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Oppenheim's International Law - Volume 1 Peace, 9th Edition edited by Jennings, Robert; Watts KCMG QC, Arthur (19th June 2008)

Part 1 The subjects of international law, Ch.2 International persons, Dependent Territories

Sir Robert Jennings qc, Sir Arthur Watts kcmg qc

From: Oppenheim's International Law: Volume 1 Peace (9th Edition)

Edited By: Robert Jennings, Arthur Watts KCMG QC

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 22 January 2019

Subject(s):
Territory, dependent — Territory, non-self-governing — UN Charter

(p. 275) Dependent Territories

Moresco, Hag R, 55 (1936), i, pp 513–90 Van Asbeck, ibid, 71 (1947), ii, pp 349–472, and Grotius Society, 39 (1953), pp 5–30 International Conciliation (1947), No 435 Fawcett, BY, 26 (1949), pp 85–93 Kelsen, Law of the United Nations (1950), pp 550–66 Fox, International Organisation, 4 (1950), pp 199–218 Johnson, YB of World Affairs (1951), pp 226–31 Eagleton, AJ, 47 (1953), pp 88–93 Toussaint, YB of World Affairs (1954), pp 141–69 Sandy, The United Nations and Dependent Peoples (1956) Jenks, Common Law of Mankind (1958), pp 231–54 Nawax, Indian Year Book of International Affairs, 11 (1962), pp 3–47 Fawcett, The British Commonwealth in International Law (1963), pp 106–15, 138–43 Higgins, Development of International Law through the Political Organs of the United Nations (1963), pp 90–106, 110–18 de Yturriaga, YB of World Affairs (1964), pp 178–212 Castles in International Law in Australia (ed O’Connell, 1965), pp 368–400 Roberts-Wray, Commonwealth and Colonial Law (1966) Measures taken within the United Nations in the Field of Human Rights (a study prepared by the UN Secretary-General, 1967) (UN Doc A/CONF 32/5), paras 81–141 Emerson in The Relevance of International Law (eds Deutsch and Hoffman, 1968), pp 153–74, and International Relations, 3 (1970), pp 766–81 Bleckmann, Das Französiche Kolonialreich und die Gründung neuer Staaten (1969) Goodrich, Hambro and Simons, Charter of the United Nations (3rd ed, 1969), pp 448–63 Gutteridge, The United Nations in a Changing World (1969), pp 48–71 El Ayouty, The United Nations and Decolonisation (1971) Crawford, The Creation of States in International Law (1979), pp 84–106, 356–84 Dale, The Modern Commonwealth (1983), pp 202–204, 264–5, 305–20 Cot and Pellet, La Charte des Nations Unies (1985), pp 1061–75 Simma (ed), Charta der Vereinten Nationen (1991), pp 878–88 See also § 85, n 14, for a bibliography on the self-determination of peoples.

§ 84  Colonies

While it is necessary to distinguish from fully sovereign states those which are under some kind of protection, these latter are equally to be distinguished from colonies and other similar overseas dependent territories.1 In general, while protected states possess in varying degrees some element of separate statehood and are essentially foreign states over which the protecting state has extensive powers of control, particularly as regards foreign relations, colonies and similar dependent territories possess no separate statehood or (p. 276) sovereignty: it is the parent state alone which possesses international personality and has the capacity to exercise international rights and duties. The parent state may, and often does, grant a colony a degree of internal autonomy,2 and even certain powers in external affairs, but from the parent state’s point of view this is a revocable delegation of the exercise of part of the parent state’s sovereign powers. Parent states have varied and even annulled the constitution they have previously granted to a colony, as the United Kingdom did in respect of British Guiana in 1953,3 Southern Rhodesia in 1965,4 and Anguilla in 1971.5

The degree of internal authority possessed by colonial territories varies greatly, as do their legal relationships with their parent state.6 Often the colony and its (p. 277) parent state are regarded as legally separate, so that, for example, the colony may be regarded as having its own assets and being responsible for its own debts and wrongful acts.7 Each case must be considered on its merits, in the light of the purpose in mind,8 and in the knowledge that the various classifications of territories are primarily a matter of convenience and cannot be applied inflexibly. It is also important to note that the designation given to a territory as a matter of internal or constitutional law may not reflect its proper characterisation in international law.9 In particular, the adoption of a constitutional structure by which overseas territories, however distant, are constituted as provinces or departments of the parent state, on an equal footing with provinces or departments in the metropolitan territory of the state, may not be sufficient in itself to render them any the less in substance colonial territories.10

(p. 278) Since colonies have no separate statehood or sovereignty11 they cannot send or receive diplomatic envoys, or conclude treaties:12 and a treaty concluded by the parent state possessing sovereignty over the colony will generally be binding also in respect of the colony (except in certain circumstances, such as where the treaty expressly or by necessary implication provides otherwise).13 Colonies are not separately responsible in international law for damage caused by their acts to foreign interests: this too is a matter for the parent state as is the claiming of international rights enjoyed in respect of the colonial territory.

Despite this, however, colonial territories may occasionally participate directly in the activities of the international community, usually in those fields within which they have self-government.14 They will often in this way be acting formally in the capacity as agent for the parent state, as, for example, when concluding treaties. This is essentially a delegated power, the colony being (p. 279) entrusted with the exercise of the treaty making power vested in the parent state. The entrustment may be either general in relation to certain subjects,15 or ad hoc in relation to a particular treaty;16 it will often be expressly recited in the treaty. Again, some colonial territories have certain membership rights in some international organisations.17 In such cases the colonial territory possesses the limited international position in question not so much by virtue of any inherent international status of its own as by virtue of the express acceptance or conferment of it by the states concerned (as expressed, for example, in the constituent instrument of the organisation).

In some cases, however, particularly as a dependent territory advances towards full independence, it may not be clear whether a territory is a colony or has already acquired some independent status. The development of the British Dominions between the First and Second World Wars affords several examples of special relationships reflecting the gradual increase in status of a country in its progress towards independence.18 Similarly, the associated states established by (p. 280) the United Kingdom in the Caribbean in 1967 had a status which was neither fully colonial nor fully independent.19 Somewhat similar relationships, involving full internal self-government and a special association with the quasi-parent state, exist between New Zealand and the Cook Islands;20 between the United States and Puerto Rico,21 and between the Netherlands and the Netherlands Antilles and Aruba.22

(p. 281) Colonies — particularly, but not only, those which have progressed constitutionally to the point at which they have acquired an uncertain degree of independent status — constitute, for certain purposes at least, units which geographically, ethnically, and culturally have an identity of their own, distinct from the parent state; and the parent state is under various international obligations in respect of its colonial territories, partaking of the nature of a ‘sacred trust’,23 involving some restrictions upon the parent state’s freedom of action in relation to them. The Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States24 provides that:

‘the territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles’.

Apart from entry into associations of the kinds already mentioned, colonies have usually ceased to be such by their accession to independence, whether as a (p. 282) result of peaceful evolution, or following belligerent action against their parent states. Their status as colonies may also, however, be terminated in other ways, including their transfer to another state, as will occur with Hong Kong25 and Macao26 when they are transferred to China in 1997 and 1999 respectively.

§ 85  Non-self-governing territories and the United Nations Charter

Colonial territories have long been a feature of the international community. Nothing in the Charter of the United Nations, or in earlier treaties, regards the existence of colonies as anything other than in accordance with international law, and the Charter itself recognises the legitimacy of activities of administering states in accordance with the Charter. However, since 1945 the international community has shown growing concern with regard to the position of territories of all kinds which have not attained independence, and the condition of their inhabitants.1 Dependence implied the possibility of exploitation of the weak by the strong; and colonial dependence further involved the possibility of subservience to an alien nation, with overtones of conquest and a denial of the right of the indigenous population to manage their affairs for themselves. Self-determination, usually leading to independence, has accordingly become the standard proclaimed by the international community, particularly since the establishment of the United Nations.

For some territories the Charter provided a system of trusteeship, built on the mandates system established by the League of Nations. But an international society committed in its Charter to the encouragement and promotion of fundamental human rights and freedoms cannot disinterest itself in peoples which have not yet attained a condition of self-government and the well-being of which is not safeguarded by the system of trusteeship. From this point of view Chapter XI of the Charter, which bears the title ‘Declaration Regarding Non-Self-Governing Territories’, is of special significance. In that Declaration members of the United Nations administering territories ‘whose peoples have not yet attained a full measure of self-government recognise the principle that the (p. 283) interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost … the well-being of the inhabitants of these territories’. That obligation includes, in particular, the duty, in the language of the Charter:

(a)  ‘to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses,’ and

(b)  ‘to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement’.2

Initially Chapter XI applied to 74 territories in respect of which Australia, Belgium, Denmark, France, the Netherlands, New Zealand, the United Kingdom and the United States of America in 1946 notified the Secretary-General that they were willing to submit information.3 The list of the territories on which reports under Chapter XI are expected to be submitted has since been frequently revised by the General Assembly both by the addition of territories (eg Oman in 1965)4 and by their removal (usually because they have attained independence and thus have become clearly self-governing, but sometimes in other circumstances, as with the removal from the list of Hong Kong and Macao in 1972).5 On 1 August 1990 the list consisted of 17 territories.6

In some cases it may be unclear whether a territory is to be regarded as non-self-governing,7 or whether, having once been non-self-governing, it is to be regarded as having ceased to be so.8 Despite Article 2(7) of the Charter, the (p. 284) General Assembly has not regarded itself bound by the administering state’s assessment of the degree of self-government possessed by a territory but increasingly asserted its own competence to decide whether or not a territory has attained self-government.9 The decision as to what constitutes self-government is not always easy; in particular, there is no justification for interpreting that term to mean independence.10 In GA Res 1541 (XV) (1960)11 the General Assembly decided that certain principles, annexed to the resolution, ‘should be applied in the light of the facts and the circumstances of each case to determine whether or not an obligation exists to transmit information under Article 73(e) of the Charter’. Included in these principles were the principles that:

(a)  an obligation under Article 73(e) to transmit information exists in respect of territories of the colonial type whose peoples have not yet attained a full measure of self-government;

(p. 285) (b)  the obligation continues until the peoples concerned attain a full measure of self-government, and ceases upon it being attained;12

(c)  prima facie the obligation arises in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it, and in that event other elements may be brought into consideration, and if those additional elements affect the relationship between the metropolitan state and the territory concerned in a manner which arbitrarily places the latter in a position or status of subordination they support the presumption that an obligation to transmit information exists;

(d)  a full measure of self-government can be said to have been reached by emergence as a sovereign independent state, free association with an independent state, or integration with an independent state; and

(e)  while the transmission of information may be limited because of constitutional or security considerations, this does not avoid the obligation to transmit information but only limits the quantum of information to be transmitted.

While the terms of Chapter XI rest on the concept of self-government, the spirit in which that Chapter has in practice been applied has drawn its inspiration from the wider principle of self-determination, to the development of which that practice has in turn greatly contributed. That principle is now established as one of the major forces in the contemporary development of international law and practice relating to non-self-governing territories.13 Article 1(2) of the Charter, in setting out the purposes of the United Nations, acknowledges ‘the principle of equal rights and self-determination of peoples’.14 This ‘principle’ has been gradually transformed, not without question,15 into a ‘right’.16

(p. 286) In 1960 the General Assembly, in an attempt to accelerate the emancipation of non-self-governing territories, adopted, as GA Res 1514 (XV), a Declaration on the Granting of Independence to Colonial Territories.17 This Declaration, one of whose main objectives was ‘the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’, inter alia declared that ‘All peoples have the right to self-determination’, and that ‘Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all18 other territories which have not yet attained independence,19 to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom’.20 In 1966 self-determination clearly acquired the character of a legal right in Article 1 of the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights,21 both adopted in that year. (p. 287) Article 1 states: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. The principle is embodied in the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, which principles are declared to ‘constitute basic principles of international law’.22 In elaboration of the principle of equal rights and self-determination of peoples, the Declaration states:

The principle of equal rights and self-determination of peoples

By 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 pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

(a)  To promote friendly relations and co-operation among States; and

(b)  To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

Every State has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter.

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.

Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.

The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the (p. 288) whole people belonging to the territory without distinction as to race, creed or colour.

Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.’

An important element in the principle of self-determination, recognised in these instruments, is that self-determination must respect the freely expressed wishes of the people in question. Article 73 of the Charter lays down that the interests of the inhabitants are ‘paramount’; and the International Court of Justice has emphasised the need to pay regard to the freely expressed will of the peoples concerned.23 Normally their wishes will be established by the usual political processes of the territory, but in some circumstances it may be necessary to make special arrangements, for example by holding a referendum or arranging for a United Nations mission to verify the expression of the peoples’ views.24

The legal implications of the principle, or right, of self-determination are still not entirely clear, particularly since in some areas it appears to conflict with other rules of international law. Thus questions are raised as to the parent state’s right to use force to resist the pursuit of self-determination by its dependent territories25 or the right of the people of the territory to use force in pursuit of self-determination,26 and as to the legitimacy of another state aiding a liberation (p. 289) movement which is striving for self-determination, notwithstanding that similar aid in other cases would be contrary to that state’s obligation of non-intervention: the fifth paragraph in the Friendly Relations Declaration’s elaboration of the principle requires support to peoples acting in pursuit of the exercise of their right of self-determination to be in accordance with the purposes and principles of the Charter, which in turn impose considerable restraints upon the scope of such support.27 A broad distinction may perhaps be drawn between humanitarian aid (which practice shows is generally regarded as permissible), aid, such as economic assistance, which is not overtly military in character (which in practice is often given) and military aid such as the provision of weapons or the supply of military personnel (which is of doubtful legality). The lawfulness of aid to a liberation movement in part at least may turn on the status of the movement as a government in the territory in question, which is another matter on which the principle of self-determination has an uncertain bearing. The recognition of a liberation movement as a government may be thought to promote the self-determination of the peoples in question; but the grant of such (p. 290) recognition before the movement can reasonably be regarded as effectively established as the government of the territory will, apart from being unrealistic, be premature and amount to intervention against the parent state.28

Also uncertain is the precise scope of the ‘peoples’ to whom the principle of self-determination applies,29 and in particular to what extent that principle may be invoked to justify the secession of part of a state. The principles of self-determination, and of respect for territorial integrity, are potentially in conflict. In the penultimate paragraph of the elaboration of the principle quoted above it seems clear that it is not intended to encourage the dismemberment of states.30 However, while the normal colonial situation (to which the principle applies) may appear readily distinguishable from that of a unified state, in practice, as the secession of Bangladesh from Pakistan in 1971 has shown,31 the point at which the principle of self-determination begins to apply is more difficult to determine. The problem is part of the larger question whether the right of self-determination is limited to the colonial and similar situations in which it had its origins, or whether (particularly as the colonial content of the principle becomes primarily a matter of history) it is a concept of continuing and universal application.32

(p. 291) The obligations in Chapter XI of the Charter, within their general compass, are legal obligations. But they are obligations for the implementation of which no machinery is provided in the Charter. Thus while the states in question are required to transmit regularly to the Secretary-General statistical and other information relating to economic, social and technical conditions, such information is described as being of a ‘technical nature’, for ‘information purposes’, and only insofar as this is consistent with ‘security and constitutional considerations’.33 The subject matter of Chapter XI is, however, one of legitimate concern for the United Nations. It is within the same powers of discussion and of recommendation which the General Assembly has in respect of ‘any questions or any matters within the scope’ of the Charter (Article 10).34 Moreover, the Assembly has in practice taken the requirement to transmit information to the United Nations as the starting point for far-reaching action relating to non-self-governing territories, going beyond the original intentions of the framers of the Charter, and taking increasingly less account of the restriction in Article 2(7) of the Charter against intervention in matters essentially within the domestic jurisdiction of member states.35

The requirement to transmit information necessitated the establishment of some procedures for dealing with the information submitted. A special form was adopted for the guidance of administering states in preparing the information to be submitted,36 and a committee was established to consider that information.37 (p. 292) After the adoption in 1960 of the Declaration on the Granting of Independence to Colonial Territories38 a Special Committee on the Implementation of the Declaration was established.39 This Committee, after being enlarged in 1962 to twenty-four members, became known as the Committee of Twenty-Four.40 Since 1963 it has been the Committee which considers the information submitted under Article 73(e).41 Apart from considering and reporting on that information, its task is to examine the application of the Declaration, to make suggestions and recommendations on the progress and extent of the implementation of the Declaration and to report to the Assembly, and to inform the Security Council of developments in any territory examined by it which might threaten international peace and security. The Committee has power to establish its own procedures (including the establishment of sub-committees), and to send visiting groups to territories within its scope.42

In 1970 the General Assembly adopted a programme of action for the full implementation of the Declaration.43 The Assembly declared the further continuation (p. 293) of colonialism in all its forms and manifestations to be a crime which constitutes a violation of the Charter, the Declaration, and the principles of international law,44 and reaffirmed the inherent right of colonial peoples to struggle by all necessary means at their disposal against colonial powers which suppress their aspiration for freedom and independence; the Assembly adopted a programme of action by which member states were to assist in a variety of ways to achieve the independence of colonial and other non-self-governing territories. The resolution reiterated the Special Committee of Twenty-Four’s role in matters of decolonisation; stated that questions of territorial size, geographical isolation and limited resources should in no way delay the implementation of the Declaration, and that where that Declaration has not been fully implemented with regard to a given territory the General Assembly shall continue to bear responsibility for that territory until such time as the people concerned has had an opportunity to exercise freely its right of self-determination and independence in accordance with the Declaration; and called upon international organisations within the United Nations system to take steps to realise the full implementation of the Declaration.45 In 1980 the General Assembly adopted a further ‘plan of action’ to intensify efforts to bring colonialism to an end, and in particular to assist southern Africa in its struggle for self-determination.46 In 1988 the General Assembly declared an ‘international Decade for the Eradication of Colonialism’.47 The International Law Commission, in its draft Articles on State Responsibility,48 and in its draft Code of Crimes against the Peace and Security of Mankind,49 has affirmed the international criminality of the establishment or maintenance by force of colonial domination.

Increasingly the Assembly has devoted its attention to the possible hindrance to full implementation of the Declaration caused by activities of foreign economic and other interests in non-self-governing territories, which are seen as supporting the continuation of colonial regimes.50 This was discussed as a separate item of the Assembly’s agenda for the first time in 1973, and has been treated separately since then. The Assembly, in adopting the Declaration on the Establishment of the New International Economic Order, included in the principles (p. 294) on which it is based the right of all territories and peoples under alien and colonial domination and apartheid to restitution and full compensation for the exploitation and depletion of, and damages to, their natural and all other resources, and their right to achieve their liberation and to regain effective control over their natural resources and economic activities.51 Article 16 of the Charter on the Economic Rights and Duties of States, also adopted in 1974,52 provides that it is ‘the right and duty of all States, individually and collectively, to eliminate colonialism, apartheid, racial discrimination, neo-colonialism and all forms of foreign aggression, occupation and domination, and the economic and social consequences thereof, as a prerequisite for development‘. Similarly, the General Assembly has, since 1965, repeatedly called on states administering colonial territories to withdraw their military establishments from those territories and to refrain from establishing new ones.53

The General Assembly and the Committee of Twenty-Four have in some respects stretched to the limit — and even beyond — the legal powers conferred on the Assembly by the Charter, and their activities in this respect are not free from criticism.54 They have done so principally by building on the provisions of the Charter which refer to self-determination and to the promotion of human rights,55 and by asserting a connection between continued colonialism and the threat to international peace. Although the Charter did not provide adequate procedures for the implementation of Chapter XI, it was legitimate for the Assembly to establish suitable procedures. However, there is less justification in this part of the Charter for, for example, equating self-determination with independence; for extending the obligations of members of the United Nations in relation to information to be supplied and otherwise by, for instance, enlarging the scope of information to cover matters of constitutional development or the measure of progress achieved in the direction of self-government or independence; for requiring the ‘immediate’ termination of colonial situations irrespective of the extent to which the territory is ready and able to assume the obligations of sovereignty; or for fixing arbitrary dates by which a colonial situation is to be ‘terminated‘ by delivery of the territory to another state contrary to the expressed view of the territory’s inhabitants as to their interests, which the Charter itself states ‘are paramount’; or, generally, for eroding the significance of Article 2(7) of the Charter in this context virtually to the point of disappearance.

(p. 295) The political content of many of the anti-colonial resolutions, their lack of realism in certain respects,56 and the degree to which they require the extension of the Assembly’s powers under the Charter and are themselves of doubtful consistency with the terms of the Charter, cast doubt on the extent to which they may be considered to constitute rules of international law.57

Footnotes:

It has been said that the essential factor distinguishing international states (whether full or part sovereign) from entities which are neither states nor international persons is that the latter lack the capacity to enter into treaty or other international relationships either directly or mediately: such entities ‘cannot, as such, enter into separate international relationships at all, even through the agency of another entity’: Fitzmaurice, BY, 30 (1953), p 2, n 2; see also Hyde, i, pp 22–3. The practice of including in many multilateral treaties a so-called ‘territorial (or colonial) application clause’ (see § 621) which is usually phrased in terms wide enough to refer equally to protected states, colonies and other dependent territories, blurs the distinction between the different categories of territories.

In the Case concerning the Interpretation of the Statute of the Memel Territory (1932) the PCIJ held that the grant of autonomy to a territorial unit does not result in a division of sovereignty in a way disturbing the unity of the state: Series A/B, No 49, p 313. The grant of even very wide autonomy does not divest the grantor of sovereignty: see the Lighthouses in Crete and Samos Case (1937), PCIJ, Series A/B, No 71, and see § 170(2). See also § 34, n 8.

British Guiana (Constitution) (Temporary Provisions) Order in Council 1953, Art 3.

Southern Rhodesia Act 1965 and the Southern Rhodesia Constitution Order 1965. Before its illegal declaration of independence in 1965 Southern Rhodesia was constitutionally a very advanced colony: see Fawcett, BY, 41 (1965–66), pp 103–107; Roberts-Wray, Commonwealth and Colonial Law (1966), pp 748–53. Southern Rhodesia was a member of the ITU and the GATT, an associate member of WHO, and a component of the British Overseas Territories member of UPU and WMO. After the illegal declaration of independence in 1965 authority for Rhodesian representation at meetings of those bodies was withheld by the British Government; for the cancellation of Southern Rhodesia’s signature of the Final Act of an ITU plenipotentiary conference on the day after Southern Rhodesia’s illegal declaration of independence, the British Government having given notice that Southern Rhodesia’s delegation’s full powers had expired on the date of the illegal declaration, see Blix, Hag R, 130 (1970), ii, p 675, n 57. See generally § 55, n 7, as to Southern Rhodesia’s illegal declaration of independence and its consequences.

Anguilla Act 1971; Anguilla (Administration) Order 1971.

See generally Blaustein and Blaustein, Constitutions of Dependencies and Special Sovereignties (1975). The position of British colonies and dependent territories is fully considered by Roberts-Wray, Commonwealth and Colonial Law (1966), pp 40–47, 99–112, 117–26 and 655ff. See also Fawcett, The British Commonwealth in International Law (1963), pp 106–43, O’Connell and Riordan, Opinions on Imperial Constitutional Law (1971); Dale, The Modern Commonwealth (1983), pp 305–20, and the relevant sections in The Commonwealth Yearbook, published annually by the Foreign and Commonwealth Office, London.

The position of British colonies is characterised mainly by a prohibition against extraterritorial legislation being enacted by the colonial legislature, and against the enactment of legislation repugnant to laws enacted by the UK which extend to the colony. See the Colonial Laws Validity Act 1865; Macleod v Attorney-General for New South Wales [1891] AC 455; Nadan v R [1926] AC 482; Croft v Dunphy [1933] AC 156; O’Connell, LQR, 75 (1959), pp 318–32. For the purposes of UK Acts of Parliament the term ‘colony’ is defined in Sched 1 to the Interpretation Act 1978; see also para 4(3) of Sched 2, and the definition of ‘British possession’ in Sched 1.

Note particularly the distinctive position of the Channel Islands and Isle of Man, which are not part of the UK (although they are included in the term ‘British Isles’), and which enjoy an ancient and substantial local autonomy, and for whose defence and international relations the UK is responsible: see generally on the position of those Islands, Roberts-Wray, op cit, pp 672–7; Simmonds, CML Rev, 6 (1969), pp 156–69, ibid, 7 (1970), pp 454–65, and ibid, 8 (1971), pp 475–84; Report of the Royal Commission on the Constitution, 1969–73 (Cmnd 5460), vol 1, pt XI; Parliamentary Debates (Commons), vol 29, cols 172–3 (written answers, 21 October 1982); and § 621, n 4. In Chloride Industrial Batteries Ltd v F & W Freight Ltd [1989] 3 All ER 86 the island of Jersey was held not to be a sovereign state and not competent to enter into an international convention on its own behalf. See also the Gillow Case (1986), ILR, 75, pp 562, 581–3, as to the non-extension of Protocol No 1 to the European Convention on Human Rights to Guernsey. The status of the Channel Islands in relation to the UK, in the context of maritime jurisdiction, was considered in the UK-France Continental Shelf Arbitartion (1977), ILR, 54, pp 6, 92–9.

As to the Isle of Man see Case No 32/79, Commission v United Kingdom [1973] ECR 2403, 2423, 2444.

As to the position of Australia’s overseas territories see Castles in International Law in Australia (ed O’Connell, 1965), pp 292–400.

Although a dependent territory is subject to the authority of the metropolitan state, the European Commission of Human Rights has held it not to be within that state’s jurisdiction for the purpose of securing the application to such a territory of a treaty applying to all persons within the state’s jurisdiction, since the treaty in question contained a territorial application clause the procedures of which had not been used: Bui Van Thanh v United Kingdom, decided on 19 March 1990.

See Montefiore v The Belgian Congo, ILR, 22 (1955), p 226, and subsequent proceedings in ILR, 23 (1956), p 191 and (1961), ILR, 44, p 72; Etat Belge v Dumont and Etat Belge v Pittacos (1966), ILR, 48, pp 8, 20, 23; Dupont v Belgium (Minister of Finance) (1968), ILR, 69, p 24; Poldermans v State of the Netherlands, ILR, 24 (1957), p 69; Syndicat Indépendant des Fonctionnaires du Condominium des Nouvelles Hebrides (1970), ILR, 57, p 116. A colony may also have a form of nationality distinct from that of its parent state, and conferring rights primarily in relation to the territory of the colony and only in a limited degree in relation to the parent state: see eg British Nationality Act 1971, Part II, and § 384, n 3. See also Ministry of Home Affairs v Kemali (1962), ILR, 40, p 191. And see § 66, n 26. See also p 227, and text at nn 23, 24 below, as to the separate international identity of colonies.

This is particularly important in interpreting and applying the statutes of a third state: see eg Ying v Kennedy (1961), ILR, 32, p 237, holding Hong Kong a ‘country’ for purposes of a US nationality and immigration legislation.

See § 81, n 9, as to British ‘protectorates’ which were not protected states in the true international sense, but were in some ways nearer to colonies in status.

10  French dependent territories overseas were, by the Constitution of the Fifth Republic (1958), given the choice of remaining overseas territories or overseas departments of the Republic, or of becoming overseas departments if not already such, or of becoming, singly or in groups, members of the French Community (as to which see § 74, n 6). On 1 January 1990 Martinique, Guadeloupe, Réunion and French Guiana were overseas territories; Mayotte, and St Pierre and Miquelon had the status of ‘territorial collectivities’; and New Caledonia (with its dependencies), French Polynesia, French Southern and Antarctic Territories, and Wallis and Futura Islands were overseas territories; French Polynesia was also a separate member of the French Community. The French overseas departments were held to be ‘an integral part of the [French] Republic’ in Case No 148/77 Hansen v HZA Flensburg [1977] ECR 1787. As to French dependent territories generally, see Bleckmann, Das Französiche Kolonialreich und die Gründung neuer Staaten (1969).

As to certain Portuguese colonial territories, see § 85, n 9.

11  An attempt to institute legal proceedings against a colony may nevertheless be met by a plea of sovereign immunity since although the colony may not in its own right be entitled to immunity, proceedings against a colony may be regarded as amounting to proceedings against the parent state and thus as attracting sovereign immunity. See Huttinger v Upper Congo-Great African Lakes Railway Co, AD, 7 (1933–34), No 65; Isbrandtsen v Netherlands East Indies Government, AD, 14 (1947), No 26; van Heyningen v Netherlands Indies Government, AD, 15 (1948), No 43; Montefiore v Belgian Congo, ILR, 22 (1955), p 226, and further proceedings in ILR, 23 (1956), p 191, and (1961), ILR, 44, p 72; Pittacos v Etat Belge (1966), ILR, 48, p 20; Etat Belge v Dumont (1966), ILR, 48, p 23. See generally Sucharitkul, State Immunities and Trading Activities in International Law (1959), pp 106–12. Insofar as a colony is a legal entity of a state which is distinct therefrom and is capable of suing or being sued, it may, under Art 27 of the European Convention on State Immunity 1972, be proceeded against in the same manner as a private person, except in respect of acts performed in the exercise of sovereign authority. That is also the effect of s 14(1) and (2) of the State Immunity Act 1978, enacted in the UK. However, in the USA under the Foreign Sovereign Immunities Act 1976 (ILM, 15 (1976), p 1388) the term ‘foreign State’ is defined in such a way as could include colonies (see also ILM, 12 (1973), pp 134–5). Under the draft Articles on Jurisdictional Immunities of States and their Property, provisionally adopted by the ILC in 1986 (YBILC (1986), ii, pt 2, p 8) a colony would appear to be capable of being considered as a political sub-division of a state and, if performing acts in the exercise of the sovereign authority of the state, as falling within the scope of the term ‘State’ in Art 3.1, and of benefiting accordingly from the immunities provided in the draft articles for states.

12  See nn 15 and 16, as to general and ad hoc entrustments of treaty-making power to colonies. The UN Secretariat will not accept for registration a treaty concluded between a state and a government of a dependent territory unless the treaty is formally binding on the state responsible for the conduct of foreign relations of the dependent territory, so that that state can be shown in the Register as a party to the treaty: UN Repertoire, 5, p 295. ‘Dependent territories have no capacity to bind themselves by treaties on the international plane’: UN Juridical YB (1974), pp 197, 198. For some earlier Opinions of the Law Officers of the Crown on treaty-making in relation to colonies see O’Connell and Riordan, Opinions on Imperial Constitutional Law (1971), pp 368–87. See also Public Prosecutor and Customs Administration v Schreiber and Air France, ILR, 24 (1957), p 54. And see generally McNair, Law of Treaties (1961), pp 116–19; Lissitzyn, Hag R, 125 (1968), iii, pp 5–87, especially 64–82; and § 595, nn 6–8. As to the extension to colonies and other dependent territories of treaties concluded by the parent state and their conclusion by the parent state solely in respect of a dependent territory, see § 621.

13  See § 621.

14  A territory which is self-governing in the matters to be dealt with at a conference called by the UN Economic and Social Council, but which is not responsible for the conduct of its foreign relations, may be invited to participate in the conference if the state responsible for its foreign relations approves and if the Council decides in favour of such participation: GA Res 366 (IV) (1949). See also Deener in International and Comparative Law of the Commonwealth (ed Wilson, 1968), pp 40–62.

15  See eg Art 73 of the Singapore (Constitution) Order 1958, and the communication from the British Government to the Government of Singapore, quoted in E Lauterpacht, ICLQ, 10 (1961), p 576. Southern Rhodesia was also entrusted with certain general powers of concluding treaties, by virtue of which, for example, it became a party to the International Wheat Agreement 1962 (TS No 15 (1963)). But this did not extend to maintaining direct diplomatic relations with a third state: see E Lauterpacht, BPIL (1965-II), p 105. See also § 78, as to treaties concluded by the old British Dominions. In 1966 the Premier of British Guiana was one of the signatories for the UK of the UK-Venezuela treaty relating to the boundary dispute between British Guiana and Venezuela (TS No 13 (1966)). See generally on treaty relations of British overseas territories, Fawcett, BY, 26 (1949), pp 86–107.

16  See eg the agreement concluded in 1954 between Hong Kong, ‘acting with the consent of the Government of Great Britain and Northern Ireland’, and Burma: TS No 37 (1959). For a specific entrustment to the Governor of Hong Kong to conclude an Air Services Agreement with the Netherlands in 1986 see UKMIL, BY, 58 (1987), pp 515–16. See also UKMIL, BY, 60 (1989), pp 593–5, citing extracts from the Foreign and Commonwealth Office’s Instruction Manual (1988).

17  Thus Hong Kong is a member of the WMO, GATT, and the Asian Development Bank, and an associate member of the IMO and the Economic Commission for Asia and the Pacific; ‘British overseas dependent territories’ constitute a collective member of the UPU, and also of the ITU until the International Telecommunications Convention 1973, which abolished such membership, entered into force. Montserrat became a member of the Organisation of Eastern Caribbean States, but without participating in its defence and external affairs activities: see Parliamentary Debates (Commons), vol 47, col 444 (written answers, 3 November 1983). As to Southern Rhodesia, see n 4.

Participation by colonies in international organisations is particularly likely witii organisations of an administrative or technical kind, which are more concerned with the possession by a territory of the relevant functional capacity (eg its own postal or meteorological services) than with its political status. See also Fawcett, The British Commonwealth in International Law (1963), pp 229–31. Non-self-governing territories in the region covered by the Economic Commissions for Asia and the Pacific and for Latin America and the Caribbean may be associate members of those Commissions, and several have done so.

18  See 8th ed of this vol, pp 198–209, and § 78 above.

In respect of the Federation of Rhodesia and Nyasaland (which was established in 1953) the UK in 1957 agreed to entrust the Federation with responsibility for external affairs ‘to the fullest extent possible consistent with the responsibility which Her Majesty’s Government [in the UK] must continue to have in international law so long as the Federation is not a separate international entity’: Parliamentary Debates (Commons), vol 569, col 357 (2 May 1957). The limits of this delegated responsibility were thus left very uncertain. In 1958 the British Government appear to have regarded as outside their retained responsibility for external affairs the matter of a complaint by India regarding the treatment of Indian diplomatic representatives in the Federation: ICLQ, 7 (1958), pp 516–17. For an example of a treaty concluded by the Federation, see the Extradition Treaty of 1962 with South Africa, UNTS, 458, p 60. For an opinion by the UN Secretariat that the Federation was not to be considered a ‘State’ see UN Juridical YB (1963), p 170. The Federation came to an end in 1963. See also Whiteman, Digest, 1, pp 515–21. And see M/V Nonsuco Inc v Commissioner of Internal Revenue, ILR, 23 (1956), p 29, holding the Philippines, prior to its independence from the USA, to be a foreign country for purposes of double taxation legislation, since the Philippines functioned as an independent country, including flying its own maritime flag.

19  Each associated state had full internal self-government, and its constitution could not be amended unilaterally by the UK. The UK retained responsibility for defence and external affairs (although in certain matters that responsibility was delegated to the states: see eg the Draft Despatch at Annex D of the Report of the St Kitts/Nevis/Anguilla Constitutional Conference 1966, Cmnd 3031) and matters of nationality. The association could be terminated at any time unilaterally by either the associated state or the UK, whereupon the state became independent. See the West Indies Act 1967. Six territories became associated states, and later became independent: Antigua (1967, independent in 1981), Dominica (1967, 1978), Grenada (1967, 1974), St Lucia (1967, 1979), St Vincent (1969, 1979), and St Christopher, Nevis and Anguilla (1967; the territory later separated, and St Christopher and Nevis became an independent state in 1983, while Anguilla reverted to colonial status). See generally E Lauterpacht, BPIL (1967), pp 5–15; Broderick, ICLQ, 17 (1968), pp 368–403; Laing, ibid, 23 (1974), pp 127–42; Clark, Harv ILJ, 21, (1980), pp 1, 60–64. See also § 85, n 9, as to the status of associated states for purposes of transmission of information to the UN under Art 73 of the Charter. For the opinion of the UN Secretariat that the authority delegated to associated states was sufficient to enable them to become associate members of the Economic Commission for Latin America, see UN Juridical YB (1967), p 320. As to the modalities of applying to three of the associated states the provisions of an international commodity agreement, see ibid (1974), pp 197–9. As to certain aspects of the associated states’ membership of CARICOM see Meijers, Neth IL Rev, 24 (1977), pp 160, 164–71; and as to their treaty relations see Lissitzyn, Hag R, 125 (1968), iii, pp 5, 59–61. In 1967 the UK notified the UN and all member states that after the associated status had entered into effect treaties previously applicable to an associated state would continue to apply, and that any new treaty ratified by the UK would only apply to an associated state if it was expressly ratified by the UK in its name.

20  The Cook Islands are in ‘free association’ with New Zealand, are fully internally self-governing (although defence and external affairs are the responsibility of New Zealand), and are entitled to move to full independence at any time by a unilateral act. See the Cook Islands Constitution Act 1964, enacted by New Zealand; Broderick, ICLQ, 17 (1968), pp 368–390–2; UN Juridical YB (1971), p 213 and (1979), pp 172–4 (treating the Islands as not an independent state); Clark, Harv ILJ, 21 (1980), pp 1, 54–60; Hannum, Autonomy, Sovereignty and Self-Determination (1990), pp 384–9. The Cook Islands are a member of the FAO, WHO, ICAO and the Asian Development Bank, and an associate member of the Economic Commission for Asia and the Pacific.

21  Puerto Rico’s ‘Commonwealth’ status, attained in 1952 with the adoption of a new Constitution, amounts in practice to a form of association with the USA: but Puerto Rico is not part of the USA. Puerto Rico is internally self-governing, but the USA retains responsibility for external affairs. Puerto Rico was previously a non-self-governing territory for purposes of Chapter XI of the UN Charter, and the USA, as the administering state, had certain obligations in respect of Puerto Rico under Chapter XI. After the constitutional change in 1952 the USA was relieved of those obligations: GA Res 748 (VIII) (1953). But in 1973 the Committee of Twenty-Four adopted a resolution which appeared to regard Puerto Rico as still a colonial and non-self-governing territory, and its report was approved by the General Assembly in Res 3163 (XXVIII) (1973). Puerto Rico has not, however, been brought back within the scope of the USA’s Chapter XI obligations. As to the position of Puerto Rico generally, see Report of the United States-Puerto Rico Commission on the Status of Puerto Rico (1966); Cabranes, ICLQ, 16 (1967), pp 531–9; Cabranes, Benitez, Barrios Martinez in AS Proceedings (1973), pp 1–7, 7–11 and 11–17; RG, 78 (1974), pp 1182–7; Reisman, Puerto Rico and the International Process (1975); Clark, Harv ILJ, 21 (1980), pp 1, 41–6. See also Balzac v Porto Rico (1922) 258 US 298; Fonseca v Prann (1960) 282 F 2d 153; US v Vargas, AJ, 68 (1974), p 744; US v Villarin Gerena, AJ, 71 (1977), p 788; Garcia v Friesecke, AJ, 74 (1980), p 193.

As to the Commonwealth of the Northern Mariana Islands in Union with the USA, see ILM, 15 (1976), p 651; and as to the compacts of free association of the Federated States of Micronesia and of the Marshall Islands with the USA, see Clark, Harv ILJ, 21 (1980), pp 1–86. The various territories formed part of the Trust Territory of the Pacific Islands, administered by the USA: see § 93. As to the overseas territories governed by, or subject to special governmental responsibilities of, the USA (Puerto Rico, US Virgin Islands, Guam, Northern Mariana Islands, American Samoa, Federated States of Micronesia, Marshall Islands, Palau) see Leibowitz, Defining Status: A Comprehensive Analysis of United States Territorial Relations (1989).

22  In 1954 the Netherlands, the Netherlands Antilles and Surinam were constituted as a single kingdom, having its own organs and with each part enjoying full autonomy and being united, on a footing of equality, for mutual assistance and the protection of their common interests. Surinam became independent in 1975, and Aruba separated from the Netherlands Antilles in 1986, leaving the Realm comprising the three participants named in the text. The Realm is responsible inter alia for defence and external affairs. In matters not the responsibility of the Realm, the overseas participants are wholly self-governing. Their consent is necessary for the conclusion or termination of international agreements in respect of them if those agreements deal with economic and financial matters; other agreements affecting them are subject only to consultation with them. Economic and financial agreements can be concluded applying solely to the separate participants, and the Realm Government is as a general rule bound to cooperate in concluding such agreements. The participants can separately join international organisations, and have done so: thus, on 1 January 1988 the Netherlands Antilles was a separate member of the UPU, WMO, and an associate member of the Economic Commission for Latin America and the Caribbean. The position resulting from a declaration of war affecting any part of the Realm is governed by Art 34 of the Statute for the Kingdom of the Netherlands, for which see BFSP, 161 (1954), p 786. See generally van Panhuys, ZöV, 16 (1955), pp 304–30; Clark, Harv ILJ, 21 (1980), pp 1, 46–9; and Poldermans v State of the Netherlands, ILR, 24 (1957), p 69.

23  See § 85; and Namibia (South West Africa) Legal Consequences Case, ICJ Rep (1971), p 31.

24  GA Res 2625 (XXV) (1970).

25  See the UK-China Joint Declaration on the Question of Hong Kong 1984: TS No 26 (1985); ILM, 23 (1984), p 1366. See also the Hong Kong Act 1985. See generally Slinn, AFDI, 31 (1985), pp 167–90, and International Relations, 9 (1987), pp 1–22; Landry, Harv ILJ, 26 (1985), pp 249–63; Ress, ZöV, 46 (1986), pp 647–99; Focsaneanu, RG, 91 (1987), pp 479–532; White, ICLQ, 36 (1987), pp 483–503; Corwin, Law and Policy in International Business, 19 (1987), pp 505–36; Hannum, Autonomy, Sovereignty and Self-Determination (1990), pp 129–50. See also § 65, nn 2, 4.

26  See RG, 90 (1986), pp 968–9; 91 (1987), pp 604, 931; and 92 (1988), p 689; Afoso and Pereira, Hong Kong LJ, 16 (1986), pp 28–57; Focsaneanu, RG, 91 (1987), pp 1279–1303.

Thus in 1947, the governments administering non-self-governing territories in the South Pacific signed an agreement (UNTS, 97, p 227) establishing the South Pacific Commission with the object of promoting the economic and social advancement of the two million inhabitants of the South Pacific: see Sudy in Bulletin of the State Department, 16 (1947), p 459; Varsanyi in International Law in Australia (ed O’Connell, 1965), pp 184–93. By an amendment made in 1964 (TS No 87 (1965)) independent countries within the Commission’s scope immediately before independence could become participating members of the Commission, and several have done so.

In 1983 the annual Conference of the Commission agreed that its 27 governments and administrations should have full and equal membership.

Article 73. See also GA Res 9 (I) (1946). In GA Res 1541 (XV) (1960) the General Assembly acknowledged that ‘the authors of the Charter of the United Nations had in mind that Chapter XI should be applicable to territories which were then known to be of the colonial type’.

The list of territories will be found in GA Res 66 (I) (1946).

GA Res 2073 (XX). Thus also, in 1960, four Spanish and nine Portuguese territories were added, and in 1962 Southern Rhodesia was added. Additions to the list are proposed by the ‘Committee of Twenty-Four’ (see n 40) but must be approved by the General Assembly before the Committee can begin to examine the position in the territories in question: see UN Juridical YB (1968), p 207.

GA Res 2908 (XXVII), approving the report in that sense of the Special Committee of Twenty-Four (see UNYB (1972), p 543).

UN Doc A/AC.109/1039/Corr 1. The list consisted (in addition to Namibia and the Trust Territory of the Pacific Islands) of one territory each administered by Spain, Portugal and New Zealand, three by the USA, and ten by the UK: the Spanish and Portuguese territories, and one of the UK territories, were for various reasons regarded by the administering states as no longer appropriate subjects for the transmission of information to the UN.

For the view that the Israeli-occupied areas of the West Bank and Gaza Strip can be regarded as non-self-governing territories see Arsanjani, ICLQ, 31 (1982), pp 426–50.

Such situations have arisen, for example, in connection with the Netherlands Antilles and Surinam in the light of their participation in the Netherlands Realm (see § 84, n 22; GA Res 945 (X) (1955); UN Répertoire, 4, pp 78–80); Puerto Rico, on achieving ‘Commonwealth’ status (see § 84, n 21); Alaska and Hawaii, on becoming constituent states of the USA (see GA Res 1469 (XIV)); the associated states in the Eastern Caribbean (see § 84, n 19); the Cook Islands, on entering into a free association with New Zealand (see § 84, n 20; GA Res 2064 (1965)); Southern Rhodesia (see next n); Portuguese territories in Africa (ibid); Greenland, on becoming an integral part of Denmark (see GA Res 849 (IX) (1954)).

See eg the penultimate paragraph of the preamble of GA Res 742 (VIII) (1953), the final paragraph of the preamble of GA Res 748 (VIII) (1953), and para 4 of GA Res 297 (XXVII) (1972). Thus in 1960 the Assembly decided that certain territories under Portuguese administration were non-self-governing territories within the scope of Chapter XI (GA Res 1542 (XV)), notwithstanding Portugal’s assertion that they were overseas provinces forming an integral part of the Portuguese nation: Portugal thereafter refrained from supplying to the UN information on the territories in question. In 1962 the Assembly affirmed that Southern Rhodesia was a non-self-governing territory, notwithstanding the assertion by the UK that Southern Rhodesia was self-governing: GA Res 1747 (XVI). As to the position regarding Southern Rhodesia generally, see § 84, n 4, and as to the position after its illegal declaration of independence in 1965, see § 55, nn 7, 8. In 1967 the UK stated that with the establishment of the Associated States in the Eastern Caribbean (see § 84, n 19) the territories concerned had attained self-government and the UK would therefore cease to supply information about them under Art 73(e): the General Assembly did not accept this conclusion. See GA Res 2422 (XXII); Cmnd 4123, paras 297–8; and Cmnd 5568, pp 92–3. The Assembly also continued to consider the situation in Brunei despite the UK’s assertion in 1972 that Brunei had attained full internal self-government.

10  Self-government may be achieved otherwise than by the attainment of independence, as is recognised in eg GA Res 742 (VIII) (1953), and in GA Res 1541 (XV) (1960) and 2625 (XXV) (1970).

Article 73 of the Charter makes no specific mention of independence as an alternative to self-government. A proposal to insert in Art 73 a reference to independence was made, but withdrawn, at San Francisco, on the understanding that such a reference would be included in respect of trust territories: see UNCIO, 10, pp 453–4; Art 76 of the Charter. An example of a territory ceasing to be classed as a non-self-governing territory for purposes of Chapter XI otherwise than by becoming independent is afforded by the Cocos (Keeling) Islands, which chose integration with Australia: see GA Res 39/30 (1984), and RG, 88 (1984), pp 901–903.

11  This resolution was adopted on the basis of a report (UN Doc A/4526) of a committee set up by the General Assembly under GA Res 1467 (XIV) (1959). In GA Res 334 (IV) (1949) the Assembly had recorded its view that it was within its responsibility to express its opinion on the principles which have guided or may guide members in enumerating territories for which an obligation to transmit information under Art 73(e) exists. After preliminary attempts to indicate the relevant factors (GA Res 567 (VI) (1952) and GA Res 648 (VII) (1952)), the Assembly in 1953 adopted GA Res 742 (VIII), in which the following were considered to be relevant, though not exhaustive, factors to be used as a guide: (a) the political advancement of the population sufficient to enable them to decide the future destiny of the territory by means of democratic processes; (b) the functioning of a representative system of government with periodic elections on a democratic basis; (c) enjoyment of individual rights; (d) absence of any pressure or coercion on the population so that it may be in the position to express its views as to the national or international status which it may wish to attain; (d) assurance that the views of the population would be respected. It is doubtful whether, as decided by it in 1953, the General Assembly, acting by simply majority, is the proper body to answer questions of that complexity.

12  See GA Res 2064 (XX) (1965), paras 5 and 6, for acknowledgement that the duty to transmit information and the status of non-self-government may cease without independence being attained.

13  See observations by the ICJ in its Advisory Opinions on Namibia (South West Africa) Legal Consequences, ICJ Rep (1971), p 31ff, and Western Sahara, ICJ Rep (1975), pp 31–3, with comment on the latter by Shaw, BY, 49 (1978), pp 119, 144–9.

14  See also Art 55. On self-determination see Chakravarti, Human Rights and the United Nations (1958), ch VI; Johnson, Self-Determination within the Community of Nations (1967); Gutteridge, The United Nations in a Changing World (1969), pp 51–70; Emerson, AJ, 65 (1971), pp 459–75; Mirkine-Guetzévitch, Hag R, 83 (1953), ii, pp 326–51; Wright, Hag R, 98 (1959), iii, pp 171–95; Higgins, Development of International Law through the Political Organs of the United Nations (1963), pp 90–106; Tunkin, Droit International Public, Problèmes Théoriques (1965), pp 42–51; Whiteman, Digest, 5, pp 38–87; Bowett and Emerson, AS Proceedings (1966), pp 129–41; Verzijl, International Law in Historical Perspective (vol 1, 1968), pp 321–36; Brownlie, Grotian Society Papers (1968), pp 90–9; Emerson, AJ, 65 (1971), pp 459–75; Calogeropoulos-Stratis, Le Droit des peuples à disposer d’eux mêmes (1973); Rabl, Das Selbstbestimmungsrecht der Völker (2nd ed, 1973); Sureda, The Evolution of the Right of Self-Determination (1973); Fitzmaurice, Annuaire: Livre du Centenaire (1973), pp 232–5; Doehring, Das Selbstbestimmungsrecht der Völker als Grundsatz des Völkerrechts (1974); Thürer, Das Selbstbestimmungsrecht der Völker (1976); Schoenberg, Israel YB HR, 6 (1976), pp 91–103; Guilhaudis, Le Droit des peuples à disposer d‘eux mêmes (1976); Pomerance, AJ, 70 (1976), pp 1–27, and Self-Determination in International Law (1982); Przetacznik, Rev Belge, 13 (1977), pp 238, 257–64; Chowdhury, Neth IL Rev, 24 (1977), pp 72–84; Engers, ibid, pp 85–91; Ofuatey-Kodjoe, The Principle of Self-Determination in International Law (1977); Arechaga, Hag R, 159 (1978), i, pp 100–11; Cassese and Espiell in UN Law: Fundamental Rights (ed Cassese, 1979), pp 137–66 and 167–74; Crawford, The Creation of States in International Law (1979), pp 84–106; Yonah, Alexander and Friedlander (eds), Self-Determination: National, Regional and Global Dimensions (1980); Lachs, Hag R, 169 (1980), iv, pp 43–54; White, Neth IL Rev, 28 (1981), pp 147–70; Wilson, International Law and the Use of Force by National Liberation Movements (1988), pp 55–88; Hannum, Autonomy, Sovereignty and Self-Determination (1990), pp 27–49. As to self-determination within the context of Arts 19–21 of the African Charter on Human and Peoples’ Rights 1981 ( 444), see Addo, Journal of African Law, 32 (1988), pp 182–93; United Nations Action in the Field of Human Rights (UN Secretariat, 1988: UN Doc ST/HR/2/Rev 3), pp 54–74; Thornberry, ICLQ, 38 (1989), pp 867–89. See also works cited at § 29.

15  Eg as to whether ‘peoples’ could possess international rights and be owed international duties (see n 29); and whether the drafting history and the terms of Chapter XI justified such a transformation. (It may be noted that Chapter XI does not use the term ‘self-determination’, nor does Chapter XII.)

16  Amongst the many resolutions of the General Assembly asserting a ‘right’ of self-determination see GA Res 545 (VI) (1952), 637 A (VII) (1952), 1185 (XII) (1957), 1514 (XV) (1960) and 2621 (XXV) (1970). Such references are now almost a matter of course in resolutions on questions concerning non-self-governing territories. And see UN Juridical YB (1980), pp 182–3.

17  See the observations of the ICJ referred to in n 13, which come close to attributing to the resolution the status of customary international law. For the view that the Court’s pronouncements have the effect that GA Res 1514 (XV) has come to be customary international law, see Arechaga, BY, 58 (1987), at p 5. Compare Wilson, International Law and the Use of Force by National Liberation Movements (1988), pp 76–7.

18  The comprehensive scope of this call for independence ignores the special difficulties faced by territories with populations so small or resources so exiguous that meaningful independence is scarcely realisable. For discussion of some of the issues which arise, see de Smith in International Organisation: Law in Movement (eds Fawcett and Higgins, 1974), pp 64–78.

19  See n 10.

20  Even when a territory has been found by the General Assembly to have attained full self-government (although not independence) the Assembly does not consider that its responsibilities under GA Res 1514 (XV) are necessarily over, at least if the territory requests further assistance under that resolution in the achievement of full independence: see eg GA Res 2064 (XX) (1965), relating to the Cook Islands.

21  See generally § 440. In the Burkino Faso/Mali Frontier Dispute Case the ICJ referred to self-determination as a legal right, but equally as a ‘principle’: ICJ Rep (1986), pp 544, 567. In the same case the Court noted that there was prima facie a conflict between self-determination and the application of the principle of uti possidetis: ibid, p 567. See also Naldi, ICLQ, 36 (1987), pp 893–903. But no claim for self-determination may be brought under the Optional Protocol to the Covenant: AB v Italy, South Tirol Case, Human Rights LJ, 12 (1991), p 25.

22  GA Res 2625 (XXV) (1970). The Declaration was adopted by acclamation.

23  Western Sahara Case, ICJ Rep (1975), pp 31–33. For critical comment on the process of decolonisation of the Sahara see Franck, AJ, 70 (1976), pp 694–721. As to doubts whether the integration of East Timor into Indonesia reflected a free and voluntary choice of the peoples of East Timor in exercise of their right of self-determination, see GA Res 3485 (XXX) (1975), 31/51 (1976), and 32/34 (1977), SC Res 384 (1975) and 389 (1976), and Elliott, ICLQ, 27 (1978), pp 238–49.

24  See, eg as to UN supervision of elections in the Cook Islands, GA Res 2005 (XIX) (1965), and UN Repertoire, vol 3, suppl 3 (1974), p 94; as to UN participation in the ascertainment of the wishes of the people of Sabah and Sarawak, ibid, p 98, and of West Irian and Bahrain see Morand, AFDI, 17 (1971), pp 513–40; and as to the referendum held in the Ellice Islands (now Tuvalu) in 1974 in the presence of UN observers, GA Res 3288 (XXIX) (1974). As to Namibia’s independence, in 1990, see § 88, nn 44, 48. See also § 92, n 16.

In respect of Gibraltar, however, the General Assembly disregarded the outcome of a referendum in 1967 in which the people expressed their wish to retain their links with Britain, and called for negotiations between the UN and Spain to put an end to the colonial situation in Gibraltar on a basis which, by references in the resolution to the ‘national unity’ of Spain, would have involved Gibraltar becoming part of Spain; the Assembly also imposed an arbitrary (and unrealistic) date by which the colonial situation in Gibraltar was to be terminated. The UK could not agree to conduct negotiations on such a basis. See GA Res 2353 (XXII) (1957) and 242 (XXIII) (1968); and UNYB (1967), pp 668–76, and ibid (1968), pp 745–50 and Cmnd 4123, pp 93, 181–2 (for the text of the UK representative’s statement). See generally Eisemann, Der Streit um Gibraltar (1974).

25  See § 127, n 10, and § 130, n 22. As to the right of the parent state to seek assistance from other states, and as to their right to respond to such a request, see § 130, nn 20, 21.

26  See Schwebel, Hag R, 136 (1972), ii, pp 483–6; Klein, ZöV, 36 (1976), pp 618–52; Wilson, International Law and the Use of Force by National Liberation Movements (1988), especially pp 91–136; and see § 127, n 10, and § 131, para (4). The General Assembly has on several occasions affirmed the ‘legitimacy’ of, or otherwise supported, the armed struggle of certain liberation movements in pursuit of their right to self-determination: see eg GA Res 2918 (XXVII) (1972), 3034 (XXVII) (1972) and 31/146 (1976). As to the right of a national liberation movement to seek assistance from third states, and their right to respond to such a request, see n 27, and § 131, para (4).

These questions are closely related to the law applicable to civil wars: see § 49, n 2, and, as to the possibility that wars of national liberation against colonial or other similar alien powers are subject to special consideration, and the related question of the international status of liberation movements, see § 49, n 4ff.

27  For discussion of the use of force to aid liberation movements see Dugard, ICLQ, 16 (1967), pp 157–90; Higgins in The Future of the International Legal Order, vol 3 (eds Black and Falk, 1971), pp 103–6; Islam, Indian JIL, 25 (1985), pp 424–47, especially p 440ff; and see also Fraleigh in International Law of Civil War (ed Falk, 1971), pp 213–18, as to the application of these considerations in the Algerian civil war. See also § 131, para (4) on intervention.

The General Assembly has on several occasions affirmed the legitimacy of the struggle of colonial peoples and peoples under alien domination to exercise their right of self-determination by all the necessary means at their disposal, and has urged moral and material assistance to national liberation movements in colonial territories; the Assembly has also condemned the practice of using mercenaries against national liberation movements as a criminal act, and has called on states to prevent the organisation of mercenaries in their territories and to prevent their nationals serving as mercenaries. See eg GA Res 2621 (XXV) (1970), 2908 (XXVII) (1972) and 3103 (XXVIII) (1973). See also the seventh paragraph of the elaboration of the first principle set out in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, GA Res 2625 (XXV) (1970). In GA Res 32/36 (1977) the Assembly called on the specialised agencies to assist liberation movements in southern Africa. But where an organisation’s powers are limited to aiding ‘countries’ it may not be able to aid a liberation movement: see UN Juridical YB (1975), p 176. As to the treatment of those fighting for liberation movements as prisoners of war, and the application to them of the Geneva Conventions, see § 49, nn 24, 25 and eg GA Res 2621 (XXV) (1970) and 2918 (XXVII) (1972).

The question of aid to liberation movements arose particularly in connection with the liberation movements in the Portuguese territories in Africa. The Assembly, from 1966 onwards, appealed to all states to give the peoples of those territories the moral and material support necessary for the restoration of their inalienable rights, and, after 1968, it recognised the legitimacy of the struggle of the peoples of those territories to achieve those rights. At the same time, the General Assembly requested all states, particularly Portugal’s NATO allies, not to give Portugal assistance enabling it to maintain its colonisation of the territories. The General Assembly later affirmed that the national liberation movements in the Portuguese territories were the ‘authentic representatives’ of the true aspirations of the peoples of the territories and recommended that in matters appertaining to the affairs of the territories their representation by the liberation movements in an appropriate capacity should be ensured: GA Res 2918 (XXVII) (1972).

The Assembly has adopted similar resolutions in respect of other liberation movements, particularly in relation to South Africa.

28  See § 41.

29  The matter is discussed in many of the works cited at n 14; and see Dinstein, ICLQ, 25 (1976), pp 102, 103–10; Crawford (ed), The Rights of Peoples (1988); and § 428 (as to minorities and indigenous peoples). As to the Algiers Declaration of the Rights of Peoples 1976, see Rigaux, and Falk, in UN Law: Fundamental Rights (ed Cassese, 1979), pp 211–24 and 225–36. This Declaration was the product of work by a number of eminent individuals. It was followed by the adoption in 1981 of the African Charter of Human and Peoples’ Rights (§ 444): as to the concept of ‘peoples’ in that Charter, see Kiwanuka, AJ, 82 (1980), pp 80–101. See also § 22, n 7, as to the position generally of native peoples. As to the application of the principle of self-determination in respect of the transfer of eastern areas of Poland to the Soviet Union in 1939, see Ginsburgs, AJ, 52 (1958), pp 78–80; in respect of the Palestinian people, see Mallison and Mallison, The Palestine Problem (1986), pp 188–204; and in respect of Mayotte, see Oraison, Rev Belge, 17 (1983), pp 655–98. In its Advisory Opinion on the Western Sahara the ICJ declined to regard the ‘Mauretanian entity’ as a personality or corporate entity distinct from the several emirates and tribes composing it, or as enjoying some form of sovereignty in the Western Sahara: ICJ Rep (1975), p 63). See also AD v Canada (1984), ILR, 79, p 261. And see § 375, n 6.

30  See also para 6 of GA Res 1514 (XV) (1960); and note the remarks of the UK representatives in 1964 as to its significance, BPIL (1964-II), pp 237, 239–40. And see Blay, Indian JIL, 25 (1985), pp 386–410; Adar, ibid, 26 (1986), pp 425–47; Brilmayer, Yale JIL, 16 (1991), pp 177–202. For consideration of the impact of the principle of self-determination upon acquisition of territory, see § 274.

31  See Chowdhury, The Genesis of Bangladesh (1972): International Commission of Jurists, The Events in East Pakistan 1971 (1972); Nanda, AJ, 66 (1972), pp 321–6; Review of the International Commission of Jurists (June 1972), pp 42–52; Saxena, Self-Determination from Biafra to Bangladesh (1978); Buchheit, Secession: The Legitimacy of Self-Determination (1978); and § 41, n 6. The travaux préparatoires of the Charter and the subsequent practice of states suggest that the principle of self-determination is primarily applicable to colonial situations rather than to cases involving secession from a state (in which context, however, it may be noted that international law does not make civil war illegal). In 1920 the Committee of Jurists’ Report on the Aaland Islands dispute observed that positive international law did not recognise the right of self-determination of peoples to separate themselves from the state to which they belonged (Off J (1920), Special Suppl 3, pp 3–19).

32  Thus, in addition to the colonial situations, circumstances in which self-determination may be relevant include those where (a) part of a state, having a distinct local identity, seeks to determine for itself its own political and constitutional structure, often by asserting a degree of autonomy or independence (in 1990 the response of many states to the assertion of independence by Lithuania (see § 40, n 3) was couched in terms of the right of the Lithuanian people to self-determination); (b) the people within a state seek to overthrow the government which has obtained, or retained, power otherwise than by democratic means (eg the situation in many East European states in 1989 and 1990, leading to the overthrow of communist regimes); and (c) a state is effectively invaded by another state, in which case those resisting may claim to be acting in exercise of their right to self-determination (see, eg, as to the resistance movement in Afghanistan after the Soviet Union’s invasion in 1979–80 (§ 130, n 14), Reisman, AJ, 81 (1987), p 906–9, and Rafiqul Islam, Neth IL Rev, 39 (1990), pp 1–21). The issue assumes particular importance in relation to the question whether in these non-colonial situations the same consequences follow (eg as regards the possible rights of armed movements to fight in support of self-determination, and of other states to assist) as are said to follow in relation to colonial situations by virtue of the priority which the right of self-determination is argued to give over the normal rules which apply in relation to civil wars and intervention. See on self-determination in the post-Colonial period, Rao, Indian JIL, 28 (1988), pp 58–71.

33  Article 73(e).

34  The Assembly’s Fourth Committee normally deals with these matters.

35  See Higgins, Development of International Law Through the Political Organs of the United Nations (1963), pp 90–106.

36  GA Res 142 (II). The form was revised in 1951 (GA Res 551 (VI)). On a voluntary basis some, but not all, administering states have provided information on constitutional and political developments, although this went wider than the provisions of the Charter. The General Assembly has repeatedly encouraged the submission of this kind of information. Thus, in 1952 the General Assembly recommended that the administering states should voluntarily include in their reports information as to details relating to the extent of self-determination in the territories in question, ‘in particular regarding their political progress and the measures taken to develop their capacity for self-determination and to satisfy their political aspirations and to promote the progressive development of their free political institutions’ (GA Res 637 B (VII)): see also GA Res 144 (II) (1947), 327 (IV) (1949), and 848 (IX) (1954). In 1959 the Assembly repeated its request to administering authorities to supply this voluntary information, and also requested them to include information on the establishment of intermediate timetables leading to the attainment of self-government: GA Res 1468 (XIV). The UK offered as a gesture of goodwill, and not as a matter of obligation, to submit information on political and constitutional developments in 1961: see Cmnd 1791 p 100. Since 1962 the Committee on Information from Non-Self-Governing Territories (and its successors) has examined information on constitutional and political developments; Portugalߣs refusal to transmit information led to the appointment of a committee to examine ‘such information as is available’, and it has not hesitated to consider political matters (GA Res 1542 (XV) (1960)). There has thus been a tendency to assimilate in some measure the contents and the machinery of examination of the information supplied with regard to non-self-governing territories to those of trust territories (see §§ 89–95).

37  At first the Assembly, in February 1946, had requested the Secretary-General to include in his annual report on the Organisation a summary of the information transmitted to him by members under Art 73: GA Res 9 (I). Later that year an ad hoc committee was set up to assist the Assembly in the consideration of the information received and to recommend procedures to be followed: GA Res 66 (I). In 1947 the Assembly set up a Special Committee to examine and report on the economic, social and educational conditions in non-self-governing territories and to make recommendations: GA Res 146 (II); see also GA Res 219 (III) (1948). In 1948 this Committee’s place was taken by the Special Committee on Information transmitted under Art 73(e), later renamed the Committee on Information from Non-Self-Governing Territories: GA Res 332 (IV) and 569 (VI) (1951); see also 646 (VII) (1952), 933 (X) (1955) and 1332 (XIII) (1958). In 1961 its terms of reference were widened to include the examination of political and constitutional information transmitted by administering states: GA Res 1700 (XVI). The Committee was dissolved in 1963, and its functions were transferred to the Special ‘Committee of Twenty-Four’: GA Res 1970 (XVIII).

38  GA Res 1514 (XV).

39  GA Res 1654 (XVI) (1961).

40  In 1962 the Committee took over the functions of the Special Committee on South West Africa and the Special Committee on Portuguese Territories, which were dissolved: GA Res 1805, 1806, 1807 and 1809 (XVII). On the work of the Committee see Khol, Human Rights Journal, 3 (1970), pp 21–50.

41  GA Res 1970 (XVIII).

42  Thus, missions have visited the US Virgin Islands, the Cayman Islands, and French Somaliland in 1977; the New Hebrides and Guam in 1979; the Turks and Caicos Islands in 1980; the Cocos (Keeling) Islands in 1980 and 1984; Tokelau, and American Samoa in 1981; Montserrat in 1982; and Anguilla in 1984.

43  GA Res 2621 (XXV). The resolution contained special recommendations regarding South Africa, Southern Rhodesia and Portuguese territories in southern Africa. See also GA Res 2908 (XXVII) (1972). The passage of GA Res 2621 (XXV) reinforced doubts entertained by the UK as to whether the Committee of Twenty-Four could offer any constructive help in resolving the remaining problems of decolonisation, and the UK informed the Secretary-General of the UN on 11 January 1971 that the UK would withdraw from membership of the Committee: Parliamentary Debates (Commons), vol 809, cols 30–31 (written answers, 12 January 1971). Australia had withdrawn in 1969, Italy in 1970, and the USA in 1971, all, broadly, because of reservations as to whether the Committee was acting within the limits of its legitimate powers. In 1974 the UK resumed its participation in the work (but not membership) of the Committee: Cmnd 5907, p 98. In 1986 the UK, while still proposing to transmit information on its remaining non-self-governing territories to the UN, notified the Committee that it would no longer participate in the work of the Committee: see UKMIL, BY, 57 (1986), p 513.

44  GA Res 1514 (XV) (1960) had declared that the ‘subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation’.

Colonialism has also been designated a ‘slavery-like’ practice: see p 981.

45  See also GA Res 2704 (XXV) (1970), 2873 (XXVI) (1971), and 2908 and 2980 (XXVII) (1972).

46  GA Res 35/118.

47  GA Res 43/47.

48  Article 19.3(b): YBILC (1976), ii, pt 2, pp 95, 106–7.

49  Article 15: Report of the ILC (41st Session, 1989), para 217.

50  See eg GA Res 1314 (XIII) (1958), 2621 (XXV) (1970) and 2979 (XXVII) (1972). See also § 407, n 42, as to permanent sovereignty over natural resources.

51  GA Res 3201 (S-VI) (1974). The Assembly has adopted similar resolutions in subsequent years (eg GA Res 38/50 (1983), 39/42 (1984)) reaffirming the inalienable right of dependent peoples to independence, self-determination and the enjoyment of their natural resources, and, generally, seeking to prevent the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples from being impeded by foreign economic activities.

52  GA Res 3281 (XXIX) (1974); see § 106.

53  See GA Res 2105 (XX). Such calls have become a regular feature of relevant resolutions of the General Assembly.

54  See eg Waldock, Flag R, 106 (1962), ii, pp 27–34. Several states have asserted the illegality of the Committee’s establishment or operations, or those of its predecessors: see eg the views of Belgium (UNYB (1954), p 318), and n 43 above.

55  As to developments within the framework of UN human rights activities see generally § 433ff; and Res VIII adopted by the International Conference on Human Rights, held at Teheran, 1968 (UN Doc A/CONF 32/41, p 9).

56  Such as the call for ‘immediate steps’ to be taken to confer independence, expressly irrespective of political, economic, social or educational preparedness: GA Res 1514 (XV) (1960). It may be noted that although the resolutions have been adopted with overwhelming majorities they have often not included the affirmative votes of the states most immediately concerned with the practical application of the resolutions, namely the administering states. More weight probably attaches to their votes than to those of states with less direct involvement in the subject: see § 10, n 21.

57  As to the law-creating possibilities of General Assembly resolutions, see § 16.