Peoplehood Obscured? The Normative Status of Self-Determination after the Chagos Advisory Opinion (Advance)

Abstract

In international law the right of every people to self-determination is well established. Yet in terms of substance and process this right incident to ‘peoplehood’, on its face the paradigmatically collectively held right, is inadequately articulated. This paper interrogates the normative status of self-determination in the context of colonial domination, after the Advisory Opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (‘Chagos Advisory Opinion’) issued by the International Court of Justice (‘ICJ’) in 2019. Self-determination is investigated both as a putative norm of customary international law (‘CIL’) and a putative norm jus cogens. The CIL status of self-determination in the post-colonial setting is well established by the ICJ and a higher, peremptory status is strongly implied. In either case territorial integrity is of the essence of the rights conveyed by the norm. Here it is argued that while the formal status of a norm of self-determination is thus to some extent clarified by the Chagos Advisory Opinion, the substance of such a norm remains insufficiently articulated. If anything, the emphasis on territorial integrity compromises the status of peoplehood and conveys that the incidents of statehood take precedence over the collective rights of distinct populations.