A key element of the right to self-determination is territorial integrity. This has usually been considered solely in relation to the territorial integrity of an existing State seeking to resist claims by peoples for the right to self-determination. Yet the Chagos Opinion by the International Court of Justice examines a different type of territorial integrity—that of the colonial territory itself. This article explores the consequence of the Court's view that the territorial integrity of the colonial territory is a matter of customary international law, and that any division, integration or other disruption of that colonial territory after December 1960 is unlawful, without the free and genuine consent of the people of the colonial territory. In particular this article seeks to explore what the Chagos Opinion means in terms of the territorial integrity of a colonial territory. It also examines the required conditions for ascertaining a free and genuine consent of the people of that territory, and the legal effects of not complying with them. There is also consideration of the implications for other situations from the clarification of customary international law in the Chagos Opinion, with a special focus on West Papua.

As part of a roundtable on “Balancing Legal Norms, Moral Values, and National Interests,” this essay argues that the policy field of secessionist conflict is structured around a set of five rival norms. The norms of territorial integrity and self-determination form the core of this structure, while the norms of noninterference in internal affairs, human and minority rights, and democracy and good governance each come into play depending on the specific scenario. This configuration permits the parties involved in a secessionist conflict to select from a menu of norms the ones that best suit their interests. Norm selection—a concept that I introduce here—displays remarkable regularities, indicating default positions for each type of actor: home states, secessionist groups, entrapped minorities, patrons, and the broader international community. However, significant outlier cases signal that interests do not simply trump norms but that actors accord different values to those norms over time. This attribution is influenced by the dynamics of a normative environment in which norms rise and fall. In particular since the end of the Cold War, discourse as well as state practice has shifted away from the traditional taboo on secession toward more revisionist concepts, such as remedial secession or earned sovereignty, providing an opening for the secessionist wave that started with the breakup of the Soviet Union and of Yugoslavia.

This article draws on the concept of “identity interests” to explain why commitment to the territorial integrity norm in the context of African peace processes has persisted over such a long period of time, even as continental and international contexts have changed. One major implication of this commitment to the territorial integrity norm is that third parties involved in peacemaking in Africa have consistently refrained from promoting a negotiated settlement that might pave the way for independence; they have only pushed for a territorial revision in a few instances. The role of major powers has been crucial with regard to the few successful territorial changes in Africa since 1960. An overview of all outcomes of mediation in territorial intrastate conflicts in Africa—as well as seven case studies—support this argument.

Few in Spain would have imagined two years ago that so much attention would be paid to questions such as the allocation of powers to hold referenda or the constitutional tools to enforce compliance with the 1978 Constitution (Constitution). But since the celebration of a “referendum” on October 1, 2017, and the subsequent declaration of independence and immediate suspension thereof by the president of Catalonia, numerous international voices have taken a stance on Catalonia's right to unilateral secession.

In view of the challenges frequently encountered in providing assistance to civilians in opposition-held territories, consideration is sometimes given to cross-border relief operations. Such operations raise numerous legal questions, including whose consent is required; what constitutes arbitrary withholding of consent; what the consequences of withholding of consent are, both for those wishing to provide assistance and for the parties withholding consent; and what alternatives exist for providing assistance in such circumstances.

Ceuta, Melilla, Vélez de la Gomera, Alhucemas and the Chafarinas Islands are Spanish territories that lie along Morocco's northern coastline. Morocco has claimed the territories since its independence in 1956. The sovereignty of a further territory, the islet of Perejil, remains unresolved after a military confrontation between Morocco and Spain in 2002. The author examines the arguments in the ongoing sovereignty dispute. Morocco's claim to Ceuta and Melilla is found to be weak. However, its claim to the remaining territories may be supported by the analogous case of São João Baptista de Ajudá, an unpopulated Portuguese fortress territory in Dahomey (Benin) that was singled out for ‘statutory decolonization’ by the UN.

In the Kosovo Advisory Opinion, the International Court of Justice took the position that Kosovo's unilateral declaration of independence did not violate any applicable rules of international law. This article does not dispute the final finding, but rather critically examines the Court's somewhat controversial reasoning and considers the added value of the opinion for the clarification of legal doctrine in relation to unilateral declarations of independence. An argument is made that the Court's interpretation of the question and the identification of the authors of the declaration had significant implications for the Court's final finding. Yet, the Court cannot be criticized for not answering the question of whether or not Kosovo is a state, whether Kosovo Albanians are beneficiaries of the right of self-determination, or even whether the ‘right to remedial secession’ is applicable. However, the Court may well have implicitly answered that recognition of Kosovo is not illegal.

Paragraph 80 of the Kosovo AO reflects a very traditional conception of international law. By insisting on the inter-state character of the principle of territorial integrity, the Court refused to challenge the classical argument of the ‘neutrality’ of international law in regard to secession. The Court also refused any reinterpretation of Article 2(4) of the UN Charter. As already stated in the Wall Advisory Opinion, the prohibition of the use of force is only applicable between states. It does not apply between states and non-state actors, whether secessionist or not. Similarly, the Court refused the argument of ‘remedial secession’, at least as far as it would imply a right to violate the principle of territorial integrity of a state by a secessionist group. Indeed, if the latter principle is not applicable in such situations, it logically cannot be violated and there is therefore no right to infringe it. Finally, the Court refused to consider Kosovo as a ‘special case’ or a sui generis situation. According to the Court, this situation must be governed by the traditional rules of general international law. This implies that Kosovo did not violate international law by proclaiming independence. But this also implies that a declaration of independence by a secessionist group inside Kosovo would not be contrary to international law. Moreover, it can be pointed out that if Kosovo is not a state (a hypothesis perfectly compatible with the advisory opinion), then general international law would not preclude Serbia from invoking the argument of ‘legal neutrality’ to support such a secessionist group.

This paper finds that the ICJ's Kosovo Advisory Opinion reached the right result, but in a methodologically not fully satisfactory way. It examines five aspects that underpin the opinion: the temporal (purely ex post) perspective; the Court's equation of legal conformity and non-prohibition and the idea of a deliberate silence of international law; the applicability of the Lotus principle that was evoked by numerous states in the proceedings; the structural analogies between international law and private, criminal, or public law; and the oscillation between legal positivist and jusnaturalist paradigms. Finally, the paper argues in favour of procedural requirements for the international lawfulness of secession, and claims that this approach is compatible with the findings of the Advisory Opinion.

The ICJ's Advisory Opinion adopted a very narrow approach to the question posed by the General Assembly, but its basic response – that Kosovo's declaration of independence did not violate general international law – was correct. While it might have been preferable if the Court had given more guidance regarding the contemporary scope of self-determination, neither supporters nor opponents of Kosovo's independence gained much from the opinion. No definitive conclusion about Kosovo's status can be drawn without agreement between Pristina and Belgrade, and outsiders should avoid prejudging or interfering in that outcome.

The Kosovo Advisory Opinion reaches its conclusions in what is admittedly a very condensed and swift way of reasoning. The Court did not expand upon the question that was put to it. However, it is unfair to criticize the Court for failing to address the very issues the drafters of the question carefully and deliberately did not ask. Moreover, the Court did in fact clarify a number of important points that go beyond the narrow question of the lawfulness of Kosovo's declaration of independence. In particular, the Court confirmed that a state is a matter of fact in the first instance. It can come into being in consequence of unilateral secession when attempts to negotiate a separation have been frustrated by the central government. The doctrine of territorial integrity operates among states and furnishes no legal bar in such instances that applies to the seceding entity. Moreover, a decision on independence by such an entity cannot be evaluated according to the domestic legal order of the state from which it secedes. In this instance, Kosovo's secession was in any event not quite as unilateral as it may have seemed. Its declaration of independence and new constitution fully incorporate the entire package of measures proposed by the UN mediators in the final status talks. Hence, Kosovo has implemented what was in fact developed and proposed under the UN mandate for final status talks contained in Resolution 1244. Rather than overturning that resolution, it has acted in accordance with its terms.