CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ under the authority of the other party, the UK. 98 In such situations, heightened scrutiny should be given to the issue of consent in a situation where a part of a non-self-governing territory is separated to create a whole new colony. 99 In applying these principles to the case of the detachment of BIOT, in particular the conditions under which the Prime Minister of Mauritius consented to it, the Court considered that the detachment was not based on the free and genuine expression of the will of the people concerned. 100 In light of these findings, the Court concluded – and, thus, answered question (a) posed to it – that, as a result of the unlawful detachment and the incorporation of the Chagos Archipelago into a new colony, the process of decolonization of Mauritius was not lawfully completed when it acceded to independence in 1968. 101 3. Question (b) Addressing question (b) posed to it, the Court continued by examining the consequences arising from the UK´s continued administration of the Chagos Archipelago under international law applicable at the time the opinion is rendered. 102 As a consequence of the decision that the decolonization of Mauritius was not conducted in a manner consistent with the right of peoples to self-determination, the UK’s continued administration of the Chagos Archipelago constitutes a wrongful act of a continuing character entailing the international responsibility of the UK. 103 Therefore, the UK is under a legal obligation to bring “an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination.” 104 In exercising its functions relating to decolonization, it is up to the General Assembly to decide on the modalities for ensuring the completion of the decolonization. 105 The Court continued holding that, since respect for the right to self-determination is an obligation erga omnes all Member States must co-operate with the UN to implement the modalities chosen by the General Assembly. 106 The same obligation results from the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. 107 103 Id. at para. 177; the Court refers to its judgements in Corfu Channel (United Kingdom v. Albania), Merits, Judgement, I.C.J Reports 1949, p. 23; and Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgement, I.C.J. Reports 1997, p. 38, para. 47; as well as to Article 1 of the Articles on Responsibility of States for Internationally Wrongful Acts. 104 Opinion at para. 178. 105 Id. at para. 179; the Court explicitly referred to its Advisory Opinion “Accordance with the International Law of the Unilateral Declaration of Independence in respect of Kosovo”, Advisory Opinion, I.C.J. Reports 2010 (II), p. 421, para. 44. 106 Opinion at para. 180; the Court explicitly referred to its judgments in East Timor (Portugal v. Australia), Judgement, I.C.J. Reports 1995, p.102, para. 29; and in Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgement, I.C.J. Reports 1970, p. 32, para. 33. 107 Opinion at para. 180; “Declaration on Principles of International Law concerning Friendly Relations and 98 Opinion at para. 172. 99 Id. at para. 172. 100 Id. at para. 172. 101 Id. at para. 174. 102 Id. at para. 175.

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