For the first time in the history of Vanuatu, last week the Government made submissions in a case before the International Court of Justice (ICJ), the principal judicial organ of the United Nations (UN). The purpose of this ICJ case is to provide an Advisory Opinion in respect of the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965. Vanuatu is appearing to argue its principled position on the right to self-determination, consistent with its long history of support for peoples struggling for their freedom from colonisation, including East Timor and West Papua. As Walter Lini said in 1982:
This issue was referred to the ICJ for an advisory opinion by the UN General Assembly by the adoption of resolution A/RES/71/292 which requested the ICJ give an advisory opinion on the following questions:
(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?” Vanuatu voted in favour of the resolution at the UN General Assembly and on the 25th May this year the Prime Minister of Mauritius, Pravind Kumar Jugnauth, wrote a letter to Prime Minister Charlot Salwai requesting Vanuatu to make oral submissions in the ICJ case to support Mauritius.
The letter and the request was conveyed to Minister of Foreign Affairs, Ralph Regenvanu, by Minister of Agro-Industry and Food Security of Mauritius, Mahen Kumar Seeruttun in a bilateral meeting on the margins of the 107th and 43rd ACP and ACP/EU Joint Council of Ministers in Lome, Togo, on the 28th May. Minister Regenvanu assured Minister Seeruttun at the time that Vanuatu would support Mauritius and make submissions in the case as requested. Vanuatu joined twenty-one States and the African Union participating in the oral proceedings. These States were, in alphabetical order: Argentina, Australia, Belize, Botswana, Brazil, Cyprus, Germany, Guatemala, India, Israel, Kenya, the Marshall Islands, Mauritius, Nicaragua, Nigeria, Serbia, South Africa, Thailand, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Vanuatu and Zambia. Vanuatu addressed the Court on the morning of Thursday 6th September (late Thursday evening Vanuatu time) and the presentation of Vanuatu’s arguments by our lawyers can be viewed online at: https://www.icj-cij.org/en/multimedia/5b8ce181a12d880415cfb4f7 Vanuatu was represented at the hearing by Professor Robert McCorquodale, an international expert on the law of self-determination, Jennifer Robinson, a barrister specialising in international law who has also advised the United Liberation Movement of West Papua, Nicola Peart, a barrister specialising in international law who has worked on a range of high profile international disputes, and Mr. Noah Patrick Kouback from the Permanent Mission of Vanuatu in Geneva. Minister Regenvanu says Mauritius was “thrilled” with Vanuatu’s submissions, with Prime minister Jugnauth calling them “one of the best of the week” and coming to personally congratulate the Vanuatu delegation after their submissions. It is expected that the ICJ will issue its decision in this case (the Advisory Opinion) in between six to twelve months. Minister Regenvanu said, “We are anticipating that the Opinion will establish favorable legal principles that will assist Vanuatu in our negotiations with France over Matthew and Hunter Islands and also in our advocacy for the decolonization of West Papua”.
The advisory procedure is open to five United Nations organs and 16 specialized agencies and related organizations of the United Nations system. It enables them to request opinions from the Court on legal questions. On receiving a request for an advisory opinion, the Court itself draws up a list of those States and organizations that may be able to furnish relevant information. It then organizes the written and/or oral proceedings pursuant to Articles 66 of its Statute and 105 of its Rules. Unlike judgments handed down in contentious proceedings between States, the Court’s opinions have no binding effect as such. However, the authority of the Court as the principal judicial organ of the United Nations attaches to them. Since 1946 the Court has given 27 Advisory Opinions, concerning, inter alia, the conditions of admission of a State to membership in the United Nations, reparation for injuries suffered in the service of the United Nations, the international status of South West Africa (Namibia), certain expenses of the United Nations, certain judgments rendered by the United Nations administrative tribunal, Western Sahara, the applicability of the obligation to arbitrate under Section 21 of the United Nations Headquarters Agreement, questions relating to the privileges and immunities of human rights rapporteurs, the legality of the threat or use of nuclear weapons, the legal consequences of the construction of a wall in the occupied Palestinian territory and the unilateral declaration of independence in respect of Kosovo.