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.
The present article explores the premise that the participation of non-State actors may in some instances be necessary to the conduct of contentious or advisory proceedings before inter-State courts and tribunals. It first considers whether such necessity may be directly asserted as a legal requirement, in the absence of lex specialis treaty mechanisms or party consent. The article thus considers the potential to apply general principles of law, customary international law, and doctrinal concepts to this question. Unsatisfied with reliance on the stated legal considerations of international courts and tribunals, however, it turns to assess the root causes of such necessity, beneath pronouncements of legal sources and doctrine. The authors identify these as practicality – which speaks to what a court or tribunal must do to fulfil its mandate today – and legitimacy, which speaks to what it should do to ensure that its mandate is respected tomorrow.
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