Introduced by Thomas Burri, Lucas Carlos Lima, Loris Marotti and Irini Papanicolopulu

Advisory opinions rendered by the International Court of Justice (ICJ or Court) can greatly contribute to the clarification and the development of international law on account of different factors, such as the purview of the issues at stake, the subjects involved, and the legal and political background of the questions that prompted the opinion. A good candidate in this respect might be the advisory opinion requested by the General Assembly from the Court on the Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965. The ICJ is currently deliberating on an answer to the following two questions referred to it on 22 June 2017 by means of Resolution 71/292:

(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 legal issues that the advisory opinion potentially touches upon are many: decolonization, the principle of self-determination, the uti possidetis juris principle, and the intricate procedural issues relating to the admissibility of the request. There are no easy answers to those questions. The many, and frequently opposing, arguments made by the 31 States as well as the African Union that participated in the oral proceedings in The Hague at the beginning of September testify to this. The Court is now poring over the arguments it heard. The opinion is expected to be handed down in early 2019.
Whether the Chagos Opinion will mark a watershed in the history of the ICJ remains to be seen. The scholarly views and expectations differ considerably. On one hand, there are those who hope for the Court to be a courageous voice that speaks out against human rights violations when given the opportunity, one that fills out its potential and refuses to be tied down by States and their interests. On the other hand, there is the expectation for the Court to be a forum that above all avoids controversy, so as not to alienate the States while granting them maximum freedom in full respect of their sovereignty – even at the expense of the Chagossians’ human rights. Will this Court be a Wall Opinion-Court or a Nuclear Weapons Opinion-Court? Military and Paramilitary Activities or South West Africa? Danzig or Lotus?
It was to discuss these points that Thomas Burri and Peter Sand gathered a group of scholars at the University of St. Gallen in October 2018.[1] Some papers of the participants in the workshop, together with a series of scholars’ individual comments invited by QIL, will form this Zoom out, which is intentionally published before the ICJ hands down its decision. The series begins with a broad overview by David Snoxell outlining possible ways to reach a political solution, followed by Zeno Crespi Reghizzi offering a thought-provoking analysis of the procedural issues that the Court might shed light on. A number of pieces then will turn to the substantive legal intricacies of the Chagos case.

 

[1] Thomas Burri and Peter Sand take this occasion to express their gratitude to the University of St. Gallen for funding and hosting the workshop.