The political aspects denote the idea that the right to self-
determination includes the ability of a group to
collectively determine its political destiny through
democratic means. Accordingly, definitions of self-
determination include the right of a “people organised in an
established territory to determine its political destiny in
a democratic fashion, or the right “of people living within
an independent and sovereign state to freely choose its own
government, to adopt representatives institutions and to
periodically…elect their representatives through a free
procedure with freedom to choose among alternative
candidates or parties,” or “the right of all segments of a
population to influence the constitutional and political
structure of the system under which they live.”. The
formulation of self-determination set forth in many
international instruments, such as the Human Rights
Covenants and the Declaration on Friendly Relations,
articulates the standard by which a State’s behaviour should
be judged. Thus, a state must be possessed of a government
representing the whole people belonging to the territory
without distinction as to race creed or colour.
The economic aspects of the right to self-determination are first of all manifested, in the right of all peoples to determine, in freedom and sovereignty, the economic system or regime under which they are to live. Furthermore, from an economic standpoint, the right also involves the exercise of a permanent sovereignty over natural resources, and covers problems raised by harmful activities that may be undertaken in this area by transnational or multinational enterprises. However, the safeguarding of two essential principles should be carried out: on the one hand the respect for the sovereignty to develop the national resources, and on the other the provision of adequate guarantees for the foreign investors.
The social aspects connote the idea that every people have the right to choose and determine the social system under which it is to live. In particular, the latter aspects are related to the promotion of social justice, to which every people is entitled,(See the Report of the Subcommission on Prevention of Discrimination and Protection of Minorities on its twenty-sixth session, E/CN.4/1128, at para.# 28) click here and in a broader sense, imply the effective enjoyment of social rights without discrimination.
The cultural aspects relate to the establishment of a cultural regime or system, which constitutes a very important element of the right to self-determination of all peoples. It implies recognition of its right to regain, enjoy and enrich the cultural heritage, as well as the affirmation of the right of all its members to education and culture.
Examples of self-determination within an existing state include Italy's five special autonomous regions with extensive local powers defined by the constitution: Trentino- Alto Adige (containing the German-speaking people of the South Tyrol), Friuli-Venezia Giulia (containing Slovene and Friulian speakers), Val d'Aosta (containing French speakers), as well as the islands of Sardinia and Sicily. Each of these regions has unique, "non-Italian" cultural, linguistic, and historical characteristics that have justified extensive delegations of powers from Rome to the regional authorities to permit decision-making on local educational, economic, cultural, and budgetary issues. Some other autonomy arrangements include the Sami Parliaments in the Nordic countries, the Nunavut territory in Canada, and the ancestral territory of indigenous people in Panama. The trend in world politics has been for enlightened states to attempt sincerely to accommodate the self-determination aspirations of their ethnic minorities and indigenous peoples, while other states continue to suppress and deny subjugated peoples this fundamental right.
A right to external self-determination arises in extreme cases and under carefully defined circumstances. It has been defined as in the following statement from the Declaration on Friendly Relations: the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right to self-determination by that people.
Despite this progressive jurisprudence, however, there is, in fact, little direct evidence that customary international law supports the right to secession. Rather, present-day scholars must look to State practices in the last decade, which seem to suggest the emergence of a recognisable right to secede in particular circumstances. The examples of forcible self-determination that were supported by the international community and various neighbouring States in the aftermath of the fall of the Soviet Union and Yugoslavia are particularly enlightening. In addition, the international response to secession efforts in the context of decolonisation in Eritrea and East Timor, and outside the context of decolonisation for instance in Former Soviet Union, and former Yugoslavia are noteworthy as they aid in setting forth the emerging customary law on the right to secession in pursuit of self-determination where such exercise is internally impossible. It should be noted, however, that the success of the claims for secession are in large part attributable to the international community’s willingness to extend recognition to them.
The Case of Eritrea
The case of Eritrea is concerned with decolonisation, but it has a special nature so far as the State that has for a long time claimed territorial rights over it, Ethiopia, had itself been subjected to colonial rule by Italy (Eritrea was an Italian colony). Ethiopia claimed that it had absolute legitimacy of Eritrea being an integral part of Ethiopia. Meanwhile, the Eritreans held that they were entitled to self-determination and that Ethiopia had ignored and actually denied that right.
Between the eleventh and nineteenth centuries, Eritrea became a peripheral part of Ethiopia. It was occupied by Italy in 1885-9, and subsequently turned into an Italian colony pursuant to the Treaty of Uccialli of 1889, with Ethiopia. Therefore, by this Treaty, Ethiopia agreed to the acquisition of sovereignty by Italy over Eritrea. Thus the region became a colonial unit. When Italian colonial rule came to an end, Great Britain administered Eritrea under a trusteeship, until 1952.
The UN decided to separate the two issues that of the future of Eritrea and that of the independent status of Abyssinia/Ethiopia. A UN General Assembly Resolution (Resolution 269 IV of 21 November 1949) set up a Commission responsible for the submission of proposals. The General Assembly did not envisage the holding of a referendum or a plebiscite to ascertain the wishes of the population. Consequently the Commission assessed “the political wishes of the parties and people ”by collecting the views of “the principal political parties and associations” and “holding hearings of the local population”.(UN report of the United Nations Commission for Eritrea, 1950, UN DOC. A/1285, 17 ff., at par. 106-31). Thus, it concluded that the majority of Eritreans favored political association with Ethiopia.The way pursued by the Commission to assert the wishes of the Eritrean population remain questionable, and the latter consideration would have been different should a referendum have been held. It seems that political and strategic considerations prevailed over the right to self- determination, as the genuine and free expression of the will of a people.
The General Assembly decided “Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian Crown”. The British administration of Eritrea ended in 1952, and at the same time the Federation was established. The Federation was however short-lived, for the Eritrean Assembly voted in November of 1962 for the incorporation of Eritrea into Ethiopia; Eritrea thus became a province of Ethiopia.
The Eritreans had since 1961 created a liberation movement, the Eritrean Liberation Front, that was followed in 1970s by another movement, and that were engaged in an armed struggle with the Ethiopian authorities. Recently, following the collapse of the Mengitsu government, Eritreans acquired full control over Eritrea and, after a referendum in 1993, proclaimed their independence. The right to self determination of the Eritrean people was not properly exercised when the Federation decided upon by the UN was established. Therefore, the Eritrean people could still claim the right to freely choose their future development. Accordingly, a referendum was held under international scrutiny, and it really established the free and genuine will of Eritreans to become independent.
It is apparent from this case, that the Eritreans succeeded in their claims for independence for these reasons: 1) their liberation movements took over control of the Eritrean territory 2) their right to self-determination was not implemented because of the fault decision of the international Community to create a Federation. So, in this case, the claim of territorial integrity had to yield in favor of the right to self-determination.
The case of East Timor
East Timor became a part of the international agenda in 1960 when the UN General Assembly added this territory to the list of Non-Self-Governing territories. Before that, East Timor was administered by Portugal. 14 years later, Portugal attempted to establish a provisional government and a popular assembly that would determine the status of East Timor. A civil war broke out between the supporters of independence and those who favoured integration with Indonesia. Portugal withdrew being unable to control the situation. Subsequently, Indonesia intervened by military means incorporated East Timor as its 27th province (For more information, see http://www.un.org/peace/etimor). The United Nations never recognised the inclusion of East Timor in Indonesia, and both Security Council and the General Assembly demanded Indonesia to withdraw from East Timor.
In 1982, UN, Portugal and Indonesia started negotiations on the question of the status of East Timor. In 1998, Indonesia proposed a limited autonomy for East Timor within Indonesia. The discussions lead to the conclusion of an agreement between Indonesia and Portugal signed in New York in 5 May 1999. Both governments entrusted the UN Secretary General to initiate the process of popular consultations with the purpose of establishing the will of the East Timorese to accept or refuse the special autonomy offered to them within Indonesia.
The Security Council decided for the creation of United Nations Administration Mission in East Timor (UNAMET) in 11 June 1999 to organise the consultation process and to monitor for a transitional period the implementation of the will of East Timor people. The voting which took place on 30 August 1999 resulted in 78,5% of the votes the refusal of the proposed autonomy and the initiation of a transitional process towards independence.
After the proclamation of the result of referendum, the police that was pro-integration and with the support of the Indonesia security forces, started a campaign of violence, and slander throughout the country. As a result many people were killed and 500,000 were displaced from their homes, half of which were forcefully displaced from the territory. In response, the UNSC authorised the deployment of a multinational force (INTERFET) to restore peace and security in East Timor, as well as to support and protect UNAMET in carrying out its tasks. Indonesian authorities left from East Timor, and on 28 September 1999, Indonesia and Portugal agreed that the UN takes over authority over East Timor.
On 25 October of the same year, the SC decided through Resolution 1272 (1999) to create the UN Transitional Administration in East Timor (UNTAET) with full responsibilities for the administration of the territory of East Timor.
The dissolution of the USSR
After the Communist revolution of 1917, the Bolsheviks inherited a mosaic of an empire ruled over by the Romanovs, and which was facing the risk of disintegration into the constituent nationalities. Taking into account strong separatist tendencies of some nationalities, Lenin supported a strategy according to which, among other things, nationalities would not be subject to Russian domination, they would have autonomy, and they would have the right to secede should they so desire. The result was the establishment of a federal State with 15 union republics, 20 autonomous republics, 8 autonomous oblasts, and 10 national oblasts.
The stipulation in the Soviet Constitution of the right to self-determination, which was mainly perceived as a right to secede, was meant to be a political tool to bring the nationalities into the union and not to provide the vehicle for secession. Notwithstanding this recognition, in practice, the right to self-determination as such did not exist. The establishment of a strict dictatorial system suppressed any discontent or resentment of non-Russian nationalities. However they preserved their ethnic identity. The political reforms known as glasnost and perestroika, introduced by Gorbachev created an atmosphere of freedom that enhanced the demands of dozens of nationalities for self-determination. The general ethnic unrest exacerbated by economic decline provided an excellent basis for increased secessionist demands. The first act came from the Lithuanian Parliament in December 1989 with a unilateral declaration on independence. In April 1990, the Supreme Soviet passed a law providing for a waiting period of five years to secede from the federation. Accordingly, the dissolution of the Soviet Union was unavoidable at some juncture. On September 17, 1991, the three Baltic States - Lithuania, Latvia, and Estonia were admitted as Members of the United Nations (GA Res. 46/4 UN GAOR, 46th Sess., Supp. No.49, UN Doc.A/46/4 (1991)). In December of the same year, leaders of Russia, Ukraine and Belarus met in Minsk and proclaimed the establishment of the Commonwealth of Independent States (CIS).
The dismemberment of USSR is a voluntary act that was completed with the conclusion in Alma Ata of a Protocol to the Minsk Agreement, whereby all the remaining republics except for Georgia joined the CIS. The right to self- determination and admissibility in the UN of the former Soviet Republics, which became independent states, was never called into question.
The secession of the Baltic States differs from that of the other units of the UN. They existed as independent States before their illegitimate annexation by the Soviet Union. The refusal to recognise the Soviet annexation was based upon this illegitimacy. Therefore Western States had the legal justification to recognise the republics if they so choose. Notwithstanding the illegal basis of the annexation of the republics, the political realities before 1990 militated against their recognition. It is true that even though recognition has judicial implications, it is essentially political in character. Undoubtedly, the three republics possessed the basic attributes of statehood: land, population and government, as well as the capacity to enter into international relations. Three characteristics should be pointed out in this case: a) the parent state was either unwilling or unable to exercise or regain control over the seceding territories, b) a significant degree of independence and c) the absence of protest against recognition of states.
While the other Soviet republics concluded the Minsk Agreement and the Alma Ata Protocol where they expressed the mutual agreement of the constituent republics to dismantle the union. The republics did not secede as such from the union, they voluntarily dissolved it. Arguably, before the conclusion of the Alma Ata Protocol, the conclusion of the Minsk agreement amounted to secession from the union. However, this is the reason that the international recognition for the CIS members came after the constitutional dissolution of USSR and the resignation of Gorbachev. The dissolution of the USSR was not opposed by the USSR government. After the dissolution, the status of the constituent republics was upgraded to independent entities, possessing the basic attributes of statehood.
The case of Burma.
The 1947 Constitution of Burma, which was to be the constitution following the de-colonization process, had a ten-year trial period "opt-out" clauses regarding the many different people of the territory occupied by Great Britain. Thus the ethnic nationalities that were part of the union of Burma under the British rule would have the right during ten years (until 1957) to say they do not want to continue being united to the other groups in post-colonial Burma. However, in the intervening years between 1947 and 1957, the Burmese, the majority in that area, seized power establishing a government that unilaterally extinguished the opt-out rights under the 1947 Constitution. Conflicts begun between the Burman army and the military forces of the other ethnic nationalities that were given the right to cede in the 1947 Constitution: the Karen, the Karenni, the Mon, the Shan and others.
The Netherlands, as had Great Britain, amalgamated many unrelated nations and placed them under the colonially- imposed "unitary" state system --under one rule. At the time of de-colonization there was great difficulty in reaching an agreement as to what should happen to all of those formerly independent island nations. The strongest and most populous group was the Javanese, centered in Jakarta although also located elsewhere in the islands. The Javanese became the bargaining power. So through the Netherlands and the Javanese and with the cooperation of the United Nations at that time, Indonesia was to come into being.
The de-colonization instrument, called the Round Table Conference Agreements of 1949, was between the Netherlands, the Javanese - Indonesian leadership and the United Nations. The new State to be formed was to be called the United States of Indonesia and was to be made up of the Javanese islands to be grouped as "the Republic of Indonesia" and other co-equal "republics." The Moluccas was to be part of the Republic of East Indonesia. The Round Table Conference Agreement had several "opt-out" provisions offering provisions for both internal and external choices. For example, the populations of territories were to be given a plebiscite to determine "whether they shall form a separate component state." The second "opt-out" provision allowed states that did not ratify the constitution to negotiate with either the United States of Indonesia or the Netherlands for a "special relationship." Thus, the de- colonization instrument itself gives the Moluccas the legal right to secede.
Immediately following the turning over of power, the Javanese began to forcibly incorporate the component parts into the Republic of Indonesia (the Javanese stronghold) rather then implement any plebiscites. Additionally, the Javanese made clear they would not allow component parts to "opt-out" entirely. With increasing Javanese pressure on the Moluccas, the Moluccas responded by invoking Article 2. 2: on April 25, 1950 the Moluccan leadership declared the independent state of the Republic of South Moluccas. However, the Javanese strongly opposed this, and itself invaded the Moluccas.
The leaders of what became Pakistan and India reached an agreement with the British that the people of Kashmir would decide their own disposition. In 1948 the Security Council established the United Nations Commission on India and Pakistan, which, in addition to the Security Council itself, adopted resolutions mandating that the final disposition of Kashmir was to be via a plebiscite carried out under the auspices of the United Nations. (See, Security Council resolutions 39 (1948), 47 (1948), 80 (1950), 91 (1951) and 96 (1951)). The Security Council resolutions indicating United Nations action to settle the Kashmir question were all supported by India as were resolutions of the United Nations Commission for India and Pakistan.
However, before such a plebiscite could take place, the armed forces of India seized much of Kashmir under the pretext of coming to aid the British-maharajah who was attempting to quell the Kashmiri's revolt against him. The maharajah obtained India's military help in exchange for an Instrument of Accession giving Kashmir to India. Since that time, India has maintained control of what must be called Indian-occupied Kashmir, and continually refers to Kashmir as an integral part of India. India supports this view in part because of Indian-managed elections taking place in Kashmir. However, the United Nations Security Council has repeatedly rejected this argument, by stating that such unilateral acts do not constitute the free exercise of the will of the Kashmiri people: only a plebiscite carried out by the United Nations would be valid. (See Security Council resolution 122 of 24 January 1957. India had claimed that the Kashmiri people accepted secession to India because a Kashmiri Constituent Assembly approved it in 1956. However, that assembly was chosen by India and does not meet requirements of a plebiscite as expressed in Security Council resolution).
The United Nations Security Council and the Commission had established a plebiscite administration under the authority of the president of the Security Council, and both directly with the President of the Security Council and the Commission on India and Pakistan, a series of plebiscite administrators were unable to secure a situation on the ground so that a plebiscite could take place. The last plebiscite administrator finished his term somewhere between 1955-1956. As of today the disposition of Kashmir has not been legally decided. The Kashmiri people are involved in a brutal war in Jammu and Kashmir.
Even without the United Nations recognition of the Kashmiri's right to self-determination, the Kashmir claim is exceptionally strong. The area had a long history of self- governance pre-dating the colonial period. The territory of Kashmir has been clearly defined for centuries. Kashmiri people speak Kashmiri, which, while enjoying Sanskrit as a root language as do all Indo-European languages, is clearly a separate language from either Hindi or Urdu. The Kashmiri culture is similarly distinct from other cultures in the area in all respects. Most important to a claim to self- determination, the Kashmiri people have a current strong common aspiration for re-establishment of self rule. The Kashmiri people resisted the British, and maintained a degree of autonomy throughout British rule. Resistance to India has continued unabated throughout Indian occupation, with major uprisings in 1953, 1964 and continuing essentially unabated since 1988.
(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.
The International Court of Justice, in its decision on the Western Sahara in 1975, ruled that if there is land that in fact no one has ever claimed, it is opened for grabs. Such land is called "terra nullius" - empty land. But if any land has had a population on it, that land belonged to that population and is not open for grabs. This question arose in the de-colonization process of Western Sahara because Morocco attempted to claim that prior to becoming a colony of Spain, Western Sahara has been "empty" except for a few nomadic Moroccans. The Court, however, found the Saharans to be a distinct people who historically populated that land.
The Case of Yugoslavia
The case of Yugoslavia is unprecedented because of the widespread recognition of the former Yugoslav Republics by members of the international community, favoring secessionist movements still engaged in armed struggles for independence outside of the colonial context. The EC promptly accorded the recognition of Croatia, Slovenia, Bosnia-Herzegovina, and Macedonia. The former Yugoslav Republics became also UN Members (All of the former Yugoslavian Republics, with the exception of Macedonia (FYROM), became Members of UN on 26 May, 1992). On the other hand, the so-called Federal Republic of Yugoslavia was not recognised as a successor state to the former SFRY. It is indisputable that a decisive factor in prompting the EC to recognise the new states stood in the imminent threat and instability to regional security.
The break out of fighting in Yugoslavia started by the end of June 1991 when federal troops moved against secessionists in Slovenia. The first reaction of the international community, and in particular of the EU, expressed support for the territorial integrity of Yugoslavia. The Security Council took a very strong position set out in a unanimous resolution (S.C. Res.713, UN SCOR 46th Sess. 3009th mtg. Supp., UN Doc. S/713 (1991)) which maintained that the continuation of the situation constituted a threat to international peace. This response of Security Council that falls under the scope of Article 39 of the Charter cleared the way for acting under Chapter VII and the crisis in Yugoslavia was dealt with as if it were an international crisis.
The Arbitration Commission on the former Yugoslavia (the Badinter Commission), concluded in November 1991 that Yugoslavia was in a process of dissolution, and the former Yugoslav republics seeking independence were new States on the territory of the former SFRY. The conditions for recognition were set out in the EC “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”. Prior to recognition, each applicant was required to engage in commitments “to adopt constitutional and political guarantees ensuring that it has no territorial claims towards a neighboring Community State and that it will conduct no hostile propaganda activities against neighboring States, including the use of a denomination which implies territorial claims”.
Furthermore, in Opinion no. 4 concerning the application of Bosnia-Herzegovina, the Badinter Commission used the language of self-determination, finding that the absence of a referendum expressing the will of the peoples of Bosnia- Herzegovina on its international status cannot be held to have been fully established, despite recognition. The Arbitration Commission considered in its opinion no.3, the legal status of the uti possidetis doctrine (The uti possidetis doctrine generally is applicable for the delimitation of boundaries in order to upgrade them from administrative to international boundaries as the parties in the dispute legitimately posses the territory at the time of the dispute) holding that:
[E]xcept where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis.
The Commission then referenced the ICJ judgement in the Burkina Faso/Mali case, in which the Court strongly affirmed that this doctrine was a “rule of general scope ” and a “general principle”. The Badinter Commission asserted and concluded that, following the dissolution of the former Yugoslavia, the former “internal boundaries” between Croatia, Serbia and Bosnia Herzegovina possessed the status of international boundaries. In sum, the Badinter Commission conclusions suggest that a general right of secession is neither explicitly granted nor denied by the international system. Recognition by the international community to a secessionist territory government might occur if 1) that government has demonstrated effective continuous control over its territory 2) the government has made provision for accepting relevant international obligations, and 3) where it has taken constitutional steps to ensure the political autonomy for its minorities if they desire it. Further, egregious and extended violence against secessionist forces is regarded as likely to give rise to a threat to international peace and security. This implies that, flows of refugees, loss of human lives, tempting potential external intervention, and disrupting international trade in essential goods and services, transforms a civil war from a domestic to an international level. The new State created by secession is entitled to those boundaries that were administratively applicable to it prior to independence when it was a unit of a parent state (uti possidetis iuris).
Status and Scope