The Right of Self-Determination

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RIGHT OF SELF DETERMINATION   INTRODUCTION Self-determination can be defined as a right of peoples or the will of the people under international law to exist and to have access to government. This principle has at its spirit in the achievement of true representation and democracy based on the premise that the consent of the people can only give legitimacy to any government. The principle helped in shaping of our international community as it was mainly responsible for the decolonization process. Hence, this right is one of the most important, but yet it is debatable principles of international law. This right has served as a powerful slogan and a justification for the purpose of independence of many peoples. This right has primarily created controversy because it many a times challenged the State system through a derogation of the principle of territorial integrity, which results in tension between the interests of the States on one hand and the interests of the peoples on other. This coalition between the two has led to the creation of a principle as multifaceted as well as ambiguous. The right to self-determination complement fundamental principles of public international law like State sovereignty, the equality of States and territorial integrity, including the prohibition of force and the principle of non-intervention. With the aid of self-determination, indigenous groups raise claims of either secession from an already sovereign State or seek independence and freedom from the domination of foreign State. This right does not only exist under public international law but has its presence under international human rights law also, where it says, among other things, the equal rights of peoples within a State. Moreover, the right to self-determination is used as an argument in miscellaneous situations under international law wherein questions relating to liberation movements, rebels, aid and assistance or intervention against these groups and movements. Therefore, it can be said that there are many situations in the world where the right to self-determination has a great relevance. 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[2]. There are at least five different modes of right to self-determination:
  1. an individual right, potentially coextensive with some form of democratic governance;
  2. a right pertaining to members of groups and perhaps groups themselves, often framed as the minority rights of national, religious, ethnic or linguistic groups;
  3. a right with particular meaning in the context of indigenous groups, potentially extending to unique forms of political and territorial autonomy;
  4. a right associated with limited territorial change, often associated with historical agreements (such as the handover of Hong Kong); and
  5. a right to external determination of peoples, which implies a right to unilateral secession.
The scope and purpose of the principle of self-determination has evolved significantly in the 20th century. In the early 1900’s, international support grew for the right of all people to self-determination. This led to successful secession movements during and after World War I, II and then laid to the groundwork for decolonization in the 1960s. THE SCOPE OF THE PRINCIPLE OF SELF-DETERMINATION OF PEOPLES The meaning of the term “peoples” means who are the holders of the rights of self-determination and has a primary effect on the establishment of the synchronization between the principle of self-determination and territorial integrity. Principle of self- determination has its universal realization[3] and subsequently, obligations arising from this principle are erga omnes obligations.[4] Since erga omnes obligations are attatch to the right of self determination, therefore, it implies that this principle applies to the whole international community. All states have a right to demand for self determination, if in case people are depriving of the right to self determination, as per internationally recognized interpretation of self- determination. Though, there is no recognized definition to any of terms, which could be admitted under the meaning of “peoples” (for example, nation, minority, indigenous peoples and etc.), and for the term “peoples” itself under international law[5]. As a fundamental human right, right to self-determination cannot be the right only of some special categories of peoples asit would lead to discrimination on the racial, ethnic, cultural, religious or other grounds, for which that particular group identifies themselves among others. According to the report of the international conference organized by the UNESCO Division of Human Rights, Democracy and Peace, the plain meaning of the term “all peoples” includes peoples under colonial or alien subjugation or domination, those under occupation, indigenous peoples[6] and other communities who satisfy the criteria generally accepted for determining the existence of a people[7]. The only way to prevent discrimination between different groups of peoples is to define “a people” as a whole population of a particular territorial unit, for the purpose of interpreting the principle of self- discrimination under the present international law “a people” means: a) entire population of an independent state, governed in a way representing the whole population; b) entire population of non-self-governing territory; c) entire population of a particular occupied territorial unit living under foreign military occupation; d) entire unrepresented/ oppressed part of population of a particular territorial unit . This interpretation shows the primary connection between peoples and territory. THE CONTEMPORARY CONCEPT OF SELF DETERMINATION There are three important elements which helps in fulfilling the contemporary concept of principle of self-determination. These elements are as follows;
  1. The principle of uti possidetis,
  2. the conceptual distinction which exists between external (classical/post-colonial) and internal aspects of self-determination, and
  3. the secession in the view of international law regulating self-determination.
There have been various decisions as accepted by various courts that emphasized on the importance of principle of uti possidetis, such as the Canadian Supreme Court’s (CSC) decision on Quebec decision and ICJ’s decision in the Burkina-Faso v. Mali case[8]. The Canadian Supreme Court noted that, the right of self-determination should be exercised “within the framework of existing sovereign states” and emphasized “the maintenance of the territorial integrity of those states”[9]. Furthermore, ICJ described the principle of uti possidetis as “a general principle, which is logically connected with the phenomenon of obtaining independence, wherever it occurs”[10]. Apart from the above discussions before the courts, the Committee on the Elimination of Racial Discrimination ie., CERD passed a recommendation in 1996 which distinguished the internal self-determination from the external self- determination. As per CERD internal self-determination means “right of every citizen to take part in the conduct of public affairs at any level”.[11] The definition of the CSC regarding internal self-determination, which is acknowledged by the Court as a concept fulfilling the external self-determination, is as follows: “a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state”[12]. Tibet. The Tibet case represents a post-Charter annexation reason being China seized independent Tibet in 1949 -1950. The early documents of the United Nations indicate that the right to self-determination of the Tibetan people, and the international community had to recognize China's the post-Charter military seizure as illegal. Till now, the situation in Tibet is not resolved and the Tibetan people still have the right to self-determination, and also have the right to their own governance and culture. But, China is sending large numbers of non-Tibetan people in Tibet. This is a violation of Article 49 of the Fourth Geneva Convention. This is where the government of China has done the most damage to Tibetans and their culture, as in many parts of Tibet, Tibetans are in the minority, which has becomes a serious situation in the realization of self determination. China seeks to dilute Tibetans with others, so that if forced into any de-colonization process the Tibetan question might be viewed as an indigenous question rather than one involving full restoration of sovereignty. CONCLUSION In the above-outlines situations, it can be understood that people have the right to self-determination but yet it has not been realized. In many countries there are conflicts related to it. Unfortunately, many states involved in attempting to militarily eliminate the peoples with valid self-determination claims try to reduce these conflicts to "terrorism". So depending on which side of the fence you are on, group A is either a terrorist or a freedom fighter. Some of these regimes' friends either acquiesce or actively support this erroneous assertion. Apart from this, the important concern is that states are openly violating their jus cogens and erga omnes obligations, so as to defend the principle of self- determination. And also, not enough people know sufficiently both the law of self-determination and the law of armed conflict to properly redirect. This right can, be immensely powerful as a political slogan, for example when used by a people seeking their freedom and independence as it was done during time decolonization process. But it can also be dangerous when used to stir up feelings of extreme nationalism in people. As what led to the genocide in Rwanda was a complex situation that dates back to the colonial period. Surely, democracy must be the remedy here and not redefining the term “people” or the principle of territorial integrity. In any case, this dilemma does not seem to have a solution for the moment, nor in the foreseeable future as one author admits. In my opinion there is clearly a need for the double nature of the right to self-determination in international law and relations. It is therefore difficult, bordering on impossible, to reach an agreement on a more precise definition of the right, its content and scope.
[1] Student, Institute of Law, Nirma University [2] Thomas Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46 (1992). [3] See, for example, the UN General Assembly Resolution 51/84 (adopted 28 02 1997), which reaffirms “universal realization of the right of peoples to self-determination”. [4] The International Court of Justice has affirmed erga omnes in the East Timor Case; the newest: Advisory opinion of the ICJ on “Legal consequences of the construction of a wall in the occupied Palestinian territory” (09 07 2004, No.131). [5] The UNESCO International Meeting of Experts for the Elucidation of the Concepts of Rights of Peoples (held in 1989) developed the definition of “a people” as “a group of individual human beings who enjoy some or all of the following common features: a) a common historical tradition; b) racial or ethnic identity; c) cultural homogeneity; d) linguistic unity; e) religious or ideological affinity; f) territorial connection; g) common economic life” . [6] A term “indigenous peoples” is “just a technical term, which allows a number of peoples to participate, albeit in a limited way, in international discussions affecting their situation”(see note 1:The implementation of the right to self-determination as a contribution to conflict prevention). [7] Ibid [8] Frontier Dispute (Burk. Faco v. Mali), 1986 I.C.J. 3 (Order of Jan. 10) [9] Ibid., p. 231 [10] Warbrick, p. 215. [11] Shaw, p. 273. [12] Shaw, p. 273.
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