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Self Determination: International Law & Practice
The Right to Self Determination: Issues Raised
Leo Kuper
in The Prevention of Genocide, 1985
[see also other books by Leo Kuper:
The Pity of It All : Polarisation of Racial and Ethnic Relations , 1977
Genocide : Its Political Use in the Twentieth Century , 1983
International Action Against Genocide , 1982
Race, class and power : ideology and revolutionary change in plural societies and
Secession: The Legitimacy of Self-Determination by Lee C. Buchheit
" Self-determination in its original conception was a liberating revolutionary doctrine, and it has served this function in the decolonizing process. Indeed, it may be viewed as the “Marseillaise” of decolonization. But in other contexts, the doctrine has been domesticated to serve the interests of ruling classes. Its present state, in United Nations practice, is a bewildering complex of radicalism and conservatism.
A vast literature of debates, resolutions, declarations, and reports, a veritable blizzard,”1 attests to the significance of the doctrine in the proceedings of the United Nations. It includes two major studies, both under the aegis of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The first, by Hector Gros Espiell, The Right to Self-Determination: Implementation of United Nations Resolutions,2 is concerned with the implementation of United Nations resolutions relating to the right of peoples under colonial and alien domination to self-determination. It was intended not merely as a theoretical work but as a contribution to the struggle against colonialism in all its forms, and it is essentially a revolutionary document. Thus the right to self-determination is viewed as extending beyond the original free determination of political status to the maintenance, assurance and perfection of ‘full legal, political, economic, social and cultural sovereignty.” Moreover, it is conceived as having lasting force: it does not lapse after having been first exercised to secure political self-determination, and it extends to all fields.3
At the same time, there is a strong conservative cast to the exposition of the doctrine. This right, we are told, does not apply to peoples already organized in the form of a state that is not under colonial and alien domination, since various U.N. instruments condemn attempts aimed at the partial or total disruption of the national unity and the territorial integrity of a country.
So, too, “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 Organisation, since to seek to invoke it in order to disrupt the national unity and he territorial integrity of a State would be a misapplication of the principle of self-determination contrary to the purposes of the United Nations Charter.”
We are warned, however, against accepting surface appearances: colonial and alien domination may persist under the guise of an ostensible national unity. And our attention is drawn to a proviso, in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. This ties respect for territorial integrity to the requirement that the State should conduct itself in compliance with the principle of equal rights and self-determination, and thus be “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”4
The second study, by Aureliu Cristescu, The Right to Self Determination: Historical and Current Development on the Basis of United Nations Instruments5 deals more broadly with the development of the basic concepts involved in self-determination. The right itself is described in the most glowing terms. It is “a fundamental right, without which other rights cannot be fully enjoyed. It is not only a principle, but the most important subjective right among human rights . . . a prerequisite for the exercise of all individual rights and freedoms.”6
The principle of equal rights and self-determination should be understood in its widest sense. It signifies the inalienable right of all peoples to choose their own political, economic and social system and their own international status. The principle of equal rights and self-determination of peoples thus possesses a universal character, recognised by the Charter, as a right of all peoples whether or not they have attained independence and the status of a State. Furthermore, the very concept of the principle of equal rights and self-determination of peoples is extremely wide ... The charter of the United Nations should not be interpreted as confining that right to a particular category of peoples, because, as United Nations practice has made clear, the word “peoples” as used in Article 1, paragraph 2, of the Charter means all peoples .7
The statement of the principle could hardly be more radical, and this radical quality is particularly marked in the subsidiary principles that the author derives from the right to self-determination. Thus, in discussing the right of peoples freely to pursue their economic development as an essential element of the right to self-determination, the author raises the issue of social justice at both the national and international levels. At the national level, “public ownership of the means of production, which is practised by an increasing number of countries, remains the decisive factor in achieving equitable distribution of the national income, economic and social democratization and social justice.” At the international level, “the principles of law and justice which necessarily derive from the development of the right to self-determination” should “provide for the equalization of the levels of economic development of all countries, as a genuine basis for the democratization of international life.”8
But again, political conservatism is juxtaposed to revolutionary radicalism. The conservatism is protective of the independent sovereign state. A provision of the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) is invoked as authority for the proposition that “the principle of equal rights and self-determination is not to be applied to parts of the territory of a sovereign State. Such a provision is needed in order to prevent the principle from being applied in favour of secessionist movements in independent States.”9
In a later passage, we read that the principle of equal rights and self-determination of peoples should serve to unite peoples on a voluntary and democratic basis, not to break up existing national entities. It is necessary to avoid any formulation of the principle which might be interpreted as widening its scope and making it applicable to peoples who already form part of an independent sovereign State. To do otherwise would be to encourage secessionist movements in sovereign States, and might serve as a pretext for endangering the national unity and territorial integrity of sovereign States. . . . The principle of self-determination should not be misused. It should not be invoked to call in question the frontiers established between States.10
There are further warnings against the principle being interpreted as an encouragement to secessionist or irredentist movements, and in one passage an admonition against its use to justify “activities aimed at changing a country’s system of government.”11 And as if all this were not conservative enough, the author includes a panegyric in favor of nationalism, which, I would have thought, constituted the major contemporary threat to the survival of our species.12
The report does not totally exclude the right of secession. It “unquestionably exists .. . in a special, but very important case: that of peoples, territories and entities subjugated in violation of international law."13 And the rapporteur does introduce some nuances to the conservatism. He links the self-determination of peoples to human rights and comments that “the international community has generally accepted the idea that the principle of non-intervention does not apply in a case of violation of those rights.”’14
However, the implications of this exception are not very clear to me, nor are they developed in the report, which emphasizes the general principle of nonintervention in the domestic affairs of sovereign states. There is mention of the proviso, or qualification, to the general obligation to refrain from actions that would dismember or impair the territorial integrity or political unity of a sovereign and independent state, namely, that the State conduct itself in compliance with the principle of equal rights and self-determination of peoples and be representative, without discrimination, of the population as a whole. But in a passage dealing with this qualification, the rapporteur curiously introduces the word particularly so as to strengthen the injunction against “any act likely to prejudice the national unity and territorial integrity of a State—particularly a State” that conducts itself in the manner described above.’ 15
These major United Nations reports thus elaborate a radical revolutionary ideology in respect to liberation from colonial and alien subjugation and in the perspectives they offer on external self-determination of the successor sovereign states.
By contrast, the perspectives on internal determination in the independent sovereign states are highly conservative, especially in relation to secession.
The term itself is pejorative, with connotations of disloyalty, of treachery. Why should the process not be described as “separation” or, in appropriate cases, as “liberation”?
This combination of radical and conservative ideologies should not surprise us. The radical ideologies, both in respect to decolonization and in the extension of self-determination to economic, social, and cultural areas, are ideologies of Third World countries. Indeed, they have a wider basis of support within the United Nations. But as for the conservative ideologies on internal self-determination, they are clearly not the ideologies of many of the peoples of Third World countries, as is indicated by numerous destructive struggles for political restructuring of ethnic relations, for autonomy and for separation. They are essentially ideologies of the ruling classes of these countries, ideologies protective of their power and privilege.
These conservative interpretations are by no means mandatory. They do not flow inescapably from United Nations declarations. Cristescu, in chapter 2 of his study, surveys the development of the right to self-determination in major United Nations instruments, and I have selected the following key references from his survey.
Article 1, paragraph 2, of the United Nations Charter states that one of the purposes of the United Nations is
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 measures to strengthen universal peace.
In addition, the introductory paragraph to article 55 refers to
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 peoples.
The General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples mentions self-determination in the preamble and describes it as follows in paragraph 2.
All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’16
The right appears again, in the same terms, in both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.17 As article 1 in both covenants, it has pride of place, indicating its status as a fundamental human right.
On the occasion of the twenty-fifth anniversary of the United Nations, the General Assembly adopted the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.’18
Cristescu describes this declaration as being “of the greatest importance in the progressive development and codification of the principle of equal rights and self-determination of peoples.”19 The following three paragraphs of the preamble deal with this principle.
Convinced that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security.
Convinced that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary international law, and that its effective application is of paramount importance for the promotion of friendly relations among States, based on respect for the principle of sovereign equality.
Convinced in consequence that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter.
The substantive provisions regarding self-determination define it as follows:
By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.
Further provisions impose on states the duty to promote the realization of equal rights and self-determination of peoples and the respect for, and the observance of, human rights and fundamental freedoms. There is a duty to refrain from any forcible action that deprives peoples “in the elaboration of the present principle of their right to self-determination and freedom and independence.” The political forms of self-determination are described as “the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people.”
The declaration thus expresses the right to self-determination in the widest terms. The right is clearly available to the peoples of independent states (there is a separate paragraph dealing with colonial and other non-self-governing territories). Any injunction against the impairment of the territorial integrity or political unity of sovereign and independent states is in direct conflict with the principle of self-determination as defined above. Yet the declaration includes this prohibition as one of the cardinal principles. Thus, two contradictory cardinal principles are incorporated in the same declaration.
However, the declaration does make a “courageous attempt”20 to reconcile this contradiction in the following manner.
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
The implication of this provision, to which we have already made reference, is that people of different race, religion, or color enjoy the right to self-determination but in a form that falls short of separation or total independence. However, the limitation on the right to self-determination applies only in the absence of discrimination. Where there is discrimination and the government does not represent all the peoples, self-determination may take the form of the establishment of a sovereign and independent state. This is a far less conservative position than that taken in the Cristescu report, or by the Pakistan representative in his contention that it was “the established jurisprudence of the United Nations that, while the principle of self-determination governs the liberation of territories which are under colonial rule or are in dispute between Member States, it cannot be extended to areas that are recognised as integral parts of the territories of Member States.”
The reference in the above quotation is to the established jurisprudence of the United Nations, a phrase that presumably incorporates actual practice. So let us turn to this aspect, with primary concern, however, for cases involving secession from member states.
The United Nations has been very actively involved in the whole process of decolonization. This is indeed one of its major contributions. In the report The Right to Self Determination: Implementation of United Nations Resolutions, the rapporteur refers to the very large number of situations in which the United Nations has passed resolutions relating to the right of peoples under colonial and alien domination to self-determination.21 It is clearly the established jurisprudence of the United Nations that the principle of self-determination governs the liberation of colonial territories.
However, the process of self-determination in colonies has generally taken the form of a self-determination of populations, not of peoples. That is to say, a territorial criterion has governed the liberation of colonies.22 Many member states thus inherited the diversity of peoples in former colonial territories and were confronted with the problem of integrating them into a national unity. In the actual process of decolonization, consideration was often given to the relations between these different peoples, or it was a matter of contention. In a few cases, decolonization immediately provoked genocidal massacre, as for example, in India on partition, and in Rwanda. At the present time, the relationship between different ethnic and other groups, racial and religious, continues to be a contentious issue in many of the successor states, raising demands for internal self-determination.
Indeed, the phenomenon is worldwide and not confined to the recently decolonized societies.23 Bangladesh raised in acute form the problem of self-determination by way of secession, in the context of a great destruction of human life. The problem was raised similarly in Nigeria by the secession of Eastern Nigeria (Biafra) and in the Sudan by a movement for the secession of Southern Sudanese African peoples. I propose to refer briefly to these cases as a way of introducing general comment relating to the “established jurisprudence” of the United Nations on the issue of secession from independent sovereign states. But first, mention must be made of the United Nations’ response to the secession of Katanga from the newly independent Congo in July 1960.
The events in the Congo during the turbulent period immediately following independence from Belgian colonial rule obliged the United Nations to define its attitude toward secession, and its final opposition may be regarded as setting a precedent against secession. But there were many special circumstances to the secession. Katanga was rich in minerals, and it was clear that the Congo could not easily survive without the revenues to be derived from these mineral resources. Moreover, outside investment in Katangan wealth encouraged the belief that secession was being supported, if not instigated, by certain Western nations to protect business interests in the region. Many members of the United Nations did not believe that the Katangan regime represented the true wishes of the majority of the Katangan population. Then, too, “the Congo showed every indication of being further beset by separatist demands if the legitimacy of the Katanga secession had been recognised.” And finally there was a readily available legal justification for opposition to secession in a provision of the constitution that “the Congo constitutes within its present boundaries, an indivisible and democratic State.”24
The secession of Biafra raised the very different issue of secession as a protection or remedy against gross violations of human rights. The Proclamation of the Republic of Biafra, on 30 May 1967, makes many charges of discrimination by the federal government against the Eastern Region, and above all, it describes a series of massacres by Northerners...."
1.Phrase used by Buchheit, 1978:34.
2. United Nations Publications, E/CN .4/Sub .2/405/Rev .1.
3. Ibid., para. 47.
4. Ibid.,paras.60,89,and9O.
5. United Nations Publications, E/CN.4/Sub.2/404/Rev.1.
6. Ibid., para. 228.
7. Ibid., para. 268.
8. Ibid., paras. 346, 715.
9. Ibid., para. 174.
10.Para. 209.
11.See para. 268.
12.Paras.281—86.
13.Para. 173.
14.Para. 180.
15.Para. 228.
16.GA. Resolution 1514 (XV), dated 14 Dec. 1960.
17.Adopted by GA. Resolution 2200 A (XXI), dated 16 Dec. 1966.
18.By Resolution 2625 (XXV), dated 24 Oct. 1970.
19.1981, para.54.
20. Phrase used by the International Commission of Jurists in an excellent discussion of the problem in the context of the Bangladesh conflict. See The Events in East Pakistan 1971, 1972, part v.
21.198l,chap.3.
22. See discussion by Sureda, 1973:355, and Murphy, 1980:44—45. Murphy contrasts the Wilsonian period after World War I with self-determination focused on ethnic groups and with the application of a territorial criterion after World War II.
23. See the discussions by Connor, 1967:30—53 and 1972:319—55.
24. This discussion of Katanga follows the analysis by Buchheit, 1978:142—43, 152—53.
