CYIL vol. 10 (2019)

RAINER HOFMANN – CORNELIA KIRCHBACH CYIL 10 ȍ2019Ȏ (not necessarily amounting to a right to territorial autonomy); only in exceptional cases such as a genuine risk of genocide or subsistent and gross violations of the most basic human rights such a people would become entitled to external self-determination, i.e. the right to accede to another State or to form an independent State, against the will of the representatives of the State to which the people concerned belongs. 124 Notwithstanding the weight given to the free expression of the genuine will of the population concerned, it would be untenable to consider this Opinion as modifying this dominant view. However, this weight might indeed impact on the decision as to who belongs to the ‘population concerned’? In other words: If a State agrees to put the wish of a ‘people’ (in the sense of the right to self-determination and which resides on the territory of that State) to secede from that State to a vote, are only the inhabitants of the territory which would ‘terminate’ its present territorial affiliation entitled to vote or all the citizens of the State concerned? So, would it be sufficient if only the inhabitants of Scotland would be entitled to vote on Scottish independence or all the citizens of the United Kingdom? Here, it might indeed be argued that the emphasis put by the Court on the understanding of the term ‘population concerned’ as including the Chagossians only can be read as support for the view that only the population of Scotland would be entitled to vote in such a referendum. The Court affirms its previous tendency to narrowly construe the principle of non- circumvention which might indeed increase the risk for abuse, ie submitting to the Court a bilateral dispute disguised as a general legal question; The Court exercises (well-advised) judicial self-restraint in limiting itself to deal with the right to self-determination in a colonial context only; The Court is rather short in identifying the customary law character of the right to self- determination at the decisive point in time, ie the 1960s; The Court exercises again judicial self-restraint as concerns the determination of the consequences of its finding that the decolonization process of Mauritius had not been lawfully completed by limiting itself to hold that the United Kingdom is to terminate its administration as ‘rapidly as possible’ and to stress that the responsibility to implement the very general findings of the Court lies with the UN General Assembly with which all States are under a legal obligation to cooperate; There are good reasons to see the Opinion as a recognition of the applicability of the right to self-determination outside the colonial context; And, finally, the emphasis put by the Court on the relevance of the freely expressed genuine will of the population concerned might impact on the modes of implementing the right to self- determination including issues of territorial delimitations (possibly decreasing the weight given to the principle of uti possidetis ); it remains, however, doubtful whether and to what extent this re-balancing of the relationship between the right of a State to territorial integrity and the right of a people to self-determination would apply also to situations outside a colonial context. D. C ONCLUDING R EMARKS By way of conclusion, the following remarks are called for:

124 On the right to self-determination see THÜRER, Daniel and BURRI, Thomas, Self-Determination, in: Rüdiger Wolfrum (ed,), Max Planck Encyclopedia of Public International Law (Oxford University Press, Oxford), electronically available at https://opil/ouplwa.com/home/mpil.

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