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.
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,
(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;
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.
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,
(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;
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;
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
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
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.
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".
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
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:
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
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).
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.
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.
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.").
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.
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
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
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
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”.
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.
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.”.)
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.)
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.)
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.)
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)
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).)
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.)
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.)
UN Human Rights Covenants:
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).)
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:)
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
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
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.). click here
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.
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
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
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.
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.
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
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
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.
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
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.
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.
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.
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.
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.
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.
(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)).
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.
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
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:
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).
CASE LAW (press here)