Exploring the boundaries of international law
Exploring the boundaries of international law

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Exploring the boundaries of international law

2.4 Self-determination

Entities seeking recognition often use the principle of self-determination as a justification for the creation of a new state or government. The concept was inserted into the UN Declaration on the Granting of Independence to Colonial Countries and Peoples 1960, adopted by UN General Assembly Resolution 1514 (XV) of 14 December 1960. Former colonial territories gained the right to independence by virtue of this principle (see Box 3).

Box 3 UN Declaration on the Granting of Independence to Colonial Countries and Peoples 1960

The Declaration declares that:

  1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.
  2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
  3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.
  4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.
  5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.
  6. 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.
  7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.

The words in Paragraph 2 of this declaration were subsequently incorporated into Article 1 of the UN International Covenant of Civil and Political Rights (ICCPR) 1966 and Article 1 of the UN International Covenant of Economic, Social and Cultural Rights (ICESCR) 1966.

Self-determination is now a well-established principle of customary international law. The implications of the right of self-determination extend beyond the conventional colonial independence situations. Distinct ethnic and cultural groups within a state have relied on the right of self-determination to declare their independence from the existing state and assert statehood. In the case of the former federal state of Yugoslavia, the existing federation dissolved as different federal provinces, such as Croatia and Slovenia, each proclaimed sovereignty. More commonly in these situations, secession occurs; in this case the original state remains while the part claiming independence secedes and becomes a new state. The declaration of the Turkish Republic of Northern Cyprus is an example of an attempted secession from the parent state: the Republic of Cyprus.

Considerable uncertainty surrounds the right of self-determination. The interpretation of ‘all peoples’ is unclear; for instance, do ‘peoples’ need to be defined by ethnicity and/or geography? If so, what about citizens of a multi-ethnic state: can they be peoples? Does the claim to self-determination need to be legitimate in international law? What happens if it is made by force, as was the case with the Turkish military invasion of Northern Cyprus and the subsequent declaration of the Turkish Republic of Northern Cyprus?

Would a right of self-determination trump any claim that the state may have to ensure its continued existence? In other words: is it in effect a right of secession? If so, then it would seem that the right of self-determination has the potential to undermine the integrity of the state in international law. Aggrieved groups within states would be encouraged to make claims to secession that may be unrealistic, encouraging internal instability in many states. There is also concern for the possible political and economic implications for global stability of a proliferation of micro-states, as it is likely that international consensus would be much harder to achieve. A narrower interpretation of self-determination is preferred by many (see Box 4).

Box 4 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, passed by UN General Assembly Resolution 2625 of 24 October 1970 (commonly known as the Friendly Relations Declaration)

The Friendly Relations Declaration declares that:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

(p. 124)

The Friendly Relations Declaration indicates that the right of self-determination is not a right of secession, and is limited to the self-government of peoples or internal self-determination rather than being a right of external self-determination. However, this is caveated by the requirement that existing states respect the rights and the self-determination of peoples. It is asserted that where a state does not respect internal self-determination, people have recourse to what is referred to as ‘remedial’ secession and external self-determination may be an option.

The Arbitration Commission of the EC Conference on Yugoslavia 1991–93 (often called the Badinter Commission, after its Chair, Robert Badinter), which dealt with matters arising after the dissolution of the federal state of Yugoslavia, provided their opinion on the nature of self-determination.

Activity 3

Read Opinion No. 2 of the Arbitration Commission, EC Conference on Yugoslavia, in Pellet, A. (1992) ‘The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples’, European Journal of International Law, vol. 92, no. 1, pp. 183–4 [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] , and consider its wider implications for the principle of self-determination.

Comment

This Opinion has a particular application in that it relates to the position of the Serbian minorities in Croatia and Bosnia–Herzegovina. In this the Commission adopted a narrow view of the right of self-determination; it relates to the right of groups to be recognised within a state and the right of individuals to choose to belong to that group. This includes, if appropriate, the right to choose their nationality. In this more narrow form of self-determination; minority groups have the right for their culture, social organisation and religions to be respected by the state of which they are a part.

On a broader level, the Badinter Commission accepted the right of self-determination for the former territories of the federal state of Yugoslavia, which fulfilled the traditional requirements of statehood.

The moral imperative for the right of self-determination is difficult to deny. However, the adoption of a wide interpretation of the right of self-determination risks encouraging secessionist movements, with the consequent proliferation of micro-states.

The recognition of the secession of a new state/government has the potential to convert an internal rebellion or civil war into an international conflict under which states are bound by the UN Charter prohibitions on the use or threat of force.

Example of secession: Republic of Kosovo

Kosovo was an autonomous province until 1989. Its population is approximately two million, of which some 90% are ethnic Albanians with a Serb minority. After the dissolution of Yugoslavia the province became part of Montenegro. Albanians in Kosovo agitated for independence throughout the 1990s and this was suppressed with military action by the Serbs. As a consequence NATO intervened with air strikes to force the withdrawal of Serbian forces. The UN Security Council passed Resolution 1244 of 10 June 1999 authorising the UN administration of the region and a framework for resolving the political and legal status of the region.

The negotiations between Serbia and Kosovo failed to reach any agreement and the parliament of Kosovo declared independence from Serbia in February 2008.

The USA, UK, France, Germany and many other states recognised Kosovo as a state. At the time of writing (November 2012) it had received some 95 diplomatic recognitions. In 2008 (18 February) the US Secretary of State, Condoleezza Rice, stressed that it was a unique situation:

The unusual combination of factors found in the Kosovo situation – including the context of Yugoslavia’s breakup, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration – are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as a precedent for any other situation in the world today.

(Rice, 2008)

However, this view was not held by the Russia who regarded it as breach of international law. Serbia and Montenegro challenged the validity of Kosovo’s independence and the UN General Assembly requested an advisory opinion from the ICJ.

Activity 4

Read Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Request for an Advisory Opinion) ICJ Rep 2010, 141. You need to focus only on Section IV: ‘The Question Whether The Declaration Of Independence Is In Accordance With International Law’ at paragraph 78.

Consider how the ICJ answered the question asked of it: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’ (paragraph 1).

Comment

The ICJ considered that state practice did not indicate the existence of a prohibition of declarations of independence. In the latter part of the twentieth century the law of self-determination had developed to recognise the right of independence of non-self-governing territories and there were also instances of declarations outside this context.

The ICJ rejected the argument that the prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity enshrined in Article 2(4) UN Charter: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’, as the scope of the principle is limited to relations between states.

The ICJ also rejected the argument that a general principle could be derived from the condemnation by the UN Security Council of other declarations of independence such as Southern Rhodesia and Northern Cyprus. These determinations had been made in response to a particular exceptional situation rather than because of a violation of a norm of international law. In paragraph 84 the ICJ stated that the Kosovo declaration of independence of 17 February 2008 did not violate international law.

The ICJ acknowledged the argument that the population of Kosovo may be entitled to independence as the circumstances provided a right to remedial secession but did not provide their opinion on the matter as it was not part of the question asked of it.

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