Un nuovo capitolo della saga riguardante le Isole Chagos. La sentenza sulle eccezioni preliminari del Tribunale internazionale del diritto del mare nel caso della frontiera marittima tra Mauritius e Maldive

The Dispute Concerning Delimitation of the Maritime Boundary between Mauritius and Maldives in the Indian Ocean before the International Tribunal of the Law of the Sea (ITLOS) is the latest episode of the judicial saga concerning the legal status of the Chagos Archipelago. In its judgment on the preliminary objections, delivered on 28 January 2021, the ITLOS Special Chamber found that Mauritius can be regarded as the coastal State in respect of the Archipelago within the meaning of Article 74, paragraph 1, and Article 83, paragraph 1, of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). According to the Chamber, considering Mauritius as the coastal State is consistent with the determinations made by the International Court of Justice (ICJ) in the 2019 Chagos advisory opinion and by the UN General Assembly in its resolution 73/295. This paper focuses on two aspects of the judgment. First, the decision shows that the exercise of the ICJ advisory jurisdiction in situations involving collective interests (including self-determination and decolonization), especially when combined with measures of the UN political organs may provide a “collective determination” as to the existence and attribution of breaches seriously undermining fundamental common values, so much so that that collective determination could be relied on by other subjects and entities as a prerequisite for the implementation of the legal consequences of the said breaches. Secondly, the ITLOS Chamber reduced the scope of the Monetary Gold principle in recognizing that authoritative external determinations regarding the legal interests of an absent third party may be taken as “givens”, with the result that the application of the principle should be excluded in such a case.