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International Court of Justice Advisory Opinion to settle sovereignty disputes? UK defeated under IT

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Antonio Attolico


The International Tribunal for the Law of the Sea (ITLOS) special Chamber, has taken a distinctive decision on the 28th January 2021, when it decided on the preliminary objection in a dispute between Mauritius and the Maldives, over the delimitation of their maritime boundary in the Indian Ocean. This decision is especially contentious, as it has historical precedent and is linked to an older and wider dispute between Mauritius and the United Kingdom which started in 1965. Since then, it has been recalled before various international tribunals and jurisdictions.



Essentially, Mauritius and Maldives case concerns the delimitation of the applicant’s maritime boundary with the Maldives in relation to the Chagos Archipelagos under United Nations Convention on the Law Of the Sea (UNCLOS). However, the main focus of this article is focused on the evaluation of one preliminary objection by the tribunal, where the contested sovereignty of Mauritius over the same archipelago was claimed to be a reason prompting the tribunal not to decide in favour.


We will consider briefly the proceedings that have led to the current scenario, and, more importantly, the legal effect that was recognized by the ICJ Advisory Opinion on the matter.


Briefly, the facts involve the English presence in the Chagos Archipelagos, a group of islands historically belonging to Mauritius. The aforementioned island was divided from the bigger island in 1965, a few years prior to Mauritius’ newfound independence from the UK. After the establishment of her new colony, namely the British Indian Ocean Territory,[1] the UK leased one of the pertinent islands to the US. Consequently, the US established a military base in the Pacific Ocean, leading to the uncomfortable removal of the islands population.[2] When the British decided to create a marine protected area around the archipelago, Mauritius claimed before an arbitral tribunal, disposed in compliance with UNCLOS dispositions[3] and the support of the Permanent Court of Arbitration (PCA),[4] the recognition of its sovereignty over the archipelagos. In the Chagos award, the tribunal decided that it lacked jurisdiction to adjudicate the specific claim,[5] therefore, Mauritius re-initiated bilateral discussions, and, having led to nowhere,[6] decided to push the issue before the United Nations General Assembly (UNGA). Through diplomatic means, it succeeded in obtaining the adoption of resolution RES/71/292, from which the ICJ was formally asked to provide an Advisory Opinion on the matter.


Despite the fact that the question proposed involved the unaccomplished procedure of de-colonization of the islands, the UK opposed the existence of a bilateral dispute between the main parties, whose interests were at stake. The ICJ denied that these objections could constitute a “compelling reason” to decline jurisdiction,[7] and in line with precedent, carried out its assessment in favour of Mauritius.[8] The Advisory Opinion, however, was later used as basis for the adoption of UNGA RES/73/295, where the UK was explicitly asked to allow the completion of the decolonization of the archipelago, ending its administration rapidly. In the latter resolution, the questions formulated by the Assembly appeared to purposefully evade the bilateral nature context of the Advisory Opinion. However, the existence of an inseparable bond between decolonization and the dispute over sovereignty was not doubted.[9] Indeed, once the lawfulness of decolonisation was determined, the question of territorial sovereignty no longer had reason to arise.[10][11]


The evaluation is especially peculiar because it wasn’t considered too be a mere recommendation, but a legal obligation for the UK,[12] despite theoretical principles of international law. It was perhaps foreseeable that such a decision would have invited both legal and political consequences. The pending bilateral dispute between the two sovereign states was once again brought to the limelight, and the ITLOS decision highlighted and confirmed this assumption.


So, irrespective of the political consequences of the dispute – i.e. the possible bilateral, trilateral, juridical or diplomatic outcomes[13] - we shall now consider the reasoning behind the judgement of ITLOS in relation to the Advisory Opinion expressed by the ICJ on the same matter, and its legal significance.


ITLOS has explicitly stated that the advisory opinion is not binding in and of itself, because of its nature and because of the parties’ freedom to comply with it. Nevertheless, judicial determinations inside the opinion must be considered with particular care. Indeed, made with the same rigour and scrutiny of the determinations in judgements, “they carry no less weight and authority”.[14] Consequently, in the analysis of the tribunal, they are recognized to have a legal effect,[15] and as such, cannot be excluded in the evaluation of the objection in the Maldives v Mauritius case. Concretely, the advisory opinion stated that the archipelago was part of Mauritius territory, hence implying the conclusion of the dispute between the UK and Mauritius over sovereignty, leaving no ground for the preliminary objection raised.[16]


This was not the first time determinations in advisory opinion were recognized as binding in successive disputes outside the frame of the original factual situation. However, what was especially revolutionary was that such an approach was considered before an international universal tribunal, on an issue concerning post-colonial sovereignty, thus opening the way for disputes over legitimacy of colonial era independence arrangements.[17]


It seems we are shifting toward a system, where advisory opinions widen their scope and are not so ‘advisory’ anymore.



 

[1] Peter H. Sand, Stephen Allen. The Chagos Islanders and International Law, European Journal of International Law, Volume 26, Issue 2, May 2015, Pages 575, https://doi.org/10.1093/ejil/chv033 [2] ICJ, Legal Consequences of the Sepration of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, (23 February 2019), paras. 33-37to settle sovereignty disputes? UK defeated under ITLOSuritius in 1965,itius in 1965, ory anymore. ICJ authority and function mu [3] Annex VII UN Convention on the Law of the Sea 1982 [4] Sections II-III, Optional Rules for Arbitrating disputes between two States, CPA proceeding rules [5] Chagos Marine Protected Area (Mauritius v. U.K.), Award (Annex VII LOSC Tribunal, Perm. Ct. Arb. 2015) [6] Stephen Allen, 'The Chagos Advisory Opinion and the Decolonization of Mauritius' [2019] 23(2) American Society of International Law <https://www.asil.org/insights/volume/23/issue/2/chagos-advisory-opinion-and-decolonization-mauritius> accessed 17 February 2021 [7]Alessandra De tommaso, 'The ICJ’s Advisory Opinion on the Chagos Archipelago: bilateral dispute or question of general interest?' (International Law Blog, 28th March) <https://internationallaw.blog/2019/03/28/the-icjs-advisory-opinion-on-the-legal-consequences-of-the-separation-of-the-chagos-archipelago-from-mauritius-bilateral-dispute-or-question-of-general-interest/#_ftn1> accessed 18 February 2021 [8] ICJ, Western Sahara, Advisory Opinion (16 October 1975), para. 34 & ICJ, Construction of a wall, Advisory Opinion (9 July 2004) para. 44-45 [9] Stephen Allen, 'The Chagos Advisory Opinion and the Decolonization of Mauritius' [2019] 23(2) American Society of International Law <https://www.asil.org/insights/volume/23/issue/2/chagos-advisory-opinion-and-decolonization-mauritius> accessed 17 February 2021 [10] ITLOS, Dispute Concerning Delimitation Of The Maritime Boundary Between Mauritius And Maldives In The Indian Ocean, Preliminary Objections (28 January 2021), Para 178 [11] Marko Milanovic, 'ICJ Delivers Chagos Advisory Opinion, UK Loses Badly' (EJIL: Talk, 25th February ) <https://www.ejiltalk.org/icj-delivers-chagos-advisory-opinion-uk-loses-badly/> accessed 18 February 2021 [12] ICJ, Legal Consequences on the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion (23 February 2019), paras. 174-182 [13] Nilanthi Samaranayake, 'The Chagos Archipelago Dispute: Law, Diplomacy and Military Basing' (LawFare, 6 October) <https://www.lawfareblog.com/chagos-archipelago-dispute-law-diplomacy-and-military-basing> accessed 18 February 2021 [14] ITLOS, Dispute Concerning Delimitation Of The Maritime Boundary Between Mauritius And Maldives In The Indian Ocean, Preliminary Objections (28 January 2021), para. 200 [15] ITLOS, Dispute Concerning Delimitation Of The Maritime Boundary Between Mauritius And Maldives In The Indian Ocean, Preliminary Objections (28 January 2021), para. 205 [16] ITLOS, Dispute Concerning Delimitation Of The Maritime Boundary Between Mauritius And Maldives In The Indian Ocean, Preliminary Objections (28 January 2021), para.to settle sovereignty disputes? UK defeated under ITLOSuritius in 1965,itius in 1965, ory anymore. ICJ authority and function mu243 [17] Miriam bak mckenna, 'Chagos: Mauritius challenges British colonialism in a case with major implications' (The Conversation, 19 September) <https://theconversation.com/chagos-mauritius-challenges-british-colonialism-in-a-case-with-major-implications-102680> accessed 15 February 2021

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