Right to self determination - A holistic view

"No other concept is as powerful, visceral, emotional, unruly, and as steep in creating aspirations and hopes as self-determination."-Wolfgang Danspeckgruber

Principle at its outset

ublic International Law, which governs the relation inter-alia between two or more states, expressly provides for right to self-determination. The principle is of jus cogens nature, which means that a norm or a principle attaining a status of customary international law against which no derogation is allowed, whatsoever.

The states therefore are under strict obligation to follow this principle. The principle trace its history to the Atlantic Charter, signed on 14 August 1941, by Franklin D. Roosevelt, President of the United States of America, and Winston Churchill, Prime Minister of the United Kingdom, who pledged The Eight Principal points of the Charter, which latter evolved into United Nations Charter, 1945 (Article 1 specifically). The principle, notably, also find its mention in “CASE CONCERNING EAST TIMOR (PORTUGAL v. AUSTRALIA)” before International Court of Justice (hereinafter ICJ), Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States adopted by the UN General Assembly in 1970, Helsinki Final Act adopted by the Conference on Security and Co- operation in Europe in 1975, International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, etc.

In common parlance, right to self-determination means a right to choose the political status and pursue its own economic, social, and cultural development, by a population, which belongs to a certain territory, from subjection of alien subjugation, dominion and exploitation, including formation of their own independent state. The right essentially wants to end, as well as, counter the issues of colonial domination, racial or ethnic discrimination, military occupation, etc., due to which a group suffer systematic and gross violations of human rights that make their participation in that state impossible, which were very much prevalent till latter half of 20th century. The principle has two aspects, which are namely internal (right of people to govern themselves without interference of foreign power) and external (right of peoples to determine their own political status and to be free of alien domination). As a result, there could be number of outcomes like independence, merging with some other countries, or remaining within the political domain of same country. However, it should not be confused and correlated with right to secession, as right of secession is not govern under the realm of international law except in context of decolonization and situations of military occupation.

Having this background, I want to move the focus of this article to some important correlation and issues concerning this principle. Article in its essence, deals with an important question that ‘whether this principle need to evolve more, in terms of its specificity’, by detailing out various contours of right to self- determination.

Deconstructing syntax of correlation

Right to self-determination has a critical relation with various other factors, which need to be looked upon, in order to highlight the need for its development.

Relation with territorial sovereignty

General Assembly in its resolution 1514 (XV) of 14 December 1960, titled “Declaration on the Granting of Independence to Colonial Countries and Peoples” states in one of its provision 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.’ Member states have also been wary about this principle due to its sensibility regarding their territorial integrity; hence this principle has been incorporated in aforementioned declaration. Therefore, bringing a perilous relation amongst each other. As mentioned by Castellino “......but in a debate between territorial sovereignty and right to self-determination, one has to admit the norm of territorial integrity once again prevailed to the gains of peoples due to the envisaged realization of self- determination” (para-phase).

Relation with terrorism

Terrorism has been a global menace which is affecting the world at large. International Convention for the Suppression of the Financing of Terrorism, 1999 defines terrorism as “Any act intended to cause death or serious bodily injury to a civilian, or any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context is to intimidate a population or to compel a government or an international organization to do or abstain from doing any act”. This act is proscribed under various regimes, such as United Nations Security Council Resolution 1373, UK Terrorism Act 2000, US Patriot Act, European Union Common Position on Terrorism, etc. The struggle for independence through self-determination, may often lead to armed conflict. These armed conflicts may turn out to be an act of terrorism, where innocent’s life is put at stake, so as to overawe the government or authority to take such steps, as would lead to self-determination. Therefore, the relation is quite critical, in a sense that, a struggle for self-determination must not lead to perpetrating a bigger crime, which is condemned worldwide. It may vitiate the genuineness of the concerns of a group, which calls for the application of this principle.

Relation with occupation

Article 42 of the Hague Regulations, 1907 states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." The legality of any particular occupation is regulated by the UN Charter, 1945 and the law known as jus ad bellum. Once a situation exists which factually amounts to an occupation the law of occupation applies – whether or not the occupation is considered lawful. Such authority can govern those territory but without changing the existing order. The occupant powers are never considered as legitimate government, as they overthrow elected regime and in this context the right to self-determination becomes crucial for the native to decide their future. Therefore as far as relation is concern, both run opposite to each other, as this right offers autonomy to the native while military occupation demeans this opportunity.

Relation with Security Council

Security Council constituted under the aegis of United Nations Charter, 1945 is one of a principle organ which has a duty to oversee and monitor international peace and security. It is in this regard Security Council is considered to be a watchdog, for ensuring that any sort of armed conflicts be eliminated. But as mentioned above, in many instances the situation runs contrary to this expectation, which necessarily involves acts of armed conflicts, i.e. either in form of terrorism or military occupation, for the demand of an application of this right. Therefore, the relation between the principle and this organ is of vital nature, because Security Council ought to ensure that the right be exercised systematically and violation of peace and security, in the form of human rights violation or by challenging territorial sovereignty, is eliminated to greater extent.

Various concerns relating to this principle

Notwithstanding that the principle has been incorporated under various charters or convention, as non-derogable norm, it still lacks the definitiveness. These issues put concerns over practical application of this principle in real time problems.

It has been, on number of occasions, alleged that the alien authority changes the structure of inhabitants in an occupied region, by implantation of non-indigenous settler in that land. This erodes the earlier structure which existed before imposition of foreign rule, in that land. Same preposition was argued by Tibetan Centre for Human Rights and Democracy which is based in northern India and was established in 1996, in Asian Civil Society Forum, 2002. The contention is ‘that right to self-determination as a principle does not foresee this problem and as a result it is not incorporated in any charter or convention, which deals with this principle.’ The other example is “Falkland Island’, wherein right to self-determination was exercised and more than 90% people voted for British regime but it was argued by Argentina that locals who voted were from Britain itself and since they don’t constitute aboriginal or inhabitant population of this island, it doesn’t leads to proper implementation of this principle.

Next in the line is an issue concerning determination of subjugation of alien authority or domination and exploitation, which constitute as cause of exercising this principle. The first aspect to it is that ‘how can we determine the subjugation of alien force’. The matter is contentious because no authority, howsoever whimsical, would consent to the fact that it is alien force. They will argue to an extent to prove, that their control have historical significance. These situations are not properly addressed by this principle, as it fails to draw a line between legitimate and illegitimate authority. ‘Kashmir Dispute’ between India and Pakistan, is relevant to be stated in this regard because both exert their influence on this piece of land, by stating that other is an alien authority. This fuels the situation between these nations rather than solving it. The second aspect is ‘who will decide this very question’. Well ICJ (as decided in number of cases) could decide upon it, but jurisdiction of same is subject to the consent of member-states. Therefore creating a vacuum, as to how to deal with these questions.

Last but not the least, if authorities so concern agree to conduct application of this principle, through an election, ‘how will it be ensured that they are conduct in free and fair manner’. It is necessary in that case to mention that just arguing application of this principle would not suffice the dire need for fair election, which has a possibility of any sort of manipulation. It would rather lead to abuse of authority if same is not conducted in free and fair manner. ‘Scotland Independence Referendum’ is one of such example, wherein free and fair elections were held to ensure that whether the people of Scotland wants to be an independent country or remain as part of United Kingdom, in 2014.

These issues raise an important question that whether this principle requires more width, so as to answer those jurisprudential questions relating to its effectiveness in larger sense of this debate.

Conclusion: an inference

One can infer that, despite the principle had attained status of customary international law and more specifically status of jus cogens, does not justify the fact that it doesn’t need to evolve anymore as a principle. Issues concerning displacement of original population, question of historical aspect related to control of an authority, and application of this principle in fair and unbiased manner still haunts the jurist of international law, working in this field. These issues have further implications like human rights violation, grave breaches under International humanitarian law, demilitarization of such areas, etc. which cannot be addressed without answering the above-mentioned concerns.

It could also be inferred that, relation of this principle with various facets of public international law also brings our focus on changing dynamics. The colonization has been outdated as a cause and these days’ military occupation, ethnic discrimination, etc. have taken its toll. But the authenticity of these demands suffers a big blow when correlation is brought with terrorism and territorial integrity. Therefore, it is in these contexts a strong watchdog is required to monitor its implementation and administration, for which the role of Security Council is enhanced and galvanized. But there are other narratives also like human rights, humanitarian aspects (war crime or grave breaches), development issues, etc. which too require a special focus from world community, as well as, respective specialized agency, in context of such territories.

Hence, the principle of right to self-determination does need to evolve further, so that it can cope up with modern-days challenge, as well as, practical realities, as reflected in correlation and issues concerning this principle.

Saurabh Sharma, Student of LLM International Law, South Asian University


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