In its recent advisory opinion, the International Court of Justice decided that Israel’s occupation of Palestinian territory violates the Palestinian right to self-determination. It was a key basis for the court finding the continued occupation illegal (see paragraphs 230-243).
The right of self-determination emerged as a response to colonialism, to put an end to local populations being ruled over by foreigners. It has subsequently been enshrined in international law and expanded to mean that at least in certain circumstances distinct ethnic or religious groups should be entitled to their own state. Robust assertion of this right is one reason that the number of countries in the world keeps increasing, from a number in the 50s when the United Nations was founded to nearly 200 today.
Responsibilities
Aside from the matter of whether dividing the world up into ever more squabbling political entities is a good idea, there is another important question about the right of self-determination that international law needs to address. Most rights come with responsibilities. Is the right of self-determination contingent on fulfilling any responsibilities at all?
Clearly, some portion of Palestinians and their leadership are devoted to the destruction of Israel. They may exploit control of any territory Israel relinquishes to further attacks pursuant to that aim. Does this threat to exploit self-determination for purposes that are illegal affect the ability to exercise the right?
In its advisory opinion the International Court of Justice assumed that it doesn’t. Judge Tladi of South Africa made that explicit in his accompanying declaration, stating:
security concerns cannot even serve as a balance against rules of international law and certainly not against peremptory norms. Thus, the notion that the Palestinian right of self-determination must be balanced with, or is even subject to, Israeli security concerns is incongruous as a matter of international law (paragraph 44).
But can this really be so? Is self-determination such a fundamental right that even security can’t touch it? That no prospect of it being abused to harm to others can stand in its way?
Limits
International law already does put significant limits on self-determination. Most prominent, self-determination cannot be exercised in a way that interferes with the territorial integrity of an existing country (see for example UN resolution 1514 of 1960). This is a major restriction, as most self-determination movements aim to secede and take territory from an existing state.
So what about using self-determination not to violate the territorial integrity of a state in the process of the exercise of the right, but rather to enable military action designed to take territory from or even destroy an existing state thereafter?
One could argue that we shouldn’t relate to this, as assessing future action involves speculation. Maybe suspicion that a people claiming self-determination will embark on a war of aggression shouldn’t be enough to annul an important right. Perhaps whatever subset of the Palestinian population that genuinely desires a peaceful two state solution will win out. Maybe those that claim today they will settle for nothing less than Israel’s total destruction will cool off once they are able to exercise self-determination and those threats will turn out to be only angry bluster.
But should there be a point where speculation is sufficiently based on evidence that it reaches a level of certainty with legal consequences? Perhaps just speeches about wanting to destroy Israel could be shrugged off. But what about Hamas using Gaza after Israel’s withdrawal to construct missiles, fire at Israeli territory, and carry out the attack of last October 7th? Israeli fear that Palestinian exercise of the right to self-determination will directly result in severe harm is certainly well-founded and real.
The Question
So here is a question we need to ask. What happens when a people is denied exercise of a widely accepted right, but there are strong grounds to believe that if the right would be fulfilled at least a subset of that people would attempt to use it to perpetrate abuses that deny the rights of others? Is this a non-factor, as Judge Tladi believes? Does this concern attach conditions to how the right is exercised, such as by legitimizing a demand for security guarantees as it is implemented? Is there a threshold of certainty that must be met for this to be a factor?
Even though self-determination has become enshrined as a right in international law, this question has not yet received sufficient attention from international legal scholars. Everyone who is concerned both about Israel’s security and Palestinian rights will have to make up their mind about it for themselves.