11 Fall 2025 “In the present case the request is far from being ‘legally neutral’. In order not to be precluded, from the viewpoint of judicial propriety, from rendering the opinion, the Court therefore is duty bound to reconsider the content of the request in order to uphold its judicial dignity. The Court has done so but in my view it should have done so proprio motu and not by assuming what the Assembly ‘necessarily’ must have assumed, something it evidently did not.”7 13. The Court may also wish to exercise care not to shy away from recognising the interplay of politics and law in this case. The structural partiality of the organs and entities responsible for sponsoring Resolution 77/247 is relevant. As stated by Judge Kooijmans in the Wall Advisory Opinion: “The Court, however, does not function in a void. It is the principal judicial organ of the United Nations and has to carry out its function and responsibility within the wider political context. It cannot be expected to present a legal opinion on the request of a political organ without taking full account of the context in which the request was made.”8 14. The Court will wish to remain mindful that its statements do not amount to the determination of a “dispute or legal controversy,” enabling the General Assembly to “exercise its powers and functions for the peaceful settlement of that dispute or controversy” absent the consent of Israel.9 In Western Sahara, although there was a “legal controversy” between Morocco and Spain,10 the Court observed that the issue between them was “not one as to the legal status of the territory today, but one as to the rights of Morocco over it at the time of colonization.” The Court therefore concluded that “[t]he settlement of this issue will not affect the rights of Spain today as the administering Power.”11 The Court also found that “the request for an opinion does not call for adjudication upon existing territorial rights or sovereignty over territory.”12 15. In Chagos, Judge Donoghue found, on this basis, compelling reasons for the Court to exercise its discretion not to render an Advisory Opinion, as it had “the effect of circumventing the absence of United Kingdom consent to judicial settlement of the bilateral dispute between the United Kingdom and Mauritius regarding sovereignty over the Chagos Archipelago and thus undermines the integrity of the Court’s judicial function.”13 Although there was “no reference to ‘sovereignty’ in the request,” Mauritius’ own statements, as well as the observations of other States, made it “clear that the dispute over sovereignty” was at the “heart of the request.”14 Judge Donoghue concluded that “the Court’s pronouncements can only mean that it concludes that the United Kingdom has an obligation to relinquish sovereignty to Mauritius.” It followed that the Court had “decided the very issues that Mauritius has sought to adjudicate, as to which the United Kingdom has refused to give its consent.”15 16. Judge Tomka similarly opined that the “Court must not forget that what looms in the background is a bilateral dispute over which the Court lacks jurisdiction.”16 Judge Tomka accordingly expressed concern that the Court, 7. Wall Advisory Opinion, Separate Opinion of Judge Kooijmans, p. 227, para. 26. 8. Id., p.223, para 12. 9. See Western Sahara Advisory Opinion, pp. 26-27, para. 39. See also Wall Advisory Opinion, Separate Opinion of Judge Higgins, p. 210, para. 12. 10. Western Sahara Advisory Opinion, p. 25, para. 34. 11. Western Sahara Advisory Opinion, p. 27, para. 42. 12. Western Sahara Advisory Opinion, pp. 27-28, para. 43. 13. Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, ICJ Report 2019 (hereinafter “Chagos Advisory Opinion”), Dissenting Opinion of Judge Donoghue, p. 261, para. 1. 14. Id., p. 263-264, paras. 11-14. 15. Id., p. 265, para. 19. 16. Chagos Advisory Opinion, Declaration of Judge Tomka, p. 150, para. 6.
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