Aspiring States

Abstract

International law is arguably no longer dominated by a state-centric approach. Non-state actors, such as international organizations, NGOs, or multi-national corporations, play a significant role in today’s changing legal environment. The state-centric approach to international law is perhaps most embodied by the law and practice of the International Court of Justice (ICJ), a tribunal where only states have standing. Yet, in a procedural shift out of character with the ICJ’s state-centric approach to international law, in two recent advisory opinions the Court has allowed non-state actors procedural access through oral and written submissions. With this paper I question why the Court has broken with previous procedure in order to include these actors in its process. I further explore whether these procedural moves are linked to the substantive outcomes of these opinions, focusing on the right to self-determination. I conclude that this rupture from orthodox practice is representative of the Court’s endeavours to maintain legitimacy in a world of rapidly changing international law, in which the balance between self-determination and territorial sovereignty continues to evolve.

I introduce the term ‘Aspiring States’ to describe non-state actors within these groundbreaking advisory opinions, including Kosovo and Palestine. Aspiring states refer to a sub-group of non-state actors who do not meet the legal criteria for statehood, yet which aspire to do so. These territorial entities may be under the governance of sovereign nations, yet they aspire to exercise their right to self-determination and to establish separate, independent states, free from the control of their parent nations. Aspiring states, though often characterized as non-state actors by scholars and jurists due to their lack of membership in the club of statehood, in actuality share more similarities with states than they do with non-state actors such as NGOs or multi-national corporations.

With this piece, I first offer a descriptive account of the instances in which the ICJ has created the procedural space to allow aspiring state actors a role at the Court through the advisory opinion mechanism. Second, I analyze the Court’s choice and subsequent impact on proceedings by exploring various explanations including the Court’s need for fairness, the need for accurate information, and potential statutory explanations. Third, I propose that the Court’s ruptures with procedure in the aspiring state cases are best understood through a legitimacy framework. Although legitimacy concerns pull the Court in multiple directions, I propose that legitimacy rooted in democratic theory explains the Court’s favourable procedural treatment of aspiring states. Finally, I explore the normative implications of these procedural choices on the Court’s substantive analysis of the balance of a people’s right to self-determination, shedding new light on the Court’s jurisprudence on a controversial and much-contested topic.

Keywords: International Court of Justice; non-state actors; statehood; self-determination; advisory opinions; legitimacy; human rights