L'obbligo di non riconoscimento di situazioni territoriali illegittime dopo il parere della Corte internazionale di giustizia sulle Isole Chagos

In the advisory opinion concerning the Chagos Archipelago, delivered at the request of the UN General Assembly, the International Court of Justice stated that the United Kingdom must bring to an end its colonial administration of the Chagos and that UN Member States have an obligation to cooperate with the United Nations in order to accomplish the decolonization process of Mauritius. The ICJ refrained from determining the legal consequences, under general international law, of the wrongful conduct of the UK, nor did it make any reference to the system of aggravated responsibility according to Articles 40 and 41 of the Articles on State Responsibility adopted by the International Law Commission in 2001. The ICJ, in particular, did not mention the prohibition to recognize the present unlawful situation, which applies erga omnes. In the author's opinion, this approach reflects a judicial policy of self-restraint, which may be partly due to the limitation inherent to the ICJ's advisory function when, as in this case, it is strictly connected to issues which are the subject-matter of a dispute between States. However, the UN General Assembly consequently adopted resolution 73/295 where not only took note of the advisory opinion but also asserted the international obligation of international organizations not to recognize British sovereignty over the Chagos. This is particularly relevant at a time where the general character of the obligation not to recognize unlawful situations is often put into question in international practice.