Omar Salha
The right of all peoples to self-determination remains one of the most contested debates of our time. When discussing the right of self-determination, the concept raises a multitude of questions; amongst them what the ‘right’ gives right to, who is obliged to grant those rights and to whom, and how to prove when those rights are being violated. The right to self-determination touches upon an array of different topics that in themselves raise a Pandora’s Box of new issues, mainly state sovereignty, non-intervention and statehood, but also human rights, minority rights, democracy, representation, governance, nationalism, and crucially, the status of these notions in international law.
‘The extraordinary quality of self-determination lies in its position between the concepts of international law and state sovereignty.’ The question lies in to what extent law or sovereignty is granted ultimate primacy. (1)
How self-determination fits into international law is still contested, although the general consensus of courts and covenants is that self-determination does have legal standing as an international legal right. The right has evolved from a norm into customary law by consensus of the international community, and is considered to be opinion juris. The obligation on states to respect self-determination is erga omnes, a legal obligation that arises in favour of all members of the international community. (2)
To understand the nature of the right to self-determination one needs to examine the historical context the concept has evolved in. From the beginning, the principles of the right to self-determination undermined ‘the very core of the traditional principles on which international society had rested since its inception…and introduced a new standard for judging the legitimacy of power in the international setting: respect for the wishes and aspirations of peoples and nations’. (3)
Self- determination was nothing but a principle of modern political thought until it entered the language of the UN Charter in 1945. (4-5) Therefore, it can be said that only when the UN Charter was formulated in the wake of the Second World War that self-determination was openly and clearly mentioned in articles 1 and 55 of the UN Charter. (6)
Self-determination was seen as a democratic principle, which called for the consent of the governed in all states. It was invoked as the right of people to choose their political, economic, social and cultural futures. As a principle, it particularly endangered the concept of territorial integrity by bringing down empires and colonies through decolonisation and independence movements, and had leaders fearing for the decay of respect for borders, national allegiance and political stability. (7)
Two famous proponents of self-determination were President Wilson and Lenin, both of whom had very differing views of the concept of self-determination. When the concept of self-determination was first evoked during the First World War, it was taken to mean the right of a people to determine its sovereignty over the region where it is living. It was a principle that President Wilson endorsed before his country joined the war. (8) For Wilson, self-determination was the guiding principle of orderly peace after World War I. ‘No peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their just powers from the consent of the governed,’(9) he proclaimed. His problem, however, was a certain double standard. Although he proposed that self-determination was universal and possible for all he did not apply it to all in the actual peace process that dismantled the old empires of Europe.
The dangers of universal self-determination were all too evident, and therefore the powers were reluctant to crystallize the right to self-determination in any treaty form. Lenin however, embracing the revolutionary ambition of universal socialism was a great proponent of self-determination, and the Soviet Union in fact is largely responsible for the pressure that finally resulted in the inclusion of self-determination in the United Nations Charter. However, the language of the Charter is very careful and does not imply the right to independence, nor does it refer to individual people but to people of states. (10) Although the right to self-determination was not incorporated into the text of the Charter of the League of Nations, it was implicit in the discourse relating to the protection of minorities and that of the regulation of the mandatory system. (11) In spite of disagreements over the definition and the determination of its nature, it is possible to say that self-determination refers to ‘the right of every nation to establish an independent state and to freely choose its own political system’. (12)
As ‘self-determination’ entered the language of law in 1945, the right of self-determination was introduced in 1960 for the first time. The UN General Assembly Resolution 1514 (XV) on the Declaration on the Granting of Independence to Colonial Territories and Peoples of December 14 1960 proclaims that ‘all people have the right to self-determination….’ Hence, a customary international right of self-determination had emerged, in the height of colonization and the fear of States from protecting their territorial integrity. Through the practice of decolonisation that was brought about both political necessity and historical circumstance, self-determination became increasingly seen as a legal right. The core disputes over the future of territory and people were sought to be resolved through the legal procedures and thus self-determination entered the language of international law. (13)
This is often the only context in which the right has been universally agreed upon, and was for a long time the only recognised form of the right. Self-determination comprises the right of a nation to secede from the state to which it belongs, to merge or unite with another one or to establish its own independent state.(14) However, decolonisation was seen not as secession but as the rightful return to a state of sovereignty after alien occupation. The emphasis was on the right for people to choose between independence, the right to remain dependent or to join with another country.
Two UNGA resolutions (1514 XV and 1541 XV) were crucial in the transformation of self-determination from a legal obligation in the decolonisation process to a human right substance.(15) Self-determination as a human right was again reiterated in the 1966 Covenant on Civil and Political Rights (16) and the Covenant on Economic, Social and Cultural Rights, as well as in the Helsinki Final Act and the African Charter on Human and Peoples Rights. (17)
Through the UN Declaration of Friendly Relations (1970), a break through was made regarding self-determination, as it implied that self-determination was a right not solely under rule but also under alien domination or subjugation and exploitations as well, making it a continuous right rather than a historical moment of independence granted after decolonisation. (18)
This form of justification is otherwise known to be self-determination as substance. In order to qualify for the right of self-determination (substance), proof of human rights abuse or restriction from the access of government (i.e. no representation) must be presented. International recognition of this right carries great importance, especially to persecuted nations and those struggling against colonialism and foreign occupation, because its ratification in the UN Charter gives them the legal and international base for the achievement of self-determination. (19)
The language of the 1970 Declaration on Friendly Relations regarding the extent to which the principle of self-determination can be interpreted as justification for secession was transformative. For the first time, people living under alien subjugation or otherwise denied the opportunity to fairly participate in the political process, like today in Occupied Palestine, were included in the debate whether or not they belonged to the narrative of decolonisation. (20) This development reflects a shift in the international community at large towards a more comprehensive human rights discourse, beginning with the two Covenants. Moreover, the Declaration was responding to two existing situations: the illegal military occupation of Palestine and the racist regime in South Africa. (21)
Self-determination is obviously a dilemma, especially now that individualism and human rights contest the original statist view of international law. Wilson himself was aware of this dilemma, and it is clear that the sanctity and stability of the state system has to be preserved for the maintenance of international order. The issue is not only whether people qualify for self-determination, but also whether they have the political or military might to implement their wish. (22)
As the character of international law changes over time and in history, these changes accommodate for new norms and practices. As such, self-determination is not only compatible with criteria of statehood in international law, as we know it; it is necessary for the modern system of states to co-exist in peace.
NOTES
1- Koskenniemi, M. International Law CB (International Library of Essays in Law & Legal Theory) 1992, p.56
2- Cassese, A. Self-determination of peoples: a legal reappraisal, Cambridge university Press, Cambridge, 1995, p.8
3- Cassese, 2005, p.61
4- The Aland Islands Case, 1921, considered the first self-determination case, was not seen as a matter of legal obligation but of political principle. The fate of the island would have been a matter of domestic jurisdiction, had not the government of Finland been seen to be not in effective of its territory and population in the midst of civil war. The court took the view that it should determine the fate of the island. As there was no discrimination against the islanders, there was no reason to allow the island to join Sweden, despite their wish to do so.
5- The Charter of the United Nations mentions self-determination in Chapter 1, Purposes and Principles, Article 1 (2) ‘To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’, and in Chapter XI, Economic and Social Co-operation Article 55 ‘for peaceful and friendly relations among nations based on the principle of equal rights and self-determination of peoples’ However, Article 2 (7) is often seen as an ‘opt out clause’ that states that ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state’.
6- Qara'een, Y. The Right of the Arab Palestinian People to Self-Determination (Amman: Dar al-Jalil lil Nashr, 1981) pp. 18-19.
7- Cassese, 2005, p.61
8- A.Salam, J. The Egyptian-Israeli Peace Agreement: an Analytical Study according to Rulings of International Law, Cairo: Dar Nahdat Misr lil Tabawa Nashr, 1980. pp.219-220 – Arabic
9- Pomerance, M. ‘The United States and Self-determination: Perspectives on the Wilsonian Conception’, The American Journal of International Law, Vol. 70, No.1 (Jan 1976), p2
10- Higgins, R. Problems and Process, International Law and How We Use it, (Oxford University Press, 2004) p. 112
11- "The Right to Self-Determination of the Palestinian People," prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People (New York: United Nations, 1979, Document ST/SG/SER.F/3).
12- Muhsin, J, Peace Agreements in Public International Law, Ph.D. diss. (Cairo: Ein Shams University, 1978), p.688 - Arabic
13- Crawford, J. The legal practice in international law and European community law, Netherlands 1999, p.7
14- Amer, S. "Settlements in the Occupied Territories in Contemporary Public International Law" (Arabic), al-Majallah al-Masriyyah lil-Qanun al-Duwali, 35 (1979): 33
15- Higgins, R. Secession and International Law, T.M.C Asser Press, The Netherlands, 2004, p.114
16- Covenant on Civil and Political Rights and Covenant on Economic, Social and Cultural Rights (1966) Article 1: ‘all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’
17- Higgins, 2004, p.114-115
18- Ibid p.115. Example of oppression under minority rule was made of the South African Apartheid and the asserted right of black South Africans to self-determination. Ironically, the Apartheid regime claimed to be fulfilling the right to self-determination of the black population by segregating it from the white one. Initially the court ruled that it was a political matter for South Africa to resolve, however ten years later the ruling was reversed and Apartheid deemed illegal.
19- Khairo, E. Palestinian Resistance and the Right to Self-Determination (Baghdad: University of Baghdad, 1971), p.23 - Arabic)
20- UNGA 1514, Para 4 also iterates that, ‘The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights,’ but the implications at the time were limited to the decolonisation project. The UNGA 2625 is the first time this category was expanded to include other categories of disenfranchised people.
21- Higgins, p.114-116
22- Cassese, 1995, p.42
Bibliography
• Koskenniemi, M. International Law CB (International Library of Essays in Law & Legal Theory) 1992
• Cassese, A. Self-determination of peoples: a legal reappraisal, Cambridge university Press, Cambridge, 1995
• Qara'een, Y. The Right of the Arab Palestinian People to Self-Determination (Amman: Dar al-Jalil lil Nashr, 1981)
• Pomerance, M. ‘The United States and Self-determination: Perspectives on the Wilsonian Conception’, The American Journal of International Law, Vol. 70, No.1 (Jan 1976),
• Higgins, R. Problems and Process, International Law and How We Use it, (Oxford University Press, 2004)
• "The Right to Self-Determination of the Palestinian People," prepared for, and under the guidance of, the Committee on the Exercise of the Inalienable Rights of the Palestinian People (New York: United Nations, 1979, Document ST/SG/SER.F/3).
• Crawford, J. The legal practice in international law and European community law, Netherlands, 1999
• Higgins, R. Secession and International Law, T.M.C Asser Press, The Netherlands, 2004
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