Let the People Decide: Independence Referenda and the Creation of New States

Jure Vidmar, University of Oxford

Abstract

In the Western Sahara Advisory Opinion, the International Court of Justice established that popular consultation is required before the territorial status of a territory may be altered. This article is concerned with expressions of the will of the people in the practice of post-1990 state creations. The practice shows that the Western Sahara standard is applicable even in non-colonial situations, although outside of colonialism an expression of the will of a people in favor of independence does not necessarily create a state. The article further considers the procedural rules regulating independence referenda. The generally-applicable requirement is that the referendum question and the winning majority both need to be clear and free of ambiguity. Yet the qualification of this requirement largely remains situation-specific. Moreover, the creation of a new state is not only a matter of majoritarian decision making, as wishes of numerically inferior or otherwise non-dominant peoples and minorities also need to be considered.