CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … Declarations, to explain – in addition to what has been said by the Court – why, in their view, there was indeed a general question submitted to the Court – and not a bilateral dispute. 117 Whether these efforts have been made in light of existing territorial disputes with a potential to raise general legal questions suitable for a request for an Advisory Opinion by the General Assembly – suffice to mention territorial disputes concerning the South China Sea, Crimea or Diaoyu/Senkaka, to name but a few – remains, of course, pure speculation. 2. The relevance of the free expression of the will of the population concerned Although the Court had emphasized, as shown above, the crucial relevance of a ‘free and genuine expression of the will of the peoples concerned’, 118 Judges Abraham and Iwasawa made considerable efforts to further stress this aspect of the process of decolonization as an area of application of the right to self-determination, on the one hand, and the principle of territorial integrity, on the other hand. It is true that, starting with the acquisition of independence of the former Spanish colonies in Latin America, colonies usually acquired their independence by applying the principle of uti possidetis which implied that the former external boundaries of a colony became the external boundaries of the independent state or, if a colonial territory was to be divided into two or more independent states, the former internal, administrative boundaries became the external boundaries of the newly independent states. 119 This was done so notwithstanding the fact that many of such boundaries had been drafted in a purely arbitral way by the European colonial powers. In recent times, there are only a few examples such as Eritrea or South Sudan where, based on the application of the right to self-determination, areas successfully seceded from a state and formed a new independent state. On the other hand, there is a number of cases where the population of a non-self-governing territory expressed its wish not to become (fully) independent but to maintain a special relationship with or even become an (overseas) part of the metropolitan state (New Caledonia or French Polynesia) or not to become part of a newly independent state but to remain part of the metropolitan power (the issue of Mayotte and the Comoros Islands) or rather maintain its specific status as non-fully- self-governing territory such as, e.g. the Falkland Islands/Malvinas or Gibraltar. In view of these facts it might not come as a surprise that Judge Abraham finds very clear words concerning the relationship of the freely expressed will of the population of a part of a colony and the principle of territorial integrity of such colonies: “Mais je doute aussi, et plus encore, qu’en y donnant suite, en acceptant par exemple, la partition d’un territoire au motif que la population d’un sous-ensemble de ce territoire avait clairement et librement exprimé la volonté de ne pas suivre la même voie que le reste de ce territoire, la puissance coloniale puisse être regardée comme ayant violé ses obligations au regard du droit coutumier, au motif qu’elle aurait méconnu le principe de l’intégrité territoriale des territoires sous administration coloniale … Il y aurait là une sorte de sacralisation du territoire, dont l’indivisibilité prendrait l’ascendant sur la volonté des peuples. 120 Also Judge Iwasawa is very clear on this point in stating: “A separation or split of a non-self-governing territory is not 117 In fact, the Declarations by Vice-President Xue and Judge Gevorgian are (almost) exclusively concerned with establishing that the principle of non-circumvention had been fully respected. 118 This term dates back to the Western Sahara Advisory Opinion, ICJ Reports 1975, p. 32, para. 55. 119 See NESI, Giuseppe, Uti possidetis Doctrine, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford), electronically available at https://opil.ouplaw.com/home/mpil. 120 Declaration by Judge Abraham at p. 2.

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