ICJ Advisory Opinion Request on the Chagos Islands

Yesterday the UN General Assembly voted, by 94 to 15 with 65 states abstaining, to issue a request for an advisory opinion from the International Court of Justice on the Chagos Islands. Readers will be familiar with the many legal disputes that have arisen from this leftover UK colonial possession in the Indian Ocean, ranging from the human tragedy of the Chagossians expelled en masse from the islands to make room for what is now a US military base of enormous size and importance, to the role that the Diego Garcia base played in the war on terror, to the applicability of human rights law to these issues, the designation of real or pretextual maritime protection areas, and the actual sovereignty dispute with Mauritius. Here’s a useful news item from the Guardian, and here is GA resolution itself, A/RES/71/292.  This is the operative part, i.e. the request that the Court will have to address:

(a)     “Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?”;

(b)     “What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”.

The precise drafting of these questions can be enormously consequential, as shown most recently and most clearly with the Kosovo advisory opinion – I would refer interested readers in that regard to the volume edited by Michael Wood and myself on The Law and Politics of the Kosovo Advisory Opinion (OUP, 2015), particularly chapters 3, 6 and 7 which deal with various aspects of the ‘question question.’ At first glance, the drafting of the Chagos request is not only interesting, but also quite intelligent, especially regarding the (a) part.

Why? Well, one almost ritualistic aspect of these advisory opinions are the objections made to the jurisdiction of the Court and the propriety of its exercise by states who opposed the issuance of the AO request in the first place. These objections almost never work, but the good fight is nonetheless always fought. And there are cases, like the Kosovo one, in which a particular objection (there regarding the relationship between the UNSC and the UNGA) could find significantly more purchase than could otherwise be expected. In the Chagos case in particular, one could expect the UK to make the objection that the AO request is trying to circumvent the consent requirement for contentious ICJ jurisdiction, and is in effect litigating a bilateral dispute (see e.g. the Wall AO, para. 43-50). And in fact there clearly is a set of bilateral disputes on Chagos between Mauritius and the UK.

Note, however, the clever drafting of part (a) of the request: it doesn’t directly speak of whether Mauritius has sovereignty over the Islands, but asks whether the process of decolonization of Mauritius was lawfully completed because of the separation of the Chagos Islands from its territory. It also makes links to numerous GA resolutions, in order to reinforce the view that this is a multilateral issue, raising broader questions of principle which the GA has been dealing with for decades.

When it comes to part (b) of the request, what’s particularly notable is that it doesn’t simply ask what the consequences would be if the Court found that the UK acted unlawfully in part (a). Rather, the consequences are those arising from the UK’s continued administration of the Chagos Islands. This would allow the Court to deal with various questions that not directly related to sovereignty or any faults with the decolonization process, like the plight of the Chagossians. On the other hand, the drafting of part (b) is also such that it could allow the Court to ‘properly interpret’ it in such a way as to avoid some of the more controversial issues, as it in fact did in the Kosovo AO. We shall, of course, have to wait and see what happens – but watch this space.