{"id":30022,"date":"2026-10-19T08:00:17","date_gmt":"2026-10-19T06:00:17","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=30022"},"modified":"2026-10-19T18:23:55","modified_gmt":"2026-10-19T16:23:55","slug":"islands-held-in-trust","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/islands-held-in-trust\/","title":{"rendered":"Islands Held in Trust"},"content":{"rendered":"

On 1 September 2026, Vanuatu asked the International Court of Justice<\/a> to settle a dispute with France \u201cconcerning Vanuatu\u2019s sovereignty over Umaenupne (Matthew) and Umaeneg\/Leka (Hunter) Islands\u201d and to draw a single maritime boundary between Vanuatu and France \u201c(with respect to New Caledonia)\u201d. Neither State accepts compulsory jurisdiction<\/a>, so Vanuatu relied on Article 38(5) of the Rules<\/a>: the application is sent to France, but nothing happens unless France consents. Vanuatu, which led the push<\/a> for the General Assembly\u2019s request behind the 2025 climate change opinion<\/a>, is once again testing what the Court can do for a small State.<\/p>\n

It is tempting to treat France\u2019s answer as a matter of diplomatic preference. In this post, I argue that it is not.<\/p>\n

France as Trustee, Not Owner<\/strong><\/p>\n

The parenthesis in Vanuatu\u2019s application carries the legal weight of the case. France claims the islands not for itself but for New Caledonia, a non-self-governing territory that has a legal status \u201cseparate and distinct\u201d from France\u2019s own. New Caledonia is on the UN list of non-self-governing territories<\/a>, to which the General Assembly returned it in 1986<\/a>. Under Article 73 of the Charter<\/a>, France accepts that \u201cthe interests of the inhabitants of these territories are paramount\u201d and takes on their well-being \u201cas a sacred trust\u201d. The Friendly Relations Declaration<\/a> adds that such a territory has \u201ca status separate and distinct from the territory of the State administering it\u201d (p. 124) until its people have exercised self-determination. Three referendums<\/a> on independence, held in 2018, 2020 and 2021 under the Noum\u00e9a Accord, did not settle whether New Caledonia\u2019s people have exercised their right to self-determination. The last one was boycotted by the independence movement, and the settlement meant to follow it<\/a> remains contested.<\/p>\n

In the Chagos Advisory Opinion<\/a> (hereafter Chagos), the Court drew the consequence of the right to self-determination for the territory itself, holding that the territory\u2019s integrity is protected as a corollary of that right. The peoples of non-self-governing territories exercise self-determination in relation to their territory as a whole, whose integrity the administering Power must respect. Any detachment \u201cby the administering Power\u201d that does not rest on the freely expressed and genuine will of the people concerned violates that right (para. 160). Read in light of Chagos, New Caledonia\u2019s separate status makes France a trustee of its own claim.<\/p>\n

This trustee role does not deny that France is, for now, the sovereign. The Advisory Opinion instead qualifies what that sovereignty permits. If Matthew and Hunter are New Caledonian, as France maintains, France holds them for New Caledonia\u2019s people. That people does not speak with one voice. In 2009, a Kanak and Socialist National Liberation Front (FLNKS) leader, Victor Tutugoro, signed<\/a> a document with Vanuatu\u2019s prime minister stating that the islands belonged to Vanuatu. France\u2019s foreign minister rebuked the move, saying it was difficult for New Caledonia to act as if it were independent when it was not. The pro-independence movement restated its position<\/a> in 2019, while three of New Caledonia\u2019s four members of the French Parliament invoked the 2018 referendum<\/a> against any loss of territory. France thus defends, in the name of a people, a claim that the territory\u2019s main pro-independence movement disowns. And the stakes are not two uninhabited volcanic islands but the maritime zone attached to them, which is bigger than New Zealand\u2019s land area<\/a> and whose resources go to the heart of the inhabitants\u2019 \u201cparamount\u201d interests. Whatever one makes of this, it is not the position of an owner free to deal with its property.<\/p>\n

The Integrity Principle Cuts Both Ways<\/strong><\/p>\n

Vanuatu can invoke the same principle of territorial integrity<\/a> (Chagos, paras. 153 and 160). Before independence in 1980, Vanuatu was the New Hebrides, itself a non-self-governing territory<\/a> administered by the United Kingdom and France as a condominium. The historical record is thinner than either side admits. Recent archival work<\/a> finds no evidence of the French annexation of 1929 or the 1976 transfer that the literature often cites. What the archives do show is that in 1965 Britain and France, the two condominium Powers, agreed between themselves that the islands belonged to New Caledonia rather than the New Hebrides, apparently to defeat a private claim to Matthew Island before the Joint Court of the New Hebrides<\/a>.<\/p>\n

The date is striking. It is the year of the Chagos detachment, and the period for which the Court held the right to the territorial integrity of a non-self-governing territory to be already customary (para. 160). If the islands belonged to the New Hebrides before that agreement, the agreement was a detachment from one non-self-governing territory by its administering Powers, one of which also administered the receiving territory. That is the conduct Chagos condemns<\/a> (paras. 172\u2013174). If the islands never belonged to the New Hebrides, the agreement merely recorded the position, and France\u2019s case stands.<\/p>\n

Either way, neither government can settle the point by assertion. Applying the integrity principle first requires a finding on which colonial unit the islands belonged to before 1965, and on what weight to give the acts of administering Powers that were, on both sides, acting in trust. Title, critical date, colonial effectivit\u00e9s: this is the Court\u2019s daily bread. The critical date also disciplines the evidence. Later French conduct, such as the January 2019 naval visit<\/a> that Vanuatu formally protested, will count for little: the Court does not take into account acts after a dispute has crystallised unless they are a normal continuation of earlier acts and are not meant to improve a party\u2019s legal position (Pulau Ligitan and Pulau Sipadan<\/a>, para. 135).<\/p>\n

Why Chagos Favours Adjudication over Bargaining<\/strong><\/p>\n

Consider the alternatives. The two governments opened formal talks<\/a> in late 2025 and by mid-2026 had reached a deadlock<\/a>. A negotiated settlement would mean trade-offs: France drops part of its claim in exchange for fishing access or a shared zone. But on France\u2019s own case, any such concession is a disposal by the administering Power of part of New Caledonia\u2019s territory. Under Chagos, that requires the freely expressed and genuine will of the territory\u2019s people, which on this issue is split along the very line that divides New Caledonian politics.<\/p>\n

A judgment would work differently. Paragraph 160 of Chagos targets detachment \u201cby the administering Power\u201d. A court that declares which State holds title is not an administering Power detaching anything; it states what the territory has always comprised. If the Court finds for Vanuatu, nothing has been taken from New Caledonia\u2019s people, because the integrity principle protects a territory\u2019s lawful extent, not its administrator\u2019s claims. Adjudication lets France meet its trust obligations without making a choice it may lack the authority over. France also knows the route. It has twice accepted an Article 38(5) invitation: in 2003<\/a>, the first acceptance since the provision was adopted in 1978, and again in 2006<\/a>.<\/p>\n

The strongest objection to the route of adjudication is that nothing obliges France to consent. As lex lata, that is right. Consent remains the basis of jurisdiction, and in East Timor<\/a> the Court made clear that the erga omnes character of the right to self-determination does not displace the rule of consent to jurisdiction (para. 29). My claim is narrower: refusal is not neutral. Declining both adjudication and compromise through negotiation preserves an arrangement that, on Vanuatu\u2019s account, came from an unlawful transfer between two non-self-governing territories, and it does so in the name of a people that never authorised it. An indefinite stand-off over the territory\u2019s maritime resources hardly treats the inhabitants\u2019 interests as paramount.<\/p>\n

A second objection is that this stretches the Chagos Advisory Opinion too far. Administering Powers conclude boundary treaties for their territories all the time; France agreed to a maritime boundary with Fiji<\/a> for New Caledonia in 1983, and no one calls that unlawful. But delimiting sea areas between undisputed coasts is not the same as giving up a claim to islands. Where an administering Power has done the latter, the matter has not stayed closed. In the 1980 Treaty of Tokehega<\/a>, New Zealand, as Tokelau\u2019s administering Power, agreed to a boundary that leaves Swains Island (Olohega), long regarded as Tokelau\u2019s fourth atoll, on the American Samoan side. The island resurfaced in Tokelau\u2019s self-determination debates<\/a> of 2006 and 2007. Such bargains may settle the dispute between States; they do not settle the question of legitimacy.<\/p>\n

Giving the Absent Party a Voice<\/strong><\/p>\n

The harder problem is procedural. Only States may be parties before the Court (Article 34(1) of the Statute<\/a>), and only States may intervene (Articles 62 and 63 of the Statute<\/a>). The Monetary Gold<\/a> principle protects absent States, and recent debate on the Sapodilla Cayes case<\/a> shows how much care the Court takes of them. Absent peoples get no such care: nothing in the case law would stop the Court from fixing New Caledonia\u2019s territory without hearing anyone from New Caledonia. Advisory proceedings are more porous: the African Union took part in Chagos<\/a> through a written statement and comments. Contentious proceedings have no equivalent door.<\/p>\n

Within the existing law, three steps are available. France could make its consent conditional on consulting New Caledonia\u2019s Congress and customary Senate. It could include New Caledonian representatives, the FLNKS among them, in its delegation; States can carry a people\u2019s voice into the Great Hall, as Mauritius did in 2018 when a Chagossian, Liseby Elys\u00e9, addressed the Court by pre-recorded video<\/a> as part of its delegation. And the Court could use Article 34(2) of the Statute to request information from the Pacific Islands Forum, which in 2016 admitted New Caledonia<\/a> as a full member, the first time territories on the UN decolonisation list joined it.<\/p>\n

De lege ferenda, the Rules should allow written observations from the representative institutions of a non-self-governing territory whose territory is at issue. Seventeen territories remain on the list, and the question Vanuatu\u2019s application raises (that is, whose claim is the administering Power pressing?) sits beneath other disputes involving them, from the Falklands\/Malvinas to Gibraltar. As long as their peoples cannot be heard, the right to self-determination, owed erga omnes, will keep being litigated and bargained over by trustees alone. Vanuatu\u2019s application gives France, and the Court, a chance to show that a trust can be administered in the open.<\/p>\n","protected":false},"excerpt":{"rendered":"

On 1 September 2026, Vanuatu asked the International Court of Justice to settle a dispute with France \u201cconcerning Vanuatu\u2019s sovereignty over Umaenupne (Matthew) and Umaeneg\/Leka (Hunter) Islands\u201d and to draw a single maritime boundary between Vanuatu and France \u201c(with respect to New Caledonia)\u201d. Neither State accepts compulsory jurisdiction, so Vanuatu relied on Article 38(5) of […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[5253,3743,4771,4772],"authors":[8129],"article-categories":[6000],"doi":[],"class_list":["post-30022","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-chagos","tag-icj","tag-self-determination","tag-sovereignty","authors-kazi-ayman-awsaf","article-categories-article"],"acf":{"subline":"Vanuatu\u2019s Article 38(5) Application over Matthew and Hunter Islands and Why Chagos Pushes France towards the Court"},"meta_box":{"doi":"10.17176\/20261019-142626-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30022","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=30022"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30022\/revisions"}],"predecessor-version":[{"id":30026,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/30022\/revisions\/30026"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=30022"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=30022"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=30022"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=30022"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=30022"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=30022"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}