This article has been written by Mr. Dhruva Ranjan, a second-year student of Christ (deemed to be) University, Delhi NCR.
Abstract
The request for an advisory opinion on the separation of the Chagos Archipelago involves (1) the cause of decolonization and the Court’s participation in UN activities in this direction, and (2) the consent principle in international dispute settlement. Part II examines the law on this subject in broad strokes, requiring that the Court issue an advisory opinion only in a manner compatible with its judicial character and with complete respect for the consent principle. Part III contends that providing an opinion on the main issues in a bilateral dispute without the parties’ consent or with the effect of circumventing the consent principle would be inconsistent with the Court’s judicial character and would constitute a compelling reason for the Court’s refusal to provide the requested advisory opinion on such issues. Part IV elaborates that the fact that fully answering the Court’s questions would necessitate addressing the main or essential issues, including the lawfulness of the detachment of the Chagos Archipelago from Mauritius and, ultimately, the validity of the detachment agreement, in the bilateral dispute between Mauritius and the United Kingdom without the latter’s consent, and would be incompatible with the Court’s judicial character, is a compelling reason. Part V contends that, given that decolonization is a Charter-mandated, important, and traditional aspect of the UN’s work, if the Court feels compelled to issue an advisory opinion, it may do so on what law may be applicable to, but not on how that law applies to, the main or essential issues involved in the bilateral dispute between the two States, particularly the lawfulness of the Chagos Archipelago’s detachment from Mauritius and, ultimately, the validity of This strategy may provide the greatest advantage to both parties. Part VI finishes the paper succinctly.
Introduction
In the run-up to Mauritius’s impending independence, the US indicated some interest in establishing a military post in the Chagos Archipelago,1 which is part of Mauritius. Mauritius’ politicians and UK officials had several talks and meetings before agreeing to remove the Chagos Archipelago from Mauritius in 1965. This was first referred to as the detachment agreement, however the term “separation” was also used to characterize the occurrence of detachment. These words are used interchangeably in this context. The agreement, as detailed in the award in Chagos Marine Protected Area (Mauritius v. United Kingdom), secured for Mauritius compensation in addition to direct compensation to the land owner and the cost of relocating others affected, a joint security arrangement with the United Kingdom, the promise of good offices by the United Kingdom to help secure favorable trade terms from the United States, and a promise to return the Chagos Archipelago to Mauritius. However, once Mauritius gained independence, the Chagos Archipelago (either alone or as part of the BIOT) was not an issue or item on the General Assembly’s agenda for a long time. It is unclear how the detachment agreement fits into the whole picture, and the phrase “invites” is also notable.
Apparently, in the 1980s, Mauritius and the United Kingdom had a disagreement concerning sovereignty over the Chagos Archipelago, as well as compensation and other rights. Private Mauritius citizens sought judicial redress in a variety of places, and Mauritius initiated the Chagos Marine Protected Area arbitration against the United Kingdom under Annex VII of the United Nations Law of the Sea Convention. Not pleased with the outcome of these efforts, Mauritius took the subject before the General Assembly, which put a request for an advisory opinion from the International Court of Justice (ICJ or the Court) on its agenda at its request.
On 22 June 2017, the United Nations (UN) General Assembly adopted Resolution 71/292 by which the Assembly requested the Court to give an advisory opinion on the following questions:
- “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?” ;
- “What are the consequences under international law, including obligations 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 particular those of Chagossian origin?”
The request for an advisory opinion raises two issues: (1) the cause of decolonization and the Court’s participation in UN activity on the subject, and (2) the consent principle in international dispute settlement. How should the Court handle this advisory opinion request? There will undoubtedly be a variety of options. This paper gives one point of view. Part II begins by reviewing the law on this subject in broad strokes, which requires that the Court issue an advisory decision only in a manner compatible with its judicial character and with full respect for the consent principle. Part III contends that providing an opinion on the main issues in a bilateral dispute without the parties’ consent or with the effect of circumventing the consent principle would be incompatible with the Court’s judicial character and would constitute a compelling reason for the Court’s refusal to provide the requested advisory opinion on such issues. Part IV elaborates that the fact that fully answering the Court’s questions would necessitate addressing the main or essential issues, such as the lawfulness of the detachment of the Chagos Archipelago from Mauritius and, ultimately, the validity of the detachment agreement, in the bilateral dispute between Mauritius and the United Kingdom without the latter’s consent, and would be incompatible with the Court’s judicial character, is a compelling reason. Part V contends that, given that decolonization is a Charter-mandated, important, and traditional aspect of the UN’s work, if the Court feels compelled to issue an advisory opinion, it may do so on what law may be applicable to, but not on how that law applies to, the main or essential issues involved in the bilateral dispute between the two States, particularly the lawfulness of the detachment of the Chagos Archipelago from Mauritius and, ultimately, the validity of This method may provide the most benefits to both parties. Part VI closes the paper succinctly.
Decolonization has taken much of the UN’s time and energy from its establishment, as a significant and “traditional” aspect of the UN’s mission, with the UN Charter itself including explicit provisions on the subject. The consent principle is a basic concept that applies globally and without exception in international dispute settlement. It states that no State is required to have its conflicts submitted to judicial settlement without its assent. Both are extremely important to the world, and both are brought into action by the request. The circumstance appears to allow the Court to approach the request as its involvement in the UN’s decolonization mission, but it also requires that its work in this respect be compatible with its judicial character and assure full participation.
According to conventional knowledge, the issue of consent is not currently regarded a foundation for a challenge to the Court’s jurisdiction in advisory proceedings. The conventional view is that the jurisdiction of the Permanent Court of International Justice (PCIJ) to issue advisory opinions is derived from Article 14 of the League of Nations Covenant, and that the jurisdiction of the International Court of Justice to do so upon a properly presented request is derived not from the specific consent of States in respect of particular disputes or categories thereof, but from Article 96 of the UN Charter and Article 65 of the League of Nations Covenant. We may not debate this point of view here.
Not to mount a challenge to this view here, we may note that the PCIJ in Eastern Carelia did seem to reserve the question:
“There has been some discussion as to whether questions for an advisory opinion, if they relate to matters which form the subject of a pending dispute between nations, should be put to the Court without the consent of the parties. It is unnecessary in the present case to deal with this topic.”
Sometimes a contrast is established between advisory and contentious matters, implying that as long as its work output is not binding, the Court is in a different league than in contentious procedures. However, the PCIJ has strongly rejected this position in the famed Eastern Carelia case, when the Court effectively said that the issue of consent would weigh highly in its assessment of the validity of issuing an opinion:
“The opinion which the Court has been requested to give bears on an actual dispute between Finland and Russia. It is well established in international law that no State can, without its consent, be compelled to submit its disputes with other States either to mediation or to arbitration, or to any other kind of pacific settlement. Such consent, however, has never been given by Russia.”
The Court is cognizant that it is not being asked to settle a dispute, but rather to provide an advisory opinion. This condition, however, does not fundamentally alter the preceding considerations. The Court’s inquiry is not one of abstract law, but of the essential point of the dispute between Finland and Russia, and can only be resolved by an examination into the facts underlying the case. Answering the question is essentially the same as resolving the issue between the parties. As a Court of Justice, the Court cannot deviate from the fundamental standards that govern its operations, even while issuing advisory opinions.
While the Committee’s intention was to justify its proposal for ad hoc judges in advisory cases, the prior step to such appointment is of course the decision of a relevant State to participate to whatever extent, and thus the existence of consent; without such consent, no request for ad hoc judges would have been made. In any case, if the difference between the two types of procedures is the foundation for treating them differently, that basis is non-existent, according to the Committee, because the difference is more theoretical than actual.
In Interpretation of Peace Treaties, the Court itself made a distinction between contentious cases and advisory matters, and characterized the giving of an advisory opinion as its participation in the work of the UN:
“The Court’s reply is only of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court’s Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an “organ of the United Nations”, represents its participation in the activities of the Organization, and, in principle, should not be refused.”
According to this logic, the current proposal of the General Assembly, on its face, gives an opportunity for the Court to engage in a Charter-mandated, vital, and “traditional” feature of the United Nations’ activity, namely decolonization.
Still, the Court, after rejecting consent as a basis for its advisory jurisdiction, switched gears to consider it as a factor affecting propriety and discretion, and distinguished Eastern Carelia:
There are certain limits, however, to the Court’s duty to reply to a Request for an Opinion. It is not merely an “organ of the United Nations”, it is essentially the “principal judicial organ” of the Organization (Art. 92 of the Charter and Art. 1 of the Statute). It is on account of this character of the Court that its power to answer the present Request for an Opinion has been challenged.
Article 65 of the Statute is permissive. It gives the Court the power to examine whether the circumstances of the case are of such a character as should lead it to decline to answer the Request. In the opinion of the Court, the circumstances of the present case are profoundly different from those which were before the Permanent Court of International Justice in the Eastern Carelia case (Advisory Opinion No. 5), when that Court declined to give an Opinion because it found that the question put to it was directly related to the main point of a dispute actually pending between two States, so that answering the question would be substantially equivalent to deciding the dispute between the parties, and that at the same time it raised a question of fact which could not be elucidated without hearing both parties.
In Western Sahara, the ICJ adopted a similar framework to consider the propriety of issuing an advisory opinion or decide whether to exercise its discretion under Article 65(1) of the Statute not to issue one. In that instance, the Court acknowledged that “to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent” as a reason for refusing to render an opinion.16 This is a restatement of the second point of Eastern Carelia’s ratio decidendi, and will be condensed as “have the effect of circumventing the consent principle” throughout this work. Furthermore, the existence of a bilateral territorial dispute over the Chagos Archipelago can be seen to some extent in terms of the “origin” of the dispute, which began in the 1980s and well before the questions were placed on the agenda of the General Assembly, and was recognized in any case by the arbitral tribunal in Chagos Marine Protected Area in its award. Given such precise decisions on the same grounds, as the Court has decided in a number of cases, there must be especially compelling reasons for the Court not to adopt such recognition.
Given the context, it is not difficult to see how fully answering the Court’s questions would necessitate addressing the main or essential issues, such as the lawfulness of the Chagos Archipelago’s detachment from Mauritius and, ultimately, the validity of the detachment agreement, in the bilateral dispute between Mauritius and the United Kingdom without the latter’s consent. That is, whether or not the decolonization process was completed in 1968 is dependent on whether or not the excision of the Chagos Archipelago from Mauritius in 1965 was legal, which is dependent on the validity of the 1965 detachment agreement between the UK and the Mauritius Council of Ministers. In other words, the detachment agreement’s legitimacy is the upstream problem for determining if the decolonization process was finished in 1968, which is the downstream question. The major issue in the bilateral disagreement is whether or not the 1965 separation agreement is legal.
This the arbitral tribunal in Chagos Marine Protected Area already found. In its own words:
The Tribunal approaches this task conscious of the findings it has made with respect to the scope of its own jurisdiction. It is common ground between the Parties that there was agreement between the United Kingdom and the Mauritius Council of Ministers in 1965 to the detachment of the Archipelago (the “1965 Agreement”). The Parties disagree, however, regarding whether Mauritian consent was freely given, whether any agreement is valid or binding, and even regarding what was agreed. In the course of these proceedings, the validity or otherwise of the 1965 Agreement was a central element of the Parties’ submissions on Mauritius’ First and Second Submissions, sovereignty, and the identity of the coastal State. The Tribunal has found that it lacks jurisdiction to consider these submissions.
Finally, there are remarkable parallels between the Court’s queries and Mauritius’ Submissions Nos. 1 and 2 to the arbitral tribunal in Chagos Marine Protected Area. As previously stated, the questions posed to the Court are written in such a way that answering them would necessitate the Court addressing the main or essential issues in the bilateral dispute; Submissions Nos. 1 and 2 were written in such a way that answering them would necessitate the arbitral tribunal determining which State is the coastal State in respect of the Chagos Archipelago, which would necessitate the arbitral tribunal determining which State has sovereignty over the Chagos Arch Mauritius’ official terminology.
(1) the United Kingdom is not entitled to declare an “MPA” or other maritime zones because it is not the “coastal State” within the meaning of inter alia Articles 2, 55, 56 and 76 of the [Law of the Sea] Convention; and/or
(2) having regard to the commitments that it has made to Mauritius in relation to the Chagos Archipelago, the United Kingdom is not entitled unilaterally to declare an “MPA” or other maritime zones because Mauritius has rights as a “coastal State” within the meaning of inter alia Articles 56(1)(b)(iii) and 76(8) of the Convention;
Conclusion
The Court’s provision of the sought advisory opinion as part of its involvement in the UN’s work on decolonization can only be done in a fashion that is consistent with its judicial nature and fully respects the consent principle. The fact that fully answering the Court’s questions would require addressing the main or essential issues in the bilateral dispute between Mauritius and the United Kingdom without the latter’s consent, and would be incompatible with the Court’s judicial character, is a compelling reason for the Court’s refusal.
Given that decolonization is a Charter-mandated, important, and traditional aspect of the UN’s work, if the Court feels compelled to issue an advisory opinion, it may do so on what law may be applicable to, but not how that law applies to, the main or essential issues involved in the bilateral dispute between the two States, particularly the lawfulness of the Chagos Archipelago detachment and, ultimately, the validity of the detachment agreement. This is the instance in which the Court should use Eastern Carelia and demonstrate to the world that its frequent reference to it in a long line of advisory cases is not simply lip service. To be an effective advocate of international law, the Court must follow the rule of law. To paraphrase Brandeis’ observation about government, the Court is a powerful and omnipresent teacher who teaches the entire world by example; if the Court does not pay proper regard to the fundamental principle of consent to international settlement of disputes and takes its own words lightly, it will breed contempt for the rule of law and lead to concrete consequences that are detrimental to the rule of law. This will not help the situation on the ground.
Reference
- This article was originally written by Sienho Yee published on
Chinese Journal of International Law, Volume 16, Issue 4, December 2017, Pages 623–646. The link for the same is herein. https://academic.oup.com/chinesejil/article/16/4/623/4835361 - This article was originally written by Stephen Allen published on
American Society of International law. The link for the same is herein. https://www.asil.org/insights/volume/23/issue/2/chagos-advisory-opinion-and-decolonization-mauritius - This article was originally written by Thomas Bhuri published on
Cambridge University Press. The link for the same is herein. https://www.cambridge.org/core/books/international-court-of-justice-and-decolonisation/C7013E53429C9C42EA75B21A5CB07252 - This article was originally written by Stephan Minas published on
Taylor & Francis Online. The link for the same is herein. https://www.tandfonline.com/doi/abs/10.1080/20414005.2019.1612159 - This article was originally written by Alessandra De Tomasso published on
American Society of International law. The link for the same is herein. https://internationallaw.blog/2019/03/28/the-icjs-advisory-opinion-on-the-legal-consequences-of-the-separation-of-the-chagos-archipelago-from-mauritius-bilateral-dispute-or-question-of-general-interest/