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The political aspects denote the idea that the right to self-
determination includes the ability of a group to
collectively determine its political destiny through
democratic means. Accordingly, definitions of self-
determination include the right of a “people organised in an
established territory to determine its political destiny in
a democratic fashion, or the right “of people living within
an independent and sovereign state to freely choose its own
government, to adopt representatives institutions and to
periodically…elect their representatives through a free
procedure with freedom to choose among alternative
candidates or parties,” or “the right of all segments of a
population to influence the constitutional and political
structure of the system under which they live.”. The
formulation of self-determination set forth in many
international instruments, such as the Human Rights
Covenants and the Declaration on Friendly Relations,
articulates the standard by which a State’s behaviour should
be judged. Thus, a state must be possessed of a government
representing the whole people belonging to the territory
without distinction as to race creed or colour.
The economic aspects of the right to self-determination are
first of all manifested, in the right of all peoples to
determine, in freedom and sovereignty, the economic system
or regime under which they are to live. Furthermore, from an
economic standpoint, the right also involves the exercise of
a permanent sovereignty over natural resources, and covers
problems raised by harmful activities that may be undertaken
in this area by transnational or multinational enterprises.
However, the safeguarding of two essential principles should
be carried out: on the one hand the respect for the
sovereignty to develop the national resources, and on the
other the provision of adequate guarantees for the foreign
investors.
The social aspects connote the idea that every people have
the right to choose and determine the social system under
which it is to live. In particular, the latter aspects are
related to the promotion of social justice, to which every
people is entitled,(See the Report of the Subcommission on
Prevention of Discrimination and Protection of Minorities on
its twenty-sixth session, E/CN.4/1128, at para.# 28) click
here and in a broader sense, imply the effective enjoyment
of social rights without discrimination.
The cultural aspects relate to the establishment of a
cultural regime or system, which constitutes a very
important element of the right to self-determination of all
peoples. It implies recognition of its right to regain,
enjoy and enrich the cultural heritage, as well as the
affirmation of the right of all its members to education and
culture.
Examples of self-determination within an existing state
include Italy's five special autonomous regions with
extensive local powers defined by the constitution: Trentino-
Alto Adige (containing the German-speaking people of the
South Tyrol), Friuli-Venezia Giulia (containing Slovene and
Friulian speakers), Val d'Aosta (containing French
speakers), as well as the islands of Sardinia and Sicily.
Each of these regions has unique, "non-Italian" cultural,
linguistic, and historical characteristics that have
justified extensive delegations of powers from Rome to the
regional authorities to permit decision-making on local
educational, economic, cultural, and budgetary issues. Some
other autonomy arrangements include the Sami Parliaments in
the Nordic countries, the Nunavut territory in Canada, and
the ancestral territory of indigenous people in Panama.
The trend in world politics has been for enlightened states
to attempt sincerely to accommodate the self-determination
aspirations of their ethnic minorities and indigenous
peoples, while other states continue to suppress and deny
subjugated peoples this fundamental right.
A right to external self-determination arises in extreme
cases and under carefully defined circumstances. It has been
defined as in the following statement from the Declaration
on Friendly Relations: the establishment of a sovereign and
independent State, the free association or integration with
an independent State or the emergence into any other
political status freely determined by a people constitute
modes of implementing the right to self-determination by
that people.
Despite this progressive jurisprudence, however, there is,
in fact, little direct evidence that customary international
law supports the right to secession. Rather, present-day
scholars must look to State practices in the last decade,
which seem to suggest the emergence of a recognisable right
to secede in particular circumstances. The examples of
forcible self-determination that were supported by the
international community and various neighbouring States in
the aftermath of the fall of the Soviet Union and Yugoslavia
are particularly enlightening. In addition, the
international response to secession efforts in the context
of decolonisation in Eritrea and East Timor, and outside the
context of decolonisation for instance in Former Soviet
Union, and former Yugoslavia are noteworthy as they aid in
setting forth the emerging customary law on the right to
secession in pursuit of self-determination where such
exercise is internally impossible. It should be noted,
however, that the success of the claims for secession are in
large part attributable to the international community’s
willingness to extend recognition to them.
The Case of Eritrea
The case of Eritrea is concerned with decolonisation, but it
has a special nature so far as the State that has for a long
time claimed territorial rights over it, Ethiopia, had
itself been subjected to colonial rule by Italy (Eritrea
was an Italian colony). Ethiopia claimed that it had
absolute legitimacy of Eritrea being an integral part of
Ethiopia. Meanwhile, the Eritreans held that they were
entitled to self-determination and that Ethiopia had ignored
and actually denied that right.
Between the eleventh and nineteenth centuries, Eritrea
became a peripheral part of Ethiopia. It was occupied by
Italy in 1885-9, and subsequently turned into an Italian
colony pursuant to the Treaty of Uccialli of 1889, with
Ethiopia. Therefore, by this Treaty, Ethiopia agreed to the
acquisition of sovereignty by Italy over Eritrea. Thus the
region became a colonial unit. When Italian colonial rule
came to an end, Great Britain administered Eritrea under a
trusteeship, until 1952.
The UN decided to separate the two issues that of the future
of Eritrea and that of the independent status of
Abyssinia/Ethiopia. A UN General Assembly Resolution
(Resolution 269 IV of 21 November 1949) set up a Commission
responsible for the submission of proposals. The General
Assembly did not envisage the holding of a referendum or a
plebiscite to ascertain the wishes of the population.
Consequently the Commission assessed “the political wishes
of the parties and people ”by collecting the views of “the
principal political parties and associations” and “holding
hearings of the local population”.(UN report of the United
Nations Commission for Eritrea, 1950, UN DOC. A/1285, 17
ff., at par. 106-31). Thus, it concluded that the majority
of Eritreans favored political association with Ethiopia.The
way pursued by the Commission to assert the wishes of the
Eritrean population remain questionable, and the latter
consideration would have been different should a referendum
have been held. It seems that political and strategic
considerations prevailed over the right to self-
determination, as the genuine and free expression of the
will of a people.
The General Assembly decided “Eritrea shall constitute an
autonomous unit federated with Ethiopia under the
sovereignty of the Ethiopian Crown”. The British
administration of Eritrea ended in 1952, and at the same
time the Federation was established. The Federation was
however short-lived, for the Eritrean Assembly voted in
November of 1962 for the incorporation of Eritrea into
Ethiopia; Eritrea thus became a province of Ethiopia.
The Eritreans had since 1961 created a liberation movement,
the Eritrean Liberation Front, that was followed in 1970s by
another movement, and that were engaged in an armed struggle
with the Ethiopian authorities. Recently, following the
collapse of the Mengitsu government, Eritreans acquired full
control over Eritrea and, after a referendum in 1993,
proclaimed their independence. The right to self
determination of the Eritrean people was not properly
exercised when the Federation decided upon by the UN was
established. Therefore, the Eritrean people could still
claim the right to freely choose their future development.
Accordingly, a referendum was held under international
scrutiny, and it really established the free and genuine
will of Eritreans to become independent.
It is apparent from this case, that the Eritreans succeeded
in their claims for independence for these reasons: 1) their
liberation movements took over control of the Eritrean
territory 2) their right to self-determination was not
implemented because of the fault decision of the
international Community to create a Federation. So, in this
case, the claim of territorial integrity had to yield in favor of the
right to self-determination.
The case of East Timor
East Timor became a part of the international agenda in 1960
when the UN General Assembly added this territory to the
list of Non-Self-Governing territories. Before that, East
Timor was administered by Portugal. 14 years later, Portugal
attempted to establish a provisional government and a
popular assembly that would determine the status of East
Timor. A civil war broke out between the supporters of
independence and those who favoured integration with
Indonesia. Portugal withdrew being unable to control the
situation. Subsequently, Indonesia intervened by military
means incorporated East Timor as its 27th province (For more
information, see http://www.un.org/peace/etimor). The United
Nations never recognised the inclusion of East Timor in
Indonesia, and both Security Council and the General
Assembly demanded Indonesia to withdraw from East Timor.
In 1982, UN, Portugal and Indonesia started negotiations on
the question of the status of East Timor. In 1998, Indonesia
proposed a limited autonomy for East Timor within Indonesia.
The discussions lead to the conclusion of an agreement
between Indonesia and Portugal signed in New York in 5 May
1999. Both governments entrusted the UN Secretary General to
initiate the process of popular consultations with the
purpose of establishing the will of the East Timorese to
accept or refuse the special autonomy offered to them within
Indonesia.
The Security Council decided for the creation of United
Nations Administration Mission in East Timor (UNAMET) in 11
June 1999 to organise the consultation process and to
monitor for a transitional period the implementation of the
will of East Timor people. The voting which took place on 30
August 1999 resulted in 78,5% of the votes the refusal of
the proposed autonomy and the initiation of a transitional
process towards independence.
After the proclamation of the result of referendum, the
police that was pro-integration and with the support of the
Indonesia security forces, started a campaign of violence,
and slander throughout the country. As a result many people
were killed and 500,000 were displaced from their homes,
half of which were forcefully displaced from the territory.
In response, the UNSC authorised the deployment of a
multinational force (INTERFET) to restore peace and security
in East Timor, as well as to support and protect UNAMET in
carrying out its tasks. Indonesian authorities left from
East Timor, and on 28 September 1999, Indonesia and Portugal
agreed that the UN takes over authority over East Timor.
On 25 October of the same year, the SC decided through
Resolution 1272 (1999) to create the UN Transitional
Administration in East Timor (UNTAET) with full
responsibilities for the administration of the territory of
East Timor.
The dissolution of the USSR
After the Communist revolution of 1917, the Bolsheviks
inherited a mosaic of an empire ruled over by the Romanovs,
and which was facing the risk of disintegration into the
constituent nationalities. Taking into account strong
separatist tendencies of some nationalities, Lenin supported
a strategy according to which, among other things,
nationalities would not be subject to Russian domination,
they would have autonomy, and they would have the right to
secede should they so desire. The result was the
establishment of a federal State with 15 union republics, 20
autonomous republics, 8 autonomous oblasts, and 10 national
oblasts.
The stipulation in the Soviet Constitution of the right to
self-determination, which was mainly perceived as a right to
secede, was meant to be a political tool to bring the
nationalities into the union and not to provide the vehicle
for secession. Notwithstanding this recognition, in
practice, the right to self-determination as such did not
exist. The establishment of a strict dictatorial system
suppressed any discontent or resentment of non-Russian
nationalities. However they preserved their ethnic identity.
The political reforms known as glasnost and perestroika,
introduced by Gorbachev created an atmosphere of freedom
that enhanced the demands of dozens of nationalities for
self-determination. The general ethnic unrest exacerbated by
economic decline provided an excellent basis for increased
secessionist demands. The first act came from the Lithuanian
Parliament in December 1989 with a unilateral declaration on
independence. In April 1990, the Supreme Soviet passed a law
providing for a waiting period of five years to secede from
the federation. Accordingly, the dissolution of the Soviet
Union was unavoidable at some juncture. On September 17,
1991, the three Baltic States - Lithuania, Latvia, and
Estonia were admitted as Members of the United Nations (GA
Res. 46/4 UN GAOR, 46th Sess., Supp. No.49, UN Doc.A/46/4
(1991)). In December of the same year, leaders of Russia,
Ukraine and Belarus met in Minsk and proclaimed the
establishment of the Commonwealth of Independent States
(CIS).
The dismemberment of USSR is a voluntary act that was
completed with the conclusion in Alma Ata of a Protocol to
the Minsk Agreement, whereby all the remaining republics
except for Georgia joined the CIS. The right to self-
determination and admissibility in the UN of the former
Soviet Republics, which became independent states, was never
called into question.
The secession of the Baltic States differs from that of the
other units of the UN. They existed as independent States
before their illegitimate annexation by the Soviet Union.
The refusal to recognise the Soviet annexation was based
upon this illegitimacy. Therefore Western States had the
legal justification to recognise the republics if they so
choose. Notwithstanding the illegal basis of the annexation
of the republics, the political realities before 1990
militated against their recognition. It is true that even
though recognition has judicial implications, it is
essentially political in character. Undoubtedly, the three
republics possessed the basic attributes of statehood: land,
population and government, as well as the capacity to enter
into international relations. Three characteristics should
be pointed out in this case: a) the parent state was either
unwilling or unable to exercise or regain control over the
seceding territories, b) a significant degree of
independence and c) the absence of protest against
recognition of states.
While the other Soviet republics concluded the Minsk
Agreement and the Alma Ata Protocol where they expressed the
mutual agreement of the constituent republics to dismantle
the union. The republics did not secede as such from the
union, they voluntarily dissolved it. Arguably, before the
conclusion of the Alma Ata Protocol, the conclusion of the
Minsk agreement amounted to secession from the union.
However, this is the reason that the international
recognition for the CIS members came after the
constitutional dissolution of USSR and the resignation of
Gorbachev. The dissolution of the USSR was not opposed by
the USSR government. After the dissolution, the status of
the constituent republics was upgraded to independent
entities, possessing the basic attributes of statehood.
The case of Burma.
The 1947 Constitution of Burma, which was to be the
constitution following the de-colonization process, had a
ten-year trial period "opt-out" clauses regarding the many
different people of the territory occupied by Great Britain.
Thus the ethnic nationalities that were part of the union of
Burma under the British rule would have the right during ten
years (until 1957) to say they do not want to continue being
united to the other groups in post-colonial Burma. However,
in the intervening years between 1947 and 1957, the Burmese,
the majority in that area, seized power establishing a
government that unilaterally extinguished the opt-out rights
under the 1947 Constitution. Conflicts begun between the
Burman army and the military forces of the other ethnic
nationalities that were given the right to cede in the 1947
Constitution: the Karen, the Karenni, the Mon, the Shan and
others.
The Moluccas.
The Netherlands, as had Great Britain, amalgamated many
unrelated nations and placed them under the colonially-
imposed "unitary" state system --under one rule. At the time
of de-colonization there was great difficulty in reaching an
agreement as to what should happen to all of those formerly
independent island nations. The strongest and most populous
group was the Javanese, centered in Jakarta although also
located elsewhere in the islands. The Javanese became the
bargaining power. So through the Netherlands and the
Javanese and with the cooperation of the United Nations at
that time, Indonesia was to come into being.
The de-colonization instrument, called the Round Table
Conference Agreements of 1949, was between the Netherlands,
the Javanese - Indonesian leadership and the United Nations.
The new State to be formed was to be called the United
States of Indonesia and was to be made up of the Javanese
islands to be grouped as "the Republic of Indonesia" and
other co-equal "republics." The Moluccas was to be part of
the Republic of East Indonesia. The Round Table Conference
Agreement had several "opt-out" provisions offering
provisions for both internal and external choices. For
example, the populations of territories were to be given a
plebiscite to determine "whether they shall form a separate
component state." The second "opt-out" provision allowed
states that did not ratify the constitution to negotiate
with either the United States of Indonesia or the
Netherlands for a "special relationship." Thus, the de-
colonization instrument itself gives the Moluccas the legal
right to secede.
Immediately following the turning over of power, the
Javanese began to forcibly incorporate the component parts
into the Republic of Indonesia (the Javanese stronghold)
rather then implement any plebiscites. Additionally, the
Javanese made clear they would not allow component parts to
"opt-out" entirely. With increasing Javanese pressure on the
Moluccas, the Moluccas responded by invoking Article 2. 2:
on April 25, 1950 the Moluccan leadership declared the
independent state of the Republic of South Moluccas.
However, the Javanese strongly opposed this, and itself
invaded the Moluccas.
Kashmir.
The leaders of what became Pakistan and India reached an
agreement with the British that the people of Kashmir would
decide their own disposition. In 1948 the Security Council
established the United Nations Commission on India and
Pakistan, which, in addition to the Security Council itself,
adopted resolutions mandating that the final disposition of
Kashmir was to be via a plebiscite carried out under the
auspices of the United Nations. (See, Security Council
resolutions 39 (1948), 47 (1948), 80 (1950), 91 (1951) and
96 (1951)). The Security Council resolutions indicating
United Nations action to settle the Kashmir question were
all supported by India as were resolutions of the United
Nations Commission for India and Pakistan.
However, before such a plebiscite could take place, the
armed forces of India seized much of Kashmir under the
pretext of coming to aid the British-maharajah who was
attempting to quell the Kashmiri's revolt against him. The
maharajah obtained India's military help in exchange for an
Instrument of Accession giving Kashmir to India. Since that
time, India has maintained control of what must be called
Indian-occupied Kashmir, and continually refers to Kashmir
as an integral part of India. India supports this view in
part because of Indian-managed elections taking place in
Kashmir. However, the United Nations Security Council has
repeatedly rejected this argument, by stating that such
unilateral acts do not constitute the free exercise of the
will of the Kashmiri people: only a plebiscite carried out
by the United Nations would be valid. (See Security Council
resolution 122 of 24 January 1957. India had claimed that
the Kashmiri people accepted secession to India because a
Kashmiri Constituent Assembly approved it in 1956. However,
that assembly was chosen by India and does not meet
requirements of a plebiscite as expressed in Security
Council resolution).
The United Nations Security Council and the Commission had
established a plebiscite administration under the authority
of the president of the Security Council, and both directly
with the President of the Security Council and the
Commission on India and Pakistan, a series of plebiscite
administrators were unable to secure a situation on the
ground so that a plebiscite could take place. The last
plebiscite administrator finished his term somewhere between
1955-1956. As of today the disposition of Kashmir has not
been legally decided. The Kashmiri people are involved in a
brutal war in Jammu and Kashmir.
Even without the United Nations recognition of the
Kashmiri's right to self-determination, the Kashmir claim is
exceptionally strong. The area had a long history of self-
governance pre-dating the colonial period. The territory of
Kashmir has been clearly defined for centuries. Kashmiri
people speak Kashmiri, which, while enjoying Sanskrit as a
root language as do all Indo-European languages, is clearly
a separate language from either Hindi or Urdu. The Kashmiri
culture is similarly distinct from other cultures in the
area in all respects. Most important to a claim to self-
determination, the Kashmiri people have a current strong
common aspiration for re-establishment of self rule. The
Kashmiri people resisted the British, and maintained a
degree of autonomy throughout British rule. Resistance to
India has continued unabated throughout Indian occupation,
with major uprisings in 1953, 1964 and continuing
essentially unabated since 1988.
Tibet
(see Report [on Tibet] of the Secretary-General, U.N. Doc.
E/CN.4/Sub.2/37, which includes my submission regarding self-
determination and Tibet).
The Tibet situation is a special case since it represents a
post-Charter annexation because China seized independent
Tibet in 1949 -1950. The international community condemned
China's annexation as illegal. (See especially General
Assembly resolutions 1353 (1959); 1514 (1960) and 1723
(1961)).
Sri Lanka
The island of Ceylon was populated by two distinct people:
the Sinhala and the Tamil people. The first colonial power
on the island, Portugal, was only able to conquer the Tamil
country more than 100 years after it conquered the Sinhalese
one. The Dutch took over the island from the Portuguese.
Under the subsequent British rule, the Tamil nation and the
Sinhala nation were amalgamated under "unitary" rule.
During the de-colonization process in Sri-Lanka, there was
an attempt between the Tamil and Sinhala leadership to try
out a post-colonial unitary state despite the historic
situation of the two countries. In the first two
constitutions, there was an agreement between the majority
Sinhalese people and the numerically fewer Tamil people for
a government structure that would guarantee that the Tamil
people would not become fatally submerged under the Sinhala.
However the attempts to negotiate to try to keep open ways
to guarantee rights for the Tamil people failed for nearly
30 years, at which point the combined Tamil leadership said
that "unitary" rule was no longer an option. Since 1982,
there is an armed conflict between the Sinhala-controlled
government and the Tamil people, at the hart of it is the
right of the Tamil people to self-determination.
Western Sahara
The International Court of Justice, in its decision on the
Western Sahara in 1975, ruled that if there is land that in
fact no one has ever claimed, it is opened for grabs. Such
land is called "terra nullius" - empty land. But if any land
has had a population on it, that land belonged to that
population and is not open for grabs. This question arose in
the de-colonization process of Western Sahara because
Morocco attempted to claim that prior to becoming a colony
of Spain, Western Sahara has been "empty" except for a few
nomadic Moroccans. The Court, however, found the Saharans to
be a distinct people who historically populated that land.
The Case of Yugoslavia
The case of Yugoslavia is unprecedented because of the
widespread recognition of the former Yugoslav Republics by
members of the international community, favoring
secessionist movements still engaged in armed struggles for
independence outside of the colonial context. The EC
promptly accorded the recognition of Croatia, Slovenia,
Bosnia-Herzegovina, and Macedonia. The former Yugoslav
Republics became also UN Members (All of the former
Yugoslavian Republics, with the exception of Macedonia
(FYROM), became Members of UN on 26 May, 1992). On the other
hand, the so-called Federal Republic of Yugoslavia was not
recognised as a successor state to the former SFRY. It is
indisputable that a decisive factor in prompting the EC to
recognise the new states stood in the imminent threat and
instability to regional security.
The break out of fighting in Yugoslavia started by the end
of June 1991 when federal troops moved against secessionists
in Slovenia. The first reaction of the international
community, and in particular of the EU, expressed support
for the territorial integrity of Yugoslavia. The Security
Council took a very strong position set out in a unanimous
resolution (S.C. Res.713, UN SCOR 46th Sess. 3009th mtg.
Supp., UN Doc. S/713 (1991)) which maintained that the
continuation of the situation constituted a threat to
international peace. This response of Security Council that
falls under the scope of Article 39 of the Charter cleared
the way for acting under Chapter VII and the crisis in
Yugoslavia was dealt with as if it were an international
crisis.
The Arbitration Commission on the former Yugoslavia (the
Badinter Commission), concluded in November 1991 that
Yugoslavia was in a process of dissolution, and the former
Yugoslav republics seeking independence were new States on
the territory of the former SFRY. The conditions for
recognition were set out in the EC “Guidelines on the
Recognition of New States in Eastern Europe and in the
Soviet Union”. Prior to recognition, each applicant was
required to engage in commitments “to adopt constitutional
and political guarantees ensuring that it has no territorial
claims towards a neighboring Community State and that it
will conduct no hostile propaganda activities against
neighboring States, including the use of a denomination
which implies territorial claims”.
Furthermore, in Opinion no. 4 concerning the application of
Bosnia-Herzegovina, the Badinter Commission used the
language of self-determination, finding that the absence of
a referendum expressing the will of the peoples of Bosnia-
Herzegovina on its international status cannot be held to
have been fully established, despite recognition. The
Arbitration Commission considered in its opinion no.3, the
legal status of the uti possidetis doctrine (The uti
possidetis doctrine generally is applicable for the
delimitation of boundaries in order to upgrade them from
administrative to international boundaries as the parties in
the dispute legitimately posses the territory at the time of
the dispute) holding that:
[E]xcept where otherwise agreed, the former boundaries
become frontiers protected by international law. This
conclusion follows from the principle of respect for
the territorial status quo and, in particular, from the
principle of uti possidetis.
The Commission then referenced the ICJ judgement in the
Burkina Faso/Mali case, in which the Court strongly affirmed
that this doctrine was a “rule of general scope ” and a
“general principle”. The Badinter Commission asserted and
concluded that, following the dissolution of the former
Yugoslavia, the former “internal boundaries” between
Croatia, Serbia and Bosnia Herzegovina possessed the status
of international boundaries. In sum, the Badinter Commission
conclusions suggest that a general right of secession is
neither explicitly granted nor denied by the international
system. Recognition by the international community to a
secessionist territory government might occur if 1) that
government has demonstrated effective continuous control
over its territory 2) the government has made provision for
accepting relevant international obligations, and 3) where
it has taken constitutional steps to ensure the political
autonomy for its minorities if they desire it. Further,
egregious and extended violence against secessionist forces
is regarded as likely to give rise to a threat to
international peace and security. This implies that, flows
of refugees, loss of human lives, tempting potential
external intervention, and disrupting international trade in
essential goods and services, transforms a civil war from a
domestic to an international level. The new State created by
secession is entitled to those boundaries that were
administratively applicable to it prior to independence when
it was a unit of a parent state (uti possidetis iuris).
Status and Scope