CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ right to self-determination.” 75 Even after the adoption of resolution 1514 (XV) the right of self-determination was further affirmed by the General Assembly through numerous resolutions; the Court specifically relied on resolution 2200 a (XVI) of 16 December 1966 on the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, with their common Article 1 reaffirming the right of all peoples to self-determination, 76 and on resolution 2625 (XXV), adopted on 24 October 1970, to which was annexed the “Declaration on Principles of International law concerning Friendly Relations and co-operation among States in accordance with the Charter of the United Nations” 77 which made the right to self-determination a “basic principle of international law” and “confirmed its normative character under customary international law.” 78 Concerning the implementation of the right to self-determination, the Court referred to resolution 1514 (XV) of 15 December 1960 providing for three possible means for implementing the right to self-determination in a non-self-governing territory: Emergence as a sovereign independent State; free association with an independent State; or integration with an independent State. 79 While the Court stressed that the means adopted to implement the right to self-determination must be based on the expression of the free and genuine will of the people concerned, it also referred to its statement in the Western Sahara Advisory Opinion where it had stated that the General Assembly had a measure of discretion regarding the forms and procedures of the realization of the right to self-determination; 80 in other words: customary international law does not impose a specific mechanism for the implementation of the right to self-determination. 81 The local scope of the right to self-determination is, however, a fixed one: 82 It is defined by reference to the entirety of a non-self-governing territory. 83 According to state practice and opinio juris the right to territorial integrity of a non-self- governing territory is a logical consequence of the right to self-determination and customary international law itself. 84 There is no precedent of a lawful detachment by an administering Power of part of a non-self-governing territory for the purpose of maintaining it under its colonial rule. 85 Peoples of non-self-governing territories are entitled to exercise their right to self-determination to their territory as a whole. 86 “It follows that any detachment by the administrating Power of part of a non-self-governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination.” 87 75 “Declaration on the Granting of Independence to Colonial Countries and Peoples” UN GA Res. 1514 (XV) of 14. 12. 1960; Opinion at para. 153. 76 Id. at para. 154. 77 Id. at para. 153. 78 Ibid. 79 “Declaration on the Granting of Independence to Colonial Countries and Peoples” UN GA Res. 1514 (XV) of 15. 12. 1960; Opinion at para. 156. 80 Opinion at para. 157 with reference to the Western Sahara Advisory Opinion, I.C.J. Reports 1975, po. 36, para. 71). 81 Opinion at para. 158. 82 Opinion at para. 160. 83 Id. at para. 160; “Declaration on the Granting of Independence to Colonial Countries and Peoples” UN GA Res. 1514 (XV) of 14. 12. 1960. 84 Opinion at para. 160.

85 Id. at para. 160. 86 Id. at para. 160. 87 Id. at para. 160.

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