Determining the Legitimacy of Claims for Self-Determination: A Role for the International Court of Justice and the Use of Preconditions
Abstract:There is no denying the legal status of self-determination, yet the international community lacks structures to deal with these claims, and has only rarely intervened to assist peoples in their realisation. Thus, with important exceptions such as Canada in the case of Quebec, most national governments simply attempt to repress secessionist movements, often by force. This situation leaves peoples with only one realistic option: violence. This article focuses on external claims for self-determination (namely, claims for independent statehood) and argues that contrary to popular belief an Advisory Opinion provided by the International Court of Justice (ICJ) can make a contribution, specifically in the formation of preconditions that can enable a finding of whether a claim for self-determination is legitimate, and thus enable a peaceful resolution of these matters. Some may doubt whether states, especially those with potential self-determination claims, would accept the use of preconditions or the involvement of the ICJ . Accordingly, this paper begins by outlining why states could be persuaded to accept the involvement of the ICJ and will then examine the following preconditions: (1) that the claimants respect international law; (2) that the claimants accept the inviolability of international borders; (3) that the free will of the people be examined through a supervised plebiscite; (4) that the people have been denied a democratic government; (5) that the people claiming self-determination are subject to foreign or alien subjugation; and (6) that they are capable of forming a state as defined in international law. Choosing such preconditions, and arguing that the ICJ does have a role in resolving claims to self-determination, reinforces the argument that self-determination is a norm of international law, and that the rule of law plays an important role in international relations.
Document Type: Research Article
Publication date: May 1, 2010
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