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Where is the change in international law?
Two concepts of solidarity in a fragmented
international legal order
Name: Erik (E.P.) Wesselius
Student number: 10110046
Track: Public International Law
Supervisor: Prof. Nijman
Date: Friday 24 July 2020
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Abstract
In this thesis the claim in the literature that we are witnessing a structural shift towards increased solidarity in international law is problematized. Here, the argument is defended that solidarity in international law does not have a one-sided meaning, but consists of two separate concepts: “altruistic solidarity” and “self-centered solidarity”. Altruistic solidarity refers to the idea of states being genuinely concerned with the interests of fellow states, whereas self-centered solidarity is a type of solidarity in which states only manifest solidarity towards other states for reasons of their own short-term interests. Consequently, in the context of
fragmentation in international law we witness that for Western dominant states in relation to the decolonized states in the Global South the concept of self-centered solidarity prevails over altruistic solidarity. Yet, the argument is made that the ICJ over the last decades overcomes these problems related to fragmentation by its progressive jurisprudence on obligations erga
omnes as a legal concept introduced to push for a change towards increased altruistic
solidarity in international law. However, this thesis shows that the Court’s increasingly broad interpretation of obligations erga omnes is not necessarily compatible with a structural shift among states from self-centered solidarity to altruistic solidarity in international law. Instead, a selection of primary documents (court proceedings, separate opinions, country statements and press releases) from the Chagos advisory opinion and the The Gambia v. Myanmar case in 2019 rather show that elements of self-centered solidarity are still strongly present in contemporary cases on obligations erga omnes (partes).
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Table of contents
Introduction………...4
1. Two concepts of solidarity in international law………...…..7
2. Solidarity in a fragmented international legal order………...14
3. A structural shift towards increased altruistic solidarity in ICJ case-law?...21
4. The concept of altruistic solidarity and obligations erga omnes: the Chagos AO…….27
5. Self-centered solidarity under the erga omnes umbrella? The Gambia v. Myanmar…32 Conclusion………...….38
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Introduction
Over the last period of time there is a renewed scholarly interest in the concept of solidarity between states in international law.1 For instance, during academic conferences and in
publications patterns of solidarity are discussed in relation to environmental law, human rights law, refugee law, humanitarian law, international responsibility and the history of
international law.2 Also, in 2017 legal initiatives were made before the United Nations in
order to codify the right to solidarity between the member-states of the General Assembly.3
Moreover, during the recent Covid-19 pandemic demands for increased solidarity between states in international law resurfaced.4
When considering the literature on solidarity in international law two opposing views are to be distinguished. On the one hand, the argument is made that genuine solidarity is largely absent in the fragmented field of international law: the rise of populist parties, the dominance of capitalist states and the systematic breaches of international human rights would contribute to the “misery in international law”.5 In this view, the origins of
international law that are rooted in self-centered imperialism and injustices towards distant peoples are nowadays still to be experienced in the form of the injustices in the current economic order that relies on regimes in the fragmented international legal order.6
On the other hand, however, the claim is defended that the concept of solidarity is structurally present in international law.7 In this reading the notion of solidarity is accepted as increasingly structural in the sense that its manifestations are becoming omnipresent in international law: in treaties, in customary international law, in case-law and as a general principle of international law.8 From these manifestations, solidarity has developed into the
1 See for instance: ‘2020 ESIL Research Forum, Catania on ‘Solidarity – The Quest for Founding Utopias of
International Law’, retrieved from: https://esil-sedi.eu/research-forum-cfp-solidarity-the-quest-for-founding-utopias-of-international-law/ [last accessed: 22 July 2020].
2 Wolfrum, R., Solidarity: a structural principle of international law, New York: Springer, 2012.
3 Dandan, V., ‘Proposed draft declaration on the right of peoples and individuals to international solidarity’,
Report A/HRC/26/34 of the Independent Expert on Human Rights and International Solidarity, 2017.
4 Essawy, R., ‘The Legal Duty to Cooperate amid Covid-19: a missed opportunity?’, Blog of the European Journal
of International Law, April 22 2020, retrieved from: https://www.ejiltalk.org/the-legal-duty-to-cooperate-amid-covid-19-a-missed-opportunity/ [last accessed: 23 July 2020].
5 Linarelli, J., Salomon, M., Sornarajah, M., The Misery of International Law: Confrontations with Injustice in the
Global Economy, Oxford: OUP, 2018.
6 Ibidem.
7 Wolfrum, R., Solidarity: a structural principle of international law, New York: Springer, 2012. 8 Ibidem, 225-228.
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first element of the system of shared values in international law.9 Solidarity in this perspective
is to be considered as the glue keeping the states in the international legal system together. In this thesis I take into account these different views on solidarity in international law. In doing so, I argue that solidarity between states in international law is not to be considered as a one-sided concept, but rather consists of two separate concepts: “altruistic solidarity” and “self-centered solidarity”. The former is to be understood as solidarity in the sense of genuinely caring about the interests of other states, whereas the latter concept is about states showing forms of solidarity out of short-term self-interests.
The argument that altruistic solidarity currently dominates international law could, for instance, be derived from the progressive work of the ILC in the articles on state
responsibility on obligations erga omnes10 that were introduced by the ICJ (the Court) in the
Barcelona Traction case in 1970 as rights or obligations that are owed to all states in the
international community.11 However, one could also argue that in the fragmented international legal order (in the sense of being composed of many different legal regimes) such top-down impositions of solidarity by the ICJ are ineffective, since altruistic solidarity is to be found in state practice only. Therefore, the research question to be addressed in this thesis is: “To what
extent is the argument that we are structurally moving towards increased altruistic solidarity between states in the fragmented international legal order supported by contemporary case-law on obligations erga omnes before the ICJ in 2019?”
In answering this question we will address two cases before the ICJ in 2019: the
Mauritius v. United Kingdom advisory opinion and the The Gambia v. Myanmar case. These
two cases are selected, because in both rulings the Court deals with the concept of obligations
erga omnes (partes) as invoked by the applicants. In drawing conclusions from these two
disputes various primary sources are consulted: verbatim records of the orders and advisory opinions, written comments by the parties to the proceedings, separate opinions of the Court’s judges and press releases.
The outline of this thesis is as follows: in the first chapter our two concepts of solidarity in international law are introduced in a literature review. Consequently, in the second chapter our conceptualization of solidarity is discussed in the context of the
fragmented international legal order. In the third chapter we turn to the ICJ to understand the
9 Ibidem.
10 ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, 2001 (A/Res/56/10), Article 48
(1).
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progressive jurisprudence on obligations erga omnes in the search for increased altruistic solidarity in the international community. Finally, in the fourth and fifth chapter the ICJs
Mauritius v. United Kingdom and The Gambia v. Myanmar cases are analyzed the light of our
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1. Two concepts of solidarity in international law
Before we start our discussion on the presence of solidarity in contemporary international law we first address the question: what do we mean when we refer to solidarity in international law? The function of this first chapter is to show that there are two concepts of solidarity to be distinguished: on the one hand, “altruistic solidarity” as a genuine concern for the well-being of other states and, on the other hand, “self-centered solidarity” as solidarity composed of the short-term interests of individual states.
1.1 Solidarity: a structural concept in international law
In the literature a group of authors claims that solidarity is increasingly gaining importance as a structural concept in international law.12 By “structural”, these authors mean that
international law nowadays is inconceivable without manifestations of solidarity in legal documents and general principles.13 To start with, Ronald MacDonald already argued in the 1990s that solidarity is embedded in international law as a structural concept, since
conceptions of solidarity can be found in virtually all levels of international law.14 MacDonald believes that, since the mid-18th century publications of Emer de Vattel on solidarity as a duty of mutual assistance among states, the concept is structurally present in international law as a basic condition for the community of states to exist: conceptions of solidarity are to be found in the work of qualified publicists, in multilateral and bilateral international treaties and as a general principle of international law.15 Moreover, MacDonald holds that since the Second World War the presence of solidarity in international law is increasingly reflected by the institutional behavior of states in international organizations.16
12 For instance: MacDonald, R., ‘Solidarity in the Practice and Discourse of Public International Law’, Pace
International Law Review, volume 8 (2), 1996; Wolfrum, R., Solidarity: a structural principle of international law, New York: Springer, 2012; Koroma, A., ‘Solidarity: evidence of an emerging international legal principle’,
in: Hestermeyer, H., et al., Coexistence, Cooperation and Solidarity, Leiden: Nijhoff, 2012; Nyst, C., ‘Solidarity in a disaggregated world: universal jurisdiction and the evolution of sovereignty’, Journal of International Law
and International Relations, volume 8, 2012.
13 Koroma, A., ‘Solidarity: evidence of an emerging international legal principle’, in: Hestermeyer, H., et al.,
Coexistence, Cooperation and Solidarity, Leiden: Nijhoff, 2012, 103.
14 MacDonald, R., ‘Solidarity in the Practice and Discourse of Public International Law’, Pace International Law
Review, volume 8 (2), 1996, 259.
15 Ibidem, 260. 16 Ibidem.
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MacDonald’s argument is shared by Abdul Koroma, who also views solidarity as a concept that is currently structurally present in the international legal system.17 This author
holds that states become increasingly willing to commit themselves (by international covenants) to international cooperation in order to work towards common objectives in international law.18 This commitment can according to Koroma be found in virtually every international legal document today.19 Also, Koroma points out that over the last years the General Assembly of the UN in international documents explicitly listed solidarity as a ‘fundamental principle’ in international law.20 In particular, Koroma considers solidarity in
international law as an emerging principle that creates negative obligations for states (to not engage in certain activities), but also creates an increasing number of positive obligations for states (to carry out certain measures for the common good).21
In Solidarity: a structural principle of international law this argument of solidarity as a structural positive obligation for states is also made by Rüdiger Wolfrum: he holds that solidarity as a structural principle of international law impacts the shift in the current international legal system from an international network of strictly bilateral commitments towards a value-based global legal order in which states actively contribute towards achieving common goals in international law.22 As such, Wolfrum maintains that the concept of
solidarity is nowadays pivotal in reorienting international law from a set of rules for preserving the bilateral landscape of international relations into a legal regime with the mission of actively promoting shared conceptions of social justice within the international community of states through multilateral cooperation.23
This active promotion of solidarity on a structural basis in international law is defined by Carly Nyst as the ‘socialization of norms’: the growing importance of legal fields as international human rights and international criminal responsibility in international law
suggest that the society of states is gradually forming consensus on shared international norms and values.24 Consequently, Nyst argues that because of this growing consensus a higher degree of solidarity is structurally emerging among states than there was in the past.25 In a
17 Koroma, A., ‘Solidarity: evidence of an emerging international legal principle’, in: Hestermeyer, H., et al.,
Coexistence, Cooperation and Solidarity, Leiden: Nijhoff, 2012, 103-104.
18 Ibidem. 19 Ibidem. 20 Ibidem. 21 Ibidem.
22 Wolfrum, R., Solidarity: a structural principle of international law, New York: Springer, 2012, 226. 23 Ibidem.
24 Nyst, C., ‘Solidarity in a disaggregated world: universal jurisdiction and the evolution of sovereignty’, Journal
of International Law and International Relations, volume 8, 2012, 60.
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similar vein as Koroma’s argument, Nyst believes that the reason for this shift towards structurally increased solidarity is to be found in the growing acceptance of universal norms and values (in international treaties and documents) that are shared by the broader community of states.26
1.2 The concept of solidarity: oscillating between self-interest and altruism
We have seen that there is a group of authors that claims that solidarity is becoming an increasingly structural principle in international law. Yet, a closer look shows us these scholars do not come up with a clear-cut definition of solidarity in international law. MacDonald, for instance, understands solidarity in international law as a principle of (meaningful) cooperation: the goal of solidarity as joint or separate state action is that all states benefit or at least do not gravely interfere with the interests of other states.27 This conceptualization seems to correspond with Koroma’s notion of negative solidarity (to refrain from action), whereas Nyst and Wolfrum rather seem to consider solidarity as a positive obligation for states (to take action in order to pursue shared interests).
The definition of solidarity as a positive obligation is shared by Hanspeter Neuhold, who considers the concept of solidarity in international law as one that is based upon the willingness of states to provide assistance to other states and to accept the resulting costs.28
Neuhold’s concept of “solidarity as assistance” shares resemblances with MacDonald’s conceptualization, since both approaches believe that the concept of solidarity is constructed upon broad international norms and values that are to be viewed as shared by the international community at large.29 Yet, Neuhold’s concept of solidarity as the readiness of states to
provide mutual assistance seems to demand more cooperation between states than
MacDonald’s notion of solidarity as refraining from interfering with the interests of other states, although this author does not go as far as to consider solidarity in international law as states taking action to pursue common objectives.30
Moreover, Laurence Boisson de Chazournes holds that solidarity in international law is to be distinguished from cooperation, since the concept of solidarity in his opinion is much
26 Ibidem.
27 MacDonald, R., ‘Solidarity in the Practice and Discourse of Public International Law’, Pace International Law
Review, volume 8 (2), 1996, 260.
28 Neuhold, H., ‘Common Security: the Litmus Test of International Solidarity’, in: Wolfrum, R., Solidarity: a
structural principle of international law, New York: Springer, 2012, 193-194.
29 Ibidem. 30 Ibidem.
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broader than the notion of cooperation between states.31 Instead, Chazournes seems to follow
Neuhold’s reasoning when he argues that solidarity is a form of genuine help given by some state actors to other state actors in order to assist the latter to achieve a goal or recover from a critical situation.32 However, Chazournes also understands solidarity in international law as having a place in a shared value system at the international level entailing moral obligations.33 This moral obligation of solidarity is owed by some members of the international community towards other members and varies from one situation to another.34 In that sense, solidarity seems to be based upon shared interests only.
According to Angela Williams these debates show us that solidarity in international law consists of a permanent tension between, on the one hand, individual state interests and, on the other hand, shared international values. As such, Williams holds that solidarity in international law is not to be grasped as a one-sided concept, but is rather to be understood as continuously oscillating between two opposing positions.35 On the one hand, solidarity can be explained as the acts of members of a community motivated by good faith obligations or a general sense of altruism.36 Here, shared commitments and social bonds facilitate the presence of solidarity. Yet, on the other hand, solidarity in Williams’ view prescribes the notion of rationally calculating states.37 In this sense, states try to maximize their own interests by strategically improving the well-being of other states (e.g. neighboring states) under the label of solidarity.38
These considerations on solidarity as a Janus faced concept make Holger Hestermeyer conclude that we would do better to distinguish the concept between “altruistic solidarity” and “self-centered solidarity”.39 Here, self-centered solidarity is to be understood as states
showing solidarity with respect to short-term goals that are directly in their own interests.40
Hestermeyer, for instance, refers to the increased commitment of coastal states in
international institutions to argue against global warming.41 Altruistic solidarity, on the other
31 Chazournes, L., ‘Responsibility to Protect: Reflecting Solidarity?’, in: Wolfrum, R., Solidarity: a structural
principle of international law, New York: Springer, 2012, 93-94.
32 Ibidem. 33 Ibidem. 34 Ibidem.
35 Williams, A., ‘Solidarity, Justice and Climate Change Law’, Melbourne Journal of International Law, volume
10 (2), 2009, 501-502.
36 Ibidem. 37 Ibidem. 38 Ibidem.
39 Hestermeyer, H., ‘Reality or Aspiration? Solidarity in International Environmental and World Trade Law’, in:
Hestermeyer, H., et al., Coexistence, Cooperation and Solidarity, Leiden: Nijhoff, 2012, 46-63.
40 Ibidem. 41 Ibidem.
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hand, is portrayed as genuine solidarity in the sense of assisting other states without expecting (direct) reciprocity.42 Here, the example of assistance from developing countries towards the
least developed countries (LDCs43) in order to contribute to improved humanitarian
conditions is considered by this author as in the interest of the global community at large.44
1.3 Two concepts of international solidarity in EU law
These debates suggest that it is problematic to consider the concept of solidarity in
international law as a one-sided concept, but that we should rather understand solidarity as consisting of two opposites: “altruistic solidarity” and “self-centered solidarity”. This
conclusion is supported when taking into account the recent literature on solidarity in EU law. Here, although we have to be careful not to apply a Eurocentric conceptualization of solidarity to international law, scholars seem to confirm the division of the concept of solidarity into a self-centered and an altruistic version.
This twofold conceptualization in the context of EU law is, for instance, found in debates between opposing authors on the character of solidarity in the EU. Here, on the one hand, Steinar Stjernø holds that solidarity is to be equated with political altruism, since the concept is founded on mutual empathy, the ability to take the role of ‘the other’ and the preparedness of states to disinterestedly share resources.45 Yet, on the other hand, Andrea
Sangiovanni believes that solidarity is incompatible with altruism: she argues that solidarity is rather about receiving counter-contributions for one’s own contribution.46 In Sangiovanni’s
view, then, solidarity is rather about the common exercise of individually calculated state interests than about political generosity.47
Furthermore, in other contributions on solidarity in EU law solidarity is
conceptualized into two versions. Ielyzaveta Badanova, in line with MacDonald, for instance conceptualizes the two interpretations of solidarity in game-theoretic terms: solidarity as a
42 Ibidem.
43 “Least Developed Countries” (LDCs) is a term that originates from the UN Department of Economic & Social
Affairs and refers to ‘low-income countries that are confronted with severe impediments to sustainable development’. For present purposes, this term will be frequently used in the next chapters on fragmentation and the two ICJ cases, since Mauritius, The Gambia and Myanmar are all LDCs (see also:
https://www.un.org/development/desa/dpad/least-developed-country-category.html).
44 Hestermeyer, H., ‘Reality or Aspiration? Solidarity in International Environmental and World Trade Law’, in:
Hestermeyer, H., et al., Coexistence, Cooperation and Solidarity, Leiden: Nijhoff, 2012, 46-63.
45 Stjernø, S., Solidarity in Europe: The History of an Idea, Cambridge: CUP, 2005, 350-352.
46 Sangiovanni, A., ‘Solidarity in the EU’, Oxford Journal of Legal Studies, volume 33 (2), 2013, 216-217. 47 Ibidem.
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“zero-sum game” or a “positive sum game”.48 In the interpretation of solidarity as a zero-sum
game, on the one hand, there is only one state in every scenario that benefits from acts out of solidarity whereas others automatically lose.49 When considering solidarity as a positive sum
game, on the other hand, solidarity is not at the cost of the interests of others, but ultimately to the benefit of all states in the international community.50 Therefore, Badanova’s analysis of EU solidarity in terms of a positive sum game or a zero-sum game shows resemblances with the notions of altruistic and self-centered solidarity in international law.
These debates make Esin Kücük conclude that in EU law we witness the prevalence of two concepts of solidarity, in which the opposites of self-interest and genuine altruism are permanently interacting with each other. Therefore, in Kücük’s interpretation of solidarity the opposites of self-interest and altruism are considered as two sides of the same coin.51 Kücük holds that in some cases solidarity in the EU stems from concerns for the genuine well-being of other states, whereas in other situations solidarity is only functional and underpinned by short-term national interests.52 Therefore, this author concludes that different interpretations of solidarity may be present in the EU legal order, but that the tension between altruistic and self-interested motivations behind solidarity make it problematic to come up with one consistent and generally applicable definition of the concept.53 As such, these debates in the EU context seem to confirm our argument that solidarity in international law is to be treated as a two-sided concept.
Conclusion
In this chapter we have seen that in international law we can distinguish two concepts of solidarity: “altruistic solidarity” and “self-centered solidarity”. The former type of solidarity refers to a form of solidarity in which states genuinely look after each other in order to achieve common international interests, whereas the latter type of solidarity is about states engaging in acts of solidarity because this behavior brings short-term individual benefits to them. Yet, we also concluded that in the argument that international law is increasingly developing towards structural solidarity this nuance between these two concepts of solidarity
48 Badanova, I., ‘Making Sense of Solidarity in International Law: Input from the Integration of the European gas
market’’, European Journal of Legal Studies, volume 11 (2), 2019, 113.
49 Ibidem. 50 Ibidem.
51 Kücük, E., ‘Solidarity in EU law: an elusive political statement or a legal principle with substance?’,
Maastricht Journal of European and Comparative Law, volume 23 (6), 2016, 41-44.
52 Ibidem. 53 Ibidem.
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is not made. Nevertheless, we noticed that this distinction is also prominent in the broader literature on EU law. Therefore, in the next chapter we will see how these two concepts of solidarity interact in the current fragmented international legal order.
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2. Solidarity in a fragmented international legal
order
In the first chapter the argument is made that solidarity in international law is not a one-sided concept (as suggested by some literature), but is to be distinguished between “altruistic solidarity” and “self-centered solidarity”. The function of this chapter is to discuss where we find manifestations of these two concepts of solidarity in the current fragmented state of international law. In the end, we see that the argument of a structural increase of altruistic solidarity in international law is incompatible with the behavior of powerful states in the fragmented international legal order, since this behavior seems to be driven by self-centered solidarity only.
2.1 Legal regimes as “islands of solidarity” in international law?
Interestingly, in the literature authors witness manifestations of solidarity (as a one-sided concept) in different international legal regimes. Wolfrum, for instance, argues that the concept of solidarity is becoming more important than in the past in three particular legal regimes: in the law on peacekeeping, international environmental law and international trade law.54 First, Wolfrum sees increasing solidarity among states in the international law of armed conflicts with the increased extension of the right to self-defense in relation to non-injured states based upon article 51 of the UN Charter.55 Moreover, Wolfrum argues that the principle of self-defense in the context of article 5 of the NATO points to the protection of the safety of states and regions through solidarity actions by other Western member-states.56
Secondly, Wolfrum witnesses growing solidarity among states in general in the field of international environmental law. Here, the collective acceptance of the Rio Declaration of 1992 on the progressive development of international environmental law shows to this author the growing willingness of states to co-operate in order to meet common objectives.57 Also, for Wolfrum the principle of solidarity is implied in the treaty obligation to use natural
54 Wolfrum, R., ‘Structural principles: solidarity’, in: Shelton, D., The Oxford Handbook of International Human
Rights Law, Oxford: OUP, 2013, 401-410.
55 Ibidem, 405. 56 Ibidem 57 Ibidem, 408.
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resources in a way that reflects the needs of third states.58 Furthermore, the financial
obligations to which Western states have committed themselves in the 1990s in order to support the LDCs to meet the global sustainable development goals are considered by Wolfrum as an expression of increased solidarity in this particular regime.59
Thirdly, Wolfrum argues that increased solidarity is also visible between the West and the Global South in the regime of international trade law. Particularly, the objectives set out in the preamble of the WTO Agreement define to this author the common objective of
enhancing economic development and erasing the existing deficiencies of the LDCs.60 Also, the notion of reciprocity in the liberalization of world trade (e.g. the ‘enabling clause’ under the most-favored nation treatment principle) points according to Wolfrum at a legal regime governed by the principle of solidarity, in which the Western states address the optimal use of the world’s resources in accordance with the collectively shared objectives of sustainable development.61
Yet, Nyst rather witnesses increased manifestations of solidarity in the particular legal regimes of human rights law and international criminal law.62 She holds that by a growing consensus between states on core legal norms in criminal law international law is shifting towards increased solidarity.63 Nyst claims that these global norms in criminal law require increased loyalties to the international community.64 This author argues that nowadays the
widely accepted and expanding principle of universal jurisdiction in international criminal law by the majority of states in the world is a prominent example of the increased loyalties
towards shared global values.65 Alternatively, Williams argues that manifestations of
solidarity in international law between all states of the international community are
increasingly to be found in the particular regime of climate change law.66 This author believes
that the law on climate change is currently developing as the source for increased conceptions of solidarity in other branches of international law.67
58 Ibidem. 59 Ibidem. 60 Ibidem, 409. 61 Ibidem.
62 Nyst, C., ‘Solidarity in a disaggregated world: universal jurisdiction and the evolution of sovereignty’, Journal
of International Law and International Relations, volume 8, 2012, 60-61.
63 Ibidem. 64 Ibidem. 65 Ibidem.
66 Williams, A., ‘Solidarity, Justice and Climate Change Law’, Melbourne Journal of International Law, volume
10 (2), 2009, 501-502.
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Overall, we seem to witness here that authors include particular legal regimes in their conception of solidarity and exclude others. In the context of EU law this tendency is referred to by Hilpold as creating “islands of solidarity”.68 This concept means that although solidarity
is present in the field of EU law, there are particular legal regimes in which solidarity is stronger developed than in other regimes.69 When translating this concept to the literature on international law we similarly witness the fragmentation of the concept of solidarity into separate international legal regimes, since the authors we discuss here show diverging views on where to find particular manifestations of solidarity in international law. Then, how does this fragmentation precisely affect the tension between our two concepts of solidarity?
2.2 The concept of fragmentation in international law
The definition of “fragmentation” in international law is to be found in the work of the ILC.70
By “fragmentation” the ILC refers to the emergence of specialized and relatively autonomous spheres of social action and structure.71 As a result, we see the emergence of specialized and (relatively) autonomous rule-complexes, legal institutions and spheres of legal practice. The ILC gives two reasons for the fragmentation of international law.72 First, the international legal order lacks a general legislative body. Consequently, law-making treaties develop in a number of historical, functional and regional groups that are separate from each other.73
Secondly, according to the ILC fragmentation can be found within the law itself: the most serious source of conflict between law-making treaties is considered to be the law governing the revision of multilateral instruments and defining the legal effects of revision.74
As a result, we witness the existence of specialized and relatively autonomous spheres of legal action and structure in international law. In a way, as some authors point out, this fragmented character of international law provides opportunities for states in general.75 They argue that fragmentation is to be considered a positive indicator of increased diversity in legal norms.76 Also, the increased specialization of international law is seen as a way of
68 Hilpold, P., ‘Understanding Solidarity within EU Law: an analysis of the ‘Islands of Solidarity’ within
particular regard to the Monetary Union’, Yearbook of European Law, volume 34 (1), 2015, 265.
69 Ibidem.
70 ILC, ‘Fragmentation of international law: difficulties arising from the diversification and expansion of
international law’, Report of the study group of the International Law Commission, Geneva, 2006, 10-17.
71 Ibidem, 10. 72 Ibidem. 73 Ibidem. 74 Ibidem.
75 Van Asselt, H., et al., ‘Global climate change and the fragmentation of international law’, Law and Policy,
volume 30 (4), 2008, 426-427.
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accommodating the diverging interests of states: governments view specialized regimes as better serving their interests and therefore have stronger incentives to comply with
international law than in a centralized legal order.77 Furthermore, the argument is made that
fragmentation does not threaten the coherence of international law, but rather leads to the global diffusion of the best ideas because of the interaction between different regimes.78
Yet, the argument is also made that fragmentation limits international law. Fragmentation could, for instance, lead to a “tunnel vision”: specialized law-making and institution-building then tends to take place with relative ignorance of legislative and institutional activities in the adjoining fields and of the general principles of international law.79 Consequently, the result could be conflicts between rule-systems, deviating institutional practices and the loss of an overall perspective on international law.80 Moreover, the
fragmentation in international law potentially promotes conflicting jurisprudence, increased practices of forum-shopping and the loss of legal security.81 From this, one could conclude that fragmentation does not only provide international law with possibilities, but also creates the danger of conflicting and incompatible rule-systems.
Nevertheless, applying Hilpold’s concept of “islands of solidarity” directly to fragmentation in international law may be problematic in the sense that in international law legal regimes are not completely separated from each other. That is, according to Bruno Simma fragmentation in international law is to be considered as a structure in which “self-contained regimes” (such as trade law, diplomatic law or human rights law) are permanently interacting with each other.82 In that sense, then, Simma argues that fragmentation is not a
concept involving entirely autonomous legal subsystems, as in Hilpold’s solidarity islands, but through the omnipresence of general principles of international law always contains some degree of interaction between the legal regimes.83 Despite this degree of interaction, Simma argues, legal regimes in international law are to be considered as “self-contained” in that these legal subsystems intend to embrace autonomous sets of legal norms.84
77 Ibidem. 78 Ibidem. 79 Ibidem. 80 Ibidem. 81 Ibidem.
82 Simma, B., Pulkowski D., ‘Of Planets and the Universe: Self-contained Regimes in International Law’,
European Journal of International Law, volume 17 (3), 2006, 492.
83 Ibidem. 84 Ibidem.
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2.3 Fragmentation and two concepts of solidarity in international law: an
analysis
Then, how does fragmentation in international law relate to our two concepts of solidarity? First of all, in the literature on fragmentation solidarity is viewed in the particular context of the historical struggle between Western powerful states and the LDCs from the Global South. Here, the dominant opinion holds that fragmentation cannot be considered as a completely neutral process, but is rather to be understood as a process driven by Western political
strategies.85 On this note, Martti Koskenniemi interprets fragmentation in international law as a form of “hegemonic contestation”: a process by which different international actors
routinely challenge each other by invoking legal rules and principles on which they have projected meanings that support their preferences and counteract those of their opponents.86 As such, Koskenniemi argues that fragmentation in international law is a hegemonic technique used by powerful states to articulate their particular interests by politicizing universal values such as solidarity.87
Consequently, the argument is made that fragmentation in international law cannot be separated from traditional power politics.88 Koskenniemi maintains that legal regimes such as human rights, environmental law or trade law seem to realize solidarity in international law by universalizing values, but that precisely this development towards solidarity is hegemonic because it consists of imposing the particular interests of some states under the umbrella of general principles of international law.89 Therefore, Koskenniemi concludes that structural pleas of solidarity in international law in separate legal regimes only come from those
dominant states which may hope to hegemonically exercise control over international law by pursuing their individual interests in universalistic terms.90 Moreover, open-ended concepts in international law (such as solidarity) are according to Koskenniemi particularly vulnerable to politicization, since these allow state actors to project their particular preferences within these broad formulations.91
85 See for instance: Koskenniemi, M., ‘International Law and Hegemony: a Reconfiguration’, Cambridge Review
of International Affairs, volume 17 (2), 2004; Benvenisti, E., Downs, G., ‘The empire’s new clothes: political
economy and the fragmentation of international law’, Stanford Law Review, volume 60 (2), 2007.
86 Koskenniemi, M., ‘International Law and Hegemony: a Reconfiguration’, Cambridge Review of International
Affairs, volume 17 (2), 2004, 199. 87 Ibidem. 88 Ibidem. 89 Ibidem, 200. 90 Ibidem, 201. 91 Ibidem, 199.
19
In addition, Koskenniemi’s argument on fragmentation as a hegemonic practice in the context of neo-imperialist politics finds support in the argument by Eyal Benvenisti and George Downs, who claim that fragmentation as the increased proliferation of international regulatory institutions with overlapping jurisdictions over the last years is an instrumental strategy pursued by Western developed states in order to resist fundamental shifts towards increased emancipation of the LDCs in international law in the regimes they traditionally dominate (e.g. human rights law).92 These authors postulate that powerful states and the ILC therefore even maintain and promote fragmentation, because this status quo in international law enables them to preserve their dominance in an era in which traditional hierarchies are increasingly considered as illegitimate by LDCs.93 Fragmentation, then, is to be considered as an instrument in the hands of dominant states to block the push for change towards increased altruistic solidarity by the LDCs in international law.94
Furthermore, according to Benvenisti and Downs fragmentation limits the opportunities for weaker state actors to build coalitions in relation to broader universal discussions (such as international solidarity) that could potentially increase their bargaining power and influence over the developed states.95 Therefore, by avoiding broad, integrative agreements, by formulating agreements in infrequently convened multilateral negotiations, by obstructing the creation of judiciaries with significant policy-making authority and by shifting to alternative venues when the original one becomes too responsive to the interests of the LDCs (forum-shopping), Western developed states benefit in the perspective of Benvenisti and Downs from the fragmentation of international law.96 By fragmentation strategies, then,
powerful states are able to block the LDCs push for change towards a progressive international legal order.97
Yet, we notice that also in this literature solidarity is only approached as a one-sided concept. What, then, are the implications of this discussion on fragmentation for our two concepts of solidarity? In the neo-imperialist context we can argue that fragmentation enforces the dominance of powerful Western states by favoring their neoliberal interests and extending their legal privileges.98 Fragmentation in this sense then supports Western
92 Benvenisti, E., Downs, G., ‘The empire’s new clothes: political economy and the fragmentation of
international law’, Stanford Law Review, volume 60 (2), 2007, 595.
93 Ibidem. 94 Ibidem. 95 Ibidem, 597. 96 Ibidem. 97 Ibidem.
98 ‘The Legal Rendering of Immiseration’, in: Linarelli, J., et al., The Misery of International Law:
20
centered solidarity under the international umbrella of altruistic solidarity. Therefore, according to John Linarelli, the claim that fragmentation leads to the diffusion of the best ideas in international law is problematic, since only Western neoliberal interests seem to be pursued by fragmentation.99 This view seems to correspond with Antony Anghie’s argument that through fragmentation neocolonialism is still too deeply entrenched in international law to account for a shift towards genuine solidarity between the West and the Global South.100 Moreover, the argument is even made that international law finds its origins in the traditional lack of altruistic solidarity between the West and the LDCs.101
Conclusion
The argument made in this chapter is that in the fragmentated international legal order
working towards structurally increased altruistic solidarity between the West and the LDCs is problematic. The reason is that fragmentation in international law enables cherry-picking practices by powerful states in legal regimes in order to determine in which regime to engage in altruistic solidarity and where to exclude this concept. Therefore, fragmentation seems to facilitate top-down self-centered solidarity by powerful states in the legal regimes of their own choice. As such, it seems problematic to argue that increased altruistic solidarity is structurally taking place in international law.
99 Ibidem.
100 Anghie, A., ‘Legal aspects of the New International Economic Order’, Humanity, volume 6 (1), 2015, 146. 101 ‘The Legal Rendering of Immiseration’, in: Linarelli, J., et al., The Misery of International Law: Confrontations
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3. A structural shift towards increased altruistic
solidarity in ICJ case-law?
In the previous chapter we concluded that the fragmented structure of international law with its self-contained legal regimes does not support altruistic solidarity, but rather enables and promotes self-centered solidarity among the dominant Western states at the cost of the LDCs. As such, decentralized legal regimes seem to obstruct any change towards structurally
increased altruistic solidarity between dominant Western states and Southern LDCs. The purpose of this chapter is to consider to what extent we could alternatively discover structural elements of altruistic solidarity within the broader international community of states before the most prominent international legal body: the International Court of Justice (ICJ).
3.1 Where is the change in international law? From self-contained regimes
to the ICJ
In the search for an international actor that is potentially able to overcome the problems associated with fragmentation, Gleider Hernández points to the historical legal decision-making by the ICJ as the central judicial organ that is to protect the shared interests of the international community of states.102 Since the ICJ is the principal judicial organ of the UN and the only court with universal general jurisdiction, it is frequently invoked by states to safeguard the ‘higher’ interests of the international community in general over the particular interests of individual states.103 Therefore, in the literature the ICJ has already been referred to as the ‘World Court’ or the ‘invisible international supreme court’.104 Consequently, when
trying to discover a shift towards structurally increased altruistic solidarity on a centralized judicial level we have to take into account the historical decision-making.
However, we cannot neglect here that the Court’s earliest influential legal decisions were taken in the context of the New International Economic Order (NIEO): the movement that was organized by the LDCs to push for greater (economic) solidarity between the West
102 Hernández, G., ‘A Reluctant Guardian: The International Court of Justice and the Concept of ‘International
Community’’, The British Yearbook of International Law, volume 83 (1), 2013, 15-16.
103 Ibidem.
104 Nucup, N., ‘Infallible or Final? Revisiting the Legitimacy of the International Court of Justice as the
“Invisible” International Supreme Court’, The Law and Practice of International Courts and Tribunals, volume 18 (2), 2018, 146.
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and the Global South in the 1960s.105 On this note, Ingo Venzke holds that in this era of
decolonization the ICJ was viewed by the majority of LDCs as a “white man’s court”: throughout the 1960s the states from the Global South argued that only the great powers benefited from ICJ decision-making and that under the ICJ nearly all changes that
decolonized states sought to introduced were obstructed by the ICJ.106 As such, the opinion of newly independent states in the Global South held that the ICJ had to change, since it
reinforced international law’s colonial imprints rather than pushing for progressive change in the international legal order.107
Consequently, the result was a “battle for international law” between Western states and the recently decolonized LDCs, in which the latter group pushed for a structural change in the conservative core concepts and concrete manifestations of great power domination by the ICJ.108 In particular, the LDCs heavily criticized the South West Africa opinion in 1966, in which the ICJ in their view consolidated Western colonialism by unanimously affirming the international status of South West Africa as a mandate territory and denying
self-determination, while in that period South Africa’s apartheid regime was always on the line.109
As such, the ICJ had sustained the hopes of the newly independent states that apartheid would be internationally scrutinized, that the US and the UK would change their position towards South Africa and that the ICJ abandoned its outdated conservative and imperialist views.110
To what extent, then, did this “battle for international law” change the course of the ICJ from conservative imperialism to a progressive community-oriented conception of international law after the 1960s? Here, the argument made by Venzke is that the
“conservative camp” in the ICJ lost the battle by the early 1970s: from this period onwards, many judges considered the ICJ less as an instrument for individual dispute resolution between states and more as a judicial organ that is expected to contribute to the progressive development of the law in the service of the international community that was enlarged by newly independent states and their legitimate interests.111 As such, Venzke believes that the ICJ changed after the South West Africa case from a discredited “white man’s court for a
105 Venzke, I., ‘Possibilities of the Past: Histories of the NIEO and the Travails of Critique’, Journal of the
History of International Law, volume 20 (3), 2018, 263-264.
106 Venzke, I., ‘The International Court of Justice during the Battle for International Law: Colonial Imprints and
Possibilities for Change’, in: Von Bernstorff, J., Dann, P., The Battle for International Law: South-North
Perspectives on the Decolonization Era, Oxford: OUP, 2019.
107 Ibidem. 108 Ibidem. 109 Ibidem. 110 Ibidem. 111 Ibidem.
23
white man’s international legal order” into a progressive vehicle with increased legal authority.112
3.2 ICJ case-law: the structural broadening of the concept of obligations
erga omnes
Yet, how can we trace this changed role of the ICJ, from a conservative legal actor defending imperialist interests into a decolonized progressive legal institute emphasizing the shared interests of states in international law, back to its decision-making beyond the scope of the NIEO? Here, according to Hernández special attention is needed to consider the interpretation and application of the concept of obligations erga omnes (partes), since this concept serves the protection of community interests in international law that encompass fundamental values shared by a group of states (obligations erga omnes partes) or the international community as a whole (obligations erga omnes).113
Only five years after the controversial South West Africa judgment, in which the Court rejected the broader actio popularis claims by Ethiopia and Liberia114, the concept of
obligations erga omnes was introduced by the ICJ in 1970 in the famous Barcelona Traction case. For present purposes, the most relevant dictum by the ICJ in this case stated that:
an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the
former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.115
Indeed, when compared to the ICJs approach in the South West Africa case the introduction of obligations erga omnes in the Barcelona Traction opinion (that is to be understood in the context of the push for decolonization in the 1960s116) implied a significant change in the
Court’s subsequent attitude on the inclusion of the interests of all states in the international legal order. After all, in the case-law after Barcelona Traction the ICJ increasingly allowed all state parties to validly bring an action in situations of international breaches. In relation to the right of a people to self-determination, for instance, the ICJ confirmed in the East Timor case
112 Ibidem.
113 Hernández, G., ‘A Reluctant Guardian: The International Court of Justice and the Concept of ‘International
Community’, The British Yearbook of International Law, volume 83 (1), 2013, 47-51.
114 ICJ, South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), I.C.J. Reports, 1966, par. 44. 115 ICJ, Barcelona Traction (Belgium v. Spain), I.C.J. Reports, 1970, par. 33.
116 Venzke, I., ‘The International Court of Justice during the Battle for International Law: Colonial Imprints and
Possibilities for Change’, in: Von Bernstorff, J., Dann, P., The Battle for International Law: South-North
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in 1995117 and the Construction of a Wall opinion in 2004118 the conviction that, irrespective
of any kind of individual or special link between the international breach and the state
invoking it, all states (also indirectly affected states) who show a plausible legal interest have standing in their protection before the ICJ.119
Also, in the case of obligations erga omnes partes, the ICJ stated in the Obligation to
Prosecute or to Extradite case in 2012 that particular provisions in the Torture Convention are
of a common interest to all state parties and could therefore be invoked by all parties to the convention.120 Furthermore, the broadening of the concept of erga omnes partes resulted in the Whaling in the Antarctic case before the ICJ in 2014 that Japan did not even object to the standing of Australia to bring an erga omnes partes claim, making it possible for the Court to directly proceed to the merits of the case.121 These chronological examples, then, could be considered as indeed structurally showing a progressive broadening by the ICJ of the concept of obligations erga omnes beyond the debates on the NIEO.
3.3 Two concepts of solidarity and obligations erga omnes: an analysis
Our discussion of the judicial developments on obligations erga omnes in the previous section suggests that the ICJ structurally pushes states towards increased altruistic solidarity by a growing attention to the shared interests between all states in the international community. On this note, Santiago Villalpando holds that by broadening the communitarian concept of
obligations erga omnes the ICJ is developing into the driving force behind the structural shift from an inter-state relations system based upon self-oriented states with an egotistic rationale into an international legal order with a growing sense of togetherness, in which goals that are to the benefit of the community of states as a whole are increasingly pursued.122
Furthermore, the codification of the obligations erga omnes in het ILC Articles on state responsibility in 2001 seems to have contributed to this growing sense of altruistic solidarity. Article 48 (1) of the ARSIWA holds:
117 ICJ, East-Timor (Portugal v. Australia), I.C.J. Reports, 1995, par. 29.
118 ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, 2004, par. 118.
119 Longobardo, M., ‘The Contribution of IHL to the Developments of the Law of International Responsibility
regarding Obligations Erga Omnes (Partes)’, Journal of Conflict and Security Law, volume 23 (3), 2018, 387.
120 ICJ, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), I.C.J. Reports, 2012,
par. 68.
121 ICJ, Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), I.C.J. Reports, 2014;
Hernández, G., International Law, Oxford: OUP, 2019, 281-282..
122 Villalpando, S., ‘The Legal Dimension of the International Community: How Community Interests are
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Any State other than an injured State is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: (a) the obligation breached is owed to a group of States including that State, and is established for
the protection of a collective interest of the group; or (b) the obligation breached is owed to the international community as a whole.123
The ILC commentary to article 48 (1) on obligations erga omnes (partes) shows that here a broad interpretation of legal “interests” is to be favored: the provision is not to be limited to arrangements established only in the interest of individual states, but is intended to transcend the sphere of bilateral inter-state relations in order to protect the collective interests of the international community as a whole.124
Yet, it would be up for debate to draw from this the conclusion that obligations erga
omnes are completely incompatible with the concept of self-centered solidarity. After all, the
ILC commentators suggest that our two concepts of solidarity are not mutually exclusive: individual states may very well pursue only individual state interests under the progressive umbrella of collective interests.125 Here, the ILC refers to the example of the coastal state that
is specially affected by pollution and therefore aims at protection of the marine environment at the collective level.126
Moreover, as discussed in the first chapter, the danger of solidarity as a concept is that it is interpreted broadly so that the motivations of states calling for solidarity are not always straightforward and can consequently diverge. Furthermore, in the literature article 48 is by some authors rather considered as a dead letter on the progressive development towards altruistic solidarity, since up to now there are hardly any examples to be derived from state practice in which a general consensus over the existence of obligations erga omnes
consequently resulted in actual claims before the ICJ.127
Conclusion
In this chapter we have seen that in the context of the NIEO the ICJ historically experienced problems with its role as a progressive centralized institution in international law that pushes for structurally increased altruistic solidarity between the West and the Southern LDCs.
123 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
2001 (A/Res/56/10), Article 48 (1).
124 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
with commentaries, 2001 (A/Res/56/10), 126-128, retrieved from:
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf [last accessed: 21 July 2020].
125 Ibidem, 127. 126 Ibidem.
26
Nevertheless, the Court’s invocation of obligations erga omnes in the Barcelona Traction case in this sense served a dual purpose: on the one hand, the dictum on obligations erga
omnes helped to silence the critique from the NIEO, whereas on the other hand the Court’s
introduction of this broad concept marked the beginning of an era in international law in which the legal standing of individual states in the international community was increasingly extended. However, arguments are made that the state practice on obligations erga omnes is not necessarily compatible with our concept of altruistic solidarity. In the next two chapters we deal with this problem when we consider two recent ICJ cases dealing with obligations
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4. The concept of altruistic solidarity and obligations
erga omnes: the ICJ Chagos Advisory Opinion
In the previous chapter we discussed the Court’s push for altruistic solidarity through the increasingly liberal interpretation of the concept of obligations erga omnes between states in the international community born out of the demands for change by the NIEO. Consequently, the function of the last two chapters is to evaluate to what extent this growing use of
obligations erga omnes by the ICJ is compatible with the structural increase of altruistic solidarity in state practice in international law. In other words: to what extent does the Court by structurally invoking obligations erga omnes progressively change the course of
international law in the sense of overcoming the problems associated with self-centered solidarity that we witnessed in our discussion on fragmentation? In answering this question, we start with the Chagos opinion.
4.1 The ICJ Mauritius v. United Kingdom Case (2019): an overview
In the Mauritius v. UK Advisory Opinion (the Chagos case) in 2019 the legal question to be addressed by the ICJ was to what extent the process of decolonization of Mauritius was lawfully completed when this country was officially granted independence in 1965 after the separation of the Chagos Archipelago from its territory.128 The background of this legal issue,
that was requested by the UN General Assembly in 2017, was the continued administration by the United Kingdom of the Chagos Archipelago after 1965.129 In the subsequent proceedings the Court stated that in the decades after the official independence of Mauritius the United Kingdom unlawfully detached the Chagos Archipelago from Mauritius as well as removed the Chagossians from this territory in order to form a new British colony on this island: the
British Indian Ocean Territory (BIOT).130
Consequently, the Court concluded in its advisory opinion that ‘the process of decolonization of Mauritius was not lawfully completed when that country acceded to
independence’.131 As such, the ICJ determined that ‘the United Kingdom is currently under an
obligation to bring to an end its administration of the Chagos Archipelago as rapidly as
128 ICJ, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, I.C.J.
Reports, Advisory Opinion, 2019, par. 139-143.
129 Ibidem, par. 94-112. 130 Ibidem.
28
possible’.132 By these legal statements the Court confirmed the importance in international
law of the principle of equal rights and self-determination of a people and that Mauritius as an independent state is legally allowed to govern their own territories and citizens without the interference of former administrating powers.133 Therefore, the Court argued that the UK’s continued administration of the Chagos Islands constituted an internationally wrongful act.134
From these facts, the ICJ ruled that following the right to self-determination the UK was under the obligation in international law to terminate as soon as possible its continued colonial administration over Mauritius in the form of the BIOT.135 In reaching this conclusion, the Court reasoned that the British administration of the Chagos Archipelago was ‘not based on the free and genuine expression of the will of the people concerned’.136 Here, the ICJ
recalled that having respect for the principle of equal rights and self-determination of a people is one of the purposes of the UN, since the UN Charter includes legal provisions that enable non-self-governing territories to ultimately govern themselves.137 Therefrom, the Court decided that the UK’s continued administration of Mauritius was illegal under international law.
4.2 Obligations erga omnes in the Chagos case: a push towards altruistic
solidarity?
Then, how does the Chagos case relate to our two concepts of solidarity? On the one hand, the argument could be made that the Chagos opinion confirms the role of the ICJ as the
progressive force pushing for structural altruistic solidarity in international law by gradually broadening the concept of obligations erga omnes. When taking this approach, particular attention is to be paid to the broad interpretation of obligations erga omnes in the Chagos case. That is, in the Chagos dictum the Court emphasized the erga omnes character of the obligation to respect self-determination: it argued that there exists an erga omnes obligation, binding on all states, to cooperate with the UN to complete the decolonization of Mauritius. These considerations are to be found in paragraph 180 of the opinion, in which the Court ruled that: 132 Ibidem. 133 Ibidem. 134 Ibidem. 135 Ibidem. 136 Ibidem, par. 175. 137 Ibidem.
29
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.138
In a way, this extension of the obligations erga omnes towards compulsory co-operation with the UN General Assembly fits in our previously discussed gradual broadening of the scope of obligations erga omnes by the ICJ from the South West Africa case onwards. After all, the Court invoked UN General Assembly Resolution 2625, declaring that all member states of the UN are under a duty to cooperate regarding the realization of the principle of
self-determination in relation to Mauritius.139 The recent Chagos opinion, then, could be
interpreted as another important step in the structural expansion of the obligations erga omnes in international law. Consequently, the Court’s structural expansionism on the obligations erga omnes could be said to contribute towards growing altruistic solidarity in international law.
On the other hand, however, the Chagos judgment could also be considered as demonstrating the limits of the ICJ in progressively contributing towards greater altruistic solidarity in the neocolonial context, since the United Kingdom did not accept the outcome of the case.140 On this note, one could argue that the non-binding character of the Court’s
advisory opinion shows the continued existence of old-fashioned neocolonial power relations in international law today. After all, whereas the Court determined that the UK is under the obligation to end its control over the Chagos Archipelago, the UK on its turn refused to return the Islands to Mauritius after the judgment was made.141 Consequently, the British
government failed to comply with the UN deadline to hand back the Chagos Islands to
Mauritius.142 From this, the argument is made that the UK’s refusal to end its control over the Islands is indicative of persistent colonial attitudes in international law.143 After all, an
138 Ibidem, par. 180. 139 Ibidem.
140 ICJ, ‘Written comments of the United Kingdom of Great Britain and Northern Ireland’, Legal Consequences
of the Separation of the Chagos Archipelago from Mauritius in 1965, I.C.J. Reports, Request by the United
Nations General Assembly for an Advisory Opinion, 14 May 2018, par. 5.29-5.30, retrieved from:
https://www.icj-cij.org/files/case-related/169/169-20180514-WRI-01-00-EN.pdf [last accessed: 22 July 2020].
141 ‘Chagos Islands: UK refusal to return archipelago to Mauritius show the limits of international law’, The
Conversation, November 2019, retrieved from: https://theconversation.com/chagos-islands-uk-refusal-to-return-archipelago-to-mauritius-show-the-limits-of-international-law-127650 [last accessed: 22 July 2020].
142 Ibidem. 143 Ibidem.
