36 Right to Self Determination II

Dr. Aneesh V. Pillai

Introduction

The right to self-determination is one of the very controversial and challenging topics of contemporary international law. Though the principle of self-determination for peoples has been recognized since 1919 by League of Nations, as a ‘right’ it was recognized by United Nations. The concept of “self-determination” is a notion that brings together the interests of the individual and relates them to the interests of the group. The interests of both the individual and the group concentrate on the ability to exercise their selections about how they wish to live their lives and to be free from the interference and imposition of others. This concept has been recognized at international and regional level by various instruments. Some of the important international law instruments are as follows:

Learning Outcomes

• To understand the United Nations charter.
• To understand declaration of independence to colonies and people.
• To understand the international covenants.
• To understand the Principles of International Law concerning Friendly Relations in inter states.
• To understand the various other declarations.

United Nations Charter

The expression “self-determination” is explicitly mentioned in two articles of the Charter. Article 1 (2) specifies one of the purposes of the United Nations to be the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” Article 55, relating to international economic and social cooperation, states that the United Nations shall promote certain objectives “with a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples . .. .”

It is to be noted here that, the Dumbarton Oaks draft proposals which originally constituted the basis of the UN Charter did not contain any article referring to self-determination. The expression “based on respect for the principle of equal rights and self-determination of peoples” was added for the first time at the San Francisco Conference at the instance of the four sponsoring powers, China, the United Kingdom, the United States, and the Soviet Union. However, these sponsoring powers have not stated anything regarding the scope of the right to self determination. But the committee which discussed the concept of self-determination stated that, ‘Concerning the principle of self-determination, it was strongly emphasized on the one side that this principle corresponded closely to the will and desires of peoples everywhere and should be clearly enunciated in the Chapter; on the other side, it was stated that the principle conformed to the purposes of the Charter only insofar as it implied the right of self-government of peoples and not the right of secession’.

The UN Charter also implicitly referred to the principle of self determination in Chapters XI and XII. Article 73 in the Chapter XI, entitled the Declaration regarding Non Self Governing Territories provided that the administering powers recognize the principle that the interests of the inhabitants of these territories are paramount and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well being of the inhabitants of these territories and to this end to ensure that the people of these territories establish self government, i.e. internal self determination. Chapter XII of the Charter deal with trust territories. According to Article 76 (b) one of the basic objectives of the trusteeship system was to promote the progressive development of the inhabitants of the trust territories towards self government or independence taking into account the freely expressed wishes of the peoples concerned. The UN Charter is the first international document that expressly incorporated right to self determination and was the first international instrument which acknowledges the right to self determination as a legal right. The inclusion of this right into the UN Charter has led to a universal recognition that the promotion of right to self determination is fundamental to the maintenance of friendly relations and peace among states.

UN General Assembly Resolution No. 637/ 1952

The Resolution declares that, the right of peoples and nations to self-determination is a prerequisite to the full enjoyment of all fundamental human rights. The Charter of the United Nations, under Articles 1 and 55 aims to develop friendly relations among nations based on respect for the equal rights and self-determination of peoples in order to strengthen universal peace. It also declares that every Member of the United Nations, in conformity with the Charter, should respect the maintenance of the right of self-determination in other States. Through the resolution the General Assembly recommends that, ‘the States Members of the United Nations shall uphold the principle of self-determination of all peoples and nations’. It further states, ‘the States Members of the United Nations shall recognize and promote the realization of the right of self-determination of the peoples of Non-Self -Governing and Trust Territories who are under their administration and shall facilitate the exercise of this right by the peoples of such Territories according to the principles and spirit of the Charter of the United Nations in regard to each Territory and to the freely expressed wishes of the peoples concerned, the wishes of the people being ascertained through plebiscites or other recognized democratic means, preferably under the auspices of the United Nations. It also states that, ‘the States Members of the United Nations responsible for the administration of Non-Self-Governing and Trust Territories shall take practical steps, pending the realization of the right of self-determination and in preparation thereof, to ensure the direct participation of the indigenous populations in the legislative and executive organs of government of those Territories, and to prepare them for complete self-government or independence’.

Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960

The Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by the General Assembly which states that, “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”. The Deceleration identifies that, the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. It expressly states that, ‘all armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected’. It further recommends that, ‘immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom’. It also declares that, ‘any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’. In 1961, the General Assembly established the Special Committee to review the situation with regard to the implementation of this Declaration in non-self-governing territories each year and reports to the General Assembly. This Declaration is considered as one of the most important contributions of United Nations to the development of the legal right to self- determination.

The International Covenant on Civil and Political rights and International Covenant on Economic, Social and Cultural Rights, 1966:

The inclusion of right to self determination as a legal concept by UN Charter and the various resolution adopted by General Assembly based on the provisions of UN Charter dealing with right to self determination was facilitated the articulation of self-determination as a justifiable right. As a result both ICCPR and ICESCR included the right of self-determination in their Common Article 1. It states that, ‘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. 2) All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3) The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations’. Thus it can be seen that the Covenants clearly and unreservedly recognizes the right of self-determination of all peoples. An analysis of the Article 1 shows that, this provision can be construed as containing a positive right of a collective nature with political, legal, economic, social and cultural implications.

Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970.

This Declaration was adopted by UN General Assembly through its resolution no. 2625. The Declaration expressly states that, ‘by virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. It declares that, ‘every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order: To promote friendly relations and co-operation among States; and To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

Further the Declaration states that, ‘the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people’. Thus every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.

General Comment No. 12 of the Human Rights Committee, 1984

The Human Rights Committee states that, ‘in accordance with the purposes and principles of the Charter of the United Nations, article 1 of the International Covenant on Civil and Political Rights recognizes that all peoples have the right of self-determination. The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants’. The Human Rights Committee observes that, ‘with regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right. Paragraph 2 affirms a particular aspect of the economic content of the right of self-determination, namely the right of peoples, for their own ends, freely to “dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence”. This right entails corresponding duties for all States and the international community. States should indicate any factors or difficulties which prevent the free disposal of their natural wealth and resources contrary to the provisions of this paragraph and to what extent that affects the enjoyment of other rights set forth in the Covenant. Paragraph 3, in the Committee’s opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination’.

Vienna Declaration and Programme of Action, 1993:

The Vienna Declaration and Programme of Action, is a human rights declaration adopted by consensus at the World Conference on Human Rights on 25 June 1993 in Vienna, Austria. The United Nations High Commissioner for Human Rights was created by this Declaration endorsed by General Assembly Resolution 48/12110. The Declaration states that, ‘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. Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of self-determination. The World Conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realization of this right’. It further states that, ‘in accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind’.

General Recommendation No. 21, 1996

The General Recommendation issued by the Committee on Elimination of Racial Discrimination comprehensive explained the content of right to self determination. It states that, ‘the right to self-determination of peoples is a fundamental principle of international law. It is enshrined in article 1 of the Charter of the United Nations, in article 1 of the International Covenant on Economic, Social and Cultural Rights and article 1 of the International Covenant on Civil and Political Rights, as well as in other international human rights instruments. The International Covenant on Civil and Political Rights provides for the rights of peoples to self-determination besides the right of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practice their own religion or to use their own language’.

Further the Committee emphasizes that, ‘in accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, approved by the United Nations General Assembly in its resolution 2625 (XXV) of 24 October 1970, it is the duty of States to promote the right to self-determination of peoples. But the implementation of the principle of self-determination requires every State to promote, through joint and separate action, universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations. In this context the Committee draws the attention of Governments to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the General Assembly in its resolution 47/135 of 18 December 1992’.

Regional Instruments and Right to Self Determination

At the Regional Level there are many human rights instruments. However among which only three instruments directly or indirectly protects the right of peoples to self-determination. They are as follows:

1. The African Charter of Human and Peoples’ Rights

The African Charter of Human and Peoples’ Rights was adopted in 1981 and has been ratified by the 53 member states of the African Union. It is the treaty that recognizes most explicitly and most completely the right of peoples to self-determination and to freely dispose of their natural wealth and resources. The Charter contains three important provisions which deal with right to self determination. Firstly, Article 19 which states that, ‘all peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another’. Secondly, Article 20 states that, ‘all peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self- determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen’. It also states that, ‘colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. Further, it provides that, ‘all peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural’. Thirdly, Article 21 which states, ‘all peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it’.

2. The Helsinki Final Act, 1975

The Helsinki Final Act or Helsinki Declaration was the final act of the Conference on Security and Co-operation in Europe held in Helsinki, Finland, during July and August 1, 1975. Thirty-five states, including the USA, Canada, and all European states except Albania, signed the declaration in an attempt to improve relations between the Communist bloc and the West. The Helsinki Accords, however, were not binding as they did not have treaty status11. Article VIII of the Final Act states that, ‘the participating States will respect the equal rights of peoples and their right to self determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States. By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. The participating States reaffirm the universal significance of respect for and effective exercise of equal rights and self-determination of peoples for the development of friendly relations among themselves as among all States; they also recall the importance of the elimination of any form of violation of this principle’.

3. The American Human Rights Convention

The American Human Rights Convention does not explicitly recognize the right to self-determination; it does enshrine several rights that can be used to protect the right of peoples to their natural wealth and resources. The charter declares in Article 3 that, ‘international order consists essentially of respect for the personality, sovereignty, and independence of States and the faithful fulfillment of obligations derived from treaties and other sources of international law’. It further states that, ‘every State has the right to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it, and has the duty to abstain from intervening in the affairs of another State. Subject to the foregoing, the American States shall cooperate fully among themselves, independently of the nature of their political, economic, and social systems’.

Summary

It is to be noted here that, a number of States have also recognizes the right to ‘self-determination’. For example, the Constitution of Croatia, 1990 speaks of ‘the generally accepted principles in the modern world and the inalienable, indivisible, nontransferable, and in-expendable right of the Croatian nation to self-determination and state sovereignty, including the inviolable right to secession and association’. Likewise, the French Constitution, 1958 speaks of ‘government of the people, by the people, and for the people’. So also in the 1949 German Constitution, the people declare that they have achieved the unity and freedom of Germany in free self-determination12. Thus it can be seen that, the developments of the concept of right development especially after the UN Charter at international and regional level shows that, this right become one of the most important and dynamic concepts in contemporary international and national law.

Reference

1. John B. Henriksen, “Implementation of the Right of Self-Determination of Indigenous Peoples”, 6 Indigenous Affairs 3/01.
2. Father Robert Araujo, “Sovereignty, Human Rights, and Self-Determination: The Meaning of International Law” 2001 Fordham International Law Journal, Vol. 24:1477.
3. M. K. Nawaz, “The Meaning and Range of the Principle of Self-Determination”, Duke Law Journal 1965, 82.
4. B. C. Nirmal, The Right to Self-Determination in International Law, Deep & Deep Publications, 2000.
5. Andrew Coleman, Resolving Claims to Self-Determination, Routledge, 2013.
6. Burak Cop & Dogan Eymirlioglu, “The Right of Self-Determination in International Law Towards”, available at http://sam.gov.tr/wp-content/uploads/2012/02/BurakCopAndDoganEymirlioglu.pdf.