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Public International Law – lectures
The Chagos Archipelago islands (Advisory Opinion by ICJ)
Background: Facts of this case unfolded in the 1960’s during the Cold War between the US and the
USSR. This also unfolded amid a wave of decolonization around the world. International law
played an important role in facilitating colonization as well as in the process of
decolonization (1950s and 1960s). The UK feared that its withdrawal from its colonies in the
Indian Ocean would create a regional power vacuum and that it would be filled by the Soviet Union.
In 1964 the UK and the US conducted a survey of the region (Indian ocean) with the purpose of
identifying an ideal site for a US (strategic)military base to help prevent this power vacuum. Diego
Garcia is part of the Chagos Islands and was identified as an ideal location (in the middle of the Indian
ocean), so it became the military base. This was a remote dependency of the colony of Mauritius, so of
a colony of the UK. There was a distance of approximately 2.200 km between the islands and
Mauritius.
In 1965 the UK government and the Mauritian Council of Ministers concluded the Lancaster House
Agreement; they would separate the Chagos Archipelago from the rest of Mauritius, prior to Mauritius
becoming independent (1968). The CoM of Mauritius was meant to be a representative body, sort of
like a parliament. In reality Mauritius was still a colony at the time, so it didn’t exercise real
authority/real power (Uk government really had all the power). Not a real agreement with consent
from the Mauritius people. Consent by the CoM was obtained with considerable pressure. The
agreement was linked to the decision to grant independence. The UK government said: we’ll give you
independence if you give us Chagos. Number of different conditions: one of which the UK returns
Chagos when it’s no longer needed for defense purposes.
In 1965 the UK established the British Indian Ocean Territory (BIOT). Incorporating the Chagos
Archipelagos. In 1966 the US and the UK concluded a treaty regarding the use of Diego Garcia by the
United States as a military base. Chagosians were then forcibly removed from the islands including
Diego Garcia and they have been prohibited from returning ever since then (1968-1973). In the 1980’s
the Mauritian government began demanding the return of the Chagos Archipelago on the grounds that
it never gave valid consent to its detachment.
Post-Cold War Diego Garcia has continued to be used by the US, including as a base for flights for
transporting terror suspects in what is known as extraordinary renditions (post 2001); refers to the
extrajudicial transfer of suspects outside of the law for the purpose of circumventing laws of
interrogation, Torture and detention.
Fundamentals of international dispute settlement
Disputes are a fairly normal aspect of international relations. There is no general obligation to resolve
disputes, states are perfectly free to not resolve their own disputes. There are also non-binding forms
of dispute settlement including negotiation, mediation, conciliation and enquiry (art. 33 UN Charter).
We focus on judication: when a court renders a binding judgement based on the law.
Types of adjudicatory bodies that exist =
- Standing (permanent) bodies: The ICJ is a standing permanent court. The ICJ is the
principal judicial organ of the UN. It has a bench of judges, there always ready to hear
a dispute that is submitted to the court. The judges (usually 15) consist of
individuals who have been appointed for fixed terms; ICJ 9 years. It has
competence to deal with the entire field of public international law; not
limited to particular sub areas. Also: long line of jurisprudence. We often
count along the jurisprudence the cases decided by its predecessor.
- Ad hoc (temporary) bodies: Arbitration tribunals are temporary by definition.
Arbitrators come together to settle a particular dispute/set of disputes and
once that’s done the tribunal no longer exists. In interstate cases we
usually see tribunals that consist of 5 arbitrators. In this course: Arctic
Sunrise and The South China Sea arbitration.
,International Court of justice jurisdiction. 2 types: contentious and advisory
-Contentious jurisdiction of the ICJ: Most of the time the ICJ is busy with contentious cases
concerning legal disputes between two or more states. The court doesn’t have jurisdiction on disputes
between a state and an individual or company. The judgments are binding on the parties, parties have
to comply. Parties have to consent to the Court’s jurisdiction in contentious cases
and there are certain methods on how consent can be given here:
- Special agreement ICJ statute art. 36(1): a small treaty that states conclude in order to refer
their dispute to the ICJ or arbitration tribunal. Not the words ‘special agreement’,
but the jurisdiction of the court comprises all cases which the parties refer
to it. Retrospective way of consenting to the Court’s jurisdiction in
contentious cases. It’s backward-looking: the dispute already exists, and
the states come together and conclude a special agreement so that they
can refer that dispute to the court for resolution. > Example: North Sea
Continental Shelf-cases; multiple special agreements.
- Compromissory clause ICJ statute art. 36(1): Allow parties to refer to a court at a later point in
time. A term of art that describes a clause/provision in a treaty that provides
for dispute settlement. A provision that allows states to refer disputes
about the treaty to the ICJ or to other institutions. This is a
prospective/forward looking method of consent: in signing and ratifying a
treaty, a state agrees that future disputes that arise can be referred to
institutions like the ICJ. Not the term ‘compromissory clause’ in art. 36 but
‘all matters specially provided for in treaties and conventions in force’.
- Optional clause declaration ICJ statute art. 36(2): Specific to the ICJ, prospective and
does not apply to arbitration tribunals. States file declarations with the
Court and these recognise the Court’s jurisdiction or competence over all
disputes that might arise in the future or perhaps over a particular
category of disputes. Fairly common to restrict their optional clause
declarations in some way. The UK has also filed an optional clause
declaration with the court and this one includes a lot of
limitations/reservations on the Court’s jurisdiction. It precludes (verhindert)
adjudication by the ICJ of disputes between the UK and former or current
members of the Commonwealth; with its former colonies. They want to
settle those through negotiation. This then includes Mauritius.
- Forum promogatum: Again specific to the ICJ, retrospective, and also in
practice quite obscure and therefore not that important. It is essentially a
last resort because there’s no other applicable method of consent. It is a
term that refers to a situation where an applicant state (the state filing an
application with the court) hopes that the respondent state will accept the
Court’s jurisdiction in that particular case, ad hoc. There’s no willingness to
conclude a special agreement, there’s no applicable optional clause
declaration or compromissory
-Advisory jurisdiction (UN Charter art. 96) = The Court has the jurisdiction to give
advisory opinions when requested to do so by certain UN entities. General
Assembly, Security Council and specialized agencies that have been authorized
by the GA to request an advisory opinion. In its advisory jurisdiction the Court has
competence over legal questions. The advisory opinions are in principle not
meant to concern legal disputes. Only questions of international law. Advisory
opinions are non-binding, recommendatory. They represent advice from the
principal judicial organ of the UN. They are quite authoritative and therefore have
a great deal of weight. The proceedings tend to resemble contentious
proceedings. States and sometimes national organizations also file written
pleadings with the Court and also appear before the Court to make oral
pleadings. In advisory jurisdiction you typically see many states, this is different
,from the contentious cases. In advisory opinions, there is no applicant or
respondent state but states are allowed to be heard for the court.
Discretion of decline (ICJ Statute art. 65): The Court could still decline to give an advisory
opinion. In certain circumstances it might be inappropriate for the Court to
provide an advisory opinion even though it has the jurisdiction to do so. It gives
the Court some ‘wiggle room’: the court may give an advisory opinion. Through
giving advisory opinions the Court is helping to clarify aspects of public
international law that are not clear or that require some sort of further
elaboration. Even though the issue of discretion is always raised in an advisory
proceeding, the Court always gives the opinion. Even though it might in some
instances change the question a little bit in order to match what it feels it can do
best in its opinion. The discretion to decline is balanced out by the fact that
opinions should not be refused unless there are very important reasons to do so,
compelling reasons.
ICJ’s Advisory jurisdiction in Mauritius advisory opinion
Jurisdiction was very straight-forward. The General Assembly requested the AO
(Art. 96), so the ICJ had jurisdiction. And it posed two questions that deal with
international law (legal questions). The first question was 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. The second question was what the legal consequences under
international law are under the UK's continued administration (bestuur) of the
Chagos; what the legal consequences could be of a violation of international law.
This concerned state responsibility.
Discretion (paras 65-91) = The issue of appropriateness required the Court to do a lot
more. Multiple reasons that were argued by the states why the Court should
decline.
Focus on fourth argument: circumvention of principle of consent (paras 83-91). Argument UK and
other states: these two questions relate to a pending dispute between Mauritius
and the UK and that these two states (the UK in particular) haven’t consented to
the settlement of those disputes before the ICJ. Some of the states therefore
argued that the request basically concerns a dispute between the UK and
Mauritius (interstate) about which state has sovereignty over the Chagos. The UK
refused to consent to the ICJ’s jurisdiction, and the argument goes that this
advisory opinion request circumvents that lack of consent by the UK by
requesting the Court’s advice on a very similar issue. By giving the advisory
opinion, the Court would be getting around the principle of consent. The Court
didn’t buy it, but there was disagreement among the members of the bench. The
Court decided that the requested opinion concerned decolonization, a broader
frame of reference. The Court referred to that broader than just a bilateral
dispute between Mauritius and the UK about sovereignty. So, the Court thought
they could pronounce an opinion on legal issues on which the UK and Mauritius
disagree. This doesn’t necessarily mean the Court is circumventing the
requirement of consent for the settlement of legal disputes between states. This
was a controversial decision: a number of judges dissented on this point. This
case also shows the importance of how requests for advisory opinions are drafted
and how the parties argue their case. In this case the questions that were
submitted by the General Assembly were very carefully drafted to avoid
referencing sovereignty or territory which could be described as a narrower
bilateral dispute between states. In addition, Mauritius avoided using those words
when it was appearing to the Court.
, Sources of international law
This was complicated, because the applicable laws are customary laws. Other fields of law don’t dwell
on the subject of sources, this is a particular problem in public international law. There is no
constitution that sets out where the rules come from.
ICJ Statute article 38: sources of international law It is a provision of applicable law by
the ICJ, but it is also a provision that deals with the sources of international law.
1. International conventions, protocols, accords, agreements (general of particular) = Treaties
(dominant source of international law) conventions. Writing down the rules and agreeing that they are
treaties. Treaty law.
2. Customary international law = Some areas of PIL have not (yet) been codified. There is
no treaty that sets the rules, unwritten rules. Custom and unwritten rules still play a
significant role here. It consists of two elements:
- State practice = State practice refers to the consistent actions and
statements of states (physical action or written letter, oral statement).
Such practice doesn’t have to be 100% consistent across the world, but
relatively consistent. So, the practice has to be widespread and relatively consistent.
Usually, state practice develops gradually over time. There’s a certain practice going on across
the world and states do generally the same thing in a particular circumstance
- Opinio iuris = The term opinio iuris refers to the acceptance of a practice as law/legally
obligated. States accept that a given practice is being done because a rule obliges them to do
so. Opinio iuris is sometimes referred to as the subjective/psychological element of customary
international law. This is a way of distinguishing state practice that is done out of habit or
convenience from state practice that is done out of a sense of legal obligation. There are
potentially various reasons why a state might be engaged in a particular course of conduct. It
could be because of a legal rule (unwritten) but also because it's a regular, convenient way of
doing things that’s not obligated by law. Difficult to identify opinio iuris: states don’t normally
explain their behavior by reference to unwritten rules. As a result it is often necessary that the
subjective element is inferred (afgeleid) based on a set of practice. In other words: the
Court/academic would look at a set of state practice and infer from the way that the practice is
carried out that it is done out of a sense of legal obligation. How we understand a given set of
state practice; interferences that can be drawn from a set of state practice. Its done out of a
sense of legal obligation, not just because its the way it is been happening
3. General principles of international law
4. Judgements and academic writings: this entails case law and scholarly writings and is a subsidiary
source, meaning that it is used to interpret or clarify other sources.
Sources in Mauritius AO (paras 144-162)
It wasn’t possible for the Court here to rely on treaty law in order to answer the
first question posed by the GA. Treaty law here plays quite a secondary role. The
UN Charter says very little about decolonization on a substantive level. Art. 1 (2)
states the purposes of the UN and they include developing friendly relations
among nations based on respect for the principle of equal rights and self-
determination of peoples. Self-determination is one of the basic purposes of the
UN, but this provision doesn't tell us what it is/entails exactly. The Court has to
turn to customary international law and has to determine whether the right to
self- determination had crystalized in customary international law at the time the
Chagos Archipelago was separated and Mauritius became an independent state.
The period that is critical here is 1965-1968.
Friendly Relations Declaration 1970 > Some of the parties argued that self-
determination didn’t crystallize as a customary rule until 1970, after these
facts took place. They also argue that the friendly relations decl. (which
was adopted by the GA in 1970) was the moment when the rule of self-
determination crystallized in customary international law. The court
disagreed.
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