35 Right to Self Determination I

Dr. Aneesh V. Pillai

Introduction

The human right to self-determination is the right of a people to determine its own destiny. This right allows a people to choose its own political status and to determine its own form of economic, cultural and social development1. According to Human Rights Committee, ‘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 Covenants2 and placed this provision as article 1 apart from and before all of the other rights in the two Covenants3. The right to self-determination is an elusive concept. There is no clear understanding about the holders of the right and the content of the right. In practice the scope of this right is determined by the attitude of the government towards a claim of people. For example, if a group of people claims for their cultural autonomy by exercising their right to self determination, the country may accept the claim. However, if a group claims for their political independence from the country in most cases such claim may reject at the first instance itself.The right to self-determination is recognized in international law as a right of process belonging to peoples; hence it is considered as a group right or third generation right.

Learning Outcomes

• To understand the concept and definition of the right to self-determination.
• To understand the history and development of Right to self-determination.
• To understand the dimensions of right to self-determination.
• To understand the right to self-determination as a group right.

Right to Self Determination: Concept and Definition

The right to self determination may be defined as the right of a people or a nation to determine freely by themselves without any outside pressure their political and legal status as a separate entity, preferably in the form of an independent State , the form of government of their choice and the form of their economic, social and cultural system. Though the right to self determination is frequently used to refer to the right of a nation or country to self-governance, the term has equal applicability to people whose group identity is defined by criteria other than geographic boundaries, including people self -identified by cultural or racial characteristics, sexual orientation, gender, or disability status.

The American Heritage Dictionary of the English Language identifies self-determination as a noun and defines it as:

a) Determination of one’s own fate or course of action without compulsion;

b) Freedom of the people of a given area to determine their own political status; independence.

The  Webster’s  Encyclopedic  Unabridged  Dictionary  of  the  English  Language  defines  “self- determination as:

a) Determination by oneself or itself without outside influence;

b) Freedom to live as one chooses, or to act or to decide without consulting another or others; c) The determining by the people of the form their government shall have, without reference to the wishes of any other nation, especially, by people of a territory or former colony.”

The New Encyclopedia Britannica defines ‘self- determination’ as “the process by which a group of people, usually possessing a certain degree of national consciousness, form their own state and choose their own government”. The above definitions emphasize that an individual and more so a people or a group of people having a sense of national consciousness may constitute their own state and government according to their wish without any interference from other nations and state.

The UN Charter explains the two meanings of the term self-determination. First, a state is said to have the right of self-determination in the sense of having the right to choose freely its political, economic, social, and cultural systems. Second, the right to self-determination is defined as the right of a people to constitute itself in a state or otherwise freely determine the form of its association with an existing state. Both meanings have their basis in the Article 1, paragraph 2; and Article 55, paragraph 1 of the Charter.

According to Hurst Hannum, ‘the word self-determination is derived from the German term se/festbestimmungsrchat. German radical philosophers often used this term in the eighteenth and nineteenth centuries. During this period certain national groups had developed the principle of self-determination as a natural corollary of ethnic-political and linguistic demands’. The right to self-determination is a right which reflects the importance given to communities, collectives and families in many societies and the general inherent communal quality of humans. The purpose of the protection of this right is to enable these communities as communities to prosper and transmit their culture as well as participate fully in the political, economic and social processes, thus allowing the distinct character of a community “to have this character reflected in the institutions of government under which it lives”. It also forms part of the empowering process of human rights. Thus the right protects people from being subject to oppression by subjugation, domination or exploitation.

The right to self determination has also achieved the legal status of ‘erga omnes’. The International Court of Justice has affirmed in the East Timor Case that, the right to self-determinationhas an ‘erga omnes character’. The term ‘erga omnes’ means ‘flowing to all’.According, erga omnes obligations of a State are owed to the international community as a whole. When a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other. Hence, the right to self determination is a right which should be respected by international community in all circumstances.

The right to self-determination is a fundamental and inalienable human right. It is enshrined in the Charter of the United Nations, the International Covenants of Human Rights (common Article 1) and the Covenant of the Unrepresented Nations and Peoples Organization. These instruments state that “all peoples have a right to self-determination” and that “by virtue of that right they are free to determine their political status and to pursue their economic, social and cultural development. The International Court of Justice has recognized the right to self-determination as one of the most important human rights, and as “the concern of all states.

History and Development of Right to Self Determination

The desire for self-determination is ancient but the idea is modern. The desire for democracy or republican government can be traced back to Greek civilization. The Greek city-states had some form of democratic governments. Athens was one of the important city-states practicing democracy. However, the origins of the idea self-determination were not attributed only attributed to the Greeks; but they also existed in the East, as in India and China.

The origins of the modern concept of self-determination can be traced back to the American Revolution and the Declaration of Independence, 1776. The Declaration proclaimed that governments derived ‘their just powers from the consent of the governed’ and that ‘whenever any form of Government becomes destructive of these ends, it is the right of the people to alter or to abolish it’. The principle of self-determination was further developed through the doctrine of popular sovereignty emerged as a result of French Revolution16.During the 19th century and the beginning of the 20th century the principle of self-determination was interpreted by nationalist movements as meaning that each nation had the right to constitute an independent State and that only nationally homogeneous States were legitimate.

Self-determination further evolved when it was espoused by the socialist movement and the Bolshevik revolution. Defined and developed by Lenin and Stalin, the principle of self-determination was represented as one of international law. It should, however, be mentioned that the right of self-determination in Soviet doctrine existed only for cases where it served the cause of class conflict and so-called socialist justice; it was only a tactical means to serve the aims of world communism and not an end in itself.

Towards the end of the First World War, the principle of self-determination was proposed as a foundation for international order. In the words of its chief advocate, U.S. President Woodrow Wilson, ‘the settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship is to be made upon the basis of the free acceptance of that settlement by the people immediately concerned and not upon the basis of the material interest or advantage of any other nation or people which may desire a different settlement for sake of its own exterior influence or mastery’. According to him the principle of self determination is ‘an imperative principle of action’. However, Wilson’s attempt for incorporating the principle of self-determination into the Covenant of the League of Nations has failed. Therefore the principle of self determination was continued as mere political principle rather than a legal concept.

As a legal right at international law, the right to self-determination has been recognized only after the Second World War. The United Nations Charter, 1945 offered the first step in the transformation to legality by proclaiming as one of its purposes the promotion of ‘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 for the first time instead of ‘principle’ of self determination, the term ‘right’ to self determination was first used in the General Resolution 1181/1957. The Declaration on the Granting of Independence to Colonial Countries and Peoples, 1960 asserted that continued subjugation and denial of human rights is an impediment to world peace and cooperation; thus, “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”.

Further this right has received the binding nature through its inclusion in two international covenants such as: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in 1966. Subsequently the scope of right to self determination as a legal right has been specifically emphasized by the UN Resolution 637/1970, where the right of people to self-determination was considered a basic condition for the enjoyment of other rights and freedoms.

The Friendly Relations Declaration (1970) states that ‘the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations’ embraces the right of all peoples ‘freely to determine, without external interference, their political status and to pursue their economic, social and cultural development’ as well as the duty of every State ‘to respect this right in accordance with the provisions of the Charter’. It further 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’.

The right to self-determination of peoples is recognized in many other international and regional instruments, including the Helsinki Final Act adopted by the Conference on Security and Co-operation in Europe (CSCE), 1975; the African Charter of Human and Peoples Rights, 1981; the CSCE Charter of Paris for a New Europe, 1990; and the Vienna Declaration and Programme of Action, 1993. This right has also affirmed by the International Court of Justice in the Namibia case, the Western Sahara case, and the East Timor case, in which its erga omnes character was confirmed. The scope and content of right to self determination was also elaborated by the General Comment No 12 in 1984 and the General Recommendation No. 21 in 1996 about the right to self-determination.

Right to Self Determination: A Group Right

It is to be noted here that the international legal instruments on right to self-determination refer to the right of self-determination as belonging to “all peoples”. However, the term “peoples” is not defined in international law. According to John B. Hendrickson the term,‘peoples are often described as a group of individual human beings who enjoy some or all of the following common features:

(1) a common historical tradition;

(2) ethnic identity;

(3) cultural homogeneity;

(4) linguistic unity;

(5) religious or ideological affinity;

(6) territorial connection; and

(7) common economic life’.

Moreover, the group should possess the will or consciousness to be a people, and institutions to express the identity of the people. This is widely regarded as being the ordinary meaning of the term “peoples”.

Collective or group rights are rights that do not belong to an individual but to a group of people, such as the continued survival of a race of people. Therefore, the phrase ‘all peoples’ -instead of ‘everyone’ attached to the right to self-determination indicates that the right to self-determination is a collective right or group right; that is, only a ‘people’, not an individual, can exercise the right. Through the realization of the collective right to self determination, an individual can also enjoy the right to self determination.

Dimensions of Right to Self Determination

The right to Self-determination has various dimensions and therefore the term self-determination can be termed as an umbrella concept. The most important dimensions according to most of the jurists are: a) Internal self-determination, and b) External self-determination.Internal self-determination is generally held as ‘the right to choose their [the people] form of government and to determine the social, economic, and cultural policies of the state’. Internal self-determination according to Cassese includes freedom to choose one’s own government, control over natural resources, and non-interference in others’ matters especially between two fighting groups. Internal self-determination involved the linking of movement for cultural and political autonomy for distinct people with the right of self-determination. Internal self-determination relates to the relationship between a people and its own State or government and particularly to the implementation or realization of self-determination of a people within the State in which that people resides. Thus it can be seen that the international self-determination is a mode of implementation of political self-determination which denotes a right of a people to participate (a right to have a say) in the decision-making processes of the State. An important feature of internal self-determination is that this mode of implementation does not lead to the change of the external or internal boundaries of the state as it is does in the case of external self- determination. The Gorkhaland and Bodo land struggle in India and indigenous peoples” movements in various parts of Latin America are examples of internal self-determination.

External self-determination means that ‘all states parties, including those administering dependent territories (i.e., non-self-governing and trust territories) may freely decide on their international status, whether to form a new state or to associate themselves with an existing state. External self-determination requires an expression by the people, free from interference by governmental authorities of others. State practice provides many instances of such expression, usually by plebiscite.Hence, it is the right of the people to be independent and free fromoutside interference. This right stems from the United Nations Charter, which forbidsnation states from interfering with the territorial integrity of other nation states. Externalself-determination is a mode of implementation of the right of self-determination throughthe formation of an independent State, the integration in, or association with a ThirdState. This mode of implementation of self-determination by a people thus lead to amodification of the external boundaries of the State in which that people resides. It is this feature of external self-determination which forms an important distinction with respectto internal self-determination. Ronen in his book, ‘The Quest for Self- Determination’ identified five dimensions of self-determination. They are National Self- Determination; Class Self- Determination; Minorities Self- Determination: Racial Self- Determination: and Ethnic Self- Determination.

Summary

In this module we understood the concept and definition of right to self-determination, its history and development and self-determination as a group right and its dimensions.

Reference

1. www.unpo.org/article/4957, visited on 10. 09. 2015.
2. ICCPR and ICESCR
3. General Comment No. 12 of the Human Rights Committee, made at its Twenty-First Session, 1984.
4. Michael L. Wehmeyer, “Self-Determination and Individuals With Significant Disabilities:Examining Meanings and Misinterpretations” available at http://www.beachcenter.org/Research%5CFullArticles%5CPDF%5CSD4A_SelfDetermination% 20and%20Individuals.pdf.
5. Lisa Bowleg, “The Problem with the Phrase Women and Minorities: Inter Sectionality—An Important Theoretical Framework for Public Health”, Am J Public Health. 2012 July; 102(7): 1267–1273.
6. Hurst Hannum,“Self-Determination in the Post-Colonial Era”, in Donald Clark and Robert Williamson (ed.), Self-Determination: International Perspectives,MacMillan Press, New York, 1996, p.l2.
7. H.S. Sharma, “Understanding Right to Self-Determination”, available at http://shodhganga.inflibnet.ac.in/bitstream/10603/2710/9/09_chapter%201. pdf.
8. East Timor (Portugal v. Australia), Judgment 30 June 1995; ICJ Reports 1995, p. 90.