CYIL vol. 10 (2019)

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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