The current situation is that “self-determination” is a legal principle. Its precise ramifications in other contexts are not yet worked out, and it is difficult to do justice to the problems in a small compass. The subject has three aspects. First, the principle informs and complements other general principles of international law, viz, of state sovereignty, the equality of states, and the equality of people within a state. Secondly, the concept has been applied in the different context of economic self-determination. Lastly, the principle appears to have corollaries, which may include the following: (1) if force be used to seize territory and the object is the implementation of the principle, the title may accrue by general acquiescence and recognition more readily than in other cases of unlawful seizure of territory; (2) the principle may compensate for a partial lack of certain desidarata in the fields of statehood and recognition (3) intervention against a liberation movement may be unlawful and assistance to the movement may be lawful.”1
‘And the right remains an ongoing one. It is not only at the moment of independence from colonial rule that peoples are entitled freely to pursue their economic, social and cultural development. It is a constant entitlement.”2
It is true that the right of self-determination is a right that is currently under gradual political and social evolution. It is quite daunting task to define the idea of self-determination rather it would be unwise trying to do so. In an ever-evolving global politics, the right of self-determination has many colours and many aspects and only time will define its original periphery. To me presently, the idea of self-determination is not only being tied up with the independence or decolonization.
Certainly, the era of decolonisation has ended, so it is pointless to say that self-determination is only related to the decolonization process. We have witnessed throughout the world about the issue of minority rights and how some communities have suffered humanitarian disaster by their majority ruler. So now, the burning issue is that whether a particular minority community got the right to determine their own political and economic destiny.
We know there is reference as to the self-determination in the UN Charter and it is on the Covenant on Civil and Political Rights and of the Covenant on Economic, Social and Cultural Rights (1966) as well. It has been argued by some international scholars that this right of self-determination belongs to the people. They are entitled to make their destiny. However, unfortunately until today nobody defines the term ‘people’ in the context of self-determination. This has created much confusion among the scholars, state-leaders and many more. The instance of NATO interference in Kosovo on humanitarian grounds is thought to be an instance of urgent initiative in an emergency.
The idea of self-determination “is both radical, progressive, alluring and at the similar time subversive and threatening. This ‘Janus quality’ has brought about a deep ambivalence in the direction of self-determination which, in turn, may describe the difficulties the international community experiences in trying to articulate the idea in a pleasant way, in transforming it-in an acceptable manner-into a set of legally binding standards and dealing with its limits and dangers in a consistent fashion.’’3
There is strong concern as to the future of the right of self-determination that is actually, where it would end up given the nature of its unpredictability and the lack of coherent formula and the delay in resolving some burning issues like Palestine, Kashmir and Kurds. Although much has been done for the first two issues but what we have seen is just a complex game of western politics. There is an accord for Palestine issue i.e.: Camp David, master plan advocate by the US but there was no actual execution of the plan. Therefore, it would not be exaggeration if I argue that these two unresolved issues so far is a tool of world politics.
Here is my some suggestion after having discussed all those histories and documents. Regarding Kashmir, we can endeavour to produce a master plan. No one will leave Kashmir voluntarily either India or Pakistan unless and until the UN or other leading world, authority can come with a good practical plan. Of course, the conflicting states like India and Pakistan must come with clean hand. A Plebiscite can be arranged to know the popular mentality of the Kashmiri people. We can show the example of Gibraltar. To sum it up I would say that the Kashmiri people got the right of self-determination but it is a balancing exercise. It is complex and can challenge the overall state structure of the India. However, nothing in the international law expressly forbids secession in peaceful way. Either in international law, there are no norms as to the right of secession as to the minority or ethnic based claim. Kashmir is a princely state and its case is different than others.
Elmer Plischke rightly pointed out the fear “that self-determination might unleash a Frankenstein of unrestrained proliferation and fragmentation.”4
After seeing the much more clumsiness that surrounded the right of self-determination Prof. Cassese expressed his view “at present a strong need for rethinking the concept self-determination and suggesting possible avenues for the future of the law in this area.”5
Roughly, all states support the right to self-determination “by various groups but resist such claims by others. Iraq favours self-determination for the Palestinians but not for the Kurds. The Soviet Union has in the past supported many claims for self-determination, but does not grant self-determination to the Lithuanians, Latvians, or Estonians (all of whom have a long history of independence), or to the Armenians in Azerbaijan, or the Tartars in Crimea. India supported self-determination for Bangladesh but not for the Sikhs in Punjab.”6
Now we can conclude that mere presence of self-determination (that is intertwined with principle of territorial integrity in the UN charter) in UN documents or Resolutions or other declarations in 1960’s and 1970’s will not suffice for the purpose of treating the right of self-determination as a sound undisputed international customary law.
Prof. Cassese propounded that “self-determination firmly entrenched in the corpus of international law in only three areas: as an anti-colonial standard, as a ban on foreign military occupation and as a requirement that all racial groups be given full access to government.”7
This is a good explanation about the potential scope when the right of self-determination can be exercised. However, it is also true that to limit the principle within these three categories is hard to realize. It may be true in an ideal world but given the nature of the current conflicts among the various parts of the world, we need to wait for the state practice in this area. We already mentioned in our earlier discussion that the principle has rather multi-dimensions. Therefore, any cap on the potential scope of the principle is not sustainable.
After examining all those documents and texts before me I am of the opinion that the right of self-determination is a complex principle. Various state practices from different angles show that in contemporary world we do not have any coherent approach regarding the correct attitude to the principle. Rather we see a vague and complex mixture of norms that actually do not show us any practical sense. Although the principle of self-determination is mentioned in the 1970 friendly declarations (ICCPR) by the GA (UN) but we do not find any procedure as to how we will apply the principle in certain circumstance.
So far, I think we need to do some balancing exercise when we are dealing with the right of self-determination. Because it looks like the issue is still under development into a fuller concept. Therefore, it is better to leave the issue as it and apply the right of self-determination as case-by-case. Because, not all the cases will merit same conclusion. Suppose Kosovo, Palestine or Chechnya is not same. So given the enormous complexity in the matter it would be wise to judge situation by situation. Another thing international laws and norms do not develop radically or by following with a defined formula rather, it is the outcome of the state practices over international relations for a long time. That is why one cannot argue strongly that the right of self -determination has a distinct place in the international customary law. Because very few state do recognise a right of self-determination when it comes across a issue like that that actually affects it a territorial integrity. Nevertheless, they support the right of self-determination in other situation. Therefore, the strange nature of state practice is obstructing the proper exercise of the right of self-determination.
Having regard to the established rules about the self-defence and territorial integrity, the assumption appears to be inherent in the international system. The key difference with colonial or non-self governing territories is that the identification of such territories involves the identification of a people with rights against the metropolitan state: such territories have separate status pending self-determination. Outside the colonial context, there remains a strong presumption in favour of territorial integrity and against secession.
Self-determination “can be neither defined nor opposed. It can mean the right of people to choose their own form of government within existing borders, for example by overturning a dictatorship or achieving independence from a colonial power. It can mean the right of an ethnic, linguistic, or religious group to redefine existing national borders in order to achieve separate national sovereignty. It can mean the right of a political unit within a federal system, such as Canada, Czechoslovakia, the former Soviet Union, or the former Yugoslavia, to secede from the federation and become an independent sovereign state. Alternatively, it can merely mean the right of an ethnic, linguistic, or religious group within an existing sovereign state to a greater degree of autonomy and linguistic or religious identity, but not to a sovereign state of its own.”8
If the twentieth century is divided into thirds, the evolution of the principle of self-determination can be easily charted through time. During the first third of this century, the principle meant independence for states emerging from fallen empires in the aftermath of World War 1. During the second third, it meant relative freedom and independence for new states emerging from the decolonization process. Now, in the last third of the century, self-determination has come to mean one of three things: independence for new states emerging from the collapse of communism (e.g., Ukraine or Slovenia), independence for homogenous sub-units within nation-states (e.g., Quebec or Eritrea), or greater internal autonomy for smaller identity groups within existing states (e.g., Aaland Islands under Finland or Faeroe Islands under Denmark). Therefore, the re-emergence of the principle of self-determination has manifested itself in such a manner as to have three situational meanings based upon the context in which it arises.9
Therefore, we see as the day progresses we have more scopes to apply the right of self-determination. It is quite practical that the state practices are very restrictive regarding the exercise of the self-determination. In order to preserve the sovereignty of a state first there is a requirement to maintain the internal harmony among various ethnic and minority grounds of a country. A claim for self-determination cannot be appropriately invoked in every instance of minority rights or group based rights. An open and far too liberal approach to the self-determination will invite scrupulous claims and that would ultimately undermine the state sovereignty and national unity. It is an appropriate time now to formulate some guiding principles on the issue of self-determination and it applicability in certain circumstances. The UN can take the initiative to arrange a special meeting on this topic, as there are numerous self-determination issues around the world and in those cases, there is no viable method to execute the principle. It would save time and ease greater discomfort if we come with a robust and meaningful solution to this persisting problems. Otherwise, every state will treat the issue of self-determination in line with their self-interest.
Author: Mr. Saumitra Sarder, Barrister-At-Law (Middle Temple, UK)
- Ian Brownlie, Principles of Public International Law, Oxford University Press, page-582 (7th Edition-2008)
- Rosalyn Higgins, Problem and Process: International law and How we use it (Oxford: Clarendon), p-120 (2010)
- Cassese, A., Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press- 1995,page-5.
- Elmer Plischke, Self-determination: Reflection on a Legacy, 140 World Affairs-1977, page-52.
- Cassese, A., Self-Determination of Peoples: A Legal Reappraisal, Cambridge University Press- 1995, page-341.
- Malvina Halberstam, Self-Determination in the Arab-Israeli conflict: Meaning, Myth, and Politics, Newyork University Journal of International Law & Politics, 465 1988-1989, page-5.
- Cassese, Antonio, International Law, Oxford University Press, 2nd Edition-2005, page-61.
- Lloyd N. Cutler, Foreword to Morton H. Halperin Er AL., Self-Determination in the new world order at xi (1992).
- Michael J Kelly, 47 Drake Law. Review. 209 1998-1999, page-221.