Preliminary Questions in the ICJ Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965
This paper analyzes the preliminary questions in the International Court of Justice (ICJ) advisory opinion on the Separation of the Chagos Archipelago from Mauritius in 1965. In the first Section, it deals with the issue of jurisdiction, and in particular with the object of the request made by the United Nations General Assembly (UNGA) in 2017. The aim of this Section is to underline that the formulation of the request has played a crucial role for the determination, by the Court, of the legal ground on which it based its opinion. The question has been treated correctly as a matter of decolonization and self-determination, as suggested by the General Assembly (GA), and this choice has influenced both the admissibility and the merits of the case.
The second Section analyzes the questions of admissibility raised in the course of the Chagos proceeding. It is argued that, although the conclusions reached by the opinion are correct, the last and most important objection to the admissibility should have been treated by the Court so as to point out that consent, as such, is not a condition for the exercise of the advisory jurisdiction, especially when “community interests” come at issue. In the balance between the discretion not to render the opinion and the duty to cooperate with other United Nations (UN) organs, the latter prevailed, given the importance of the legal values – protected by obligations erga omnes – involved in the legal questions put to the Court’s assessment.