The peremptory nature of the right to self-determination of peoples according to the International Court of Justice

Resumo

This article analyzes how the International Court of Justice (ICJ) addressed the right of peoples to self-determination in its 2024 Advisory Opinion on the Occupied Palestinian Territory, which Court recognized, for the first time, the peremptory nature of this right in contexts of foreign occupation. The study examines the Court’s jurisprudential evolution, highlighting the shift from previous decisions, which had recognized self-determination only as an obligation erga omnes, not as jus cogens, to the innovative stance of the 2024 Opinion. It also considers the contribution of the International Law Commission’s work on peremptory norms and its influence on the Court’s reasoning. Special attention is given to the ICJ’s restrictive formulation regarding the peremptory nature of the law, limited to foreign occupation, as well as to the identification of the constituent elements of self-determination, which raises questions about whether these elements might also be considered jus cogens. The article argues that, although the Opinion represents a significant advance in recognizing the peremptory nature of self-determination, it simultaneously introduces new uncertainties regarding its scope, conditions of application, and practical consequences, which remain unresolved by the Court.