This article is written by Durgesh Nandini, from D.E.S. Shri Navalmal Firodia Law College, Pune. This article deals with the history of the concept of self-determination, aspects of self-determination, the future of self-determination under International Law, and the rights of minorities under International Law.
Table of Contents
Introduction
The concept of self-determination has evolved after the Second World War into a legal concept rather than a political one. On the twenty-fifth session of the General Assembly, it adopted the “Declaration on principles of International Law Concerning Friendly Relations”. For establishing this Declaration, the General Assembly established a special committee in 1963. This committee instructed the United Nations to consider the principle of equal rights and self-determination of people.
Self-determination explicitly recognises the right of all people to determine their political, economic, social, and cultural destiny without the interference of any external factors. There were seven principles in this Declaration. One of them is the principle of equal rights and self-determination of people which says “All people have the absolute legal right to determine their political status and pursue their own economic, social and cultural development and every nation must respect and recognize this right of people.” The right to self-determination (an individual’s right to determine their own political, economical and social destiny) is available to all including minorities, refugees, indigenous and every such community that has a unique culture. The application of the right to self-determination has been very controversial. It may vary from political independence to full integration within a state.
How did the concept of self-determination evolve – historical background
The concept of self-determination originated from the American Declaration of Independence, 1789, and was repeated in the French Revolution by the French National Assembly on 17th November 1792. These uprisings established the states which would give security to the unalienable rights of their people. At that time it was recognised as one of the important factors of democratic entitlement. The rise of modern democratic entitlement was born out of the Versailles Peace Conference of 1919. This conference was an attempt to correct the mistake of the Congress of Vienna when they made maps for Europe and did not consider a few minorities of states. After this conference American President Woodrow Wilson showed his concerns towards the minorities as initially in the conference of Vienna, it did not give any representation or consideration to minorities.
Woodrow Wilson – the father of modern self-determination
Woodrow Wilson is known as the father of “modern self-determination”. He is the one who has popularized this concept during the second world war. He presented fourteen famous points to Congress. Since the time of Woodrow Wilson, the meaning and usage of this concept have become broader and changed. Woodrow Wilson was of the view that after The Great War the identifiable nations should govern themselves and colonisation should be removed from the world. This self-determination has given the power to people to have the choice to select their type of government.
The United Nations Charter
In 1944 the Dumbarton Oaks Conference took place. It was the first attempt by Allies to make an international organization in the aftermath of the Second World War. Later in 1945, the United Nations Conference on the International Organisation took place in San Francisco. In this conference, the Soviet Union proposed and emphasised the ideology of self-determination. This proposal was welcomed by the United States, United Kingdom, and France and as a result of it, the ideology encompassed by the term self-determination. With the establishment of the United Nations, the concept of self-determination took birth out of it to end colonialism.
Article 1 (Paragraph 2) and Article 55 of the Charter of the United Nations explains the principle of self-determination. The inclusion of the concept of self-determination in the United Nations Charter gives it universal recognition as fundamental to establish peace and maintain amicable relations among states.
This concept faded during the 1960s and 1970s because of anti-colonial movements. But later it again gained roots in democratic countries.
Aspects of self-determination
There are two aspects of self-determination:
External self-determination
It is the right of people to determine their international political status through establishing their independent state or through getting independence from alien domination or through integrating with an existing state.
Internal self-determination
It comes into the picture once people have got statehood. So, internal self-determination is the right of people of a state to choose their economic, political and social system without any external interference.
Role of International Law in perceiving the concept of self-determination
Self-determination emerges as one of the most powerful concepts in modern international politics. To understand the concept of self-determination under International Law, it is important to outline the fundamental elements of the principle of self-determination. This concept is accepted by major powerful countries like the United States, the United Kingdom and then this concept is included under the United Nations Charter.
Essentials for the right to self-determination
A group of people can practice their right to self-determination when they have the following circumstances:
- When they establish an independent or sovereign state; or
- When they have independently associated with another state; or
- When they have freely integrated with another state while expressing their will to do so.
Who has the right to self-determination?
The right to self-determination is given to all people by International Law. The term “all people” is still open to multiple interpretations. The right to self-determination is associated with “all people” but not with “everyone”, which denotes that it is a collective right, not a right given to individuals. But there is a question of whether minorities come under the preview of the term “all people”. The right to self-determination is generally given to “people”, not to the “minorities”.
Different rights are given to different individuals. Whether a group is considered as people or minorities will determine what kind of rights will be attributed to them. Under International Law, the term “people” does not generally include the term minority.
Minorities and concept of self-determination
A UN report conducted by Francesco Caportorti on the topic titled as Study on the Rights of Persons belonging to ethnic, religious and linguistic minorities defined the term minority as followed :
“A group which is numerically inferior to the rest of the population of a state and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics which differ from the rest of the population who, if only implicitly, maintain a sense of solidarity, directed towards preserving their culture, traditions, religion and language.”
Minorities are not covered under Article 1 of ICCPR which describes self-determination as the right of people. Modern International Law has given three collective human rights to people: the right to physical existence; the right to self-determination and the right to natural resources. Similarly, two collective human rights are given to minorities under International Law; the right to physical existence and the right to preserve a desperate identity. The crucial difference between people and minorities is the right to self-determination.
Although different rights are given to minorities and people, International Law does not provide any legal or actual means of distinguishing between these two. A chunk of people, who represents a portion of people separated from the territorial nation of their larger group, is a minority. But when we consider the ethnic group of people which does not possess any territory or nation of their own, then making a difference between people and minority becomes more complicated. The problem in applying the right to self-determination to minorities is the vague nature of its application. So many reports and cases consider that minorities are not people. But in the present world, minorities continue to follow the path of self-determination and states continue to deny this.
The need to strike a fair balance between the interests of minorities and the interests of other people
Human rights are not absolute and they should be interpreted and balanced according to the needs of the communities and communal aims. Different rights are attributed to different types of individuals and communities. European courts practice the concept of balancing human rights. The cultural rights i.e., the rights to preserve their own culture and identity are implicit in the right of self-determination as they are in minorities’ rights.
Minorities’ rights might protect the culture, uniqueness or some key features of human identity but it also tends to divide people among different communities, races create insiders and outsiders. The civil and political freedom of minorities is more often interfered with than those of other majority people this is why minorities face various forms of discrimination and marginalization.
The “United Nations Minority Declaration” cleared that right of self-determination is also for the people who belong to minorities. UN minority Declaration confirms non-discrimination and active participation of people in political as well as public life. It is mentioned in the UN minority Declaration that the aim of giving the right of self-determination to minorities is to provide equal distribution of resources to minorities to achieve the aims of the development of their cultures, languages, religions, traditions and customs. The Declaration has taken these steps to protect the cultural rights of minorities.
The future trends of International Law in self-determination
During the initial stage of self-desulfation, the meaning and object were different and in the present time its meaning is changed and developed according to the need of the present time. Initially, the American Declaration was used to refer to the idea of the legitimacy of the government of a state in the international society of states. But a subtle change took place in the meaning and usage of this term during Woodrow Wilson’s time. Modern literature says that self-determination is the process by which secessionist groups can get entry into the international society of states by taking them away from the state that does not represent them. During the early twenties, self-determination developed in such a manner to create a right to independence for the people who are under alien dominance or people of non-self-governing territories.
Conclusion
The right to self-determination is a powerful tool given by International Law to the nations and people. It has been established that the right to self-determination is a legal right under International Law and human right law, but the application of the right to self-determination is still vague. So the application of the right of self-determination creates a major hotchpotch in the world as it brings both positive and negative consequences. It gives territory and rights to people but at the same time, it divides people into multiple groups. Therefore, the principle of self-determination needs to be practical for it to be used more efficiently and properly. But, self-determination is indeed the need of time as modern conflicts are more about intrastate issues. As of now, the issues between Israel and Palestine are going on.
References
- https://www.researchgate.net/publication/329153669_The_basis_of_right_to_Self_determination
- http://repository.law.umich.edu/mjil/vol13/iss1/7/
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
