By Isabelle O’Connor
Isabelle is a 2023 UCD BCL graduate. Since graduating, she has dedicated herself to becoming a qualified attorney and is due to take the US Bar exam. In the interim, she has been working diligently on sexual assault and medical malpractice cases. She plans on pursuing a master’s degree in legal forensic psychology.
Introduction
Recently, developments in law relating to the right to self-determination through the International Court of Justice (ICJ)’s Chagos Advisory Opinion (the Opinion) have further called into question the contentious right’s true normative status. The Opinion provided significant assertions on the right of all peoples to self-determination, as well as insights into its status. This article will review the evolution of the evolution of the legal right to self-determination with reference to relevant international case law and legal provisions. This will establish that while self-determination should be considered a rule of jus-cogens due to its inherent foundational nature in the UN and its appraisal in the Opinion, UN member states have been hesitant to accept this.
Normative Status in International Law
While multiple statuses for self-determination have been employed by the UN, the two most applicable to the right of self-determination are those of customary international law and jus-cogens.
Customary International Law
Customary international law may arise through a general practice accepted as law by the international community, regardless of written law. Customary International law is seen as a foundation of international law due to its inherent necessity in the interest of peace and justice. This status arises through displayed collective state practice of the principle as well as opinio-juris, which is ‘the belief that an action was carried out as a legal obligation’ and is required in accordance with the rule of law. Breaching customary laws can thus bring erga-omnes obligations on the responsible state allowing all states to act against the violating state in response to the breach. Responsed usually entail various countermeasures, including non-recognition of the situation violating the law.
Jus-cogens status has many similarities with the concept of customary international law. In simple terms, a rule of jus-cogens is a rule of customary international law which has become a norm from which no derogation is permitted and cannot be set aside through treaty or acquiescence. As stated in the Barcelona Traction case, ‘such obligations derive… from the principles and rules concerning the basic rights of the human person…’. Rules of jus-cogens also attract erga-omnes obligations, and any treaties conflicting with a rule of jus-cogens will be void.
The Law Surrounding the Right of Self-Determination
The right of self-determination enables all people to determine their own collective destiny, free from the influence of dominating powers. It is based on the promotion of individual liberty through the ability to establish self-government representative of the will of the people. In turn, the central reasoning for this right is the promotion of freedom from unwanted subjugation as a human right, especially in the colonial context.
The right, at its foundation, is one of the main purposes of the UN, as displayed in Article 1 of the UN Charter. In 1976, resolution 1514 clarified the right to self-determination as a fundamental human right and condemned the violation of territorial integrity of self-governing states as incompatible with the Charter. This was subsequently embraced in Article 1 of both the ICCPR and the ICESCR, the text of which is identical to Paragraph 2 of Resolution 1514.
Some relevant concerns regarding the right as addressed by the ICJ include the question of territorial integrity and uti-possidetis-juris which was considered by the Badinter Arbitration Commission. Uti-possidetis-juris, in short, is the principle that new sovereign states should retain the borders had before independence. As stated by the Commission, ‘it is well established that… the right to self-determination must not involve changes to existing frontiers at the time of independence… except where the States concerned agree otherwise’. The Commission goes on to say that ‘former boundaries become frontiers protected by international law… [in] respect for… the principle of uti-possidetis. Uti-possidetis… is today recognised as a general principle’.
A separate issue entertained in the Western Sahara Advisory Opinion is the will of the people. Here, the Court considered that the free and genuine expression of the will of the territory’s people was required for the successful exercise of self-determination. The Court also helpfully provided a course of establishing this through referenda. While this serves as a general overview of the legal right of self-determination, when evaluating the normative status of the right, recent developments in the Opinion are of particular interest.
Developments in the Opinion
The Opinion addresses the legal issues concerning the separation of the Chagos Archipelago from Mauritius in 1965. At the time, Mauritius was considered a non-self-governing territory under the administration of the United Kingdom (UK) who had commenced negotiations for lease of the largest Chagos island to the United States (US) for a military base. Official statements made by the UK government substantiate their intention to detach the Chagos Archipelago from Mauritius prior to their independence to ensure its continued administration by the UK.
The Mauritian Council of Ministers then considered the detachment of Chagos. After various refusals, they were informed that Chagos could be forcibly removed without their consent. In September of 1965, the Lancaster House Agreement detailed undertakings given by the UK, including the return of the islands when the need for military facilities ceased. One day after the Agreement, the UK announced it favoured Mauritian independence. Mauritius then reluctantly agreed to the detachment and later gained independence in 1968. Following this, between 1967 and 1973 ‘the entire population was either prevented from returning to the Chagos Archipelago, or forcibly removed and prevented from returning’, the ICJ wrote, to facilitate the US lease. The two issues the Court considered here were whether the decolonization of Mauritius had been lawfully completed prior to their independence and to determine the legal consequences of the continued administration of the Chagos Archipelago by the UK.
On the first question, particular concerns of territorial integrity and contractual duress were examined. The concept of uti-possidetis-juris protects Mauritius’ right to retain their original borders through realization of self-determination. The Court argued that the customary nature of territorial integrity was corollary to the right of self-determination. Due to the UK’s evidenced intention to deprive Mauritius of Chagos directly before achieving independence, their actions were in contradiction to uti-possidetis obligations prescribed in Resolution 1514. Lawful self-determination must also be based on the free and genuine will expressed by the people. Considering this, the ICJ referenced the abundance of evidence exemplifying the UK’s dishonest conduct. Additionally, the Mauritius representatives were chosen by the UK government rather than by the people of Mauritius to represent their will. The Court rightfully concluded that Mauritian decolonization had not been lawfully completed.
In addressing its second question, the Court surmised the continued administration of Chagos was ‘an unlawful act of a continuing character’ and must be terminated rapidly to allow Mauritians to practice self-determined decolonization.The ICJ also stated that as a human right with customary international law status since Resolution 1514, self-determination brings individual responsibility on the UK and erga-omnes obligations for state cooperation to resolve the issue.
The Normative Status of the Right to Self-Determination
The right of self-determination is widely accepted in law as a human right of customary international law attracting erga-omnes obligations. This is met with very little debate, but of particular interest is its application in the Opinion. While the Court used this classification for the purposes of this case, there is speculation that the right warrants a higher level of protection afforded through jus-cogens status.
Article 53 of the Vienna Convention on the Law of Treaties (VCLT) provides an interpretation of the requirements for jus-cogens status, namely that it is accepted as a norm of international law, and is one seen by all UN member states as a norm from which no derogation is permitted. In applying this to the law of self-determination, this distinction becomes clearer. Establishing self-determination as an accepted norm of international law is simple as it has been consistently referred to as customary by the Court with premise in influential legal instruments not limited to the UN Charter, Resolution 1514, and in turn, the two aforementioned Covenants. The right’s inclusion in such also speaks to its foundational nature in the purpose of the UN, especially considering the gravity of the human rights element.
Establishing state acceptance of non-derogation from the right is a more difficult task. As considered by Judge Robinson, the basis of the two Covenants is ‘respect for the inherent dignity and worth of the human person’, which exemplifies the inviolability of Covenant rights. Furthermore, the Human Rights Committee have asserted that because the realization of the right of self-determination is essential in guaranteeing individual human rights, it is paramount to all other Covenant rights. Considering it as essential for the enjoyment of individual human rights, it could not be reasonable to permit derogation from such.
The legal developments in the Opinion are more enlightening. Although the Court was reluctant to justify the right as jus-cogens, the consequences imposed reflect the opposite. To reiterate, any treaty violating a rule of jus-cogens is void based on the VCLT. Here, the ICJ found the UK had an obligation to discontinue their administration of Chagos which would in affect void the leasing treaty with the US as it conflicts with the territorial considerations of the right to self-determination. In addition, although the Lancaster House Agreement was not an international one, the Court has afforded it higher scrutiny because of the issue of consent arising. Although not a treaty, discontinued administration of Chagos would also void this agreement, which is very telling about the nature of the right.
Considering further consequences for breaching jus-cogens reported by the International Law Commission, the decision of the Court in its Opinion again aligns with such. First, the treaty parties must eliminate the consequences of the voided treaty. If applying this to the UK/US treaty resulting in forced removal of Chagossians, this would involve facilitating the resettlement of Chagos. In going even further to apply this to the Lancaster House Agreement, this would entail the return of the Chagos Archipelago to Mauritius. Both of these reparative actions have been suggested by the Court.
Next, the parties must conform their mutual relations with the violated rule of jus-cogens. In this case, violation of the right arose through disrespect for the territorial integrity and the will of the people of Mauritius. Although not directly employed by the Court in its Opinion the consequences imposed by the ICJ clearly align with those for a breach of a rule of jus-cogens.
While it is clear in law the right to self-determination should be considered as jus-cogens, the collective states have been reluctant to allow this. As this right is met with much controversy, it is to the advantage of the states to keep the law surrounding it vague. Naturally, this allows for more flexible application while avoiding the strict consequences following a rule of jus-cogens. It could be inferred that considering the requirement of state support to classify a norm as such, the Court has been resistant to do so.
Conclusion
The right to self-determination is widely regarded as an integral human right foundational to the purpose of the United Nations. Despite this, there is still much discussion as to its normative status in international law. While it has been extensively accepted as a rule of customary international law through displayed opinio-juris as well as state practice, there is much cause to believe that the right is more deserving of jus-cogens status. In its Chagos Advisory Opinion, while reluctant to directly address speculation suggesting a status of jus-cogens for self-determination, the ICJ did exercise jus-cogens oriented consequences for the violation of the right. While it is evidenced through relevant law that the right to self-determination may soon be denoted by the Court as one of jus-cogens, this will not be probable until wider state acceptance is exhibited.
- The Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion) [2019] ICJ Rep 95.
- Diane Marie Amann, ‘Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965’ (2019) 113 American Journal of International Law 784 <https://ssrn.com/abstract=3485796> accessed 10 October 2021.
- Ibid.
- ‘Customary Law’ <https://www.icrc.org/en/war-and-law/treaties-customary-law/customary-law> accessed 27 October 2021.
- Ian Brownlie, Principles of Public International Law (7th edn, Oxford University Press 2008) 8.
- Case Concerning Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Preliminary Objections) [1964] ICJ Rep 6.
- Christian Dominice, ‘The International Responsibility of States for Breach of Multilateral Obligations’ (1999) 10(2) EJIL < http://www.ejil.org/pdfs/10/2/585.pdf> accessed 21 October 2021.
- Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.
- Brownlie (n 5) 8.
- Case Concerning Barcelona Traction, Light and Power Company, Limited (Belgium v Spain) (Preliminary Objections) [1964] ICJ Rep 6, 37.
- VCLT (n 8) art 53.
- Malcolm Evans, International Law (4th edn, Oxford University Press 2014), 208.
- Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res 1514 (XV) (14 Dec 1960).
- Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16, art 1.2.
- Resolution 1514 (n 13) para 1.
- Ibid para 6.
- International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 1.
- International Convention on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3, art 1.
- Resolution 1514 (n 13) para 2.
- Opinion No 2 of the Arbitration Commission of the Peace Conference on Yugoslavia, 11 January 1992, (1992) 31 ILM 1497.
- Opinion No 3 of the Arbitration Commission of the Peace Conference on Yugoslavia, 4 July 1992, (1992) 31 ILM 1498.
- Western Sahara (Advisory Opinion) [1975] 1CJ Rep 12.
- Zyberi G, ‘Self-Determination Through the Lens of the International Court of Justice (2009) 56 Netherlands International Law Review 429 <https://ssrn.com/abstract=1622793> accessed 10 October 2021, 10.
- Amann (n 4), 1.
- Chagos Advisory Opinion (n 1) para 95.
- Lancaster House Agreement
- Chagos Advisory Opinion (n 1) para 108.
- Ibid, para 43.
- Ibid, para 132.
- Ibid, para 160.
- Resolution 1514 (n 17) para 6.
- Western Sahara (n 26).
- Chagos Advisory Opinion (n 1) para 99.
- Ibid, paras 101-110.
- Ibid, para 177.
- Ibid, para 182.
- Resolution 1514 (n 17).
- Chagos Advisory Opinion (n 1) para 182.
- Zyberi (n 23).
- VCLT (n 8), art 53.
- Chagos Advisory Opinion (n 1) para 142.
- Judge Robinson Separate Opinion (n 2) para 71d.
- UNHRC ‘General Comment 12: Article 1 (Right to Self-determination)’ in ‘The Right to Self-determination of Peoples’ (1984) UN Doc HRI/GEN/1/Rev.6.
- Judge Robinson Separate Opinion (n 2) para 71e.
- VCLT (n 8) art 53.
- Chagos Advisory Opinion (n 1) para 182.
- Chagos Advisory Opinion (n 1) para 172.
- ILC, ‘Report of the International Law Commission on the Work of its 75th Session’ (29 April–7 June and 8 July–9 August 2019) UN Doc A/74/10.
- Ibid, 144.
- Ibid.
- Saul M, ‘The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?’ (2011) 11(4) Human Rights Law Review 609 <https://ssrn.com/abstract=1881679> accessed 10 October 2021
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