Self-determination in territorial disputes before the International Court of Justice: From rhetoric to reality?

Abstract

In its jurisprudence, the ICJ has developed a hierarchy of sources it will rely on to resolve territorial disputes: it prioritizes a boundary treaty between the state litigants, followed by agreements between the states' colonial predecessors, and finally state litigants' actions displaying their authority over the disputed territory. The Court's practice therefore leaves no room for local populations to contribute to boundary-making decisions. Given the status self-determination holds in international law today, and the repercussions possibly faced by such populations in certain territorial disputes, there is cause to consider that the desires of local populations should be considered in the Court's legal reasoning. This article first unpacks the reasons that self-determination is not brought up by state litigants on one hand, nor by the Court on the other hand. It notes that self-determination is only rhetorically addressed by states if buttressing their interests. It therefore attempts to reconcile self-determination with territorial disputes, suggesting how peoples' desires may be factored into the Court's approach.