CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ THE ICJ CHAGOS ARCHIPELAGO ADVISORY OPINION … that it actually does reflect the ‘genuine’ will of the population), then there is no obligation under international law to ‘decolonize’ the territory. This would clearly apply to cases such as New Caledonia or French Polynesia; it might be more debatable whether it also holds true for territories on which there are long-lasting territorial claims from other States, eg as concerns the Falklands/Malvinas or Gibraltar. Considering the weight given by the Court to the free expression of the genuine will of the population concerned it might indeed be argued that the present Advisory Opinion is an important contribution to the position that, under currently applicable international law, there must not be a cession of a territory to another State against the freely expressed genuine will of the population concerned including in colonial situations. Second, and again in light of the weight given to the free expression of the genuine will of the population concerned, detachments of a part of a territory under colonial rule are compatible with applicable international law if they reflect the freely expressed genuine will of the population concerned including in the context of a process of decolonization; so, if the Chagossians had freely expressed their genuine will to form a new territory under British (colonial) rule there had been no violation of international law. This means, importantly enough, that the term ‘population concerned’ would only include the inhabitants of this part of the whole territory under colonial rule, ie it would be the Chagossians only who would decide on their territorial affiliation and not the whole population of the (former) British colony of Mauritius. As a result thereof, the decision by France to respect the freely expressed will of the inhabitants of Mayotte to maintain its links with France and to become a département et région d’outre mer was compatible with international law and did not violate any right of the Comoros Islands to their territorial integrity. Considering that the Court stresses that its Opinion was not concerned with the right to self-determination as such but with the role this right plays in the context of the process of decolonization of a territory, it seems clear that it only has little, if any, impact on the right to self-determination as such. However, as it is been expressly referred to as a ‘fundamental human right’ the Opinion should be read as the expression of the view of the Court that the application of the right to self-determination is not limited to the process of decolonization – as it is held by some States (most of them are former colonies or parts of their territory were subject to colonial power 123 ) – but applies also outside this colonial context as reflected in the State practice subsequent to the fall of the Berlin wall. This in itself can be considered as an important contribution by the Court. Outside the colonial context, the principle of territorial integrity of a State is generally been given more relevance than the freely expressed genuine will of the population concerned: This position is well reflected in current State practice according to which a people as holder of the right to self-determination is, as a rule, entitled to internal self-determination only 123 See e.g. the Declaration made by India on 10 April 1979 upon her ratification of both the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights, with respect to their common Arti This position is based on para. 1 of the UN General Assembly Resolution 2625 (XXV) of 14 October 1970 (‚Friendly-Relations-Declaration‘), see KELLER, Helen, Friendly Relations Declaration, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford), electronically available at httpsL(opil.ouplaw.com/home/mpil. II. The Advisory Opinion and the Right to Self-determination outside a Colonial Context

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