Self-Determination, Statehood and International Law 3000 words

How do you define the relationship between the right to self determination on the one hand and the nature and scope of statehood on the other hand?

Introduction

The right to self determination and the nature and scope of statehood is a very complex and delicate issue in international law. Territory is an attribute of a state, but the right to choose his or her own destiny belongs to every human being.[1] The principle of territorial integrity is considered very important in order to maintain international security and stability.

International law is concerned primarily with the rights and duties of states and there is no doubt that states are the major legal subjects of international law, because international law was conceived originally as a system of rules governing the relations of states amongst themselves.[2] Once something is a ‘state’ it has legal personality under international law, unlike individuals, companies and other subjects of international law, consequently, states are the most important and most powerful of the subjects of international law .[3]  The International Court of Justice in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (WHO Case),  stated as follows, ‘’international organisations are subjects of international law which do not, unlike states, possess a general competence. International organisations…are invested by the states which create them with powers, the limits of which are a function of the common interests whose promotions those states entrust to them’’.[4]

The main capacities of an international legal subject are firstly, the ability to make claims before international tribunals in order to vindicate rights given by international law. Secondly to be subject to some or all of the obligations imposed by international law. Thirdly, to have powers to make and enter in to treaties binding in international law. Finally, to enjoy some or all of the immunities from the jurisdiction of the national courts of other states.[5]

The definition of a state is a very complex and difficult question and to produce a satisfactory definition of statehood is not easy. The starting point for a discussion of the criteria of statehood is Article 1 of the Montevideo Convention on the Rights and Duties of States 1933. The Convention stipulates that the state as a person of international law should possess the following; a permanent population; a defined territory; a government; and a capacity to enter in to relations with other states.[6]

One of the problems related to statehood is whether it matters how a state gains its separate existence. In order words, is the legal independence which is sufficient to justify statehood to be presumed from factual independence or are other criteria applicable?[7] If the territory declaring factual independence is able to claim the right of self determination, then it appears that this is sufficient to attain legal independence and subject to other criteria statehood.[8] A former colonial territory under international law has the right to achieve independence by virtue of the principle of the right to self determination, whether it is done voluntarily with the assent of the former colonial masters or done against its wishes.[9] However, many international lawyers argue that the right to self determination is available in circumstances far beyond the old colonial situation. Therefore if self determination is now regarded as a right of peoples, one could argue that any ethnic group qualifying as a people could claim self determination and if desired independence and statehood.[10] The effect of this is invariably the acceptance of a right of secession, whereby defined groups in an existing state could declare independence under the principle of self determination and claim statehood in international law.[11] In order words ‘peoples’ enjoyed the right of self determination as a step to statehood if linked to a pre-existing territorial unit, therefore lawful self determination is an appropriate way that a territory may achieve legal capacity and hence statehood in international law bearing in mind that what amounts to lawful self determination is a matter of controversy.[12]

This essay will look at the relationship between the right to self determination on the one hand and the nature and scope of statehood on the other hand. I will start by looking at the principle of self determination under international law.

 

The right to self determination under international law

Today the principle of self determination is a well established principle of customary international law. However, it was not until the passing of the United nations General Assembly Resolution on the Granting of Independence to Colonial Territories and Peoples in 1960 that it became possible to think of self determination as a legal right rather than a political philosophy.[13] Three factors must be constantly borne in mind, for one to understand the concept of self determination under international law. One should also be aware that the concept of self-determination has over the years acquired different types of meaning that must be clearly distinguished. The meaning that must be attributed to the concept of self-determination in any particular instance will be determined by the identity of the ‘people’ who have a claim to that right.[14] Finally, it appears that current State practise does allow the legitimate secession of a territory from an existing State, but that right to secession stands on its own facts and should not be construed as a component of the right of self-determination.[15]

There is a consensus that the principle of self-determination is recognised under international law, however the exact meaning of self – determination is very controversial and has no generally accepted definition. The principle has proven to be subject to conflicting opinion and generally hampered by problems of definition and implementation.[16]

The principle of self-determination over the years  have been put forward in political philosophy in different senses, since it was established around the second half of the eighteenth century and the principle is a concept that have been continuously evolving.[17]

According to Cassese, self determination has been understood in turn as follows:’’ a criterion to be used in the event of territorial changes of sovereign states; a democratic principle legitimizing the governments of modern states; an anti – colonialist postulate; a principle of freedom for ‘nations’ or ethnic or religious groups constituting minorities in sovereign states’’.[18]

There is no international instrument that fully defines the principle of self determination or identifies who is entitled to exercise the right.[19] The following international documents guarantee the right of self determination under international law: the United Nations Charter ;  the United Nations Covenants on Human Rights; the Declaration on the Granting of Independence to Colonial Countries and Peoples ;  the Declaration on Friendly Relations ;  the Helsinki Final Act ;  the Charter of Paris and Document of Copenhagen ; the African Charter on Human and Peoples Rights ;  the Vienna Declaration and Programme of Action and finally the Declaration on occasion of the Fiftieth  Anniversary of the United Nations.

The doctrines of State sovereignty and territorial integrity have always been of paramount importance in international law.[20]  The right to self –determination does not expressly authorise the secession of sections of a State from a parent State except in very special circumstances.[21]  In the land mark case of secession of Quebec from Canada, the Supreme Court of Canada limited to three groups, the categories of ‘peoples’ finding them-selves in the special circumstances that would warrant secession from a sovereign State. The Court listed the three groups as follows: (1) those under colonial domination or foreign occupation (2) persons subject to alien subjugation, domination or exploitation outside a colonial context and possibly (3) a ‘people’ blocked from the meaningful exercise of its rights to self –determination internally.[22]

The right to self determination is relevant to all ‘peoples’ and is referenced in several instruments of international law, including the United Nations Charter.[23] The doctrine was proclaimed in many Articles of the United Nations Charter, however it was explicitly proclaimed in Article 1(2) and 55 of the United Nations Charter.[24]

Chapters XI, XII and XIII of the United Nations Charter also address questions of non-self governing and trust territories. These Chapters impose obligations on member States to give effect to the principle of self-determination, thereby implicitly endorsing the principle.[25]

Article 1(2) of the United Nations Charter, however laid down the principle in a loose manner and this did not help in achieving a consistent and generally accepted definition for the principle.[26] The loose manner in which the principle was laid down by the United Nations Charter can be seen in the two main respects of Article 1(2) of the U.N Charter. Firstly, the Charter took self-determination to mean only self- government and secondly it was to constitute a goal of the United Nations and its Member States.[27] Article 1(2) of the Charter did not impose any specific or stringent legal obligation on States, neither did the Article make it mandatory that states must ensure that ‘peoples’ in its territory realise their inherent right of self determination, more over the drafters of the Charter did not bother to define self-determination or to identify who the ‘people’ that posses these rights were.

The right to self-determination became the centre point of the United Nations General Assembly’s 1960 Declaration on the granting of independence to Colonial Countries and Peoples.[28]  It also appears in two of the 1966 United Nations Covenants on Human Rights.[29] Majority of States in the United Nations General Assembly unanimously agree that, the expressed will of ‘peoples’ to be free from colonial domination is a valid and legitimate interpretation of self –determination, this appears to be one of the areas where there is a general consensus on ‘peoples’ that posses the right of self determination.  The International Court of Justice in the advisory opinion on Namibia[30]  affirmed the right to self-determination. The Court stated inter alia that, ‘’the subsequent development of international law with regards non-self governing territories ,as enshrined in the Charter of the United Nations ,made the principle applicable to all. [31] The Court also defined the principle of self-determination in its 1975 Advisory Opinion on Western Sahara as the ‘’need to pay regard to the freely expressed will of the people’’.[32]

The International Court of Justice (ICJ) in the East Timor case in 1995 affirmed that ‘’ the principle of self –determination has been recognised by the United Nations Charter and in the jurisprudence of the court … and is one of the essential principles of contemporary international law.[33] Despite the fact that the principle of self determination is included in the United Nations Charter and other international instruments, the principle’s meaning is still not certain. Controversy still persists in international law, whenever the concept of self determination is mentioned. International lawyers still take diverse and opposite views on the concept. One of the reasons for this controversy is due to the fact that no instrument of international adequately defines the concept and this has invariably led to uncertainties and inconsistencies in its application by various states, as well as the United Nations. The only area where the international community seems to have found a common ground with regards to the concept of self determination is in its application to colonial territories. Self determination is at odds with the equally important principle of territorial integrity and state sovereignty and with the need to preserve peace in a particular area.

Current State practise does support the legitimate secession of a territory from an existing State, but that right to secession stands on its own facts and should not be treated as a component of the right of self-determination.[34]

 

Nature and Scope of Statehood

International law is all about states and how they relate with one another. The principle of territorial integrity is a well-established principle of international law.[35] The proposition that a right of self –determination is applicable to secessionist movements arising within sovereign States is not yet, universally accepted. The principles of territorial integrity and sovereignty of States presents an obstacle to wider acceptance. The United Nations Article and other International documents have conferred an inherent right of self-determination to ‘peoples’. State practice and United Nations Resolutions make it clear that external self-determination is a right belonging to both colonial peoples and peoples under foreign occupation.[36] The United Nations General Assembly Resolution 1514(XX), while providing for the right of colonial peoples to self-determination also insisted on respect for the territorial integrity of States.[37]

Under international law, the sovereignty of state is guarded jealously and states strive to protect their territorial integrity and will surely do anything to ensure that their territorial integrity is maintained and protected. The concept of self determination is at variance with the concept of territorial integrity. The concept of territorial integrity is based on the principle of non-interference in the internal affairs of sovereign States and maintaining the status quo, for the maintenance of stability and peace in relations among States.[38]

Article 2 (4) of the United Nations Charter provides that, ‘’all members shall refrain from the threat of use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the purpose of the United Nations’’.[39]

Some international lawyers argue that claims of external self –determination leads to the issue of secession ,and this would led to territorial dismemberment of existing States. The principle of self-determination is usually invoked in connection to unilateral secession, which is secession undertaken without the consent of the existing State and without constitutional sanction.[40]

States are the key actors in the arena of international law and international law is completely owed by sovereign States. Sovereign States do not like it when their territorial integrity is at stake and to States that is exactly what the principle of self determination connotes. The concept of self determination challenges the traditional view of absolute State sovereignty.

States are the main players in the arena of international law and they do not always support a principle that has the potentials of allowing and encouraging groups within their own State to break away.

Under international law, the principle of self determination is inferior to the principle of territorial integrity. The supremacy of the principle of territorial integrity is up held in both United Nations instruments and State practice. The standard legal approach of Courts and other international bodies to self-determination has been to balance the right of self-determination with principles such as territorial integrity, State sovereignty and uti-possidetis.[41] This has been the approach used in the cases of the Katangese Peoples Congress v Zaire, and Tatarstan and Chechnya.[42]

The principle of territorial integrity was first considered judicially in the Aaland case, where the Court held that,’’ existing States have a right to preserve their boundaries and constituent territories’’.[43]

International law holds the territorial integrity of states highly and leaves the creation of a new State to the internal mechanisms of the existing State. International law does not specifically grant the right to secede unilaterally from the parent State and it also does not explicitly deny component parts of a sovereign State the legal right to secede unilaterally from the parent State.[44]  However,

international law recognizes that secession is one of the ways by which self-determination can be achieved.[45]

The Supreme Court of Canada in Re: Secession of Quebec defined secession as , ‘’the effort of a section of a State to withdraw itself from the political and constitutional authority of that State ,with a view to achieving State hood for a new territorial unit on the international plane.[46]

The principle of self-determination developed within a framework of respect for the territorial integrity of existing States.[47] Most of the International instruments that recognise the existence of a people’s right to self –determination contain the caveat, that the exercise of the right to self-determination should not constitute a threat to the territorial integrity of an existing State, as long as the State in question is conducting its self in a manner that does not go contrary to the well established principles of self-determination.[48] The Declaration on Friendly Relations, The Vienna Declaration and The Anniversary Declarations all have provisions affirming people’s right to determine their political, economic and cultural issues, at the time it also contains provisions respecting the territorial integrity of sovereign States ,in the following words; ‘’ Nothing in the foregoing paragraphs shall be construed as authorising any action which would dismember or impair ,totally or in part ,the territorial integrity or political unit of sovereign and independent States ,conducting themselves in compliance with the principle of equal rights and self-determination of peoples described above and thus possesses of a good government representing the whole people, belonging to the territory without distinction as to race ,creed or colour’’.[49]  The principle of territorial integrity is based upon the State representing the whole people without any sort of discrimination what so ever. The State must respect the fundamental human rights of its citizens and no section of the population shall be discriminated against.[50]

Paragraph 6 of Resolution 1514, stipulates that,’’ any attempt at the partial or total disruption of national unity and territorial integrity of a country is incompatible with the purpose and principles of the Charter of the United Nations ‘’[51] The preparatory documents of Resolution 1514, show that paragraph 6 was drawn up to stop the administering powers from disintegrating colonial territories before granting independence.[52] This was to ensure that colonial territories are not carved up in such a way that those areas with huge economic potentials are severed from other parts of the territory that are less viable. Paragraph 6 of Resolution 1514 was not intended to limit the people’s exercise of their right to self-determination.[53]

The Helsinki Final Accord, though not a part of an international convention and therefore have not yet attained the status of customary International law, have provisions that suggest a broadening of the right of self –determination to include secession.[54]

There is no rule of international law, which forbids secession from an existing State, nor is there any rule, which forbids the mother State from resisting secessionary movement.[55]

 

Conclusion

No doubt the principle of self determination exists in international law. The principle is one of the essential principles of contemporary international law, however the principle of State sovereignty and territorial integrity are huge obstacles to the acceptance of the wider acceptance of the principle of self determination. The reason is not far fetched. States are the key actors in the arena of international law and they will resist anything that will undermine their Statehood or their territorial integrity and the principle of self determination does exactly that, because an exercise of the right of self determination will result in that territory becoming independent. It is generally agreed that people under foreign rule generally have a right of self determination; however some international lawyers argue that apart from people under colonial rule, the principle of self determination is not available under international law to any and every distinct group that could qualify as a people as this would be contrary to the principles of territorial integrity and sovereignty of state, on the other hand some other international lawyers argue that any distinct ethnic  group whether part of a colonial or unitary state have the right to self determination and it could be enforced and protected by international law.

As the EC Arbitration Commission on Yugoslavia has indicated, the right to self determination now certainly exists beyond the colonial situation and in their view; the right to self determination is available to the people of a territory once they can achieve the factual prerequisites for statehood identified in the Montevideo Convention.[56] This view undermines the nature and scope of statehood and could encourage secessionist movements in federal States.

Finally, I agree with Dixon’s view that a balance needs to be struck between protecting the human rights of peoples and individuals and preserving the fabric of international society.[57]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Bibliography

 

Blay, S.K.N (1986) Self-determination versus Territorial Integrity in Decolonization, 18 New York University Journal of International Law and Politics

Cassese, A (1995) Self Determination of Peoples: A legal appraisal, Cambridge University Press, Cambridge

Dixon, M (2005) Text Book on International law, Fifth Edition, Oxford University Press, Oxford

Gudeleviciute, V (2005) Does the Principle of Self-determination prevail over the principle of territorial Integrity? , International Journal of Baltic Law, Vol.2 No.2

Harris, D.J (2004) Cases and Materials on International law, sixth Edition, Sweet and Maxwell, London

Knop k, (2002) Diversity and Self-Determination in International Law, Cambridge University Press, Cambridge

Malanczuk, P (1977) Akehurst’s Modern Introduction to International Law, Seventh Edition Routledge, London

Musgrave, T (1997) Self determination and National Minorities, Oxford University Press, Oxford

Musgrave, T (1997) Self determination and National Minorities, Oxford University Press, Oxford

Okoronkwo, P.L (2003) Self-Determination and the Legality of Secession under International Law Does the people of Biafra have a right to self determination, International Comparative Law Review. 2002-2003

Shaw, M (2008) International Law, Sixth Edition, Cambridge University Press, Cambridge

Summers J, (2004) The Idea of the People: The right of Self-determination, Nationalism, and Legitimacy of International Law, A Doctoral Dissertation submitted with the permission of the Faculty of Law of the University of Helsinki

Wallace, R.M.M (2005) International law, Fifth Edition, Sweet and Maxwell, London

 

 

 

 

 

 

 

 

 

 

[1] Gudeleviciute (2005) p.48

[2] Dixon (2005) p.103

[3] Dixon (2005( p.104

[4] (1996) ICJ Rep 66

[5] Dixon (2005) p.104

[6] See Article 1 of the Montevideo Convention 1933

[7] Dixon (2005) p.108

[8] Dixon (2005) p.108

[9] Dixon (2005) p.109

[10] Dixon (2005) p.109

[11]Dixon (2005) p.109

[12] Dixon (2005) p.109

[13] Dixon (2005) p.153

[14] Van Der Vyer (2007) p.34

[15] Van Der Vyer (2007) p.34

[16] Marchildon and Maxwell (1992) p.9

[17] Cassese (1995) p.32

[18] Cassese (1995) p.32

[19] Cassese (1995) p.63

[20] Cassese (1995) p.33

[21] See Re: Secession of Quebec (1998) 2.S.C.R. 280-281

[22] See Re: Secession of Quebec (1998) 2.S.C.R. 285

[23]  Okoronkwo (2003) p.76

[24] Cassese (1975) p.65

[25] United Nations Charter, Articles 73-91.

[26] United Nations Charter Article 1(2)

[27] Cassese (1975) p.65

[28] GA Res. 1514, UN GAOR ,15th Session

[29] International Covenant on Economic, Social, and Cultural Rights, Dec.16 1966, Art.1

[30] Advisory Opinion on legal consequences for States of  the continued presence of South Africa in Namibia (South – West Africa),1971 I.C.J p.16

[31] Advisory Opinion on legal consequences for States of  the continued presence of South Africa in Namibia (South – West Africa),1971 I.C.J p.16

[32] See case concerning Western Sahara ,1975, International Court of Justice reports,12, 33 (Oct.16 1995)

[33] See case concerning East Timor ,International Court of Justice reports 102.(1995)

[34] Van Der Vyer (2007) p.34

[35] Musgrave ( 1997) p.181

[36] Cassese (1995) p.90

[37] Cassese (1995) p.186

[38] Gudeleviciute (2005) p. 50

[39] See Article 4 (2) Charter of the United Nations. (26/6/45) San Francisco

[40] Gudeleviciute (2005) p.54

[41] Summers (2004) p.54

[42] Summers  (2004) p.54

[43] Report of the Commission of Rapporteurs in the Aaland Island, League of Nations Doc.B .7 21/68/106 (1921)

[44] Secession of Quebec (1998) 2.S.C.R.282 Para 112

[45] Declaration on the principles of International law concerning friendly relations and co-operation among States in Accordance with the Charter of the U.N, G.A Res. 2625(XXV), Oct.24 1970 ; UN General Assembly ,25th Session, Doc Para 4

[46] See Re: Secession of Quebec (1998) 2.S.C.R. 263

[47] See Re: Secession of Quebec (1998) 2.S.C.R. 438

[48] Declaration on the principles of International law concerning friendly relations and co-operation among States in Accordance with the Charter of the U.N, G.A Res. 2625(XXV), Oct.24 1970 ; UN General Assembly ,25th Session, Doc

[49]Declaration on the principles of International law concerning friendly relations and co-operation among States in Accordance with the Charter of the U.N, G.A Res. 2625(XXV), Oct.24 1970 ; UN General Assembly ,25th Session, Doc p.340-43

[50] Secession of Quebec (1998) 2.S.C.R.282 .p440-41

[51] Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A .Res.1514 UN GAOR, 15TH Session Supp No.16 ,UN Doc. A/4684 (1960); UN Doc A/4568 (1961) P.66

[52] Blay  (1986) p.442

[53] Blay  (1986) p.442

[54] See Helsinki Final Act ,V11I

[55] Malanczuk, (1977).p.78

[56] Dixon (2005) p.154

[57] Dixon (2005) p.155