CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … Furthermore, the Court held that the resettlement of Mauritian nationals, including those of Chagossian origin on the Chagos Archipelago should be addressed by the General Assembly during the process of completing the decolonization of Mauritius. 108 Therefore, in response to question (b) the Court concluded “that the United Kingdom has an obligation to an end its administration of the Chagos Archipelago as rapidly as possible, and that all Member States must co-operate with the United Nations to complete the decolonization of Mauritius. 109 V. The Judgement The Court found unanimously that it had jurisdiction to give the advisory opinion requested; decided, by 12 votes to two, to comply with the request for an advisory opinion (dissenting: Judges Tomka and Donoghue); was of the opinion, by 13 votes to one, that having regard to 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 (Judge Donoghue against); was of the opinion, by 13 votes to one, that the United Kingdom is under an obligation to bring to an end its administration of the Chagos Archipelago as rapidly as possible (Judge Donoghue against); and was of the opinion, by 13 votes to one, that all Member States are under an obligation to co-operate with the United Nations in order to complete the decolonization of Mauritius (Judge Donoghue against). Vice-President Xue and Judges Tomka, Abraham, Gevorgian, Salam and Iwasawa appended declarations to the Advisory Opinion while Judges Cançado Trinidade, Gaja, Sebutinde and Robinson appended separate opinions and Judge Donoghue appended a dissenting opinion to the Advisory Opinion. 110 VI. Some Aspects of Some Separate Opinions Within the framework of this contribution, it is impossible to present all the aspects of all these declarations and separate and dissenting opinions. However, there are two issues which in the present authors’ opinion deserve to be referred to: First, the question as to whether by giving the requested Advisory Opinion, the Court did not respect the rule established in the Western Sahara Advisory Opinion 111 that an Advisory Opinion must not be given if it would have the effect of circumventing the lack of the consent of one of the parties to a dispute, here the UK, to adjudicate such a bilateral dispute; and, second, the relevance of the free

Co-operation among States in accordance with the Charter of the United Nations” UN GA 2625 (XXV) of 24. 10. 1970. 108 Opinion at para. 181.

109 Id. at para. 182. 110 Id. at para. 183. 111 ICJ, Advisory Opinion, Western Sahara, ICJ Reports 1975, p. 25.

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