General

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This Blog is written by Jay Gajbhiye from National Law University, Odisha. Edited by Yash Jain.

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INTRODUCTION

Essentially, individuals are entitled to self-determination to decide their destiny. In specific, the theory encourages individuals to chose their political position and decide their ways of economic, cultural, and social growth. The exercise of this right can lead to different results from political autonomy to full integration of the State. The “right of choice” is important so that the result of an individual’s choice must “not affect the existence of the right to choose”. However, in practice, the possible result of a self-determination exercise often determines the attitude of governments concerning their real claims [1]. While states can more readily recognize the demands for cultural autonomy, their claims for independence are more likely to be rejected. However, in international law, “the right to self-determination is recognized as a right of the process of people and not states or governments”.

First, the freedom of self-determination for all communities was enshrined in the United Nations Charter. However, it was the subject of extensive discussion and controversy. Both the content of the right and who can affirm that right, continue to evolve in international law.

The right to self-determination is one of the international law’s most important yet controversial principles. It has served as a “powerful slogan” and a critical argument for the independence of many peoples, particularly colonial independence. “Indeed, anytime the right to self-determination comes up, the colonial sense is what is particularly relevant, as there are several components of the right to self-determination, so it has several facets”. Interestingly, many of the most important and basic principles of public international law are linked to this right and it embodies the concept of the people’s right to determine their destiny without external interference or subjugation, assuming all peoples are equal.

First, the legislation on self-determination complements the basic values of modern foreign law such as State autonomy, fair rights of States, and territorial integrity, including a prohibition on coercion and a non-intervention policy. The self-determination as a slogan raises the demand for secession or freedom from foreign domination by an already sovereign State entity. This right occurs not only under public international law but also under international human rights law where it requires the equitable treatment of communities within a society, among others.

Secondly, there is economic and political autonomy which is closely linked to the principles of non-interference and non-intervention. The term Neo-colonialism is often used in the light of colonialism and its remains today.

Thirdly, in a variety of international law situations such as issues relating to freedom movements, agitators, aid, and assistance or action against these groups and movements, “the right to self-determination is used as an argument”. In short, in many situations, the right to self-determination is very important in the world.

SIGNIFICANCE OF THIS DEVELOPMENT

The sense of self-determination concept has long been misunderstood or ignored and consequently, our appreciation for self-determination is ingrained. Here we differ from Allen Buchanan, who maintains that autonomy is just a remedial right against an unjust government, but we believe that while potential injustice is a constraint on self-determination, a fundamental “maker”‘ of the interests of individuals is not a necessary condition- an interest in authority of the institutions that govern one’s own life. The implementation of arbitrary requirements by the State that puts this interest in danger unless these requirements match the principles and responsibilities of the citizen.

While the “maker” interest is an interest of individuals, membership of an individual in a self-determining group helps to the extent that he confirms his participation. Owing to the value of this “maker” concern, a great system is not only just; it is also independent, i.e. it depends on the people’s collective will. We believe that the reason for taking alienation seriously is because unwanted coercion can threaten Kantian independence if it is not essential to uphold just institutions. If there is a reason, just, but less alienating institutional alternative available, then we have a reason to establish that arrangement by the respect of Kantian independence.

IMPACT

“The principle of self-determination is based on the rights of a people in a country to make their own decisions without international interference”.

This principle paves the way for people to make decisions regarding their political, economic, and socio-cultural status. It paves the way for freedom, especially when making political decisions that are core to the future of the nation. According to Knop “the importance of self-determination lies in the right of choice so that the outcome of a people’s choice should not affect the existence of the right to make a choice”.

This means that the policies being laid down in the government with regards to decision making should ensure that the citizens are involved in decision-making processes, hence democracy.

As a principle, self-determination played a key role in the process of bringing Europe back to life after the First World War. At this time, however, it had not been included in the UN constitution and had not been well established. After the establishment of the principle, it was realized that it was the power behind the refurbishment of this continent.

In addition to these instruments, the principle of self-determination is recognized in other international instruments such as the declaration of “international law principles” on friendly relations and cooperation among security states, the “Helsinki final act”, “the African charter of human and peoples’ rights”, “the OSCE Charter of Paris for a new Europe”, the “Vienna declaration and program of action and the international court of justice”.

Being included in these documents was necessary for insisting on the importance of the self-determination principle especially with regards to the universal laws on human rights. It is considered that compliance with this principle paves the way for the development of other political, economic, civil, and socio-cultural freedoms. This makes self-determination a tremendous tool for the independence of many countries.

Owing to this fact, it is fair to consider self-determination in a wide scope of resulting factors depending on the situation at hand, the needs to be fulfilled, the interests of the people concerned and conditions thereof. Self-determination is one that is well recognized in international law and one that is applicable universally.

The implementation of self-determination as a human right’s element has made a considerable contribution to the inhibition and resolution of skirmishes. This implements self-determination as a continuous process in the race to attaining a near-perfect rule on the issue of humanitarian security.

In preventing and resolving conflicts, there should be a proactive commitment from the parties involved and the absence of this is what triggers the actions taken under the right of self-determination.

Being an ongoing process, self-determination paves way for the anticipated changes to take place without there being any allegations of forceful actions. When implementing the right to self-determination, it is also pertinent to note that just like any other law, this right is not absolute. If the claim, of this right clashes with other international laws, then the options are weighed to determine which one is more inclined to the ultimate goal of maintaining universal harmony and security.

PROVISION IN THE LEGISLATURE

“Article I of the Charter of the United Nations” highlights the “principle of self-determination”. It had already been expressly advocated by the US President, Woodrow Wilson, Lenin, and others and was the driving philosophy for Europe’s restoration after the First World War. The concept had been contained in the “Atlantic Charter of 1941” and the “Dumbarton Oaks” ideas that emerged in the UN Charter [9]. Its inclusion in the UN Charter recognizes the principle of “universal recognition as fundamental” to maintain friendly relations and peace between countries. The “International Treaty on Civil and Political Rights” [10] and the “International Covenant on Material, Social and Cultural Rights” [11], which came into force in 1976, acknowledge them as freedoms for all peoples. Para 1 of this Article provides:

“All peoples have the right to self-determination. Under this right, they freely determine their political status and freely pursue their economic, social, and cultural development”.

The right to self-determination of peoples is recognized in many other international and regional instruments, including the “Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States adopted by the UN General Assembly in 1970”, “the Helsinki Final Act [5]” adopted by the “Conference on Security and Co-operation in Europe (CSCE) [6] in 1975”, “the African Charter of Human and Peoples’ Rights of 1981”, “the CSCE Charter of Paris for a New Europe adopted in 1990”, and the “Vienna Declaration and Programme of Action of 1993” [7]. It has been affirmed by the International Court of Justice [8] in the “Namibia case”, “the Western Sahara case”, and “the East Timor case”, in which its “erga omnes” character was confirmed. Furthermore, the scope and content of the right to self-determination have been elaborated upon by the “UN Human Rights Committee”, and “the Committee on the Elimination of Racial Discrimination”, and numerous leading international jurists [1].

The presence in the “International Covenants on Human Rights” as well as in the “Vienna Declaration and Programme of action,” as stated above, of the right to self-determination stresses that self-determination constitutes an essential part of a generally applicable human rights statute. At the same time, the respect of the right of self-determination is an essential requirement for the “enjoyment of other human and fundamental rights, be they civil, political, economic, social, or cultural”.

CASE LAWS

Right of Passage over Indian Territory (Portugal v. India)

The Portuguese possessions in India comprised the two enclaves of Dadra and Nagar-Haveli, which were under an autonomous local administration in the middle of 1954. Portugal asserted that, to a degree appropriate for the practice of its sovereignty and subject to the rule and control of India, it had the right of entry to these enclaves and between one and the other. They also argued that India had prevented them from exercising this right in July 1954, contrary to previous practices and that the situation was to be remedied. “A first judgment, given on 26 November 1957, on the Court’s authority, was challenged by India”. Four of India’s preliminary objections were rejected and the other two were attached to the merits. In a second judgment delivered on 12 April 1960, the Court rejected the remaining two preliminary objections and ruled on Portugal’s claims, which India maintained were unfounded. “The Court found that Portugal had in 1954, the right of passage claimed by it but that such right did not extend to armed forces, armed police, arms and ammunition, and that India had not acted contrary to the obligations imposed on it by the existence of that right”.

Northern Cameroons (Cameroon v. The United Kingdom)

The Republic of Cameroon argued that, under British rule, the United Kingdom had breached the Trusteeship Treaty for the Territory of the Cameroons by imposing certain requirements that the Trusteeship had contributed to the annexation of Northern Cameroons to Nigeria rather than to the Republic of Cameroon, whose region was formerly ruled by France and to which the South was attached. The United Kingdom presented the Court’s provisional objections. “The Court found that to adjudicate on the merits would be devoid of purpose since, as the Republic of Cameroon had recognized, its judgment thereon could not affect the decision of the General Assembly providing for the attachment of the Northern Cameroons to Nigeria following the results of a plebiscite supervised by the United Nations”. “Accordingly, by a Judgment of 2 December 1963, the Court found that it could not adjudicate upon the merits of the claim”.

Frontier Dispute (Burkina Faso/Republic of Mali)

Burkina Faso and Mali tabled a border dispute question before the International Court of Justice. Throughout the case of state transition, a duty arose to uphold pre-existing external boundaries. The argument was that, in the event of state transition, is there a duty to honor current external boundaries? “It was held that an obligation existed to respect pre-existing international frontiers in the event of state succession, whether or not, the rule is the rule, and is expressed in the form of uti possidetis”. The absence of the concept since the states proclaimed such freedom in 1960 does not prevent its present use.

SOVEREIGNTY, TERRITORIAL INTEGRITY, AND RIGHT OF SELF-DETERMINATION IN INDIA

India was one of those countries that insisted that the “International Bill of Human Rights”, adopted by the United Nations [4] back in 1976, be recognized as the right of all people to self-determination for the rights set out in the “Universal Declaration of Human Rights proclaimed by the General Assembly in 1948”.

India is currently among those countries that no longer adhere to the right of independence of populations in their territory, and its powerful, non-official opinion. The “emphasis on the sovereignty and territorial integrity of nations” has been shifted. The change in the interpretation of the right of self-determination in Kashmir is more prominent, or has the shift taken place due to the self-determination movement in Kashmir?

Leaders/Members, particularly Marxists, of the “Indian Nationalist Movement” had championed their people’s rights before independence. This was one of the main reasons why the Kashmiri people in 1947 had refused to recognize India. Pakistan was later tempted to become its champion by their alienation from India. If India has continuously valued the correct nature, separation could not have taken place.

For “sovereignty is limited not only by the right of other states and the innumerable political and economic ties that bind them but also by a legitimate international interest in human rights, the environment, and other issues formerly considered the sole jurisdiction of the state”. The international community fails to recognize a sovereign state’s claim to ethnic cleansing, for example. While national states express their authority freely in their broader supra-national identity, sub-national identity is more fulfilled. Globalization and Localisation are jointly increasing [2].

In countries like Britain, Spain, Italy, and France, the “European Union facilitated the process of regional autonomy”. SAARC could also at least partly respond to transnational and ethnic identity assertion in India, Pakistan, Sri Lanka, Bangladesh, Bhutan, and Nepal.

FAILURE OF THE INDIAN DEMOCRACY

Many sovereign countries cannot undertake physical, social, and cultural growth. The pure improvement of political standing can not guarantee their independence to achieve certain objectives. If people in such countries can have freedom, would there still be a need for self-determination? Particularly where the self-determination campaign does not trust in the democratic principles, it is intolerant, racist, it is extremist as has occurred in certain instances. In these situations, autonomy and federalism will satisfy better than separation or independence for the need for self-determination.

It was through democracy and federalism that “Tamil nationalism”, more ferocious and more secession than “Kashmiri nationalism”, was reconciled to Indian nationalism. Above all, Indian democracy and federalism in Kashmir’s independence have failed.

Ethnic identities are also evolved and built and are not only ascriptive. Throughout evolution, some dialects attain the status of languages. Some regions acquire their self-awareness for geographical, cultural, and other reasons. “Over time, such emerging identities can look for self-determination and identity in every nation”. Since no identity can be entirely homogeneous and all identities have potential new identities, the separation process of ethnic identity should not be endless? As Strobe Talbot has argued, “If this concept is carried to an extreme, it means every one of the thousands of nationalities on earth should have its state”.

ANALYSIS

The right to self-determination has become an extremely valid claim for people’s rights and autonomy. This right was initially meant to protect those who depended on imperial powers, but now it has become a justification for everyone, as in the case of indigenous or non-colonized citizens, who see themselves as a country. This notion of the right to self-determination is the path to a better society. In contrast, the rise of various global problems seems to require international political institutions to resolve these problems, most likely leading to more homogeneous world order [3]. Although both patterns have good reasons for making them permanent, it is not clear how they coexist.

CONCLUSION

People may be said to have realized their self-determination rights by (1) “having established a sovereign and independent state”; (2) “being freely associated to another state”, or (3) “having freely expressed their willingness to do so, being integrated into another state”. However, this is meaningless if external intervention is involved. Thus, the right to self-determination, not only places upon States the obligation to respect and promote the right, but also the obligation to refrain from all forcible actions which take away the benefit of such rights from people. “The use of force, in particular, to prevent an individual’s right to self-determination from being exercised, is considered illegal and has been consistently condemned by the international community”. The obligations of the self-determination principle were recognized as erga omnes for the international community as a whole.

The concept of self-determination is a very powerful one. As Wolfgang Danspeckgruber puts it: “No other concept is as powerful, visceral, emotional, unruly, and as steep in creating aspirations and hopes as self-determination. It evokes emotions, expectations, and fears which often lead to conflict and bloodshed. Some experts argued that the title holders should be or are limited in international law. Others believed in the need to limit the possible outcome for all or categories of titleholders”.

The safest way is simply to understand the right to self-determination in its widest context as a mechanism that creates a vast variety of potential outcomes depending on the conditions, desires, expectations, and circumstances of the parties involved. International law recognizes the premise and constitutional right of all nations to self-determination. The belief that countries, applicant groups, and all others with self-determining interests recognize the potential of the human interests approach to change their relationship with the concept of self-determination to be mutually beneficial. The emergence of communities of human rights in the domestic sense profoundly strengthens universal legal principles on self-determination and civil rights. In sum, “National aspirations must be respected; people may be dominated and governed only by their consent. Self-determination is not a mere phrase; it is an imperative principle of action”. Through definition, self-determination implies the right to take your own decisions without any perceived coercion. All are entitled to self-determination. Under this right, “they shall decide their political status and freely follow their economic, social, and cultural growth”.

REFERENCES

[1] https://unpo.org/article/4957

[2]https://www.epw.in/journal/2001/04/commentary/sovereignty-territorial-integrity-and-right-self-determination.html

[3]http://www.scielo.org.mx/scielo.php?script=sci_arttext&pid=S1870-05782018000200085 &lng=pt&nrm=iso &tlng=pt

[4] https://www.un.org/en/about-un/

[5] https://history.state.gov/milestones/1969-1976/helsinki

[6] https://www.csce.gov/

[7] https://www.ohchr.org/en/professionalinterest/pages/vienna.aspx

[8] https://www.icj-cij.org/en

[9] https://www.un.org/en/charter-united-nations/

[10] https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[11] https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

‘Self-Determination’(UNPO, 21 September 2017) https://unpo.org/article/4957

The International Covenant on Civil and Political Rights opened for signature December 16, 1966, Art. 1 (1), 999 UNTS 171.

McCorquodale, Robert, Self-determination in international law, Vermont, 2000, p. xiii-xiv and Bring, 2002.

Buchanan, Allen (2004). ‘Justice, Legitimacy, and Self-Determination’ (Oxford: Oxford University Press).

Stilz, Anna (2015). “Decolonization and Self-Determination,” Social Philosophy and Policy 32:1

Knop, Karen. Diversity and Self-Determination in International Law, Cambridge, UK: Cambridge University Press, 2002. Print

Latin phrase which means “towards all” or “towards everyone”

Right of passage over Indian Territory (Portugal v India) [1960] ICJ Rep 6

Northen Cameroons ( Cameroon v The United Kingdom) [1963] ICJ Rep 15

Frontier Dispute ( Burkina Faso v Mali) 1986 I.C.J. 554

Latin for “as you possess under law”

Balraj Puri, ‘Sovereignty, Territorial Integrity and Right of Self-Determination’ (Jan, 2001) 36 EPW https://www.epw.in/journal/2001/04/commentary/sovereignty-territorial-integrity-and-right-self-determination.html.

Francisco Martinez Cruz, ‘The Right to Self-Determination of Peoples: Notes on its Compatibility With Three Models of Global Order’(Mexican Law Review, 2018) http://www.scielo.org.mx/scielo.php?script=sci_arttext&pid=S1870-05782018000200085&lng=pt&nrm=iso&tlng=pt

Cassese, Antonio, Self-Determination of Peoples – A Legal Reappraisal, Cambridge University Press, Cambridge, 1995.

Raic, David, Statehood and the Law of Self-Determination, Kluwer Law International, The Hague, 2002.