1.

Principle of self-determination reached the state of jus cogens as a norm and has the
character of erga omnes.
 East Timor, Portugal v Australia, Jurisdiction, Judgment, [1995] ICJ Rep 90, ICGJ 86 (ICJ
1995), 30th June 1995, International Court of Justice
 Western Sahara, Advisory opinion, ICJ GL No 61, [1975] ICJ Rep 12, ICGJ 214 (ICJ 1975),
16th October 1975, International Court of Justice

2. there is a “people” which, though forming a numerical minority in relation to the rest of the
population of the parent State, forms a majority within a part of the territory of that State
 Prosecutor v Katanga (Germain) and Ngudjolo Chui (Mathieu), Decision on the joinder
of the cases against Germain Katanga and Mathieu Ngudjolo Chui, Case No ICC-01/04-
01/07, ICC-01/04-01/07-307, ICC-01/04-01/07-257, ICL 880 (ICC 2008), 10th March
2008, International Criminal Court [ICC]; Pre Trial Chamber I [ICC]
3. it can be inferred indeed that some exceptional conditions may allow the acceptance of a
claim to secede. These exceptional circumstances are; the materialization of secession
within post-colonial context, and the realization of secession against undemocratic,
authoritarian regimes violating human rights.

 Advisory Opinion, “The Court finds that the declaration of independence of Kosovo
adopted on 17 February 2008 did not violate international law” available at
http://www.icj-cij.org/files/ case-related/141/16012.pdf; (Kosovo vs. Serbia)
Facts:
On February 17, 2008, the assembly of Kosovo adopted the 2008 declaration of independence of
Kosovo. It was the second declaration of independence by Kosovo’s native-Albanian political
institutions. The territory of Kosovo is the subject of a dispute between Serbia and the Republic of
Kosovo established by the declaration. This was the first case regarding a unilateral declaration of
independence to be brought before the court. Serbia opposed this and decided to seek that such
declaration of independence was illegal before the international court of justice.

Issue:
WON the declaration of independence was legal?

Ruling:
On 22 July 2010, the court ruled that Kosovo's declaration of independence was not in violation of
international law. The President of the ICJ Justice HisashiOwada said that international law contains no
"prohibition on declarations of independence." The court also said while the declaration may not have
been illegal, the issue of recognition was a political one. The conflict between Serbia and Kosovo is the
first case of secession in the international community. Because of this, there were a lot of opinions in
the international court. There were lots of interpretation and the issue is now debatable. I would favor
the ruling of the court as the declaration of independence intact as an expression of the will of the
people of Kosovo, either by refusing to comment on its legality, or by determining that the international
law does not prohibit declarations of independence. The declaration of independence did not violate
any principle of territorial integrity because under international law, only states must comply with this
principle, and not internal entities. The existence of the state of Kosovo cannot be ignored. Its existence
is based on the right of self-determination by the people of Kosovo. The principle of efficiency, is "the
only principle that can be applied in the case of Kosovo, since Kosovo fulfills the elements of statehood
and its people, territory and government have nation-building qualities" However, if this decision would
be a precedent to other states or ‘soon to be states’ that would also want to unilaterally declare their
independence, the international court would definitely go for separatists movements. This would clearly
affect the relationships of the States.

 Bingbin Lu LLB, "The Case Concerning East Timor and Self-determination (Portugal vs.
Australia)" available at http://www5.austlii.edu.au/au/journals/MurUEJL/2004/17.html.
Volume 11, Number 2 (June 2004).
Facts: On 22 February 1991 Portugal had instituted proceedings against Australia concerning "certain
activities of Australia with respect to East Timor". Portugal acted as the administering Power over East
Timor in accordance with Chapter XI of the Charter of the United Nations. Portugal claimed that
Australia, by the conclusion of a Treaty of "Cooperation in an area between the Indonesian Province of
East Timor and Northern Australia of 11 December 1989", had failed to observe the obligation to respect
the powers and duties of Portugal as the administering Power of East Timor, as well as the right of the
people of East Timor to self-determination and the related rights. Australia, according to Portugal's
allegations, had thereby incurred international responsibility vis-à-vis both the people of East Timor and
Portugal, which claimed to have remained the administering Power according to several resolutions of
the General Assembly and the Security Council, even though it had left East Timor definitely when
Indonesia invaded East Timor in 1975. As the basis of jurisdiction Portugal referred to the declarations of
both States according to Art. 36 paragraph 2 of the Statute. Australia objected to the jurisdiction of the
Court and the admissibility of the application. Australia argued that the Court was confronted with a
situation comparable to that in the Monetary Gold Case, namely that the Court would have to decide on
the lawfulness of Indonesia's entry into and continuing presence in East Timor as well as the lawfulness
of the conclusion of the Treaty, what could not be done in the absence of Indonesia. While Portugal
agreed in principle on this point, it disagreed that the Court had in fact to decide on the forementioned
questions. Portugal argued that the Court had only to judge upon the objective conduct of Australia,
which consisted in having negotiated, concluded and initiated performance of the 1989 Treaty with
Indonesia, and that this question was perfectly separable from any question relating to the lawfulness of
the conduct of Indonesia.

Issue: Whether the Court could decide the case in the absence of Indonesia which had not accepted the
jurisdiction of the Court and was not inclined to intervene in the case.

Held: The Court concluded that Australia's behaviour could not be assessed without first entering into
the question of why Indonesia could not lawfully have concluded the 1989 Treaty, while Portugal
allegedly could have done so. The Court was of the opinion that the very subject-matter of the decision
would necessarily be a determination of whether Indonesia could or could not have acquired the power
to conclude treaties on behalf of East Timor relating to the resources of its continental shelf. Such a
determination, however, could not be made without the consent of Indonesia.
The Court also rejected Portugal's additional argument that the rights which Australia had allegedly
breached were rights erga omnes and as such permitted Portugal to sue Australia individually,
regardless of whether or not another State had conducted itself in a similarly unlawful manner. The
Court fully shared the assertion of Portugal that the right of peoples to self-determination had an erga
omnes character. Nevertheless, the Court considered that the erga omnes character of a norm and the
principle of consent to the Court's jurisdiction were two different things. Whatever the nature of the
obligations invoked, the Court could not rule on the lawfulness of the conduct of a State when its
judgment would imply an evaluation of the lawfulness of the conduct of another State not a party to the
case.
The Court likewise dismissed the argument of Portugal that the United Nations resolutions concerning
the status of Portugal as administering Power were imposing upon all States an obligation not to
recognize any authority of Indonesia over East Timor. The Court found that without prejudice to the
question of the binding or non-binding nature of these resolutions such an obligation could not be
inferred from those resolutions. Therefore, the Court would have necessarily to rule upon the
lawfulness of Indonesia's conduct as a prerequisite for deciding Portugal's contention that Australia
violated its obligation to respect Portugal's status as administering Power and East Timor's status as a
non-self governing territory and the right of its people to self-determination and to permanent
sovereignty of its natural resources. Thus, the rights and obligations of Indonesia would constitute the
very subject-matter of the case and could only be judged with the consent of Indonesia. Since this
consent was lacking, the Court had to dismiss the case, despite the importance of the questions raised.
Cases and other sources that are cited in the questions.
Topics on Non- intervention, Self -determination, Use- force, and Human rights

 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua vs. US). 1986 I.C.J.
14 (June 27), ¶202
Facts. The United States challenged the jurisdiction of the I.C.J when it was held responsible for illegal
military and paramilitary activities in and against Nicaragua in the suit the plaintiff brought against the
defendant in 1984. Though a declaration accepting the mandatory jurisdiction of the Court was
deposited by the United States in a 1946, it tried to justify the declaration in a 1984 notification by
referring to the 1946 declaration and stating in part that the declaration “shall not apply to disputes
with any Central American State….”
Apart from maintaining the ground that the I.C.J lacked jurisdiction, the States also argued that
Nicaragua failed to deposit a similar declaration to the Court. On the other hand, Nicaragua based its
argument on its reliance on the 1946 declaration made by the United states due to the fact that it was a
“state accepting the same obligation” as the United States when it filed charges in the I.C.J. against the
United States . Also, the plaintiff intent to submit to the compulsory jurisdiction of the I.C.J. was pointed
out by the valid declaration it made in 1929 with the I.C.J’s predecessor, which was the Permanent Court
of International Justice, even though Nicaragua had failed to deposit it with that court. The admissibility
of Nicaragua’s application to the I.C.J. was also challenged by the United States.

Issue. (1) Is the jurisdiction to entertain a dispute between two states, if they both accept the Court’s
jurisdiction, within the jurisdiction of the International Court of Justice?
(2) Where no grounds exist to exclude the application of a state, is the application of such a state to the
International Court of Justice admissible?

Held. (1) Yes. The jurisdiction of the Court to entertain a dispute between two states if each of the
States accepted the Court’s jurisdiction is within the jurisdiction of the International Court of Justice.
Even though Nicaragua declaration of 1929 was not deposited with the Permanent Court, because of
the potential effect it had that it would last for many years, it was valid.
Thus, it maintained its effect when Nicaragua became a party to the Statute of the I.C.J because the
declaration was made unconditionally and was valid for an unlimited period. The intention of the
current drafters of the current Statute was to maintain the greatest possible continuity between it and
the Permanent Court. Thus, when Nicaragua accepted the Statute, this would have been deemed that
the plaintiff had given its consent to the transfer of its declaration to the I.C.J.
(2) Yes. When no grounds exist to exclude the application of a state, the application of such a state to
the International Court of Justice is admissible. The five grounds upon which the United States
challenged the admissibility of Nicaragua’s application were that the plaintiff failed because there is no
“indispensable parties” rule when it could not bring forth necessary parties, Nicaragua’s request of the
Court to consider the possibility of a threat to peace which is the exclusive province of the Security
Council, failed due to the fact that I.C.J. can exercise jurisdiction which is concurrent with that of the
Security Council, that the I.C.J. is unable to deal with situations involving ongoing armed conflict and
that there is nothing compelling the I.C.J. to decline to consider one aspect of a dispute just because the
dispute has other aspects due to the fact that the case is incompatible with the Contadora process to
which Nicaragua is a party.
 Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation Among States in Accordance with the Charter of the United Nations. G.A. Res
2625, Art. 3(1), U.N. Doc. A/RES/25/2625 (October 24, 1970) [hereinafter Declaration
Concerning Friendly Relations].
 Declaration Concerning Friendly Relations, Art. 3(4)
 Armed Activities on the Territory of the Congo, (Dem. Rep. Cong vs. Uganda), 2005 I.C.J. 168
¶ 164-65 (Dec. 19) [hereinafter Armed Activities in the Congo].
FACTS: On 23 June 1999, the Democratic Republic of the Congo (hereinafter “the DRC”) filed an
Application instituting proceedings against the Republic of Uganda (hereinafter “Uganda”) in respect of a
dispute concerning “acts of armed aggression perpetrated by Uganda on the territory of the Democratic
Republic of the Congo, in flagrant violation of the United Nations Charter and of the Charter of the
Organization of African Unity” (emphasis in the original). It alleged that the Republic of Uganda engaged
in military and paramilitary activities against the Democratic Republic of the Congo and by occupying its
territory and by actively extending military, logistic, economic and financial support to irregular forces
having operated there, has violated the following principles of conventional and customary law:
— the principle of non-use of force in international relations, including the prohibition of aggression;
— the obligation to settle international disputes exclusively by peaceful means so as to ensure that
international peace and security, as well as justice, are not placed in jeopardy;
— respect for the sovereignty of States and the rights of peoples to self-determination, and hence to
choose their own political and economic system freely and without outside interference;
— the principle of non-intervention in matters within the domestic jurisdiction of States, including
refraining from extending any assistance to the parties to a civil war operating on the territory of another
State.
ISSUE: WON the DRC’s contentions are correct.
HELD: Yes. “The Court notes that in the present case it has been presented with probative evidence as to
military intervention. The Court further affirms that acts which breach the principle of non-intervention
“will also, if they directly or indirectly involve the use of force, constitute a breach of the principle of non-
use of force in international relations … the Court accordingly concludes that Uganda has violated the
sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally constituted an
interference in the internal affairs of the DRC and in the civil war there raging.”
“ . . . The Court,
(1) By sixteen votes to one, Finds that the Republic of Uganda, by engaging in military activities against
the Democratic Republic of the Congo on the latter’s territory, by occupying Ituri and by actively extending
military, logistic, economic and financial support to irregular forces having operated on the territory of
the DRC, violated the principle of non-use of force in international relations and the principle of non-
intervention;
(2) Unanimously, Finds admissible the claim submitted by the Democratic Republic of the Congo relating
to alleged violations by the Republic of Uganda of its obligations under international human rights law
and international humanitarian law in the course of hostilities between Ugandan and Rwandan military
forces in Kisangani;
(3) By sixteen votes to one, Finds that the Republic of Uganda, by the conduct of its armed forces, which
committed acts of killing, torture and other forms of inhumane treatment of the Congolese civilian
population, destroyed villages and civilian buildings, failed to distinguish between civilian and military
targets and to protect the civilian population in fighting with other combatants, trained child soldiers,
incited ethnic conflict and failed to take measures to put an end to such conflict; as well as by its failure,
as an occupying Power, to take measures to respect and ensure respect for human rights and international
humanitarian law in Ituri district, violated its obligations under international human rights law and
international humanitarian law . . .”
 International Covenant on Civil and Political Rights. 1966 U.N.G.A 999, No. 14668
(December 19), Art.1¶1-2 [hereinafter Covenant]; Covenant, Art.1

Article 1. 1. All peoples have the right of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international economic co-operation, based upon the
principle of mutual benefit, and international law. In no case may a people be deprived of its own means
of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of
self-determination, and shall respect that right, in conformity with the provisions of the Charter of the
United Nations.

 The Implementation of The Right To Self-Determination As A Contribution To Conflict

Prevention : Report of the International Conference of Experts held in Barcelona. 1998
UNESCO (November 21-27) (The ones cited are in bold text)

CONFERENCE OBJECTIVE

The objective of the conference was to explore ways in which the implementation of the right to self-
determination can contribute to the prevention of conflicts.

CONCLUSIONS OF THE CONFERENCE

The principle and fundamental right to self-determination of all peoples is firmly established in
international law, including human rights law, and must be applied equally and universally.

SELF DETERMINATION IS FIRMLY ESTABLISHED IN INTERNATIONAL LAW

A thorough analysis of the evolution and present status of self-determination leaves no doubt
that it is today, and indeed has been for a long time, a core principle and fundamental right in
international law.

The principle of self-determination is prominently embodied in Article I of the Charter of the

United Nations. Earlier it was explicitly embraced by US President Woodrow Wilson, by Lenin and
others, and became the guiding principle for the reconstruction of Europe following World War I.
The principle was incorporated into the 1941 Atlantic Charter and the Dumbarton Oaks proposals
which evolved into the United Nations Charter. Its inclusion in the UN Charter marks the universal
recognition of the principle as fundamental to the maintenance of friendly relations and peace
among states. It is recognised as a right of all peoples in the first article common to the
International Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights which both entered into force in 1976. Paragraph 1 of this Article
provides:
 All peoples have the right to self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.

The right to self-determination of peoples is recognised in many other international and regional
instruments, including the Declaration of Principles of International Law Concerning Friendly
Relations and Co-operation Among States adopted by the UN General Assembly in 1970, the
Helsinki Final Act adopted by the Conference on Security and Co-operation in Europe (CSCE) in
1975, the African Charter of Human and Peoples' Rights of 1981, the CSCE Charter of Paris for a
New Europe adopted in 1990, and the Vienna Declaration and Programme of Action of 1993. It
has been affirmed by the International Court of Justice in the Namibia case, the Western Sahara
case and the East Timor case, in which its erga omnes character was confirmed. Furthermore, the
scope and content of the right to self-determination has been elaborated upon by the UN Human
Rights Committee and the Committee on the Elimination of Racial Discrimination and numerous
leading international jurists.

That the right to self-determination is part of so called hard law has been affirmed also by the
International Meeting of Experts for the Elucidation of the Concepts of Rights of Peoples brought
together by UNESCO from 1985 to 1991. It came to the conclusion that (1) peoples' rights are
recognised in international law; (2) the list of such rights is not very clear, but also that (3) hard
law does in any event include the right to selfdetermination and the right to existence, in the
sense of the Genocide Convention. The Barcelona Conference concluded that the principle and
fundamental right to self-determination of all peoples is firmly established in international law.

The inclusion of the right to self-determination in the International Covenants on Human Rights
and in the Vienna Declaration and Programme of Action, referred to above, emphasizes that self-
determination is an integral part of human rights law which has a universal application. At the
same time, it is recognised that compliance with the right of self-determination is a
fundamental condition for the enjoyment of other human rights and fundamental freedoms, be
they civil, political, economic, social or cultural.

The concept of self-determination is a very powerful one. As Wolfgang Danspeckgruber put it: "No
other concept is as powerful, visceral, emotional, unruly, as steep in creating aspirations and
hopes as self-determination." It evokes emotions, expectations and fears which often lead to
conflict and bloodshed. According to one participant to the conference, 50 conflicts in the world
today are related to antagonism between claims to self-determination and to state sovereignty.
Conference participants were convinced that in most cases it is not the assertion of claims by
oppressed communities but the denial of self-determination by state authorities which cause
armed conflicts.

 It may thus be inferred that: because of its fundamental importance, the right to self-
determination is based on the norm of jus cogens, derogation from which is not permissible
under international law.
 Summaries of Judgements, Advisory Opinions and Orders of the International Court of
Justice. 1971 U.N. (June 21) [hereinafter Summaries]
(on erga omnes character of self-determination)

LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA
(SOUTH-WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970)
Advisory Opinion of 21 June 1971

History of the Mandate

The mandates system established by Article 22 of the Covenant of the League of Nations was based
upon two principles of paramount importance: the principle of non-annexation and the principle that
the well-being and development of the peoples concerned formed a sacred trust of civilisation. The
ultimate objective of the sacred trust was self-determination and independence. The mandatory was
to observe a number of obligations, and the Council of the League was to see that they were fulfilled.
The rights of the mandatory as such had their foundation in those obligations.
When the League of Nations was dissolved, the raison d'etre and original object of these obligations
remained.
Article 80, paragraph 1, of the United Nations Charter maintained the obligations of mandatories. Thus
the supervisory element, which is an essential part of the Mandate, was bound to survive. The United
Nations suggested a system of supervision which would not exceed that which applied under the
mandates system, but this proposal was rejected by South Africa.

Resolutions by the General Assembly and the Security Council

Eventually, in 1966, the General Assembly of the United Nations adopted resolution 2145 (XXI), whereby
it decided that the Mandate was terminated and that South Africa had no other right to administer the
Territory (Namibia). Subsequently the Security Council adopted various resolutions including resolution
276 (1970) declaring the continued presence of South Africa in Namibia illegal.
The entry into force of the United Nations Charter established a relationship between all Members of
the United Nations on the one side, and each mandatory Power on the other, and that one of the
fundamental principles governing that relationship is that the party which disowns or does not fulfil its
obligations cannot be recognized as retaining the rights which it claims to derive from the relationship.
Resolution 2145 (XXI) determined that there had been a material breach of the Mandate, which South
Africa had in fact disavowed.
The Court observes that, according to a general principle of international law (incorporated in the
Vienna Convention on the Law of Treaties), the right to terminate a treaty on account of breach must be
presumed to exist in respect of all treaties, even if unexpressed; that the United Nations must be seen
above all as the supervisory institution competent to pronounce on the conduct of the Mandatory; and,
that the failure of South Africa to comply with the obligation to submit to supervision cannot be
disputed.
The General Assembly, however, lacked the necessary powers to ensure the withdrawal of South Africa
from the Territory and therefore, enlisted the co-operation of the Security Council.

The Court was of opinion,

by 13 votes to 2, (1) that, the continued presence of South Africa in Namibia being illegal, South Africa is
under obligation to withdraw its administration from Namibia immediately and thus put an end to its
occupation of the Territory;
by 11 votes to 4, (2) that States Members of the United Nations are under obligation to recognize the
illegality of South Africa's presence in Namibia and the invalidity of its acts on behalf of or concerning
Namibia, and to refrain from any acts and in particular any dealings with the Government of South
Africa implying recognition of the legality of, or lending support or assistance to, such presence and
administration;
(3) that it is incumbent upon States which are not Members of the United Nations to give assistance,
within the scope of subparagraph (2) above, in the action which has been taken by the United Nations
with regard to Namibia.

All States should bear in mind that the entity injured by title illegal presence of South Africa in Namibia
is a people which must look to the international community for assistance in its progress towards the
goals for which the sacred trust was instituted.

 Summaries, 1975 U.N. (October 16)

(on erga omnes character of self-determination)

WESTERN SAHARA
Advisory Opinion of 16 October 1975

Question I: "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the Time of Colonization by Spain a
Territory Belonging to No One (terra nullius)?"
The "time of colonization by Spain" may be considered as the period beginning in 1884, when Spain
proclaimed its protectorate over the Río de Oro.
In law, "occupation" was a means of peaceably acquiring sovereignty over territory otherwise than by
cession or succession; it was a cardinal condition of a valid "occupation" that the territory should be
terra nullius. Territories inhabited by tribes or peoples having a social and political organization were not
regarded as terrae nullius: in their case sovereignty was effected through through agreements
concluded with local rulers. The information shows (a) that at the time of colonization Western Sahara
was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under
chiefs competent to represent them; (b) that Spain did not proceed upon the basis that it was
establishing its sovereignty over terrae nullius: thus in his Order of 26 December 1884 the King of Spain
proclaimed that he was taking the Río de Oro under his protection on the basis of agreements entered
into with the chiefs of local tribes.

Question II: "What Were the Legal Ties of This Territory with the Kingdom of Morocco and the
Mauritanian Entity?"
It appears to the Court that “legal ties” must be understood as referring to such ties as may affect the
policy to be followed in the decolonization of Western Sahara. At the time of its colonization the
territory had a sparse population that for the most part consisted of nomadic tribes the members of
which traversed the desert on more or less regular routes, sometimes reaching as far as southern
Morocco or regions of present-day Mauritania, Algeria or other States. These tribes were of the Islamic
faith.

Morocco presented its claim to legal ties with Western Sahara as a claim to ties of sovereignty on the
ground of an alleged immemorial possession of the territory and an uninterrupted exercise of authority.
The Court finds that neither the internal nor the international acts relied upon by Morocco indicate the
existence at the relevant period of either the existence or the international recognition of legal ties of
territorial sovereignty between Western Sahara and the Moroccan State. Even taking account of the
specific structure of that State, they do not show that Morocco displayed any effective and exclusive
State activity in Western Sahara, they do, however, provide indications that a legal tie of allegiance
existed at the relevant period between the Sultan and some, but only some, of the nomadic peoples of
the territory, through Tekna caids of the Noun region, and they show that the Sultan displayed, and was
recognized by other States to possess, some authority or influence with respect to those tribes.

The term "Mauritanian entity" was first employed during the session of the General Assembly in 1974.
Expressly recognizing that the emirates and tribes did not constitute a State, Mauritania suggested that
the concepts of "nation" and of "people" would be the most appropriate to explain the position of the
Shinguitti people at the time of colonization.
The information discloses that, while there existed among them many ties of a racial, linguistic, religious,
cultural and economic nature, the emirates and many of the tribes in the entity were independent in
relation to one another; they had no common institutions or organs. The Mauritanian entity therefore
did not have the character of a personality or corporate entity distinct from the several emirates or
tribes which comprised it. The Court concludes that at the time of colonization by Spain there did not
exist between the territory of Western Sahara and the Mauritanian entity any tie of sovereignty, or of
allegiance of tribes, or of simple inclusion in the same legal entity.
The Court considers that, in the relevant period, the nomadic peoples of the Shinguitti country
possessed rights, including some rights relating to the lands through which they migrated. These rights
constituted legal ties between Western Sahara and the Mauritanian entity.

Both were ties which knew no frontier between the territories and were vital to the very maintenance of
life in the region.
Morocco and Mauritania both laid stress on the overlapping character of the respective legal ties which
they claimed Western Sahara to have had with them at the time of colonization.

The Court,
With regard to Question I,
—was unanimously of opinion that Western Sahara (Río de Oro and Sakiet El Hamra) at the time of
colonization by Spain was not a territory belonging to no one (terra nullius).
With regard to Question II,
—was of opinion, by 14 votes to 2, that there were legal ties between this territory and the Kingdom of
Morocco. The materials and information presented to the Court show the existence, at the time of
Spanish colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes
living in the territory of Western Sahara.
—was of opinion, by 15 votes to 1, that there were legal ties between this territory and the Mauritanian.
They show the existence of rights, including some rights relating to the land, which constituted legal ties
between the Mauritanian entity.

On the other hand, the Court's conclusion is that the materials and information presented to it do not
establish any tie of territorial sovereignty between the territory of Western Sahara and the Kingdom of
Morocco or the Mauritanian entity.

Thus the Court has not found legal ties of such a nature as might affect the application of General
Assembly resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the
principle of self-determination through the free and genuine expression of the will of the peoples of
the Territory.
 Summaries, 1995 U.N. (June 30) (on erga omnes character of self-determination)
– please change the citation to: Case Concerning East Timor (Portugal vs. Australia),
Judgment, 1995 I.C.J. Reports 84, p.90 (June 30)
FACTS:
On 22 February 1991, the Ambassador to the Netherlands of the Portuguese Republic (hereinafter
referred to as "Portugal") filed in the Registry of the Court an Application instituting proceedings against
the Commonwealth of Australia (hereinafter referred to as "Australia") concerning "certain activities of
Australia with respect to East Timor". According to the Application Australia had, by its conduct, "failed
to observe . . . the right of the people of East Timor to self-determination and the related rights".
Portugal Request the Court to adjudge and declare the rights of the people of East Timor to self-
determination, to territorial integrity and unity and to permanent sovereignty over its wealth and
natural resources

ISSUE:
WON the people of East Timor enjoy the right to self-determination; and WON the right to self-
determination has an erga omnes character.

HELD:
Yes. The principle of self-determination of peoples has been recognized by the United Nations Charter
and in the jurisprudence of the Court (see Legal Consequences for States of the Continued Presence of
South Africa in Namibia (South West Africa) and Western Sahara); it is one of the essential principles of
contemporary international law.

Both the erga omnes character of the right to self-determination and the right of the people of East
Timor to said self-determination can be found in various Security Council Resolutions on this dispute:
 Security Council resolution 384 (1975) of 22 December 1975 called upon "al1 States to respect
the territorial integrity of East Timor as well as the inalienable right of its people to self-
determination", called upon "the Government of Indonesia to withdraw without delay al1 its
forces from the Territory"; and further called upon "the Government of Portugal as
administering Power to co-operate fully with the United Nations so as to enable the people of
East Timor to exercise freely their right to self-determination".
 Security Council resolution 389 (1976) of 22 April 1976 adopted the same terms with regard to
the right of the people of East Timor to self-determination; called upon "the Government of
Indonesia to withdraw without further delay al1 its forces from the Territory"; and further called
upon "al1 States and other parties concerned to co-operate fully with the United Nations to
achieve a peaceful solution to the existing situation . . .".
 In resolution 31/53 of 1 December 1976, and again in resolution 32134 of 28 November 1977,
the General Assembly rejected "the claim that East Timor has been incorporated into Indonesia,
inasmuch as the people of the Territory have not been able to exercise freeiy their right to self-
determination and independence".

For the two Parties, the Territory of East Timor remains a non-selfgoverning territory and its people has
the right to self-determination. Furthermore, the Security Council, in its resolutions 384 (1975) and 389
(1976) has expressly called for respect for "the territorial integrity of East Timor as well as the
inalienable right of its people to selfdetermination in accordance with General Assembly resolution 1514
(XV)".
 U.N. Charter, Art. 2 (The ones cited are in bold text)

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance with the
present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against which the
United Nations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles so far as may be necessary for the maintenance of
international peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter Vll.

 Secession, International Law Perspectives. Kohen, 2006, Cambridge University Press, p. 35

(The ones cited are in bold text)

For a right to secession to arise, the threshold indicated by these resolutions must certainly be
higher; a mere lack of representativeness of a government would not suffice to bring about a right to
secession as a form of a right of resistance. The phrase employed rightly conveys the idea that
exceptional circumstances are capable of sustaining a claim for secession – circumstances which may
roughly be summarized as a grave and massive violation of the human rights of a specific group in a
discriminatory fashion. This is the situation which Lee Buchheit has called ‘remedial secession’,51 a
term which has found wide acceptance in the legal literature. According to our judgment, the only
major controversy which still rages among legal writers centres on this concept. Whereas one group
adheres to this concept, viewing secession as a kind of ultima ratio if a given human community
suffers unbearable persecution.

International law does not protect a state’s territorial integrity without restraint, but sets certain
limits. Territorial integrity of States may be restricted in circumstances where there is a grave and
massive violation of the human rights of a specific group in a discriminatory fashion.
 Declaration Concerning Friendly Relations, Art. 5(1)

 Declaration on the Granting of Independence to Colonial Countries and Peoples. G.A. Res
1541, Art. 4, U.N. Doc. A/RES/15/1541 (December 14, 1960) (The ones cited are in bold text)

The General Assembly ,

Mindful of the determination proclaimed by the peoples of the world in the Charter of the United
Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in
the equal rights of men and women and of nations large and small and to promote social progress and
better standards of life in larger freedom,
Conscious of the need for the creation of conditions of stability and well-being and peaceful and friendly
relations based on respect for the principles of equal rights and self-determination of all peoples, and of
universal respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language or religion,
Recognizing the passionate yearning for freedom in all dependent peoples and the decisive role of such
peoples in the attainment of their independence,
Aware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom
of such peoples, which constitute a serious threat to world peace,
Considering the important role of the United Nations in assisting the movement for independence in
Trust and Non-Self-Governing Territories,
Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,
Convinced that the continued existence of colonialism prevents the development of international
economic co-operation, impedes the social, cultural and economic development of dependent peoples
and militates against the United Nations ideal of universal peace,
Affirming that peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation, based upon the
principle of mutual benefit, and international law,
Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious
crises, an end must be put to colonialism and all practices of segregation and discrimination associated
therewith,
Welcoming the emergence in recent years of a large number of dependent territories into freedom and
independence, and recognizing the increasingly powerful trends towards freedom in such territories
which have not yet attained independence,
Convinced that all peoples have an inalienable right to complete freedom, the exercise of their
sovereignty and the integrity of their national territory,
Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its
forms and manifestations;
And to this end
Declares that:
1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of
fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the
promotion of world peace and co-operation.
2. All peoples have the right to self-determination; by virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development.
3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext
for delaying independence.
4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease
in order to enable them to exercise peacefully and freely their right to complete independence, and
the integrity of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories
which have not yet attained independence, to transfer all powers to the peoples of those territories,
without any conditions or reservations, in accordance with their freely expressed will and desire,
without any distinction as to race, creed or colour, in order to enable them to enjoy complete
independence and freedom.
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity
of a country is incompatible with the purposes and principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the
Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-
interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and
their territorial integrity.

Additional material:
Secession, International Law Perspectives. Kohen, 2006, Cambridge University Press

"SECESSION OR SEPARATION FROM THE STATE

In the broader context of self-determination, separation or secession from the state of which a people
forms a part should be regarded as a right of last resort. Thus, if the state and its successive
governments have repeatedly and for a long period oppressed a people, violated the human rights and
fundamental freedoms of its members, excluded its representatives from decision making especially on
matters affecting the well-being and security of the people, suppressed their culture, religion, language
and other attributes of the identity valued by the members, and if other means of achieving a sufficient
degree of self-government have been tried and have clearly failed, then the question of secession can
arise as a means for the restoration of fundamental rights and freedoms and the promotion of the well
being of the people. This right could be regarded as analogous to the right of last resort of rebellion
against tyranny and oppression referred to in the Preamble to the Universal Declaration of Human
Rights.
Peoples and communities may attempt to secede because independent statehood appears to them to
form the only means of obtaining the level of freedom and security which they aspire to. In part, this is
because the international legal and political system does not provide adequate forms of protection and
guarantees to communities that are within the borders of independent states, regardless of their status
within that state."