Self-Determination and Judicial Silence

The International Court of Justice (ICJ) has long recognised self-determination, including in its Western Sahara opinion of 1975 (para. 162) and Chagos opinion of 2019 (paras. 144–160). Recent decisions build on this jurisprudence while applying the right to further questions, including climate-related displacement. I argue that the ICJ and the Court of Justice of the European Union (CJEU) leave important connections between recognition and application under-explained. What duties arise for other States? When may a court presume collective consent? How should States protect a people’s political agency when its territory becomes uninhabitable?

The ICJ’s Palestine and climate advisory opinions, delivered in July 2024 and July 2025, and the CJEU’s Western Sahara judgments of October 2024 illustrate different uses of the right. While Palestine clarifies its status under foreign occupation, Western Sahara develops a consent test within an established decolonisation framework, and the climate opinion applies it to threats to an existing political community. I selected these decisions to explore unresolved questions about legal foundations, collective choice, and protective obligations. Because they follow different procedures, they don’t support a claim of doctrinal uniformity. Instead, the comparison focuses on how adequate the reasoning is, rather than suggesting a shared judicial strategy or presenting the recognition of self-determination as something new.

Palestine and the Basis of Duties for Other States

In its 2024 Palestine opinion, the ICJ recognised self-determination as a peremptory norm in cases of foreign occupation, as in the case before it (para. 233). Peremptory norms, or jus cogens, permit no derogation. The occupation qualification establishes the position in that context but does not resolve the right’s peremptory status in other settings.

It specified substantial consequences: Israel must end its unlawful presence as soon as possible and make reparation and other States must neither recognise the resulting situation as lawful nor assist in maintaining it (paras. 267–279). Its treatment of treaty, trade and investment dealings (para. 278) makes the legal basis for these duties particularly important.

The Court introduces obligations erga omnes, owed to the international community as a whole and in whose protection all States have a legal interest (para. 274). This status differs from jus cogens, which concerns a norm’s overriding authority. Under Articles 40 and 41 of the International Law Commission’s (ILC) Articles on State Responsibility, cooperation, non-recognition and non-assistance follow from a serious breach of an obligation arising under a peremptory norm. The seriousness threshold is therefore integral to that legal route, not an optional qualification.

The advisory opinion invokes the Friendly Relations Declaration’s duty to promote self-determination and assist the United Nations (para. 275). It also addresses the prohibition on acquiring territory by force and distinguishes Israel’s territory from the occupied territory (paras. 276–278). The issue is how these foundations relate to the consequences of a serious breach of a peremptory norm, not whether there is legal authority for the duties announced.

Judge Tladi’s declaration supports this criticism (paras. 28–32). He questions whether third-State duties arise from erga omnes status rather than peremptory character. This distinction matters beyond Palestine: a later claimant must establish the conditions for the duty it invokes, rather than assume that every breach of an erga omnes obligation triggers Article 41 consequences.

Identification presents a related difficulty. As Hua Deng notes, the ILC’s 2022 conclusions distinguish a rule’s existence in general international law from its acceptance and recognition as non-derogable (Conclusions 4 and 6). The annex lists self-determination without the Court’s qualification concerning occupation. The relationship between these formulations warrants explanation. Likewise, Article 53 of the Vienna Convention on the Law of Treaties requires an actual conflict with a peremptory norm at the time of conclusion. A duty to refrain from certain treaty dealings does not automatically render every relevant agreement void.

Palestine concerns the conditions triggering third-State duties. Western Sahara shifts the inquiry to whether the CJEU’s consent test preserves the collective choice that gives self-determination its meaning.

Western Sahara and the Limits of Presumed Consent

The CJEU’s judgments of 4 October 2024 upheld the annulment of decisions of the Council of the European Union concluding EU–Morocco fisheries arrangements and a trade agreement applicable to Western Sahara. They applied the principle of self-determination alongside the principle that treaties cannot bind third parties without their consent. The immediate legal consequence concerned the validity of EU acts. The CJEU had already applied these principles in Council v Front Polisario in 2016 (paras. 88–92, 106). This emphasis on collective consent recalls the ICJ’s approach in Chagos, although the nature of the disputed act and the legal test applied were different. The 2024 decisions therefore develop an existing line of authority.

The fisheries judgment distinguishes the people of Western Sahara from the population currently living there. Consultation with current residents did not establish the people’s consent (paras. 157–173). However, the Court also allows consent to be presumed where an agreement imposes no obligation on the people and provides a specific, tangible, substantial, and verifiable benefit proportionate to the exploitation of their resources, subject to sustainability safeguards and regular verification (para. 181). The fisheries agreement failed to meet the benefit requirement (para. 186), so the presumption did not save it.

The difficulty concerns agreements that satisfy the test. The CJEU states that a representative movement’s objection alone is not enough to defeat presumed consent (para. 183). Legitimate representatives may rebut the presumption by demonstrating defects in the benefits or verification mechanism, with judicial review where appropriate (para. 184). The trade judgment follows similar reasoning (paras. 153–156).

As Sebastian von Massow argues, benefits and consent remain in tension. The strongest defence of the test is that it allows arrangements that impose no obligations while delivering measurable benefits to the people concerned. Its safeguards also ensure that consultation with residents does not replace protection of the people as a whole. Nevertheless, material advantage does not establish that a people collectively chose to accept resource exploitation. A people may oppose an arrangement because of who negotiates it or the political relationship it maintains, even when its financial terms are favourable.

The CJEU’s approach exposes a tension that Chagos does not resolve. By requiring representatives to challenge the adequacy of benefits, it converts an objection about collective political choice into a dispute over economic sufficiency. The Court supplies an operational rule for reviewing EU acts, but it does not fully explain why material benefit may stand in for consent when the people’s representative objects to the arrangement itself.

In its Chagos opinion, the ICJ linked self-determination to the territorial integrity of a non-self-governing territory and closely scrutinised the colonial representatives’ purported consent to detachment (paras. 160, 172). It also recognised that self-determination does not require a single method of implementation (para. 158). This reasoning supports the need to protect a people’s collective choice, but it does not establish that tangible benefits can substitute for that choice.

Both cases concern consent in decolonisation, but they address different acts: Chagos concerned territorial detachment, whereas Western Sahara concerned agreements for resource exploitation without resolving final territorial status. That difference may justify different procedures, but it does not itself explain why the CJEU’s benefits test can overcome a representative movement’s objection. The unresolved issue is therefore the justification for presumed consent, not the creation of a new right.

Climate Change and the Protection of Political Community

The ICJ’s 2025 climate opinion applies self-determination to a further context by linking the right to sea-level rise, displacement, territorial integrity and permanent sovereignty over natural resources (para. 357), alongside protections concerning maritime entitlements and statehood. The Court rejects an obligation under the United Nations Convention on the Law of the Sea to update duly established maritime charts or coordinates because of climate-related sea-level rise (para. 362). It also states that losing a constituent element would not necessarily extinguish an established State’s statehood (para. 363), and requires States to cooperate towards equitable solutions (paras. 364–365).

The remaining question is what self-determination adds to these protections. Continuity of statehood, on its own, does not explain how a displaced people retains effective influence over its political future. Arrangements may preserve a State’s legal personality while leaving unresolved how its dispersed people participate in decisions affecting collective institutions and resources.

A defensible approach is to interpret cooperation considering the requirement of free collective choice. Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights protects peoples’ freedom to determine their political status and requires States parties to promote and respect self-determination. Read alongside the opinion’s cooperation requirement, this supports the argument that States negotiating arrangements for a displaced people’s political continuity should secure that people’s effective participation through representative processes. The practical safeguard would concern decisions about continuing collective governance, rather than merely consulting on individual relocation needs.

This is a proposed interpretation, not a specific procedural duty established by the opinion. Further justification would be needed to determine which States bear the duty, how representation is secured, and what participation entails. Still, it identifies what self-determination could contribute: a constraint on arrangements that preserve formal statehood while excluding people from decisions about their collective future.

Judge Tladi’s 2025 declaration returns to the question of legal foundations (paras. 34–37). He questions why the Court linked non-recognition, non-assistance and cooperation to erga omnes obligations in 2024 but did not identify equivalent consequences for climate obligations characterised in those terms in 2025. His comparison reinforces the need to distinguish the legal foundations of the consequences announced. It does not establish that climate-related interference with self-determination necessarily breaches a peremptory norm.

The Court explains that the precise consequences depend on the breach and the harm (para. 445), which substantially answers demands for a comprehensive remedial scheme. The unresolved issue arises earlier, namely whether and how self-determination should guide cooperation before territorial loss renders ordinary governance impossible. Preventive protection and remedies for an established wrongful act raise different questions. By leaving the legal basis and content of participatory protection underdeveloped, the opinion places on future claimants the burden of showing what effective collective choice requires before displacement becomes irreversible.

What Courts Leave to Future Claimants

Judicial restraint is not a defect in itself. As Fulvio Maria Palombino’s discussion of judicial economy shows, international courts commonly confine decisions to the issues they must resolve. Advisory proceedings need not settle every future dispute, just as reviewing an EU act does not require a complete system of territorial governance. The criticism concerns gaps affecting the application of the right; the decisions do not show that judges deliberately withheld reasoning.

The examples reveal different burdens left to future claimants. In Palestine, the ICJ does not sufficiently distinguish the doctrinal routes to third-State duties. In Western Sahara, the CJEU develops an established consent requirement but does not adequately justify how it accommodates representative opposition. In the climate opinion, the ICJ recognises the right’s relevance in a new context without specifying the distinct safeguards for participation. Established applications and new contexts therefore raise different questions about the implications of recognition.

Greater clarity would help future claimants, even if it could not remove jurisdictional barriers or guarantee compliance. The ICJ and CJEU should identify the legal basis and conditions of the duties they announce, explain how operational tests preserve collective choice, and distinguish settled protections from unresolved questions. Such reasoning would strengthen the link between recognising self-determination and enabling a people to exercise it.