Self-determination refers to the right of a ‘people’ possessing unique cultural and ethnic traits to freely determine their social, economic and political status to protect their unique ethno-religious and linguistic identity.[1] The United Nations has, in several declarations and resolutions promoted the right to Self-determination as a basic human right. In doing so, it has inadvertently bolstered several secessionist movements and encouraged them to claim a separate territory for their people in order to exercise their right to Self-determination.
Thus, the question arises: Is the Right to Secede a natural consequence of the right to Self-determination?
The concept of Self-determination arose in the French Revolution, when the people demanded a government that represented the people and protected their interests. They believed that if the prevailing system did not represent the people’s will, the people had the right to overthrow the government in order to protect their rights. The American Declaration of Independence in 1776 showed the world that a population did not have to submit to the authority of an alien government and could secede to protect its freedoms.[2] The United Nations through its Charter and several international conventions such as the International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights, the Friendly Relations Declaration, the Universal Declaration of Human Rights etc., has expressly or implicitly recognised the right to Self-determination and this has taken the form of an erga omnes norm.[3]
However, even as per discussions preceding the inclusion of Article 1.2 in the UN Charter,[4] the Right to Self-determination was limited to just that and secession was never a part of the scheme Self-determination, even in the pre-decolonisation context, was taken to mean merely self government and independence was, by extension, and not an automatic right. The principle was upheld in cases where it did not bring about or authorise secession.[5] This scenario was modified to include independence for colonised countries and peoples as per the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples,[6] permitting them to declare independence if they were being subjected to alien subjugation, domination and exploitation. It was still believed that the principle could not apply to the population of a sovereign State, irrespective of the nature of human rights abuse that may be prevalent, so long as the State did not systematically practice discrimination on racial or religious grounds. This restriction was based on the natural instinct of sovereign States to protect their territorial integrity, and avoid the inadvertent authorisation of secession. Thus came the distinction between internal and external self-determination.
At this juncture, the principle of self determination had a bearing on the rights of peoples within a sovereign territory to elect and keep a government of their choice, or internal self-determination; and on the rights of peoples under colonial, racist or alien rule to freely choose their government in the realm of international relations, or external self-determination. Under the latter, people were given the freedom to either form a sovereign and independent State, to freely associate and integrate with an independent State or to emerge into any other form of political status freely determined by the people.[7]
In recent years, jurisprudence has developed with regard to the right to external self-determination and some scholars believe that secession, based on the right to external self-determination can be legally granted only in extremely limited circumstances and only if the following conditions are fulfilled: (1) it shall concern people in territories that are subject to decolonization; (2) it shall be envisaged by the national legislation of the parent state concerned; (3) the territory inhabited by a certain people should be occupied or annexed after 1945; (4) the secessionists shall be “a people”; (5) their parent state shall flagrantly violate their human rights and (6) no other effective remedies under national or international law may exist, if any of these conditions are met.[8] The International Court of Justice, in its deliberations during the Kosovo Advisory Opinion, has come to the same conclusion.[9]
Hence, Self-determination has not been accepted as a postulate for defying seemingly autocratic regimes as the principle of Territorial Integrity takes precedence over it. It has been established that the need for external Self-determination may arise only in highly specific conditions and even this limited interpretation has not been generally accepted by the international community. The principle of Self-determination is meant to promote peace and freedom for all within sovereign territories, and is not, except in extremely rare circumstances, a justification for secession.
Despite the above mentioned position, Self-determination will still be looked to as a libertarian principle, and will continue to support the call of oppressed peoples for freedom.
Previously published at: https://pilsociety.wordpress.com/2015/09/08/52/
[1] Alina Kaczorowska and P. Thornberry.
[2] Lea Brilmayer, Secession and Self Determinations: A Territorial Interpretation.
[3] Anna Stepanowa, International Law and the Legality of Secession in Crimea, CJIL, http://cjicl.org.uk/2014/04/20/international-law-legality-secession-crimea/.
[4] Article 1.2: Purposes and Principles – ‘to develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples.
[5] Antonio Cassese, International Law in a Divided World. pg. 133, para 80.
[6] http://legal.un.org/avl/ha/dicc/dicc.html.
[7] 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations (GAR 2625) – Principle V, Para 6.
[8] Quebec case, 2 S.C.R. 217, para.123 (1998); Aaland Islands case, L.N.O.J. Spec. Supp. No.3 (1920); Pellet A., Ellet A., The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples, 3 EJIL 178 (http://cjicl.org.uk/2014/04/20/international-law-legality-secession-crimea/).
law of nations 