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Self-Determination through the Lens of the


International Court of Justice

Article in Netherlands International Law Review · December 2009


DOI: 10.1017/S0165070X0900429X · Source: OAI

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Self-Determination through the Lens of the International Court of Justice

1. Introduction

2. Right to self-determination within the UN legal framework

3. Court’s case law on self-determination

3.1 South West Africa Decolonization cases (1949-1971)

3.2 Western Sahara (Advisory Opinion of 16 October 1975)

3.3 East Timor (Portugal v. Australia, Judgment of 30 June 1995)

3.4 Legality of the Construction of a Wall in the Occupied Palestinian Territory


(Advisory Opinion of 9 July 2004)

3.5 Pending advisory opinion on Kosovo’s declaration of independence (October


2008 – ongoing)

3.6 Some general remarks

4. Place of secession under international law

5. Applicability of the Court’s findings in cases of self-determination through


secession

6. Concluding remarks

1. Introduction

The law relating to self-determination of peoples is among the areas of international law
where the Court’s decisions figure rather prominently, albeit compliance with them has
been less than adequate. 1 Over a long period extending for some 50 years the Court has
rendered a number of important decisions in this area of international law. Self-
determination is a rather contentious issue; hence, it is not surprising that the Court still

1
This article draws to a considerable extent from the author’s PhD dissertation. See G. Zyberi, The
Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing
International Human Rights and Humanitarian Law Rules and Principles, School of Human Rights
Research Series, Vol. 26, Antwerpen-Oxford-Portland: Intersentia, 2008, pp. 102-134. For articles on this
topic see inter alia, A. Cassese, ‘The International Court of Justice and the right of peoples to self-
determination’ and J. Crawford, ‘The General Assembly, The International Court and self-determination’,
in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings, V. Lowe and
M. Fitzmaurice (eds.), Cambridge University Press, 1996, respectively pp. 351-363 and pp. 585-606.

1
continues to be confronted with related disputes, albeit arguably the nature of such
disputes has changed over time. Thus, a close look at the relevant cases would
demonstrate, inter alia, the critical and major role of the Court in the development of the
concept of self-determination and its recognition as a legal right, at a time when many
within the United Nations (UN) insisted that self-determination was nothing more than a
political aspiration. 2 At the same time, such an examination of the Court’s case law
allows us to highlight any possible shortcomings or questions which still remain
regarding the right of peoples to self-determination.

It is important to note beforehand that the focus will be on the external aspect of self-
determination, that is, the right of peoples to determine freely their political status and
their place in the international community. That has to be distinguished from the internal
aspect of this right, that is, the rights of all people to pursue freely their economic, social
and cultural development within the political and legal framework of a given State. So far
the Court has dealt with the right of peoples to self-determination in the context of
decolonization. However, with that process having drawn to its end, self-determination
disputes occur in markedly different political and legal contexts. 3 That is best illustrated
by the developments surrounding Kosovo’s declaration of independence and its
aftermath, but there are other examples as well. 4 For that reason the discussion of the
right to self-determination under contemporary international law focuses essentially on
self-determination through secession.

First we shall have a look at the right to self-determination within the UN legal
framework. In turn, the relevant case law of the Court is briefly noted. After highlighting
some of the most important findings of the Court, we shall inquire whether those main
rules and principles on the right to self-determination are applicable to the situation
2
See inter alia R. Higgins, Human Rights in the International Court of Justice, Leiden Journal of
International Law, Vol. 20, 2007, p. 747; R. Higgins, ‘Self-determination and secession’ in Secession and
International Law, J. Dahlitz, (ed.), T.M.C. Asser Press, 2003, p. 24.
3
See for more details R.C.A. White, Self-Determination: Time for a Re-Assessment, Netherlands
International Law Review, Vol. 28, 1981, p. 149. Five situations are put forward, namely I) the colonial
situation; II) situations where a government denies a people within a State participation in the government
of that State; III) situations where a State or people seeks to join with another State or people of similar
ethnic, linguistic or religious affiliation; IV) situations where a people seeks to secede from a State in order
to establish a separate national identity; V) situations where there are demands for a particular type of
political organization within an existing State.
4
Examples of de facto secession include that of South Ossetia and Abkhazia from Georgia. The issue of
Russian military intervention and continuing support for the self-determination and independence of those
two breakaway provinces to the detriment of Georgia seems to underlie the legal dispute between these two
countries, presently pending before the ICJ. That dispute is based on a violation of the 1965 UN
Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Court’s jurisdiction
is founded under Article 22 of that Convention. See paragraphs 1-16 of Georgia’s Application of 12 August
2008 instituting proceedings against Russia at: http://www.icj-cij.org/docket/files/140/14657.pdf (last
accessed on 1 November 2009).

2
where a new State secedes from an existing State. Some concluding remarks on the
Court’s contribution to human rights in general and to self-determination in particular are
given at the end.

2. The Right to Self-Determination Within the UN Legal Framework

Before dealing with the Court’s case law it is necessary to look at the UN legal
framework relating to the right of peoples to self-determination. Evidently, the right of
peoples to self-determination has an impressive history and a special place in the corpus
of the international law of human rights. That notwithstanding, there is debate about
nearly every aspect of self-determination, from its definition and exercise to its
philosophical basis and status. 5 Therefore, it comes as no surprise that the
implementation of this right within the UN framework has generated considerable case
law, stretching throughout the Court’s activity. 6 Respect for the principle of the self-
determination of peoples was first included in UN Charter 7 and was later codified in both
International Covenants, that on Civil and Political Rights and that on Economic, Social
and Cultural Rights. 8 The modern meaning of the right to self-determination, as
embodied in common Article 1 to both Covenants, consists of the right of all peoples to
determine their political status and to freely pursue their economic, social, and cultural
development.

While the right to self-determination as a core principle of international law has acquired
content over time through the practice of States and international organizations, its
recognition as a genuine legal right was fraught with difficulties. As aptly pointed out by
Dame Rosalyn Higgins, former President of the Court, when the Court addressed this
matter in the South-West Africa (Namibia) and Western Sahara cases, there were still
those who insisted that self-determination was nothing more than a political aspiration. 9
As Higgins noted, the Court was the forerunner in recognizing self-determination as a
legal right. At present, the right of peoples to self-determination is widely seen as a
collective human right. The erga omnes character of this right in the framework of the
5
R. McCorquodale (ed.), Self-Determination in International Law, Ashgate, 2000, p. xi.
6
See Annex 1 infra.
7
Article 1(2) of the UN Charter reads: “The Purposes of the United Nations are: …2. To develop friendly
relations among nations based on respect for the principle of equal rights and self-determination of peoples,
and to take other appropriate measures to strengthen universal peace.”
8
Article 1, paragraph 1, of both the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR) reads: ‘All peoples have the
right of self-determination. By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.’
9
R. Higgins, The International Court of Justice and Human Rights, in International law: Theory and
Practice: essays in honour of Eric Suy, Karel Wellens (ed.), The Hague/Boston/London: Martinus Nijhoff
Publishers, 1998, p. 694.

3
decolonization process has been acknowledged and emphasized several times in the
jurisprudence of the Court, as it will be exposed below.

Evidently, the process of decolonization hinged on the proper implementation of the right
of peoples to self-determination. A pivotal role in carrying out this long and arduous
process was played by the main organs of the UN, especially by the General Assembly.
Although ending colonial rule was not part of the original goals of the UN, three Chapters
of the UN Charter, namely Chapters XI, XII and XIII, deal with Trust and Non-Self-
Governing Territories. It was the adoption by the General Assembly of the 1960
Declaration on the Granting of Independence to Colonial Countries and Peoples (the
Decolonization Declaration) which emphasized the importance of the process of
decolonization, by practically outlawing colonialism. 10 However, self-determination has
clearly evolved beyond recognition from the text of the provisions in the UN Charter
relating to non-self governing territories. The UN Special Committee on Decolonization
continues its work, since there still remain 16 non self-governing territories. 11 Calling it
an ‘unfinished process that has been with the international community for too long’, 12 the
Secretary-General emphasized the need to accelerate the work in order to achieve
concrete results in the decolonization process, while the Second International Decade for
the Eradication of Colonialism comes to an end in 2010.

The UN Charter provided the legal framework to be applied in the decolonization


process. Chapters XI, XII, and XIII deal respectively with Non-Self-Governing
Territories, the International Trusteeship System, and the Trusteeship Council. A joint
reading of the three below-mentioned articles provides a clear idea of the raison d’être
and the modus operandi of the UN system. Article 73 of the UN Charter on Non-Self-
Governing Territories (Chapter XI) lists the duties incumbent upon members of the UN
which assumed responsibilities for the administration of territories whose peoples had not
yet attained a full measure of self-government. 13 Article 76 dealing with the International

10
General Assembly Res. 1514 (XV) of 14 December 1960. For more information on ‘United Nations and
Decolonization’ see: http://www.un.org/Depts/dpi/decolonization/main.htm (last accessed on 1 November
2009).
11
For more information on the Committee, known also as the Committee of 24 see:
http://www.un.org/Depts/dpi/decolonization/Q_A_ 20brochure.pdf (last accessed on 1 November 2009).
More than 80 colonial Territories have become independent as a result of the exercise of self-
determination. According to data extracted from a listing of 2002 by the General Assembly, available at:
http://www.un.org/Depts/dpi/decolonization/trust3.htm (last accessed on 1 November) and the CIA World
FactBook the total population of the remaining 16 non self-governing territories amounts to less than one
and a half million persons.
12
See the Secretary-General Message to the Committee of 24 of 27 February 2009, available at:
http://www.un.org/Depts/dpi/decolonization/special_commitee_speeches_09/SG-feb09.doc (last accessed
on 1 November 2009).
13
This article reads: “Members of the United Nations which have or assume responsibilities for the

4
Trusteeship System (Chapter XII) lists as the main objectives of the trusteeship system
the promotion of political, economic, social and educational advancement of the
inhabitants of the trust territories, encouragement of respect for human rights and
fundamental freedoms, and ensuring equal treatment in social, economic, and commercial
maters for all Members of the United Nations. 14 It is noteworthy that the international
trusteeship system was devised as a dignified treatment of the inhabitants of the
territories put under trusteeship during the transitional period towards independence. 15
Notably, the ICJ interpreted the duties of the administering Powers vis-à-vis the
inhabitants of these territories by taking the abovementioned considerations into account.

In setting out the competences of the Trusteeship Council (Chapter XIII), operating under
the authority of the General Assembly, article 87 of the Charter included these functions,
namely:

a) to consider reports submitted by the administering authority;


b) to accept petitions and examine them in consultation with the administering
authority;
c) to provide for periodic visits to the respective trust territories at times agreed
upon with the administering authority; and
d) to take these and other actions in conformity with the terms of the trusteeship

administration of territories whose peoples have not yet attained a full measure of self-government
recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as
a sacred trust the obligation to promote to the utmost, within the system of international peace and security
established by the present Charter, the well-being of the inhabitants of these territories, and to this end: a)
to ensure, with due respect for the culture of the peoples concerned, their political, economic, social and
educational advancement, their just treatment, and their protection against abuses; b) to develop self-
government, to take due account of the political aspirations of the peoples, and to assist them in the
progressive development of their free political institutions, according to the particular circumstances of
each territory and its peoples and their varying stages of advancement; c) to further international peace and
security; d) to promote constructive measures of development….
14
This article reads: “The basic objectives of the trusteeship system, in accordance with the Purposes of
the United Nations laid down in Article 1 of the present Charter, shall be:
a) to further international peace and security;
b) to promote the political, economic, social and educational advancement of the inhabitants of the trust
territories, and their progressive development towards self-government or independence as may be
appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes
of the people concerned, as may be provided by the terms of each trusteeship agreement;
c) to encourage respect for human rights and for fundamental freedoms for all without distinction as to
race, sex, language, or religion; and to encourage recognition of the interdependence of the peoples of the
world;
d) To ensure equal treatment in social, economic, and commercial matters for all Members of the United
Nations and their nationals, and also equal treatment for the latter in the administration of justice….
15
See inter alia Oppenheim’s International Law, Vol. I, Peace, 8th edition, London: Longmans, Green and
Co Ltd., 1955, pp. 223-242.

5
agreements.

For the sake of completeness it should be noted that the Trusteeship Council has
suspended its operation since November 1994, 16 after the independence of Palau, the last
remaining UN trust territory.

As stated in the 1960 Decolonization Declaration, the process of decolonization was


irresistible and irreversible and that, in order to avoid serious crises, and end was to be
put to colonialism and all practices of segregation and discrimination associated
therewith.17 Besides the 1960 Decolonization Declaration, the 1970 Declaration on
Principles of International Law Concerning Friendly Relations and Cooperation among
States (Friendly Relations Declaration), 18 and the two International Covenants, the right
to self-determination has been enshrined in regional human rights instruments such as
Part VIII of the Helsinki Final Act of 1975, Article 20 of the 1981 African Charter of
Human and Peoples’ Rights and the 1990 Charter of Paris for a New Europe. Next to the
Court, two UN human rights bodies, namely the Human Rights Committee and the
Committee on the Elimination of Racial Discrimination have expressed their position on
the scope and content of the right of self- determination within their respective duties. 19

3. The Court’s Case Law on Self-Determination

The contribution of the Court towards clarifying this very important principle of
international human rights law is analysed through focusing on some of the Court’s
important findings in the South-West Africa cases, the Western Sahara case, the East
Timor case and the more recent case of the Legal Consequences of the Construction of a
Wall in the Occupied Palestinian Territory. 20 A common feature of the majority, if not all
cases decided by or pending before the Court is that the issue of the right to external self-
determination, albeit central to the dispute or problem at hand, was never spelled out in
such explicit terms. That notwithstanding, through analysing these cases a picture will
emerge of the development of the right to self-determination in a decolonization context.
Due attention is paid also to the ongoing advisory proceedings relating to the declaration
of independence by Kosovo in February 2008. After having looked closely at the Court’s
case law, the discussion of self-determination under contemporary international law will
16
See http://www.un.org/en/mainbodies/trusteeship (last accessed on 1 November 2009).
17
General Assembly Res. 1514 (XV) of 14 December 1960.
18
General Assembly Res. 2625 (XXV) of 24 October 1970.
19
See respectively General Comment No. 12 of 13 March 1984 and General Recommendation No. XXI of
23 August 1996.
20
For the purposes of this article it has not been deemed necessary to briefly note here some other cases
decided by the ICJ, which indirectly shed light on certain aspects of self-determinations, such as Right of
Passage (Portugal v. India), Northern Cameroons (Cameroun v. United Kingdom), Burkina Faso/Mali
Frontier Dispute (Burkina Faso v. Mali).

6
inquire whether those rules and principles as applied in the decolonization context are
applicable to current complex situations, as present in the last case pending before the
Court.

3.1 The South-West Africa Decolonization Cases (1949-1971)

The referral of a question on the international status of South-West Africa (now Namibia)
to the Court by the General Assembly in December 1949 marked just the start of what
was to become a long and intricate judicial process. 21 That legal process extended for a
period of over three decades. The findings made by the Court on the international status
of this territory in that first advisory opinion, paved the way for many of the actions
which were undertaken later by the General Assembly, the Security Council, and certain
concerned States, in compelling South Africa, the Mandatory Power, to secure the
process leading to Namibia’s independence. From 1949 until 1971 the Court remained
actively engaged with different legal issues concerning the decolonization process of
South-West Africa, 22 issuing four advisory opinions and two judgments 23.

The South-West Africa Decolonization cases were instrumental not only in clarifying
important legal aspects of the process of exercise by the peoples of South-West Africa of
their right to self-determination, but also with regard to the understanding of the right to
self-determination for non-self- governing territories and its place within the corpus of
general public international law. However, the legal proceedings surrounding the
decolonization process caused a huge controversy when in 1966, by the President’s
casting vote, the Court found that Liberia and Ethiopia could not be considered to have
established any legal right or interest in the subject matter of their claims against South-
Africa. 24 Eventually, the process of the decolonization of Namibia ended on 21 March

21
ICJ, International Status of South-West Africa, Advisory Opinion of 11 July 1950, ICJ Reports 1950, p.
128. The questions put forward by the General Assembly were the following:
“What is the international status of the Territory of South-West Africa and what are the international
obligations of the Union of South Africa arising therefrom, in particular:
(a) Does the Union of South Africa continue to have international obligations under the Mandate for South-
West Africa and, if so, what are those obligations?
(b) Are the provisions of Chapter XII of the Charter applicable and, if so, in what manner, to the Territory
of South-West Africa?
(c) Has the Union of South Africa the competence to modify the international status of the Territory of
South-West Africa, or, in the event of a negative reply, where does competence rest to determine and
modify the international status of the Territory?”.
22
ICJ, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), (Second Phase),
Judgment of 18 July 1966, ICJ Reports 1966, p. 6.
23
The South-West Africa Decolonization cases refer to the four advisory opinions and the two judgments
that were issued with regard to the problems surrounding the decolonization process of South-West Africa
(Namibia).
24
See South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase,

7
1990 with the independence of that territory.

The importance of the case law of the Court with regard to the development and
interpretation of the right of the people of South West Africa to self-determination is
manifold. First, through its advisory opinions delivered to the General Assembly and
Security Council of the UN, the Court clarified the aim and scope of the right of the
people of Namibia to self-determination and the related obligation incumbent upon other
States not to recognize the illegal situation created by the Mandatory Power, South
Africa, arguably including also the effective occupation of that territory. Second, by
adding its powerful voice to the international condemnation of the policy of apartheid as
practised by South Africa in Namibia the Court contributed to linking respect for
fundamental human rights with the right to self-determination. It is noteworthy in this
respect that the Court’s condemnation of the practice of apartheid was based on
considering this practice as an affront to the purposes and principles of the UN Charter.
In clarifying the duty of the Mandatory Power vis-à-vis the inhabitants of the territory
placed under its administration, the Court stated:

Under the Charter of the United Nations, the former Mandatory had pledged itself to
observe and respect, in a territory having an international status, human rights and
fundamental freedoms for all without distinction as to race. To establish instead, and to
enforce, distinctions, exclusions, restrictions and limitations exclusively based on
grounds of race, colour, descent or national or ethnic origin which constitute a denial of
fundamental human rights is a flagrant violation of the purposes and principles of the
Charter. 25

Those purposes and principles, besides promoting and encouraging respect for human
rights, include also developing friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples. 26

Third, and worth emphasizing, the findings of the Court served as a guide in the work of
the political organs of the UN and the advancement of their decolonization and related
human rights agenda. Moreover, the controversy following the Court’s 1966 judgment in
the South-West Africa Cases caused a discernible shift from an overly legally positivistic
into a more forward-looking and solution-based approach by the Court. The central
message of that international reaction was that the finding of a fine balance between the

Judgment of 18 July 1966, p. 51, par. 99.


25
ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p.
57, par. 131. South Africa signed the United Nations Convention on the Elimination of Racial
Discrimination on 3 October 1994 and ratified it only on 10 December 1998. For that reason no reference
could be made to obligations arising under this Convention.
26
See paragraphs 2 and 3 of Article 1 of the UN Charter.

8
letter and the spirit of the law and upholding certain basic human entitlements were part
and parcel of the duties with which the States composing the international community
had entrusted the Court. While the conclusion of the decolonization process and the
attainment of independence by Namibia came only after the end of the Cold War, it can
be said that the case law of the Court has played an important role in that process.

3.2 Western Sahara (Advisory Opinion of 16 October 1975)

On 13 December 1974 the General Assembly adopted resolution 3292 (XXIX) requesting
the Court for an advisory opinion on the issue of Western Sahara. The General Assembly
reaffirmed the right of the population of the Spanish Sahara to self-determination in
accordance with the Decolonization Declaration of 1960 and considered that the
persistence of a colonial situation in Western Sahara jeopardized stability and harmony in
the north-west African region. 27 The advisory opinion was necessary for the General
Assembly in any further steps it was to take on this issue in view of the conflicting
territorial claims that the Kingdom of Morocco and Mauritania had towards this territory.
As the Court itself noted, the opinion was sought for a practical and contemporary
purpose, namely, in order that the General Assembly be in a better position to decide on
the policy to be followed for the decolonization of Western Sahara. 28

In the Court’s opinion the right of that population to self-determination constituted a


basic assumption of the questions put before it.29 It further noted that the Decolonization
Declaration was complemented by General Assembly resolution 1541(XV) which
contemplated three possibilities for the decolonization process of non-self-governing
territories, namely (a) emergence as a sovereign independent State; (b) free association
with an independent State; or (c) integration with an independent State. 30 The validity of
the principle of self-determination, defined as the need to have due regard to the freely
expressed will of peoples, was, in the view of the Court, not affected by the fact that in
certain cases the General Assembly had dispensed with the requirement of consulting the
inhabitants of a given territory. 31 The Court was of the opinion that the decolonization
process envisaged by the General Assembly was one which respected the right of the
population of Western Sahara to determine their future political status by their own and
freely expressed will. 32 Further, the Court acknowledged that the General Assembly was

27
General Assembly Res. 3292 (XXIX) of 13 December 1974.
28
ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, p. 20, par. 20.
29
Ibidem.
30
See also General Assembly Res. 1541 of 15 December 1960, UN Doc. A/4684 (1960).
31
Western Sahara, p. 33, par. 59.
32
Ibid., p. 36, par. 70.

9
left with a measure of discretion with regard to the forms and procedures by which the
right to self-determination was to be realized. 33

In its advisory opinion of 16 October 1975 the Court mentioned two important
requirements for the exercise of the principle of self-determination, namely that the
expression thereof be (a) free, i.e. be taken without outside interference and, (b) genuine,
i.e. be the expressed will of the people of the territory concerned.34 Furthermore, the
Court drew attention to the 1970 Friendly Relations Declaration, which besides the three
options of emergence as a sovereign independent State, association and integration,
included also ‘any other political status freely determined by a people’. 35 Those findings
were in line with the position of the General Assembly itself, as expressed in its
numerous resolutions, including those concerning Western Sahara.

Besides rendering helpful legal advice to the General Assembly in discharging its
functions with regard to the decolonization of that territory, the opinion has contributed to
establishing: a) referenda, as being the accepted means of consultation of the popular
will, and; b) keeping Western Sahara on the UN agenda. It should be noted that the
decolonization process took another turn when Morocco annexed two-thirds of Western
Sahara in 1976 and the whole of it after Mauritania’s withdrawal in 1979. An UN-
brokered cease-fire, effective from September 1991, put a stop to the conflict between the
Polisario Front (Popular Front for the Liberation of the Saguia el Hamra and Rio de Oro)
and Morocco. Nevertheless, the attempts of the UN Mission for the Referendum in
Western Sahara (MINURSO) to hold a referendum have failed and the parties have thus
far rejected all brokered proposals. This is certainly an example where the advisory
opinion of the Court, if applied in good faith, could have brought about a just, peaceful
and lasting solution. Instead, its disregard has led to a long-standing conflict and the need
to deploy UN troops and humanitarian aid agencies in that region so as to contain the
conflict and alleviate human suffering.

3.3 East Timor (Portugal v. Australia, Judgment of 30 June 1995)

Portugal, the administering Power for the territory of East Timor, instituted proceedings
against Australia on 22 February 1991 concerning ‘certain activities of Australia with
respect to East Timor’. The subject-matter of the dispute was an agreement entered into
by Indonesia and Australia for the exploration of the continental shelf of the so-called
‘Timor gap’. Portugal contended that Australia had, by its conduct, ‘failed to
observe…the obligation to respect the duties and powers of [Portugal as] the

33
Ibid., p. 36, par. 71.
34
Ibid., p. 32, par. 55.
35
Ibid., p. 33, par. 58.

10
administering Power [of East Timor]…and... the right of the people of East Timor to self-
determination and the related rights [emphasis added]’. 36 Related rights in this case
included the right to territorial integrity and unity and permanent sovereignty over natural
wealth and resources, as corollaries of the right to self-determination of peoples. As a
consequence, Australia had to cease infringing the relevant international norms and it
owed reparation to the people of East Timor and to Portugal. 37

While acknowledging that ‘Portugal’s assertion that the right of peoples to self-
determination, as it evolved from the Charter and from United Nations practice, has an
erga omnes character, is irreproachable’, 38 the Court did not go any further in setting out
what exactly entailed that erga omnes character. Thus, the Court missed the opportunity
to clarify the scope of erga omnes obligations with regard to the right to self-
determination. Had the Court decided to pronounce even obiter on this issue, it would
have helped to bridge to some extent the gap between what Bruno Simma has called the
world of the ‘ought’ and the world of the ‘is’. 39 In any case, the publicity given to the
issue of East Timor simply by bringing it before the ICJ, coupled with the renewed
efforts of the international community, brought about the UN-supervised popular
referendum of 30 August 1999, where the East Timorese people voted for their
independence from Indonesia. 40 Thus, although the Court concluded that it had no
jurisdiction to entertain the case,41 it could be said that the legal proceedings before it
seem to have had a positive impact on the solution of the problem of East Timor.42

3.4 Legality of the Construction of a Wall in the Occupied Palestinian Territory


(Advisory Opinion of 9 July 2004)

In this advisory opinion the Court looked at the right of the Palestinian people to self-

36
ICJ, East Timor (Portugal v. Australia), ICJ Reports 1995, p. 92, par. 1.
37
East Timor, Application of 22 February 1991, par. 32. Available at: http://www.icj-
cij.org/docket/files/84/6809.pdf (last accessed on 1 November 2009).
38
East Timor, ICJ Reports 1995, p. 102, par. 29.
39
B. Simma, Does the UN Charter provide an Adequate Legal Basis for Individual or Collective Responses
to Violations of Obligations erga omnes?, in: Delbrück, J. (ed.), The Future of International Law
Enforcement, New Scenarios-New Law?, Berlin: Duncker & Humblot, 1993, p. 126.
40
After the referendum of 30 August 1999 the transitional government was entrusted to the United Nations
Transitional Administration of East Timor (UNTAET), which was established on 25 October 1999.
UNTAET administered the territory until 20 May 2002 when East Timor became officially independent.
41
East Timor, ICJ Reports 1995, p. 106, par. 38. In paragraph 29 of the judgment the Court had already
stated that it could not rule on the lawfulness of the conduct of a State when its judgment would imply an
evaluation of the lawfulness of the conduct of another State which is not a party to the case, even if the
right in question were a right erga omnes.
42
Rosenne’s The World Court: What It Is and how It Works, 6th completely revised edition by T.D. Gill,
Leiden: Martinus Nijhoff Publishers, 2003, p. 193.

11
determination as part of the rules and principles of international law relevant to assessing
the legality of the construction of a wall in the Occupied Palestinian Territory. The
Palestinian case can be seen as an interrupted case of decolonization,43 where the armed
conflict and occupation by Israel and subsequent events have resulted in a denial of the
right to self-determination to the Palestinian people. In clarifying the principle of self-
determination, as enshrined in a number of key international instruments, the Court
noted:

[T]he principle of self-determination of peoples has been enshrined in the United Nations
Charter and reaffirmed by the General Assembly in resolution 2625 (XXV) cited above,
pursuant to which “Every State has the duty to refrain from any forcible action which
deprives peoples referred to [in that resolution] . . . of their right to self-determination.”
Article 1 common to the International Covenant on Economic, Social and Cultural Rights
and the International Covenant on Civil and Political Rights reaffirms the right of all
peoples to self-determination, and lays upon the States parties the obligation to promote
the realization of that right and to respect it, in conformity with the provisions of the
United Nations Charter. 44

The duty incumbent upon every State to refrain from any forcible action which deprives
people of their right to self-determination, referred to by the Court would necessarily
include acts of foreign military intervention, aggression and occupation.

Recalling its 1971 advisory opinion on South-West Africa the Court stated that
international law in regard to non-self-governing territories, as enshrined in the Charter of
the United Nations, made the principle of self-determination applicable to all [such
territories] and that these developments left little doubt that the ultimate objective of the
sacred trust referred to in Article 22, paragraph 1, of the Covenant of the League of
Nations was the self-determination of the peoples concerned. 45 After outlining the
development of this right through its own jurisprudence the Court recalled its position
that at present this right has an erga omnes character.46

With regard to the existence of a ‘Palestinian people’ the Court stated:

As regards the principle of the right of peoples to self-determination, the Court observes
that the existence of a “Palestinian people” is no longer in issue. Such existence has
moreover been recognized by Israel in the exchange of letters of 9 September 1993
43
ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (hereinafter
Wall), Advisory Opinion of 9 July 2004, ICJ Reports 2004, pp. 165-167, pars. 70-78.
44
Wall, pp. 171-172, par. 88.
45
Wall, p. 172, par. 88.
46
Ibidem. The relevant part reads: ‘The Court indeed made it clear that the right of peoples to
self-determination is today a right erga omnes (see East Timor (Portugal v. Australia), Judgment, I.C.J.
Reports 1995, p. 102, para. 29).’

12
between Mr. Yasser Arafat, President of the Palestine Liberation Organization (PLO) and
Mr. Yitzhak Rabin, Israeli Prime Minister. In that correspondence, the President of the
PLO recognized “the right of the State of Israel to exist in peace and security” and made
various other commitments. In reply, the Israeli Prime Minister informed him that, in the
light of those commitments, “the Government of Israel has decided to recognize the PLO
as the representative of the Palestinian people”. The Israeli-Palestinian Interim
Agreement on the West Bank and the Gaza Strip of 28 September 1995 also refers a
number of times to the Palestinian people and its “legitimate rights”. The Court considers
that those rights include the right to self-determination, as the General Assembly has
moreover recognized on a number of occasions. 47

The Court has avoided providing a definition of a people in general and in the case at
hand of the Palestinian people, choosing instead to rely on political statements. That
choice does not provide much guidance or certainty as to what constitutes a people. In
any event, the Court noted en passant two of the traditional elements of a State, namely a
people and a government. Moreover, it put on record those basic, but yet cornerstone
commitments that the two parties involved in the conflict had made to each other. Having
concluded that the construction, along with measures taken previously, severely impeded
the exercise by the Palestinian people of its right to self-determination, and was therefore
a breach of Israel’s obligation to respect that right, 48 the Court went on to clarify the
obligations of Israel and other States stemming from the erga omnes nature of the right to
self-determination. 49

As the Court recalled, ‘Every State has the duty to promote, through joint and separate
action, realization of the principle of equal rights and self-determination of peoples, in
accordance with the provisions of the Charter, and to render assistance to the United
Nations in carrying out the responsibilities entrusted to it by the Charter regarding the
implementation of the principle…[emphasis added]’. 50 Thus, according to the Court, self-
determination as a right erga omnes, entailed the duty of every State to promote that right
through joint and separate action. Furthermore, the Court opined that all States, while
respecting the United Nations Charter and international law, should see to it that any
impediment, resulting from the construction of the wall, to the exercise by the Palestinian

47
Ibid., pp. 182-183, par. 118.
48
Ibid., p. 184, par. 122.
49
Ibid., p. 199, par. 155. As the Court observed: “[T]he obligations violated by Israel include certain
obligations erga omnes. As the Court indicated in the Barcelona Traction case, such obligations are by
their very nature “the concern of all States” and, “In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection.” (Barcelona Traction, Light and Power
Company, Limited, Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para. 33.) The obligations erga
omnes violated by Israel are the obligation to respect the right of the Palestinian people to
self-determination, and certain of its obligations under international humanitarian law.”
50
Ibid., p. 199, par. 156.

13
people of its right to self-determination was brought to an end. 51 However,
notwithstanding the broad language used, it is not entirely clear what that duty entails for
every State. Arguably, that would include at least a duty to ensure that no aid funds are
used to impede or obstruct the right of the Palestinian people to self-determination, and
that no companies vested in these States render a contribution in building a construction
deemed illegal under international law.

3.5 Pending Advisory Opinion on Kosovo’s Declaration of Independence


(October 2008 – ongoing)

On 17 February 2008 Kosovo declared its independence after almost nine years of UN
administration. The Serbian reaction was immediate; Serbian officials asked the Security
Council and the Secretary-General of the UN to declare that act as illegal. However, the
latter’s inaction in taking a position regarding this issue and the recognition of Kosovo by
other States seemingly left open only the judicial venue, that is, the ICJ. Thus, upon
Serbia’s request as sole sponsor of the resolution, on 6 October 2008 the General
Assembly of the UN adopted resolution 63/3 requesting an advisory opinion from the
Court. 52 The question put before the Court is the following: ‘Is the unilateral declaration
of independence by the Provisional Institutions of Self-Government of Kosovo in
accordance with international law?’ A considerable number of articles have been
published on the issue of Kosovo’s final status. 53 On its face the question put before the
51
Ibid., p. 200, par. 159. Not all judges seem to have shared this finding of the Court. In paragraph 33 of
his Separate opinion Judge Kooijmans expressed some doubts about how those obligations were to be
construed: “In the East Timor case the Court called the rights of peoples to self-determination in a colonial
situation a right erga omnes, therefore a right opposable to all. But it said nothing about the way in which
this “right” must be translated into obligations for States which are not the colonial Power. And I repeat the
question: Is every impediment to the exercise of the right to self-determination a breach of an obligation to
respect it? Is it so only when it is serious? Would the discontinuance of the impeding act restore the right or
merely bring the breach to an end?” Judge Higgins did not agree with the view that the obligations of States
were founded on the notion of erga omnes obligations. According to her the erga omnes notion has nothing
to do with imposing substantive obligations on third parties to a case. In paragraph 38 of its Separate
Opinion Judge Higgins stated that although in the present case it is the Court, rather than a United Nations
organ acting under Articles 24 and 25, that has found the illegality; and although it is found in the context
of an advisory opinion rather than in a contentious case, the Court’s position as the principal judicial organ
of the United Nations suggests that the legal consequence for a finding that an act or situation is illegal is
the same.
52
The General Assembly resolution was adopted by a recorded vote of 77 in favor to 6 against, with 74
abstentions. For more information see UN Doc. GA/10764, available at:
http://www.un.org/News/Press/docs/2008/ga10764.doc.htm (last accessed on 1 November 2009).
53
See inter alia the following articles: R. Müllerson, Precedents in the Mountains: On the Parallels and
Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia, Chinese Journal of International Law
(2009), Vol. 8, No. 1, pp. 2-25; J. Bing Bing, The Independence of Kosovo: A Unique Case of Secession?,
Chinese Journal of International Law (2009), Vol. 8, No. 1, pp. 27–46; P. Hilpold, The Kosovo Case and
International Law: Looking for Applicable Theories, Chinese Journal of International Law (2009), Vol. 8,

14
Court is not about the right to self-determination of a people itself, but instead focuses on
the manner of the declaration of a country’s independence and the processes
accompanying the birth of a new State. However, the Court in many instances has chosen
to interpret widely questions put to it or to deal with related issues in the course of
providing its answer, so it is not unlikely that the Court could pass upon some yet
unresolved questions regarding the right to self-determination outside a decolonization
context.

As already noted, Kosovo’s case is entirely distinct from the other cases discussed so far,
since it clearly does not lend itself to the legal framework applicable in a decolonization
process. 54 On the contrary, it is a specific case where the people of a territory enjoying a
special status declares its independence from the parent State, despite strong opposition
from the latter. The circumstances of the issuance by the Kosovar authorities of their
declaration of independence, the character of the Kosovo problem, shaped by the violent
disintegration of Yugoslavia, a decade-long of State sanctioned discrimination and denial
of self-determination starting with the revocation of autonomy of Kosovo in 1989, the
ethnic cleansing campaign against Kosovar Albanians which was brought to an end by
the NATO military intervention of 1999, and an extended period of international
administration under Security Council Resolution 1244 (1999) of almost nine years make
the claim of the people of Kosovo to independence a clearly exceptional and complex
case. It bears mentioning that an attempt to resolve Kosovo’s final status through a
Security Council resolution in the summer of 2007 failed to get the necessary support.

Interest in this case is quite high due to the fact that two equally important principles of
international law seem to be competing, namely the right to self-determination of
peoples, including the right to secede, and that of territorial integrity. 55 Finding a balance
in the perpetual clash between the right of a people to freely determine their political
status as an expression of external self-determination and the preservation of a State’s
borders as an expression of the principle of territorial integrity is no easy task. The true
challenge for the Court will be to interpret these interrelated concepts correctly, in
particular in view of the importance of respect for human rights and considerations of

No. 1, pp. 47–61; B. Muharremi, Kosovo's Declaration of Independence: Self-Determination and


Sovereignty Revisited, Review of Central & East European Law, 2008, Vol. 33, No. 4, pp. 401-435.
54
The author should disclose here his involvement in this case as Co-Counsel and Coordinator for the
Albanian legal team.
55
In the first phase of the written proceedings in this case 36 Member States to the UN, including
Venezuela filing one week after the 17 April 2009 deadline, filed their submissions, while 14 States
Member to the UN participated in the second phase. Kosovo also submitted its arguments in both rounds.
The public hearings in this case are scheduled to open on 1 December 2009. For more information see ICJ
Press Release No. 2009/27 of 29 July 2009, available at: http://www.icj-cij.org/docket/files/141/15349.pdf
(last accessed on 1 November 2009).

15
legitimacy. Although a large number of the States participating in the written proceedings
have explicitly urged the Court to construe the question narrowly, 56 were the Court to
dwell into the issue of the right to self-determination, it would perforce contribute to
clarifying the right to self-determination of peoples through secession.

3.6 Some General Remarks

Through its findings in the South West Africa cases, the Western Sahara case, the East
Timor case, and the Wall, besides providing guidance for the other main organs of the
UN, the Court has contributed to interpreting and developing the right to self-
determination of peoples and related duties and obligations. An important finding in that
regard is acknowledging the erga omnes character of the right to self-determination and
its place as one of the essential principles of contemporary international law. Although
the Court has yet to spell out in clear terms the obligations which such qualification
entails for the entire community of States, it is submitted that the language employed by
the Court suggests that such obligations would require the taking of active steps on the
part of the violating State, but also on the part of every other State not only to put an end
to a breach of this right, but also to actively promote its fulfilment.

Given that the right to self-determination is a basic right by virtue of which peoples can
freely determine their political status and freely pursue their economic, social and cultural
development, the legal contribution of the Court to the process of decolonization
becomes all the more important. The couching of this right in clear legal terms, a process
in which the Court has been largely involved from the beginning, has contributed to
transforming this right into a cornerstone of international law. The substantial increase in
the number of member States of the UN from its 51 original members to 192 at present is
in large part one of the results of this process. 57 Arguably, in two of the cases dealt with
above the bringing of the matter before the Court served as a catalyst to the political
solution that was reached at a later stage.

4. Place of Secession under International Law

There is certainly a need for a principled international response to demands for self-
determination through secession. 58 The neutral position and ambiguous language

56
Besides a number of States supporting Kosovo’s independence, the group of States maintaining this
position included also Serbia itself.
57
For a general list see J. Crawford, The Creation of States in International Law, 2nd edition, New York:
Oxford University Press, 2007, p. 187. That list on the creation of States and UN admission lists 99 States
existing in December 1960, while there are 192 States member to the UN at present.
58
See A. Buchanan, A Principled International Legal Response to Demands for Self-Determination, in
Identity, Self-Determination and Secession, I. Primoratz and A. Pavković, Ashgate, 2006, pp. 139-154.

16
employed by the UN with regard to self-determination through secession is present in the
1992 Agenda for Peace Report, where the Secretary-General stated: ‘The United Nations
has not closed its door. Yet if every ethnic, religious or linguistic group claimed
statehood, there would be no limit to fragmentation, and peace, security and economic
well-being for all would become ever more difficult to achieve.’ 59 That notwithstanding,
this same document tries to give some guidance regarding the interface between
competing principles of equal importance. According to the Secretary-General:

The sovereignty, territorial integrity and independence of States within the established
international system, and the principle of self-determination for peoples, both of great
value and importance, must not be permitted to work against each other in the period
ahead. Respect for democratic principles at all levels of social existence is crucial: in
communities, within States and within the community of States. Our constant duty should
be to maintain the integrity of each while finding a balanced design for all. 60

While the political organs of the UN have professed and adopted a neutral position vis-à-
vis the issue of secession, unless that is in violation of peremptory norms of international
law, the Court on the other hand has to decide with finality any such issues brought
before it. In that sense the Court cannot remain neutral and its decisions necessarily have
broad repercussions for the development and interpretation of related rules and principles.

Self-determination disputes in the 21st century mainly occur under circumstances where a
part of a population in a multi-ethnic State openly expresses its aspiration to internal self-
determination, that is a high or higher degree of autonomy, or in the extreme case its
claim to external self-determination and statehood. Regardless of the extent of such
demands, practice shows that attempts of this nature are usually met with stringent, if not
outright violent measures by the central government. While until 1914 secession was the
most conspicuous and probably the most common method of the creation of new States,
State practice since 1945 shows the extreme reluctance of States to recognize or accept
unilateral secession outside the colonial context. 61 The high degree of sensitivity involved
in these issues and the dearth of cases seem to have steered many writers into adopting
the view that secession is neither legal, nor illegal under international law. 62 However,
59
An Agenda for Peace: Preventive diplomacy, peacemaking and peace-keeping, Report of the Secretary-
General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January
1992, UN. Doc. A/47/277 - S/24111, par. 17.
60
An Agenda for Peace: Preventive diplomacy, peacemaking and peace-keeping, Report of the Secretary-
General pursuant to the statement adopted by the Summit Meeting of the Security Council on 31 January
1992, UN. Doc. A/47/277 - S/24111, par. 20.
61
See J. Crawford, The Creation of States in International Law, 2nd edition, Oxford University Press: New
York, 2007, p. 375 and 415. More generally on secession see Crawford, ibid., pp. 374-448.
62
Thus, Crawford, supra note 61, states: ‘The position is that secession is neither legal nor illegal in
international law, but a legally neutral act the consequences of which are regulated internationally.’ See
also A. Tancredi, “A normative ‘due process’ in the creation of States through secession”, in M.G. Kohen
(ed.), Secession: International Law Perspectives, Cambridge University Press, 2006, p. 172 and footnote 3,
listing a number of authors agreeing with this view.

17
other views for or against secession have also been expressed. 63 Case law on these issues
is also scarce and thus barely conclusive.

Notwithstanding the general paucity of cases, the case of Quebec stands out in that it
squarely addresses the issue of the right to self-determination through secession. That
case was decided by the Canadian Supreme Court in 1998. 64 In dealing with the place of
external self-determination in international law that court noted:

In summary, the international law right to self-determination only generates, at best, a right to
external self-determination of former colonies; where a people is oppressed as for example
under foreign military occupation; or where a definable group is denied meaningful access to
the government to pursue their political, economic, social and cultural development. In all
three situations the people in question are entitled to right to external self-determination
because they have been denied the ability to exert internally their right to self-
determination. 65

While implicitly favouring internal self-determination over external self-determination,


the Canadian Supreme Court envisaged three scenarios under which peoples would be
entitled to the right to external self-determination. Two of them would fall outside the
decolonization context. The first one seems to include a combination of self-
determination and the prohibition of the acquisition of territory by force, whereas the
second would cover the so-called ‘Saving Clause’ requirement for a representative
government, as expressed in the 1970 Friendly Relations Declaration.66 As Dugard and

63
In paragraph 6 of its General Recommendation No. XXI of 23 August 1996 the Committee on the
Elimination of Racial Discrimination (CERD) stated: ‘In the view of the Committee, international law has
not recognized a general right of peoples unilaterally to declare secession from a State. In this respect, the
Committee follows the views expressed in An Agenda for Peace (paras. 17 and following), namely, that a
fragmentation of States may be detrimental to the protection of human rights, as well as to the preservation
of peace and security. This does not, however, exclude the possibility of arrangements reached by free
agreements of all parties concerned.’
64
Reference re Secession of Quebec, [1998] 2 S.C.R. 217. See also the amicus briefs by 5 experts, namely
T.M. Franck, R. Higgins, A. Pellet, C. Tomuchat, M.N. Shaw in ‘L’Integrite territoriale du Québec dans
l’hypothese de l’accession à la souveraineté’, Commission d’Etude des Questions Afferentes à l’Accession
du Quebec à la Souveraineté, Assemblée Nationale, Exposés et Etudes, Volume 1 (1992), pp. 377-461;
online at: http://www.uni.ca/library/5experts.html (last accessed on 1 November 2009). See also several
expert opinions in A. Bayefsky, Self-Determination in International Law: Quebec and Lessons Learned,
The Hague: Kluwer Law, 2000.
65
Reference re Secession of Quebec, [1998] 2 S.C.R. 217, par. 138; also in International Legal Materials,
1998, 1340, 1373. Available online at: http://scc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-
217.pdf (last accessed on 1 November 2009).
66
The Saving Clause in General Assembly Resolution 2625 (XXV) of 24 October 1970 (Declaration on
Principles of International Law Concerning Friendly Relations and Cooperation among States in
Accordance with the Charter of the United Nations) reads: ‘Nothing in the foregoing paragraphs shall be
construed as authorizing or encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent States conducting themselves in

18
Raič note, within the framework of the qualified secession doctrine there is general
agreement on the constitutive parameters for a right of secession, namely, (a) there must
be a people, which, though forming a numerical minority in relation to the rest of the
population of the parent State, forms a majority within a part of the territory of that State;
(b) the State from which the people in question wishes to secede must have exposed that
people to serious grievances (carence de souveraineté), consisting of either i) a serious
violation or denial of the right of internal self-determination of the people concerned
(through, for instance, a pattern of discrimination), and/or ii) serious and widespread
violations of fundamental human rights of the members of that people; (c) there must not
be (further) realistic and effective remedies for the peaceful settlement of the conflict.67
Evidently, the cumulative requirements regarding the exercise of the right to self-
determination through secession have been carefully and narrowly construed for obvious
reasons.

5. Applicability of the Court’s Findings in Cases of Self-Determination


through Secession

Based on a close examination of the Court’s case law it can be concluded with certainty
that international law in regard to non-self-governing territories, as enshrined in the
Charter of the United Nations, made the principle of self-determination applicable to all
of them. 68 By contrast, outside a decolonization context it is difficult to draw conclusions
regarding claims to self-determination that would be generally acceptable to all States.
Security Council resolutions and State practice with regard to attempts to secede,
however, demonstrate that secession in violation of a peremptory norm of international
law has met with collective non-recognition of the new State entity. Otherwise, as noted
above, outside the decolonization context and the cases of Palestine and Southern Africa
the main UN organs have remained neutral with regard to claims to self-determination. If
there is anything that all States would agree upon is that secession from an existing State
should be a narrowly and carefully construed exception. Thus, it is no coincidence that
successful cases of secession can be counted with one hand. Since there is no ready-made
formula to properly balance the competing demands of self-determination and territorial

compliance with the principle of equal rights and self-determination of peoples as described above and
thus possessed of a government representing the whole people belonging to the territory without distinction
as to race, creed or colour. [emphasis added]’, in M.D. Evans, International Law Documents, 6th edition,
Oxford University Press: New York, 2003, pp. 161-162; repeated in the Vienna Declaration and
Programme of Action, adopted at the World Conference on Human Rights in Vienna, Austria on 25 June
1993, UN Doc. A/CONF.157/23.
67
J. Dugard and D. Raič, ‘The role of recognition in the law and practice’ in M.G. Kohen (ed.), Secession:
International Law Perspectives, Cambridge University Press, 2006, p. 109 and footnote 42.
68
ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, p.
31, par. 53.

19
integrity in multi-ethnic States and as long as doubts remain regarding what kind of
power-sharing arrangements have the best chance to work, these issues seem to remain
primarily a matter of sometimes protracted political negotiations.

Can the Court’s findings with regard to self-determination in a decolonization context be


applied to other situations? With regard to the exercise of the right of self-determination,
the broad limitation of the principle of uti possidetis juris has been accepted as generally
applicable by the Court. The main aim of this principle is to achieve the stability of
territorial boundaries by preserving the former administrative or colonial boundaries of a
State. The ICJ recognized the application of this principle in a frontier delimitation case
which arose in the context of emerging States on the African continent. With regard to
the rationale for the application of this principle the Court stated:

[T]he maintenance of the territorial status quo in Africa is often seen as the wisest course, to
preserve what has been achieved by peoples who have struggled for their independence, and
to avoid a disruption which would deprive the continent of the gains achieved by much
sacrifice. The essential requirement of stability in order to survive, to develop and gradually
to consolidate their independence in all fields, has induced African States judiciously to
consent to the respecting of colonial frontiers, and to take account of it [i.e of uti possidetis]
in the interpretation of the principle of self-determination of peoples. 69

While arbitrary reliance on uti possidetis could eventually play a negative role in the
negotiation process towards finding just and lasting solutions to conflicts relating to the
exercise of the right to self-determination, at a bare minimum this principle offers a
starting point for the parties involved in such disputes.

Respect for the wishes of the people concerned is another finding of the Court which
would be applicable outside the decolonization context. That position is in accordance
with the principles and purposes of the Charter and the protection of human rights and
fundamental freedoms. In the Western Sahara case the Court besides acknowledging the
necessity for ascertaining that will, also indicated the basic requirements accompanying

69
ICJ, Case Concerning the Frontier Dispute (Burkina Faso v. Mali), ICJ Reports 1986, p. 567. The Court,
despite recognizing that uti possidetis is a ‘general principle’ and a ‘rule of general scope’ in the case of
decolonization, as stated in the Frontier Dispute (Burkina Faso v. Mali) case, it never adjudicated whether
uti possidetis is a norm of customary law. This is so because, ‘[i]n these types of border disputes, both
parties have stipulated by compromis or otherwise that their boundary would be determined according to
the borders in effect at the time of independence. Nevertheless, the repeated assumption by the Court that
uti possidetis is a norm of international law is probative. Without definitely opining on the issue, one may
thus assume some support for regarding uti possidetis as a norm of regional customary law in Latin
America and Africa, if not a general norm as well, in the context of decolonization. For more details see
inter alia S.R. Ratner, Drawing A Better Line: Uti Possidetis and the Borders of New States, AJIL, Vol. 90,
1996, p. 590.

20
the process of its expression. According to the Court, that expression need be: (a) free,
i.e. be taken without outside interference and, (b) genuine, i.e. be the expressed will of
the people of the territory concerned. That is particularly important since secession
involves a political movement and related activities within an existing State. The UN and
a number of regional organizations could eventually play a supervisory role so that these
conditions are met in referenda that can be held to ascertain that popular will. The Court,
as an organ of international law, could provide useful legal guidance, given there is the
necessary political will and international involvement to bring about a durable solution.
Evidently, the recurring issue of key international players’ support for opposing claims in
a self-determination dispute makes the resolution of such disputes even more difficult to
achieve.

Obviously, coining a set of criteria generally applicable to self-determination through


secession is not the duty of the Court, since the latter does not deal with questions in
abstracto, but with specific cases. Moreover, the benefits of such an exercise are to say
the least doubtful. Conspicuously, even when the Court has clarified the legal situation
pertaining to a case, political considerations have strongly conditioned implementation of
the Court’s recommendations. A number of existing claims to self-determination seem to
satisfy a number of relevant criteria of remedial secession as mentioned above, 70 but they
have not met with wide international support, on the contrary. The criteria referred to
above leave aside non-legal considerations such as size, economic viability, and eventual
disruption that might be caused by such claims. Since international law concerns a State-
centred system, which puts value in respect for the territorial integrity of existing States,
secession cannot but be a carefully construed exception, to be considered on its merits on
a case by case approach.

6. Concluding Remarks

Self-determination belongs to an area where states’ interests and views are so conflicting
that states are unable to agree upon definite and specific standards of behaviour and must
therefore be content with the loose formulation of very general guidelines or principles. 71
The Court has been able to entrench this right within the corpus of international law,
through two principles; the first holding that the right to external self-determination

70
See supra note 67. Such criteria include the existence of a people, denial to them of the right to self-
determination and subjection to a sustained campaign of discrimination, that people occupies a part of the
territory of the existing State, which is severable. According to Buchheit, ‘Remedial secession envisions a
scheme by which, corresponding to the various degrees of oppression inflicted upon a particular group by
its governing State, international law recognizes a continuum of remedies ranging from protection of
individual rights, to minority rights, and ending with secession as the ultimate remedy.’ In L.C. Buchheit,
Secession: The Legitimacy of Self-Determination, New Haven: Yale University Press, 1978, p. 222.
71
A. Cassese, supra note 1, p. 351.

21
belongs to all dependent territories and second, that of non-recognition of acts of foreign
military intervention, aggression and occupation, which result in violation of the right of
peoples to self-determination. This second principle is in line with that adopted by the
General Assembly in its last resolutions on this matter. 72 While the Court’s role in the
context of the decolonization process has been described as secondary to the political
organs of the UN, especially the General Assembly, 73 its support to the activity of these
organs and to the further development of international law in this area cannot be
overstated. As Ragazzi has pointed out, the Court has generally adopted a ‘value-
oriented’ approach; 74 an approach which seemingly aims at giving certain fundamental
human rights strong legal support. 75 By coining and using concepts such as ‘obligations
erga omnes’ 76 and acknowledging the erga omnes character of the right of peoples to
self-determination, or through its interpretation of the ‘sacred trust of civilisation’, the
ICJ has contributed to promoting respect for human rights and human dignity and in a
larger perspective to the realization of the right to self-determination of peoples.
Seemingly, in the Court’s view erga omnes obligations with respect to the right to self-
determination include the duty to promote, through joint and separate action, realization
of the principle of equal rights and self-determination of peoples, in accordance with the
provisions of the Charter, and to render assistance to the United Nations in carrying out
the responsibilities entrusted to it by the Charter regarding its implementation.

By looking at the case law of the Court is difficult to come to a holistic approach to self-
determination. That notwithstanding, the Court has been mindful of the development of
international law and the place of the right to self-determination within that framework.
That is best illustrated by this finding of the Court, where it stated:

In the domain to which the present proceedings relate, the last fifty years, as indicated
above, have brought important developments. These developments leave little doubt that

72
See General Assembly Res. 59/180 of 20 December 2004 entitled ‘Universal realization of the right of
peoples to self-determination’. In the relevant paragraph this resolution reads: ‘Declares its firm opposition
to acts of foreign military intervention, aggression and occupation, since these have resulted in the
suppression of the right of peoples to self-determination and other human rights in certain parts of the
world. [emphasis in original]’
73
J. Crawford, supra note 1, pp. 592 and 605.
74
M. Ragazzi, The Concept of International Obligations Erga Omnes, Oxford University Press, 1997, p.
72.
75
See G. Zyberi, supra note 1, pp. 29-31.
76
The Court in the Barcelona Traction case held that the obligations of a State towards the international
community are obligations erga omnes. Such obligations derive, for example in contemporary international
law from… principles and rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body
of general international law…; others are conferred by international instruments of a universal or quasi-
universal character a whole. See Barcelona Traction, Judgment of 5 February 1970, ICJ Reports 1970, p.
32, par. 33.

22
the ultimate objective of the sacred trust was the self-determination and independence of
the peoples concerned. In this domain, as elsewhere, the corpus iuris gentium has been
considerably enriched, and this the Court, if it is faithfully to discharge its functions, may
not ignore. 77

As the list of cases relating to the right to self-determination shows, 78 the Court has been
most active with such issues in the time span stretching from 1950 to 1975. From the
seven cases decided in this period, six of them relate to the process of decolonization of
South West Africa (Namibia). Also the seventh case, namely that on Western Sahara,
displays a lot of similarities with the South-West Africa Cases. Most of these cases were
meant to provide the main UN organs with guidance in the process of decolonization of
the respective territories. The case of East Timor has a somewhat peculiar nature, having
been brought before the Court on behalf of the people of East Timor by its former
mandatory power, Portugal. The right to self-determination and the obligations arising
from its erga omnes character were dealt with by the Court in the 2004 Wall advisory
opinion. The case of Kosovo, currently pending before the Court, signals a change in the
nature of the disputes relating to the exercise of a people of the right to self-
determination.

Some of the findings made by the Court in cases relating to self-determination seem to be
generally applicable in the situation of self-determination through secession. In an often-
quoted dictum the Court exposed the importance of the principle of uti possidetis juris
with respect to the issue of borders. 79 As the Court stated in that case, uti possidetis is a
general principle logically connected with the phenomenon of the obtaining of
independence wherever it occurs. 80 That position of the Court seems to have been
adopted by the Badinter Arbitration Commission in its Third Opinion concerning the
issue of borders in the framework of the break up of the former Yugoslavia. 81 Another
important principle evoked by the Court is that of respect for the wishes of the people
concerned. According to the Court that will would need to be ascertained through a
referendum which needs to satisfy two criteria, namely be free, that is be taken without

77
ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports 1971, pp.
31-32, par. 53.
78
See Annex 1.
79
ICJ, Frontier Dispute (Burkina Faso v. Mali), ICJ Reports 1986, p. 565, para. 20.
80
Ibidem.
81
See inter alia Opinion No. 3 of the Badinter Arbitration Commission; E. McWhinney, Self-
Determination of Peoples and Plural-ethnic States in Contemporary International Law, Leiden-Boston:
Martinus Nijhoff Publishers, 2007, pp. 53-59. Applying the principle of uti possidetis, the Commission
concluded on 11 January 1992 that ‘The boundaries between Croatia and Serbia, between Bosnia and
Herzegovina and Serbia, and possibly other adjacent independent states may not be altered except by
agreement freely arrived at.’ and ‘Except where otherwise agreed, the former boundaries become frontiers
protected by international law.’ 31 I.L.M. 1500 (1992).

23
outside interference and, genuine, that is be the expressed will of the people of the
territory concerned.

The implementation of human rights, including the right to self-determination, is a


continuous struggle that is carried on in different arenas and levels. The ICJ, although it
does not represent a primary forum where individuals or groups of individuals can claim
their human rights, is, nevertheless, a judicial body that has contributed in the
emancipation of the community of States through a twofold function. First, the Court has
and continues to interpret and develop international human rights rules and principles in
cases which have been brought before it; and, second, while keeping the fabric of
international law together it ensures a balanced interaction between the different branches
of international law and competing interests. In this way the Court contributes towards
achieving an optimum protection of human rights and mainstreaming human rights
within the general framework of international law, thus creating an environment more
conducive to their realization. The interpretation and development of the right of peoples
to self-determination through its case law is an example of that contribution.

Gentian Zyberi

24
ANNEX 1

List of Cases Submitted to the Court Relating to the Right to Self-Determination.

No. Parties Name of the Case Year


of
Filing
1. General Assembly International Status of South-West Africa 1949
(Advisory Opinion)
2. General Assembly Voting Procedure on Questions Relating to 1954
(Advisory Opinion) Reports and Petitions Concerning the
Territory of South-West Africa
3. General Assembly Admissibility of Hearings of Petitioners by 1955
(Advisory Opinion) the Committee on South West Africa
4. Ethiopia v. South South West Africa Cases (Preliminary 1962
Africa Liberia v. South Objections)82
Africa
5. Ethiopia v. South South West Africa Cases (Second Phase) 1966
Africa and Liberia v.
South Africa
6. Security Council Legal Consequences for States of the 1970
(Advisory Opinion) Continued Presence of South Africa in
Namibia (South West Africa)
notwithstanding Security Council
Resolution 276 (1970)
7. General Assembly Western Sahara 1974
(Advisory Opinion)
8. Portugal v. Australia East Timor 1991
9. General Assembly Legal Consequences of the Construction of 2003
(Advisory Opinion) a Wall in the Occupied Palestinian
Territory
10. Georgia v. Russian Application of the International Convention 2008
Federation on the Elimination of All Forms of Racial
Discrimination
11. General Assembly Accordance with International Law of the 2008
(Advisory Opinion) Unilateral Declaration of Independence by
the Provisional Institutions of Self-
Government of Kosovo

82
Proceedings in the two cases, namely Ethiopia v. South Africa and Liberia v. South Africa were joined on
20 May 1961.

25

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