220
lawful—sovereignty of the United Kingdom on the Islands. On the contrary, since
the 1980s Mauritius has alleged that the 1965 detachment of the Chagos Archipelago
was unlawful. It is chiefly on the basis of the self-determination principle, rather
than the United Kingdom’s commitment to return the Chagos Archipelago, that
Mauritius claims sovereignty over the Islands.
126
In this connection, the General Assembly’s request for an advisory opinion of the
International Court of Justice (ICJ) on the legal consequences of the separation of
the Chagos Archipelago from Mauritius is noteworthy.
127
The advisory opinion was
requested by means of a resolution adopted following the Award in the Chagos
Marine Protected Area Arbitration.
128
Needless to say, the submission of the written
statements and comments, the oral proceedings, and the issue of the advisory
opinion—if any—
129
must be awaited in order to comprehensively assess the legacy
126 As a consequence, it is difficult to join Colson and Vohrer (2015), p. 845, and Weckel (2015) in
the assumption that, in claiming sovereignty over the Chagos Archipelago, Mauritius will rely
on—or, in any event, decisively rely on—the Arbitral Tribunal’s finding that the United Kingdom’s
undertaking to return the islands to Mauritius was legally binding.
127 See UN General Assembly resolution 71/292, 22 June 2017. In particular, the ICJ was requested
to render an advisory opinion on the questions whether the process of decolonisation of Mauritius
had been lawfully completed when Mauritius was granted independence in 1968, following the
separation of the Chagos Archipelago from Mauritius, and what consequences arose from the
United Kingdom administration of the Chagos Archipelago under international law.
128 Indeed, according to Di Lieto (2017), p. 303, it is the disappointment with the Award that
induced Mauritius to ask the General Assembly to include an agenda item on the request for an ICJ
advisory opinion on the legal consequences of the separation of the Chagos Archipelago from
Mauritius.
129 Pursuant to Article 65 of the ICJ Statute “[t]he Court may give an advisory opinion …” (emphasis added) and hence, in theory, it also may not. In actual fact, the ICJ has never refused to render
an advisory opinion hitherto. Solely in the case concerning the Status of Eastern Carelia, did the
Permanent Court of International Justice (PCIJ) decline to give an advisory opinion on the merits
(Advisory Opinion, 23 July 1923). But see Yee (2018), p. 641, who concludes, with regard to the
request for an ICJ advisory opinion on the legal consequences of the separation of the Chagos
Archipelago, that “[i]f there is a case for the Court to apply Eastern Carelia and show the world
that its frequent reference to it in the long line of the advisory cases is not just a lip service, this is
the one”. According to the Author, rendering an advisory opinion on the separation of the Chagos
Archipelago would be at odds with the consent principle, as it was in the Status of Eastern Carelia
case: no State is obliged to have its bilateral disputes submitted for judicial settlement without its
consent. Indeed, as the record of the General Assembly meeting on the request for an ICJ advisory
opinion on the separation of the Chagos Archipelago shows (A/71/PV.88), some States affirmed
that what was at stake was a purely bilateral dispute between the United Kingdom and Mauritius
and that rendering an advisory opinion would consequently be tantamount to allowing to circumvent the consent principle. In this connection, see the statements of Canada (meeting record, p. 20),
Croatia (ibidem, p. 16), France (ibidem, pp. 16–17), Germany (ibidem, p. 18), Israel (ibidem,
p. 21), New Zealand (ibidem, p. 19), Sweden (ibidem), the United Kingdom (ibidem, pp. 11 and
16), and the United States (ibidem, pp. 13–14 and 16). For an overview of the problem of the consent principle as a bar to the ICJ advisory jurisdiction, see Papa (2006), pp. 41–45, observing that,
in the Status of Eastern Carelia case, the PCIJ declined to render an opinion on the merits not just
owing to the existence of a dispute between Finland and Russia, but, from a broader perspective,
because Russia was not even a member State of the League of Nations. According to the Author,
the ICJ has attached an increasingly moderate importance to the consent principle in assessing its
advisory jurisdiction (ibidem, pp. 42–43).
M. Gervasi
lawful—sovereignty of the United Kingdom on the Islands. On the contrary, since
the 1980s Mauritius has alleged that the 1965 detachment of the Chagos Archipelago
was unlawful. It is chiefly on the basis of the self-determination principle, rather
than the United Kingdom’s commitment to return the Chagos Archipelago, that
Mauritius claims sovereignty over the Islands.
126
In this connection, the General Assembly’s request for an advisory opinion of the
International Court of Justice (ICJ) on the legal consequences of the separation of
the Chagos Archipelago from Mauritius is noteworthy.
127
The advisory opinion was
requested by means of a resolution adopted following the Award in the Chagos
Marine Protected Area Arbitration.
128
Needless to say, the submission of the written
statements and comments, the oral proceedings, and the issue of the advisory
opinion—if any—
129
must be awaited in order to comprehensively assess the legacy
126 As a consequence, it is difficult to join Colson and Vohrer (2015), p. 845, and Weckel (2015) in
the assumption that, in claiming sovereignty over the Chagos Archipelago, Mauritius will rely
on—or, in any event, decisively rely on—the Arbitral Tribunal’s finding that the United Kingdom’s
undertaking to return the islands to Mauritius was legally binding.
127 See UN General Assembly resolution 71/292, 22 June 2017. In particular, the ICJ was requested
to render an advisory opinion on the questions whether the process of decolonisation of Mauritius
had been lawfully completed when Mauritius was granted independence in 1968, following the
separation of the Chagos Archipelago from Mauritius, and what consequences arose from the
United Kingdom administration of the Chagos Archipelago under international law.
128 Indeed, according to Di Lieto (2017), p. 303, it is the disappointment with the Award that
induced Mauritius to ask the General Assembly to include an agenda item on the request for an ICJ
advisory opinion on the legal consequences of the separation of the Chagos Archipelago from
Mauritius.
129 Pursuant to Article 65 of the ICJ Statute “[t]he Court may give an advisory opinion …” (emphasis added) and hence, in theory, it also may not. In actual fact, the ICJ has never refused to render
an advisory opinion hitherto. Solely in the case concerning the Status of Eastern Carelia, did the
Permanent Court of International Justice (PCIJ) decline to give an advisory opinion on the merits
(Advisory Opinion, 23 July 1923). But see Yee (2018), p. 641, who concludes, with regard to the
request for an ICJ advisory opinion on the legal consequences of the separation of the Chagos
Archipelago, that “[i]f there is a case for the Court to apply Eastern Carelia and show the world
that its frequent reference to it in the long line of the advisory cases is not just a lip service, this is
the one”. According to the Author, rendering an advisory opinion on the separation of the Chagos
Archipelago would be at odds with the consent principle, as it was in the Status of Eastern Carelia
case: no State is obliged to have its bilateral disputes submitted for judicial settlement without its
consent. Indeed, as the record of the General Assembly meeting on the request for an ICJ advisory
opinion on the separation of the Chagos Archipelago shows (A/71/PV.88), some States affirmed
that what was at stake was a purely bilateral dispute between the United Kingdom and Mauritius
and that rendering an advisory opinion would consequently be tantamount to allowing to circumvent the consent principle. In this connection, see the statements of Canada (meeting record, p. 20),
Croatia (ibidem, p. 16), France (ibidem, pp. 16–17), Germany (ibidem, p. 18), Israel (ibidem,
p. 21), New Zealand (ibidem, p. 19), Sweden (ibidem), the United Kingdom (ibidem, pp. 11 and
16), and the United States (ibidem, pp. 13–14 and 16). For an overview of the problem of the consent principle as a bar to the ICJ advisory jurisdiction, see Papa (2006), pp. 41–45, observing that,
in the Status of Eastern Carelia case, the PCIJ declined to render an opinion on the merits not just
owing to the existence of a dispute between Finland and Russia, but, from a broader perspective,
because Russia was not even a member State of the League of Nations. According to the Author,
the ICJ has attached an increasingly moderate importance to the consent principle in assessing its
advisory jurisdiction (ibidem, pp. 42–43).
M. Gervasi