The Politics of Self-Determination

Beyond the Decolonisation Process

Kristina Roepstorff

• Publisher: Taylor & Francis
• Year: 2012
• eBook ISBN: 9781136177941
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

Since the formation of the UN in 1945 the international community has witnessed a number of violent self-determination conflicts such as the disintegration of Yugoslavia, Chechnya, Kashmir, and South Sudan that have been a major cause of humanitarian crises and destruction. This book examines the scope and applicability of political self-determination beyond the decolonisation process.

Explaining the historical evolution of self-determination, this book provides a theoretical examination of the concept and background. Taking an interdisciplinary approach, the author analyses self-determination in relation to contemporary conflicts, which inform and drive a coherent theoretical framework for international responses to claims for self-determination. Built upon an examination of the conceptual foundations of self-determination, this book presents a new understanding and application of self-determination. It addresses the important question of whether self-determination claims legitimate armed violence, either by the self-determining group's right to rebel, or by the international community in the form of humanitarian intervention.

The Politics of Self-Determination will be of interest to students and scholars of political science, international relations, security studies and conflict studies.

1	Self-determination
	Historical origins, evolution and the contemporary context

Self-determination is a fundamental norm in international law and politics. It has inspired people's struggles for political freedom and independent statehood, influencing the way regions were divided into nation-states. This chapter provides an overview of the historical origin of self-determination, its evolution in international politics and law, and portrays the contemporary political context in which self-determination conflicts occur. To this end, this chapter first traces the historical basis of self-determination; it then provides an overview of the ‘milestones’ in the evolution of self-determination from a principle to a right in international law, reflected in international documents such as the Charter of the United Nations (UN Charter); the two human rights covenants — the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR); relevant UN General Assembly (GA) resolutions; the relevant Advisory Opinions of the International Court of Justice (ICJ); and the Declaration on the Rights of Indigenous People. This overview of the evolution of self-determination reveals that while the meaning of self-determination has changed over time in response to the changing needs of the international community at different periods, it is its usage in the decolonisation process that shapes the general perception and assessment of claims for self-determination until today (Xanthaki 2005: 15). This conventional understanding of self-determination has two major shortcomings: first, it does not clearly determine who is entitled to the right; second, it remains ambiguous towards the ways in which self-determination may be exercised. What is needed is a revision of the conventional interpretation of self-determination. Showing how the increasing acknowledgment of human rights and minority rights, the pluralist set-up of states, globalisation, regionalisation, localisation, and a changing understanding of state sovereignty shape the contemporary political context in which self-determination is to be applied, it is argued that the application and scope of self-determination needs to be reconsidered.

Self-determination, decolonisation and the United Nations

Inspired by writings of enlightenment philosophers such as John Locke, Jean-Jacques Rousseau, and Thomas Paine and in correlation with the rise of nationalism the principle of self-determination developed in the eighteenth and nineteenth centuries (Hannum 1994: 2; McWhinney 2007: 1). Based on the ideas of the natural rights of Man and popular sovereignty of the people, self-determination gave rise to nationalistic assertions and struggles for political freedom that also informed the revolt of British colonists in North America during the war of independence. As a result, one of the first manifestations of the idea of self-determination is to be found in the American Declaration of Independence of 1776. While not using the term ‘self-determination’ explicitly, the Declaration, authored by Thomas Jefferson, proclaims that all men are entitled to the right to freedom as well as to the right to participate in state power and further declares that people have the right to alter or abolish a form of government which fails to guarantee or which disregards that freedom

We, therefore, the Representatives of the united States of America, […], solemnly publish and declare, that these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

(American Declaration of Independence 1776)

If one acknowledges that this statement manifests an articulation of the idea of self-determination, it follows that at that time self-determination stood for the right to be free from colonial rule and the right to a free and independent state for all nations.

The declaration inspired European struggles for greater political freedom. The concept propagated by the French Revolution was similar to the ideas that instigated American independence — with the difference being that the concept of self-determination included the prohibition of intervention in the internal affairs of a foreign state. Accordingly, the French constitution of 1791 contains the idea of self-determination as a right of all peoples to organise their own form of government freely and without any intervention by third powers (French Constitution 1791). Here the concept of self-determination is already closely tied to the idea of state sovereignty and the notion of non-interference.

During the early nineteenth century most of the nations of South America achieved independence from the colonial rule of Spain. Nationalist sentiments also emerged in Russia, the Ottoman Empire, and Japan. In Europe, nations such as Greece, Hungary, Poland, and Hungary sought independent statehood. These nationalist assertions were supported by European intelligentsia, among others Rosa Luxemburg, Karl Marx, and Vladimir Lenin (Benner 1995: 188; Lenin 1951). In Right of Nations to Self-Determination, Lenin addresses the question of the very meaning of self-determination and concludes that self-determination of nations refers to the political separation of these nations from alien national bodies, thus, that it refers to the formation of independent states (Lenin 1951: 11). Lenin's understanding of self-determination as being the right of oppressed nations to secession as a last resort remedy was highly influential in determining the principle of self-determination (Castellino 2000: 188; Connor 1984). With the intention to apply the principle of self-determination to all non-European nations under colonial rule, Lenin's doctrine of 1917 encompassed two aspects of self-determination: the right to organise one's own state freely and the right to be free from foreign rule (Doehring 2002: 50).

More frequently, however, the principle of self-determination is associated with Woodrow Wilson and his ‘Fourteen Points’. In contrast to Lenin, Wilson understood the principle of self-determination — which he preferred to refer to as ‘self-government’ — to relate unconditionally to European peoples, but not necessarily to peoples under colonial rule (Castellino 2000: 13–19). Self-determination as propagated by Woodrow Wilson in his ‘Fourteen Points’ of 1918 reflected the ideas of democratic self-governance rather than of independent statehood (President Woodrow Wilson's Fourteen Points Plan 1918; Falk 2000: 104; Castellino 2000: 177–184; Pomerance 1976). What both approaches had in common was their understanding of national self-determination as a concept according to which peoples are entitled to determine their own political destiny (Castellino 2000: 188). In the aftermath of World War I, the idea of self-determination comprised in the Versaille Settlement aimed at the protection of minorities in Europe (Heater 1994: 64ff.).

Despite Wilson's efforts, the principle of self-determination was not explicitly written into the League of Nations Covenant. However, for some time the Wilsonian approach to self-determination prevailed in the interpretation of self-determination and it was only after World War II that Lenin's conception of self-determination, with its idea of independent statehood, gained popularity (Cassese 1995: 14; Falk 2000: 106; Heater 1994). With the formation of the United Nations after World War II, self-determination was finally established as a defining principle of the international system and eventually gained significance as a legal right. Under the auspices of the UN, self-determination inspired the decolonisation process after World War II that brought about the independence of various Western colonies and protectorates in Asia and Africa. In anticipation of the Cold War, Lenin's and Wilson's conceptions of self-determination were soon understood to represent Eastern (communist) and Western (liberal) ideologies respectively.

Though widely applied and broadly embraced in the decolonisation era as a right of colonial people to independence, the validity of claims to self-determination outside the colonial context has been disputed ever since — by state representatives as well as by scholars and international lawyers. While empirically the drive for self-determination has been one of the major causes of humanitarian crises in the post-Cold War and post-colonial world, until today no consensus exists as to the scope and applicability of self-determination. Apart from a conceptual ambiguity, Realpolitik concerns and interests have resulted in a wariness of embracing the idea of self-determination. Being insufficiently defined, self-determination is thus left open to diverse interpretations and understandings with far-reaching effects on the application of it in specific cases. Thus, albeit self-determination is considered a fundamental norm of the contemporary international system, it is far from clear who is entitled to self-determination and what an entitlement to self-determination means in practice.

A look at international documents and treaties referring to self-determination may shed some light on the way self-determination has been conceptualised in international law and politics and help to clarify its contested applicability and scope. While self-determination was not included in the League of Nations Covenant, it is prominently placed as a fundamental principle in the UN Charter of 1945.¹ Self-determination's prominent standing within the UN means that it has eventually been recognised as a right under international law. Any attempt to understand the law and politics of self-determination has to therefore examine its meaning within the UN system, including its international legal character as determined by international law. As set out in Article 38 of the Statute of the International Court of Justice (ICJ), there are four sources of international law: international treaties, custom, general principles of law, and judicial decisions and teachings (Statute of the International Court of Justice 1945). International treaties are documents signed voluntarily by states, establishing mutually binding obligations. In contrast, customary international law refers to the consistent practice of states (Shaw 2008: 81). Unlike treaty law, customary international law is not written.² Certain rules are considered customary when they are reflected in state practice and when a consensus exists in the international community of states that such practice is required as a matter of law. This is also referred to as opinio juris (Shaw 2008: 84). To establish a customary rule, state practice needs to be followed regularly and must be “common, consistent and concordant”.³ State practice, however, does not have to include all states or be uniform,⁴ but can be reflected in formal statements by states, for example at international meetings, particularly the UN General Assembly.⁵ Another source of international law is the so-called general principles of law. These are principles commonly recognised by the majority of national legal systems. Examples are the principle of good faith and pacta sunt servanda (Shaw 2008: 98).⁶

In addition to state practice and the general principles of law, judgments of international courts or tribunals as well as academic writings are sources of customary law (Thirlway 1972: 58; Shaw 2008: 69). This is clearly set out in ICJ Statute Article 38(1)(d) which reads: “Judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” The judicial decisions of the ICJ have no binding force except between the parties and in respect to a particular case (Statute of the International Court of Justice 1945: Article 59). Having said this, its decisions are given substantial weight and are considered the strongest statement on what international law is. Any comprehensive legal understanding of self-determination requires an extensive examination of these various sources of international law. As this would go beyond the scope of this book, the following section will restrict itself to a discussion of what can be called the ‘milestones’ in the evolution of self-determination in international politics, including its legal dimension.⁷ The chapter, therefore, applies a chronological overview, in contrast to a systematic legal analysis, of the evolution of self-determination after World War II to gain an idea of the common — or conventional — understanding of the same. This, then, forms the basis for the remaining analysis of self-determination beyond decolonisation.

The United Nations Charter

The first document — or treaty — to look at within the UN system is the Charter of the United Nations of 1945. In Article 1, the UN Charter identifies one of the purposes of the UN to be the development of friendly relations among nations based on the respect for the principles of equal rights and self-determination (Charter of the United Nations 1945: Article 1.2). The article, however, remains vague on the actual content of self-determination, which was regarded as a political principle rather than a legal right at that time.⁸ Why did the authors of the Charter not provide a clear definition of self-determination? Two reasons come to mind: first, and more generally, using a rather vague language seems to be a common feature of most international documents — one could argue, to allow for a certain flexibility and discretionary interpretation. But more specifically, a reminder of the particular political context at the time of drafting provides an explanation. As elaborated previously, two competing understandings of self-determination prevailed at the beginning of the twentieth century. The articulation of self-determination in the UN Charter can be understood as a compromise in order to accommodate the competing conceptions of self-determination of the East (Lenin) and the West (Wilson) (Falk 2000: 106). Consequentially, the language of the UN Charter remains ambiguous and although self-administration of non-self-governing territories is encouraged, one does not find an expressive right to independence (Charter of the United Nations 1945: Article 73). It was left to the administering power to decide, in accordance with the specific circumstances, on the manner in which to govern colonial territories. In Article 75 of the UN Charter, an international trusteeship system was established with the aim to administer and supervise such territories, and among other things to advance international peace and security and to promote the

political, economic, social, and educational advancement of the inhabitants of these trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement.

(Charter of the United Nations 1945: Chapter XII)

However vaguely defined, the charter already indicates a strong link between self-determination and decolonisation.

In addition, Article 55 of the UN Charter provides a list of particular measures for promoting the purposes of the UN. In reference to self-determination — as a purpose of the UN — the article lists the following conditions: economic and social progress and development; solutions of international economic, social, health, and related problems; and finally, universal respect for and observance of human rights and fundamental freedoms for all, without any distinction in terms of race, sex, language, or religion (Charter of the United Nations 1945: Article 55). While defined as a guiding principle of the UN, Article 2(4) states that member states must refrain from any activities that could impair the purposes of the UN Charter, which are the object of legal protection, already implicitly indicating the legal and therefore binding nature of self-determination (Doehring 2002: 49). This view is supported by the subsequent practice of the UN organs during the decolonisation process, the jurisprudence of the International Court of Justice (ICJ), human rights law and General Assembly (GA) and Security Council (SC) Resolutions.

The Declaration on the Granting of Independence to Colonial Countries and Peoples

The most important step forward for acknowledging self-determination as a legal right and for giving it a more precise meaning in international law was taken in the context of decolonisation, where self-determination was associated with gaining independence from colonial rule. The so-called ‘salt-water theory of decolonisation’ required that as a condition for exercising self-determination, the people concerned had to live in a distinct overseas territory with an ocean separating them from the respective colonial power (Wheatley 2005: 74). This criterion was determined by the UN General Assembly in the Declaration on the Granting of Independence to Colonial Peoples that was adopted in 1960. Here, a non-self-governing territory was defined as a territory which is geographically separate and which is ethnically and (or) culturally different from the administering state itself (GA Res. 1514, 1960: Article 73). The declaration states that all peoples have the right to self-determination and that by virtue of that right they shall freely determine their political status and freely pursue their economic, social and cultural development (GA Res. 1514, 1960: Article 2). It is important to note, that the term ‘people’ was used in reference to colonial people only. Although self-determination was defined as a right to independent statehood, it was only applicable to colonies overseas (Österud 1997: 178).

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Table of contents

• Cover
• Half Title
• Full Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• 1 Self-determination: Historical origins, evolution and the contemporary context
• 2 Conceptual foundations of self-determination
• 3 Realising self-determination
• Conclusion
• Notes
• Bibliography
• Index