Paradigm shift in self determination under the UN regime

Rosseau, declared that 'man are born free, but every where he is in chain. This chain of slavery or domination led man to engage in war to free himself from human bondage. The American War of Independence and the French revolution was born out of this conviction.

Self determined gained recognition after the American 1775 and the French Revolution 1789 these revolution achieved for the people better constitutional rights, peoples representation in the Government ; and administration by the government in the interest of the people. What is important is the maintenance of a stable territorial basis for their activities after the emancipation of people.1 this paper is to focus the conflicts of interest between people and territorial integrity in international relations and the paradigm shift in self determination in U.N regime.

The concept of self determination in the context of Sovereignty has under gone radical change over centuries starting from 1648 with the adoption of Westphalia Treaty which gave the nation of sovereign absolute state system.2 In the 18th century the dominant concept of sovereignty was that of the state over its citizen restricted by law. In the 19th century it was the Supreme absolute authority which was not controlled by any external agency. In the 20th century it has meant ability of the state to exercise its external and internal authority independtly.3in the 21st century state sovereignty is likely to suffer massive erosion.

In an essay published by John Stuart mill in 1859 he argued that self determination is the situation in which a given society the people themselves resolved their political differences and establish their institution without foreign interference is a necessary although not a sufficient condition for the enjoyment of freedom by these people. The only test possessing any real value of a people’s having become fit for popular institution is that they are willing to brave labour and danger for their liberation. Here I do not purpose to discuss IHL but to show that , against foreigners, individuals have the right to a state of their own and against state they have a right to political and civil liberty. Without the first that is the state, civil and political liberty has no meaning as individual needs a home so right require a location 4 and this is embodied in ICCPR and ICESCR and the UDHR read with UN Charter and UGNA resolutions.5 The theories of self determination and of territorial integrity acquired momentous in the 19th century. This century has also witnessed a strong appearance of the Nationality principles under which ethnic factors determined a nation, and nation thus conceived defined a people as a conscious unit of the national culture. Underlying the nationality principle was the emancipation of the ethnic groups under one state. This ethnic self determination was propounded by Italian Jurist P.C Mancini in his famous lecture 'on nationality as the foundation of international law (1851).6 Mancini declared that a state in which several nationalities found themselves forced into union was not a political body but a monster incapable of life; and this has been exhibited by the Somali People the Ashanti of Ghana the Kingdom of Buda, the Balozi of Zambia, and the chagga of Tanzania all united under ethnic domains. In Italy’s Guiseppe Mazzini sought ethnic uniformity even if this meant cultural and linguistic denationalization of foreign populations in the parts of Europe. Similar demand were made by the poles, slaves, the Greeks, and the Rumanias. What actually emerged was a conflict between the theories of nationality and multi nationality principles or domestic jurisdiction versus self determination with the minority group as the victim. The question also arise as to who decide this conflicting ideology? The answer is of course the world body and not necessarily by those who are allergic to self determination.

The minority were given more flavour in the 20th century. By 1917 self determination had become a catchword of International Politics as declared by President Wilson; 7

'No peace can last or ought to last, which does not recognize and accept the principles that government derive all their just powers from the consent by the governed, and that no right anywhere exist to hand people about from sovereignty to sovereignty as if they were property. Here we can take the Naga people as an illustration, who have been played like shuttle cock form one sovereignty to another sovereignty.

Addressing the U.S Congress in February 1928, President Wilson stated that the right of nation to self determination is no mere phrase, it is an imperative principle of action which will be disregarded by statesman in the future only at their own risk.8

When the Charter of League of nations was drafted it excluded the concept of self determination but President Wilson commented, interalia, that 'then there was the question as to whether there was anything in the guarantee of Article x about territorial integrity and political independence which would interfere with the assertion of the right of great populations anywhere to change their governments…….. there is absolutely no such restraints. 9 but the representative from the British empire opposed the inclusion of the principle for fear of its repercussion on its empire.10 This led to the principle of territorial integrity prevailed over that of self determination of the people as experimented in the case of Aaland Island between Sweden and Finland.

Article 2 (4) of the UN charter envisages a possible existence of amicable relations among members states based on among other things adherene to the principle of territorial integrity and political independence of any states. Thus the existing territorial entities of members of the UN are viewed to remain inviolable. Juxtaposed to the principle of territorial integrity is the doctrine of self determination stipulated in among others, Article 1 (2) and 55 of the UN Charter.

Article 1(2) stated that the purpose of UN are: To develop Friendly relations among nations based on respect for the principle of equal rights and self determination of peoples, and to take other appropriate measure to strengthen universal peace.

Article 55 also calls for:

The creation of conditions of stability and well being,

which are necessary for peaceful and friendly relations

among nations based on respect for the principle of equal

rights and self determination of people.

It can therefore, be stated that self determination occupies far more important position in the UN charter than it did in the leagues of Nations covenant.

In 1944, at Dumbarton Oaks the first conclave of the allies took place to draft up a charter for post war international organization. There is no document to show that self determination was discussed in the conclave. But in 1945 when the United Nations charter was finalized, on the initiative of USSR, self determination of the people was inserted only in the subordinate clauses and do not primarily address the issue of self determination.11

In 1948, when the UDHR was adopted USSR proposed to includes self determination in the declaration was again rejected as a result there was no reference to self determination in UDHR.12

Again on December 4, 1950 the UNGA by resolution 421 (1) asked the ECOSOC to request the commission to ensure the rights of peoples and nations to self determination and to prepare recommendations for considerations by the General Assembly. Accordingly in 1952 it was decided that ancillary to UDHR there would be two covenants to UDHR, ICCPR and ICESCR. Again the USSR proposed inclusion of an article on self determination. But as in the days of league of nations, states with colonial possession like the U.K. France, Belgium argued that self determination was not a legal right but rather vague political principle usually attained through extra-legal process, often involving secession.13 When the resistance of the western countries failed they made a move in the Human rights commission to widen the terms of the proposed Article so that not only the people in colonial situation but even people in sovereign countries were covered. At first the USA did not opposed the inclusion of the Article on self determination within the ambit of human rights regime. But when Chile proposed additional paragraphs acknowledging the right of all people to dispose of their natural resources according to their choice, the USA backed out on the ground that it would inhibit foreign investment. In their perception self determination was to be theater to the political space allowed by the capitalist market.14

However in 1955 a resolution on recognition to self determination as a fundamental right was adopted with the overwhelming support of the communist and the third world countries and most of the western countries opposing the same.

The absence of charter language in the universal declaration is subsequently rectified in common Article 1 of ICCPR and the ICESCR of 1966. Common Article 1 of the Covenants provides as follows.15

  1. All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural developments.
  2. All people may freely dispose of their national wealth and resources.
  3. The State parties shall promotes the realization of the right of self determination
  4. The text and travoux of the covenants support that their consent reaches beyond the colonial context.16 The covenants follow UN General Assembly resolution 1524 (XV) of 1960, which provides that the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights. Resolution 1514 further provides that the armed action or repressive measure of all kinds employed against such peoples must stop in order to allow them to exercise their rights. The rights enumerated are termed inalienable16 and territorial disruption is noted to be incompatible with UN charter.

Resolution was latter supplemented in 1961 by Resolution 1654 (XVi), which contain a supervisory mechanism designed to ensure implementation. One purpose of the UNGA resolution 1654 was to encourage states to accept the principle contained in resolution 1654.

In December 1973, resolution also recognized that armed conflict, resulting from liberation struggle is international conflicts in the second Geneva Convention 3rd and 4th of 1949.

UNGA resolution 2625 of 1970 declares that no territorial acquisition resulting from the threat or use of force shall be recognized as legal. Peoples have the right to determine, without external interference, their political status. Members states have the duty to respect the right in accordance with the provisions of the charter.

One expert on the topic observed, the thrust of the declaration is clear: all colonial territories have the right of independence. However, a closer reading reveals uncertainties arising from varying uses of the term people, territories and countries. Although the title of the declaration refers only to colonial countries and peoples operative paragraphs 2 refers expensively to the right of all peoples to self determination, and this is evident from the context of UNGA resolution 1514 and 2625.17

One of the internationally recognized authority on the self determination discourse observed 'until the collapse of the soviet Union the right to self determination was mainly involved and relied upon by people formerly under the colonial rule to remove the legacies of colonial in political, economic, and other relations and to gain full control of their destiny.' With the fall of communism, ethnic group including nationalist also involve the right to self determination claiming political rights which ranges from internal authority to a right to secession.18 Four criteria have been enunciated as qualification for secession from an existing modern state.19

  1. Secession is justified if the region has originally been included in the state by force and its people had displayed a continuing refusal to give free consent to the union.
  2. If the rational government had failed to promote rights and security of the region.
  3. If the political systems of the country has failed to safeguard the legitimate political and economic interest of the region, because the executive authorities had contravened to ignore the result of that process
  4. If the National Government had ignored or rejected an explicit or implicit bargain between the region that was entered into as a way of preserving the essential interest of a region that might find itself outlived by a national majority

Again indigenous peoples are not mere minorities, they have traditional jurisdiction rights in respect of specific Territories and resources, within specific states. They are called first people, tribal peoples, or aboriginal and autochthons’. It has been estimated that there are approximately 300 million spread over 70 countries. The draft declaration on the Rights of indigenous peoples adopted in 1994 declares as follows:-

Article 3-Indigenous peoples have the right to self determination.20

This seems to include both internal and external self determination. Article 4,19, and 20 also seems to suggest external and internal self determination as a matter of choice for the indigenous peoples.21 A question which arises is whether the UNGA resolution laying down principles automatically create International Law. Higgins, by arguing that self determination has developed into International right, as stated that what is required is an examination whether resolution with similar content repeated through time, voted for by overwhelming majorities giving rise to a general opinion Juris, have created the norm in question.

Higgins categorically argued that it seems academic to argue that as assembly resolutions are not binding, nothing has changed, and that self determination remains a mere principle……to insist upon the interpretation is to fail to give any weight to the doctrine of bona fides or to the practice of states.22

The concept of self determination has taken such a development that India had no option but to reserve Article 1 of both the ICCPR and the r both the conventions. 'With reference to Article 1 of both the covenants, the Government of the Republic of India declares that the words 'the right of self determination appearing in those Articles apply only to people under foreign domination and that these words do not apply to sovereign independent states or to a section of a people or notion-which is the essence of national integrity'.

Three states each a colonial power, field formal objections to the Indian reservation. The Federal Republic of Germany particularly reacted to the Indian reservation stating: 'The right of self determination applies to all people and not only to those under foreign domination. The Federal Government can not consider as valid any interpretation of the right to self determination which is contrary to the clear language of the provisions in question. It moreover pt consider that any limitation of their applicability to all nations is incompatible t with the object and purpose of the covenants.

The concept of self determination has developed and graduated from vague political principle to Right in International Law in UN regime. An analysis of a few disputes would help illustrate the UN practice with regard to the principles of self determination and territorial integrity.

The case of Goa. 24

In 1961 India found it necessary to use Armed forces against the Portuguese authorities in Goa. Portugal itself a colonial power, alleged that India had committed an act of aggression against Portugal in Goa, contrary to the provisions of Article 2 (4)

Prohibiting the threat or use of force by member states in their international relation against the territorial integrity and political independence of any states.

In the Security Council debate on Goa, the Indian representative argued that the end of eliminating Colonialism was in itself a justification for the means employed. Relying on article 51 of the charter he pleaded that.

The measure taken by India was for the protection of the Goan People, who were for the protection of the Goan people, who were in a revolt against Portugal. Portugal. Portugal has concentrated 12,000 soldiers in Goa where they also had mined public buildings. The charter provides that force can be used in self defense for the protection of the people of a country – and certainly the Goan were as much Indians as any other Indians.

The Falkland Island Case:

The invasion of the Islands by Argentina in April 1982 was part of her long standing nationalism regarding rights over the Island 25.

The position of Argentina has been that the islander’s expressed desire to remain linked to Britain cannot be used to by – pass Argentines historical rights to sovereignty over Islands and to disrupt Argentines historical rights and its territorial integrity. Argentina argues that Para 6 of resolution 1514 (XV), referred to earlier explicitly states that self determination may not be used to destroy the territorial integrity of a member states. Argentina bases her claims over the Islands under the principle of 'possidetis, ita possidetis' Latin for, as you possess, so may you possess, dating back to 1820 where Argentina officially claim sovereignty over the Islands. Argentina effectively administered the Islands until 1833 when British troops invaded the Islands and expelled the Argentina authorities and inhabitants. Since then Argentina has upheld continuous claims to its rights throughout.

Argentina other position is that the inhabitants of the Island are not entitled to the right of self determination because they are small settler population that forcefully replaced the Argentina inhabitants. Thus according to Argentina evidence of the right to self determination to the Islands is non-existent because there is lack of Legitimate relationship of the population to the Territory. Legitimate relationship of the population to the territory in Argentine’s view is absent due to the fact that the Islanders are mainly settlers claiming allegiance to British which is many miles away.

The British position on the issue has been that Argentina should respect the right of the Island to self determination in accordance with the U.N. Principles and resolution 1514 (XV). This position is based on the Islander wish neither to become integrated to Argentina nor to becomes independent state, Thus because they wish to remain British subjects, the Islanders wish according to the British is crucial in any negotiations. This view appears to be in conformity with principle VII (a) of the 1960 Resolution 1514 (XV) which states that:

Free association should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes. It should be one which respect the individuality and the cultural characteristic of the territory and its peoples and retain for the peoples of the territory which is associated with an independent state the freedom to modify the states of that territory through the expression of their will by democratic means and through constitutional process.

Since the Islands wish to remain British subjects through their own choice, the British therefore invokes the doctrine of sovereignty. In this regard British urge Argentina to respect her sovereignty and territorial integrity and interpret the latter principle as follows:-

The term territorial integrity as used in Paragraph 6 of resolution 1514 (XV) referred to the wholeness and indivisibility of territories which had been administered as a single unit. That had to be distinguished from the principle of geographic integrity, which applied to adjacent areas, or areas apparently forming part of a single geographic unit. The letter meaning had clearly never been intended in resolution 1514 (XV) since that would have meant that almost any colonial territory would have become subject to a claim by an immediate neighbor.

In a way the British invokes both the principles of self determination and territorial integrity. Since the Islanders have chosen to remain with British subjects that in itself constitutes an expression of self determination. Thus Argentina’s invasion of the island was considered by the British as violation of her sovereignty and territorial integrity.

The UN has, between 1956 and 1982, passed four resolutions urging Argentina and Britain to seek redress to their dispute bearing in mind the interest of the islanders. Sanchez argues that 'The language of the resolutions makes it clear that the sovereignty dispute takes precedence over self determination. Argentina maintains that the principle of self determination should never be used to legitimize what she considers to be an illegal British occupation of the island. In her contribution to the determination of peoples may in no case impair the right of territorial of any state or its right to the recovery of territory. The UNGA resolutions on the dispute remained largely silent on paragraph 6 Clause of resolution 1514 (VX).

The Algerian War of Independence.26

From 1954 to March 1962, Algeria fought France to achieve independence and statehood.

Initially the conflict was considered to be a domestic and not an international armed conflict. France avoided calling the conflict 'war’ at all. Nevertheless, it was necessary to ascertain the precise normative framework within which to view the conflict in order then to characterize the use of armed force. This also complicated a need to evaluate the application of IHL.

Question arose, was the rebellion merely intended to effect Political and economic reform? Depending on the answer to this, the conflict could then be characterized either as a struggle to effect territorial accession, of further interest, it was argued as the conflict progressed that a continual pattern of rights of violations placed call for territorial secession beyond the strict confines of a sovereignty or decolonization struggle. This latter interpretation effectively strengthened the Algerian struggle. This in turn strengthens publicity of their claims to full independence and the augmentation of territorial control and authority. Both sides ultimately applied relevant provisions of IHL, without formal agreement. Initially this was on a limited basis, but towards the end of the conflict, IHL was applied more fully in the interest of reciprocal treatment. Further the insurgent forces sought and obtained recategorization of their own captured as political prisoner about mid-way through struggle. Such recategorization, it was felt, would result in greater protection than prisoner of war status within French context of penal liability.

The development of colonial and 'rights’ self determination, or external or internal' self determination, in this instance were interconnected. In other words, by publicizing human rights abuses, the Algerian war expended the concept of self determination by associating purely colonial confines, with claims for representative Government, and freedom from outside interference, alien, or foreign domination.

The colonial and human rights context underlying the use of force by the Algerians to achieve independence from France thus gave normative support to the idea of a legitimate entitlement, to use force in this instance, a factual basis of human rights violations, which basis was connected with but independent of the colonial context was added to support claims of right to self determination, to encourage other such conflicts to occur.

The case referred to above was all decided even before the ICCPR and ICESR were enacted. Thus it is evident that right to self determination under UN regime has graduated from normative norm to legal rights under international law.

REFERENCES:

  1. S.Prakash Sinha: 'Is self determination a passé' p.261
  2. B.K.Roy Burman: 'self determination of peoples in present scenario.Mainstream 14 December 2002.
  3. Ibid
  4. J.S.Mill: A few words on Non intervention p.153-176
  5. Article 1 ICESCR 1966, UNGA resolutions 2200 (XXI) 1976
  6. Hans Kohn: The UN and National self determination Vol.20 (1958) p.527
  7. AJIL, Vol. 70 (1976) p.1
  8. J.B.Scot, official statements of war Aims and Peace proposals, December 1916 to November 1918 p.166
  9. Baker and Dodd p.375-376
  10. Robert Lensing: 'The peace negotiation and personal narrative p.94-95
  11. Musgrave T.D: 'Self determination and National minorities:p.66
  12. Ibid 67
  13. Ibid 68
  14. Ibid 68
  15. UNGA resolutions 2200-A (XX I) 1966
  16. P.Thonbey: 'Minorities and Human Rights p.878
  17. Mannum, Hurst 1996 'Rethinking Self determination'
  18. B.K.Roy Burman: Mainstream December 14, 2002
  19. Birch, Anthony, 1989, Nationalism and National Integration
  20. Musgrave: p.73
  21. B.K.Roy Burman: Mainstream December 14, 2002
  22. Ibid
  23. Ibid
  24. Speech by C.S.Jha of India 56 AJIL p.620
  25. Miguel Sanchez : ' Self Determination and Falklands dispute, Columbia Journal of Transnational Law Vol.21 (1983)
  26. The Algerian Revolution as a case study in International Law (R.A.Falk ed) (1971) at p.179

(Project work submitted by Mr.N.K.Assumi, Advocate, as part of refresher course Sponsored by University Grant Commission and Red Cross Committee from June 23 to July 12, 2003, conducted by the Indian Society of International Law, New Delhi.)

NOTE:

There has been a tremendous change globally since this maiden project work was submitted in 2003.However; the principle of self determination is growing stronger and stronger assuming the Status of validity of claims to secede, as it is a universal rights, this has been illustrated by the case of Kampuchea and Vietnam, in the early part of 1980s and now Afghanistan, Kosovo, South Sudan etc.

 

N.K.Assumi 
on 26 June 2017
Published in Legal Documents
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