Right to Self Determination - Hector Gros Espiell

தமிழ்த் தேசியம்

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
- Tamil Poem in Purananuru, circa 500 B.C

Home > Future of Self Determination > Right to Self Determination - Study Prepared by Hector Gros Espiell, Special Rapporteur of the Sub Commission on Prevention of Discrimination and Protection of Minorities, 1980 > Foot Notes

The Right to Self Determination:
Implementation of United Nations Resolutions

Study Prepared by Hector Gros Espiell
Special Rapporteur of the Sub Commission
on Prevention of Discrimination and Protection of Minorities
(E/CN.4/Sub.2/405/Rev.1), 1980

Abstract: At its thirty-first session, in 1978, the Sub-Commission considered the updated study by the Special Rapporteur. In introducing his new study, the Special Rapporteur made a comprehensive statement. The Sub-Commission endorsed the points of view expressed, especially as regards the characterization of the right to self-determination as jus cogens. ...“colonial and alien domination” means any kind of domination, whatever form it may take, which the people concerned freely regards as such. It entails denial of the right to self-determination, to a people possessing that right, by an external, alien source. Conversely, colonial and alien domination does not exist where a people lives freely and voluntarily under the legal order of a State, whose territorial integrity must he respected, provided it is real and not merely a legal fiction, and in this case there is no right of secession..."

A. Origin of the study, its discussion thus far in the United Nations and its relationship to other current studies

1. The mandate of the Special Rapporteur is set out in resolution 5 (XXX), adopted by the Commission on Human Rights on 20 February 1974, resolution 1866 (LVI) adopted by the Economic and Social Council on 17 May 1974, and resolution 4 (XXVII) adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities on 16 August 1974.

In its resolution 5 (XXX), the Commission on Human Rights had invited the Sub-Commission to appoint a Special Rapporteur to analyse the reports which the Secretary-General had submitted to the Commission in regard to United Nations resolutions concerning the right of peoples under colonial and alien domination to self-determination (E/CN.4/1081 and Corr.1 and Add.1 and 2 and Add.2/Corr.1), and to make recommendations in this respect to the Commission at its thirty-second session, in 1976.

The Council, in resolution 1866 (LVI), approved this recommendation of the Commission and requested the Secretary-General to give the Special Rapporteur any assistance necessary for the accomplishment of his task. In its resolution 4 (XXVII), the Sub-Commission, considering Commission resolution 5 (XXX) and Council resolution 1866 (LVI), appointed Mr. Hector Gros Espiell Special Rapporteur on the implementation of United Nations resolutions relating to the right of peoples under colonial and alien domination to self-determination and asked him to submit a preliminary study to the Sub-Commission at its twenty-eighth session, in 1975.

In accordance with these resolutions, the mandate of the Special Rapporteur was, therefore, to consider the implementation of United Nations resolutions relating to the right of peoples under colonial and alien domination to self-determination, analysing the Secretary-General’s reports on this subject, and to submit a preliminary report to the Sub-Commission at its twenty-eighth session and recommendations to the Commission on Human Rights at its thirty-second session. The Special Rapporteur informed the Sub-Commission at its twenty-seventh session that his final report would be presented to it at its twenty-ninth session.

2. The origins of the present study can be traced back to the many resolutions which the United Nations has adopted since its inception with a view to implementing the right of peoples under colonial and alien domination to self-determination. In particular, by its resolution 2649 (XXV) of 30 November 1970, the General Assembly, considering resolution VIII of the International Conference on Human Rights (Teheran, 1968), emphasized the importance of the universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights. Expressing its concern that many peoples were still denied the right of self-determination and were still subject to colonial and alien domination, the General Assembly deemed it necessary to continue the study of ways and means of ensuring international respect for the right of peoples to self-determination. It therefore requested the Commission on Human Rights to study, at its twenty-seventh session, the implementation of United Nations resolutions relating to the right of peoples under colonial and alien domination to self-determination, and to submit its conclusions and recommendations to the General Assembly, through the Economic and Social Council, as soon as possible.

3. The Commission on Human Rights, at its twenty-seventh session, adopted resolution 8 A (XXVII) in which, inter alia, it expressed the belief that effective application of the principle of self-determination of peoples was the essential basis for recognition and observance of human rights and requested the Secretary-General to prepare an annotated collection of all the resolutions adopted by the various organs of the United Nations, the specialized agencies and the regional organizations relating to the right of peoples under colonial and alien domination to self-determination. The Commission decided, making use of this collection, to continue the consideration of the question with a view to appointing a Special Rapporteur at its twenty-eighth session.

4. On 6 December 1971, upon the recommendation of the Economic and Social Council in its resolution 1592 (L), the General Assembly adopted resolution 2787 (XXVI) in which, inter alia, it urged the Security Council as well as States Members of the United Nations or members of specialized agencies to take effective steps to ensure the implementation of the relevant United Nations resolutions on the elimination of colonialism and racism and to report to the General Assembly at its twenty-seventh session.

5. In accordance with Commission resolution 8 A (XXVII), the Secretary-General submitted to the Commission at its twenty-eighth session, in 1972, an annotated collection of the relevant resolutions (EICN.41 1081 and Corr.1). Due to lack of time, however, the Commission was unable to consider this item at that session. At its twenty-ninth session, in 1973, the Commission had before it the report of the SecretaryGeneral and an addendum thereto (E/CN.4/1081 and Corr.1 and Add.1). By its resolution 9 (XXIX), it decided to consider this item as a matter of priority, with a view to appointing a Special Rapporteur, at its thirtieth session. It also requested the SecretaryGeneral to update his reports on the question and to submit them to the Commission at its thirtieth session.

6. The preliminary study by the Special Rapporteur (1) was presented to the Sub-Commission at its twenty-eighth session, in 1975. The Sub-Commission discussed it at its 726th and 727th meetings, on 2 September 1975.

7. In introducing his study at the 726th meeting, (2) the Special Rapporteur underlined the fundamental nature of the right to self-determination and its importance as a prerequisite for the enjoyment of all other human rights. He stressed the importance of implementing United Nations resolutions on the subject in all their aspects: legal, political, economic, social and cultural. He drew attention to the important link between implementation of the United Nations resolutions on self-determination and the maintenance of international peace and security. He expressed the hope that those Governments and organizations from which he had requested information and which had not yet replied would do so in time for their replies to be included in his final study. He added that a comprehensive bibliography on the question would be appended to the final study.

8. The Special Rapporteur’s approach received endorsement from all the members who spoke. Approval was expressed, in particular, regarding the parts of the study dealing with the economic aspects of self-determination. In this regard, it was said that "neo-colonial” activities of transnational corporations now had a role similar to that played in the past by colonialism. Reference was made to some particular cases mentioned in the preliminary study: one member of the Sub-Commission emphasized the importance of self-determination for the people of Palestine and another referred to the particular case of Belize.

9. At its 739th meeting, on 10 September 1975, the Sub-Commission requested the Special Rapporteur to submit his final study at its twenty-ninth session, in 1976. It decided to discuss that study at its thirtieth session, in 1977. (3)

10. By its resolution 3382 (XXX) of 10 November 1975, (4) the General Assembly reaffirmed the importance of the universal realization of the right of peoples to self-determination, national sovereignty and territorial integrity and of the speedy granting of independence to colonial countries and peoples as imperatives for the enjoyment of human rights, and it further reaffirmed the legitimacy of the people’s struggle for independence, territorial integrity and liberation from colonial and foreign domination by all available means, including armed struggle. The General Assembly declared, inter alia, that it keenly awaited the conclusion by the Sub-Commission of the present study. It decided to remain seized of the item at its thirty- first session and to consider reports by Governments, United Nations agencies and intergovernmental and non-governmental organizations on the strengthening of assistance to colonial territories and peoples under alien domination.

The General Assembly adopted other resolutions referring in general terms to self- determination, in particular resolution 3398 (XXX), entitled “Activities of foreign economic and other interests which are impeding the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples in Southern Rhodesia and Namibia and in all other Territories under colonial domination and efforts to eliminate colonialisms, apartheid and racial discrimination in southern Africa”, resolution 3421 (XXX), entitled “Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples by the specialized agencies and the international institutions associated with the United Nations”, resolution 3481 (XXX), entitled “Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples”, and resolution 3482 (XXX), entitled “Dissemination of information on decolonization”. The many General Assembly resolutions which relate to specific territories and situations are referred to in the relevant chapters of the present study.

11. At the thirty-second session of the Commission on Human Rights in 1976, in the course of the debate on the question, (5) it was said that the right to self- determination, an essential prerequisite for the enjoyment of other human rights, had become a basic rule of international law, it was a dynamic right which assumed various forms. It included the right to participate freely in political life and to enjoy basic civil, economic, social and cultural rights. It was closely interrelated with the process of economic and social development. One opinion was that the right to self-determination should not be so interpreted as to lead to fragmentation of the national unity or territorial integrity of any nation.

12. Regarding the relationship between the present study and the study being prepared under Sub-Commission resolution 3 (XXVII) by Mr. Aureliu Cristescu, Special Rapporteur on “The historical and current development of the right to self-determination on the basis of the Charter of the United Nations and other instruments adopted by United Nations organs, with particular reference to the promotion and protection of human rights and fundamental freedoms”, the view was expressed that, since the two studies dealt essentially with the same subject, the Sub-Commission should be urged to organize the work of the two Special Rapporteurs so that a single study could be submitted to the Commission in 1977.

13. The Special Rapporteurs were invited to give particular consideration to the following points:

As to the last point, one view was that, so long as the possibilities of peaceful international action had not been exhausted, the international community should not approve of recourse to violence. However, it was recalled that the General Assembly had repeatedly reaffirmed the legitimacy of the use of force by liberation movements under certain conditions. The Special Rapporteurs were invited to go more deeply into the question of what circumstances could justify the recourse to armed struggle in order to achieve self-determination.

14. By its resolution 9 (XXXII), of 5 March 1976, the Commission requested the Sub-Commission at its next session to study and prepare suggestions on effective ways and means and concrete measures for securing the full and universal implementation of the United Nations resolutions and decisions on racism, racial discrimination, apartheid, decolonization and self-determination and related matters and to submit its suggestions and proposals to the Commission at its thirty-third session.

15. At its twenty-ninth session, in 1976, the Sub- Commission had before it the final study of the Special Rapporteur on “Implementation of United Nations resolutions relating to the right of peoples under colonial and alien domination to self-determination” (E/CN.4/Sub.2/377 and Add.1-3) which was submitted to it in that year for discussion at its thirtieth session, in 1977, in accordance with the long-term programme of work decided upon at its twenty-eighth session. At the 76 1st meeting, upon the invitation of the Sub-Commission, the Special Rapporteur introduced his study to the Sub-Commission. (6) At its 763rd meeting, the Sub-Commission decided that the Special Rapporteur should update his study before submitting it for final consideration by the Sub-Commission at its thirtieth session.

16. At its thirty-first session, on 3 November 1976, the General Assembly adopted resolution 31/34, entitled “Importance of the universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights”, in which, inter alia, it stated that it keenly awaited the conclusion of this study by the Sub-Commission.

17. At its thirty third and thirty fourth sessions, in 1977 and 1978, the Commission on Human Rights considered the item concerning the right of peoples to self-determination and its application to peoples under colonial and alien domination. During the discussion at the thirty-third session references were made to this study. In addition to references to other points dealt with in the Special Rapporteur’s study, the opinion was expressed that the right of peoples to self-determination was a rule, perhaps a peremptory rule, of international law. (7) At the thirty-fourth session the Special Rapporteur submitted to the Commission the study in document E/CN.4/Sub.2/390 and Corr.1 and Add.1 and the recommendations asked for by the Commission’s resolution 5 (XXX). During the debate on this item numerous references were again made to this study, and all the members of the Commission who spoke in the debate agreed with the view expressed by the Special Rapporteur. Some speakers expressed the wish that in future revisions of the study an analysis of some additional points which they brought to the Commission’s attention should be included. (8)

18. The Sub-Commission began to consider this study at its thirtieth session. All the speakers who participated in the debate agreed with the opinions expressed by the Special Rapporteur and with the conclusions and recommendations in the study. (9) The Sub-Commission adopted, without a vote, a resolution (7 (XXX)) expressing its appreciation to the Special Rapporteur for his excellent study; decided to keep the question under review at its thirty-first session; requested the Special Rapporteur to submit an updated study focusing on relevant developments in the territories listed in paragraphs 229-232 of his study; requested the Secretary-General to submit the study of the Special Rapporteur to the General Assembly at its thirty-second session, to the Commission on Human Rights, to the Special Committee on the Situation with regard to the Implementation of the declaration on the Granting of Independence to Colonial Countries and Peoples and to the Special Committee against Apartheid; and decided to draw to the attention of the International Law Commission for its consideration and action the recommendations of the Special Rapporteur contained in paragraph 258 of his study.

19. In paragraph 12(b) of its resolution 32/14, adopted on 7 November 1977, the General Assembly stated that it keenly awaited the publication of the study prepared by the Special Rapporteur.

20. At its thirty-third session, in 1978, the General Assembly adopted, on 29 November 1978, resolution 33/24, in which it took note of the study by the Special Rapporteur (E/CN.4/Sub.2/405 (vols. I and H)) and thanked the author for the work done.

21. At its thirty-first session, in 1978, the Sub-Commission considered the updated study by the Special Rapporteur. In introducing his new study, the Special Rapporteur made a comprehensive statement (10).

The Sub-Commission adopted resolution 4 (XXXI) A, in which it reiterated its thanks to the Special Rapporteur for the excellent study which he had presented; decided to recommend to the Commission on Human Rights and to the Economic and Social Council that the updated study should be printed and that it should be given the widest possible circulation; requested the Secretary-General to transmit the updated study to the General Assembly at its thirty-fifth session and to the other organs listed in paragraphs 4 and 5 of its resolution 7 (XXX), and requested the Commission on Human Rights to entrust Mr. Hector Gros Espiell with the preparation of the preliminary draft of the international instrument proposed in paragraph 288 of his study, for consideration by the Sub-Commission and, if the Commission so decided, to request the Secretary-General to provide him with all the assistance which he needed to complete his work. The Sub-Commission also adopted resolution 4 (XXXI) B. (12)

22. As suggested during the discussions at the twenty-seventh, twenty-eighth and twenty-ninth sessions of the Sub-Commission and at the thirty-second and thirty-third sessions of the Commission on Human Rights, the Special Rapporteur has carefully considered the relationship between his work and various other studies initiated by the Sub-Commission.

23. As has been pointed out in the debates in the Commission and the Sub-Commission, the present study is closely connected with, though distinct from, the one being prepared by Mr. A. Cristescu under SubCommission resolution 3 (XXVII), on “The historical and current development of the right to self-determination on the basis of the Charter of the United Nations and other instruments adopted by United Nations organs, with particular reference to the promotion and protection of human rights and fundamental freedoms”. It is envisaged that Mr. Cristescu’s study will essentially analyse the development of the basic concepts involved in self-determination, whilst the present study will deal mainly with concrete problems and specific situations in relation to the implementation of the United Nations resolutions.

It is hoped that both studies will serve to promote understanding of the problems raised by the right of peoples to self- determination. Although they deal substantially with the same matters, the approaches followed by the two Special Rapporteurs in analysing the subject have been different, in accordance with their respective terms of reference. Fruitful preliminary consultations were held with Mr. Cristescu in November 1974 at Geneva. The Special Rapporteur believes that the two studies have been properly coordinated and that with their different approaches and their differing points of view - on some questions the two Special Rapporteurs hold different opinions which should not be concealed since these divergences enrich the studies and enhance their interest - they will form a harmonious and systematic whole.

24. There is also a relationship between the present study and the study being prepared by Mr. Ahmed M. Khahifa on “The adverse consequences for the enjoyment of human rights of political, military, economic and other forms of assistance given to colonial and racist regimes in southern Africa”. One of the main adverse consequences of such assistance is the denial of self-determination to the peoples of Namibia, South Africa and Southern Rhodesia.

25. It is often - and might even be said to be necessarily - the case in practice that the denial of the right of self-determination to peoples under colonial and alien domination is associated with racial discrimination, the population of the dominating Power being of a different colour from that of the subject population. In this respect, there is also a close connexion between the present study and the recently updated study on racial discrimination by Mr. Hernán Santa Cruz. (13)

26. Similarly, there is a connexion between this study and the study by Mr. Francesco Capotorti entitled “Study of the rights of persons belonging to ethnic, religious and linguistic minorities”, (14) for the relationship between the minority or minorities and the population as a whole as regards the question of the right to self-determination is a specially complex question. The subject was raised during the thirty-fourth session of the Commission on Human Rights, and the Special Rapporteur is proposing to give his views on the matter in the final version of the study which he will submit for publication.

27. The Special Rapporteur has given particular consideration to points (a), (b) and (c) mentioned in paragraph 13 above, regarding which the Commission on Human Rights, at its thirty-second session, in 1976, considered that it was desirable to make a special analysis.

28. Although it was not possible for him to analyse all the various questions mentioned by the speakers, the Special Rapporteur has dealt more fully with or made particular reference to a number of topics in compliance with wishes expressed by the Commission at its thirty-third session.

29. In accordance with his mandate, set out in Commission resolution 5 (XXX), to analyse the report of the Secretary-General (E/CN.4/1081 and Corr.1 and Add.1 and 2 and Add.2/Corr.1) the Special Rapporteur considered that his main sources of information were the texts of United Nations resolutions summarized in that report, as well as those adopted after the issuance of the last study. Indeed, practically all measures taken by the United Nations and the specialized agencies in implementation of their resolutions concerning self-determination are themselves expressed in the form of resolutions, recommendations or decisions. (15) The Special Rapporteur is fully aware of, but has not analysed, debates in United Nations bodies which did not lead to the adoption of resolutions. Matters which were the subject of resolutions in international organizations outside the United Nations system were not considered either except when there was also a United Nations resolution in respect of the same territory or situation.

30. Aside from resolutions of a general character on self-determination, the Special Rapporteur considered that he should take into account resolutions concerning all the individual countries and territories and the specific cases dealt with in the Secretary- General’s report. In doing so, the Special Rapporteur drew a distinction between territories in respect of which questions of implementation continue to be raised in United Nations resolutions adopted before or since the issuance of the Secretary-General’s report, and those which are no longer referred to in United Nations resolutions because the questions of self-determination which they raised have been settled.

31. In addition to the texts of United Nations resolutions, the Special Rapporteur considered that it would be useful to have information and views on the implementation of the resolutions from Governments, certain United Nations bodies, specialized agencies and regional intergovernmental organizations. Accordingly, on 9 December 1974 and 17 October 1975, at the request of the Special Rapporteur, the Secretary- General sent notes verbales to Governments of States Members of the United Nations, members of the specialized agencies, Parties to the Statute of the ICJ and members of IAEA, requesting information and views on:

32. On 9 December 1974 and on 17 and 24 October 1975, the Secretary-General sent letters, requesting similar information and views to ECA, ECE, ECLA, ECWA, ESCAP, FAO, the ILO, UNCTAD, UNDP, UNESCO, UNIDO, WhO, CMEA, the Council of Europe, the League of Arab States, OAU, OAS and the Asian-African Legal ConsuLtative Committee. Other United Nations organs and specialized agencies were requested to supply information of the same nature for the purposes of the final study.

33. On 18 February 1975, the Special Rapporteur wrote to Mr. Sahim A. Salim, Chairman of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, Mr. Edwin Ogebe Cgbu, Chairman of the Special Committee against Apartheid, Mr. Rashleigh E. Jackson, President of the United Nations Council for Namibia, and Mr. Sean MacBride, United Nations Commissioner for Namibia, requesting information and views on the subject.

34. As at 9 April 1976, replies has been received from the Governments of Afghanistan, Bulgaria, Colombia, Gabon, the German Democratic Republic, Iraq, Kenya, Mexico, Morocco, New Zealand, Nicaragua, Pakistan, the Philippines, Spain, Thailand and the Union of Soviet Socialist Republics. Replies had also been received from ECA, ECE, ECLA, ECWA, ESCAP, UNCTAD, UNIDO, the United Nations Commissioner for Namibia, FAO, the ILO, WHO, the Council of Europe, OAS, the League of Arab States and the Asian-African Legal Consultative Committee.

35. The Special Rapporteur is fully aware of the importance that the replies to the questions and the views requested (see the foregoing paragraphs) will have for his study. At the time of writing of this study, the replies received, although in some cases important, were not sufficient in number to permit a general comparative study to be made or any conclusions to be drawn. The Special Rapporteur considers that these replies, in particular those from Governments of States involved in the specific situations mentioned in the report of the Secretary-General, (16) are of outstanding interest and that a truly exhaustive report on the subject should necessarily include an examination of a large number of replies.

36. Despite the small number of replies received, the Special Rapporteur has given due attention to analysing the concepts on which government opinion was sought under (a) and (b) of the notes verbales of 9 December 1974 and 17 October 1975. He has felt it necessary to express his own views on these matters as well, in order to define the scope of the present study. The replies to the request made under (c) of the notes verbales have been used in analysing the actual situation in specific territories and in formulating suggestions for future action to achieve full implementation of the right of peoples under colonial and alien domination to self-determination.

37. From 10 to 20 February 1975, from 31 March to 7 April 1976, 9 to 14 May 1977 and from 10-20 February 1978, the Special Rapporteur visited United Nations Headquarters and studied the resolutions and most recent documents produced by United Nations organs concerned with the subject-matter of this study. He also held various consultations.

38. The Special Rapporteur has had difficulty in drafting the present study owing to the enormous quantity of documents which he has had to handle and study. Because of the variety of United Nations organs which deal with matters connected with the right of peoples to self-determination, and the work also being done by specialized agencies, the orderly treatment of all this material is an extremely complex undertaking. The Special Rapporteur wishes to acknowledge the competence and spirit of co-operation shown by the Secretariat, which has given him every possible assistance in the preparation of his study.

39. The Special Rapporteur is of the opinion that the final study would be more valuable if it contained an annex giving a complete list, arranged chronologically and by subject, of the resolutions on the right of peoples under colonial and alien domination to self-determination which have been adopted by the various United Nations organs and are referred to in this study.

40. The Special Rapporteur also believes that it would be highly useful to publish a bibliography on the implementation of United Nations resolutions relating to the right of peoples under colonial and alien domination to self-determination. Annexed to this study is a bibliography compiled from information supplied by the United Nations Library and by the Governments of the German Democratic Republic, New Zealand, Pakistan and the Union of Soviet Socialist Republics, and from material which the Special Rapporteur has obtained as a result of his personal research. The Special Rapporteur feels certain that this bibliography will be useful, although he realizes that it is not exhaustive and could and should be expanded.

41. In the present study, appropriate treatment is given to the most widely accepted views of legal theorists on the questions under consideration. In the time available to him, the Special Rapporteur has been unable to include in the final version of the Study such full references as would have been desirable. However, precise and necessary references are given to the resolutions and other documents of the United Nations, since they are naturally the fundamental and decisive element in the preparation of this study.

C. Meaning of the expression ‘right of peoples under colonial and alien domination to self-determination”

42. In accordance with the previously mentioned resolutions of the Commission on Human Rights, the Economic and Social Council and the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the object of the present study is to consider the implementation of United Nations resolutions relating to the right of peoples under colonial and alien domination to self-determination.

The study is required to be based on the Secretary-General’s report, which contains an annotated collection of the resolutions relating to the right of peoples under colonial and alien domination to self-determination. (17) Accordingly, the Special Rapporteur’s mandate does not cover every matter connected with the right of peoples to self-determination, but extends only to those cases, as referred to in the Secretary-General’s report, which involve peoples under colonial and alien domination. This point is made in order to indicate the limits of the present study.

43. In order to clarify what is meant by the term “peoples under colonial and alien domination”, the Special Rapporteur requested the views of the Governments and bodies referred to in paragraphs 31, 32 and 33 above as to the meaning of those words from the point of view of the implementation of the relevant United Nations resolutions. In their replies, the Governments of Mexico, (18) Afghanistan, (19) the German Democratic Republic, (20) Iraq, (21) the Philippines (22) and New Zealand, (23) and E.C.A. (24) have stated what they consider the term to mean. At the thirty-third session of the Commission on Human Rights, 1977, the representative of Pakistan expressly stated his Government’s interpretation of this concept, an interpretation which generally accords with the views given in the above-mentioned replies, though it also specifically excludes the right of secession "unless the association in question had been accomplished illegally against the wishes of the people concerned”. (25)

44. The Special Rapporteur refers to this specific subject of secession in another part of his study (see para. 90). Despite their variations, these replies reveal a common view which the Special Rapporteur shares: that “colonial and alien domination” means any kind of domination, whatever form it may take, which the people concerned freely regards as such. It entails denial of the right to self-determination, to a people possessing that right, by an external, alien source. Conversely, colonial and alien domination does not exist where a people lives freely and voluntarily under the legal order of a State, whose territorial integrity must he respected, provided it is real and not merely a legal fiction, and in this case there is no right of secession.

45. Accordingly, the right of peoples to self- determination exists as such in modern international law, with all the consequences that flow there from, where a people is subject to any form or type of colonial and alien domination of any nature whatsoever. In keeping with what is stated in the foregoing paragraph, the notion of colonial and alien domination is broader than - though it includes - the notion of foreign occupation, and hence the right of peoples to self-determination may arise and be typified in other situations in addition to those where there is merely foreign occupation.

Clearly, however, the foreign occupation of a territory - an act condemned by modern international law and incapable of producing valid legal effects or of affecting the right to self-determination of the people whose territory has been occupied - constitutes an absolute violation of the right to self-determination. Every people subject to any form or type of colonial or alien domination possesses the right to self-determination, and no distinction can be drawn between one people and another for the purpose of recognizing the existence of this right if there is the necessary evidence of colonial or alien domination of the people or peoples in question.

Abstract: "..The right of peoples to self-determination has lasting force, does not lapse upon first having been exercised to secure political self-determination and extends to all fields, including of course economic, social and cultural affairs... The right of peoples to self-determination, as it emerges from the United Nations system, exists for peoples under colonial and alien domination, that is to say, who are not living under the legal form of a State. The right to secession from an existing State Member of the United Nations does not exist as such in the instruments or in the practice followed by the Organization, since to seek to invoke it in order to disrupt the national unity and the territorial integrity of a State would be a misapplication of the principle of self-determination contrary to the purposes of the United Nations Charter. However, to avoid any misunderstanding, it is necessary, in the Special Rapporteur’s view, to specify that if the national unity claimed and the territorial integrity invoked are merely legal fictions which cloak real colonial and alien domination, resulting from actual disregard of the principle of self-determination, the subject people or peoples are entitled to exercise, with all the consequences thereof, their right to self-determination..."

Some Questions concerning the Definition, scope and Legal Nature of the Right of Peoples under Colonial and alien domination to Self Determination

46. The Special Rapporteur shares the view of the drafting group appointed by the Sub-Commission at its twenty-sixth session, in 1973, that the modern concept of self-determination encompasses legal, political, economic, social and cultural aspects. (1.1)

In other words, as far as the International Covenants on Human Rights are concerned, the right to self-determination necessarily has political, legal, economic, social and cultural implications. The same formulation appears in paragraph 2 of resolution 1514 (XV). Hence the International Covenants on Human Rights and the Declaration contained in resolution 1514 (XV), as well as many other United Nations resolutions, affirm and recognize the multifaceted, composite nature of the right of peoples to self-determination. Thus conceived, therefore, this right includes political, economic, social and cultural aspects. (1.2) For the right to be fully effective, the existence of all these elements is required.

47. The implementation of the right of peoples to self-determination involves not only the completion of the process of achieving independence or other appropriate legal status by the peoples under colonial and alien domination, but also the recognition of their right to maintain, assure and perfect their full legal, political, economic, social and cultural sovereignty.

Many countries which no longer suffer from colonialism in the classic and traditional sense continue to suffer from neo-colonialism and imperialism in their various forms. The Special Rapporteur therefore considers it extremely important to make that point clear about the concept of self-determination.

49. It is not the Special Rapporteur’s intention to present at this point a full list of these instruments or to analyse them. However, many of the provisions contained in the above-mentioned instruments, and in other resolutions relating to the right of peoples to self-determination, will be cited in the present study. A thorough and systematic analysis of them would go beyond the scope of the study, and in any case such an analysis has been made in part by Mr. Cristescu in his preliminary study. (1.15)

50. The Special Rapporteur merely wishes to stress here the importance which recognition, declaration and reaffirmation of the right of peoples to self-determination has had and still has in the work of the United Nations. This is one of the spheres in which the Organization’s achievements are unanimously acknowledged to be of outstanding value and of historic significance. (1.16)

The affirmation and implementation by the United Nations of the right of peoples to self-determination brought about the crisis of colonialism and set in motion the process of its universal elimination. What in the Convenant of the League of Nations and in the international law of that era was a principle, as is the case with nationalities, applicable preferentially or, rather, almost exclusively in Europe, which did not imply the rejection of colonialism in Africa, Asia and Latin America, (1.17) what in the Charter of the United Nations was only the mention of a principle in Articles 1 (paragraph 2) and 73, was transformed, as a result of the work done by the Organization from 1952 onwards, but more particularly since 1960, into a basic principle, of universal applicability, into a right of all peoples and into a peremptory norm of international law which, with the end of the traditional colonialism - save for a few surviving remnants - led to a complete change in international society.

51. As is stated in paragraph 1 of the Declaration on the Granting of Independence to Colonial Countries and Peoples, “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”. Much the same language occurs in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.

52. Each of the International Covenants on Human Rights adopted by the General Assembly and opened for signature and ratification on 16 December 1966,(1.18) and in force since 1976, states in article 1, paragraph 1:

This led to the drafting of the text contained in article I of the two Covenants. (1.21) The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations reproduces almost textually the formulation used in the two International Covenants on Human Rights. The critical attitude shown by a considerable body of legal opinion in the 1950s towards the inclusion of the self-determination of peoples in the two International Covenants on Human Rights, an attitude based on a denial of the legal character of the principle of self- determination of peoples or on the essential difference in nature between this “right of peoples” and human rights, (1.22) has already been overcome.

53. The Proclamation of Teheran, adopted on 13 May 1968 by the International Conference on Human Rights at Teheran, states in paragraph 9 that the survival of colonialism is having a negative effect on the recognition and enjoyment of human rights, and resolution VIII (1.24) affirms the inescapable relation between realization of the right to self-determination and recognition and effective observance of human rights. As is implicit in the texts cited and in the preamble to the two International Covenants on Human Rights, the effective exercise of the right to self-determination constitutes one of the “conditions” required to enable everyone to enjoy his economic, social and cultural rights and his civil and political rights.

54. In its resolution 3 (XXXI), of 11 February 1975, the Commission on Human Rights recognized “the particular importance for the realization of human rights of the application of the principle of the rights of peoples to self-determination”. In its discussions, the Commission has repeatedly pointed out that self-determination is a right of the individual and a prerequisite for the exercise of other rights and freedoms.(1.25)

55. From the United Nations instruments cited in the last four paragraphs it is clear that the right of peoples under colonial and alien domination to self-determination has been conceptualized as a right of the individual, as a condition or prerequisite for the genuine existence and the exercise of the other human rights and freedoms and as a right of peoples under colonial and alien domination - all without prejudice to its being at the same time a basic principle of international law of a peremptory character. In the succeeding paragraphs the Special Rapporteur will endeavour to define and delimit the concept of self-determination in each of these cases, that is to say, as a basic human right, as a condition for the other rights and freedoms, as a right of peoples under colonial or alien domination and as a peremptory principle of international law.

56. Self-determination is essentially a right of peoples. (1.26) The divergence of opinion among legal theorists which existed on this point until a few years ago has been overcome; the Declaration adopted in resolution 1514 (XV) and the International Covenants on Human Rights have provided the basis for unquestioned acceptance in international law of the fact that self-determination is a right of peoples under colonial and alien domination. To characterize self-determination as a collective right (1.27) possessed by peoples raises awkward theoretical problems, because of the difficulty of defining the concept of a people and drawing a clear distinction between that and other similar concepts.

People and Nation are two closely related concepts; they may be one and the same, but they are not synonymous.

Modern international law has deliberately attributed the right to Peoples, and not to Nations and States. However, when the People and the Nation are one and the same, and when a People has established itself as a State, clearly that Nation and that State are, as forms or manifestations of the same People, implicitly entitled to the right to self-determination.

There is no doubt that the theoretical and practical difficulties involved in these concepts are very great and the Special Rapporteur cannot possibly make a thorough and conclusive analysis of these concepts. All he can do is to make clear his ideas on the subject, even if they are only his first thoughts and presented in summarized form. Apart from such difficulties, however, it is evident that. both politically and practically, the right of peoples to self-determination is one of the major realities of the present day and that the invocation and recognition of this right have radically changed international society as it existed until a few years ago.

In their replies, the Government of the Philippines stated that a minority or a foreign State cannot invoke the right of self-determination, and the Government of Iraq stressed the need to distinguish between peoples and minorities, since only peoples possess the right of self-determination. The reply of the Government of the German Democratic Republic gave a full analysis of the reasons why all peoples should be recognized as possessing it.

57. To assert that self-determination constitutes a collective right of peoples does not mean that an individual right, to which all human beings are entitled, cannot exist at the same time. A right can be simultaneously an individual right and a collective right.

The presumed incompatibility between the two types of rights is inadmissible. This conclusion, already recognized, for instance, with respect to the right to development, the right to form trade unions and the right to freedom of information, is perfectly applicable to the ease of the right to self-determination.

58. In the Special Rapporteur’s judgement, it is important likewise to try to conceptualize the right to self-determination as a right of the individual. The Commission on Human Rights has repeatedly invoked it as such, without giving a precise reason for that conception and without distinguishing self-determination as a right of the individual from self-determination as a condition or prerequisite for the effective exercise of the other rights and freedoms.

The Special Rapporteur considers, moreover, that self-determination as a right of the human being is a consequence of the necessary recognition of the political rights of citizens and of the civil, economic, social and cultural rights of all individuals without any discrimination. The self-determination of citizens, individually, on the basis of the recognition of their political rights, is a prerequisite of the effective realization of self-determination as the people’s collective right. This view is referred to in paragraph 284 of this study. (1.30)

59. In addition, however, the effective exercise of a people’s right to self-determination is an essential condition or prerequisite, although not necessarily excluding other conditions, for the genuine existence of the other human rights and freedoms. Only when self-determination has been achieved can a people take the measures necessary to ensure human dignity, the full enjoyment of all rights, and the political, economic, social and cultural progress of all human beings, without any form of discrimination.

Such is the fundamental importance of self-determination as a human right and a prerequisite for the enjoyment of all the other rights and freedoms. It is with awareness and appreciation of these characteristics of self-determination that the Special Rapporteur has approached the present study.

Whatever legal formula may be used in an attempt to conceal alien domination, the right of the subject people cannot be disregarded without international law being violated...

60. The United Nations has established the right of self-determination as a right of peoples under colonial and alien domination. The right does not apply to peoples already organized in the form of a State which are not under colonial and alien domination, since resolution 1514 (XV) and other United Nations instruments condemn any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country.

The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (General Assembly resolution 2625 (XXV)) uses particularly apt language in spelling out this idea: it reaffirms the need to preserve the territorial integrity of sovereign and independent States, but ties this concept to the requirement that the States must be “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour”.

The right of peoples to self determination gives rise to corresponding duty of all States to recognize and promote it...

61. This right of peoples gives rise to the corresponding duty of all States to recognize it and to promote it. (1.32) The international community and all States not only have a legal duty to refrain from opposing and impeding the exercise of the right to self-determination, but also are under a positive obligation to help in securing its realization, by promoting its exercise and by co-operating in every possible way to ensure that peoples under colonial and alien domination achieve their independence and that those peoples which have already become independent as a result of exercising their right to self-determination achieve their complete sovereignty and full development. These considerations have a particular bearing on the question of the legitimacy of the use of force to achieve self-determination, and the corresponding duty to display solidarity. The Special Rapporteur will pay special attention to this in paragraph 93.

62. The right of peoples under colonial and alien domination to self-determination is not contingent on any kind of condition or requirement. In particular, resolution 1514 (XV) precludes any opposition to the exercise of the right to self-determination on the pretext that a people has not reached a sufficiently high level of development to lead an independent existence.(1.33)

63. Peoples under colonial and alien domination accordingly have rights and obligations conferred by contemporary international law. They therefore possess an international personality and as regards the exercise of their rights and the performance of their duties can be regarded as subjects of international law. (1.34) Clearly, not all subjects of law have the same status, nor are their rights and duties identical. (1.35) That is why the view that peoples are now, within the limits indicated above, subjects of law is tenable.

64. The national liberation movements of peoples struggling against colonial and alien domination, which have been recognized by the United Nations as legitimate representatives of those peoples, also possess, with the same limitations, that character. The Special Rapporteur will refer to these movements further on.

65. The exercise and implementation of the right of peoples to self-determination presupposes the free and genuine expression of their will. This is implicit in paragraph 2 of resolution 1514 (XV) and in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (resolution 2625 (XXV)), which provides that colonialism is to be brought to an end “having regard to the freely expressed will” of the people, and has been asserted with particular emphasis by the International Court of Justice; (1.36) it is a point of outstanding importance because it means that the will of the people must be expressed through popular consultation accompanied by all the safeguards necessary to ensure freedom of expression for the people concerned.

As the Court remarked, the validity of this assertion is not affected by United Nations dispensations, which have been based either on the conviction that such a consultation was unnecessary in a particular case or on special circumstances.(1.37) A people under colonial and alien domination is unable to express its will freely in a consultation, plebiscite or referendum organized and controlled exclusively by the colonial and alien power. Only when it is really and genuinely free is the expression of a people’s will capable of determining the politico-international status of the people in question.

66. A necessary consequence of recognition of the right of peoples under colonial and alien domination to self-determination is the rejection and condemnation of colonialism in all its forms and manifestations. Under contemporary international law, colonialism is an international crime expressly characterized as such. (1.38) The criminal character of colonialism and of the acts by which it is practised calls for emphasis, because of its special significance and implications.

67. Self-determination is also a principle which has been characterized as a basic principle of international law and has been included as such in the Declaration adopted by the General Assembly in resolution 2625 (XXV). (1.39) It is a principle of enormous importance for contemporary international law since it affects practically all the issues at present arising in the law of nations. (1.40)

68. For example, as regards the succession of States in respect of treaties, application of the principle of self-determination has ruled out the traditional solutions and made it necessary to adopt provisions preventing the automatic imposition on the new State of obligations arising out of its former colonial status.(1.41)

69. In this connexion, it should be emphasized that, especially on the basis of resolution 1514 (XV), all titles which established or were held to establish sovereignty or dominion over a colonized territory have lapsed, in as much as they conflict with the principle of the right of peoples under colonial and alien domination to self-determination. Under the new international order now applicable all former colonial titles, deriving from the old obsolete international law, have ceased to exist. Today by virtue of so-called “inter temporal law” all these situations can be resolved solely through application of the consequences of recognition of the right of peoples to self-determination. (1.42)

Principle of self-determination of peoples, an example of jus cogens, that is, a peremptory norm of general international law...

70. The exceptional importance of the principle of the self-determination of peoples in the modern world is such that today the principle has been held to constitute an example of jus cogens, that is, a peremptory norm of general international law”, to quote the expression used in article 53 of the Vienna Convention on the Law of Treaties.

71. In 1963, in the International Law Commission’s commentary to article 37 of the draft articles on the law of treaties, it was mentioned that the principle of self-determination could be cited as an example of jus cogens. However, since the Commission decided against including any examples of jus cogens in the article itself, the reference to self-determination appears solely in the report. (1.43) The Commission reiterated its comments when article 37 became article 50 of the later draft. (1.44) When the draft articles prepared by the International Law Commission were subsequently discussed in the Sixth Committee of the General Assembly, various speakers, including the representatives of Czechoslovakia, Pakistan, Peru, the Ukrainian Soviet Socialist Republic, and the Union of Soviet Socialist Republics, expressed support for the view that the principle of self-determination had the character of jus cogens. (1.45)

72. It is highly significant that the only expression of opposition to according the character of jus cogens to the principle of self-determination came from the then Government of Portugal, which in 1964 stated:

73. Statements similar to those in the International Law Commission were made at the first session of the United Nations Conference on the Law of Treaties. (1.47) The omission of examples from the text which later became article 53 of the Vienna Convention on the Law of Treaties certainly did not mean a denial of the character of jus cogens to the cases mentioned during the drafting of the articles; it simply arose from a desire to leave the question open so that the content of jus cogens could “be worked out in State practice and in the jurisprudence of international tribunals”. (1.48) This is the right approach, since, without prejudice to the possible existence of other means of determining the content of jus cogens, it implies that this content is not static or fixed but takes shape and evolves according to the criteria and principles accepted by the international community as a whole at any particular time in its historical development.(1.49)

74. The idea that the content of jus cogens is subject to change and variation, as a result of the process of evolution of the concepts accepted and recognized as forming part of it by the international community as a whole, is admitted in article 53 of the Vienna Convention on the Law of Treaties, inasmuch at it stipulates that a norm of jus cogens “can be modified only by a subsequent norm of general international law having the same character”, and in its article 64, which admits the possibility that a new peremptory norm of general international law may emerge.

75. The question was discussed incidentally at the twenty-fifth session of the General Assembly, during the preparation of the Declaration on Principles of international Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (resolution 2625 (XXV)). The representative of Iraq maintained that the fundamental principles of international law contained in the Declaration, which include the principle of self-determination of peoples, could be considered as true rules of jus cogcns. (1.50) This interpretation was contested by the representative of the Netherlands, who took the view that the Declaration was heterogenous and could not be spoken of in terms of jus cogens. (1.51) That was basically the opinion which had been expressed by the representative of the United States of America in the Special Committee. (1.52) The terms of the discussion have moreover been commented on in the literature. (1.53)

In the view of the Special Rapporteur, even if it is accepted that the Declaration, which includes desiderata as to the content of future international law, is heterogeneous, and thus not of the nature of jus cogens in every one of its propositions, the fundamental principles of the Charter embodied in it - and hence the principle of self-determination of peoples - as enunciated in General Assembly resolution 2625 (XXV), are nevertheless of the nature of jus cogens.

The principles in question are described as “basic” in the Declaration itself and are referred to in like terms in paragraph 3 of the Declaration on the Occasion of the Twenty-fifth Anniversary of the United Nations (1.54)and in paragraphs 2 to 6 of the Declaration on the Strengthening of International Security (1.55) ; these are three fundamental documents adopted without opposition on the occasion of the twenty-fifth anniversary of the Organization. Leaving aside the supplementary formulations, the consequences and the corollaries which are set out in a heterogenous manner under each of these principles in the Declaration adopted in resolution 2625 (XXV), the principles themselves constitute contemporary manifestations of what in contemporary international law are rules of jus cogens.

76. The idea that the principle of self-determination has this character and is thus at the very summit of the legal hierarchy has already begun to make progress in jurisprudence, (1.56) although it does not yet command unanimous acceptance. (1.57)

77. It is important to point out that acceptance of the idea of the existence of jus cogens is not, generally speaking, associated with a particular school of legal thought and that writers of differing theoretical tendencies at present accept the existence of peremptory norms of international law. (1.58)

78. In present-day legal theory the idea that self- determination is a case of jus cogens is widely supported, whether because it is held that the character of jus cogens is an attribute of the principle of self- determination of peoples (1.59) or because it is considered that this right, being a condition or prerequisite for the exercise and effective realization of human rights, possesses that character as a consequence thereof. (1.60)Contrary opinions or, rather, those which do not include self-determination among the cases of jus cogens, seem to be in the minority at present. (1.61)

79. In 1976 the International Law Commission, in its draft articles on State responsibility, approved an article characterizing as an international crime a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination”. (1.62)

80. This provision originated in Professor Roberto Ago’s draft, which characterized as an international crime “the serious breach by a State of an international obligation established by a norm of general international law accepted and recognized to be essential by the international community as a whole and having as its purpose: (a) Respect for the principle of the equal rights of all peoples and of their right of self-determination”. (1.63) In spite of the change of wording and although Professor Ago’s formulation is clearer, more precise and more radical, the International Law Commission has agreed that violation of the right of peoples to self-determination is a most serious offence, an international crime, and has thus tacitly admitted that this principle is one of the cases which in contemporary international law can be characterized as jus cogens.

81. In the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in 1976, various experts, when referring to the two studies in course of preparation, maintained that the right of peoples to self-determination possesses the character of jus cogens. In 1977, when this study was first considered, the subject was dealt with at considerable length, and Mr. Ortiz Martin, Mr. Caicedo Perdomo, Mr. Navarro Richardson, Mr. Dadiani, Mr. Cassese, Mr. Yussef and the Representative of the Palestine Liberation Organization expressly affirmed the character of jus cogens of the principle of the self-determination of peoples. In 1978, Mr. Amadeo, Mr. Holguin Ilolguin, Mr. Martinez Cobo, Mr. Dadiani, Mr. Singhvi, Mr. Abu Sayeed, Mr. Pirzada, Mr. Jimeta and the Observer for Iraq expressed the same opinion. (1.64)

82. In the Commission on Human Rights, in 1977, when the studies by the two Special Rapporteurs were considered, the representative of the Syrian Arab Republic shared the point of view of the Special Rapporteur who prepared the present study to the effect that the right of peoples to self-determination is a case of jus cogens. (1.65) The Commission’s report also makes special reference to this question. (1.66) In 1978, at the Commission’s thirty-fourth session, approval was expressed repeatedly for the view that the right of peoples to self-determination should be regarded as one of jus cogens. (1.67)

83. In its Programme of Action, the World Conference to Combat Racism and Racial Discrimination (Geneva, 14-25 August 1978) called upon all Governments to adopt at the national level, inter alia, the following measure:

At the international level, the Conference recommended that “the United Nations Institute for Training and Research should organize an international colloquium on the prohibition of apartheid, racism and racial discrimination and the achievement of self-determination in international law, paying special attention to the principles of non-discrimination and self-determination as imperative norms of international law” (sect. B, para. 29). (1.68)

84. The Special Rapporteur must not conceal his theoretical viewpoint, which bases jus cogens on admission of the existence of natural law. In other words, he considers that the raison d’être of a jus cogens is the existence of the natural law, but considers furthermore that jus cogens is par se natural law. (1.69)

85. He shares with full conviction and in full awareness of all its consequences, the idea that today the right of peoples to self-determination is one of the cases of jus cogens. He recognizes that his opinion does not entirely accord with that of the other Special Rapporteur, Mr. Cristescu, but considers that the two studies, the product of viewpoints which are not necessarily identical, do not have to tally in all their legal or theoretical assertions. The presence in the studies of differing viewpoints enriches them, enhances their interest and confirms the wisdom of entrusting the preparation of separate studies to two persons.

Any international agreement that violates the principle of the self-determination of peoples is undoubtedly void...

86. Article 53 of the Vienna Convention on the law of treaties provides that “a treaty is void if, at the time of its conclusion, it conflicts which a peremptory norm of general international law”.

If, therefore, one accepts the view which the Special Rapporteur regards as correct - namely that the principle of self-determination has the character of jus cogens - any treaty which conflicts with the principle will be void.

Article 53 of the Vienna Convention, which is already in force, was adopted in the face of some opposition (72 votes in favour, 3 against and 18 abstentions), and cannot therefore be regarded as codifying customary law.

As between the States which are parties to the Vienna Convention, any international agreement entered into among them that violates the principle of the self-determination of peoples is undoubtedly void. As between the other States not as yet parties to the Convention, the fact that the idea that self-determination is a principle of jus cogens has been gaining ground in recent years and that the value and significance in real life and in legal thinking of the Vienna Convention are of very special and undoubted importance, is a circumstance that cannot be ignored as a basis for the view in favour of treating any international agreement, whatever its nature, that violates the principle of the self-determination of peoples as void.

87. Even though the Vienna Convention deals only with treaties between States, there is no doubt that from a theoretical point of view and in doctrine the same conclusion regarding the voidness of such treaties, if they should violate a peremptory norm of international law, should apply to treaties between States and international organizations and to all international legal instruments of whatever nature, including, for example, resolutions of international organizations.

88. In his preliminary study, the Special Rapporteur said that there were certain questions closely and inextricably linked to the right of peoples under colonial and alien domination to self-determination which gave rise to serious and complex problems that would need analysis in the final study. Among such questions, he mentioned the problem of the territorial integrity of the State, the question of the rights and duties of States resulting from the exercise by peoples of their right to self-determination, and the question of very small States. He also said that he intended to examine those questions in the light of the replies received to the questionnaire. (1.70)

Unfortunately, the replies so far received do not deal with these matters, which cannot therefore be studied in full. However, some replies have been received, which are analysed in the relevant parts of this study.

For instance, the Government of Morocco has transmitted various documents giving its position on a number of problems, in particular on the question of the territorial integrity of the State in relation to the exercise of the right to self-determination. Consequently, as it is impossible to analyse all these questions in depth, only a few brief comments are possible, based on the views put forward by the Special Rapporteur in his study.

Similarly, some inevitably very brief references will be made to the question of the international responsibility of the State in respect of breaches of obligations arising out of the right of peoples to self-determination and to the question of personal responsibility, in respect of offences arising out of an activity conducted in violation of the right of self-determination, under international penal law.

89. With regard to the preservation of the territorial integrity of the State in relation to implementation of the right of peoples to self-determination, both the Declaration on the Granting of Independence to Colonial Countries and Peoples and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (1.71) assert in strong terms the need to respect and preserve that integrity.

But even the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States provides that sovereign and independent States, in order to be entitled to respect for their territorial integrity, should conduct themselves in compliance “with the principle of equal rights and self-determination” and should thus be “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour".

90. The express acceptance in those instruments of the principles of the national unity and the territorial integrity of the State implies non-recognition of the right of secession. (1.73)

The right of peoples to self-determination, as it emerges from the United Nations system, exists for peoples under colonial and alien domination, that is to say, who are not living under the legal form of a State. The right to secession from an existing State Member of the United Nations does not exist as such in the instruments or in the practice followed by the Organization, since to seek to invoke it in order to disrupt the national unity and the territorial integrity of a State would be a misapplicaion of the principle of self-determination contrary to the purposes of the United Nations Charter. (1.74)

However, to avoid any misunderstanding, it is necessary, in the Special Rapporteur’s view, to specify that if the national unity claimed and the territorial integrity invoked are merely legal fictions which cloak real colonial and alien domination, resulting from actual disregard of the principle of self-determination, the subject people or peoples are entitled to exercise, with all the consequences thereof, their right to self-determination.

Right of peoples to self-determination necessarily implies the right of peoples to struggle by every means available to them, when the possibilities of obtaining recognition of the right to self-determination by peaceful means have been exhausted...

91. The question of the duties of States resulting from the exercise by peoples of their right to self- determination has been dealt with in, among other instruments applicable, the two International Covenants on Human Rights (art. I, para. 3) and in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.

All States “shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations” and ‘every State has the duty to refrain from any forcible action which deprives peoples. . . of their right to self-determination and freedom and independence. . .; in their actions against, and resistance to such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter”.

The same ideas are expressed in the Definition of Aggression. (1.76) In other words, all States have a positive legal duty to respect, promote and assist the exercise of the right of peoples to self-determination and a negative duty to refrain from any measures which deprive peoples of that right. Any action the purpose of which is to deprive peoples of their right to self-determination constitutes an intervention specifically characterized as such by General Assembly resolutions 2131 (XX) and 2160 (XXI). (1.77) These duties must of course be interpreted, and their limits determined, in the light of the purposes and principles of the United Nations Charter and on the basis of systematic co-ordination of all the relevant instruments of the Organization.

92. In the exercise of their right to self-determination, peoples under colonial and alien domination have the right “to struggle... and to seek and receive support, in accordance with the principles of the Charter” and in conformity with the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. It is in these terms that article 7 of the Definition of Aggression (General Assembly resolution 3314 (XXIX) of 14 December 1974) recognizes the legitimacy of the struggle of peoples under colonial or alien domination.

93. Thus the right of peoples to self-determination necessarily implies the right of peoples to struggle by every means available to them, when the possibilities of obtaining recognition of the right to self-determination by peaceful means have been exhausted, against colonialist Powers which suppress their aspirations to freedom and independence.

This right of colonial peoples, which is inherent in their status as such, has been recognized repeatedly in many resolutions of the United Nations General Assembly and implies acceptance of the legitimacy even or armed struggle against colonial domination and of the use of force to that end, since in such cases the use of force does not constitute a form of aggression. (1.78) At the thirty-fourth session of the Commission on Human Rights, numerous references and comments were made that concurred with the Special Rapporteur’s view on the subject, and paragraph 2 of resolution 3 (XXXIV) reaffirmed the legitimacy of this struggle.

94. In the Charter of the United Nations provision is made for the use of force only in the case where it is employed by the international community in conformity with the provisions of the Charter, and consequently that is the only case where it is lawful (Arts. 42 to 50), or where force is resorted to in the exercise of the inherent right of individual or collective self defence (Art. 51). The relevant provision of the Charter concerns the case of armed attack against a Member of the United Nations. The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (General Assembly resolution 2625 (XXV)) cites the principle that

though it contains a saving clause regarding cases where under the provisions of the Charter the use of force is lawful.

The struggle of peoples for their self-determination in face of colonial and alien domination gives rise to an international armed conflict and does not create a situation of civil war...

96. The struggle of peoples for their self-determination in face of colonial and alien domination gives rise to an international armed conflict and does not create a situation of civil war. (1.79) This view, which was upheld by the General Assembly in its resolution 3103 (XXVIII), of 12 December 1973, was affirmed in article 1, paragraph 4, of Protocol I to the Geneva Conventions of 1949, which was approved by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts in July 1977. (1.80)

97. Since the warlike conflicts resulting from the struggle of peoples against colonial and alien domination are not civil wars but international armed conflicts, third States are not bound by the duty of non-intervention in the conflict, since on the contrary there is a positive legal obligation to assist a people struggling against colonial domination.

98. In the prosecution of this struggle, the individuals fighting for the self-determination of their people under colonial and alien occupation must be protected by the rules of humanitarian law, as has been repeatedly recognized by the General Assembly and as emerges from the recent work of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, (1.81) in particular from article 45, paragraph 3 of Protocol I of 1977 to the Geneva Conventions of 1949 and from resolution 3 (XXXIV) of the Commission on Human Rights, of 14 February 1978.

99. The General Assembly has also taken up the question of mercenaries engaged to fight against peoples under colonial and alien domination struggling for their self-determination. In view of the situation prevailing in various regions of conflict, (1.82) this subject is at present of very great importance and interest. In paragraph 6 of its resolution 3 1/34, of 30 November 1976, the General Assembly

This proposition is restated in General Assembly, resolution 32/14, of 7 November 1977. In resolution 239 (1967) the Security Council had already condemned “any State which persists in permitting or tolerating the recruitment of mercenaries, and the provision of facilities to them, with the objective of overthrowing the Governments of States Members of the United Nations”. In resolution 405 (1977) the Council repeated that resolution and the condemnation pronounced in it. The Commission on Human Rights reaffirmed, in paragraph 4 of its resolution 3 (XXXIV), that the recruitment of mercenaries in such situations was unlawful.

100. For its part the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts, at its session in 1977, adopted by consensus on 28 April an article stipulating that a mercenary shall not have the right to be a combatant or a prisoner of war. This article, which has become article 47 of Protocol I to the Geneva Conventions of 1949, defines the concept of mercenary and establishes that a mercenary shall not have the right to be a combatant or a prisoner of war. (1.83)

101. The right of peoples to fight for self-determination is a collective right, which is based on “man’s basic human right to fight for the self-determination of his people under colonial and foreign domination”. (1.84) Recognition of man’s basic human right to fight for the self-determination of his people obviously has important implications for the legal status of such fighters and the way in which they should be treated.

102. The right of peoples to seek and receive help and political, moral and material assistance in their struggle to exercise self-determination has as its consequence the acceptance of the legitimacy of the support and assistance furnished to them. The provision of this help, as is the case with the legitimacy of the struggle conducted by these peoples, must of course accord with the principles of the Charter and be in conformity with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States and the other applicable instruments of contemporary international law. The matter is thus subject to conditions and limitations.

103. Such help in the struggle of peoples for self- determination may be provided by States acting individually or collectively, since, as the General Assembly has stated, “it is the duty of every State to contribute through joint and independent action to the implementation of the principle of self-determination”. (1.85) But help, support and assistance must also be provided by the whole United Nations system of organizations. As the Economic and Social Council stated in paragraph 2 of its resolution 1978 (LIX) of 31 July 1975,

104. Attention must again be drawn to the importance of the activities of national liberation movements in securing the effective exercise of the rights of peoples under colonial and alien domination to self-determination. Without anticipating the further treatment of this matter later in the study, it should be noted at this stage that, on the basis of resolution 2918 (XXVII) of 14 November 1972, the decision of 3 October 1973 and resolutions 3210 (XXIX) of 14 October 1974, 3237 (XXIX) of 22 November 1974 and 3375 (XXX) of 10 November 1975 of the General Assembly, the national liberation movements of the colonial territories in Africa recognized by OAU and the Palestine Liberation Organization were invited to participate as observers in the work of the General Assembly and other United Nations bodies.

Also, in March 1976, the Security Council invited the Palestine Liberation Organization to participate, together with Israel, in the debate on the disturbances on the west hank of the River Jordan. Thus these movements were recognized to be the authentic representatives of the legitimate aspirations of peoples under colonial and alien domination, and were given a specific status. This not only facilitates ways and means of co-operating in the activities of the movements concerned and of involving them in United Nations efforts to secure the exercise of the right to self-determination, but also shows an awareness of all the possible results of their activities in stimulating progress towards full self-determination. The importance of these developments and their considerable impact on the current process of decolonization cannot fail to be recognized.

105. These United Nations resolutions mean that the above-mentioned national liberation movements which are fighting against colonial and alien domination, as a manifestation of the right of peoples to self-determination, are accorded an international personality. What is more, these liberation movements, in the specific cases where they are operating against colonial and alien domination, have rights and obligations which contemporary international law has been conferring upon them on an increasing scale. In this sense, and to a limited extent, and with sole and strict reference to the exercise of the rights and obligations attributed to them by international law, they can be regarded as subjects of international law. (1. 86)

Violation by a State of the right of people to self determination is an international crime...

106. The violation by a State of the right of peoples to self-determination constitutes a ground for international responsibihity. The breach by a State of an obligation deriving from the recognition by international law of the right of peoples to self-determination, especially a violation of the duty to refrain from establishing or maintaining colonial domination by force, is an international crime, precisely characterized as such, which gives rise to an international responsibility governed by a specific régime. (1.87)

107. Certain particularly serious criminal acts of individuals committed in the course of an activity conducted in violation of the right of peoples to self- determination, for the purpose of establishing or maintaining colonial and alien domination by force, should be a matter for international penal law and, when a code of these international offences comes to be drawn up, should be specially provided for. The matter of the jurisdiction competent to deal with them will also have to be settled.(1.88)

Question of small states and the desirability of the formation of unions, confederations or federations of States...

108. The question of very small States (1.89) has manifold implications. It is clear that it raises very serious and complex problems as regards the exercise of the right of peoples to self-determination. It is not the Special Rapporteur’s intention to analyse this issue in depth, since it has been dealt with extensively in international theory and practice.

There is no legal basis for denying the right to self-determination on the ground that the population of which a people is composed, or the territory which it inhabits, is small; consequently, the existence of the right to self-determination cannot be challenged by arguing that, if its exercise led to independence, a very small State might result.

However, the matter requires serious thought because of the difficulties to which this could give rise; because in certain extreme cases very small States would not be in a position to form real free, independent and sovereign entities (1.90) and would be unable to discharge the duties that inevitably flow from membership of the United Nations (1.91) and because the proliferation of very small States might have the effect of destroying or seriously undermining the very foundations of the existing community of nations, while at the same time giving rise to the problem that this type of very small State might be particularly suited to forms of intervention and/or influence which could well characterize dangerous manifestations of neocolonialism.

For the same reasons, it is necessary, without any course being taken which would affect the essence of the right of peoples to self-determination, to stress the desirability of the formation of unions, confederations or federations of States - provided that these result from the free expression of the sovereign will of the peoples composing them - which make it possible to overcome the major difficulties and more obvious dangers to which an uncontrolled and undefined proliferation of very small States would give rise.

The Right to Self Determination:Implementation of United Nations Resolutions

The Right to Self Determination:
Implementation of United Nations Resolutions