Drawing the Border: How Self-Determination and Territorial Integrity Do Not Conflict Within International Law
The year is 1991, and the Soviet Union (USSR) has suddenly fallen apart. The collapse of the decades-long global superpower heralded in a “post-Soviet blip” characterized by an influx of independence movements. [1] To ensure stability in the immediate aftermath of the state's dissolution, the doctrine of uti possidetis juris––a principle that affirms the inviolability of borders––was applied, which translated the boundaries of the USSR’s fifteen Republics into new international boundaries. [2] However, this arrangement, which amounted to the repurposing of Soviet drawn borders, did not quiet all demands for self-determination. One notable example was the case of Chechnya. Due to its status as an autonomous oblast––an administrative subregion within the USSR––Chechnya did not qualify to have new independent boundaries formed under the previously mentioned application of uti possidetis juris. [3] Nonetheless, Chechnya invoked its right self-determination and argued that it could never assert self-determination within the constitutional structure of the Russian Federation, citing a long history of oppression by Russians that includes the 1944 deportation of Chechens conducted by the Soviet Union. [4]
Chechnya’s argument for self-determination was rebuked by international bodies and states. In their responses to the war’s outbreak, the United States, France, United Kingdom, NATO, and Council of Europe all stated, in one form or another, that Chechnya had to respect Russia’s territorial integrity and seek an internal solution that would satisfy both parties. [5] Following the course of two destructive wars, Chechnya’s calls for self-determination died out. The Chechen case highlights just how frequently territorial integrity is invoked in order to nullify claims to self-determination. This legal stalemate can also be understood as a significant factor contributing to the popular perception of self-determination bids as complex and unresolvable. However, a closer look at the historic precedent surrounding territorial integrity and self-determination––particularly the International Court of Justice’s advisory opinions for the Western Sahara, Kosovo, and the Chagos Islands––reveals the two rights are not mutually exclusive. Territorial integrity doesn’t have to conflict with self-determination because its legal purpose is to govern relations between States, while self-determination seeks to empower ethnic and political peoples who have yet to become a State.
Territorial integrity and self-determination became concretely codified into international law following World War II as legal solutions to different problems. Territorial integrity is one of the key principles inherent to sovereignty, as it protects the inviolability of a state’s borders. This right was enshrined in the 1945 United Nations Charter: “All Members shall refrain…from the threat or use of force against the territorial integrity or political independence of any state.” [6] The purpose of territorial integrity and protecting the sanctity of borders is clear in lieu of the global war that had ended only a few months prior to the UN Charter’s establishment. As US-based attorney Davit Avagyan acutely summarizes, “Territorial integrity came about as a concept that was meant to prevent war between nations…” [7]
While self-determination’s evolution into international law is far more complex, its primary purpose was to facilitate the process of decolonization that was rapidly occurring after World War II. The war had created a massive disruption in the world order that also resulted in destabilizing the pervading colonial order. Thus, one of the UN’s tasks was to use international law to facilitate decolonization. This is most significantly seen in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, where self-determination became recontextualized as the right of a people to “freely determine their political status and freely pursue their economic, social and cultural development” [8] On paper, it seems quite clear: socially and culturally united peoples have the right to determine and control their own political destinies. The legal dispute over self-determination arises over what demonstrating this right actually entails in practice––a matter international charters have remained vague on. [9] Thus, the question remains that even if there exists a right to self-determination innate to all peoples, when does that right take precedence over the right a state has to protect what it deems its territory? The answer to this question can be elucidated by looking toward case studies from the International Court of Justice (ICJ).
The ICJ’s 1975 advisory opinion on the Western Sahara was one of the first where territorial integrity and self-determination were put into opposition. In 1973, the Polisora Front––an organization of the indigenous peoples of the Western Sahara––was created to fight the ongoing colonial occupation of Spain. [9] While the Polisora front succeeded in pressuring the Spanish out, both the neighboring nations of Morocco and Mauritania viewed Spain’s exit as an opportunity to gain land in the Western Sahara. The Court was tasked with answering two questions connected to this historical context. Firstly, if the territory of Western Sahara belonged to no one at the time of Spain’s colonization, and secondly, what legal ties the Western Sahara had between Morocco and Mauritania. [10] Indeed, one of the key legal arguments Mauritania set forth was that the “principle of self-determination cannot be dissociated from that of respect for national unity and territorial integrity.” [11] Both Mauritania and Morocco’s cases rested on the belief that their territorial integrity over the Western Sahara––which they sought to reconstruct through appeals to history––took precedence over the self-determination of the Saharawi people.
The Court had no difficulty settling the first question and finding the Sahawi had always, even during Spain’s colonization, been a “socially and politically organized” ethnic group. [12] However, for the second question, the Court did concede that there historically existed certain political, social, and religious relations between the Sahrawi people and Mauritania and Morocco, which could be constituted as legal ties. However, it ultimately concluded that it did not find “legal ties of such a nature as might affect the application…of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.” [13] The Court emphasized that, when it comes down to the question of a territory, the desires of the people living on that land takes precedence over any legal ties the land might have. [14] A state cannot claim territorial integrity over a political and ethnic people who do not first acquiesce to being a part of that territory in the present moment. Thus, the 1975 West Sahara Advisory Opinion legally supports understanding self-determination and territorial integrity as occupying different spheres. The dynamic between the Saharawi people and Morocco and Mauritius was not one of States negotiating territory, but rather two States encroaching on a people who had yet to exercise their self-determination.
Another significant case in setting legal precedent regarding self-determination and territorial integrity was the ICJ’s 2010 Special Advisory Opinion on Kosovo. In 2008, Kosovo declared independence and seceded from Serbia. The country’s reason for seceding paralleled Chechnya’s: as an administrative subregion, Kosovo did not earn its independence after the collapse of Yugoslavia. The extensive human rights abuses the Serbian government committed against the Kosovars––including amongst other atrocities the Račak massacre––throughout the 1990s further strengthened the resolve of the country that self-determination could never be achieved internally. [15] Kosovo’s secession––and its implications for what self-determination entails––caused shockwaves across the international community. Subsequently, the Court weighed in on the question of if “the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” [16] Led by Serbia and Russia, the main counterarguments against Kosovo––as with the Western Sahara before it––stated that a unilateral declaration of independence violated Serbia’s right to territorial integrity. [17]
Since territorial integrity was explicitly brought up in the counterarguments, the Court had to settle the question of self-determination and territorial integrity once again. The Court’s answer was to reaffirm the importance of territorial integrity but ultimately dismiss those claims on the basis that “the scope of the principle of territorial integrity is confined to the sphere of relations between States.” [18] In rather plain language, the Court reaffirmed that Serbia’s right to territorial integrity simply did not have any bearing on the Kosovian’s desire for self-determination. Self-determination ensures a people has a pathway to politically realize themselves; it does not instantly create a new state. The Serbian government had a responsibility to ensure Kosovars could internally express their self-determination, but failed to do so as signified by their human rights abuses. However, the Court remained vague on if it could definitively state that secession was protected by international law. As Swiss jurist and legal scholar Daniel Thurer explains, “the issue of legality…shifts from the question of the legality of secession, to the question of the legality of the recognition of secession.” [19] While a subtle differentiation, the Court’s ambivalence to dealing with the legality of secession––the most external expression of self-determination––has continued the debate of self-determination and territorial integrity conflicting.
While less explicitly about the relationship between self-determination and territorial integrity, one recent case that further signals a future where self-determination is more clearly defined is the ICJ’s 2019 Advisory Opinion on the Chagos Archipelago. The ICJ was tasked with considering, rather broadly, if the decolonization in Mauritius that officially ended in 1968 had been in compliance with international law. [20] Before it formally exited Mauritius in 1968 after a long period of colonization, Britain had detached the Chagos Archipelago and forced the Chagossians to leave. [21] In one significant passage of the decision, the Court hearkens back to its language surrounding self-determination in the Western Sahara decision: “It follows that any detachment by the administering Power of part of a non-self- governing territory, unless based on the freely expressed and genuine will of the people of the territory concerned, is contrary to the right to self-determination.” [22] Thus, even if Britain was an official, administrative power––granting it legal ties to the Chagos Archipelago the way Morocco and Mauritania had––what holds the utmost significance is if this administrative power is in accordance with the “freely expressed and genuine will” of the people. Once more, the relationship being mediated here is not one between two States, but between a legal administrative body and a people whose self-determination they have a duty to facilitate. Moreover, the Court’s language that “the right to self-determination, as a fundamental human right, has a broad scope of application” positively points toward a future where self-determination is fully divorced from its original context of facilitating decolonization. [23] This language signals that the ICJ may eventually clarify what self-determination practically entails and what it means for a people to exercise that right.
A close look at the Advisory Opinions on Western Sahara, Kosovo, and the Chagos Islands demonstrates how legally, self-determination and territorial integrity do not conflict. The former is meant to offer a pathway of political recognition for distinct ethnic groups, and the latter to protect the boundaries of a State from being encroached on by other States. The two rights are not inherently irreconcilable within the framework of international law. However, returning to the case study of Chechnya detailed in the beginning, there is nonetheless an underlying problem to address: when and where is the right to self-determination recognized? Why do there continue to be cases where one nation's territorial integrity is wrongfully seen as trumping a people's right to self-determination? Perhaps the larger, underlying issue––and one outside a purely legal jurisdiction––is when and how international bodies choose to prioritize territorial integrity or self-determination. As bids for self-determination continue to persist, it is key to push for a clearer delineation between self-determination and territorial integrity from international bodies.
Edited by Megan Chopra and Claire Thornhill
[1] Carley, Patricia, Self-Determination: Sovereignty, Territorial Integrity, and the Right to Secession, Peaceworks No. 7. United States Institute of Peace, 1996, 12.
[2] Grant, Thomas D, International Law and the Post-Soviet Space I : Essays on Chechnya and the Baltic States, International Law and the Post-Soviet Space, Stuttgart, Germany, 2019, 34.
[3] Thomas D. Grant, “Chechnya,” in Max Planck Encyclopedias of International Law, September 2010, para 13.
[4] Grant, “Chechnya,” para. 11-12; 14.
[5] Grant, International Law and the Post-Soviet Space I, 39-41.
[6] United Nations, Charter of the United Nation, 1945, 1 UNTS XVI, art. 2.
[7] Davit Avagyan, “From Principles to Practice: Resolving the Perceived Conflict Between Territorial Integrity and Self-Determination in International Law,” Southwestern Journal of International Law 31, no. 1 (n.d.): 23–46, 39.
[8] United Nation, Declaration of the Granting of Independence to Colonial Countries and Peoples, A/RES/1514 (XV), December 14, 1960.
[9] Carley, Self-Determination, 15.
[10] Joseph R. Huddleston, “The Rules-Based Order and the High Stakes of Western Sahara,” Georgetown Journal of International Affairs, July 6, 2024, https://gjia.georgetown.edu/2024/07/06/the-rules-based-order-and-the-high-stakes-of-western-sahara/.
[10] Western Sahara, Advisory Opinion, 1975 I.C.J. 12, (October 16), 14.
[11] Western Sahara, Advisory Opinion, 31.
[12] Western Sahara, Advisory Opinion, 27.
[13] Western Sahara, Advisory Opinion, 27.
[14] Western Sahara, Advisory Opinion, 32.
[15] Daniel Fierstein, “Kosovo’s Declaration of Independence: An Incident Analysis of Legality, Policy and Future Implications,” Boston University International Law Journal 26, no. 417 (2008): 417–42, 437.
[16] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 403, (July 22), 437, 8.
[17] Christopher J. Borgen, Is Kosovo a Precedent? Secession, Self-Determination and Conflict Resolution, Wilson Center, July 7, 2011, https://www.wilsoncenter.org/publication/350-kosovo-precedent-secession-self-determination-and-conflict-resolution.
[18] Unilateral Declaration of Independence, Advisory Opinion, 38.
[19] Borgen, Is Kosovo a Precedent?
[20] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 2019 I.C.J. 95, 99 (February 25).
[21] Trung Nguyen, “The Power of the World Court Unleashed: The Chagos Archipelago Advisory Opinion and Decolonisation,” Center of International Law, October 21, 2024, https://cil.nus.edu.sg/blogs/the-power-of-the-world-court-unleashed-the-chagos-archipelago-advisory-opinion-and-decolonisation/.
[22] Chagos Archipelago, Advisory Opinion, 43.
[23] Avagyan, “From Principles to Practice,” 38.