CYIL vol. 10 (2019)

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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