CYIL vol. 10 (2019)

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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