Edited By: Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, Andreas Paulus, Nikolai Wessendorf, (Assistant Editor)
- UN Charter — Self-determination — International Court of Justice (ICJ) — Unification
Prof. Dr. Stefan Oeter
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1 The right of self-determination is mentioned in the UN Charter in Art. 1 (2). The Charter in its first mention refers to self-determination as a ‘purpose’ of the United Nations, giving the political principle that had been so disputed since the nineteenth century a clearly programmatic character for the new Organization.1 With this reference, guaranteeing self-determination of all nations became a central political purpose of the UN, inextricably linked with the purpose of achieving friendly relations among nations. Such friendly relations should be based—according to the Charter—on respect for the principle of equal rights and self-determination of peoples. Such wording indicates that the drafters considered self-determination to be a fundamental principle of international law.2 It remains doubtful whether the formula in Art. 1 (2) of the UN Charter originally intended to codify self-determination as a legal right upon which an individual claim of a specific ‘people’ may be based—most authors initially negated such an interpretation and viewed it (with good reasons) as a not directly applicable principle, a kind of political prescription.3 But with the passage of time such construction increasingly lost its persuasive force. Subsequent development in the UN, in particular the practice of decolonization, transformed the old (political) principle of self-determination into a collective right—a trend which became more or less irrebuttable with the codification of the right of self-determination in the two UN Human Rights Covenants of 1966.4 In hindsight it is clear that self-determination, as it was referred to in Art. 1 (2) of the Charter, constitutes an elementary structuring principle of the legal world order created by the UN Charter, a normative programme (p. 316) oscillating between the basic purpose of the Organization and fundamental legal principle.5 In most writings on ‘ius cogens’ it is even mentioned as one of the few norms of international law of a peremptory character.6 Article 2 (4) of the Charter corroborates such a reading when it prohibits any use of force ‘inconsistent with the Purposes of the United Nations Charter’. Accordingly, it is beyond doubt that self-determination, as a purpose and principle of the UN Charter, constitutes a legally binding norm for all member States of the United Nations, as has been confirmed by a series of resolutions of the GA and SC, but also the jurisprudence of the ICJ, and State practice in the process of decolonization as well as in the cases of creation of new States in Europe after 1990.7 Although Art. 1 (2), due to its programmatic character, cannot define in detail the content and scope of a right to self-determination, it sets forth beyond dispute that it forms part of the law of the Charter and is binding upon all members of the UN. Convincing arguments may be made also for the claim that State practice subsequent to the adoption of the Charter has transformed self-determination into a principle of customary international law, too.8
2 Self-determination is also explicitly mentioned in Art. 55 of the Charter. Article 55 gives some hints as to the operational measures to be taken by the UN in order to give more substance to the purpose of peaceful and friendly relations among nations ‘based on respect for the principle of equal rights and self-determination of peoples’. Article 55 states that friendly relations among nations (in a normative perspective inextricably linked with self-determination) should be promoted by trying to achieve higher standards of living for peoples; solutions of international economic, social, and health problems; international cultural and educational cooperation; and universal respect for human rights and fundamental freedoms. Art. 55 is of a declaratory character concerning the principle of self-determination—it does not guarantee it, but it presupposes its existence.9 Interestingly enough, there is no further explicit mention of self-determination in the text of the Charter, not even in Chapter XI which played a decisive role in UN practice concerning self-determination during the process of decolonization.10
I. Evolution of Self-Determination as a Legal Concept
3 As already mentioned, self-determination as a political principle dates back at least to the nineteenth century. However, the first document that might be seen as a revocation of such a principle is the American Declaration of Independence of 1776 which claimed that men have the right to freedom and the right to participate in the exercise of State power, with the ensuing right to alter or to abolish a form of government which fails to guarantee or which disregards such freedom.11 In a comparable manner, the French Revolution claimed a right to freely organize its form of government without any intervention by third States.12 These declarations were rooted in an ancient tradition of political and legal thinking in Europe, dating back to medieval concepts of a right of resistance against an unjust ruler.13 In addition, it was normal for European authors of the seventeenth and eighteenth centuries, like Grotius, Pufendorf, and Kant, to link the legitimacy of transfer of territory from one ruler to another to the consent of the estates possessing a right of (co-)determination in political affairs.14 But only when these concepts started to merge with the new ideas of peoples’ sovereignty, as happened in the American and French revolution, did the arguments become revolutionary. In the context of the US movement of independence, the cause was still largely argued in terms of a right to resistance against a despotic ruler. But with the independence of the Spanish colonies in Latin America, an additional element came up—the declarations of independence in the early nineteenth century stated also a ‘natural right’ of peoples in the colonies to determine their own political fate, and this might take the form of independent statehood. In order to avoid violent conflicts over territory,15 Latin American diplomatic practice linked this new right with a preservation of the inherited territorial status quo, in the form of the principle of uti possidetis.16
4 European powers of course did not accept such title to independent statehood, although they finally had to accept the independence of the Latin American States. Some years later, the same claim was also made in Europe, with revolutionary movements striving for ‘national’ self-determination in the form of new nation-states, irrespective of traditional monarchical titles of sovereignty.17 The modern terminology of ‘self-determination’ also evolved in the mid-nineteenth century, as a conceptual weapon of revolutionary nationalism.18 National self-determination became inextricably intertwined with concepts of peoples’ sovereignty.19 Although some minor concessions were made in a number of exceptional cases, in the form of (very limited) plebiscites,20 (p. 318) the European ‘concert of powers’ remained by and large opposed to accepting self-determination as a guiding concept of international law.
5 This changed only with World War I. Lenin and the Bolsheviks forged ‘national self-determination’ into a political weapon to be used against the Tsarist Russian Empire.21 And US President Wilson, with his famous ‘fourteen points’, used it as a tool to destroy the traditional multinational empires in Central and Eastern Europe, by promising people in the east of Europe their own nation-state.22 The victorious powers were not really consistent in operationalizing the principle in the peace treaties after 1918, and had to compensate many national groups by complex arrangements for minority protection.23 This system of minority protection, which was based on the international treaties and unilateral declarations of some new States, seemed promising, but in the late 1920s proved to be a failure, due to the benign neglect of the major powers, which were not interested in enforcing the international guarantees upon the new States.24 The system of ‘Mandates’ entrusted to the victorious powers in order to lead former colonies of the Entente powers into self-government was also not very successful, since the tendency to control these territories as a kind of protectorate was difficult to contain.25 The new international legal order of the League of Nations thus compromised its high-sounding promises. But the principle of self-determination had made its way into international diplomacy and international legal discourse, transforming it from a revolutionary concept of the left into a political principle operated by international diplomacy.
II. Chapters XI and XII of the UN Charter
6 With the prominence which self-determination had gained as a concept in political-legal discourse, it was difficult to avoid mentioning it in the UN Charter, as the constitutive document of the new international legal order. Nevertheless the first draft of the Charter prepared in Dumbarton Oaks attempted to do exactly this—writing the Charter without mentioning explicitly the term ‘self-determination’.26 The colonial powers sitting at the table knew very well that any reference to self-determination would backfire against them, and would in particular encourage claims of local elites in the colonies to independent statehood. But the Soviet Union blocked these attempts and insisted on mentioning self-determination at a prominent place in the Charter.27 The final result of (p. 319) the dispute between the United Kingdom and France on the one hand and the Soviet Union on the other hand was Art. 1 (2) with its reference to self-determination as a fundamental purpose of the UN. Self-determination was not clearly phrased as a collective right but merely as a purpose and principle of the Organization—although the (similarly authoritative) French text speaks of a ‘principe de l’égalité des droits des peuples et de leur droit à disposer d’eux-mêmes’, thus using the language of rights. In essence, the reference was a formula compromise—self-determination was provided for as a guiding principle of the new order, but the modalities of its implementation were left in the dark. There is no doubt that this happened deliberately, since it conformed to the dominant position of colonial powers—all men were in principle equal and entitled to self-determination, but the inhabitants of colonial territories had not progressed enough in the civilizational process to form their own States, and needed benevolent supervision and assistance by European powers to achieve full self-government (the famous ‘sacred trust of civilization’).28 With the new formula, it was put beyond doubt that in principle colonial peoples had a right to self-determination, but it was left to the discretion of the governing powers to decide when these peoples would be ready for full self-government.29
7 Chapter XI and XII of the Charter to a certain degree try to operationalize such a procedural concept of self-determination.30 Article 73 provides that members of the UN ‘which have to assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government’ (the so-called ‘non-self-governing territories’) with the adoption of the Charter recognize ‘the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost…the well-being of the inhabitants of these territories’. To this end, the administering powers shall ‘ensure, with the respect for the culture of the peoples concerned, their political, economic, social, and educational advancement’. They shall also ‘develop self-government, to take due account of the political aspirations of these peoples’, as well as ‘promote constructive measures of development’. In order to achieve a minimal control of the United Nations over these measures, they were obliged—according to Art. 73 (e) of the Charter—‘to transmit regularly to the Secretary-General for information purposes’ relevant information concerning the conditions in the non-self-governing territories. The obligations imposed upon the administering powers of so-called ‘trusteeship territories’ (the former ‘mandates’ of the League of Nations) were in substance more or less the same, with the exception of the much more stringent control exercised by the UN over the policies of the administering powers, through the Trusteeship Council. The path towards self-determination of colonial territories thus was set; the colonial powers could only try to gain time by arguing that the societies in the colonies were still not ready for full self-government.31
8 The colonial powers proved unable to stem the tide of growing claims for self-determination in their colonial territories. With the incorporation of the principle of self-determination in the UN Charter, the Soviet Union had taken the lead—and it managed to become the spokesman of colonial peoples’ aspirations for independent statehood. It took some time until a stable anti-colonial developed—although a powerful current of anti-colonial sentiment had existed in the GA from the beginning.32 More and more colonies had to be allowed independence, and the majority in the GA was gradually changing as a consequence. This became evident with UNGA Res 1514 (14 December 1969), the so-called ‘Declaration on the Granting of Independence to Colonial Countries and Peoples’, expressing a strong condemnation of all forms of colonialism and calling for decolonization.33 Even the traditional excuses for upholding colonial structures as a transitional arrangement with a view to achieving ‘civilizational progress’ were not accepted any more; instead the ‘right of self-determination’ of all peoples was stressed, including in particular their right to freely decide upon their political status.34 Article 2 of the resolution stated self-determination, as the goal of decolonization, to be not only a principle, but characterized it as a collective right of all peoples still suffering under colonial rule.
that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary international law, and that its effective application is of paramount importance for the promotion of friendly relations among States; based on respect for the principles of sovereign equality.
Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of (p. 321) the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.
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 colour.
12 The anti-colonial orientation of these formulations is beyond any doubt—colonialism must find its end, but the ‘newly independent States’ should be protected in their territorial integrity and political independence.36 Only in cases of discriminatory, racist regimes where a part of the population denies the rest of the people any political participation and full citizenship rights might a denial of the respect for political independence and territorial integrity be justified (the last part of the formula cited above must be understood as a reaction to the problem of ‘apartheid’).
13 The enormous number of GA resolutions with an analogous message cannot be enumerated here, or dealt with in detail.37 The content of these resolutions, however, is of the utmost clarity. Self-determination is more or less identified with decolonization.38 What self-determination means in detail is not worked out—except for cases of decolonization.39 Furthermore, it remains doubtful whether there is much room for self-determination outside the context of decolonization (and illegal occupation).40
14 The practice of UN organs, in particular the GA, thus construed self-determination purely in terms of decolonization—and the strong pressure towards decolonization proved at the same time to be the driving force behind the consolidation of self-determination as a collective entitlement of peoples, as a ‘right’.41 More than a hundred new States were born in the course of decolonization, and the reference to self-determination played a decisive role in these processes of gaining independent statehood.42 Decolonization thus played a decisive role in transforming self-determination from a mere (objective) principle to a (subjective) right, although of a collective nature; but at the same time, decolonization gave rise to doubts as to whether self-determination still constitutes a general principle, or has been narrowed down to a collective entitlement of a merely anti-colonial nature.43
15 The transformation of self-determination into a legal entitlement under positive international law was consolidated by the two UN Human Rights Covenants of 1966, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.44 Each Covenant declares (in identical wording) in its Art. 1: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ Paragraph 2 of this Art. 1 stresses the right to ‘freely dispose of their natural wealth and resources’. Only para 3 then makes an explicit reference to decolonization, by stating that all State parties, including the administering powers having responsibility for non-self-governing territories, ‘shall promote the realization of the right of self-determination and shall respect that right, in conformity with the provisions of the Charter of the United Nations’. The two Covenants thus not only transformed self-determination into a collective right under (positive) international law, by codifying it in the form of a treaty obligation, but disconnected the right of self-determination from its strict coupling to the context of decolonization. The systematic structure of the two Covenants makes clear that the right of self-determination is a general entitlement, and that the purpose of decolonization is only a specific emanation of such general right.
16 The initiative for including the right of self-determination in the two Covenants again came from the Soviet Union.45 With a view to the systematic structure of the Covenants, the codification of the right of self-determination as the starting-point for the subsequent codification of (individual) human rights is to a certain degree surprising, since the right of self-determination definitively is a collective right, and not an individual human right. In systematic terms, however, its inclusion may be justified with the argument—prominently put forward by Third World States—that the exercise of the right of self-determination must be seen as a precondition for the exercise of all other human rights.46 One may debate such a claim, but evidently it formed the basis of the construction of Art. 1 of both Covenants. The (more or less declaratory) description of the major components of self-determination in the second sentence of Art. 1 (1) of both Covenants—‘by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’—cannot be read as an exhaustive definition of the components of the right of self-determination. Article 1 of the Covenants again does not give an authoritative definition of what kinds of operational entitlements may be deduced from the right of self-determination. If it is understood as a right linked solely to peoples of existing States (and colonial territories), it would be superfluous—beyond decolonization. For the established people of a recognized State the guarantees contained in such a formula would be more or less redundant—they cover entitlements to decide freely on its own political affairs that already follow from the principle of non-intervention. But whether such an argument of potential redundancy may be used as the basis of a claim that Art. 1 of both Covenants also covers ethnic groups not constituting a ‘state people’, ie ‘minorities’, is open to doubt47—and still very much disputed. The question will in substance be dealt with below.
17 The right of self-determination was also referred to in the jurisprudence of the ICJ, which corroborates its nature as a norm of positive international law. There is relatively little case-law explicitly referring to self-determination, however.48 It took some time until self-determination made its way into the judgments of the ICJ. In the case between Portugal and India over Right of Passage over Indian Territory, for example, the Court did not mention self-determination at all, although India had explicitly invoked such a right and had included it in the arguments of its memorials.49 The first reference made to self-determination in a case happened in the Namibia Advisory Opinion.50 In that case, the GA contested that South Africa had a right to maintain governmental authority over Namibia, with the argument that such continued colonial rule violated the right of self-determination. In referring explicitly to such a right of self-determination, the Court seems to have simply assumed that it constituted a norm of positive international law.51 Except for the fact that the argumentation of the Court in that case confirmed the existence of a right of self-determination in modern international law, the opinion is not that helpful, since the Court did not say anything in detail on the components and contents of such a right.
18 In the Western Sahara Advisory Opinion, the Court again based its conclusions on the existence of a right of self-determination.52 In referring to UNGA Res 1514 on decolonization, and characterizing the situation in Western Sahara as a case of decolonization, it reaffirmed the right of the people of such colonial territory to decide freely on its political status. A decade later, self-determination was referred to in the judgment on the Frontier Dispute between Burkina Faso and Mali, where the application of the principle uti possidetis was confirmed outside the Latin American context.53 Self-determination—thus goes the argument—does not grant a basis to challenge established frontiers, since in the course of decolonization these are inherited from the colonial powers, according to uti possidetis. The Court went a step further in the Eastern Timor Case (Portugal v Australia)54 where it confirmed the erga omnes character of the right of self-determination. Eastern Timor had remained (throughout the decades of Indonesian occupation) a non-self-governing territory, with its peoples enjoying a right to self-determination which had to be respected by all third parties. Some mention of self-determination has also been made in more recent cases, as in the Lockerbie Case (Libya v United States)55 and the Bosnian Genocide Case against the Federal Republic of Yugoslavia56, as well as in advisory opinions such as the Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory).57 However, new insights (p. 324) into the legal character and the contents of the right of self-determination cannot be gained from these cases.
19 The same in essence also holds true for the 2010 Kosovo Advisory Opinion. Although the issue of self-determination (and of the legality of third State recognition) was clearly at stake when the request for the Advisory Opinion was formulated, the Court did not give clear-cut answers to all the implicit questions. As a reaction to the various references made in the course of the proceedings to the opinion of the Supreme Court of Canada relating to the secession of Québec, the ICJ stressed: ‘The Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it.’
20 Nevertheless, the Court reaffirmed that during the second half of the twentieth century, ‘the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation’. A great many new States—it continued—‘have come into existence as a result of the exercise of this right’. There were, however, also instances of declarations of independence outside this context. The practice of States in these latter cases does not point to the emergence in international law of a new rule prohibiting the making of a declaration of independence in such cases.
Whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of “remedial secession” and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of “remedial secession” were actually present in Kosovo.
The Court considered, however, that it was not necessary to resolve these questions in the present case. ‘The General Assembly has requested the Court’s opinion only on whether or not the declaration of independence is in accordance with international law. Debates regarding the extent of the right of self-determination and the existence of any right of “remedial secession”, however, concern the right to separate from a State.’ As the Court noted, ‘that issue is beyond the scope of the question posed by the General Assembly’.
22 Such deliberate omission to tackle the (implicitly raised) questions of self-determination and of legality of secession was heavily criticized by some of the judges in dissenting opinions. ‘The unilateral declaration of independence of 17 February 2008 was not intended to be without effect’, as Judge Koroma observed. ‘It was unlawful and invalid. It failed to comply with laid down rules. It was the beginning of a process aimed at separating Kosovo from the State to which it belongs and creating a new State. Taking into account the factual circumstances surrounding the question put to the Court by the General Assembly, such an action violates UNSC Res 1244 (1999) and general international law.’ What in fact was primarily at stake was the proper interpretation and application of UNSC Res 1244 (1999). The resolution, Judge Koroma continues, ‘reaffirms the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, of which Kosovo is a component part’. Moreover, the resolution provides for ‘substantial autonomy (p. 325) [for the people of Kosovo] within the Federal Republic of Yugoslavia’.58 ‘In other words, it was intended that Kosovo enjoy substantial autonomy and self-government during the international civil presence but that it remain an integral part of the Federal Republic of Yugoslavia.’ Some of the other judges raised similar concerns in their separate opinions. Even some judges generally in favour of the majority decision appended declarations in which they criticized the far too narrow construction the Court had given to the question put before it. The General Assembly’s request would have deserved—so argued Judge Simma—a more comprehensive answer, assessing whether the right of self-determination (or any other rule, like remedial secession) ‘permit or even warrant independence (via secession) of certain Peoples/territories’. That the Court did not have the courage to try to give an answer to these heatedly discussed questions should be interpreted as an indication of how divisive and controversial the issues of doctrinal construction of the right of self-determination (and of a potential right of secession) still are today.
23 The overview of the historical evolution of the right of self-determination has demonstrated that there is a clear core area where the bearer of the right is beyond dispute. This is the case of decolonization, where State practice has confirmed that non-self-governing territories (as well as trusteeship territories) enjoy a clear right to self-determination, understood as a right freely to determine their political status. The ‘people’ in the sense of self-determination in these cases is the autochtonous population of the non-self-governing territories that has been grouped together to a polity by carving out a certain territory in colonial times in order to form a distinct political entity.59 These territories became independent States on the basis of the principle of uti possidetis, which means that the geographical shape of the territories had been definitely established in colonial times—and they simply inherited the boundaries from their colonial rulers.60 Self-determination did not mean that there was any scope for a decision of the local people concerned regarding whether they wanted to belong to the newly independent State, or to a neighbouring State. State practice clearly banned such a far-reaching claim, making the inherited territorial boundaries inviolable.61
24 Whether this excludes other ‘peoples’ from the right of self-determination is still an open issue, despite a fierce debate on the matter for decades. An important strand in international legal scholarship argues that every group of persons bound together by common objective characteristics, like language, culture, religion, race, might be qualified as a ‘people’, as long as such a group has also a common (subjective) understanding of belonging together and being distinct from all the other surrounding groups.62 (p. 326) Such an understanding might be termed as a ‘naturalist’ concept of peoples. Another strand insists on the territorial element of self-determination. Self-determination, thus the argument goes, has always been linked to historically pre-constituted political entities with a specific territory. ‘People’ in this understanding is not simply a group of persons, one could also say an ‘ethnic group’, but the constituent people of a certain territorial entity formed by history.63
25 A careful analysis of State practice clearly supports the second understanding. Beyond the context of decolonization, there has never been any serious international support for a claim of self-determination raised by a simple ‘ethnic group’ having no firm territorial basis in a pre-existing political entity.64 Colliding claims of self-determination of (non-territorial) ethnic groups cannot be solved without having recourse to a defined territory—only when there is a given territory does a plebiscite or referendum make sense in order to then let a majority determine the political status of the territory. Although a traditional, ‘naturalist’ understanding of a ‘people’ can point to the intuition that the term ‘people’ does not in itself have a territorial connotation, a functional perspective of self-determination, construing the concept in the light of the political and legal system in which it is embedded, leads to the insight that a certain degree of ‘territoriality’ is unavoidable if the concept of self-determination is to operate productively under our current political circumstances.
26 In essence, the whole debate turns on the question whether ‘ethnic groups’, which qualify as ‘minorities’ in the sense of modern concepts of minority protection, may also qualify also as ‘peoples’ enjoying a right of self-determination.65 In principle one should definitely keep these concepts separate.66 The term ‘minorities’ covers all groups linked together by commonalities like language, culture, religion, race—as long as these groups do not form the majority in a given State. Some of these minorities might have a clear territorial basis, a historical settlement area where they used to live together in high concentration. In modern times even such groups will tend to lose their territorial roots to a certain degree, because personal mobility and the resulting waves of migration will spread these groups over a much larger area. Other groups never had clear territorial strongholds but were always scattered among other population groups. Accepting a ‘right of self-determination’ for each of these historically-formed groups would mean opening a Pandora’s box of never-ending disputes on territory and political dominance.67 The only way to avoid such endless quarrelling is the way taken by the community of States in twentieth-century State practice, namely the insistence upon a close linkage between (pre-determined) political entities and self-determination. Self-determination is a right that can only sustainably be granted to polities linked to a historically defined territory. Here self-determination may well work, with a majority deciding in a plebiscite upon its political status, and clearly defined boundaries that must be accepted by neighbours according to the principle of uti possidetis.
(p. 327) 27 Such pre-determined entities may be established States, where it is beyond dispute that the peoples of such States enjoy a continuing right of self-determination protecting them against foreign intervention, alien domination, or illegal occupation.68 They may also be historical entities traditionally enjoying a certain degree of autonomy within States, or member States of federations and federal States.69 The fact that a certain territory has formed a distinct political entity, with a population living together in such an entity for a long time, usually also results in a strong sense of collective identity, irrespective of language, culture, or religion. This does not exclude divergences of opinion—the members of the previously dominant group will not wish to be separated from their kin-state and thus become a minority in a new State, as was the case with Russians in the former republics of the Soviet Union.70 But the international community accepted the claims of such republics, as well as the claims of the former republics constituting the Socialist Federative Republic of Yugoslavia, to form their own States.71 Although in both cases the recognition was mostly based on arguments of dismemberment of the former federations, the international community had no problems in accepting their claims of self-determination. Other cases are more disputed, like the unilateral declaration of independence of the former Autonomous Province of Kosovo within Serbia.72 But all in all State practice is clear—the subjects of self-determination which are recognized as States are pre-determined political entities with a clear territorial basis, not ‘peoples’ in a purely personalist, group-based form.
28 As has become clear from the description of the potential bearers of the right of self-determination, the consequence of such a right cannot always be independent statehood. The principled presumption in favour of territorial integrity that was so strongly emphasized in the ‘Friendly Relations Declaration’ definitely goes against such an assumption. The historical characteristic of federated States, autonomous regions, and member States of federations is precisely the fact that they are federated or integrated into another State, although provided with a certain degree of political and institutional autonomy. The principle of territorial integrity works not only in favour of centralized, unitary States, but protects also federations, federal States, and quasi-federal constructs. The result of such precedence of territorial integrity is the legal assumption that in these cases self-determination is bound up in the constructs of federation or autonomy. The ‘peoples’ of such entities historically had reasons for entering into a close relationship with another political entity, and as long as there are no exceptional grounds rebutting (p. 328) such a presumption in favour of territorial integrity, ‘internal self-determination’ will prevail.73
29 Doctrinal debate of the last two decades has put great emphasis upon this dimension of ‘internal self-determination’. In terms of legal politics, it provides a productive alternative to endless claims for independent statehood in ever smaller political entities, leading to a vicious circle of ever new claims of secession.74 In constructs of federation and/or autonomy it is much easier to balance competing claims of political participation and dominance, with the central State taking over the role of a guarantor for the complex arrangements balancing the competing interests of regional majorities and minorities. ‘Internal self-determination’ grants a possibility for majority populations of certain historical entities with different ethnic, linguistic, cultural, or linguistic characteristics than those of the ‘State nation’ to enjoy a high degree of self-government, without falling into counterproductive quarrels over statehood, territory, boundaries, and citizenship. Accordingly, the broad range of solutions of ‘internal self-determination’ is also the preferred tool-box of diplomatic mediators when trying to contain (often secessionist) conflicts over title to territory and self-government.75
30 If such solutions are to work, they must include a certain guarantee of (limited) self-government. The concrete modalities of federation and/or autonomy cannot be set in stone, but must to a certain degree remain flexible. If the federation or autonomy is drastically changed or abolished without the consent of the entity concerned, the question of self-determination arises again. Usually, the claim will go towards restoration of the previous state of autonomy, but in cases of brute and violent oppression, it might also convert into a claim for independent statehood, ie ‘secession’.76 The arbiter of these claims should be—and will be—the international community.
31 In another dimension, ‘internal self-determination’ guarantees also the internal right of a given people to determine freely its internal political order.77 In principle it is not the task of third States to intervene in these decisions, although the cases of ‘failed States’ and States destroyed by civil war make it increasingly necessary for the international community to intervene and to assist the efforts of post-conflict peace-building, which will often also be State-building.78
32 A fully-fledged entitlement to form an independent State was historically reserved for cases of decolonization.79 In systematic terms this makes sense, because in most cases that territorial entity is linked to or incorporated into another State ‘internal self-determination’ will take precedence. In these cases, the population of the territory enjoys full citizenship rights and participates freely in the political decision-making of the State concerned. This used to be completely different, however, in cases of colonialism. The indigenous populations of colonial entities had only limited citizenship rights, if any, not entitling them to an equal status with the citizens of the colonial power. They also had no right to participate in the political decision-making of their colonial administering power, or in most cases not even limited participation in the political decision-making of their own territorial entity.80 One cannot speak of ‘self-determination’ in the sense of a State conducting itself ‘in compliance with the principle of equal rights and self-determination of peoples…and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour’ (the relevant formula from the Friendly Relations Declaration). Self-determination, in the sense of self-government on the basis of equality, could accordingly only be achieved by forming an independent State. Decolonization, however, has largely come to an end. There still exists a list of non-self-governing territories administered by the UN, but this list comprises mostly small island territories spread over the oceans. There are still some unresolved cases of decolonization, like Western Sahara and the Occupied Territories of Palestine (or perhaps also Tibet and Kashmir, but these two are already highly disputed cases).81 An unconditional right to independent statehood, in doctrine often called ‘external self-determination’, does not exist outside these few remnants of decolonization.
33 Another way in which self-determination can be exercised is by unification with a third State, whether in the form of complete incorporation, or conditioned by some kind of federal or autonomy construction.82 As long as such unification is based upon the will of the people, ie the population of a territorial entity enjoying the right to self-determination, the unification as an exercise of self-determination is unproblematic. Usually the will of the people is not evident but needs a procedural arrangement that confirms that such a will exists. The typical form of such a procedure will be a plebiscite or referendum.83 The exact definition of the group of persons belonging to the people will often be far from easy—the dominant State pushing for unification will argue for a broad construction, including also its citizens residing in the territory in question, whereas the opponents of unification will strive for a restrictive construction, limiting the right of participation to members of the historical population of the territory (and their descendants).
(p. 330) 34 When unification is implemented, the right of self-determination of the political entity now integrated into the third State does not perish completely. At least as far as unification was conditioned upon some reserved rights of autonomy, the gross and consistent violation of these rights of (limited) self-government—or their complete abolition—might lead to a resurgence of the right of self-determination.84 The same might happen if an autonomous region accepted incorporation into a State to which it historically was annexed, but this State later decides to join its even bigger kin-state. Again the will of the people of the relevant territory to belong to the State with which unification was accepted might have been conditioned with independent statehood, and thus they might not wish to become a small minority in an even bigger State.
35 Along the lines of the ‘naturalist’ understanding of the term ‘people’, a right to secession has been argued by an important current in legal doctrine.85 If one assumes that an ethnic group might possess a right of self-determination, such right might—at least in extreme cases—transform into a right to form an independent State. Normally such a right to self-determination will be oriented towards modalities of internal self-determination. But if the State completely blocks any ‘internal self-determination’, erodes existing arrangements of autonomy, and subsequently has recourse to brutal forms of violent oppression, ending in gross and consistent patterns of crimes against humanity, forms of ‘ethnic cleansing’, perhaps even genocide, a ‘right to secession’ as an emergency tool seems to be arguable.86 Usually such a claim is founded on assumptions of natural law or a general principle of law, such as self-defence in situations of extreme emergency.
36 There are a number of cases where such a right has been argued in practice. State practice, however, is extremely reluctant to accept such an argument as a justification for a legal entitlement to secession.87 For good reasons, States are afraid of secessionist movements. Secession usually does not solve the political problems lying beneath the surface, and often tends to escalate the situation. Claims of secession regularly produce counter-claims of secession of smaller sub-entities and lead into endless conflicts over territory and boundaries. In addition, even secession is not conceivable without a strong territorial element. As a result, it is not an ethnic group that is seceding, but a certain territory must be separated from the territory of the former sovereign in order to become a new State. But what is the ‘natural’ territory of an ethnic (by definition ‘de-territorial’) group? The conclusion is clear—in the end it is again a territorial entity that is seceding, not the ethnic group. But why ascribe the ‘subjectivity’ of self-determination to an ethnic group, and not to the political entity which attempts to separate? There are two reasons why parties on the ground have a preference for a ‘nationalist’, group-based construction of self-determination, and not a territorial understanding. Firstly, a territorial (p. 331) understanding would raise the issue that the population of a certain territory is generally not homogeneous, and that there will be different ethnic, linguistic, religious groups living on the one territory. But who decides on the fate of the territory? This should not be monopolized by one group alone. The ‘secessionist’ group will either have to build a consensus with the other parts of the population, which will often prove difficult, or must at least demonstrate in a referendum that an overwhelming majority wants secession—and as a consequence must then find a compromise on minority protection for the other segments of the population. And, secondly, secession in terms of a pre-determined political entity brings uti possidetis into play, and thus forecloses from the beginning any territorial claims going beyond the established boundaries of the given historical entity.88
37 If one thus concludes that not ethnic groups (or minorities) but only territorial entities of a pre-determined, historical nature can claim rights of self-determination, this does not mean that the issue of secession is completely closed. In exceptional cases of brute oppression, there might be reasonable grounds for political entities to strive for secession. Ongoing or pending genocide may be such a case, but also gross and consistent patterns of (discriminatory) crimes against humanity, targeted massacres among an oppressed population, and large-scale ‘ethnic cleansing’.89 Whether such (exceptional) circumstances, however, can lead to a clear ‘right’ to secession is open to doubt. It is up to the international community to judge the legitimacy of such attempts at secession.90 There will always exist opposite strands of argument, resulting in a large margin of appreciation for external actors. Despite the brute violence characterizing a specific situation, the international actors might still prefer a solution of ‘internal self-determination’, ie a solution of autonomy. Overriding concerns of international policy might demand such a situation—and a clear legal entitlement, a ‘right’ to secession, would create obstacles for all attempts at international mediation. It is thus better to conceive such situations of (exceptional) legitimacy of secession not in terms of a clear-cut (collective) right, but in broader terms of legitimacy open to international moderation and judgment.
38 It has been argued that there exists an intrinsic linkage between self-determination and principles of democratic governance.91 Historically, a good claim may be made in pointing to the inseparable coupling of the principles of national self-determination and peoples’ sovereignty. Self-determination could only be argued on the basis of a political theory that departs from axioms of peoples’ sovereignty. If the wish of the people is irrelevant, because human being are bound to obey a ‘natural’ or divine order, self-determination has no legitimate place in such an order. But does current international legal practice really point to the conclusion that the right of self-determination calls for democratic forms of government? An ‘emerging right to democratic governance’ was argued two decades ago92—but has State practice really affirmed such a right? (p. 332) Most States at least pay lip-service to principles of democratic governance in their formal constitutions; but in political reality, most States of the world are undoubtedly far from any realization of such a right. Democratic governance still remains the privilege of a few in today’s world, although the Arab Spring of 2011 points to a common quest of nearly all people on the globe to have a democratically responsible form of government. The right of self-determination supports in its essence any people fighting in its majority for democratic institutions of government.93 But does it negate the right of peoples to choose another, more traditional, perhaps even authoritarian form of government? Under traditional categories this is difficult to argue. However, the common manipulations by governing elites, calling their system ‘true emanations’ of democracy and suppressing the will of the majority to have an influence on political decision-making and to see genuine democratic accountability of governing elites, definitively run counter to all ideas of a right of self-determination (in its internal dimension). In this sense, self-determination is again conquering the role of a revolutionary principle, an entitlement on which the weak and the powerless can rely in order to fight the arrogance of the powerful.94 In a sense, it is coming back to its roots as a principle in support of revolutionary change.
39 When dealing with the issue of a ‘right to secession’, the point has already been made that delicate issues such as the entitlement of a people to its own statehood, the creation of new States, and the settlement of territorial conflicts and boundary issues cannot be left to the unilateral decision of the warring parties. The international community has an important role in moderating such conflicts and judging the validity of competing claims.95 This is in particular true for secessionist conflicts where a self-proclaimed people or a sub-entity of an established State claims its own statehood, while the government of the previous territorial sovereign claims respect of its territorial sovereignty and integrity. There is an urgent need for the international community to exert moderating pressure upon both sides of the conflict, bringing them to a table in order to negotiate.96 But if the international community wants to have a decisive influence upon the parties, it must do its best to speak with one voice. Only when there is no possibility to play off the different international actors against each other, will international efforts directed towards moderating the conflict have any chance of success. There is nothing worse than unilateral action in such cases, giving malign parties hope of achieving their objectives without any moderation and compromise. In this perspective, the old rule of non-recognition of attempts at secession, as long as the former territorial sovereign has not accepted such secession, has a very good rationale.97 There is—as was stressed above—a principled presumption in favour of territorial sovereignty. Secessions may have legitimate causes in some exceptional cases—but whether this is the case should be sorted out in negotiations, and if this is not possible the third States should at least try to come to a concerted answer and should recognize the secessionist entity as a sovereign State only (p. 333) when more or less all States agree that there is no alternative. Recognition gains in these cases a more or less ‘constitutive’ character, since it is the concerted recognition of the international community that makes the entity claiming a right of self-determination a fully-fledged State, becoming a member of the community of States.98 The ‘constitutive’ character of recognition becomes even more obvious when recognition is linked to certain substantial criteria of constitutional and political structure in order to secure a degree of structural homogeneity between states.99
40 As long as such a collective procedure of concerted recognition is not achieved in diplomatic efforts, a recognition of secessionist entities is ‘premature’, which in traditional terms meant that it is a violation of the principle of territorial integrity and of the prohibition of intervention.100 States should continue to respect these rules—otherwise they damage their political leverage upon the parties to the conflict and risk ending up in open conflict with other third States.
41 A delicate topic in this regard is the issue of civil war that is often ongoing alongside conflicts of self-determination. From a traditional perspective, civil war is a radical (and often very cruel and bloody) form of exercising ‘internal self-determination’. If an oppressive rule has lost the support of its population, the attempt to oust it from power with a rebellion undoubtedly has a certain degree of legitimacy. The entitlement to ‘intervention by invitation’ ends when it becomes obvious that a government no longer has substantial support from its population. But most cases will in reality be situated in a grey zone where the regime still enjoys some support while its opponents, the rebels, claim to have the support of the majority of the population. In such cases, there are good grounds not to intervene in the conflict in support of one side, either the government, or the rebels. Support for rebels in such a situation was traditionally qualified as illegal intervention.101 Even the attempt to recognize a rebel government and to claim that it is now the ‘true’ government representing the people of the State concerned is more than problematic. Such a move means that external powers usurp the role of a final judge of the legitimacy of governments, which is a severe danger to genuine self-determination. Intervention from the outside is legal only with a mandate of the UNSC acting under Chapter VII—and even the SC must be careful not to intervene prematurely, without having a safe basis for evaluating support and legitimacy of the competing authorities.(p. 334)
3 See the references with Doehring (n 2) 48 at n 1.
4 Doehring (n 2) 48–49.
5 See also Doehring (n 2) 49, para 3.
6 See only HG Espiell, ‘Self-Determination and Jus Cogens’ in A Cassese (ed), UN Law/Fundamental Rights (Sijhoff & Noorthoff 1979) 167–73; A Cassese, Self-Determination of Peoples (CUP 1995) 133–36; EA Laing, ‘The Norm of Self-Determination’ (1991) 22 Calif W Intl LJ 209, 248–52; D Turp, ‘Le droit de sécession en droit international public’ (1982) 20 Can YB Intl L 24, 28–29; D Raić, Statehod and the Law of Self-Determination (Kluwer 2002) 218–19; U Saxer, Die internationale Steuerung der Selbstbestimmung und der Staatsentstehung (Springer 2010) 213–15.
7 Doehring (n 2) 49, para 1.
9 Doehring (n 2) 49, para 2.
11 See J Fisch, Das Selbstbestimmungsrecht der Völker (CH Beck 2010) 80–82; Saxer (n 6) 51.
13 Fisch (n 11) 72–74.
14 See Fisch (n 11) 76–78.
15 See in detail Fisch (n 11) 82–88.
16 See also Fisch (n 11) 88–93.
17 See S Oeter, ‘Demokratieprinzip und Selbstbestimmungsrecht der Völker—Zwei Seiten einer Medaille?’ in H Brunkhorst (ed), Demokratischer Experimentalismus (Suhrkamp 1998) 329–32; see also Saxer (n 6) 61–79.
18 Fisch (n 11) 133–39.
19 See Oeter (n 17) 330–33.
20 See Fisch (n 11) 123–33.
22 Concerning Wilson’s ‘fourteen points’ see K Rabl, Das Selbstbestimmungsrecht der Völker (Korn 1963) 76–80; M Pomerance, ‘The United States and Self-Determination: Perspectives on the Wilsonian Conception’ (1976) 70 AJIL 1, 16–20; Raić (n 6) 177–84; Fisch (n 11) 151–57.
23 As to the failures of the system of the Paris peace treaties see Rabl (n 22) 96–102; H Hannum, Autonomy, Sovereignty, and Self-Determination (University of Pennsylvania Press 1990) 28–31; P Allot, ‘Self-Determination—Absolute Right or Social Poetry?’ in C Tomuschat (ed), Modern Law of Self-Determination (Nijhoff 1995) 202–05; A Whelan, ‘Wilsonian Self-Determination and the Versailles Settlement’ (1994) 43 ICLQ 99–115; A Cassese, Self-Determination of Peoples: A Legal Reappraisal (CUP 1995) 24–28; Raić (n 6) 190–4; Fisch (n 11) 157–66.
24 See only P Thornberry, International Law and the Rights of Minorities (Clarendon 1991) 46–49; C Weisbrod, ‘Minorities and Diversities: The Remarkable Experiment of the League of Nations’ (1993) 8 Connecticut J Intl L 359–406; PB Finney, ‘An Evil for All Concerned: Great Britain and Minority Protection after 1919’ (1995) 30 J Contemporary History 533–31; Fisch (n 11) 182–88.
26 See Fisch (n 11) 216; see also M Mazower, No Enchanted Palace. The End of Empire and the Ideological Origins of the United Nations (Princeton UP 2009) 149–51.
29 See Fisch (n 11) 234.
31 See Fisch (n 11) 234.
32 See Mazower (n 26) 152.
35 Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, UNGA Res 2625 (XXV) (24 December 1970) UN Doc A/RES/2625(XXV).
37 See more in detail Raić (n 6) 210–19.
38 See Raić (n 6) 219; S Wheatley, Democracy, Minorities and International Law (CUP 2005) 66–77.
39 See, however, Doehring (n 2) 52, paras 15 and 16.
41 See also Doehring (n 2) 53, para 18.
42 See in detail W Ofuatey-Kodjoe, The Principle of Self-Determination in International Law (Nellen 1977) 349–52; Laing (n 6) 216–25.
45 Doehring (n 2) 53, para 20.
47 See in this regard the arguments of Doehring (n 2) 54, para 21.
48 See also Doehring (n 2) 54, para 22.
51 See Doehring (n 2) 54, para 24.
55 Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamarhiriya v United States of America) (Merits)  ICJ Rep 210.
59 See only Saxer (n 6) 278–81.
60 On the details of uti possidetis see Saxer (n 6) 763–79.
61 See only Fisch (n 11) 56–61.
62 See D Ronen, The Quest for Self-Determination (Yale UP 1979) 39–45; C Gusy, ‘Selbstbestimmungsrecht im Wandel. Von der Selbstbestimmung durch den Staat zur Selbstbestimmung im Staat’ (1992) 30 AVR 385–410; Doehring (n 2) 55–56, paras 28–30.
63 See TM Franck, ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’ (1996) 90 AJIL 359–83; Saxer (n 6) 310–26.
64 Saxer (n 6) 324–26.
66 See also Wheatley (n 38) 124–26.
67 See TM Franck, ‘Postmodern Tribalism and the Right to Secession’ in C Brölmann and others (eds), Peoples and Minorities in International Law (Nijhoff 1993) 3–27 as well as Franck (n 62) 359–83.
68 See Doehring (n 2) 56, para 33.
69 See eg O Kimminich, ‘A “Federal” Right of Self-Determination?’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 83–99, as well as P Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with some Remarks on Federalism’ ibid, 101–38.
73 As to ‘internal self-determination’ see H Hannum, Autonomy, Sovereignty, and Self-Determination (University of Pennsylvania Press 1990); P Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with some Remarks on Federalism’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 101–38; Rosas, ‘Internal Self-Determination’ ibid, 225–52; Doehring (n 2) 56–57, paras 32–34; W Danspeckgruber, ‘A Final Asssessment’ in W Danspeckgruber, The Self-Determination of Peoples: Community, Nation and State in an Interdependent World (Lynne Rienner 2002) 335–57; Saxer (n 6) 335–51; Fisch (n 11) 61–63.
77 See Doehring (n 2) 56, para 33.
79 See Raić (n 6) 219–20.
80 See Doehring (n 2) 59, paras 44–47.
82 Doehring (n 2) 58, para 41.
83 See Fisch (n 11) 68–70.
84 See Oeter (n 76) 753–55.
85 See the contributions in M Moore (ed), National Self-Determination and Secession (OUP 1998) and Doehring (n 2) 57–58, paras 35–40; see also VP Nanda, ‘Self-Determination under International Law: Validity of Claims to Secede’ (1981) 13 Case Western Reserve J Intl L 257–80; L Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16 YJIL 177–202; D Turp, ‘Le droit de secession en droit international public’ (1982) 20 Can YB Intl L 24–78; D Murswiek, ‘The Issue of a Right of Secession—Reconsidered’ in C Tomuschat (ed), Modern Law of Self-Determination (Kluwer 1993) 21–40; Raić (n 6) 316–72.
86 See only Doehring (n 2) 58, para 40.
87 See also Saxer (n 6) 394–400.
88 See Saxer (n 6) 772–75.
89 See Oeter (n 76) 759–60.
90 See Saxer (n 6) 362–68.
93 See also Doehring (n 2) 60–61, paras 49–53.
94 See Fisch (n 11) 269–90.
95 See Saxer (n 6) 362–68.
96 See Saxer (n 6) 410–12.
97 See Raić (n 6) 89–170; S Talmon, Kollektive Nichtanerkennung illegaler Staaten (Mohr Siebeck 2006).
98 See Saxer (n 6) 718–35.
100 See only Raić (n 6) 92–104.
101 See Doehring (n 2) 63, para 61.