CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ contrary to the principle of territorial integrity as long as it is based on the free and genuine will of the people concerned.” 121 C. I MPACT OF THE A DVISORY O PINION ON THE R IGHT TO S ELF -D ETERMINATION What, if any, is the impact of this Advisory Opinion on the right to self-determination? At the outset, it must be stressed that the Court made it very clear that, as the main question submitted to it was not about the right to self-determination as such but whether the process of decolonization was lawfully completed, its Opinion was only – or at least mainly – concerned with the right to self-determination in a colonial context. Nonetheless, there are a few statements of the Court which might be seen as having an impact, albeit limited, on the general understanding of the right to self-determination, that is even outside this colonial context. There has always been some discussion as to whether only the occupation of territories not geographically adjacent to the ‘colonial power’, ie territories which can be considered as ‘overseas’, are ‘colonies’ subject to the process of ‘decolonization’ or whether also the forceful occupation of geographically adjacent or ‘neighbouring’ territories and their subsequent ‘integration’ into the territory of the occupying State would qualify as ‘colonization’ in the sense of applicable international law. The former view has been quite consistently held by all the relevant UN bodies and seems to constitute the opinio juris of almost all States. It effectively excludes from the legal term ‘colonization’ measures such as the occupation of the Caucasus or Central. Eastern and Northern Asia by Tsarist Russia and the subsequent integration of these territories into her territory. 122 The Court refrained from addressing or even mentioning this issue – a position which might be interpreted in different ways: As this issue was not raised before the Court, there was no need for the Court to deal with this point but it was well advised to exercise judicial self-restraint and not even mention this aspect by way of an obiter dictum . It might also be understood as reflecting the (tacit) agreement of the Court with the truly dominant practice of the UN and its Member States – or the Court even considered this position as so clearly representing the overwhelmingly shared understanding of the term ‘colonization’ that it felt superfluous to deal with this issue. In contrast thereto, the Court made it very clear that in its view there is indeed a legally binding norm of customary law character which stipulates that, as a rule, administered (or non-self-governing) territories should be decolonized respecting their territorial integrity (based on the principle of uti possidetis ) and the genuine and freely expressed will of the population concerned. In the present authors’ opinion two conclusions may be drawn therefrom: First, if the population concerned expresses freely the genuine will not to be ‘decolonized’ but to remain a part of the (formerly) colonial power, irrespective of the legal construction agreed upon by the representatives of the colonial power and of the population concerned (an agreement which might be submitted to a referendum in order to establish 121 Declaration by Judge Iwasawa at para. 6. 122 See KÄMMERER, Jörn Axel, Colonialism, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford), para. 4, electronically available at htps://opil.ouplaw.com/ home/mpil. I. The Advisory Opinion and the Right to Self-determination in a Colonial Context

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