Self-Determination in International Law

by

James Summers

• LAST REVIEWED: 23 November 2020
• LAST MODIFIED: 27 June 2017
• DOI: 10.1093/obo/9780199796953-0033

Introduction

The right of peoples to self-determination is their right to freely determine their political status and freely pursue their economic, social, and cultural development. It has a central position in international law as a primary principle in the creation and destruction of states. It features in Article 1 of the UN Charter (1945) as one of the purposes of the organization. It is positioned as the first right in the twin Human Rights Covenants (the International Covenant on Civil and Political Rights [ICCPR] and the International Covenant on Economic, Social and Cultural Rights [ICESCR]). Many commentators argue for its peremptory or jus cogens status. Nonetheless, despite a general description in international instruments about what this right might allow peoples to do, the right itself has no exact definition (it is, after all, self-determined) and its subject, the “people,” has famously escaped legal formulation. These ambiguities provide plenty of fuel for academic writing. Engaging with the extensive literature on self-determination can be a monumental task, and this survey is necessarily no more than the tip of the iceberg of the total works available. The omission of particular titles here reflects on space requirements, not on their quality. The academic coverage of self-determination is enormous and growing energetically. Moreover, it is spread across a range of disciplines, not only law but also the study of nationalism and ethnic conflict in the political and social sciences, as well as history and philosophy. This is not to mention the overlapping issues of minority rights and indigenous peoples’ rights, which are covered in separate entries. A well-informed approach to the right of self-determination will require a wider reading than the primarily legal publications listed here, and it is recommended that researchers familiarize themselves with nationalism, liberalism, and the historical context of the right. The right of self-determination, rather like a magician, relies on perceptions and assumptions that a good analysis needs to be able to see through. The right is also linked with fast-changing events, and a good way to keep up with current developments is through websites like ASIL Insights or EJIL: Talk!.

General Overviews

A number of general works on self-determination embrace most of the issues that the concept raises. Cassese 1995 might be a researcher’s first port of call, as it provides a detailed analysis of international instruments. However, it does date from 1995 and has been overtaken by some events. Summers 2014 is also a comprehensive analysis of instruments and cases. If these books provide too much detail, a briefer overview is provided in Quane 1998. Musgrave 1997 and Wheatley 2005 are short, effective books that also cover minority rights. Crawford 2006 is primarily about states, but states provide the context for self-determination, and there is considerable examination of the right in this volume. Lastly, there are two general works from the 1970s: Rigo-Sureda 1973 and Umozurike 1972. While these are also dated, they provide effective coverage.

• Cassese, Antonio. Self-Determination of Peoples: A Legal Reappraisal. Cambridge, UK: Cambridge University Press, 1995.

  Perhaps the most widely used authority on self-determination, cited, for example, by the Canadian Supreme Court in Reference re Secession of Quebec, 1997. This is an extensive analysis of self-determination from the perspective of its internal and external aspects. It covers instruments like the Human Rights Covenants and Friendly Relations Declaration in extensive detail, and case studies outline the principle’s practical application.

• Crawford, James. The Creation of States in International Law. 2d ed. Oxford: Clarendon, 2006.

  In many ways the right of self-determination is a mirror to statehood. While Crawford’s book is primarily about states, it also provides a highly regarded analysis of the law of self-determination and secession. In oral submissions in the Kosovo Advisory Opinion it was referred to as “probably  . . . the most widely quoted in these proceedings.”

• Musgrave, Thomas D. Self-Determination and National Minorities. Oxford: Clarendon, 1997.

  This book provides a readable and relatively concise account of minority rights and self-determination in 250 pages. It addresses key issues such as peoples, secession, irredentism, and historic title in sufficient but not extensive depth.

• Quane, Helen. “The United Nations and the Evolving Right to Self-Determination.” International and Comparative Law Quarterly 47.3 (1998): 537–572.

  DOI: 10.1017/S0020589300062175

  This is one of the best concise overviews of self-determination. In thirty-five pages, Quane runs through the basic instruments on self-determination and considers categories of secessionist claims.

• Rigo-Sureda, A. Evolution of the Right to Self-Determination: A Study of United Nations Practice. Leiden, The Netherlands: A. W. Sijthoff, 1973.

  This is an extensive and well-researched account of self-determination, focused on the practical application of the right. A number of case studies demonstrate the problems involved in this application. The structure of the book, in which case studies are split up and returned to from different angles, may, however, be found disorientating.

• Summers, James. Peoples and International Law. 2d ed. Leiden, The Netherlands: Martinus Nijhoff, 2014.

  Extensive analysis of the law of self-determination from the perspective of the interaction of nationalism with international law. The book covers international instruments and some cases on self-determination with considerable detail, and draws conclusions on the legal status of different aspects of the right.

• Umozurike, U. O. Self-Determination in International Law. Hamden, CT: Archon, 1972.

  This is an effective account of the law of self-determination by a Nigerian jurist. The main focus of the work is on colonial self-determination—in particular, Namibia—but Umozurike also covers economic self-determination and case studies on secessionist conflict.

• Wheatley, Steven. Democracy, Minorities and International Law. Cambridge, UK: Cambridge University Press, 2005.

  DOI: 10.1017/CBO9780511584336

  Wheatley provides a well-researched account, addressing minority rights, self-determination, and democracy. The work is concise and informative.