---------- הודעה שהועברה ---------
מאת: Meital Nir-Tal <nirmeit@gmail.com>
תאריך: יום ה׳, 31 במאי 2018 ב-18:29
נושא: תגובת מאוריציוס
אל: Becker Tal <tal.becker@mfa.gov.il>

הי טל, אני מצרפת את התגובה של מאוריציוס.  הדבקתי בגוף המייל פסקאות רלוונטיות.

ביום ראשון אתן לך את ה USB עם כל החומר

נתראה בקרוב

מיטל

2.18 In addition to their expressed concerns about the principle of consent, some of the States opposing the issuance of an Advisory Opinion have argued that: 

·         the Court’s responses to the questions presented by Resolution 71/292 will not assist the General Assembly in the performance of its functions, because it has no real or ongoing interest in the matters raised by them (Australia and the United States);116 

·         the questions require the Court to address voluminous and complex facts that are unsuitable for determination in the compressed proceedings of the Court’s advisory jurisdiction (the U.K., Australia, and Israel); 117 and 

·         the principle of res judicata precludes the Court from giving an Advisory Opinion because it would reopen issues already decided in the Chagos Marine Protected Area Arbitration (U.K., Australia, and France).118

·         x the principle of res judicata precludes the Court from giving an Advisory Opinion because it would reopen issues already decided in the Chagos Marine Protected Area Arbitration (U.K., Australia, and France).118

2.19  Mauritius regards each of these concerns as unfounded, and responds to them in Section II of this Chapter.

2.27 Relying on that two-prong test, Mauritius’ Written Statement demonstrated that the Court should give the Advisory Opinion requested, because: (i) the General Assembly’s questions concern the decolonisation of a territory, which is a predicate matter that entails obligations of an erga omnes character and clearly falls within the mandate of the General Assembly, and is not a bilateral territorial dispute; and (ii) the object of the request is to obtain from the Court an opinion that the General Assembly has deemed important to allow it to exercise its mandate with respect to the completion of the process of decolonisation.129 

2.28 The U.K., Australia, Chile, Israel, France, and the United States offer a minority view to the contrary. In so doing, they fail to engage with the relationship between decolonisation, which falls within the advisory function of the Court, and a purely bilateral dispute over territory, which does not.

2.29 An overwhelming majority of Written Statements support the conclusions of Mauritius:

2.50 Both the Western Sahara and Wall cases thus offer clear authority in support of the Court’s right to exercise its advisory jurisdiction in the present matter. As each case shows, the Court has not hesitated to render an opinion that impacts on the territorial sovereignty claims of a State, where, as here, the “territorial dispute” is not purely bilateral in nature, but is located in the broader frame of decolonisation and self-determination, falling within the mandate of the General Assembly, in circumstances in which the Court’s opinion is requested by the General Assembly to assist it in the fulfilment of its recognised functions.

2.51 Here, it is obvious that the task before the Court is not (as Israel incorrectly contends in its Written Statement181) to assess competing claims between the U.K. and Mauritius to sovereign title over territory, as would happen in a purely bilateral dispute as to title to territory. Rather, the task before the Court is to answer a predicate question of whether the administering power has lawfully completed the process of decolonisation of Mauritius, by reference to the law on selfdetermination and decolonisation. This question has nothing to do with which State has a better claim to title, and everything to do with the question of whether the decolonisation of Mauritius has been lawfully completed.

2.62 Three States – Australia, Israel, and the U.K. – have argued that the Court should decline to exercise its jurisdiction because the questions posed by the General Assembly require it to address voluminous and complex facts that are unsuitable for determination in advisory proceedings.199 This argument is unpersuasive.

2.63 First, the Court has previously issued advisory opinions in cases involving facts that are far more complex and voluminous than in this case. For example, in Western Sahara the Court had to examine, inter alia, what legal ties existed between the Kingdom of Morocco and Western Sahara at the time of Spanish colonisation of that territory.200 Morocco claimed that those were “ties of sovereignty” on the basis of “an alleged immemorial possession of the territory” and an uninterrupted exercise of authority.201 As evidence of its display of sovereignty in Western Sahara, Morocco presented extensive materials on its alleged acts of internal display of authority.202 Morocco also relied on certain international treaties said to constitute recognition by other States of its sovereignty over Western Sahara.203 The Court had no difficulty addressing these facts, and did so in nearly 100 paragraphs of its Advisory Opinion. There is no indication, in that case or in any other advisory opinion, that the Court was unable to master complex or voluminous facts that were properly related to the legal questions posed, or that any States were prejudiced by the manner in which the evidence was received and analysed by the Court.

  2.64 Second, the present case, unlike Western Sahara, does not entail extensive fact-gathering or fact-finding relating to competing claims to sovereignty. Indeed, the Court has ample evidentiary material to resolve the factual issues in this case, many of which are not contested. The Court has at its disposal, for example, the voluminous Dossier submitted by the U.N. Secretariat to the Court, comprising detailed information on the matters pertaining to the process of decolonisation of Mauritius. The Court also has the material submitted by Mauritius, the U.K. and other States. There is no indication that it lacks any evidence that it needs to issue the requested Advisory Opinion. The fact that Mauritius has been able to prepare this further Statement, without having to introduce voluminous new material, or devote many pages to the factual issues, confirms that the facts should not pose any difficulties for the Court.

2.65 Third, most of the relevant facts are well-established and undisputed.204 To be sure, the U.K. argues that the Chagos Archipelago was not an integral part of the colony of Mauritius.205 But the facts, including the pertinent legal documents, are either not contested or not difficult to ascertain. It is the conclusion to be drawn from those facts, not the establishment of the facts themselves, that requires the attention of the Court. Similarly, the facts surrounding the detachment of the Chagos Archipelago from Mauritius are largely undisputed, including the circumstances in which the 1965 “agreement” of Mauritian Ministers was obtained. What is to be decided by the Court is largely a matter of interpretation, and deciding whether, on the material before it, the right of the Mauritian people to self determination was respected, and whether the decolonisation of Mauritius was lawfully completed.