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Clarification and Conflation: Obligations Erga Omnes in the Chagos Opinion

Published on May 21, 2019        Author:  and

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The recent ICJ Advisory Opinion concerning the Chagos Islands has, understandably, received a great deal of attention. The controversies surrounding the more political elements of the decision have dominated headlines. However, in this blog post, we want to focus on one particular aspect of the Court’s decision. Tucked away at the end of the opinion, paragraph 180 recognises the erga omnes character of the obligation to respect self-determination and finds that there exists an obligation, binding on all states, to cooperate with the UN to complete the decolonisation of Mauritius:

‘180. Since respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right […]. The Court considers that, while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect. As recalled in the Declaration on the Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations:

“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle” […].’ (emphasis added).

This is followed by confirmation in paragraph 182 and in operative paragraph 5 (with only Judge Donoghue dissenting, on unrelated grounds), that ‘all Member States must co-operate with the United Nations to complete the decolonization of Mauritius.’

Since its recognition in 1970 (Barcelona Traction [33]-[34]), the concept of erga omnes has been the subject of heated academic debate and has surfaced a handful of times in ICJ judgments, opinions, and arguments before the Court (e.g. here [29], here [64], and here [15]). However, the notion of erga omnes remains surrounded by a considerable lack of conceptual clarity. There is frequent conflation, even at the level of the ICJ, between this and other international legal concepts. Paragraph 180 of the Chagos opinion provides both a well-needed clarification and a potential source of confusion in this regard. Read the rest of this entry…