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SELF-DETERMINATION THROUGH THE LENS OF THE INTERNATIONAL COURT OF JUSTICE by Gentian Zyberi* 1.

Introduction

2.

Right to self-determination within the UN legal framework

3. 3.1 3.2 3.3 3.4

3.6

Court’s case law on self-determination South West Africa Decolonization cases (1949-1971) Western Sahara (Advisory Opinion of 16 October 1975) East Timor (Portugal v. Australia, Judgment of 30 June 1995) Legality of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion of 9 July 2004) Pending advisory opinion on Kosovo’s declaration of independence (October 2008 – ongoing) 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

3.5

* Dr. Gentian Zyberi, Lecturer and Researcher in International Law, Netherlands Institute of Human Rights (SIM), Utrecht University, The Netherlands.

Netherlands International Law Review, LVI: 429-453, 2009 © 2009 T.M.C. Asser Instituut and Contributors doi:10.1017/S0165070X0900429X

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INTRODUCTION

The law relating to self-determination of peoples is among the areas of international law where the decisions of the International Court of Justice (ICJ or Court) 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. Selfdetermination is a rather contentious issue; hence, it is not surprising that the Court still continues to be confronted with related disputes, although 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 is 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

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 (Antwerpen, 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 V. Lowe and M. Fitzmaurice, eds., Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (Cambridge, Cambridge University Press 1996) respectively pp. 351-363 and pp. 585-606. 2. See, inter alia, R. Higgins, ‘Human Rights in the International Court of Justice’, 20 Leiden JIL (2007) p. 747; R. Higgins, ‘Self-Determination and Secession’, in J. Dahlitz, ed., Secession and International Law (The Hague, T.M.C. Asser Press 2003) p. 24. 3. See for more details R.C.A. White, ‘Self-Determination: Time for a Re-Assessment’, 28 NILR (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.

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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 examine 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 inquire whether those main rules and principles on the right to self-determination are applicable to the situation where a new state secedes from an existing state. Some concluding remarks concerning the Court’s contribution to human rights in general and to self-determination in particular are given at the end.

2.

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 Charter7 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 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 Art. 22 of that Convention. See paras. 1-16 of Georgia’s Application of 12 August 2008 instituting proceedings against Russia, at <www. icj-cij.org/docket/files/140/14657.pdf> (last accessed on 1 November 2009). 5. R. McCorquodale, ed., Self-Determination in International Law (Aldershot, Ashgate 2000) p. xi. 6. See Annex 1 infra. 7. Art. 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 selfdetermination of peoples, and to take other appropriate measures to strengthen universal peace.’ 8. Art. 1, para. 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.’

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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 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

9. R. Higgins, ‘The International Court of Justice and Human Rights’, in K. Wellens, ed., International Law: Theory and Practice: Essays in honour of Eric Suy (The Hague, Martinus Nijhoff Publishers 1998) p. 694. 10. GA Res. 1514 (XV) of 14 December 1960. For more information on ‘United Nations and Decolonization’, see <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 <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 <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 (last accessed on 1 November 2009).

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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-SelfGoverning 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 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 matters for all members of the UN.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

13. Art. 73 UN Charter reads: ‘Members of the United Nations which have or assume responsibilities for the 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. Article 76 UN Charter 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 edn. (London, Longmans, Green and Co Ltd. 1955) pp. 223-242.

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duties of the administering Powers vis-à-vis the inhabitants of these territories by taking the above-mentioned 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 to: a) consider reports submitted by the administering authority; b) accept petitions and examine them in consultation with the administering authority; c) provide for periodic visits to the respective trust territories at times agreed upon with the administering authority; and d) take these and other actions in conformity with the terms of the trusteeship 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, an 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.

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

16. See <www.un.org/en/mainbodies/trusteeship> (last accessed on 1 November 2009). 17. GA Res. 1514 (XV) of 14 December 1960. 18. GA 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.

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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 this examination of the Court’s case law, the discussion of self-determination under contemporary international law inquires 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

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

20. Although outside the scope of this article, please note the following 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). 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).

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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 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

24. See South West Africa cases, supra n. 22, p. 51, para. 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, para. 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.

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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 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 26. See paras. 2 and 3 of Art. 1 of the UN Charter. 27. GA Res. 3292 (XXIX) of 13 December 1974. 28. ICJ, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports (1975) p. 20, para. 20. 29. Ibidem. 30. See also GA Res. 1541 (XV) of 15 December 1960, UN Doc. A/4684 (1960).

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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 left with a measure of discretion with regard to the forms and procedures by which the right to selfdetermination 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, also included ‘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. The UN-brokered ceasefire, 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.

31. 32. 33. 34. 35.

Western Sahara, supra n. 28, p. 33, para. 59. Ibid., p. 36, para. 70. Ibid., p. 36, para. 71. Ibid., p. 32, para. 55. Ibid., p. 33, para. 58.

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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 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

36. ICJ, East Timor (Portugal v. Australia), Judgment, ICJ Reports (1995) p. 92, para. 1. 37. East Timor, Application of 22 February 1991, para. 32, available at <www.icj-cij.org/ docket/files/84/6809.pdf> (last accessed on 1 November 2009). 38. East Timor, supra n. 36, p. 102, para. 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 J. Delbrück, 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, supra n. 36, p. 106, para. 38. In para. 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.

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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-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 UN 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

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. 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, paras. 70-78. 44. Ibid., pp. 171-172, para. 88. 45. Ibid., p. 172, para. 88.

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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 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, ‘[e]very State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-

46. Ibid. 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).’ 47. Ibid., pp. 182-183, para. 118. 48. Ibid., p. 184, para. 122. 49. Ibid., p. 199, para. 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.’

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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 UN Charter and international law, should see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian 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 50. Ibid., p. 199, para. 156. 51. Ibid., p. 200, para. 159. Not all judges seem to have shared this finding of the Court. In para. 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 para. 38 of its separate opinion Judge Higgins stated that although in the present case it is the Court, rather than a UN organ acting under Arts. 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 UN 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 <www. un.org/News/Press/docs/2008/ga10764.doc.htm> (last accessed on 1 November 2009).

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question put before the Court concerned whether the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo was 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 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 questions put to it widely, 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 by Serbian forces 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 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’, 8 Chinese JIL (2009) pp. 2-25; J. Bing Bing, ‘The Independence of Kosovo: A Unique Case of Secession?’, 8 Chinese JIL (2009) pp. 27-46; P. Hilpold, ‘The Kosovo Case and International Law: Looking for Applicable Theories’, 8 Chinese JIL (2009) pp. 47-61; B. Muharremi, ‘Kosovo’s Declaration of Independence: Self-Determination and Sovereignty Revisited’, 33 Review of Central & East European Law (2008) 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. Thirty-one states, including Kosovo, will participate in the public hearings scheduled to open on 1 December and last till 11 December 2009. For more information

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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 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.

see ICJ Press Release No. 2009/27 of 29 July 2009, available at <www.icj-cij.org/docket/ files/141/15349.pdf> (last accessed on 1 November 2009). 56. Besides a number of states supporting Kosovo’s independence, the group of states maintaining this position also included Serbia. 57. For a general list see J. Crawford, The Creation of States in International Law, 2nd edn. (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.

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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 employed by the UN with regard to self-determination through secession is present in the 1992 Agenda for Peace Report, where the SecretaryGeneral 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

58. See A. Buchanan, ‘A Principled International Legal Response to Demands for Self-Determination’, in I. Primoratz and A. Pavkovi , Identity, Self-Determination and Secession (Aldershot, Ashgate 2006) pp. 139-154. 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, para. 17. 60. Ibid., para. 20.

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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, 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

61. See Crawford, supra n. 57, pp. 375 and 415. More generally on secession see Crawford, ibid., pp. 374-448. 62. Thus, Crawford, ibid., 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, Cambridge University Press 2006) p. 172 and fn. 3, listing a number of authors agreeing with this view. 63. In para. 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 SCR 217. See also the amicus briefs by 5 experts, namely T.M. Franck, R. Higgins, A. Pellet, C. Tomuchat, M.N. Shaw, in ‘L’Intégrité territoriale du Québec dans l’hypothèse de l’accession à la souveraineté’, in Québec (Province), Assemblée Nationale, Commission d’Etude des Questions Afférentes à l’Accession du Quebec à la Souveraineté, Exposés et Etudes, Vol. 1 (1992) pp. 377-461, available at <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 International 2000). 65. Reference re Secession of Quebec, supra n. 64, para. 138; also in ILM (1998) p. 1340 at 1373. Available online at <scc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.pdf> (last accessed on 1 November 2009).

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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 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 UN Charter, made the principle of self-determination applicable to them all.68 By contrast, outside a decolonization context it is

66. The Saving Clause in GA Res. 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 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 edn. (Oxford, Oxford University Press 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 Kohen, ed., supra n. 62, p. 109 and fn. 42. 68. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, supra n. 25, p. 31, para. 52.

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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 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

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’, 90 AJIL (1996) p. 590.

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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 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. Several 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.

70. See supra n. 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, ‘[r]emedial 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.’ L.C. Buchheit, Secession: The Legitimacy of Self-Determination (New Haven, Yale University Press 1978) p. 222.

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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 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 UN in carrying out the responsibilities entrusted to it by the Charter regarding its implementation. 71. Cassese, supra n. 1, p. 351. 72. See GA 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. Crawford, supra n. 1, pp. 592 and 605. 74. M. Ragazzi, The Concept of International Obligations Erga Omnes (Oxford, Oxford University Press 1997) p. 72. 75. See Zyberi, supra n. 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 the 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.’ See Barcelona Traction, Judgment of 5 February 1970, ICJ Reports (1970) p. 32, para. 34.

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By looking at the case law of the Court it 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 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 77. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, supra n. 25, pp. 31-32, para. 53. 78. See infra Annex 1. 79. Frontier Dispute (Burkina Faso v. Mali), supra n. 69, p. 565, para. 20. 80. Ibid. 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, Martinus Nijhoff Publishers 2007) pp. 53-59. Applying the principle of uti possidetis, the

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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 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 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.

Commission concluded on 11 January 1992 that ‘[t]he 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 ‘[e]xcept where otherwise agreed, the former boundaries become frontiers protected by international law’, 31 ILM (1992) p. 1500.

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ANNEX 1 List of Cases Submitted to the Court Relating to the Right to Self-Determination. 82 No.

Parties

Name of the Case

Year of Filing

1.

General Assembly (Advisory Opinion)

International Status of South West Africa

1949

2.

General Assembly (Advisory Opinion)

Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South West Africa

1954

3.

General Assembly (Advisory Opinion)

Admissibility of Hearings of Petitioners by the Committee on South West Africa

1955

4.

Ethiopia v. South Africa; Liberia v. South Africa

South West Africa Cases (Preliminary Objections)82

1962

5.

Ethiopia v. South Africa; Liberia v. South Africa

South West Africa Cases (Second Phase)

1966

6.

Security Council (Advisory Opinion)

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970)

1970

7.

General Assembly (Advisory Opinion)

Western Sahara

1974

8.

Portugal v. Australia

East Timor

1991

9.

General Assembly (Advisory Opinion)

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

2003

10.

Georgia v. Russian Federation

Application of the International Convention on the Elimination of All Forms of Racial Discrimination

2008

11.

General Assembly (Advisory Opinion)

Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo

2008

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

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