Published: 28 June 2017 Author: Stefan Talmon
Prior to 1965, the Chagos Archipelago had been administered as a dependency of the then British colony of Mauritius. On 8 November 1965, the Archipelago was detached from the colony to be administered separately by the United Kingdom as the British Indian Ocean Territory (“BIOT”). Beginning in 1967 the Archipelago was evacuated to allow the United States to use the islands for defence purposes under a lease from the United Kingdom. Mauritius, then without the Chagos Archipelago, became independent on 12 March 1968. Since at least 1980 it has asserted that the detachment of the Chagos Archipelago was unlawful and that it has sovereignty over the archipelago. The United Kingdom has always rejected these claims.
Mauritius tried to raise the question of sovereignty over the Chagos Archipelago before an Arbitral Tribunal constituted under Annex VII of the United Nations Convention on the Law of the Sea and before the European Court of Human Rights. However, none of these courts and tribunals was competent to rule on the question of sovereignty.
After the United Kingdom announced that none of the Chagossians who had been expelled in the 1960s to make way for military bases would be allowed to return to live on the Archipelago, the Government of Mauritius declared on 17 November 2016 that:
“in view of the purported unilateral actions of the UK, Mauritius would be fully justified in taking forward the completion of the process of decolonisation, which is now on the agenda of the current session of the UN General Assembly, with a view to putting the matter before the International Court of Justice for an advisory opinion.”
Over the next few months, Mauritius lobbied hard at the United Nations to have the question of the Chagos Archipelago referred to the International Court of Justice (“ICJ”) for an advisory opinion. During the debate in the General Assembly on 22 June 2017 on what became resolution 71/292 entitled “Request for an advisory opinion of the International Court of Justice on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965” the representative of United Kingdom urged delegates to vote against the resolution. He stated:
“Put simply, the request for an advisory opinion is an attempt by the Government of Mauritius to circumvent the vital principle that a State is not obliged to have its bilateral disputes submitted for judicial settlement without its consent. And let me be clear, we do not and we would not give that consent […]. I would ask any planning to abstain because this is a bilateral matter to please vote against it precisely for that reason. […] we oppose the draft resolution because referring a bilateral dispute to the International Court of Justice is not the appropriate course of action. […] A request for an advisory opinion […] would set a terrible precedent, both for the General Assembly and for the Court.
Both the United Kingdom and Mauritius have excluded disputes with other Commonwealth States from their acceptance of the compulsory jurisdiction of the International Court of Justice. The draft resolution is therefore a back-door route to the Court. The General Assembly is being used to cut across the principle that States are not obliged to have their bilateral disputes submitted for judicial settlement without their consent. Doing so would set a dangerous precedent.”
Despite the United Kingdom’s impassioned plea, by a vote of 94 in favour to 15 against, with 65 abstentions, the General Assembly asked the Court to advise on whether the process of decolonization was lawfully completed when Mauritius was granted independence in 1968 and what the consequences arising from the United Kingdom’s continuing administration of the Chagos Archipelago under international law are.
Germany abstained on the resolution. Speaking in explanation of the vote, the German delegate stated:
“Germany’s abstention in the voting on resolution 71/292 is not to be understood as expressing any view whatsoever on the legal consequences of the matters in question. In our view, the dispute between Mauritius and the United Kingdom is bilateral in character.
We welcome the fact that both parties are willing to settle the issue peacefully, as provided for in the Charter of the United Nations. We note, however, that one party to the dispute has expressly not agreed to involve the International Court of Justice in this matter, which is in conformity with the Court’s Statute.”
While acknowledging the principle in Article 36 of the Statute of the International Court of Justice that a State cannot be brought before the ICJ without its consent, and expressly noting that the United Kingdom had not consented to the Court’s jurisdiction, Germany nevertheless decided to abstain rather than vote against the resolution. This was more a political than a legal decision and was in line with the position taken in other requests for an advisory opinion. For example, in 2003 Germany abstained in the vote on the request for an opinion on the legal consequences arising from the construction of the wall being built by Israel in the Occupied Palestinian Territory, and in 2008 it abstained in the vote on the request for an opinion on whether the unilateral declaration of independence (“UDI”) by the Provisional Institutions of Self-Government of Kosovo was in accordance with international law.
All three requests – Israeli Wall, Kosovo UDI, and the Chagos Archipelago – were not classic requests for an advisory opinion on abstract legal questions but concerned bilateral disputes between the Palestinians and Israel, Serbia and Kosovo, and Mauritius and the United Kingdom, respectively. In all three cases, one of the parties to the dispute managed to bring its case before the ICJ which, absent the General Assembly’s request for an advisory opinion, would not have had jurisdiction to hear the case. With regard to the first two requests, the Court was not competent to hear the case because neither the Palestinians nor Kosovo was a party to the ICJ Statute and, consequently, the Court was not open to them. With regard to the Chagos Archipelago case both the United Kingdom and Mauritius had excluded disputes with other Commonwealth States from their acceptance of the compulsory jurisdiction of the Court and the United Kingdom was not prepared to enter into an ad hoc agreement to submit the dispute to the Court.
Germany’s decision, while politically understandable, does not easily square with its legal position taken some years earlier in the Jurisdictional Immunities of the State case before the ICJ where it acted as defender of the principle of consensualism in international dispute settlement. In its pleadings before the Court, Germany stated, inter alia, that “consent of both parties is the basis of international dispute settlement,” that consent “is the foundation stone of the international system of judicial settlement”, that “the principle of consent […] lies at the heart of international dispute settlement”, and that “the principle of consent […] provides the foundation of the settlement of international disputes”. It also said that:
“No State must answer an application brought against it if it has not given, or does not give, its consent to judicial settlement of the dispute in accordance with Article 36 of the Statute.”
While it is true that the consent of the parties is still the basis of the Court’s jurisdiction in contentious proceedings, the practice of circumventing the Court’s lack of contentious jurisdiction by asking the Court for an advisory opinion on the very subject matter of a bilateral contentious dispute constitutes a misuse of the Court’s advisory jurisdiction and sets a dangerous precedent. Advisory opinions are not binding on States, but opinions of the ICJ carry great weight and will usually be used to advantage by one of the parties to the dispute in future negotiations. The fact that it has contributed to opening the route to the Court through the back door of requests for an advisory opinion may come to haunt Germany one day when, for example, Poland, Greece or other States come to the General Assembly asking to submit a request for an advisory opinion on Germany’s obligation to make reparation for events during the Second Word War.
Category: Peaceful settlement of disputes