Minority Rights

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SCOPE AND STATUS OF THE RIGHT 

After WWII certain rights were granted to the individual members of ethnic, linguistic or cultural minorities to have their language and identity respected by the state as part of the process of the development of human rights in general. However, States have been extremely reluctant to take any steps which might increase the danger of claims to independence and secession. Recent developments have raised the question of what legal status should be accorded to them.  Today, several international human rights instruments refer directly or indirectly to national, ethnic, racial or religious groups, and some include special rights for persons belonging to minorities.

Neither the UN Charter nor the Universal Declaration of human rights have specific references. The most widely accepted legally-binding provision on minorities is Article 27 of the ICCPR (there is no equivalent in the ECHR, OAS, OAU or ICESCR). It confers on persons belonging to minorities the right to national, ethnic, religious or linguistic identity, or a combination thereof, and to preserve the characteristics which they wish to maintain and develop. Although article 27 refers to the rights of minorities in those States in which they exist, its applicability is not subject to official recognition of a minority by a State. Article 27 does not call for special measures to be adopted by States, but States that have ratified the Covenant are obliged to ensure that all individuals under their jurisdiction enjoy their rights. This may require specific action to correct inequalities to which minorities are subjected. It states: 

"In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language" See the Committee on Human Rights General Comment No 23 on Article 27 

However, the wording of Article 27 is problematic:  'In those States in which ethnic, religious or linguistic minorities exist': Some States (e.g. France's declaration in respect of art. 27 states that the article is inapplicable to France as under the French Constitution there are no minorities. See T.K. v. France, HRC, 1987 in which it was held that France's declaration must be treated as a reservation, thus, France is not bound by Art. 27). 'Minorities shall not be denied the right. . .' Some states have interpreted this as meaning that they do not have an obligation to promote minority rights, rather they the obligation is negative. But - General Comment 23 (50) Regards art. 27 as imposing positive obligations on and duties on States (para. 6.1). The case law also points to the fact that art. 27 imposes positive obligations on States. 

The Convention on the Prevention and Punishment of the Crime of Genocide also extends its protection to minority groups. Article II states: 

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
 The Convention on the Elimination of All Forms of Racial Discrimination (CERD) has protective closes extending to minorities. Article 2 states:  
1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:
(a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to en sure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;
(b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;
(c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;
(d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization;
(e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.
2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case en tail as a con sequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.
 

Article 4 states:

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;
(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. 
 

The Committee on the Elimination of All Forms of Racial Discrimination has issued a two general recommendations on the interpretation of article 4 see recommendations 7 and 15  

Additional rights which refer to minorities include: 

International Covenant on Economic, Social and Cultural Rights article 13 provides: 

1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.
3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

The Committee on Economic, Social and Cultural Rights has issued a general comment on the interpretation of article 13  

The Convention on the Rights of the Child Article 30, the UNESCO Convention against Discrimination in Education Article 5 and the UNESCO Declaration on Race and Racial Prejudice Article 5 all refer indirectly to NMs.

Important although soft law is the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. 

It is at the OSCE level that most progress has been achieved so far, various documents are of interest:

The Framework Convention for the Protection of National Minorities ETS no. 157, 1995 is the first legally binding multilateral instrument devoted to the protection of minorities. The evaluation of the adequacy of the implementation of this Framework Convention by the Parties is carried out by the Committee of Ministers, assisted by the Advisory Committee which examines the State reports, which will be made public by the Council of Europe upon receipt from the State Party, and prepares an opinion on the measures taken by that Party. The opinions of the Advisory Committee can be found at http://conventions.coe.int/Treaty/EN/CadreListeTraites.htm

Within the European Union some texts are relevant as the Arfé Resolution on a Community charter of regional languages and cultures and on a Charter of rights of ethnic minorities 16 October 1981 ; the Kuijpers Resolution on the languages and cultures of regional and ethnic minorities in the European Community 30 October 1987 and the Killilea Resolution on linguistic and cultural minorities in the European Community 9 February 1994

Definition (PDF Doc.) 

No definition of minorities is contained in any of the international instruments dealing with the subject. Both in the United Nations system in general and in the Working Group on Minorities in particular, attempts at definition have constantly run up against the dynamic reality of social events, moreover the term "minorities" designates a very diverse and motley range of human groups. According to the working definition drafted in the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, (now called the Sub-Commission on the Promotion and Protection of Human Rights), a minority is primarily a "non-dominant" group in society and, secondly, one that possesses some distinguishing feature of an "ethnic, linguistic or religious" nature or pertaining to national origin, which differentiates it in one or several ways from the rest of the population, that is assumed to be in the majority or dominant. Thus, a minority is a demographically smaller segment of the population which has some distinctive feature. Traditionally it has been accepted that the existence of a minority depends on a combination of one or more objective elements with one subjective element, namely the members' awareness of belonging to a minority. Thus the existence of a minority is not "static", since it always depends on the will of its members, on their will to continue to form a group distinct from the majority, and on their capacity to recreate their own identity.

Collective Vs. Individual Rights:

In most international instruments this recognition of communal rights was balanced by a significant protection for individuals.

The 1990 OSCE Copenhagen document refers to "persons belonging to national minorities" when addressing their rights and further states that "to belong to a NM is a matter of a person's individual choice and no disadvantage may arise from the exercise of such choice".

The Framework Convention refers to "every person belonging to a national minority". In Article 3 it clearly states that "persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others".

The UN Declaration on the Rights of Persons Belonging to National or Ethnic or Religious Minorities (General Assembly Resolution 47/135, annex, 47 U.N. GAOR Supp. (No. 49) at 210, U.N. Doc. A/47/49 (1993)) also refers to "persons belonging to…" and in its article 3(1) states that "Persons belonging to minorities may exercise their rights, including those set forth in the present Declaration, individually as well as in community with other members of their group, without any discrimination".  

International instruments protect the rights of the members of minorities rather than the rights of the minority as a whole. Art. 27 of the ICCPR thus provides that "persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their culture (…)." The Human Rights Committee General Comment No. 18 , 3.1 and 6.2 makes clear that this article "relates to rights conferred on individuals as such" and protects "individual rights." Thus any violation of art. 27 can only be claimed under the 1st optional protocol to the ICCPR i.e. by way of Individual complaint. Lubricon Lake Band - HRC held that a collective complaint is inadmissible. Similarly, as said above, the European Framework Convention for the Protection of National Minorities only grants rights to "persons belonging to national minorities."  

Domestic laws quota systems expressed in percentages of population:

In some domestic legislation, the enjoyment of some of the rights is conditioned to a quota system expressed in percentages of population, (especially when it comes to the use of the minority language or education). It is true that the Framework Convention also conditions the enjoyment of certain aspects of the rights by providing that: " in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers…" (see articles 10 on minority language; 14 on minority language and education), but the condition does not refer only to the number of inhabitants but also to the fact that a NM was traditionally installed in an area. The only exception is contained in article 11, in relation to display of traditional local names, street names and other topographical indications where it only requires "substantial numbers" inhabiting the area.  

Requirement of citizenship: (see Doc.)

Restricting the protection of minority rights to citizens is contrary to the prevailing interpretation of the concept of minorities, which hold s that citizenship is not a requirement to belonging to a minority (See the Human Rights Committee General Comment No. 18 (Article 27) (1994), 5.1 and 5.2). 

Discrimination and affirmative action: (see Doc.)

Provisions prohibiting discrimination and allowing affirmative action are central to the protection of minorities and should be included in domestic laws. Further, discrimination has been prohibited in a number of international instruments that deal with most, if not all, situations in which minority groups and their individual members may be denied equality of treatment. Discrimination is prohibited on the grounds of, inter alia, race, language, religion, national or social origin, and birth or other status. Important safeguards from which individual members of minorities stand to benefit include recognition as a person before the law, equality before the courts, equality before the law, and equal protection of the law, in addition to the important rights of freedom of religion, expression and association.

Non-discrimination provisions are contained in the United Nations Charter of 1945 (arts. 1 and 55), the Universal Declaration of Human Rights of 1948 (art. 2) and the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights of 1966 (art. 2). Such provisions also appear in a number of specialized international instruments, including: ILO Convention concerning Discrimination in Respect of Employment and Occupation No. 111 of 1958 (art. 1); International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (art. 1); UNESCO Convention against Discrimination in Education of 1960 (art. 1); UNESCO Declaration on Race and Racial Prejudice of 1978 (arts. 1, 2 and 3); Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief of 1981 (art. 2); and the Convention on the Rights of the Child of 1989 (art. 2).  

Non-discrimination clauses are also included in all of the basic regional human rights documents, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Social Charter and the Framework Convention on National Minorities (Council of Europe), the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE (Organization for Security and Cooperation in Europe); the American Convention on Human Rights (Organization of American States); and the African Charter on Human and Peoples' Rights (Organization of African Unity).

Positive versus negative rights:

International instruments granting rights to individuals belonging to minorities have usually cautious formulations setting out positive rights. Generally the Rights that are expressed in negative terms in international instruments. For example art. 9 of the European Framework Convention provides that "the parties shall ensure, within the framework of their legal systems, that persons belonging to a national minority are not discriminated against in their access to the media. (…) The Parties shall not hinder the creation and the use of printed media by persons belonging to national minorities."  Some Rights that are expressed in positive but relatively weak or restricted terms in international instruments, for example art. 14 of the European Framework Convention provide that "In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language."  

Participation in public bodies: (see Doc.) (see Doc.)

Whilst the minority group needs to be able to preserve its own culture and promote its own identity and institutions, which requires self-segregation in part, it also needs to be able to participate in the political life of the State. There is some provisions in international instruments on participation of minorities in public affairs, in the political life of the State, particularly with respect to matters affecting its culture, identity and institutions. Exclusion from participation in the political processes of the State would be contrary to those standards.

The Framework Convention in its Article 4 states that: "The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority", it further provides that "the Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them"(article 15).

Article 2(3) of the UN Declaration on the Rights of Persons Belonging to National or Ethnic or Religious Minorities (1993) states that "Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation".  

Although the ECHR contains no minority rights provision and therefore there is no direct way for members of minority groups to claim minority rights in Strasbourg, the jurisprudence of the Strasbourg organs has been to include within national minorities all those groups that would be termed minorities under the 1992 Declaration (There is case law recognising the Roma as a national minority - Cyprus v Turkey, App.No. 25781/94, European Commission of Human Rights, adopted on 4 June 1999). There is some case law referring to exclusion of minorities from participation in the political processes of the State (See KPD v FRG, the German Communist Party case, App.No.250/57, 1 Yb.ECHR 222 (1957), which, by analogy, must imply the right to political participation in normal circumstances. See also United Communist Party of Turkey (TBKP) v Turkey, European Court of Human Rights, 133/1996/752/951, 30 January 1998, where the Court held, at para.45, that democracy was the only form of governance contemplated in the ECHR. In similar vein, Socialist Party v Turkey, European Court of Human Rights, 20/1997/804/1007, 25 May 1998, at para.47, and Stankov and United Macedonian Organisation "ILINDEN" v Bulgaria, supra n10.) . In the Italian Masons case (Grande Oriente D'Italia di Palazzo Giustiniani v Italy.), the applicant, the Grand Order, complained that laws governing regional elections barred members of the Masons from standing; as a result, the Order was a victim of, inter alia, breaches of Articles 11 and 14. The Fourth Section found the case to be admissible, in part because in singling out Masons, Italy had discriminated between that group and other organizations. The relevance of this case to minorities cannot be overestimated. 

Thus, it is a generally recognized principle that a government must represent the whole people belonging to the territory without distinction of any kind thereby prohibiting, in particular according to Article 15 of the Framework Convention, a more or less complete blockage of its effective participation in decision-making processes, specially in matters affecting their culture, identity and institutions.  

In other words, a system of total exclusion of persons on the ground of national or ethnic origin from representation and participation in executive and judicial bodies gravely infringes fundamental rights. Hence, provisions in domestic laws reserving a certain public office in the executive or judiciary exclusively for the majority without the possibility for minorities to be elected would violate International Standards. (See for instance Article 5 of the Racial Discrimination Convention).

Do minorities have the right to self determination?

All international instruments grant the right to self-determination to 'peoples', and despite their large number, no precise meaning of the term "people" has been construed. Although there is no international legal definition of "peoples," who are entitled to the right of self-determination, the term is generally used to describe a population who shares the following characteristics: (1) a common historical tradition; (2) self-identity as a distinctive cultural group; (3) a shared language; (4) a shared religion; and (5) a traditional territorial connection.

Attempts to give a definition of the term people occurred in the process of the drafting of the UN Charter. Self-determination in the Charter attaches to "peoples". However, the travaux preparatoires of the San Francisco Conference point to an inconclusive discussion of the term 'peoples'. The UN Secretariat, in an attempt to interpret the term 'nation' and 'peoples', suggested that "the word 'nation' is broad...enough to include colonies, mandates, protectorates and quasi-States as well as States"; and, "...'nations' is used in the sense of all political entities, States and non-States, whereas 'peoples' refers to groups of human beings who may, or may not, comprise States or nations." (UNCIO DOCS, Vol.XVIII, p.657-658).

Further attempts to define the meaning of the word "people" were made in the course of the preparatory works of the Covenants on Human Rights, where self-determination refers to "all people". To this end, it was suggested that this word mean "peoples in all countries and territories, whether independent, trust or non-selfgoverning", "large compact groups", "ethnic, religious or linguistic minorities", or "racial units inhabiting well-defined territories" etc. However, it was thought, that the term 'peoples' should be understood in its most general sense and that no definition was necessary (UNDOC E/CN.4/SR.253, p.4 (GR); E/CN.4/SR.256, p.7 (YU); E/CN.4/SR.256, p.5 (IND); E/CN.4/SR.257, p.9 (RL); See also Bossuyt, M.J., GUIDE TO THE "TRAVAUX PREPARATOIRES" OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1987, Martinus Nijhoff Publishers, at 32).

Indeed, it appears to be exceedingly difficult to define the term 'people'. It has been suggested that peoplehood must be seen as a contingent of two elements. The objective element is that there has to exist an ethnic group linked by common history. A random group of persons, lacking any common tradition, cannot be categorised as people. There is also a subjective basis to peoplehood for it is not enough to have an ethnic link in the sense of past genealogy and history. It is essential to have a present ethos or state of mind.

In this regard, it appears relevant to refer to the Judgement of the Canadian Supreme Court on the secession of Quebec which attempted to ascertain the meaning of the term "people" for the purpose of the right to self-determination as follows:

" It is clear that a "people" may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to "nation" and "state". The juxtaposition of these terms is indicative that the reference to "people" does not necessarily mean the entirety of a state's population.( See Judgment of the Supreme Court of Canada, at para.# 124).

Although the Court does not give a definition of the term" people", it authoritatively confirms that "people" could point to other groups of individuals other than the entirety population of a state. Subsequently, the Court forwards the reasons for its finding: To restrict the definition of the term to the population of existing states would render the granting of a right to self-determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of the existing states, and would frustrate its remedial purpose".

It is apparent that commentators have sought to meld the various definitions within the term "ethno-national" group, which is a politically self-conscious sub-national group that asserts plausible historical claims to a particular territory and shares racial, cultural, or historical characteristics that distinguish its members from the dominant population. In short, in order for a group to be entitled to the right to self-determination, it must possess a focus of identity sufficient for it to attain distinctiveness as a people. Furthermore, as highlighted in various reports of the State parties to the Covenant on Civil and Political Rights, which describe their compliance with Article 1 on Self-determination, another requirement for a group to be entitled to the right of self-determination, is to demonstrate close connections to a particular territory (See Third Periodic Report of France to the Human Rights Committee, UN DOC.CCPR/C/76/Add.7, May 15, 1997, at para.# 6-17; also Fourth Periodic Report of the Russian Federation to the Human Rights Committee, UN DOC. CCPR/C/84/Add.2, February 22, 1995; Initial report of the United States of America to the Human Rights Committee, UN DOC. CCPR/C/81/Add.4, August 24, 1994, at para.# 30, whereby Native American Tribes are described as "unique aggregations possessing attributes of sovereignty over both their members and their territory.").

A different concept is the one referiing to indigenous communities, many of them throughout the world are claiming the right to self-determination. These are peoples, such as American Indians and Australian Aborigines, who constitute a "first people," with a prior history of territorial occupation and an ancestral attachment to their land before it was conquered and occupied by others. At various international fora, spokespersons for indigenous groups have claimed that their situations are identical to those of colonized peoples who have been conquered and then ruled by others. They argue that the salt water test should not apply to them. Both the UN's Draft Declaration on the Rights of Indigenous Peoples and the Inter-American Draft Declaration on the Rights of Indigenous People provide for the right of self-government or autonomy for indigenous peoples within their states of residence. Neither draft, however, recognizes a right of complete territorial and political independence. For example, the UN Draft Declaration states that "as a specific form of exercising their right of self-determination, [indigenous peoples] have the right to autonomy or self-government in matters related to their internal and local affairs."

Further, in General comment 23 (50) the Committee stated that 'the covenant draws a distinction between the right to self-determination and the rights protected under art. 27'. (Para. 3.1). 'The enjoyment of the rights to which art. 27 relates does not prejudice the sovereignty and territorial integrity of a State party' (para. 3.2).

Minorities (whatever the definition) appear not to have the right to self-determination in the form of succession.

EU Badminter commission on the Former Yugoslavia held that the predominant principle that must be respected is that of uti possidetis - the boarders of territories are inviolable. It held that Serbs in Croatia did not have the right to form their own state although the Croatian government is obliged to afford them the widest possible minority protections / rights.

All the above implies that minorities, at least in principle, do not have a right to secession (so called "external self-determination") they are restricted to "internal self-determination": through the granting of some form of autonomy within the state structure, inclusion in the democratic process and through protection of minority rights. 'Internal' self-determination means the right to authentic self-government, that is the right for a people really and freely to choose its own political and economic regime, while 'external' self-determination implies the choice of the international status of the people and the territory where it lives. See A. CASSESE, SELF-DETERMINATION: A LEGAL REAPPRAISAL 72 & 101 (UK: Cambridge University Press, 1995) [hereinafter SELF-ETERMINATION: A LEGAL REAPPRAISAL].

In its Advisory Opinion of 20 August 1998 [Source: http://www.lexum.umontreal.ca/csc-scc/en/pub/1998/vol2/html/1998scr2_0217.html ] the Canadian Supreme Court had to respond to a question concerning international law - Is there a right to self-determination under international law which would give the National Assembly, Legislature or government of Quebec the right to effect the succession of Quebec from Canada?

The Court noted that a question would exist as to whether the Quebec population would constitute "a people" in international law, but found it unnecessary to resolve. After an examination of the general principles of international law relating to self-determination, the Court found a right of secession exists "where 'a people' is governed as part of a colonial empire; where 'a people' is subject to alien subjugation, domination or exploitation; and possibly where 'a people' is denied any meaningful exercise of its right to self-determination within the state of which it forms a part." The Court found that Quebec does not satisfy these threshold tests and so does not have a right to unilaterally secede. The Court did note that if Quebec were to make a unilateral declaration of secession, a de facto secession would depend, in large part, on recognition by the international community. But the court said that the right to self-determination may mean cessation when 'a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to excursus it by cessation". Also note that on the 1 April 1999 the Inuit peoples in Canada, who form a majority in Nunavut, were given an autonomous form of self government in order to fulfil the internal self-determination wish of the Inuit.

The Right to Self-Determination:

Self-determination could be considered to be the political and legal processes through which a people gain and maintain control over their culture, society, and economy. With the creation of the United Nations, self-determination of peoples became an established principle of international law. The principle is embodied in several international instrument among which the UN Charter and both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The United Nations practice surrounding self-determination, including defining the content and subject of the right, has been consistent on certain central tenets. These tenets are preserving territorial integrity; granting self- determination only to dependent, external colonial peoples; and defining the subject of self-determination based on territory rather than ethnic criteria. Further, the political imperative of decolonization and the effort to clarify and define the Trusteeship system in the early 1950s served as the driving forces behind the shift from the Charter’s principle of self-determination to the right of self-determination expressed in the international human rights covenants drafted during the 1950s and 1960s. Though self-determination is only implied in the Charter chapter describing the trusteeship system, the idea of self- determination provided the movement for decolonization a moral and legal rationale. When self-determination was discussed during the drafting of the International Human Rights Covenants, the debates heavily linked the understanding of self-determination to the decolonization context. Tracing the development of the UN defined relationship between self-determination, Non-Self- Governing Territories, and decolonization clarifies the current status of self-determination at the UN.

The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone (Western Sahara Case, 1975 International Court of Justice 12, 31) (
click here). In the case Concerning East Timor it held that [T]he principle of self-determination has been recognised by the United Nations Charter and in the jurisprudence of the Court … [and] is one of the essential principles of contemporary international law.( See Case Concerning East Timor, International Court of Justice Reports [hereinafter ICJ REPORTS] 102 (1995). (click here)

Worth reading are the two important United Nations studies on the right to self-determination which set out factors of a people that give rise to possession of right to self- determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance. (see: The Right to Self-determination, U.N. Doc. E/CN.4/Sub.2/404/Rev. 1, U.N. Sales No. E.80.XIV.3 (1980) (click here) and H. Gros Espiell, The Right to Self-Determination, U.N. Doc. E/CN.4/Sub.2/405/Rev.1, U.N. Sales No. E.79.XIV.5 (1980)). (click here)

The principle is contained in different instruments: 1) the United Nations Charter; 2) the United Nations Covenants on Human Rights; 3) the Declaration on the Granting of Independence to Colonial Countries and Peoples; 4) the Declaration on Friendly Relations; 5) the Helsinki Final Act; and 6) the Charter of Paris and Document of Copenhagen.

The UN Charter:

The UN Charter contains explicit references to “self- determination” which is considered to be within the “purposes” of the UN. The principle is explicitly mentioned in Articles 1(2) and 55. Article 1(2) provides that one of the purposes of the UN is “to develop friendly relations among nations based on respect for the principle of equal rights and self determination of peoples”. Article 55 instructs the UN to promote higher standards of living, solutions to health and cultural problems, and universal respect for human rights “with a view 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...”

Thus, references to self-determination in the Charter are linked to the context of friendly relations among nations in conjunction with the “equal rights” of peoples. The Charter therefore, points towards the fact that the principle of self-determination is essential for “universal peace”. The text outlines a comprehensive concept linking independent factors of security, stability and human rights. The subcommittee responsible for the consideration of the Dumbarton Oaks Proposals and Amendments presented by the various governments gave its interpretation of the principle of self-determination (See UN Charter Debates, VI UNCIO 300, (May 15) at 703-4;), identifying the following main points:

a) free and genuine expression of the will of the peoples is an essential element of self-determination;
b) the principles of equal rights of peoples and that of self-determination are two component elements or one norm; c) that norm is a basis for the development of friendly relations, and is in effect, one of the appropriate measures to strengthen universal peace;
d) the principle in question should be considered in relation to other provisions of the Charter;
e) the principle as one whole extends as a general basic conception to a possible amalgamation of nationalities if they so freely choose.

The references to self- determination in Articles 1(2) and 55 of the Charter are further complemented by Chapters XI and XII on non-self-governing territories and the international trusteeship system. Article 73 of Chapter XI of the UN Charter describes the development of self- government in non-self-governing territories as a “sacred trust”. Article 76 of the Charter regarding the international trusteeship system provides for a progressive development in the Trust territories towards “self government or independence”.

The linkage between self-determination and colonies was supported by the many member states who favored the right of self-determination only for colonies. Resolution 637 linked self-determination with non-self-governing territories, defining those territories and in essence defining who would be recognized as possessing the right to self-determination. However, some nations attempted to expand the definition of a non-self- governing territory to include internally colonized peoples. Belgium took the lead in trying “to extend the obligations entered into by the UN members under Chapter XI to those parts of the metropolis inhabited by peoples whose degree of actual subordination to the rest of the state community in the midst of which they lived placed them in a ‘colonial situation’.” The “Belgium thesis” or “blue water thesis” as it came to be known, would have “extended the concept of ‘Non-Self-Governing Territories’ to include disenfranchised indigenous peoples living within the borders of independent states, especially if the race, language, and culture of these peoples differed from those of the dominant population.” In doing so, Belgium was attempting to bring back 23(b) of the League of Nations Covenant “which bound members to ‘secure just treatment of the native inhabitants of territories under their control’.”

However, the response of most other member states was unsympathetic and unequivocal. Chapter XI of the Charter did not “apply to peoples in independent sovereign states who enjoyed full rights as nationals of the state. ”The framers of the Charter in San Francisco had included Article 74, which clearly distinguishes Non-Self-Governing Territories from a state’s metropolitan areas, in order to restrict application of the term to peoples and lands geographically distinct from the administrating power. Western powers, who had indigenous peoples within their borders, led the opposition to Belgium’s more inclusive vision of a non-self- governing territory. This came to be known as the salt-water thesis, the alternative to the Belgium thesis and envisioned self-determination as the evolution towards self-government and independence, the goal of colonized African nations. By expanding the definition of a non-self-governing territory and applying self-determination to non-geographically distinct colonies, independence would not be the obvious and necessary result of self-determination.

Colonies located across the ‘salt-water’ could gain independence without disrupting the territorial integrity of existing nation-states while independence for domestic non- self- governing territories had the potential to cause a severe disruption. Alternate arrangements other than independence would seem to be the natural result of two self- determining peoples occupying the same territory. Thus, the salt-water thesis, now the accepted norm at the United Nations, has effectively eliminated indigenous peoples from gaining recognition as self-determining people at the United Nations.

However, the Charter fails to give a proper definition of “non-self-governing territories”, it loosely describes non-self-governing territories as “territories whose peoples have not yet attained a full measure of self-government.” (UN Charter, Chap. XI, Article 73). The definition is vague at best and contains no specific criteria for ascertaining when a non-self- governing territory has ‘attained a full measure of self- government.’

In Article 73(e), Administering powers are required to “transmit regularly to the Secretary General…statistical and other information of a technical nature” but the General Assembly is given no particular powers with regard to the transmissions or their contents.

In June of 1946, the Secretary General requested that member states submit the names of the non self-governing territories under their administrative care. Nation-states from around the world responded, and Resolution 66 (I) click here adopted on December 14th, 1946, formally enumerated the seventy-four territories falling within the scope of Article 73 (e). Two sessions later, the number of transmissions received by the Security Council had dropped from 74 to 63. Passed on November 3rd, 1948, resolution 222 (III) entitled ‘Cessation of Transmission of Information under 73(e) of the Charter’ click here attempted to address the ‘missing’ transmissions by reminding states of their responsibility to continue transmitting under Article 73. Some states argued that they had ceased transmissions because the territories in question no longer fell under the definition of a non- self-governing territory. Achieving ‘self-government’ was the seemingly straightforward criterion set by Article 73 indicating when a territory had ceased to be non self- governing, yet the article provided no definition for ‘self- government’.

Before culminating in two important resolutions in 1960 that provided definitions for these contested terms, the General Assembly continued to debate the issue and passed numerous resolutions including Resolution 334 (IV) 2 December 1949, click here Resolution 567 (VI) 18 January 1952, click here Resolution 648 (VII) 10 December 1952, click here and Resolution 742 (VIII) 27 November 1953 click here which articulated its evolving views.

UNGA Resolution 637 (VII) 16 December 1952 (click here)

While debating the definition of non-self-governing, or when a non-self-governing territory ceased to be a non-self- governing territory, the General Assembly was also struggling to form a definition to identify such territories. In resolution 637 (VII) of 1952, the General Assembly clearly recommended that “States Members of the United Nations shall recognize and promote the realization of the right of self-determination of the peoples of Non- Self-Governing and Trust Territories who are under their administration” and that “States Members of the UN shall uphold the principle of self-determination of all peoples and nations.”.) 

It is noteworthy that self-determination was explicitly named as the goal of the administration of non-self- governing territories. The formative stages of United Nations discourse on self-determination and non-self- governing territories were mutually reinforcing and permanently linked self-determination with non-self- governing territories as identified by the United Nations.)

Declaration on the Granting of independence to Colonial Countries and Peoples (UNGA Resolution 1514 (XV)): (click here))

The Declaration presents itself as an interpretation of the Charter and stresses independence within the colonial context, as the principal means through which self- determination is implemented.)

“Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,” the Declaration on Colonial Peoples declares in Article 2 that “all peoples have the right to self-determination.”)

It is stated that subjection of peoples to alien domination constitutes a denial of fundamental human rights and violates the peoples' right to freely determine their political status and pursue their economic, social and cultural development. The holder of the right to self- determination is considered to be the people, and the meaning of the word ‘people’ is conditioned by repeated reference to colonialism.)

Article 6 seems to eliminate the recognition of the right of self-determination for peoples sharing land with their colonizer by stating that Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter and the United Nations. In addition, the final article of the Declaration declares that all member states of the UN “shall observe faithfully and strictly” Charter and Universal Declaration provisions “on the basis of equality, non- interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.” Virtually any realization of the right to self- determination by an internally colonized peoples sharing territory with their ‘administering power’ would require at least a partial disruption of the current political and territorial regime of their colonizer; the language of the Declaration makes it possible to deny all such expression based on the absolute non-alteration of the current administering state.)

Most damaging to the aspirations of peoples sharing territory with their colonizers is Article 1 of the Declaration on Colonial Peoples. Article 1 states that 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 cooperation.)

What the Declaration specifies, in recognizing the right of self-determination possessed by all peoples, is that they "freely determine their political status"; but the exercise of that right does not necessarily lead to the independence of a State with the same frontiers as a former colony. Indeed, the declaration reaffirmed the principle of the territorial integrity of existing states and gave rise to the so-called "salt water test" (which limits the rights of self-determination to colonized lands that exist across the oceans from the colonizing country). In accordance with the principle of self-determination and the salt-water test, the UN supported the independence of overseas colonies in Africa, Asia and elsewhere.)

Thus self-determination as understood by the declaration may lead (see the list of factors annexed to General Assembly resolution 648 (VII) of 10 December 1952) either to: independence within the aforesaid geographical framework or integration into the territory of the administering power with strict equality of rights as between individuals, irrespective of whether their origins lie in the former colony or the former metropolitan state, or merger with a neighbouring State on the same conditions of equality, or the voluntary association of the ex-colony with the former metropolis on terms including unqualified respect for the former's personality.)

General Assembly Resolution 1541 (XV), ‘Principles Which Should Guide Members In Determining Whether Or Not An Obligation Exists To Transmit The Information Called For Under Article 73e Of The Charter,’ (click here))

It culminated the process of defining when self-government had been reached by a territory and of defining more carefully what constituted a colony. (Other statutes in this process include GA Resolution 334(IV) 2 Dec. 1949; 567(VI) 18 Jan. 1952; 648(VII) 10 Dec. 1952 and 742(VII) 27 Nov. 1953) “A Non-Self-Governing Territory can be said to have reached a full measure of self- government,” the resolution said, only by)
a) emergence as a sovereign independent state, b) free association with an independent state, or c) integration with an independent state. (Resolution 1541 (XV), Annex, 15 UN GAOR, Supp. (No.16), UN Doc. A/4684 (1960) at 29; principle VI).)

Principle IV of the resolution also stated that Prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it. Once this prima facie case has been met, other elements of an “administrative, political, juridical, economic, or historical nature” may be considered. If these additional elements affect the relationship between the metropolitan State and the territory concerned in a manner which arbitrarily places the latter in a position or status of subordination, they support the presumption that there is an obligation to transmit information under Article 73e of the Charter.)

It has been argued that Principles IV and V can easily be read as applying to indigenous peoples within a colonizer state. However, the inclusion of the “territorially distinct” disclaimer is no accident. In fact, Principle I of Resolution 1541 leaves little doubt as to where self- determination should be applied stating, “the authors of the Charter of the United Nations had in mind that Chapter XI should be applicable to territories which were then known to be of the colonial type.” Regardless of how we view the term ‘colonial’ now, it would be very difficult to argue that indigenous peoples sharing territory with sovereign states were accepted as being ‘of the colonial type’ by the authors of the Charter.)

Resolution 1541 thus equated colonies with the Non-Self- Governing Territories described in Chapter XI of the Charter. It then proceeded to declare that a non-self- governing territory must be ‘geographically separate’ from its administrating power. Importantly, this definition of a non-self-governing territory also becomes the definition of a colony in terms of United Nations understandings. “Recognizing that the peoples of the world ardently desire the end of colonialism in all its manifestations,” the Declaration on Colonial Peoples declares in Article 2 that “all peoples have the right to self-determination.” However, Resolution 1541 also ensures that “all its manifestation” does not include colonialism when it occurs within a shared (not ‘geographically distinct’) territory.)

The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter (G.A.Res. 2625 (XXV), Oct. 24, 1970, U.N. General Assembly, 25th Sess., Doc. A/RES/2625(XXV)). (click here))

The Declaration contributed to the formation of a set of general rules concerning the right to self-determination. States have acknowledged that the principles in the declaration represent their interpretations of the obligations of the Charter. According to paragraph 4, the modes for implementing external self-determination encompass independence, free association or integration with an independent state, ‘or the emergence into any other political status freely determined by people’). These are:

1) peoples under colonial or alien domination have a right to self-determination, i.e. to attain the status of sovereign states or any other political status freely determined by themselves; and)

2) peoples under racist regimes have the right to internal and external self-determination either by achieving self-government or seceding from the racist state.)

These provisions of the Declaration can be considered as codifying rules of customary international law. A number of international law authorities have asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance deriving from an interpretation of paragraph 7 of the Declaration, which reads as follows:)

“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 self-determination and thus possessed of a government representing the whole people belonging to the territory without distinction as to race creed or color. Every state shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.”)

It can be argued that this provision connotes the recognition of the right to self-determination also to peoples within existing States. If read in light of the state’s duty to promote respect for an observance of human rights and fundamental freedoms in accordance with paragraph 3, if peoples within existing States are treated in a grossly discriminatory fashion by an unrepresentative government, they could claim self-determination without concern that arguments about territorial integrity will defeat their claim. Thus, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise this right by secession.)

In its decision on the question of the secession of Quebec, the Supreme Court of Canada asserted that the third circumstance where a right of secession might arise, “parallels the other two recognised situations in that the ability of a people to exercise its right to self- determination internally is somehow being totally frustrated” (See Judgment of the Supreme Court of Canada, concerning Certain Questions Relating to the Secession of Quebec from Canada, as set out in Order in Council P.C. 1996- 1497, dated September 30, 1996, at para.#135.Also note that according to Article 38 of the Statute of the ICJ, the decisions of national courts are considered to be sources of international law).)

However, according to the Declaration, self-determination cannot be regarded as authorizing the dismemberment or amputation of sovereign states “conducting themselves in compliance with the principle of equal rights and self- determination of peoples.” In addition to reaffirming the primacy of ‘territorial integrity’ over self-determination for peoples sharing the same territory, the Declaration on Friendly Relations also speaks against external interference in domestic affairs.)

The UN Human Rights Covenants:

By the close of the session in 1952, the General Assembly had reached a decision: the right to self-determination would be included in “the International Covenant or Covenants on human rights”. Resolution 545 (VI) GA 5 Feb 1952 click here stated that an article “on the right of all peoples and nations to self-determination in reaffirmation of the principles enunciated in the Charter” should be drafted in the following terms:)

All peoples shall have the right to self-determination, and shall stipulate that all States, including those having responsibility for the administration of Non- Self-Governing Territories, should promote the realization of that right, in conformity with the Purposes and Principles of the United Nations, and that States having responsibility for the administration of Non-Self-Governing Territories should promote the realization of that right in relation to the peoples of such Territories. (Resolution 545 (VI) GA 5 Feb 1952, para. 1).)

In December of that same year, the General Assembly reaffirmed its commitment to recognizing self-determination. Resolution 637 (VII) declared that self-determination was a prerequisite to the realization of all fundamental human rights and that member states of the UN should uphold self- determination for all peoples and nations. Though the article on self-determination in the actual Covenants would contain inclusive language, the General Assembly’s endorsement of self-determination’s inclusion in the Covenants is given in a particular context. All peoples shall have the right to self-determination yet by singling out non-self-governing territories, the General Assembly seemed to identify the areas where the right is being violated and where self-determination should be forcefully applied.)

Both the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights include an article on self-determination, which is phrased with exactly the same wording. Article 1 of both Covenants recognises the right to self-determination in the following terms:)

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.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Thus, self-determination is defined “as an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.” (See the text of the General Comment in UN DOC. CCPR/C/21/Add.3 click here). It is placed “apart from and before all of the other rights” in the Covenants. Furthermore, self-determination is defined as an inalienable right of all peoples and imposes corresponding obligations, and “the rights and ... obligations concerning its implementation are interrelated with other provisions and rules of international law”. The Human Rights Committee general comments suggest that self-determination is both interrelated and serves as a prerequisite for the fulfilment of the range of human rights stipulated in the Covenants. Furthermore, the right of self-determination in the Covenants is universal.

The text and the travaux support the view that the Covenants reach beyond the colonial situation. The wording of the first clause of Article 1(1) that all peoples have the right of self-determination affirms the universality of the right. The “General Comment” issued by the Human Rights Committee supports this fundamental assumption of Article 1: ...it imposes specific obligations on State Parties, not only in relation to their own peoples but vis-à-vis all peoples, which have not been able to exercise or have been deprived of the possibility of their right to self-determination.

According to paragraph 1 of Article 1, all peoples are entitled to freely determine their political status, and economic, social and cultural development. In other words, every people or nation is free to establish its own political institutions, to develop its own economic resources, and to direct its own social and cultural evolution, without the interference of other peoples or nations. A people or nation that could not freely determine its political status could hardly determine its economic, social and cultural rights and vice versa (See Third Committee, 10th Session (1955): UNDOC A/C.3/SR.645, 18 (CS); A/C.3/SR.647,12 (GR)). click here

According to Article 1(2) the right of self-determination includes the simple and elementary principles that a nation or people should be master of its own natural wealth or resources. This article consists of two parts. Under the first, all peoples, regardless of whether they live in a non- self-governing territory or in an independent State, are entitled to utilise their natural resources without them being exploited by others. The underlying aim of this provision stays in stressing the concept that the era of colonialism - economic as well as political - has come to an end. Under the second part of Article 1(2), the right of peoples to utilise natural resources is subject to obligations of economic co-operation and to other rules of international law (See Third Committee, 9th Session (1954): UNDOC A/C.3/SR.576. 7 (RCH); E/CN.4/SR.260, p.6 (RCH); E/CN.4/SR.261, p.6). click here

It must not be intended to frighten off foreign investment by a threat of expropriation or confiscation. Rather, as various delegations pointed out during the preparatory work of the Covenants, it is intended to warn against such foreign exploitation as might result in depriving the local population of its own means of subsistence. This part of Article 1(2) is a reference to the well-known rule prohibiting the confiscation of property (including concessions) of foreigners, except for public purposes and on condition of payment of fair compensation within a reasonable time. The latter provisions seems to coincide with two articles, namely Article 47 of the Covenant on Civil and Political Rights and Article 25 of that of Economic, Social and Cultural Rights, which have the same wording: “Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources.”

In its General Comment, the Human Rights Committee addressed the issue of the economic content of the right in Article 1(2), advising that States should indicate any factors or difficulties in the way of “free disposal” and to what extent it affects the enjoyment of other rights in the Covenant. Under Article 1(3), all State Parties, including those having responsibility for the administration of Non- Self-Governing and Trust Territories, undertake two sets of obligations: a) to ‘promote the realisation of the right of self-determination in all their territories, and b) to ‘respect the maintenance of that right in other States. The original proposal laid down obligations only upon States that were responsible for the administration of the Non-Self- Governing and Trust Territories. Later the proposal was amended to include all states whether or not they were administering such territories. The obligation imposed on the administering powers of the non-self-governing and Trust territories is now almost completely outdated, because of the fact that almost all colonial people have achieved independence. See UNDOC E/CN.4/SR.254, p.6-7 (AIWO); E/CN.4/SR.255, p.9 (F); E/CN.4/SR.257, p.4 (F). click here

The drafters of the Covenants imposed on contracting States the duty to implement the above obligations in ‘conformity with the Charter’. The adoption of the texts of the UN Covenants on Human Rights marked the next phase of legal development of the concept of self-determination from a legal obligation in the decolonisation area, to self- determination as a human rights.

The Vienna Declaration and Program of Action (A/Conf. 157/24, 25 June 1993), adopted in 1993, by the UN Conference on Human Rights click here

It reconfirmed in its relevant part Article 1 of the UN Covenant on human rights. As other international acts providing for the right to self determination, the Vienna Declaration, after affirming the people’s right to determine political, economic, social and cultural issues, states that such rights are not to be construed as “authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states’. However, the emphasis is put again on the government representing the whole people belonging to the territory without distinction.

Other non UN standards:

The Final Act of the Conference on Security and Co-operation in Europe adopted on 1 August 1975 click here, embodied a Declaration on the Principles Concerning Mutual Relations of the participating States, which contains in its Principle VIII an explicit reference to internal and external self- determination:

‘By virtue of the principle of equal rights and self- determination of peoples, all peoples have the right in full freedom, to determine, when and as they wish, their internal and external political status, without external political interference, and to pursue as they wish their political, economic, social and cultural development.

Arguably, this formulation is construed to mean that the right to self-determination is a continuing right, not a right exercised, once and for all, at the time of independence. According to the interpretation given to the text as a whole, this internal situation does not address the situation of national minorities, because they are dealt with in another section of the Declaration. The novelty of the Helsinki Act, however, is its concern with internal self- determination. The wording agreed upon by 35 States embodies the idea that self-determination means the permanent possibility for a people to choose a new social or political regime, to adapt the social or political structure to meet new demands, so that its voice be reflected in the policy of its government.

The Charter of Paris, which was adopted in November 1990 during a meeting of CSCE (today OSCE), click here references self-determination in a manner that narrows previous formulations and limits its content. The Charter reaffirms equal rights of peoples and their right to self- determination in compliance with the UN Charter and other relevant norms of international law, comprising those relating to territorial integrity. The paragraph on self- determination is included in the Chapter on "Friendly Relations among Participating States" and not on the Chapter on "Human Dimension" which includes the most important commitments of the members of the organisation on the implementation of human rights and freedoms. The Chapter on Human Dimension of the Charter likewise the Helsinki Act, pays special attention to the rights of minorities, which are not included in the definition of self-determination. This interpretation is reinforced by the Document of Copenhagen, which does not include a section on self- determination. Thus, the references to self-determination in the OSCE acts are indicative of the linguistic limitations present in the human rights environment during the period following the fall of the iron curtain.

The right to self-determination in the jurisprudence of the International Court of Justice:

The International Court of Justice has recognised the principle of self-determination in a number of cases mainly within the decolonisation context. In its Advisory Opinion concerning Namibia (ICJ Reports 1971, 31 at para.# 52.)
click here it affirmed the right to self-determination as defined by the United Nations, declaring 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” (See ICJ Advisory Opinion Legal consequences for states of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Report, 1971, 16, at para.# 31-32).

The Court attempted to broaden the existing interpretation and the impact of self-determination in its Advisory Opinion on Western Sahara.
click here Referring to GA Resolution 1514 (XV), the Court found that: “The above provisions, in particular paragraph 2 [defining self-determination] requires a free and genuine expression on the will of the peoples concerned” (See ICJ Reports 1975, 32, at. para.# 55).

It as apparent from the latter wording, that the Court held, that self-determination always entails ‘the need to pay regard to the freely expressed will of the peoples, but that exceptionally this requirement can be and has been dispensed in two instances: when one is not faced with a ‘people’ proper, and when ‘special circumstances’ make a plebiscite or referendum unnecessary. However the Court did not elaborate and specified what it meant by ‘people’ or by ‘special circumstances’. Notwithstanding the lack of the ICJ authoritative opinion on the terms set out above, as a commentator argues, the Court’s interpretation is more in keeping with the general spirit and thrust of the principle of self-determination than the standards on the self- determination of colonial peoples that evolved in the 1960s.

More recently, and as it is already mentioned above, in the Case Concerning East Timor, the Court stipulated that self- determination was one of the essential principles of contemporary international law” (See ICJ Reports 1995, 90, at 102.).
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External Self-determination: the right to secede and internal Self-determination.

Thus, the right of a people to determine its international status, including the right to independence, sometimes referred to as external self-determination; the right of a state population to determine the form of government and to participate in government, sometimes extended to include democratization or majority rule and sometimes called internal self-determination.

As was addressed in the previous section, it is clear that all peoples have an inherent right to internal self- determination. This right includes the determination by the people to freely determine their political status and pursue their economic, social, and cultural development. However, external self-determination or secession, is a much larger issue.

In the discussion on the Declaration on Friendly Relations, it was mentioned that there are three situations under which a right of secession might arise. For the first two cases referencing to colonial situations and foreign occupations the outcome is easier, as there is broad consensus that secession right in those cases is customary law. While there is still disagreement on the interpretation of the Saving Clause of the Declaration on Friendly Relations. It was said that it includes that a right of secession is also recognised to a people whose right to internal self- determination has been thoroughly violated by a Government that does not represent the people.

While international law does not specifically grant component parts of sovereign States the legal right to secede unilaterally from their “parent” state, it also does not provide an explicit denial of such a right. The reason for this is that international law places a great importance on the territorial integrity of nation States and, by and large, leaves the creation of a new State to the discretion of the domestic law of the exiting State of which the seceding entity presently forms part. Concurrently, however, it is widely recognised that secession is one of the modes for implementing self-determination. It is, in fact, undeniable that in the face of a well-established international law right to self-determination, States, in certain circumstances, have an implied duty to recognise the legitimacy of a call for secession.

The caveat is that international law presupposes that the right to self-determination will be exercised within the framework of existing sovereign States and in accordance with the maintenance of the territorial integrity of those States. In fact, the UN Covenants on Human Rights both define the ambit of the right to self-determination in terms that are normally attainable within the framework of an existing State, even without direct reference to the protection of territorial integrity. International acts, such as the Declaration on Friendly Relations and the Vienna Declaration, state, immediately after affirming a peoples’ right to determine its political, economic, social, and cultural status, that: [Such rights] are not to be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign independent states conducting themselves in compliance with the principle of equal rights and self determination of peoples.

However, it could be argued that the maintenance of the territorial integrity of existing States and the right of a “people” to achieve a full measure of self-determination are not mutually exclusive. However, according to the Supreme Court of Canada, this is only true when the State in question governs in a manner representative of the whole of the people or peoples resident within its territory, equally and without discrimination. As such, the manner of governing must respect the principles of self-determination as part of its own internal arrangements. Only when States are fully in compliance with these factors would they be considered entitled to the protection under international law of their territorial integrity.

This being said, though, there are indeed certain circumstances in which a right of secession may arise. In addition to the traditionally accepted situations where a right to secession has been recognised – for peoples under colonial or alien domination or under racist regimes – many international lawyers are now advocating that a people finding itself completely blocked from the meaningful internal exercise of its right to self determination are entitled, as a last resort, to exercise the right via external self-determination, or secession. The roots for the third construction arguably rest in the formal and/or factual inability of a people to determine its economic, political, social and cultural status within the framework of an existing State. The recent requirement of the Vienna Declaration according to which governments represent “the whole people belonging to the territory without distinction of any kind” lends credence to the assertion that such a complete blockage of the exercise of the right to self- determination (internally) may potentially give rise to an external exercise of that right, i.e. secession. As the Canadian Supreme Court stated in the Case concerning the Secession of Quebec:

[T]he international law right to self-determination generates at best, a right to self determination...where a people is oppressed... or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to the right to external selfdetermination because they have been denied the ability to exert internally their right to self-determination.

Under international law the right to self-determination of a people is normally fulfilled through internal self- determination – a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. As such, the right to self- determination encompasses political, economic, social and cultural aspects, each of which are being closely and indissolubly linked. Being interdependent, each aspect may be fully realised through the complete recognition and implementation of the others.

Thus, although the exercise of self-determination can include secession from an existing state and the creation of a new one, it also includes other less dramatic choices. The UN General Assembly's 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States explains that implementation of the right to self-determination need not conflict with the territorial sovereignty or political unity of a state. The Declaration provides that a people exercising their right of self-determination may choose to form a federation with an existing state, integration into an existing state as an autonomous region, or "any other political status freely determined by a people" short of secession.

The Declaration goes on to explain the conditions under which peoples are not justified in seeking secession and independence from a sovereign state. It states that independent countries possessing a government that effectively represents the whole of their population (ethnic minorities included) are considered to be conducting themselves in conformity with the principle of equal rights and self-determination of peoples. For example, if an indigenous people or ethnic minority reside in a democratic state that enables them to participate effectively in the political process and economy and to practice their religion and culture, then they are exercising their right of self- determination and have no cause to secede.

The right to secede is an option of last resort, justified by serious government violations of human rights, persistent discrimination, and other grave injustices. Self- determination examples of secession in recent decades include the dissolution of the Soviet Union and Yugoslavia, the separation of East Pakistan from West Pakistan to form Bangladesh, and the separation of East Timor from Indonesia.

The political aspects denote the idea that the right to self- determination includes the ability of a group to collectively determine its political destiny through democratic means. Accordingly, definitions of self- determination include the right of a “people organised in an established territory to determine its political destiny in a democratic fashion, or the right “of people living within an independent and sovereign state to freely choose its own government, to adopt representatives institutions and to periodically…elect their representatives through a free procedure with freedom to choose among alternative candidates or parties,” or “the right of all segments of a population to influence the constitutional and political structure of the system under which they live.”. The formulation of self-determination set forth in many international instruments, such as the Human Rights Covenants and the Declaration on Friendly Relations, articulates the standard by which a State’s behaviour should be judged. Thus, a state must be possessed of a government representing the whole people belonging to the territory without distinction as to race creed or colour.

The economic aspects of the right to self-determination are first of all manifested, in the right of all peoples to determine, in freedom and sovereignty, the economic system or regime under which they are to live. Furthermore, from an economic standpoint, the right also involves the exercise of a permanent sovereignty over natural resources, and covers problems raised by harmful activities that may be undertaken in this area by transnational or multinational enterprises. However, the safeguarding of two essential principles should be carried out: on the one hand the respect for the sovereignty to develop the national resources, and on the other the provision of adequate guarantees for the foreign investors.

The social aspects connote the idea that every people have the right to choose and determine the social system under which it is to live. In particular, the latter aspects are related to the promotion of social justice, to which every people is entitled,(See the Report of the Subcommission on Prevention of Discrimination and Protection of Minorities on its twenty-sixth session, E/CN.4/1128, at para.# 28) click here and in a broader sense, imply the effective enjoyment of social rights without discrimination.

The cultural aspects relate to the establishment of a cultural regime or system, which constitutes a very important element of the right to self-determination of all peoples. It implies recognition of its right to regain, enjoy and enrich the cultural heritage, as well as the affirmation of the right of all its members to education and culture.

Examples of self-determination within an existing state include Italy's five special autonomous regions with extensive local powers defined by the constitution: Trentino- Alto Adige (containing the German-speaking people of the South Tyrol), Friuli-Venezia Giulia (containing Slovene and Friulian speakers), Val d'Aosta (containing French speakers), as well as the islands of Sardinia and Sicily. Each of these regions has unique, "non-Italian" cultural, linguistic, and historical characteristics that have justified extensive delegations of powers from Rome to the regional authorities to permit decision-making on local educational, economic, cultural, and budgetary issues. Some other autonomy arrangements include the Sami Parliaments in the Nordic countries, the Nunavut territory in Canada, and the ancestral territory of indigenous people in Panama. The trend in world politics has been for enlightened states to attempt sincerely to accommodate the self-determination aspirations of their ethnic minorities and indigenous peoples, while other states continue to suppress and deny subjugated peoples this fundamental right.

A right to external self-determination arises in extreme cases and under carefully defined circumstances. It has been defined as in the following statement from the Declaration on Friendly Relations: 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 constitute modes of implementing the right to self-determination by that people.

Despite this progressive jurisprudence, however, there is, in fact, little direct evidence that customary international law supports the right to secession. Rather, present-day scholars must look to State practices in the last decade, which seem to suggest the emergence of a recognisable right to secede in particular circumstances. The examples of forcible self-determination that were supported by the international community and various neighbouring States in the aftermath of the fall of the Soviet Union and Yugoslavia are particularly enlightening. In addition, the international response to secession efforts in the context of decolonisation in Eritrea and East Timor, and outside the context of decolonisation for instance in Former Soviet Union, and former Yugoslavia are noteworthy as they aid in setting forth the emerging customary law on the right to secession in pursuit of self-determination where such exercise is internally impossible. It should be noted, however, that the success of the claims for secession are in large part attributable to the international community’s willingness to extend recognition to them.

The Case of Eritrea

The case of Eritrea is concerned with decolonisation, but it has a special nature so far as the State that has for a long time claimed territorial rights over it, Ethiopia, had itself been subjected to colonial rule by Italy (Eritrea was an Italian colony). Ethiopia claimed that it had absolute legitimacy of Eritrea being an integral part of Ethiopia. Meanwhile, the Eritreans held that they were entitled to self-determination and that Ethiopia had ignored and actually denied that right.

Between the eleventh and nineteenth centuries, Eritrea became a peripheral part of Ethiopia. It was occupied by Italy in 1885-9, and subsequently turned into an Italian colony pursuant to the Treaty of Uccialli of 1889, with Ethiopia. Therefore, by this Treaty, Ethiopia agreed to the acquisition of sovereignty by Italy over Eritrea. Thus the region became a colonial unit. When Italian colonial rule came to an end, Great Britain administered Eritrea under a trusteeship, until 1952.

The UN decided to separate the two issues that of the future of Eritrea and that of the independent status of Abyssinia/Ethiopia. A UN General Assembly Resolution (Resolution 269 IV of 21 November 1949) set up a Commission responsible for the submission of proposals. The General Assembly did not envisage the holding of a referendum or a plebiscite to ascertain the wishes of the population. Consequently the Commission assessed “the political wishes of the parties and people ”by collecting the views of “the principal political parties and associations” and “holding hearings of the local population”.(UN report of the United Nations Commission for Eritrea, 1950, UN DOC. A/1285, 17 ff., at par. 106-31). Thus, it concluded that the majority of Eritreans favored political association with Ethiopia.The way pursued by the Commission to assert the wishes of the Eritrean population remain questionable, and the latter consideration would have been different should a referendum have been held. It seems that political and strategic considerations prevailed over the right to self- determination, as the genuine and free expression of the will of a people.

The General Assembly decided “Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown”. The British administration of Eritrea ended in 1952, and at the same time the Federation was established. The Federation was however short-lived, for the Eritrean Assembly voted in November of 1962 for the incorporation of Eritrea into Ethiopia; Eritrea thus became a province of Ethiopia.

The Eritreans had since 1961 created a liberation movement, the Eritrean Liberation Front, that was followed in 1970s by another movement, and that were engaged in an armed struggle with the Ethiopian authorities. Recently, following the collapse of the Mengitsu government, Eritreans acquired full control over Eritrea and, after a referendum in 1993, proclaimed their independence. The right to self determination of the Eritrean people was not properly exercised when the Federation decided upon by the UN was established. Therefore, the Eritrean people could still claim the right to freely choose their future development. Accordingly, a referendum was held under international scrutiny, and it really established the free and genuine will of Eritreans to become independent.

It is apparent from this case, that the Eritreans succeeded in their claims for independence for these reasons: 1) their liberation movements took over control of the Eritrean territory 2) their right to self-determination was not implemented because of the fault decision of the international Community to create a Federation. So, in this case, the claim of territorial integrity had to yield in favor of the right to self-determination.

The case of East Timor

East Timor became a part of the international agenda in 1960 when the UN General Assembly added this territory to the list of Non-Self-Governing territories. Before that, East Timor was administered by Portugal. 14 years later, Portugal attempted to establish a provisional government and a popular assembly that would determine the status of East Timor. A civil war broke out between the supporters of independence and those who favoured integration with Indonesia. Portugal withdrew being unable to control the situation. Subsequently, Indonesia intervened by military means incorporated East Timor as its 27th province (For more information, see http://www.un.org/peace/etimor). The United Nations never recognised the inclusion of East Timor in Indonesia, and both Security Council and the General Assembly demanded Indonesia to withdraw from East Timor.

In 1982, UN, Portugal and Indonesia started negotiations on the question of the status of East Timor. In 1998, Indonesia proposed a limited autonomy for East Timor within Indonesia. The discussions lead to the conclusion of an agreement between Indonesia and Portugal signed in New York in 5 May 1999. Both governments entrusted the UN Secretary General to initiate the process of popular consultations with the purpose of establishing the will of the East Timorese to accept or refuse the special autonomy offered to them within Indonesia.

The Security Council decided for the creation of United Nations Administration Mission in East Timor (UNAMET) in 11 June 1999 to organise the consultation process and to monitor for a transitional period the implementation of the will of East Timor people. The voting which took place on 30 August 1999 resulted in 78,5% of the votes the refusal of the proposed autonomy and the initiation of a transitional process towards independence.

After the proclamation of the result of referendum, the police that was pro-integration and with the support of the Indonesia security forces, started a campaign of violence, and slander throughout the country. As a result many people were killed and 500,000 were displaced from their homes, half of which were forcefully displaced from the territory. In response, the UNSC authorised the deployment of a multinational force (INTERFET) to restore peace and security in East Timor, as well as to support and protect UNAMET in carrying out its tasks. Indonesian authorities left from East Timor, and on 28 September 1999, Indonesia and Portugal agreed that the UN takes over authority over East Timor.

On 25 October of the same year, the SC decided through Resolution 1272 (1999) to create the UN Transitional Administration in East Timor (UNTAET) with full responsibilities for the administration of the territory of East Timor.

The dissolution of the USSR

After the Communist revolution of 1917, the Bolsheviks inherited a mosaic of an empire ruled over by the Romanovs, and which was facing the risk of disintegration into the constituent nationalities. Taking into account strong separatist tendencies of some nationalities, Lenin supported a strategy according to which, among other things, nationalities would not be subject to Russian domination, they would have autonomy, and they would have the right to secede should they so desire. The result was the establishment of a federal State with 15 union republics, 20 autonomous republics, 8 autonomous oblasts, and 10 national oblasts.

The stipulation in the Soviet Constitution of the right to self-determination, which was mainly perceived as a right to secede, was meant to be a political tool to bring the nationalities into the union and not to provide the vehicle for secession. Notwithstanding this recognition, in practice, the right to self-determination as such did not exist. The establishment of a strict dictatorial system suppressed any discontent or resentment of non-Russian nationalities. However they preserved their ethnic identity. The political reforms known as glasnost and perestroika, introduced by Gorbachev created an atmosphere of freedom that enhanced the demands of dozens of nationalities for self-determination. The general ethnic unrest exacerbated by economic decline provided an excellent basis for increased secessionist demands. The first act came from the Lithuanian Parliament in December 1989 with a unilateral declaration on independence. In April 1990, the Supreme Soviet passed a law providing for a waiting period of five years to secede from the federation. Accordingly, the dissolution of the Soviet Union was unavoidable at some juncture. On September 17, 1991, the three Baltic States - Lithuania, Latvia, and Estonia were admitted as Members of the United Nations (GA Res. 46/4 UN GAOR, 46th Sess., Supp. No.49, UN Doc.A/46/4 (1991)). In December of the same year, leaders of Russia, Ukraine and Belarus met in Minsk and proclaimed the establishment of the Commonwealth of Independent States (CIS).

The dismemberment of USSR is a voluntary act that was completed with the conclusion in Alma Ata of a Protocol to the Minsk Agreement, whereby all the remaining republics except for Georgia joined the CIS. The right to self- determination and admissibility in the UN of the former Soviet Republics, which became independent states, was never called into question.

The secession of the Baltic States differs from that of the other units of the UN. They existed as independent States before their illegitimate annexation by the Soviet Union. The refusal to recognise the Soviet annexation was based upon this illegitimacy. Therefore Western States had the legal justification to recognise the republics if they so choose. Notwithstanding the illegal basis of the annexation of the republics, the political realities before 1990 militated against their recognition. It is true that even though recognition has judicial implications, it is essentially political in character. Undoubtedly, the three republics possessed the basic attributes of statehood: land, population and government, as well as the capacity to enter into international relations. Three characteristics should be pointed out in this case: a) the parent state was either unwilling or unable to exercise or regain control over the seceding territories, b) a significant degree of independence and c) the absence of protest against recognition of states.

While the other Soviet republics concluded the Minsk Agreement and the Alma Ata Protocol where they expressed the mutual agreement of the constituent republics to dismantle the union. The republics did not secede as such from the union, they voluntarily dissolved it. Arguably, before the conclusion of the Alma Ata Protocol, the conclusion of the Minsk agreement amounted to secession from the union. However, this is the reason that the international recognition for the CIS members came after the constitutional dissolution of USSR and the resignation of Gorbachev. The dissolution of the USSR was not opposed by the USSR government. After the dissolution, the status of the constituent republics was upgraded to independent entities, possessing the basic attributes of statehood.

The case of Burma.

The 1947 Constitution of Burma, which was to be the constitution following the de-colonization process, had a ten-year trial period "opt-out" clauses regarding the many different people of the territory occupied by Great Britain. Thus the ethnic nationalities that were part of the union of Burma under the British rule would have the right during ten years (until 1957) to say they do not want to continue being united to the other groups in post-colonial Burma. However, in the intervening years between 1947 and 1957, the Burmese, the majority in that area, seized power establishing a government that unilaterally extinguished the opt-out rights under the 1947 Constitution. Conflicts begun between the Burman army and the military forces of the other ethnic nationalities that were given the right to cede in the 1947 Constitution: the Karen, the Karenni, the Mon, the Shan and others.

The Moluccas.

The Netherlands, as had Great Britain, amalgamated many unrelated nations and placed them under the colonially- imposed "unitary" state system --under one rule. At the time of de-colonization there was great difficulty in reaching an agreement as to what should happen to all of those formerly independent island nations. The strongest and most populous group was the Javanese, centered in Jakarta although also located elsewhere in the islands. The Javanese became the bargaining power. So through the Netherlands and the Javanese and with the cooperation of the United Nations at that time, Indonesia was to come into being.

The de-colonization instrument, called the Round Table Conference Agreements of 1949, was between the Netherlands, the Javanese - Indonesian leadership and the United Nations. The new State to be formed was to be called the United States of Indonesia and was to be made up of the Javanese islands to be grouped as "the Republic of Indonesia" and other co-equal "republics." The Moluccas was to be part of the Republic of East Indonesia. The Round Table Conference Agreement had several "opt-out" provisions offering provisions for both internal and external choices. For example, the populations of territories were to be given a plebiscite to determine "whether they shall form a separate component state." The second "opt-out" provision allowed states that did not ratify the constitution to negotiate with either the United States of Indonesia or the Netherlands for a "special relationship." Thus, the de- colonization instrument itself gives the Moluccas the legal right to secede.

Immediately following the turning over of power, the Javanese began to forcibly incorporate the component parts into the Republic of Indonesia (the Javanese stronghold) rather then implement any plebiscites. Additionally, the Javanese made clear they would not allow component parts to "opt-out" entirely. With increasing Javanese pressure on the Moluccas, the Moluccas responded by invoking Article 2. 2: on April 25, 1950 the Moluccan leadership declared the independent state of the Republic of South Moluccas. However, the Javanese strongly opposed this, and itself invaded the Moluccas.

Kashmir.

The leaders of what became Pakistan and India reached an agreement with the British that the people of Kashmir would decide their own disposition. In 1948 the Security Council established the United Nations Commission on India and Pakistan, which, in addition to the Security Council itself, adopted resolutions mandating that the final disposition of Kashmir was to be via a plebiscite carried out under the auspices of the United Nations. (See, Security Council resolutions 39 (1948), 47 (1948), 80 (1950), 91 (1951) and 96 (1951)). The Security Council resolutions indicating United Nations action to settle the Kashmir question were all supported by India as were resolutions of the United Nations Commission for India and Pakistan.

However, before such a plebiscite could take place, the armed forces of India seized much of Kashmir under the pretext of coming to aid the British-maharajah who was attempting to quell the Kashmiri's revolt against him. The maharajah obtained India's military help in exchange for an Instrument of Accession giving Kashmir to India. Since that time, India has maintained control of what must be called Indian-occupied Kashmir, and continually refers to Kashmir as an integral part of India. India supports this view in part because of Indian-managed elections taking place in Kashmir. However, the United Nations Security Council has repeatedly rejected this argument, by stating that such unilateral acts do not constitute the free exercise of the will of the Kashmiri people: only a plebiscite carried out by the United Nations would be valid. (See Security Council resolution 122 of 24 January 1957. India had claimed that the Kashmiri people accepted secession to India because a Kashmiri Constituent Assembly approved it in 1956. However, that assembly was chosen by India and does not meet requirements of a plebiscite as expressed in Security Council resolution).

The United Nations Security Council and the Commission had established a plebiscite administration under the authority of the president of the Security Council, and both directly with the President of the Security Council and the Commission on India and Pakistan, a series of plebiscite administrators were unable to secure a situation on the ground so that a plebiscite could take place. The last plebiscite administrator finished his term somewhere between 1955-1956. As of today the disposition of Kashmir has not been legally decided. The Kashmiri people are involved in a brutal war in Jammu and Kashmir.

Even without the United Nations recognition of the Kashmiri's right to self-determination, the Kashmir claim is exceptionally strong. The area had a long history of self- governance pre-dating the colonial period. The territory of Kashmir has been clearly defined for centuries. Kashmiri people speak Kashmiri, which, while enjoying Sanskrit as a root language as do all Indo-European languages, is clearly a separate language from either Hindi or Urdu. The Kashmiri culture is similarly distinct from other cultures in the area in all respects. Most important to a claim to self- determination, the Kashmiri people have a current strong common aspiration for re-establishment of self rule. The Kashmiri people resisted the British, and maintained a degree of autonomy throughout British rule. Resistance to India has continued unabated throughout Indian occupation, with major uprisings in 1953, 1964 and continuing essentially unabated since 1988.

Tibet

(see Report [on Tibet] of the Secretary-General, U.N. Doc. E/CN.4/Sub.2/37, which includes my submission regarding self- determination and Tibet).

The Tibet situation is a special case since it represents a post-Charter annexation because China seized independent Tibet in 1949 -1950. The international community condemned China's annexation as illegal. (See especially General Assembly resolutions 1353 (1959); 1514 (1960) and 1723 (1961)).

Sri Lanka

The island of Ceylon was populated by two distinct people: the Sinhala and the Tamil people. The first colonial power on the island, Portugal, was only able to conquer the Tamil country more than 100 years after it conquered the Sinhalese one. The Dutch took over the island from the Portuguese. Under the subsequent British rule, the Tamil nation and the Sinhala nation were amalgamated under "unitary" rule. During the de-colonization process in Sri-Lanka, there was an attempt between the Tamil and Sinhala leadership to try out a post-colonial unitary state despite the historic situation of the two countries. In the first two constitutions, there was an agreement between the majority Sinhalese people and the numerically fewer Tamil people for a government structure that would guarantee that the Tamil people would not become fatally submerged under the Sinhala. However the attempts to negotiate to try to keep open ways to guarantee rights for the Tamil people failed for nearly 30 years, at which point the combined Tamil leadership said that "unitary" rule was no longer an option. Since 1982, there is an armed conflict between the Sinhala-controlled government and the Tamil people, at the hart of it is the right of the Tamil people to self-determination.

Western Sahara

The International Court of Justice, in its decision on the Western Sahara in 1975, ruled that if there is land that in fact no one has ever claimed, it is opened for grabs. Such land is called "terra nullius" - empty land. But if any land has had a population on it, that land belonged to that population and is not open for grabs. This question arose in the de-colonization process of Western Sahara because Morocco attempted to claim that prior to becoming a colony of Spain, Western Sahara has been "empty" except for a few nomadic Moroccans. The Court, however, found the Saharans to be a distinct people who historically populated that land.

The Case of Yugoslavia

The case of Yugoslavia is unprecedented because of the widespread recognition of the former Yugoslav Republics by members of the international community, favoring secessionist movements still engaged in armed struggles for independence outside of the colonial context. The EC promptly accorded the recognition of Croatia, Slovenia, Bosnia-Herzegovina, and Macedonia. The former Yugoslav Republics became also UN Members (All of the former Yugoslavian Republics, with the exception of Macedonia (FYROM), became Members of UN on 26 May, 1992). On the other hand, the so-called Federal Republic of Yugoslavia was not recognised as a successor state to the former SFRY. It is indisputable that a decisive factor in prompting the EC to recognise the new states stood in the imminent threat and instability to regional security.

The break out of fighting in Yugoslavia started by the end of June 1991 when federal troops moved against secessionists in Slovenia. The first reaction of the international community, and in particular of the EU, expressed support for the territorial integrity of Yugoslavia. The Security Council took a very strong position set out in a unanimous resolution (S.C. Res.713, UN SCOR 46th Sess. 3009th mtg. Supp., UN Doc. S/713 (1991)) which maintained that the continuation of the situation constituted a threat to international peace. This response of Security Council that falls under the scope of Article 39 of the Charter cleared the way for acting under Chapter VII and the crisis in Yugoslavia was dealt with as if it were an international crisis.

The Arbitration Commission on the former Yugoslavia (the Badinter Commission), concluded in November 1991 that Yugoslavia was in a process of dissolution, and the former Yugoslav republics seeking independence were new States on the territory of the former SFRY. The conditions for recognition were set out in the EC “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”. Prior to recognition, each applicant was required to engage in commitments “to adopt constitutional and political guarantees ensuring that it has no territorial claims towards a neighboring Community State and that it will conduct no hostile propaganda activities against neighboring States, including the use of a denomination which implies territorial claims”.

Furthermore, in Opinion no. 4 concerning the application of Bosnia-Herzegovina, the Badinter Commission used the language of self-determination, finding that the absence of a referendum expressing the will of the peoples of Bosnia- Herzegovina on its international status cannot be held to have been fully established, despite recognition. The Arbitration Commission considered in its opinion no.3, the legal status of the uti possidetis doctrine (The uti possidetis doctrine generally is applicable for the delimitation of boundaries in order to upgrade them from administrative to international boundaries as the parties in the dispute legitimately posses the territory at the time of the dispute) holding that:

[E]xcept where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis.

The Commission then referenced the ICJ judgement in the Burkina Faso/Mali case, in which the Court strongly affirmed that this doctrine was a “rule of general scope ” and a “general principle”. The Badinter Commission asserted and concluded that, following the dissolution of the former Yugoslavia, the former “internal boundaries” between Croatia, Serbia and Bosnia Herzegovina possessed the status of international boundaries. In sum, the Badinter Commission conclusions suggest that a general right of secession is neither explicitly granted nor denied by the international system. Recognition by the international community to a secessionist territory government might occur if 1) that government has demonstrated effective continuous control over its territory 2) the government has made provision for accepting relevant international obligations, and 3) where it has taken constitutional steps to ensure the political autonomy for its minorities if they desire it. Further, egregious and extended violence against secessionist forces is regarded as likely to give rise to a threat to international peace and security. This implies that, flows of refugees, loss of human lives, tempting potential external intervention, and disrupting international trade in essential goods and services, transforms a civil war from a domestic to an international level. The new State created by secession is entitled to those boundaries that were administratively applicable to it prior to independence when it was a unit of a parent state (uti possidetis iuris).

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