In dit document vind je een uitwerking van de in de hoorcolleges behandelde stof en de tijdens de werkgroepen behandelde stof van het vak public international law.
I love your summaries, because you write clearly, concisely and completely, but here the text overflows through the design and is impossible to read. I thought it was because of the site and I bought it anyway, but it was because of the document. Maybe you can change that? Other summaries of yours have the same problem.
By: paulawitlox • 1 year ago
Translated by Google
Hi Caro, thanks for letting me know about this issue. I'll adjust it!
The background of this case is the Cold War. The UK was fearful that its withdrawal of its colonies in the Indian
Ocean would create a power vacuum and that the Soviet Union would take over the power in this territory.
In 1965, there was the Lancaster House Agreement between the representatives of the colony of Mauritius and the
United Kingdom Government, regarding the detachment of the Chagos Archipelago from Mauritius.
In 1965, the British Indian Ocean Territory was established, this territory included the Chagos Archipelago.
Mauritius gained independence in 1968, presumably in exchange for agreeing to detach the Chagos Archipelago.
Between 1968 and 1973, the UK forcibly removed the Chagossians from their homelands and sent them to
Mauritius and the Seychelles.
Fundamentals of International Dispute Settlement
The ICJ (International Court of Justice) in The Hague is the principle judicial organ of the UN.
There are two basic types of adjudicatory bodies: standing/permanent and ad-hoc. The ICJ is a permanent body. It
has general competence. It has the longest line of jurisprudence and therefore has made a lot of contributions to
international case law. By ad-hoc bodies we mean temporary tribunals. They consist of five arbitrators, and it
only exists for that one specific dispute.
There are several ways in which the ICJ can have jurisdiction over a case:
Consentious jurisdiction: Parties have to consent to the court delivering a judgement that will later on bind them.
There has to be explicit consent (not just being part of the UN).
1. Special agreement (ICJ Statute Art. 36(1)): a treaty by which two or more states agree to settle a dispute a
certain way. (not specific to the ICJ!)
2. Compromissory clause (ICJ Statute Art 36(1)): a provision in a treaty (bilateral, multilateral). Forward-
looking, they anticipate that in the future there might be a dispute about a treaty. (not specific to the
ICJ!)
3. Optional clause declaration (ICJ Statute Art. 36(2)): states that are party at the Statute of the ICJ can at any
time declare that they accept as compulsory, without special agreement, in relation to any state
accepting the same obligation, the jurisdiction of the ICJ (specific for the ICJ!).
4. Forum porogatum (ICJ Rules Art 38(5)): If a State has not recognized the jurisdiction of the Court at the
time when an “application instituting proceedings” is filed against it, that State has the possibility of
subsequently accepting such jurisdiction to enable the Court to entertain the case: The Court thus has
jurisdiction as of the date of acceptance under the forum porogatum rule. (also specific for the ICJ)
Advisory Jurisdiction (UN Charter Art. 96): The ICJ can advise about a legal question. It is not meant to settle a live-
dispute. Advises are not binding.
Discretion to decline (ICJ Statute Art. 65): “The court may…” The ICJ can decline giving an opinion on something
he does have jurisdiction over. We can say this is very exceptional, because the ICJ has never exercised this
power until now.
The ICJ’s advisory jurisdiction in Mauritius AO
In this advisory opinion, the court treats two main questions.
Firstly: “Was the decolonization process of Mauritius lawfully completed at the time, with specific relevance to the Chagos Archipelago?”
,Secondly (regarding State responsibility): “What are the legal consequences of the UK’s continued administration of the Chagos
Archipelago?”
We should take a look at why it is that the ICJ has advisory jurisdiction in this case. Additionally, it is important to
see why the court did not exercise its discretion to decline in this case.
In paragraphs 55-62 the court is treating the question of its jurisdiction:
• (55) The Court’s jurisdiction to give an advisory opinion is based on Article 65, paragraph 1, of its Statute
which provides that “the Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United Nations to make such
a request”.
• (56) The General Assembly is competent to request an advisory opinion by virtue of Article 96, paragraph
1, of the Charter, which provides that “the General Assembly . . . may request the International Court of
Justice to give an advisory opinion on any legal question”.
• (57) The Court now turns to the requirement in Article 96 of the Charter and Article 65 of its Statute that
the advisory opinion must be on a “legal question”.
o The first question is whether the process of decolonization of Mauritius was lawfully completed
having regard to international law when it was granted independence following the separation of
the Chagos Archipelago.
o The second question relates to the consequences arising under international law from the
continued administration by the United Kingdom of the Chagos Archipelago.
• (58-59) The Court considers that a request from the General Assembly for an advisory opinion to examine
a situation by reference to international law concerns a legal question. It therefore concludes that the
request has been made in accordance with the Charter and that the two questions submitted to it are legal
in character.
• (60) One of the participants in the present proceedings has argued that the Court lacks jurisdiction because
the questions asked “ostensibly relate to one topic, but . . . in fact relate to a different topic”. Moreover, it
contended that there is no “exact statement of the question upon which an opinion is required” within the
meaning of Article 65, paragraph 2, of the Statute. According to the same participant, the questions put to the
Court do not reflect the real issues, which relate to sovereignty rather than decolonization.
à(60-61) The Court is of the view that the arguments raised in these proceedings in relation to Article 65,
paragraph 2, of its Statute do not deprive it of jurisdiction to render the advisory opinion. When faced with
similar arguments in its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, the Court observed that “lack of clarity in the drafting of a question does
not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and
such necessary clarifications of interpretation have frequently been given by the Court.” The Court will
examine these arguments in paragraphs 135 to 137 below. The Court accordingly has jurisdiction to give
the advisory opinion requested by resolution 71/292 of the General Assembly.
In respect to the question on the court not exercising its discretion to decline, the court argues as follows in
paragraphs 63-68:
• (63) The fact that the Court has jurisdiction does not mean, however, that it is obliged to exercise it: “The
Court has recalled many times in the past that Article 65, paragraph 1, of its Statute, which provides that
‘The Court may give an advisory opinion . . .’, should be interpreted to mean that the Court has a
discretionary power to decline to give an advisory opinion even if the conditions of jurisdiction are met.”
• (65) The Court is, nevertheless, mindful of the fact that its answer to a request for an advisory opinion
“represents its participation in the activities of the Organization, and, in principle, should not be refused”
Thus, the consistent jurisprudence of the Court is that only “compelling reasons” may lead the Court to
refuse its opinion in response to a request falling within its jurisdiction
• (66) The Court must satisfy itself as to the propriety of the exercise of its judicial function in the present
proceedings. It will therefore give careful consideration as to whether there are compelling reasons for it to
decline to respond to the request from the General Assembly.
• (67) Some participants in the present proceedings have argued that there are “compelling reasons” for the
Court to exercise its discretion to decline to give the advisory opinion requested. Among the reasons raised
by these participants are that, first, advisory proceedings are not suitable for determination of complex and
disputed factual issues; secondly, the Court’s response would not assist the General Assembly in the
performance of its functions; thirdly, it would be inappropriate for the Court to re-examine a question
already settled by the Arbitral Tribunal constituted under Annex VII of UNCLOS in the Arbitration
regarding the Chagos Marine Protected Area; and fourthly, the questions asked in the present proceedings
relate to a pending bilateral dispute between two States which have not consented to the settlement of that
dispute by the Court.
, In the lecture, we specifically discussed the last question. Was the court dealing with a live dispute while it had no
contentious jurisdiction? By giving an advisory opinion, the ICJ could purposely circumvent the lack of consent (The
UK had refused to comply to the ICJ’s jurisdiction here). For this question, we look at paragraphs 83-91:
• (83) Some participants have argued that there is a bilateral dispute between Mauritius and the United
Kingdom regarding sovereignty over the Chagos Archipelago and that this dispute is at the core of the
advisory proceedings. According to those participants, to determine the issues in the present proceedings,
the Court would be required to arrive at conclusions on certain key points such as the effect of the 1965
Lancaster House agreement. Certain participants have contended that the dispute over sovereignty, which
arose in the 1980s in bilateral relations, is the “real dispute” that motivates the request. These participants
have further contended that Mauritius’ claims in the Arbitration regarding the Chagos Marine Protected
Area revealed the existence of a bilateral territorial dispute between that State and the United Kingdom.
Therefore, to render an advisory opinion would contravene “the principle that a State is not obliged to
allow its disputes to be submitted to judicial settlement without its consent”.
• (84) Other participants have maintained that there is no territorial dispute between the United Kingdom
and Mauritius that would prevent the Court from giving the advisory opinion requested. In particular, they
have argued that the questions put to the Court by the General Assembly concern issues located in a
broader frame of reference, that is, the law of decolonization and the exercise of the right to self-
determination. Some participants have argued that the dispute between Mauritius and the United Kingdom
relating to territorial sovereignty over the Chagos Archipelago could neither have arisen independently nor
could it be detached from the question of decolonization. Other participants have contended that the
United Kingdom, having undertaken in 1965 to return the Chagos Archipelago to Mauritius once it was no
longer needed for defence purposes, recognized that the archipelago belonged to Mauritius, and
accordingly there could be no territorial dispute.
• (85) The Court recalls that there would be a compelling reason for it to decline to give an advisory opinion
when such a reply “would have the effect of circumventing the principle that a State is not obliged to allow
its disputes to be submitted to judicial settlement without its consent”
• (86) The Court notes that the questions put to it by the General Assembly relate to the decolonization of
Mauritius. The General Assembly has not sought the Court’s opinion to resolve a territorial dispute
between two States. Rather, the purpose of the request is for the General Assembly to receive the Court’s
assistance so that it may be guided in the discharge of its functions relating to the decolonization of
Mauritius. The Court has emphasized that it may be in the interest of the General Assembly to seek an
advisory opinion which it deems of assistance in carrying out its functions in regard to decolonization: “The
object of the General Assembly has not been to bring before the Court, by way of a request for advisory
opinion, a dispute or legal controversy, in order that it may later, on the basis of the Court’s opinion,
exercise its powers and functions for the peaceful settlement of that dispute or controversy. The object of
the request is an entirely different one: to obtain from the Court an opinion which the General Assembly
deems to be of assistance to it for the proper exercise of its functions concerning the decolonization of the
territory.”
• (87) The Court observes that the General Assembly has a long and consistent record in seeking to bring colonialism to an
end. From the earliest days of the United Nations, the General Assembly has played an active role in matters
of decolonization. Article 1, paragraph 2, of the Charter establishes, as one of the purposes of the United
Nations, respect for the principle of equal rights and self-determination of peoples. In this regard, the
Court notes that Chapter XI of the Charter of the United Nations relates to non-self-governing territories
and that the first article in that Chapter, Article 73, provides that administering powers of non-self-
governing territories are required, inter alia, to “transmit regularly to the Secretary-General for information
purposes . . . statistical and other information of a technical nature relating to economic, social, and
educational conditions in the territories for which they are respectively responsible”. This information was
considered by the Fourth Committee (Special Political and Decolonization Committee) of the General
Assembly and included in its reports. The work of the Committee continued until 1961 when the
Committee of Twenty-Four was established.
• (88 -91) The Court therefore concludes that the opinion has been requested on the matter of
decolonization which is of particular concern to the United Nations. The issues raised by the request are
located in the broader frame of reference of decolonization, including the General Assembly’s role therein,
from which those issues are inseparable.
Moreover, the Court observes that there may be differences of views on legal questions in advisory
proceedings. However, the fact that the Court may have to pronounce on legal issues on which divergent
views have been expressed by Mauritius and the United Kingdom does not mean that, by replying to the
request, the Court is dealing with a bilateral dispute.
In these circumstances, the Court does not consider that to give the opinion requested would have the
effect of circumventing the principle of consent by a State to the judicial settlement of its dispute with
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