Is Self-determination a Right Under International Law?
by Rodolfo A. Arizala*
Santiago, Chile 11 April 2016
The Philippines has been a constant and ardent supporter in the United Nations regarding the right of all peoples and nations to “self-determination”.
What is the concept of self-determination? Is there a precise and generally accepted definition or concept of self-determination? Is it a right under international law?
To answer these questions, let us trace briefly the concept of self-determination.
I. Brief Discussion of the Concept
Early Concept of the Principle.
The first instance in modern history whereby this principle of self-determination was recognized was in 1701, when France as a result of the French revolution, annexed the enclave of Avignon. Said “annexation was made consequent upon the will of the people.” (Oscar Svallen, Introduction to the Law of Nation,(New York, McGraw Hill Book Co., Inc., 1955, p. 30). However, the first treaty to recognize this principle of self-determination was the Paris Agreement of 1856, after the Crimean War. Wallachia and Moldavia were reorganized in accordance with the wishes of the population involved pursuant to the provisions of the Treaty of Peace. (ibid., p. 33).
Writers in political and international law have varying definitions as to what constitute “right to self-determination”. To date, despite various opinions of international law jurists, there is no precise and generally accepted legal definition of self-determination. This may be attributed to the fact that while the “principle of national self-determination is a formative principle of great potency, (it is) not part and parcel of international law.” /_George Scwarzemberger, A Manual of International Law, vol, I, 4th ed., (London, The London Institute of World Affairs, 1956), p. 67_/.
According to the US Department of State’s Policy Planning Staff, confusion over the issue is not so much whether there exists a right to self-determination, which is embodied in many international human rights documents, but from the failure of those documents to define exactly who is entitled to claim such right - a group, a people, or a nation - and what exactly the right confers. (Self-determination - Sovereignty, Territorial Integrity and the Right to Secession.).
As aptly put by Prof. L.C. Green of the United Kingdom, “self-determination is a political right”. But not a right under international law. Customary law certainly does not recognize such a right. . .” (Marjorie M.Whiteman, Digest of International Law, vol. 5, (Washington, D.C.,Department of State Publication, 1965), p. 38, quoting Prof L.C. Green of the United Kingdom).
Concept in the United Nations.
Article 1, paragraph 2, of the Charter of the United Nations provides that:
“The Purposes of the United Nations are:
x x x x x x x x
To develop friendly relations based on respect for the principle of equal rights and self-determination of peoples, and take appropriate measures to strengthen universal peace.”
To implement these declared purposes of the United Nations, the Commission on Human Rights began its work in January 1947 under the Chairmanship of Mrs. Eleanore Roosevelt. The Commission devoted itself first to the preparation of a declaration of human right and next to the drafting of a covenant on civil and political rights and of a covenant on economic, social and cultural rights.
The preliminary drafts on civil and political rights and draft covenant on economic, social and cultural rights which both contained an article on the right of peoples to self-determination were completed by the Commission on Human Rights in 1954. The article in effect provides that all peoples have the right to self-determination and that, by virtue of this right, they may freely determine their political status and freely pursue their economic, social and cultural development.
In 1960, the General Assembly adopted resolution 1514 entitled: “Declaration on the Granting of Independence to Colonial Countries and Peoples.” which proclaimed the necessity of bringing to a speedy and unconditional end to colonialism in all its forms and manifestations. Operative paragraph 2 of said resolution provides: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
Debates in the Commission as well as in the General Assembly projected into focus diversity of opinions on the principle of self-determination. It was felt that there was an urgent need for a legal definition of the principle but the members, especially the Big Powers, assigned different meanings to it. The United States, speaking through its representative, Mrs. Eleanore Roosevelt, expressed the opinion that “self-determination was a a process which involved responsibilities as well as rights. It was the process by which the people developed their own laws and provided their own justice. . . To conceive of self-determination as synonymous with self-government was to mistake the form for the substance and might jeopardize the very rights which were to be promoted.” /_ United Nations Official Records, (7th Session, Gen. Assembly,Committee III, New York, 1952, pp. 174-176)_/.
Some of the delegates defining self-determination went beyond self-government or independence, and sought to apply the concept to states already independent and sovereign. Pakistan, for example, believed that the right of self-determination should be proclaimed in such a way that weak peoples should not be dominated by strong peoples. While the representative of the Soviet Union stated that self-determination meant, among others, the evacuation of foreign troop from sovereign states. Thus, discussion and action in the United Nations on the question of self-determination have been related to Trusteeship, to Non-Self-Governing Territories, and to Human Rights; but the discussion has not reached down to fundamental principles and practical methods. (Whiteman, Digest of international Law, pp. 73-75, citing Eagleton, “Self-Determination in the United Nations”, 47 Am. J.Int’l L., 1953, pp. 83-93).
It may be recalled that as early as 1920, according to the findings of the Commission of Lawyers appointed by the League of Nations in the Aaland Island case, the principle of self-determination could not be possibly recognized as a generally applicable principle of international law because it would only result either the disintegration of established states or the subjugation of new minorities to new majorities.
While it is agreed that members of national minorities are entitled to the same political rights as the majority of citizens, nevertheless, the former have no right to carve out a state for themselves or secede because it would be contrary to the spirit of the United Nations Charter.
It appears the right of self-determination cannot be applied to territories which are integral parts of a national entity and thus destroy or impair the political unity of a nation. It was not, therefore, surprising that the resolution which was finally adopted by the United Nations, /_Resolution 1514 (XV) of 14 December 1960_/, made mention only of “Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence.”
Recently,”self-determination” has been invoked by autonomous and secessionist movements such as in Kosovo territory (former Yugoslavia) aside from movements in Kurdistan, Turkish-Cypriots, Jammu and Kashmir and in other parts of the world. There are even jurists who argue that “right to self-determination is indisputably a norm of jus cogens.” This means jus cogens are the highest rule of international law and they must be strictly obeyed at all times.” It is further argued that the principle of self-determination has also ‘the legal status of erga omnes”. The term “erga omnes” means “flowing to all.” Thus, the rest of the international community is “under mandatory duty to respect it.” (“Understanding Self-Determination: The Basics”, by Karen Parker, Geneva, August 2000).
However, as Ms. Karen Parker herself admits, due to the “politics of avoidance’, the principle of self-determination “has been reduced to a weapon of political rhetoric.’ Consequently, the international community has abandoned people who have the claim to such principle.
Applying the foregoing principle of the United Nations and opinions of jurists to the problem, in resume, we could make the following conclusions;
As of this date, although there are varying definitions offered by jurists, there is no precise and generally accepted definition or concept yet of self-determination among the family of nations.
Self-determination is not a right under international law. It cannot be applied to territories which are already parts of a state or impair the political unity and sovereignty of a nation. While in international law there are principles of “jus cogens” and “erga omnes”, which may be made applicable to “self-determination’, due to “politics of avoidance”, the principle of self-determination “has been reduced to a weapon of political rhetoric”. (Karen Parker & Lyn Neylon, op.cit at 440-41).
However, it may be considered a “political right” of peoples in non-self-governing territories or those which have not yet attained independence.
The United Nations, while declaring in principle that “all peoples have the right to self-determination”,has adopted Resolution 1514 (XV) dated 14 December 1960, which refers only to the granting of independence to colonial countries and peoples. Specifically, the principle has been actually applied by the United Nations to dependent, colonial, non-self-governing, or trust territories.
In pursuance of that principle (self-determination), the United Nations has adopted the Covenant on Cilvil and Political Rights on 23 March 1976, and the Covenant on Economic, Social and Cultural Rights of 3 January 1976.
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