Delineating the Limits of Self-Determination in International Law

[Note: the term “peoples” is used to refer to groups within a region or nation].

Strictly speaking, self-determination refers to the right of a people to determine its own political destiny. However, transmuting this theory into practice has often proved to be an arduous task as political considerations have invariably determined which minorities/peoples are given precedence. Escalation of violence in Palestine and Kashmir is an ominous reminder of the repercussions of sacrificing this fundamental right at the behest of preserving strategic alliances and realpolitik considerations. Despite the intricacies surrounding its implementation and enforcement, the principle has evolved considerably over the years to become a legitimate demand of oppressed minorities by extending its ambit beyond the process of decolonization. From the instrumental role it played in its nascent years to its increasing relevance in contemporary international law, the question as to the precise ambit of the principle of self-determination continues to be a bone of contention, not least because it seems directly contrary to the principle of sovereignty and the territorial integrity of states.

The principle of self-determination was a necessary corollary of the disintegration of the colonial empires. One of the purposes of the United Nations is to engender respect for the principle of self-determination of peoples (Article 1(2) of the UN Charter). Consequently, in the aftermath of World War II, several former colonies (non self-governing territories) achieved self-determination through the establishment of sovereign and independent states.

By 1960, the newly independent states were in the majority in the United Nations General Assembly (UNGA) and promoted a declaration on the granting of independence to colonial countries and peoples that was passed as Resolution 1514 (XV),[1] which called for compulsory decolonization as the subjection of people to alien subjugation, domination and exploitation constituted a denial of fundamental human rights. In addition, in the East Timor case, the International Court of Justice (ICJ) categorically stated that the right of peoples to self-determination was ‘one of essential principles of international law.’[2]

Despite such ardent proclamations, the international community was reluctant to recognize the existence of the right to self-determination outside the context of decolonization until the end of the Cold War. However, in some situations the right to self-determination has been extended to occupied peoples and people living under a draconian system of racial segregation (apartheid). Thus, in contemporary international law, it is axiomatic that the right to self-determination constitutes a fundamental human right and under Article 1(3) of ICCPR and ICESCR is granted to all people, not just colonial people or people subjected to a racist regime or foreign or alien domination.

First and foremost, the crucial distinction between internal and external self-determination is of paramount importance in the realm of international law.

Internal self-determination entails that peoples have the right to participate in the conduct of their common affairs within a state in order to pursue their economic, social and cultural development without outside interference. The Supreme Court of Canada in Reference re Secession of Quebec stated that international law recognized ‘the right to self-determination to be normally fulfilled through internal self-determination.’[3]

Hence, states have often conferred this right for democratic self-governance in order to appease the dissident people/minorities clamoring for self-determination as evidenced by the case of Quebec.

On the contrary, external self-determination concerns a situation where people exercise the right to self-determination by seceding from an existing state either to create a new state, or be incorporated into or associate with another state. The principle of external self-determination has been successfully invoked by colonial people in order to achieve self-governance.

The inalienable right to self-determination of the Palestinian people has been unequivocally confirmed by UNGA on several occasions. Additionally, in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories (Advisory Opinion),[4] the ICJ emphasized that the right of a people to self-determination had acquired an erga omnes character. The ICJ observed that Israel, by constructing a wall, had de facto annexed territories over which the Palestinian people had been entitled to exercise their right to self-determination.

However, despite such unequivocal affirmations, the Palestinians’ right to self-determination continues to be infringed with impunity. The futility of such authoritative statements of international law suggests that political considerations will invariably be an impediment in the exercise of the right to self-determination. For instance, the US vetoed a program of action for the achievement of the Palestinian people’s right to self-determination.

The Supreme Court of Canada’s decision in the Quebec case provides a cogent illustration of the approach espoused by international law in such cases. The court emphasized that the protection of territorial integrity prevailed over the right to external self-determination. Additionally, the court held that the international law right to self-determination only generated a right to external self-determination of a people in three specific situations:

  • where a people is governed as part of a colonial empire;
  • where a people is subject to alien subjugation, domination or exploitation; and
  • where a people is denied meaningful access to government to pursue their political, economic, social and cultural development.

As mentioned earlier, in the absence of these situations, international law has established that the right of self-determination of a people is fulfilled through internal self-determination.

Thus, if the parent state respects the right of internal self-determination of a people and the human rights of its citizens, it is entitled to preserve its territorial integrity. In such cases, the principle of territorial integrity subjugates the right to self-determination, as illustrated by a recent crisis in Catalonia. It has been suggested that the current internal self-government (autonomy) of Catalonia can satisfy Spain’s obligation to respect the right of the Catalan people to self-determination. In a similar vein, the international community is also wary of espousing such an expansive approach to this concept as they are apprehensive of emboldening similar secessionist movements within their own states.

However, from the outset, international law has espoused a circumspect approach to this politically charged issue by precluding the right to self-determination from unnecessarily encroaching upon the territorial integrity of a state which guarantees the autonomous rights of a people. In the Aland Islands case, the Council of the League of Nations examined this incipient concept and thereby affirmed that the existing territorial integrity prevailed over the wishes of a people. It was asserted that in exceptional circumstances and as a remedy of last resort ‘when a state lacks either the will or the power to enact and apply just and effective guarantees a minority living within the territory of a state had the right to separate itself from a state.’[5]

This case had profound legal implications for the principle of self-determination. Nevertheless, it appears to be a legally tenable decision since an unfettered right to self-determination would inevitably lead to the creation of numerous states and plunge the world into new ethnocentric conflicts. This would not augur well for the territorial integrity/state sovereignty as evidenced by the recent conflict in Catalonia.

The ICJ’s Advisory Opinion concerning Kosovo’s unilateral declaration of independence once again highlighted the contentious nature of the right to external self-determination in international law.[6] The ICJ held that the adoption of the unilateral declaration did not violate any applicable rule of international law. Nevertheless, the court was reluctant to address the crucial issue of whether international law generally conferred an entitlement on entities situated within a state to unilaterally break away from it.

However, in my opinion, Judge Yusuf’s separate opinion could be construed as providing an authoritative guideline as to the position adopted by international law pertaining to a unilateral action of independence or secession from an existing state. Judge Yusuf categorically stated that there was no general positive right under international law which entitled all ethnically or racially distinct groups within existing states to claim separate statehood. There was, however, an existing right of self-determination recognized by international law in favour of the peoples of non-self governing territories and peoples under alien subjugation, domination and exploitation.[7] Beyond this, there is no right to unilateral secession, unless an ethnically or racially distinct group has been denied internal self-determination and subjected to “discrimination, persecution and egregious violations of human rights or humanitarian law.”

According to a report published by the UN Human Rights Office in June 2018, there is an urgent need to address past and ongoing human rights violations and abuses and deliver justice for all people in Kashmir who for seven decades have suffered a conflict that has claimed or ruined numerous lives. The intractable conflict in Kashmir has largely been precipitated by political intransigence. This reinforces the cardinal significance of the principle of self-determination and how it can play a pivotal role in alleviating the suffering of Kashmiris in their unremitting struggle for independence.

Consequently, it behooves the international community to reaffirm its steadfast commitment to the principle of self-determination which remains crucial in the fight against systemic, egregious and grave violations of fundamental human rights, as illustrated by the case of Kosovo.


References

[1] UNGA Res 1514 (XV) (15 December 1960) GAOR 15th Session Supp 16, 29.
[2] East Timor Case (Portugal v Australia) [1995]  ICJ Rep 90.
[3] The Supreme Court of Canada (20 August 1998) (1998) 2 Canada Supreme Court Reports 217, para 126.
[4] [2004] ICJ Rep 136.
[5] (1920) LNOJ Spec Supp No 3, 3.
[6] [2010] ICJ Rep 403.
[7] Separate Opinion of Judge Yusuf [2010] ICJ Rep 418, para 2.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which she might be associated.

Aroob Ansar

Author: Aroob Ansar

The writer is a lawyer and Research Fellow at the Center for Rule of Law Islamabad (CRoLI), a non-profit organisation dedicated to promoting a better understanding of the creation and utilisation of legal knowledge, rule of law, intellectual property rights, environment protection laws, human rights and other areas of public interest litigation.

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