International Law Self-Determination in International Law
by
James Summers
  • LAST REVIEWED: 27 February 2017
  • 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.

    Save Citation »Export Citation »E-mail Citation »

    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.

    Find this resource:

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

      Save Citation »Export Citation »E-mail Citation »

      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.”

      Find this resource:

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

        Save Citation »Export Citation »E-mail Citation »

        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.

        Find this resource:

        • 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/S0020589300062175Save Citation »Export Citation »E-mail Citation »

          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.

          Find this resource:

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

            Save Citation »Export Citation »E-mail Citation »

            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.

            Find this resource:

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

              Save Citation »Export Citation »E-mail Citation »

              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.

              Find this resource:

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

                Save Citation »Export Citation »E-mail Citation »

                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.

                Find this resource:

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

                  DOI: 10.1017/CBO9780511584336Save Citation »Export Citation »E-mail Citation »

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

                  Find this resource:

                  Textbooks

                  Self-determination features in a number of key international law textbooks, but they are often little more than brief overviews. Both Cassese 2005 and Crawford 2012 address the right in a few pages, which leaves little room for detail and explanation. Shaw 2014 is more extensive overall, but the analysis is spread over different parts of the work. Higgins 1994 provides a more substantial introduction. Perhaps the best general introduction is Kaczorowska 2010, with a clear, student-orientated account. Both Verzijl 1968 and Malanczuk 1997 are critical of the right, highlighting inconsistencies in its application.

                  • Cassese, Antonio. International Law. 2d ed. Oxford: Oxford University Press, 2005.

                    Save Citation »Export Citation »E-mail Citation »

                    The jurist provides a short summary on self-determination as one of the fundamental principles governing international relations. Essentially this is a four-page version of Self-Determination of Peoples: A Legal Reappraisal (Cassese 1995, cited under General Overviews).

                    Find this resource:

                    • Crawford, James. Brownlie’s Principles of Public International Law. 8th ed. Oxford: Clarendon, 2012.

                      DOI: 10.1093/he/9780199699698.001.0001Save Citation »Export Citation »E-mail Citation »

                      Self-determination appeared only in a brief four-page overview, in Brownlie’s last (7th) edition of his textbook, with the author conceding that it was “difficult to do justice to the problems in a small compass.” Under James Crawford, discussion again has been brief and focused on internal and external aspects. A fuller examination by Brownlie can be found in “The Rights of Peoples in Modern International Law,” printed in The Rights of Peoples, edited by James Crawford (Oxford: Clarendon, 1988), pp. 1–16.

                      Find this resource:

                      • Higgins, Rosalyn. Problems and Process: International Law and How We Use It. Oxford: Clarendon, 1994.

                        Save Citation »Export Citation »E-mail Citation »

                        Chapter 7 of Higgins’s text is on self-determination. She provides a good outline of the right over seventeen pages, dividing it into two phases: independence from colonial rule and human rights. This is a good basic introduction.

                        Find this resource:

                        • Kaczorowska, Alina. Public International Law. 4th ed. Abingdon, UK: Routledge Cavendish, 2010.

                          Save Citation »Export Citation »E-mail Citation »

                          Chapter 12 on the self-determination of peoples provides a clearly laid out and good basic introduction to the right. It runs through its historical background, decolonization, racist regimes, Palestine, secession, and indigenous peoples. Altogether a good introductory text aimed at undergraduates.

                          Find this resource:

                          • Malanczuk, Peter. Akehurst’s Modern Introduction to International Law. 7th ed. London: Routledge, 1997.

                            Save Citation »Export Citation »E-mail Citation »

                            This provides a good basic outline of the instruments on and aspects of self-determination, in a chapter shared with the use of force. It also critiques the right, at least, in the colonial or neocolonial context by investigating the charge of double standards.

                            Find this resource:

                            • Shaw, Malcolm N. International Law. 7th ed. Cambridge, UK: Cambridge University Press, 2014.

                              Save Citation »Export Citation »E-mail Citation »

                              This textbook contains separate sections on self-determination of a few pages each in relation to subjects, human rights, and territory.

                              Find this resource:

                              • Verzijl, J. H. W. International Law in Historical Perspective. Vol. 1, General Subjects. Leiden, The Netherlands: A. W. Sijthoff, 1968.

                                Save Citation »Export Citation »E-mail Citation »

                                Verzijl takes issue with self-determination as a legal concept. Describing it as a right with an obviously political nature and a slogan-like quality, he finds its application marred by evident arbitrariness and flagrant international hypocrisy. The book contains a boldly phrased critique of self-determination from a period when it was still possible to argue that international law could exclude it.

                                Find this resource:

                                Conceptual Approaches

                                It is common practice for works on self-determination to incorporate some form of conceptual framework. Nonetheless, the frameworks below may be considered particularly significant, as they either incorporate a tradition of thought in writing about self-determination or have had an influential impact on the subsequent literature in this field. Pomerance 1982 encapsulates a skeptical legalist tradition toward the right. Koskenniemi 1994 exposes its conflicting philosophical roots. Knop 2002, from a feminist perspective, considers the function of inclusion. Williams and Pecci 2004 outlines a modern version of trusteeship, which has historically underpinned the right. Berman 1992, from a critical legal perspective, outlines the interplay of politics and law. Anaya 1991 brings an indigenous peoples’ perspective to the right.

                                • Anaya, James S. “The Capacity of International Law to Advance Ethnic or Nationality Rights Claims.” Human Rights Quarterly 13.3 (1991): 403–411.

                                  DOI: 10.2307/762623Save Citation »Export Citation »E-mail Citation »

                                  In a short article, Anaya outlines two approaches to self-determination. The first is a historical sovereignty approach, in which a historical community seeks to restore sovereignty that has been denied. The second is a human rights approach, whereby self-determination emerges as an extension of individual human rights. Anaya sees this approach as a more flexible way of addressing the claims of ethnic groups within states.

                                  Find this resource:

                                  • Berman, Nathaniel. “Sovereignty in Abeyance: Self-Determination and International Law.” In International Law. Edited by Martti Koskenniemi, 389–443. New York: New York University Press, 1992.

                                    Save Citation »Export Citation »E-mail Citation »

                                    Berman explores self-determination as a doctrine that functions in states of exception, where sovereignty is in abeyance. This presents an opportunity for legal creativity as conflicting elements of law and morality in international law confront each other. The Commission of Jurists’ statement in the Åland Islands case that self-determination is called into play when sovereignty is uncertain is illustrative. Originally published in the Wisconsin International Law Journal in 1988.

                                    Find this resource:

                                    • Knop, Karen. Diversity and Self-Determination in International Law. Cambridge, UK: Cambridge University Press, 2002.

                                      DOI: 10.1017/CBO9780511494024Save Citation »Export Citation »E-mail Citation »

                                      The book investigates self-determination as a means of inclusion in international law. It does not just look at the law, but also the structures in which it operates. Principles and categories, reporting under the trusteeship system, and the drafting of International Labour Organization (ILO) Convention 169 and the Declaration on the Rights of Indigenous Peoples are considered.

                                      Find this resource:

                                      • Koskenniemi, Martti. “National Self-Determination Today: Problems of Legal Theory and Practice.” International and Comparative Law Quarterly 43.2 (1994): 241–269.

                                        DOI: 10.1093/iclqaj/43.2.241Save Citation »Export Citation »E-mail Citation »

                                        Koskenniemi see self-determination as falling between two poles: a liberal “Hobbesian” perspective that seeks stability and a “Rousseauesque” view that seeks authenticity in the groups exercising the right.

                                        Find this resource:

                                        • Pomerance, Michla. Self-Determination in Law and Practice: The New Doctrine in the United Nations. The Hague: Martinus Nijhoff, 1982.

                                          Save Citation »Export Citation »E-mail Citation »

                                          In a relatively short but closely argued work, Pomerance takes issue with the inconsistencies in the law of self-determination. The book is a prominent example of a line of criticism, including Emerson, Franck, and Verzijl, about self-determination’s suitability as a legal principle based on its inherently subjective elements.

                                          Find this resource:

                                          • Williams, Paul R., and Francesca Jannotti Pecci. “Earned Sovereignty: Bridging the Gap between Sovereignty and Self-determination.” Stanford Journal of International Law 40 (2004): 1–40.

                                            Save Citation »Export Citation »E-mail Citation »

                                            The term “earned sovereignty” was coined in the context of the international administrations in East Timor and Kosovo, though the authors conceive it as a general approach to secession. Earned sovereignty is presented as a middle ground between the prevalence of self-determination or sovereignty. It has three core elements: shared sovereignty, institution-building, and a final status process.

                                            Find this resource:

                                            Philosophical Accounts

                                            The philosophy of self-determination has generated considerable literature. This section outlines two contemporary works (Raz and Margalit 1994 and Tesón 1998), as well as classic philosophical works such as Locke 1967, Rousseau 1980, Bentham 1843, Mazzini 1907, Mill 1954, and Acton 1922. A common feature in these works, which spread across the centuries, is the tension between the individual theory of liberalism and the collective focus of nationalism.

                                            • Acton, John Emerich Edward Dalberg. “Nationality.” In The History of Freedom and Other Essays. By John Emerich Edward Dalberg Acton. Edited by John Neville Figgis and Laurence Reginald Vere, 270–300. London: Macmillan, 1922.

                                              Save Citation »Export Citation »E-mail Citation »

                                              In response to Mill, Lord Acton argues against the nationality principle as a mechanism for advancing liberal values. Nationality is at best neutral on those points. More negatively, linking the rationale of a state to a particular nation means that any other nation within that state’s borders would be inherently subordinate, its fate depending on the degree of civilization in the dominant nation. The coexistence of several nations within a state, he considered, was the best guarantee of freedom. First published 1862.

                                              Find this resource:

                                              • Bentham, Jeremy. “Emancipate Your Colonies.” In The Works of Jeremy Bentham. Vol. 4. By Jeremy Bentham. Edited by John Bowring, 407–418. Edinburgh: William Tait, 1843.

                                                Save Citation »Export Citation »E-mail Citation »

                                                Bentham delivers a bold attack on colonialism from a liberal nationalist perspective, which anticipates the combination of equal rights and self-determination that would be used against colonial rule in the decolonization process.

                                                Find this resource:

                                                • Locke, John. Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus. 2d ed. Edited by Peter Laslett. Cambridge, UK: Cambridge University Press, 1967.

                                                  Save Citation »Export Citation »E-mail Citation »

                                                  Locke’s work is the classic text of liberal government. Government is conceived as a trust instituted for the benefit of the governed, and for the protection of their rights. If the trust is broken, then government in the last resort can be deposed. Locke conceived his arguments against James II (or Charles II) of England, but they can justify a liberal approach to self-determination and secession. First published 1690.

                                                  Find this resource:

                                                  • Mazzini, Giuseppe. “The Duties of Man.” In The Duties of Man and Other Essays. Edited by Thomas Jones, 7–122. London: J. M. Dent, 1907.

                                                    Save Citation »Export Citation »E-mail Citation »

                                                    Mazzini is often seen as the archetypal nationalist. The Duties of Man is his most famous work, in which he develops a philosophy of duties that is profoundly nationalistic. However, while Mazzini sees the world in terms of nations, they themselves exist within a strong liberal and Christian framework, which balances the national with the individual and humanity.

                                                    Find this resource:

                                                    • Mill, John Stuart. “Considerations on Representative Government.” In Utilitarianism, Liberty, Representative Government. By John Stuart Mill, 171–393. London: J. M. Dent, 1954.

                                                      Save Citation »Export Citation »E-mail Citation »

                                                      Mill is supportive of the nationality principle as a basis for liberal representative government. Nation-states are likely to have less barriers to communication and more likely to have a sense of common feeling necessary for the working of representative government. First published 1861.

                                                      Find this resource:

                                                      • Raz, Joseph, and Avishai Margalit. “National Self-Determination.” In Ethics in the Public Domain. By Joseph Raz, 110–130. Oxford: Clarendon, 1994.

                                                        Save Citation »Export Citation »E-mail Citation »

                                                        Raz and Margalit argue in support of an instrumentalist right of self-determination from a liberal perspective. Individuals need relationships to pursue worthwhile goals, and relationships are culturally determined. Self-government for national groups means that they are likely to respect the basic rights of members of their groups, and thus, on balance, add to the sum of good.

                                                        Find this resource:

                                                        • Rousseau, Jean-Jacques. The Social Contract. Translated by Maurice Cranston. Harmondsworth, UK: Penguin Classics, 1980.

                                                          Save Citation »Export Citation »E-mail Citation »

                                                          Rousseau’s philosophy, which builds on Locke, is transitional between liberalism and nationalism. Sovereignty is held by the people as a collective entity guided by a general will. The people have the power to construct and reorganize political structures at will. Rousseau conceives of the people as intensely patriotic, and his liberalism appears to slip when considering those who behave unpatriotically. First published in 1762.

                                                          Find this resource:

                                                          • Tesón, Fernando R. “Ethnicity, Human Rights and Self-Determination.” In International Law and Ethnic Conflict. Edited by David Wippman, 86–111. Ithaca, NY: Cornell University Press, 1998.

                                                            Save Citation »Export Citation »E-mail Citation »

                                                            The author outlines a liberal repudiation of nationalist approaches to self-determination, arguing that group rights are justified to escape injustice or from a legitimate territorial claim rather than an inherent group identity. Tesón criticizes the communitarian approach of Margalit and Raz, considering it still allows a nonvoluntary group identity to override individualism.

                                                            Find this resource:

                                                            History

                                                            The history prior to the development of the contemporary right of self-determination can be divided into two main periods: the era after the French Revolution, in which the principle of nationality was applied; and the period after World War I, in particular, during the Versailles Peace Conference, when self-determination became popularized. Cobban 1969 is a general work on self-determination that covers these periods well.

                                                            • Cobban, Alfred. The Nation-State and National Self-Determination. London: Collins, 1969.

                                                              Save Citation »Export Citation »E-mail Citation »

                                                              This is a general work on self-determination, though with a strong historical perspective. Cobban runs through self-determination from the French Revolution to World War I. He then provides an extensive analysis of the Peace Conference of Versailles and follows with the failure of the minority regimes in the interwar period. The remainder of the book is an analysis of self-determination from a rich historical perspective.

                                                              Find this resource:

                                                              • Fisch, Jörg. The Right of Self-Determination of Peoples: The Domestication of an Illusion. Cambridge, UK: Cambridge University Press, 2015.

                                                                DOI: 10.1017/CBO9781139805698Save Citation »Export Citation »E-mail Citation »

                                                                This book provides a concise sweep through the history of self-determination: from early modern Europe, the Americas, the French Revolution, Europe from the Napoleonic Wars to World War I and then to World War II, decolonization and the end of the Cold War. The author identifies broad themes and principles rather dwelling extensively on the details.

                                                                Find this resource:

                                                                The Nationality Principle

                                                                The principle of nationality reflects the basic doctrine of political nationalism that the nation is the basis for the state. The principle became politically significant after the French Revolution of 1789, particularly in the mid- to late 19th century. In the 20th century, after World War I, it began to be replaced as a terminology by the more ambiguous right of peoples to self-determination, though nationalism remains important politically. Two works are cited in this section: Bluntschli 1885 provides a succinct account of the principle in theory, and Wambaugh 1920 provides an effective account of much of the practice. The theory of the nationality principle is also scrutinized in the conflicting accounts of Mill 1954 and Acton 1922 (see Philosophical Accounts).

                                                                • Bluntschli, Johann Kaspar. The Theory of the State. Oxford: Clarendon, 1885.

                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                  The book contains excellent descriptions from this period of the nationality principle and its rationale.

                                                                  Find this resource:

                                                                  • Wambaugh, Sarah. A Monograph on Plebiscites with a Collection of Official Documents. New York: Carnegie Endowment for International Peace, 1920.

                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                    This is still the standard legal work on self-determination in the period of the French Revolution and 19th century. The book charts a number of plebiscites in this period.

                                                                    Find this resource:

                                                                    The Paris Peace Conference

                                                                    The Paris Peace Conference brought together the victorious powers from World War I to forge a postwar settlement, resulting in the Treaty of Versailles and other agreements. It is significant as the period in which self-determination was popularized as a principle of international diplomacy. There were also important applications of the principle, though the period is often remembered for the many instances when self-determination was not realized. Temperley 1920–1924 presents an extensive account of the proceedings. Wambaugh 1933 and Wambaugh 1940 document the plebiscites held in that period. Nicolson 1933 delivers a contemporary account of the failures of the conference. Lansing 1921, Lloyd George 1938, Lenin 1946, and Wilson 1966–1994 are the works of significant political figures in that period.

                                                                    • Lansing, Robert. The Peace Negotiations: A Personal Narrative. Boston: Houghton Mifflin, 1921.

                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                      This is a contemporary account of the conference by the most enduring critic of Wilsonian self-determination, his secretary of state, Robert Lansing.

                                                                      Find this resource:

                                                                      • Lenin, V. I. “The Right of Nations to Self-Determination.” In Selected Works. Vol. 1. By V. I. Lenin, 564–611. Moscow: Foreign Languages Publishing House, 1946.

                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                        Lenin lays out the Bolshevik strategy on self-determination, which ultimately embraces the right as a dispensable tool for the promotion of socialism.

                                                                        Find this resource:

                                                                        • Lloyd George, David. The Truth about the Peace Treaties. London: Victor Gollancz, 1938.

                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                          This work, by the British prime minister, is engagingly written for a political biography and provides an insider’s account of the peace conference.

                                                                          Find this resource:

                                                                          • Nicolson, Harold. Peacemaking 1919. London: Constable, 1933.

                                                                            Save Citation »Export Citation »E-mail Citation »

                                                                            Nicolson delivers a critical account of the aims and organization of the Paris conference.

                                                                            Find this resource:

                                                                            • Temperley, Harold W. V. A History of the Peace Conference of Paris. 6 vols. London: Henry Frowde/Hodder and Stoughton, 1920–1924.

                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                              A comprehensive history of the peace conference at Versailles.

                                                                              Find this resource:

                                                                              • Wambaugh, Sarah. Plebiscites since the World War, with a Collection of Official Documents. Washington, DC: Carnegie Endowment for International Peace, 1933.

                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                An excellent account of the plebiscites that redrew some of the borders of Europe after World War I. The plebiscites were integral to the dreams and failures of the postwar settlement and brought surprising results that challenged the assumptions of nationalism.

                                                                                Find this resource:

                                                                                • Wambaugh, Sarah. The Saar Plebiscite, with a Collection of Official Documents. Cambridge, MA: Harvard University Press, 1940.

                                                                                  DOI: 10.4159/harvard.9780674366459Save Citation »Export Citation »E-mail Citation »

                                                                                  Wambaugh continues her examination of postwar plebiscites with a detailed consideration of the Saar Plebiscite of 1935, in which this ethnically German territory overwhelmingly voted to join Hitler’s Reich.

                                                                                  Find this resource:

                                                                                  • Wilson, Woodrow. The Papers of Woodrow Wilson. 69 vols. Edited by Arthur S. Link. Princeton, NJ: Princeton University Press, 1966–1994.

                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                    This collection includes the speeches of President Woodrow Wilson in which he outlines the principle of self-determination and how a peace settlement should be based on the principle of nationality. The most important of these documents are “An Address to a Joint Session of Congress [14 Points]” (Vol. 45, pp. 534–539) and “An Address to a Joint Session of Congress [4 Points]” (Vol. 46, pp. 318–324).

                                                                                    Find this resource:

                                                                                    International Instruments

                                                                                    The right of self-determination in international law derived from, at least, the two principal sources of international law: treaties and custom, both of which drew from a number of international instruments, detailed in the following subsections.

                                                                                    United Nations Charter, 1945

                                                                                    The United Nations Charter of 1945 is the treaty that established the United Nations, and it is the legal wellspring for the subsequent UN law that has built up around self-determination. The principle of equal rights and self-determination of peoples is referred to twice in the charter, in Article 1(2), as one of the purposes of the organization, and in Article 55 on the conditions for international economic and social cooperation. Significant also are Chapters XI and XII, on the systems for non-self-governing territories and trust territories, respectively. Both of those systems, though based on the principle of trusteeship, provided the framework for the operation of colonial self-determination in the decolonization process. The UN Charter and its drafting are discussed in detail in Cassese 1995 and Summers 2014 (both cited under General Overviews), and more specific works are Simma 2002 and Swan 1982.

                                                                                    • Simma, Bruno, ed. The Charter of the United Nations: A Commentary. 2d ed. 2 vols. Oxford: Oxford University Press, 2002.

                                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                                      This edited volume is an article-by-article examination of the provisions of the UN Charter. Particularly valuable in the context of self-determination are the entries by Karl Doehring on “Self-Determination” (Vol. 1, pp. 47–63), Ulrich Fastenrath on the “Declaration Regarding Non-Self-Governing Territories” (Vol. 2, pp.1089–1097), Dietrich Rauschning on the “International Trusteeship System” (Vol. 2, pp.1099–1128), and Rudolf Geiger on “The Trusteeship Council” (Vol. 2, pp.1129–1138).

                                                                                      Find this resource:

                                                                                      • Swan, George Steven. “Self-Determination and the United Nations Charter.” Indian Journal of International Law 22 (1982): 264–277.

                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                        The author provides a concise overview of the articles of the UN Charter relevant to self-determination, as well as engaging in the academic debate on how to interpret those provisions.

                                                                                        Find this resource:

                                                                                        Universal Declaration of Human Rights, 1948

                                                                                        The Universal Declaration of Human Rights (1948) is a nonbinding declaration of the UN General Assembly, though many of the rights it contains are considered to be part of custom. It provided the first part of the “International Bill of Rights,” followed by the twin Human Rights Covenants. The declaration does not specifically include a right to self-determination, though Article 21(3) states, “The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Rosas 1999 places Article 21 in the context of self-determination.

                                                                                        • Rosas, Allan. “Article 21.” In The Universal Declaration of Human Rights: A Common Standard of Achievement. Edited by Gudmunder Alfredsson and Asbjørn Eide, 431–451. The Hague: Martinus Nijhoff, 1999.

                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                          This chapter provides a thorough examination of Article 21 and its drafting. It also analyzes its role in self-determination by examining its relationship with Articles 1 and 25 of the International Covenant on Civil and Political Rights.

                                                                                          Find this resource:

                                                                                          Human Rights Covenants, 1966

                                                                                          The twin Human Rights Covenants of 1966—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights—were the first binding instruments to refer to self-determination as a right, and they perhaps remain the most important for how the right has developed. Article 1(1) of both Covenants has become the standard formula for expressing self-determination in international instruments: “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Article 1(2) contains a complex formula for economic self-determination. Article 1(3) establishes a duty to promote the realization of self-determination, citing, in particular, non-self-governing and trust territories. Article 1 has been the subject of a commentary by the Human Rights Committee (HRC) in General Comment No. 12 (24th Session, 1984), though this is generally quite vague. General Comments 23 (50th Session, 1994) and 25 (57th Session, 1996), on rights of persons belonging to minorities and rights connected to democratic governance, respectively, also refer to self-determination. Like the UN Charter, the Human Rights Covenants and their drafting are discussed on detail in Cassese 1995 and Summers 2014 (both cited under General Overviews). More specific works include Morphet 1989, Nowak 1993, and Bossuyt 1987.

                                                                                          • Bossuyt, Marc J. Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights. Dordrecht, The Netherlands: Martinus Nijhoff, 1987.

                                                                                            Save Citation »Export Citation »E-mail Citation »

                                                                                            This is a very technical guide to the drafting history of the International Covenant on Civil and Political Rights.

                                                                                            Find this resource:

                                                                                            • Morphet, Sally. “Article 1 of the Human Rights Covenants: Its Development and Current Significance.” In Human Rights and Foreign Policy: Principles and Practice. Edited by Dilys M. Hill, 67–88. London: Macmillan, 1989.

                                                                                              DOI: 10.1007/978-1-349-09334-2_5Save Citation »Export Citation »E-mail Citation »

                                                                                              The chapter is a detailed account of the circumstances of the drafting of Article 1, along with a more general examination of the subsequent development of self-determination.

                                                                                              Find this resource:

                                                                                              • Nowak, Manfred. UN Covenant on Civil and Political Rights: CCPR Commentary. Kehl, Germany: N. P. Engel, 1993.

                                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                                This book is an article-by-article examination of the Civil and Political Covenant. It provides an extensive account of the historical context and legal implications of Article 1.

                                                                                                Find this resource:

                                                                                                The Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV), 1960

                                                                                                The Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV), 15 December 1960, though formally nonbinding, is the most significant instrument promoting the right of self-determination of colonial peoples. It was referred to by the ICJ in the Namibia Advisory Opinion, 1971 and the Western Sahara Advisory Opinion, 1975. The drafting of the declaration is examined in detail in Kay 1967 and Summers 2014 (see General Overviews). It is also analyzed in Pomerance 1982 (see Conceptual Approaches), Blay 1986 (see Colonial Self-Determination), Maguire 1982 (see Specific Territories), and Quane 1998 (see General Overviews).

                                                                                                • Kay, David A. “The Politics of Decolonization: The New Nations and the United Nations Political Process.” International Organization 21.4 (1967): 786–811.

                                                                                                  DOI: 10.1017/S0020818300013370Save Citation »Export Citation »E-mail Citation »

                                                                                                  The article looks at the context surrounding the Declaration on Colonial Independence of 1960 and its relationship with the UN Charter. It also looks more broadly at UN practice in decolonization, in particular, in relation to Southern Rhodesia.

                                                                                                  Find this resource:

                                                                                                  General Assembly Resolution 1541 (XV), 1960

                                                                                                  General Assembly Resolution 1541 (XV), 15 December 1960, outlines the principles for identifying a non-self-governing territory, using the “salt-water” test of geographical separation, as well as ethnic and/or cultural distinctiveness. It was referred to by the International Court in the Western Sahara Advisory Opinion, 1975. Details of its drafting can be found in Summers 2014 (see General Overviews) and it is examined in Ofuatey-Kodjoe 1995, as well as in Pomerance 1982 (see Conceptual Approaches) and Musgrave 1997 (see General Overviews).

                                                                                                  • Ofuatey-Kodjoe, W. “Self-Determination.” In United Nations Legal Order. Vol. 1. Edited by Oscar Schachter and Christopher C. Joyner, 349–389. Cambridge, UK: Cambridge University Press, 1995.

                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                    The book chapter provides an overview of the resolution, in the context of other instruments on decolonization, as part of a general study of the law of self-determination.

                                                                                                    Find this resource:

                                                                                                    The Declaration on Principles of Friendly Relations, General Assembly Resolution 2625 (XXV), 1970

                                                                                                    The Declaration on Friendly Relations (officially, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States) is perhaps the most legally significant resolution of the General Assembly, being a contemporary (at the time) interpretation of the principles of the UN Charter. In the context of self-determination it has been cited by the ICJ in the Namibia, Western Sahara, Wall in Occupied Palestinian Territory, and Kosovo Advisory Opinions (see Decisions by Courts and Tribunals). The declaration reaffirms much of the content of General Assembly Resolution 1514 (XV) and General Assembly Resolution 1541 (XV), consolidating the right of colonial peoples. Detail of the drafting of the declaration can be found in Arangio-Ruiz 1972, Suković 1972, and Rosenstock 1971 in this section, and also in Cassese 1995 and Summers 2014 (see General Overviews for both). Much of the attention in the literature on the declaration has been focused on its “saving” or “safeguard” clause (Paragraph 7 of Principle 5), which states, “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.” References to the provision can be found in most of the general literature on self-determination. Nonetheless, two competing perspectives, in McCorquodale 1994 and Horowitz 2003, have been selected for this section.

                                                                                                    • Arangio-Ruiz, Gaetano. “The Normative Role of the General Assembly of the United Nations and the Declaration of Friendly Relations.” Recueil des Cours 137.3 (1972): 419–626.

                                                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                                                      In a lengthy work on the Declaration, Arangio-Ruiz considers self-determination, following Emerson, as an issue of the “big print,” the proclamation of the right, and the “small print,” by which the right is limited into a more workable formula. Arangio-Ruiz himself doubts that self-determination is yet a rule of international law.

                                                                                                      Find this resource:

                                                                                                      • Horowitz, Donald L. “A Right to Secede?” In Secession and Self-Determination. Edited by Stephen Macedo and Allen Buchanan, 50–76. New York: New York University Press, 2003.

                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                        A skeptical assessment of Paragraph 7 from Donald Horowitz, author of the basic text on ethnic conflict, Ethnic Groups in Conflict (Berkeley: University of California Press, 2000). He considers that commentators are going out on a limb in trying to squeeze a right of secession out of the cryptic language of the provision.

                                                                                                        Find this resource:

                                                                                                        • McCorquodale, Robert. “Self-Determination: A Human Rights Approach.” International and Comparative Law Quarterly 43.4 (1994): 857–885.

                                                                                                          DOI: 10.1093/iclqaj/43.4.857Save Citation »Export Citation »E-mail Citation »

                                                                                                          McCorquodale takes an expansive view of the implications of Paragraph 7 considering that, under the saving clause, territorial integrity as a limit on the right to self-determination can apply only to a minority of states where the government represents the whole people. The human rights approach that he outlines generally corresponds to the approach of the saving clause, which shifts the emphasis on the realization of self-determination to nondiscrimination and representation.

                                                                                                          Find this resource:

                                                                                                          • Rosenstock, Robert. “The Declaration of Principles of International Law Concerning Friendly Relations: A Survey.” American Journal of International Law 65.5 (1971): 713–735.

                                                                                                            DOI: 10.2307/2199354Save Citation »Export Citation »E-mail Citation »

                                                                                                            An article by the legal advisor to the US delegation at the UN. Rosenstock outlines the provisions on self-determination and the difficulties in agreeing to them, as part of a general examination of the declaration. He supports an interpretation of the saving clause as promoting representative government.

                                                                                                            Find this resource:

                                                                                                            • Suković, Olga. “Principle of Equal Rights and Self-Determination of Peoples.” In Principles of International Law Concerning Friendly Relations and Co-operation. Edited by Milan Săhović, 323–373. Belgrade, Yugoslavia: Institute of International Politics and Economics, 1972.

                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                              The author looks both at self-determination in the drafting of the declaration as well more generally in international law.

                                                                                                              Find this resource:

                                                                                                              Helsinki Final Act, 1975

                                                                                                              The Helsinki Final Act (1975) is a declaration adopted by the Conference on Security and Cooperation in Europe (now the Organization for Security and Co-operation in Europe [OSCE]). Principle VIII addresses self-determination within an explicit context of territorial integrity. Although nonbinding, its principles have been influential in shaping states’ behavior, especially in a European context. It has been recognized by the ICJ in Nicaragua Case of 1986 and the Kosovo Advisory Opinion, 2010, though in the context of the use of force rather than self-determination. Details of the drafting of the Final Act can be found in Arangio-Ruiz 1977 and Russell 1976, as well as in Cassese 1995 and Summers 2014 (both cited under General Overviews). Salo 1991 provides a good overview of the context of the act.

                                                                                                              • Arangio-Ruiz, Gaetano. “Human Rights and Non-Intervention in the Helsinki Final Act.” Recueil des Cours 157.4 (1977): 195–328.

                                                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                                                The author examines self-determination as part of an in-depth study of the Final Act. He expands on the Cold War context and the internal and external aspects implied in the principle. Available online through purchase.

                                                                                                                Find this resource:

                                                                                                                • Russell, Harold S. “The Helsinki Declaration: Brobdingnag or Lilliput.” American Journal of International Law 70.2 (1976): 242–272.

                                                                                                                  DOI: 10.2307/2200072Save Citation »Export Citation »E-mail Citation »

                                                                                                                  An article from the principal US negotiator at Helsinki, providing good detail on the context and process. The examination of self-determination is brief but provides some useful insights.

                                                                                                                  Find this resource:

                                                                                                                  • Salo, Juha. “Self-Determination: An Overview of History and Present State with Emphasis on the CSCE Process.” Finnish Yearbook of International Law 2 (1991): 268–342.

                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                    A lengthy article on self-determination orientated around the Final Act. Salo looks at the provisions on the right and process of drafting the Final Act, while placing self-determination in a broader historical context.

                                                                                                                    Find this resource:

                                                                                                                    African Charter on Human and Peoples’ Rights, 1981

                                                                                                                    The African (or Banjul) Charter on Human and Peoples’ Rights is a binding regional instrument that covers not only human rights but also peoples’ rights. In Article 20(1), it proclaims the unquestionable and inalienable right of peoples to self-determination, as well as other peoples’ rights. Kiwanuka 1988, Addo 2000 and Summers 2014 (cited under General Overviews) all examine the concept of self-determination in this instrument.

                                                                                                                    • Addo, Michael K. “Political Self-Determination within the Context of the African Charter on Human and Peoples’ Rights.” In Self-Determination in International Law. Edited by Robert McCorquodale, 267–278. Aldershot, UK: Ashgate/Dartmouth, 2000.

                                                                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                                                                      The chapter engages with the concept of self-determination in the African Charter, demonstrating, despite considerable ambiguity, that it should be interpreted more widely than colonial and foreign domination. Originally published in the Journal of African Law 32.2 (1988): 182–193.

                                                                                                                      Find this resource:

                                                                                                                      • Kiwanuka, Richard N. “The Meaning of ‘People’ in the African Charter on Human and Peoples’ Rights.” American Journal of International Law 82.1 (1988): 80–101.

                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                        The article provides an insightful examination of the different contexts in which “peoples” could exist in the Banjul Charter. Kiwanuka finds that “people” could mean the population of a political unit not enjoying self-government, an ethnic population, a state, or the population of a state, depending on how peoples’ rights are used.

                                                                                                                        Find this resource:

                                                                                                                        Decisions by Courts and Tribunals

                                                                                                                        The right of self-determination has featured in a number of decisions by national and international courts and tribunals, which are detailed in the following subsections.

                                                                                                                        Aaland (Åland) Islands Reports, 1920 and 1921

                                                                                                                        The Åland Islands are an archipelago of Swedish-speaking islands between Finland and Sweden. Historically part of Finland, they became a source of international concern as a result of the clearly expressed wishes of the islanders to join Sweden after Finnish independence in 1917. The claims of the islanders were examined in reports by two international commissions. The Report by the Commission of Jurists (League of Nations Official Journal, Special Supplement No. 3, October 1920) sought to determine whether the dispute fell entirely within the domestic jurisdiction of Finland. The Report of the Commission of Rapporteurs (League of Nations Document B7 [C] 21/68/106, April 1921) recommended a solution to the League. Both commissions took similar positions with regard to self-determination. Both did not consider it a rule of international law. Both argued that it was contained by state sovereignty, though both also allowed that this position might be altered by continued abuse. Lastly, both considered that self-determination had an essentially functional relationship with minority rights, as different means of achieving justice and development for national groups. Accounts of the Åland Islands decisions can be found in Verzijl 1968 (see Textbooks), Cassese 1995, Crawford 2006, Rigo-Sureda 1973, and Summers 2014 (all cited under General Overviews), and more specifically in Barros 1968 and Padelford and Andersson 1939.

                                                                                                                        • Barros, James. The Åland Islands Question: Its Settlement by the League of Nations. New Haven, CT: Yale University Press, 1968.

                                                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                                                          A comprehensive account of the decisions by the two commissions, including the political and historical context to the dispute.

                                                                                                                          Find this resource:

                                                                                                                          • Padelford, Norman J., and K. Gösta A. Andersson. “The Aaland Islands Question.” American Journal of International Law 33.3 (1939): 465–487.

                                                                                                                            DOI: 10.2307/2190793Save Citation »Export Citation »E-mail Citation »

                                                                                                                            The article examines the reports and considers in detail the surrounding political decisions.

                                                                                                                            Find this resource:

                                                                                                                            International Court of Justice

                                                                                                                            The International Court has examined self-determination in several cases, albeit in quite a restrained fashion. In the Namibia opinion (see Namibia Advisory Opinion, 1971); Western Sahara opinion (see Western Sahara Advisory Opinion, 1975), and East Timor opinion (see East Timor (Portugal v. Australia) 1995), it considered the right in a colonial context. The Western Sahara opinion was the most detailed of these, examining different aspects of the colonial right, especially its relationship with sovereignty. Wall in Occupied Palestinian Territory (see Wall in Occupied Palestinian Territory Advisory Opinion, 2004) concerned the right in a broader context. However, it remained unclear whether Palestine was an extension of a colonial people or a people under occupation outside the colonial context. In the Burkina Faso/Mali opinion (see Frontier Dispute (Burkina Faso/Mali) 1986), the Court briefly but influentially (see Badinter Opinions under Opinions of the Yugoslav Arbitration “Badinter” Commission 1992) took the view that self-determination operated within the borders of African states under the principle of uti possidetis. The Kosovo opinion (see Kosovo Advisory Opinion, 2010), led the Court to the issue of secession, though it consciously but not entirely limited itself to the legal status of unilateral declarations of independence.

                                                                                                                            Namibia Advisory Opinion, 1971

                                                                                                                            The Namibia Advisory Opinion is significant as the first instance where the International Court of Justice recognized the applicability of the principle of self-determination to non-self-governing territories.

                                                                                                                            Western Sahara Advisory Opinion, 1975

                                                                                                                            The International Court of Justice’s Western Sahara Advisory Opinion is the ICJ’s most extensive engagement with the principle of self-determination. The opinion concerned Western Sahara, a Spanish non-self-governing territory claimed by Morocco and Mauritania. Both countries argued that they had historical ties to the colony, which meant that their territorial integrity should prevail over self-determination for Western Sahara. The Court examined the ties that the states had to the territory and found none of them amounted to territorial sovereignty, which might affect the application of self-determination. Judge Dillard also wrote a notable separate opinion, in which he famously said that it was for the people to determine the territory, not the territory the people. The Court found no impediment to the decolonization of Western Sahara, though Morocco subsequently implemented its interpretation of the opinion by invading the territory. Shaw 1978 provides a good account of the case and its context. The case is also examined in detail in Summers 2014 (see General Overviews).

                                                                                                                            Frontier Dispute (Burkina Faso/Mali) 1986

                                                                                                                            The International Court of Justice’s judgment in Case Concerning the Frontier Dispute (Burkina Faso/Mali) did not directly involve self-determination, but the relationship of the right with the principle of uti possidetis, which upholds borders on independence, was considered in the case. This short comment, though, has been extremely influential and would subsequently become central to the reasoning of the Badinter Commission when dealing with the breakup of Yugoslavia. The case is the subject of Naldi 1987.

                                                                                                                            • International Court of Justice. “Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali): Judgment of 22 December 1986.” ICJ Reports (1986): 554–651.

                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                              Self-determination did not play a central role in this case, appearing in a comment of one paragraph on the Organization of African Unity’s policy on uti possidetis. The Court considered that while self-determination appeared to clash with uti possidetis superficially, the principle was interpreted in light of the need of African states to consolidate their independence and avoid fratricidal conflict.

                                                                                                                              Find this resource:

                                                                                                                              • Naldi, Gino J. “The Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali): Uti Possidetis in an African Perspective.” International and Comparative Law Quarterly 36.4 (1987): 893–903.

                                                                                                                                DOI: 10.1093/iclqaj/36.4.893Save Citation »Export Citation »E-mail Citation »

                                                                                                                                This is a short article that examines the implications for self-determination arising from the Burkina Faso/Mali Case. The author looks, in particular, at the relationship between self-determination and territorial integrity and the question of whether it is jus cogens.

                                                                                                                                Find this resource:

                                                                                                                                East Timor (Portugal v. Australia), 1995

                                                                                                                                In 1975, the Portuguese non-self-governing territory of East Timor was invaded and annexed by Indonesia. In 1989, Australia concluded the Timor Gap Treaty with Indonesia, dividing the seabed between East Timor and Australia and the oil resources expected therein. Portugal brought proceedings against Australia in the International Court of Justice for its conclusion of the treaty. The Court, though, found that it did not have jurisdiction to decide on the merits of the case. The Case Concerning East Timor only deals briefly with self-determination, but it is notable for finding it to be erga omnes.

                                                                                                                                • International Court of Justice. “Case Concerning East Timor (Portugal v. Australia): Judgment of 30 June 1995.” ICJ Reports (1995): 90–106.

                                                                                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                                                                                  The case was brought by Portugal against Australia for a treaty concluded with Indonesia dividing the seabed of its former colony, East Timor. The Court, however, found that due to the Monetary Gold Rule it would not exercise jurisdiction without its consent. The case is significant, though, for the Court’s recognition that self-determination was a right erga omnes.

                                                                                                                                  Find this resource:

                                                                                                                                  Wall in Occupied Palestinian Territory Advisory Opinion, 2004

                                                                                                                                  The ICJ’s advisory opinion Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory is significant for its recognition of self-determination beyond the situation of an obvious non-self-governing territory. The Court, though, did not specify exactly what category Palestinian self-determination fell into. Damrosch and Oxman 2005, Gareau 2005, Orakhelashvili 2006, and Scobbie 2005 examine the opinion and its context.

                                                                                                                                  • Damrosch, Lori Fisler, and Bernard H. Oxman, eds. “Agora: ICJ Advisory Opinion on Construction of a Wall in Occupied Palestinian Territory.” American Journal of International Law 99.1 (2005): 1–141.

                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                    This article in the American Journal of International Law brings together commentary on the Wall opinion from a range of international lawyers. Self-determination, however, features in only some of the articles. Notable contributions in this regard are by Geoffrey R. Watson, Michla Pomerance, Richard A. Falk, and Ardi Imseis

                                                                                                                                    Find this resource:

                                                                                                                                    • Gareau, Jean-François. “Shouting at the Wall: Self-Determination and the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory.” Leiden Journal of International Law 18.3 (2005): 489–521.

                                                                                                                                      DOI: 10.1017/S0922156505002840Save Citation »Export Citation »E-mail Citation »

                                                                                                                                      The article is the most extensive one focusing on self-determination in the Wall opinion. Gareau examines the Court’s investigation of an essentially idiosyncratic right of Palestinian self-determination, which draws from the colonial context, but extends into a postcolonial right.

                                                                                                                                      Find this resource:

                                                                                                                                      • International Court of Justice. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion of 9 July 2004.” ICJ Reports (2004): 136–203.

                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                        The advisory opinion concerned the legality of a barrier constructed by Israel in the occupied Palestinian territory of the West Bank. The Court identified the Palestinians as a people entitled to self-determination. This right to self-determination had been violated by de facto annexation and demographic changes. These violations were considered to have erga omnes effects for other states.

                                                                                                                                        Find this resource:

                                                                                                                                        • Orakhelashvili, Alexander. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Opinion and Reaction.” Journal of Conflict and Security Law 11.1 (2006): 119–139.

                                                                                                                                          DOI: 10.1093/jcsl/krl001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                          Orakhelashvili examines self-determination fairly briefly, among a range of legal issues considered in the advisory opinion. He considers the identification of a right of Palestinian self-determination by the Court innovative in applying the principle outside the colonial context.

                                                                                                                                          Find this resource:

                                                                                                                                          • Scobbie, Iain. “Unchart(er)ed Waters? Consequences of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory for the Responsibility of the UN for Palestine.” European Journal of International Law 16.5 (2005): 941–961.

                                                                                                                                            DOI: 10.1093/ejil/chi150Save Citation »Export Citation »E-mail Citation »

                                                                                                                                            The article includes consideration of the legal obligations that might flow from the Court’s recognition of Palestinian self-determination. Scobbie finds such obligations abstract and detached, more an exhortation to action than a duty of precise content.

                                                                                                                                            Find this resource:

                                                                                                                                            Kosovo Advisory Opinion, 2010

                                                                                                                                            The Kosovo Advisory Opinion (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo) concerned the legality of a declaration of independence by Kosovo authorities in 2008. The ICJ limited itself to a narrow interpretation of the question, looking purely at whether the declaration of independence was prohibited, rather than whether there was a positive right to secede, as examined in Reference re Secession of Quebec. The Court found that there was no prohibition on making a unilateral declaration of independence in international law. While the opinion has been criticized for its very limited engagement with international law surrounding secession, written statements and oral proceedings provide a wealth of state practice on the issue. The opinions and its context are examined in Weller 2011, Vidmar 2011, Kohen and Del Mar 2011, Peters 2011, and Summers 2011.

                                                                                                                                            • International Court of Justice. “Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo: Advisory Opinion of 22 July 2010.” ICJ Reports (2010).

                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                              The advisory opinion concerned the legality of a unilateral declaration of independence by authorities in Kosovo in 2008. The ICJ limited itself to a narrow interpretation of the question, looking purely at whether the declaration of independence was prohibited, rather than whether there was a positive right to secede. The Court found that there was no such prohibition.

                                                                                                                                              Find this resource:

                                                                                                                                              • Kohen, Marcelo G., and Katherine Del Mar. “The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of ‘Independence from International Law?’” Leiden Journal of International Law 24.1 (2011): 109–126.

                                                                                                                                                DOI: 10.1017/S0922156510000634Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                This is an article from two members of Serbia’s legal team, who are critical of the Court’s opinion, describing it as “unsettling.” The article focuses on perhaps the most controversial aspect of the opinion: the finding that the authors were not Provisional Institutions of Self-Government in Kosovo, and therefore their actions were not ultra vires under Security Council Resolution 1244. The authors lay out a case why this was incorrect.

                                                                                                                                                Find this resource:

                                                                                                                                                • Peters, Anne. “Does Kosovo Lie in the Lotus-Land of Freedom?” Leiden Journal of International Law 24.1 (2011): 95–108.

                                                                                                                                                  DOI: 10.1017/S0922156510000622Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                  The reference in the title is to the Lotus Principle, by which any action not prohibited in international law is permitted. The author focuses on this issue, which underpins the Court’s findings, endorsing the criticisms made by Judge Simma that this position overlooks the nuances that can exist in terms of influencing international behavior.

                                                                                                                                                  Find this resource:

                                                                                                                                                  • Summers, James, ed. Kosovo: A Precedent? The Declaration of Independence, the Advisory Opinion and Implications for Statehood, Self-Determination and Minority Rights. Leiden, The Netherlands: Martinus Nijhoff, 2011.

                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                    This edited collection covers issues of Kosovo’s declaration of independence, minority rights and self-determination, and Kosovo as a precedent for other regions, in light of the International Court of Justice’s advisory opinion.

                                                                                                                                                    Find this resource:

                                                                                                                                                    • Vidmar, Jure. “The Kosovo Advisory Opinion Scrutinized.” Leiden Journal of International Law 24.2 (2011): 355–383.

                                                                                                                                                      DOI: 10.1017/S0922156511000057Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                      Vidmar engages in a lengthy analysis of the Kosovo Opinion, connecting it to a broader discussion of international law. He argues that the Court’s findings on the neutrality of international law on unilateral declarations of independence would have been strengthened if it had discussed whether such a right existed.

                                                                                                                                                      Find this resource:

                                                                                                                                                      • Weller, Marc. “Modesty Can Be a Virtue: Judicial Economy in the ICJ Kosovo Opinion?” Leiden Journal of International Law 24.1 (2011): 127–147.

                                                                                                                                                        DOI: 10.1017/S0922156510000646Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                        Marc Weller has written extensively on Kosovo, and his article situates the opinion in its wider context. Acknowledging the critical reaction that the opinion provoked in many quarters, he argues that the ICJ exercised judicial economy with a short direct route that, nonetheless, offers important insights on statehood and secession.

                                                                                                                                                        Find this resource:

                                                                                                                                                        Decisions of the Human Rights Committee

                                                                                                                                                        The jurisprudence of the Human Rights Committee on complaints on Article 1 of the International Covenant on Civil and Political Rights under Optional Protocol I concern petitions from individuals who assert that their people have been denied self-determination. The committee has not directly engaged with these claims. In the Mikmaq Tribal Society case (A. D. v. Canada), the committee dismissed the complaint on the grounds that the author had not shown himself to be the authorized representative of his society. However, in Ivan Kitok v. Sweden 1988 the committee considered that an individual could not be the victim of a violation of self-determination on account of the right’s collective nature. In subsequent jurisprudence—in Chief Bernard Ominayak and Lubicon Lake Band v. Canada, E. P., et al. v. Colombia, A. B., et al. v. Italy, and R. L., et al. v. Canada—the committee considered that individuals could not bring petitions under Article 1. In 2000, however, in J. G. A. Diergaardt, et al. v. Namibia, Apirana Mahuika v. New Zealand, and Marie-Hélène Gillot v. France, the Committee allowed indirect consideration of self-determination as an element in the interpretation of rights in Articles 25, 26, and 27. It did not follow this in Ángela Poma v. Peru, though clear elements of self-determination were evident in its examination of Article 27.

                                                                                                                                                        • A. B., et al. v. Italy. Communication No. 413/1990 (1990).

                                                                                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                          This case involved the German-speaking population of South Tyrol, a territory annexed by Italy after World War I. The collective right to self-determination was not the subject of individual petition.

                                                                                                                                                          Find this resource:

                                                                                                                                                          • A. D. v. Canada. Communication No. 78/1980 (1984).

                                                                                                                                                            Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                            This communication included a complaint that the Mikmaq, an indigenous group, had been denied self-determination by the Canadian government. The Human Rights Committee dismissed the claim on the grounds that the author had not shown himself to be the authorized representative of his society.

                                                                                                                                                            Find this resource:

                                                                                                                                                            • Ángela Poma v. Peru. Communication No. 1457/2006 (2009).

                                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                              This complaint was brought under Article 1, though the Committee considered it under Article 27. It contains a significant examination of resources in relation to culture and requirements of environmental assessment, consultation, and consent.

                                                                                                                                                              Find this resource:

                                                                                                                                                              • Apirana Mahuika, et al. v. New Zealand. Communication No. 547/1993 (2000).

                                                                                                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                This complaint from a member of the Maori people of New Zealand continued the role of self-determination in the interpretation of other rights, in this case Article 27.

                                                                                                                                                                Find this resource:

                                                                                                                                                                • Chief Bernard Ominayak and Lubicon Lake Band v. Canada. Communication No. 167/1984 (1990).

                                                                                                                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                  The complaint was brought by the leader of a Canadian indigenous group. However, the committee considered that an individual could not bring a claim for violation of self-determination.

                                                                                                                                                                  Find this resource:

                                                                                                                                                                  • E. P., et al. v. Colombia. Communication No. 318/1988 (1990).

                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                    The communication was brought by members of an English-speaking community living in islands off Colombia. The committee again dismissed the entitlement of individuals to bring a claim for the violation of self-determination.

                                                                                                                                                                    Find this resource:

                                                                                                                                                                    • Ivan Kitok v. Sweden. Communication No. 197/1985 (1988).

                                                                                                                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                      The case concerned a Sami who claimed the right to farm reindeer. The committee observed that the individual could not claim to be the victim of a violation of self-determination, a collective right.

                                                                                                                                                                      Find this resource:

                                                                                                                                                                      • J. G. A. Diergaardt, et al. v. Namibia. Communication No. 760/1997 (2000).

                                                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                        This communication by a member of a Namibian minority community saw a limited engagement with self-determination in Article 1 as a right that may be relevant in the interpretation of individual rights in the International Covenant on Civil and Political Rights, specifically, Article 25 (right to vote and political participation), Article 26 (equality before the law) and Article 27 (rights of persons belonging to minorities).

                                                                                                                                                                        Find this resource:

                                                                                                                                                                        • Marie-Hélène Gillot v. France. Communication No. 932/2000 (2002).

                                                                                                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                          This case involving residents of New Caledonia saw self-determination used in the interpretation of Article 25.

                                                                                                                                                                          Find this resource:

                                                                                                                                                                          • R. L., et al. v. Canada. Communication No. 358/1989 (1991).

                                                                                                                                                                            Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                            In this complaint by the Whispering Pines Indian Band, a Canadian indigenous group, self-determination again was not subject to individual petition.

                                                                                                                                                                            Find this resource:

                                                                                                                                                                            Decisions of the African Commission on Human and Peoples’ Rights

                                                                                                                                                                            Katangese Peoples’ Congress v. Zaire in 1995 was a complaint brought against Zaire (now Democratic Republic of Congo) under the African Convention on Human and Peoples’ Rights. The commission took a similar position to other bodies and held that self-determination had to be consistent with the sovereignty and territorial integrity of states. In Kevin Mgwanga Gunme v. Cameroon, COHRE v. Sudan, and “Endorois” v. Kenya, all in 2009, the Commission identified a people for the purposes of self-determination, taking a position on a long-standing area of ambiguity in the Banjul Charter. However, it can be noted that despite identifying peoples, the Commission did not actually determine that any of them had suffered a violation of self-determination. The decisions are examined in Summers 2014 (cited under General Overviews) and Shelton 2011.

                                                                                                                                                                            • African Commission on Human and People’s Rights. Katangese Peoples’ Congress v. Zaire, Communication No. 75/92, 1995.

                                                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                              The African Commission on Human and Peoples’ Rights rejected the applicant’s claim for a right to independence. Self-determination could be exercised in different ways, but it had to be consistent with the sovereignty and territorial integrity of states. It also found no evidence or denial of participation in government or human rights violations to call territorial integrity into question.

                                                                                                                                                                              Find this resource:

                                                                                                                                                                              • African Commission on Human and People’s Rights. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on Behalf of Endorois Welfare Council v. Kenya 2009, Communication No. 276/2003, 2009a.

                                                                                                                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                The African Commission’s decision on the Endorois did not involve self-determination in the African Charter. However, it did identify the Endorois as a people, who are also indigenous, and whose rights can be seen though the context of indigenous rights. It found violations of the Endorois people’s rights to dispose of their wealth and resources and to development.

                                                                                                                                                                                Find this resource:

                                                                                                                                                                                • African Commission on Human and People’s Rights. Kevin Mgwanga Gunme et al v. Cameroon 2009, Communication No. 266/2003, 2009b.

                                                                                                                                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                  The Commission established that the anglophone community in the southern Cameroons were a people. In determining this, it drew particular attention to the UNESCO Expert Report (see Peoples). It also linked the exercise of self-determination to massive human rights violations, oppression, and domination. However, it did not find a breach of self-determination, despite a range of individual human rights violations.

                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                  • African Commission on Human and People’s Rights. Sudan Human Rights Organisation (SHRO)/Centre on Housing Rights and Evictions (COHRE) v. Sudan 2009, Communication No. 279/03, 2009c.

                                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                    The COHRE v. Sudan case did not specifically refer to self-determination within the Banjul Charter. Nonetheless, it is particularly significant because the Commission not only identified a racially-defined Darfur people but also found it to be subjected to domination by a people of another race within a state.

                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                    • Shelton, Dinah. “Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon.” American Journal of International Law 105.1 (2011): 60–81.

                                                                                                                                                                                      DOI: 10.5305/amerjintelaw.105.1.0060Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                      Shelton looks at the Kevin Mgwanga Gunme, COHRE v. Sudan, and Endorois cases as part of a wider context, which includes the Kosovo Advisory Opinion and inter-American human rights decisions.

                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                      Opinions of the Yugoslav Arbitration “Badinter” Commission 1992

                                                                                                                                                                                      The Arbitration Commission of the Conference on Yugoslavia, or Badinter Commission, after its chairman Robert Badinter, was a consultative body established by the European Community, with the aim of delivering nonbinding opinions on legal aspects of the breakup of Yugoslavia. It delivered fifteen opinions altogether, covering legal aspects of the collapse of Yugoslavia, (characterized as the dissolution of a federal state), as well as recommendations on the recognition of new states that emerged from it. A key element in the recognition of new states was the principle of self-determination and its relationship with uti possidetis, which was found to uphold the borders of the Yugoslav republics. The commission’s opinions have generated considerable discussion within the academic literature. In the works cited in this section, Pellet 1992 and Shaw 1997 are more positive, while Craven 1995 and Ratner 1996 are more critical. Criticism has focused on whether many of their legal conclusions can be justified in international law, including the extension of uti possidetis from the colonial context, the extraction of an individual right to nationality from self-determination, and the application of a peremptory status to minority rights.

                                                                                                                                                                                      • “Arbitration Commission of the Conference on Yugoslavia, Opinions No. 1, 2, and 3.” International Legal Materials 31 (1992): 1494–1500.

                                                                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                        Opinion No. 2 considered the application of self-determination in the dissolution of Yugoslavia, though it needs to be read with Opinions 1 and 3, which develop the legal principles in which the right operates. The commission found that self-determination must not involve changes to existing frontiers at the time of independence, under the principle of uti possidetis.

                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                        • Craven, Matthew C. R. “The European Community Arbitration Commission on Yugoslavia.” British Yearbook of International Law 66 (1995): 333–413.

                                                                                                                                                                                          DOI: 10.1093/bybil/66.1.333Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                          This is a lengthy, detailed article covering the formation and composition of the Badinter Commission and its opinions in relation to state recognition and self-determination, among other issues. Craven considers that the commission’s use of uti possidetis, as derived from the Frontier Dispute (Burkina Faso/Mali) case, was a novel and expansive use of the principle. The International Court had previously referred to it in the context of decolonization.

                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                          • Pellet, Alain. “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples.” European Journal of International Law 3 (1992): 178–185.

                                                                                                                                                                                            DOI: 10.1093/oxfordjournals.ejil.a035802Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                            A short article on self-determination in the Badinter opinions, but widely cited. The article provides a concise overview on self-determination, as handled by the Badinter Commission. Pellet considers that the commission has given self-determination a second breath by moving it from the colonial context and breaking down the distinction between people and minority.

                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                            • Ratner, Steven R. “Drawing a Better Line: Uti possidetis and the Borders of New States.” American Journal of International Law 90.4 (1996): 590–624.

                                                                                                                                                                                              DOI: 10.2307/2203988Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                              Ratner’s article is a broad and highly informative study of uti possidetis, tracing its history and development and the functions of borders. Ratner gives a good context for his consideration of the Badinter opinions. He believes the commission erred in applying uti possidetis as a universal principle from the Frontier Dispute (Burkina Faso/Mali) case.

                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                              • Shaw, Malcolm N. “Peoples, Territorialism and Boundaries.” European Journal of International Law 8.3 (1997): 478–507.

                                                                                                                                                                                                DOI: 10.1093/oxfordjournals.ejil.a015594Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                Shaw’s article is broad examination of self-determination and principles relating to boundaries. In this wider context, it also looks at the Badinter decisions, with Shaw taking a more positive line than Ratner, and arguing that the commission correctly derived from Burkina Faso/Mali a wider principle of uti possidetis not merely restricted to decolonization.

                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                Tatarstan 1993 and Chechnya 1995

                                                                                                                                                                                                The Tatarstan case and the Chechnya case are two cases by the First and Second Russian Constitutional courts, respectively, concerning self-determination. Both cases considered that the right of self-determination was restricted in international law by the principle of territorial integrity. The cases are analyzed in Suksi 1997 and Summers 2014 (cited under General Overviews).

                                                                                                                                                                                                • “The Chechnya Case.” Statutes and Decisions: The Laws of the USSR and Its Successor States 31.5 (1995): 48–94.

                                                                                                                                                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                  This case by the Second Russian Constitutional Court involved the constitutionality of Russian presidential edicts issued in the First Chechen War, though self-determination was a central issue in the case. The Court found that self-determination was restricted by the principle of territorial integrity.

                                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                                  • Suksi, Markku. “On Mechanisms of Decision-Making in the Creation (and the Re-creation) of States—With Special Reference to the Relationship between the Right to Self-Determination, Sovereignty of the People, and the Pouvoir Constituant.” Tidsskrift for Rettsvitenskap 110 (1997): 426–459.

                                                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                    The article includes an analysis of the Tatarstan case. Suksi considers that the Court restricted Tatarstan’s self-determination through international law, and also notes the wider context of the political struggle between Tatar and Russian authorities.

                                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                                    • Zor’kin, V., and Iu. Rudkin, “The Tatarstan Case.” Statutes and Decisions: The Laws of the USSR and Its Successor States 30.3 (1994): 32–44.

                                                                                                                                                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                      This case by the First Russian Constitutional Court concerned the constitutionality of a declaration of state sovereignty by the Republic of Tatarstan and a referendum on independence. It found self-determination was restricted in international law by territorial integrity and respect for human rights.

                                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                                      Reference re Secession of Quebec, 1997

                                                                                                                                                                                                      The Canadian Supreme Court’s decision in Reference re Secession of Quebec is probably the most extensive case on self-determination beyond the colonial context. The reference concerned a request by the Governor in Council on the legal situation in the event of a secession attempt by the French-speaking Canadian province of Quebec. The case differs from the ICJ’s advisory opinion on Kosovo in 2010 in that it concerned whether a positive right to secede existed for Quebec, rather than negative restrictions on declaring independence. The Court considered that international law expected that self-determination was exercised consistently with the territorial integrity of states. The case is examined in Bayefsky 2000, Oliver 1999, and Haljan 1999.

                                                                                                                                                                                                      • Bayefsky, Anne F. Self-Determination in International Law: Quebec and Lessons Learned. The Hague: Kluwer, 2000.

                                                                                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                        Bayefsky provides a short introduction to this edited collection outlining the right of self-determination and context of the case. However, the main contents are the expert opinions from James Crawford, Luzius Wildhaber, George Abi-Saab, Thomas Franck, Allain Pellet, Malcolm Shaw, Christine Chinkin, Rosalyn Higgins, and Christian Tomuschat.

                                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                                        • Haljan, David P. “A Constitutional Duty to Negotiate Amendments: Reference Re Secession of Quebec.” International and Comparative Law Quarterly 48.2 (1999): 447–457.

                                                                                                                                                                                                          DOI: 10.1017/S0020589300063296Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                          The article is a short but effective critical analysis of the Quebec case. Haljan takes issue, in particular, with the Court’s findings on a duty to negotiate and the historical principles underpinning the Canadian constitution.

                                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                                          • Oliver, Peter. “Canada’s Two Solitudes: Constitutional and International Law in Reference re Secession of Quebec.” International Journal on Minority and Group Rights 6.1–2 (1999): 65–95.

                                                                                                                                                                                                            DOI: 10.1163/15718119920907640Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                            The article examines the Supreme Court’s decision, and also considers the political and constitutional background to the case.

                                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                                            • Reference re Secession of Quebec.” 2 S.C.R. 217 (1998). Dominion Law Reports, 4th ser. 161 (1998): 386–449.

                                                                                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                              The Canadian Supreme Court considered that self-determination had to be consistent with the territorial integrity of states. The right was normally exercised internally. External self-determination arose only in situations of colonial or alien domination, or, the Supreme Court tentatively noted, if a people within a state had been denied internal self-determination. Quebec did not fall into those situations.

                                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                                              Legal Status

                                                                                                                                                                                                              The legal status of self-determination encompasses three questions: whether self-determination is a principle or a right, whether it is jus cogens, and whether it is erga omnes. The first involves whether self-determination has the status of a principle or a right. As concepts, principles are generally seen to be flexible and relational. A principle may have some core content, but its effect will depend on the context in which it is applied and its relationship with other principles. A right carries moral weight and is held by a subject, in this case a people, and exercised against an object, in this case the state. In fact, self-determination is usually referred to as both, somewhat interchangeably. If self-determination is seen as a right, it is generally recognized to operate within a matrix of principles, such as sovereignty and territorial integrity. References to self-determination as a principle and a right can be found, in particular, in Cassese 1995 and Summers 2014 (both cited under General Overviews). The significance of self-determination as a principle is examined in Knop 2002 (cited under Conceptual Approaches). The second issue is whether self-determination is jus cogens, a peremptory or higher norm of international law that overrides normal legal rules and renders conflicting treaties void. There is some debate on this point in the literature—see, for example, the view of Cassese 1995 (cited under General Overviews), on the one hand, and Pomerance 1982 (cited under Conceptual Approaches) and Summers 2014 (cited under General Overviews), on the other. Three specific studies (Hannikainen 1988, Gros Espiell 1980, and International Law Commission 2001) support self-determination as jus cogens. Third is the question of whether self-determination is erga omnes, an obligation held toward the international community as a whole, in which every state can claim a legal interest. Its status as erga omnes was supported by the International Court of Justice in the East Timor (Portugal v. Australia), 1995 and Wall in Occupied Palestinian Territory decisions.

                                                                                                                                                                                                              • Gros Espiell, Héctor. The Right to Self-Determination: Implementation of United Nations Resolutions. UN Doc. E/CN.4/Sub.2/405/Rev.1. New York: United Nations, 1980.

                                                                                                                                                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                The UN special rapporteur’s report examines the legal status of the right of peoples under colonial and alien domination to self-determination. He also considers this right a peremptory norm.

                                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                                • Hannikainen, Lauri. Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status. Helsinki: Finnish Lawyers’ Publishing, 1988.

                                                                                                                                                                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                  Hannikainen devotes a chapter in his book on peremptory norms to self-determination, and argues for its jus cogens status.

                                                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                                                  • International Law Commission. Commentary on Article 26, Compliance with Peremptory Norms of the Draft Articles on Responsibility of States for Internationally Wrongful Acts: Report of the International Law Commission on the Work of Its Fifty-Third Session (23 April-1 June and 2 July-10 August 2001). New York: International Law Commission, 2001.

                                                                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                    The International Law Commission’s commentary on Article 26 of the Articles on the Responsibility of States for Internationally Wrongful Acts identifies self-determination as jus cogens, though its authority (East Timor) appears to conflate the concept with erga omnes.

                                                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                                                    Peoples

                                                                                                                                                                                                                    The concept of “people” in international law is famously undefined, though it is considered related to the equally ambiguous concept of “nation.” The issue of the definition of peoples is dealt with throughout the literature. Nonetheless, two works may be of interest. The first is United Nations Educational, Scientific and Cultural Organization (UNESCO)1989, which includes a description of a “people.” It refrains from considering this as a definition, but it is as good as any and comes from an authoritative source. The second is Zernatto 1944, a short article outlining the history of the word “nation” that provides some useful context. In the absence of any particular definition, the groups entitled to self-determination (or not) may be organized into three categories (bearing in mind the criticism of categories expressed in Knop 2002 (see Conceptual Approaches): colonial peoples, peoples under foreign domination or occupation, and minorities within states. A fourth category, the populations of states, is present in the literature without a specific focus on it.

                                                                                                                                                                                                                    Colonial Trusteeship

                                                                                                                                                                                                                    This category refers primarily to the populations of non-self-governing territories under Chapter XI of the UN Charter, and trust territories under Chapter XII. It may also include mandate territories under Article 22 of the League of Nations Covenant 1919, which encompassed Namibia. The literature here can be divided into works on the mandate, non-self-governing, and trust systems themselves, and on the subsequent development of self-determination around that framework. The mandate system of the League of Nations and the trust and non-self-governing territory systems of the UN are systems of colonial rule, which legitimize foreign administration under the principle of trusteeship or the sacred trust. Three works may be of interest here: Smuts 1928 is a proposal for a mandate system, revealing the mentality behind this form of government. Hall 1948 and Toussaint 1956 are both book-length studies.

                                                                                                                                                                                                                    • Hall, H. Duncan. Mandates, Dependencies and Trusteeship. London: Stevens, 1948.

                                                                                                                                                                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                      This book looks at the origins and development of the mandate and trusteeship systems.

                                                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                                                      • Smuts, J. C. “The League of Nations: A Practical Suggestion.” In The Drafting of the Covenant. Vol. 2. Edited by David Hunter Miller, 23–60. New York: G. P. Putnam’s, 1928.

                                                                                                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                        Although he was drawing on earlier ideas, South African leader Jan Christian Smuts can be seen as one of the leading proponents behind the mandate system. Here he lays out the idea of mandates, revealing his own colonial mentality.

                                                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                                                        • Toussaint, Charmian Edwards. The Trusteeship System of the United Nations. New York: Praeger, 1956.

                                                                                                                                                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                          The book traces the development of the trusteeship system from mandates, and the notion of accountability.

                                                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                                                          Colonial Self-Determination

                                                                                                                                                                                                                          Literature on colonial self-determination can be divided into two types: general works on the legal principles surrounding this area of law and works on particular colonial territories. The classic general work on the decolonization is Rupert’s Emerson’s From Empire to Nation (Emerson 1960), though this covers only part of that process. The principles and context of decolonization are also considered in Johnson 1967, Blay 1986, Jacobson 1967, and Franck and Hoffman 1975. The main cases on colonial self-determination are Western Sahara Advisory Opinion, 1975 and Namibia Advisory Opinion, 1971, though neither provides solid guidance on problem cases of where self-determination is in dispute.

                                                                                                                                                                                                                          • Blay, S. K. N. “Self-Determination versus Territorial Integrity in Decolonization.” New York University Journal of International Law and Politics 18 (1986): 441–472.

                                                                                                                                                                                                                            Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                            The article considers the relationship between self-determination and territorial integrity: first, in the context of the interpretation of Principle 6 of the Declaration on Colonial Independence; and, second, looking at practice in a variety of disputed and problematic cases, including West Iran, East Timor, Belize, Western Sahara, and Gibraltar.

                                                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                                                            • Emerson, Rupert. From Empire to Nation: The Rise to Self-Assertion of Asian and African Peoples. Cambridge, MA: Harvard University Press, 1960.

                                                                                                                                                                                                                              DOI: 10.4159/harvard.9780674333154Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                              Emerson analyzes decolonization from a Westernization theory for anticolonial nationalism, in which the leadership, at least, came from a Westernized elite. Emerson further develops his ideas in Self-Determination Revisited in the Era of Decolonization (Harvard University Center for International Affairs, Occasional Papers in International Affairs, No. 9, 1964). In this volume he focuses on self-determination’s failure in the new states.

                                                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                                                              • Franck, Thomas M., and Paul Hoffman. “The Right of Self-Determination in Very Small Places.” New York University Journal of International Law and Politics 8 (1975): 331–386.

                                                                                                                                                                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                The article examines inconsistencies in the application of self-determination in small colonial territories. The very small places in question are Western Sahara, East Timor, Djibouti, Belize, Gibraltar, and the Falkland Islands.

                                                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                                                • Jacobson, Harold Karan. “The United Nations and Colonialism: A Tentative Appraisal.” International Organization 16.1 (1967): 37–56.

                                                                                                                                                                                                                                  DOI: 10.1017/S0020818300010808Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                  The article gives a good account of the position and ideology of states in the UN during the decolonization process.

                                                                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                                                                  • Johnson, Harold S. Self-Determination within the Community of Nations. Leiden, The Netherlands: A. W. Sijthoff, 1967.

                                                                                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                    The book provides an analysis of self-determination in the context of decolonization, with particular focus on the plebiscite as a means for exercising the right.

                                                                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                                                                    Specific Territories

                                                                                                                                                                                                                                    The general principles of colonial self-determination may also be seen in the context of particular territories. Here is a selection of the literature in this area detailing some problematic issues of decolonization. Each one covers a territory where self-determination was or is in dispute: Goa (Wright 1962), Western Sahara (Franck 1976 and Dawidowicz 2013), Belize (Maguire 1982), Walvis Bay (Berat 1990), Gibraltar (Fawcett 1967), the Falkland Islands (Malvinas) (Sanchez 1983, Franck 1983), and East Timor (Clark 1980).

                                                                                                                                                                                                                                    • Berat, Lynn. Walvis Bay: Decolonization and International Law. New Haven, CT: Yale University Press, 1990.

                                                                                                                                                                                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                      The book is an examination of the legal issues surrounding Walvis Bay. The author outlines the historical background to the territory, but the main focus is on the legal basis for South Africa’s title, which Berat rejects.

                                                                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                                                                      • Clark, Roger S. “The ‘Decolonization’ of East Timor and the United Nations Norms on Self-Determination and Aggression.” Yale Journal of World Public Order 7.1 (1980): 2–44.

                                                                                                                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                        Examines the Indonesian invasion of East Timor from perspectives of competing principles of self-determination and territorial integrity, and also addresses Indonesian arguments justifying its intervention.

                                                                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                                                                        • Dawidowicz, Martin. “Trading Fish or Human Rights in Western Sahara? Self-Determination, Non-Recognition and the EC-Morocco Fisheries Agreement.” In Statehood and Self-Determination. Edited by Duncan French, 250–276. Cambridge, UK: Cambridge University Press, 2013.

                                                                                                                                                                                                                                          DOI: 10.1017/CBO9781139248952.015Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                          Dawidowicz considers the position of Western Sahara after its occupation by Morocco, with particular emphasis on the control of resources and non-recognition.

                                                                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                                                                          • Fawcett, J. E. S. “Gibraltar: The Legal Issues.” International Affairs 43.2 (1967): 236–251.

                                                                                                                                                                                                                                            DOI: 10.2307/2614324Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                            The article is somewhat dated but still an effective analysis of a legal issue that has not changed much over several decades.

                                                                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                                                                            • Franck, Thomas M. “The Stealing of the Sahara.” American Journal of International Law 70.4 (1976): 694–721.

                                                                                                                                                                                                                                              DOI: 10.2307/2200382Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                              Franck uses a potent example to highlight inconsistencies in decolonization. The article describes the UN practice surrounding the decolonization of Western Sahara, briefly covering the ICJ’s advisory opinion (see Western Sahara Advisory Opinion, 1975). It also highlights the ineffectual international response and the complicity of some states in the Moroccan invasion of the territory that followed that opinion.

                                                                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                                                                              • Franck, Thomas M. “Dulce et Decorum Est: The Strategic Role of Legal Principles in the Falklands War.” American Journal of International Law 77.1 (1983): 109–124.

                                                                                                                                                                                                                                                DOI: 10.2307/2201200Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                Franck comments on international attitudes to the Falkland Islands in the wake of the Falklands War of 1982.

                                                                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                                                                • Maguire, Robert J. “The Decolonization of Belize: Self-Determination v. Territorial Integrity.” Virginia Journal of International Law 22 (1982): 849–879.

                                                                                                                                                                                                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                  The article examines self-determination in the context of Belize, a British non-self-governing territory claimed by Guatemala. It also considers the legal status of the right in light of the principle of territorial integrity.

                                                                                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                                                                                  • Sanchez, Miguel Antonio. “Self-Determination and the Falkland Islands Dispute.” Columbia Journal of Transnational Law 21.3 (1983): 557–584.

                                                                                                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                    Examines the Falkland Islands in light of the competing principles of self-determination and territorial integrity. Sanchez also compares the islands with Gibraltar, Western Sahara, and Belize to understand UN practice.

                                                                                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                                                                                    • Wright, Quincy. “The Goa Incident.” American Journal of International Law 56.3 (1962): 617–632.

                                                                                                                                                                                                                                                      DOI: 10.2307/2196501Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                      The article provides the context and the legal arguments surrounding India’s 1961 invasion of the Portuguese colony of Goa.

                                                                                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                                                                                      Peoples under Foreign Domination or Occupation

                                                                                                                                                                                                                                                      Peoples under foreign domination or occupation is an ambiguous concept. Such peoples are outside the UN-defined colonial context, but in an analogous situation. Unlike the non-self-governing territory and General Assembly Resolution 1541 (XV), no criteria exist for identifying such situations. Nonetheless, the right of such peoples has been recognized by the ICJ in the Kosovo Advisory Opinion, 2010 and by the Canadian Supreme Court in Reference re Secession of Quebec, 1997. The designation has been seen to include the concept of “racist regimes” applied to Southern Rhodesia and South Africa. It may also include states that have been occupied. However, the principal population falling into this category appears to be Palestinians. References to peoples under foreign domination or occupation are spread across the literature. There is no specific book or article on the concept as such, but a number of works on Palestinian self-determination are listed here: Bowen 1997, Watson 2000, and Cassese 1993 concern the context around the Oslo Accords, while Becker 1998, Radley 1978, and Cattan 1973 are more general.

                                                                                                                                                                                                                                                      • Becker, Tal. “Self-Determination in Perspective: Palestinian Claims to Statehood and the Relativity of the Right to Self-Determination.” Israel Law Review 32 (1998): 301–354.

                                                                                                                                                                                                                                                        DOI: 10.1017/S0021223700015673Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                        The article is a lengthy and engaging article on self-determination, with an emphasis on the Palestinian context. Becker examines the general development of the right of self-determination, and then looks at Palestinian right of self-determination, concluding that it is a sui generis concept and a relative right, which exists alongside Jewish self-determination.

                                                                                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                                                                                        • Bowen, Stephen, ed. Human Rights, Self-Determination and Political Change in the Occupied Palestinian Territories. The Hague: Martinus Nijhoff, 1997.

                                                                                                                                                                                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                          This edited collection covers a variety of self-determination and human rights issues in relation to the occupied Palestinian territories, including the Oslo Framework, self-determination, the right’s relationship to women, and population transfers.

                                                                                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                                                                                          • Cassese, Antonio. “The Israel-PLO Agreement and Self-Determination.” European Journal of International Law 4.4 (1993): 564–571.

                                                                                                                                                                                                                                                            DOI: 10.1093/oxfordjournals.ejil.a035846Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                            A concise summary of the Israel-PLO Agreement, with the Declaration on Principles for Interim Self-Government annexed.

                                                                                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                                                                                            • Cattan, Henry. Palestine and International Law: The Legal Aspects of the Arab-Israeli Conflict. London: Longman, 1973.

                                                                                                                                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                              Somewhat dated, but, nonetheless, a good examination of the history and law of the Palestinian conflict, albeit from a stated pro-Palestinian position.

                                                                                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                                                                                              • Radley, Kurt René. “The Palestinian Refugees: The Right to Return in International Law.” American Journal of International Law 72.3 (1978): 586–614.

                                                                                                                                                                                                                                                                DOI: 10.2307/2200460Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                Recounts the history of Palestinian refugees from the British withdrawal and creation of Israel. Radley examines the position of displaced Arabs in relation to the Geneva Conventions, and considers General Assembly resolutions on refugees, self-determination, and a Palestinian people.

                                                                                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                                                                                • Watson, Geoffrey R. The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements. Oxford: Oxford University Press, 2000.

                                                                                                                                                                                                                                                                  DOI: 10.1093/acprof:oso/9780198298915.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                  The Oslo Accords, though now defunct, provide the framework for Palestinian self-government, and thus for the institutions through which self-determination will most likely be exercised. This monograph provides an effective examination of these accords, as well as outlining the historical and legal background to them.

                                                                                                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                                                                                                  Minorities within States

                                                                                                                                                                                                                                                                  The question of whether minorities within states constitute peoples with a right of self-determination is a matter of some debate among states. Nonetheless, if minorities do have the right, it could be exercised through state structures, possibly involving autonomy, or it could involve independence from that state. This distinction is often characterized as the internal and external aspects of self-determination. This section will first look at the literature on this distinction, then on self-determination within state structures, and then secession.

                                                                                                                                                                                                                                                                  Internal and External Self-Determination

                                                                                                                                                                                                                                                                  The distinction between internal and external self-determination is generally considered to refer to forms of self-determination exercised within the political structures of a state, and those that lead to secession, respectively. References to internal and external aspects of self-determination are widespread in the literature, though often quite brief. There is little specialist literature on the distinction. The most extensive analysis of international law from this perspective is Cassese 1995 (see General Overviews). The most authoritative explanation of the concept can be found in the Canadian Supreme Court’s decision in Reference re Secession of Quebec, 1997. Nonetheless, three specific chapters on internal and external self-determination can be found in Tomuschat’s edited collection, Modern Law of Self-Determination (Tomuschat 1993).

                                                                                                                                                                                                                                                                  • Tomuschat, Christian, ed. Modern Law of Self-Determination. Dordrecht, The Netherlands: Martinus Nijhoff, 1993.

                                                                                                                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                    See the chapters “Internal Self-Determination” (pp. 225–251), by Allan Rosas; “Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?” (pp. 253–282), by Jean Salmon; and “The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism” (pp. 101–138), by Patrick Thornberry.

                                                                                                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                                                                                                    Self-Determination within a State

                                                                                                                                                                                                                                                                    One form that self-determination could take within a state is autonomy. There are a number of works discussing the idea of a right to autonomy, though support for autonomy as an international legal right seems to be limited. Autonomy generally is seen as a tool for achieving other rights. Hannum 1996 is the most significant monograph in this area. Edited collections such as Skurbaty 2005, Suksi 1998, and Weller and Metzger 2008 bring together different perspectives on this issue.

                                                                                                                                                                                                                                                                    • Hannum, Hurst. Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights. Rev. ed. Philadelphia: University of Pennsylvania Press, 1996.

                                                                                                                                                                                                                                                                      Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                      This is a highly regarded work addressing autonomy, though it is a bit dated. Hannum looks at autonomy first from its legal sources in self-determination, minority rights, indigenous rights, and human rights. He then considers its practical application. Autonomy, he concludes, is a tool for ensuring the protection of other rights and lies at the end of a progression of those rights.

                                                                                                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                                                                                                      • Skurbaty, Zelim A., ed. Beyond a One-Dimensional State: An Emerging Right to Autonomy? Leiden, The Netherlands: Martinus Nijhoff, 2005.

                                                                                                                                                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                        This edited work is a wide-ranging study of an emerging right to autonomy, though the book as a whole casts doubt on whether such a right exists as part of positive international law. Autonomy is examined from legal, economic, and theoretical perspectives, and in case studies, which mostly focus on European arrangements but that also cover Eritrea and South Asia.

                                                                                                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                                                                                                        • Suksi, Markku, ed. Autonomy: Applications and Implications. The Hague: Kluwer, 1998.

                                                                                                                                                                                                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                          This collection examines autonomy in international and constitutional law. Autonomy is analyzed conceptually and from the perspectives of self-determination, minority rights, and indigenous rights. Case studies focus on Italy, Britain, and Spain, as well as European institutions: the Organization for Security and Co-operation in Europe (OSCE), Council of Europe, and the European Union.

                                                                                                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                                                                                                          • Weller, Marc, and Barbara Metzger, eds. Settling Self-Determination Disputes. Leiden, The Netherlands: Martinus Nijhoff, 2008.

                                                                                                                                                                                                                                                                            DOI: 10.1163/ej.9789004164826.i-794Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                            This is an extensive edited collection that examines the theory of complex power-sharing. It also looks at the practice, with case studies from the former Soviet Union and Yugoslavia, as well as Northern Ireland, Mindanao, and Bougainville. The authors engage with the structures of power-sharing and control of functions, such as education, policing, and security.

                                                                                                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                                                                                                            Secession

                                                                                                                                                                                                                                                                            Secession is the separation and independence of a piece of territory from a state, which continues in a rump form. New states may also be formed by the dissolution of a state. There is an extensive literature on secession, including general works as well as studies of particular countries and regions. The literature here is divided into sections on general works on secession and literature on particular situations. The position of international law on secession has been examined in Reference re Secession of Quebec, 1997, the Tatarstan and Chechnya cases (see Tatarstan 1993 and Chechnya 1995), Katangese Peoples’ Congress v. Zaire (see Decisions of the African Commission on Human and Peoples’ Rights), and Kosovo Advisory Opinion, 2010. These cases support the conclusion that there is no general right to secession in international law. The literature here can be divided into general studies on secession in international law and specific studies of secession in particular territories. General works on secession are often concerned with the relationship between minority groups and states and the conditions under which secession may become possible under international law, or at least legitimate as a remedial measure. These works include Committee on the Elimination of Racial Discrimination 1996, Buccheit 1978, Heraclides 1991, Raič 2002, Buchanan 2003, Kohen 2006, Moore 1998, and Macedo and Buchanan 2003.

                                                                                                                                                                                                                                                                            • Buccheit, Lee C. Secession: The Legitimacy of Self-Determination. New Haven, CT: Yale University Press, 1978.

                                                                                                                                                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                              A good monograph on secession, which first examines the concept and history of secession and then looks at case studies, including Katanga, Biafra, the Kurds, Somalia, the Nagas, and Bangladesh. The book’s basic contention is that acceptance of secessionist entities depends on their legitimacy.

                                                                                                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                                                                                                              • Buchanan, Allen E. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. Oxford: Oxford University Press, 2003.

                                                                                                                                                                                                                                                                                DOI: 10.1093/0198295359.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                Buchanan expands on his earlier work on secession toward a broader examination of the moral foundations of international law. The author argues for a principled human-rights-based approach to the problems of secession and considers such a right as a remedy only of last resort.

                                                                                                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                                                                                                • Committee on the Elimination of Racial Discrimination. General Recommendation 21: The Right to Self-Determination (48th session, 1996). U.N. Doc. A/51/18, annex VIII at 125 (1996).

                                                                                                                                                                                                                                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                  The committee (CERD) approaches the issue of secession from the perspective of clarifying the position for ethnic or religious groups on this “alleged” right. It rejects a right to secession, but still recognizes an interplay of internal and external self-determination and discrimination.

                                                                                                                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                                                                                                                  • Heraclides, Alexis. The Self-Determination of Minorities in International Politics. London: Frank Cass, 1991.

                                                                                                                                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                    This effective account looks at the political considerations behind the success or failure of particular secessionist movements. It includes case studies of Katanga, Biafra, Bangladesh, Moro, and Eritrea.

                                                                                                                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                                                                                                                    • Kohen, Marcelo G., ed. Secession: International Law Perspectives. Cambridge, UK: Cambridge University Press, 2006.

                                                                                                                                                                                                                                                                                      DOI: 10.1017/CBO9780511494215Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                      This edited work examines secession from a variety of perspectives and in regional contexts. It has been influential, with chapters from the collection often cited in proceedings before the ICJ in the Kosovo Advisory Opinion, 2010.

                                                                                                                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                                                                                                                      • Macedo, Stephen, and Allen E. Buchanan, eds. Secession and Self-Determination. New York: New York University Press, 2003.

                                                                                                                                                                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                        This edited collection provides contrasting perspectives from lawyers and political scientists on a right to secede.

                                                                                                                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                                                                                                                        • Moore, Margaret, ed. National Self-Determination and Secession. Oxford: Oxford University Press, 1998.

                                                                                                                                                                                                                                                                                          DOI: 10.1093/0198293844.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                          This edited collection looks at secession from a largely theoretical perspective, examining self-determination’s relationship with the underlying doctrines of liberalism and nationalism.

                                                                                                                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                                                                                                                          • Raič, David. Statehood and the Law of Self-determination. The Hague: Kluwer, 2002.

                                                                                                                                                                                                                                                                                            Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                            The work develops the hand-in-glove relationship between states and self-determination, drawing together a theory of secession based on the relationship between statehood, recognition of statehood, and the right of self-determination. Raič tests secessionist movements by the criteria for statehood, and by their merits under the right of self-determination, adopting a qualified secession doctrine that fits within ideas of remedial secession.

                                                                                                                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                                                                                                                            • Van den Driest, Simone F. Remedial Secession: A Right to External Self-Determination as a Remedy to Serious Injustices? Cambridge, UK: Intersentia, 2013.

                                                                                                                                                                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                              This monograph focusses on the notion of remedial secession, addressing the significant cases and relevant practice that might point to such a right. The author finds “traces” of remedial secession but does not consider it established as a right in customary international law.

                                                                                                                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                                                                                                                              Specific Territories

                                                                                                                                                                                                                                                                                              There is an extensive range of works covering specific self-determination and secessionist struggles within states. Below is a mere selection of such work covering some key state breakups or attempted secessions: in Africa (Kaladharan Nayar 1975 and Bereketeab 2015), Bangladesh (International Commission of Jurists Secretariat 1972, Nanda 1972), Yugoslavia (Weller 1992, Radan 2002, Trbovich 2008), Kosovo (Weller 2009), and the former Soviet Union (Walter, et al. 2014 and Peters 2015).

                                                                                                                                                                                                                                                                                              • Bereketeab, Redie, ed. Self-Determination and Secession in Africa. London: Routledge, 2015.

                                                                                                                                                                                                                                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                This edited collection investigates general themes of autonomy and colonial boundaries before focusing, in particular, on South Sudan and Somaliland. It also makes a broad sweep of secessionist movements in Africa, including Zanzibar, Katanga, Biafra, northern Mali, Namibia, Eritrea and Western Sahara.

                                                                                                                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                                                                                                                • International Commission of Jurists Secretariat. The Events in East Pakistan: A Legal Study. Geneva, Switzerland: Secretariat of the International Commission of Jurists, 1972.

                                                                                                                                                                                                                                                                                                  Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                  The report provides a detailed analysis of the conflict in Bangladesh and its origins, with considerable detail on the scope of the humanitarian catastrophe that ensued. It also examines the legal implications from the perspectives of international humanitarian law, international criminal law, the potential for humanitarian intervention, and self-determination.

                                                                                                                                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                                                                                                                                  • Kaladharan Nayar, M. G. “Self-Determination beyond the Colonial Context: Biafra in Retrospect.” Texas International Law Journal 10.2 (1975): 321–345.

                                                                                                                                                                                                                                                                                                    Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                    The author outlines the background to the Biafra attempted secession and the fault lines that existed in Nigeria prior to this. He also considers the response of the Organization of American States (OAU) and UN. Despite the failure of Biafra’s separation in the face of lack of international support, he argues that self-determination is a continuing right that must exist within states and be respected within them, though this could be by internal self-determination.

                                                                                                                                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                                                                                                                                    • Nanda, Ved P. “Self-Determination in International Law: The Tragic Tale of Two Cities—Islamabad (West Pakistan) and Dacca (East Pakistan).” American Journal of International Law 66.2 (1972): 321–336.

                                                                                                                                                                                                                                                                                                      DOI: 10.2307/2199032Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                      The article makes a case for Bangladesh to be distinguished from other noncolonial separatist situations, to limit the application of territorial integrity. Nanda cites six distinctive factors: Bangladesh’s physical separation from Pakistan; linguistic and cultural differences; regional economic disparity; the electoral mandate for autonomy; genocide; and the benign impact of an independent Bangladesh.

                                                                                                                                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                                                                                                                                      • Peters, Anne, “The Crimean Vote of March 2014 as an Abuse of the Institution of the Territorial Referendum.” In Staat und Mensch im Kontext des Völker- und Europarechts: Liber Amicorum für Torsten Stein. Edited by Christian Calliess, 255–280. Baden-Baden: Nomos, 2015.

                                                                                                                                                                                                                                                                                                        Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                        This chapter evaluates the concept of self-determination and procedures in the referendum held in Russian-occupied Crimea in March 2014. It concludes that the vote was not free and fair and could not form the basis for a change in the status of the territory.

                                                                                                                                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                                                                                                                                        • Radan, Peter. The Break-Up of Yugoslavia and International Law. London: Routledge, 2002.

                                                                                                                                                                                                                                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                          The book is an analysis of self-determination in the context of the disintegration of Yugoslavia. Radan starts with a general analysis of self-determination, uti possidetis, and minority rights. He then charts the legal history of Yugoslavia from its formation in 1918 to its breakup and the aftermath.

                                                                                                                                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                                                                                                                                          • Trbovich, Ana S. A Legal Geography of Yugoslavia’s Disintegration. Oxford: Oxford University Press, 2008.

                                                                                                                                                                                                                                                                                                            DOI: 10.1093/acprof:oso/9780195333435.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                            The Serbian academic provides an extensive analysis of the breakup of Yugoslavia from the perspectives of self-determination and sovereignty. The book covers, in particular, the legal questions arising from the aftermath of the dissolution, including Kosovo, Bosnia, Eastern Slavonia, and Montenegro.

                                                                                                                                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                                                                                                                                            • Walter, Christian, Antje von Ungern-Sternberg, and Kavus Abushov, eds. Self-Determination and Secession in International Law. Oxford: Oxford University Press, 2014.

                                                                                                                                                                                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                              This edited collection is focused, in particular, on case studies of secessionist movements in former Soviet republics: Transnistria, South Ossetia, Abkhazia, and Nagorno-Karabakh. There is also a postscript on the Russian intervention in Crimea.

                                                                                                                                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                                                                                                                                              • Weller, Marc. “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia.” American Journal of International Law 86.3 (1992): 569–607.

                                                                                                                                                                                                                                                                                                                DOI: 10.2307/2203972Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                Weller’s article provides an effective, concise examination of the breakup of Yugoslavia in its initial phase up to 1992, including the opinions of the Badinter Commission.

                                                                                                                                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                                                                                                                                • Weller, Marc. Contested Statehood: Kosovo’s Struggle for Independence. Oxford: Oxford University Press, 2009.

                                                                                                                                                                                                                                                                                                                  DOI: 10.1093/acprof:oso/9780199566167.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                  Weller’s book brings together the different phases in the crisis over Kosovo, which ultimately led to its contested statehood. In particular, he outlines Kosovo’s position within Yugoslavia, the insurgency in the territory, the Rambouillet negotiations, NATO intervention, and the final status negotiations.

                                                                                                                                                                                                                                                                                                                  Find this resource:

                                                                                                                                                                                                                                                                                                                  Relationship with Democratic Government

                                                                                                                                                                                                                                                                                                                  Self-determination draws not merely from nationalist ideas establishing nation-states but also from liberalism and a democratic tradition. Self-determination has been seen as an expression of liberal democracy and the best right for promoting such a system of government. This has also been expressed through the internal/external dichotomy within self-determination, with internal self-determination being seen to incorporate a right to democratic government. Franck 1992 and Fox 2000 draw from self-determination as a source of democratic government. Democracy can also be expressed by referenda, as considered in Tierney 2012. It also informs the creation of states, as reflected on in Vidmar 2013.

                                                                                                                                                                                                                                                                                                                  • Fox, Gregory H. “The Right to Political Participation in International Law.” In Democratic Governance and International Law. Edited by Gregory H. Fox and Brad R. Roth, 48–90. Cambridge, UK: Cambridge University Press, 2000.

                                                                                                                                                                                                                                                                                                                    DOI: 10.1017/CBO9780511522307.003Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                    Fox looks at the sources of the standards for democratic governance and finds, in particular, considerable practice in international election monitoring in relation to acts of self-determination.

                                                                                                                                                                                                                                                                                                                    Find this resource:

                                                                                                                                                                                                                                                                                                                    • Franck, Thomas M. “The Emerging Right to Democratic Governance.” American Journal of International Law 86.1 (1992): 46–91.

                                                                                                                                                                                                                                                                                                                      DOI: 10.2307/2203138Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                      In the early 1990s the collapse of state communism injected a sense of real momentum into the spread of democratic government. Franck’s article is the leading expression of that period. His emerging right to democratic governance is conceived as an aspect of self-determination, which he describes as the oldest and best-established democratic entitlement.

                                                                                                                                                                                                                                                                                                                      Find this resource:

                                                                                                                                                                                                                                                                                                                      • Tierney, Stephen. Constitutional Referendums. Oxford: Oxford University Press, 2012.

                                                                                                                                                                                                                                                                                                                        DOI: 10.1093/acprof:oso/9780199592791.001.0001Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                        The book addresses the referendum as an instrument of deliberative democracy in constitutional law. It breaks down the referendum and self-determination process from a number of perspectives, including framing the people, the role of elites, external influences, popular participation, and the construction of the question.

                                                                                                                                                                                                                                                                                                                        Find this resource:

                                                                                                                                                                                                                                                                                                                        • Vidmar, Jure, Democratic Statehood in International Law. Oxford: Hart, 2013.

                                                                                                                                                                                                                                                                                                                          Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                          Vidmar’s book examines democracy and self-determination, in particular, in the formation of new states. Since 1990, he argues, democratic principles have become an important element for independent statehood. Vidmar understands self-determination within existing states to require representative government, though not necessarily multiparty democracy. In the creation of new states, the usual form of democratic expression is a referendum. However, he notes an absence of generally accepted rules on the form of such votes.

                                                                                                                                                                                                                                                                                                                          Find this resource:

                                                                                                                                                                                                                                                                                                                          Relationship with the Use of Force

                                                                                                                                                                                                                                                                                                                          The relationship between self-determination and the use of force is an ambiguous one. The principal instruments that address the use of force by national liberation movements are the Declaration on Friendly Relations, General Assembly Resolution 2625 (XXV) of 1970 (see The Declaration on Principles of Friendly Relations) and the Definition of Aggression, General Assembly Resolution 3314 (XXIX) of 1974. Both instruments use deliberately ambiguous language that underscores profound disagreement between states on this issue. In addition, the position of combatants fighting in national liberation struggles is covered in the Additional Protocol I to the Geneva Conventions of 1977. Listed in this section is Cassese 1986, which covers different aspects of these relationships, as well as two monographs, Chadwick 1996 and Wilson 1988.

                                                                                                                                                                                                                                                                                                                          • Cassese, Antonio, ed. The Current Legal Regulation of the Use of Force. Dordrecht, The Netherlands: Martinus Nijhoff, 1986.

                                                                                                                                                                                                                                                                                                                            Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                            This edited collection contains a number of useful chapters on the relationship between self-determination and the use of force. See, in particular, the chapters by Bert V. A. Röling, “The 1974 U.N. Definition of Aggression” (pp. 413–421); Natalino Ronzitti, “Resort to Force in Wars on National Liberation” (pp. 319–353); and Antonio Tanca, “The Prohibition of Force in the U.N. Declaration on Friendly Relations of 1970” (pp. 397–412).

                                                                                                                                                                                                                                                                                                                            Find this resource:

                                                                                                                                                                                                                                                                                                                            • Chadwick, Elizabeth. Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict. The Hague: Martinus Nijhoff, 1996.

                                                                                                                                                                                                                                                                                                                              Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                              This book covers a variety of aspects of self-determination in relation to the use of force, including the legality of the use of force, the application of international humanitarian law, and difficulties in codifying the concept of terrorism.

                                                                                                                                                                                                                                                                                                                              Find this resource:

                                                                                                                                                                                                                                                                                                                              • Wilson, Heather A. International Law and the Use of Force by National Liberation Movements. Oxford: Clarendon, 1988.

                                                                                                                                                                                                                                                                                                                                Save Citation »Export Citation »E-mail Citation »

                                                                                                                                                                                                                                                                                                                                The book provides a close look at the use of force by national liberation movements, focusing in particular on the provisions of UN resolutions and the Protocols to the Geneva Conventions.

                                                                                                                                                                                                                                                                                                                                Find this resource:

                                                                                                                                                                                                                                                                                                                                back to top

                                                                                                                                                                                                                                                                                                                                Article

                                                                                                                                                                                                                                                                                                                                Up

                                                                                                                                                                                                                                                                                                                                Down