Resolving Claims to Self-Determination

Is There a Role for the International Court of Justice?

Andrew Coleman

• Publisher: Taylor & Francis
• Year: 2014
• Print ISBN: 9780415659581
• eBook ISBN: 9781135115913
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

Since the end of World War Two and the formation of the UN, the nature of warfare has undergone changes with many wars being 'intra-state' wars, or wars of secession. Whilst wars of secession do not involve the same number or type of combatants as in the last two World Wars, their potential for destruction and their danger for the international community cannot be underestimated. There are currently many peoples seeking independence from what they perceive as foreign and alien rulers including the Chechens, West Papuans, Achenese, Tibetans, and the Kurds. The break-up of Yugoslavia and the former USSR, together with recent conflicts in South Ossetia, reveal that the potential for future wars of secession remains high.

This book explores the relationship between recognition, statehood and self-determination, and shows how self-determination continues to be relevant beyond European decolonisation. The book considers how and why unresolved questions of self-determination have the potential to become violent.

The book goes on to investigate whether the International Court of Justice, as the primary judicial organ of the United Nations, could successfully resolve questions of self-determination through the application of legal analysis and principles of international law. By evaluating the strengths, weaknesses and effectiveness of the Court's advisory jurisdiction, Andrew Coleman asks whether the ICJ is a suitable forum for these questions, and asks what changes would be necessary to provide an effective means for the peaceful "birth" of States.

1 Determining the legitimacy of claims for self-determination¹

The phrase [self-determination] is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end it is bound to be discredited, to be called the dream of an idealist who failed to realize its danger until too late to check those who attempt to oust the principle in force. What a calamity that the phrase was ever uttered. What misery it will cause!²

A. Introduction

Robert Lansing’s above denunciation of self-determination is quoted often. It provides a chilling warning about the dangers of self-determination, or perhaps more accurately, the dangers of an unqualified right to self-determination. In addition to the very obvious political and economic consequences for the State involved, even a peaceful claim for self-determination raises serious questions of international law.³ Thus States would prefer if self-determination simply did not exist as a legal norm of international law.

However, States like India have themselves benefited from self-determination, so States cannot deny its existence – the die is cast so to speak. There must be some way, as Umozurike argues, to ‘protect the justifiable exercise of the right [to self-determination], while preventing its abuse.’⁴ In other words, there must be a way to distinguish a legitimate claim from an illegitimate one, and that is the purpose of this chapter.⁵

Such a process is a daunting and controversial one because it will involve qualifying the right to self-determination, and or,qualifying who are the beneficiaries of this right. Some commentators may question whether self-determination should be qualified since the manner in which the right is expressed in relevant international instruments – the use of the expression ‘all peoples’, for example – conveys an impression of universalism, and that self-determination is unfettered and unqualified.⁶ However, there are some simple but powerful arguments in favour of qualification.

Firstly, a suitable process may encourage States to resolve claims in a more positive and peaceful manner. As mentioned in the introduction to this monograph, what terrifies the international community is the perceived lack of a limit to the application of self-determination. In their eyes self-determination is capable of infinite application – the so-called ‘floodgate argument’ – or, alternatively that it would lead to the total dismemberment of a State. Secondly, whilst States cannot deny self-determination’s existence, they can seek to minimise its impact on themselves by arguing that self-determination ‘applies to others but not us’. States argue that the content of the right does not include independence, and furthermore, that resolution of the claim is a purely domestic matter, and thus protected by the norm of non-interference in the domestic affairs of a State.⁷ Thirdly, States argue that norms of international law, such as territorial integrity, uti possidetis juris, and non-intervention enable governments to effectively contain self-determination’s application until it is essentially rendered non-existent.⁸ As Weller notes: ‘… governments have taken comfort in the fact that they have constructed the self-determination rule in a way that does not affect their ability to quash separatist groups.’⁹

All of the above means that any unresolved and repressed claims to self-determination are likely to erupt into a lengthy conflict that has serious repercussions for the claimants, the State involved and the international community.

It will be argued here that the first step in identifying a legitimate claim is identifying the beneficiaries of the right to self-determination and the second is whether there exist any pre-conditions, such as the application of utiposseditis juris. This argument will be made in the following manner. Part B of the chapter will provide the contextual backdrop for the remainder of the chapter, defining and discussing important concepts such as legitimacy and common identity, and identifying the key issues in self-determination. This will be followed in Part C with a discussion of the historical evolution of the legal right to self-determination, which will focus on determining who the beneficiaries of the right are, but will also include a discussion of the impact of territorial integrity. It will be argued that a definition based upon alien and foreign subjugation, which is consistent with the so-called ‘just cause’ theories, can and should be used by the Court as the basis for determining who are the legitimate claimants.¹⁰ Finally, Part D will consider what pre-conditions should exist such as the norm ofuti possidetis,¹¹ as well the important issue of the consent of the parent State, and the applicability of the norm of non-intervention in the domestic affairs of a State.

B. Setting the scene

Identifying which ‘self’ has the right to exercise self-determination is more than just one key issue: it is the key issue. As noted by one commentator: ‘On the surface it seem[s] quite reasonable: let the people decide. It [is] in fact ridiculous because the people cannot decide until somebody decides who the people are.’¹²

Self-determination has been mentioned in many international documents, as well as in decisions of the ICJ.¹³ For example, it is mentioned twice in the UN Charter, in art 1(2), and art 55.¹⁴ The UN Charter does not provide any definition of the term ‘people’, nor does it clarify what the right actually means or entails.¹⁵

1. Legitimacy

The purpose of this chapter is to propose a means of how to determine the legitimacy of claims to self-determination. Legitimacy, in all its forms – legitimate, legitimately – is used frequently in many different contexts. For example, it is often said that self-determinationlegitimizes political authority, even the State itself,¹⁶ and that there is a normative practice of ‘recogni-tional legitimacy’ in the recognition of statehood.¹⁷ Thus, it would be helpful if a few words were said regarding the concept of ‘legitimacy’.

The Penguin Macquarie dictionary defines legitimate as:

(1) according to law; lawful.

(2) in accordance with established rules, principles or standards.¹⁸

Legitimacy’s etymology can be traced to the determination of an individual’s status, upon which specific rights of inheritance depended; ‘legitimate’ meant ‘born within wedlock’.¹⁹ Accordingly, Summers notes that the concept of legitimacy has four characteristics as follows: (1) a presumption of the existence of certain normative standards; (2) these standards are held or internalised by individuals effecting their perception of those rules; (3) whilst these standards are subjectively held they exist within a context such as others’ views; and, (4) these standards effect the behaviour of individual actors.²⁰

Franck argues that legitimacy creates what he defines as ‘compliance-pull’, and ‘voluntary obedience’.²¹ Accordingly, for him ...

Table of contents

• Cover
• Half Title
• Routledge Research in International Law
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Abbreviations
• Introduction
• 1. Determining the legitimacy of claims for self-determination
• 2. The determination of statehood
• 3. The International Court of Justice and claims to self-determination
• 4. The International Court of Justice and highly political matters
• Conclusion
• Bibliography
• Index