear that
‘l’intégrité géographique d’un Etat est considérée comme plus impor-
tante que la volonté des habitants’.114 Mauritania’s contention was that it
was not only in cases like Katanga that ‘geographical integrity’ ought to
prevail over the wishes of the inhabitants.115 While acknowledging that
the General Assembly had affirmed the existence of a right of self-deter-
mination in both Ifni and Western Sahara, counsel for Mauritania relied
on this fact as a basis for arguing that no principled distinction should be
drawn between the two territories: if Ifni was reintegrated pursuant to par-
agraph 6, the ‘reintegration’ principle was equally applicable to Western
Sahara.116 If it was clear that such territories, containing ‘peoples’ with the
right of self-determination, could nevertheless be subject to ‘reintegration’
111

112
Western Sahara Pleadings Vol IV (n 110) 120.

113

Ibid., 323.
114

Ibid., 315.
115

Katanga is mentioned as a case where territorial integrity prevailed over self-determi-
nation in a passage by M. Virally L’organisation mondiale (Paris: Colin 1972) 430, which
counsel for Mauritania cites with approval (ibid.).
116

Ibid., 323.
regardless of the wishes of those peoples, it was also clear – in Mauritania’s
submissions – that the ‘reintegration’ principle applied to the territory of
Gibraltar, whose small population arguably lacked the characteristics of a
‘people’.117 Mauritania’s argument regarding Western Sahara therefore goes
to the status and content of the right of self-determination, while its argu-
ment regarding Gibraltar appears to go more fundamentally to the scope
of the right.
The arguments of Morocco and Mauritania found support in the Written
Statement of Guatemala, which arguably represents the high water mark
for the irredentist interpretation of paragraph 6. The submissions echo the
position Guatemala took in the 1960 debate concerning the meaning of
paragraph 6:
No procedure of self-determination can be initiated where several States
maintain excluding territorial claims, as otherwise international law would
be distorted and peaceful relations among States would be upset. That is
to say, the General Assembly of the United Nations had decided that the
solution of territorial differences takes precedence over any pretension to
self-determination, and this obviously, for the sake of the protection of the
territorial integrity and of the national unity of the States. A different ruling
would generate the most dangerous consequences for peace and stability
in the world.118
Guatemala argued that as a result of the ‘primacy’ afforded to the princi-

ple of territorial integrity over the principle of self-determination in the
Colonial Declaration and in the Friendly Relations Declaration, it was
necessary ‘that in the presence of questions of a territorial nature between
States, these must be resolved with priority before attempting to apply the
principle of self-determination’.119 The Statement ends by urging the ICJ to
‘reaffirm once more as a rule of international law, the primacy of the ter-
ritorial integrity of States over the principle of self-determination’.120
Spain sought to persuade the ICJ that the inhabitants of Western Sahara
had the right freely to determine their own future in a referendum, argu-
ing that the right to self-determination was jus cogens, that it applied to
117
Ibid., 315. He refers to some 1200 people voting in favour of retaining links with Britain,
44 against, in the Gibraltar referendum of 1967 – the number of votes in favour was in fact
in excess of 12,000).
118
Western Sahara Vol I [1975] ICJ Pleadings, 68.
119
Ibid. State practice in territorial disputes over Non-Self-Governing Territories (e.g. Belize,
East Timor, Goa, Falkland/Malvinas) shows that attempts at prior resolution of the territo-
rial question – if they occur at all – are often far from peaceful).
120
Ibid.
all Non-Self-Governing Territories and that it could not be overridden by
claims based on pre-colonial legal ties.121 Spain felt compelled to attempt
to draw a principled distinction between the cases of Ifni (which it had
retroceded to Morocco in 1969 without organising a referendum in the
territory) and Western Sahara. Its arguments on the application of para-
graph 6 focus on persuading the ICJ of the difference in status between the
territories under the law of decolonization, while avoiding any prejudice
to Spain’s broader strategic interests; notably, the pursuit of its claim to
Gibraltar and its opposition to Morocco’s claims to Ceuta, Melilla, and the
other Spanish territories in northern Africa.
Counsel for Spain was especially anxious not to undermine Spain’s
claim to Gibraltar (which Spain claims should be incorporated into Spain
regardless of the wishes of the territory’s inhabitants, ostensibly in accord-
ance with paragraph 6 of the Colonial Declaration), arguing that the right
of self-determination is to be enjoyed by all peoples of Non-Self-Governing
Territories, ‘pourvu qu’il s’agisse d’une population autochtone (non artifi-
cielle, comme dans le cas de Gibraltar) qui représente l’ensemble de la pop-
ulation (et non pas une minorité, comme dans le cas de la Rhodésie)’.122
Spain therefore argued for a distinction in the law based on whether or not
the population of a colonial territory is ‘autochtone’ (translated, curiously,
as ‘indigenous’ in the English versions of the General Assembly resolu-
tions on Ifni and the Spanish Sahara).
In contrasting the treatment by the General Assembly of the inhabit-
ants of Ifni by repeatedly placing emphasis on the right of the ‘popula-
tion autochtone’ of Western Sahara to self-determination and omitting
the adjective in its references to Ifni,123 Spain overlooked the fact that the
populations of both territories are separately described as ‘la population
autochtone’ in the French versions of General Assembly Resolutions 2229
(XXI), 2354 (XXII), and 2428 (XXIII), which deal jointly with Ifni and
the Spanish Sahara (interestingly, the English versions of the resolutions
refer to the ‘indigenous population’ of Ifni and the ‘indigenous people’ of
121

Ibid., 207, para 344.
122

Ibid., 213, para 359.
123

Ibid., 84, para 39: ‘Le droit de la population autochtone du Sahara a la libre détermina-
tion est donc pleinement reconnu tandis que pour Ifni le droit de la population [NB: no
mention of the adjective ‘autochtone’, despite its appearance in the relevant resolutions of the
General Assembly] se limite a ce que l’Espagne et le Maroc tiennent compte de leurs aspira-
tions pour le transfert de la souveraineté d’un Etat à l’autre.’ See also paras 360–1 of Spain’s
Written Declaration.
the Spanish Sahara).124 Such semantic differences as exist in the English
versions of the resolutions do not appear to reflect an intention on the part
of the General Assembly to justify the promotion of self-determination in
Western Sahara and its simultaneous denial in Ifni, especially when one
considers that all three resolutions cited above affirm the ‘inalienable’ right
of the ‘people’ (‘peuple’ in the French versions) of both territories to self-
determination in accordance with the Colonial Declaration.
Perhaps as a result of this difficulty, Spain argued for a further distinc-
tion in the law of decolonization. It asserted that the Special Committee
on Decolonization treated Ifni as ‘une enclave territoriale’, which in Spain’s
view involved the construal of references to Resolution 1514 (XV) in the
various resolutions dealing with Ifni as references to paragraph 6 of 1514
(XV), and an understanding that the manner of Ifni’s decolonization led
to the restoration of Morocco’s territorial integrity.125 Spain’s argument that
Ifni was decolonized as an ‘enclave territoriale’ pursuant to paragraph 6 of
the Colonial Declaration may be seen as an attempt to explain the differen-
tial treatment of Ifni and Western Sahara without having to resort explic-
itly to an explanation based on the qualities of the respective populations
(for example, an assessment that the population of Western Sahara is a
‘people’ while the population of Ifni is not). However, it is unclear whether
Spain’s concept of a ‘territorial enclave’ – which it does not develop in its
submissions – is merely geographic, or whether the population of the colo-
nial territory must also possess certain characteristics in order for the ter-
ritory to be disposed of as an ‘enclave’. Although Spain ascribes the quality
of ‘artificiality’ to the population of Gibraltar, it makes no comment in its
submissions regarding the quality of the mixed Berber and Arab popula-
tion of Ifni.126
124
GA Res 2229 (XXI), 20 December 1966, paras 3 (Ifni) and 4 (Spanish Sahara); GA Res
2354 (XXII), 19 December 1967, Part I, para 3 (Ifni) and Part II, para 3 (Spanish Sahara);
GA Res 2428 (XXIII), 18 December 1968, Part I, para 3 (Ifni) and Part II, para 3 (Spanish
Sahara).
125
Western Sahara Pleadings Vol I (n 118) 83, para 34. Also, at para 39, counsel for Spain
states: ‘Dans le cas d’Ifni, les négociations recommandées entre les deux parties supposent
l’acceptation de la position marocaine en ce qui concerne le territoire et l’application du
paragraphe 6 de la résolution 1514 (XV). Les négociations sont un moyen de résoudre la
situation coloniale du territoire en acceptant la revendication basée sur l’intégrité territo-
riale de I’Etat demandeur’.
126
In 1958 the population of Ifni stood at 51,121 inhabitants, 46,023 of whom were native to
the area, and 4,116 of whom were of European origin: G. Pérez García ‘La falacia histórica
sobre la colonia de Ifni’ 8 Historia y Comunicación Social (2003) 207, 209. As for the coastal
enclaves of Ceuta and Melilla, Spain contends that they are not affected by the law of
The attempts by Spain, Mauritania, and Morocco to rationalize the
treatment of Ifni in a manner that fitted with their respective arguments
on Western Sahara were attacked by counsel for Algeria, Mohammed
Bedjaoui.127 He argued that the other intervening parties had interpreted
paragraph 6 of the Colonial Declaration incorrectly.128 The drafting history
of paragraph 6, in Algeria’s submission, shows that the provision ‘n’a absol-
uement pas comme objet d’accorder aux revendications territoriales priorité
sur le principe de la libre determination’.129 It was submitted on behalf of
Algeria that paragraph 6 was designed to address cases like Katanga or
Biafra’s attempt to secede from Nigeria, and that the provision does not
envisage ‘le cas de territoires jadis ou naguère détachés illegalement d’un
Etat et qui font l’objet d’une revendication territoriale de celui-ci sur la
base du principe de l’integrité’ (‘the case of territories which have been
detached illegally from a State in days gone by and which are the object of
a territorial claim by that State on the basis of the principle of integrity’).130
In Algeria’s submission, although the reference to the territorial integ-
rity of a ‘pays’ (‘country’) in the Colonial Declaration could be taken to
refer to a Non-Self-Governing Territory, its neighbouring State or even
the administering power, the territorial integrity of a neighbouring State
is envisaged in the Colonial Declaration, ‘que pour l’avenir’.131 On this view,
paragraph 6 could have no application in the cases of Western Sahara
or Ifni.
Fawcett argues, in a similar vein, that the language of ‘attempts’ in
paragraph 6 ‘can hardly be apposite to describe an already existing and
indeed long-established situation’.132 However, the fact remains that the
ICJ in Western Sahara was prepared to conduct a detailed investigation of
the pre-colonial ties that existed between Morocco (and to a lesser extent
Mauritania) and Western Sahara. As Koskenniemi notes, the fact that the
ICJ did not dismiss the Moroccan arguments ‘as a priori invalid’ implies
decolonization at all, because they are integral parts of metropolitan Spain and their inhab-
itants are treated on an equal footing with the inhabitants of metropolitan Spain: see Ch 4
pp. 223–35.
127

Bedjaoui was a judge of the ICJ from 1982 to 2001, and President of the ICJ from 1994
to 1997. Other distinguished jurists acting as counsel in the proceedings included René-
Jean Dupuy (for Morocco), Julio Gonzalez Campos (for Spain), and Jean Salmon (for
Mauritania).
128
Western Sahara Vol V [1975] ICJ Pleadings, 321.

129

Ibid. (emphasis in the original).
130

Ibid. (emphasis in the original). Present author’s translation.
131

Ibid., 320 (emphasis in the original).
132
J. E. S. Fawcett ‘Gibraltar: The Legal Issues’ 43 International Affairs (1967) 236, 249.

that the ICJ considered that historical ties of a certain character between a
colony and its neighbouring claimant State might in certain circumstances
affect the treatment of the colony under international law.133 Crawford,
similarly, notes that ‘[t]here would have been no point in the Court’s
detailed treatment of the Moroccan claim . . . if no third State claim could
ever prevail over the right to self-determination’.134 Such statements appear
to call into question not just the scope of the right to self-determination,
but also its status and normative content.
The next section examines the ICJ’s pronouncements on the relevance
of pre-colonial legal ties to the present-day exercise of self-determination
in the decolonization process.
2.2.2.3 The ICJ’s View on ‘Legal Ties’

and the Scope of Paragraph 6
The ICJ stressed that the meaning of ‘legal ties’ should be sought in the
‘object and purpose’ of Resolution 3292 (XXIX), and should therefore be
understood to refer to legal ties ‘as may affect the policy to be followed in
the decolonization of Western Sahara’.135
The ICJ’s consideration of the ‘basic principles governing the decoloni-
zation policy of the General Assembly’136 focused heavily on the principle
of self-determination. The ICJ briefly charted the development of self-
determination as a ‘right of peoples’, referring to its appearance in Articles
1(2) and 55 of the UN Charter and its application in the case of Chapter XI
Non-Self-Governing Territories.137 In so doing it cited with approval the
following passage from its Namibia Opinion of 1971:
. . . the subsequent development of international law in regard to non-self-
governing territories, as enshrined in the Charter of the United Nations,
made the principle of self-determination applicable to all of them.138
The Colonial Declaration, in the ICJ’s view, ‘provided the basis for the
process of decolonization which has resulted since 1960 in the creation
133
M. Koskenniemi From Apology to Utopia: The Structure of International Legal Argument
(Cambridge: Cambridge University Press 2005 (1989) 298.
134
135
Western Sahara Advisory Opinion (n 76) para 85.
136
Ibid., para 60.
137
See generally ibid., 31–3, paras 54–9.
138
The Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory
Opinion of 21 June 1971, ICJ Rep [1971] 31, cited at 31, para 54 of the Western Sahara
Advisory Opinion (n 76).
of many States which are today Members of the United Nations’.139 After
citing paragraphs 2, 5, and 6 of the Colonial Declaration, the Court stated:
The above provisions, in particular paragraph 2, thus confirm and empha-
size that the application of the right of self-determination requires a free
and genuine expression of the will of the peoples concerned.140
By emphasizing the centrality of the popular will in the decolonization

of Non-Self-Governing Territories, and of the proceduralization of that
will in the form of a self-determination act, the ICJ implicitly rejected the
notion – encouraged most strongly in the submissions of Mauritania and
Guatemala, but also implicit in the Moroccan submissions – that the reso-
lution of irredentist claims based on territorial integrity must necessarily
be a prior consideration in the decolonization process.141
The ICJ nevertheless proceeded, with some care, to set out its find-
ings in relation to the existence of historical ties between Western Sahara
and Morocco, and Western Sahara and the ‘Mauritanian entity’ (or ‘Bilad
Shinguitti’ of which the Islamic Republic of Mauritania is the successor).
In the event, the ICJ found that at the time of Spanish colonization there
existed ‘legal ties of allegiance between the Sultan of Morocco and some
of the tribes living in the territory of Western Sahara’ and ‘the existence of
rights, including some rights relating to the land, which constituted legal
ties between the Mauritanian entity, as understood by the Court, and the
territory of Western Sahara’.142 The ties in question were, to some extent,
overlapping due to the intersecting nature of nomadic migration routes
in the area.143 However, in the crucial part of its conclusion, the ICJ made
it clear that the existence of such ties did not affect the application of the
Colonial Declaration (Resolution 1514 (XV):
. . . the Court’s conclusion is that the materials and information presented
to it do not establish any tie of territorial sovereignty between the territory
of Western Sahara and the Kingdom of Morocco or the Mauritanian entity.
Thus the Court has not found legal ties of such a nature as might affect
the application of resolution 1514 (XV) in the decolonization of Western
Sahara and, in particular, of the principle of self-determination through the
139

140

Ibid., 31, para 55.
141

K. Knop sees the ICJ’s approach establishing ‘“the free and genuine expression of the will
of the peoples of the Territory” as the dominant narrative of self-determination and “legal
ties” as a source of counter-narratives’: Diversity and Self-Determination in International
Law (Cambridge: Cambridge University Press 2004) 112.
142

143

Ibid., 67, para 159.
free and genuine expression of the will of the peoples [(‘populations’ in the
French version)] of the Territory.144
The claims of Morocco and Mauritania to historical legal ties with

Western Sahara, while not unfounded, could therefore not affect the
exercise of self-determination in Western Sahara. Only ties of territo-
rial sovereignty – which the ICJ associates with the display of ‘effective
and exclusive State activity’ – ‘might affect’ the decolonization process.145
Crawford deduces from the conclusion of the Advisory Opinion that ‘the
International Court denied that anything less than a valid claim to territo-
rial sovereignty could qualify the right to self-determination of the people
of a Chapter XI territory’.146
Crawford’s deduction is strictly correct, but it does not tell the whole
story. Specifically, it does not address the temporal context of the hypotheti-
cal ‘valid claim to territorial sovereignty’ that the ICJ had in mind. The ICJ
must have envisaged that a valid claim to former, pre-colonial ties (as well
as, presumably, actual, present-day ties) of territorial sovereignty ‘might
affect the application of resolution 1514 (XV)’. After all, as the ICJ said of the
Moroccan claim: ‘The issue between Morocco and Spain regarding Western
Sahara is not one as to the legal status of the territory today, but one as to
the rights of Morocco over it at the time of colonization’.147 Spain’s rights as
administering Power were said by the ICJ not to be affected by the settle-
ment of this issue.148 Morocco did not claim before the ICJ that it was the
actual territorial sovereign in Western Sahara. Rather, its argument was that
Western Sahara had formed part of Morocco at the time of Spanish coloni-
zation, that Spain had dismembered the Sherifan State through its act of col-
onization, and that the decolonization of Western Sahara should proceed by
means of the reunification of Morocco. The Moroccan claim thus resembles
the Indonesian claim to East Timor more than it resembles, say, the Chinese
claim to the Hong Kong New Territories (over which China asserted a con-
tinuing right of actual territorial sovereignty during the period of British
administration under the ninety-nine-year lease).149
Unfortunately, as noted by Judge Petrén in his Separate Opinion,
the Court ‘does not indicate what would have been the effect on the
144
Ibid., 68, para 162 (emphasis added).
145
146
147
Western Sahara Advisory Opinion (n 76) 19, para 42 (emphasis added).
148
Ibid.
149
See Ch 3 pp. 108–119.
decolonization of Western Sahara of a pronouncement by the Court estab-
lishing the existence of former ties of sovereignty between that territory
and Morocco or the Mauritanian entity’.150 The views of the individual
judges diverge considerably. Judge Nagendra Singh frames the conclu-
sions of the Court in a way that links pre-colonial ties of territorial sover-
eignty with the scope of paragraph 6 of the Colonial Declaration:
The main reason for [the Court’s] conclusion is simply that, at the time of
Spanish colonization, there was no evidence of the existence of one single
State comprising the territory of Western Sahara and Morocco, or Western
Sahara and Mauritania, which would have been dismembered by the
colonizer and thus justify reunion on decolonization at the present time.
Accordingly, the facts and circumstances of this case would not attract the
provisions of paragraph 6 of resolution 1514 (XV) which holds disrup-
tion of national unity or territorial integrity of a country as incompatible
with the Charter of the United Nations and thus points to reintegration of
territory.151
Judge Nagendra Singh therefore considers that a finding of former ties

of territorial sovereignty would engage paragraph 6 of the Colonial
Declaration and justify ‘reunion’ of the dismembered State upon decoloni-
zation. This accords with the ‘irredentist’ interpretation of paragraph 6 that
is advanced in the Moroccan submissions, and the associated view that the
pre-colonial State can somehow, in Shaw’s words, ‘spring back into exist-
ence with all its dismembered parts recovered’.152
If this view were correct, it would have substantial contingent effects
in other cases, not least some of the cases examined in this work, involv-
ing irredentist claims to Non-Self-Governing Territories. For instance, it
would provide a coherent explanation for the treatment of Ifni: Morocco
obviously had legal ties of territorial sovereignty with the territory when
it ceded it to Spain in 1860, so according to the ‘irredentist’ interpreta-
tion, the operation of paragraph 6 triggers a reversion to the territorial
status quo in 1860. It would also mean that even if Britain has acquired
good title to the Falkland/Malvinas Islands (which Argentina disputes),
and even if the Islanders are a ‘people’ with the right to self-determination
(which Argentina denies), it would be enough to show that Argentina was
dismembered by Britain’s nineteenth century occupation of the Islands to
150
Western Sahara Advisory Opinion (n 76) 114.

151

Ibid., 79–80.
152

Shaw (n 77) 145, thus summarizes the implications of Professor Dupuy’s submissions on
behalf of Morocco.
make Argentina entitled (today) to an automatic reversion of the Islands,
the wishes of the Islanders notwithstanding.153
Judge Dillard took an entirely different view in his separate opinion,
arguing that ‘the existence of ancient “legal ties” of the kind described in
the Opinion, while they may influence some of the projected procedures
for decolonization, can have only a tangential effect in the ultimate choices
available to the people’.154 His views on the operation of paragraph 6 of the
Colonial Declaration in cases involving third party claims indicate that he
had reflected on the ‘genesis’ as well as the ‘language’ of the provision:
The Court might have felt called upon to consider the matter more fully
had it decided that the Moroccan claim to immemorial possession had
been established. My personal view is that both the genesis and language of
paragraph 6 of resolution 1514 (XV), especially when read in light of prin-
ciples VII and IX of resolution 1541 (XV), make it unlikely that paragraph
6 could justifiably be applied to the decolonization of the Western Sahara as
a principle of territorial integrity overriding the right of the people to self-
determination which has been so firmly announced in all the resolutions
dealing with that particular area.155
Interestingly, Judge ad hoc Boni (who had been appointed by Morocco)

found that the pre-colonial ties that existed between Morocco and Western
Sahara did have a ‘character of territorial sovereignty’, but that this did not
remove the obligation on the General Assembly ‘to consult the inhabit-
ants of the region on the different options provided for in resolution 1514
(XV)’.156
The views of Judges Dillard and Boni on the status of self-determination
in the decolonization process are persuasive, especially when one consid-
ers that the ICJ adopted the basic assumption throughout its analysis that
153
See Ch 3 pp. 133–52 for discussion of the Falkland/Malvinas Islands.
154
Western Sahara Advisory Opinion (n 76) 122. He notes paragraphs 71 and 72 of the
Advisory Opinion, which support this view. Paragraph 72 suggests that the General
Assembly’s discretion when it comes to ensuring the right of self-determination could
entail, inter alia, calling for ‘consultations between the interested States’.
155
Ibid., 112, n 1. Principles VII and IX of Resolution 1541 (XV), 15 December 1960, pre-
scribe conditions for the achievement of free association and integration of a Non-Self-
Governing Territory respectively, which should respect ‘the free and voluntary choice’
(Principle VII) and the ‘freely expressed wishes’ (Principle IX) of the people of territory.
156
Ibid., 173–4. It is this factor which led him to file a separate opinion rather than a dissent.
Judge Forster also states in his separate opinion (at 103) that the materials before the Court
established that ties of territorial sovereignty existed between Western Sahara and both
neighbouring claimants at the time of Spanish colonization, but he does not express a view
on whether and how this might affect the exercise of self-determination in Western Sahara.
the indigenous population of Western Sahara has a right of self-determi-
nation, the application of which requires, in the ICJ’s view, ‘a free and gen-
uine expression of the will of the peoples concerned’.157 In light of the ICJ’s
statement that the right of self-determination left the General Assembly
‘a measure of discretion with respect to the forms and procedures by
which that right is realized’,158 and its reference to the ‘various possibili-
ties’ which exist for the future action of the General Assembly, ‘for instance
with regard to consultations between the interested States, and the proce-
dures and guarantees required for ensuring a free and genuine expression
of the will of the people’,159 it may be fair to deduce from the ICJ’s conclu-
sion that the existence of pre-colonial ties of territorial sovereignty might
be taken into account when setting the procedural modalities for decolo-
nization, but that the existence of such ties would not trump the exercise of
a right to self-determination entirely.160
This understanding fits with the well-established temporal frame-
work for the operation of uti possidetis ‘according to which’ – to borrow
Crawford’s description – ‘the extent of a given territory is determined
by its boundaries at the time of acquisition or (as the case may be)
independence’.161 On this view there can be ‘no principle of reversion to
some earlier and superseded territorial formation’.162 Even if Morocco had
persuaded the ICJ that there existed ties of territorial sovereignty between
Morocco and Western Sahara at the time of the Spanish acquisition, it is
157

Ibid., 12, para 32.
158

Ibid., 36, para 71.
159

Ibid., 37, para 72, cited by Judge Dillard at 122.
160

This seems to have been the conclusion of Judge Dillard (see ibid.). See also Shaw (n 77)
144 who argues that ‘the assumption is that the Assembly would take into account the
existence of ties of sovereignty (had they been established) in, for example, the framing
of questions for and possibly even the supervision of a referendum in the territory’. The
case of Gibraltar may serve as a practical example; here, the United Kingdom has accepted
that Spain has a ‘legitimate interest’ in the territory, but maintains that this interest does
not trump the right of self-determination of the Gibraltarians: GAOR 1753rd meeting (15
December 1967) 547, para 45.
161
Crawford (n 41) 644. In support of this view he cites, inter alia, Conference on Yugoslavia,

Arbitration Commission, Opinion 2, para 1, 11 January 1992, 92 ILR 167; Laguna del
Desierto (Chile–Argentina), Judgment of 21 October 1994, Galindo Pohl (dis op), para 14,
113 ILR 1, 84; Eritrea-Yemen Arbitration, Phase I Award, 9 October 1998, paras 96–100;
Land and Maritime Boundary between Cameroon and Nigeria, ICJ Rep 2002, Judge ad hoc
Mbaye (sep op), paras 14–19. See also OAU Assembly Resolution 16(1), First Ordinary
Session, Cairo (17–21 July 1964) adopted by all members with the exception of Somalia
and Morocco, which included the pledge, ‘to respect the frontiers existing on their achieve-
ment of national independence’, such frontiers constituting a ‘tangible reality’.
162

extremely unlikely that the ICJ, as a whole, would have concluded that this
should lead to the ‘reunification’ of the dismembered Sherifan State, let
alone the setting aside of self-determination in Western Sahara.
2.2.2.4 ‘Non-Peoples’, and ‘Special Circumstances’: A

Lifeline for the ‘Irredentist’ Interpretation of Paragraph 6?
The Western Sahara Advisory Opinion articulates, in somewhat vague
and evasive language, a vision of the decolonization process that is essen-
tially ‘progressive’. It conceives of decolonization principally as a means
of giving effect, in the present day, to the will of a ‘people’, rather than as
a means of righting colonial wrongs visited by sovereign States on each
other in centuries gone by. However, the Opinion is positively unhelpful
when it comes to informing an understanding of the fundamental scope
of the right to self-determination (that is, the process of identifying the
types of entities – the ‘peoples’ – that are entitled to self-determination
in the first place). Although the ICJ approved of its earlier opinion in the
Namibia proceedings that the principle of self-determination applied to
‘all’ Chapter XI Non-Self-Governing Territories, it cast doubt on the gen-
erality of this proposition in what is arguably the most ambiguous passage
in the Western Sahara Opinion:
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 require-
ment 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.163
This passage arguably provides a lifeline to States with historical, geograph-

ical, and/or ethnicity-based claims to Non-Self-Governing Territories,
regardless of the existence of ties of territorial sovereignty (actual or
historical) between the claimant State and the Non-Self-Governing

Territory in question. The fact that the passage is not supported by factual
examples makes it particularly prone to a wide range of interpretations and
to speculation regarding the specific anomalous cases the ICJ had in mind.
The separate opinions of the individual Judges are of limited assistance.
Judge Nagendra Singh’s view of the implications of this passage of the
Opinion is that ‘[i]t follows ... that the principle of self- determination could

163
be dispensed with only if the free expression of the will of the people was
found to be axiomatic in the sense that the result was known to be a fore-
gone conclusion or that consultations had already taken place in some form
or that special features of the case rendered it unnecessary’.164 Vice President
Ammoun states in his separate opinion that ‘instances where consultation
in application of the principle of self-determination was dispensed with by
the General Assembly ... are very numerous’, singling out for mention the
case of ‘the legitimate struggle for liberation from foreign domination’.165
Shaw criticizes the ICJ’s statement for its ‘inherent ambiguity’.166 He
argues that ‘the conclusion of the Court in this respect could well open the
door to other claims of pre-colonial sovereignty rendering the application
of self-determination redundant’.167 Shaw interprets this part of the ICJ’s
conclusion as advancing a basis for the ‘overriding’ of self-determination
(‘one of the guiding principles of the decolonization of non-self-governing
territories’) ‘by ties of sovereignty existing in the past’:
. . . two avenues are open in the event of the recognition of past ties of sov-
ereignty, it appears. Either the people involved are not a ‘people’ for the
General Assembly, or such ties constitute special circumstances.168
Shaw thus appears to treat the Court’s statement as relating to the bal-
ancing of self-determination with other guiding principles – notably ter-
ritorial integrity – in certain decolonization cases where former ties of
territorial sovereignty with a third State are at issue.
An alternative interpretation is proposed here. It would seem that the
ICJ’s statement, which contains no mention of former ties of territorial
sovereignty, relates to the General Assembly dispensing with a consulta-
tion of the inhabitants in two distinct categories of situation:
(i) cases where consultations are dispensed with because, in the absence
of a ‘people’, the right of self-determination of peoples simply does
not apply;
(ii) cases where consultations are deemed ‘totally unnecessary, in
view of special circumstances’, notwithstanding the fact that self-
determination may apply.169
164

Ibid., 73.
165

Ibid., 99.
166

Shaw (n 77) 148; but compare Cassese (n 39) 89.
167

Shaw (ibid.).
168

Ibid.
169

As with Shaw’s reading of the phrase, the reference to ‘special circumstances’ is taken to
apply to the second category of case, despite the comma preceding it. The sentence would
In considering the first category, one is concerned with the scope of the
right of self-determination. In considering the second category, one is
concerned with the content and status of self-determination in the decolo-
nization process. It is important to recall that in the ICJ’s view, the fact
that the General Assembly dispensed with a consultation of the inhabit-
ants does not affect ‘[t]he validity of the principle of self-determination,
defined as the need to pay regard to the freely expressed will of peoples’.
2.2.2.4.1 ‘Non-Peoples’, and the Scope of Self-Determination In the

first type of case referred to by the ICJ, a consultation is dispensed with
by the General Assembly because the population of a given territory
does not constitute a ‘people’. The ICJ was categorical in affirming that
self-determination is a ‘right of peoples’. Ex hypothesi, in the absence of
a ‘people’, there can be no ‘need to pay regard to the freely expressed will’
of the people. Perhaps the ICJ was mindful of the submissions of Spain,
which had argued that while pre-colonial ties cannot override the exercise
of the right to self-determination, there are circumstances in which self-
determination does not apply because the population is ‘artificial’ or a
minority population.170
Rather than say (pace Shaw) that self-determination is ‘overridden’ in
such cases by the existence of past ties of sovereignty, it may be preferable
to say that a territory without a ‘people’ is not – as Crawford would put
it – a prima facie ‘self-determination unit’.171 The very classification of a
‘people’ as the holder of a right to self-determination rests, as Crawford
argues, on the identification of the ‘generally accepted political units’ to
which self-determination applies.172
In practice, the ‘generally accepted political units’ to which the right to
self-determination applies are – in addition to existing States – territories
falling under Chapters XI and XII of the UN Charter. It follows that if the
population of a territory going through a process of decolonization does
not constitute a ‘people’, that territory is either not a Chapter XI or XII
territory or is for some reason being treated as an exceptional case. Either
way, self-determination – as a narrowly defined right of peoples inhabit-
ing certain ‘generally accepted political units’ – would not apply. It is not
read strangely if that were not the case. It can be accepted in any event that both types of
case described by the Court involve special circumstances.
170
Western Sahara Pleadings Vol I (n 118) 213, para 359 of Spain’s Written Declaration.
171
Crawford (n 41) 115–21 and 124–7.
172
Ibid., 124–5. The phrase ‘generally accepted political units’ is taken from Higgins (n 5) 104.
so much the case that the principle of self-determination is ‘overridden’ by
the principle of territorial integrity, in the sort of balancing exercise advo-
cated by Morocco as a method for determining ‘the process best suited for
the decolonization of the territory’.173 Rather, a territory whose popula-
tion does not constitute a ‘people’ falls outside the operational scope of the
right to self-determination under the Chapter XI system.
Perhaps the ICJ had cases such as Katanga or West Irian in mind. The
populations of those territories, unlike those of Congo and Indonesia as a
whole, could not be considered ‘peoples’, according to the standard territo-
rial definition of a ‘people’. However, it would be strange if that were the
only type of case the ICJ was alluding to. The crises in Katanga and West
Irian were largely overseen by the Security Council and did not involve
any active ‘decision’ by the General Assembly to ‘dispense’ with a consulta-
tion of the inhabitants. It is possible that the ICJ was making an oblique
reference to certain Non-Self-Governing Territories which have been said
(usually by neighbouring irredentist claimant States) to contain popula-
tions that do not constitute ‘peoples’ with a right to self-determination. An
obvious example is the case of the Non-Self-Governing Territory of São
João Baptista de Ajudá (the tiny Portuguese enclave in Dahomey whose
only inhabitants were two colonial administrators).174 A more controver-
sial example is the case of the British Non-Self-Governing Territory of
Gibraltar, whose population – which is mainly of Genoese and Maltese
origin – has been described as ‘artificial’ by Spain, and where the holding
of a referendum in 1967 was criticized by the General Assembly.175
Whether or not the ICJ had such examples in mind, its ambiguous
statement could arguably be relied upon in support of a restrictive view
of the scope of self-determination. On such a view, self-determination
is not a right of territorially defined peoples that extends to all Non-
Self-Governing Territories. Instead, it is a right that extends only to
Non-Self-Governing Territories whose populations possess certain eth-
nographic characteristics. This view is popular with irredentist States.
For example, Spain argued in its submissions before the Court that
‘autochtonité’ (‘indigeneity’) is an essential criterion of peoplehood and
that colonial populations which are ‘artificial’ do not have the right to
self-determination, alluding in this regard to its claim over Gibraltar.176
173

174

See Ch 4 pp. 186–88.
175

GA Res 2353 (XXII), 19 December 1967, para 2.
176
Western Sahara Pleadings Vol I (n 118) 213, para 359 of Spain’s Written Declaration.

Morocco argues that the population of Western Sahara ‘considered them-
selves and were considered to be Moroccans’, implying that the terri-
tory does not contain a distinct ‘people’.177 Likewise when India annexed
the Portuguese Non-Self-Governing Territory of Goa it argued before the
Security Council that ‘there can be no question of aggression against your
own people’, implying that the population of the territory did not consti-
tute a distinct ‘people’.178 One of Indonesia’s justifications for its invasion
of East Timor was a reference to the ‘ties of blood and culture’ between
the population of Indonesia and the population of East Timor.179 One of
Argentina’s grounds for claiming the return of the Falkland/Malvinas
Islands is that the population of the territory is not a ‘people’ but rather a
‘settler’ population, whose status is analogous with that of the Jewish set-
tlers in the occupied territories of Palestine.180
Acceptance of one or more of the above claims in international practice
might be explicable by reference to an ad hoc discretion exercised by States
in certain cases.181 However, it could only be rationalized within the law of
decolonization in one of two ways: (a) by arguing that the case belongs to
an exceptional category of political units that falls outside the operational
scope of self-determination; or (b) by arguing for a definition of a ‘people’
which incorporates an ethnographic criterion as well as a territorial crite-
rion. While the conceptual basis of some of the above claims is not always
clear, Spain’s submissions in the Western Sahara case come closest to an
explicit articulation of approach (b), which holds the standard territorial
definition of a ‘people’ to be insufficient. This view is conceptually unsus-
tainable for reasons which are well expressed by Higgins:
Self-determination refers to the right of the majority within a gener-
ally accepted political unit to the exercise of power. In other words, it is
necessary to start with stable boundaries and to permit political change
within them. That the right of self-determination operates within generally
accepted political units is an essential premise, for several reasons – first,
without this qualification, all is in flux, and there is no constant factor at
all; second, to withdraw this proviso would encourage impermissible use
177
Press release of the Permanent Mission of Morocco to the United Nations on 16 October
1975, quoted in UN Doc S/PV.1849 (1975) 11.
178
SCOR 16th Year 987th Meeting (18 December 1961) para 46.
179
Clark (n 68) 12.
180
‘Falklands will be under our control in 20 years’, The Guardian, 5 February 2013 (report-
ing comments by the Argentine Foreign Minister): www.guardian.co.uk/uk/2013/feb/05/
falklands-under-our-control-argentina.
181
See D. W. Greig ‘Reflections on the Role of Consent’ 12 Aust YBIL (1988–9) 125, 157.
of force across state boundaries, an outcome which the United Nations can
hardly encourage; and third, by and large the emergent states seem content
so far to accept the colonial boundaries imposed on them.182
Higgins’ comments encapsulate the way in which the territorial definition

of a ‘people’, and thus the operational scope of the right of self-determina-
tion, is underpinned by a concern for international (and indeed interstate)
order, allowing for the right to be exercised within controlled and readily
identifiable parameters. If the right of self-determination were conditional
on, say, the ‘indigeneity’ of the right-holder, the legitimacy of its exercise
in many territories (including most existing States) with diverse popula-
tions could be called into question, and the conceptual foundations of the
right would disintegrate.183 Such concerns appeared to motivate the draft-
ers of Article 73 of the Charter, the travaux préparatoires for which show
no intention to establish any difference between ‘peoples’ and ‘inhabitants’
on the basis of indigenousness or any other ground.184 The only gener-
ally accepted ethnographic (or at least, cultural) criterion for determining
which territories are ‘self-determination units’ is contained in Principle IV
of General Assembly Resolution 1541 (XV), which states:
Prima facie there is an obligation to transmit information [under Article
73e of the UN Charter] in respect of a territory which is geographically sep-
arate and is distinct ethnically and/or culturally from the country admin-
istering it.185
Regrettably, the Western Sahara Opinion does not shed any light on the
type of circumstances that might induce a determination by the General
Assembly that the population of a Chapter XI Non-Self-Governing
Territory – in respect of which an obligation on the administering power
to report under Article 73e of the Charter has been established – does not
constitute a ‘people’. However, it is submitted that cases where such a deter-
mination may have been made cannot be rationalized by tweaking the
standard territorial definition of a ‘people’; they can only be r ationalized – if
at all – by a doctrine of exception. The most influential doctrine of this
182

Higgins (n 5) 104 (emphasis added).
183

J. Summers notes that ‘[t]he peoples of many, perhaps most, of the world’s states might
have dubious sociological credentials’, Peoples and International Law (Leiden: Brill
2007) xl.
184

See UNCIO (1945) Vol III, 548–9, 609–14; UNCIO (1945) Vol X, 421–716.
185

GA Res 1541 (XV), 15 December 1960, Principle IV. Principle V provides that once a
prima facie case is established, ‘other elements may then be brought into consideration’; it
is stated that these may include, ‘inter alia, elements of an administrative, political, juridi-
cal, economic or historical nature’.
kind is the putative ‘colonial enclaves’ doctrine, which is examined in
Chapter 4.
2.2.2.4.2 ‘Special Circumstances’, and the Content and Status of Self-

Determination The second type of anomalous case identified by the
ICJ is that of a territory in relation to which the General Assembly had
a conviction ‘that a consultation was totally unnecessary, due to special
circumstances’. The Court refers to this type of case as an alternative
(‘or’) to the type of case where a consultation is dispensed with on the
grounds that the population did not constitute a ‘people’ entitled to
It can be assumed therefore that as far as the Court is concerned the
second type of case may involve a population that constitutes a ‘people’
entitled to self-determination, and may therefore fall within the principle’s
operational scope.
The Court’s view is that self-determination is defined as ‘the need to pay
regard to the freely expressed will of peoples’.187 Further, its view is that
the validity of the principle is not affected by cases where a consultation is
dispensed with because of a conviction held by the General Assembly ‘that
a consultation was totally unnecessary, in view of special circumstances’.188
A question therefore arises: is it possible in practice for the General
Assembly to pay regard to the freely expressed will of the peoples and yet
dispense with a consultation?
An affirmative answer may be possible if, as Judge Nagendra Singh
suggests in his separate opinion, the freely expressed will of the people is
known by the General Assembly to be a foregone conclusion.189 This seems
like a reasonable explanation – the Court, after all, refers to situations
where a consultation is ‘totally unnecessary’, rather than ‘inappropriate’ or
‘unjustified’. It fits with the broader view of the Court regarding the proce-
dural content of the right to self-determination under the Chapter XI sys-
tem, in accordance with which the General Assembly retains ‘a measure
of discretion with respect to the forms and procedures by which that right
is realized’,190 which leaves ‘various possibilities’ open: ‘for instance with
regard to consultations between the interested States, and the procedures
186
187
Ibid.
188
Ibid.
189
190
Ibid., 36, para 71.
and guarantees required for ensuring a free and genuine expression of the
will of the people’.191
While a referendum, which the General Assembly called for in Western
Sahara, is the usual procedure for ascertaining the will of the people, the will
of the people could conceivably be ascertained by the General Assembly
in other ways when special circumstances are present. For instance, the
General Assembly dispensed with a referendum in the process that led to
the decolonization of the Cook Islands in 1964.192
It should nevertheless be noted that Resolution 1541 (XV) of the
General Assembly stresses the importance of ‘informed and democratic
processes’ for ascertaining the popular will.193 Cassese argues that when
the sovereignty of a Non-Self-Governing Territory is transferred by one
State to another (as was the case with Ifni in 1969):
. . . the States involved are duty-bound to ascertain the wishes of the pop-
ulation concerned, by means of a referendum or plebiscite, or by any
other appropriate means that ensure a free and genuine expression of
will. It follows, of course, that any inter-state agreement that is contrary
to the will of the population concerned would fall foul of the principle of
It is regrettable that the ICJ did not back up its passing reference to ‘spe-
cial circumstances’ with concrete examples. In Chapter 4 it will be argued
that the case of Ifni could be explained as a case where the General Assembly
had affirmed the right of self-determination of the ‘people’ of the territory,
but where a consultation was dispensed with because it was assumed that
the people overwhelmingly desired reintegration with Morocco. As such,
it will be argued that it is not necessary to attempt to bring Ifni within a
putative doctrine of exception like the ‘colonial enclaves’ doctrine.
2.2.2.4.3 The Dangers of Judicial Ambiguity Directly after the Advisory

Opinion was handed down, a Moroccan representative announced to the
press that:
. . . the opinion of the Court can only mean one thing: the so-called Western
Sahara was part of Moroccan territory over which the sovereignty was
191

Ibid., para 72.
192

This was in spite of objections; Mali and Yugoslavia argued that a referendum would have
been preferable to a mere election: UN Ybk (1965) 572.
193

GA Res 1541 (XV), 15 December 1960, Annex, Principles VII(a) (on free association) and
IX(b) (on integration).
194

Cassese (n 39) 190.
exercised by the Kings of Morocco and that the population of this territory
considered themselves and were considered to be Moroccans [(in other
words – not a distinct ‘people’?)] . . . To-day Moroccan demands have been
recognized by the legal advisory organ of the United Nations.195
Immediately thereafter, Morocco effectively annexed Western Sahara by

orchestrating a ‘Green March’ of 350,000 Moroccans, accompanied
by 20,000 troops, into the territory. This move was ‘deplored’ by the UN
Security Council, which demanded the withdrawal of participants in the
march from the territory of the Western Sahara.196 The Moroccan occupa-
tion also met with armed resistance from the Polisario Front, the resistance
movement which proclaimed itself the first government of the Saharawi
Arab Democratic Republic (SADR) in 1976.197 The President-elect of the
General Assembly reacted by condemning what he saw as the prevailing
trend ‘to replace the old imperialism by another form of foreign control
founded on territorial claims’.198
Today, the SADR remains in control over about a third of the Western
Sahara. It has been recognized by 84 UN Member States, although 37
of these have purported to ‘suspend’, ‘freeze’ or ‘withdraw’ recognition.
When the SADR joined the African Union in 1984, Morocco withdrew
from the organization in protest, but it re-joined on 31 January 2017.
Tellingly, the SADR’s representative at the AU congratulated Morocco on
re-joining, lauding ‘a new opportunity that we should all seize in starting
a . . . genuine dialogue between us to reach a solution to the long-standing
conflict that has separated us’.199 Such developments suggest that the par-
ties may be inching towards an autonomy settlement subject to regional or
international oversight.200
195
Press release of the Permanent Mission of Morocco to the United Nations on 16 October
1975, quoted in UN Doc. S/PV.1849, at 11 (1975). Franck describes this statement as
‘worthy of the perverse Red Queen in Lewis Carroll’s Through the Looking Glass’, in ‘The
Stealing of the Sahara’ 70:4 AJIL (1976) 694, 711.
196
SC Res 380 (1975), 6 November 1975.
197
Proclamation of the First Government of the Saharawi Arab Democratic Republic, Bir
Lahlou (27 February 1976): www.arso.org/03-1.htm.
198
Speech of 27 November 1975, UN Doc AJC4/SR.2175, Fourth Committee, 15.
199
‘Morocco rejoins the African Union after 33 years’, Al Jazeera (31 January 2017): www.alja
zeera.com/news/2017/01/morocco-rejoins-african-union-33-years-170131084926023.
html.
200
For more detail on the post-1975 situation in Western Sahara see e.g. J. Castellino
International Law and Self-Determination (The Hague: Martinus Nijhoff 2000) 177–211,
and for recent developments see Report of the UN Secretary General on the situation
concerning Western Sahara, 5 April 2012, UN Doc S/2012/197.
For the purposes of the present work, it is important to note that there
is still strong international support for the view that, as a matter of law,
the Western Sahara is not an integral part of Morocco and the Saharawi
are a people with the right to self-determination. This was most recently
affirmed by the CJEU, which gave the following reason for holding that an
Association Agreement between the EU and Morocco could not apply to
the territory of the Western Sahara:
In view of the separate and distinct status accorded to the territory of
Western Sahara by virtue of the principle of self-determination, in relation
to that of any State, including the Kingdom of Morocco, the words ‘terri-
tory of the Kingdom of Morocco’ set out in Article 94 of the Association
Agreement cannot . . . be interpreted in such a way that Western Sahara is
included within the territorial scope of that agreement.201
It is questionable whether events would have unfolded very differently

after 1975 had the ICJ’s Advisory Opinion been clearer in its rejection of
Morocco’s territorial claim. However, Morocco’s disingenuous misinter-
pretation of the Advisory Opinion and its subsequent actions would have
seemed even more indefensible had key passages of the Opinion been
expressed less ambiguously. Clearer language, even at the expense of judi-
cial consensus, might also have made it more difficult for Indonesia to jus-
tify its annexation of East Timor only two months later, on grounds – inter
alia – of ‘territorial integrity’.202
More than the self-serving statements of States like Morocco and
Indonesia, Judge Petrén’s separate opinion stands as testimony to the ICJ’s
failure to lay down an authoritative statement of the international law
governing third party ‘territorial integrity’ claims to Non-Self-Governing
Territories. His opinion goes to the heart of the issues dealt with in this
work, and is worth quoting from at length:
The decolonization of a territory may raise the question of the balance which
has to be struck between the right of its population to self-determination
and the territorial integrity of one or even of several States. The question
may be raised, for example, whether the fact that the territory belonged, at
the time of its colonization, to a State which still exists today justifies that
State in claiming it on the basis of its territorial integrity. That argument has
been put forward, and has been contested. The question of its validity in
general and the question of its applicability to Western Sahara are undeni-
ably of a legal character. It seems however that questions of this kind are not

201
Case C-104/16 P, para 92.

202
Clark (n 68) 12.
yet considered ripe for submission to the Court. The reason is doubtless
the fact that the wide variety of geographical and other data which must
be taken into account in questions of decolonization have not yet allowed
of the establishment of a sufficiently developed body of rules and practice
to cover all the situations which may give rise to problems. In other words,
although its guiding principles have emerged, the law of decolonization
does not yet constitute a complete body of doctrine and practice.203
In the concluding remarks that follow, it will be argued that the relation-
ship between territorial integrity and self-determination in the decoloni-
zation process may not be as unclear and gap-ridden as Judge Petrén and
others (e.g. Morocco in its submissions before the ICJ) have suggested,
even where decolonization takes place under the shadow of an irredentist
claim to the decolonizing territory.
2.3 Conclusion
The tension between territorial integrity and self-determination, which
arises out of the concern for balancing the perceived demands for inter-
national order on the one hand and international justice on the other, is
reflected in the terms of the Colonial Declaration. If paragraph 2 of the
Colonial Declaration expresses the emancipatory aspect of colonial self-
determination, its ‘order-based’ counterpoint is expressed in paragraph 6,
which enshrines the principle of territorial integrity. It has been observed
that from the moment the draft Colonial Declaration was tabled at the
General Assembly, certain States with irredentist claims to Non-Self-
Governing Territories have sought directly (in the case of Guatemala), or
more equivocally (in the case of those States who argued that Guatemala’s
concerns were already reflected in the draft text) to give an expansive, ‘irre-
dentist’, interpretation of paragraph 6. Since the adoption of the Colonial
Declaration, some States – like Morocco and Mauritania – have sought
to rely on paragraph 6 as a basis for setting aside self-determination in
favour of a ‘reintegration’ claim based on the existence of pre-colonial ties
(or at least as a basis for shifting the focus from the self-determination of
the putative ‘people’ of a small territory onto the self-determination of the
people of the larger, putatively all-encompassing territory).
This chapter has examined the drafting history of paragraph 6 and its
interpretation by the ICJ in the Western Sahara Advisory Proceedings. On
the basis of the preceding discussion, it is possible to make the following

203
2.3 Conclusion 67
remarks concerning paragraph 6, and by extension, the scope and content
of the right of self-determination in a colonial context.
The scope of the right to self-determination in a colonial context clearly
does not extend to sub-units of Non-Self-Governing Territories or sub-
units of States. It is widely accepted that paragraph 6 prohibits any attempt
to disrupt the present-day territorial integrity of a State or a Non-Self-
Governing Territory. The drafting history of paragraph 6 shows that the
crises in Katanga and West Irian were prominent in the mind of the draft-
ers and that paragraph 6 was drafted with a view to countering attempts by
administering powers to ‘divide and rule’ Non-Self-Governing Territories
during the decolonization process.
The language of ‘attempts’ in paragraph 6 appears to be concerned with
future action. However, the possible application of paragraph 6 in the context
of territorial claims based on notions of pre-colonial territorial integrity has
become a vexed question. Several observations may be made in this regard.
The discussion of Guatemala’s proposed amendment to the draft
Colonial Declaration suggests that there was no appetite in the General
Assembly for amending the draft Declaration to provide explicitly for the
protection of ‘the right to the recovery of territory’. However, it was stra-
tegically convenient for sponsors of the draft like Indonesia and Morocco
to avoid confronting the issue directly, at least insofar as it might relate to
irredentist claims to Non-Self-Governing Territories based on notions of
pre-colonial sovereignty. In this way, they were able to persuade Guatemala
not to put its proposal to a vote (thereby preserving the prevailing consen-
sus on the draft Declaration) while not explicitly ruling out the application
of paragraph 6 in the context of claims based on pre-colonial ties.
It is widely accepted that Guatemala’s position is untenable in at least
one respect: it does not follow from paragraph 6 that the resolution of
irredentist territorial claims must necessarily be accorded priority in the
decolonization process. The fact that certain disputed colonial territories,
like Belize and East Timor, have achieved independence in accordance
with the principle of self-determination notwithstanding the existence of
irredentist claims by neighbouring States is evidence of this.
In another respect, the ‘irredentist’ interpretation of paragraph 6 has
been embraced by a significant number of States, which argue that the
existence of pre-colonial ties between a State and a Non-Self-Governing
Territory can justify an irredentist ‘reintegration’ claim and the setting
aside of self-determination.
It can be deduced from the ICJ’s Western Sahara Opinion that, in the
ICJ’s view, the only type of pre-colonial ties between an irredentist State
and a Non-Self-Governing Territory that ‘might affect’ the exercise of self-
determination in the decolonization process are ‘ties of territorial sovereignty’.204
The extent to which the existence of pre-colonial ties of territorial sover-
eignty might affect the decolonization process was not addressed by the ICJ.
However, it is possible to infer from the ICJ’s approach that the existence of
such ties would not trump the exercise of self-determination altogether. It
is clear that the ICJ conceived of the decolonization process as an oppor-
tunity for an expression of the popular will of colonial peoples, rather than
as a forum for righting colonial wrongs visited by sovereign States on each
other in centuries gone by. This conception is borne out by an analysis of
the drafting history of paragraph 6. Even sponsors of that provision, like
Indonesia and Morocco, who have gone on to become major proponents
of an ‘irredentist’ interpretation of paragraph 6, made no direct suggestion
during the debate that the provision was capable of triggering a reversion
to some pre-colonial territorial status quo ante, preferring instead to focus
on its application in cases like West Irian and Katanga.
The Western Sahara Opinion could be read as suggesting that the exist-
ence of pre-colonial legal ties of territorial sovereignty might affect the type
of procedural measures that are put in place for the exercise of the right to
self-determination. It is somewhat unclear whether this is connected with
the ICJ’s (unsubstantiated) assertion that a consultation of the inhabitants
has occasionally been dispensed with by the General Assembly on the
basis that it is ‘totally unnecessary, in view of special circumstances’.
It is trite to assert that self-determination – a right of ‘peoples’ – can be
dispensed with when the inhabitants of a given territory do not constitute
a ‘people’. In one sense, this assertion could be read as a circular affirma-
tion of the scope of the right to self-determination, as circumscribed by a
conventional interpretation of paragraph 6: for instance, Katanga is a sub-
unit of a self-determination unit (the Congo); therefore the population
of Katanga is not a ‘people’ with a right to self-determination. However,
the assertion takes on a different complexion when it relates to a terri-
tory that appears prima facie to be a ‘self-determination unit’ (for exam-
ple, a Chapter XI territory). One way of justifying such an assertion in
this context is to introduce an ethnographic criterion into the definition
of a ‘people’ as holder of the right to self-determination. However, it was
observed that the territorial definition of a ‘people’ is an essential prem-
ise of the delicate balance that has been struck between the principles of

204
2.3 Conclusion 69
territorial integrity and self-determination in the decolonization process.
Given the diversity of the populations that inhabit the often arbitrarily
drawn boundaries of prima facie self-determination units, the introduc-
tion of an ethnographic criterion in the definition of a ‘people’ would open
the process up to all manner of ethnic claims and introduce an unman-
ageable level of uncertainty (all would be ‘in flux’, to quote Higgins).205
A better way to rationalize the assertion that the population of a prima facie
self-determination unit does not constitute a ‘people’ is to argue for a doc-
trine of exception, like a putative ‘colonial enclaves’ doctrine. The validity
of such doctrines and the conceptual contours of the exceptional catego-
ries that have been proposed in the literature are examined in Chapter 4.
Judge Petrén’s observation that ‘the law of decolonization does not yet
constitute a complete body of doctrine and practice’ may still hold true
today in one respect: in a small number of anomalous cases involving terri-
tories that would appear – as Chapter XI territories – to be prima facie self-
determination units, the General Assembly has allowed decolonization to
progress in a manner that privileges the adverse claim of a neighbouring
State over the wishes of the inhabitants of the territory. Uncertainties will
remain for as long as a rational account of the treatment of the anomalous
cases proves elusive.
In the next chapter, it will be argued that certain cases involving disputed
colonial territories that have been identified as anomalous in the literature
can be explained according to a conventional (rather than an ‘irreden-
tist’) interpretation of paragraph 6. The first section will examine disputes
arising from the fragmentation of a Non-Self-Governing Territory by the
administering power prior to or during the course of decolonization (e.g.
Mayotte and the Chagos Islands). The second section will consider cases
where the claim of the neighbouring State is based on the retention of
territorial sovereignty over a territory while it is administered colonially
by another State (e.g. the Panama Canal Zone and the Hong Kong New
Territories). The third section deals with the case of the Falkland/Malvinas
Islands, which – subject to the view one takes on the merits of the dispute –
may be capable of being rationalized according to a conventional interpre-
tation of paragraph 6 (although Argentina’s arguments suggest it does not
rule out reliance on an ‘irredentist’ interpretation of paragraph 6, and/or
on the existence of a doctrine of exception, as alternatives to its central uti
possidetis-based claim).

205
Higgins (n 5) 104.
3
Territorial Integrity, Irredentist Claims,

and the Identification of Self-Determination
Units in State Practice
‘It is for the people to determine the destiny of the territory and not the
territory the destiny of the people’.1 Judge Dillard’s undeniably catchy pro-
nouncement seems to be in step with the ‘progressive’ tone of the Western
Sahara Advisory Opinion and the emphasis the Court places on the
human dimension of Saharawi decolonization. Nevertheless, it has been
subjected to criticism for its apparently question-begging quality. Judge
Dillard’s statement, so the argument goes, brings the reader no closer to
identifying the type of human collective that is to be considered a ‘people’
with the right to self-determination. Simpson, borrowing from Toynbee’s
much-cited critique of the concept of self-determination, has suggested
that Judge Dillard’s comment is ‘the statement of the problem not the solu-
tion of it’.2
The criticism is not entirely fair. Judge Dillard’s statement is not
intended to be a general abstract formulation of self-determination.
His comments relate to ‘the right of self-determination in the context
of non-self-governing territories’, and it is obvious from his separate
opinion that he is sensitive to the difficulties that accompany attempts
to construe the right of self-determination – and with it the concept
of a ‘people’ – more generally, beyond the colonial context.3 However,
1
Western Sahara [1975] ICJ Rep, Sep Op Judge Dillard, 122.
2
G. J. Simpson ‘Judging the East Timor Dispute: Self-Determination at the International
Court of Justice’ 17 Hastings Int’l & Comp L Rev (1993–94) 323, 323–24, citing A. Toynbee
‘Self-determination’ 484 Q Rev (1925) 319. Simpson also cites Toynbee to make a similar
point – he argues that the ‘epigrammatic appeal’ of Judge Dillard’s statement ‘does not match
its utility’ (ibid.). M. Weller goes further, taking the view that ‘rarely has a judicial state-
ment been more dangerously mistaken than this one’: Escaping the Self-Determination Trap
(Leiden: Martinus Nijhoff 2008) 30.
3
Western Sahara Advisory Opinion (n 1) 121. These difficulties are discussed in R. Emerson
‘Self-Determination’ 65 AJIL (1971) 459, which Judge Dillard cites (also at 121).
70
Integrity, Claims, & Self-Determination Units 71
as the previous chapter demonstrated, the Western Sahara Advisory
Opinion leaves a cloud of ambiguity hanging over the definition of a
‘people’, which extends its shadow over the right of self-determination
in a colonial context, at least in ‘special’ cases. The Court, it has been
noted, refers in its Opinion to territories where the General Assembly
has dispensed with a consultation of the inhabitants, on the basis that
they do not c onstitute a people.4 Against the backdrop of the Advisory
Opinion, therefore, Judge Dillard’s statement arguably begs the follow-
ing question: if it is not always true to say that the whole population
of a Non-Self-Governing Territory is a ‘people’ with the right to self-
determination, how does one define the concept of a people in a more
nuanced manner that reflects the ‘special’ treatment meted out to certain
(often disputed) colonial territories?
It has been established that the identification of a ‘people’ does not turn
on the desire of a human collective to govern itself or assert its distinctive
identity. Separatists in Katanga and West Irian discovered, to their cost,
that the ‘people’ entitled to determine the political destiny of a colonial
territory is territorially defined. The previous chapter sought to demon-
strate: (a) that the drafters of paragraph 6 of the Colonial Declaration had
secession crises like Katanga and West Irian in mind when they sought to
prohibit ‘any attempt to interfere with the territorial integrity and national
unity’ of a State or country; and (b) that paragraph 6 cannot serve ration-
ally as a tool for triggering, in Crawford’s words, a ‘reversion to some ear-
lier or superseded territorial formation’ (or, in Franck’s words, ‘a march
backward to a status quo ante of uncertain age and validity’).5
With the concept of a ‘people’ being territorially defined in accordance
with established colonial boundaries, the principle of territorial integrity
operates to circumscribe the scope of the right of territorially defined
peoples to self-determination in a colonial context. Territorial integrity
is integral to the process of identifying self-determination units. In this
sense, it could be said that territory determines the destiny of the people at
a fundamental level.
‘Salt water’ colonies that are geographically separate and distinct eth-
nically and/or culturally from that of the administering power are gen-
erally deemed to be prima facie self-determination units.6 However, this
4
Ibid., 33, at para 59.
5
Press 2006) 644; T. Franck ‘The Stealing of the Sahara’ 70:4 AJIL (1976) 694, 698.
6
GA Res 1541 (XV), 15 December 1960, Annex, Principles IV and V.
72 Integrity, Claims, & Self-Determination Units
is not true of all colonially administered territories, including certain
territories that have at some point in their history been designated as fall-
ing within Chapter XI of the UN Charter. In certain cases, as shall be seen,
colonially administered territories have not been treated as prima facie
self-determination units because the (present-day) territorial integrity of a
neighbouring State is deemed to be at stake in the decolonization process.
This chapter will seek to identify factors that permit a State legitimately
to invoke the principle of territorial integrity as a ‘trump card’ in its claim to
a neighbouring colonially administered territory, regardless of the wishes
of the population of that territory.
Some of the cases that will be considered involve very unusual territo-
rial arrangements. However, it will be argued that a factor uniting numer-
ous cases in this chapter is that their treatment at the hands of the UN and
other international bodies can be rationalized according to the ‘conven-
tional’ interpretation of paragraph 6 of the Colonial Declaration that was
advanced in the previous chapter; that is to say, referencing present-day
territorial integrity, without recourse to irredentist appeals for the resur-
rection of extinct territorial units.
The chapter will first consider the general prohibition against the frag-
mentation of Non-Self-Governing Territories, which seems to have been
applied inflexibly in contentious cases, but which has been relaxed in
exceptional non-contentious cases. Contentious cases of territorial parti-
tion (Mayotte) and alienation (the Scattered Islands (Îles Éparses) and the
Chagos Islands) will be contrasted with cases where partition or aliena-
tion of colonially administered territory occurred consensually, or at least
without generating significant external opposition (British Cameroons,
Ruanda-Urundi, the Trust Territory of the Pacific Islands (TTPI), the
Gilbert and Ellice Islands Colony (GEIC), and Cocos (Keeling) Islands
and Christmas Island).
The second group of cases that will be considered are those where it is
contended by at least one of the parties that present-day ties of territorial
sovereignty between a colonially administered territory and its neigh-
bouring State are evidenced in a treaty (Panama Canal Zone, Hong Kong,
Macau, and Gibraltar).
Finally, the chapter will deal with the highly problematic case of the
Falkland/Malvinas Islands. It will argue that the case is best understood
as a dispute over present-day title rather than over the relevance of pre-
colonial ties, and is thus capable of being rationalized in accordance with
a conventional (rather than an ‘irredentist’) interpretation of paragraph 6
of the Colonial Declaration. This provides a bridge to the fourth chapter,
3.1 The (General) Prohibition 73
which examines whether a doctrine of exception is required to explain
international approaches towards other disputed colonial territories –
mostly enclaves and quasi enclaves that appear to be prima facie self-
determination units – which appear sympathetic with the territorial
designs of neighbouring claimant States, but which cannot be rationalized
according to a conventional interpretation of paragraph 6.
3.1 The (General) Prohibition on the Fragmentation

of Non-Self-Governing Territories
An examination of international practice suggests that the prohibition
in paragraph 6 of the Colonial Declaration of ‘any attempt aimed at the
partial or total disruption of the national unity and the territorial integ-
rity of a country’ is not absolute.7 Indeed, in some of the exceptional cases
considered below, the territorial integrity principle has been relaxed com-
pletely, even in the face of opposition from those wishing to see the unity
of the Non-Self-Governing Territory in question maintained. However,
there appears to be little flexibility when the fragmentation of a Non-
Self-Governing Territory is opposed by an entity (whether a Non-Self-
Governing Territory or a State) with a credible claim that its own territorial
integrity is undermined by the act of partition or alienation. This is so even
when, as in the case of Mayotte, a persuasive argument can be made on
democratic grounds that the population of part of a Non-Self-Governing
Territory ought to have a separate say over its political future.
The first part of this section will examine the cases of Mayotte, the
Scattered Islands (Îles Éparses) and the Chagos Islands (all disputed cases
of fragmentation involving Non-Self-Governing Territories in the Indian
Ocean). The second part will examine some exceptional departures from
the territorial integrity principle that have met with international approval,
or at least with tacit acceptance. As will be seen, the justifications behind
the exceptions help to shed light on the underlying principles guiding the
general prohibition against the fragmentation of Non-Self-Governing
Territories.
As far as States are concerned, examples exist of secession by consent: e.g. the Czechoslovakian
7
‘velvet divorce’ in 1993 and the creation of the Republic of South Sudan in 2011. If Scotland
had voted to secede in 2014 the process envisaged would also have been consensual.
However, the focus in this section will be on Non-Self-Governing Territories and their
treatment during the decolonization process.
3.1.1 The Primacy of Territorial Integrity in Contested

Cases of Partition and Alienation of Colonial Territory
3.1.1.1 Mayotte
The case of Mayotte has been described as ‘the most controversial’ instance
of French decolonization.8 It will be argued here that the treatment of the
territory by UN and regional organs is a manifestation of the general pro-
hibition against the partition of a Non-Self-Governing Territory by the
administering power during the decolonization process.
3.1.1.1.1 Background to the Dispute The Comoros Archipelago lies

between Madagascar and Mozambique, and consists of four islands:
Grande Comore; Mayotte; Anjouan; and Mohéli. Mayotte became a
French colony in 1841, when the local Malagasy ruler ceded the island
to occupying French forces.9 The three other islands in the archipelago
became protectorates of France in 1886.10 In 1912, all four islands were
made dependencies of Madagascar, which had been colonized by France
in 1897.11 As of 1946, the archipelago was administered by France as a
single ‘Territoire d’Outre Mer’, and was included as a French-administered
territory on the UN list of Non-Self-Governing Territories.12
In 1972, arrangements were put in place by France for the Comorians
to exercise their right to self-determination in a plebiscite. Although the
initial arrangement was for an island-by-island consultation to take place,
France eventually decided to conduct a single consultation for the whole
archipelago, to take place at the end of 1974. The French President, Giscard
d’Estaing, justified the decision to treat the Comoros as a single unit for the
purpose of the consultation in a press conference dated 24 October 1974:
Les Comores sont une unité, ont toujours été une unité; il est naturel que
leur sort soit un sort commun, même si, en effet, certains d’entre eux pou-
vaient souhaiter . . . une autre solution. Nous n’avons pas, à l’occasion de
l’indépendance d’un territoire, à proposer de briser l’unité de ce qui a toujo-
urs été l’unique archipel des Comores.13
8
M. M. Mbengue ‘Decolonization: French Territories’ MPEPIL Online, para 23.
9
A. Mahamoud Mayotte: le contentieux entre la France et les Comores (Paris: L’Harmattan
1992) 14.
10
Ibid.
11
Ibid. See also J. Charpentier ‘Pratique française concernant le droit international’ 21 AFDI
(1975) 1051–100, especially at 1067.
12
Charpentier (n 11).
13
Press Conference of 24 October 1974, ibid., 1067.
The referendum duly took place on 22 December 1974. The breakdown
of the vote showed that 63 per cent of the population of Mayotte had voted
to retain links with France, whereas large majorities in the populations
of the other three islands had voted for independence.14 This prompted
the French government to introduce a law providing for the independ-
ence of the Comoros Islands, but, in a departure from France’s position on
the unity of the territory, making independence subject to approval on an
island-by-island basis.15 ‘Exasperated’ by the French change of policy, the
local Comorian legislature, without the participation of representatives
from Mayotte, unilaterally declared the independence of the Comoros
Islands ‘within their colonial frontiers’ on 6 July 1975.16
France subsequently recognized the independence of the Comoros, but
maintained that this recognition did not include Mayotte where, France
stressed, French law would continue to apply.17 This stance placed France at
loggerheads with the UN General Assembly, which adopted a resolution
on 13 December 1974 enjoining France ‘to ensure the unity and territorial
integrity of the Comoro Archipelago’, as well as ‘to take all measures to
ensure the full and speedy attainment of freedom and independence by
the people of the Territory’.18
In the face of international opposition, a second referendum was organ-
ized by France in Mayotte, in which the population was asked whether it
wished to remain part of France or join the new Comorian State.19 At the
referendum, which took place on 8 February 1976, 99.4 per cent of voters
in Mayotte opted to retain links with France.20
France attempted to justify the organization of the 1976 referendum
in Mayotte on various grounds. The Secretary of State for the Territoires
d’Outre Mer argued in 1975 that France was motivated by its respect for
the right of self-determination.21 He also pointed to historical factors,
arguing that Mayotte had become French before the other islands in
14
Ibid.
15
Article 2, Law of 3 July 1975, Journal Officiel, 4 July 1975, at 6764, cited in Charpentier
(n 11) 1068.
16
Charpentier (n 11) above, 1068. See also M. Pomerance Self-Determination in Law and
Practice (The Hague: Nijhoff 1982) 98.
17
Le Monde, 12 July 1975, cited in Charpentier (n 11) 1069.
18
GA Res 3291 (XXIX), 13 December 1974; Mbengue (n 8) para 23.
19
Law of 31 December 1975 (JO, 2–3 January 1976, 151), cited in Charpentier (n 11) 1069.
20
Pomerance (n 16) 98. Also Mbengue (n 8) para 23.
21
Declaration of the Secretary of State for the Territoires d’Outre Mer, JO AN, 11 December
1975, 9601, cited in Charpentier 1070.
the archipelago, and moreover that it had passed under French control
‘précisément pour échapper à leur tutelle’.22 He continued:
La France avait essayé de manifester sa volonté en faveur de l’unité de
l’archipel en décidant une gestion administrative commune à ces terri-
toires. Mais, malgré cette volonté, les raisons historiques l’ont emporté et
l’unité n’a pas été possible.23
He also appealed to geography as a basis for departing from France’s usual

respect for the integrity of existing colonial boundaries in matters of decolo-
nization. France, he argued, always respected the existing land boundaries of
a decolonizing territory ‘car il fallait éviter des conflits de frontières’. However:
‘s’agissant d’îles séparées par des eaux territoriales étrangères qui ont connu
une histoire profondément différente et presque toujours opposée, il est
évident que cette règle doit passer après celle du respect du droit des peu-
ples à disposer d’eux-mêmes’.24
Pomerance suggests that religion may also have been a factor, pointing
to the fact that ‘whereas the majority of Comoro Islanders are Moslem, the
population of Mayotte is mainly Christian’.25
3.1.1.1.2 The Response of UN Organs and Other International Bodies

to the Separation of Mayotte Prior to Comorian independence, the
General Assembly had already affirmed ‘the unity and territorial integrity
of the Comoros’ and, as was noted above, condemned the organization of
a separate referendum on Mayotte.26
The ‘necessity of respecting the unity and territorial integrity of
the Comoro Archipelago’ was reaffirmed by the General Assembly in
Resolution 3385 (XXX), pursuant to which the Comoros was admitted to
membership of the UN in 1975.27 The General Assembly made clear in this
resolution that the State being admitted as a member included within its
territory the island of Mayotte, along with the islands of Anjouan, Grande
Comore, and Mohéli. There followed, at regular intervals, some nine-
teen General Assembly resolutions in a similar vein, up to and including
Resolution 49/151 of 23 December 1994.28 The resolutions refer pointedly
22
Ibid.
23
Ibid.
24
Ibid.
25
Pomerance (n 16) 98.
26
GA Res 3161 (XXVIII), 14 December 1973; GA Res 3291 (XXIX), 13 December 1974.
27
GA Res 3385 (XXX), 12 November 1975.
28
See GA Res 49/18, 28 November 1994 for a comprehensive list of the relevant resolutions.
to the question of the ‘Comorian island of Mayotte’, and are unequivocal in
their view that the separation of Mayotte is a violation of Comorian unity
and territorial integrity. Since 1994, the General Assembly has deferred
consideration of ‘the Question of the Comorian Island of Mayotte’ but
kept it as an item on the agenda.29
The partition of the Comoros Archipelago also engaged the interest of
the UN Security Council. On 28 January 1976, the Comoros informed the
President of the Security Council that France had committed a ‘flagrant
aggression’ in separating Mayotte from the rest of the archipelago.30 A
majority of members of the Security Council agreed, with most of the
States who participated in the debate (including 10 mainly African States
who were invited at their request to participate despite not having seats on
the Council) emphasizing the importance of treating Comoros as a sin-
gle unit.31 A draft resolution sympathetic to the Comoros was presented
by Benin, Guyana, Libya, Panama, and Tanzania. It received 11 votes in
favour, while Italy, the UK, and the US abstained. The UK, in abstaining,
expressed its understanding of ‘both the position of the Comoros, accord-
ing to which its former colonial boundaries should have been retained
after independence, and of the constitutional imperatives with which the
French Government was confronted’.32 Privately, the view was expressed
within the US government that abstention was ‘the only viable option’
given the ‘intractable’ nature of the dispute, the desire of the US to ‘main-
tain a low profile’, and the fact that it did ‘not want to make life harder for
the French’.33 However, the (privately expressed) US view on the merits
of the Comorian claim was that it was justified on the basis of ‘the territo-
rial integrity principle’.34 Only a rare exercise of the French veto prevented
the resolution from passing.35
29
See e.g. UN Ybk (2004) 1447.
30
See Report on UNSC Decision of 6 February 1976 (1888th meeting): www.un.org/en/sc/
repertoire/75-80/Chapter%208/75-80_08-8-Comoros%20.pdf at 255.
31
Ibid., 255–7. See also Pomerance (n 16) 131, who argues that the issue may have been less
heated had the population of Mayotte ‘opted for separate independence, rather than for
continued association with France’.
32
Report on UNSC Decision (n 30) 256.
33
Briefing by US Embassy in Paris to US Secretary of State and others, ‘Comoro Islands in the
Security Council: Background and Recommendations’, 5 February 1976: www.wikileaks
.org/plusd/cables/1976PARIS03640_b.html especially at para 10.
34
Ibid.
35
J. Stone Conflict Through Consensus: United Nations Approaches to Aggression (Baltimore,
MD: Johns Hopkins University Press 1977) 135.
The view that the separation of Mayotte was an unacceptable affront
to the unity and territorial integrity of the Comoros was also expressed
by numerous other international bodies. In 1995, the Assembly of Heads
of State and Government of the Organisation of African Unity adopted a
resolution re-affirming the sovereignty of the Comoros ‘over the Comorian
island of Mayotte’, and asserting that ‘the referendum of self-determination
conducted on 22 December 1974 remains the only valid consultation
applicable to the entire Archipelago’.36 Similarly, the foreign ministers of
the Organization of the Islamic Conference adopted a resolution ‘On the
Comorian Island of Mayotte’, asserting that ‘the separation of the Island
of Mayotte from the other Comorian Islands constitutes a grave violation of
the territorial integrity of the Islamic Federal Republic of the Comoros’.37
3.1.1.1.3 Rationalizing the Treatment of Mayotte in International Legal

Doctrine Doctrinal attempts to rationalize the case of Mayotte tend to
centre on the problem of the identification of the ‘self ’ that is the holder of
a right of self-determination: is the ‘self ’ the population of the Comoros
as a whole, or could the population of Mayotte somehow be considered a
discrete ‘self ’ with a right of self-determination?38 A related issue is the
temporal framework within which this identification is to be made. Is it
relevant that France’s relationship with Mayotte pre-dated, and indeed
may have differed de jure, from its relationship with the other islands; or
is this factor superseded by the fact that at the time of decolonization, the
Comoros was administered as one unit by France, and had been since
1912? Stone, writing in 1977, attributes the ‘legal impasse’ over Mayotte
to ‘legally undetermined entitlements in the dimension of time’.39
While such commentary reflects the substance of the divergent claims
of France and the Comoros in the dispute, it arguably understates the
36
Resolution AHG/Res 241 (XXXI) (28 June 1995) paras 2 and 7.
37
Resolution No 22/27-P, 27th Session of the Islamic Conference of Foreign Ministers (27–30
June 2000). For the latest statement of that body see Resolution 8/39-P, 39th Session, 15–17
November 2012, which inter alia ‘condemns and rejects’ the French ‘departmentalization’
of Mayotte (para 8. See (n 48) below on Mayotte becoming a French ‘Département’), and
reaffirms Comorian sovereignty over Mayotte ‘in conformity with international law, par-
ticularly the one relevant to the borders inherited from the decolonization’ (para 5).
38
M. Koskenniemi asks, ‘is it the archipelago of Comoros or the single island of Mayotte that
is the relevant “self ”’: ‘National Self-Determination Today – Problems of Legal Theory and
Practice’ 43 ICLQ (1994) 241, 260, fn 69. Stone (n 35) 135 asks essentially the same question.
39
Stone (n 35) 134 (emphasis in the original). On the question of the ‘critical date’ for assess-
ing the claims of the parties, see especially 135.
weight of international opinion in this case.40 The overwhelming view,
reflected in the resolutions of the General Assembly, the debate in the
Security Council, and the resolutions of other international bodies is
that the relevant ‘self ’ with a right of self-determination is the population
of the Comoros Islands, and not the population of Mayotte. Moreover, the
international response to the separation of Mayotte is clearly in favour of
assessing the territorial integrity of the Comoros in accordance with its
colonially administered boundaries at the time of decolonization. In the
face of the fact that the four islands had been administered as one unit for a
considerable time prior to decolonization, it appears not to have mattered
that France’s de jure relationship with Mayotte was, at the time of coloniza-
tion, different to its relationship with the other islands.41
A similar issue arises in certain other cases examined in the present
work, where colonial powers have found themselves ‘estopped’ from rely-
ing on de jure distinctions as a basis for excising part of a territory that has
been administered as a single colonial unit for a significant period of time.
The Scattered Islands (Îles Éparses) (considered in the sub-section below),
Walvis Bay, and possibly also Hong Kong are notable examples.42
The treatment of Mayotte invites comparison with other cases for a fur-
ther reason. As will be seen in due course, some of the General Assembly
resolutions on other disputed colonial territories – notably the Falkland/
Malvinas Islands and Gibraltar – also emphasize (in the case of Gibraltar)
or arguably allude to (in the case of the Falkland/Malvinas Islands) the
principle of territorial integrity enshrined in paragraph 6 of the Colonial
40
In fairness to Stone, he was writing in the midst of the key events of the mid-1970s (although
the initial reactions of the General Assembly and Security Council would have been known
at the time of publication).
41
Compare L. Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ 16
YJIL (1991) 177 who argues (at 194) that the theory that the islands formed a single territo-
rial unit ‘does not explain why the territorial integrity of the Comoros mattered, but that
of the French empire did not. The obvious explanation relies on the history of the dispute
in that France was seen as a colonial aggressor’. She also deems it ‘unfortunate’ that the
General Assembly did not protect the preference of the population of Mayotte to remain
with France.
42
The most interesting comparison is with the case of Walvis Bay, which was not part of the
South West Africa Mandate de jure despite being administered as part of it for some 55
years prior to decolonization. South African attempts to retain Walvis Bay were condemned
internationally, and the territory was incorporated into a newly independent Namibia (see
Ch 4, pp. 210–14). It is also interesting to compare with the reversion of the ceded por-
tions of Hong Kong alongside the much larger ‘leased’ territories, all territories having been
administered as a single unit by the British (although this outcome may be more readily
explained by pragmatic considerations: see p. 108 et seq. below, esp pp. 118).
Declaration. However, they do so in more abstract terms, without asserting
directly that the on-going situation in those territories constitutes a breach
of the claimant State’s unity and territorial integrity.43 Indeed, some of the
States voting in favour of such resolutions – which also encourage bilat-
eral negotiations over the future of the disputed territories – m aintained
that the affected colonial population was indeed a ‘people’ with a right
of self-determination, and that their vote was not intended to suggest
otherwise.44 The General Assembly resolutions on Mayotte leave much less
room for manoeuver: Mayotte, regardless of the wishes of its population, is
not deemed – even prima facie – to be a ‘self-determination unit’ under the
law of decolonization, and the separation of Mayotte from the Comoros
archipelago is deemed to be an unacceptable threat to order and stability.
Concerns expressed in the mid-1970s regarding instability in the
Comoros archipelago turned out to be well founded. The politics of
post-independence Comoros has been volatile, and the spectre of fur-
ther fragmentation was raised when separatists in Anjouan and Moheli
made an abortive attempt to secede from the Comoros in 1997, referring
to Mayotte as a precedent.45 France did not support the separatist cause
in that instance, but has since moved, with the approval of the population
of Mayotte, to integrate that territory further within the French Republic,
according it the status of ‘Département d’Outre Mer’ in 2011.46
3.1.1.2 The Scattered Islands (Îles Éparses)

Another case involving the disputed fragmentation of a French-
administered Non-Self-Governing Territory is that of the Scattered
43
For discussion of the relevant resolutions see p. 143 et seq. (on the Falkland/Malvinas
Islands resolutions) and Ch 4, p. 200 et seq. (on the Gibraltar resolutions).
44
For instance, some of the States voting in favour of a resolution urging Britain and Spain
to enter into negotiations over Gibraltar, and referring only to the ‘interests’ (and not the
‘wishes’) of the population of the territory, maintained that the population has a right of
self-determination: New Zealand, UN Doc A/C4/SR.1745 (1967) 461, para 136, and
Finland: UN Doc A/C4/SR.1753 (1967) 546, para 35.
45
According to the BBC, there have been more than 20 coups or attempted coups since inde-
pendence: ‘Anti-French protests in Comoros’ (27 March 2008): http://news.bbc.co.uk/1/hi/
world/africa/7316177.stm. See also Crawford (n 5) 646.
46
‘Mayotte devient le 101ème département français et cinquième DOM’: www.outre-mer
.gouv.fr/?mayotte-devient-le-101eme-departement-francais-et-cinquieme-dom.html. The
change in status was approved by the population of Mayotte in a referendum on 29 March
2009. France’s approach is to treat the status of Mayotte as a matter of French constitutional
law, notwithstanding the international dimension. The validity of this approach under
French municipal law was confirmed by the Conseil Constitutionnel in Decision No 75–59
DC, 30 December 1975.
Islands (Îles Éparses). This group of unpopulated islands is situated – like
Mayotte – in the Mozambique Channel (with the exception of Tromelin,
which sits off the east coast of Madagascar, and is the only island in the
group not claimed by Madagascar). France excised the Glorieuses, Juan
de Nova, Europa, and Bassas da India from Madagascar on 1 April 1960,
just before Malagasy independence on 26 June 1960.47 Tromelin was
treated as a dependency of British-administered Mauritius until 1954,
when France occupied the island pursuant to an agreement with Britain.
Mauritius claims Tromelin, arguing that the Anglo-French agreement of
1954 did not effect a transfer of sovereignty.48 This sub-section focuses on
Madagascar’s claim to the other four islands.49
The territorial dispute over the four islands excised from Madagascar
is much less high profile than the dispute between France and Comoros
over Mayotte, and the absence of a resident population means – as Kohen
notes – that the case affords no opportunity to explore the way in which
the tension between territorial integrity and self-determination plays out
in a colonial context.50 However, its relevance for this chapter is that the
case serves to underline the general prohibition on the fragmentation
of Non-Self-Governing Territories that appears to apply under the law of
decolonization (at any rate when the act of fragmentation is disputed).
France took possession of the Glorieuses in 1892 and the other islands
in 1897, the same year that it declared Madagascar a colony. The islands
were administered together with Madagascar from 1897 onwards. France
contends that this was done merely as a matter of administrative con-
venience, and that it never considered the islands to be dependencies
of Madagascar.51 It also argues that Madagascar acquiesced, on separate
47
Decree No 60-555, 1 April 1960, JO 14 June 1960, 5343.
48
V. L. Forbes The Maritime Boundaries of the Indian Ocean Region (Singapore: Singapore
49
Another omission from the present discussion will be the dispute over a (mostly sub-
merged) reef known as the Banc de Geyser, which France claims forms part of the Scattered
Islands. Madagascar announced its annexation of the reef in 1976. The reef is also claimed
by Comoros, which includes it within its EEZ. See J. Kraska ‘International Law and the
Future of Indian Ocean Security’ in Deep Currents and Rising Tides: The Future of Indian
Ocean Security J. Garofano and A. J. Dew (eds.) (Washington, DC: Georgetown University
Press 2013) 213, 221.
50
M. Kohen Possession Contestée et Souveraineté Territoriale (Paris: Presses universitaires de
France 1997) 421, fn 163.
51
A. Oraison, ‘A propos du différend franco-malgache sur les îles éparses du canal de
Mozambique (La succession d’États sur les îles Glorieuses, Juan de Nova, Europa et Bassas
da India)’ 85 RGDIP (1981) 461–513, 489.
occasions prior to and after its independence, to the detachment of the
islands.52
These arguments do not appear to have persuaded the General
Assembly, which adopted essentially the same line as it did in relation
to Mayotte, although it waited until 1979 to do so.53 In the latter of two
resolutions adopted that year, the Assembly condemned the detachment
of the islands, reaffirming ‘the necessity of scrupulously respecting the
national unity and territorial integrity of a colonial territory at the time
of its accession to independence’.54 It called for ‘the reintegration of the . . .
islands, which were arbitrarily separated from Madagascar’.55 It also called
on France ‘to repeal the measures which infringe the sovereignty and ter-
ritorial integrity of Madagascar, and to refrain from taking other meas-
ures that would have the same effect and could hinder the search for a just
solution to the present dispute’.56 The reference to ‘other measures’ alludes
to a 1978 French decree establishing Exclusive Economic Zones around
the islands.57 It was this assertion of maritime jurisdiction that focused
international attention. As with Mayotte, de jure distinctions drawn by
France, concerning the basis for French sovereignty over the islands and
Madagascar respectively, do not appear to have been accorded any impor-
tance by the General Assembly. The fact that the islands had been admin-
istered as one colonial unit with Madagascar since 1897 appears to have
taken precedence when determining the extent of Madagascar’s territorial
integrity.
Other international bodies supported the Malagasy claim for the res-
toration of its territorial integrity at the time. A Political Declaration to
this effect was made at the Sixth Conference of the Heads of State and
Government of the Non-Aligned Countries, held in Havana from 3 to 9
September 1979.58 Shortly thereafter the OAU passed a resolution stating
that the four islands claimed by Madagascar ‘constitute an integral part of ’
52
Ibid., 488–91.
53
GA Res 34/21, 9 November 1979; GA Res 34/91, 12 December 1979.
54
GA Res 34/91, 12 December 1979, para 1.
55
Ibid., para 3.
56
Ibid., para 4.
57
Decree No 78-146, 3 February 1978, cited in Oraison (n 51) 487; see also A. Tahindro ‘The
Implementation of UNCLOS in the Indian Ocean Region: The Case of Madagascar’ 12 Afr
Y Int L (2004) 349–435, at 370.
58
UN Doc A/34/542, annex, section I (1979) para 100, cited in the preamble of GA Res 34/91,
12 December 1979.
Madagascar, and urged the French government to enter into negotiations
with a view to the ‘re-integration’ of the islands.59
Since 1990 the General Assembly has deferred consideration of the
Scattered Islands, ‘probably as a result of the wishes of both countries to
play down the dispute’, according to one commentator.60
3.1.1.3 The Chagos Islands

The detachment of the Chagos Islands from Mauritius in 1965 forms
part of a series of events which a senior British judge has described as
‘unhappy – indeed, in many respects, disgraceful’,61 and a former British
Foreign Secretary has described as ‘sordid’ and ‘morally indefensible’.62
These events, and in particular the clandestine deportation of the
Chagossian population by the UK government between 1965 and 1973,
have spawned a significant amount of litigation in a variety of domestic
and international courts and tribunals. The present section will focus on
aspects of this episode that shed light on the principles underpinning the
law of decolonization.
3.1.1.3.1 Background to the Dispute Mauritius and its dependencies,

which included the Indian Ocean territories of the Seychelles and the
Chagos Archipelago, were ceded to Britain by France under the Treaty
of Paris 1814, after the British had captured Mauritius in 1810.63 The
Seychelles, a territory consisting of 115 islands, was administered as a
dependency of Mauritius until 1903, when it was constituted a separate
Crown Colony. The Chagos Archipelago consists of some 65 islands,
roughly 2,400 km to the north-east of Mauritius.
In 1965, Britain excised the Chagos Islands from Mauritius, and excised
the Desroches Archipelago, the Farquhar Group and Aldabra Atoll
from the colony of the Seychelles. By Order in Council, these islands were
constituted a separate colony named the ‘British Indian Ocean Territory’
59
Council of Ministers of the OAU, Resolution on the Glorious, Juan de Nova, Europa and
Basses-da-India Islands, 35th Ordinary Session, Freetown, Sierra Leone, CM/Res.784
(XXXV), 18–28 June 1980.
60
Tahindro (n 57) 372.
61
R (on the application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs
[2008] UKHL 61, at 75 (per Lord Rodger).
62
Interview with Robin Cook M. P., referred to in J. Pilger Freedom Next Time (London:
Random House 2006) 81.
63
30 May 1814, 63 CTS 171.
(BIOT), and set aside ‘for defence purposes’.64 The motivation for this
action was to accommodate the desire of the US for a military base in the
region.
After identifying Diego Garcia (the largest atoll in the Chagos archi-
pelago) as a suitable location for the base, the US and UK governments
entered into a secret exchange of notes in 1966 under which the UK agreed
to lease Diego Garcia to the US for a 50 year term, with an option to renew
for a further 20 years.65 An earlier plan to locate the base on the Seychellois
island of Aldabra was abandoned out of a concern that it would dis-
rupt the population of giant tortoises living there.66 The islands that had
been excised from the Seychelles were subsequently returned when the
Seychelles attained independence in 1976. After that point, BIOT consisted
solely of Diego Garcia and the other islands in the Chagos archipelago.
The concern shown for Aldabra’s tortoises was unfortunately not
extended to the resident human population of the Chagos Islands (who are
known as the ‘Ilois’, the Creole for ‘islanders’). The Ilois numbered, accord-
ing to differing estimates, between 1,000 and 2,000 persons and their
roots on the islands extended back to 1776.67 Unfortunately for the Ilois,
the British and US governments had decided secretly that the defence
purposes for which the islands had been set aside would be best served
if the entire resident population of Diego Garcia and the other inhabited
islands (in the Salomon and Peros Banhos atolls) was removed.68 This led
to the covert expulsion by Britain of the Ilois between 1965 and 1973, an
act which has been described as having ‘few parallels in the mistreatment
of a minority group’.69 The population was ‘left to fend for itself ’ in the
slums of the Mauritian capital, Port St Louis.70 The British government
sought to ensure they would not return by making, via the office of the
64
British Indian Ocean Territories Order 1965 (SI 1965 No 1920).
65
Treaty Series No 15 (1967) Cmnd 3231. See also E. Afsah, ‘Diego Garcia (British Indian
Ocean Territory)’ MPEPIL Online, March 2009. In return, the US granted the UK an £11.5
million discount on the procurement of Polaris missiles.
66
J. Madeley ‘Diego Garcia: A Contrast to the Falklands’ Minority Rights Group Report No
54, 4, citing comments by Robin Cook. A related concern may have been that environmen-
tal campaigners concerned about the fate of the tortoises would have drawn unwelcome
attention.
67
Compare Madeley (ibid.) (who puts the figure at 2000, and dates their presence to 1776)
and Lord Hoffman’s leading judgment in Bancoult II (n 61) para 4 (which puts the size of
the population at 1000).
68
Madeley (n 66) 3.
69
Ibid., 4.
70
Bancoult II (n 61) para 10 (per Lord Hoffman).
‘Commissioner for BIOT,’ an Immigration Ordinance in 1971 restricting
access to the Chagos Islands by individuals who were not in possession of
a permit.71
Privately, the Foreign Office was keen to avoid the territory ‘being
classed as non-self-governing within [the] terms of Chapter XI [of the
Charter]’.72 Before the General Assembly, Britain maintained (dishon-
estly) that the Islands ‘had a population of under 1,500 who, apart from
a few officials and estate managers, consisted of labourers from Mauritius
and Seychelles . . . together with their dependents’, and that they had been
‘uninhabited when the United Kingdom Government had first acquired
them’.73
Records show that Mauritian independence from Britain, which came
about in 1968, was made conditional on the detachment of the Chagos
Islands. One senior Colonial Office official referred to ‘a deal for inde-
pendence in exchange for Diego Garcia’, concluded in 1965.74 The ‘deal’
in question involved the UK offering to pay £3 million compensation for
the detachment of the islands from Mauritius, on the condition of leav-
ing open the possibility that the islands could be retroceded to Mauritius,
at Britain’s initiative, once they were no longer required for defence pur-
poses.75 The deal was accepted by the head of a ‘divided Mauritian del-
egation’, Sir Seewoosagur Ramgoolam, who went on to serve as the first
Prime Minister of post-independence Mauritius until 1982, and then
as Governor General until 1985.76 According to Chan Low, the fate of
the ‘small, neglected, and politically deprived’ resident population of the
Chagos was considered ‘a matter of detail by both the British authorities
and the Mauritian political elites of the time’.77 The fate of the Ilois was also
71
Ibid., para 8. While the validity of this Order was successfully challenged in 1999
(R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2001] QB 1067), a
subsequent Order in Council (whose validity was upheld by the House of Lords in Bancoult
II (n 63)) has prevented the resettlement of the islands.
72
PRO FO 141/1428, Secretary of State to Governor of the Seychelles, 14 November 1965.
73
Statement of British representative dated, 20 GAOR 4C 1558th meeting (16 November
1965) 240, para 80.
74
PRO CO 1036/1253: Sir John Rennie to Secretary of State, 11 November 1965 (cited in
J. Chan Low ‘The Making of the Chagos Affair: Myths and Reality’ in S. J. T. M. Evers and
M. Kooy (eds.) Eviction from the Chagos Islands: Displacement and Struggle for Identity
Against Two World Powers (The Netherlands: Brill 2011) 61, 78).
75
PRO CO 1036/1253: Record of meeting held at Lancaster House, 23 September 1965 (cited
in Chan Low (ibid.) 79).
76
Chan Low (ibid.).
77
Ibid.
hidden from international attention and only came to light in 1975 with
the publication of an article in the Washington Post.78
3.1.1.3.2 International Reaction to the Detachment of the Chagos

Islands The only resolutions of the General Assembly dealing with the
excision of the Chagos Islands were adopted before the Assembly had
been made aware of the full human consequences of Britain’s actions.
The creation of the BIOT was nevertheless roundly condemned by the
General Assembly. Resolution 2066 (XX) noted ‘with deep concern that
any steps taken by the administering Power to detach certain islands
from the Territory of Mauritius for the purpose of establishing a military
base would be a contravention of the [Colonial] Declaration and in
particular of paragraph 6 thereof ’.79 The resolution invited the UK ‘to
take no action to dismember the Territory of Mauritius and violate its
territorial integrity’.80 The UK was not swayed from its path, and further
resolutions of the General Assembly were adopted condemning, inter
alia, the disruption of Mauritian territorial integrity by the UK.81
The language of these resolutions is unequivocal. However, it is inter-
esting to compare it with the more strident tone reserved by the General
Assembly for its (many more numerous) resolutions on Mayotte, which
contain references to the ‘flagrant encroachment’ committed by France
against Comorian territorial integrity. As noted above, the presence
of a population on Mayotte supportive of detachment from the self-
determination unit did nothing to sway the international community from
its insistence on the application of uti possidetis. In relation to the Chagos
Islands, no attempt was made by the UK to justify its actions by reference
to a local population. Indeed, its strategy for a time was to deny the exist-
ence of this population entirely and, although this was not known by the
General Assembly when it was originally seized of the issue, the Assembly
adopted no further resolutions on the Chagos Islands after 1967, even after
the expulsion of the Ilois had come to global attention in 1975. In the case
78
Washington Post Editorial, 11 September 1975. The story was taken up by the UK’s Sunday
Times: ‘Diego Garcia: The Islanders that Britain Sold’, 21 September 1975. Both are cited in
Madeley (n 66) fn 6 and 1, respectively.
79
GA Res 2066 (XX) 16 Dec 1965, preamble (italics in the original).
80
Ibid., para 4.
81
GA Res 2232 (XXI) 20 Dec 1966; GA Res 2357 (XXII) 19 Dec 1967. Both these resolutions
deal with a number of territories including Mauritius, and condemn the disruption of ter-
ritorial integrity in some of these territories and the creation of military bases ‘in contraven-
tion of the relevant General Assembly resolutions’.
of Mayotte, by contrast, the General Assembly continued to press the issue
for two decades after the detachment of the territory from the Comoros.
Even the case of the unpopulated Scattered Islands (Îles Éparses) received
more attention from the General Assembly after 1967.
The higher priority accorded to Mayotte, which became something of
an anti-colonial cause célèbre, may be partially explained by the fact that
Mayotte represented a relatively large portion of Comorian territory.
Another factor to consider is that the Comoros raised strenuous objec-
tions before UN organs from the moment that France began to take steps
in the direction of separating Mayotte. This, and indeed the Malagasy atti-
tude towards the Scattered Islands, can be contrasted with the ostensibly
(at least, according to the UK) ‘consensual’ nature of the fragmentation
of Mauritius. The apparently consensual sale arrangement between the
pre-independence Mauritian government and the UK may have helped
to sweeten the pill of partition before it was presented to the interna-
tional community as a fait accompli. Given the complicity of the post-
independence Mauritian elite, it was not until after the departure of
Ramgoolam from Mauritian politics in the mid-1980s that Mauritius
began actively to assert a claim to the sovereignty of the Chagos Islands.
Indeed, Ramgoolam’s successor as Prime Minister, Sir Anerood Jugnauth,
was particularly vocal on the question of the Chagos Islands and sought to
make political capital out of the treatment of the Ilois by the Ramgoolam
administration.82
Whether any of this makes the detachment of the Chagos Islands any
more acceptable as a matter of international law is open to doubt. The
political elite of pre-independence Mauritius could not, to paraphrase
Judge Huber in the Island of Palmas decision, transfer more rights than it
possessed, and prior to independence it had no right under international
law to cede parts of Mauritian territory to another State, let alone to the
colonial power (which was exercising sovereignty over the territory prior
to independence, subject to its obligation to ensure decolonization in
R. Aldrich and J. Connell The Last Colonies (Cambridge: Cambridge University Press 1998)
82
181–2. Jugnauth even threatened (while holding the office of President in 2007) to with-
draw Mauritius from the Commonwealth in protest at the ‘barbarous’ treatment of the Ilois:
‘President’s threat over Chagos’ http://news.bbc.co.uk/1/hi/uk/6425675.stm, 7 March 2007.
It appears many of the Ilois blamed Ramgoolam for ‘stealing’ and ‘selling’ the islands: see
D. Vine Island of Shame: The Secret History of the US Military Base on Diego Garcia
(Princeton, NJ: Princeton University Press 2009) 167.
accordance with the principle of self-determination).83 The situation can
be contrasted with cases such as British Cameroons, Ruanda-Urundi, the
TTPI, and the GEIC (all dealt with below), where the justification for par-
tition appears to have been based on the wishes of the affected colonial
populations, as ascertained by UN visiting missions.
British attempts to present the fragmentation of Mauritius as a con-
sensual sale of territory may have been inspired by the widely unopposed
excision of the Cocos (Keeling) Islands and Christmas Island from the
Colony of Singapore in 1955 and 1957, respectively. This case will also be
discussed in detail below. For now, it is pertinent to note, by way of anal-
ogy with the Chagos Islands, that this alienation of territory entailed an
almost identical payment of £2.9 million from Australia (to which the ter-
ritories were transferred) to Singapore.84 The fragmentation of Singapore
was thus presented as a consensual sale, agreed to by the pre-independ-
ence Singaporean leadership, and it appeared to escape external criticism.
A distinguishing feature is that there was no attempt covertly to expel
the populations of the Cocos (Keeling) Islands or Christmas Island. In the
case of the former territory the population was offered a separate referen-
dum on self-determination, whereas in the latter case the administering
power maintained that the population of Christmas Island consisted of
‘non-indigenous’ contracted workers, and could not therefore be consid-
ered a people with the right of self-determination. In this sense, there may
be certain (albeit limited) parallels to be drawn between the treatment of
the Ilois and the population of Christmas Island, which will be examined
in the following section.
The absence of any General Assembly resolution on the question of
the Chagos Islands since 1967 has caused Allen to question whether this
implies international acceptance of British sovereignty over the territory.85
Against such speculation it should be noted that there remains significant
international support for the view that the excision of the Chagos Islands
was an illegal violation of Mauritian territorial integrity. In 1980 the OAU
83
2 UNRIAA (1928) 829, 842: ‘It is evident that Spain could not transfer more rights than she
herself possessed.’ The principle is sometimes expressed through the Latin maxim, nemo
dat quod non habet.
84
See (n 127) below. The payment to Singapore was ostensibly made as compensation for
loss of access to phosphate deposits, but the almost identical amount of money accepted by
Ramgoolam on behalf of Mauritius suggests that the case of Singapore may possibly have
served as a reference point in the negotiations.
85
S. Allen ‘Looking Beyond the Bancoult Cases: International Law and the Prospect of
Resettling the Chagos Islands’ 7 HRLR (2007) 441, 455.
demanded the return of Diego Garcia to Mauritius and stated that the US
military base was a threat to peace.86 The Non-Aligned Movement adopted
a Declaration in 1983 supporting Mauritian sovereignty over the Chagos
archipelago ‘which was detached from the territory of Mauritius by the
former colonial power in contravention of UN General Assembly resolu-
tions’. In 2001, the AU reiterated the ‘legitimate claim’ of Mauritius.87
While the grievances of the Ilois have been pursued on a private basis
in a variety of courts and tribunals, Mauritius has generally preferred to
pursue its claim to the territory of the Chagos Islands through negotia-
tions with the UK, rather than in the General Assembly or through judicial
avenues. However, in 2011, Mauritius initiated arbitration proceedings
against the UK under Art 287 and Annex VII of UNCLOS, challeng-
ing the designation by Britain of a marine protected area (MPA) around
the Chagos Islands.88 Mauritius argued inter alia that the UK was not the
‘coastal state’ under UNCLOS, and therefore that the UK was not entitled
to declare an MPA or other maritime zones around the Chagos Islands.89
The legal challenge came in the wake of a leaked confidential cable in which
the FCO’s Director for Overseas Territories expressed the view that build-
ing ‘the largest marine reserve in the world’ around the Chagos Islands
‘would, effectively, put paid to the resettlement claims of the archipelago’s
former residents’.90
The Tribunal refused jurisdiction on the ‘coastal state’ question, but it
found that the UK was under a binding obligation to return the Chagos
Archipelago to Mauritius when it was no longer required for defence
purposes, and that consequently Mauritius had ‘an interest in significant
decisions that bear upon the possible future uses of the Archipelago’.91 The
UK’s designation of the MPA without adequate consultation of Mauritius
was therefore deemed unlawful.
86
AHG/Res 99 (XXVII).
87
CM/Dec 26 (LXXIV) 2001.
88
Chagos Marine Protected Area Arbitration (Mauritius v. UK), Award, PCA (18 March
2015) MU-UK_20150318.
89
Ibid., para 7. On this point, see also the statement by the Prime Minister of
Mauritius to the National Assembly, 31 May 2011: www.gov.mu/portal/goc/pm/file/
StatementChagosMarineProtectionArea.pdf.
90
See www.telegraph.co.uk/news/wikileaks-files/london-wikileaks/8305246/HMG-FLOATS-
PROPOSAL-FOR-MARINE-RESERVE-COVERING-THE-CHAGOS-ARCHIPELAGO-
BRITISH-INDIAN-OCEAN-TERRITORY.html, para 7.
91
Chagos Marine Protected Area Arbitration (Mauritius v. UK), Award, PCA,
MU-UK_20150318, para 298.
In a forceful Concurring and Dissenting Opinion, judges Kateka and
Wolfrum went further than the Tribunal in their criticism of the UK. They
found that the pre-independence Mauritian government had only agreed
to the detachment of the Chagos Islands under duress, that the Mauritian
people had therefore not given ‘valid consent in the pre-independence
period to the excision of the Chagos Archipelago’, and that the UK had
‘shown a complete disregard for the territorial integrity of Mauritius’ and
‘violate[d] the standard of good faith’.92
After it was reported in late 2016 that the British government had
extended the lease over Diego Garcia for a further 20 years, Mauritius
began a concerted campaign in the General Assembly, which has just
culminated in the adoption on 22 June 2017 of Resolution 71/292, request-
ing an Advisory Opinion from the ICJ.93 The resolution, adopted by 94–15
with 65 abstentions, asks the Court to address the following questions:
(a) ‘Was the process of decolonization of Mauritius lawfully completed
when Mauritius was granted independence in 1968, following the
separation of the Chagos Archipelago from Mauritius and having
regard to international law, including obligations reflected in General
Assembly resolutions 1514(XV) of 14 December 1960, 2066 (XX) of
16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII)
of 19 December 1967?’;
(b) ‘What are the consequences under international law, including obli-
gations reflected in the above-mentioned resolutions, arising from
the continued administration by the United Kingdom of Great Britain
and Northern Ireland of the Chagos Archipelago, including with
respect to the inability of Mauritius to implement a programme for
the resettlement on the Chagos Archipelago of its nationals, in par-
ticular those of Chagossian origin?’.
The resolution thus presents the issue as multilateral in character,
engaging the competence of the General Assembly, rather than as a bilat-
eral sovereignty dispute, and for good reason: Britain will argue that the
ICJ’s advisory jurisdiction should not be used to resolve what is essentially
92
Chagos Marine Protected Area Arbitration (Mauritius v. UK), Dissenting and Concurring
Opinion of Judges Kateka and Wolfrum, PCA, MU-UK_20150318, paras 77 and 91.
93
H. Mance, ‘Extended US lease blocks Chagossians’ return home’, Financial Times (16
November 2016). The government simultaneously announced a compensation package of
£40m to be spent on projects supporting the Chagossians over the next decade. For a sum-
mary of the debate preceding the adoption of GA Res 71/292 of 22 June 2017, see UN Doc
GA 11924 (22 June 2017).
a bilateral dispute. If the ICJ decides nevertheless that it can properly opine
on the questions posed, the advisory opinion could be of considerable rel-
evance to the issues discussed in the present work.
Overall, the international treatment of the Chagos Islands, as well as
that of Mayotte and the Scattered Islands (Îles Éparses), suggests a pre-
occupation with the integrity of colonial territory as the cornerstone of
the decolonization process. The wishes and interests of minority popula-
tions (in the case of Mayotte and the Chagos Islands) appear to have been,
at most, an issue of secondary concern. These cases reinforce the notion,
developed in the previous chapter with reference to Katanga and West
Irian, that any attempt by the administering power to carve up a Non-Self-
Governing Territory, even when it has the support of the population of the
seceding sub-unit, will generally be deemed unacceptable by UN organs
and other international bodies.
The relatively muted international response to the detachment of the
Chagos Islands may also suggest that if the fragmentation of a Non-
Self-Governing Territory can be presented successfully as a ‘consensual’
arrangement, it may be more likely to meet with external approval, or at
least with apathy. Despite this, Britain’s attempts to portray the excision of
the Chagos Islands as a consensual arrangement have failed to persuade a
significant number of States. In any event, from the cases examined in the
following section, it would appear that ‘consensual’ fragmentation of a self-
determination unit is only permissible, exceptionally, in undisputed terri-
tories, usually after some attempt has been made to ascertain the wishes of
the affected colonial populations, and then only if the act of fragmentation
is deemed compatible with the maintenance of international order.
3.1.2 Accepted Departures from Uti

Possidetis in Exceptional Cases
In rare cases, the partition of a Non-Self-Governing Territory, or the alien-
ation of part of a Non-Self-Governing Territory, has been deemed permis-
sible (or even desirable) by the General Assembly. Justifications for these
departures from uti possidetis tend to centre on the consensual nature of
the arrangement in question, and/or on the need to maintain international
order.94 Even if some of the examples referred to below have generated
Shaw, for example, sees the situation in British Cameroons as being justified on the basis
94
of consent, and the situation in Ruanda-Urundi as justified on the basis of peace and
stability: ‘Peoples, Territorialism and Boundaries’ 3 EJIL (1997) 478, 493. According to
controversy, none of the Non-Self-Governing Territories in question were
the subject of an adverse claim at the time of decolonization. It is also note-
worthy that none of the cases involve decolonization outcomes that run
contrary to the wishes of the affected colonial population.95 Indeed, most
of the outcomes reflect a degree of sensitivity to the popular will in the
affected territory, with the exception of Christmas Island, a case that for
this reason merits somewhat closer scrutiny.
3.1.2.1 British Cameroons

In the case of British Cameroons, a UN visiting mission concluded that
a realistic approach to the question of the Territory’s future required that
it be considered in terms of two parts and two groups of peoples, north-
ern and southern. Their history and development had taken distinctly
different courses. There were now profound differences between them
both in administrative systems and in political attitudes and loyalties . . .
accordingly . . . the wishes of the northern and southern peoples of the
Territory should be considered separately.96
The General Assembly took the report of the visiting mission on board
and decided in 1959 that decolonization would take place in accordance
with two separate votes in the northern and southern parts of British
Cameroons.97 The northern part voted later that year to postpone a final
decision on decolonization.98 On 11 and 12 February 1961, referendums
Crawford (n 5) 336: ‘Only if the continued unity of the territory is clearly contrary to the
wishes of the people or to international peace and security will schemes for partition meet
with approval of United Nations organs’. As will be seen from the discussion below, parti-
tion has very occasionally been tacitly accepted within the UN, despite the inhabitants not
being consulted and in the absence of any obvious peace and security imperative (the exci-
sion of the Cocos (Keeling) Islands and Christmas Island from Singapore is the most clear
example of this – see p. 96 et seq. below). J. Dugard doubts that there is a peremptory norm
prohibiting the fragmentation of a Non-Self-Governing Territory, arguing that if there is
such a norm it is limited to territorial disruption that occurs ‘without the free consent of
the people of the unit’: Recognition and the United Nations (Cambridge: Grotius 1987) 162.
95
The same cannot be said regarding one prominent case of UN-approved partition that is
omitted from the present discussion – that of the British Mandate of Palestine. While it may
be fair to argue that partition was approved by the General Assembly in that case out of a
desire to avoid any threat to peace and stability (see GA Res 181(II), 29 November 1947,
and Shaw (n 92) 493), subsequent developments give rise to unique and complex issues
that will not be dealt with here. This is partly for reasons of economy, and partly because the
inclusion of a sui generis case will be of limited value in what is intended to be a systemic
overview of State practice.
96
UN Ybk (1959) 361.
97
GA Res 1350 (XIII), 13 May 1959.
98
Vote of 7 November 1959, UN Ybk (1959) 361.
were held under UN supervision in the northern and southern parts of
the territory. Northern Cameroons voted to integrate with Nigeria and
Southern Cameroons voted to integrate with the Republic of Cameroon
(a former French trust territory). Both votes were endorsed by the General
Assembly with the adoption of Resolution 1608 (XV) on 21 April 1961.99
The Republic of Cameroon objected to the manner of the territory’s
decolonization, and it initiated proceedings against the UK before the ICJ.100
It argued, inter alia, that the UK had breached the Trusteeship Agreement
by integrating the Northern Cameroons administratively with Nigeria
before the vote. This administrative union, the Republic of Cameroon
argued, had induced the population of the Northern Cameroons to vote
for union with Nigeria. In the event, the application was deemed inad-
missible on the basis that General Assembly Resolution 1608 (XV) had
disposed of the legal issues relating to the Trusteeship Agreement, and
therefore ‘no question of actual legal rights [was] involved’.101
3.1.2.2 Ruanda-Urundi
Ruanda-Urundi, a Belgian administered Trust territory, was described in
UN documents as ‘the most densely populated area in central Africa’.102 It
consisted of two parts, Rwanda and Burundi. The territory was perceived
within the UN, with some justification, as a potential site of destabilizing
ethnic conflict. A UN Trusteeship Council mission visiting the territory in
March 1960 reported inter alia on political developments in the territory,
and on ‘serious disturbances’ that had broken out between Tutsi and Hutu
groups in Rwanda.103
Various Commissions for Ruanda-Urundi were established by the
General Assembly and from the reports of these bodies there emerged ‘com-
pelling evidence of a strong feeling among the population that the separate
99
GA Res 1608 (XV), 21 April 1961; UN Ybk (1961) 494. The English version of the resolu-
tion refers to ‘[t]he people of the Northern Cameroons’ (para 2(a)), ‘[t]he people of the
Southern Cameroons’ (para 2(b)), and ‘the people of the two parts of the Trust Territory’
(para 3). The French version refers to ‘la population’ in paras 2(a) and (b)’, and ‘les popula-
tions’ in para 3. In the Northern Cameroons case the ICJ referred to ‘[t]he peoples of the
Northern Cameroons’ / ‘[l]es peuples du Cameroun septentrional’: Case concerning the
Northern Cameroons (Cameroon v UK), preliminary objections, Judgment of 2 December
1963 [1963] ICJ Rep 15, 24.
100
Case concerning the Northern Cameroons (Republic of Cameroun v UK), preliminary objec-
tions, Judgment of 2 December 1963 [1963] ICJ Rep 15.
101
Ibid., 37.
102
UN Ybk (1959) 352; UN Ybk (1961) 484.
103
UN Ybk (1961) 484.
personalities of Rwanda and Burundi should be respected’.104 Despite this,
by 23 February 1962 the General Assembly was still ‘[r]eaffirming its con-
viction that the best future of Ruanda-Urundi lies in the emergence of a
single State’.105 This position was reversed shortly thereafter. On 27 June
1962, the General Assembly – having taken note of failed efforts to main-
tain the unity of Ruanda-Urundi – voted in favour of allowing Rwanda and
Burundi to ‘emerge as two independent and sovereign States’.106
Cassese saw the case of Ruanda-Urundi (as well as that of British
Cameroons) as an example of the UN making ‘the principle of self-
determination prevail over that of territorial integrity’, adding: ‘it should
be underlined that the two territories at issue were even at the time of colo-
nization distinct and separate in many respects . . . [T]he setting up of one
independent State would have been blatantly contrary to the history and
wishes of the populations concerned’.107
3.1.2.3 The Trust Territory of the Pacific Islands

The TTPI was broken into four constituent parts, each of which took their
own path to decolonization. The TTPI consisted of some 2,100 islands (94
of which were inhabited) in three major archipelagos.108 The islands had
been held under a Japanese Mandate prior to 1947. On 2 April 1947,
Security Council Resolution 21 designated the islands as a ‘strategic area’
under Article 82 of the UN Charter and approved a Trusteeship Agreement,
which designated the United States as Administering Authority of the
Trust Territory.109
104
A. Cassese Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge
University Press ) 78. The report upon which the Assembly based its decision in Resolution
1746 (XVI), 27 June 1962, to allow Rwanda and Burundi to emerge as independent States
was prepared by the UN Commission for Ruanda-Urundi, appointed under paragraph 2 of
GA Res 1743 (XVI), 23 February 1962: Report of the UN Commission for Ruanda-Urundi,
UN Doc A/5126, second addendum to Agenda item 49 (30 May 1962).
105
GA Res 1743 (XVI), 23 February 1962.
106
GA Res 1746 (XVI), 27 June 1962, preamble and para 2.
107
Cassese (n 104) 78–9. On this analysis, the partition of British Cameroons and Ruanda-
Urundi might be seen as instances of uti possidetis de facto (as opposed to uti possidetis
juris) being applied. As regards the ‘wishes of the populations concerned’, it is worth noting
that an attempt to extend the right to vote in Northern Cameroons to women was rejected
in the General Assembly Fourth Committee on 12 March 1959: UN Ybk (1959) 363.
108
L. McKibben ‘The Political Relationship Between the United States and the Pacific Islands
Entities: The Path to Self-Government in the Northern Mariana Islands, Palau and Guam’
31 Harv Int’l L J (1990) 257, 258, fn 3.
109
SC Res 21 (1947), 2 April 1947. Article 82 designation turned out to be unique: see
Crawford (n 5) 567 and 581.
A significant step was taken towards self-government in the TTPI when
the US Secretary of the Interior established the Congress of Micronesia, a
local representative body for the territory, in 1964. Although the US gov-
ernment apparently had plans at the time to annex the TTPI, a Commission
established by the US Congress recommended that the islanders be given
the option of self-government through free association with the US or,
alternatively, independence.110 The Congress of Micronesia favoured the
free association option, but the population of one group of islands –
the Marianas – wanted a closer relationship with the US. The Marianas and
the US entered negotiations in 1972, which led to a ‘Covenant to Establish
a Commonwealth of the Northern Mariana Islands in Political Union with
the United States’.111
The fragmentation of the TTPI was opposed by the USSR, which
accused the US of ‘divide and conquer’ tactics.112 Despite this opposition,
the UN eventually oversaw and approved the division of the TTPI into
four parts. The Trusteeship Agreement for the TTPI was declared ter-
minated by the Security Council in 1994 after the Marshall Islands, the
Federated States of Micronesia and Palau had emerged, at different times,
as independent States and the political union between the United States
and the Northern Marianas had taken effect.113 Crawford observes that the
basis for these arrangements was that ‘the relevant populations clearly sup-
ported the proposed division’.114
3.1.2.4 The Gilbert and Ellice Islands Colony

Small island States also emerged after the partition in 1975 of the British-
administered GEIC in the Central Pacific. The Ellice Islands, with a pop-
ulation of only 7,000, became the independent State of Tuvalu in 1978.
The Gilbert Islands, with a population of 53,000, became the independ-
ent State of Kiribati in 1979. The partition came about principally as a
result of separatist demands in the Ellice Islands. The predominantly
Polynesian Ellice Islanders feared that decolonization as a single territo-
rial unit would condemn them to permanent minority status alongside
the predominantly Micronesian Gilbert Islanders, and undermine their
110
McKibben (n 108) 270.
111
Pub L No 94–241, 90 Stat 263 (1976), cited in McKibben (n 108) 272, fn 83.
112
Statement of the Permanent Mission of the USSR to the UN, UN Doc A/34/1009, S13147
(6 March 1979) 2, cited in McKibben (n 108) 271, fn 78.
113
See SC Res 956, 10 November 1994. The termination declared by this resolution occurred
after successive resolutions of the Trusteeship Council: see Crawford (n 5) 567.
114
Crawford (n 5) 337.
separate cultural identity.115 When the matter was discussed in the GEIC’s
Legislative Council in the early 1970s, representatives from the Gilbert
Islands ‘seemed to welcome the prospect of separation’.116
The British Foreign and Commonwealth Office initially dismissed the
suggested partition of the colony as ‘a financial, economic and administra-
tive nonsense’.117 However, it eventually came to acknowledge that an insist-
ence on GEIC decolonizing as one unit would probably provoke a unilateral
declaration of independence by the Ellice Islands. McIntyre argues that
Britain was keen to avoid such an occurrence after the ‘acute embarrassment’
of Rhodesia’s unilateral declaration of independence, and the secession of
Anguilla from the Caribbean Associate State of St Kitts-Nevis-Anguilla in
1965 and 1967 respectively.118 It would appear that Britain’s decision to parti-
tion the territory stemmed principally from a desire to preserve order and
stability, rather than from a desire to give effect to the wishes of the Ellice
Islanders to govern themselves. Britain faced a choice, in the words of a sen-
ior Foreign Office official, between ‘creating another mini colony or running
the risk of having to deal with a breakdown of law and order’.119
A referendum in the Ellice Islands in 1974, overwhelmingly in favour of
independence, was overseen by a UN visiting mission, which reported that
it was ‘essential that the outside world learnt more of the special difficulties
which confront small territories in their endeavors to take their place in
the modern world’.120 The Gilbert Islands achieved independence in 1979
as the Republic of Kiribati, although there was no separate referendum to
determine the wishes of the Gilbert Islanders prior to independence.
3.1.2.5 The Cocos (Keeling) Islands and Christmas Island

The Indian Ocean territories of Cocos (Keeling) Islands and Christmas
Island were administered for much of their history under British
115
W. D. McIntyre ‘The Partition of the Gilbert and Ellice Islands’ 7:1 Island Studies Journal
(2012) 135, 140; also B. Macdonald ‘Secession in the Defence of Identity’ 16:1 Pac Viewp
(1975) 26, 43, who argues that the preservation of cultural identity was the main factor
behind the Ellice Islanders’ drive for independence.
116
McIntyre (n 115) 140.
117
Comment of the Head of the Pacific Department of the FCO, cited by McIntyre (n 115)
143.
118
McIntyre (n 115) 136.
119
Comments of FCO Supervising Undersecretary for the Pacific, cited by McIntyre (ibid.)
143.
120
Report on Visiting Mission to Gilbert and Ellice Islands, 1974, FCO 32/984, cited in
McIntyre (n 115). The turnout was 88 per cent of the population, 3,799 (92 per cent) voting
in favour and 293 (8 per cent) against independence (ibid.).
administration as part of the Straits Settlement (which included the territo-
ries of Penang, Malacca, and Singapore), and then as part of the Colony of
Singapore.121 The manner of their excision from Singapore is of relevance to
the present section. Moreover, the differential treatment of the two island
territories during the decolonization process raises questions about the
definition of a ‘people’ as holder of a right to self-determination, and there-
fore ties in with some of the broader issues considered in this work.
The first settlement of the Cocos (Keeling) Islands was by an Englishman
named Alexander Hare and his harem of Malay women in 1826. The follow-
ing year there arrived a family headed by a Scotsman, John Clunies-Ross.
Clunies Ross soon seized control from Hare and went about establishing
a personal fiefdom on the remote atoll, employing Malay workers to har-
vest coconuts for copra production. Britain annexed the Cocos (Keeling)
Islands in 1857. Queen Victoria then granted a freehold over the land, by
indenture, in perpetuity to George Clunies-Ross (grandson of John) and
his heirs in 1886.122
In 1888, Britain annexed the hitherto unoccupied Christmas Island,
after surveys by British naturalist Dr John Murray revealed rich depos-
its of guano there.123 The first recorded settlement of Christmas Island
occurred later that same year, when members of the Clunies-Ross fam-
ily made the 900-km trip from the neighbouring Cocos (Keeling) Islands.
George Clunies-Ross and Murray began an operation to extract guano on
Christmas Island, and in 1891 they were granted a 99-year lease over the
island by Britain. A resident workforce consisting of 200 Chinese labour-
ers, eight European managers and five Sikh policemen was established on
Christmas Island in 1898 after the discovery of phosphate deposits.124
When the Straits Settlement ceased to exist in 1946, the Cocos (Keeling)
Islands and Christmas Island came to be administered as part of the
British Colony of Singapore.125 The administrative arrangements changed
121
For general historical background, see: M. Mowbray ‘The Cocos (Keeling) Islands: A Study
in Political and Social Change’ 51:3 Aust J Int Aff (1997) 383–97; E. T. Heng and V. L. Forbes
‘Christmas Island: Remote No More’ in Rumley et al. (eds.) Australia’s Arc of Instability: The
Political and Cultural Dynamics of Regional Security (Netherlands: Springer 2006) 69–82;
D. Goldsworthy ‘British Territories and Australian Mini-Imperialism in the 1950s’ 41:3
Aust J Politics and Hist (1995) 358.
122
Mowbray (n 121) 384.
123
Feature on Christmas Island by the Australian Broadcasting Corporation: www.abc.net
.au/nature/island/ep2/about4.htm.
124
Ibid.
125
Straits Settlement (Repeal) Order in Council 1946 (No 462); Singapore Colony Order in
Council 1946 (No 464).
yet again when the Cocos (Keeling) Islands and Christmas Island were
excised from Singapore and transferred by Britain to Australia in 1955
and 1958 respectively.126 These transfers do not appear to have met with
any external opposition, even though they were not formally approved
by the local government of the Colony of Singapore or by the islanders
themselves.127
It is noteworthy that the Cocos (Keeling) Islands were treated as a
Chapter XI Non-Self-Governing Territory after the transfer to Australia,
while Christmas Island was not. The final part of this section will consider
whether the differential treatment of the two territories can be rational-
ized on the basis that the population of the Cocos (Keeling) Islands was, at
the time of decolonization, a ‘people’ with the right of self-determination,
while the population of Christmas Island was not. This enquiry is intended
to shed light on the notion – alluded to by the ICJ in the Western Sahara
Opinion, and discussed in the previous chapter – that a consultation
of the inhabitants has been dispensed with by the General Assembly in
cases where the population ‘did not constitute a “people” entitled to
self-determination’.128
By the 1970s, Australian and UN officials were growing increasingly
critical of the ‘feudal’ nature of the relationship between the Clunies-Ross
dynasty and the Cocos Malay community, and successive UN visiting mis-
sions condemned the practice of paying workers in ‘unconvertible plastic
tokens’, which could only be redeemed at the Estate Store.129 In 1975, the
Clunies-Ross family was forced to sell its freehold to Australia, which had
threatened to acquire the land compulsorily.130
By 1976 the population of the Cocos (Keeling) Islands numbered 548,
and was comprised principally of descendants of the early nineteenth
century Malay and European settlers.131 According to Duursma, ‘[t]he
126
The following pieces of UK and Australian legislation effected the transfers: Cocos
(Keeling) Islands (Request and Consent) Act 1954 (Australia), Cocos Islands Act 1955
(UK); Christmas Island (Request and Consent) Act 1957 (Australia), Christmas Island Act
1958 (UK).
127
Despite the absence of formal consent from Singapore, a compensation package was nego-
tiated which led to Britain and Australia agreeing that the latter would pay £2.9 million to
Singapore to cover losses of revenue it could have expected to generate from phosphate
mining on Christmas Island: see Heng and Forbes n (121) 310.
128
129
See Mowbray (n 121) 383–7.
130
Ibid., 390.
131
UN Doc A/32/23/Rev.1 (1979) vol III, 5. Also J. Duursma Fragmentation and the
International Relations of Micro-States: Self-Determination and Statehood (Cambridge:
right of this population to self-determination was not questioned’ within
the UN.132 UN visiting missions were dispatched to the Cocos (Keeling)
Islands in 1974 and 1980, and a third mission supervised a referendum
on the islands in 1984, in which a substantial majority of the 261 eligible
voters opted for integration with Australia.133 By virtue of this vote, the
General Assembly proclaimed that ‘the people of the Territory have exer-
cised their right to self-determination’ in accordance with the Charter and
the Colonial Declaration, and that the transmission by Australia of infor-
mation in respect of the islands under Article 73e of the Charter should
cease.134
By contrast, the UN took little interest in the administration of Christ-
mas Island, and there was to be no exercise of a right to self-determination
there. The position of Australia at the time it took control of Christmas
Island is articulated in archival documents of the period:
As the Island has no indigenous inhabitants, it appears that, for the present
at least, the administrative arrangements will be determined solely by refer-
ence to the existence of the phosphate industry.135
This view does not appear to have been challenged by other States or
by the inhabitants of Christmas Island. Nevertheless, it was clear that
Australia saw the administration of the territory as more than merely a
matter of real estate management, with official concerns expressed behind
closed doors as to Australia’s ‘residual liability to the people who are settled
there’, once the wealth of the island has been ‘exhausted’.136
Cambridge University Press 1996) 50–51, who draws attention to the fact that, ‘though of
recent and mixed origin, the settlers of the Cocos (Keeling) Islands were the first people
to inhabit the territory’, and that ‘no other indigenous people had a relationship with the
territory’. It is unclear whether Duursma is implying that the existence of an earlier group
of settlers might have changed the complexion of the decolonization process, and if so, in
what way.
132
Ibid.
133
229 voters opted for integration, 22 for free association and 9 for independence. Clunies
Ross, it appears, favoured the independence option: see Mowbray (n 121) 391. GA Res
39/30, 5 December 1984, preamble and paras 1 and 2.
134
Ibid., paras 3 and 4.
135
‘Notes of conference between Australian and New Zealand governments, upon matters
of mutual interest relating to the future administration of Christmas Island, August 1957’
National Archives of Australia, Department of Territories, File No 57/2389, Digital Copy,
Barcode 444846, 79. See also the following summary contained under the heading ‘Foreign
Affairs, Defence and the Cocos Islands’: www.naa.gov.au/collection/explore/cabinet/by-
year/foreign-affairs-defence-coco-islands.aspx, which states that a self-determination ref-
erendum was not required ‘because there was no indigenous population’.
136
Conference notes (ibid.) 39.
Notwithstanding the characterization of the population of Christmas
Island as being ‘in fact’, ‘Singaporeans’ by a New Zealand official in a 1957
meeting (a characterization that went unchallenged by his Australian
counterparts),137 by the time Australia assumed control of the territory it
had come to accept that the presence of a permanent population might
need to be reflected in the administrative arrangements.
According to one Australian official:
although there are no indigenous people, we can not shut our eyes to the
possibility that there would be some people who are permanently set-
tled on the Island, and we will have a responsibility, after all resources are
exhausted, of doing something about it . . . 138
Interestingly, he went on to speculate that Australia would ‘probably have

to report on the Island as a non-self-governing territory’.139 That predic-
tion never materialized.
There are clear differences between the Christmas Islanders and the
permanent population of the Cocos (Keeling) Islands, the latter being well
established by the time the territory was excised from Singapore. Despite
the presence of a workforce on Christmas Island since 1898, and a popu-
lation at the time of World War II which numbered 1,400 (including 100
women and almost 200 children), permanent settlement of the territory
does not appear to have begun in earnest until 1948, when the mining
lease was taken over by the governments of Australia and New Zealand,
and more mine workers began to be joined by their families.140 The fact
that the Cocos Malay population of the Cocos (Keeling) Islands, despite
extensive intermarriages among the different ethnic groups on the islands,
could lay claim to being an oppressed majority also appears to have influ-
enced the findings of the UN visiting missions.141 However, such factors
do not appear to be relevant to Australia’s justification for treating the
137
See statement of Mr Tennent (ibid.) 27, and surrounding discussion.
138
See comments of Mr Marsh (ibid.) 63.
139
Ibid., 64.
140
See J. Hunt ‘Revolt on Christmas Island’ Canberra Times 12 March 2012, www.canberra-
times.com.au/entertainment/revolt-on-christmas-island-20120313-1uy5q.html. The arti-
cle reports that in December 1943 ‘almost two-thirds of the population were deported to
Java’ by Japanese occupying forces (the report does not say whether, and if so in what num-
bers, the deportees returned to Christmas Island). In the decade following 1948 there was
apparently an influx of workers from the Cocos (Keeling) Islands, Malaysia, and Singapore
who brought their families with them: see Australian Broadcasting Corporation feature on
Christmas Island (n 123).
141
territories differently. It was the administering power’s unverified socio-
logical assessment that the population of Christmas Island was not ‘indig-
enous’ that served as the justification for setting aside self-determination
in that territory.
It may have been easier to identify a principled justification for the
treatment of Christmas Island if the UN had taken some interest in the
territory and made an independent assessment of whether there was a
‘people’ with a right to self-determination there present. At any rate, inte-
gration with Australia does not appear to have run contrary to the popular
will on Christmas Island; the islanders, who today number around 1,500
Australian citizens of predominantly Chinese descent, voted in an unof-
ficial referendum in 1994 against a proposal to secede from Australia.142
The characterization of a population as ‘non-indigenous’, or in other
respects lacking roots in a given territory, as a justification for ignoring
their wishes in the decolonization process, is a feature of several of the
cases examined in this work. Such assessments are rarely (if ever) based on
the findings of a UN visiting mission, or some other independent inves-
tigation. Rather, they tend to be made by administering powers (in cases
such as the Chagos Islands and Christmas Island) or neighbouring claim-
ant States (in cases such as Gibraltar and the Falkland/Malvinas Islands),
whose interests will be advanced if the wishes of the affected population
are deemed to have no role in the decolonization process. There is rea-
son to be sceptical of such unverified statements of sociological fact, espe-
cially when – as in the case of the Chagos Islands – the population being
described lacks a voice on the international stage.
The exceptional cases discussed above demonstrate the malleability of
uti possidetis when there is no territorial dispute over a colonial territory.
The General Assembly appears prepared to oversee the fragmentation of
colonial territory for a host of reasons, usually deriving from a concern
for international order and stability coupled with a concern for reflect-
ing the will of distinct sub-sections of the colonial population. Indeed, in
cases such as British Cameroons, Ruanda-Urundi, and the GEIC, these
concerns arguably represent two sides of the same coin.
Less frequently, the approach of the General Assembly seems to stem
from apathy in the face of an administrative arrangement that appears
on its face to be consensual. This can be said to have been the case with
the excision of the Cocos (Keeling) Islands and Christmas Island from the
R. Green (ed.) Commonwealth Yearbook 2006 (London: Nexus 2006) 116.
142
Colony of Singapore, and the fate of the Chagos Islands is also sometimes
understood in this way, though this is debatable.143 In cases involving dis-
puted territories, pregnant with the possibility of international conflict,
the General Assembly appears much more narrowly concerned with
the integrity of colonial territory as an agent of international order, and the
very cornerstone of the decolonization process.
All the contentious cases examined in this section involve a complaint
by the aggrieved party that its territorial integrity is at stake during the
decolonization process. The cases examined in the following section
require a deeper historical perspective. They involve treaty-based claims
to colonial territories, grounded on the retention of residual territorial
sovereignty. In some instances, these territorial claims have provided a
valid basis for re-integrating the territory with the claimant State, notwith-
standing the wishes of the affected colonial population.
3.2 Irredentist Claims Based on Ties of Territorial

Sovereignty Evidenced by Treaty
In a small number of cases, the basis for an irredentist claim to a colonially
administered territory is an assertion that the claimant State retains terri-
torial sovereignty over the territory, and that this is evidenced by the terms
of a treaty between that State and the administering State. It would appear
that when such a claim is well founded, UN practice precludes the exercise
of self-determination by the inhabitants of the colonial territory. Such a
territory cannot be considered, even prima facie, to be a self-determina-
tion unit because it forms part of the ‘parent’ State. As such, any change
in the status of the territory without the consent of the parent State would
violate the territorial integrity of that State.
The case of the Panama Canal Zone, which involved a transfer of ter-
ritory for an undefined period that fell short of a cession, and the Hong
Kong New Territories, which involved a type of ‘lease’ arrangement,144
143
See pp. 87 above. Passing mention may also be made here of Heard Island and the McDonald
Islands – remote, unpopulated and uncontested territories in the Antarctic – the transfer
of which from the UK to Australia (effected in 1947 and confirmed by exchange of letters
in 1950) did not engage the interest of the UN, at least as far as Chapter XI of the Charter
was concerned.
144
According to J. R. Crawford Brownlie’s Principles of International Law (8th edn Oxford:
Oxford University Press 2012) 208, the term ‘lease’ in this context is ‘no more than a super-
ficial guide to the interest concerned: each case depends on its particular facts and espe-
cially on the precise terms of the grant’.
3.2 Irredentist Claims 103
are relatively straightforward examples of the genre. It is argued here that
they can be understood to fall within a standard normative framework
of decolonization, without resort to doctrines of exception. Beyond these
examples, it is difficult to find clear cases of the retention of legal ties of ter-
ritorial sovereignty evidenced by a treaty between a ‘parent’ State and the
administering State.
As will be seen, the treatment of the whole of Hong Kong (parts of which
were ceded in perpetuity rather than leased) is more difficult to ration-
alize in legal terms. The main attempt to do so is contained in China’s
‘unequal treaties’ doctrine. Despite the rhetorical force of this doctrine,
it will be argued that its legal validity is questionable. The case of Macau
raises similar issues, although the background to the treaty arrangements
confirming retention of Chinese territorial sovereignty is highly irregular.
The cases of Hong Kong and Macau also raise interesting questions about
the role of internal self-determination in the resolution of anomalous
colonial cases.
More complicated still is the case of Gibraltar, over which Spain claims
sovereignty, basing its arguments – in part – on the terms of its grant to
Britain. The final part of this section examines the argument that the ter-
ritorial grant in the Treaty of Utrecht fell short of a cession of territorial
sovereignty. It then examines the argument that the right of reversion in
favour of Spain contained in the grant precludes (according to Spain) or
curtails (according to the UK) the exercise of self-determination by the
inhabitants of the territory. It will be argued that the terms of the treaty
do not preclude the exercise of self-determination in Gibraltar, and that a
denial of self-determination in that territory can therefore only be ration-
alized, if at all, on the basis of some putative ‘special’ exception, of the type
that will be considered in Chapter 4.
3.2.1 The Panama Canal Zone

In 1846, the US recognized Colombian sovereignty over Panama in return
for an agreement by the Colombian government that a canal be built
across the Isthmus of Panama, connecting the Atlantic and Pacific Oceans.
Negotiations between the US and Colombia followed, leading to the con-
clusion of a draft treaty, which provided for a 100-year lease to the US over
a zone 10 kilometres wide. The draft treaty was rejected by the Colombian
Senate, and shortly thereafter there was a revolt of Panamanian national-
ists who in 1903 declared independence and succeeded, with US military
support, in overturning Colombian rule.
The US immediately recognized the independent Republic of Panama
and within two weeks the two States had concluded a treaty, which granted
the US
in perpetuity the use, occupation and control of a zone of land and land
underwater for the construction, maintenance, operation, sanitation and
protection of said Canal of the width of ten miles extending to the distance
of five miles on each side of the center line of the route of the Canal to be
constructed.145
Under Article III of the Treaty, the US was granted:

All the rights, power and authority within the zone mentioned and
described in article II . . . which the United States would possess and exer-
cise if it were the sovereign of the territory.
In return the US agreed to protect Panama’s independence, and agreed to

pay an annuity for the rights granted over the Canal.146
3.2.1.1 The Nature of the Grant

The declared positions of both States regarding the nature of the rights
conferred on the US under the 1903 Treaty were somewhat equivo-
cal. Different interpretations were asserted almost from the moment the
hastily drafted Treaty was concluded. In 1904 the Panamanian Foreign
Minister wrote to the US Secretary of State claiming that the two coun-
tries were exercising sovereignty over the Canal Zone ‘conjointly’.147 The
Secretary of State accepted Panama’s ‘titular sovereignty’ over the zone,
although he described such sovereignty as ‘nothing more than a ‘barren
145
US-Panama Convention for the Construction of a Ship Canal (signed 18 November 1903)
33 Stat 2234, TS 431, Art II. This instrument is also referred to as the Hay-Bunau-Varilla
Treaty. Mr Bunau-Varilla, a US-based Frenchman who had purchased the role of diplo-
matic representative of Panama in the US by offering financial assistance to the Panamanian
rebels, concluded the Treaty as the sole representative of Panama with US Secretary of State
Hay, before the arrival in the US of a team of Panamanian negotiators. Under the Treaty
the US agreed to buy out the bankrupt French Canal Company, whose interests Mr Bunau-
Varilla represented, for $40 million. See S. W. Meditz and D. M. Hanratty (eds.) Panama:
A Country Study (Washington, DC: GPO for the Library of Congress 1987).
146
US-Panama Convention (ibid.) Arts I and XIV. The subsequent Roosevelt-Arias Treaty
of 1936 did away with this guarantee, removed the right of the US to maintain order in
Panama and Colon, and provided for an increase in the annuity payable to Panama by the
US. The annuity was increased again under a further treaty in 1955: M. Arcari, ‘Panama
Canal’ MPEPIL Online, para 10.
147
Letter from Mr de Obaldía to Mr Hay (11 August 1904) Foreign Relations of the US:
Diplomatic Papers (1904) 598, 602.
scepter’.148 At any rate there appeared to be agreement between the two
governments that the 1903 Treaty did not effect a transfer of territorial
sovereignty of the Canal Zone to the US. The wording of Article III, which
confers certain rights that the US ‘would possess and exercise if it were the
sovereign’ (emphasis supplied) certainly suggests that something less than
a cession of territorial sovereignty was intended.
The view that there had been an effective cession of territory (which
has never been accepted by Panama) was advanced occasionally in the US
by public officials149 and once in the US Supreme Court,150 but it does not
appear to feature in any public pronouncements of the US government.
The approach of the US Supreme Court over the years might be seen as a
reflection of the general confusion surrounding the interpretation of the
1903 Treaty. That court has variously held that that Canal Zone ports are to
be considered as foreign ports (in 1930),151 that the Zone is ‘territory over
which we do not have sovereignty’ (in 1947),152 and that the 1903 Treaty
conferred ‘sovereignty’ on the US, without elaborating on the nature and
extent of the ‘sovereignty’ conferred (in 1986).153
The consensus among commentators appears to be that the rights
conferred by Panama on the US under the 1903 Treaty cannot be con-
strued as a cession of territorial sovereignty.154 It has been noted that if
such a cession had been intended, the language of the Treaty would surely
have reflected this, as it did in the respective treaties under which the US
acquired Louisiana and Alaska.155 In Brownlie’s view a grant such as that
148
Letter from Mr Hay to Mr de Obaldía (24 October 1904) Foreign Relations of the US:
Diplomatic Papers (1904) 613, 615.
149
See e.g. statement of General Thomas A Lane (rtd) quoted by Representative Flood, assert-
ing that the Canal Zone ‘is US territory, not Panamanian territory’: 121 Cong Rec H3114
(daily edn 22 April 1975) cited in C. A. Lopez Guevara, ‘Negotiating a Peaceful Solution to
the Panama Canal Question’ 9:3 NYJILP (1976–7) 6, fn 11.
150
Wilson v. Shaw 204 US 24 (1906) where the Court stated (at 32) that the 1903 Treaty had
the effect of ‘ceding the Canal Zone’.
151
Luckenbach SS Co v. United States 280 US 173 (1930).
152
Vermilya-Brown v. Connell 335 US 377, 385 (1948).
153
O’Connor v. United States 479 US 27, 28 (1986).
154
R. Y. Jennings contends that a transfer of territorial sovereignty entails ‘the renunciation
made by one State in favour of another of the rights and title which the former may have
to the territory in question’: The Acquisition of Territory in International Law (Manchester:
Manchester University Press 1963) 16, fn 2.
155
Convention Ceding Alaska between Russia and the United States (1867) 134 CTS 332
(signed 30 March 1867); Louisiana Purchase Treaty (1803) 7 Bevans 812 (signed 30 April
1803). For discussion see Lopez Guevara (n 149) 7. Also, Arcari (n 146) para 14. Even if
one accepts that the 1903 Treaty is ambiguous on the question of territorial sovereignty,
contained in the 1903 Treaty, which was for an indefinite term, cannot be
terminated by the grantor State, but ‘the grantee’s right rests on an agree-
ment and would be defeated by a disposition of the residual sovereignty to
a third state in regard to which the grant was res inter alios acta’ (a thing
done between others).156
3.2.1.2 The ‘Listing’, and Subsequent ‘Delisting’,

of the Zone as a Non-Self-Governing Territory
under Chapter XI of the Charter
In 1946, the US undertook to transmit information to the UN on the
Panama Canal Zone, as a territory under its administration, pursuant to
Article 73e of the UN Charter. The circumstances leading to this move and
the territory’s removal from the list of Non-Self-Governing Territories a
year later merit some attention.157
US State Department records from the period reveal deep divisions
among US officials on the issue of whether a report should be made under
Chapter XI of the UN Charter.158 Tensions were not eased by contradictory
legal advice received from government lawyers. One legal adviser opined
that the position that Chapter XI ‘applies to any territories administered by
a Member of the United Nations which do not enjoy the same measure of
self-government as the metropolitan area of that Member – including, in
the case of the United States, the Canal Zone – is a legally permissible posi-
tion under the interpretation of Chapter XI’.159 Another adviser expressed
the view that a report should not be made to the UN on the grounds that
(a) the inhabitants of the Zone were ‘not a homogenous people’; (b) Panama
had retained ‘(though inactive) some residue of power in the Zone, difficult
to define’; and (c) US defence commitments in the Zone prevented it from
assuming the obligations contained in Article 73e of the Charter.160
it is arguable that the Treaty should be interpreted contra proferentem (that is to say, any
ambiguity must be construed against the benefiting party): see H. Lauterpacht ‘Restrictive
Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’ 26 BYIL
(1949) 56.
156
I. Brownlie Principles of International Law (7th edn Oxford: Oxford University Press 2008)
112. Compare Crawford’s 8th edn (n 144) 208.
157
A table with details of the dates that Non-Self-Governing and Trust Territories were del-
isted and the reasons for delisting (independence, ‘change in status’, etc.) can be viewed at:
www.un.org/en/decolonization/nonselfgov.shtml.
158
These records have been analysed in detail by J. Major in ‘ “Pro Mundo Beneficio”? The
Panama Canal Zone as an International Issue’ 9:1 Rev Int Stud (1983) 17–34.
159
Ibid., 27.
160
Ibid.
Eventually, the US administration decided that a report would be filed
with the UN, but that if Panama should object to this the US would respond
in conciliatory fashion, stating that the action was ‘in no way a reflection
of Panamanian sovereignty over the Canal Zone and in no way indicates
any intention on our part to foster or anticipate independence of the Canal
Zone’.161 Panama did indeed protest before the UN. Foreign Minister
Alfaro argued before the General Assembly’s Trusteeship Committee on
14 November 1946 that ‘Panama retained its sovereignty over the Zone,
that the Zone was not a possession of the United States, and that it con-
tained no inhabitants seeking independence’.162
As it happened, the only ‘report’ that had been made by the US to the
UN under Article 73e was the annual report of the Governor of the Canal
for the fiscal year 1945.163 A similar draft report was prepared for the fol-
lowing year, but it was never sent to the UN.164 The US removed the Canal
Zone from its list of dependencies in 1947 and made no further reports on
the territory to the UN.
It should be borne in mind that these events took place over a decade
before the Colonial Declaration was adopted in 1960. However, even
during the early development of decolonization norms, when the scope
of Chapter XI was still a matter of some uncertainty (as the legal advice
received by the US government appears to demonstrate), the prevailing
view seems to have been that the Canal Zone did not meet the criteria for
UN-supervised decolonization in accordance with the wishes of the terri-
tory’s population.
The principal basis for the Canal Zone’s exclusion from the ambit of
Chapter XI of the Charter appears to be that Panama retained territorial
sovereignty over the Zone even while it was under US control. The fact
that this was evidenced by the wording of the 1903 Treaty and the declared
positions of both States following the conclusion of that treaty, coupled
with the absence of a distinctive population on the territory (save for the
presence of thousands of canal workers of various nationalities), makes
for a fairly uncontroversial case. Even if the Zone had contained a distinc-
tive population desirous of independence (which apparently, it did not),
for it to be placed on a UN-supervised path to self-determination and
possible independence in accordance with the wishes of that population
161

Ibid., 28.
162

Ibid.
163

Ibid.
164

Ibid., 31.
would, in all likelihood, have been considered internationally to be an
unacceptable violation of Panama’s territorial integrity. To put it in the
sort of language employed in the Western Sahara Opinion, the ‘legal ties
of territorial sovereignty’ that existed between Panama and the Canal
Zone were of the sort that would trump any hypothetically claimed right
to ‘decolonization’ in accordance with the wishes of the inhabitants of the
Zone. This was true regardless of the vaguely understood, residual nature
of Panamanian sovereignty over the Zone between 1903 and 1977, the
year that a supervening treaty was concluded between the parties. That
treaty stated unequivocally that Panama was the ‘territorial sovereign’, and
provided for a gradual transfer of the Canal Zone back to Panama, which
assumed full control over the Canal, pursuant to the terms of the Treaty, on
31 December 1999.165
The case of the Hong Kong New Territories provides a clearer example
of residual territorial sovereignty evidenced by treaty. However, rational-
izing the treatment of Hong Kong as a whole (comprising the ceded ter-
ritories of Hong Kong Island and the Kowloon Peninsula, as well as the
leased New Territories) is more difficult, and will require a consideration
of China’s ‘unequal treaties’ doctrine as a possible rationalization for the
reintegration of the whole territory with China in 1997. Explanations
based on practical political considerations will also be considered.
3.2.2 Hong Kong

British attempts to introduce opium into China in the nineteenth cen-
tury resulted in the Opium Wars of 1839–42 and 1856–60. After Britain
prevailed in the first Opium War, the terms of settlement in the Treaty of
Nanking 1842 provided inter alia for the cession of Hong Kong Island by
China to the British Crown in perpetuity.166 Following the Second Opium
War, China was forced into ceding part of the Kowloon Peninsula as well
as Stonecutters Island in perpetuity to Britain under the Convention of
Peking 1860.167
A second Convention of Peking, entered into in 1898, provided for a
99-year lease to Britain of the remainder of Kowloon and the so-called
165
Panama Canal Treaty (signed 7 September 1977) 16 ILM 1022.
166
Treaty between China and Great Britain Signed at Nanking (29 August 1842) 93 CTS 467.
167
Convention of Friendship between China and Great Britain Signed at Peking (24 October
1860) 123 CTS 73.
New Territories that comprised the hinterland to the north of Kowloon as
well as various outlying islands.168
3.2.2.1 The ‘Mixed’ Nature of Britain’s Territorial

Rights over Hong Kong in International Law
Despite the clear wording of the 1898 Convention, which explicitly refers
to a ‘lease’ over the New Territories, Britain was keen to create the impres-
sion that the New Territories had effectively been ceded rather than leased.
Soon after the conclusion of the 1898 Convention, Britain passed an Order
in Council stating that the New Territories were ‘part and parcel of Her
Majesty’s Colony of Hong Kong in like manner and for all intents and pur-
poses as if they had originally formed part of the said Colony’.169 Through
this act of municipal law, all the territories came to be administered as one
under British rule, and no distinction was made between the inhabitants
of the New Territories and those of the ceded colony; all were regarded
by the UK as British subjects.170 However, the international legal position,
confirmed by the Chief Justice of Hong Kong in an 1899 case, was that ‘the
Crown has only a limited or qualified Sovereignty in the leased District.’171
China clearly retained residual territorial sovereignty over the New
Territories, and indeed this sovereignty extended beyond a mere right of
reversion after 99 years; for instance, Chinese war ships were permitted,
‘though reluctantly and partially’, to use the waters of the bays in accord-
ance with the terms of the 1898 Convention.172
China’s residual territorial sovereignty over the New Territories, which
comprised about 92 per cent of the landmass of British Hong Kong, is argu-
ably more clearly established under the 1898 Treaty than Panama’s territo-
rial sovereignty over the Canal Zone under its 1903 Treaty with the US. The
reference to a ‘lease’ for a fixed term (in the case of the New Territories) lays a
heavier emphasis on the reversionary interest than the grant ‘in perpetuity’ of
the ‘use, occupation and control of a zone of land’ (in the case of the Panama
Canal Zone). However, the fact that the whole of Hong Kong, incorporating
168
Convention between China and Great Britain respecting an Extension of Hong Kong
Territory, signed at Peking (9 June 1898) 186 CTS 310.
169
The New Territories Order in Council, 20 October 1898, Laws of Hong Kong (1964 edn)
App IV at J1-2 para 1. The text of the Order in Council is reproduced in P. Wesley-Smith
Unequal Treaty 1898–1997: China, Great Britain and Hong Kong’s New Territories (Hong
Kong: Oxford University Press 1998) 322.
170
Wesley-Smith (n 169) 211.
171
Chau Kwai-chiu & another v. Wong Shin (1900) 9 CILC 298.
172
the ceded as well as the leased areas, was ‘handed over’ (or ‘returned’, depend-
ing on whether one prefers the British or Chinese terminology) when the
lease over the New Territories expired on 1 July 1997 means that the case
cannot be viewed as a straightforward reversion under a lease.
Another factor distinguishing the cases of Hong Kong and the Panama
Canal Zone was the presence in Hong Kong of a large population with a
distinctive culture. There were some 6.5 million people in Hong Kong at the
time of the handover. Although they were mainly of Chinese origin, most
were resistant to the notion that the territory should be absorbed by China.173
3.2.2.2 The ‘Delisting’ of Hong Kong as a Non-Self-

Governing Territory under Chapter XI of the UN Charter,
as a Prelude to the Sino-British Joint Declaration of 1984
From 1946, British Hong Kong was listed as a Chapter XI Non-Self-
Governing Territory, the UK making annual reports to the UN pursuant
to Article 73e of the Charter. Despite this, neither the UK nor China ever
considered that Hong Kong might realistically be decolonized in accord-
ance with the principle of self-determination. In 1965, seven years before
the delisting of Hong Kong, officials in the British Colonial Office were
privately admitting that, in light of Chinese claims for the return of the
whole of Hong Kong,
[t]here is no alternative to the present status of Hong Kong other than its
return to China . . . To assert a right of self-determination by the people of
Hong Kong (part of which is leased territory) would precipitate a situation
which Communist China could not tolerate and which might well lead to
the use of force against the Colony.174
In 1971, steps were also taken by the British authorities to guard against
mass emigration to the UK by ethnic Chinese Hong Kong British Subjects.
These culminated in the passage of a new Immigration Act, which came
into force on 28 October 1971.175
173
A 1982 poll of Hong Kong residents showed that 95 per cent wished to retain the status
quo, while only 26 per cent ‘thought a return to China was acceptable’: see J. Y. S. Cheng
(ed.) Hong Kong – In Search of a Future (1984) 14, cited in J. W. Head ‘Selling Hong Kong
to China: What Happened to the Right of Self-Determination’ 46 Kan L R (1998) 283, 296,
fn 60.
174
‘Position of British Dependent Territories in relation to International Agreements on
Human Rights’ (confidential Colonial Office paper, undated but 1965) para 30: PRO CO
1030/1704, cited in Wesley-Smith (n 169) 252, fn 150.
175
See the UK Immigration Act 1971, and the discussion of the same in P. Malanczuk ‘Hong
Kong’ MPEPIL Online, para 32.
Three days earlier, following a thaw in Sino-US relations, the People’s
Republic of China had taken the seat previously occupied by Taiwan at the
UN and the Security Council.176 On 8 March 1972, the Special Committee
received a letter from the Chinese government, stating that
the questions of Hong Kong and Macau belong to the category of questions
resulting from the series of unequal treaties left over by history, treaties
which the imperialists imposed on China. Hong Kong and Macau are part
of Chinese territory occupied by the British and Portuguese authorities.
The settlement of the questions of Hong Kong and Macau is entirely within
China’s sovereign right and does not at all fall under the ordinary category
of ‘colonial territories’.177
The Special Committee referred the matter to a Working Group within

the Committee. Upon consideration of the Chinese letter, the Working
Group recommended that ‘the Special Committee should recommend to
the General Assembly that Hong Kong and Macau and dependencies be
excluded from the list of Territories to which the Declaration is applicable’.178
In the same session the Working Group had recommended that the question
of Puerto Rico be discussed at a plenary meeting of the Committee to enable
wider participation, and that its consideration of the question of the Comoros
Archipelago should be deferred until a study of the views of the affected peo-
ple had been carried out.179 The decisive tone of the Working Group’s recom-
mendation on Hong Kong and Macau, and the implicit dispensing with any
effort to consult more widely or ascertain the views of the inhabitants of the
territories, stands out in this context.
The Special Committee adopted the recommendation of the Working
Group with some reservations, but no formal objections.180 The Special
Committee’s report was in turn adopted by the General Assembly on 2
November 1972 (see GA Res 2908 (XXVII)).181 A few weeks later the UK
informed the Secretary General that it would not continue to transmit
information on the territories under Article 73e of the Charter, but that
176
See GA Res 2758 (XXVI), 25 Oct 1971.
177
UN Ybk (1972) 543.
178
UN Doc A/AC.109/L.975 (1972) 1–2. Macau is dealt with separately in the next sub-section.
179
Ibid., at 2.
180
Record of the 873rd Meeting of the Special Committee, UN Doc A/AC.109/PV.873 (1972),
especially at 16–20 for the reservations expressed by the representatives of Fiji, Sweden,
and Venezuela. The latter was of the view that the question should have been referred to
the General Assembly for a substantive decision without any need for a recommendation
from the Special Committee.
181
UN Ybk (1972) 625.
its views on the status of the territories remained unchanged.182 The path
was thus paved for a return of those territories to China, outside the scope
of UN-supervised decolonization, and without a consultation of their
populations.
British Prime Minister Margaret Thatcher met Chinese President Deng
Xioaping in Beijing in September 1982, shortly after the UK had prevailed
in the military conflict with Argentina over the Falkland/Malvinas Islands.
Thatcher proposed a transfer of sovereignty over the whole of Hong Kong
to China in return for a continued right to administer the territory, but
this was rejected by Deng, who would accept nothing but the return of
the whole territory to China, allegedly telling Thatcher, ‘I could send the
troops in this afternoon if you didn’t agree’.183 Deng then raised the pos-
sibility of the ‘one country two systems’ model that was eventually to
become the basis of the Sino-British Joint Declaration that would regulate
the handover of Hong Kong and its political future under Chinese rule.184
Article 1 of the Sino-British Joint Declaration of 1984 provides that
China ‘has decided to resume the exercise of sovereignty over the whole of
Hong Kong’, while Article 2 provides a declaration from the UK that it will
‘restore Hong Kong’ to China on 1 July 1997.185 Article 3(12) of the Joint
Declaration provides ‘that Hong Kong’s capitalist system and lifestyle shall
remain unchanged for 50 years’ after the handover. Article 3(1) makes
Hong Kong into a ‘Special Administrative Region’ of China, and Article
3(2) provides that the Hong Kong Government is to enjoy a ‘high degree
of autonomy, except in foreign and defence affairs’. The Joint Declaration
seems to reflect a degree of concern for the population of Hong Kong that
arguably extends beyond the desire of both States parties to ensure the
continued economic flourishing of Hong Kong as a finance centre; it pro-
vides, for instance, for the maintenance of the rights and freedoms enjoyed
by the inhabitants of Hong Kong under British rule, including
freedom of the person, of speech, of the press, of assembly, of associa-
tion, to form and join trade unions, of travel, of movement, of strike, of
182
UN Ybk (1972) 626.
183
Thatcher is reported to have confirmed this at the time of the handover: South China
Morning Post 30 June 1997, cited in Wesley-Smith (n 169) 297, 311, fn 120.
184
Malanczuk (n 175) para 35.
185
Joint Declaration of the Government of the United Kingdom of Great Britain and Northern
Island and the Government of the People’s Republic of China, on the Question of Hong
Kong, initialled at Peking (26 September 1984) 23 ILM 1371.
demonstration, of choice of occupation, of academic research, of belief,
inviolability of the home, freedom to marry and the right to raise a family
freely.186
The Joint Declaration is also notable for the absence of any reference to
the concept of ‘unequal treaties’, upon which China founded its claim to the
return of Hong Kong. If valid, the ‘unequal treaties’ argument would pro-
vide a complete rational justification for the treatment of the ceded as well as
the leased parts of Hong Kong. It therefore requires consideration.
3.2.2.3 The ‘Unequal Treaties’ Doctrine

Early arguments about unequal treaties generally were advanced by the
Soviet Union, which contended that ‘all agreements under international
law that have been forced upon a State, or agreements that are of an
“enslaving” nature, as well as those that disregard the principle of equality,
are without any effect under international law’.187
The Chinese approach to unequal treaties, which China applied in rela-
tion to Hong Kong (as well as Macau), is summarized by Wang Tieya:
‘The PRC considers that unequal treaties are null and void ab initio, but
in the special cases involving territorial questions, [the] status quo will
be preserved until the settlement in an appropriate way through peaceful
negotiations.’188
China’s insistence on the unequal treaties doctrine as a basis for the
return of Hong Kong was not merely a justificatory device for the return
of the ceded part of the territory upon the expiry of the lease over the New
Territories. As far as China was concerned it also rendered the 1898 lease
agreement void ab initio. According to Chinese communist doctrine, sov-
ereignty is ‘inalienable and indivisible’.189 That position is inconsistent with
the notion that the UK could legally exercise effective control over Chinese
territory, even as a mere lessee.190 The position of the PRC was therefore
that the New Territories, just like Hong Kong and the Kowloon Peninsula,
were ‘occupied Chinese territory’ and the treaties purporting to govern the
status of the territories were unequal (and therefore void).191
186
Ibid., Art 13, Annex 1.
187
I. Detter ‘The Problem of Unequal Treaties’ 15 ICLQ (1966) 1069, 1082.
188
W. Tieya ‘Unequal Treaties and China: A Note’, Conference Paper (1995), cited in Wesley-
Smith (n 169) 300, fn 145.
189
190
Ibid.
191
Ibid.
It is helpful to consider the development of China’s position on unequal
treaties in historical context. China was forced into concluding hundreds
of such treaties with western powers, particularly during the second half of
the nineteenth century. Ghai observes that
[t]he legal doctrine of unequal treaties reflects profound resentment of an
unequal world, where under the hegemony of Western imperialism many
parts of the world have been subjugated and plundered in total disregard
of norms of equity, fairness and civilized conduct. China feels particularly
humiliated at its treatment by European powers (particularly Britain) in
the nineteenth and twentieth centuries.192
The doctrine does not fare well when subjected to a formalistic legal analy-
sis, largely because it is difficult to reconcile it with the principle of pacta
sunt servanda, a cardinal principle of international law under which ‘[e]
very treaty in force is binding upon the parties to it and must be performed
in good faith’.193 Advocates of the ‘unequal treaties’ doctrine who are pre-
pared to engage with this sort of analysis would contend that an ‘unequal
treaty’ which is void ab initio is no treaty, and that therefore the doctrine is
compatible with the principle of pacta sunt servanda.194 A more common
contention among Chinese commentators is that the sort of formalistic
analysis referred to above is itself part of the problem, and that positive
international law serves as a legitimizing tool of imperialism or, more col-
ourfully, that it is the ‘law of bandits’.195 Anghie sympathizes with this sen-
timent, but at the same time notes that ‘it is difficult to find an example of
any of the unequal colonial treaties being set aside on the basis that it was
obtained by force’.196
The lack of operational evidence for the doctrine can perhaps be
explained by reference to some basic aspects of the international system.
States tend to be reluctant to give up parts of their territory voluntarily.
Before the threat or use of force was prohibited under the UN Charter, it
was quite usual for a State to be forced into granting territory to another
State. No set of customary principles has emerged under which it is
192
Y. Ghai Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and
the Basic Law (2nd edn Hong Kong: Hong Kong University Press 1999) 12.
193
VCLT Art 26.
194
Chen Tiqiang ‘The People’s Republic of China and Public International Law’ 8 Dalhousie
LJ (1984) 3, 29.
195
L. A. Castle, ‘Reversion of Hong Kong to China: Legal and Practical Questions’ 21
Willamette LR (1985) 327, 331.
196
A. Anghie Imperialism, Sovereignty and the Making of International Law (Cambridge:
Cambridge University Press 2005) 73, fn 121, and more generally at 72–4, 85–6 and 241.
possible to identify types of inequality that would justify the treatment of a
treaty establishing an international boundary as void or voidable.197 When
one considers the likely consequences of a general application of a loosely
framed ‘unequal treaties’ doctrine, in terms of the stability of territorial
boundaries and international relations generally, it is perhaps unsurpris-
ing that few States support the doctrine explicitly.
The modern international consensus is reflected in the Vienna
Convention on the Law of Treaties 1969 which, it should be noted, does
not apply to treaties concluded before it entered into force, although its
terms reflect pre-existing principles of customary international law.198
Article 52 states that a treaty is void if procured by the threat or use of
force.199 However, the Vienna Convention makes no mention of ‘unequal
treaties’.
It has been pointed out that the Sino-British Convention of 1984, under
which the UK handed over Hong Kong in the face of Chinese threats of
force, and acquired nothing in return, might qualify as an unequal treaty
if the Chinese doctrine were taken to its logical conclusion, and that
this absurdity ‘serves to deny any utility to the doctrine in international
law’.200 The absence of any mention of unequal treaties in the Sino-British
Declaration, and the agreement to effect the handover on the precise day
appointed under the lease in the 1898 Convention, suggests that even
China may be wary of the doctrine’s potential to disrupt international
order, and may be content for its invocation to remain at a rhetorical,
rather than an operational, level.201
A related argument that has been advanced by China, and that must
be dealt with here for the sake of completeness, is the argument based on
clausula rebus sic stantibus: a fundamental change of circumstances as a
basis for termination or withdrawal from a treaty.202 The change of circum-
stances that is alleged is that the People’s Republic of China has a radically
197
For a discussion of this point see Detter (n 187) 1069.
198
VCLT Art 4.
199
The ICJ has held in this context that ‘force’ must be military force: Fisheries Jurisdiction
(UK v Iceland) ICJ Rep [1974] 3.
200
Wesley-Smith (n 169) 317 and 319, fn 8.
201
The PRC’s rhetoric concerning ‘unequal treaties’ could be seen to fit within its broader
tendency to assert ‘the priority of just change over order’, discussed by H. Bull in The
Anarchical Society: A Study of Order in World Politics (3rd edn Basingstoke: Palgrave 2002)
300–3.
202
See H. Chiu The People’s Republic of China and the Law of Treaties (Cambridge, MA:
Harvard University Press 1972) 101–10.
different class system from the China that concluded the unequal treaties
on the status of Hong Kong.203 Historically, there has been a lack of con-
sensus on the customary character of the clausula principle. The principle
was nevertheless enshrined in Article 62 of the Vienna Convention on the
Law of Treaties 1969 as a ground for terminating or withdrawing from a
treaty when a number of conditions are met. According to Article 62(1):
A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not
foreseen by the parties, may not be invoked as a ground for terminating or
withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of
the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obliga-
tions still to be performed under the treaty.204
It is important to note for present purposes that Article 62(2)(a) excludes

the application of the principle in the case of treaties establishing a bound-
ary. Moreover, the ICJ has held that the termination of a treaty establishing
a boundary is without prejudice to the boundary itself.205 Even if China
could establish under customary law that the relevant criteria for a fun-
damental change of circumstances are satisfied (the Vienna Convention
being inapplicable due to its non-retroactivity, as noted above) it is dif-
ficult to see how the clausula principle could have been brought to bear on
the territorial status quo in Hong Kong.According to Putney the problems
generated by unequal treaties, and their solutions, are essentially political
rather than legal: ‘a large country will only consent to any unequal treaty
which really means a loss of a distinct part of her sovereignty just so long as
she is unable and does not have the strength to abrogate it.’206 Those words,
written in 1927, might be viewed as a prescient forecast of what lay in store
for Hong Kong, but only up to a point. China’s respect for the status quo
regarding the lease over the New Territories suggests that legal principles
203
H. Chiu ‘Comparison of the Nationalist and Communist Chinese Views of Unequal
Treaties’ in J. A. Cohen (ed.) China’s Practice of International Law: Some Case Studies
(Cambridge, MA: Harvard University Press 1972) 239, 267. Also, on the relationship
between the clausula rebus sic stantibus and the ‘unequal treaties’ doctrine, see A. Peters
‘Unequal Treaties’ MPEPIL Online, paras 56–8.
204
For a detailed discussion of the principle, see W. Heintshel von Heinneg ‘Treaties,
Fundamental Change of Circumstances’ MPEPIL Online, para 1.
205
Territorial Dispute Case (Libyan Arab Jamahiriya v Chad) [1994] ICJ Rep 6, para 73.
206
A. H. Putney ‘The Termination of Unequal Treaties’ 21 Proc Am Soc Int L (1927) 87, 90.
were influencing behaviour at some level, despite China’s official denial of
the UK’s de jure rights over the leased territory.
3.2.2.4 The Denial of Self-Determination

It has been argued elsewhere that the manner of Hong Kong’s de-list-
ing and subsequent transfer to China was ‘a denial of due process’, and
that it was ‘the responsibility of the international community through
the United Nations to assure the people of Hong Kong their right under the
United Nations Charter and the Declaration on Granting Independence to
freely determine their political status and freely pursue their economic,
social and cultural development’.207 The same commentator relies on Judge
Dillard’s ‘it is for the people to determine the destiny of the territory’ dic-
tum in his Separate Opinion in the Western Sahara case in support of the
proposition that the people of Hong Kong has been denied its right to
As explained at the beginning of this chapter, Judge Dillard’s dictum was
clearly not intended to apply to every population with a claim to deter-
mine the destiny of the territory it inhabits. By the time of Hong Kong’s
‘de-listing’ the law of colonial self-determination had already developed
into a restrictively applied norm, the scope of which was strictly limited
by the principle of territorial integrity. Regardless of its distinctive charac-
ter, the population of Hong Kong could no more be considered a ‘people’
with the right to self-determination than the population of Mayotte. Hong
Kong was not deemed, at the time of the transfer to China, to be a prima
facie self-determination unit.
The approach of the international community to the question of Hong
Kong demonstrates that there was little support at the time of Hong Kong’s
de-listing for the idea that States had a responsibility to ensure that Hong
Kong was decolonized in accordance with the free wishes of its population.
On the contrary, international acquiescence to the handover suggests that
there was broad support for the notion that China, as the undisputed ter-
ritorial sovereign of 92 per cent of the territory, had a right to the return of
the territory. To this extent the case of Hong Kong, despite its anomalous
characteristics, can be rationalized according to a conventional account of
how the principle of territorial integrity – as reflected in paragraph 6 of the
207
P. Dagati ‘Hong Kong’s Lost Right to Self-Determination: A Denial of Due Process in the
United Nations’ 13 NYL Sch JICL (1992) 153, 175.
208
Colonial Declaration – circumscribes the scope of self-determination in a
colonial context.
As for the problematic 8 per cent of ceded territory, it should be noted
that Hong Kong Island and the Kowloon Peninsula were heavily reliant on
the New Territories for supplies of water, electricity, and other amenities,
and would have been extremely unlikely to survive as a viable territorial
unit, especially given the extent of Chinese opposition to that possibility.
It is also worth recalling that the British administered all the territories
of Hong Kong as a single colony. There may be certain parallels here with
Mayotte, the only island in the Comorian Archipelago that was ceded to
France (in 1841), before the other three islands became protectorates (in
1886). This distinction did not prevent Mayotte from being treated as an
integral part of the Comoros by the General Assembly, and the same might
perhaps be said of Hong Kong Island and the Kowloon Peninsula. Hong
Kong Island and the Kowloon Peninsula represented a smaller portion
of the overall colony than Mayotte, and were connected more seamlessly
with the rest of the colony (Mayotte is more than 100 km from the near-
est island in the archipelago, Anjouan). It would have seemed arbitrary to
afford a right of self-determination to residents of Hong Kong Island and
the Kowloon Peninsula but not to residents of the New Territories, even if
this had been a realistic possibility.
The inclusion of the ceded part of Hong Kong in the handover is there-
fore best explained by reference either to pragmatic considerations, or to
the fact that the territory had been administered for a considerable time
as a single unit (as in the case of Mayotte and the Comoros Islands), rather
than to the operation of a putative ‘unequal treaty’ doctrine. The best
explanation for the return of the New Territories is that China retained
residual territorial sovereignty under the terms of the ‘lease’, and that the
preservation of China’s territorial integrity thus precluded any possibility
of decolonization in accordance with the principle of self-determination.
Notwithstanding this, there was significant international concern for the
population of Hong Kong. This seems to have influenced negotiations over
the status of the territory. The terms of the Joint Declaration reflect a preoc-
cupation with internal aspects of self-determination that, it is submitted, is
an important element in the overall outcome in Hong Kong. It appears all
the more striking when one considers that the population of Hong Kong
played no active role in determining the political future of the territory.
While the denial of external self-determination may have been a foregone
conclusion, the eventual negotiated status of Hong Kong suggests that
self-determination in its internal, rather than external, sense may have a
‘palliative’ function when the population of a colonially administered terri-
tory faces absorption by the contiguous claimant State. The degree to which
this is the case may depend on how ‘visible’ the situation is internationally,
and on the extent to which issues of democratic self-governance are of con-
cern in a particular case. The Hong Kong handover was a prominent inter-
national event, and China was keen to counter suggestions that the people
of Hong Kong would be worse off after the transition. A similar concern
for internal self-determination can be observed, in varying degrees, in the
Aaland Islands autonomy regime, and in cases like West Irian, the French
Settlements in India, Goa and Dependencies, Gibraltar and the Falkland/
Malvinas Islands. There is therefore some evidence to suggest that territo-
rial transfers in favour of irredentist claimants are more likely to meet with
international approval if they are accompanied by a measure of ‘palliative’
internal self-determination, with a view to softening the impact of territo-
rial re-integration on the affected colonial population.
The challenging questions raised by the decolonization of Hong Kong
(especially the ceded parts thereof) foreshadow some of the problems that
arise in relation to some of the more intractable cases considered in this
work. Such problems turn on the contestable legal validity of doctrines of
exception that seek to rationalize the treatment of a colonial territory as
a ‘re-integration’ case (rather than as a self-determination unit) when it
cannot be established that ties of territorial sovereignty exist between the
claimant State and the territory.
The case of Macau has already been referred to briefly above. To an
extent, it was bundled together with the case of Hong Kong in the UN, and
some of the issues that arise in relation to both territories (for example,
the problem of ‘unequal treaties’) have been dealt with comprehensively
in the section on Hong Kong. However, the treaty arrangements in Macau
were idiosyncratic and they merit brief separate consideration.
3.2.3 Macau
The Portuguese presence on Macau dates back to the sixteenth Century.
China recognized the Portuguese ‘occupation’ of Macau in an 1887
treaty.209 The PRC denounced that treaty as ‘unequal’ and never r ecognized
Treaty of Amity and Commerce between Portugal and China, with Appended Convention
209
and Agreement (adopted 1 December 1887) in F. Stoerk (ed.) Series II, Vol 18, Martens
Nouveau recueil général de traités et autres actes relatifs aux rapports de droit international
(Nendeln: Kraus Reprint 1967) 787.
Portuguese sovereignty over the territory. It also maintained that the
Portuguese presence on Macau was one of ‘perpetual occupation’, which
differed from ‘situations of annexation, concession or lease’.210
China rejected a confidential offer by Portugal to return Macau after
it was delisted in the UN in 1972, as it wished to preserve the status quo
for economic reasons. In 1987 Portugal and China concluded a confi-
dential agreement under which Portugal continued to administer Macau
while recognizing that it did not enjoy sovereignty over the territory.211
China resumed the exercise of sovereignty in Macau in 1999 pursuant to
the terms of a Sino-Portuguese Joint Declaration of 1987, which like the
Sino-British Declaration relating to Hong Kong, confers a ‘high degree of
autonomy’ on the territory. Kugelmann notes the key difference between
the two cases:
Unlike the Hong Kong case, in which – at least from the British point
of view – territorial sovereignty was transferred from Great Britain to
China, in the Macau case both parties to the Joint Declaration agreed that
Macau was and stayed Chinese territory and only the exercise of sovereign
powers was transferred from Portugal to China.212
The final case dealt with in this section is that of Gibraltar. The argu-
ment that re-integration with Spain is justified pursuant to an exceptional
‘colonial enclaves’ doctrine is discussed in Chapter 4. However, other jus-
tifications for the reintegration of Gibraltar with Spain can be discussed
within the parameters of a standard decolonization framework. This is
because Spain bases its irredentist claim, in part, on the argument that it
retains territorial sovereignty over Gibraltar under the terms of its territo-
rial grant to the UK.
3.2.4 Gibraltar – Treaty-Based Considerations

Gibraltar is a territory situated at the southernmost tip of the Iberian
Peninsula. It consists for the most part of a limestone rock at the foot
of which lies a small town populated by some 30,000 inhabitants.
210
C. Amado Mendes Portugal, China and the Macau Negotiations 1986–1999 (Hong Kong:
Hong Kong University Press 2013) 50.
211
Joint Declaration of the Government of the People’s Republic of China and the Government
of the Republic of Portugal on the Question of Macao (signed 13 April 1987) 1498 UNTS
195 (English version in 5 Asian Yearbook of International Law (1995) 567).
212
D. Kugelmann, ‘Macau’, MPEPIL Online, para 7, and more generally for a detailed discus-
sion of Macau.
An Anglo-Dutch fleet captured Gibraltar in 1704 during the War of the
Spanish Succession. Under Article X of the Treaty of Utrecht of 1713, King
Philip V of Spain ceded the territory to the British Crown while retaining
a right of first refusal over the territory should it ever be granted, sold or
otherwise alienated by Britain.213 The Treaty was reaffirmed in the Treaties
of Seville (1729), Aix-la-Chapelle (1748), Paris (1763), and Versailles
(1783).214
The territory was included by the UK on the UN list of Non-Self-
Governing Territories in 1946. The General Assembly, rather than call for
the exercise of self-determination in Gibraltar, has approached the case by
inviting the UK to consult with Spain regarding the decolonization of the
territory; indeed, in 1967 the General Assembly made a pointed reference
to paragraph 6 of the Colonial Declaration in the preamble of a resolution
on Gibraltar, in an apparent nod to Spain’s longstanding irredentist claim
to the territory.215
The reason for considering aspects of the Gibraltar case in this chapter
relates to the Spanish argument that it ceded something less than sover-
eignty under the Treaty of Utrecht. This argument implies that Spain retains
present-day ties of territorial sovereignty with Gibraltar, much in the same
way as China retained territorial sovereignty over Macau under the rel-
evant treaty arrangements. Spain claims additionally that Gibraltar should
be treated as a special exception to the colonial self-determination rule;
the ‘exceptionalist’ aspects of the Spanish claim are considered separately
in Chapter 4.
3.2.4.1 Are There Present-Day ‘Legal Ties of Territorial

Sovereignty’ between Spain and Gibraltar?
The possibility that a true cession of sovereignty may not have been
effected in 1713 is one of the arguments advanced by Spain in support of
its claim. Its most prominent exponent was Fernando Castiella, Franco’s
long-serving Foreign Minister, who was also an academic international
lawyer.216 In a 1941 work he and his co-author argue that the Treaty of
213
Art X, Treaty of Utrecht between Spain and Great Britain (signed 13 July 1713, entered into
force 4 August 1713) 28 CTS 295.
214
Spanish Ministry of Foreign Affairs Red Book on Gibraltar (Madrid: Sucesores de
Rivadeneyra 1965) 173.
215
GA Res 2353 (XXII), 19 Dec 1967.
216
Castiella was referred to colloquially as ‘el ministro del asunto exterior’ – the minister for
the foreign affair – such was the intensity of his focus on the Gibraltar issue: see his obitu-
ary in El País (26 November 1976).
Utrecht contains no de jure transfer of sovereignty to Britain because it
specifies that the territory is yielded ‘without territorial jurisdiction’.217
This leads them to the conclusion that ‘Gibraltar . . . remains Spanish, in a
strict legal and juridical sense’.218
The possibility that territorial sovereignty over Gibraltar may not have
been transferred under the Treaty of Utrecht has also been mooted cau-
tiously by Crawford.219
If it were the case that Spain retained ties of territorial sovereignty with
Gibraltar, the exercise of self-determination by the inhabitants of Gibraltar
might then be understood to constitute an attempt to breach Spain’s terri-
torial integrity, according to a conventional understanding of paragraph 6
of the Colonial Declaration. In Crawford’s view, this could obviate the need
for an exceptional, ‘colonial enclaves’-based justification for the denial of
self-determination in Gibraltar.220 It would also obviate the need for some
rationalization based on some other putative exceptional rule, or for an
explanation based on the political discretion of States.
The basis for doubts surrounding the cession is the wording of Article X
of the Treaty of Utrecht, the first paragraph of which states:
The Catholic King does hereby, for himself, his heirs and successors, yield
to the Crown of Great Britain the full and entire propriety of the town and
castle of Gibraltar, together with the port, fortifications, and forts thereunto
belonging; and he gives up the said propriety to be held and enjoyed abso-
lutely with all manner of right for ever, without any exception or impedi-
ment whatsoever.
Spain contends that the ‘propriety’ ceded under the Treaty of Utrecht
is ‘something less than sovereignty’ that equates merely to a ‘right of
217
J. M. De Areilza and F. M. Castiella Revindicaciones de España (2nd edn Madrid: Instituto
de Estudios Políticos 1941) 126.
218
Ibid., 132 (present author’s translation). Compare the language the authors use when argu-
ing for the return of Oran (in Algeria), which they contend is Spanish for reasons of ‘spirit,
language, blood, economy and work’ (at 212, present author’s translation). Spanish claims
to large sections of Nigeria and French West Africa are justified by the authors on grounds
of ‘equity’ (at 264).
219
Crawford (n 5) 643, fn 184. Compare the First Edition, J. R. Crawford The Creation of States
in International Law (1st edn Oxford: Oxford University Press 1979) 381, fn 126.
220
Crawford 1st edn (ibid.). For this argument to hold, it would also need to be shown that
Britain did not acquire title to Gibraltar by conquest in 1704. Britain has long maintained
that it did acquire title by conquest, but Spain argues otherwise, on the basis that, firstly,
the territory was captured on behalf of Archduke Charles of Austria and not the British
Monarch, and secondly, that the invading force was an allied force (see S. Korman The
Right of Conquest: The Acquisition of Territory by Force in International Law and Practice
(Oxford: Oxford University Press 1996) 97; M. Waibel, ‘Gibraltar’, MPEPIL, para 3).
possession’ over a military base.221 It is difficult to see how the transfer of
‘propriety, to be held and enjoyed absolutely with all manner and right for
ever, without any exception or impediment whatsoever’ amounts to some-
thing less than a transfer of territorial sovereignty (or to what a Syrian rep-
resentative in the UN described as a ‘rent free lease of a portion of Spanish
territory’).222 It should be borne in mind in this regard that the cession
took place in an age when State territory was ‘more or less identified with
the private property of the monarch of the state’.223 The Treaty clearly con-
fers a right of ‘actual effective control’ over the territory, which has been
exercised continuously by the UK up to the present day.224
It is helpful to compare the territorial grant contained in Article X with
that contained in the 1903 US-Panama Convention, for ‘the use, occupa-
tion and control’ of the Canal Zone by the US.225 The latter might be rea-
sonably understood to equate to a mere ‘right of possession’, but the former
grant is much more comprehensive. A similar comparison could be made
with the Sino-Portuguese Agreement on Macau, which the parties eventu-
ally agreed did not effect a transfer of sovereignty.226
Another treaty-based argument touching on territorial sovereignty is
that Gibraltar was yielded ‘without any territorial jurisdiction’, a phrase
contained in paragraph 2 of Article X of the Treaty of Utrecht. Paragraph
2 states:
But that abuses and frauds may be avoided by importing any kinds of
goods, the Catholic King wills, and takes it to be understood, that the
above-named propriety be yielded to Great Britain without any territorial
jurisdiction, and without any open communication by land with the coun-
try round it.
If the last ‘and’ in paragraph 2 is read disjunctively, it would support the

Spanish claim that while some ‘proprietary’ interest may have been trans-
ferred, no territorial jurisdiction was conferred on Britain. If the ‘and’ is
221
S. J. Lincoln ‘The Legal Status of Gibraltar: Whose Rock is it Anyway?’ 18:1 Fordham Int’l LJ
(1994) 285, 286. Also, I. Gonzalez García Bahías, su Regulación en el Derecho Internacional
del Mar (Cadiz: Universidad de Cadiz 2000) 80.
222
UN Doc A/C4/SR.1750 (14 December 1967) 501, para 4.
223
R. Y. Jennings and A. Watts (eds.) Oppenheim’s International Law Vol I, Peace (9th edn
Harlow: Longmans 1992) 678–9.
224
Jennings regards ‘actual effective control’ as a common feature of the various modes
(including cession) of acquiring title to territorial sovereignty, ‘a notion of great com-
plexity’ which escapes succinct definition: R. Y. Jennings The Acquisition of Territory in
International Law (Manchester: Manchester University Press 1963) 4, 8.
225
US-Panama Convention 1903 (n 145) above.
226
read conjunctively, the lack of ‘territorial jurisdiction’ would appear to
relate to the land around Gibraltar rather than the territory itself. The lat-
ter reading would make the paragraph more easily reconcilable with the
terms of paragraph 1, in which Gibraltar is said to be ceded ‘absolutely’,
‘without any exception or impediment whatsoever’.
A purposive reading of the treaty also supports the view that the phrase
‘without territorial jurisdiction’ relates to the territory around Gibraltar
rather than Gibraltar itself. The phrase appears to have been included,
at Spain’s insistence, because prior to the British conquest, Gibraltar had
been the administrative capital of the region.227 During the negotiations
in Utrecht, Spain wished to restrict Gibraltar’s influence over the hinter-
land by restricting its historical jurisdiction over the area and preventing
any communication by land, ostensibly in order to prevent the smuggling
of goods into Spain.228 Levie states that in the course of the negotiations
‘there was nothing whatsoever mentioned at any time by any person to
indicate that the cession of Gibraltar was to differ in any manner from the
then quite commonplace procedure by which one sovereign transferred
the title to territory to another’.229 Correspondence from 1712 suggests
that during the Utrecht negotiations the British tried but failed to preserve
Gibraltar’s jurisdictional reach over the surrounding territory, in the face
of Spain’s insistence that it would cede no more than the city and fortress of
Gibraltar.230
Fawcett argues that ‘[t]he real purport of the expression “without ter-
ritorial jurisdiction” appears . . . to be, not that it has any domestic bear-
ing, but that Gibraltar is to have no jurisdiction or control over adjacent
territory’.231 Waibel argues similarly that the ‘uniform treaty language’ used
in Article X of the Treaty of Utrecht ‘points to a complete transfer of title
and sovereignty over Gibraltar to Britain’.232 The balance of academic opin-
ion (in Spain as well as elsewhere) supports this view.233
227
F. Olivié ‘Gibraltar y política exterior de España, 1704–1969’ in Estudios sobre Gibraltar
(Madrid: INCIPE 1996) 74.
228
H. S. Levie The Status of Gibraltar (Epping: Bowker 1983) 30–31.
229
Ibid.
230
Note from the British plenipotentiary in Utrecht, Mr Bristol, to the Foreign Secretary, 26
April 1712, Spanish Red Book (n 214) 166.
231
J. E. S. Fawcett ‘Gibraltar: The Legal Issues’ 43 Int Aff (1967) 236, 243.
232
M. Waibel, ‘Gibraltar’, MPEPIL Online, para 9.
233
See e.g. J. C. Pereira Castañares ‘La Cuestión de Gibraltar (Cambios, ofensivas y proyectos
en la búsqueda de un acuerdo hispano-británico en el primer tercio del siglo XX)’ in Las
Relaciones Internacionales en la España Contemporánea (Murcia: Universidad de Murcia
1989) 246–8; C. Antón Guardiola Gibraltar: un desafío en la Union Europea (Alicante:
Spain’s strongest claim to ties of territorial sovereignty with Gibraltar
may be a partial one, over an 800-metre long section of the isthmus to the
north of the town’s fortifications. After the Treaty of Utrecht was signed,
the British made incremental encroachments into this piece of territory,
often in the face of protests from Spain.234 The British eventually estab-
lished a permanent sentry line some 800 metres north of the fortifica-
tions in the mid-nineteenth century, installing a permanent fence there
in 1909.235 This piece of land is today the site of Gibraltar’s airport. Spain
objects to what it sees as the illegal occupation of this territory, arguing
that it was not included in the territorial grant, which as noted above cov-
ers ‘the town and castle of Gibraltar, together with the port, fortifications,
and forts thereunto belonging’. The UK asserts sovereignty over this piece
of territory on two alternative grounds; (i) that the land formed part of the
territory ceded by the Treaty, and alternatively (ii) that the continuous and
public exercise of British sovereignty over the land has given rise to territo-
rial rights under the doctrine of acquisitive prescription.
There is nothing explicitly to support the first of the UK’s assertions in
the text of the Treaty of Utrecht or the travaux. The UK contends however
that the Treaty implicitly entitles it to extra land under the ‘cannon shot’
principle.236 In 1723 the British Minister in Madrid wrote to the Spanish
Foreign Minister claiming that ‘when a town is yielded, there is tacitly
yielded at the same time, all the ground commanded by its artillery, since
otherwise the cession would be of little use’.237 It is true that the Treaty of
Utrecht does not define precise boundaries, but the occupation of the isth-
mus by the UK appears to have been an afterthought, with the ‘cannon
shot’ principle being advanced as ex post facto justification in the absence
of anything in the text of the Treaty or the travaux to indicate that this
occupation was contemplated by either state at the time of signing. The
Tirant-Universidad de Alicante-Valencia 2011) 40; E. Mariaud Gibraltar, un défi pour

l’Europe (Geneva: Institut européene d’études universitaires 1999) 43–7. A. del Valle argues
that while there was a cession of sovereignty in 1713, this related solely to the inventory of
places on Gibraltar (the port, fortifications, etc.) that are explicitly mentioned in the Treaty:
‘¿De Verdad Cedimos el Peñón? Opciones Estratégicas de España sobre Gibraltar a los 300
Años del Tratado de Utrecht’ (2013) 65(2) Revista Española de Derecho Internacional 117;
see also Crawford (n 5) 643, fn 184. For a discussion of the maritime dimensions of the
Spanish sovereignty claim, see J. Trinidad ‘The Disputed Waters Around Gibraltar’ BYIL
(2017).
234
Levie (n 228) 61.
235
Gibraltar – Talks with Spain (Misc No 13 (1966) Cmnd 3131) 27–8.
236
Lincoln (n 221) 315.
237
Spanish Red Book (n 214) 30.
UK does not advance a customary legal basis for the application of the
‘cannon shot’ principle – which was the original basis for defining a State’s
territorial waters – to land. Indeed, the logic of its application in the con-
text of land territory casts doubt on its validity; if territory is implicitly
ceded under this rule, the new sovereign is free to establish fortifications
and place artillery on the limits of this territory, extending the reach of its
cannons yet further.
If Britain did not acquire territorial rights over the isthmus under the
Treaty of Utrecht, the question arises as to whether it did so by acquisitive
prescription, defined in Oppenheim as:
the acquisition of sovereignty over a territory through the continuous and
undisturbed exercise of sovereignty over it during such a period as is nec-
essary to create under the influence of historical development the general
conviction that the present condition of things is in conformity with inter-
national order.238
In cases of original acquisition – when the territory in question is not sub-

ject to the authority of another state – it is well established under interna-
tional law that prescription can generate territorial rights.239 However, the
sort of prescriptive right claimed by Britain is one arising from adverse
possession, ‘where the actual exercise of sovereign rights over a period of
time is allowed to cure a defect in title’,240 and its boundaries are less clear.
Judge Huber held in the Island of Palmas case that in order success-
fully to assert such a right a State must show that there has been a ‘con-
tinuous and peaceful display of territorial sovereignty’ over the territory
in question.241 It is not disputed that Britain has exercised continuous,
exclusive and effective control over the whole of the territory since the
mid-nineteenth century when it established the permanent sentry line.
The question is whether this exercise of territorial sovereignty has been
‘peaceful’. The essence of this requirement is summed up in Jennings’ The
Acquisition of Territory in International Law:
where the possession is adverse, it is not sufficient that the claimant State
display acts of sovereignty; there must also be an acquiescence on the part
of the original sovereign. If the latter keeps its claim alive by protest or the
238
Oppenheim (n 223) 706.
239
H. Lauterpacht Private Law Sources and Analogies of International Law (London:
Longmans 1927) 104 and 116.
240
Jennings (n 217) 21.
241
Island of Palmas Case (Netherlands v USA) 2 RIAA (1928) 829, 839.
bringing of an action, there will not be that undisturbed or ‘peaceable’ pos-
session which alone enables a State to prescribe a title.242
The UK has attempted to downplay what it terms the ‘occasional pro-

tests’ of the Spanish authorities243 while Spain draws attention to ‘the long
series of Spanish protests and refusals which have been made uninter-
ruptedly from 1713 to the present day’.244 There was a significant period
of Spanish silence between 1826 and 1851, which Lord Palmerston sought
to capitalize on in correspondence with the Spanish authorities, who
responded that ‘silence cannot be construed as assent’.245 Apart from this
period the Spanish protests are fairly consistent, and it is therefore at least
open to doubt whether Britain acquired rights of territorial sovereignty
over the isthmus under the doctrine of acquisitive prescription.
To summarize, it can be stated with reasonable confidence that Spain
does not retain ties of territorial sovereignty with Gibraltar, save for any
territorial sovereignty it may arguably retain over the disputed isthmus,
an 800-metre long strip of land within an overall landmass of 6.8 square
kilometres.246 Doubts over the isthmus complicate an already complex ter-
ritorial dispute, which seems ripe for judicial settlement.
In 1966, the UK proposed to Spain that they should submit their dif-
ferences to the ICJ.247 Under the proposal the Court would have been
requested to give a decision on five questions concerning sovereignty over
Gibraltar, including sovereignty over the town, isthmus and bay, as well
as the right of British aircraft to fly over Spanish airspace.248 The Spanish
government rejected the proposal, arguing at the UN that ‘the problem of
Gibraltar is essentially a political one’, and that ‘[t]he British proposal to
submit the dispute to the International Court of Justice, therefore, inter-
feres with the recommendation made by the United Nations to Great
Britain and Spain to solve their differences over Gibraltar by means of
242
Jennings (n 224) 23.
243
Cmnd 3131 (n 235) 62.
244
Ibid., 27, and 92–5 for a description of the protests.
245
Bertrán de Lis to Palmerston (11 December 1852), Spanish Red Book (n 214) 197.
246
Compare the case of Hong Kong, where the New Territories, over which China indisputa-
bly retained territorial sovereignty, formed 92 per cent of the overall territory of the colony.
Following the ICJ’s logic in the North Sea Continental Shelf cases, uncertainty as to where
the land boundary between Gibraltar and Spain ought to lie is not, of itself, fatal to its exist-
ence as a separate territorial unit: Judgment of 20 February 1969, ICJ Rep [1969] 3, at 33,
para 46.
247
Cmnd 3131 (n 235) 110.
248
Ibid.
bilateral talks’ (a position that seems at odds with Foreign Minister
Castiella’s conviction that Spain retains sovereignty over Gibraltar ‘in a
strict legal and juridical sense’).249
Spain has since pursued its claim within the C24 and the Fourth
Committee of the General Assembly. Chapter 4 of this work will examine
the treatment of Gibraltar in a UN context, and consider the possibility
that it may be an exceptional type of case in relation to which the normal
rules on decolonization must be set aside in favour of reintegration with
Spain.
As far as the effects of the Treaty on self-determination are concerned,
one issue remains outstanding: the right conferred on Spain under the
reversionary clause, and its effect, if any, on the decolonization of Gibraltar.
3.2.4.2 Does the Reversionary Clause Create

‘Legal Ties’ between Spain and Gibraltar That Would
Trump the Exercise of Self-Determination?
The final paragraph of Article X of the Treaty of Utrecht is worded as
follows:
And in case it shall hereafter seem meet to the Crown of Great Britain to
grant, sell, or by any means to alienate therefrom the propriety of the said
town of Gibraltar, it is hereby agreed and concluded that the preference of
having the same shall always be given to the Crown of Spain before any
others.
Spain interprets this provision to mean that Britain ‘cannot unilaterally

alter the bond uniting the Town [of Gibraltar] with the British Crown
without first giving Spain the first refusal of redeeming it.’250 The UK rec-
ognizes that the choice afforded to the Gibraltarians should be ‘a limited
choice because, under the terms of the Treaty of Utrecht, Gibraltar may not
be alienated from the British Crown without first being offered to Spain . . .
[T]he effect of that provision . . . is to restrict the political choices which are
open to the people of Gibraltar.’251
The parties differ in their interpretation of what would constitute ‘alien-
ation’ of the territory under the Treaty. The British Government contends
that ‘under the Treaty of Utrecht independence is not an option, unless
249
Statement made by the Spanish delegation (10 October 1966) Spanish Red Book on
Gibraltar (2nd edn Madrid: Ministry of Foreign Affairs 1968) 553–4.
250
Spanish Red Book (n 214) 65.
251
UN Doc A/AC.109/PV.543 (1967).
Spain is prepared to agree’.252 The Spanish Government rules out any
scenario that does not involve some form of integration with Spain.253
It is difficult to see how the option of integrating Gibraltar with the
UK – if this had not been ruled out by the UK – could be an ‘alienation’ of
the territory by Britain. Spain would maintain in any case that any form
of decolonization that did not involve some form of integration with
Spain would breach Spain’s territorial integrity contrary to paragraph 6
of Resolution 1514 (XV) (although as has already been seen, Spain’s claim
that it retains residual territorial sovereignty over Gibraltar is highly
problematic).
Both parties therefore interpret Article X paragraph 10 as curtailing,
if not altogether excluding, the right of the Gibraltarians to determine
their own political future. Spain’s interpretation is at least consistent with
its view that the Gibraltarians are not a ‘people’ with the right to self-
determination. The UK argues that the Gibraltarians are a ‘people’ with
the right to self-determination, but that this right is curtailed by the rever-
sionary clause in the treaty, which is a questionable position. The Colonial
Declaration asserts that by virtue of the right of self-determination colo-
nial peoples may ‘freely determine their political status’,254 and moreover
that administering powers are under a corresponding obligation ‘to trans-
fer all power to the peoples of those territories, without any conditions
or reservations’.255 The British argument that self-determination should be
qualified pursuant to a reversionary clause in a 1713 treaty is difficult to
reconcile with this.
252
British Secretary of State for Foreign and Commonwealth Affairs, reply to parliamentary
question, in G. Marston ‘UK Materials on International Law’, 61 BYIL (1990) 463, 510.
253
A. Rigo-Sureda The Evolution of the Right of Self-Determination: A Study of United Nations
Practice (Leiden: Sijthoff 1973) 192, describes more expansive Spanish interpretations of
the term ‘alienation’. Anglo-Spanish negotiations concerning the possibility of joint sov-
ereignty were conducted as recently as 2002, but they collapsed due to Spain’s insistence
that the arrangement should be temporary and should lead eventually to full Spanish sov-
ereignty, and in the face of overwhelming opposition from the Gibraltarians, 98 per cent
of whom voted to reject the joint sovereignty proposals in a locally organized referendum.
Following Britain’s vote to leave the EU in 2016, Spain tabled a new joint sovereignty pro-
posal that it says will permit Gibraltar to continue to participate in the EU after Britain’s
withdrawal, but it is unclear at the time of writing whether Spain continues to view joint
sovereignty, necessarily, as a stepping stone to full Spanish sovereignty. Gibraltar continues
to oppose any joint sovereignty arrangement, and Britain now takes the position that it will
never negotiate over the status of the territory without the consent of the Gibraltarians (for
an account of the implications of Brexit for the sovereignty dispute, see: ‘Brexit: Gibraltar’,
House of Lords EU Committee, 13th Report of Session 2016–17, HL 116, 19–22).
254
GA Res 1514 (XV), 14 Dec 1960, para 2.
255
Ibid., para 5.
The stance of modern British Governments regarding Gibraltar’s
decolonization was summed up in an internal Foreign Office memoran-
dum: ‘Spain’s reversionary rights under the Treaty of Utrecht as well as
Gibraltar’s size and situation rule out independence, Associated Statehood
or integration with the UK’.256
Britain’s position on ‘any other political status’ – the so-called ‘fourth
option’ envisaged by the General Assembly in Resolution 2625 (XXV)
– has never been made explicit. However, recent constitutional develop-
ments, which grant almost full self-government to the territory except in
matters of defence, external affairs and internal security, are indicative of a
move in this direction.257
An alternative perspective on the effect of the reversionary clause is
that it would be trumped by the contemporary international legal obli-
gation to decolonize Gibraltar in accordance with the principle of self-
determination, if it could be established that this obligation applied to the
case of Gibraltar.
Article 103 of the UN Charter states that:
In the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under any
other international agreement, their obligations under the present Charter
shall prevail.
Rigo-Sureda notes that it is ‘surprising that the UK never argued that

Article 103 of the Charter would allow it to extricate itself from treaty
obligations contrary to those undertaken under the Charter, respect for
self-determination being one of them’.258 It would not be the first time that
a reversionary clause in a treaty was superseded by the right of a people
to self-determination, assuming that such a right could be established in
Gibraltar. The Treaty of Paris of 1900 between Spain and France granted
a right of pre-emption to France over Rio Muni, which became part of
the independent State of Equatorial Guinea in 1968.259 In 1911, France
256
PRO FCO 42/73, confidential memorandum by Mr Sugg (25 April 1968) fn 1.
257
See the Gibraltar Constitutional Order 2006: www.gibraltarlaws.gov.gi/constitution/
Gibraltar_Constitution_Order_2006.pdf. The constitutional talks involved local repre-
sentatives and the draft constitution was approved in a 2006 referendum.
258
Rigo-Sureda (n 253) 288.
259
92 BFSP 1014, 27 Jun 1900, Art. VII. An abridged version of the treaty can be viewed
in I. Brownlie and I. R. Burns African Boundaries: A Legal and Diplomatic Encylopaedia
(London: Hurst & Co 1979) 439. The 1887 Sino-Portuguese Treaty concerning Macau also
contained a reversionary clause, prohibiting Portugal from alienating the territory without
relinquished its right of pre-emption to Germany, which never sought to
invoke this right prior to the independence of Equatorial Guinea.260
As noted in Chapter 1, despite the contestable classification of self-
determination as jus cogens, the commentary on Article 50 of the ILC
Draft Articles on the Law of Treaties of 1966 includes treaties contrary to
the right to self-determination among its examples of treaties that violate
peremptory norms of international law.261 Draft Article 50 subsequently
became Article 53 of the 1969 Vienna Convention, which states:
A treaty is void if, at the time of its conclusion, it conflicts with a peremp-
tory norm of general international law.
A peremptory norm is defined as:

a norm accepted and recognised by the international community as a
whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having
the same character.
Had the Treaty of Utrecht been concluded today, its contents, which include
a prohibition against Jews and Moors residing within the city walls, would
have been in breach of at least one peremptory norm of international law.262
Norms like the prohibition against racial discrimination did not form part of
international law in 1713, and cannot therefore be invoked to attack the valid-
ity of Article X at the time of its conclusion.263 However, under Article 64 of
the Vienna Convention: ‘If a new peremptory norm of general international
law emerges, any existing treaty which is in conflict with that norm becomes
void and terminates’. The effect of this, according to Article 71(a), is to release
the parties from any obligation further to perform the treaty, although 71(b)
contains the qualification that the termination of the treaty
does not affect any right, obligation or legal situation of the parties created
through the execution of the treaty prior to its termination; provided that
those rights, obligations or situations may thereafter be maintained only
first consulting China. However, with Portugal recognizing Chinese sovereignty there was
no need for China to rely on the clause as a basis for the reintegration of Macau.
260
‘Cameroon-Chad Boundary’, US Department of State, International Boundary Study 102
(1 September 1970): www.law.fsu.edu/library/collection/LimitsinSeas/IBS102.pdf at 3–4.
261
ILC Ybk (1966) Vol II, 247–9.
262
Paragraph 4 of Art X, which prohibits residence on the Rock by Jews and Moors, clearly
violates modern prohibitions on racial and religious discrimination, classified as erga
omnes in Barcelona Traction, Light and Power Co, Ltd (New Application: 1962) (Belgium
v Spain) (Judgment) [1970] ICJ Rep 32, and also widely accorded the status of jus cogens.
263
Regardless of its contents, a treaty ‘procured by the threat or use of force’ would today be
invalid according to Art 52 VCLT 1969.
to the extent that their maintenance is not in itself in conflict with the new
peremptory norm of general international law.
Spain and the UK agree that the norm on colonial self-determination

has a peremptory character, even if they may disagree about the scope
of the norm’s application. If the UK is correct and the right of self-
determination applies to Gibraltar (which Spain does not accept) it can-
not easily argue that this right is trumped (even to a limited extent) by the
reversionary clause in the treaty.
As for Spain’s position on the reversionary clause, it should be noted
that the clause does not give rise to residual territorial sovereignty of the
sort that Panama retained over the Canal Zone or China retained over
the Hong Kong New Territories; it is merely a contingent right of reversion
that could forever go un-triggered if there is no ‘alienation’ of the territory
by the UK.264
It would appear from the statements of State officials that, at a bare
minimum, Britain and Spain agree that a grant of independence would
constitute an ‘alienation’ of the territory in violation of Article X paragraph
10, and would therefore be unacceptable to the parties, regardless of the
wishes of the Gibraltarians. This must be viewed as an authentic interpre-
tation of the Treaty.265
Crawford questions why, if the Treaty of Utrecht trumps in respect of
the right to self-determination, ‘does it not trump in other respects, and
specifically in relation to Britain’s continuing rights over Gibraltar under
the Treaty?’266 The answer must surely be that, if it is accepted that the
Treaty trumps in respect of the right to self-determination, it must also be
accepted that it trumps any obligation imposed by contemporary inter-
national law to bring an end to the colonial situation in Gibraltar per se,
whether in accordance with the wishes of the people of Gibraltar, or
through reintegration with Spain.
In summary, a future reintegration of Gibraltar with Spain without a
consultation of the inhabitants of Gibraltar would be difficult to rational-
ize on the basis of the terms of the territorial grant. There do not appear
264
Spain has recently stated in the Fourth Committee that it is ‘unquestionable’ that the Treaty
is in force, and that Gibraltar’s independence is ‘not viable without Spain’s consent’, while at
the same time calling for the territory’s decolonization, stating that ‘the issue of Gibraltar
was that of territorial integrity’: UN Doc GA/SPD/530 (9 October 2013).
265
See VCLT Art 31(3)(a).
266
J. R. Crawford, Book Review of A Cassese Self-Determination: A Legal Reappraisal
(Cambridge: Cambridge University Press 1995) 90 AJIL (1996) 332–3.
3.3 The Falkland/Malvinas Islands 133
to be legal ties of territorial sovereignty between Spain and Gibraltar
(save perhaps in relation to the isthmus), nor does Spain appear to hold
a right under the reversionary clause that would trump a right to self-
determination, if entitlement to such a right could be established prima
facie. The question of whether reintegration of Gibraltar with Spain, not-
withstanding the terms of the 1713 cession, is justified pursuant to a spe-
cial doctrine of exception is considered in Chapter 4.
The following section considers the case of the Falkland (Malvinas)
Islands, where Argentina argues it retains territorial sovereignty on the
basis of customary principles rather than on the basis of a territorial grant.
3.3 The Falkland/Malvinas Islands: A Dispute

over Title, Not Historical Title
The ICJ described the issue between Morocco and Spain regarding Western
Sahara as ‘not one as to the legal status of the territory today, but one as
to the rights of Morocco over it at the time of colonization’.267 The Anglo-
Argentine dispute over the Falkland/Malvinas Islands is, by contrast, best
understood as a dispute over legal title today, rather than over historical
title or the relevance of pre-colonial ties to the decolonization process.
In this respect, the Argentine claim resembles the other territo-
rial claims discussed in this chapter. It is a claim to territorial integrity
in the conventional sense, rather than an irredentist appeal for the res-
urrection of an extinct territorial arrangement based on contiguity and/
or historical/ethnic ties. The Argentine claim is thus distinct in principle
from the Moroccan claim to Western Sahara, or the Indian claim to Goa. It
bears closer resemblance to the Mauritian claim to the Chagos Islands, or
the Chinese claim to the Hong Kong New Territories.
It is worth observing at the outset that the comparisons which are so
frequently drawn between the Argentine claim to the Falkland/Malvinas
Islands and the Spanish claim to Gibraltar are valid only up to a point.268
The Argentine claim resembles the first pillar of the Spanish claim, dis-
cussed earlier in this chapter; that is to say, the claim that Gibraltar is,

267
Western Sahara Advisory Opinion (n 1) para 42.
Argentina and Spain evidently believe that there is an element of common ground, and
268
appear to be in discussions regarding the possibility of presenting a joint front at the

UN: see El Pais ‘Exteriores sopesa llevar el contencioso de Gibraltar a los foros internac-
ionales’ (11 August 2013): http://politica.elpais.com/politica/2013/08/10/actualidad/
1376162592_175442.html#sumario_2.
today, an integral part of Spanish territory because Spain ceded something
less than territorial sovereignty to Britain in the Treaty of Utrecht. The
Argentine claim is distinct in principle from the alternative, ‘exceptionalist’
Spanish argument – discussed in Chapter 4 – which holds that even if ter-
ritorial sovereignty over Gibraltar was validly ceded in 1713, the contem-
porary law of decolonization operates to overturn British title and restore
Spanish sovereignty.269
The key claim made here is that the case of the Falkland/Malvinas Islands
can be rationalized without recourse to an ‘irredentist’ interpretation of par-
agraph 6 of the Colonial Declaration, and without recourse to a doctrine of
exception like the ‘colonial enclaves’ doctrine. If one assumes the Argentine
claim to be valid, the putative exercise of external self-determination by
the population of the islands – (more will be said later about the possible
role of internal self-determination in this case) – would be incompatible
with the territorial integrity of Argentina today. In other words, it would
undermine Argentine national unity and territorial integrity contrary to
a conventional understanding of paragraph 6 of the Colonial Declaration.
If, on the other hand, one assumes that Britain has a stronger territorial
claim than Argentina, it would follow that the islands should be considered –
at least prima facie – to be a self-determination unit.
Since Argentina’s failed attempt to regain the islands by force in 1982,
the territorial dispute has been in deadlock. Both parties appear reluctant
to submit to third party adjudication. Against this backdrop, the contem-
porary focus has shifted onto the worthiness (or otherwise) of the island-
ers to determine the future political direction of the territory. Britain has
made ‘self-determination’ – which it understands to entail respect for the
wish of the islanders to remain British – the modern centrepiece of its
position.270 Indeed, Britain tends towards an ‘absolutist’ position on self-
determination, suggesting that the wishes of the islanders would supersede
even a valid underlying territorial claim by Argentina.271 Argentina has
responded with arguments related to the local British ‘settler’ population’s
unworthiness to accede to external self-determination.272 Such a rguments
269
See Chapter 4 at pp. 199–210.
270
Letter dated 22 February 2012 from the British Permanent Representative to the Secretary-
General UN Doc A/66/706 (2012) 4.
271
A. Schwed ‘Territorial Claims as a Limitation to the Right of Self-Determination in the
Context of the Falkland Islands Dispute’ 6:3 Fordham Int L J (1982) 443, at 455–6.
272
‘Falklands will be under our control in 20 years’, The Guardian, 5 February 2013 (report-
ing comments by the Argentine Foreign Minister): www.guardian.co.uk/uk/2013/feb/05/
falklands-under-our-control-argentina.
have, unhelpfully, become conflated with arguments on the merits of the
underlying territorial sovereignty claim.
The resulting ‘ethno-centric’ discourse, it is submitted, misconstrues
external self-determination as a right defined primarily by the human
characteristics of the affected population, rather than the territori-
ally defined right that it is. It thus confuses efforts to place the Falkland/
Malvinas Islands within a rational account of the way in which the princi-
ples of self-determination and territorial integrity combine to produce the
international law of decolonization.
This section is divided into three parts. The first places the dispute in
historical context and considers the legal arguments of the parties. The sec-
ond examines the treatment of the Falkland/Malvinas Islands in the UN.
The third looks to situate the case within a doctrinal account of the right to
self-determination.
3.3.1 Historical Background and the

Legal Arguments of the Parties
3.3.1.1 Background to the Dispute
The Falkland Islands (as they are known in Britain) or Islas Malvinas (as
they are known in Argentina) are an archipelago in the South Atlantic
consisting of two main islands, West and East Falkland (Gran Malvina
and Soledad), plus hundreds of smaller uninhabited islands. The islands
are located almost 500 kilometres from the Argentine coast.273 Graham
Land, the South Orkney Islands and the South Shetland Islands were
administered by the British as dependencies of the Falkland/Malvinas
Islands until 1962 when (together with Coats Land and Alexander Island)
they were constituted a separate British Overseas Territory, known as the
British Antarctic Territory.274 The islands of South Georgia and the South
Sandwich Islands (Georgia del Sur and Sandwich del Sur) were also admin-
istered together with the Falkland/Malvinas Islands, until 1985 when they
too were constituted a separate British Overseas Territory.275 Argentina
considers all these territories to form part of the Malvinas group of islands
over which its sovereignty claim extends.
273
A. Klugel ‘Atlantic Region’ in R. Gillespie and D. Clague (eds.) Encyclopaedia of Islands
(Berkeley, CA: University of California Press 2009) 66.
274
British Antarctic Territory Order in Council 1962, SI No 400 (26 February 1962).
275
The South Georgia and South Sandwich Islands Order 1985, SI No 449 (20 March 1985).
As with many other issues surrounding the Falkland/Malvinas Islands,
the question of who first discovered the islands remains disputed.276
However, it is widely agreed that the first recorded landing on the islands
was by a Captain Strong of the British Navy in 1690, though this did not
give rise to any possession claim by Britain. Strong named the islands after
Viscount Falkland, the Treasurer of the Navy.277
In 1764, a French settlement was established at Port Louis on East
Falkland.278 The French expedition had sailed from St. Malo, from where
the French name for the islands (‘Îles Malouines’, later rendered into
Spanish as ‘Islas Malvinas’) derives.
In 1766, the British established a settlement at Port Egmont on West
Falkland. It appears that for a time the British and French were unaware
of each other’s presence in the area.279 France sold its settlement in 1767 to
Spain for 600,000 French livres.280
The Spanish expelled the British settlers from West Falkland in 1770.281
However, the British returned to West Falkland in 1771, following an
‘exchange of declarations’ between Britain and Spain; there is some con-
troversy over whether there was a ‘secret promise’ made by Britain at the
time to withdraw from the islands in due course.282 In any event the British
withdrew again in 1774, leaving behind a plaque affirming British rights
over the territory.283
The Spanish settlement remained in place until 1811, shortly after
Argentina had gained its independence from Spain (which it formally
declared in 1816).284 In 1820 an adventurer named Colonel Jewett took
possession of the islands on behalf of Argentina. In the years that fol-
lowed, Argentina took various steps to establish a formal presence on the
276
For a discussion of the competing claims in this respect see D. W. Greig ‘Sovereignty and
the Falkland Islands Crisis’ 8 Aust YBIL (1978–80) 20, 25. Greig provides a painstakingly
detailed account of the historical record, at 21 et seq., going as far back as the Papal grants
of the late fifteenth and early sixteenth centuries which Spain relied upon as a basis for its
presence in the Americas.
277
Fifth Report of the Foreign Affairs Committee of the House of Commons, Session 1983–4:
Cmnd 9447 (1985) para 15.
278
Ibid., para 16.
279
Ibid.
280
L. S. Gustaffson The Sovereignty Dispute over the Falkland (Malvinas) Islands (New York:
Oxford University Press 1988) 8. The Spanish renamed Port Louis ‘Puerto Soledad’.
281
Cmnd 9447 (n 277) para 16.
282
M. Waibel ‘Falkland Islands/Islas Malvinas’ MPEPIL Online, para 4.
283
Cmnd 9447 (n 277) para 16. Spain and Argentina claim that this implied recognition by
Britain of Spanish title: see e.g. UN Doc A/37/533 (20 October 1982).
284
Cmnd 9447 (n 277) 17.
territory. These steps included the grant of various land rights to one Louis
Vernet.285 Vernet was appointed ‘Political and Military Commander’ of the
islands in 1829, prompting the first protest from Britain (which had recog-
nized Argentine independence in 1825).286
In 1831, a US vessel, the Lexington, destroyed the Argentine settle-
ment on East Falkland in retaliation for the seizure by Vernet of three
US sealing vessels. The Lexington’s captain declared the islands ‘free of all
government’.287
Argentina appointed another governor in 1832, prompting another
British protest.288 Mutinous soldiers murdered the new Argentine gover-
nor shortly after he arrived on the islands.289
Later in 1832, the British naval vessel Clio set sail for the islands, under
orders from the Admiralty to ‘exercise Britain’s rights of sovereignty’.290
The Clio arrived in January 1833 and expelled the Argentine garrison,
although no shots were fired.291
Argentina lodged protests to the British presence on the Falklands in 1833,
1834, 1841, 1842 and 1849. In the latter protest, Argentina notified Britain
that it would not be protesting further given that Britain had been ignoring
Argentina’s repeated protests, but it insisted that Argentine silence should
not be interpreted as acquiescence.292 Further protests nevertheless followed
in 1884, 1888, 1908, 1927, 1933, 1946 (when the islands were listed as a
British Non-Self-Governing Territory), ‘and yearly thereafter at the UN’.293
In 1982, following abortive bilateral negotiations, Argentina launched
a military invasion of the islands. Britain regained control after a 10-week
war in which almost 1000 lives were lost. Argentina maintains its claim to
this day, and in recent years Britain has refused to negotiate over sover-
eignty. In a 2013 referendum the islanders voted almost unanimously in
favour of retaining their links with Britain and against a transfer of sover-
eignty to Argentina.294
285
Ibid.
286
Ibid.
287
Ibid., 18.
288
Ibid.
289
Ibid.
290
Ibid.
291
Ibid.
292
Gustaffson (n 280) 34; Cmnd 9447 (n 277) 19.
293
Ibid.
294
‘Falklands voters back British rule nearly unanimously’ New York Times 12 March 2013:
www.nytimes.com/2013/03/13/world/americas/falklands-voters-back-british-rule-
nearly-unanimously.html?_r=0.
3.3.1.2 The Arguments of the Parties

Argentina’s claim is based on the uti possidetis principle, which it considers
to be expressed in paragraph 6 of the Colonial Declaration.295 As Spain’s
successor in title, Argentina contends, it was unlawfully expelled from part
of its territory by Britain in 1833. It argues that the circumstances of the
expulsion preclude the possibility of British title arising by conquest, and
that nothing has occurred since 1833 that is capable of generating British
title over the islands. Notably, Argentina contends, its protests against the
British presence preclude the possibility of Britain having acquired rights
over the territory by prescription.296
Self-determination is inapplicable in Argentina’s view. It adopts a two-
pronged position in this respect. Firstly, self-determination is said to be
inapplicable because the wishes of the islanders ‘cannot be used to bypass
Argentina’s historical right to sovereignty over the islands and to disrupt
Argentina’s territorial integrity’.297 Secondly, Argentina places reliance
on the argument that the islanders are a ‘settler’ population who displaced
the ‘legitimate’ Argentine inhabitants, and thus do not have a ‘legitimate
relationship’ with the territory.298 Argentina also relies on the fact that the
islanders are of British origin and not ‘under alien subjugation, domina-
tion and exploitation’.299 In some respects, Argentina appears to treat the
applicability of self-determination as an issue that can be ruled out a priori
on the basis of the composition of the population, rather than an issue that
is necessarily linked with the validity of Argentina’s underlying territorial
claim.300
The way the Argentine claim is formulated suggests that as well as
claiming better title than Britain, it may also wish to leave the door open
for an argument based on historical title or an irredentist interpretation
of paragraph 6, should its main claim prove unsuccessful. Statements like
295
UN Doc A/31/PV.85 (1976) para 53.
296
See Greig (n 276) 35–40; Waibel (n 282) para 9.
297
M. A. Sanchez ‘Self-Determination and the Falkland Islands Dispute’ 21 Colum J Transnat’l
L (1982–3) 557, 563.
298
Ibid.
299
Statement of Argentine Foreign Minister, Mr Timmerman, before the C24, reported at UN
Doc GA/COL/3257 (20 June 2013).
300
This is the approach taken by M. G. Kohen, the most prominent proponent of the Argentine
position in modern international law scholarship, in ‘La Fecha Crítica y la Cuestión de las
Islas Malvinas’ 46:1 REDI (1994) 7. He argues (at 35) that there would be no sense in exam-
ining the titles of the various parties with a view to establishing territorial sovereignty, if it
were first established that self-determination applies. The logic of this view is questionable
if one accepts that ‘peoples’ are territorially defined.
the following from the Argentine representative at the UN are ambiguous
enough to give Argentina some room for manoeuvre in this regard:
I might only remind you that resolution 1514 (XV) establishes quite clearly,
in paragraph 6, that in certain circumstances – including, without any
doubt, those deriving from acts of territorial usurpation against a country –
the applicable principle is territorial integrity and not self-determination.301
Such an utterance would not seem out of place in a Moroccan speech

claiming the Western Sahara as part of its territory on the basis of pre-
colonial ties.
Equally, Argentina’s pre-occupation with the character of the popula-
tion of the islands may indicate that, if its main arguments on territorial
sovereignty were to fail, it might seek to invoke some putative exception to
the self-determination rule – like the ‘colonial enclaves’ doctrine – to jus-
tify the ‘re-integration’ of the islands with Argentina.302 One might point
in this regard to the obvious similarities between Argentina’s view of the
islanders and Spain’s claim that the ‘artificial’ population of Gibraltar can-
not be considered a ‘people’ with the right to self-determination.
However, it is important to stress that Argentina’s claim is not based
fundamentally on the existence of historical ties with the islands in
the absence of present-day territorial sovereignty (it thus differs from
Morocco’s claim to Western Sahara). Nor is it based fundamentally on the
existence of a putative exception to the self-determination rule (it thus dif-
fers from the ‘exceptionalist’ pillar of Spain’s claim to Gibraltar – discussed
in Chapter 4 – pursuant to which Gibraltar ought to be returned to Spain
even if the latter ceded territorial sovereignty in 1713). At the heart of the
Argentine position is the claim that its present-day territorial integrity is at
stake in the decolonization of the Falkland/Malvinas Islands, because the
title claimed by Britain is defective.
UN Doc A/31/PV.85 (1976) para 53.

301
President Fernandez de Kirchner of Argentina stated that the islands are ‘one of sixteen
302
colonial enclaves throughout the world, ten of which belong to the United Kingdom’:
‘Cristina Fernandez “Colonial enclaves are an injustice”’, www.bbc.co.uk/news/world-
latin-america-17589301 (2 April 2012). Elsewhere she has stated that it is ‘time to end the
embarrassment of this colonial enclave’, although her comments contain no explanation
of what she understands the status of ‘colonial enclave’ to entail: ‘Falkland Islands “Not
Colonial Enclave” Says UK’, http://en.mercopress.com/2008/09/30/falkland-islands-not-
colonial-enclave-says-uk (30 September 2008). Compare Sanchez (n 297) who argues (at
579) that if ‘the sovereignty question were to be resolved in favour of Britain, however,
arguing that the Falklanders have no status to determine the future of the islands would do
little to improve Argentina’s position’.
Since the early twentieth century the British legal position has moved
away from earlier assertions that the taking of the islands in 1833 was a
‘mere reassertion of right’ arising from discovery and/or earlier occu-
pation.303 In 1936, the British Foreign Secretary, Eden, decided that the
British emphasis ought to shift from pre-1833 to post-1833 criteria.304 A
new British consensus that prescription was the preferred basis of title
emerged, though not before differences between the Foreign Office’s legal
advisers, Beckett and Fitzmaurice, had been resolved in favour of the for-
mer’s enthusiasm for the prescription argument.305
The British reluctance to rely on conquest as a basis of title has been noted
by various commentators.306 Although Foreign Office records reveal a self-
conscious concern that reliance on the 1833 seizure might show the British
up ‘as international bandits’,307 the most likely reason Britain has never
invoked conquest is that such a claim would rest on dubious legal founda-
tions. The prevailing view is that the acquisition of title by conquest – while
possible as a matter of international law in 1833 – would have required ‘as
a first essential condition’ the existence of a state of war between the parties
(Argentina and Britain were formally at peace in 1833).308
The British position at the time of the 1982 war was summed up cau-
tiously by the Foreign Secretary, Hurd:
Even leaving aside arguments in our favour based on events before 1833,
we have been consistently advised that our title can be soundly based
on our possession of the islands from 1833. Our case rests on the facts, on
prescription and on the principle of self-determination.309
303
See P. J. Beck ‘The Anglo-Argentine Dispute Over Title to the Falkland Islands: Changing
British Perceptions on Sovereignty Since 1910’ 12:1 Millenn J Int Stud (1983) 6–24. Also,
Gustaffson (n 280) 32.
304
Eden to Henderson, 28 August 1936, PRO FO 371/19763, A6461/889/2. See also,
Gustaffson (n 280) 32–3.
305
Minute by Fitzmaurice (6 February 1936), PRO FO 371/19763, A1140/889/2; minute by
Beckett (17 October 1936) PRO FO 371/19763, A8083/889/2. For commentary on these
discussions, see Beck (n 295) 15, who highlights the influence of the 1928 Island of Palmas
decision on the new British position.
306
See e.g. Gustaffson (n 280) 35, and D. J. Harris Cases and Materials on International Law
(7th edn London: Sweet and Maxwell 2010) 186. The latter argues that in addition to con-
quest being an unpopular basis of title given the modern distaste for the use of force in
international relations, it may be relevant that the Captain of the Clio had instructions ‘to
exercise rights of sovereignty’, ‘thus suggesting the absence of the necessary intention to
conquer’.
307
Minute by Troutbeck (19 October 1936) PRO FO 371/19763, A8083/889/2.
308
Korman (n 220) 104–9, especially at 108–9.
309
G. Marston, ‘UK Materials on International Law 1983’ 54 BYIL (1983) 361, 461.
A 2012 statement of the British position bases the British sovereignty
claim ‘in particular on the principle and right of self-determination for
all peoples’ (emphasis supplied), omitting references to prescription and
other possible bases of title altogether.310
Initiatives to resolve the dispute (or aspects of it) through third party
adjudication have come to nothing. In 1884, Britain refused a request
from Argentina that the dispute be submitted to arbitration.311 In 1947,
Argentina rejected a proposal by Britain to submit the dispute over the
Falklands Dependencies (but not the Falklands themselves) to the ICJ.312
In 1955 Britain made an application to the ICJ contesting Argentine and
Chilean sovereignty over territory in the Antarctic, which included South
Georgia and the Sandwich Islands.313 The application was rejected by
Argentina and Chile, neither being subject to compulsory jurisdiction.314
Argentina’s refusal was based inter alia on the argument that the British
application said nothing about the ‘fundamental sovereignty problem’.315
When hostilities broke out in 1982, the US raised the possibility of submit-
ting the sovereignty dispute to the ICJ, but neither party showed an inter-
est in pursuing this option.316
The reluctance of the parties to submit to third party adjudication has
been attributed by commentators to various factors, not least of which
is the ‘winner-takes-all’ nature of the dispute. As Greig has argued, ‘it
would be difficult to formulate the issue other than in terms of whether
the Islands “belong” to A or to B’.317 In his view this impacts not only on the
willingness to litigate but also on the likelihood of the losing party comply-
ing with the decision.318 A report of the Foreign Affairs Select Committee
of the British Parliament attributes the reluctance to litigate, in part, to
310
See e.g. Letter dated 22 February 2012 from the British Permanent Representative to the
Secretary-General UN Doc A/66/706 (2012) 4.
311
Gustaffson (n 280) 33.
312
Waibel (n 282) para 11. Also, A. F. J Hope ‘Sovereignty and Decolonization of the Malvinas’
6:2 B C Int& Comp L Rev (1983) 391, 395.
313
Antarctica Case (UK v Argentina) Order of 16 March 1956 [1956] ICJ Rep 12.
314
Hope (n 312) 395.
315
Greig (n 276) 39.
316
Statement of 5 August 1982 of Assistant-Secretary Enders to the Subcommittee of Inter-
American Affairs of the House Foreign Affairs Committee, Dept of State Bull, October
1982, 78 at 85, cited in Greig (n 276) 65.
317
Greig (n 276) 69.
318
Ibid., 69. He points out that ‘a decision in favour of Britain would be even less acceptable
than the decision in favour of Chile in the Beagle Channel arbitration’ (1977, 52 ILR 93)
which Argentina failed to honour.
‘doubts about whether any judgment would be honoured by the other
side’ while also stating that it is ‘almost certainly . . . evidence also of doubts
about the solidarity [(solidity?)] of their respective legal claims’.319
If neither side appears convinced that their arguments on territorial
sovereignty will prevail in an international court or tribunal, it is per-
haps due to the complexity of the legal issues involved. The question of
whether British rights over the Islands have arisen prescriptively is per-
haps the trickiest issue. The relevant principles of law in this area have
evolved considerably over the course of the dispute, and to some extent
remain unclear.320 Akehurst, appearing before the Foreign Affairs Select
Committee of the British Parliament in 1982, gives a balanced account
of the problem. He argues that while the exercise of effective control by
Britain over a long period is clearly established, there is considerable doubt
whether this is accompanied by Argentine acquiescence. He argues that
even if one accepts the requirement that protests need to be accompanied
by ‘further steps such as breaking off diplomatic relations or offering to
refer the dispute to arbitration’, Argentina’s protests fulfil this requirement.
The ‘real uncertainty’, Akehurst argues, arises from the long periods dur-
ing which Argentina remained silent (1849–84, and 1888–908), and how
these ought to be interpreted in light of the 1849 note in which Argentina
informed Britain that its silence should not be interpreted as acquiescence:
‘It is impossible to predict how an international court would decide a case
of this sort’.321
In the face of such uncertainty, Britain’s gradual shift towards an
‘absolutist’ stance on the right of the islanders to self-determination is not
without its tactical benefits. The right to self-determination, Britain asserts
controversially, applies even if (which it does not accept) there are defects
in its title to the Islands.322 If a court or tribunal were to hold that ‘self-
319
Cmnd 9447 (n 277) 22. Eden remarked in 1936 that the risk of arbitration, ‘slight though
it may be, would not be justified, since an adverse decision would cost His Majesty’s
Government no less than their whole strategic position in the South Atlantic’: Eden to
Henderson (28 August 1936) PRO FO 371/19763, A6461/889/2.
320
Three of the most important judicial decisions on the subject were issued shortly before
Britain’s switch in the 1930s to a post-1833 emphasis on prescription: Island of Palmas
(Netherlands v US) (1928) 2 RIAA 828; Clipperton Island (Mexico-France) (1931) 2 RIAA
1105; Legal Status of Eastern Greenland (1933) PCIJ Ser A/B No 53.
321
Cmnd 9447 (n 277) evidence of M. Akehurst, App 12. See also Kohen (n 300) 7–37, for a
discussion of the difficulties in establishing a critical date for assessing the claims of the
parties.
322
Letter of 13 August 1982 from the Permanent Mission of the UK to the UN, UN Doc
A/37/389 (1982) 2.
determination’ cannot be deployed as a trump card in this way, Britain
would presumably fall back on its traditional assertions of title, primarily
on grounds of prescription.
Britain’s absolutism on the question of self-determination, and
Argentina’s pre-occupation with the ‘worthiness’ of the islanders to deter-
mine their own future, have both served to draw international attention
away from the parties’ arguments on territorial sovereignty. Nevertheless,
as will now be seen, the General Assembly is less concerned with the island-
ers than it is with the need for Britain and Argentina to resolve their dispute
over territorial sovereignty as a first step in the decolonization process.
3.3.2 The UN Approach towards the Decolonization

of the Falkland/Malvinas Islands
The Falkland/Malvinas Islands were listed by Britain as a Non-Self-
Governing territory under Chapter XI of the Charter in 1946.323 The first
resolution of the General Assembly dealing with the islands was adopted
in 1965. Resolution 2065 (XX) notes the existence of a dispute over the
Islands, and invites the governments of Britain and Argentina to enter into
‘negotiations with a view to finding a peaceful solution to the problem,
bearing in mind the provisions and objectives of the Charter of the United
Nations and of General Assembly Resolution 1514 (XV) and the interests
of the population of the Falkland Islands (Malvinas)’.324
Argentina’s interpretation of the resolution is that it leaves no room for
self-determination because it refers to ‘resolution 1514 (XV) (principle of
territorial integrity), as well as the interests of the population of the Islands
(thus leaving aside the principle of self-determination)’.325
In fact, the reference in Resolution 2065 (XX) to Resolution 1514
(XV) is general, rather than to paragraph 6 on territorial integrity.326 The
323
UN Ybk (1946–7) 572.
324
GA Res 2065 (XX), 16 December 1965 (94:0 (14)).
325
UN Doc A/66/696 (2012) 7, Letter from Permanent Mission of Argentina to the Secretary-
General, 10 February 2012.
326
Compare GA Res 2353 (XXII), 19 December 1967, on Gibraltar, the preamble of which
provides: ‘Considering that any colonial situation which partially or completely destroys
the national unity and territorial integrity of a country is incompatible with the purposes
and principles of the Charter of the United Nations and especially with paragraph 6 of
Resolution 1514 (XV) of the General Assembly.’ This is an obvious – though not explicit –
nod to the Spanish territorial integrity claim. Paragraph 3 states, moreover, that the ‘inter-
ests of the population’ should be safeguarded ‘upon termination of [the colonial] situation’,
strongly implying that the colonial situation should terminate through integration with
debate preceding Resolution 2625 (XX) is certainly peppered with refer-
ences to the need to balance the principles of territorial integrity and self-
determination, and there is considerable sympathy with the Argentine
position among many States, especially developing States.327 However, it
is a stretch to argue that the call for negotiations amounts to an endorse-
ment of the Argentine arguments on territorial sovereignty. The evidence
rather suggests that the Assembly was keen to see the sovereignty dispute
resolved as a necessary first step in the decolonization process, but that it
was reluctant to pronounce collectively on the merits of the dispute. As the
Turkish representative explained when setting out the rationale for Turkey
voting in favour of the draft resolution that led to 2065 (XX):
The problem was not one of decolonization alone, but one of sover-
eignty . . . The Committee was not competent to decide on a question of
sovereignty, but resolution 1514 (XV) could only be implemented in the
Territory once the dispute over sovereignty had been settled.328
As far as Turkey was concerned, the draft resolution calling for bilateral
negotiations ‘was purely procedural and did not prejudice the outcome of
the dispute’.329
Subsequent resolutions are slightly more supportive of the Argentine
position. Resolution 3160 (XXVIII) was tabled in 1973 in the wake of
Britain’s refusal to negotiate over sovereignty, as it had been invited to do
in Resolution 2065 (XX).330 The preamble expresses ‘grave concern’ at the
lack of substantial progress in negotiations, and ‘gratitude for the contin-
uous efforts of the Government of Argentina . . . to facilitate the process
of decolonization’. To this end, it calls for an ‘acceleration’ of the negotia-
tions.331 Again, the resolution does not endorse a particular view of the
Spain, rather than in accordance with the wishes of the affected population. The vote on
this controversial resolution was 73 to 19, with 27 abstentions, a less resounding result than
even some of the later Falklands/Malvinas resolutions, which are marked by a high level of
abstentions (see (n 328) below and accompanying text).
327
See generally UN Doc A/C4/SR.1558 (16 November 1965). Franck claims, on the basis of
interviews conducted with State representatives at the UN, that Britain failed to lobby third
world States over the resolutions that were passed in the years preceding the Falklands
war. India apparently agreed with Britain that the resolutions could be dismissed as ‘hot
air’, while Argentina – Franck claims – interpreted the resolutions as a ‘hunting licence’:
T. Franck, ‘Dulce et Decorum Est: The Strategic Role of Legal Principles in the Falklands
War’ 77 AJIL (1983) 109, 122.
328
UN Doc A/C4/SR.1558 (16 November 1965) paras 67–68.
329
Ibid.
330
14 December 1973 (116:0 (14))
331
At para 2.
sovereignty dispute. Schwed’s reading of Resolution 3160 (XXVIII) is that
it requires the sovereignty dispute to be resolved ‘before the rights of the
Falklanders can be addressed’.332 Given the lukewarm reference in the pre-
amble to the ‘well-being’ of the islanders, it may be that Schwed is overstat-
ing the extent to which the Assembly was contemplating addressing the
‘rights of the Falklanders’ after the resolution of the sovereignty dispute.
Nevertheless, he is right to observe that Resolution 3160 (XXVIII) does
not pre-determine the modalities of any future act of decolonization, and
does not rule out a role for the islanders in this respect.
The first time the UK voted against a resolution on the Falkland/
Malvinas Islands was in 1976. Resolution 31/49 ‘bears in mind’ certain
resolutions of the Non-Aligned Movement which endorse the Argentine
position on sovereignty.333 In doing so it probably represents the high
watermark of support for the Argentine position within the General
Assembly, though it still falls short of explicit support for Argentina’s
territorial sovereignty claim.
Argentina’s armed invasion of 1982 was universally condemned in the
UN as a breach of the prohibition on the use of force enshrined in Article
2(4) of the Charter.334 A unanimous Security Council found Argentina’s
actions to have breached the peace, called for hostilities to cease, and
demanded the withdrawal of Argentine forces as well as a diplomatic reso-
lution to the dispute.335
After the war, the General Assembly resolutions continued to call for
negotiations but were less supportive of Argentina and were marked by a
high number of abstentions.336 In 1985 a change in the usual wording led
to a vote that was slightly more favourable to Argentina; Resolution 40/21
does not mention sovereignty negotiations, but instead calls for negotia-
tions on ‘all aspects of the future of the Falkland Islands (Malvinas)’.337
332
Schwed (n 271) 466.
333
GA Res 31/49, 1 December 1976 (102:1 (32)). For the Non-Aligned Movement resolutions
see UN Doc A/10217 and Corr.1, annex, para 87, and UN Doc A/31/197, annex I, para 119.
334
Waibel (n 282) para 15.
335
SC Res 502, 3 April 1982; SC Res 505, 26 May 1982.
336
E.g. GA Res 37/9, 4 November 1982 (90: 12 (52)), recalling Resolution 2065, but adding
that the principle on the non-use of force should be respected; GA Res 38/12, 16 November
1983 (87:9 (54)), expressing regret at failure of the UK to take up an offer of the good offices
of the Secretary-General as a means of resolving the dispute; GA Res 39/6, 1 November
1984 (89:9 (54)).
337
GA Res 40/21, 27 November 1985 (107:4 (41)).
The Special Committee on Decolonization has been generally more sup-
portive of Argentina than the Fourth Committee. Since 1983 it has issued
yearly resolutions on the question of the Falklands (Malvinas) Islands.
A recent resolution, apart from stressing the need to resolve the sover-
eignty dispute through bilateral negotiations, also ‘takes note of the views
expressed by the President of the Argentine Republic’ in the General
Assembly and in the Special Committee on 14 June 2012.338
It is helpful to compare General Assembly resolutions on the Falkland/
Malvinas Islands with contemporaneous resolutions on Western Sahara
and the Comoros Islands. Resolution 3162 (XXVIII) dated 14 December
1976 (the same day as Resolution 3160 (XXVIII) on the Falkland/
Malvinas Islands) calls for Spain to grant self-determination to Western
Sahara. The focus is on the population of the Western Sahara rather than
on the Moroccan territorial claim, the merits of which had been dealt a
blow by the ICJ’s Advisory Opinion of the previous year. The difference in
approach towards the respective populations of the Western Sahara and
the Falkland/Malvinas islands is stark; the Falkland/Malvinas resolution is
focused on the territory rather than on the population.
However, this territorial focus is rather different to the territorial focus
of Resolution 3161 (XXVIII) on ‘the Question of the Comoro Archipelago’,
also dated 14 December 1976. That resolution, passed in the context of
French moves to separate Mayotte from the rest of the Archipelago,
‘affirms the unity and territorial integrity of the Comoro Archipelago’,
and requests that France ‘ensure that the unity and territorial integrity
of the Comoro Archipelago are preserved’.339 The resolution is a ringing
endorsement of the Comorian claim that Mayotte forms an integral part
of its territory, and that attempts by France to separate Mayotte constitute
a breach of Comorian unity and territorial integrity. Future r esolutions
‘On the Comorian Island of Mayotte’ leave no room for doubt about the
General Assembly’s attitude.340 There is no comparable endorsement by
the General Assembly, at any stage, of the Argentine territorial claim.
At most it could perhaps be said that the Falkland/Malvinas resolutions
are evidence of a collective judgement that the Argentine territorial
claim appears sufficiently credible – more so than the Moroccan claim to
338
‘Question of the Falkland Islands (Malvinas)’, Draft Resolution, UN Doc A/
AC.109/2013/L.7, paras 1 and 2, and communiqué reporting the approval of the Draft
Resolution UN Doc GA/COL/3257 (20 June 2013).
339
At paras 4 and 5.
340
See (nn 26, 27, and 28) and accompanying text.
Western Sahara at any rate – to warrant resolution prior to the modalities
of decolonization being decided.
3.3.3 Situating the Case of the Falkland/Malvinas Islands

within a Doctrinal Account of the Right to Self-Determination
The treatment of the islands in the General Assembly has prompted a con-
fusing array of doctrinal reflections on the applicability, if any, of the right
to self-determination in this case.
Franck and Hoffman, who are supportive of the notion that the island-
ers have the right freely to determine their political future, caution against
the ‘selective non-application’ of self-determination, and ‘the dangers
inherent in allowing historical-ethnic claims to carve out exceptions to the
hitherto universal norms of decolonization’.341 However, it is evident that
the Argentine claim is not a historical-ethnic claim like Morocco’s claim
to Western Sahara, but primarily a claim to present-day title, and that
Argentina’s approach towards the decolonization of the islands is based
on the uti possidetis principle. This argument – whatever its substantive
merits – is hardly out of step with widely accepted decolonization norms.
It seems to fit with a conventional account of how the principle of territo-
rial integrity constrains the scope of the right of self-determination in a
colonial context.
Cassese, like Franck and Hoffman, sees the cases of Gibraltar and the
Falkland/Malvinas Islands as similar.342 His reasoning is that although
the Falkland/Malvinas Islands ‘are not territorially contiguous to
Argentina, they are proximate to that country and undoubtedly within
its geographical and historical province’.343 However, the Argentine claim
is not based on the proximity of the islands to Argentina; it is based on
title.344 To the extent that Spain’s claim to Gibraltar is also a claim to title,
the cases could be considered within the same conceptual framework.
However, as explained earlier in this chapter, Spain’s argument that it did
not transfer territorial sovereignty under the Treaty of Utrecht is weak.345
341
T. Franck and P. Hoffman ‘The Right to Self-Determination in Very Small Places’ 8 NYU
JILP (1975–6) 331, 384.
342
Cassese (n 104) 207. See also Franck and Hoffman (n 341) 384.
343
Cassese (n 104) 207.
344
M. Kohen makes this point explicitly in, ‘Conferencia ‘La Cuestión Malvinas y la Solución
Pacífica de Controversias Internacionales’, lecture delivered at the Catholic University of
Peru (21 June 2012): www.youtube.com/watch?v=tj7Xj1YxkrE.
345
See pp. 121–28 above.
Its claim appears to rest primarily on the existence of a putative exception to
the self-determination rule, the contours of which will be examined in the
next chapter. This distinction between the Spanish and Argentine claims
may be one of the reasons why discussions between Spain and Argentina
on the possibility of presenting a joint front at the General Assembly have
failed to produce agreement.346
For Brownlie, the basis for the return of the islands to Argentina is ‘the
principle of statutory decolonization’.347 However, he does not describe the
content of the principle in question. The relevant passage in Crawford’s
8th edition of Brownlie’s Principles omits the word ‘statutory’:
In relation to the British-Argentine dispute over the Malvinas/Falklands
the relevant UN resolutions call for transfer by virtue of a principle of
decolonization while the UK regards transfer without local consent as a
breach of the principle of self-determination.348
Aside from the fact that the relevant UN resolutions do not call for the
transfer of the territory, Crawford’s reference to ‘a principle of decoloniza-
tion’ leaves the reader none the wiser as to the nature of the ‘principle’ that
is said to be in operation.
Some scholars suggest that, regardless of the outcome of the territorial
dispute, self-determination is inapplicable a priori given the characteris-
tics of the affected population. Kohen, in an otherwise sober analysis of the
titles claimed by Argentina and the applicability of the uti possidetis prin-
ciple to the case, argues that Britain’s insistence on self-determination for
the islanders is an ‘insult to genuine peoples who have had to fight to liber-
ate themselves from the colonial yoke’.349 Others have similarly argued that
a perception of the islanders as a ‘transplanted’, ‘non-indigenous’ popula-
tion of ‘settlers’ may be behind the relevant General Assembly resolutions
on the Falklands/Malvinas Islands, and their references to the ‘interests’
rather than the ‘wishes’ of the affected population.350
346
El Pais ‘Exteriores sopesa llevar el contencioso de Gibraltar a los foros internacion-
ales’ (11 August 2013): http://politica.elpais.com/politica/2013/08/10/actualidad/
1376162592_175442.html#sumario_2. The article reports that Spain and Argentina are
considering a joint front over Gibraltar and the Falklands.
347
Brownlie (n 156) 162.
348
349
Kohen (n 344), present author’s translation.
350
H. E. Chehabi ‘Self-Determination, Territorial Integrity, and the Falkland Islands’ 100:2
Polit Sci Q (1985) 217–18; Waibel (n 282) para 9.
Kohen insists, in an earlier work, that the applicability or otherwise of
self-determination can be dealt with as a ‘prior question’.351 In this respect
his view would seem to chime with the British procedural approach, which
increasingly seems to treat the question of self-determination as a prior
question, separate from the underlying territorial claim.
The examination of the relevant UN resolutions conducted here leads
to some very different conclusions. Rather than call for a transfer of the
islands or otherwise endorse the Argentine territorial claim, the resolu-
tions appear to treat the territorial claim (rather than self-determination)
as a prior question that needs to be resolved before the appropriate modal-
ities of decolonization can be agreed internationally. The question of
‘peoplehood’ and self-determination is inseparable from, and consequent
to, the question of the validity of the underlying territorial claim. The
applicability of self-determination can neither be affirmed nor dismissed
a priori on the basis of arguments about the character of the population of
the islands. The suggestion – from both Britain and Argentina – that the
right of self-determination can be treated as a prior question misconstrues
the right of self-determination as deriving from a human criterion, rather
than a territorial criterion.
There is therefore no need for Argentina to denigrate the population
or its links with the territory in order to arrive at the conclusion that
the islanders are not a ‘people’ with the right to self-determination; if
Argentina can establish good title to the islands, this should suffice as far
as its position on the inapplicability of self-determination is concerned. If
British title is defective, an appeal to ‘self-determination’ by or on behalf of
the islanders is incapable of displacing Argentine sovereignty. In that sce-
nario, the population of the Falkland/Malvinas Islands could no more be
considered a ‘people’ with a right to external self-determination than the
population of the Hong Kong New Territories.
If, on the other hand, it is established that the Argentine territorial claim
is without merit, arguments about the ‘quality’ of the population of the
islands can do little to advance the Argentine legal position, as currently
formulated. Such arguments might assist Argentina if it were to base its
claim more explicitly on some putative exception to the normal rules on
decolonization, such as the putative ‘colonial enclaves’ exception (which
rests, according to some accounts, on human criteria, like the population
being ‘parasitic upon’ or ‘derivative of ’ the claimant State), rather than on
Kohen (n 300) 35.

351
the issue of title. However, beyond the occasional reference by its President
to the islands being a ‘colonial enclave’, Argentina has not indicated an
intention to pursue this line of argument (although, as noted earlier, the
way the Argentine claim is formulated suggests it may want to leave its
options open in the event that its claim to title fails).352
If Argentina cannot establish good title, there seems no reason in
principle why the islanders should not qualify as a ‘people’. Although the
islanders are British and identify as such, it would be difficult to argue
against their claim that a distinctive society has developed there over the
past 200 years.353 Resolution 1541 (XV) stipulates that a territory must
be ‘geographically separate and . . . distinct ethnically and/or culturally
from the country administering it’ in order for a prima facie obligation
on the administering power to transmit information under Article 73e of
the Charter to arise.354 If the territory is placed ‘arbitrarily’ in a ‘position or
status of subordination’ this ‘supports the presumption’ that an obligation
to transmit information exists.355 However, there is no requirement laid
down anywhere that the population of a Non-Self-Governing Territory
must have suffered alien subjugation or racial discrimination in order to
qualify as a ‘people’.356
The population of the Cocos (Keeling) Islands is even smaller than that of
the Falkland/Malvinas Islands and has existed for about the same amount
of time, yet its right to self-determination was upheld.357 The same can
be said for the population of the Turks and Caicos Islands, which a UN
visiting mission found to be of mixed African and European origin, and
whose right of self-determination – according to Duursma – ‘has never
352
Comments by President Fernandez de Kirchner, reported in Mercopress ‘Falkland Islands
“Not Colonial Enclave” Says UK’: http://en.mercopress.com/2008/09/30/falkland-islands-
not-colonial-enclave-says-uk (30 September 2008). Compare the approach of Spain,
which frequently asserts that Gibraltar is a ‘colonial enclave’ when addressing the General
Assembly. For references to and a rebuttal of these assertions see P. R. Caruana, Chief
Minister of Gibraltar, Speech to Fourth Committee of the General Assembly, October
1999: www.gibnet.com/library/pcun1099.htm.
353
Statement on the website of the local government of the Falkland/Malvinas Islands: www
.falklands.gov.fk/our-people/. But compare Kohen (n 344), who argues on the basis of cen-
sus reports that the population is transient, with population flows manipulated by Britain,
and therefore not distinct from the parent State.
354
GA Res 1541 (XV), 15 December 1960, Annex, Principle IV.
355
Ibid., Principle V.
356
But note that there is a reluctance among a substantial number of States to accept that a
so-called ‘settler’ population can legitimately be held to be a ‘people’ with the right to self-
determination: see e.g. UN Doc S/PV.2350 (3 April 1982) 72.
357
See p. 96 et seq. above.
been contested’.358 These populations have developed as all populations
do, to a greater or lesser extent – through accidents of human geography,
economic and environmental circumstances, and political planning. The
local government of the Falkland/Malvinas Islands argues that the popula-
tion of the islands is ‘no more an implanted population than are the vari-
ous populations of South America whose ancestors arrived as immigrants
from Europe – we arrived here as part of the same process and pattern of
migration’.359 Although Argentina would take issue with what it sees as the
‘instrumentalization’ of the population of the Falkland/Malvinas Islands
in order to perpetuate the British occupation of a piece of Argentine terri-
tory, this argument only serves to point back to the underlying territorial
dispute.
While Argentina’s attempts to denigrate the islanders could be viewed
as window-dressing for the underlying territorial claim, they could per-
haps also be understood as a reaction to the ‘absolutist’ British approach
to self-determination. Apart from distracting from the core legal issues in
this case, Argentina’s continuing characterization of the population of the
Falkland/Malvinas Islands as unworthy imposters raises concerns about
the substance of its undertaking to respect their way of life in the event that
Argentina recovers sovereignty.360 It seems likely that a significant number
of States would be uncomfortable with any resolution of the dispute that
involves the islanders being treated, in Higgins’ words, like ‘chattels in real
estate’.361 Any eventual transfer to Argentina may therefore be contingent
on substantive guarantees of ‘palliative’ internal self-determination for
the islanders. The eventual outcome might then resemble the outcomes
in the Aaland Islands or Hong Kong, where sensitivity was shown to the
cultural, linguistic and institutional characteristics that had developed in
those territories over many years.
Given the current deadlock and the polarized positions of the parties,
the possibility of a resolution of the dispute along these or any other lines
358
Duursma (n 131) 50 and fn 236.
359
Statement on the website of the local Falklands government: www.falklands.gov.fk/
self-governance/relationship-with-argentina/.
360
For a recent attack on the character and composition of the population see the comments
of Foreign Minister Timmerman in The Guardian on 5 February 2013 (n 264). The under-
taking referred to is enshrined in the Argentine Constitution: Transitional Provision 1,
Constitution of the Argentine Nation (23 August 1994), in G. H. Flanz (ed.), Constitutions
of the Countries of the World (Oceana: Dobbs Ferry 1999) vol 1, cited in Waibel (n 282) 19.
361
R. Higgins ‘Judge Dillard and the Right to Self-Determination’ 23 Va J Int’l L (1982–3) 387,
393.
seems remote. It seems even more unlikely that negotiations alone could
break the deadlock. While Argentina criticizes Britain for a lack of good
faith in refusing to negotiate, the recovery of the islands is enshrined in
the Argentine constitution as ‘a permanent and unrelinquished goal’; this
would seem to leave little room for creative compromise.362 Nevertheless,
negotiations might conceivably produce an agreement to submit the sov-
ereignty dispute to third party adjudication subject to certain conditions.
This might entail the conclusion of a provisional agreement on an inter-
nally self-governing status for the Islands, to take effect in the event that
the court or tribunal vindicates Argentina’s sovereignty claim. Given the
limited amount of State practice in this area, the possibility of such an out-
come must remain within the realm of speculation.
3.4 Conclusion
Some of the cases considered in this chapter appear highly anomalous.
Nevertheless, many can be situated within a standard account of how ter-
ritorial integrity operates to circumscribe the scope of self-determination
in a colonial context.
The fragmentation of Non-Self-Governing Territories is generally
impermissible. This prohibition appears inflexible when the decolonizing
entity is opposed to the attempt to undermine its territorial integrity. The
case of Mayotte is the clearest illustration of this. In that case, appeals to
the democratic will of the population of Mayotte, to the geographical sepa-
rateness of Mayotte from the other islands in the Comoros Archipelago,
and even to the distinct legal basis for French sovereignty over Mayotte,
could not succeed in trumping the Comorian territorial integrity claim.
The cases of the Scattered Islands (Îles Éparses) and the Chagos Islands
(BIOT) are also illustrative of the general prohibition against the fragmen-
tation of a Non-Self-Governing Territory. However, in the latter case there
remains some debate over whether the excision of the Chagos Islands from
Mauritius was consensual, and over whether there has been international
acquiescence to the act of fragmentation.
On balance, it would appear that the ‘consensual’ fragmentation of a
self-determination unit is only permissible, exceptionally, in undisputed
territories, usually after some attempt has been made to ascertain the
Transitional Provision 1, Argentine Constitution (n 360). For a criticism of Britain’s refusal

362
to negotiate as a breach of norms regulating the peaceful resolution of disputes, see Kohen
(n 344).
3.4 Conclusion 153
wishes of the affected colonial populations, and then only if the act of frag-
mentation is deemed compatible with the maintenance of international
order and stability. This is illustrated by the cases of British Cameroons,
Ruanda-Urundi, TTPI, GEIC and the Cocos (Keeling) Islands.
The case of Christmas Island presents peculiar difficulties, given that
no attempt was made by the UN or Australia (the administering power)
to ascertain the wishes of the affected population in the decolonization
process. It is difficult to draw principled conclusions from the treatment
of Christmas Island given the lack of UN interest in the territory, which –
unlike the Cocos (Keeling) Islands – was never listed under Chapter XI
of the Charter. However, this lack of interest could perhaps be explained
by reference to the fact that the population of the territory was deemed to
consist of a small number of workers and their families, who do not appear
to have had a long association with the territory.
Another group of cases considered in this chapter are those where one
or more of the parties contends that ties of territorial sovereignty evi-
denced in a treaty preclude the exercise of self-determination in a given
territory. It would appear that external self-determination is impossible
when a State other than the administering power is able to establish that
it retains territorial sovereignty under the relevant treaty arrangements.
The cases of the Panama Canal Zone, Hong Kong, and Macau illustrate
this point.
In the case of Gibraltar, Spain’s argument that the Treaty of Utrecht
ceded something less than territorial sovereignty to Britain is difficult to
justify by reference to the terms of the treaty. Spain’s other treaty-based
argument – that the reversionary clause in the Treaty provides a basis for
Gibraltar’s reintegration with Spain – is also found to be weak. This is not
to conclude that the Spanish irredentist claim is baseless; rather, it follows
from the findings of this chapter that if the Spanish legal claim is to suc-
ceed, it must be based on something other than the assertion of present-
day ties of territorial sovereignty with Gibraltar, a territory that appears to
have been validly ceded by Spain in 1713. The case of Gibraltar is consid-
ered again in the next chapter, where the discussion will turn to whether
the Spanish claim can be founded on a putative customary exception to
the self-determination rule.
The final case considered in this chapter was that of the Falkland/
Malvinas Islands. Argentina’s irredentist claim is based, not on the terms
of a treaty, but on customary principles. The main purpose of the discus-
sion was to show that the Argentine claim is a claim to present-day ties of
territorial sovereignty rather than a claim to historic title. Argentina does
not claim that British title ought to be overturned in favour of a restoration
of the pre-colonial status quo; rather, it claims that the title Britain claims
has never been perfected, and that Argentina thus retains territorial sover-
eignty over the islands. Uncertainty surrounding the validity of the claim
has engendered a cautious approach in the General Assembly. The relevant
resolutions call for bilateral negotiations to address the sovereignty dis-
pute, but do not endorse the Argentine position on sovereignty, and they
certainly do not call for a transfer of the territory to Argentina, as some
commentators have suggested. Nor do the resolutions affirm, or rule out,
the possibility that the islanders may be allowed to determine the political
direction of the territory once the territorial dispute has been resolved.
The approach of the General Assembly seems to involve treating the reso-
lution of the territorial dispute as a necessary first step in the decoloniza-
tion process. This is arguably evidence of a collective judgement that the
Argentine territorial claim appears sufficiently credible – more so than,
say, the Moroccan claim to Western Sahara – to warrant resolution prior to
the modalities of decolonization being decided.
The issue of ‘palliative’ internal self-determination arises in a number of
the cases considered in this chapter. The agreed autonomy arrangements
in Hong Kong and Macau are notable examples. Although the cases of the
Falkland/Malvinas Islands and Gibraltar await resolution, both Argentina
and Spain have undertaken to respect the way of life of the populations of
those territories in the event that sovereignty is transferred. Morocco is
similarly disposed to granting Western Sahara a measure of autonomy as
part of the international process that Morocco hopes will lead to the formal-
izing of its annexation of that territory, as discussed in Chapter 1. While
international practice in this area is patchy, modern practice arguably builds
on interwar arrangements such as those in the Aaland Islands. In that case
(discussed in the general introduction), a substantial measure of internal
autonomy served to ‘soften the blow’ of the transfer from one administering
power to another against the wishes of the population, thus making the terri-
torial re-adjustment more acceptable both domestically and internationally.
This chapter has sought to clarify some of the ambiguities contained
in the Western Sahara Opinion by giving a more detailed account of the
scope of self-determination in cases that have been identified in the lit-
erature as ‘special’. Regardless of how anomalous cases like Mayotte, Hong
Kong, and the Falkland/Malvinas Islands may seem, they are not – it is
submitted – cases where the standard norms on decolonization have bro-
ken down. Rather, they demonstrate just how strong the territorial defini-
tion of a ‘people’ is in a decolonization context.
3.4 Conclusion 155
When an irredentist claimant can establish that it retains territorial sov-
ereignty over a colonially administered territory, the wishes of the affected
population will not trump that territorial sovereignty. In such a case, the pop-
ulation will not be a ‘people’ capable of defining the destiny of the territory in
an external sense. Judge Dillard’s famous dictum on the people defining the
destiny of the territory, which was discussed at the beginning of this chapter,
should be read with this concept of peoplehood in mind.
It must be acknowledged that the conceptual lines are not always clearly
drawn in the disputes considered in this chapter. The French argument
that Mayotte, as a ceded territory, had a different legal status to the other
three islands in the Comoros Archipelago, failed to influence international
opinion on Comorian decolonization. Similarly, the fact that Hong Kong
Island was a ceded territory did not result in a different treatment to the
New Territories when the lease over the latter came to an end. In both
cases, the administering powers arguably found themselves ‘estopped’
from relying on such de jure distinctions at the moment of decoloniza-
tion, given that the territories had been administered de facto as single
colonies over considerable periods of time (although in the case of Hong
Kong the treatment of the whole territory as a single unit for the purposes
of decolonization might be explained by reference to more prosaic fac-
tors). Then there is the rather muted international reaction to the events
in the Chagos Islands, and attendant doubts surrounding the notion of
consent when it comes to the fragmentation of colonial territory. There
are also lingering ambiguities regarding the differential treatment of the
Cocos (Keeling) Islands and Christmas Island, and specifically the factors
that led the former to be treated as a self-determination unit and the lat-
ter not. Finally, while the dispute over the Falkland/Malvinas Islands may
have all the appearance of a dispute over present-day title, Argentina may
yet fall back on an argument based on historical title or a putative doctrine
of exception (perhaps as alternatives to its main argument over title, in
future pleadings before an international court or tribunal).
The following chapter moves even further towards the untidy edges of
decolonization practice and doctrine. It deals primarily with cases that,
unlike many of the cases dealt with in this chapter, cannot be rational-
ized according to a conventional account of territorial integrity and self-
determination. While many of the irredentist claims that will be examined
involve assertions of ‘territorial integrity’, they are not territorial integrity
claims in the conventional sense. They are claims for the restoration of
some notion of the pre-colonial status quo, rather than for the restora-
tion of the present-day territorial integrity of a political unit. They concern
territories that, despite appearing to be prima facie self-determination
units, have been treated in a way that is to some extent sympathetic with
the territorial designs of a covetous neighbour. Many of the disputed ter-
ritories in question could be described in geographical terms as enclaves
or quasi-enclaves. Their treatment by the UN has prompted an array of
scholarly contributions that suggest the possible existence of an exception
to the right of self-determination in the case of ‘colonial enclaves’. It is to
this highly problematic aspect of decolonization practice and doctrine
that this work now turns.
4
Is There a ‘Colonial Enclaves’ Exception

to the Self-Determination Rule?
The treatment of many of the territories considered in the previous chapter

can be rationalized according to what this work has referred to as a ‘con-
ventional’ interpretation of paragraph 6 of the Colonial Declaration. That
is to say that, anomalous as they may seem, those cases can be accommo-
dated within a widely accepted account of how the principles of t erritorial
integrity and self-determination combine to produce the modern law of
decolonization. Some of the harder cases that are the focus of this chapter
cannot be accommodated within such an account. They therefore present
a tougher doctrinal challenge.
Most of the territories considered in this chapter could be described
in geographical terms as enclaves or quasi-enclaves, even if their physical
characteristics vary substantially. All are (or have been) subject to adverse
territorial claims that resemble the Moroccan claim to Western Sahara,
in the sense that they involve claims to small, internationally recognized
territorial units, by larger neighbouring States desirous of restoring some
notion of their historical borders. While the General Assembly and the ICJ
have treated Western Sahara as a self-determination unit, the treatment of
some of the territories examined in this chapter appears more sympathetic
towards the irredentist claimants. In certain cases it appears to involve an
international endorsement of (or at least international acquiescence in the
face of) a claimant State’s assertion of historical title, and a disregard of the
wishes of the population of the affected territory.
The central aim of this chapter is to examine whether a principled expla-
nation exists for the distinctive treatment of a small number of disputed
enclaves and coastal enclaves, whose experience of the decolonization
process cannot be explained by reference to a conventional account of the
relationship between the principles of self-determination and territorial
integrity. In parallel with this analysis, the chapter will evaluate influential
attempts by some authors to carve out a doctrine of exception in the case
of ‘colonial enclaves’.
157
158 Is There a ‘Colonial Enclaves’ Exception?
It is worth noting from the outset that some eminent commentators
see no evidence to support a doctrine of exception. Franck, for example,
sees the differential treatment of certain small disputed territories as evi-
dence of a haphazard disregard for the international normative framework
governing decolonization.1 Greig sees such departures from standard
decolonization practice as evidence of ad hoc political discretion woven
into the normative framework of decolonization. More than claiming that
there is no evidence for a coherent doctrine of exception, Greig attributes
the attempt to formulate such a doctrine to a misguided, legalistic desire
‘to justify the elision of political elements from the [self-determination]
process’.2
There is, despite such views, significant and influential support for the
view that principled reasons can be identified for the differential treat-
ment of territories that fall within a special factual category – ‘colonial
enclaves’. A number of eminent commentators maintain that these ‘colo-
nial enclaves’ are not ‘self-determination units’ eligible for decolonization
in accordance with the wishes of their inhabitants. Instead, they argue, the
destiny of a ‘colonial enclave’ is to be absorbed into a larger, contiguous
State if that State lays claim to the territory. This view is so widely held, and
its chief proponents so highly respected, that it has the potential to shape
the development of the law at the murky edges of decolonization practice.3
For this reason, the ‘colonial enclaves’ doctrine merits detailed considera-
tion in the context of the present work.
Crawford’s version of the ‘colonial enclaves’ doctrine is by far the most
widely cited.4 He defines ‘colonial enclaves’ as:
1
T. Franck The Power of Legitimacy Among Nations (New York: Oxford University Press
1990) 173.
2
D. W. Greig ‘Reflections on the Role of Consent’ 12 Aust YBIL (1988–89) 125, 155.
3
Article 38(1)(d) of the Statute of the ICJ refers inter alia to ‘. . . the teachings of the most
highly qualified publicists of the various nations, as a subsidiary means for the determina-
tion of rules of law’. For a recent discussion of how such material is used by the ICJ, see
M. Peil, ‘Scholarly Writings as a Source of Law: A Survey of the Use of Doctrine by the
International Court of Justice’ 1:3 CJICL (2012) 136–61.
4
See e.g. R. Higgins ‘Judge Dillard and the Right to Self-Determination’ 23 Va. J. Int’l L.
(1982–83) 387, 393; S. Lalonde, Determining Boundaries in a Conflicted World: The Role of
Uti Possidetis (Quebec: McGill-Queen’s University Press 2002) 165; S. Korman The Right of
Conquest: The Acquisition of Territory in International Law and Practice (Oxford: Oxford
University Press 1996) 272, fn 63; R. McCorquodale ‘Self-Determination: A Human Rights
Approach’ 43 ICLQ (1994) 857, 881, fn 119; P. Malanczuk Akehurst’s Modern Introduction
to International Law (7th edn London: Routledge 1997) 331; J. Duursma Fragmentation and
the International Relations of Microstates (Cambridge: Cambridge University Press 1995)
85, fn 400.
Is There a ‘Colonial Enclaves’ Exception? 159
minute territories which approximate to ‘enclaves’ of the claimant State,
which are ethnically and economically parasitic upon or derivative of that
State, and which cannot constitute separate territorial units.5
He argues that such territories have ‘no legitimate separate identity’.6 In

the 1979 edition of The Creation of States, Crawford suggests that Ifni, São
João Baptista de Ajudá and the French and Portuguese enclaves in India
had been disposed of as ‘colonial enclaves’ rather than as self-determina-
tion units, and that of the remaining Non-Self-Governing Territories, the
following ‘might be said to fall into this category’: Belize, the Falkland/
Malvinas Islands, Gibraltar, Hong Kong, Macao, the British Indian Ocean
Territory, Mayotte, and the Panama Canal Zone.7 He qualifies this list by
stating that ‘[t]his is not to say that all of these are regarded by the General
Assembly as colonial enclaves, still less that all of them are properly defined
as such’.8 Belize – having achieved independence – disappeared from the
list in the updated 2006 edition of The Creation of States, and Walvis Bay –
absorbed by Namibia in 1994 – appeared as a new candidate for ‘colonial
enclave’ status.9
The uncertain size of the putative ‘colonial enclaves’ category is an
immediately complicating factor. It can be inferred from elsewhere in
The Creation of States that Crawford does not consider a number of the
candidate territories on his list to be ‘colonial enclaves’. For instance,
he argues that island territories – which would include the Falkland/
Malvinas Islands, the Chagos Islands, and Mayotte – are ‘by definition,
not enclaves’; ‘relatively more viable’ territories like Western Sahara and
East Timor are also expressly excluded from Crawford’s definition, and
not even mentioned as possible ‘colonial enclaves’.10 Elsewhere Crawford
rationalizes the treatment of Hong Kong and the Panama Canal Zone by
reference to the residual sovereignty retained by the irredentist claim-
ants, in accordance with what the present work would describe as a
5
Press 2006) 647. In a positive review of Crawford’s first edition, A Boyle comments that
the problem of ‘colonial enclaves’ is an area that deserves ‘fuller treatment’ 28 ICLQ (1979)
784, 785.
6
Crawford (ibid.) 637.
7
J. R. Crawford The Creation of States in International Law (1st edn Oxford: Oxford
University Press 1979) 377, fn 109 and 110.
8
Ibid.
9
Crawford (n 5) 637, fn 162.
10
Crawford (n 7) 384.
‘conventional’ understanding of the principle of territorial integrity.11
Other writers have suggested that the ‘colonial enclaves’ category
includes other territories, such as East Timor, West Irian, and Western
Sahara.12
One of the aims of this chapter is to consider whether the ‘colonial
enclaves’ category is a genuine and legally defined exception to the rules
governing colonial self-determination. This will require firstly a consider-
ation of the doctrine itself, or rather, various versions of the doctrine. Not
all versions can be considered true doctrines of exception. Some versions,
it will be seen, are closely related to the fallacious ‘irredentist’ interpreta-
tion of the principle of territorial integrity that was analysed in Chapter 1.
This approach is evident, to a certain extent, in Rigo-Sureda’s account.
Crawford’s version is embedded within a more conventional understand-
ing of territorial integrity, and as a result is found to be a more conceptu-
ally coherent – if highly contestable – doctrine of exception.
The chapter will then consider instances of State practice involving the
special treatment of enclave-like territories, with a view to examining the
evidence for the existence of a doctrine of exception. The choice of case
studies in this section is derived in part from the analysis in the preced-
ing chapters. It was submitted that it is unnecessary to posit a doctrine of
exception in order to understand the cases of Mayotte, the Chagos Islands,
the Falkland/Malvinas Islands, the Panama Canal Zone, Hong Kong,
Macao, and West Irian. These cases, it has been submitted, can be rational-
ized by reference to a conventional understanding of territorial integrity
and paragraph 6 of the Colonial Declaration. Of the remaining territories
that have been described in the literature as potential ‘colonial enclaves’,
the following cases will be considered: the French Establishments in India,
São João Baptista de Ajudá, the Portuguese Dependencies in India, Ifni,
Gibraltar, and Walvis Bay.
The chapter will go on to consider two cases of Chapter XI territories
which some commentators had placed within the category of ‘colonial
enclaves’, but which were eventually decolonized in accordance with the
wishes of the affected populations: Belize and East Timor. The purpose of
Crawford (n 5) 642.
11
J. Duursma Fragmentation and the International Relations of Microstates (Cambridge:

12
Cambridge University Press 1995) 80–88 (suggests East Timor and West Irian are ‘colonial
enclaves’); A. Byman ‘March on the Spanish Sahara: A Test of International Law’ 6 Denver
J Int Law Pol (1976) 104 (suggests that Western Sahara was treated ‘partly’ as a ‘colonial
enclave’).
Is There a ‘Colonial Enclaves’ Exception? 161
examining these cases is to consider whether principled reasons exist for
the differential treatment of Belize and East Timor on the one hand, and
territories like Goa on the other.
A similar purpose underlies the final part of the chapter, which consid-
ers the dispute over Spain’s remaining territories in Africa: the populated
coastal enclaves of Ceuta and Melilla, and the unpopulated territories of
Vélez de la Gomera, Peñon de Alhucemas, and the Chafarinas Islands. The
case of the islet of Perejil (Parsley Island) – whose current international
status is unresolved – will be considered alongside these cases. These terri-
tories have all been claimed by Morocco since 1956. Morocco, other States,
and the African Union have referred to the territories as ‘colonial enclaves’.
However, none of these disputed territories has been brought within the
scope of Chapter XI, notwithstanding pleas from Morocco within the
General Assembly. The comparison is made between these territories and
Gibraltar, which lies across the Straits within eyeshot of Ceuta. The case
of São João Baptista de Ajudá (an unpopulated Portuguese fortress which
was included on the UN list of Non-Self-Governing Territories) also
invites comparison with that of the unpopulated territories of Vélez de la
Gomera, Alhucemas, the Chafarinas Islands and Perejil.
The chapter concludes that, to the extent that certain Non-Self-
Governing territories have been subjected to a treatment that differs from
the standard normative approach to decolonization, this treatment can-
not be explained adequately by a ‘colonial enclaves’ doctrine. Rather, the
doctrine – even in its most compelling form – comes across as an overly
ambitious attempt to rationalize the treatment of a number of very diverse
territories that have fallen prey to – or have to some extent been treated
in a manner that is sympathetic with – the territorial designs of covet-
ous neighbours.13 It will be argued – in a similar vein to the arguments of
Franck and Greig – that the ‘colonial enclaves’ doctrine, in purporting to
provide a legal explanation for the denial or qualification of self-determi-
nation in some of the disparate cases considered in this chapter, serves to
obscure the true extent of ad hoc policy-making in international practice.
There appears to be more merit in the idea that in territorial disputes over
small colonial territories, the political discretion of States very occasion-
ally results in haphazard breaches of the international legal rules.14
13
According to G. J. Simpson, ‘[t]he arguments relating to enclaves and historical ties possess
more ingenuity than they do merit’: ‘Judging the East Timor Dispute: Self-Determination
at the International Court of Justice’ 17 Hastings Int’l & Comp L Rev (1993–94) 323, 342.
14
This argument is advanced by Greig (n 2) 157.
4.1 Enclaves and Decolonization Doctrine

This section will firstly discuss the concept of an enclave in international
law, before considering the development of the ‘colonial enclaves’ doctrine
in international law scholarship, by reference to the work of four of the
most influential and highly regarded proponents of the doctrine: Rigo-
Sureda, Crawford, Shaw, and Higgins.
4.1.1 Enclaves
The concept of an ‘enclave’ – in the sense of ‘a portion of territory entirely
surrounded by foreign dominions’ – is well-established in international
law and appears in numerous treaties as well as judicial decisions from
the sixteenth century onwards.15 The origins of the concept date back
much further; for instance, the Book of Joshua records that the half-tribes
of Ephraim and Manasseh were allotted intermingled territories in the
Promised Land.16 The existence of such territories, fairly widespread his-
torically, has frequently soured international relations, especially when the
‘enclaved’ territory belongs to a State that is intent on physically accessing
its territory through the territory of the ‘enclaving’ State.17
15
Oxford English Dictionary Vol I (Oxford: Oxford University Press 1971; 1987 Re-issue) 859.
The Franco-Spanish Treaty of Madrid (14 January 1526) (P. Marino (ed.) Tratados inter-
nacionales de España: periodo de la prepondorencia española Vol 3 (Madrid: CSIC 86) 122)
appears to be the earliest example of the term’s use in an international legal context – see H.
M. Catudal The Exclave Problem of Western Europe (Tuscaloosa, AL: University of Alabama
Press 1979) 18.
16
See Joshua 16:9: ‘Such is the inheritance of the tribe of the Ephramites by their families,
together with the towns which were set apart from the Ephramites within the inherit-
ance of the Manasites’; and 17:9: ‘The cities here, to the south of the brook, among the
cities of Manasseh, belonged to Ephraim’. These biblical references are discussed in BR
Whyte ‘Waiting for the Esquimo: an historical and documentary study of the Cooch Behar
enclaves of India and Bangladesh’ (2002) Research Paper 8, Doctoral Thesis, University of
Melbourne, School of Geography, Anthropology and Environmental Studies.
17
The antonym of the word ‘enclave’ – and the word used to describe such a territory from
the perspective of its parent State – is ‘exclave’. Thus, Dadra and Nagar Haveli were exclaves
of Portugal and enclaves of India. The choice of term is usually a matter of emphasis, in the
sense that using the terms ‘enclave’ and ‘colonial enclave’ may evoke an image of the world
as seen through the eyes of an ‘enclaving’ State. See generally GWS Robinson ‘Exclaves’
Annals of the Association of American Geographers 49 (3 [Part 1]) (1959) 283–95. A terri-
tory could be referred to as a ‘mere exclave’ if – like Kaliningrad – it is surrounded by more
than one other territory: see E. Vinokurov A Theory of Enclaves (Lanham, MD: Lexington
Books 2007) 12.
4.1 enclaves and decolonization doctrine 163
Although territories with coastal access are not in the strict sense of the
term ‘enclaves’, small coastal exclaves surrounded on the landward side
by a large neighbouring territory are often referred to in the literature as
‘enclaves’.18 Indeed, most of the territories that have been labelled as ‘colo-
nial enclaves’ in the literature are in fact coastal enclaves that were colo-
nized precisely because of the strategic coastal access they afforded their
colonizers.
There have been various attempts to manage the problem of enclaves at
an international level. For instance, in 1893 Portugal and the Netherlands
concluded the Treaty of Lisbon, one of whose objects was the ‘suppression
of enclaves’ in the partitioning of the island of Timor.19 When India occu-
pied the Portuguese enclaves of Dadra and Nagar Haveli in 1954, the ICJ
was called upon to adjudicate the resulting dispute. In the Right of Passage
case the Court recognized that Portugal held title to the enclaves and had
the right to civilian access, but held that India had not violated interna-
tional law when it occupied the territories militarily in order to preserve
order in its own territory (through which access to the enclaves ran),
which was being undermined as a result of ‘self-determination’ demands
in those enclaves.20
The Right of Passage decision was virtually an immediate precursor to
the Indian annexation by military force of the Portuguese-administered
Non-Self-Governing coastal territories of Goa, Daman and Diu.21
Although this event was preceded by the Indian Union’s annexation of the
French Establishments in India, and by Dahomey’s annexation of São João
Baptista de Ajudá, it was the ‘Goa incident’, and the reaction of States to it,
that provided the main catalyst for the formulation of the concept of the
‘colonial enclave’ and the doctrine that such territories are not subject to
standard decolonization norms.
18
P. Raton ‘Les Enclaves’ 4 AFDI (1958) 186; Vinokurov (n 17) 11. Compare J. H. W. Verzijl
International Law in Historical Perspective: Vol III (Leiden: Sijthoff 1970) 443, who refers to
such entities not as enclaves or exclaves but as ‘corpora aliena, of colonial, feudal or military
origin, within another body politic’.
19
Convention signed at Lisbon, 10 June 1893, NRG 2:22:463. See also A. A. Lardy ‘Judicial
Decisions Involving Questions of International Law’ 9 AJIL (1915) 240, 252.
20
Right of Passage over Indian Territory [1960] ICJ Rep 6.
21
On 14 August 1961 Nehru described the subsequent integration of Dadra and Nagar
Haveli as a ‘happy augury’ and a ‘sign of the future to come’: Statement in Lok Sabha while
introducing the Constitution (Tenth Amendment) Bill, in Jawaharlal Nehru’s Speeches,
September 1957-April 1963 Vol IV (Delhi: Ministry of Information and Broadcasting 1964)
27–8.
4.1.2 Doctrinal Efforts to Address a Perceived

‘Enclave Problem’ in the Context of Decolonization
Unlike the term ‘enclave’, the term ‘colonial enclave’ – as it appears in
the scholarly writings examined in this section – does not have a long-
established heritage in the language of diplomacy or international law. It
does not appear in any international treaty or in any official pronounce-
ment of the UN or the ICJ. The term ‘colonial enclave’ is the product of
irredentist State rhetoric and modern international law scholarship, and
the ‘colonial enclaves’ doctrine has been developed in the context of analy-
ses of post-1945 State practice.
Proponents of the ‘colonial enclaves’ doctrine acknowledge that the
concept of a ‘colonial enclave’ is only loosely related to the standard dic-
tionary meaning of the term ‘enclave’.22 It is worth restating that most can-
didates for ‘colonial enclave’ status in the literature are coastal exclaves.
The spatial characteristics of such territories tend not to give rise to the
same difficulties of access, defensibility, and general viability that often
apply to landlocked enclaves. Nevertheless, as will be seen, the way the
problem of the ‘colonial enclave’ has been framed in the literature suggests
that the concept of the ‘colonial enclave’ carries with it some of the conten-
tious baggage associated with enclaves in international relations generally
(especially when it comes to the question of ‘viability’).
It appears from a quantitative analysis of the Google Books database that
literary references to the term ‘colonial enclave’ (as well as the French term
‘enclave coloniale’ and – especially – the Spanish term ‘enclave colonial’)
peaked dramatically in the late 1970s.23 The peak comes just before the
publication of the first edition of Crawford’s seminal work The Creation of
States in International Law, in which he developed what was to become the
most influential account of the ‘colonial enclaves’ doctrine. Interestingly,
this spike in the data can be attributed in large part to scholarly, politi-
cal, and print-media discussions of the Panama Canal Zone in the years
preceding the US-Panama Treaty of 1977, which provided for an end to
US administration of the Zone.24 Apart from a profusion of references to
the Canal Zone as a ‘colonial enclave’ in Spanish and English publications
22
Crawford (n 5) 647; A. Rigo-Sureda The Evolution of the Right to Self-Determination
(Leiden: Sijthoff 1973) 176; M. Shaw Title to Territory in Africa: International Legal Issues
(Oxford: Clarendon Press 1986) 134.
23
See Appendix 1 for a description of the methodology employed and the results obtained.
24
Panama Canal Treaty (signed 7 September 1977) 16 ILM 1022.
of the period, there appears to have been discussion in the US Senate of
a booklet produced by the government of Panama entitled ‘This is the
Beginning of the End of the Colonial Enclave’.25
Few would argue that a doctrine of exception is required to rational-
ize the reversion of the Canal Zone to Panama. In the previous chapter,
it was submitted that the case is best viewed as involving the restoration
of Panama’s territorial integrity, in the conventional sense that Panama
retained sovereignty over the Zone during the period of US administration
(albeit residual sovereignty under the relevant treaty arrangements). This
view is not particularly controversial. It would appear then that the term
‘colonial enclave’ enjoys a currency that exceeds the narrow limits of a doc-
trine purporting to make normative sense of the exceptional treatment of
a small number of prima facie self-determination units. This may explain
why the term ‘colonial enclave’ is often invoked rather indiscriminately in
relation to small colonial territories that are claimed by contiguous States,
and why, when different commentators refer to ‘colonial enclaves’, they
often mean different things.26
The main doctrinal fault lines in the scholarship on ‘colonial enclaves’
seem to lie between those who lean towards an ‘irredentist’ understand-
ing of the principle of territorial integrity in certain situations, and those
who adhere more consistently to a more ‘conventional’ understanding of
the principle. The latter see the ‘colonial enclaves’ category as a narrowly
defined exception to the standard rule on self-determination in a colonial
context, rather than as an aspect of the rule. It will be argued that the lat-
ter approach is the only one capable of producing a coherent doctrine of
exception to the standard norms on decolonization.
The discussion that follows attempts to shed light on the conceptual
boundaries of the ‘colonial enclaves’ doctrine by charting its development
in international law scholarship, by reference to the separate writings of
four eminent authors: Rigo-Sureda, Crawford, Shaw, and Higgins.
25
For discussion of the booklet in the US Senate see: Panama Canal Treaties (United States
Senate Debate) 1977–8: 17 March – 19 April 1978, at 4283. See also ‘El Canal de Panama:
Enclave Colonial en el Corazon de Latinoamerica’ 6:1 Chasqui (1974) 71–3; X. Gorostiaga
Panama as a Colonial Enclave: Ten Theses on the Canal Enclave (Panama: sn 1974).
26
Politicians are even more prone to liberal uses of the term. For instance, President
Fernandez de Kirchner of Argentina has stated that the Falkland/Malvinas Islands are
‘one of sixteen colonial enclaves throughout the world, ten of which belong to the United
Kingdom’: ‘Cristina Fernandez “Colonial enclaves are an injustice”’ (2 April 2012):
www.bbc.co.uk/news/world-latin-america-17589301.
4.1.2.1 Rigo-Sureda (1973)

Rigo-Sureda provided the first systematic account of a ‘colonial enclaves’
doctrine.27 His work has been cited by those seeking to develop and apply
the doctrine.28 By the time of writing The Evolution of the Right of Self-
Determination in 1973 Rigo-Sureda had observed, amid the impressive
wave of 1960s decolonization, a small number of instances of international
practice in the course of which the inhabitants of Non-Self-Governing
territories were denied the opportunity freely to determine their post-
colonial political status. The apparent acquiescence of the international
community to the military annexation of Goa, Daman and Diu (where
no referendum was held by India to determine the wishes of the peoples
of those territories after the annexation), the ‘retrocession’ of the Spanish
Non-Self-Governing Territory of Ifni to Morocco (again without a ref-
erendum and without opposition from the General Assembly), and the
General Assembly’s preference for bilateral negotiations between the UK
and Spain to resolve the status of Gibraltar (along with its opposition to the
referendum organized by the UK in that territory in 1967) are all cases that
Rigo-Sureda considers in some detail.
In arguing that ‘colonial enclaves’ fall outside the normal rules that apply
regarding the self-determination of Non-Self-Governing Territories, Rigo-
Sureda suggests that the very concept of an enclave has been ‘enlarged’ by
General Assembly practice ‘so as to mean a small sized territory entirely
surrounded by a foreign country except for those parts where it is limited
by sea’.29
He goes on to argue that in relation to small colonial territories which
are islands rather than ‘enclaves’ the General Assembly recognizes ‘a fully
fledged right to self-determination’, although he does not offer a rationale
for this.30 In the case of ‘enclaves’ (in the broad sense he gives to the term),
he asserts that the General Assembly ‘appears to deny this right to the pre-
sent population of the enclave and favours a delimitation of the subject of
self-determination based on the assumption that the territory concerned
is already part of the state surrounding it’.31
27
A. Rigo-Sureda The Evolution of the Right to Self-Determination: A Study of United Nations
Practice (Leiden: AW Sijthoff 1973) in particular at 174–7, 218–19, 282, 288, 330.
28
E.g. Crawford (n 5) 337, fn 33; H. Hannum Autonomy, Sovereignty and Self-Determination:
The Accommodation of Conflicting Rights (Pennsylvania, PA: University of Pennsylvania
Press 1990; rev edn 1996) 37, fn 114.
29
Rigo-Sureda (n 27) 176, fn 36.
30
Ibid., 176.
31
Ibid., 176–7 (emphasis added).
According to Rigo-Sureda, title to a ‘colonial enclave’ is eroded by oper-
ation of contemporary international law so as to give the neighbouring
state, ‘on grounds of contiguity, an option to the territory when it comes
to delimit the subject of self-determination’.32 The principle that a Non-
Self-Governing Territory has a status ‘separate and distinct’ from the
State administering it may have been ‘solemnly declared’ by the General
Assembly33 but according to Rigo-Sureda geographical contiguity with the
neighbouring claimant State also matters:
. . . since geographical separateness is one of the factors according to which
a territory can be classified as being a colony according to resolution 1541
(XV), a contrario sensu this would mean that geographical contiguity
would operate, in the case of colonial enclaves, in favour of the nearby inde-
pendent state.34
This is therefore a doctrinal account that is highly permissive of irreden-

tist claims. At the same time, Rigo-Sureda appears reluctant to ground his
doctrine in an ‘irredentist’ interpretation of paragraph 6 of the Colonial
Declaration. Claims by enclaving States that their territorial integrity is
being breached in violation of paragraph 6 seem, in Rigo-Sureda’s view, to
run ‘contrary to [the] grammatical sense’ of resolution 1514(XV), which
relates to any (future) attempt to breach the territorial integrity of a State
or country.35
Other writers are less hesitant than Rigo-Sureda when it comes to mak-
ing a direct connection between ‘colonial enclaves’ and paragraph 6 of the
Colonial Declaration. For instance, Dugard refers to certain small enclaves
being subjected to special treatment as ‘an integral part’ of the claimant
State in situations where ‘priority is given to paragraph 6 of Resolution 1514
(XV)’.36 He refers to Ifni and Walvis Bay as examples. Elsewhere Dugard
asserts that the ‘colonial enclave’ argument is ‘firmly rooted in decoloniza-
tion law and practice, with foundations in Resolution 1514 (XV)’.37
Rigo-Sureda accepts that his own position on ‘colonial enclaves’ requires
the setting aside of the rule of non-retroactivity (sometimes expressed as
32
Ibid., 190, see also 192.
33
See GA Res 2625(XXV), 24 October 1970.
34
Rigo-Sureda (n 27) 174–5 (emphasis in the original). At fn 31 he cautions that ‘[t]his argu-
ment has to be limited to the cases of colonial enclaves, otherwise it could justify the annex-
ation of any colony by the neighbouring state’.
35
Ibid., 186.
36
J. Dugard International Law: A South African Perspective (Kenwyn: Juta & Co 1994) 114.
37
J. Dugard, ‘Review of L Berat Walvis Bay: Decolonization and International Law (New
Haven: Yale University Press 1990)’, 85 AJIL (1991) 751, 752–3.
the principle of inter-temporal law, which according to Arbitrator Huber’s
analysis in the Island of Palmas case requires that ‘[a] juridical fact must
be appreciated in the light of the law contemporary with it, and not of
the law in force at the time when a dispute in regard to it arises or falls to
be settled’).38,39 In addressing the question ‘[s]hould pre-colonial states or
empires be rebuilt?’ Rigo-Sureda concludes that the General Assembly has
answered in the negative ‘except, and within certain limits, in the case of
colonial enclaves’.40 The subject of self-determination, on this view, is not
the Non-Self-Governing Territory or its people but ‘the political unit to
which [the “colonial enclave”] belonged at the time of the colonial c onquest
or the successor of this unit’.41
The inclusion of ‘successor units’ in Rigo-Sureda’s analysis appears to be
a concession to the fact that entities like India and Indonesia did not exist
when places like Goa and West Irian were being invaded and colonized
by European powers. This view is unusual among Spanish commentators,
who tend to insist that the doctrine applies only to enclaves established
on the territory of a State that was already in existence at the time.42 This
would allow for the argument that Morocco’s claim to the Spanish enclaves
on its territory is unsustainable, on the basis that Morocco was supposedly
not a State at the time the territories (with the exception of the Chafarinas
Islands) came under Spanish control; by contrast, the Spanish claim to
Gibraltar is valid on this view because Spain was a State when it lost, and
then ceded, the territory in 1704 and 1713 respectively.43
In summary, Rigo-Sureda takes the view that pursuant to the law of
decolonization, colonial title to a territory is eroded in favour of a contigu-
ous State, and the right to self-determination in a territory is limited, when
all the following conditions are present: (i) the territory is a Non-Self-
Governing Territory; (ii) the territory is an ‘enclave’ (in the broad sense
he gives to the term, which encompasses small coastal territories as well as
38
39
Island of Palmas Case (Netherlands v USA) 2 Rep I AA (1928) 845.
40
Rigo-Sureda (n 27) 218–19.
41
Ibid., 219.
42
J. A. Gonzalez Vega, ‘Descolonización’, in R. Reyes (ed), Diccionario Crítico de Ciencias
Sociales (Madrid: Plaza y Valdes 2009). For a similar view in the Spanish press, see Q.
Lopez ‘Ceuta y Melilla no son Gibraltar’ Europa Sur (12 January 2014): www.europasur
.es/article/gibraltar/1684501/ceuta/y/melilla/no/son/gibraltar.html. This is also the view of
the Spanish government: see e.g. written response to parliamentary question 184/31554 (11
November 2013), Entrada 115670 (3 February 2014).
43
See e.g. Lopez (n 42). See also written response to parliamentary question 184/31554 (11
November 2013), Entrada 115670 (3 February 2014).
landlocked territories); (iii) the territory is subject to a claim by a territori-
ally contiguous State; and (iv) the claimant State is a ‘former sovereign’ in
the territory, or the ‘successor unit’ of a former sovereign.
According to Rigo-Sureda, the existing boundaries of ‘colonial enclaves’
are ‘only valid for the purposes of delimiting the subject of internal self-
determination’, on the grounds that the General Assembly ‘has requested
the present and former sovereigns to take into account the interests of the
population of those enclaves’.44 Aside from this, Rigo-Sureda asserts that
the population of the ‘colonial enclave’ in question is to be disregarded for
the purposes of self-determination.45
It is nevertheless important to note that, according to Rigo-Sureda
forceful intervention in a ‘colonial enclave’ by the ‘enclaving’ State is not
permissible under contemporary international law. He argues that none of
the General Assembly resolutions on colonialism and on the Portuguese-
administered territories authorized forceful intervention, noting that
India did not limit itself to liberating the Goans from Portuguese rule – it
also annexed the territory.46 He asserts that such an intervention is not
supported by General Assembly practice on ‘colonial enclaves’, and that
‘[o]n the contrary, the General Assembly has always recommended in
these cases – i.e. Gibraltar, Ifni – that a negotiated solution be found’.47
Rigo-Sureda makes a tentative attempt to set out an underlying ration-
ale for the ‘colonial enclaves’ doctrine, asserting that the ‘solution given to
the question of self-determination for colonial enclaves seems to respond
to the need of creating viable independent units’, though he acknowledges
that ‘this practice is inconsistent with the General Assembly’s uncondi-
tional demands for full fledged independence in the case of small islands’,
many of which are not independently viable.48
As will be seen, other accounts of the ‘colonial enclaves’ doctrine are
less comfortable with the notion of territorial contiguity as a root of title.
While Rigo-Sureda’s analysis attempts to tread carefully around Arbitrator
Huber’s formulation of the inter-temporal law principle in the Island of
Palmas case, it unquestionably falls foul of Huber’s assertion in the same
decision that the ‘principle of contiguity’ is not ‘admissible as a legal
method of deciding questions of territorial sovereignty; for it is wholly
44
Rigo-Sureda (n 27) 219 and 282.
45
Ibid., 190.
46
Ibid., 330.
47
Ibid.
48
Ibid., 219.
lacking in precision and would in its application lead to arbitrary results’.49
The point is well made by Jennings when he argues that:
. . . the proposition that contiguity is not an independent root of title is self-
evident, for it is by definition relative and immediately raises the question,
contiguous to what? A claim based on contiguity cannot in fact be other
than an assertion concerning the definition or extent of a sovereignty the
existence of which is accepted ex hypothesi.50
Brownlie states that the so-called ‘principle of contiguity’ is really ‘lit-

tle more than a technique in the application of the normal principles of
effective occupation’.51 Rigo-Sureda’s argument that contiguity affects title
to territory in the case of ‘colonial enclaves’ has not found widespread
support.
Doubts about the legal significance of contiguity are apparent in the
development and revision of Rigo-Sureda’s ‘colonial enclaves’ doctrine by
Crawford, who is more widely cited than any other author on the subject
and whose stature in the world of international law scholarship may have
contributed to the high levels of acceptance that the doctrine has received.
4.1.2.2 Crawford (1979 and 2006)

Crawford took up Rigo-Sureda’s ‘colonial enclaves’ idea in his seminal book
The Creation of States in International Law, which was first published in 1979
and then as a revised second edition in 2006. It is interesting to note that
while references to the term ‘colonial enclave’ were proliferating in the gen-
eral literature between 1973 and 1979 (to a large extent, as has been observed,
in connection with the Panama Canal Zone), there appear to be few if any
discussions of the doctrine in the international law literature during that
period. This is not because international law scholars were neglecting the
peculiar issues surrounding the decolonization of small territories or the
General Assembly’s equivocal approach to the application of self-determi-
nation in several of these cases. For instance, a lengthy and much-cited paper
by Franck and Hoffman in 1975 entitled ‘The Right to Self-Determination
in Very Small Territories’ is highly critical of the General Assembly’s per-
missive approach towards historical-ethnic claims in its efforts to dispose
of cases such as Western Sahara, East Timor, Djibouti, Belize, Gibraltar, and
49
Island of Palmas Case (n 39) 829.
50
R. Y. Jennings The Acquisition of Territory in International Law (Manchester: Melbourne
University Publishing 1963) 74.
51
I. Brownlie Principles of International Law (7th edn Oxford: Oxford University Press 2008)
143.
the Falkland/Malvinas Islands; territories referred to by the authors as the
‘flotsam and jetsam of empire’.52 The authors of that paper make no mention
of the ‘colonial enclaves’ doctrine as formulated in Rigo-Sureda’s often-cited
book, not even to dismiss it as irrelevant or misconceived.
Crawford takes a tentative stance regarding the existence of the ‘colo-
nial enclave’ category, a fact that is not always acknowledged by the many
authors who cite Crawford’s analysis of State practice in support of the
‘colonial enclaves’ doctrine.53 It is worth quoting Crawford’s formulation,
already referred to at the beginning of this chapter, at greater length:
But if there exists a further exception to the fundamental principle of self-
determination [further, that is, to cases where a third State retained sover-
eignty over a Chapter XI territory, such as in the case of ‘leased’ territories
like the Hong Kong New Territories and the Panama Canal Zone], in the
shape of ‘colonial enclaves’, international practice supports its application
only in the most limited of circumstances: that is, to minute territories
which approximate to ‘enclaves’ of the claimant State, which are ethnically
and economically parasitic upon or derivative of that State, and which can-
not constitute separate territorial units.54
Elsewhere, Crawford states that ‘claims to a Chapter XI territory on eth-

nic or strategic grounds are generally excluded, with the possible exception
of “colonial enclaves”’.55 There are also indications that he is reluctant to
assume ownership of the ‘colonial enclave’ idea, when he asserts that:
it has been said that certain territories are mere ‘colonial enclaves’ created
by colonizers on the territory of a surrounding State and having no legiti-
mate separate identity. In such cases, it is said, the principle of self-deter-
mination has no application, or is relevant only so far as the modalities of
transfer of the territory are concerned.56
Crawford takes issue with Rigo-Sureda’s treatment of the problem of

‘colonial enclaves’ as an aspect of the self-determination rule, arguing
instead that ‘it is better regarded as an exception to the rule’.57 He appears
52
T. Franck and P. Hoffman ‘The Right of Self-Determination in Very Small Places’ 8 NYU
JILP (1975–76) 331, 334.
53
See the authors and works cited at (n 4) above. Of these, Higgins stands out in drawing
attention to the tentative nature of Crawford’s position.
54
Crawford (n 5) 647 (emphasis added).
55
Ibid., 646 (emphasis added).
56
Ibid., 637 (emphasis added).
57
Ibid., 337–8. See also at 348 where he states: ‘The view taken by a majority of the General
Assembly has been that colonial enclaves constitute in effect an exception to the self-deter-
mination rule’.
not to endorse the notion that a ‘colonial enclave’ is an integral part of the
claimant State prior to decolonization, as is implicit in his discussion of
claims by ‘third States’ against Non-Self-Governing Territories.58 Indeed,
in his 1979 edition he appears sceptical with regard to the ‘exercise of
“relating back” colonial territories’ on the basis that this would ‘appear to
be a violation of the principle of the inter-temporal law’.59
Crawford thus avoids Rigo-Sureda’s equivocal approach to the inter-
temporal question and his problematic endorsement of contiguity as a
basis for annexing a ‘colonial enclave’. What emerges is a version of the
‘colonial enclaves’ doctrine that – while tentative – can be viewed as a more
coherent, narrowly construed doctrine of exception to the standard norms
on decolonization. Crawford appears alive to the dangers that acceptance
of a ‘contiguity’ thesis would pose to the coherence of a rule system in
which the relevant self-determination units are defined by reference to ter-
ritorial sovereignty rather than topography. He insists elsewhere on what
has been referred to in the present work as a ‘conventional’ interpreta-
tion of the principle of territorial integrity.60 To the extent that Crawford
accepts that ‘colonial enclaves’ can be treated differently, it is not by virtue
of the application of the principle of territorial integrity; rather, it is by vir-
tue of a narrowly defined exception to the normal application of the princi-
ple in a colonial context. This point is lost on some of those who purport to
embrace Crawford’s version of the ‘colonial enclaves’ doctrine; Duursma,
for instance, explicitly endorses Crawford’s account, while maintaining
that ‘[t]he principle of territorial integrity was effectively exercised in the
case of small colonial enclaves’.61
There is agreement between Crawford and Rigo-Sureda on the question
of the use of force by the ‘enclaving’ State. Crawford starts from the prem-
ise that invasion and annexation of a territory is illegal, and this illegality is
aggravated when the territory is a self-determination unit, before continu-
ing as follows:
The only difficulty that could arise is in the case of annexation of a territory
that is not, in the full sense, a self-determination unit but rather a ‘colo-
nial enclave’ . . . Assuming the validity of the distinction, it is nonetheless
58
Ibid., 637.
59
Crawford (n 7) 381.
60
E.g. Crawford (n 5) 645, where he states that there can be ‘no principle of reversion to some
earlier and superseded territorial formation’.
61
Duursma (n 12) 84. For Duursma’s endorsement of Crawford’s ‘colonial enclaves’ doctrine
see pp. 84–8, esp 85, fn 400.
the case that forcible annexation by the surrounding (‘enclaving’) State is
unlawful.62
He therefore disagrees with the Indian view that Article 2(4) of the UN
Charter, which contains a prohibition on ‘the threat or use of force against
the territorial integrity or political independence of any State, or in any
other manner inconsistent with the Purposes of the United Nations’, did
not apply to its annexation of Goa, arguing that:
. . . the better view is that Article 2 paragraph 4 applies to any established
de facto political boundary, and that, even in the rather special situation of
a colonial enclave, the international interest in peaceful settlement of dis-
putes takes priority over any specific claim of the enclaving State. The sig-
nificance of self-determination in this context is not so much that it cures
illegality as that it may allow illegality to be more readily accommodated
through the process of recognition, whereas in other circumstances aggres-
sion partakes of the nature of a breach of a peremptory norm and is not, or
not readily, curable by lapse of time or acquiescence.63
The suggestion that ‘self-determination’ may allow an illegal use of force

to be ‘more readily accommodated through the process of recognition’
should be read in light of Crawford’s earlier argument that the forceful
annexation of a self-determination unit does not extinguish the right to
self-determination ‘except, possibly, in the controversial case of the “colo-
nial enclave”, where the annexing State is the enclaving State and where the
local population acquiesces in the annexation’.64 The implication seems to
be that self-determination is expressed through the acquiescence of the
local population, rather than that the self-determination of the enclaving
State is at stake in the decolonization of a ‘colonial enclave’.
A difficulty seems to arise with Crawford’s insinuation that the bound-
ary between a ‘colonial enclave’ and the enclaving State could be viewed as
a mere de facto political boundary. While the boundary between, say, BIOT
and Mauritius might be viewed as a mere de facto political boundary under
international law, it is not necessary to rationalize BIOT according to a doc-
trine of exception; its reintegration with Mauritius appears justified by refer-
ence to a conventional understanding of the principle of territorial integrity.
The same might be said of Gibraltar, in the unlikely event that Spain were
able to establish that it ceded something less than territorial sovereignty
62
Crawford (n 5) 137–8.
63
Ibid.
64
Ibid., 147.
under the Treaty of Utrecht.65 In that event, there would be no reason to
regard Gibraltar as a prima facie self-determination unit, and the bound-
ary with Spain could be viewed as a mere de facto boundary. However, if a
doctrine of exception is necessary in order to rationalize Goa’s absorption by
the Indian Union, it is precisely because the boundary between those two
political entities was a de jure boundary at the time of annexation, and the
standard norms on decolonization do not allow for a ‘relating back’ to some
notion of the pre-colonial territorial status quo. Had the boundary between
Goa and India been a mere de facto boundary (which it was not, even accord-
ing to India, which had previously recognized Portuguese sovereignty) Goa
could have been considered an integral part of India according to a conven-
tional interpretation of paragraph 6 of the Colonial Declaration. Article 2(4)
of the Charter would have applied to the established de facto boundary, but
no recourse to a doctrine of exception of the type developed by Crawford
would be necessary in order to explain the outcome there.
These difficulties notwithstanding, it should be noted in fairness to
Crawford that his comments on ‘colonial enclaves’ are always carefully
qualified. In the passage quoted above he asserts that a difficulty ‘could’
arise in such a case, ‘assuming the validity of the distinction [between self-
determination units and “colonial enclaves”]’.66
When it comes to unpicking the underlying rationale for the ‘colonial
enclaves’ doctrine, Crawford, like Rigo-Sureda, does not go into a great
degree of detail. He does, however, grapple with the issue of the non-
viability of ‘colonial enclaves’ as a possible rationale for excluding certain
territories from the scope of the self-determination rule. One particular
passage, in which he describes the argument of Rigo-Sureda and others on
‘colonial enclaves’, states:
It has been argued that, at least in the case of fragments of territory [the
phrase ‘fragments of territory’ replaces the phrase ‘small non-viable territo-
ries’ used in the 1979 edition] claimed by a contiguous State, Article 6 [of the
Colonial Declaration] [on territorial integrity] takes priority over Article
2 [on self-determination], so that the only option for decolonization of the
territory is its transfer to the claimant State’.67
For Rigo-Sureda – who actually expresses some discomfort with invok-

ing paragraph 6 of the Colonial Declaration as a basis for the annexation
65
See Ch 3, p. 120 et seq. Compare Crawford (n 5) 643, fn 184, who argues that it is not clear
from Article X of the Treaty that there was a cession of sovereignty.
66
Crawford (n 5) 137.
67
Ibid., 638; the passage appears in Crawford (n 7) at 378.
of a ‘colonial enclave’ – the issue of ‘viability’ is key. His argument, which
was discussed above, is that the treatment of ‘colonial enclaves’ ‘seems to
respond to the need of creating viable independent units’.68 At the same
time he acknowledges an inconsistency: ‘this practice is inconsistent with
the General Assembly’s unconditional demands for full-fledged inde-
pendence in the case of small islands’.69
In Crawford’s 2006 edition he replaces the reference to ‘viability’ with
a spatial criterion (‘fragments of territory’), thereby moving towards a
rationale that is more refined, and avoiding the contradictions that asso-
ciating self-determination with viability gives rise to. In retaining his own
‘parasitological’ criterion (that the territory must be ‘ethnically and eco-
nomically parasitic upon or derivative of ’ the contiguous claimant State in
order to be classified as a ‘colonial enclave’), Crawford suggests a rationale
for the ‘colonial enclave’ exception that is based not on non-viability per
se, but on non-viability that manifests itself in the territory’s purportedly
‘parasitic or derivative’ relationship with the contiguous claimant State.
4.1.2.3 Shaw (1986)

Shaw elaborates more than any other writer on the purported rationale for
a ‘colonial enclave’ exception. In his 1986 work Title to Territory in Africa:
International Legal Issues Shaw acknowledges that the normal, dictionary
definition of an enclave does not apply to ‘colonial enclaves’.70 He provides
a definition of ‘colonial enclaves’ and a rationale for the existence of the
category that is worth quoting at length:
. . . in the case of colonial enclaves, the framework for discussion relates to
a relatively small area totally surrounded on the landward side by the ter-
ritory of one other State, thus allowing for a stretch of coast. This type of
enclave is a territory detached by a colonial power from the surrounding
territory and placed under the administration of a separate party from that
governing the dismembered State. In such cases, the United Nations has
adopted the doctrine that the country from which the enclave was origi-
nally taken should have the right to reacquire the territory. This approach,
which is fundamentally a concession to geographical and political reality,
is strictly limited, for UN practice demonstrates that smallness and pau-
city of resources are not to be regarded as a barrier to independence. It is
clearly aimed at preventing threats to international peace and security by
68
69
Ibid.
70
M. Shaw Title to Territory in Africa: International Legal Issues (Oxford: Clarendon Press
1986) 134.
the establishment of precariously independent small States or indeed the
maintenance of colonial status of areas surrounded on the landward side by
larger States with irredentist claims. It also amounts to a recognition of the
validity of historical claims in restricted situations.71
This is evidently a realpolitik rationale. Shaw bases his argument on the

importance of preventing threats to international peace and security that
arise when a State lays claim to a relatively small contiguous territory, with
the caveat that ‘in restricted situations’ the claimant State may actually have
a ‘valid historical claim’ that is recognized in the process of its ‘reacquiring’
the ‘colonial enclave’. As with Rigo-Sureda and Crawford, ‘non-viability’
also seems to be an issue, although Shaw’s formulation appears to suggest
that the ‘precariousness’ of a ‘colonial enclave’ that becomes a newly inde-
pendent small State stems not so much from its smallness and paucity of
resources (which according to UN practice are ‘not to be regarded as a bar-
rier to independence’) but rather from the very existence of the irredentist
claim. It is unclear whether in Shaw’s view the exercise of decolonization
options other than independence (such as integration or free association
with a State, or ‘the emergence into any other political status freely deter-
mined by a people’, as provided for in General Assembly Resolution 2625
(XXV)) would inevitably produce similarly precarious results.
Shaw points to cases like Ifni and Gibraltar as examples of territories
that have been treated as ‘colonial enclaves’ by the General Assembly.72 He
is less conclusive in relation to Walvis Bay, stating that the question of the
territory’s status as a ‘colonial enclave’ remains open (although it should be
borne in mind that he was writing some years prior to the incorporation
of that territory into Namibia).73 Shaw also rejects Rigo-Sureda’s assertion
that the special status afforded to Morocco, Mauritania, and Algeria with
regard to self-determination in the Western Sahara could be due to the lat-
ter’s status as a ‘colonial enclave’, arguing that such an explanation is unsat-
isfactory given ‘the size of the territory and the fact that it is bordered by
three States, not one’.74
Shaw makes numerous points regarding the ‘distinguishing characteris-
tics’ of ‘colonial enclaves’:
(a) the surrounding State, or former ‘possessor’, is entitled to a special sta-
tus during the decolonization process;
71
Ibid., 134–5.
72
Ibid., 136.
73
Ibid., 140.
74
Ibid., 136.
(b) the choice open to the inhabitants of the territory is strictly curtailed,
although their views are to be considered;
(c) no referendum is available to ascertain those views;
(d) once the status of ‘colonial enclave’ is established, the surround-
ing State possesses a prima facie right to assimilate the territory in
question;
(e) the right of self-determination is not exercisable by the population
save in the sense of ‘decolonization simpliciter’.75
4.1.2.4 Higgins (1983)

It is worth examining Higgins’ brief account of the ‘colonial enclaves’ doc-
trine, partly to demonstrate the influence that Crawford’s account has had
on one of the most highly qualified scholars and practitioners of interna-
tional law, and partly also because the rationale that Higgins advances in
support of the ‘colonial enclaves’ doctrine and its non-applicability to off
shore island territories adds an extra degree of nuance to the discussion.
Writing in 1983, Higgins argues that, when considering difficult self-
determination cases:
. . . some attention must be paid to the location of the entity seeking self-
determination. The suggestion has been made that re-integration may
be given greater weight than self-determination when the entity is a tiny
enclave within the territory of the claimant State.76
She cites Crawford in support of this proposition, while acknowledging

that he treats this phenomenon as a ‘possible exception’ to the self-deter-
mination rule and a ‘very limited one’.77 When dealing with the rationale
for the ‘colonial enclave’ exception she presents an argument that deals
with the apparently inconsistent treatment of off shore islands, a question
that had earlier troubled Rigo-Sureda:
Strong social and military considerations are obviously at stake, as well as
keen anxiety by the claimant State that full self-determination will create
disintegrative precedents. Conversely, these considerations, which have
militated in favor of a conservative interpretation of the scope of self-deter-
mination are less important in the case of off shore islands; in this situation
no reason of principle gives automatic priority to territorial claims over the
right to self-determination.78
75
Ibid.
76
Higgins (n 4).
77
Ibid.
78
Ibid.
These are, Higgins says, ‘tentative thoughts’. They were also written in the
context of the Falklands/Malvinas crisis, and relate to Higgins’ view that the
Argentine territorial claim is invalid and that the people of the Falkland/
Malvinas Islands should not be treated like ‘chattels in real estate’.79
Higgins’ comments also prompt consideration of whether a rational
distinction can be drawn between off shore islands and onshore enclaves,
especially coastal enclaves. Franck has criticized this ‘ultramarine’ dis-
tinction. He argues that in an ‘era of super-rapid communication across
natural barriers’, the fact that a territory is surrounded by water does not
provide a rational basis for treating cases which are in other respects alike,
differently in a decolonization context.80 Franck’s view arguably rings truer
today than ever. However, the debate over the ‘ultramarine’ distinction
is probably only relevant in contemporary practice if one considers the
Falkland/Malvinas Islands to be a prima facie self-determination unit. If
the Argentine uti possidetis claim is valid, there is no need to rationalize
the case of the Falkland/Malvinas Islands according to a doctrine of excep-
tion – it can be rationalized according to a conventional interpretation of
the territorial integrity principle. The only island territories considered
below are Perejil/Parsley Island, Alhucemas, and the Chafarinas Islands
(200 metres, 700 metres, and 3 km from the Moroccan shore, respectively).
The works considered above diverge considerably. There is no uniform
‘colonial enclaves’ doctrine. When the title of this chapter questions if ‘is
there a “colonial enclaves” exception?’, it is not concerned with doctrines
that seek to explain the ‘special’ treatment of certain territories by refer-
ence to putative aspects of the self-determination rule. Rather, it seeks to
understand whether there exists a rational justification for considering a
small number of prima facie self-determination units to fall outside the
scope of the self-determination rule. A genuine doctrine of exception need
not concern itself with territories over which irredentist claimants have a
valid claim to present-day territorial sovereignty.
4.2 Disputed Enclaves in Decolonization Practice –

Apparent Deviations from the Norm
The list of candidates for ‘colonial enclave’ status in the literature is long
and unwieldy. The reason for this was highlighted at the end of the last sec-
tion: some versions of the doctrine are not coherent doctrines of exception,
Ibid.
79
Franck (n 1) 166–7.
80
4.2 Disputed Enclaves in Decolonization Practice 179
but rather are grounded to a greater or lesser extent in an irredentist inter-
pretation of paragraph 6 of the Colonial Declaration. When paragraph 6
is invoked as a ‘catch-all’ justification for irredentist claims, it can be seen
to apply equally to cases like the Panama Canal Zone (over which Panama
retained sovereignty during the period of colonial administration) and
Goa (over which India did not enjoy sovereignty prior to its invasion of
the territory). It has been argued in this work that it is unnecessary to posit
a doctrine of exception in order to rationalize the cases of Mayotte, the
Chagos Islands, the Panama Canal Zone, Hong Kong, Macao, West Irian
and – possibly – the Falkland/Malvinas Islands. It is possible to rationalize
these cases in accordance with a conventional understanding of territorial
integrity, rather than as deviations from the self-determination rule.
This section will therefore turn to a discussion of a small number of cases
which appear to involve anomalous deviations from the self-determination
rule: the French territorial possessions in India, São João Baptista de Ajudá,
the Portuguese Dependencies in India, Ifni, Gibraltar, and Walvis Bay. While
some of these cases are considered for the first time, the cases of Ifni and
Gibraltar were considered earlier in this work. Ifni was dealt with in con-
junction with the Western Sahara case in Chapter 2. The present chapter will
consider whether the disposal of the territory can be explained on the basis
that it was a ‘colonial enclave’. In the case of Gibraltar, the focus will switch
away from the treaty-based arguments advanced by Spain, which were con-
sidered in Chapter 3, and onto the question of whether exceptional reasons
exist for setting aside external self-determination in the territory.
There is a degree of consensus among proponents of the ‘colonial
enclaves’ doctrine regarding the actual or former ‘colonial enclave’ status
of these territories, notwithstanding reservations expressed by Crawford
in relation to Gibraltar,81 and Shaw in relation to Walvis Bay.82
The cases below are dealt with in roughly chronological order with a
view to reflecting the historical development of international practice. The
analysis will include a consideration of whether there is any sense behind
the doctrinal designation of these territories as ‘colonial enclaves’.
4.2.1 The French Territorial Possessions in India

Administration of all the French territorial possessions in India was
transferred to India some years before the adoption of the 1960 Colonial
Crawford (n 5) 643, fn 184.

81
Shaw (n 70) 140.

82
Declaration. While it might be argued that the right of colonial self-deter-
mination had yet to crystallize at that time, the manner of decolonization
of some (though not all) of the territories, by means of annexation by India,
without regard to the freely expressed wishes of the affected populations,
is worth considering. This is so even if the fact that the decolonization of
the territories received no attention in the UN makes it difficult to derive
normative conclusions.
France’s territories in India consisted of five main settlements, numer-
ous ‘loges’ (tiny parcels of land that were ‘erstwhile French factories, or
trading posts’)83 and the four small, uninhabited Iskitippah Islands, which
had formed by accretion in the nineteenth century in the boundary river
between one of the settlements (Yanaon) and the Madras Presidency.84
Of the main settlements, the eastern coastal enclave of Pondicherry,
with 222,572 inhabitants at the time of decolonization, was by some meas-
ure the largest. Pondicherry was founded by the French in 1647. It changed
hands between the French, British, and Dutch during the course of colo-
nial wars, until it was returned finally to France by Britain under the 1814
Treaty of Paris.85 Upon its return to France, the suburbs of Pondicherry
were fragmented by agreement with the British into ten enclaves in the
neighbouring Madras Presidency, and a British enclave was preserved
within the main territory, thus leaving certain strategic areas under British
control.86
The French settlements of Karikal and Yanaon, with populations of
40,541 and 5,853, respectively, also lay on the east coast. Mahé, with a pop-
ulation of 18,293 was situated on the west coast. Chandernagore, with a
population of 44,786 was located north of Calcutta, and was the only one
of the five main settlements without a coastline.87 Of the total population
of French India in 1948, the number described as ‘European French’ is said
to be ‘less than 2000’.88
83
A. Yachury ‘L’Inde retrouvée: Loss and Sovereignty in French Calicut, 1867–1868’ in K.
Marsh and N. Frith (eds) France’s Lost Empires: Fragmentation, Nostalgia and la Fracture
Coloniale (Plymouth: Lexington 2011) 97, 107, fn 5.
84
G. Marston ‘Anglo-French Sovereignty Disputes in India, 1918–1947: Attempts at Peaceful
Settlement’ 63 BYIL (1992) 443, 444.
85
Art XII, Definitive Treaty of Peace, signed at Paris, 30 May 1814, Martens NR, II, 1;
Consolidated Treaty Series 63, 171.
86
R. H. Fifield ‘The Future of French India’ 19:6 Far Eastern Survey (1950) 62. For sketches of
the area, see P. Pitoëff ‘L’Inde française en sursis, 1947–1954’ 78 Revue française d’histoire
d’outre mer 105, 108–9.
87
Fifield (n 86) 62, and Marston (n 84) 444.
88
Fifield (n 86) 62.
The fate of the ‘loges’, which were scattered all over the subcontinent,
was resolved first. The largest and most significant loge, Frenchpettah,
was located on the outskirts of Masulipatam, on the east coast within the
Madras Presidency.89 Frenchpettah was said, in a description from 1862,
to have included ‘two bungalows, a chapel and some other buildings’.90
A number of other loges were located in Madras, Orissa, Bengal, and
Bombay.91 They are said to have covered ‘about ¾ sq. miles in total with a
population of 2000’.92
A note from the French chargé d’affaires to the Indian government on
14 August 1947 reportedly stated that the French government had decided
‘as a token of their will to settle all questions pending between the two
countries in the most friendly and comprehensive manner to hand over
to India the existing French “loges”’.93 France duly transferred the loges to
India in October of the same year.94 The India Office of the British govern-
ment described the transfer – presciently, and with a hint of satisfaction –
as ‘a first step towards the elimination of the French possessions in India’.95
France’s transfer of the loges was treated as a pure transfer of territory,
in marked contrast with its approach towards the five main settlements,
where ‘the people’ were accorded central importance.96 None of the loges
appears to have contained an organized political community. This has not
prevented the criticism (from within France) that the inhabitants were
French citizens and ought therefore to have been consulted about the
transfer.97 Dianoux asserts that in Pondicherry at the time the loges were
89
Marston (n 84) 444; also, T. Bowrey A Geographical Account of the Countries Around the Bay
of Bengal (New Delhi: Asian Educational Services 1993 (1905)) 64.
90
Bowrey (n 89) 64, fn 1.
91
A. K. Neogy Decolonization of French India: Liberation Movement and Indo-French Relations
1947–1954 (Pondicherry: Institut Français de Pondichéry 1997) 50.
92
Ibid.
93
Marston (n 84) 458.
94
Agreement by Exchange of Notes Regarding the Cession of the French Loges in India to the
Government of India (annex enclosed), 12 August – 30 September 1947, French Diplomatic
Archives, Agreement No 19470025. The date of the transfer was fixed by a further exchange
of notes, and it took place at a ceremony in Masulipatam on 6 October 1947 (3–4 October
1947, Agreement by Exchange of Notes Regarding the Date of the Cession of the French
Loges to the Government of India, French Diplomatic Archives, Agreement No 19470031).
95
PRO India Office Records: L/P & S/12/4434, cited in Marston (n 84) fn 87.
96
Neogy (n 90) 100.
97
H. J. de Dianoux Les Loges françaises dans l’Inde et au Bangladesh et les îles Spratly (Paris:
Académie des sciences d’outre mer 1986), cited in J. Weber Pondichéry et les comptoirs de
l’Inde après Dupleix (Paris: Denoel 1996) 364.
transferred, the attitude towards these sites was one of complete disinter-
est, with no awareness of their size or even their location.98
Discussions over the broader fate of French India took place between
the French and Indian governments in New Delhi in 1948. In June of that
year France informed India of its commitment to ensuring that the future
of the five main settlements would be decided in accordance with a ‘free
and sincere consultation’, with the result of the consultation applying to
each of the territories separately, rather than globally.99
In reply, Nehru indicated his agreement ‘that the future of French
establishments in India should be decided at the earliest opportunity in
accordance with the freely expressed desire of their inhabitants . . . without
application of internal or external pressure’.100
The manner of decolonization in landlocked Chandenagore was
broadly in line with the apparent Franco-Indian consensus that the popu-
lations should freely determine the post-colonial status of the territories.
In September 1948, elections to the municipal council of the enclave
returned a strong pro-Indian majority. The local government wished to
merge with India forthwith, and communicated this desire to the French
government, which insisted that a change of allegiance would only be pos-
sible following a plebiscite. A referendum was held ‘under protest’ of the
local authorities on 19 June 1949.101 Despite local apprehension concern-
ing the possibility of French interference in the process, the result of the
vote was overwhelmingly in favour of a merger with India, by a margin
of 7,463 to 114.102 France honoured the result, transferring de facto sov-
ereignty to India on 14 August 1949, the second anniversary of Indian
independence.103 Chandernagore was eventually ceded to India by an
agreement dated 2 February 1951.104
The decolonization of Pondicherry, Karikal, Yanaon, and Mahé proved
more controversial. Municipal elections in the territories returned pro-
French majorities, prompting Indian accusations that the elections had
98
J. Weber, ‘Review of HJ de Dianoux Les Loges françaises dans l’Inde et au Bangladesh et les
îles Spratly (Paris: Académie des sciences d’outre mer 1986)’ 77 Revue française d’histoire
d’outre-mer (1990) 287, 325.
99
French Ambassador in New Delhi to Nehru (29 June 1948), cited in Fifield (n 86) 62.
100
Nehru to French Ambassador (29 June 1948), cited in Fifield (n 86) 62–3.
101
Fifield (n 86) 64.
102
Ibid.
103
Ibid.
104
Franco-Indian Agreement (signed 2 February 1951) 203 UNTS 156.
been rigged.105 The locally elected politicians agreed that a referendum
would be held on 11 December 1949. They also agreed that there must be a
guarantee of ‘complete autonomy’ during a 30-year transition period if the
vote resulted in a change of allegiance.106
In early 1949, France asked the President of the ICJ to nominate neutral
observers for the plebiscites. President Jules Basdevant, a Frenchman, passed
the request onto the Vice President of the Court, José Gustavo Guerrero, who
agreed to deal with the matter ‘in his personal capacity’.107 This appointment
irked the Indian authorities, which had been denied a formal observer role
by France. India began to express concerns over whether the conduct of the
plebiscites would be fair, and to raise doubt over whether France would hon-
our the vote. A spokesman for the Indian Ministry of External Affairs com-
mented at the time of Guerrero’s appointment that an adverse vote for India
‘would not mean that the subject is closed for ever’, while communicating
India’s willingness that the territories should remain autonomous.108 India’s
increased reticence on the holding of a referendum may have been connected
to the fact that the UN had insisted, on 5 January of that year, that a referen-
dum should be organized in Kashmir to determine the wishes of the popula-
tion, which was 77 per cent Muslim and largely opposed to Indian rule.109
The referendum that had been planned for Pondicherry, Karikal,
Yanaon, and Mahé in December 1949 was at first delayed and eventu-
ally abandoned after India and France failed to agree on the modalities
of the vote.110 The turning point came when prominent local politicians
in the territories, who had previously favoured maintenance of the status
quo, decided to switch allegiance.111 Their change of heart appears to have
been motivated by personal self-interest and opportunism, rather than by
a desire among their constituents to merge with India. The leader of the
Pondicherry council, Edouard Goubert, has been singled out for special
criticism in this regard.112 On 18 March 1954, the Pondicherry Council
105
Neogy (n 91) 116–17 details criticism in the India press and by Indian politicians who had
observed the elections.
106
Fifield (n 86) 63.
107
Neogy (n 91) 140. Fifield (n 86) 63.
108
Fifield (n 86) 63.
109
Resolution adopted at the meeting of the UN Commission for India and Pakistan (5
January 1949): UN Doc 5/1196 (1949) para 15.
110
Neogy (n 91) 163.
111
According to Neogy (ibid., 243) this ‘changed the whole situation’.
112
Weber (n 97) 389 makes particular mention of Edouard Goubert, the leader of the
Pondicherry council, who was facing charges of fiscal fraud in India on account of his
alleged role in smuggling activities: ‘Entre la prison et l’Union indienne, il a choisi l’Union
voted to merge with India without a referendum, and the three remaining
French settlements followed suit shortly after. A demonstration organized
in Pondicherry, two days after the Council vote, in support of merger with
India was apparently a ‘resounding failure’.113 The situation on the ground
nevertheless made the continuation of French administration untenable,
and France was forced to make a de facto transfer of its administration over
the territories on 21 April 1954.114 The consent of the local populations to
the transfer was obtained after the event and indirectly, through a vote of
local representatives on 19 October 1954 in Kijeour.115 The vote – 170 to
8 in favour of the merger – is described by Neogy as ‘ . . . a parody of con-
sultation. France had to agree to this as a sop to satisfy her constitutional
requirements and India had to accept the verdict given by the members of
the Municipal Councils and Representative Assembly whose elections she
had protested as irregular’.116
France ceded sovereignty over the territories on 28 May 1956.117 In a
debate in the French Senate prior to the ratification of the territorial trans-
fer, the Minister of Foreign Affairs conceded that the manner of transfer
of Pondicherry, Karikal, Yanaon, and Mahé appeared inconsistent with
the spirit, if not the letter, of the stipulation in the French Constitution
that ‘nulle cession de territoire n’est valable sans le consentement des pop-
ulations interessées’.118 In the Minister’s view nothing short of a vote by
direct suffrage would have sufficed in order to meet this requirement. The
Minister stated that during the negotiations leading to the treaty ‘le gou-
vernement français a toujours demandé que soit appliqué le principe du
referendum’, but that the de facto situation on the ground, which France
had been pressured into accepting, was now irreversible.119 The treaty of
cession was duly ratified on 16 August 1962.120
indienne’ (in the words of a letter dated 25 March 1954 addressed to the French Minister
for overseas territories).
113
Ibid.
114
J. Charpentier, ‘Pratique française concernant le Droit Internationale Public’ 1 AFDI
(1955) 593, 595.
115
J. Charpentier, ‘Pratique française du Droit International Public’ 8 AFDI (1962) 985, 1014.
116
Neogy (n 91) 270.
117
Franco-Indian Treaty (signed 28 May 1956) 162 BFSP 848.
118
Charpentier (n 114) 1014. Article 27 of the 1946 Constitution, then in effect, is worded
similarly to Article 53 of the 1958 Constitution, which was in effect at the time the Minister
made his comments.
119
Ibid.
120
Décret No. 62-1238 of 25 September 1962, Journal officiel de la Republique française (23
October 1962).
Decolonization practice from the 1960s onwards suggests that French
scruples about the ‘principe du referendum’ are not universally shared. In
the Cook Islands, for example, decolonization by way of free association
with New Zealand took effect after elections to the Legislative Assembly of
the territory, and a vote by that body in favour of the new constitutional
arrangement. While some States objected that a referendum would have
been preferable in that instance, the preferred view within the General
Assembly was that the absence of a referendum was not, of itself, an obsta-
cle to the decolonization of the Cook Islands in accordance with the prin-
ciple of self-determination.121 However, even under this more flexible
standard, it is difficult to view the decolonization of Pondicherry, Karikal,
Yanaon, and Mahé as the product of an indirect exercise of the popular
will. The political leaders in those territories – unlike their counterparts
in Chandenagore – had no electoral mandate to pursue integration with
India. Indeed, they appear to have lost the support of their constituents
after their dramatic switch of allegiance.122 The affected populations – with
the ‘possible’ exception of Mahé – appeared to the team of neutral observ-
ers appointed by ICJ Vice-President Guerrero to have favoured a continu-
ation of the status quo.123 It seems that the local political elite, in concert
with the Indian Union, paid little regard to the wishes of their constituents
in pushing a merger through, over the heads of the French authorities.
It should be evident that the decolonization of French India cannot
be summarized according to a single, cohesive narrative. The transfer
of the loges appears to have been treated by France and India as a mere
‘real estate’ issue, while the decolonization of Chandenagore proceeded in
accordance with the wish of the affected population – freely expressed in
a referendum – to merge with the Indian Union. However, the treatment
of Pondicherry, Karikal, Yanaon, and, arguably, Mahé, is an early example
121
See UN Ybk (1965) 572, for a record of the objections of Mali and Yugoslavia. The General
Assembly took the view that under the new constitution, the Cook Islands had attained
‘full internal self-government’, and that it was no longer necessary for New Zealand to con-
tinue to transmit information on the territory under Article 73e of the Charter: see GA Res
2064 (XX), 16 December 1965, para 5.
122
Weber (n 112) 389; also Neogy (n 91) 270, who states that the hamlet of Kijeour was cho-
sen as the location for the final consultation because the mere presence of Goubert and
Muthupillai in Pondicherry might have provoked disturbances. After decolonization,
Goubert was promptly ousted from the Pondicherry Council in municipal elections.
123
According to the committee of observers, the affected populations in the remaining settle-
ments – with the ‘possible’ exception of Mahé – favoured a continuation of the status quo.
The unpublished report of the committee is referred to in G. Chaffard Les Carnets secrets de
la décolonisation I (Paris: Calmann & Levy 1965) 214.
of the decolonization of small coastal enclaves by way of absorption into
the contiguous State, with little regard, if any, being paid to the wishes of
the affected populations. The fact that this episode escaped the oversight,
and even the attention, of the UN General Assembly is perhaps a result of
the low strategic importance accorded to the territories by France, which
was preoccupied by the First Indochina War of 1946–54, and had nei-
ther the appetite nor the means to resist the Indian takeover. The lack of
UN involvement also makes it difficult to locate these territories within a
rational account of the development of an international law of decoloniza-
tion. Nevertheless, some of the distinctive issues that arise in connection
with the disposal of the ‘loges’, Chandenagore and the remaining settle-
ments respectively, foreshadow issues arising with regard to some of the
other ‘hard’ cases discussed in this chapter.
The next case that will be examined is that of São João Baptista de Ajudá,
a territorial unit comparable in physical and political terms to a French
loge, whose perceived significance in the history of decolonization is out
of proportion to its miniscule size.
4.2.2 São João Baptista de Ajudá

The former Portuguese fort that today houses the local museum in the port
of Ouidah, Benin, was once one of the world’s smallest territorial units.
It was known as São João Baptista de Ajudá, and covered a mere 0.045
square kilometres. There are conflicting accounts of when it was estab-
lished. According to one account, the Portuguese governor of São Tomé
and Príncipe established the fort in 1680; another historian maintains that
the 1680 initiative was unsuccessful, and that the fort was eventually built
in 1721.124
For a time, São João Baptista de Ajudá gave Portugal a lucrative foot-
hold in the trafficking of slaves from West Africa to Brazil. After the aboli-
tion of the slave trade the importance of the fort to Portugal diminished.
Although it was abandoned for short periods in the eighteenth and nine-
teenth centuries, it remained under continuous Portuguese occupation
from 1872 up until 31 July 1961, when it was overrun by forces from the
recently established independent State of Dahomey (which had been
P. Verger Le Fort St Jean-Baptiste d’Ajuda (Dahomey: Institut de Recherches Appliquées

124
1966) 41, fn 4. The suggestion that the Fort was actually built in 1680 is from an 1844
account by J. J. Lopes Lima (which Verger contradicts, while providing no reference in
support of his own view).
part of French West Africa from 1894 to 1960, and was renamed as Benin
in 1975).
Throughout its history, São João Baptista de Ajudá appears to have been
manned by a very small detachment of military and auxiliary personnel.125
It never housed a stable civilian population. The two Portuguese adminis-
trators who were its only inhabitants on the day it was seized attempted to
burn it down as they fled.
Dahomey’s action, despite involving a straightforward violation of
Article 2(4) of the UN Charter, which prohibits the use of force against
the territorial integrity of another State, appears, unusually, and perhaps
uniquely in the history of decolonization, to have drawn no significant
external condemnation. It occurred some seven months after the inclu-
sion of São João Baptista de Ajudá in General Assembly Resolution 1542
(XV)126 (which focuses on Portugual’s obligation to transmit information
to the General Assembly on its ‘Overseas Territories’ in accordance with
Article 73e of the UN Charter) and five months before the forcible annex-
ation of Goa and Dependencies by India. Unlike the case of Goa, there
were – unsurprisingly, given the absence of civilian inhabitants in São João
Baptista de Ajudá, no concerns raised within the UN regarding the right of
the ‘people’ of the annexed territory to self-determination.
The designation of São João Baptista de Ajudá as a ‘Non-Self-Governing’
Territory (or to use the longhand from Chapter XI of the Charter, a terri-
tory whose people had ‘not yet attained a sufficient measure of self-gov-
ernment’) was curious, because the absence of a civilian population would
appear to render the issue of self-governance redundant. It may suggest
that the General Assembly is concerned not only with territories whose
peoples wish to emancipate from colonial rule, but also with decoloni-
zation simpliciter, in circumstances where the self-determination of the
decolonizing unit is not at issue and where there is a dispute over the terri-
tory that poses a threat to peace.127
Some commentators have attempted to bring São João Baptista de
Ajudá within the ‘colonial enclaves’ category. Shaw argues that ‘[c]laims
to the maintenance of colonial enclaves appeared to reach their ultimate
125
An inventory from 1728, shortly after the fort was established, shows only five individuals
on the payroll: Verger (ibid.) 22. In the late nineteenth century, the fort’s population was
recorded as consisting of a priest, a sub-lieutenant, and five soldiers: Ibid., 180.
126
127
See Shaw (n 70) 136. It appears that the Assembly has no interest in the decolonization of
uninhabited undisputed territories (e.g. the McDonald and Heard Islands: see Ch 3, p. 32,
fn 139).
absurdity in the case of the Portuguese enclave of Sao Joao Baptista de
Ajude’.128 The inclusion of São João Baptista de Ajudá within the same
putative ‘colonial enclaves’ category as, say, Goa, a much larger territory
whose longstanding civilian population numbered more than half a mil-
lion at the time of the Indian annexation, is open to question. Indeed, it
could be argued that if there are so many ways to be a ‘colonial enclave’, the
category is so porous that it lacks conceptual coherence and meaning. The
analogy between the cases of São João Baptista de Ajudá and Goa appears
to rest on the argument that both were ‘enclaves’ and that the Goans –
like the administrators of São João Baptista de Ajudá – were not a genuine
‘people’ and were thus not entitled to determine the external status of the
territory. There are serious difficulties with this argument, as will become
apparent in the following subsection, which deals with the decolonization
of Goa, Daman and Diu.
4.2.3 Goa and Dependencies

Goa, Daman, and Diu (sometimes referred to collectively as ‘Goa and
Dependencies’) are three territories situated on the western coast of the
Indian subcontinent. Colonized by Portugal in the 1500s, they formed
what became known as the Estado da India together with the enclaves of
Dadra and Nagar-Haveli. The military annexation of Goa, Daman and Diu
by India in December 1961, and the international community’s appar-
ent acquiescence to the annexation, is widely cited as an early example of
the ‘colonial enclaves’ doctrine in operation. Proponents of the ‘colonial
enclaves’ doctrine point to what they see as the international community
privileging India’s territorial claim over the self-determination of the peo-
ples of those territories. A close examination of this case reveals a different,
albeit rather complex picture.
4.2.3.1 Goan Self-Determination as the Rhetorical

Driving Force Prior to the Indian Invasion in 1961
Just as it had done in relation to French India, the Indian Union set its
sights, post-independence, on absorbing the Portuguese enclaves on its
Arabian seaboard.129 As with the French settlements, the rhetoric India
Ibid., 329, fn 309.

128

129
Statement by Nehru in Lok Sabha while introducing the Constitution (Twelfth
Amendment) Bill (14 March 1962), Nehru’s Speeches Vol IV (n 21) 43: ‘We took it for
granted that when British rule ceased in India, the other enclaves would also be freed. We
employed in support of its designs was heavily focused on the ‘liberation’
of the peoples of those territories from oppressive colonial rule. India’s
cause was helped in this respect by international perceptions of Portugal’s
track record in its colonies, which had long been unfavourable.130
The rhetoric of Goan self-determination was India’s main diplomatic
weapon in its efforts to expel Portugal from the enclaves, even if it was
interwoven with notions of Indian territorial entitlement. At a Bombay
rally in 1956, Nehru stated:
If the people of Goa . . . deliberately wish to retain their separate identity, I
am not going to bring them by processes of compulsion or coercion into
the Indian Union. I want them to come and I am quite certain they want to
come too. But that is not the point. I merely say that my national interest
involves the removal of the Portuguese from Goa and not the use of any
coercion in bringing about the union of Goa with India although I wish it,
I desire it and it is the only solution . . . [T]hat is a matter ultimately for the
people of Goa to decide . . . [A] small territory like Goa with thousands of
intimate contacts with the rest of India, cannot flourish, cannot advance or
progress as an isolated small entity . . . I want to make it perfectly clear that I
have no desire to force Goa to join India against the wishes of the people of
Goa . . . But the point is that we feel that Goa’s individuality should remain.
Whenever the time comes for any changes, internal or other, it will be for
the people of Goa acting freely to decide upon them.131
Five years later, and only a few days before the invasion of the territories,
Nehru stated: ‘It is not a question of imposing ourselves on the people of
Goa. It is the wish of the people of Goa that should remain uppermost’.132
The emphasis on Goan free will was not entirely consistent, however;
Nehru is cited by Portugal in the ICJ Right of Passage proceedings as having
said that he was ‘not prepared to tolerate the presence of the Portuguese in
Goa even if the Goans want them there’.133
No caveats to Goan self-determination were present in the position
adopted by the General Assembly, which rejected Portugal’s assertion that
the territories were sociologically, politically and juridically an integral
never thought that there would be any difficulty about them. And so, when independence
came, our thought went to these enclaves, French and Portuguese’.
130
See generally e.g. R. S. Whiteway The Rise of Portuguese Power in India 1497–1515 (New
Delhi: Kessinger 1899).
131
Speech delivered in Bombay (4 June 1956) in M. Hasan et al. (eds.) Selected Works of
Jawaharlal Nehru Second Series Vol 33 (New Delhi: Oxford University Press 2004) 410–12.
132
From reply to debate in Rajya Sabha (11 December 1961), Nehru’s Speeches Vol IV
(n 21) 34.
133
Right of Passage over Indian Territory (India v Portugal) [1960] ICJ Pleadings Vol IV, 588–89.
part of Portugal and therefore not Non-Self-Governing Territories that
fell under Chapter XI. In Resolution 1542 (XV), adopted on 15 December
1960 (the day after the Colonial Declaration), the General Assembly
required Portugal to report on the territories in accordance with Article
73e of the Charter.
Portugal failed to comply with Resolution 1542 (XV), and continued
to refuse to acknowledge the separate, non-self-governing, status of its
overseas territories or a right of self-determination vested in the peoples
of those territories. Indian troops, who had begun to mass at the Goan
border shortly after São João Baptista de Ajudá was annexed by Dahomey,
invaded Goa, Daman and Diu on 17 December 1961 and annexed the ter-
ritories by force.
4.2.3.2 A Shift in the Indian Rhetoric after the 1961 Invasion

India’s post-invasion rhetoric was still strongly ‘anti-colonial’. However,
a shift in emphasis in India’s arguments can be observed in the Security
Council debates that took place in the wake of the invasion. India claimed
that it was acting in accordance with the requirement to decolonize pur-
suant to the Colonial Declaration and also pursuant to Resolution 1542
(XV), which had recognized Goa as a Non-Self-Governing Territory under
Article 73 of the UN Charter. However, the primacy of Goan self-determi-
nation was to give way to India’s sense of territorial entitlement. The Indian
delegate in the Security Council stated that the ‘Goa question’ was:
A colonial question, in the sense that part of our country is illegally occu-
pied – occupied by right of conquest by the Portuguese . . . Portugal has
no sovereign right over this territory . . . If any narrow-minded, legalistic
considerations arising from international law as written by European law
writers – should arise, those writers were, after all, brought up in the atmos-
phere of colonialism. I pay all respect due to Grotius, who is supposed to be
the father of international law, and we accept many tenets of international
law. But the tenet . . . quoted in support of colonial Powers having sovereign
rights over territories that they acquired in Asia and Africa is no longer
acceptable . . . We cannot accept the position that there is any legal frontier,
that there can be any legal frontier in our country or, for that matter, any
country. India is one; Goa is an integral part of India.134
Various justifications were put forward by India for its military action.
The ‘liberation’ of the peoples of Goa, Daman, and Diu continued to feature,
but only to the extent that these peoples were ‘Indians’ and the territories
UN Doc S/PV.987 (18 December 1961) paras 46–7 and 60.
134
they inhabited were ‘integral parts’ of India, thereby justifying the absorp-
tion of the territories into the Indian Union. As the Indian delegate put it:
. . . there can be no question of aggression against your own frontier, or
against your own people, whom you want to liberate.135
Among other arguments advanced, India claimed a right of self-defence

against what it considered to be a continuing 450-year old aggression.136
4.2.3.3 A Divided International Response

A draft Security Council resolution supportive of the Indian action, spon-
sored by Ceylon, Liberia, and the United Arab Republic, received the support
only of its sponsors and of the USSR and was opposed by the remaining mem-
bers of the Council. A second draft resolution sponsored by the UK, USA,
France, and Turkey, ‘deploring’ the Indian action as a violation of Articles 2(3)
and (4) of the Charter, received the support of the sponsoring States as well as
Chile, Ecuador, and Nationalist China. As the Chilean delegate stated:
Neither historical possession [Portugal] nor violent possession [India]
should prevail, but the freely expressed wishes of the inhabitants of the dis-
puted territories.137
The US delegate for his part stated as follows:

The US stand on the colonial question is that we wholeheartedly believe in
progress, in self-government and in self-determination for colonial peoples.138
There was no acceptance within the Security Council that the right of
self-determination enshrined in the Colonial Declaration was inapplicable
in this case. According to Franck, three of the Security Council members
that condemned the Indian military action (Nationalist China, Chile, and
Ecuador) ‘seemed to understand that both disputants were guilty of violat-
ing fundamental norms of the Charter: Portugal, by denying the populace
self-determination; and India, by taking the law into its own hands’.139
In the event, the second draft resolution was vetoed by the USSR. The
subsequent reaction of the General Assembly was to pave the path for
international acquiescence to the new territorial status quo.
135
Ibid., para 46.
136
Ibid.
137
UN Doc S/PV.988 (18 December 1961) para 30.
138
Ibid., para 90.
139
T. M. Franck Nation against Nation: What Happened to the UN Dream and What the US
can Do about It (Oxford: Oxford University Press 1985) 55.
The General Assembly adopted Resolution 1699 (XVI) on 19 December
1961 (by ninety votes to three with two abstentions), which noted ‘with
deep regret’ and condemned the Government of Portugal’s continuing
refusal to comply with its obligations under Chapter XI of the Charter and
Resolution 1542 (XV). The preamble of Resolution 1699 (XVI), unlike that
of 1542 (XV), makes an explicit reference to the Colonial Declaration. It
recalls ‘the principles set forth in . . . resolution 1514 (XV) of 14 December
1960 entitled “Declaration on the granting of independence to colonial
countries and peoples”’ which it said was ‘fully applicable to the Territories
under Portuguese administration equally with other Non-Self-Governing
Territories’ (emphasis added).
While the resolution is notable for its failure to condemn, or even regret,
the Indian use of force, there is nothing in the resolution that places Goa,
Daman and Diu within a special class of Non-Self-Governing Territories
on the basis of their relatively small size, the composition of their popu-
lations, their supposed non-viability as self-determination units or any
other factor. There is also no suggestion that the Portuguese presence in
those territories violated the territorial integrity or national unity of India,
although India and some of its supporters in the Security Council (e.g.
Ceylon, Liberia, and the United Arab Republic) were clearly of this view.
Rather, the General Assembly was insistent on Portuguese compliance
with Chapter XI and Resolution 1514 (XV), and considered that Portugal
‘must, for its part, continue to discharge its own obligations towards the
inhabitants of the Non-Self-Governing Territories under Portuguese
administration’.140 It certainly does not appear that the General Assembly
was content for the right of self-determination to be set aside.
Despite the wording of Resolution 1699 (XVI), it soon became apparent
that there would be no self-determination plebiscite for the inhabitants of
Goa, Daman and Diu. The territories were incorporated into the Indian
Union, and Portugal eventually recognized Indian sovereignty over Goa,
Daman, Diu, Dadra, and Nagar Haveli in 1974.141
Dugard sees in the Goa case a tension between two fundamental norms –
the prohibition on the use of force and what he calls ‘the advancement of
At para 2 (emphasis added).

140
Indo-Portuguese Treaty on Recognition of Indian Sovereignty over Goa, Daman, Diu,

141
Dadra and Nagar-Haveli and Related Matters (signed 31 December 1974, entered into
force 3 June 1975) [1974] ITS 53. Article 1 states that Portugal recognizes Indian sov-
ereignty over the territories ‘from the dates when they became part of India under the
Constitution of India’.
decolonization’, with the latter prevailing in the long term in the instant
case.142 As the above discussion has shown, ‘the advancement of decol-
onization’ in a given case may mean different things to different States.
However, it is submitted here that the Indian ‘irredentist’ vision eventu-
ally imposed on the inhabitants of Goa, Daman and Diu, based on the
claim that the territories were integral parts of India and their inhabitants
were ‘Indians’, was never endorsed by the Security Council or the General
Assembly.
4.2.3.4 A New Legal Doctrine Subversive

of Eurocentric International Law?
The fact that Portugal held legal title to its colonies in the Indian subconti-
nent was affirmed by the ICJ in the Rights of Passage Case.143 The Supreme
Court of India held in the 1981 case of Gosalia v. Agarwal concerning the
enforcement of mining rights conferred prior to the annexation that ‘[t]
he territories comprised in Goa, Daman and Diu under . . . Portuguese rule
were annexed by the Government of India by conquest’.144 Crawford notes
that India had previously recognized Portuguese sovereignty over the three
territories, while claiming their return.145 There can be no doubt that Goa,
Daman and Diu were de jure separate from India prior to the annexation.
At the time of the invasion, India sought to circumvent the problem of
its lack of title by attacking what it saw as the ‘unfair’ dictates of Eurocentric
international law.146 It is also interesting to note the Indian view that the
Colonial Declaration ‘is the embodiment of that great leap forward in the
public opinion of the world on these matters’, a position that the Indian
delegate described as the ‘new dictum of international law’.147
India’s purported rejection of European-inspired tenets of international
law is unconvincing. The Colonial Declaration, and the contemporary
decolonization norms that it enshrines, are nothing if not subversive of
ancient colonial title. This is why Portugal was so resistant to the notion
that these norms should apply to Goa and its other overseas territories.148
142
J. Dugard Recognition and the United Nations (Cambridge: Grotius 1987) 116.
143
Right of Passage over Indian Territory (Portugal v India) [1960] ICJ Rep 6, 12 and 20 (where
the ICJ held that the validity of Portugal’s titles had been ‘fully established’).
144
(1981) 118 ILR 429, 432, para 5, per Chandrachud C. J.
145
Crawford (n 5) 138.
146
UN Doc S/PV.988 (18 December 1961) para 79.
147
Ibid.
148
See comments of the Portuguese representative, at UN Doc A/PV.1083 (19 December 1961)
1099–101. At 1100, para 199, he calls Resolution 1542 (XV) an ‘illegal recommendation’.
India’s problem was that it was unwilling to accept any outcome other than
the absorption of Goa, Daman and Diu. If it had proclaimed a willingness
to hold a self-determination referendum (or referendums) in the territo-
ries, its arguments in the Security Council would have seemed less trans-
parently self-serving. Its failure to conduct a popular consultation was
perhaps connected with its reluctance to do so in Kashmir, rather than
to any anxiety that the populations of Goa, Daman and Diu would vote
against a merger with India.
India has been known to take a very different argumentative approach
when the irredentist boot is on the other foot. In what has been described
as an ‘ironic sequel’ to the invasion of Goa, China invaded part of Indian
territory in the Himalyas the following year, claiming that the area had
been wrongfully seized from China by Britain, and relying on the Goa
incident as a precedent.149 An Indian Boundary Commission declared that
it was ‘unprecedented in the history of international relations that after
one state has publicly exercised full administrative jurisdiction for several
centuries over certain regions, another state should raise a dispute regard-
ing their ownership’.150
The eventual denial of external self-determination in the cases of Goa,
Daman and Diu was a by-product of the vindication by India of a his-
torical claim to territory, a claim that Wright submits was based on moral
and political, rather than legal, arguments.151 For Brilmayer, the rhetoric
adopted by India in redressing what it saw as a historical wrong and in
pursuing what was in essence a territorial claim was ‘ill-adapted to the task
because it focused on the self-determination rights of the inhabitants’.152
Territorial expansionism and ‘self-determination’ rhetoric often go
hand in hand. However, while India had no intention of allowing the
Portuguese enclaves to exercise a right of self-determination in an external
sense, it appears to have been committed to ensuring a measure of internal
self-determination in the territories. Before the invasion, Nehru professed
an intention to guarantee the cultural, social and linguistic and religious
distinctiveness of the territories.153 After the invasion, when introducing
149
Malanczuk (n 4) 157.
150
1 Indian Journal of International Law 545 (1961), cited in Q. Wright ‘The Goa Incident’ 56
AJIL (1962) 617–32, 623.
151
Wright (ibid.) 629.
152
L. Brilmayer ‘Secession and Self-Determination: A Territorial Interpretation’ 16 Yale J Int’l
Law 177 (1991) 193.
153
Statement in Lok Sabha (25 August 1954) Jawaharlal Nehru’s Speeches Vol III (Delhi:
Ministry of Information and Broadcasting 1958) 372–7, esp at 375.
an amendment to the Indian constitution to incorporate the territories,
he reaffirmed this commitment: ‘We have made it clear that we want Goa
to maintain its separate identity or individuality, because in the course of
more than 400 years Goa has had a separate identity. We have no intention
of changing or suppressing that identity’.154
By India’s reckoning therefore, Goa was not a territory ‘with no legiti-
mate separate identity’ (to borrow from Crawford’s criteria for the identi-
fication of ‘colonial enclaves’).155 Indeed, India may have met with greater
international opposition had it failed to show sensitivity to the distinctive-
ness of the affected populations, or if the affected populations had been
vocally opposed to Indian rule.156
4.2.4 Ifni
It is recalled that Ifni was retroceded to Morocco without a consultation
of the affected population. Like Goa, Ifni was not de jure an integral part
of its contiguous State prior to the retrocession in 1969. Spain, Morocco
and Mauritania nevertheless argued in the Western Sahara proceedings
that Ifni had been retroceded pursuant to paragraph 6 of the Colonial
Declaration. Spain, additionally, sought to rely on General Assembly res-
olutions on Western Sahara and Ifni, which had noted the ‘difference in
legal status’ between the two territories and the processes of decoloniza-
tion envisaged for them.157 The difference in legal status, Spain submitted,
was that Ifni was an ‘enclave territoriale’ whereas Western Sahara was not.
Morocco in turn argued that Spain was attempting to dissociate arbitrarily
between Western Sahara and Ifni, and that the former territory ought to be
‘reintegrated’ with Morocco just as the latter had been.
One of the conclusions of Chapter 2 was that the ‘irredentist’ inter-
pretation of paragraph 6 advanced by Spain, Morocco, Mauritania, and
Guatemala in the Western Sahara proceedings, which they sought to apply
to the cases of Western Sahara and Ifni, was unsustainable. The purpose of
revisiting the case of Ifni in this chapter is to examine whether the treat-
ment of the territory can be rationalized in accordance with a doctrine of
154
Statement in Lok Sabha while introducing the Constitution (Twelfth Amendment) Bill
(14 March 1962), Nehru’s Speeches Vol IV (n 21) 45. He recognized its linguistic identity,
asserting his desire to give ‘full place to the Konkani language in Goa’ (ibid., 46).
155
Crawford (n 5) 637.
156
Compare the international reaction to the Argentine invasion of the Falklands, discussed
at Ch 3, pp. 143–4.
157
GA Res 2428 (XXIII), 18 December 1968.
exception. A coherent doctrine of exception, it has been argued, cannot
be grounded in, or conflated with, an ‘irredentist’ interpretation of the
territorial integrity principle, as expressed in paragraph 6 of the Colonial
Declaration. Crawford presents the ‘colonial enclaves’ doctrine in its strong-
est, most coherent form when he argues that it should not be regarded as
an aspect of the self-determination rule, but rather as an exception to it.158
Although the ICJ made no explicit pronouncement on the status of Ifni
or the manner of its decolonization, Crawford argues that ‘[t]he Court in
Western Sahara by inference approved the Assembly’s treatment of Ifni as
a colonial enclave’.159 Other commentators have pointed to Ifni as a case of
the ‘colonial enclaves’ doctrine in operation.160 On the assumption that the
retrocession of Ifni – a territory that had been validly ceded by Morocco
to Spain in 1860 – cannot properly be viewed as a case of ‘reintegration’
pursuant to paragraph 6 of the Colonial Declaration, this subsection will
consider whether indeed Ifni was treated by the General Assembly as a
‘colonial enclave’, and whether the ICJ approved of this treatment.
4.2.4.1 Did the General Assembly Treat

Ifni as a ‘Colonial Enclave’?
All of the versions of the ‘colonial enclaves’ doctrine considered in this
work maintain that the right of external self-determination does not apply
in the case of ‘colonial enclaves’. Territories within this special category
must instead be decolonized by means of incorporation into the contigu-
ous claimant State without paying regard to the freely expressed wishes of
the people of the territory.
The retrocession of Ifni from Spain to Morocco, without a consultation
of the affected population, was approved by the General Assembly.161 The
fact that a consultation was dispensed with by the General Assembly cer-
tainly makes Ifni an unusual case. However, the Assembly has also repeat-
edly and consistently affirmed the ‘inalienable right of the people of Ifni to
self-determination’.162 It is difficult to reconcile this language with the view
that the General Assembly did not view Ifni as a self-determination unit.
158
Crawford (n 5) 337–8. See also at 348 where he states: ‘The view taken by a majority of the
General Assembly has been that colonial enclaves constitute in effect an exception to the
self-determination rule’.
159
Ibid., 646.
160
Rigo-Sureda (n 27) 176; Shaw (n 70) 136.
161
UN Doc A/C4/SR.1865, Agenda item 23 (1969) 283.
162
GA Res 2072 (XX), 16 December 1965; GA Res 2229 (XXI) 20 December 1966; GA Res
2354 (XXII), 19 December 1967.
The key distinction between the General Assembly’s treatment of Ifni and
its treatment of most other self-determination units is at the level of the modal-
ities of the decolonization process. As noted in Chapter 1, the Assembly’s
approach towards the two territories differs in terms of the roles accorded
to the affected populations in the decolonization process. Resolution 2229
(XXI), 20 December 1966, for instance, states that decolonization should take
place ‘bearing in mind’ (in the case of Ifni) and ‘in conformity with’ (in the
case of Spanish Sahara) ‘the aspirations of the indigenous population’.163 The
resolution also refers to the need to organize a referendum in Spanish Sahara,
‘to be conducted on an entirely free, democratic and impartial basis’ – a ref-
erence that was absent in the case of Ifni.164 Resolution 2428 (XXIII), on 18
December 1968, noted ‘the difference in nature of the legal status’ of Ifni and
the Spanish Sahara, ‘as well as the processes of decolonization envisaged by
General Assembly resolution 2354 (XXII) for these Territories’.
Does it follow from these pronouncements that the General Assembly
treated Ifni as a ‘colonial enclave’? To reach that conclusion, one must first
account for the General Assembly’s insistence that the people of Ifni had
an inalienable right to self-determination. Even if this can somehow be
explained away, those who wish to bring Ifni within a ‘colonial enclaves’
exception still have their work cut out. The Assembly’s reference to ‘the
difference in nature of the legal status of these two Territories’ might be
explained, more parsimoniously, by other factors (e.g. the fact that Ifni was
a ceded territory while Western Sahara was not). The resolutions on Ifni do
not suggest that the territory was not a self-determination unit; still less that
it was a territory whose population was ‘ethnically and economically para-
sitic upon or derivative of ’ Morocco, with ‘no legitimate separate identity’.
4.2.4.2 Did the ICJ Approve of the General Assembly’s

Treatment of Ifni as a ‘Colonial Enclave’?
The Court in Western Sahara acknowledges that the General Assembly
‘dealt differently with Ifni and Western Sahara’.165 It also acknowledges the
existence of the argument, which it attributes to Morocco, that the decolo-
nization of Ifni ‘should be brought into line with paragraph 6 of resolution
1514 (XV)’ but it does not deal with this point directly (and it certainly
does not endorse the argument).166
163
Paras 3 and 4.
164
Para 4.
165
Western Sahara (Advisory Opinion) [1975] ICJ Rep 34, para 62.
166
Ibid., para 61.
At no point does the Court suggest (either explicitly or by inference)
that Ifni was treated by the General Assembly as a ‘colonial enclave’ or that
the people of Ifni did not have the right to self-determination. Perhaps the
closest the Court comes to alluding to the decolonization process in Ifni
is its reference to the validity of the principle of self-determination being
unaffected by instances where the General Assembly has occasionally dis-
pensed with a consultation of the inhabitants of a given territory:
Those instances were based either on the consideration that a certain popu-
lation did not constitute a ‘people’ entitled to self-determination or on the
conviction that a consultation was totally unnecessary, in view of special
circumstances.167
It is difficult to conclude that the General Assembly dispensed with a

consultation in Ifni based on the consideration that the population did
not constitute a ‘people’ entitled to self-determination. Had this been the
case, the Assembly would not have referred so frequently to the ‘inalien-
able right of the people of Ifni to self-determination’. It would be more
reasonable to infer that the Assembly took the view that a consultation in
Ifni was ‘totally unnecessary, in view of special circumstances’.
There is no basis in the Advisory Opinion for the further inference that
Ifni’s ‘special circumstances’ arose from its status as a ‘colonial enclave’. It
may be that Ifni was seen as the type of case identified by Judge Nagendra
Singh in his Separate Opinion, where ‘the will of the people was found to
be axiomatic in the sense that the result was known to be a foregone con-
clusion . . . or that special features of the case rendered it unnecessary’.168
If so, perhaps a consultation was deemed unnecessary in Ifni due to the
special fact that the population had shown itself to be overwhelmingly
(and at times, violently) in favour of expelling Spain from the territory and
integrating with Morocco. Blay, who has some sympathy with the ‘colo-
nial enclaves’ doctrine generally, discusses Ifni as a possible example of a
‘colonial enclave’, but concludes that the General Assembly’s position ‘may
be dictated more by pragmatic considerations than by the need for a rigid
adherence to the territorial integrity principle’.169
Like certain other commentators, Blay conflates the ‘colonial enclaves’
doctrine with the territorial integrity principle. It is worth reiterating the
167
Ibid., 33, para 59.
168
Ibid., 73.
169
S. K. N. Blay ‘Self-Determination versus Territorial Integrity in Decolonization’ 18 NYU
JILP (1985–86) 441, 467. Blay conflates the ‘colonial enclaves’ doctrine with the territorial
integrity principle.
argument made in Chapter 1 that there is no basis – either in the Colonial
Declaration travaux or in the Western Sahara Opinion – for a broader,
putative ‘reintegration’ principle, under which former territorial sover-
eigns can recover some notion of their pre-colonial territorial integrity.
Writers like Crawford, Shaw, and Higgins appear to agree on this point.
They are all keen to emphasize the strictly limited scope of the ‘colonial
enclaves’ doctrine, perhaps because they are concerned about the disrup-
tive potential of a more expansive ‘reintegration’ doctrine. However, even
if one were to infer the existence of some kind of ‘reintegration’ principle
from the treatment of Ifni by the General Assembly and by the ICJ, there
is nothing in the ICJ’s Advisory Opinion to suggest that the putative prin-
ciple would apply only in the case of ‘colonial enclaves’, as Greig observes:
It is true that Ifni was an enclave, whereas the Western Sahara could not be
so classified. But that is not remotely the reason why the Court dismissed
the contentions of Morocco and Mauritania. Secondly, if, as the Court
seemed to be saying, the true test is the quasi-sovereignty of a predecessor
entity, that test is applicable to territories other than enclaves [such as off
shore islands, like the Falkland/Malvinas Islands, or parts of islands, like East
Timor, which Greig notes has ‘an obvious geographical link to territory that
is Indonesian’].170
It is submitted that there is nothing in the Advisory Opinion, or in the

General Assembly resolutions on Ifni, to support the existence of either
an expansive doctrine of pre-colonial reintegration, or of a more narrowly
construed putative category of ‘colonial enclaves’. The fact that ‘special cir-
cumstances’ may have led to a formal consultation of the inhabitants of
Ifni being dispensed with by the General Assembly arguably shows the
degree of discretion that States are prepared to exercise when shaping
self-determination outcomes, even in cases like Ifni where the General
Assembly has consistently affirmed the ‘inalienable’ right of the people to
4.2.5 Gibraltar: ‘Exceptionalist’ Aspects of the Spanish Claim

It was submitted in the previous chapter that the treaty-based aspect of
the Spanish claim, which holds that Britain acquired a mere ‘proprietary’
Greig (n 2) 155.
170
Ifni is not the only such case, but is notable for the fact that not even an indirect attempt
171
was made to ascertain the wishes of the population. Compare the Cook Islands, where the
population got to vote for the Legislative Assembly that later approved the new constitu-
tional arrangement with New Zealand.
interest short of territorial sovereignty under the treaty of cession, could
be asserted in accordance with a conventional interpretation of paragraph
6, much like the Panamanian claim to the Canal Zone. Uncertainty sur-
rounding the validity of this treaty-based argument is one of the factors
that make Gibraltar a particularly challenging case. This uncertainty led
Crawford to speculate in 1979 that Gibraltar may not be a ‘true colonial
enclave’, but that it was also ‘perhaps the best remaining example’ of the
problem of ‘colonial enclaves’.172
It will be assumed in this section that territorial sovereignty was ceded
under the 1713 Treaty of Utrecht, and that the present-day territorial integ-
rity of Spain is therefore not at stake in the decolonization of Gibraltar. It
follows from this assumption that the Spanish claim cannot be grounded in
a conventional interpretation of paragraph 6 of the Colonial Declaration,
which does not provide a basis for the reconstitution of dismembered pre-
colonial territorial units. This section will consider whether the treatment
of Gibraltar by the General Assembly can be rationalized on some other
basis.
4.2.5.1 Gibraltar in the General Assembly

In 1964, the C24 affirmed that the provisions of Resolution 1514 (XV)
were ‘fully applicable to the territory of Gibraltar’, stating that:
In the circumstances, the Special Committee invites the United Kingdom
and Spain to begin talks without delay, in accordance with the princi-
ples of the United Nations Charter, in order to reach a negotiated solu-
tion in conformity with the provisions of General Assembly Resolution
1514 (XV), giving due account to the opinions expressed by the members
of the Committee and bearing in mind the interests of the people of the
Territory.173
Despite its references to the Colonial Declaration, the Committee was

clear that the future of the territory was to be determined through bilateral
negotiations between the UK and Spain, rather than through the freely
expressed wishes of the inhabitants of the territory. The General Assembly
endorsed this approach in Resolution 2070 (XX), on 16 December 1965.
This was followed by Resolution 2231 (XXI), on 20 December 1966, in
which the Assembly called on the UK ‘to expedite, without any hindrance
and in consultation with the Government of Spain, the decolonization of
172
Crawford (n 7) 381 and 227. Compare the 2006 edition (n 5) 643, fn 184, where Crawford
maintains that there is doubt as to whether a cession of sovereignty was effected in 1713.
173
UN Doc A/5800/Rev.1, Annex 8 (Part I), ch X (1964) 314, para 209.
Gibraltar’. The UK responded by organizing a referendum in the territory,
without consulting Spain and without UN approval. The inhabitants were
asked whether they preferred to retain their link with the UK or pass under
Spanish rule. The result of the vote was 12,138 votes to 44 in favour of the
first option. The referendum was seen by some States as a cynical attempt
by Britain to consolidate its hold over the territory,174 and Spain was able
to drum up significant support in the General Assembly for the view that
the exercise of self-determination in Gibraltar (which in light of the refer-
endum result was unlikely to lead to integration with Spain) would breach
Spain’s territorial integrity.
On 19 December 1967, the General Assembly adopted Resolution
2353 (XXII), which declared the referendum to be in contravention of
Resolution 2231 (XXI), urged Britain and Spain to resume negotiations
bearing in mind paragraph 6 of 1514 (XV), and included the following
statement in its preamble:
. . . any colonial situation which partially or completely destroys the national
unity and territorial integrity of a country is incompatible with the pur-
poses and principles of the Charter of the United Nations, and specifically
with paragraph 6 of General Assembly Resolution 1514 (XV).
The inclusion of this reference to paragraph 6 is unique among General

Assembly resolutions on Non-Self-Governing Territories. While some of
the States who had voted for Resolution 2231 (XXI) did so on the under-
standing that the population of Gibraltar was a ‘people’ with the right to
self-determination, the draft of Resolution 2353 (XXII) that was eventu-
ally adopted by a majority of 73 to 19, with 27 abstentions, did not leave the
same room for maneuver.175 It sided clearly, if not explicitly, like the resolu-
tions on Mayotte had done, with the irredentist ‘territorial integrity’ claim,
and with the view that the population should not be allowed to determine
the future of the territory.
174
See e.g. comments of the Yemeni representative, UN Doc A/C4/SR.1753 (15 December
1967) 546, para 38: ‘The United Kingdom’s concern for the interests of the people of
Gibraltar would be an encouraging development if it were not given the lie by that coun-
try’s long colonial history’.
175
The New Zealand representative rejected the suggestion that his delegation’s support
Resolution 2231 entailed ‘excluding the possibility that the principle of self-determination
could be applied to the people of Gibraltar’: UN Doc A/C4/SR.1745, Agenda item 23 (11
December 1967) 461, para 136. Finland voted for Resolution 2231 (XXI) despite maintain-
ing that there was ‘no doubt that the people of Gibraltar had the right to self-determina-
tion’: UN Doc A/C4/SR.1753 (15 December 1967) 546, para 35.
The Assembly’s invocation of paragraph 6 appears to be based to some
extent on the view that Spain retains present-day territorial sovereignty
over Gibraltar. For example, the Syrian representative insisted when open-
ing one of the meetings that the 1713 cession amounted to a ‘rent free
lease of a portion of Spanish territory’ rather than a transfer of territo-
rial sovereignty.176 At the same time, it is possible to infer that there was
some measure of support for an ‘irredentist’ interpretation of paragraph
6, which would allow for Spain to restore its pre-colonial sovereignty over
the territory, even if it had ceded territorial sovereignty in 1713. This view
seems implicit in an intervention by the Irish representative, who argued
that Gibraltar was ‘an integral part of the national territory of Spain, not
merely as a matter of geography but also a matter of history’, thus disagree-
ing with the UK’s assertion that Gibraltar was ‘not legally part of Spain’.177
Spain, for its part, argued that Gibraltar was ‘situated in Spanish territory’,
without committing to a pre- or post-1713 conception of Spanish territo-
rial integrity.178
It is interesting to note that four of the States that voted in favour of the
draft resolution made qualifying statements regarding the territorial integ-
rity provision in paragraph 6 of the Colonial Declaration. Italy, for exam-
ple, expressed the view that its support for the draft resolution ‘should not
be construed as an unqualified endorsement of a particular interpretation
of resolution 1514 (XV) which had not gained universal acceptance either
in the Special Committee or in the General Assembly’, and Japan stated
that ‘[t]he legal problem raised by paragraph 6 of General Assembly reso-
lution 1514 (XV) required further study’.179
Voting against the draft, the Australian representative understood the
position of Spain and its supporters as an appeal to an ‘irredentist’ inter-
pretation of paragraph 6, and sought to draw the Assembly’s attention to
what he saw as the dangerous logic of this interpretation:
If one accepts the interpretation placed on operative paragraph 6 of reso-
lution 1514 (XV) by the Spanish representative, it should follow, I think,
that every historic claim by one sovereign State against another could fall
within the purview of the discussions of this Committee. This would mean
that nearly every European country, such being Europe’s history, could lay
claim to some part of another European country on the basis of some earlier
176
177
178
179
Ibid., 556 (Italy) and 557 (Japan). See also 536 for similar views expressed by the repre-
sentatives of Tanzania and Mali.
conquest or some earlier transfer of land. The dangers of such a doctrine
are so obvious that it should be unnecessary to develop the point further.180
Such concerns may explain in part why Resolution 2353 (XXII) was
adopted by a relatively small majority and with a high number of absten-
tions. The following year the General Assembly passed a further resolu-
tion, 2429 (XXIII), regretting the UK’s non-compliance with 2353 (XXII),
and calling for Britain to put an end to the ‘colonial situation’ by 1 October
1969.181 Resolution 2429 (XXIII) was followed by political deadlock.
Britain approved a new constitution for Gibraltar, in which it undertook
‘never [to] enter into arrangements under which the people of Gibraltar
would pass under the sovereignty of another state against their freely and
democratically expressed wishes’.182 Spain responded by cutting off all
land, sea, air and other communications with Gibraltar for sixteen years,
until it was required to lift the restrictions as a pre-condition to its acces-
sion to the European Communities. The Assembly adopted its last resolu-
tion on Gibraltar in 1974, ‘regretting’ that Anglo-Spanish negotiations had
not yet started.183
The Fourth Committee has since adopted a series of ‘consensus deci-
sions’ on Gibraltar, urging Britain and Spain to resolve their differences
over the territory by negotiation, while taking into account the interests
(and, since 2004, the ‘aspirations’) of the Gibraltarians.184 This wording,
especially the reference to ‘aspirations’ (which also appears in resolutions
on Western Sahara and Ifni), suggests a consensus that any negotiated ter-
ritorial transfer would entail a measure of ‘palliative’ internal self-determi-
nation for the Gibraltarians.185
Scholars have struggled to make normative sense of the Assembly’s
invocation of paragraph 6. Some proponents of the ‘colonial enclaves’ doc-
trine have shown they are sensitive to the concerns raised by the Australian
180
UN Doc A/AC.109/PV.546 (1967) 66.
181
GA Res 2429 (XXIII), 18 December 1968. It has been suggested that Britain failed to lobby
third world States over the 1960s resolutions, regarding them as ‘hot air’: T. Franck ‘Dulce
et Decorum Est: The Strategic Role of Legal Principles in the Falklands War’ 77 AJIL (1983)
109, 122.
182
Gibraltar Constitution Order 1969, Annex I, preamble (since repealed and replaced by the
Gibraltar Constitution Order 2006, Annex I, and its similarly worded preamble).
183
GA Res 3286 (XXIX), 13 December 1974.
184
‘UN Modifies Gibraltar Statement’, Gibraltar Chronicle (15 October 2004). The most recent
decision is GA decision 68/523 (11 December 2013) which refers to the ‘interests and aspi-
rations of Gibraltar that are legitimate under international law’.
185
Spain has elsewhere stated it is ‘prepared to guarantee the freedom and interests of the
Gibraltarians’: UN Doc A/C4/SR.1749 (14 December 1967) 499, para 39.
representative regarding historical conceptions of territory.186 Some com-
mentators have nevertheless attempted to reconcile the ‘irredentist’ inter-
pretation of paragraph 6 with versions of the ‘colonial enclaves’ doctrine
that would apply to the case of Gibraltar.
According to Rigo-Sureda, Resolution 2353 (XXII) ‘implicitly accepted
the Spanish contention that a separate Gibraltar destroys the territorial
integrity of Spain’.187 This, he argues, runs contrary to the grammatical
sense of paragraph 6 of the Colonial Declaration, which ‘clearly refers to
future cases’.188 Rather than treat the resolution as an aberration, Rigo-
Sureda treats it as evidence for a putative ‘colonial enclave’ rule – a discrete
legal rule that is in his view somehow part of the normative framework of
decolonization, rather than an exception to it.
Shaw also takes the view that the wording of Resolution 2353 (XXII)
seems to ‘run contrary to the traditional interpretation of paragraph 6 of
resolution 1514 (XV)’, but adds that it can be interpreted as applying to
‘colonial enclaves’ alone, rather than all colonial situations.189 For Shaw
this makes it possible to ‘integrate the proposition within the framework
of the law relating to decolonization’.190
Continuing with the assumption that territorial sovereignty was trans-
ferred under the Treaty of Utrecht, the case of Gibraltar is a good illustra-
tion of the relative merits of Crawford’s approach; if there is a ‘colonial
enclave’ rule, it must be an exception to the standard normative frame-
work, not part of it. This obviates the need to reconcile the putative ‘colo-
nial enclaves’ doctrine with the problematic ‘irredentist’ interpretation
of paragraph 6, advanced by States like Indonesia, Morocco, Mauritania,
Guatemala, Argentina, and Spain, which is rarely expressed as being
enclave-specific.
Shaw stresses that the proposed interpretation of paragraph 6 that
appears to emerge from Resolution 2353 (XXII) must apply only to ‘colo-
nial enclaves’. There are problems with this qualification. First, there is no
consensus in the General Assembly or anywhere else on what constitutes
a ‘colonial enclave’ (indeed, the term does not appear in any pronounce-
ment of the General Assembly). Second, the General Assembly has taken
186
See e.g. (n 60) above and accompanying text, which deals with Crawford’s rejection of
Rigo-Sureda’s ‘contiguity’ thesis.
187
188
Ibid.
189
Shaw (n 70) 136.
190
Ibid.
a similar approach towards the Falkland/Malvinas Islands (ostensibly not
a ‘colonial enclave’ according to Shaw and other proponents of the ‘colo-
nial enclaves’ doctrine). Third, a key reason for the differential treatment
of Gibraltar in the General Assembly was not the territory’s status as an
enclave, but rather the perception held by a significant number of States
that the population of the territory lacked the characteristics of a ‘people’
(a perception that was not present in other cases, such as Goa and Ifni).
This seems to be what the Spanish representative in the General Assembly
was alluding to when he stated that: ‘All United Nations decisions on the
decolonization of Territories had an operative paragraph on the imple-
mentation of the principle of self-determination, except in the case of two
Territories: the Falkland Islands (Malvinas) and Gibraltar. There was a rea-
son for that’.191
The ‘reason’, in Spain’s view, is grounded in human, rather than territo-
rial considerations. Specifically, Spain argues that the ‘colonizing popula-
tion’ is not a ‘people’ with the right of self-determination, and that the right
vests instead in the ‘original population’ (the Spaniards who were present
in the territory at the time of the British invasion in 1704, rather than any
earlier group of settlers).192
4.2.5.2 Ethnic and Economic Labelling as a Putative

Basis for Setting Aside Self-Determination
The existence of a colonial population that is not a ‘people’ was one
of the grounds, according to the ICJ in the Western Sahara case, on which
the General Assembly would dispense with a formal consultation of a
191
UN Doc A/C4/SR.1743 (8 December 1967) 423, para 47. In recent years, Spain and
Argentina have discussed the possibility of presenting a joint front on the question
of Gibraltar and the Falkland/Malvinas Islands at General Assembly decolonization
meetings: see El Pais ‘Exteriores sopesa llevar el contencioso de Gibraltar as los foros
internacionales’ (11 August 2013): http://politica.elpais.com/politica/2013/08/10/actuali
dad/1376162592_175442.html#sumario_2.
192
See the Spanish Government’s written reply to Parliamentary question 184/31554, 3
February 2014, Registro de Las Cortes, Entrada 115670. In a recent intervention in the
Fourth Committee, the Spanish representative asserted that ‘the original population was
displaced by the occupying power’, and that the rights of the ‘native inhabitants’ (as against
the interests of the ‘colonizing peoples’) are enshrined in UN decolonization doctrine: UN
Doc A/C4/68/SR.5 (31 October 2013) 1–3. The claim to ‘originality’ seems odd when one
considers that Gibraltar had been inhabited by the Moors for several centuries before it
was captured by Castilian forces in 1462. It is perhaps best understood in accordance with
Francoist conceptions of the ‘Re-conquest’, pursuant to which Christian Spain was liber-
ated after 700 years of foreign (Muslim) rule.
territory’s inhabitants.193 The claim that the population of Gibraltar does
not constitute a ‘people’ is based on arguments about the ethnic and eco-
nomic characteristics of the population.
After World War II, Spain appeared to abandon earlier plans for a
military invasion of Gibraltar, and began to focus its efforts on recover-
ing Gibraltar in the context of the decolonization process overseen by the
UN.194 Aside from its treaty-based arguments, Spain’s claim rested on the
purported nature of Gibraltar’s population.
While the population has long been described as ‘parasitic’ by Spain,195
Franco’s government was initially keen to stress that the Gibraltarians were
‘almost entirely Spanish, though they take advantage of their British citi-
zenship, and the rest, Jews and aliens, who can live as well under one flag as
under another’.196 If the population was for the most part ethnically ‘deriv-
ative’ of Spain, Franco maintained that ‘[t]he economic life of Gibraltar has
always been artificial and parasitical, feeding on contraband . . .’.197
By the mid-1960s, it had become more difficult for Spain to sustain its
characterization of the population as ‘almost entirely Spanish’. As a result of
Britain’s increased emphasis on the rights of the inhabitants, and the build
up towards the 1967 referendum, it became more widely known that the
Gibraltarians were of ‘mixed Mediterranean origin’, mostly the descend-
ants of Genoese and Maltese immigrants who had settled in the territory
during the eighteenth and nineteenth centuries.198 This may explain why
Spain’s focus shifted away from the supposed ‘Spanishness’ of the popula-
tion and onto the supposedly ‘artificial’,199 ‘prefabricated’,200 ‘alien’201 char-
acter of the population (or ‘unnatural human assemblage’).202
193
Western Sahara (Advisory Opinion) [1975] ICJ Rep 53, para 59.
194
Franco’s military ambitions regarding Gibraltar are discussed in G. Stockey and C. Grocott
Gibraltar: A Modern History (Cardiff: Cardiff University Press 2012) 131.
195
HC Foreign Affairs Select Committee Fourth Report, Session 1998–99 (8 June 1999) paras
43–4: www.publications.parliament.uk/pa/cm199899/cmselect/cmfaff/366/36606.htm.
196
Statement to the editor of the Madrid daily Pueblo (30 April 1959), Spanish Ministry of
Foreign Affairs Red Book on Gibraltar (Madrid: Sucesores de Rivadeneyra 1965), 289.
197
Ibid.
198
PRO FCO 42/73, confidential memorandum by Mr Sugg, 25 April 1968; also generally,
H. W. Howes The Gibraltarian: The Origin and Development of the Population of Gibraltar
from 1704 (2nd edn Gibraltar: Medsun Publications 1991).
199
Statement by Spanish Minister of Foreign Affairs 13 May 1966, Gibraltar – Talks with Spain
(Misc No 13 (1966) Cmnd 3131) 11, 24.
200
Ibid.
201
202
Cmnd 3131 (n 197) 11, 24.
Spain also sought to link the supposed artificiality of the population
with Gibraltar’s supposedly ‘parasitic’ economy. The Spanish Foreign
Minister remarked at the time that ‘an economy such as Gibraltar’s [which
he alleged was ‘based on smuggling’] has not hitherto given rise to a national
and human community in any natural or political sense’.203
This language proved persuasive in the General Assembly when the draft
of Resolution 2353 (XXII) was debated, with a Sudanese representative
referring to the inhabitants of Gibraltar as ‘aliens imported by a colonial
regime’,204 and an Ecuadorean representative insisting that self-determi-
nation only applies when the people have ‘deep roots in the Territory’s
soil’, which in his view did not appear to be the case in Gibraltar.205 The
rapporteur of the Fourth Committee during the same session has since
commented that the General Assembly’s approach was influenced by the
fact that the inhabitants of Gibraltar ‘have been beneficiaries of colonial-
ism rather than victims of it’ and have ‘completely changed the cultural
and social makings of the society of Gibraltar to serve their own peculiar
needs’.206
Such comments may have informed, at least partially, Crawford’s iden-
tification of the requirement that a territory must be ‘ethnically and eco-
nomically parasitic upon or derivative of ’ the contiguous claimant State
in order to qualify as a ‘colonial enclave’, and his assertion that such a ter-
ritory has ‘no legitimate separate identity’.207 Spanish characterizations of
the Gibraltarians have also informed the arguments of other writers, who
suggest that Gibraltar and the Falkland/Malvinas Islands have been sub-
jected to special treatment not because they are enclaves, but because they
are ‘colonial plantations’. Blay argues that the Falkland/Malvinas Islands
and Gibraltar can be regarded as ‘colonial plantations’, on the basis that the
‘inhabitants are, in effect, beneficiaries of colonial rule’.208 Kohen argues
that self-determination does not apply in colonial cases where there exists
203
Ibid., 77.
204
UN Doc A/C4/SR1754 (1967) 553, para 19.
205
Ecuadorean delegate in debate over Gibraltar: UN Doc A/C4/SR1746 (1967) 467, para 40.
See also M. Pomerance Self-Determination in Law and Practice (The Hague: Nijhoff 1982)
22, who highlights the suspicion among some States concerning the ‘indigenous’ creden-
tials of the Gibraltarians.
206
Comments of M. S. Esfaniary, from a discussion of the problems of ministates, Proceedings
of the American Society of International law (April 1968) 174–5, cited in U. O. Umozurike
Self-Determination in International Law (Hamden, CT: Archon Books 1972) 87, fn 92.
207
Crawford (n 5) 637.
208
Blay (n 169) 464.
‘une situation coloniale sur le territoire d’un autre Etat’, listing various
cases that could properly be described as such, including: (a) when the
population is part of the people of the ‘dismembered’ State (e.g. Ifni, the
Portuguese enclaves in India, Hong Kong); and (b) when the territory is
inhabited by a ‘population exogène’ that does not constitute a people and
is not part of the people of a ‘dismembered’ State (e.g. Gibraltar and the
Falkland/Malvinas Islands).209
The process of ethnic and economic labelling that has been a feature of
Gibraltar’s treatment in the General Assembly might be called into ques-
tion for its uncritical acceptance of the validity of the Spanish allegations
about the population. In the fifty years it has been considering the case of
Gibraltar, the General Assembly has never attempted to verify the Spanish
allegations concerning the population of Gibraltar by sending a visiting
mission to the territory. This may appear surprising in light of the Fourth
Committee Rapporteur’s assertion that the Assembly was influenced in
1967 by the way the Gibraltarians had been described by some delega-
tions in the debates, and given the Assembly’s usual willingness to deploy
visiting missions to small territories like the Cocos (Keeling) Islands and
the Turks and Caicos Islands.210 Petitioners from Gibraltar, who insist that
they are neither ‘parasites’ nor ‘aliens’, have repeatedly requested that the
C24 and Fourth Committee send a visiting mission to the territory, but
have never received a response to such requests.211
In a 1999 meeting of the UK’s Foreign Affairs Committee, Gibraltar’s
Chief Minister suggested in response to Spanish allegations of parasit-
ism that ‘it is absurd to regard Gibraltar, into which up to 4,000 Spanish
workers commute daily, which takes 50 per cent of its imports from Spain,
and whose population spend massively in the [surrounding area], as
parasitic’.212 As far as the supposed ‘artificiality’ of the population is con-
cerned, a detailed consideration of the complex historical relations of
interconnection and mutual constitution that exist between colony, admin-
istering power, and contiguous State or region, is outside the scope of this
work. However, numerous social histories have been written which chart
the development of a culturally and linguistically distinctive population
209
M. Kohen Possession Contestée et Souveraineté Territoriale (Paris: Presses universitaires de
France 1997) 420–1.
210
Comments of M. S. Esfaniary (n 206) above.
211
For a recent example see Gibraltar Chronicle ‘Picardo Addresses UN C24: Full Text of
Speech’ (12 June 2013).
212
Foreign Affairs Select Committee Report (n 195) para 44 (noting comments of the
Gibraltar Chief Minister). The number of Spanish border workers is today closer to 8,000.
in Gibraltar over the past three centuries, while acknowledging the (often
deleterious) influence of British colonial policies on the population.213
Very few parts of the world have been settled peacefully, and Gibraltar
(like the rest of the Iberian Peninsula) is no exception. However, the
Gibraltarians would appear to be no more ‘artificial’, or ‘beneficiaries’ of
colonialism, or complicit in ancient colonial wrongs, than the population
of modern-day Australia, Argentina, or the USA.214 Attempts to character-
ize the Gibraltarians as a non-people, or worse still as ‘parasitic’, deserve to
be met with more scepticism than they were subjected to in the General
Assembly during the 1960s, especially if they are to serve as a basis for set-
ting aside the right of self-determination in the territory.
The ‘colonial plantation’ doctrines expounded by Blay and Kohen, and
Crawford’s ‘parasitic or derivative’ criterion, show sensitivity to the fact
that the reasons for the denial of self-determination in Gibraltar appear
different to the reasons for the denial of self-determination in, say, Goa.
However, there is little evidence to suggest that the territorial definition
of a ‘people’ can be ‘tweaked’ in the light of sociological arguments about
the quality of a population, except perhaps in extreme situations where
there is no stable civilian population to speak of (as in the case of São João
Baptista de Ajudá, the French ‘loges’ in India, and perhaps Christmas
Island). Lalonde argues that the ‘colonial plantations’ doctrine ‘has little
merit when the “imported” inhabitants have inhabited the territory for
centuries. Historical claims vindicated on such an interpretation of the
self-determination principle would have a serious destabilizing effect’.215
The territorial criterion is foundational for the identification of a ‘peo-
ple’ within the Chapter XI system. As noted earlier, the travaux prépara-
toires for Article 73 of the UN Charter suggest that the drafters did not
intend to establish any difference between ‘peoples’ and ‘inhabitants’ based
on indigenousness or any other ground.216 This would seem to encompass
213
See e.g. Howes (n 198); Stockey and Grocott (n 194); T. J. Finlayson The Fortress Came First
(Gibraltar: Gibraltar Books 1991).
214
Luis Pérez-Prat, former advisor to the Spanish government and professor of public inter-
national law, acknowledges that Gibraltarians have inhabited the territory for longer than
the USA has existed, and that the Spanish government realizes privately that it will not be
able to recover Gibraltar against the wishes of the population: Europa Sur ‘Ya no es posible
ignorar a los llanitos en las negociaciones sobre el Peñon’ (5 May 2013): www.europasur.es/
article/gibraltar/1516458/ya/no/es/posible/ignorar/los/llanitos/las/negociaciones/sobre/
penon.html.
215
Lalonde (n 4) 164.
216
See: 3 UNCIO (1945) 548–9, 609–14; 10 UNCIO (1945) 421–716.
distinctions based on the ethnic and/or economic characteristics of the
population.
While Resolution 2353 (XXII) may reflect a measure of support for an
‘irredentist’ interpretation of paragraph 6 of the Colonial Declaration, it
does not of itself constitute evidence that this interpretation is generally
accepted. Nor does it support the proposition that there is space for an
‘irredentist’ interpretation of paragraph 6 in exceptional cases of ‘colonial
enclaves’, ‘colonial plantations’ or any other putative category of territory.
Spain does not argue explicitly that an exception to the self-determination
rule is required to justify the annexation of Gibraltar, perhaps because it
wishes to reserve its position that it did not transfer territorial sovereignty
under the Treaty of Utrecht. In a recent appearance before the Fourth
Committee Spain sought to argue that paragraph 6 takes precedence in
Gibraltar ‘because there exists a territorial dispute’ (thus appearing to invoke
the discredited Guatemalan thesis discussed in Chapter 2), while continu-
ing to stress that the rights of the ‘original population’ trump any claim by
the ‘colonizing population’ to self-determination.217 Such arguments might
not be necessary if the treatment of Gibraltar by the General Assembly were
capable of being rationalized according to a coherent doctrine of exception.
4.2.6 Walvis Bay

Walvis Bay is a deep-water port situated at roughly the halfway point along
Namibia’s immense Atlantic coastline. The territory covers approximately
1,124 square kilometerskilometers and has a population of approximately
65,000. Unlike some of the other territories considered in this chapter, it
seems doubtful that Walvis Bay was ever a prima facie self-determination
unit. However, it is an interesting case in the context of the present chapter
for two reasons: first, because like some of the other territories consid-
ered in this chapter, Walvis Bay was a coastal enclave within a relatively
much bigger territory; second, because it was absorbed, with interna-
tional approval, into a newly independent Namibia, despite South Africa
unquestionably holding legal title to it.
Walvis Bay was administered by Britain as part of the Cape Colony
between 1884 and 1910. The territory became part of the Union of South
Africa when this was formed in 1910. When German South West Africa
fell to South African forces in 1915, Walvis Bay came to be administered as
UN Doc A/C4/68/SR.5 (31 October 2013) 1–3.

217
part of South West Africa by the Union of South Africa, and this situation
continued until after the First World War. In 1922, the League of Nations
designated South West Africa as a ‘Class C’ Mandate to be administered
by the Union of South Africa. Under this arrangement, Walvis Bay was
‘administered as if it were part of the mandated territory’.218
With the independence of South West Africa (which was to become
Namibia) looming, the Republic of South Africa (established in 1961 as
the successor of the Union of South Africa) reasserted its claim to Walvis
Bay in 1977, proclaiming:
Walvis Bay shall cease to be administered as if it were part of the territory [of
South West Africa] and as if inhabitants thereof were part of the Territory
and shall again be administered as a part of the [Cape] Province.219
In 1977 the General Assembly declared that Walvis Bay was ‘an integral
part of Namibia’.220 In 1978 the Security Council declared that ‘the territo-
rial integrity and unity of Namibia must be assured through the reintegra-
tion of Walvis Bay within its territory’, and that pending this ‘South Africa
must not use Walvis Bay in any manner’.221 Namibia achieved its independ-
ence in 1990, and Walvis Bay was transferred to Namibia by South Africa
in 1994, shortly after the fall of apartheid and the election of the Mandela
government.
A variety of legal arguments were raised in the dispute over Walvis Bay
during the 1970s and 1980s. South Africa’s position turned on the argu-
ment that it had never relinquished title over Walvis Bay, which had offi-
cially become part of the Republic of South Africa in 1961. The Namibian
liberation movement, SWAPO, countered variously: that the title claimed
by South Africa was defective as it was not based on consent; that the terri-
tory had been administered as part of South West Africa for a long period
of time thereby undermining any title that might exist; that Walvis Bay
was geographically, historically and economically an integral part of South
West Africa; and that the territorial integrity of South West Africa would
be compromised if Walvis Bay did not form part of the decolonized unit.222
218
South West Africa Affairs Act (24 of 1922) section 1.
219
GG 5731 of 31 August 1977 (Reg Gaz 2525) issued in terms of the South West Africa
Constitutional Amendment Act 95 of 1977, cited in J. Dugard ‘Walvis Bay and International
Law: Reflections on a Recent Study’ 108 S. African LJ 82 (1991) 85. See also H. H. Marshall,
‘Current Developments’ 27 ICLQ (1978) 682, who asserts that there was no doubt that title
was vested in South Africa.
220
GA Res 32/9 D, 4 November 1977, para 7.
221
SC Res 432, 27 July 1978, paras 1 and 3.
222
Dugard (n 219).
Berat argues that the incorporation of Walvis Bay into Namibia can be
justified on three legal grounds: (i) the ‘legal ties’ doctrine expounded in
the Western Sahara case, which she argues applies because of the culture
and political system that Walvis Bay shared with Great Namaqualand, a
former independent entity which became part of South West Africa;223 (ii)
the fact that South Africa’s claim, based on nineteenth-century rules gov-
erning the acquisition of territory, is incompatible with the jus cogens right
of self-determination enshrined in contemporary international law;224 and
(iii) the fact that South Africa’s administration of Walvis Bay as part of
the South West Africa mandate over a long period of time means that it is
estopped from claiming the territory as its own.225
Dugard, writing in 1991 (the year after Namibia’s independence and
three years before the incorporation of Walvis Bay into Namibia) is critical
of Berat’s arguments, but nevertheless attempts to rebut the South African
claim and put forward an alternative argument to justify the incorporation
of Walvis Bay into Namibia. He does so by attempting to squeeze Walvis
Bay into the ‘colonial enclaves’ category, arguing that the territory must be
regarded as a Non-Self-Governing Territory ‘in terms of United Nations
law and practice’ in spite of the fact that the territory was never so desig-
nated by the General Assembly:226
The failure of the United Nations to classify Walvis Bay as a non-self-
governing territory under article 73e of the Charter can be explained on the
grounds that the United Nations was so preoccupied with the decoloniza-
tion of Namibia – of which Walvis Bay formed an administrative unit until
1977 – that it refused to become embroiled in a dispute over Walvis Bay.
The UN was arguably not as disengaged from the dispute as Dugard sug-
gests; indeed, the UNSC applied some pressure by declaring that it would
‘remain seized of the matter’ until Walvis Bay had been ‘fully reintegrated
into Namibia’.227 In any event, Dugard grounds his ‘colonial enclaves’ expla-
nation in paragraph 6 of the Colonial Declaration, supporting his posi-
tion by reference to the resolutions of the General Assembly and Security
Council that declare Walvis Bay to be an ‘integral part of Namibia’.228
223
L. Berat Walvis Bay and the Decolonization of International Law (New Haven, CT: Yale
224
Ibid., 164.
225
Ibid., 167.
226
Dugard (n 219) 90–1.
227
SC Res 432, 27 July 1978, para 4.
228
Dugard (n 219) 92.
Berat is more convincing when she argues that a kind of estoppel arose
as a result of South Africa’s administration of the Mandate as one territory
over a long period of time, notwithstanding South Africa’s distinct de jure
relationship with Walvis Bay.
UNSC Resolution 432 (1978) was a direct response to South Africa’s
attempt to excise the territory of Walvis Bay from the South West Africa
Mandate in anticipation of the latter’s decolonization, despite having admin-
istered the whole of the Mandate as one unit during a period of 55 years.
In this sense, the case of Walvis Bay can be seen as broadly analogous with
that of Mayotte, where a similar UNSC resolution was blocked by the French
veto. It is recalled that French appeals to the fact that its de jure relationship
with Mayotte, based on a nineteenth century title, differed from its protector-
ate relationship with the three other islands, found little support in the UN.
The fact that France had administered the Comoros Archipelago continu-
ously as one unit for almost seventy years meant that the General Assembly
was not prepared to view Mayotte as a self-determination unit, regardless
of the wishes of its inhabitants. Walvis Bay was administered together with
Namibia for a shorter period of time, and seems to have been viewed by other
States as a South African enclave in Namibia to a greater extent than Mayotte
was viewed as a distinctly French island within the Comoros Archipelago.229
Another distinguishing factor is that France had been prepared to treat
Comoros as a single unit right up to the point that it obtained an island-by-
island breakdown of the referendum vote. However, the cases of Walvis Bay
and Mayotte appear similar in material respects. The decolonization of Hong
Kong, where the ceded and leased territories had been treated as one unit
under municipal law for most of the period of British administration, might
also be understood in a similar light. An analogy could also be drawn with
the treatment of the Îles Éparses, which had been administered by France as
part of Madagascar, despite having been acquired separately by France. It is
recalled that in that case the General Assembly objected to France’s excision
of the islands from Madagascar, distinctions based on title notwithstanding.
These cases tend to support Shaw’s view that ‘the correct temporal context
for the definition of territorial integrity is the period of decolonization’.230
It seems fair to argue that administering powers are under an obligation
of consistency and good faith when overseeing the decolonization of their
229
See e.g. speech of the Australian Foreign Minister, in HR Deb 1983, Vol 132 (8 September
1983) 580–1, cited in 10 Aust YBIL (1981–83) 259, 272 (the relevant passage is quoted from
below – see (n 231) and accompanying text).
230
Shaw (n 70) 191.
overseas colonies. As a result of this obligation, administering powers that
have administered a territory as one unit continuously over a significant
period of time cannot resort to de jure distinctions based on title as a pre-
text for fragmenting the territory at the moment of decolonization.
The extent to which the various legal arguments advanced by each side
influenced the outcome in Walvis Bay is probably limited in any case. The
maneuver by South Africa in 1977 was the act of an international pariah
intent on consolidating its hold over an important deep-water port, in a
Mandate over which its control was waning. Most States avoided articulat-
ing principled objections to South Africa’s ‘chain of title’ argument. The
Australian Foreign Minister could not have been more candid:
The Government believes that the enclave should form part of a united and
independent Namibia. This policy is based not on whether South Africa
has a legal or historic right to administer Walvis Bay, but on moral and
pragmatic considerations.231
When the C24 called on States to refrain from giving ‘any semblance
of legitimacy to South Africa’s claim to Walvis Bay’ in 1978 it was largely
preaching to the converted, such was the antipathy among most States
towards the apartheid regime in South Africa.232 The newly installed
Mandela government renounced South Africa’s claim to the territory in
1994. The suggestion that events leading to this point can be taken as evi-
dence of some kind of ‘colonial enclaves’ exception seems rather tenuous.
The cases discussed above disclose little if any evidence for the exist-
ence of an enclave exception, or indeed any other doctrine of exception
that could explain the anomalous treatment of certain colonial territories.
The final section of this chapter turns to some counter-case-studies which,
although they involve disputed enclave-like territories, do not appear to
challenge the standard normative framework of decolonization.
4.3 Other Disputed Enclave-Like Territories

4.3.1 Belize and East Timor: Self-
Determination Delayed but Not Denied
The processes that led to the decolonization of Belize and East Timor were
heavily influenced by the irredentist claims of Guatemala and Indonesia
respectively. The eventual failure of the respective claims of Guatemala and
Speech of Australian Foreign Minister (n 229) 272.

231
See 15 Africa Research Bulletin: Political, Social and Cultural Series (May 1978) 20.
232
4.3 other disputed enclave-like territories 215
Indonesia was far from a foregone conclusion in the decades preceding
the independence of those territories. There are plenty of suggestions in
the literature on self-determination that these territories might fall under
a putative ‘colonial enclaves’ exception.233 However, the independence of
Belize and East Timor in accordance with the wishes of their inhabitants,
albeit after long and tortuous processes, has put paid to this notion.
This section will consider whether principled reasons exist for distin-
guishing between Belize and East Timor on the one hand (where self-
determination prevailed in the face of irredentist claims in both cases),
and other cases considered in this chapter (where irredentist claims to
enclave-like territories have prevailed, or at least been accommodated by
the UN to a greater extent).
4.3.1.1 Belize
Belize was a British colony (known as British Honduras) until it attained
independence in 1981 following a self-determination referendum. It was
listed as a Chapter XI territory from 1946, from which time Guatemala
maintained that decolonization should proceed by way of absorption by
Guatemala, rather than in accordance with the wishes of the population of
Belize. Despite a general lack of support for the Guatemalan claim, the per-
sistence of the claim and the fact that it was often accompanied by veiled
threats of military annexation served to delay the decolonization process.
4.3.1.1.1 The Guatemalan Claim In 1859, Guatemala and Britain

concluded a treaty ‘relative to the Boundary of British Honduras’ (‘relativa
a los límites de Honduras Británica’ in the original Spanish text).234 The
purpose of the Treaty was set out in the Preamble: ‘Her Majesty . . . and the
Republic of Guatemala, being desirous . . . to define the boundary aforesaid,
have resolved to conclude a convention for that purpose’. Article 1 defines
the mutually agreed boundary. The 1859 Convention was reaffirmed in a
1931 Exchange of Notes, which contained no reservation by Guatemala
regarding the continued validity of the 1859 Convention.235
233
J. R. Maguire ‘The Decolonization of Belize: Self-determination v Territorial Integrity’ 22
Va J Int’l L (1982) 849, 867, fn 102: ‘A systematic analysis of the [colonial enclaves] “excep-
tion” appears to be lacking’.
234
Convention between Great Britain and Guatemala relative to the Boundary of British
Honduras (signed 30 April 1859, entered into force 12 September 1859) 120 CTS 371.
235
Exchange of Notes respecting the Boundary between British Honduras and Guatemala
(British Note of 25 April 1931/Guatemalan Reply 26 April 1931, registered with the League
of Nations 29 April 1932) 128 LNTS 427.
Guatemala has nevertheless claimed since 1946 that the 1859
Convention was a treaty of cession, and that Britain’s failure to construct
a cart road between Guatemala City and the Atlantic (as it was required
to do under Article VII of the Convention) made Guatemala entitled to
denounce the 1859 Convention. Guatemala’s title to the territory rested, it
argued, on the fact that Spain had exercised sovereignty over the area and
that, under the doctrine of uti possidetis, Guatemala had acquired sover-
eignty by way of succession when it gained its independence from Spain
in 1821.
Britain’s position, and subsequently that of Belize, was that the 1859
Convention was not a treaty of cession, and that Britain already exercised
sovereignty over the area in question prior to the boundaries being defined
in the Convention, and indeed prior to Guatemalan independence.
This view is supported categorically by a legal opinion of 2001 issued by
Lauterpacht, Schwebel, Rosenne, and Orrego Vicuña, who were instructed
jointly by the Government of Belize to advise on the merits of the terri-
torial claim.236 The advice was sought because, although Guatemala had
recognized Belize’s independence in 1991, the irredentist claim had been
reinstated by a subsequent Guatemalan administration.237
The Lauterpacht et al. opinion notes that, ‘[t]he 1859 Convention put an
end to whatever applicability the doctrine of uti possidetis may have had’.238
It adds that, even if the continued validity of the 1859 Convention could be
attacked on the basis of Britain’s failure to comply with its terms (which is to
be doubted, especially in light of the 1931 Exchange of Notes), the bound-
ary agreed in 1859 would, in the words of the ICJ in the Libya/Chad case,
have ‘a legal life of its own’, independent of the fate of the Convention.239
During the period leading to Belize’s independence from Britain in
1981, it was already clear that there was little international support for
Guatemala’s claim, even if the existence of the claim was holding up the
decolonization process. A series of five General Assembly resolutions
from 1975 onwards consistently affirmed ‘the inalienable right of the peo-
ple of Belize to self-determination and independence’, and – in an implicit
repudiation of Guatemala’s ‘territorial integrity’ claim – the Assembly
236
E. Lauterpacht et al. ‘Legal Opinion on Guatemala’s Territorial Claim to Belize’ (Belize:
Government Printer 2001).
237
Ibid., foreword, 3.
238
Ibid., 98.
239
ICJ Rep [1994], 6 at 37, para 72, citing its own decisions in Temple of Preah Vihear [1962]
ICJ Rep 34 and Aegean Sea Continental Shelf [1978] ICJ Rep 36. The point is made at p. 15
of the Lauterpacht et al. opinion.
repeatedly stressed the corresponding need to ensure respect for the ter-
ritorial integrity of Belize.240 The vote in favour of permitting Belize to
accede to UN membership was 144-1 (Guatemala) with no abstentions.241
4.3.1.1.2 Belize Compared with Other Anomalous Cases The decades

prior to the UN vote on Belize had seen various attempts by Guatemala
to carve out a new doctrine in the developing law of decolonization,
and create a novel basis for absorbing Belize against the wishes of the
Belizean population. There was sympathy among other irredentist States
for Guatemala’s assertion – in the abstract – of a ‘right to the recovery
of territory’, and Guatemala’s suggestion that the mere existence of an
irredentist claim to a Chapter XI territory precludes the exercise of self-
determination there, is an argument popular with irredentist States.242
However, when the agenda moved more concretely onto the question of
Belize’s decolonization, none of Guatemala’s erstwhile supporters in the
General Assembly were prepared to lend their support, or even abstain in
the vote on Belize’s membership of the UN.
It was noted in Chapter 2 that during Guatemala’s unsuccessful attempt
to introduce an amendment to the draft Colonial Declaration enshrining
the ‘right to the recovery of territory’, it did not refer explicitly to its claim
to Belize (in contrast with Indonesia, which referred repeatedly to West
Irian).243 In subsequent debates concerning Belize, Guatemala sought to
bolster its position by reference to arguments about ‘foreign enclaves,
which infringe on the territorial unity and sovereignty of States’.244 It argued
that the ‘transplanted population’ of Belize was not entitled to exercise a
right of external self-determination, drawing the retort from the Premier
of Belize that Guatemala was resorting to ‘absurd and unkind doctrines’ as
240
GA Res 3432 (XXX), 8 December 1975; GA Res 31/50, 1 December 1976; 32/32 (1977);
33/36 (1978); 34/38 (1979); GA Res 35/20, 11 November 1980. The reference to the inal-
ienable right to self-determination and independence distinguishes these resolutions from
those on Ifni, which do not mention independence.
241
242
This wording is from Guatemala’s proposed amendment to the draft Colonial Declaration:
UN Doc A/L.325, Annexes, Agenda item 87 (1960) 7. A number of States have since sought
to argue that self-determination does not apply where a dispute exists over the territory in
question. See e.g. Ch 2 (n 61) and accompanying text.
243
Interestingly, Indonesia made no mention of East Timor. Similarly, Morocco made no
mention of its claim to Western Sahara and the northern Spanish enclaves, referring
instead to Katanga, Palestine, and the creation of the ‘artificial’ State of Mauritania in
southern Morocco (see the discussion at Ch 2, pp. 30–8).
244
UN Doc A/PV.2372 (2 October 1975) 28–30.
part of an ‘atavistic quest of an ancient hegemony’.245 The strong historical-
ethnic component of Guatemala’s claim is epitomized by its argument that
Belize forms ‘part of the Mayan empire’.246 Guatemala also sought explicitly
to equate the situation in Belize with other ‘occupied territories’ such as
the Falkland/Malvinas Islands, Gibraltar, and the Panama Canal Zone.247
The key question that arises in the context of the present chapter is: why
did self-determination prevail in Belize but not in certain other enclave-
like territories?
Belize is easily distinguishable from territories that are not prima facie
self-determination units, such as the Panama Canal Zone. Panama had
a solid basis for its claim that it retained sovereignty over the territory
under the terms of the treaty arrangements with the US. By contrast, the
treaty arrangements between Guatemala and Britain seem conclusively
to support the notion that Britain held sovereignty over the territory.
The Argentine territorial claim to the Falkland/Malvinas Islands rests on
shakier foundations than the Panamanian claim to the Canal Zone, but
doubts surrounding the validity of British title translate into doubt over
the status of the Falkland/Malvinas Islands as a prima facie self-determi-
nation unit.
The case of Gibraltar is a more interesting comparator. Under the
terms of the Treaty of Utrecht it is fairly clear that Spain does not enjoy
present-day territorial sovereignty over Gibraltar. It is therefore reason-
able to view Gibraltar, at least prima facie, as a self-determination unit.
However, the Spanish irredentist claim has benefited from significantly
more international support than the Guatemalan claim to Belize. One
reason for this may be that members of the General Assembly are pre-
pared to give weight to the argument that the population of Gibraltar is
a ‘transplanted population’, whereas they do not accept that the popula-
tion of Belize can be so classified. For Kohen the distinction is one based
on a notion of ‘victimhood’.248 Although he views the case of Belize –
like Gibraltar – as a ‘situation coloniale dans le territoire d’un autre Etat’,
he argues that self-determination can prevail in the case of a territory
inhabited by a people distinct to that of the ‘dismembered’ State. Kohen
argues that the case of Belize represents the only real collision between
self-determination and territorial integrity, because both the people of
245
UN Doc A/C4/S1-2162 (7 November 1975) 6.
246
Franck and Hoffman (n 52) 366.
247
UN Doc A/PV.2372 (2 October 1975) 28–30.
248
Kohen (n 209) 420–1.
the territory and the people of the ‘dismembered’ State are ‘victims’
of the colonial situation. The need to avoid a situation where the right of
the people of a ‘dismembered’ territory results in the imposition of sov-
ereignty over another people against its wishes has resulted, according
to Kohen, in a preference for self-determination to prevail in the case
of Belize (but not in Gibraltar, where the inhabitants are ‘beneficiaries’,
rather than victims, of colonialism).
Kohen’s division of the world into victims and beneficiaries of colonial-
ism seems a highly problematic ‘experiential’ basis for drawing principled
distinctions between colonial territories, although it does reflect some
of the grievances raised in General Assembly debates. The population of
Gibraltar, like that of Belize, is ethnically, culturally and linguistically dis-
tinct from that of the administering power and the neighbouring claimant
State. The fact that the Gibraltarians are mainly of white European origin
does not make them beneficiaries of colonialism, whatever that is sup-
posed mean, any more than the ethnic composition of the Belizeans makes
them victims of colonialism.249
There is evidence to suggest that the British Foreign Office viewed the
case of Belize differently to Gibraltar insofar as the application of self-
determination is concerned. An internal memorandum from 1968 recog-
nizes that independence is ‘a natural and legitimate aspiration for British
Honduras’.250 It continues: ‘We can therefore accept, as we cannot in the
other cases [namely Gibraltar and the Falkland/Malvinas Islands], that the
doctrine of self-determination applies’.251 The basis that is given for qualify-
ing the application of self-determination in the case of Gibraltar is ‘Spain’s
reversionary rights under the Treaty of Utrecht as well as Gibraltar’s size
and situation’.252 This view seems to contrast with the official British posi-
tion, which is that self-determination applies in Gibraltar, but that inde-
pendence is impossible because of the reversionary clause in the Treaty of
Utrecht. The author of the memorandum refers to the size of the territory
being a factor, although it is widely accepted that size is not a principled
basis for setting aside self-determination. As for the reversionary clause, it
was argued in the previous chapter that this is at most an arguable basis for
249
For a sophisticated analysis of contrasting (and at times conflicting) narratives of ‘Belizean-
ness’, arising from an ‘imperative to link Belizean territory with a Belizean people’, see L. K.
Medina ‘Defining Difference, Forging Unity: The Co-construction of Race, Ethnicity and
Nation in Belize’ 20 Ethn Racial Stud (1997) 757, 775.
250
PRO FCO 42/73, confidential memorandum by Mr Sugg (25 April 1968).
251
Ibid.
252
Ibid.
ruling out a status (for example, independence) that involves an ‘aliena-
tion’ of the territory by Britain. It does not preclude the exercise of self-
determination altogether.
Perhaps the most internally coherent rationale for distinguishing
between the cases of Belize and Gibraltar is the treaty-based argument that
Gibraltar is not a prima facie self-determination unit. However, this rests
on the dubious argument that territorial sovereignty was not transferred
to Britain in 1713 under the terms of the territorial grant.
It is even more difficult to draw principled distinctions between Belize
and a territory like Goa. It is true that Belize (22,966 square kilometers) is
much larger than Goa (3,792 kilometers), although its population is con-
siderably smaller. Belize is also larger relative to Guatemala than Goa is
relative to India. It is also true that Portugal was less capable of resisting a
military invasion of Goa than Britain was in relation to Belize, due in part
to the respective size and geography of the territories (as well as the rela-
tive military capabilities of the forces involved). However, size (or relative
size) is surely not a principled basis for self-determination prevailing in
Belize but not in Goa. Nothing about the composition of Goa’s population,
the product of nearly 500 years of ethnic and cultural co-mingling, made
it less worthy of determining its political future than the population of
Belize. The difference between the outcomes in Goa and Belize is perhaps
more easily explained by reference to factors like the regional and global
influence enjoyed by India and Guatemala respectively, and the fact that
there was no significant movement in Goa for a decolonized status that did
not entail integration with India.
4.3.1.2 East Timor

East Timor was one of the Portuguese-administered Non-Self-Governing
Territories earmarked for decolonization in General Assembly Resolution
1542 (XV).253 The Portuguese presence on the territory dated back to the
seventeenth century.254 Newly democratic Portugal decided to withdraw
from the territory in the summer of 1975, setting its departure date for
1978. However, on 7 December 1975 Indonesia invaded East Timor.
Indonesia based its claim to East Timor on territorial contiguity and ‘ties
253
For general background see C. Drew, ‘The East Timor Story: International Law on Trial’
12:4 EJIL (2001) 651–84.
254
‘East Timor profile’ BBC News (25 July 2013): www.bbc.co.uk/news/world-asia-pacific-
14952883.
of blood and culture’.255 A bloody conflict ensued, during which a signifi-
cant proportion of the East Timorese population died.256
The Security Council ‘deplored’ the armed intervention of Indonesia
unanimously, and recognized ‘the inalienable right to self-determination
and independence’ of the people of East Timor.257 Despite a very high num-
ber of abstentions, the intervention was ‘strongly deplored’ by the General
Assembly, which similarly emphasized the right to self-determination and
independence in East Timor.258 Both the Security Council and the General
Assembly stopped short of condemning Indonesia for an act of aggression
contrary to Article 2(4) of the Charter.
The UN reaction was therefore somewhat less equivocal than it had been
after the annexation of Goa. However, the reaction was sufficiently ‘luke-
warm’ to give Indonesia the space to consolidate its position.259 Indonesia
annexed the territory formally in 1976, and for a time it appeared inter-
national acquiescence to the new status quo would follow, although East
Timor remained on the Decolonization Committee’s list of Non-Self-
Governing Territories.260
Confronted with this creeping acquiescence, and even formal recogni-
tion of Indonesian sovereignty over East Timor by Australia (a powerful
influence in the region), certain commentators began to suggest that East
Timor might fall within a ‘colonial enclaves’ exception to the self-determi-
nation rule.261 This assessment flew in the face of repeated affirmations by
the Security Council and the General Assembly of the ‘inalienable’ right
of the people of East Timor to self-determination. The ICJ also affirmed
in a case brought by Portugal against Australia in 1999 that East Timor
remained a Non-Self-Governing Territory and that its people had the
right to self-determination (a right which the ICJ classified as erga omnes).
Although Portugal’s Application was dismissed on procedural grounds,
255
R. S. Clark, ‘The “Decolonization” of East Timor and the United Nations Norms on Self-
Determination and Aggression’ 7:2 Yale J World Pub Ord (1980) 2, 12.
256
Crawford (n 5) 560–2 (with references).
257
SC Res 384 (1975), 22 December 1975; also SC Res 389 (1976), 22 April 1976.
258
GA Res 3485 (XXX), 12 December 1975.
259
A. Cassese Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge
University Press 1995) 223–4.
260
Ibid.
261
E.g. Duursma (n 12) 80–8, as late as 1996. G. J. Simpson discusses the possibility that East
Timor might be disposed of as an enclave, but concludes that ‘[t]he arguments relating to
enclaves and historical ties possess more ingenuity than they do merit’: ‘Judging the East
Timor Dispute: Self-Determination at the International Court of Justice’ 17 Hastings Int’l &
Comp L Rev (1993–94) 323, 342.
the ICJ’s affirmation of the right to self-determination of the people of
East Timor was one of the factors precipitating a remarkable political
turnaround, which resulted in the territory achieving independence as the
Democratic Republic of Timor-Leste in 2002.262
The eventual achievement of self-determination in East Timor was part
of a tortuous political process, which could have resulted in yet another
‘dysfunctional precedent’ had events taken a slightly different turn.263 It is
difficult to identify material factors that could serve to justify an alterna-
tive decolonization outcome in a territory like Goa. For instance, Greig
notes that when it came to economic viability, Goa was streets ahead of
‘grossly underdeveloped’ East Timor at the time of annexation.264 Attempts
to rationalize these different outcomes by reference to factual characteris-
tics, like the respective size of the territories, the nature of their economies,
or the composition of their populations, seem rather sophistic.265
Cassese offers a more prosaic explanation for the tolerance that was
shown towards the illegal treatment of East Timor, which could just as eas-
ily apply to the treatment of Goa:
As long as third States do not see their own interests as being directly
affected by such breaches, they tend to lay greater emphasis on other con-
siderations than those relating to respect for international law.266
It seems rather arbitrary to draw factual distinctions between territories

like Goa and Gibraltar on the one hand, and Belize and East Timor on the
other, as a basis for justifying the setting aside of self-determination in
the former group. However, the argument might still be made that very
small enclaves, especially those with no permanent population such as São
João Baptista de Ajudá or the French ‘loges’ in India, possess distinguish-
ing factual characteristics that render self-determination inapplicable and
privilege the ‘reintegration’ claim of a contiguous State. The following sec-
tion explores this issue by reference to the disputed Spanish territories in
northern Africa, three of which are tiny fortress territories with no per-
manent population. It also considers comparisons that have been made
between the populated territories of Ceuta and Melilla, and Gibraltar.
262
263
Franck and Hoffman (n 52) 351.
264
Greig (n 2) 156–7, fn 98. His critique is directed at Crawford’s 1979 formulation of the
‘colonial enclaves’ doctrine. As was noted at p. 20 above, Crawford’s 2006 edition replaces
the ‘viability’ criterion with a spatial criterion (‘fragments of territory’).
265
Simpson (n 261) 342; also Greig (n 2) 155–7.
266
Cassese (n 259) 228.
4.3.2 Spain’s Remaining (Non-colonial?) Enclaves in Africa

Spain controls five territories on, or just off, Morocco’s northern coast-
line. The coastal enclaves of Ceuta and Melilla are the largest of the ter-
ritories in question and the only two with stable civilian populations. The
other three territories – the peninsula of Vélez de la Gomera, the islet of
Alhucemas, and the Chafarinas Islands – are less well known. They con-
tain small Spanish military garrisons but no civilian populations. They are
the only EU territories on, or within the coastal belt of, mainland Africa. A
sixth territory, the islet of Perejil (sometimes referred to as Parsley Island
in the English language press), is unoccupied. Its status remains disputed
under the terms of a 2002 agreement brokered by the US Secretary of State
following a military confrontation between Morocco and Spain over the
territory. Morocco has claimed all six territories since it achieved inde-
pendence in 1956.
Each of the territories has a unique history and the basis of title asserted
by Spain is different in each case. While Morocco’s claims to the populated
territories of Ceuta and Melilla have found little international support, its
claims to the unpopulated territories, tiny fortress territories which appear
materially very similar to the fortress of São João Baptista de Ajudá, may
rest on stronger ground, and may have been received more sympatheti-
cally in the UN, had they not been bundled together with the claims to
Ceuta and Melilla.
In charting the progress of the Moroccan claim in the UN, this final sec-
tion discusses Moroccan attempts to draw parallels between the Spanish
territories in northern Africa and Gibraltar. It will also explore the paral-
lels that exist between the three unpopulated territories and the fortress of
São João Baptista de Ajudá. The purpose is to consider whether principled
reasons exist to justify the differential treatment of these territories.
Before addressing these issues, it is necessary to say something about
the territories under discussion and the sources of title asserted by Spain.
4.3.2.1 The Territories

4.3.2.1.1 Ceuta Ceuta lies 14 kilometers across the Straits from the
267
Rock of Gibraltar, at the western entrance to the Mediterranean. It covers
On Ceuta and Melilla see generally P. Gold Europe or Africa? A Contemporary Study of the
267
Spanish North African Enclaves of Ceuta and Melilla (Liverpool: Liverpool University Press
2000) and G. O’Reilly ‘Ceuta and the Spanish Sovereign Territories: Spanish and Moroccan
Claims’ in 1:2 Boundary and Research Briefings (Durham: International Boundaries
a land area of 19 square kilometers and is home to 80,000 people. The

majority of the population is divided fairly evenly between people of
Iberian extraction and those who originate from the surrounding area.
Ceuta’s first European rulers were the Portuguese, who took the territory
by force in 1415. The city became Spanish with the union of the Iberian
Crown in 1580, and when Portugal seceded from Spain in 1640, Ceuta
remained under Spanish sovereignty (although it retains the Portuguese
coat of arms on its flag). Ceuta (like Melilla below) was designated an
‘autonomous city’ under the Spanish Constitution in 1995.268
4.3.2.1.2 Melilla Melilla lies some 200 kilometers east of Ceuta. It covers
12.5 square kilometers and is home to 75,000 people. As with Ceuta, the
majority of the population is divided fairly evenly between people of
Iberian extraction, and those who originate from the surrounding Rif
area, the latter demographic group being the faster growing. This diversity
is reflected in Melilla’s 1995 Autonomy Statute, which demands respect for
the population’s cultural and linguistic plurality.269 Spanish forces took the
city by force from the Kingdom of Fez in 1497.
4.3.2.1.3 Vélez de la Gomera Vélez de la Gomera is a tiny peninsula with

a land mass of 0.019 square kilometers that lies 119 kilometers southeast
of Ceuta and 126 kilometers west of Melilla. Formerly an islet, in 1934 a
storm created a tombolo between Vélez and the Moroccan mainland that,
at 85 metres long, is said to be the world’s shortest land border.270 Vélez
served as the dividing point between the Spanish and Portuguese zones
of influence established by the Pope in 1494, although ownership of Vélez
itself was disputed.271 Spain occupied the territory in 1508, and Spanish
rule was consolidated under the Treaty of Cintra in 1509.272 Troops from
the Kingdom of Fez captured Vélez in 1522, and the ruler of Fez then
Research Unit 1994). From an international legal perspective, see D.-E. Khan ‘Ceuta and
Melilla’ MPEPIL Online (May 2013).
268
Autonomy Statute of Ceuta 1995: www.congreso.es/constitucion/ficheros/estatutos/e_80_
espa.pdf.
269
Article 5, Autonomy Statute of Melilla 1995: www.congreso.es/constitucion/ficheros/
estatutos/e_81_espa.pdf. Article 5 of Ceuta’s Autonomy Statute refers to cultural, but not
linguistic, plurality.
270
M. W. Lewis ‘The World’s Shortest Border’ (30 August 2010) online at: http://geocurrents
.info/geopolitics/the-worlds-shortest-border.
271
O’Reilly (n 267) para 2.5.
272
Ibid.
handed Vélez to Ottoman troops in 1554 in return for their assistance in
his ascent to the throne. The Spanish captured Vélez from the Ottomans in
1564 and have occupied the territory ever since.273
4.3.2.1.4 Alhucemas The rock of Alhucemas and its adjacent islets, Isla
de Mar and Isla de Tierra, are located within a few hundred metres of the
shore of the Moroccan town of Al Hoceima, 146 kilometers east of Ceuta
and 84 kilometers west of Melilla. Together they cover a total land area
of 0.046 square kilometers. Alhucemas contains a small Spanish garrison.
The islets were given to Spain in 1559 by the Saadian sultan of Morocco in
return for Spain’s assistance in fighting the Ottomans, and Alhucemas has
been permanently occupied by Spain since 1663.274
4.3.2.1.5 Islas Chafarinas The Chafarinas Islands consist of three small

islets in the Alboran Sea, 3.3 kilometers from the Moroccan coastline and
45 kilometers to the east of Melilla. The three islets, Isla del Congreso,
Isla de Isabel II and Isla del Rey, cover a total land area of 0.525 square
kilometers. There is a small Spanish garrison stationed on Isabel II. Spain
occupied the Charfarinas Islands in 1848, a few hours before a French
expedition was due to land there. Spain considers that the islands were
terrae nullius prior to their occupation.275
4.3.2.1.6 Perejil/Parsley Island The uninhabited territory of Perejil

lies about 8 kilometers west of Ceuta, and some 200 metres off Morocco’s
northern coast in the Straits of Gibraltar. It covers an area of 0.15 square
kilometers. Spain’s claim is based on the fact that Perejil was within the
‘zone of influence’ of Ceuta when the latter was under Portuguese rule.276
However, the islet has mostly gone unoccupied over the centuries. In
1987, objecting to Spain’s inclusion of Perejil and Vélez in Ceuta’s draft
Autonomy Statute, Morocco issued a note verbale asserting inter alia
that Perejil was Moroccan territory and therefore not part of Morocco’s
273
See N. Barbour ‘North West Africa from the 15th to 19th Centuries’ in H. J. Kissing et al.
(eds.) The Last Great Muslim Empires: History of the Muslim World (Princeton, NJ: Markus
Wiener Publishers 1996) 98, 103 and 117.
274
See O’Reilly (n 267) para 2.5, who states that the cession was ‘on condition that Spain pre-
vent the Turks from occupying strongholds on the Mediterranean coast of Morocco’.
275
Ibid.
276
Statement of the Spanish Minister of Foreign Affairs, VIII SpanYIL (2001–2002) 99.
territorial dispute with Spain.277 There was no rebuttal from Spain, which
removed the reference to Perejil and Vélez from the draft statute.278
In July 2002 Moroccan forces occupied the islet and raised the Moroccan
flag, prompting protests from Spain and eventually a military response, in
which Spanish forces recaptured Perejil in a bloodless assault. An inter-
vention by US Secretary of State Colin Powell resulted in the disputing
parties agreeing to revert to the status quo ante, without prejudice to their
positions on sovereignty.279
This outcome represented a setback for the recently crowned Moroccan
king, Mohammed VI, whose tactics regarding Perejil appear to have been
motivated by a desire to test both Spanish resolve and international opin-
ion over the remaining Spanish territories in Africa more generally, and
perhaps give new impetus to Morocco’s sovereignty claims.280 This inter-
national incident over a ‘virtually worthless piece of rock’281 marks a recent
low point in Moroccan-Spanish relations, and highlights the potentially
explosive nature of the wider sovereignty dispute.
The following section deals with how the current impasse was reached.
It focuses on the fruitless pursuit of Morocco’s claims in the UN.
4.3.2.2 The Pursuit of Morocco’s Claims in the UN
The joint declaration of Morocco and Spain dated 7 April 1956, which
declared an end to the Spanish Protectorate established by the Treaty of
Fez 1912, recognized Morocco’s independence and its ‘territorial unity’.282
277
J. D. Gonzalez Campos ‘Las pretensions de Marruecos sobre los territories españoles en el
Norte de Africa (1956–2002)’ Real Instituto Elcano, Documento de Trabajo No 15/2004
(2004) 1.
278
Ibid., 14. According to the Tribunal in Eritrea/Yemen ‘there is a strong presumption that
islands within the twelve-mile coastal belt will belong to the coastal state’ unless the case
to the contrary is ‘fully established’ (which is open to doubt in the case of Perejil): Eritrea/
Yemen Arbitration (Phase One: Territorial Sovereignty and Scope of the Dispute) (1998)
114 ILR 1, 125.
279
See C. J. Tams ‘A Sprig of Parsley that Leaves a Bitter Taste – Comments on the Spanish-
Moroccan Dispute About Perejil/Leila’ 45 GYIL (2002) 269 and I. Martinez ‘Spain’s
“Splendid Little War” with Morocco’ 37 Int’l Law (2003) 871. On the specifics of the
Secretary of State’s intervention, see A. J. Rodriguez Carrion and M. I. Torres Cazorla ‘Una
readaptación de los medios de arreglo pacífico de controversias: el caso de Isla Perejil y los
medios utilizados para la solución deeste conflicto’ LIV REDI (2002) 717.
280
See G. Tremlett ‘Morocco Draws New Territories into Parsley Row’ (The Guardian 22 July
2002).
281
Khan (n 267), para 11.
282
Declaration by the Governments of Spain and Morocco on the Independence of Morocco
(and Protocol) (7 April 1956) Royal Institute of International Affairs Documents on
International Affairs (Oxford University Press 1956) 694.
A few days before signing the joint declaration, Morocco’s King Mohammed
V proclaimed that ‘nous n’avons jamais dissocié indépendance et unité’.283
The discourse of ‘unity’, characterized by a refusal to accept the division
of the country into ‘zones’ and ‘enclaves’, was central to Morocco’s claims
over the various Spanish territories on what it regarded as Moroccan soil
(and which at the time included Western Sahara and Ifni, as well as Ceuta,
Melilla and the other northern territories). Morocco has maintained its
position on the ‘unity’ of its territory over the decades, even in the face of
the ICJ’s decision that Morocco did not possess legal ties that would trump
the exercise of self-determination in Western Sahara. Morocco maintains
that Ceuta and Melilla are ‘usurped cities’ under Spanish occupation284
and considers them, together with Vélez, Alhucemas, and the Chafarinas,
to be ‘the last colonies in Africa’.285
Despite the consistency of its position since 1956, Morocco’s pursuit
of its claims to the five northern territories took some time to get off the
ground in the UN. Early appearances by Moroccan representatives in the
General Assembly focused on the Spanish Sahara and Ifni.286 Morocco first
protested about Ceuta and Melilla in the UN on 7 October 1960 but did
not ask for them to be included on the General Assembly’s list of Non-Self-
Governing Territories at the time.287
It was not until 27 January 1975 (six years after the retrocession of Ifni,
and exactly two months before the submission of Morocco’s written state-
ment in the Western Sahara advisory proceedings) that Morocco asked the
Special Committee on Decolonization to include the ‘colonial enclaves’ of
Ceuta, Melilla, Alhucemas, Vélez, and the Chafarinas Islands on the list of
Non-Self-Governing Territories, saying they were ‘among the last vestiges
of colonial occupation’ and calling for the restoration of Morocco’s ‘terri-
torial integrity’.288 In February 1975 the OAU expressed its solidarity with
Morocco’s attempts to recover the territories, which it too referred to as
283
Statement of Mohammed V (3 April 1956) cited in Gonzalez Campos (n 277) 3.
284
Gold (n 267) 24–7.
285
Ibid., 19.
286
See Gonzalez Campos (n 277) 7.
287
UN Doc A/C4/SR.1005 (1960) paras 34–5. It has been suggested that there was a tacit
agreement between Morocco and the fascist regime in Spain, under which Franco’s
75,000 foreign legionnaires stationed in Ceuta and Melilla would have intervened should
the need have arisen to prevent a communist coup in Morocco: see ‘Morocco: Spanish
Foreign Legion Outposts’ ITN Report (3 August 1966): www.itnsource.com/shotlist/
BHC_ITN/1966/08/03/X03086601/.
288
UN Doc A/AC.109/475 (1975).
‘colonial enclaves’, and support was also received from the Non-Aligned
States and the Arab League.289 On 7 March 1975, Morocco distributed a
memorandum to other States in the General Assembly, calling on them to
support its claim to the northern ‘colonial enclaves’.290 Despite all this, the
Moroccan letter to the Decolonization Committee went unanswered, and
the territories were never listed as Non-Self-Governing Territories.291
It is clear that some kind of ‘colonial enclaves’ doctrine underpinned
Morocco’s statements. There was an obvious tactical advantage to taking
this line of argument. The pleadings of both Morocco and Spain before the
ICJ in the Western Sahara proceedings allude – albeit in rather vague and
general terms – to some kind of enclave exception in the law of decoloni-
zation, and while they disagreed on the application of that exception in
the case of Western Sahara itself, Morocco took no exception to Spain’s
assertion that Ifni was reintegrated with Morocco pursuant to some kind
of enclave doctrine.292 Both the Spanish and Moroccan enclave doctrines
appear to rely on an ‘irredentist’ interpretation of paragraph 6 of the
Colonial Declaration. Morocco has sought to exploit this common nor-
mative understanding by insisting on the parallels between Gibraltar and
the five Spanish territories in northern Africa.
4.3.2.3 The Analogy with Gibraltar

Morocco first made use of this analogy in a discussion concerning
Gibraltar in a 1966 meeting of the Fourth Committee. The Moroccan
representative declared his country’s support for the Spanish claim over
Gibraltar. He added that Morocco’s arguments in support of its claim to
Ceuta and Melilla were ‘the same irrefutable arguments advanced by the
Spanish Government in the case of Gibraltar’.293 Morocco’s letter to the
Decolonization Committee in 1975 stated that Gibraltar and Spain’s ter-
ritories in northern Africa were ‘in an identical position from all points
289
290
‘Memoria sobre los puertos e islas de la costa Norte de Marruecos aún bajo dominación
colonial, llamados “Presidios”’ 7 March 1975, in Gonzalez Campos (n 277) 10.
291
Morocco plans a renewed offensive in the UN in 2015, to mark the 40th anniversary of its
pursuit of its claim in that forum: see ‘Preocupación en Exteriores: Marruecos ha puesto
como prioridad en 2015 la reclamación de Ceuta y Melilla’ Confidencial Digital (11 April
2014): www.elconfidencialdigital.com/politica/Preocupacion-Exteriores-Marruecos-
Ceuta-Melilla_0_2250974913.html.
292
Western Sahara Vol I [1974] ICJ Pleadings 83, para 34 and 39 for Spain’s argument that
Ifni was disposed of as an enclave (but also in accordance with paragraph 6 of the Colonial
Declaration).
293
UN Doc A/C.4/SR.1671 (1966) 543, para 85.
of view’.294 In 1980 King Hassan II stated that ‘in claiming Gibraltar, Spain
is working for us’.295 However, he would eventually abandon this line of
argument, claiming in 1987 that the problem of Gibraltar was ‘different’.296
Spain has always rejected the analogy with Gibraltar. It has argued in
the UN that, unlike Gibraltar, the Spanish territories in northern Africa
are ‘naturally and ethnically Spanish’.297 Spain further contends that, apart
from the Chafarinas Islands, the territories in northern Africa have been
Spanish since before Morocco was a political entity, and it has even claimed
to be the successor of the Roman, Byzantine and Visigoth kingdoms.298
Perhaps the most plausible distinction drawn by Spain is that its northern
African territories are ‘Sovereign Territories’, unlike the ‘Crown Colony’ of
Gibraltar, and cannot therefore be said to be ‘non-self-governing’.299 Spain
maintains in this regard that its relationship with its remaining African
territories is not ‘colonial’, and that the same cannot be said for the rela-
tionship between the UK and Gibraltar; after all, the General Assembly
maintains Gibraltar, a British Overseas Territory, on its list of Chapter XI
‘Non-Self-Governing’ Territories (i.e. ‘territories whose peoples have not
yet attained a sufficient measure of self- government’). The inhabitants of
Ceuta and Melilla, unlike those of Gibraltar, are treated constitutionally
and administratively on an equal footing with the inhabitants of the metro-
pole.300 This may well have been an important factor in the Decolonization
Committee’s demurral in the face of Morocco’s request that the territories
be listed as ‘Non-Self-Governing’ Territories.
Nevertheless, the strategic value of Morocco’s use of the analogy with
Gibraltar becomes more apparent when one considers that Spain’s ‘anti-
colonial’ arguments regarding Gibraltar are focused on territory rather
than on the ‘insufficient measure of self-government’ enjoyed by the
population.301 Indeed, Spain considers the wishes of the ‘purely artificial’,
294
UN Doc A/AC.109/475 (1975).
295
Gonzalez Campos (n 277) 13.
296
Ibid., 16. The King referred to the fact that Gibraltar is in Europe, is controlled by a major
European power, and is allied to Spain through the EC and NATO.
297
UN Doc A/AC.109/477 (1975). This claim seems unusual in light of the ethnic diversity
that exists in Ceuta and Melilla; indeed, the latter may soon become the first Spanish city
since the so-called ‘Reconquista’ to have a majority Muslim population.
298
299
Ibid.
300
See the 1995 Autonomy Statutes of Ceuta and Melilla (n 266 and 267 respectively) and the
statement of the Spanish Minister of Foreign Affairs, UN Doc A/57/PV.12 (17 September
2002).
301
See Cassese (n 259) 207–8.
‘unnatural’ population to be irrelevant to the decolonization of the
territory.302 Spain lays claim to Gibraltar, and Morocco lays claim to Ceuta
and Melilla, on grounds of ‘territorial integrity’, regardless of the fact that
the territories contain stable civilian populations, and regardless of the
levels of self-government enjoyed by those populations.
The Moroccan and Spanish position is that decolonization law is capa-
ble of being invoked to correct colonial wrongs by overturning an inter-
nationally recognized title to a small enclave-like territory in favour of
the contiguous claimant State. For Spain, this rupture in the international
legal order is only possible if the claimant State was the former sovereign.
This contrasts with Rigo-Sureda’s argument that the successor of a political
unit to which an enclave belonged would also be a legitimate claimant.303
The latter view sits more sympathetically with the Moroccan claims, and
indeed the irredentist claims of other postcolonial States.
Spain also purports to take into account the question of whether a colo-
nial population is ‘artificial, as in the case of Gibraltar’ or ‘autochthonous’
(if the latter, the population’s right to self-determination would trump any
adverse territorial claim).304 Morocco, by contrast, has not made a con-
certed attempt to undermine the ‘worthiness’ of the populations of Ceuta
and Melilla in order to make the idea of those territories passing under
Moroccan administration more palatable for those of a democratic dis-
position; its indifference to the human dimension contrasts with Spain’s
attempts to argue for a distinction in the law based on whether the popula-
tion of a territory is ‘autochthonous’. Either way, both States agree that an
enclave can be absorbed against the wishes of its population in accordance
with decolonization law.
A problem faced by both Morocco and Spain is the level of international
unease that is generated when the language of ‘colonial wrongs’ is invoked
by an irredentist State as justification for its claim to a territory, especially
when this involves treating the inhabitants of the territory ‘like chattels in
real estate’.305 Many States seem to favour the view, memorably expressed
by Franck, that such irredentist claims ‘are merely relics of another inter-
national legal era, one that ended with the setting of the sun on the age of
302
See UN GAOR 19th Sess, Annex 8, Agenda Item 21, ch X, 296.
303
304
This view was articulated in the Spanish pleadings before the ICJ in the Western Sahara
advisory proceedings: Western Sahara vol I [1974] ICJ Pleadings 207, para 359.
305
Higgins (n 4) 393.
colonial imperium’.306 This was evident, for instance, in the international
reaction to the annexation of Goa, which reflected substantial support for
the view that the inhabitants of the territories had the right freely to deter-
mine the political future of the territories in accordance with the principle
of self-determination.307
Although Spain has been able to generate some international support for
the view that the inhabitants of Gibraltar are ‘aliens imported by a colonial
regime’,308 the level of support for a transfer of the territory to Spain against
the wishes of the Gibraltarians appears insufficiently strong to swing the
situation decisively in Spain’s favour.309 Despite support for Morocco’s
claims among African and Arab States, none have dared to argue explicitly
that the wishes of the populations of Ceuta and Melilla should be set aside
when determining the political future of those territories.310
Gold argues that, now that the military value of Gibraltar, Ceuta and
Melilla is much diminished, the reason the territories are retained by
the UK and Spain respectively ‘is partly national pride, but more impor-
tantly the paramountcy of the wishes of the inhabitants’.311 ‘The wishes of
the inhabitants’ can also be instrumentalized as a means of discouraging
other States from supporting the transfer of a territory against the wishes
of a long-established population, or countering the caricature of a popula-
tion by the claimant State as ‘artificial’, ‘parasitic’, ‘derivative’ or otherwise
unworthy of self-determination.312
306
Sovereignty over Pulau Ligitan and Pulau Sipidan (Indonesia v Malaysia), Application by the
Philippines to Intervene, Sep Op by Judge ad hoc Franck [2001] ICJ Rep 652, 657, para 15.
307
See pp. 37–9 above.
308
In the words of a Sudanese delegate to the General Assembly: UN Doc A/C4/SR1754
(1967) 553, para 19.
309
As reflected in the text of the yearly ‘consensus’ decisions: see (n 184) above and accompa-
nying text.
310
O’Reilly (n 267) para 7.2, documents the support for the Moroccan position from the
OAU, the Non-Aligned States, and the Arab League, the latter proclaiming in 1975 its ‘sup-
port for Morocco in its current fight for the liberation of its territories occupied by the
Spanish, including Sebta [(Ceuta)] and Melilla as well as the other islands off the Moroccan
coast’. The African Union has classified Ceuta and Melilla as African territories under ‘for-
eign occupation’ (see ‘Le Plan Stratégique de la Commission de l’Union Africaine’ Vol 1
(2004) 44: www.africa-union.org/au%20summit%202004/volume%203%20final%20
-%20french%20-%204%20june%202004%20fr.pdf.
311
Gold (n 267) 164.
312
While the sovereignty disputes remain deadlocked, domestic developments in the territo-
ries under discussion have increased their levels of self-governance: Gibraltar’s 2006 con-
stitution, created by a UK Order in Council, bestows virtually full self-government on the
territory and contains a preamble stating that the UK will ‘never enter into arrangements
under which the people of Gibraltar would pass under the sovereignty of another state
There is no human dimension to the dispute over the unpopulated ter-
ritories of Vélez, Alhucemas, and the Chafarinas Islands. However, absent
any other basis for overturning Spanish title, the Moroccan claim to those
territories may still turn on whether it can bring the territories within
the framework of decolonization law. This may prove difficult, especially
when it is considered that decolonization law appears to address itself to
territories with populations that ‘have yet to attain a sufficient measure
of self-government’ (even if one accepts the controversial view that when
the non-self-governing population is parasitic upon or derivative of a
claimant State it can be decolonized as a ‘colonial enclave’), and does not
appear concerned with the fate of remote, unpopulated and uncontested
territories.313 These caveats notwithstanding, the designation of São João
Baptista de Ajudá as a Non-Self-Governing Territory under Chapter XI of
the Charter, and the manner of its decolonization, may hold lessons for the
fate of Vélez, Alhucemas, and the Chafarinas Islands.
4.3.2.4 The Parallels between São João Baptista de Ajudá

and the Three Spanish Fortress Territories (and Perejil)
It was argued earlier that the disposal of São João Baptista de Ajudá – where
countervailing arguments based on self-determination did not (indeed,
could not) arise – could be viewed as a uniquely uncontroversial example
of the annexation of an enclave. If São João Baptista de Ajudá was subject
to the operation of a kind of ‘colonial enclaves’ doctrine, and not merely
to the vagaries of realpolitik, the ‘decolonization’ of similarly situated ter-
ritories must also be a possibility.
Shaw argues that the maintenance of São João Baptista de Ajudá by
Portugal would have been ‘absurd’.314 The maintenance of Vélez, Alhucemas,
and the Chafarinas Islands by Spain seems no less absurd. If there is a
material distinction to be drawn it is perhaps that São João Baptista de
Ajudá was less viable as a political unit, and thus more likely to generate
problems of the ‘peace and security’ variety. Although São João Baptista de
against their freely and democratically expressed wishes’ (see www.gibraltarlaws.gov.gi/

constitution/Gibraltar_Constitution_Order_2006.pdf) and since 1995 Ceuta and Melilla
have been ‘autonomous cities’ under the Spanish constitution, seamlessly integrated within
the EU: see (n 268 and 269) above.
313
In this regard we might consider cases like Heard Island and the McDonald Islands, the
transfer of which from the UK to Australia (effected in 1947 and confirmed by exchange
of letters in 1950) did not engage the interest of the UN, at least as far as Chapter XI of the
Charter was concerned.
314
Shaw (n 70) 329, fn 309.
Ajudá was located close to the coastline, it was surrounded by Dahomey’s
territory on all sides, whereas Spain enjoys unfettered maritime access to
Vélez, Alhucemas, and the Chafarinas Islands. Another, related, political
factor to consider is that Spain is much better placed, in terms of resources
and its close proximity to the territories, to defend its interests militarily
than Portugal was in São João Baptista de Ajudá, as the confrontation over
Perejil demonstrated. However, it is unlikely that the General Assembly’s
approach towards São João Baptista de Ajudá would have been any dif-
ferent if the territory had been more ‘viable’ in military and economic
terms. The territory’s lack of viability may have made it vulnerable to for-
cible (illegal) annexation by Dahomey, but it does not follow from this that
São João Baptista de Ajudá and the three Spanish fortress territories are
so materially different as to justify differential treatment by the General
Assembly. The territories appear in material respects to be very similar.
The fact nonetheless remains that Vélez, Alhucemas, and the Chafarinas
were never listed as Non-Self-Governing Territories. São João Baptista de
Ajudá was listed, and it was included in Resolution 1542 (XV), although
this act of the General Assembly is not easily explained. Under Principle
IV of the previous Resolution, 1541 (XV), there is a prima facie obliga-
tion to transmit information in relation to a territory that is distinct ethni-
cally and/or culturally from the country that is administering it.315 This
obligation seems difficult to make out when the only human presence on
a territory is a small contingent of administrative or military personnel.
How then did São João Baptista de Ajudá come to be listed as a Non-Self-
Governing Territory, and why were Vélez, Alhucemas, and the Chafarinas
Islands spared from inclusion on the list?
A clue to the answer may lie in the preamble of Resolution 1542 (XV),
which expresses ‘satisfaction’ at Spain’s agreement to report to the General
Assembly on certain of its overseas territories in accordance with Article
73e of the UN Charter. By 1960 Spain had come to accept that the Spanish
Sahara, Ifni and Spanish Guinea should be decolonized in accordance
with the principle of self-determination, while Portugal continued obsti-
nately to maintain that under its 1933 Constitution its ‘Overseas Provinces’
were treated no differently in administrative terms from the metropole
and could therefore not be considered to fall under Article 73 of the UN
Charter.316 While this may have been true of Madeira and the Azores, the

315
See C. A. Anderson ‘Portuguese Africa: A Brief History of United Nations Involvement’ 4

316
Denv J Intl L & Pol (1974) 133.

General Assembly was not dissuaded from its view that territories such as
Goa, Angola and Mozambique were ‘non-self-governing’. As Spain began
its rehabilitation within the General Assembly, Portugal’s overseas presence
was increasingly being viewed by the growing anti-colonial majority in the
General Assembly as a threat to international peace and security.317 The
inclusion of São João Baptista de Ajudá in Resolution 1542 (XV), while unu-
sual when viewed against the emancipatory rhetoric in the Resolution,318
arguably reflects the ‘peace and security’ imperative that underpins the UN
Charter and much of decolonization law. The listing of São João Baptista
de Ajudá by the General Assembly alongside territories with subjugated
colonial populations was at the very least a convenient way of addressing
exhaustively the perceived Portuguese ‘threat’ to international peace and
security. It shows the international community of the 1960s favouring the
‘decolonization simpliciter’ of an unpopulated enclave, during the same
period that saw it divided over the role that the populations of some other
territories (e.g. Goa, Gibraltar) should have in the decolonization process.
By the time Morocco began to pursue its claim to Ceuta, Melilla, Vélez,
Alhucemas, and the Chafarinas Islands in the UN in 1975, Spain had
withdrawn from the Spanish Sahara, Ifni and Spanish Guinea. Crucially,
Morocco’s claim – advanced as one essential claim to all five territories –
paid no regard to the wishes of the inhabitants of Ceuta and Melilla, just
as its internationally unpopular actions in Spanish Sahara (now Western
Sahara) paid no regard to the wishes of the Saharawi population. It is pos-
sible to see how Vélez, Alhucemas, and the Chafarinas Islands could have
slipped under the General Assembly’s radar in the circumstances.
As for the islet of Perejil, its status was uncertain when Moroccan troops
attempted to occupy it in 2002. The Moroccan occupation, and Spain’s
military response, divided international opinion.319 However, the even-
tual outcome, in which the belligerent parties were persuaded to revert
to the (uncertain) status quo ante, was a far cry from the international
acquiescence that followed Dahomey’s annexation of São João Baptista
317
The Ghanaian Ambassador to the UN put the point in a somewhat circular fashion: ‘The
very fact that . . . all African countries are behind the nationalists . . . means a threat to inter-
national peace and security’: UN Doc S/PV.1042 (24 July 1963) 33–5.
318
Para 3 of the Preamble recognizes that ‘the desire for independence is the rightful aspiration
of peoples under colonial subjugation’.
319
While Arab States expressed their support for Morocco, the response of the EU – which
initially expressed ‘full solidarity’ with Spain – was complicated by internal divisions: see J.
Monar ‘The CFSP and the Leila/Perejil Incident: The Nemesis of Solidarity and Leadership’
7 Eur Foreign Affairs Review (2002) 251–5.
4.4 conclusions 235
de Ajudá. The difference of approach is best understood by reference to
political considerations, rather than by reference to any factual distinc-
tions between the two territories.
The same might be said for some of the other anomalous cases consid-
ered in this chapter, where the presence of a stable colonial population
adds a layer of complexity. There is some force to Greig’s analysis:
The reasons why these various territories were or may in the future be
granted, or denied, a right of self-determination has less to do with their
factual characteristics and more to do with the political reactions to the
particular situation of member States of the United Nations.320
4.4 Conclusions
The findings of this chapter suggest that deviations from the self-deter-
mination rule in disputed ‘enclave like’ territories such as Goa, Ifni, and
Gibraltar cannot be explained by reference to a coherent legal doctrine of
exception.
The factual characteristics, political circumstances and legal treatment
of the territories examined in this chapter vary considerably. Apart from
the fact that they are all small territories with covetous neighbours, and
that the approach of the international community in denying or qualifying
self-determination in the territories appears unusual when considered in
the context of decolonization as a whole, there is little ‘general’ about the
territories or the way they have been treated.
The annexation of São João Baptista de Ajudá in 1961 may well have
influenced events in Goa later that year. However, other than the fact that
they were both Portuguese colonies annexed by their neighbours, São João
Baptista de Ajudá and Goa share little in common. Similarly, the treatment
of Ifni (where the General Assembly affirmed the right of the people to
self-determination, but did not insist on a referendum in which the people
could exercise this right procedurally) differs greatly from the treatment of
Gibraltar (where the General Assembly has been equivocal about the right
of the inhabitants to self-determination, and has at times shown itself to
favour a transfer of the territory to Spain, knowing this to be against the
wishes of the inhabitants).
Greig suggests that the attempt to ring-fence such cases within a dis-
crete, exceptional ‘colonial enclaves’ category that can serve as a coherent
Greig (n 2) 156–7.
320
legal exception to the self-determination rule, is linked to attempts by
Crawford and others to characterize the self-determination rule as jus
cogens.321 This doctrinal trend could in turn be linked with what Allott
has described as an impulse ‘to abstract [self-determination] from the
frenzied dialectic of national and international politics, to launder it into
a value-beyond-value, a value which can then be incorporated into a law-
beyond-law, some sort of Higher International Law’.322 Whether or not the
fetishization of self-determination as jus cogens is to blame, it certainly
appears that attempts to ring-fence some of the anomalous cases some-
times give rise to strained scholarly efforts to describe territories accord-
ing to shared factual attributes.
Crawford’s account of the ‘colonial enclaves’ doctrine is by far the most
influential. It is also the most coherent and carefully reasoned, in the sense
that Crawford largely avoids the trap of conflating the possible existence
of a putative doctrine of exception with an ‘irredentist’ approach towards
the principle of territorial integrity. On Crawford’s view, the annexation of
a ‘colonial enclave’ is not mandated by a nebulous, temporally fluid territo-
rial integrity principle. Rather, it is mandated by a special rule of exception
that can operate to place a prima facie self-determination unit outside the
scope of the normal rule, rendering self-determination inapplicable.
Other proponents of the ‘colonial enclaves’ doctrine flirt more or less
dangerously with ideas of historical-ethnic title. Some alternative doc-
trinal approaches embrace such ideas wholeheartedly and – perhaps as
a result – are less influential in the literature.323 In attempting to circum-
scribe the ‘colonial enclave’ category strictly, Crawford appears alive to the
dangers of giving a legal stamp of approval to all manner of historical-
ethnic claims to small colonial territories.
However, given that size and paucity of resources cannot serve as a legit-
imate basis for the denial of self-determination, at least according to the
General Assembly’s criteria, Crawford is driven to describe a motley col-
lection of small territories with covetous neighbours, collectively, as ‘eth-
nically and economically parasitic upon, or derivative of ’ their claimant
contiguous States. Within such a description, he purports to lump cases
321
D. W. Greig ‘Review of J Dugard Recognition and the United Nations (Cambridge: Grotius
1987)’, 12 Aust YBIL (1988–89) 296, 299-302.
322
P. Allott ‘Self-Determination – Absolute Right or Social Poetry?’ in C. Tomuschat (ed.)
Modern Law of Self-Determination (Dordrecht: Martinus Nijhoff 1993) 177, 207.
323
Franck and Hoffman (n 52) 383. They note that such concepts ‘have proved malleable
enough to be molded to meet almost any requirements of would-be aggressors’, which may
explain why they are viewed with a certain amount of wariness.
4.4 conclusions 237
as diverse as Goa (with five centuries of ethnic and socio-economic inter-
mingling); Ifni (with an indigenous population largely similar to that of
the surrounding region); and Gibraltar (with a population that is ethni-
cally distinct from that of the contiguous State and that of the administer-
ing power).
The ‘parasitic or derivative’ criterion is as broad as it is vague. As a label
for the collective designation of a tiny number of territories it is highly prob-
lematic. With enough imagination, it could be attached to any small ter-
ritory in the world that has a larger contiguous neighbour. Moreover, the
‘parasitic or derivative’ criterion, and the suggestion that all the purported
‘colonial enclaves’ considered in this chapter have ‘no legitimate sepa-
rate identity’324 seems to be based on the rhetoric of claimant States that
would seek, for instance, to characterize the population of Goa as ‘Indians’
(that is to say, not ‘separate’ from India), or the population of Gibraltar
as ‘artificial’ (that is to say, ‘separate’ from the administering power and
the contiguous State, but not ‘legitimately’ so). It is not a widely accepted
fact that such territories have no legitimate separate identity. Indeed, it
has been observed that even irredentist claimants are occasionally moved
to acknowledge the value of preserving the separate cultural identity of a
coveted coastal enclave, while insisting on the inapplicability of external
self-determination there.325
The findings of this chapter point to the important role played by dis-
cretionary policy judgements in shaping decolonization outcomes. In the
case of small, disputed colonial territories, deviations from the standard
decolonization norms are occasionally tolerated or ignored for political
reasons.
The cases examined in this chapter show that international practice is
inconsistent in this area. For example, there appear to be no principled rea-
sons why the outcome in Goa differed from the outcomes in East Timor
or Belize. There appear to be inconsistencies even when complex human
issues are removed from the equation and only ‘real estate’ is at issue. For
example, there appear to be no principled reasons for the differential treat-
ment of São João Baptista de Ajudá and Perejil/Parsley Island. The fate of
Crawford (n 5) 637.
324
Consider e.g. the Indian attitude towards the French and Portuguese settlements, (n 108
325
and 154) above and accompanying text; the Spanish attitude towards Gibraltar (n 185) and
accompanying text; the Argentine attitude towards the Falkland/Malvinas Islands (see the
reference to the Argentine Constitution in Ch 3, p. 150, fn 352; and the Chinese attitude
towards Hong Kong (Ch 3, p. 119) and Macau (Ch 3, p. 120).
these territories appears to have been shaped primarily by political inter-
ests and military factors, not by a general practice accepted as law.
It is important to observe that cases involving small, disputed prima
facie self-determination units are exceedingly rare when set against the
broader backdrop of decolonization. Cases where self-determination has
been set aside or qualified in a prima facie self-determination unit are
rarer still. The latter group of cases is arguably limited to the French and
Portuguese territories in India, Ifni, Gibraltar, and, perhaps, if one rejects
the Argentine claim to present-day title, the Falkland/Malvinas Islands.
The standard principles for identifying self-determination units in the
colonial context do not appear to have been fatally undermined by the idi-
osyncratic treatment of these territories.
In the final analysis, there appears to be no basis for inferring the exist-
ence of ‘colonial enclaves’, ‘colonial plantations’, or any other putative cate-
gory to explain in legal terms, by reference to factual criteria, what is going
on at the untidy edges of decolonization practice.
5
Overall Conclusions
5.1 Self-Determination and Territorial Integrity

Within the normative framework governing the decolonization process,
the principles of territorial integrity and self-determination can be viewed
as two sides of the same coin. The ‘people’, as the collective holder of the
right to self-determination, is defined territorially, according to the uti
possidetis boundaries. The international law of colonial self-determination
thus aims to preserve international order while accommodating dynamic
demands for international justice to a limited extent.
The wording of paragraph 6 of the Colonial Declaration, which pro-
hibits any ‘attempt’ to interfere with the territorial integrity of a State or
country, suggests that the provision was designed to address prospective
action that poses a threat to uti possidetis boundaries. The provision does
not appear to have been intended to apply retrospectively as a basis for
reconstituting dismembered pre-colonial territorial formations. This
view is supported by the analysis of the drafting history of paragraph 6
of the Colonial Declaration that was undertaken in Chapter 2. It is clear
that the sponsors of the provision were chiefly concerned with ruling out
the secession of sub-units of Non-Self-Governing Territories, such as the
Congolese province of Katanga. It does not appear to have been the inten-
tion of the drafters that irredentist claims (let alone irredentist claims
based on p re-colonial ties) should have a special status in the decoloniza-
tion process; the discussions surrounding Guatemala’s frustrated proposed
amendment, which were also considered at length in Chapter 2, broadly
testify to this, even though a number of States made ambiguous interven-
tions in the debate.
The ICJ’s Western Sahara Opinion suggests that pre-colonial ties of
territorial sovereignty between the irredentist claimant and a colonial ter-
ritory, which were absent in the case of Western Sahara, ‘might affect’ the
decolonization process. However, it is reasonable to infer from the empha-
sis that the Court placed on the self-determination of the Saharawi people,
239
240 overall conclusions
that if the existence of pre-colonial ties of territorial sovereignty had been
established, the Court would not have considered those ties to trump the
exercise of external self-determination altogether. It is possible that the
Court considered that the existence of such ties might affect the ‘forms and
procedures’ by which the right of external self-determination is realized,
although this is not made explicit in the Advisory Opinion.1
The integrity of pre-colonial territorial formations is not protected ret-
rospectively by the territorial integrity principle, contrary to the arguments
of those who espouse what this work has called the ‘irredentist’ approach
to territorial integrity. The existing international order is threatened by
the ‘irredentist’ approach. The UN system was constructed with a view
to guaranteeing the stability of existing international boundaries. States,
especially precarious new States, benefit from this guarantee, a corollary of
which is acceptance that their territorial sovereignty does not extend any
further than their existing boundaries, however far it may have extended
historically.
5.2 A Broad Conception of Territorial Sovereignty

While the principle of territorial integrity may not provide a basis for
resurrecting extinct territorial formations, this work has shown that the
concept of territorial sovereignty protected by the principle of territorial
integrity is broadly construed.
In a number of situations, some involving very unusual territorial
arrangements, an irredentist State’s assertion of territorial sovereignty
has operated to constrain the exercise of self-determination in a coloni-
ally administered territory. The international treatment of Mayotte, the
Chagos Islands and the Îles Éparses suggests that the fragmentation of
self-determination units is generally impermissible. Exceptions are usu-
ally based on the consent of the affected populations, although there is
evidence to suggest that a concern for preserving international order is
also an important driver of these exceptional outcomes (the partition of
Ruanda-Urundi being a case in point).
In addition, a third State may retain present-day territorial sovereignty
over a colonially administered territory, and this is sometimes evidenced
The Court limits itself to saying that the General Assembly has ‘a measure of discretion’ in
1
respect of the modalities for the realization of self-determination: Western Sahara (Advisory
Opinion) [1975] ICJ Rep, 36–7, paras 71–2.
5.3 Ethnographic versus Territorial Conceptions 241
by the terms of a treaty (as in the cases of the Hong Kong New Territories
or the Panama Canal Zone).
It is also reasonable to suppose that the retention of territorial sover-
eignty can be asserted under customary international law, for example
when it is claimed that the title claimed by the administering power is
defective. This is the basis for Argentina’s unresolved territorial claim to
the Falkland/Malvinas Islands. Without taking a firm view on the mer-
its of that dispute, if the Argentine claim to title is valid, it would follow
ex hypothesi that the islanders are not vested with a right of external self-
determination. On the other hand, if the Argentine territorial claim is
defective, there seems to be no valid reason (ethnographic or otherwise)
why the islanders should not be considered a ‘people’ with the right to
external self-determination.
It would appear moreover that title to territory is not necessarily deci-
sive in determining the extent of territorial sovereignty at the time of
decolonization. Administering powers that have administered a territory
as one unit continuously over a long period of time appear to have been
‘estopped’ from resorting to de jure distinctions based on title as a pretext
for fragmenting the territory at the moment of decolonization. Examples
of this phenomenon can be found in the international approach towards
Mayotte and the Îles Éparses, both of which are widely considered to form
part of the territory of Comoros and Madagascar respectively despite
France asserting distinct titles over them. The treatment of the ceded part
of Hong Kong, which was long treated by the British as part of one colony
together with the leased New Territories might also be considered to fall
under this rubric, as might the case of Walvis Bay, which South Africa had
treated as part of the South West Africa Mandate for 55 years before seek-
ing to separate it from the Mandate. Administering powers are under an
obligation of consistency and good faith when overseeing the decoloniza-
tion of their overseas colonies, and this obligation arguably prevents them
from ‘changing the goal posts’ when decolonization is imminent.
5.3 Ethnographic versus Territorial

Conceptions of ‘Peoplehood’
Other than in the most extreme cases, it would not appear that ethno-
graphic considerations are relevant in determining whether the inhabit-
ants of a territorial unit are a ‘people’ with the right to self-determination.
The focus on ethnographic criteria, which is particularly acute in
the disputes over the Falkland/Malvinas Islands and Gibraltar, is often
misplaced. The Western Sahara Opinion suggests that self-determination
is dispensed with when the General Assembly determines that there is no
‘people’ in the territory. Chapter 4 dealt, inter alia, with two rather extreme
examples where this might be the case: São João Baptista de Ajudá and the
French ‘loges’ in India. Those territories were not inhabited by stable civil-
ian populations, and they were annexed by their neighbouring States (with
the consent of France in the case of the loges, and by force, but without
external opposition, in the case of São João Baptista de Ajudá).
It is sometimes argued that the populations of territories like the
Falkland/Malvinas Islands, Gibraltar, Goa, and even Western Sahara simi-
larly lack the ethnographic qualities of a ‘people’. The populations of such
territories have been described by some States and authors as ‘artificial’,
‘settlers’, ‘parasitic upon’, or ‘derivative of ’ the neighbouring claimant State.
While it would be absurd to describe the two Portuguese administrators
of São João Baptista de Ajudá as a ‘people’, it is submitted that the other
populations mentioned above differ in kind as well as in degree. It seems
strange to suggest that such longstanding populations do not have ‘roots’
in the territories they inhabit, and are therefore not ‘peoples’. That sugges-
tion is in any case out of step with the prevailing view that the peoples of
Chapter XI territories are territorially bounded, rather than ethnographi-
cally defined, ‘communities of fate’.2
One author observes that ‘a process of ethnic labelling, through which
complex social worlds were made “legible”, provided the scientific and
moral foundation for foreign rule’ at the height of European colonialism.3
A mirror image of this process is apparent in the formulation of irreden-
tist claims to certain colonial territories, especially the Falkland/Malvinas
Islands and Gibraltar, whose populations – as well as being labelled ‘artifi-
cial’ – have been described in some quarters as ‘beneficiaries’ (as opposed
to ‘victims’) of colonial rule. While some States have expressed sympathy
with these forms of description, there is no broad consensus on the point,
and the UN has never attempted to form an objective view by sending
a fact-finding mission to these territories. In any event, if Argentina and
Spain are correct in arguing that they never relinquished territorial sov-
ereignty over the territories, this would be sufficient to trump any coun-
tervailing claim to external self-determination by the inhabitants of those
2
K. Knop Diversity and Self-Determination in International Law (Cambridge: Cambridge
3
J. Pottier ‘Representations of Ethnicity in the Search for Peace: Ituri, Democratic Republic of
Congo’ 109 Afr Aff (2010) 23, 48.
5.4 ‘palliative’ internal self-determination 243
territories. In that scenario, arguments over the quality of the populations
would be as irrelevant to the question of external self-determination as
they would be in Mayotte, or as they would have been in relation to the
Hong Kong New Territories. Such arguments may perhaps affect the
level of internal self-determination to be enjoyed by the inhabitants post-
annexation, an issue which will now be addressed more generally.
5.4 ‘Palliative’ Internal Self-Determination

The denial of external self-determination in disputed colonially admin-
istered territories is – regardless of the basis for setting self-determina-
tion aside – invariably accompanied by guarantees of ‘palliative’ internal
self-determination.
These guarantees appear particularly strong in cases where a distinct
population has developed in the affected territory over a long period of
time (for example, in the cases of Hong Kong, Macau, Goa and dependen-
cies, Gibraltar and the Falkland/Malvinas Islands).
This practice pre-dates the UN era. Indeed, it was integral to the settle-
ment of the Aaland Islands issue by the League of Nations. The report of
the International Committee of Jurists in that case stated that in situations
involving territorial ‘readjustments’, ‘self-determination’ (that is to say, the
‘vaguely defined principle’, rather than the legal rule that emerged decades
later) ‘may be called into play’.4 The Committee rightly pointed out that
such territorial readjustments have important international effects and
therefore engage the ‘interests of the community of States very deeply both
from political and legal standpoints’.5 The Committee stressed the need to
guarantee the ‘acquired right’ of the islanders to a measure of autonomy, in
the interests of internal and external peace.6
The UN practice in disputed colonial territories has followed a broadly
similar approach, although it remains somewhat haphazard. It is unclear,
for instance, whether Indonesian promises of autonomy for West Irian
have translated into internal self-determination in any meaningful sense.
There are also perhaps too few instances of international practice from
which to discern a customary norm. However, it is a noteworthy phe-
nomenon, which arguably reflects the operation of self-determination as
a guiding principle in situations involving territorial readjustments, where
4
Aaland Report, LNOJ Spec Supp 3 (October 1920) 6.
5
Ibid.
6
Ibid., 10 and 6.
international society is forced to balance often-competing imperatives of
international order and international justice.
5.5 Can the Hardest Cases Be Explained

by a Doctrine of Exception?
There would appear to be no coherent doctrine capable of accommodating
the very few cases that cannot be rationalized according to a ‘conventional’
interpretation of the territorial integrity principle.
There is no need to posit a putative doctrine of exception in order to
rationalize the setting aside of self-determination in many of the cases
considered in this work. Chapter 3 showed that a significant number of
these seemingly anomalous cases can be rationalized according to a ‘con-
ventional’ (as opposed to an ‘irredentist’) interpretation of the territorial
integrity principle, which does not offend the inter-temporal principle.
However, as Chapter 4 showed, a very small number of cases, perhaps lim-
ited to the French and Portuguese territories in India, São João Baptista de
Ajudá, Ifni and Gibraltar, cannot be rationalized in this way.
Attempts to rationalize the denial of self-determination in these cases
on the basis of a special ‘colonial enclaves’ category are defective for a num-
ber of reasons, which were discussed in Chapter 4. Some versions of the
‘colonial enclaves’ doctrine are closely related to the fallacious ‘irreden-
tist’ interpretation of paragraph 6. Some authors include an unnecessarily
broad range of cases within the putative ‘special’ category, including cases
that are better understood in conventional terms according to a broad con-
ception of territorial sovereignty. Other versions of the doctrine – notably
Crawford’s – are more internally coherent doctrines of exception, which
implicitly eschew the ‘irredentist’ approach to paragraph 6 of the Colonial
Declaration, and seek instead to place the putative ‘colonial enclaves’ cat-
egory outside the scope of the standard decolonization norms. However,
the analysis of State practice conducted in Chapter 4 found no evidence
for the existence of any coherent exception to the self-determination rule,
let alone one involving territories that are ‘ethnically and economically
parasitic upon or derivative of ’ their claimant States (to use Crawford’s
terminology). Beyond the rhetoric of some claimant States, there is very
little to support the existence of such a putative category, which is highly
contestable even at the level of factual description.
The counter-case studies of Belize, East Timor, and the Spanish terri-
tories in northern Africa suggest that the differential treatment of terri-
tories like Goa and Gibraltar is perhaps best explained on political, rather
5.5 Can the Hardest Cases be Explained? 245
than principled legal grounds. Franck argues persuasively that legitimate
exceptions must be ‘based on underlying general principles which connect
with an ascertainable purpose of the rules and with similar distinctions
made throughout the rule system’.7 On that standard, the putative ‘colonial
enclaves’ exception cannot be considered a coherent and legally defined
exception to the self-determination rule.
It is submitted that the most difficult anomalous cases cannot be ration-
alized ‘definitionally’, according to factual criteria. Weiler describes a pro-
cess where:
the international community is called upon to act not as a registrar of
companies or charities (whose job is to examine whether a claimant has
satisfied a series of objective criteria) but as a political body, such as a legis-
lator, whose job is to judge the political utility and which may, or might, be
swayed even by, yes, self-interest and political prejudice. Such is the nature
of political discretion.8
The application of self-determination often involves a measure of political

discretion. Despite this, the development of a strong right to self-determi-
nation in a colonial context has been one of the great international nor-
mative successes of modern times. This success can be attributed in large
part to the very tightly circumscribed scope of the right and its limited
transformative potential. The rarity of apparent derogations from the self-
determination rule reinforces this point.
It is hoped that this work has made a modest contribution towards
unravelling some of the conceptual difficulties that the most troublesome,
contentious decolonization cases have given rise to. It is also hoped that in
shedding light on some of the factors that have shaped the law in this area,
this work has contributed to an understanding of the potential, and lim-
its, of self-determination as a normative tool for addressing contemporary
international challenges.
7
T. Franck Fairness in International Law and Institutions (Oxford: Oxford University Press
1995) 41.
8
J. H. H. Weiler, ‘Editorial’ 24:1 EJIL (2013) 1, 3. His comments relate to the recognition of
States but they are also relevant to the issues being discussed here.
APPENDIX
Quantitative Analysis of the Terms ‘Colonial

Enclaves’ (English), ‘Enclaves Coloniales’
(Spanish), and ‘Enclaves Coloniales’ (French)
The quantitative analysis of the Google Books database referred to in the

text accompanying footnote 23 of Chapter 4 was conducted in accord-
ance with the methodology described by J.-B. Michel et al. in ‘Quantitative
Analysis of Culture Using Millions of Digitized Books’ Science Vol 331 No
6014 (2011) 176–82.
The methodology in question is associated with the Google Books
project, which has digitized roughly 30 million books of the 130 ever
published. The current word-count goes into the hundreds of billions,
mostly in English, but also in French, Spanish, German, Chinese, Russian,
and Hebrew. According to Michel et al.:
[c]omputational analysis of this corpus enables us to observe cultural
trends and subject them to quantitative investigation.1
The computational analysis they refer to is conducted using the Google

n-gram viewer, a research tool that is freely available online at ngrams
.googlelabs.com. This tool generates graphs depicting the frequency with
which a string of characters uninterrupted by a space (a ‘1-gram’), or a
sequence of 1-grams (an ‘n-gram’) appears in the corpus, relative to the
total number of words in a given year. This enables users to search for, and
compare, the frequency with which words and phrases appear over time
within, and across, the various digitized corpora.
A search for the n-grams ‘colonial enclaves’, ‘enclaves coloniales’, and
‘enclaves coloniales’ was performed by the present author across the
English, Spanish and French corpora of Google Books respectively, for the
historical period 1800–2008.2 The search terms entered into the n-gram
At 176.
1
For more information concerning this methodology see J. Trinidad ‘“Culturomics” and
2
International Law Research’ Reinisch et al. (eds.), Select Proceedings of the European Society
of International Law (Bloomsbury: Hart 2017) 261.
247
0.00000700%
0.00000600%
0.00000500%
0.00000400%
0.00000300%
enclaves coloniales: Spanish
248
0.00000200%
0.00000100% enclaves coloniales: French

colonial enclaves: English
0.00000000%
1800 1820 1840 1860 1880 1900 1920 1940 1960 1980 2000
(click on line/label for focus)
Figure 1 Graph depicting frequency of the 2-grams ‘colonial enclaves’, ‘enclaves coloniales’, and ‘enclaves coloniales’ across the English,
French and Spanish corpora of Google Books respectively, from 1800 to 2008
(Source: Google n-gram viewer).
APPENDIX 249
viewer were: ‘colonial enclaves:eng_2012, enclaves coloniales:fr_2012,
enclaves coloniales:sp_2012’. The results of the search are depicted in the
graph that appears on page 248.
These results indicate that the term ‘enclaves coloniales’ originated in
the mid-nineteenth-century French literature. After a period of dormancy,
modern literary use of the term increased steadily from the mid-twentieth
century, peaking in the late 1970s to early 1980s. From 1960 onwards, rela-
tive frequency of use in the Spanish corpus significantly exceeds relative
frequency of use in the English and French corpora.
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INDEX
Aaland Islands, 7, 119, 151, 154, 243 Chagos Islands, 18, 37, 72, 73, 83–91,
Acquisitive prescription, 125, 126, 127 101, 102, 133, 152, 155, 159, 160,
African Union, 64, 161 179, 240
Akehurst, Michael, 142 Chagos Marine Protected Area, 89
Algeria, 38, 49, 176 Chandenagore, 182, 185, 186
Alhucemas, 39, 161, 178, 223, 225, 227, Christmas Island, 18, 72, 88, 92,
232, 233, 234 96–101, 99, 100, 101, 153, 155, 209
Allott, Philip, 236 Clark, Roger, 36
Anguilla, 96 Cocos (Keeling) Islands, 72, 88,
Argentina, 37, 53, 60, 69, 112, 133, 134, 96–101, 150, 153
135, 136, 137, 138, 139, 142, 143, Colombia, 103
145, 147, 148, 149, 151, 152, 153, Colonial Declaration, 9, 10, 12, 17,
154, 155, 204, 209, 241, 242 21, 22
drafting history, 23, 30–37, 239
Basdevant, Jules, 183 fragmentation of Non-Self-
Bedjaoui, Mohammed, 49 Governing Territories, 73, 239
Belgian thesis, 8 geopolitical context, 24–30
Belgium, 25 ‘irredentist’ interpretation of
Belize, 34, 37, 67, 159, 161, 170, paragraph 6, 23, 37, 38, 46, 53, 56,
215–20 66, 67, 68, 69, 72, 134, 138, 160
Benin, 37, 77, 186 relevance to Western Sahara
Brazzaville Group, 28 proceedings before ICJ, 43–66
British Cameroons, 18, 72, 88, 92–93, Colonial enclaves doctrine, 5, 19, 43,
94, 101, 153 62, 63, 69, 120, 122, 134, 139, 149,
British Indian Ocean Territory. See 157, 164–238, 244, 245
Chagos Islands according to Crawford, 158, 159,
Brownlie, Ian, 15, 105, 148, 170 236–37, 196, 199, 204, 207, 209,
Bull, Hedley, 10 236–37, 244
Burundi, 93 according to Dugard, 212
according to Higgins, 177–78
Cape Colony, 210 according to Rigo-Sureda, 166–70
Cape Juby, 39 according to Shaw, 175–77
Cassese, Antonio, 2, 30, 63, 94, 147, 222 Colonial plantations doctrine, 207, 209,
Ceuta, 36, 39, 47, 161, 223, 227, 228, 210, 238
229, 230, 231, 234 Comoros Islands, 37, 74, 75, 76, 77, 78,
Chafarinas Islands, 39, 161, 168, 178, 79, 80, 81, 87, 111, 118, 146, 152,
223, 225, 227, 229, 232, 233, 234 155, 213, 241
261
262 index
Congo, 25–26, 35, 36, 59, 68 General Assembly Resolutions
Congress of Micronesia, 95 GA Res 31/49, 1 December 1976
Conquest (Falkland/Malvinas Islands)., 145
Falkland/Malvinas Islands, 138, 140 GA Res 31/50, 1 December 1976
Goa, 190, 193 (Belize)., 217
Court of Justice of the European Union GA Res 3161 (XXVIII), 14
Polisario v Council, 65 December 1973 (Comoros).,
Crawford, James, 3, 15, 16, 30, 43, 58, 76, 146
71, 95, 160, 177, 179, 236 GA Res 32/32, 28 November 1977
on Gibraltar, 122, 132, 200 (Belize)., 217
on Goa and Dependencies, 193 GA Res 32/9 D, 4 November 1977
on the colonial enclaves doctrine. (Namibia)., 211
See Colonial enclaves doctrine, GA Res 33/36, 13 December 1978
according to Crawford (Belize)., 216
on the Falkland/Malvinas Islands, 148 GA Res 34/21, 9 November 1979
on Western Sahara, 50, 52 (Co-operation between the UN
and the OAU)., 82
Dadra and Nagar-Haveli, 163, 188, GA Res 34/38, 21 November 1979
192 (Belize)., 216
Dahomey. See Benin GA Res 34/91, 12 December 1979
Deng Xioaping, 112 (Islands of Glorieuses, Juan
Diego Garcia. See Chagos Islands de Nova, Europa and Bassa da
Dillard, Hardy, 54, 70, 71, 117, 155 India)., 82
Dugard, John, 167, 192, 212 GA Res 35/20, 11 November 1980
(Belize)., 216
East Timor, 16, 20, 35, 38, 52, 60, 65, GA Res 36/3, 25 September 1981
67, 159, 160, 161, 170, 199, 214, (Belize)., 34
220–22 GA Res 37/9, 4 November 1982
Enclaves and exclaves, as geographic (Falklands)., 145
concepts, 162–63 GA Res 38/12, 16 November 1983
Equatorial Guinea, 130 (Falklands), 145
Estoppel, 79, 155, 212, 213, 241 GA Res 39/30, 5 December 1984
Ethnographic conception of (Cocos (Keeling) Islands)., 99
peoplehood, 19, 59, 60, 61, 68, 69, GA Res 39/6, 1 November 1984
241–43, 242 (Falkland/Malvinas Islands)., 145
GA Res 40/21, 27 November 1985
Falkland/Malvinas Islands, 5, 37, 53, (Falkland/Malvinas
60, 79, 101, 112, 119, 133–52, 154, Islands)., 145
205, 207, 208, 218, 219, 238, 241, GA Res 49/18, 28 November 1994
242, 243 (Mayotte)., 76
Franck, Thomas, 11, 15, 28, 30, 36, 71, GA Res 56/83, 12 December 2001
147, 158, 161, 170, 178, 191, (ILC Articles on Responsibility
230, 245 of States for Internationally
Franco, Francisco, 206 Wrongful Acts)., 14
French Establishments in India, 159, GA Res 57/3, 27 September 2002
163, 179–86 (East Timor)., 222
Friendly Relations Declaration, 12, 13, GA Res 181(II), 29 November 1947
16, 130, 144, 176 (Palestine)., 92
index 263
GA Res 637 (VII), 16 December GA Res 2229 (XXI) 20 December
1952 (Right of peoples and 1966 (Ifni and Spanish Sahara).,
nations to self-determination)., 8 41, 44, 47, 197
GA Res 1350 (XIII), 13 May 1959 GA Res 2231 (XXI), 20 December
(Trust Territory of the Cameroons 1966 (Gibraltar)., 200, 201
under United Kingdom GA Res 2232 (XXI), 20 Dec 1966
Administration)., 92 (Various)., 86, 90
GA Res 1514 (XV), 14 Dec 1960 GA Res 2353 (XXII), 19 Dec 1967
(Declaration on the granting (Gibraltar)., 121, 201, 203, 204,
of independence to colonial 207, 210
countries and peoples). See GA Res 2354 (XXII), 19 December
Colonial Declaration 1967 (Ifni and Spanish Sahara).,
GA Res 1541 (XV), 15 Dec 1960 47, 196, 197
(Principles which should GA Res 2357 (XXII), 19 Dec 1967
guide members in determining (Various)., 86, 90
whether or not an obligation GA Res 2428 (XXIII), 18 December
exists to transmit information 1968 (Ifni and Spanish Sahara).,
called for under Article 73e of 40, 42, 47, 195, 197
the Charter)., 12, 61, 63, 150, GA Res 2429 (XXIII), 18 December
167, 233 1968 (Gibraltar)., 203
GA Res 1542 (XV), 15 December GA Res 2504 (XXIV), 20 November,
1960 (Portuguese overseas 1969 (Agreement between
territories)., 187, 190, 192, 220, Indonesia and Netherlands
233, 234 concerning West Irian)., 29
GA Res 1608 (XV), 21 April GA Res 2591 (XXIV), 16 December
1961 (Trust Territory of the 1969 (Spanish Sahara)., 42
Cameroons)., 93 GA Res 2625 (XXV), 24 Oct 1970
GA Res 1699 (XVI) 19 Dec 1961 (Declaration on principles of
(Portuguese overseas international law concerning
territories)., 192 friendly relations and co-
GA Res 1743 (XVI), 23 February operation among states in
1962 (Ruanda-Urundi)., 94 accordance with the Charter of
GA Res 1746 (XVI), 27 June 1962 the United Nations). See Friendly
(Ruanda-Urundi)., 94 Relations Declaration
GA Res 1752 (XVII), 21 September GA Res 2711 (XXV), 14 December
1962 (West Irian)., 28 1970 (Spanish Sahara)., 42
GA Res 2064 (XX), 16 December GA Res 2758 (XXVI), 25 Oct 1971
1965 (Cook Islands)., 185 (Restoration of the Lawful Rights
GA Res 2065 (XX), 16 December of the People’s Republic of China
1965 (Falkland/Malvinas Islands)., in the United Nations)., 111
143, 144 GA Res 3286 (XXIX), 13 December
GA Res 2066 (XX) 16 Dec 1965 1974 (Gibraltar)., 203
(Mauritius)., 86, 90 GA Res 3291 (XXIX), 13 December
GA Res 2070 (XX), on 16 December 1974 (Comoros)., 75, 76
1965 (Gibraltar)., 200 GA Res 3292(XXIX), 13 December
GA Res 2072 (XX), 16 December 1974 (Spanish Sahara)., 44, 50
1965 (Ifni and Spanish Sahara)., GA Res 3385 (XXX), 12 November
41, 196 1975 (Comoros)., 76
264 index
General Assembly Resolutions (cont.) Ifni, 19, 36, 39, 40, 41, 43, 53, 63, 159,
GA Res 3432 (XXX), 8 December 166, 167, 176, 179, 195–99
1975 (Belize)., 216 comparison with Western Sahara,
GA Res 3485 (XXX), 12 December 42, 45, 47, 48, 49, 195, 197
1975 (East Timor)., 221 Indonesia, 20, 23, 27, 28, 35, 37, 67,
Gibraltar, 4, 5, 19, 20, 37, 46, 47, 59, 72, 168, 204, 243
79, 101, 103, 119, 159, 166, 170, claim to East Timor, 35, 38, 60, 65,
174, 176, 179, 218, 219, 243 220–22
comparison with Belize, 218–20 contribution to draft
comparison with Spanish enclaves in Colonial Declaration,
Africa, 161, 168, 222, 228–32 31–32, 33, 68
comparison with the Falkland/ decolonization, and incorporation of
Malvinas Islands, 133, 134, West Irian, 26–30
139, 147 Inter-temporal law principle, 168, 169,
exceptionalist aspects of the Spanish 172, 244
claim, 153, 199–210
status of the population, 46, 47, 48, Jennings, Robert, 126, 170
59, 154, 205–10, 218, 219, 237 Jugnauth, Anerood, 87
treaty-based considerations,
120–33, 153 Kashmir, 183, 194
Gilbert and Ellice Islands, 18, 72, Katanga, 25–26, 35, 36, 37, 45, 49, 59,
95–96 67, 68, 71, 91, 217, 239
Giscard d’Estaing, Valery, 74 Kiribati, 95, 96
Goa and Dependencies, 28, 37, 60, 119, Knop, Karen, 4, 5
161, 163, 166, 173, 174, 179, 187, Kohen, Marcelo, 81, 149, 207,
188–95, 231, 243 209, 219
comparison with Belize, 220, 237 on Belize, 218, 219
comparison with East Timor, 221, on the Falkland/Malvinas Islands,
222, 237 138, 148
comparison with São João Baptista Koskenniemi, Martti, 4, 49
de Ajudá, 188, 235
Greig, Donald, 141, 158, 161, 199, Lauterpacht, Elihu, 216
222, 235 League of Nations, 7
Guatemala, 24, 31, 32, 33, 34, 37, 46, designation of South West Africa as
51, 66, 67, 195, 204, 214, 218, 239 a Mandate, 211
claim to Belize, 215–17, 217, 218 role in the Aaland Islands case, 7
Gustavo Guerrero, José, 183 Leases of territory, 84, 90, 97, 102, 103,
108, 109, 110, 113, 117, 118
Higgins, Rosalyn, 9, 60, 151 Lenin, 6
on the ‘colonial enclaves’ doctrine. Lowe, Vaughan, 14
See Colonial enclaves doctrine, Lumumba, Patrice, 25
according to Higgins
Hitler, Adolf, 8 Macau, 19, 72, 103, 111, 113, 119–20,
Hong Kong, 19, 52, 69, 72, 79, 102, 103, 123, 153, 154, 243
108–19, 111, 113, 132, 133, 149, Madagascar, 74, 213, 241
151, 153, 154, 155, 159, 179, 213, claim to the Scattered Islands (Iles
241, 243 Eparses), 81–83
Huber, Max, 2, 87, 126, 168, 169 Marshall Islands, 95
index 265
Mauritania, 36, 38, 41, 42, 43, 44, 51, Protectorates, 39, 40, 74, 118, 213, 226
52, 66, 176, 195, 204 Puerto Rico, 111
submissions in the Western Sahara
proceedings, 45, 51, 195 Ramgoolam, Seewoosagur,
submissions in Western Sahara 85, 87
proceedings, 45 Rigo-Sureda, Andrés, 15, 30, 130, 160,
Mauritius, 81 171, 172, 174, 176, 177, 230
claim to Chagos Islands, 37 on Gibraltar, 204
claim to the Chagos Islands, on the colonial enclaves doctrine.
89–91 See Colonial enclaves doctrine,
Mayotte, 2, 5, 18, 37, 72, 73, 74–80, according to Rigo-Sureda
81, 82, 86, 87, 91, 117, 118, 146, Ruanda-Urundi, 18, 72, 88, 91, 93–94,
152, 154 101, 153, 240
Nagendra Singh, 53 Saharawi Arab Democratic

Namibia, 159, 176 Republic, 64
decolonization, and incorporation Salt water colonies, 12, 17, 71
of Walvis Bay, 211–14 São João Baptista de Ajudá, 59, 159,
Nehru, Jawaharlal, 182, 189, 194 161, 186–88, 190, 222, 234, 235,
Netherlands, 28, 163 237, 242
Nigeria, 15, 49, 93 comparison with unpopulated
Non-Aligned Movement, 82, 89, Spanish enclaves in Africa, 223,
145, 228 232, 233, 234
Scattered Islands (Îles Éparses), 18, 72,
Palau, 95 73, 79, 80–83, 91, 152
Palestine, 35, 60, 92, 217 Security Council Resolutions
Panama Canal Zone, 19, 69, 72, 102, SC Res 21, 2 April 1947
103–8, 164, 170, 179, 218, 241 (Trust Territory of the Pacific
Pellet, Alain, 16 Islands)., 94
Perejil/Parlsey Island, 161, 225 SC Res 67, 28 Jan 1949
military confrontation between (Indonesia)., 27
Spain and Morocco, 226 SC Res 143, 14 July 1960
Perejil/Parsley Island, 178, 223, 225 (Congo)., 25
comparison with São João Baptista SC Res 161, 21 February 1961
de Ajudá, 237 (Congo)., 26
Petrén, Sture, 52, 65, 66, 69 SC Res 384, 22 December 1975
Polisario Front, 64 (East Timor)., 221
Pondicherry. See French SC Res 389, 22 April 1976 (East
Establishments in India Timor)., 221
Portugal, 9, 163, 190, 192, 221, 224, SC Res 432, 27 July 1978
233, 234 (Namibia)., 211
administration of East Timor, 220 SC Res 502, 3 April 1982
administration of Macau, 120 (Falkland/Malvinas Islands)., 145
administration of São João Baptista SC Res 505, 26 May 1982
de Ajudá, 186, 232 (Falkland/Malvinas Islands)., 145
colonial possessions in India, SC Res 956, 10 November 1994
163, 188, 189, 190, 191, 192, (Trust Territory of the Pacific
193, 220 Islands)., 95
266 index
Self-determination Thatcher, Margaret, 112
evolution, 6–17 Timor Leste. See East Timor
and jus cogens, 13–17, 131, 236 Toynbee, Arnold, 70
relationship with territorial integrity, Trust Territory of the Pacific Islands,
21–69, 239 18, 72, 94
Seychelles, 83, 84 Turks and Caicos Islands, 150
Shaw, Malcolm, 53, 57, 58, 187, 204, Tuvalu, 95
205, 213, 232
on the colonial enclaves doctrine. Unequal treaties doctrine,
See Colonial enclaves doctrine, 111, 113–17
according to Shaw Uti possidetis principle, 12, 24, 28, 29,
Singapore, 18, 88, 97, 98, 100, 102 30, 32, 37, 55, 86, 91, 138, 147,
South Africa, 11, 210, 211, 212, 148, 216, 239
213, 214 accepted departures therefrom,
South Georgia and South Sandwich 91–102
Islands, 135
South Georgia and the Sandwich Vienna Convention on the
Islands, 141 Law of Treaties, 13, 14, 115,
Spanish enclaves in Africa, 223–35 116, 131
comparison with Gibraltar. See
Gibraltar, comparison with Walvis Bay, 19, 79, 159, 167, 176, 179,
Spanish enclaves in Africa 210–14, 241
Straits Settlement, 97 Weller, Marc, 15, 70
West Irian, 26–30
Territorial integrity Western Sahara, 36, 38, 39, 41, 42
and the identification of ICJ Advisory Opinion,
self-determination units, 38, 43–66
70–156, 239, 240 Wilson, Woodrow, 6
C A M B R I D G E ST U D I E S I N I N T E R NAT IO NA L
A N D C OM PA R AT I V E L AW
Books in the series

134 Self-Determination in Disputed Colonial Territories, Jamie Trinidad
133 International Law as a Belief System, Jean d’Aspremont
132 Legal Consequences of Peremptory Norms in International Law, Daniel Costelloe
131 Third-Party Countermeasures in International Law, Martin Dawidowicz
130 Justification and Excuse in International Law, Federica Paddeu
129 Exclusion from Public Space, Daniel Moeckli
128 Provisional Measures before International Courts and Tribunals, Cameron Miles
127 Humanity at Sea: Maritime Migration and the Foundations of International Law,
Itamar Mann
126 Beyond Human Rights: The Legal Status of the Individual in International Law, Anne
Peters
125 The Doctrine of Odious Debt in International Law: A Restatement, Jeff King
124 Static and Evolutive Treaty Interpretation: A Functional Reconstruction, Christian
Djeffal
123 Civil Liability in Europe for Terrorism-Related Risk, Lucas Bergkamp, Michael
Faure, Monika Hinteregger and Niels Philipsen
122 Proportionality and Deference in Investor-State Arbitration: Balancing Investment
Protection and Regulatory Autonomy, Caroline Henckels
121 International Law and Governance of Natural Resources in Conflict and Post-Conflict
Situations, Daniëlla Dam-de Jong
120 Proof of Causation in Tort Law, Sandy Steel
119 The Formation and Identification of Rules of Customary International Law in
International Investment Law, Patrick Dumberry
118 Religious Hatred and International Law: The Prohibition of Incitement to Violence or
Discrimination, Jeroen Temperman
117 Taking Economic, Social and Cultural Rights Seriously in International Criminal
Law, Evelyne Schmid
116 Climate Change Litigation: Regulatory Pathways to Cleaner Energy? Jacqueline Peel
and Hari Osofsky
267
268 International and Comparative Law
115 Mestizo International Law: A Global Intellectual History 1842–1933, Arnulf Becker
Lorca
114 Sugar and the Making of International Trade Law, Michael Fakhri
113 Strategically Created Treaty Conflicts and the Politics of International Law, Surabhi
Ranganathan
112 Investment Treaty Arbitration as Public International Law: Procedural Aspects and
Implications, Eric De Brabandere
111 The New Entrants Problem in International Fisheries Law, Andrew Serdy
110 Substantive Protection under Investment Treaties: A Legal and Economic Analysis,
Jonathan Bonnitcha
109 Popular Governance of Post-Conflict Reconstruction: The Role of International Law,
Matthew Saul
108 Evolution of International Environmental Regimes: The Case of Climate Change,
Simone Schiele
107 Judges, Law and War: The Judicial Development of International Humanitarian Law,
Shane Darcy
106 Religious Offence and Human Rights: The Implications of Defamation of Religions,
Lorenz Langer
105 Forum Shopping in International Adjudication: The Role of Preliminary Objections,
Luiz Eduardo Ribeiro Salles
104 Domestic Politics and International Human Rights Tribunals: The Problem of
Compliance, Courtney Hillebrecht
103 International Law and the Arctic, Michael Byers
102 Cooperation in the Law of Transboundary Water Resources, Christina Leb
101 Underwater Cultural Heritage and International Law, Sarah Dromgoole
100 State Responsibility: The General Part, James Crawford
99 The Origins of International Investment Law, Kate Miles
98 The Crime of Aggression under the Rome Statute of the International Criminal Court,
Carrie McDougall
97 Crimes against Peace and International Law, Kirsten Sellars
96 Non-Legality in International Law, Fleur Johns
95 Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons
under International Humanitarian Law, Mélanie Jacques
94 Foreign Investment and the Environment in International Law, Jorge Viñuales
93 The Human Rights Treaty Obligations of Peacekeepers, Kjetil Larsen
92 Cyberwarfare and the Laws of War, Heather Harrison Dinniss
91 The Right to Reparation in International Law for Victims of Armed Conflict, Christine
Evans
90 Global Public Interest in International Investment Law, Andreas Kulick
89 State Immunity in International Law, Xiaodong Yang
International and Comparative Law 269
88 Reparations and Victim Support in the International Criminal Court, Conor
McCarthy
87 Reducing Genocide to Law: Definition, Meaning, and the Ultimate Crime, Payam
Akhavan
86 Decolonizing International Law: Development, Economic Growth and the Politics of
Universality, Sundhya Pahuja
85 Complicity and the Law of State Responsibility, Helmut Philipp Aust
84 State Control over Private Military and Security Companies in Armed Conflict,
Hannah Tonkin
83 ‘Fair and Equitable Treatment’ in International Investment Law, Roland Kläger
82 The UN and Human Rights: Who Guards the Guardians? Guglielmo Verdirame
81 Sovereign Defaults before International Courts and Tribunals, Michael Waibel
80 Making the Law of the Sea: A Study in the Development of International Law, James
Harrison
79 Science and the Precautionary Principle in International Courts and Tribunals:
Expert Evidence, Burden of Proof and Finality, Caroline E. Foster
78 Transition from Illegal Regimes in International Law, Yaël Ronen
77 Access to Asylum: International Refugee Law and the Globalisation of Migration
Control, Thomas Gammeltoft-Hansen
76 Trading Fish, Saving Fish: The Interaction between Regimes in International Law,
Margaret Young
75 The Individual in the International Legal System: Continuity and Change in
International Law, Kate Parlett
74 ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and
Practice, Tom Ruys
73 Theatre of the Rule of Law: Transnational Legal Intervention in Theory and Practice,
Stephen Humphreys
72 Science and Risk Regulation in International Law, Jacqueline Peel
71 The Participation of States in International Organisations: The Role of Human Rights
and Democracy, Alison Duxbury
70 Legal Personality in International Law, Roland Portmann
69 Vicarious Liability in Tort: A Comparative Perspective, Paula Giliker
68 The Public International Law Theory of Hans Kelsen: Believing in Universal Law,
Jochen von Bernstorff
67 Legitimacy and Legality in International Law: An Interactional Account, Jutta
Brunnée and Stephen J. Toope
66 The Concept of Non-International Armed Conflict in International Humanitarian
Law, Anthony Cullen
65 The Principle of Legality in International and Comparative Criminal Law, Kenneth
S. Gallant
64 The Challenge of Child Labour in International Law, Franziska Humbert
270 International and Comparative Law
63 Shipping Interdiction and the Law of the Sea, Douglas Guilfoyle
62 International Courts and Environmental Protection, Tim Stephens
61 Legal Principles in WTO Disputes, Andrew D. Mitchell
60 War Crimes in Internal Armed Conflicts, Eve La Haye
59 Humanitarian Occupation, Gregory H. Fox
58 The International Law of Environmental Impact Assessment: Process, Substance and
Integration, Neil Craik
57 The Law and Practice of International Territorial Administration: Versailles to Iraq
and Beyond, Carsten Stahn
56 United Nations Sanctions and the Rule of Law, Jeremy Farrall
55 National Law in WTO Law: Effectiveness and Good Governance in the World
Trading System, Sharif Bhuiyan
54 Cultural Products and the World Trade Organization, Tania Voon
53 The Threat of Force in International Law, Nikolas Stürchler
52 Indigenous Rights and United Nations Standards, Alexandra Xanthaki
51 International Refugee Law and Socio-Economic Rights, Michelle Foster
50 The Protection of Cultural Property in Armed Conflict, Roger O’Keefe
49 Interpretation and Revision of International Boundary Decisions, Kaiyan Homi
Kaikobad
48 Multinationals and Corporate Social Responsibility: Limitations and Opportunities
in International Law, Jennifer A. Zerk
47 Judiciaries within Europe: A Comparative Review, John Bell
46 Law in Times of Crisis: Emergency Powers in Theory and Practice, Oren Gross and
Fionnuala Ní Aoláin
45 Vessel-Source Marine Pollution: The Law and Politics of International Regulation,
Alan Tan
44 Enforcing Obligations Erga Omnes in International Law, Christian J. Tams
43 Non-Governmental Organisations in International Law, Anna-Karin Lindblom
42 Democracy, Minorities and International Law, Steven Wheatley
41 Prosecuting International Crimes: Selectivity and the International Law Regime,
Robert Cryer
40 Compensation for Personal Injury in English, German and Italian Law: A
Comparative Outline, Basil Markesinis, Michael Coester, Guido Alpa, Augustus
Ullstein
39 Dispute Settlement in the UN Convention on the Law of the Sea, Natalie Klein
38 The International Protection of Internally Displaced Persons, Catherine Phuong
37 Imperialism, Sovereignty and the Making of International Law, Antony Anghie
35 Necessity, Proportionality and the Use of Force by States, Judith Gardam
34 International Legal Argument in the Permanent Court of International Justice: The
Rise of the International Judiciary, Ole Spiermann
International and Comparative Law 271
32 Great Powers and Outlaw States: Unequal Sovereigns in the International Legal
Order, Gerry Simpson
31 Local Remedies in International Law, Second Edition, C. F. Amerasinghe
30 Reading Humanitarian Intervention: Human Rights and the Use of Force in
International Law, Anne Orford
29 Conflict of Norms in Public International Law: How WTO Law Relates to Other
Rules of International Law, Joost Pauwelyn
27 Transboundary Damage in International Law, Hanqin Xue
25 European Criminal Procedures, Edited by Mireille Delmas-Marty and John Spencer
24 The Accountability of Armed Opposition Groups in International Law, Liesbeth
Zegveld
23 Sharing Transboundary Resources: International Law and Optimal Resource Use,
Eyal Benvenisti
22 International Human Rights and Humanitarian Law, René Provost
21 Remedies against International Organisations, Karel Wellens
20 Diversity and Self-Determination in International Law, Karen Knop
19 The Law of Internal Armed Conflict, Lindsay Moir
18 International Commercial Arbitration and African States: Practice, Participation
and Institutional Development, Amazu A. Asouzu
17 The Enforceability of Promises in European Contract Law, James Gordley
16 International Law in Antiquity, David J. Bederman
15 Money Laundering: A New International Law Enforcement Model, Guy Stessens
14 Good Faith in European Contract Law, Reinhard Zimmermann and Simon
Whittaker
13 On Civil Procedure, J. A. Jolowicz
12 Trusts: A Comparative Study, Maurizio Lupoi
11 The Right to Property in Commonwealth Constitutions, Tom Allen
10 International Organizations before National Courts, August Reinisch
9 The Changing International Law of High Seas Fisheries, Francisco Orrego Vicuña
8 Trade and the Environment: A Comparative Study of EC and US Law, Damien
Geradin
7 Unjust Enrichment: A Study of Private Law and Public Values, Hanoch Dagan
6 Religious Liberty and International Law in Europe, Malcolm D. Evans
5 Ethics and Authority in International Law, Alfred P. Rubin
4 Sovereignty over Natural Resources: Balancing Rights and Duties, Nico Schrijver
3 The Polar Regions and the Development of International Law, Donald R. Rothwell
2 Fragmentation and the International Relations of Micro-States: Self-Determination
and Statehood, Jorri Duursma
1 Principles of the Institutional Law of International Organizations, C. F. Amerasinghe

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SE L F- D E T E R M I NAT IO N I N D I SP U T E D

Self-Determination in Disputed Colonial Territories addresses the relation-

Jamie Trinidad is Fellow of Wolfson College, University of Cambridge

Established in 1946, this series produces high-quality, reflective and inno-

Cambridge University Press is part of the University of Cambridge.

Acknowledgements page xiii

2 Territorial Integrity and the Limits of Self-Determination:

3 Territorial Integrity, Irredentist Claims, and the Identification

4 Is There a ‘Colonial Enclaves’ Exception to the

5 Overall Conclusions 239

AFDI Annuaire français de droit international

AJIL American Journal of International Law

Aust YIL Australian Yearbook of International Law

BFSP British and Foreign State Papers

BYIL British Yearbook of International Law

C24 Committee of Twenty-Four (United Nations Special

CJICL Cambridge Journal of International and Comparative Law

Cmd, Cmnd United Kingdom, Command Papers

Colum J Transnat’l L Columbia Journal of Transnational Law

CTS Consolidated Treaty Series

EEZ Exclusive Economic Zone

EJIL European Journal of International Law

GA Res Resolution of the United Nations General Assembly

GAOR General Assembly Official Records

GYIL German Yearbook of International Law

Harv Int’l L J Harvard International Law Journal

HRLR Human Rights Law Review

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural

ICJ International Court of Justice

ICLQ International and Comparative Law Quarterly

ILC International Law Commission

ILC Ybk Yearbook of the International Law Commission

ILM International Legal Materials

ILR International Law Reports

ITLOS International Tribunal for the Law of the Sea

JO Journal officiel de la République française

LNTS League of Nations Treaty Series

MPEPIL Max Planck Encyclopedia of Public International Law

NYUJILP New York University Journal of International Law and Politics

OAU Organisation of African Unity

PCIJ Permanent Court of International Justice

PCA Permanent Court of Arbitration

PRO United Kingdom Public Records Office

PUF Presses Universitaires de France

REDI Revista española de derecho internacional

RGDIP Revue génerale de droit international public

RIAA United Nations, Reports of International Arbitral Awards

Span YIL Spanish Yearbook of International Law

UKHL United Kingdom House of Lords

UKMIL United Kingdom Materials on International Law

UN Charter Charter of the United Nations

UNCLOS United Nations Convention on the Law of the Sea

UNGA United Nations General Assembly

UNSC United Nations Security Council

Va J Int’l L Virginia Journal of International Law

VCLT Vienna Convention on the Law of Treaties

Yale J Int’l Law Yale Journal of International Law

ZaöRV Zeitschrift für Ausländisches Öffentliches Recht und

Leading works include A. Cassese Self-Determination of Peoples: A Legal Reappraisal

Western Sahara Advisory Opinion (n 76) 53, para 59.

Western Sahara Advisory Opinion (n 76) 110.

See (n 145) above and accompanying text.