Revisiting the Matthew and Hunter Islands Dispute in Light of the Recent Chagos Advisory Opinion and Some Other Relevant Cases: An Evaluation of Vanuatu’s Claims relating to the Right to Self-Determination, Territorial Integrity, Unlawful Occupation and State Responsibility Under International Law

2019 ◽  
Vol 66 (3) ◽  
pp. 475-506
Author(s):  
Morsen Mosses
Keyword(s):  
International Law ◽  
Self Determination ◽  
State Responsibility ◽  
Advisory Opinion ◽  
Territorial Integrity ◽  
The Right

TERRITORIAL INTEGRITY AND CONSENT IN THE CHAGOS ADVISORY OPINION

2020 ◽  
Vol 69 (1) ◽  
pp. 221-238
Author(s):  
Robert McCorquodale ◽  
Jennifer Robinson ◽  
Nicola Peart
Keyword(s):  
International Law ◽  
Self Determination ◽  
Special Focus ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Territorial Integrity ◽  
Customary International Law ◽  
The People ◽  
International Court ◽  
The Right

AbstractA key element of the right to self-determination is territorial integrity. This has usually been considered solely in relation to the territorial integrity of an existing State seeking to resist claims by peoples for the right to self-determination. Yet the Chagos Opinion by the International Court of Justice examines a different type of territorial integrity—that of the colonial territory itself. This article explores the consequence of the Court's view that the territorial integrity of the colonial territory is a matter of customary international law, and that any division, integration or other disruption of that colonial territory after December 1960 is unlawful, without the free and genuine consent of the people of the colonial territory. In particular this article seeks to explore what the Chagos Opinion means in terms of the territorial integrity of a colonial territory. It also examines the required conditions for ascertaining a free and genuine consent of the people of that territory, and the legal effects of not complying with them. There is also consideration of the implications for other situations from the clarification of customary international law in the Chagos Opinion, with a special focus on West Papua.

scholarly journals PRINCIPLES OF INTERNATIONAL LAW AND THEIR ROLE IN CONFLICT RESOLUTION IN KOSOVO AND CRIMEA. Part 2

2019 ◽  
Keyword(s):  
International Law ◽  
International Community ◽  
Self Determination ◽  
Local Authorities ◽  
Territorial Integrity ◽  
Legal Norms ◽  
Conflict Situations ◽  
History Of ◽  
Definition Of ◽  
The Right

The second part of the article considers the issue of the contradiction of the realization of the right to self-determination and the principle of territorial integrity of Serbia and Ukraine on the example of Kosovo and Crimea. It presents an analysis of the legitimacy of the will expression of Kosovars and Crimeans and its compliance with the norms of international law. The preconditions and factors of the ethnopolitical conflict are examined and the main problematic issues that caused controversies between the central and local authorities in Kosovo and Crimea are identified. The article emphasizes that the result of the plebiscites in Kosovo (1998) and Crimea (2014) was the declaration of independence, denied by central authorities of Serbia and Ukraine and met with mixed reactions by the international community. The self-proclaimed republics have only external features of statehood and are subject to external administration of other countries. A latent opposition of geopolitical opponents in the international arena is noted, which is to some extent traced through the position on the recognition / non-recognition of Kosovo and Crimea. The article draws attention to the fact that inconsistent interpretations of certain principles of international law promote secession movements in countries where conflicts periodically arise between central and local authorities. The emphasis is placed on the necessity of a clearer definition of the aforementioned international legal norms and obligations undertaken by subjects of international law. The article holds that in order to avoid such situations as in Kosovo or Crimea, to eliminate conflicts related to the possibility of an ambiguous interpretation and application of the principles of international law, an internationally recognized system of more stringent and comprehensive measures should be introduced to cease and prevent threats to the territorial integrity of countries. A strong position of the international community on the abovementioned principles with the history of the liberation movements of these peoples taken into account should become the measure precluding the aggravation of conflict situations related to the aspiration of peoples for self-determination.

The Nomos and the Gaze

2018 ◽  
Author(s):  
Zoran Oklopcic
Keyword(s):  
International Law ◽  
Popular Sovereignty ◽  
Self Determination ◽  
National Sovereignty ◽  
Territorial Integrity ◽  
Political Autonomy ◽  
The Gaze ◽  
Main Factors ◽  
The Right

Chapter 5 confronted the imagination of the right to self-determination in international law. It focused on the ways in which interpretations of that right hinge on jurists’ implicit cartographies, their scopic regimes, affective predilections, disciplinary self-images, concealed calculi of suffering, visions of alternative universes, false binaries, and their idiosyncratic levels of (im)patience and anxiety, which—together with their quasi-nationalistic professional commitments and dreams of disciplinary sovereignty—remain some of the main factors that determine how international lawyers interpret the national sovereignty, territorial integrity, and political autonomy of everyone else. After having proposed a number of new ways of looking at the claims of the right to self-determination, Chapter 6 ends on a sobering note: as long as jurists remain preoccupied with their own disciplinary self-determination and ‘linguistic’ purity, they will continue reproducing the flat, monochromatic, and vacuous imaginary of popular sovereignty.

The Kosovo Advisory Opinion Scrutinized

2011 ◽  
Vol 24 (2) ◽  
pp. 355-383 ◽  
Author(s):  
JURE VIDMAR
Keyword(s):  
International Law ◽  
Self Determination ◽  
Added Value ◽  
Advisory Opinion ◽  
Legal Doctrine ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Unilateral Declaration ◽  
The Right

AbstractIn the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

scholarly journals Origin, establishment and development of the idea of self-determination of peoples

2021 ◽  
pp. 60-73
Author(s):  
Azer Kagraman Ogly Kagramanov
Keyword(s):  
International Relations ◽  
International Law ◽  
Self Determination ◽  
Modern World ◽  
Territorial Integrity ◽  
The World ◽  
The Status ◽  
The Subject ◽  
The Right

The subject of this research is the examination of evolution of the idea of self-determination of peoples based on the fundamental works of the Russian and foreign scholars, thinkers of the antiquity and modernity. The author considers the transformations experienced by the principle of self-determination at various historical stages of development; as well as builds a corresponding systems of the development cycles. The conclusion is made that after conception of the idea of self-determination, the colonial powers viewed this concept as ethical, seeing the threat to legitimacy of the established order. Therefore, throughout almost a century, the leading countries refused to include this right into the corresponding international and domestic documents. The main conclusions are as follows: after consolidation of the principle in the Charter of the United Nations, it became the foundation for the emergence of news states and destruction of the colonial world; the principle served as a leitmotif for the development of human rights and international relations, but at the same time became a threat and challenge to the territorial integrity; wars between the countries are replaced with the civil and interethnic conflicts; the world is captured with such phenomena as state nationalism that subsequently grew into extremely radical forms, such as fascism and Nazism; the modern international law actively promotes the two competing principles – territorial integrity and self-determination; in modern world, the right to self-determination is not limited by peoples under the colonial past – there occur new forms of self-determination that threaten the existence of sovereign states. Uncertainty of the status of the newly emerged states formations serves as the source of domestic and international tension, which inevitably leads to intergovernmental clashes and negatively impacts geopolitical situation in separate regions and in the world as a whole.

scholarly journals A Look at the Evolution of the Right to Self-determination in International Law

2020 ◽  
Vol 25 (3) ◽  
pp. 117-132
Author(s):  
Paweł von Chamier Cieminski ◽  
Keyword(s):  
Soviet Union ◽  
International Law ◽  
Self Determination ◽  
Advisory Opinion ◽  
International Treaties ◽  
The Soviet Union ◽  
Political Events ◽  
Recent Developments ◽  
Definition Of ◽  
The Right

The article takes stock of the historical development of the notion of the right of a people to self-determination in international law. It provides a coherent review of the main international treaties, customary rules, and legal rulings that shaped the evolution of the term over the course of the twentieth century. In doing so, it focuses on the main historical and political events, which had an impact on that process as well as the preconditions that have to be met in order for a people to have the legal capacity to execute the right to self-determination. Three main processes, which it focuses on are: decolonization, the establishment of a number of new countries following the dissolution of the Soviet Union, and the recent developments following ICJ’s Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. It also delineates the subject of the legal definition of a “people” as opposed to a “minority”, describes the legal tension between the right to self-determination and the principle of territorial continuity in international law, and discusses potential further development of the term.

scholarly journals SELF-DETERMINATION, THE CHAGOS ADVISORY OPINION AND THE CHAGOSSIANS

2019 ◽  
Vol 69 (1) ◽  
pp. 203-220
Author(s):  
Stephen Allen
Keyword(s):  
International Law ◽  
Self Determination ◽  
European Convention ◽  
Advisory Opinion ◽  
International Court Of Justice ◽  
Customary International Law ◽  
International Court ◽  
The Uk ◽  
The Right ◽  
Chagos Archipelago

AbstractIn its Chagos Advisory Opinion, the International Court of Justice (ICJ) ruled that the UK's detachment of the Chagos Archipelago from the colony of Mauritius on the eve of independence constituted a violation of customary international law (CIL). This article analyses the Court's approach to establishing the emergence and content of the right to self-determination in this frustrated case of decolonisation. It goes on to examine the argument that self-determination's peremptory character has decisive consequences in this specific context—a contention which found favour with several judges in their Separate Opinions. The article explores the extent to which the claims and counterclaims, made during the advisory proceedings, turned on countervailing readings of not only the key sources of custom but also of the principle of inter-temporal law. The final sections consider the significance of the Chagos Opinion for the Chagossians, both in relation to the Archipelago's resettlement and for their outstanding appeal in the UK courts (where the European Convention on Human Rights performs a pivotal role).

Exploring the Legality of the Constitutional and Independence Referendums in Nagorno-Karabakh under International Law

2020 ◽  
pp. 1-30
Author(s):  
Saeed Bagheri
Keyword(s):  
International Law ◽  
Self Determination ◽  
Territorial Integrity ◽  
Autonomous Region ◽  
The Third ◽  
The Republic ◽  
The Right

As a result of the constitutional referendum held on 20 February 2017 in the unrecognised Nagorno-Karabakh Republic, both the name and administration of the autonomous region of Nagorno-Karabakh changed. According to the new Constitution, adopted with an 87 per cent majority, Nagorno-Karabakh’s name is now the Republic of Artsakh, its Armenian name, and the system is changing from semi-presidential to presidential. This study discusses the legality of the referendum, the third since Nagorno-Karabakh was established in 1991; it evaluates the referendum in the context of the secession and the right to self-determination in international law. Having looked at similar cases, the article challenges the compatibility of all referenda held in the region with the uti possidetis juris principle and principle of territorial integrity under international law.

scholarly journals Inherited National Questions: The Soviet Legacy in Russia’s International Law Doctrine on Self-determination

2020 ◽  
Vol 89 (1) ◽  
pp. 38-66
Author(s):  
Tero Lundstedt
Keyword(s):  
International Law ◽  
International Community ◽  
Self Determination ◽  
Territorial Integrity ◽  
National Question ◽  
Soviet Legacy ◽  
The Right ◽  
Former Soviet Republics

All 15 former Soviet Republics share a unique federal history with a particular understanding of the right to self-determination. Moreover, seven of them were federalised during the Soviet era, amounting to a major challenge to their territorial integrity after independence. While these states confronted their minorities in different ways, the Russian solution to its inherited national question has been the most comprehensive. This has made Russian understanding on self-determination essentially different from the mainstream of the international community, which in turn explains Russian persistent objections over the Kosovo independence (2008) and partly clarifies the events in Georgia (2008) and Crimea (2014). This article analyses how the former Soviet Republics coped with the transformation from the ethnofederal state to independence. The focus will be on Russia as the most affected of them and on the persistent Soviet legacy in its interpretations of self-determination and, consequently, its policies towards its post-Soviet neighbours.

The ICJ Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?

2011 ◽  
Vol 24 (1) ◽  
pp. 73-86 ◽  
Author(s):  
THEODORE CHRISTAKIS
Keyword(s):  
International Law ◽  
Self Determination ◽  
General Assembly ◽  
Advisory Opinion ◽  
Simple Fact ◽  
Territorial Integrity ◽  
Declaration Of Independence ◽  
Future Developments ◽  
The Icj ◽  
Un General Assembly

AbstractThe objective of this paper is to examine how the Court has dealt with existing general international law governing secession and to evaluate the effects that this opinion could have on future developments in this field. The narrow interpretation of the question submitted by the UN General Assembly permitted the Court to avoid many important questions. The Court made no statements concerning Kosovo's statehood and recognition by third states and made no mention of statehood requirements or the ‘principle of effectiveness’. The Court also refused to examine whether Kosovo (or any other entity outside the colonial context) had a ‘right’ to secession, but gave no endorsement to attempts to apply external self-determination outside the colonial context or to the theory of ‘remedial secession’. This paper explains why the Court did not apply the ‘Lotus’ freedom principle in the Kosovo case. It welcomes the indirect, but clear, position of the Court that a declaration of independence can, in some situations (and especially in the case of external aggression), be illegal – a position that contradicts the old theory, stemming from Jellinek, that the creation of a state is nothing but a ‘simple fact’. While the Court correctly found that outside these exceptional circumstances, no general prohibition against unilateral declarations of independence exists in international law, it should have added that international law is not ‘neutral’ in this field, that it disfavors secession, and that it creates a presumption against the effectiveness of secession. The ‘legal-neutrality’ stance adopted by the Court is not without risks. Indeed, the Court should have been more cautious in its assertion that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between states’, not only because recent practice clearly indicates the contrary, but also because its position could have an unwelcome effect in resolving future separatist conflicts by rendering countries extremely sceptical of solutions of autonomy or international administration.

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