CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ expression of the will of the populations concerned in disputes relating to the territorial integrity of non-self-governing territories. 1. The principle of non-circumventing the absence of consent to submit a dispute to the Court In the more recent past, there is a considerable increase of situations brought before the ICJ by the UN General Assembly requesting the Court to give an Advisory Opinion when it might be argued that in reality the Court is asked to deal with a bilateral dispute, in the present case between the UK and Mauritius about the sovereignty over the Chagos Archipelago. There is, indeed, a certain risk that a State which – as Mauritius in the present case – musters the support of a large number of UN Member States might gain indirectly access to the Court which it would not get bilaterally as the other party of the dispute, the UK, would not consent to having the issue being submitted to the Court. This issue, usually referred to as the principle of non-circumvention, is taken up by Judge Tomka in his Declaration: In full consistency with his prior position in the ICJ Advisory Opinion on Kosovo 112 – a position which was shared by Judge Keith in his Separate Opinion 113 – Judge Tomka argues that the Court should have declined giving an Opinion as the General Assembly had not dealt with the issue of the Chagos Archipelago for half a century, i.e. between 1969 and the request for this Advisory Opinion this issue had not been on the agenda of either the General Assembly nor of the Special Committee on Decolonization while all these years there had been a dispute between Mauritius and the UK over the Chagos Archipelago. 114 He is, indeed, concerned that “advisory proceedings have become a way of bringing before the Court contentious matters, with which the General Assembly had not been dealing prior to requesting an opinion upon an initiative taken by one of the parties to the dispute”. 115 In this concern, he is joined by Judge Donoghue in her Dissenting Opinion which, in fact, is only dealing with a development to make the “advisory proceedings available as a fall-back mechanism to be used to overcome the absence of consent to jurisdiction in contentious cases” which she considers as undermining the integrity of the Court’s judicial function”. 116 While it may be held that the Court actually managed to get around this problem by never addressing the issue of the sovereignty over the Chagos Archipelago but limiting itself to strictly answering the question submitted which, indeed, was about whether the process of decolonization of Mauritius had been lawfully completed, there remains, of course, the potential of a ‘slippery slope’ – development which eventually might further erode the distinction between the judicial function of the Court, based on the mutual consent of the Parties before it, and its advisory function to be exercised under the conditions provided for in Article 96 of the UN Charter. As there clearly is the increasing risk of successfully disguising a fundamentally bilateral dispute as a general legal question by focusing on such general legal questions which, at least to some extent, underlie every bilateral dispute, it is interesting to note that Vice-President Xue and Judges Gevorgian and Iwasawa make considerable efforts, in their respective 112 ICJ, Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo, ICJ Reports 2010, pp. 454-456. 113 Id. At p. 489. 114 Declaration of Judge Tomka , para. 4. 115 Id. At para. 2. 116 Dissenting Opinion of Judge Donoghue , at para. 23.

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