CYIL vol. 10 (2019)

BOOK PASSAU • BERLIN • PRAGUE

SCIENCE & NEW MEDIA

Czech Yearbook of Public & Private International Law

Czech Yearbook of Public & Private International Law Česká ročenka mezinárodního práva veřejného a soukromého

Vol. 10

www.cyil.eu

Česká společnost pro mezinárodní právo Czech Society of International Law

Praha 2019

Editor-in-Chief: Professor PAVEL ŠTURMA

This Yearbook is included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database.

KATALOGIZACE V KNIZE – NÁRODNÍ KNIHOVNA ČR

Czech yearbook of public & private international law = Česká ročenka mezinárodního práva veřejného a soukromého. Vol. 10. – Praha : Česká společnost pro mezinárodní právo, 2019. – xv, 520 stran Vydáno v nakladatelství Eva Rozkotová

ISBN 978-80-87488-34-8 (Eva Rozkotová ; brožováno)

* 341.1/.8 * 341.9 * (437.3) * (048.8:082) * (058) – public international law – public international law – Czechia – private international law – private international law – Czechia – collective monographs – yearbooks

Tato Ročenka je vydávána s  inanční podporou Rady vědeckých společností při Akademii věd ČR. This Yearbook is published with a  inancial support of the Council of Scienti  ic Societies of the Academy of Sciences of the Czech Republic. Vydavatel děkuje za významnou materiální podporu projektu Ročenky mezinárodního práva veřejného a soukromého advokátní kanceláři Skils, s.r.o.

© Česká společnost pro mezinárodní právo, 2019 © Czech Society of International Law, 2019

Vydala Česká společnost pro mezinárodní právo v nakladatelství Eva Rozkotová, v rámci mezinárodního publikačního projektu

Passau-Berlin-Praha

ISSN 1805-0565 ISSN 1805-0999 (elektronicky) ISBN 978-80-87488-34-8

BOARDS AND EDITORS

EDITORIAL BOARD Associate Professor VLADIMÍR BALAŠ Charles University in Prague, Faculty of Law, president of the Czech branch of ILA Dr. MILAN BERÁNEK Ministry of Foreign Affairs of the CR Associate Professor VERONIKA BÍLKOVÁ Charles University in Prague, Faculty of Law, Institut of International Relations, Prague Professor DALIBOR JÍLEK Paneuropean University Bratislava, Faculty of Law, Palacký University in Olomouc Professor MONIKA PAUKNEROVÁ Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR Associate Professor NADĚŽDA ŠIŠKOVÁ Palacký University in Olomouc, Faculty of Law Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law, Institute of Law of the Academy of Sciences of the CR, chair of the International Law Commission Dr. ZUZANA TRÁVNÍČKOVÁ University of Economics Prague

ADVISORY BOARD Professor LAURENCE BOISSON DE CHAZOURNES Faculty of Law, University of Geneva Professor WLADYSLAW CZAPLINSKI Institute of Legal Sciences, Polish Academy of Sciences, Warsaw Professor ČESTMÍR ČEPELKA Charles University in Prague, Faculty of Law (emeritus) Professor MALGOSIA FITZMAURICE Queen Mary College, University of London, School of Law Professor RAINER HOFMANN Goethe University, Frankfurt/Main Professor JIŘÍ MALENOVSKÝ Judge, Court of Justice of the European Union, Luxembourg Professor PAUL TAVERNIER University Paris-Sud (XI), Paris (emeritus) Dr. PETER TOMKA Judge and former President, International Court of Justice, The Hague

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EDITOR-IN-CHIEF Professor PAVEL ŠTURMA Charles University in Prague, Faculty of Law President of the Czech Society of International Law, chair of the ILC

EXECUTIVE EDITOR PETER MIŠÚR Association KAIROS, Prague

REVIEWERS The Editors and authors are grateful to the following reviewers of articles of this volume: Vladimír Balaš, Tomáš Doležal, Monika Forejtová, Dalibor Jílek, Ján Klučka, Monika Pauknerová, Václav Šmejkal, Pavel Šturma

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CONTENTS

PREFACE Pavel Šturma

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ABBREVIATIONS

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I. STUDIES IN INTERNATIONAL LAW AND ORGANIZATIONS The ICJ Chagos Archipelago Advisory Opinion and The Right to Self-Determination Rainer Hofmann, Cornelia Kirchbach Vienna Convention on the Law of Treaties and Treaties on Arms Control and Disarmament 21 Jan Ondřej, Magda Uxová Strange Case of the European Union’s position in the Council of Europe: more than an Observer, less than a Member State? 36 Emil Ruffer Head of State immunity in Triangular Relations. The Case of Al-Bashir before the ICC 47 Hanna Kuczyńska, Karolina Wierczyńska Ten years and one hundred of reviews of the United Nations sanctions Ombudsperson 64 Zuzana Trávničková Hybrid Threats to Energy Security: Perspectives of International Law 74 Birutė Pranevičienė, Violeta Vasiliauskienė II. INTERNATIONAL LAW AND EUROPEAN LAW The Fight Against Stereotypes as an Instrument of European Antidiscrimination Law 93 Harald Christian Scheu Enhanced Cooperation in the EU – the experience up to now and the potential for the future of the European Union 106 Magdaléna Svobodová Constitutional review and the Preliminary Ruling Procedure: Commentary on the CCB Decision of the Czech Constitutional Court 117 Václav Stehlík Measuring the ‘EU´ Clidean Distance between EU Law and the Hungarian Constitutional Court – Focusing on the Position of the EU Charter of Fundamental Rights 130 Ondrej Hamuľák – Márton Sulyok – Lilla Nóra Kiss Legal Professional Privilege in International, European and Czech Law 151 Michal Petr III. HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW The Court of Peers Lost in Time 167 Dalibor Jílek Reflections on the Topic of the Concept of Protection of Substantive Human Right to Environment in International Law 182 Juraj Jankuv 1

VII

The Human Rights of Migrant Workers in the Context of Contemporary International Migration Diana Cucos The Term “International Cooperation” in Regard to the Admission of Refugees from the Perpective of International Law

198

212

Markéta Křižáková IV. HUMAN RIGHTS OLDER PERSONS Human Rights of Older Persons in International Law

231

Veronika Bílková The Rights of the Elderly in the Case-Law of the Constitutional Court of the Czech Republic from the Perspective of Old-Age Pensions

248

Kateřina Šimáčková Human Right of Older Persons in the Context of the Case-law of the European Court of Human Rights

266

Alla Tymofeyeva V.

INTERNATIONAL NUCLEAR LAW Hurdles Towards the Pyramids of the Nuclear Age: Underground Repositories as an Enigma of International Nuclear Law Jakub Handrlica International Law and Liability for Nuclear Damages: New Perspectives – Old Fears Marianna Novotná Legal Regulation of Nuclear Medicine and Modern Goals of the Development of Energy Law Order Victoria V. Romanova VI. HEALTH LAW, ETHICS, AND HUMAN RIGHTS Conception of Reflective (Secondary) Damage and the Situation in the Czech Republic and Selected Other European Jurisdictions Petr Šustek Early Apology or Admission of Responsibility in Medical Malpractice Disputes Tomáš Holčapek The Role of Consensus in the Doctor-Patient Relationship under Italian Law Massimo Foglia Opening the Doors for Designer Babies? A Tension between the Geneticists and the Convention on Biomedicine Martin Šolc VII. INVESTMENT LAW, TRADE LAW AND PRIVATE INTERNATIONAL LAW EU-Singapore Investment Protection Agreement in the Light of the Opinion

285

298

313

321

335

346

359

383

Miriama Kiselyova

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The interplay of fields of international law in case of foreign investments affected by armed conflict

396

Petr Stejskal In search of the perfect denial of benefits clause

410

Martina Pohanková Responsibility of the state for the foreign judgements and foreign law (application of human rights standards in cross-border situations) Elena Júdová With or without Private International Law – critical commentary on the Czech case of recognition of foreign same-sex marriage Nicole Štýbnarová VIII. CZECH PRACTICE OF INTERNATIONAL LAW 71st Session of the International Law Commission Pavel Šturma Antarctica and the Czech Republic: Hosting the XLII Antarctic Treaty Consultative Meeting (ATCM) Martina Filippiová International social security coordination treaties from the Czech point of view Sandra Brožová The Czech Republic before the European Court of Human Rights Vít Alexander Schorm List of Ratified International Treaties which Entered into Force for the Czech Republic from 1st January 2018 till 31st December 2018 Veronika Bílková The Centre for International Humanitarian and Operational Law (CIHOL) established at the Palacký University in Olomouc Petr Stejskal / Martin Faix X. BOOK REVIEWS Business and Human Right [Pavel Šturma; Vinícius Almanda Mozetic (eds.) et al.] Monika Feigerlová Nové mezinárodní dohody na ochranu investic (Vladimír Balaš; Pavel Šturma) Ondřej Svoboda – Jan Kunstýř The Impact of Investment Treaty Law on Host States. Enabling Good Governance? (Mavluda Sattorova) Milan Beránek IX. SHORTER ARTICLES AND NOTES IIR Centre for International Law

421

435

451

462

467

475

484

491

493

497

501

503

Ondřej Svoboda

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Miesto a význam regionálnych súdnych orgánov v kontexte súčasného regionalizmu (Klučka, Ján et. al.) Ondrej Hamulák XI. SURVEY OF CZECH INTERNATIONAL LAW BIBLIOGRAPHY Z. Trávníčková

506

511

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PREFACE

Dear Readers, It is with great pleasure that I introduce the tenth anniversary of the Czech Yearbook of Public & Private International Law (CYIL). Volume 10 appears, as usual, in the autumn. This is most likely the right time for the readers of this Yearbook who are interested in the developments in international law and its codification. The Czech Yearbook was established by the Czech Society of International Law in 2010. It was done thanks to the Board and the members of this association of Czech international lawyers, both academics and practitioners, who felt a lacuna of such specialized journal or yearbook. Since 2014, the Czech Yearbook has been published by the new international publishers, RW&W, Science & New Media, Passau-Berlin-Praha, which also ensures, in cooperation with Süd Ost Service, its distribution in Germany and Western Europe. As you may know, the CSIL publishes the Yearbook both in printed and electronic versions (www.cyil.eu). Since 2015, the Czech Yearbook has been included in the Czech index of scholarly peer-reviewed journals (RVVI) and in the SCOPUS international database. Two years ago, Volume 8 made a new record in the history of CYIL, amounting to 660 pages. This growth of the Czech Yearbook ranks it among the larger publications of its kind in an international comparison. However, the size of the Yearbook also warrants some technical improvements, such as a larger page size and better quality of the paper and cover used for the printed version. In spite of the higher publishing costs, we are proud to announce that this publication is still available for free for members of the Czech Society of International Law (included in the membership fee) and on sale for a very reasonable price. The Czech Yearbook, in spite of its difficult beginnings, has succeeded to attract a sufficient number of authors and readers in the Czech Republic and abroad. It found its place among other similar publications on international law. In anticipation of the anniversary, I had the great honour and pleasure to present our publication at the seminar “Yearbooks in International Law: History, Function and Future”, organized in The Hague (26-27 September 2019) by the Netherlands Yearbook of International Law, celebrating in turn its 50 th anniversary. Therefore, I look with moderate optimism into the next decade when it comes to our Yearbook. As usual, Volume 10 (2019) presents a variety of studies and articles covering many issues of contemporary International and European law. The Yearbook first brings a number of studies on important developments, such as the Chagos advisory opinion of the ICJ or the decision of the ICC in the Jordan cooperation case, addressing respectively the right to self- determination and exceptions to immunity of a Head of State. Other contributions address, e.g. the special position of the European Union in the Council of Europe or ten years of reviews of the UN sanctions Ombudsperson. The readers will also find here many other traditional sections, including human rights in general and a thematic symposium on Human rights of older persons. Like last year, the CYIL also presents a section on International law and EU law with three the articles on a wide range of issues, including an article on European antidiscrimination

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law, enhanced cooperation in the EU and EU law in relation to constitutional review by the Constitutional Courts in the Czech Republic and Hungary. An important number of articles deal with international human rights law as well as international humanitarian law. This volume also includes special sections on International nuclear law and on Health, ethics and human rights. According to its tradition, the CYIL in its Volume 10 also heavily covers many aspects of private international law and international investment law, including the EU-Singapore Investment Agreement, the denial of benefits clause, or the interplay between the IIL and the law of armed conflicts. The Yearbook also covers the Czech practice of international law, in particular the Czech cases before the European Court of Human Rights. Moreover, the publication presents, as usual, topical information on the work of the UN International Law Commission in 2019, the list of treaties ratified by the Czech Republic, book reviews, and a survey of Czech international law bibliography. As usual, the authors of this publication come from both Czech and foreign institutions, who are from academia and legal practice. Compared to previous years, this volume includes more contributions of foreign professors and researchers, coming from or teaching in Austria, Hungary, Italy, Lithuania, Germany, Moldova, Poland, Slovakia, Russia, and the Ukraine. As to the Czech institutions involved, these include Charles University in Prague, Palacký University in Olomouc, Institute of Law of the Czech Academy of Sciences, Institute of International Relations, the University of Economics in Prague, the Ministry of Foreign Affairs, the Ministry of Industry and Trade, and the Ministry of Justice, as well as some private law firms. This publication appears thanks to a continuing financial subsidy to the Czech Society of International Law from the Council of Scientific Societies of the Czech Republic. We are also grateful for the generous financial support from the law firm Skils (Prague). We also wish that this volume of the Czech Yearbook will find many readers and we are already looking forward to new authors and new contributions for the next volume when we will enter the second decade of its existence. We are also grateful for any comments and suggestions on how to improve the quality of this journal.

Prof. Pavel Šturma Editor-in-Chief

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ABBREVIATIONS

ABM – Anti-Ballistic Missile Treaty AC – Appeals Chamber ICC AICHR – ASEAN Intergovernmental Commission on Human Rights

ASEAN – Association of South East Asian Nations ATCM – Antarctic Treaty Consultative Meeting BGB – German Civil Code BIOT – British Indian Ocean Territory BITs – bilateral investment treaties CAFTA – Central America Free Trade Agreement CAHDI – Committee of Legal Advisers on Public International Law CAT – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment CC – Italian Civil Code CCA – Czech Competition Authority CCB – Czechoslovak Commercial Bank CCC – Czech Constitutional Court CDDH – Steering Committee for Human Rights CEDAW – Convention on the Elimination of All Forms of Discrimination against Women CEF – Treaty on Conventional Armed Forces in Europe CEP – Committee on Environmental Protection CEPEJ – European Commission for the Efficiency of Justice CETA – EU-Canada Comprehensive Economic and Trade Agreement CFR – EU Charter of Fundamental Rights CIHOL – Centre for International Humanitarian and Operational Law CIL – Centre for International Law (IIR) CJEU – Court of Justice of the EU CM – Committee of Ministers (EU) ICMV – International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families CoE – Council of Europe COMNAP – Council of Managers of National Antarctic Programmes CRC – Convention on the Rights of the Child CRPD – Convention on the Rights of Persons with Disabilities CRRF – Comprehensive Refugee Response Framework ECJ – European Court of Justice ECHR– EuropeanConvention for the Protection of HumanRights and Fundamental Freedoms ECRI – European Commission against Racism and Intolerance

XIII

ECT – Energy Charter Treaty ECtHR – European Court of Human Rights EPPO – European Public Prosecutor’s Office EU – European Union EU/EC – European Union/ European Community EURATOM – European Atomic Energy Community FRA – EU Fundamental Rights Agency FTA – Free Trade Agreement GATS – General Agreement on Trade in Services GATT – General Agreement on Tariffs and Trade GRECO – Group of States against Corruption GSFM – Guarantee System of the Financial Market HCC – Hungarian Constitutional Court

HCCA – Act CLI of 2011 on the Hungarian Constitutional Court HUDOC – Human Rights Documentation (database of the ECtHR) IAEA – International Atomic Energy Agency IBC – UNESCO International Bioethics Committee ICC – International Criminal Court ICCPR – International Covenant on Civil and Political Rights ICERD– International Conventionon the Eliminationof All Forms of RacialDiscrimination ICESCR – International Covenant on Economic, Social and Cultural Rights ICJ – International Court of Justice ICS – Investment Court System ICSID – International Centre for Settlement of Investment Disputes IEA – International Energy Agency IEC – International Energy Charter IHL – international humanitarian law IHODCDB – International HydrographicOrganisation’s Data Center for Digital Bathometry

IHRL – international human rights law IIAs – international investment agreements

IIL – international investment law ILA – International Law Association ILC – International Law Commission ILO – International Labour Organization INF – Intermediate-Range Nuclear Forces Treaty INLEX – International Expert Group on Nuclear Liability IOM – International Organization for Migration IPA – EU-Singapore Investment Protection Agreement IRENA – International Renewable Energy Agency

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ISDS – investor-state dispute settlement ISIL – Islamic State of Iraq and the Levant LPP – legal professional privilege MONEYVAL – Committee of Experts on the Evaluation of Anti-Money Laundering

Measures and the Financing of Terrorism MoU – Memorandum of Understanding MPA – marine protected area

NAFTA – North American Free Trade Agreement NATO – North Atlantic Treaty Organization NIH – National Institutes of Health NPT – Treaty on the Non-Proliferation of Nuclear Weapons OECD – Organisation for Economic Co-Operation and Development OHCHR – Office of the United Nations High Commissioner for Human Rights OSCE – Organization for Security and Co-operation in Europe PETL – Principles of European Tort Law PIL – Public International Law PSC – Political and Security Committee (EU) PTC – Pre-Trial Chamber ICC SAC – Supreme Administrative Court of the Czech Republic T-CY – Convention Committee on Cybercrime TEU – Treaty on European Union TFEU – Treaty on the Functioning of the European Union TTIP – Transatlantic Trade and Investment Partnership TRIPS – Agreement on Trade-Related Aspects of Intellectual Property Rights T-SG – Governmental Committee of the European Social Charter UDHR – Universal Declaration of Human Rights UNCTAD – United Nations Conference on Trade and Development UNCITRAL – United Nations Commission on International Trade Law UNCLOS – United Nations Convention on the Law of the Sea UNHCR – UN High Commissioner for Refugees UNESCO – United Nations Educational, Scientific and Cultural Organization UNSC – United Nations Security Council USA – United States of America USSR – Union of Soviet Socialist Republics VCLT – Vienna Convention on the Law of Treaties UK – United Kingdom UN – United Nations

WHO – World Health Organization WTO – Word Trade Organization

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I. STUDIES

IN INTERNATIONAL LAW AND ORGANIZATIONS

CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION AND THE RIGHT TO SELF-DETERMINATION* Rainer Hofmann and Cornelia Kirchbach Abstract: This contribution presents the major aspects of the Advisory Opinion rendered by the International Court of Justice on 25 February 2019 in which it held that, having regard to international law, in particular the right to self-determination as constituting customary international law, the process of decolonization of Mauritius was not lawfully completed when that country acceded to independence in 1968, following the separation of the Chagos Archipelago, as such measure was not based on the free expression of the genuine will of the population moreover, the court held that the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible and that all UN Member States are under an obligation to co-operate with the UN in order to complete the decolonization of Mauritius. The contribution also discusses the possible impact of this Advisory Opinion on the right to self-determination and concludes that it considerably strengthens the relevance of the genuine will of the population concerned during a process of decolonization as it might vote in favour of maintaining close legal relations with the (former) colonial power. The Advisory Opinion constitutes also a recognition of the applicability of the right to self-determination outside the colonial context and of the relevance of the freely expressed genuine will of the population concerned. Resume : Tento příspěvek představuje hlavní aspekty posudku vydaného Mezinárodním soudním dvorem 25. února 2019, ve kterém rozhodl, s ohledem k mezinárodnímu prá- vu, a to zejména k právu na sebeurčení jakožto mezinárodnímu obyčejovému právu, že proces dekolonizace Mauriciu nebyl právoplatně naplněn, když země dosáhla nezávislosti v roce 1968, následné oddělení Čagoských ostrovů, jako takové nebylo založeno na svo- bodném vyjádření skutečné vůle dotyčného obyvatelstva; navíc, soud rozhodl, že Spoje- né Království má povinnost co nejdříve ukončit správu nad Čagoskými ostrovy a všechny Členské státy OSN mají závazek kooperovat s OSN za cílem dokončení dekolonizace Mau- riciu. Příspěvek dále pojednává o možném dopadu tohoto posudku na právo na sebeurčení a vyvozuje, že se tak podstatně posiluje relevance pravé vůle dotčeného obyvatelstva během procesu dekolonizace, jelikož může volit pro zachování úzkých právních vztahů s (bývalou) koloniální mocností. Posudek představuje také uznání aplikovatelnosti práva na sebeurčení mimo koloniální kontext a relevanci svobodně vyjádřené vůle dotčeného obyvatelstva. Key words: International Court of Justice; Advisory Opinion; right to self-determination; customary international law; freely expressed genuine will of population concerned; non- completion of process of decolonization; continued administration of territory; responsibility of the administering power; obligation of all UN Member States to co-operate with the UN; self-determination within and outside any colonial context. About the Authors : Professor Dr. Dr. Rainer Hofmann holds the Chair of Public Law, Public International law and European Law at Goethe University Frankfurt (Germany). He is Treasurer of the International Law Association and President of its German branch, the * This contribution is based on a lecture given on 25 April 2019 at Charles University Prague upon invitation by the Czech Society of International Law.

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RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ German Association of International Law. He sits on the Executive and the Management Board of the EU Fundamental Rights Agency representing the Council of Europe. He is a member of the Advisory Council on Public International Law of the German Ministry of Foreign Affairs and former President of the Advisory Committee on the Council of Europe Framework Convention for the Protection of National Minorities. Dr. Cornelia Kirchbach is research assistant at the chair of Public Law, Public International Law and European Law at Goethe University Frankfurt. She specializes in International Economic Law. Her dissertation thesis (“Das Recht auf gesundheitliche Regulierung im Investitionsschiedsverfahrensrecht”) was published by Nomos in 2019. A. I NTRODUCTION On 25 February 2019, the International Court of Justice (ICJ) handed down its Advisory Opinion, requested by the UN General Assembly, on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1968. In doing so, the Court added another – and from a legal point of view: very important – chapter to quite an old saga opposing Mauritius and the United Kingdom (UK); The question whether the process of decolonization of Mauritius was lawfully completed under international law notwithstanding this measure of separation which resulted in the Chagos Archipelago still being administered by the UK as ‘British Indian Ocean Territory’ (BIOT) and the population of the islands having been forcibly removed and being prevented from returning thereto. In the end, the Court concluded with an overwhelming majority of 13 votes to one that indeed this measure meant that the process of decolonization of Mauritius had not been lawfully completed; furthermore, it was of the opinion, again with this majority of 13 votes to one, that the UK was under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible and that all UN Member States were under an obligation to co-operate with the UN in order to complete the decolonization. However, at the time of writing this contribution, i.e. in September 2019, there are no reports indicating that any substantial progress had been made as regards the implementation of the second and third findings of the Court. This contribution will, firstly, summarize the major factual aspects of the case and discuss the legal findings of the Advisory Opinion. Secondly, it will examine whether and to what effect this Opinion will impact on the right to self-determination in colonial contexts. Although it is clear that the Court exercised a considerable amount of judicial self-restraint and did not make any explicit statements as to the right to self-determination, both as regards its substantive aspects and the procedural elements of its (potential) implementation, outside this colonial context, it is held that this Opinion carries some weight as concerns the right to self-determination in general. B. T HE M AJOR A SPECTS OF THE A DVISORY O PINION This section will begin with a brief presentation of the geography and general history of the Chagos Archipelago (I.) as well as the history of the case (II.). As always with a request for an Advisory Opinion, the Court had to deal with the questions relating to its jurisdiction and how it should exercise its discretion as to the rendering of such an Opinion (III). This contribution will continue by describing the ICJ’s legal assessment of the separation of the

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CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … BIOT from Mauritius (IV.) and its ensuing findings (V.). In the end, some aspects of some Separate Opinions will be discussed (VI.). I. Geography and General History of the Chagos Archipelago The Court set out by stating that the Republic of Mauritius consists of a group of islands in the Indian Ocean. It comprises approximately 1,950 sq km and is located about 900 km east of Madagascar. Chagos Archipelago lies about 2,200 km north-east of Mauritius and consists of a number of islands and atolls. The largest island is Diego Garcia, accounting for more than half of the archipelago’s total land area. 1 In 1814, France ceded its colony ofMauritius and all its dependencies (including Seychelles and Chagos but excluding Reunion) to the UK in the Treaty of Paris. 2 Subsequently, the UK administered the Chagos Archipelago as a dependency of the colony of Mauritius. 3 Mauritius in general was regarded as a non-self-governing territory. 4 In 1960, the UN General Assembly adopted resolution 1514 (XV) on the “Declaration on the Granting of Independence to Colonial Countries and Peoples”. In order to monitor its implementation, resolution 1654 (XVI) established a Special Committee on Decolonisation against the background of which the UK-Mauritius Decolonization Talks began. 5 Negotiations between theUKand the Premier of the colony ofMauritius regarding a detachment of theChagos Archipelago from Mauritius led to the “Lancaster House Agreement” of 23 September 1965, 6 pursuant to which the UK created a new colony, the “British Indian Ocean Territory” (BIOT), consisting of the Chagos Archipelago. 7 Since 1964, the UK and the USA had been discussing the possibilities of establishing US military facilities on the island of Diego Garcia, the major island of the Chagos Archipelago. In 1965, 1966 and 1967 the General Assembly adopted several resolutions on Mauritius. It expressed its concern about the detachment of the Chagos Archipelago and other islands from Mauritius for the purpose of establishing an American military base. 8 It further reiterated that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of colonial Territories and the establishment of military bases and installations in these Territories is incompatible with the purpose and principle of the Charter of the United Nations and of General Assembly resolution 1514 (XV).” 9 Finally, it determined that the dismemberment of Mauritius would violate its territorial integrity. 10 1 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (Feb. 25, 2019), [hereinafter Opinion], at paras. 25 et seq. 2 Id. at para. 27; Art. VIII Treaty of Paris. 3 Opinion at para. 28. 4 See Art. 73 Charter of the United Nations. 5 Opinion at para. 30. 9 Opinion at para. 35; “Question of American Samoa, Antigua, Bahamas, Bermuda, BritishVirgin Islands, Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and Ellice Islands, Grenada, Guam, Mauritius, Montserrat, New Hebrides, Niue, Pitcaim, St. Helena, St. Kitts-Nevis-Anguilla, St. Lucia, St. Vincent, Seychelles, Solomon Islands, Tokelau Islands, Turks and Caicos Islands and the United States Virgin Islands” UN GA Res. 2232 (XXI) of 20. 12. 1966. 10 Opinion at para. 39; “Question of American Samoa, Antigua, Bahamas, Bermuda, British Virgin Islands, Brunei, 6 Id. at para. 32. 7 Id. at para. 33. 8 Id. at para. 34; “Question of Mauritius” UN GA Res. 2066 (XX) of 16. 12. 1965.

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RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ Nevertheless, on 30 December 1966, the UK and the USA agreed on concluding a 50-years lease of Diego Garcia for the purpose of establishing a US military base. In 2016, this lease was renewed for 20 years. 11 As a result of this agreement, the inhabitants of the Chagos Archipelago (Chagossians) were, between 1967 and 1973, either prevented from returning to their homes or forcibly removed by the UK. 12 In the 1980s some compensation was paid to them. 13 In 1968 Mauritius became independent and shortly thereafter a member of the UN. 14 Since 1980 the Organisation of African Unity (OAU) considered the issue of the Chagos Archipelago and adopted a resolution in which it demanded that the islands were returned to Mauritius. 15 The same demand was made by the Mauritian Prime Minister at the thirty-fifth session of the UN General Assembly in 1980; however, to no avail. 16 Numerous initiatives have been filed by Chagossians before UK courts to achieve a right of return. A first success before the High Court of Justice in 2006 and the Court of Appeals in 2008 was reversed by the House of Lords in 2008. 17 In 2012, the European Court of Human Rights declared the complaint inadmissible as Chagossians had already agreed to receive compensation as final settlement and had thus lost their status as “victims” as precondition for the admissibility of individual complaints. 18 After the UK had announced the creation of a marine protected area (MPA) in and around the Chagos Archipelago in April 2010, Mauritius filed a claim against the UK pursuant to Art. 287 UNCLOS before an Arbitral Tribunal constituted under Annex VII of UNCLOS challenging the MPA on the basis that it allegedly violated Mauritius´ fisheries rights as agreed in the Lancaster House Agreement. 19 On 18 March 2015, the Arbitral Tribunal decided that the UK had breached its obligations under Article 2 (3), Article 56 (2), and Article 194 (4) UNCLOS when establishing the MPA without prior consultation with Mauritius and that the UK´s undertaking to return the Chagos Archipelago to Mauritius, when no longer needed for defense purposes, was legally binding. 20 Cayman Islands, Cocos (Keeling) Islands, Dominica, Gilbert and Ellice Islands, Grenada, Guam, Mauritius, Montserrat, NewHebrides, Niue, Pitcairn, St. Helena, St. Kitts-Nevis-Anguilla, St. Lucia, St. Vincent, Seychelles, Tokelau Islands, Solomon Islands, Turks and Caicos Islands and the United States Virgin Islands” UN GA Res. 2357 (XXII) of 19. 12. 1967. 11 Opinion at paras. 36, 51; “Agreement concerning the Availability for Defense Purposes of the British Indian Ocean Territory” between United Kingdom of Great Britain, Northern Ireland and the United States of America, 30. 12. 1966. 12 Opinion at para. 43. 13 Id. at paras. 117, 119. 14 Id. at para. 42. 15 Id. at paras. 45, 47; “Resolution on the Diego Garcia” OAU AHG Res. 99 (XVII) of July 1980; “Decision on Chagos Archipelago” OAU AHG Dec. 159 (XXXVI) of July 2000. 16 Opinion at para. 46. 17 Id. at paras. 121 et seq.; Regina (Bancoult) v. Secretary of State for Foreign and Commenwealth Affairs 22. 10. 2008. 18 Opinion at para. 128; Chagos Islanders v. United Kingdom, No. 35622/04, 11. 12. 2012. 19 Opinion at paras. 48 et seq.; Republic of Mauritius v. United Kingdom of Great Britain and Northern Ireland, PCA 2011-03, Award 18. 03. 2015. 20 Opinion at para. 50.

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CYIL 10 ȍ2019Ȏ

THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION …

II. History of the Case On 22 June 2017, the UN General Assembly adopted resolution 71/292 in which it requested an advisory opinion of the Court. 21 The Secretary-General officially communicated the decision taken by the General Assembly to the Court and requested it to render an advisory opinion on the following questions: a) “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066(XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of December 1967?” b) “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 liability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?” 22 The case attracted the interest of the international community in general with numerous members of the UN and the African Union filing written comments, commenting on them and later on participating in the oral hearings. 23 III. ICJ’s Jurisdiction and Exercise of Discretion In order to give an advisory opinion, the court must first consider whether it has jurisdiction to give this advisory opinion and whether there is any reason why it should decline to answer the question. 24 The Court’s jurisdiction in general is based on Article 65 (1) of its Statute. Under Art. 65(1), the Court may give an advisory opinion on any legal question put by an authorized body. 25 The authorization of the General Assembly derives from Article 96 (1) of the Charter, according to which “the General Assembly … may request the International Court of Justice to give an advisory opinion on any legal question.” 26 The legal questions presented to the Court concern, first, the question whether the process of decolonization of Mauritius was lawfully completed under international law and, second, what are the consequences arising from the continued administration of the Chagos Archipelago by the United Kingdom. 27 The Court dismissed the argument that the questions were not clearly formulated and referred more to the issue of sovereignty than decolonization 21 Id. at paras. 1, 53. 22 Id. at para. 1. 23 Id. at paras. 9 et seq., 73. 24 Id. at para. 54; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 232, para. 10; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 144. para. 13; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 412, para. 17. 25 Opinion at para. 55.

26 Id. at para. 56. 27 Id. at para.58.

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RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ because a “lack of clarity in the drafting of a question does not deprive the Court of jurisdiction.” 28 On the contrary, giving necessary clarifications by means of interpretation would be the Court ’ s responsibility. 29 Therefore the Court confirmed its jurisdiction to give an advisory opinion. But even if the Court has jurisdiction, it is not necessarily obliged to exercise it. It has a power of discretion to decline advisory opinions even if the conditions of jurisdiction are met in order to protect the integrity of the Court´s judicial function as the principle judicial organ of the UN 30 According to the consistent jurisprudence of the Court, it may only refuse an advisory opinion falling in its jurisdiction if there are “compelling reasons” to do so. 31 The Court examined four potential reasons to refuse the request for an advisory opinion. It began with the argument that there was no sufficient information on the factual issues available. 32 Based on the Advisory Opinions on Western Sahara and South West Africa it held that what is decisive is the question if there are sufficient information and evidence to enable the Court to come to a judicial conclusion, even if it is still necessary to make findings on relevant factual issues. 33 In the present case there was an abundance of material concerning the factual background and therefore sufficient material to give an advisory opinion. 34 Moreover, the advisory opinion must assist the General Assembly in the performance of its functions. 35 The Court stated that it is left to the requesting organ itself to determine the usefulness of an advisory opinion for the proper performance of its functions. 36 Therefore, the Court cannot decline to answer the questions posed merely on the ground that it would not assist the General Assembly in the performance of its functions. 37 Furthermore, answering the questions posed will not reopen the findings of the Arbitral Tribunal in the Arbitration regarding the Chagos Marine Protected Area that are binding on Mauritius and the United Kingdom. 38 On the one hand, the answers to the questions posed 28 Id. at para. 61; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 153-154, para. 38. 29 Id. 30 Opinion at paras. 63 et seq.; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 415-416, para. 29. 31 Opinion at para. 65; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), p. 156, para. 44; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 416, para. 30. 32 Opinion at paras. 69 et seq. 33 Id. at paras. 71 et seq.; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 28-29, para. 46; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Res. 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27, para. 40. 34 Opinion at paras. 73 et seq. 35 Id. at para. 78. 36 Id. at para. 76; Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010 (II), p. 417, para. 34. 37 Opinion at para. 78. 38 Id. at para. 82.

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CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … are not given to states but to the requesting organ itself. 39 On the other hand, the issues at hand are not the same as in the Arbitration regarding the Chagos MPA Area. 40 Finally, and most extensively, the Court dealt with the issue whether the questions posed did relate to a pending dispute between two states, namely the one between Mauritius and the UK regarding sovereignty over the Chagos Archipelago. 41 If that would have been the case, there would have been a compelling reason to decline giving an advisory opinion because of the principle that a state´s consent is necessary to submit a dispute to judicial settlement. 42 According to the Court, the questions only related to the issue of decolonization of Mauritius and not to a territorial dispute between two states. 43 The General Assembly had sought to receive assistance in the discharge of its functions relating to the decolonization of Mauritius which is an important issue for the General Assembly according to Article 1 (2) of the Charter. 44 The fact that Mauritius and the UK might have divergent views on this topic does not make it a bilateral dispute and does not prevent the Court from dealing with these questions. 45 In conclusion, there were no compelling reasons to decline the request for an advisory opinion. IV. Legal Assessment of the Separation of BIOT from Mauritius Before dealing with the questions posed by the General Assembly, the Court examined the factual circumstances surrounding the detachment of the Chagos Archipelago from Mauritius and the removal of the Chagossians from its territory. 1. The Factual Context In February 1964 the UK and the USA had commenced talks about the strategic use of the Chagos Archipelago for defence purposes to establish a military communication facility on Diego Garcia. 46 They agreed that the UK should be responsible for acquiring land and resettling the population so the area would be free from local civilian inhabitants while providing compensation to them at its own expense. 47 The best way to fulfill these obligations was, according to a Memorandum of the UK Foreign Office, to detach the Chagos Archipelago from Mauritius prior to its independence and place the islands under the administration of the UK. 48 In 1966, the UK and the USA concluded an Agreement for the establishment of a military base by the USA on the Chagos Archipelago. 49 39 Id. at para. 81; Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, para. 71. 40 Opinion at para. 81. 41 Id. at paras. 83 et seq. 42 Id. at para. 85; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 25, para. 33. 43 Opinion at para. 86. 44 Id. at paras. 86 et seq.; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 26-27, para. 39. 45 Opinion at paras. 89 et seq.; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Res. 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 24, para. 34. 46 Opinion at para. 94.

47 Id. at para. 94. 48 Id. at para. 95. 49 Id. at para. 97.

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RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ In 1964, the Governor of Mauritius had discussed the idea of detaching the Chagos Archipelago from Mauritius with the Mauritian Premier who declared that he preferred a long-term lease rather than a detachment. 50 When the Governor of Mauritius was instructed by the Colonial Office to inform the Mauritian Council of Ministers of the proposal to detach the Chagos Archipelago, the Governor informed the Colonial Office that the Council of Ministers preferred a long-term lease of the islands. 51 In the following months, the Mauritius Government stated again and again that it was not interested in a detachment of the islands while the UK expressed in return that it had the legal right to detach the Chagos Archipelagos without Mauritian consent. 52 Finally, on 5 November 1965, the Mauritius Council of Ministers confirmed its agreement to the detachment of the Chargos Archipelago on the conditions specified in the above-mentioned Lancaster House Agreement of 23 September 1965 which included special undertakings, for example the payment of compensations to Mauritius and the initiation of negotiations for a defense agreement between the UK and Mauritius. 53 Between 1967 and 1973 the Chagossians who had left the islands were prevented from returning thereto and the others forcibly removed. 54 As of 1971, it was unlawful for any person to enter or remain in the Chagos Archipelago without permission. 55 Mauritius accepted payment of £650,000 in full and final discharge of the UK´s undertaking to meet the cost of resettlement of persons displaced from the islands. 56 In 1982, another payment of £ 4 million was made on an ex gratia basis, without any admission of liability on the part of the UK which was disbursed to 1,344 islanders with the condition to renounce the right of return to the islands. 57 Under UK law, no person has the right of abode in the BIOT nor the right to enter and remain there without authorization. 58 Today, Chagossians live in several countries, including the UK and Mauritius. 59 2. The Questions put to the Court According to the Court, there was no need to reformulate the questions or to interpret them restrictively because it was in any event for the Court to state the law applicable. 60 a) Question (a) The Court first determined the relevant period of time and subsequently the applicable

rules of law and their content. 61 aa) Relevant period of time

Reference is made to the period from 1965 until 1968 in which the General Assembly situates the process of decolonization of Mauritius, the separation of the Chagos Archipelago

50 Id. at para. 100. 51 Id. at para. 101. 52 Id. at paras. 103 et seq. 53 Id. at paras. 108 et seq.; Paragraph 22 Lancaster House Agreement. 54 Opinion at para. 114. 55 Id. at para. 115; Immigration Ordinance 1971, 16.04.1971. 56 Opinion at para. 117. 57 Id. at paras. 119 et seq.

58 Id. at para. 124. 59 Id. at para. 131. 60 Id. at para. 137. 61 Id. at para. 139.

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CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … and the Mauritian independence. 62 However, this choice did not prevent the Court from taking into account the evolution of the law on self-determination since 1945, including resolution 1514 (XV) of 1960 as far as existence of a customary law character of the right to self-determination is concerned. 63 Insofar, the Court stressed that State practice and opinio juris , i.e. the acceptance of such practice as law (Article 38 of the Statute of the Court), are consolidated and confirmed gradually over time. 64 bb)Applicable international law The Court then determined the nature, content and scope of the right to self-determination applicable to the process of decolonization of Mauritius which had been a non-self-governing territory from 1946 onwards. It held that the right to self-determination, as a fundamental human right, had a broad scope of application. 65 For the purposes of the present case and in order to answer the questions posed by the General Assembly, the Court analyzed the right to self-determination in the specific context of decolonization. 66 According to the UN Charter, “respect for the principle of equal rights and self- determination of peoples” is a main purpose of the UN. 67 This includes that member states having responsibilities for non-self-governing territories are obliged to “develop self-government” of the peoples of such territoriest. 68 This is underlined by the fact that the Charter includes provisions enabling non-self-governing territories ultimately to govern themselves. 69 Moreover, the Court identified the point in time at which the right to self-determination became binding on all states as customary international law. 70 The Court recalled that the necessary components of customary international law are general State practice and opinio juris as set out in Article 38 of the Statute of the Court. According to the Court, these two elements are closely linked to each other. 71 Resolution 1514 (XV) of 1960 had clarified the content and scope of the right to self-determination and followed resolutions 637 (VII) of 1952, 738 (VIII) of 1953, 1188 (XII) of 1957. 72 Additionally, several non-self-governing territories had acceded to independence during that time. 73 As resolution 1514 (XV) had been adopted in the aforementioned context by 89 votes with only 9 abstentions and in view of the fact that some General Assembly resolutions have normative value, the Court concluded that resolution 1514 (XV) is of a declaratory character as concerns the status of the right to self-determination as customary law. 74 In addition to the context of its adoption, this assessment results from the normative wording of the resolution: “All peoples have the 62 Id. at para. 140. 63 Id. at para. 142. 64 Id. at para. 142. 65 Id. at para. 144. 66 Id. at para. 144. 67 Art. 1 (2) of the Charter. 68 Art. 73 of the Charter; Opinion at para. 146. 69 Chapter XI of the Charter; Opinion at paras. 147 et seq. 70 Opinion at para. 148. 71 Id. at para. 149; North Sea Continental Shelf, Judgement, I.C.J. Reports 1969, p. 44, para. 77. 72 Opinion at para. 150. 73 Id. at para. 150. 74 Id. at paras. 151 et seq.; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), p. 254-255, para. 70.

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