This article is written by Raslin Saluja, from KIIT School of Law, Bhubaneswar. This article attempts to analyse and explain the changes the right to self-determination has gone through over the years.
The right to self-determination of people and of national destiny is a collective human right acknowledged under the principles of international law. The right is entitled to all the people collectively as being part of a greater community, nation or state. The strict implementation of the right is also of immense significance for maintaining and preserving peace as has been reflected by political history.
Treaties such as the Peace of Westphalia, the Congress of Vienna, the Treaty of Versailles, the League of Nations, etc. serve as proof of their inability to establish and preserve peace due to lack of recognition of the right of self-determination of people and nations. The concept is as old as that of statehood and has witnessed dramatic modification from dealing with issues of decolonization to justifying the breakup of multi-ethnic states.
Nature and scope of the right to self-determination
Simply put, it is the right claimed by people to control their destiny despite such people not achieving statehood as per international law. In the more traditional times, statehood was the only element that could confer legal personality and its related rights and duties upon the group of people.
The right to self-determination is looked upon by people who feel that they have been unjustifiably excluded from the community of states as under international law. According to the United Nations General Assembly Resolution 1514 (1960), “All people have the right to self-determination; by virtue of that right they may freely determine their political status and freely pursue their economic, social and cultural development.”
This right complements the public international law principles like that of the sovereignty of states, the equality of states, and territorial integrity, including the prohibition of force and the principle of non-intervention. As for human rights, it contains equal rights of people within the state.
There are also economic and political aspects related to self-determination and principles of non-intervention and non-interference which aim to guarantee territorial integrity. It also looked upon liberation movements, rebels, aid, and assistance or intervention among these. It could be external or internal.
External in the sense of decolonization context which requires the state to take action and form their independent recognition and aid in people’s aspiration to become independent. Internally in a way by uplifting people to pursue their economic, social, and cultural development.
However, this raises a paradox as to how is international law supposed to recognize such a right which by its own norms, lacks such international existence. This also makes us question the acquisition and recognition of statehood. Though there is no universal definition of statehood as of today, the Convention on Rights and Duties of States provides the criteria for statehood as having:
- a permanent population;
- a defined territory;
- government; and
- the capacity to enter into relations with other states.
Though this has been disputed as it implicates a challenge to the stability of the international legal community as for applying the claims of legal rights of self-determination, these non-state group seekers have to appear as a state. However, there has been strong recognition and basis of these rights as seen in decisions of the International Court of Justice, resolutions of the United Nations General Assembly, state practice, and the writings of commentators.
Thus, the right to self-determination can be framed as the right of people who do not govern themselves, whose identities and desires cannot be ascertained.
Though the notion that people have the right to decide their own fate for livelihood, politics and territory has always been there, the right to self-determination was properly identified from the French revolution. Its inception took place in the nineteenth century merging two values of popular sovereignty and nationalist resentment.
It remained a foreign, radical principle largely witnessed through international law. During the revolutionary period in Europe and the time of Napoleon, people rather unified themselves exclusively and discretionarily which resulted in states not having a status in international laws until they were formed into a recognized state.
The late 1850s saw the emergence of exceptions in the principle of non-intervention into the state’s treatment of foreigners. The term was specifically found useful during World War I when the manipulators wanted to push their propaganda and gain an advantage over minority groups.
Early twentieth century
The term was first used publicly in 1918 by the United States President Woodrow Wilson to whom the concept is very closely identified. He urged this principle on European Concert remnants at the end of World War I.
It later became the basis of Versailles Peace Settlement in 1919. This principle was shaped by many ideas which evolved over the years to shape itself. Firstly, the idea of people being sovereign and not states’ subjects which were developed by the English, French, and American Revolutions, followed by the rule of legitimacy depends on the consent of the governed.
Secondly, state sovereignty emerged in international affairs as kingdoms became consolidated. Finally, ethnic nationalism was on the rise which outright threatened the European empires and led to their collapse in the twentieth century.
Post-war the president ordered that ethnically identifiable people would govern themselves. He himself preferred the term self-government rather than self-determination implying people have the right to select their own democratic government. His view of the ethnic minorities led to 3 main elements for the settlement that took place post-war.
A scheme where the identifiable people were accorded statehood, deciding the fate of the border areas that are disputed by plebiscite and groups that are too small to be dispersed to be able to get the benefit of either of the two options would get protection from special minorities regimes which will be supervised by the Council of the new League of Nations.
Though it was found to save the minorities, the application of these did not really reflect the acceptance of the self-determination principle as a legal obligation and failed to appear in the League of Nations covenant. Despite the criticism, the principle started to gain momentum and later was recognised as a right in international law.
End of World War I
After the end of World War I, the League of Nations was created which further created a mandate system to grant the minorities independence. Later, the League of Nations collapsed and after the end of World War II, the United Nations was created instead. When the UN was formed, the principle of self-determination had already been established internationally and was then included in the UN Charter which did not seem an obvious move as it still remained controversial at the early stages of its development.
Finally, due to the pressure of the Soviet Union, it was explicitly recognized and accepted in the UN Charter. By 1966, this right developed more and got accepted as a right under international law and started including the notion of human rights with the adoption of the two International Covenants on human rights.
Self-determination as a human right
Earlier the notion of human rights was completely ignored during the colonial times when everyone was divided by nationality from the king to his subjects. As the height of imperialism rose even in the 20th century, human rights were mercilessly violated in various regions of the world due to wars and disturbances (including the two World Wars) and the advent of dictatorial regimes with credos of class discrimination or racial discrimination. Universal acceptance towards human rights became widespread only after World Wars. In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights whose preamble states:
“…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…”
It declared that human rights are universal rights that are to be shared by all mankind, irrespective of any differences in race, national origin, religion, and class, which is the foundation of freedom, justice and peace in the world. To add to it was the International Covenant on Human Rights adopted by the UN General Assembly in 1966 which further defined in intricate detail the substance of human rights and also stipulated the obligations of each signatory state to promote the observance of human rights. This International Covenant on Human Rights is divided into “International Covenant on Economic, Social and Cultural Rights” (A Covenant) and “International Covenant on Civil and Political Rights” (B Covenant).
The principle of self-determination is recognized as a human right though there are other references in General Assembly resolutions, it has been proclaimed only in the two legally binding documents which are the two international covenants. Although the definition of the common Article 1 lacks the answers to several questions, some areas of it have been made clear through interpretation.
According to the Human Rights Committee, it has been made clear that the violation of it cannot be raised under the First Optional Protocol. The jurisprudence that has been developed around it also clarifies that this right is of people and not minorities.
This right is emphasized to this extent because it will secure the basic rights of people as a group. As for the twenty-first century, it can derive more meaningful content by considering two other human rights. These are the protection of the cultural, religious, linguistic and ethnic identity of people and the rights of the participation of individuals and groups in the economical and political matters of the country.
However, participation goes beyond democracy and recently, the belief of a new democratic era to have arrived has reinforced the participation. The definition of self-determination today as a suggestion should be to impose a limit/price on its exercise. It means that any groups which triumph in establishing a new state for them based on the principles of ethnicity, religion, language, or culture should then be willing to allow other such people to be able to exercise their right of self-determination.
Impact of self-determination on other human rights
It is to be noted that most violations of human rights have been during times of disturbance and war. Whenever the right of self-determination is involved, it has the potential to raise violent conflicts and a destructive confusion of political goals, basic human rights norms, and humanitarian issues. For that the policymakers need to be flexible enough to reach a better understanding for the effective response of such claims, otherwise, the count of violent conflicts will arise and have a direct impact on other international human rights.
The concept of self-determination has gone through some political upheaval. International stability can only be achieved when there is a certainty of definition and clear application of mind. The topic of self-determination will not disappear anytime soon as a potential issue of creating serious conflict. We still need to guard the issue and prevent its use as a symbol of the purely partisan political tool by the disaffected groups as well as the governments.
The issue has an emotional aspect to it and therefore appeals by the ethnic groups will always be likely to create an atmosphere in which violence of human rights would be greater. Although it does not on its own result in secession and independence, there is a fear by representative states in permitting a broad right to self-determination.
This fear must be remedied by the international system itself in order to establish stability and integrity. Developing a procedural model might help to reflect on the issues at hand giving the people and the nation a clear indication of where they are going and allow them to pose greater confidence in the system.
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