As Marko has noted in this post, last week Thursday, the UN General Assembly adopted a resolution requesting the International Court of Justice provide an advisory opinion on the legality of the separation by the United Kingdom of the Chagos Archipelago from the colony of Mauritius prior to the grant of independence to Mauritius by the UK in 1968. Under Article 96 of the UN Charter, the General Assembly can request from the ICJ an advisory opinion on “any legal question.” However, in the process leading to the adoption of the General Assembly resolution, the UK argued that the question put to the Court is essentially about a bilateral dispute between States, and that it is inappropriate for the ICJ advisory opinion procedure to be used to obtain adjudication of a bilateral dispute between states that have not consented to ICJ jurisdiction over that dispute (see summary of debate here and UK statement here). As Marko noted in his post, the Assembly resolution is drafted so as to try to demonstrate that the matter is not (or not just) a bilateral dispute over sovereignty to the Islands but rather a question of self-determination within the remit of the General Assembly. Undoubtedly, the question of the Court’s competence to render the opinion, and of the appropriateness of doing so will be raised again before the Court. This post focuses on the role of state consent in the Court’s advisory jurisdiction, and explores the previous jurisprudence of the Court on whether it can render an advisory opinion which requires it to pronounce on the obligations of states and in particular to pronounce of disputes between states. A key preliminary question the Court will be faced with in the Chagos Islands advisory opinion is whether it (the ICJ) should, for the first time, exercise its discretion not to give an advisory opinion on the ground that the request offends against the principle requiring consent for international adjudication of inter-state disputes. If it does that, the Court would be following a decision of the Permanent Court of International Justice refusing to give an opinion on such grounds.
The Advisory Opinion Request and the Background to It
The Court is asked to render an advisory opinion on whether “the process of decolonization of Mauritius [was] 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 [named General Assembly resolutions] . . .?” The Court is also asked “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 request raises important issues relating to the right to self-determination, and to whether the UK acted in breach of that right with respect to the people of Mauritius during the decolonization process. Mauritius claims that the Mauritian consent to the agreement to detach the Chagos Islands from Mauritius was not voluntarily given. However, the question also relates to a dispute between the UK and Mauritius over the sovereignty of the Chagos Islands which the UK has continued to administer as the British Indian Ocean Territory. The inhabitants of the Chagos Islands were removed by the British government from the archipelago after its separation from Mauritius, and Diego Garcia, one of the islands, became the site of a significant US military installation. The ICJ advisory opinion will be yet another case in a series of litigation in various courts – national and international – concerning the fate of the Chagossians and the dispute between the UK and Mauritius. In the Chagos Marine Protected Area Arbitration (Mauritius v. UK) (2015), an arbitral tribunal constituted under the UN Convention on the Law of the Sea, ruled by a 3 to 2 majority that it did not have jurisdiction to consider the question of sovereignty over the Chagos Archipelago. An overview of the history and the litigation in various courts is set out in Chapter 3 of the arbitral tribunal’s award as well as in these two UK House of Commons Library papers here and here.
Consent, International Dispute Settlement and Advisory Opinions
As with other international tribunals, the jurisdiction of the International Court of Justice in contentious cases is based on the consent of the parties (as expressed in Art. 36 of the ICJ Statute). Moreover, the requirement that the Court can only decide cases where those states have consented is also expressed in the Monetary Gold doctrine under which the Court will treat a case as inadmissible where the legal interests of a non-consenting third state form “the very subject matter” of the case, even where the parties to the case have given their consent [Monetary Gold case (Italy v. France, United Kingdom & United States), (1954) ICJ Rep 19. See also East Timor case (Portugal v. Australia), (1995) ICJ Rep 90.] The Court stated in Monetary Gold that “to adjudicate upon the international responsibility of Albania without her consent would run counter to a well established principle of international law embodied in the Court’s Statute, namely, that the Court can only exercise jurisdiction over a State with its consent” [p. 32]. However, the Monetary Gold case was a contentious case and the question that arises is whether, and how far, that principle of consent stated in that case applies to the advisory jurisdiction of the Court.
At first glance, it might be thought that since advisory opinions are not binding on any state, a principle relating to judgments in contentious cases could not apply to those opinions. Indeed, the Court came very close to saying this in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion (1950) ICJ Rep 65. However, it should be recalled that for third states, judgments in contentious cases are not binding either (Art. 59 of the Statute) so there is, in this respect, no difference for the third state concerned between contentious cases and advisory opinions.
Both the Permanent Court of International Justice and the ICJ have reaffirmed that the principle of consent is relevant in advisory opinions as well. However, while the PCIJ did refuse on one occasion to render an advisory opinion (in Eastern Carelia (1923)) on the grounds that one of the parties to the underlying dispute (Russia) had not given its consent, the ICJ has never refused to render an advisory opinion on this ground. Although the Court has never formally overruled the Eastern Carelia precedent it has found ways to distinguish it and now considers the question of consent as part of its discretion not to render an advisory opinion.
Prior ICJ Jurisprudence on Consent and Advisory Opinions
The ICJ has pronounced on the obligations or responsibilities of specific States, including on matters in dispute between States, in a number of advisory opinions. The issue of [lack of] consent by a state was raised and dealt with the Court in the Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion [(1950) ICJ Rep 65]; the Namibia Advisory Opinion, [1971) ICJ Rep. 12, 23-7]; the Western Sahara Advisory Opinion, [(1975) ICJ Rep 12, 21-7]; the Privileges and Immunities Convention Opinion (the Mazilu case) [(1989) ICJ Rep 177,188-92]; and in the Legal Consequences of the Israeli Wall in Palestine Case [(2004) ICJ Rep 136, 156-62]. The question whether the Court may render an opinion which would require it to pronounce on an existing dispute between States or on the rights or obligations of States without the consent of the relevant State has been regarded as going not to the competence of the Court [which relates to whether the request comes within the criteria stated within the Charter (Art. 96) and Statute (Art. 65)] but rather to the propriety of the exercise of the advisory jurisdiction.
In the Western Sahara opinion, the Court stated that:
“lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an interested State continues to be relevant, not for the Court’s competence, but for the appreciation of the propriety of giving an opinion. In certain circumstances, therefore, the lack of consent of an interested State may render the giving of an advisory opinion incompatible with the Court’s judicial character. An instance of this would be when the circumstances disclose that to give 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. If such a situation should arise, the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute, would afford sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction.” [(1975) ICJ Rep 25, para. 32-33. See also the Wall Advisory Opinion,[(2004) ICJ Rep 136, 157-8, para. 47]
Although the consent principle is not explicitly stated in the Charter and Statute with regard to advisory opinions, and is regarded as a matter of propriety, or of discretion, in the context of advisory opinions, this should not detract from its importance. The discretion that the Court has to render or refuse advisory opinions (a discretion flowing from the wording of Article 65 of the Statute, which says that the Court “may” render advisory opinions) is simply the vehicle by which the Court respects the consent principle. The principle is no less fundamental because it is respected through a discretionary power of the Court. Indeed, the Court has said that it would refuse to render an opinion that seeks to circumvent the consent principle because to do so would not only be improper but would also be incompatible with “the Court’s judicial character.” Clearly, the Court is bound not to act in a manner that is contrary to judicial propriety or to its judicial character. In that sense, though implemented through the exercise of a discretionary power, the Court is no less bound to apply the consent principle in advisory opinions.
Despite the importance of the consent principle, the ICJ has stressed that it is an organ of the United Nations and maintained that the rendering of advisory opinions requested by UN organs “represents its participation in the activities of the Organization and, in principle, should not be refused” [Western Sahara Opinion, para. 23]. In the cases mentioned above, the ICJ has stated that the UN organ requesting the opinion is in need of legal advice with regard to the fulfilment of that organ’s functions under the Charter. The Court’s view is that the disputes at stake in these opinions were not simply bilateral disputes between States or between a State and the UN, but rather matters which fell to be considered in a broader framework of the UN. As the Court stated in the Wall Advisory Opinion [(2004) ICJ Rep 136, 159, para. 50]:
“The object of the request before the Court is to obtain from the Court an opinion which the General Assembly deems of assistance to it for the proper exercise of its functions. The opinion is requested on a question which is of particularly acute concern to the United Nations, and one which is located in a much broader frame of reference than a bilateral dispute. In the circumstances, the Court does not consider that to give an opinion would have the effect of circumventing the principle of consent to judicial settlement, and the Court accordingly cannot, in the exercise of its discretion, decline to give an opinion on that ground.”
The key difference between the ICJ advisory opinions and the Eastern Carelia advisory opinion of the PCIJ is that the latter involved a State (Russia) which was neither a party to the Statute of the PCIJ nor a member of the League of Nations which had referred the matter to the Court. In the ICJ cases (with the exception of the Peace Treaties case), the States involved in the dispute which was the subject of the advisory opinion were parties to the Statute of the ICJ and of the Charter of the UN. They had therefore not only given their consent (indirectly) to the UN’s competence over the matter but had also accepted the advisory procedure of the Court. Therefore, they are not in reality to be regarded as non-consenting States. This point was emphasised by the ICJ in Western Sahara with respect to Spain (the State objecting to the rendering of the opinion). Distinguishing the Eastern Carelia case, the Court stated that:
“In the present case, Spain is a Member of the United Nations and has accepted the provisions of the Charter and Statute; it has thereby in general given its consent to the exercise by the Court of its advisory jurisdiction. It has not objected, and could not validly object, to the General Assembly’s exercise of its powers to deal with the decolonization of a non-self-governing territory and to seek an opinion on questions relevant to the exercise of those powers” [(1975) ICJ Rep 25, para. 30; see also the Namibia Advisory Opinion, 23-4, para. 31].
Application of Prior Jurisprudence to Chagos Islands Advisory Opinion
As the UK is a member of the UN, it could be argued that it has also given, in a general way, its consent to exercise of the Court’s advisory jurisdiction. Also, it could be argued that since, like the Western Sahara case and the Wall Advisory Opinion, the matter relates to decolonization, and the exercise of the principle of self-determination, the General Assembly is undoubtedly competent to deal with the issue and might wish to have legal advice on how to do so.
In saying that the question posed to the Court deals with a bilateral matter, what the UK seems to be arguing is that it is not one in respect of which the General Assembly is actually seeking to exercise its competence (or at least was not actually exercising its competence, beyond the competence to request the opinion). It was noted by the British permanent representative that the General Assembly had not discussed the matter for decades. So the argument would be that this case is different from the Western Sahara case where the Court stated [at para. 34] that: “There is in this case a legal controversy, but one which arose during the proceedings of the General Assembly and in relation to matters with which it was dealing. It did not arise independently in bilateral relations.” In other words, it could be argued that the Assembly had not in fact been treating the Chagos Islands situation as a continuing case of decolonization and had more or less closed the file on that issue. The British argument could be that the issue is not one that arose in the work of the Assembly but rather arose bilaterally and was then brought to the Assembly solely for the purpose of obtaining this opinion or settling the bilateral dispute.
What the Court might have to decide is whether it is for the Court to indicate whether the answer sought will actually be useful to the Assembly (and useful beyond any role the Assembly might play in settling a dispute between States), or whether that is a matter for the Assembly to decide upon for itself. If the latter, the very request by the Assembly of the opinion would probably be determinative of the question.
Two important questions remain, and will likely remain even after the Court considers the request for an Advisory Opinion on the Chagos Islands. The first is whether the Eastern Carelia precedent is, in the UN era, so limited in scope so as to be paid lip service merely in order to be distinguished and dismissed. The second is whether the Court’s discretion to refuse to give an Advisory Opinion which it has jurisdiction to deal with has been so self-circumscribed by the Court as to only be resorted to in absolutely exceptional and self-evident cases of circumvention of the consent principle—an extreme situation which will necessarily imply if not bad faith, then at least an obvious lapse in judgment on the part of the organ requesting the opinion. Whether this is one such case in the Court’s opinion remains to be seen.