Is there a future for the principle of self-determination in international law in the post-colonial world? Ever since the principle of self-determination entered the lexicon of international politics during World War 1 the precise meaning
International Law 1 (257) Assessed Coursework Naveed Ahmed
Is there a future for the principle of self-determination in international law in the post-colonial world?
Ever since the principle of self-determination entered the lexicon of international politics during World War 1 the precise meaning and scope of this elusive concept has been the subject of inexorable debate.1 For whilst the idea lends itself to simple formulation in words which have a semblance of universal applicability and perhaps of revolutionary slogans when the time has come to put it into operation it has turned out to be a complex matter circumvented by limitations and caveats.2 At its most basic level "self-determination is the idea of a community's right to control its own future, and thus physically survive and prosper in fullest extent possible."3 It is correct to suggest that the concept of self-determination was originally viewed as a political ideal rather than a rule of international law closely linked with President Woodrow Wilson.4 In reacting to Bolshevik initiatives and wartime exigencies Wilson famously proclaimed the principle of self-determination as a central element of peace basing his conception on the liberal notions of self government, consent of the governed and democracy.5 As a consequence of the inconsistent manner in which this notion of self-determination was applied following World War 1, according to Hurst Hannum it was not initially recognised as a fundamental right of the United Nations regime established in 1945 the corollary of which is that is mentioned only twice in the Charter of the United Nations both times in the context of developing "friendly relations among nations" and in conjunction with the principle of "equal rights of peoples."6 In actual fact the legal status and meaning of the self-determination principle evolved during decolonisation the process by which "colonial people liberates itself from the juridical, political, economic and ideological control exerted upon it by an alien power."7 As a result the right to self-determination of colonial peoples has been recognised in a way in which leaves no further doubts and in 1960 the UN General Assembly Resolution 1514 (XV) proclaimed "the necessity of bringing to a speedy and unconditional end colonialism in all its form and manifestations" and declared that "all peoples have the right to self determination; by virtue of that right they feel freely to determine their economic, social and cultural development." 8 Furthermore in the Namibia Case 9 it was elucidated that the development of international law in relation to colonies made the principle of self determination available to all of them. Consequently, it is clearly evident that the legal status of the self-determination principle evolved during the decolonisation process. The question which arises is whether the principle which emerged during this period is still relevant in the post-colonial world. This paper will delineate how the concept of self-determination does have a role to play within the postcolonial world typified by the fact that since 1960 not one of the major international instruments which have dealt with the right of self -determination has limited the right to colonial situations.10 Nevertheless despite this proposition an important aspect of this paper will be to show how outside the colonial context the right to self determination and its scope has been problematical not least when it has been invoked in secessionist struggles. It is from this premise that in concluding it will be suggested that "a coherent legal framework needs to be developed in order to the way in which to resolve the potentially competing claims and obligations concerning the right of self determination."11 Drawing on the work of Robert McCorquodale12 I will suggest that the most adequate legal framework to consider the right of self-determination is one based on the legal rules developed in international human rights law.
. Self -determination in a post -colonial context
It is evident by the early 1970's there was a clear legal right to self determination for colonial peoples and for peoples constituted as States but the question which has arisen is whether this right has undergone further development so that other categories of people can invoke it.13 Although the phenomenon of self-determination grew predominantly during the era of decolonisation it would appear that there is an increasing acceptance of the right to self-determination in non-colonial situations. As Wouter has emphasised "in state practice, international conventions and international jurisprudence, self determination has been accepted and reaffirmed as a right of all people, the idea of self determination, moreover, figures prominently in the vocabulary of insurgents fighting for the over-throw of a government, the secession of a place of territory or the (re) unification of what is considered to be a nation.14 Furthermore, Koskenniemi has conveyed that the domestication of national self -determination by limiting it to decolonisation has always seemed arbitrary as the original idea formulated by the philosophes of the Enlightenment and their Jacobin followers in the late eighteenth and nineteenth centuries was meant for universal application.15 This notion of a wider meaning of self-determination was evident in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1966. Common Article 1 in both Covenants states 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." The phrase "all peoples" suggests that the principle applies universally and hence, if the right of self determination is not given to all people then it would be incompatible with the principle of equality as only certain groups of people (s) would have the right to pursue equally their economic, social and cultural development.16 Furthermore this wider meaning of self determination was reaffirmed in the 1970 UN General Assembly Resolution 2625 (XXV)17 and the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe which recognised that self-determination is applicable beyond the colonial context. Perhaps the most explicit reference to the fact that the doctrine of self-determination may apply outside the colonial framework is espoused in The African Charter on Human and Peoples Rights.18 Article 20 sets out the right to self determination and delineates that "all peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen." This right should be taken in conjunction with the fact that "all peoples shall have the right to the assistance of the States Parties to the present Charter in their liberation struggle against foreign domination be it political, economic or cultural." Moreover McCorquodale 19 has explicated that State practice outside these treaties also supports a broader application of the right to self-determination beyond strictly colonial confines typified by the fact that the right applies to Palestinians20 and the blacks in South Africa .21
Is there a future for the principle of self-determination in international law in the post-colonial world?
Ever since the principle of self-determination entered the lexicon of international politics during World War 1 the precise meaning and scope of this elusive concept has been the subject of inexorable debate.1 For whilst the idea lends itself to simple formulation in words which have a semblance of universal applicability and perhaps of revolutionary slogans when the time has come to put it into operation it has turned out to be a complex matter circumvented by limitations and caveats.2 At its most basic level "self-determination is the idea of a community's right to control its own future, and thus physically survive and prosper in fullest extent possible."3 It is correct to suggest that the concept of self-determination was originally viewed as a political ideal rather than a rule of international law closely linked with President Woodrow Wilson.4 In reacting to Bolshevik initiatives and wartime exigencies Wilson famously proclaimed the principle of self-determination as a central element of peace basing his conception on the liberal notions of self government, consent of the governed and democracy.5 As a consequence of the inconsistent manner in which this notion of self-determination was applied following World War 1, according to Hurst Hannum it was not initially recognised as a fundamental right of the United Nations regime established in 1945 the corollary of which is that is mentioned only twice in the Charter of the United Nations both times in the context of developing "friendly relations among nations" and in conjunction with the principle of "equal rights of peoples."6 In actual fact the legal status and meaning of the self-determination principle evolved during decolonisation the process by which "colonial people liberates itself from the juridical, political, economic and ideological control exerted upon it by an alien power."7 As a result the right to self-determination of colonial peoples has been recognised in a way in which leaves no further doubts and in 1960 the UN General Assembly Resolution 1514 (XV) proclaimed "the necessity of bringing to a speedy and unconditional end colonialism in all its form and manifestations" and declared that "all peoples have the right to self determination; by virtue of that right they feel freely to determine their economic, social and cultural development." 8 Furthermore in the Namibia Case 9 it was elucidated that the development of international law in relation to colonies made the principle of self determination available to all of them. Consequently, it is clearly evident that the legal status of the self-determination principle evolved during the decolonisation process. The question which arises is whether the principle which emerged during this period is still relevant in the post-colonial world. This paper will delineate how the concept of self-determination does have a role to play within the postcolonial world typified by the fact that since 1960 not one of the major international instruments which have dealt with the right of self -determination has limited the right to colonial situations.10 Nevertheless despite this proposition an important aspect of this paper will be to show how outside the colonial context the right to self determination and its scope has been problematical not least when it has been invoked in secessionist struggles. It is from this premise that in concluding it will be suggested that "a coherent legal framework needs to be developed in order to the way in which to resolve the potentially competing claims and obligations concerning the right of self determination."11 Drawing on the work of Robert McCorquodale12 I will suggest that the most adequate legal framework to consider the right of self-determination is one based on the legal rules developed in international human rights law.
. Self -determination in a post -colonial context
It is evident by the early 1970's there was a clear legal right to self determination for colonial peoples and for peoples constituted as States but the question which has arisen is whether this right has undergone further development so that other categories of people can invoke it.13 Although the phenomenon of self-determination grew predominantly during the era of decolonisation it would appear that there is an increasing acceptance of the right to self-determination in non-colonial situations. As Wouter has emphasised "in state practice, international conventions and international jurisprudence, self determination has been accepted and reaffirmed as a right of all people, the idea of self determination, moreover, figures prominently in the vocabulary of insurgents fighting for the over-throw of a government, the secession of a place of territory or the (re) unification of what is considered to be a nation.14 Furthermore, Koskenniemi has conveyed that the domestication of national self -determination by limiting it to decolonisation has always seemed arbitrary as the original idea formulated by the philosophes of the Enlightenment and their Jacobin followers in the late eighteenth and nineteenth centuries was meant for universal application.15 This notion of a wider meaning of self-determination was evident in the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1966. Common Article 1 in both Covenants states 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." The phrase "all peoples" suggests that the principle applies universally and hence, if the right of self determination is not given to all people then it would be incompatible with the principle of equality as only certain groups of people (s) would have the right to pursue equally their economic, social and cultural development.16 Furthermore this wider meaning of self determination was reaffirmed in the 1970 UN General Assembly Resolution 2625 (XXV)17 and the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe which recognised that self-determination is applicable beyond the colonial context. Perhaps the most explicit reference to the fact that the doctrine of self-determination may apply outside the colonial framework is espoused in The African Charter on Human and Peoples Rights.18 Article 20 sets out the right to self determination and delineates that "all peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen." This right should be taken in conjunction with the fact that "all peoples shall have the right to the assistance of the States Parties to the present Charter in their liberation struggle against foreign domination be it political, economic or cultural." Moreover McCorquodale 19 has explicated that State practice outside these treaties also supports a broader application of the right to self-determination beyond strictly colonial confines typified by the fact that the right applies to Palestinians20 and the blacks in South Africa .21
