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Home > Self Determination: International Law & Practice > Revisiting Self Determination as an International Law Concept
Ved P. Nanda
Evans University Professor, Thompson G. Marsh Professor of Law and Director, International Legal Studies Program, University of Denver. This is an adapted version of a presentation at the American Branch of the International Law Association’s International Law Weekend in New York on November 1, 1996, at the panel entitled “The New Dynamics of Self-Determination.” The title... reflects recognition of the need to revisit the concept in the Post-Cold war era.
"...Whether self-determination takes the form of the creation of a state, a federal entity, or a confederation of states, ethnic power-sharing arrangements must be explored. Perhaps the traditional concept of sovereignty, which is already eroding, must be seen in a new light so that it can be shared between various ethnic groups. In some situations, cultural or linguistic autonomy should be considered adequate expression of self-determination..."
The need to revisit the concept of self determination
I. The Need to Revisit the Concept of Self-Determination
“I state practice on the subject reveal how elusive, ambiguous, and rather vague the concept is, and how it lacks in legal content.”[1]
The term is used to justify claims by groups ranging from internal autonomy to secession; hence the difficulty in finding an operational meaning of “self-determination” that can be applied in various situations.
Three-quarters of a century ago, former Secretary of State Robert Lansing remarked that the concept was “loaded with dynamite,” and that “it will raise hopes which can never be realized.”[2] That statement was made in the aftermath of the 1919 Peace Conference at Versailles.
Now, in the post-Cold War era, we are witnessing the unfolding of the explosive quality of self-determination to which he referred, as the international community confronts the challenge of ever-increasing ethnic-national self-determination claims, including, for example, those of the Kurds in Iraq and Turkey and of the Tamils in Sri Lanka, and similar other claims for secession in the Balkans, Caucuses, and several parts of Africa. These claims challenge the territorial approach to self-determination, that once a territory has achieved independence, it has reached a culmination of self-determination claimed.
As a marked departure from the past, there no longer is an international consensus today that the recognition of self-determination claims is to be limited to colonial and non-self-governing situations, although even then, a couple of decades ago, there were several of us who questioned both the validity and wisdom of that consensus.[3] To illustrate, I wrote in 1981 that
"[i]t is not the purpose of this paper to encourage and promote the right of secession. It seems desirable and necessary, however, to enhance awareness of the likelihood that the international community will, in the future, be faced with claims for territorial separation in non-colonial settings and that the absence of institutions, procedures, and strategies to implement the right of secession will leave few alternatives to violence . . . . [T]he severe deprivations of human rights often leave no alternative to territorial separation. The world community must respond efficiently and effectively to the consequences of such separation. There is a growing recognition of the close link between human rights and international peace and security. It is not premature to accord recognition to the right to secession in an effort to promote these goals."[4]
The fear that secessionist claims by various ethnic-nationalist groups will exacerbate the existing fragile international order have recently led some observers to call for placing severe limits on the scope of self-determination so as to regulate, control, and minimize its evil consequences.[5]
While it may be argued that this hypothesis remains untested and lacks validity, I do not wish to enter the debate here. Rather I would shift the focus from the discussion about secession, independence and statehood, which undoubtedly constitute important aspects of self-determination claims, and instead submit that in light of the degrees and range of self-determination claims in the United Nations era,[6] it is necessary for international lawyers to study the mechanisms under which all these claims can be peacefully pursued and resolved.
II. The Challenge of Self-Determination
The basic questions pertaining to self-determination that need to be addressed have not changed. They are:
1) Who constitutes the self, the peoples who will determine their own future?
2) How is self-determination to occur and how are the identified peoples to exercise this right? and
3) What is the nature and scope of the self’s, the peoples’ determination? What shape will it take? What issues will it cover: economic, social, political (foreign policy, security, etc.)?
Similarly, both internal and external dimensions of self-determination remain as valid today as before. It may be noted that the reference in the former is to a democratic form of government with wider participation, for it connotes regulation of relations between those who govern and the governed within a community,[7] and the latter refers to the regulation of relations between a community which has defined itself and the rest of the world, which may take any number of forms.[8]
If the self is an ethnic nation or group which demands recognition for the validity of its claim to self-determination, the characteristics would be that a people thus defined can be identified as a social entity, that they have a common ancestry, history, religion, language, culture, identity, or any combination of these characteristics, and possess an awareness or state of mind that they are not just a population but have a sense of identity. To give it a political identity, it is likely to have political institutions, and the issue arises as to some form of international recognition of its status as a people.[9] As to the scope of self-determination, it ranges from a claim to preserve ethnic and cultural identity to a demand for separate statehood.
A demand for independent statehood could, in all likelihood, exclude other ethnic groups and, within the claimant ethnic group, those who disagree with the demand. What rights do these other ethnic groups and the dissidents possess and how are their interests to be accommodated? A major challenge of ethnic-national claims to self-determination is to the traditional concept of international order based on international law norms related to territorial integrity, state sovereignty, prohibition of the use of force, and non-intervention in the internal affairs of states. The challenge, in essence, is the balancing of these various conflicting and yet complementary principles on the one hand and the principle of self-determination on the other.
If the claim of self-determination means that it is a claim to separation, independence, and statehood, then in addition to the problem of likely international fragmentation and chaos, the issues pertaining to creation and recognition of states in light of the existing criteria for statehood, population, territory, government, and willingness and capacity to enter into relations with other states, are to be applied.[10] And on recognition of states, existing norms of international law are far from being precise, leaving their invocation and interpretation to each state, with a great deal of state subjectivity.
III. Historical Perspective [11]
I must begin with the history of self-determination, which arguably begins with the Peace of Westphalia in 1648. To provide a proper perspective, it will be appropriate to recall that President Woodrow Wilson introduced the concept to the League of Nations in 1919 as the right of every people to chose the sovereign under which they live.[12] It may also be recalled that the League of Nations applied the doctrine in a limited fashion to ensure the protection of minorities.
In the Aaland Islands controversy a specially-appointed International Commission of Jurists said in an advisory opinion:
“Positive international law does not recognize the right of national groups, as such, to separate themselves from the state of which they form part by the simple expression of a wish, any more than it recognizes the right of other states to claim such a separation.”[13]
Accepting the Commission’s recommendation, the League of Nations rejected a request by the representatives of the Islands for annexation to Sweden as an exercise of their right of self-determination.
Unlike the Covenant of the League of Nations, which did not mention self-determination, the United Nations Charter specifically refers to the principle in articles 1 and 55. Among other provisions, articles 2 and 56 directly obligate member states to implement the mandate of articles 1 and 55. Also, Chapters XI, XII, and XIII, which address questions of non-self-governing and trust territories, implicitly endorse the principle since they impose obligations on member states to give effect to the principle.[14]
Specifically, the goal of article 73 is to ensure, within due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses [and] to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement.
As early as 1950, the United Nations General Assembly called upon the Economic and Social Council to request that the Commission on Human Rights “study ways and means which would insure the right of nations and peoples to self-determination.”[15] Article 1, common to both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights reads:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development;
. . .
3. The States Parties to the present Covenant . . . 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.[16]
It should be recalled that the General Assembly already had adopted in 1960 the Declaration on the Granting of Independence to Colonial Countries and Peoples,[17] which acknowledged that 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.” It also, however, prohibited all attempts aimed at “the partial or total disruption of the national unity and the territorial integrity” of any state.
Subsequently, the General Assembly in 1970 unanimously adopted the Declaration on Principles of International Law Concerning Friendly Relations,[18] which proclaims as one of seven principles the principle of equal rights and self-determination of peoples, “under which all peoples have the right freely to determine, without external interference, their political status and 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.”[19]
The Declaration obligates a state to refrain from any forcible action which deprives peoples [claiming the right to self-determination] in the elaboration of the present principle 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 .[20]
As to the issue of the territorial integrity of states, the Declaration states:
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 . . . and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.[21]
The logical reading of the Declaration is that a state must possess a government representing the whole people for it to be entitled to protection of its territorial integrity against secession.
The principle of self-determination was endorsed by two advisory opinions of the International Court of Justice.
In the advisory opinion on Namibia,[22] the Court affirmed the right to self-determination, stating that “the subsequent development of International Law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them.”[23]
Subsequently, in 1975, in the Western Sahara case,[24] the Court approved of “the right of the population of the Western Sahara to determine their future political status by their own freely expressed will.”[25]
This brief survey shows that in the United Nations practice, the principle of self-determination had acquired by the late 1970s the status of an enforceable legal right, but only in the context of colonial and non-self-governing territories. State practice reveals that the right was, in fact, until recently considered to be limited to these situations.
In its response to claims for self-determination, the United Nations gave very restrictive interpretation of the concept, by limiting the self to territorial entities under colonialism or international trusteeship.
To illustrate, secessionist attempts in 1960 in Katanga and in 1967 in Biafra failed.[26] While considering the Biafra conflict, a meeting of the Assembly of Heads of State and Government, the supreme organ of the Organization of African Unity, condemned efforts at creating an independent Biafra and reaffirmed “adherence to the principle of respect for the sovereignty and territorial integrity” of Nigeria.[27] Bangladesh was an exception for special reasons.[28]
Former United Nations Secretary General U Thant’s often-repeated words of 1970 reflect the then-prevailing attitude of the United Nations as an international organization being unequivocally opposed to accepting secession. He said that the United Nations “has never accepted and does not accept and I do not believe will ever accept the principle of secession of a part of its Member State.”
I would, however, submit that more recently the right of self-determination has been extended to non-colonial situations as well. During the Cold War, there was obviously no challenge to borders in Eastern Europe and the former Soviet Union. Those wishing to claim the right of self-determination were deterred by the dictatorial regimes. But with the collapse of the Soviet Union, a rush of claims in Yugoslavia, the Baltics, the Caucuses, in Georgia, Armenia, Azerbaijan, and Tajikistan, among others, challenged the international community, forcing it to take such claims seriously. Even the Organization of African Unity has reluctantly recognized the right of Eritrea to secede.[30]
This is not to say that states are reconciled to recognizing self-determination claims, especially those which seek secession. Nine Governments are genuinely and appropriately concerned with the threat of chaos in the international arena from the existence of too many separate states, as well as the domino effect of such claims and whether they will ignite dormant conflicts.
The conflict in former Yugoslavia is worth noting. The European Community established an Arbitration Commission comprising the presidents of five constitutional courts which was asked to consider the disputes from the federal government of Yugoslavia and the six republics. Based on the Commission’s interpretation of international law, it gave ten opinions.
In response to a question on whether Yugoslavia had disintegrated or whether the republics had seceded, in Opinion 1,[31] the Commission said that when the organs of a federal state do not meet the “criteria of participation and representativeness inherent in a federal state,” when violence is prevalent, when the federal authorities fail to “enforce respect for . . . cease-fire agreements,” and when the republics express their wish to be independent, a federal state is under these circumstances “in the process of dissolution.” This undoubtedly is a pretty broad statement which lacks precision and fails to provide workable guidelines as to when parts of a federation can secede or when a federation is “in the process of dissolution.”
In Opinion 2,[32] the question posed was whether the Serbs in Croatia and Bosnia had the right to self-determination. After acknowledging that there was a lack of clarity in international law on the subject, the Commission said that it was nonetheless clear that any such right “must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states could agree otherwise.”
The Commission failed to provide guidance on what kind of self-determination rights the Serbs could have in Croatia and Bosnia. By equating the right to self-determination simply to secession and changes in boundaries, the Commission lost an opportunity to clarify alternatives to secession as a valid exercise of self-determination. Several years of bloody civil war followed. Why could the Commission not have recommended peaceful resolution of the disputes by a negotiated redrawing of the boundaries of Yugoslavia based upon plebiscites under international supervision? This, after all, was not a colonial situation and the Commission should not have invoked the concept of uti posseditis juris, which traditionally has been applied to international borders.
V. Appraisal and Recommendations
I reiterate that claims to secession must only be considered as a last resort when it is clear that ethnic groups cannot live together and it is equally clear that the group claiming secession makes a compelling case because of its perceived deprivation of human rights within the larger community. The claim that it is deprived of its right to participate in all value processes, power, wealth, and resources, respect and rectitude, enlightenment and skill, and affection and well-being,[33] should establish its right to secede. The proper context should also include the potential impact of secession upon the parent state and other states, and security and stability in an international or regional context.
It follows, therefore, that the international community should pay greater attention to internal aspects of self-determination. Claims to self-determination become violent, leading to civil wars, and are at times likely to spread regionally when there are no peaceful mechanisms for pursuing these claims and reconciling competing ones through the process of negotiation. The role of preventive diplomacy, early warning systems and peaceful settlement of disputes through mediation, conciliation, and negotiations need to be explored.[34]
Whether self-determination takes the form of the creation of a state, a federal entity, or a confederation of states, ethnic power-sharing arrangements must be explored. Perhaps the traditional concept of sovereignty, which is already eroding, must be seen in a new light so that it can be shared between various ethnic groups. In some situations, cultural or linguistic autonomy should be considered adequate expression of self-determination.
Promotion and protection of minority rights and means for redressing grievances regarding violation of human rights need to be given greater consideration. The United Nations and regional organizations must play an active role. The stationing of United Nations peacekeepers in Macedonia in 1993 was a landmark decision, a useful model of preventive diplomacy. Regional efforts, such as undertaken by the Organization for Security and Cooperation in Europe,[35] are promising. The OSCE’s emphasis on the protection of minority rights, recognizing them as collective rights, and the establishment of a High Commissioner for National Minorities are important elements in its focus on internal aspects of self-determination.
Similarly, the OSCE aims at strengthening human rights and democratic institutions. Its efforts include the establishment of a conflict prevention center in Vienna. Although it covers only inter-state conflicts, it has played a role in addressing ethnic conflicts as well, such as those in Rumania and Hungary, Albania and the federal republic of Yugoslavia, Hungary and Slovakia, and Moldova and Russia. It will be essential that other regional efforts also move in this direction. It is equally important that they also pay attention to confidence building mechanisms.
Concerted international efforts are needed toward the promotion of respect for human rights, pluralism, democratic forms of government and the encouragement of constitutional frameworks within which claims for self-determination can be reconciled and resolved. Also, it is essential to explore the conferring of legal personality on and allowing formal participation of ethnic-national groups, nations and non-state actors including international organizations for specific purposes in the international arena. Such efforts will provide an effective preventive mechanism to violent claims for secession.
[1]. The literature of self-determination is vast. For illustrative purposes, see e.g., Lee Buchheit, Secession: The Legitimacy of self-determination (1978); Gideon gotlieb, Nation against State: A New Approach to Ethnic Conflicts And The Decline OF Sovereignty (1993); Ted Gurr, Minorities at Risk: A Global View of Ethnopolitical Conflicts (1993); Morton Halperin, Et al., Self-Determination In The New World Order (1992); Hurst Hannum, Autonomy, Sovereignty, And Self Determination (1990); Michla Pomerance, Self-Determination In Law and Practice (1982); Patrick Thornberry, International Law and the Rights of Minorities (1991); U. Umozurike, Self-determination in International Law (1972); Ethnic Self-determination and the Break-Up of States (Adelphi Paper 283, Dec. 1993); Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, 19 Yale J. Int’l. L. 177 (1991); Allen Buchanan, Toward a Theory of Secession, 101 Ethics 322 (1991); Deborah Cass, Rethinking Self-Determination: A Critical Analysis of Current International Law Theories, 18 Syracuse J. Int’l L. & Comm. 21 (1992); Lung-Chu Chen, Self-Determination and World Public Order, 66 Notre Dame L. Rev. 1287 (1991); Hector Espiell, The Right to Self-Determination, U.N. Doc. E/CN.4/Sub.2/405/Rev.1 (1981); U.N. Doc. E/CN.4/Sub.2/404/Rev. 1 (1981); Minasse Haile, The Legality of Secessions: The Case of Eritrea, 8 Emory Int’L L. Rev. 479 (1994); Indigenous Peoples and the Right to Self-Determination, 87 Am. Soc’y Int’l L. Proc. 190 (1993); Benedict Kingsbury, Claims by Non-State Groups in International Law, 25 Cornell L.J. 481 (1992); Eric Kolodner, The Future of the Right of Self-Determination, 10 Conn. J. Int’l L. 153 (1994); Makau Mutua, Why Redraw the Map of Africa: A Moral and Legal Inquiry, 16 Mich. J. Int’l L. 1113 (1995); Frederick Kirgis, Jr., Comment: The Degrees of Self-Determination in the United Nations Era, 88 Am. J. Int’l L. 304 (1994); Ved Nanda, Self-Determination Under International Law: Validity of Claims to Secede, 13 Case W. Res. J. Int’l L. 257 (1981); Charles Tilly, National Self-Determination As A Problem For All Of Us, 122 Daedalus 29 (1993). David Wippman, Hearing Voices Within the State: Internal Conflicts and the Claims of Ethno-National Groups, 27 N.Y.U. J. Int’l L. & Pol. 585 (1995); and the authorities cited in these works.
[2]. Robert Lansing, The Peace Initiatives – Personal Narrative 97 (1921), quoted in Alfred Cobban, National Self-Determination 19 (1945).
[3]. See e.g., Buchheit, supra note 1; Nanda, supra note 1.
[4]. Nanda, supra note 1, at 280.
[5]. See e.g., Amitai Ezioni, The Evils of Self-Determination, Foreign Policy, Winter 1992-93, at 21, 35.
[6]. See Kirgis, supra note 1.
[7]. See The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, 25 U.N. GAOR, Supp. No. 28, at 121 (1971) (Principle (e)) [hereinafter Declaration]. Principle (e) requires that a state must be possessed of a “government representing the whole people belonging to the territory without distinction as to race, creed or colour.” Id. See also Thomas Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46 (1992).
[8]. See Declaration, supra note 7, princ. (e), para 4, which acknowledges that the right of self-determination may be implemented in any of the following forms: “[t]he establishment of a sovereign and independent State, the free association or integration with an independent State, or the emergence into any other [freely determined] political status. . . .”
[9]. See generally discussion in Nanda, supra note 1, at 275-76.
[10]. See generally James crawford, The Creation of States in International Law (1979); John Dugard, Recognition and the United Nations (1987).
[11]. In this section I have relied on my prior work, Nanda, supra note 1, at 265-271.
[12]. See generally M. Pomerance, The United States and Self-Determination: Perspectives on the Wilsonian Conception, 70 Am. J. Int’l L. 1 (1976).
[13]. League of Nations O. J., Special Supp. 1, at 5 (1920).
[14]. See U.N. Charter arts. 73-91.
[15]. G.A. Res. 421 D, 5 U.N. GAOR, Supp. No. 20, at 42, U.N. Doc. A/1775 (1950).
[16]. The International Covenant on Economic, Social and Cultural Rights was adopted by G.A. Res. 2200, 21 U.N. GAOR, Supp. No. 16, at 49, U.N. Doc. A/6319 (1967), and the International Covenant on Civil and Political Rights by G.A. Res. 2200A, 21 U.N. GAOR, Supp. No. 16, at 52, U.N. Doc. A/6316 (1966).
[17]. G.A. Res. 1514, 15 U.N. GAOR Supp. No. 16, at 66, U.N. Doc. A/4684 (1960).
[18]. Declaration, supra note 7.
[19]. Id. princ. (e).
[20]. Id. para. 5.
[21]. Id. para. 7.
[22]. Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), 1971 I.C.J. 16.
[23]. Id. at 31.
[24]. 1975 I.C.J. 6.
[25]. Id. at 35-36.
[26]. For a brief history and analysis, see Nanda, supra note 1, at 272-74.
[27]. AHG/Res. 51 (IV) (1976), cited in Tiewul, Relations Between the United Nations Organization and the Organization of African Unity in the Settlement of Secessionist Conflicts, 16 Har. Int’l L.J. 259, 290 (1975).
[28]. See generally Ved Nanda, A Critique of the United Nations Inaction in the Bangladesh Crisis, 49 Denv. L.J. 53 (1972); Nanda, supra note 1, at 274.
[29]. 7 U.N. Monthly Chronicle, Feb. 1970, at 36.
[30]. See generally Haile, supra note 1; Mutua, supra note 1.
[31]. Conference on Yugoslavia Arbitration Commission Opinion No. 1, Opinions on the Questions Arising from the Dissolution of Yugoslavia, 31 I.L.M. 1494-97 (Nov. 1992).
[32]. Id. at 1497-99.
[33]. See Myres McDougal, Studies in World Public Order 336-37 (1960).
[34]. See e.g., An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peacekeeping, Report by the Secretary-General, U.N. Doc. 5/24111 (1992).
[35]. See generally Ethnic Self-Determination and Break-Up of States, supra note 1, at 64-66.
