This article is written by Shristi Suman, from Symbiosis Law School, Hyderabad. In this article, the importance of the right to self-determination has been discussed.
The right to self-determination refers to the right of an individual to determine his own destiny. The right allows people to choose their own political status and to determine their own form of economic, cultural and social development. Exercise of this right can result in a variety of different outcomes ranging from political independence to full integration within a state. The importance of the right lies in the right of people to make a choice. In practice, however, the possible outcome of the exercise of self-determination often determines the attitude of governments towards the actual claim by a person or nation. Nevertheless, the right to self-determination is a right that is recognized in international law as a right of the process belonging to people and not to states or governments.
What is Self-determination in International Law?
Article I of the Charter of the United Nations explains the principle of self-determination. The principle was first incorporated under the 1941 Atlantic Charter and the Dumbarton Oaks proposals which subsequently evolved into the United Nations Charter. Its inclusion in the United Nations Charter marks the universal recognition of the principle of self-determination as a fundamental to the maintenance of friendly relations and peace among the states. It is a right which is recognized in the first article common to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which both entered into force in 1976. Paragraph 1 of this Article provides that every person has the right to self-determination. By virtue of the said right, people can freely determine their own political status and freely pursue their economic, social and cultural development.
Criteria for the right to self-determination
It can be said that an individual has realized his right to self-determination when he either:
(1) establishes a sovereign and independent state;
(2) freely associates with another state; or
(3) have freely integrated with another state after expressing their will to do so.
The definition of realization of self-determination was confirmed in the Declaration of Friendly Relations.
Instruments protecting the right to self-determination
The right to self-determination of the people is also recognized under other international and regional instruments. The Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the United Nations General Assembly in 1970, the Helsinki Final Act adopted by the Conference on Security and Co-operation in Europe in the year 1975, the African Charter of Human and Peoples Rights of 1981, the CSCE Charter of Paris for a New Europe adopted in the year 1990, and the Vienna Declaration and Programme of Action of 1993 also includes the concept of the right to self-determination. Furthermore, the scope and content of the right to self-determination have been elaborately explained by the United Nations Human Rights Committee.
The right to self-determination which has been included in the International Covenants on Human Rights and in the Vienna Declaration and Programme of Action emphasizes that the right to self-determination is an integral part of human rights law and it has a universal application. At the same time, the right of self-determination can be said to be a fundamental right which is necessary for the enjoyment of other human rights and fundamental freedoms which include their civil, political, economic, social and cultural rights.
Impact of Self-Determination Claims on Other Human Rights
Whenever self-determination is involved, a confusion between political goals and basic human rights norms, humanitarian issues evolve. There is also a potential impact of self-determination that it claims to encourage violent conflict. Although it is a truism, it also needs to be reiterated that more human rights are violated during the time of wars than at any other time. If the policymakers do not come to a better understanding of how to respond to the claims for self-determination, then such claims are likely to increase. It is also possible that the number of violent conflicts increases, and if the conflicts will increase then it will have a direct impact on the entire gamut of international human rights. At the same time, if human rights alone are concentrated upon then it is possible that all the human rights that we want to protect can be protected and violence can be curbed. By doing so it is not possible that the disputes over self-determination will disappear, but they can be resolved by the countries.
If one creates a genuinely democratic rights-respecting regime, it is less likely that people will want to leave it. If, however, they do leave it, it is also more likely that any separation will occur peacefully. This approach suggests that even when self-determination is purportedly the issue, it is better to try to address denials of human rights before trying to address the denial of so-called self-determination. As a practical matter, a nongovernmental organization or human rights activist is more likely to be able to influence a government by focusing on respect for human rights than by entering the quagmire of self-determination and secession. I think that one is also more likely to protect what we would all agree are human rights – for example, physical integrity, use of language, and protection of culture without confusing those rights with political goals. Even if we may share some of the latter goals, it is essential to keep them distinct from the universally recognized and legally articulated provisions of international human rights law.
The right to self-determination and the anti-colonial struggle
By the virtue of Universal Declaration of Human Rights, any person can freely determine his/her political status and can pursue social, cultural and economic development. There was not much controversy when this principle was applied for the nations struggling for liberation at the time of colonial rule. After the post-war period, colonial rule had lost its morality, ethics and political legitimacy. Colonial rule handed over the independence to the colonies after violent or nonviolent protests and struggles made by the people living in the colonies for their right of self-determination. Till the time the colonial rule was in operation, the right of self-determination was synonymous with independence. In some countries, ethnic consciousness, inequitable growth, the concentration of political power or some other grievances of the people has encouraged them to seek for the right of self-determination. But after decolonization, the right of self-determination became controversial either through constitutional or non- constitutional means or through the support of a foreign power. In the contexts of decolonization and anti-racism movements in the twentieth century, the common aspect of human rights was the right to self-determination.
The right to self-determination in relation to economic development
Article 1(2) of both covenants on Human Rights (1966) states that all people may freely dispose of their wealth for the benefit of International economic cooperation which is based on mutual benefit and International Law. People cannot be deprived of their own basis of profit. Every individual has a right to economic independence. Article 1 was drafted at that time when colonial rule was prevalent and people were struggling for independence. When people became independent they realized that only political independence is not enough and economic independence is also necessary for their growth and development. Without economic independence, political independence is of no use. Every individual has the right to exist in the real world. The right to self-determination is provided to the citizens in developing countries to achieve economic independence. The right to economic self-determination opened the gates for the national and international transformation of the developing countries both economically and socially. Every person is entitled to have the right to economic self-determination and political self-determination. If both these self-determination rights are not given to people, then once more the colonial rule will become prevalent in the country. The economic self-determination provides the ability to the people to have the mineral resources and usage of those minerals in their hands. This right has been dominated by other rights of self-determination for years. Economic self-determination is now also recognized as discourse on democratization, anti-colonialism, and liberalization.
Right to self-determination in relation to cultural development
Self-determination consists mainly of two components i.e. participation, and identity. Both Self-determination and cultural rights are exercised simultaneously. The most neglected human rights are cultural rights in the world. It is announced by the International Court of Justice that the right to people’s self-determination is an obligation to the entire community. Cultural rights came into existence primarily for the vulnerable groups, colonized and native people. It is for the groups whose right to self-determination is denied and suppressed by the world for several years. Any interpretation of the right to self-determination can be understood by referring to the Covenant of the League of Nations according to the peace treaties signed by the countries prior to the First World War. There was legal protection of cultural rights by the international community. The concept was moved only when the right to self-determination of cultural rights was being treated more than a political conception and human rights had not yet entered the public domain. The provisions made were not applicable for the entire world but it only covered Central and East Europe, and German and Ottoman territories. The International Commission of Jurists found the common object between the right to self-determination and protection of minorities. When the Cold War ended in 1989, then the exercise of the right to self-determination and the advantages of the minority population was reconsidered. Since several new States became a part of the international community by 1989, ICJ for the first time recognized the ‘right to self-determination beyond colonialism’. In the UN Minority Declaration, it is mentioned that self-determination is also for the people who belong to the minority in order to preserve and develop their group identity. UN Minority Declaration confirms non- discrimination and effective participation of people in both public and political life. It is also mentioned in the declaration that the aim of the right is to provide equal distribution of resources to minorities to achieve the aims of the development of their culture, language, religion, traditions, and customs. The declaration has taken certain measures to protect the cultural rights of minorities.
Self-determination is the ultimate safeguard protection of the identity of particular groups and the cultural rights of their members. The right to self-determination is a powerful tool in making human rights available in all mineral-rich countries. The right to self-determination faded during the 1960s and 1970s because of anti-colonialism movements but now it has been again established in democratic countries and should continue to survive as it is one of the most important tools for the progress of a democratic nation. The right to self-determination is a fundamental tool for understanding human rights. The attitude towards the right to self-determination changed rapidly after the Cold War between countries. The right to self-determination has the ability to implement and provide basic fundamental human rights to people and it also protects the natural resources of the country. It is also contended that if there would be a violation of the right to self-determination, it will also have adverse effects on other human rights and will in return diminish the people’s ability to enjoy the other basic human rights. Even after knowing the importance of the right to self-determination in one’s life, this right has still not taken its rightful place in the converse of human rights. The right to self-determination provides alternative theoretical justifications of using the minerals of the country in which there would be very less exploitation of minerals with maximum profits. The right to self-determination has the power to take legal action against governments or international sectors who are exploiting the resources of the countries in unreasonable ways. The right to self-determination paves the way for human rights which should not befall at the curb. The right to self-determination covers mainly three concepts: self-rule, anti-colonialism, and fulfillment of all human rights and also, the right to self-determination correct all the inequalities established at the time of colonialism.
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