Self-Determination vs. Territorial Integrity: An International Law Perspective Tashi Phuntsok,
LLM candidate, 2011-12
UWO Law
AbstractThe principle of self-determination is one of the most controversial subjects of international law because of its direct link with the creation and dissolution of sovereign states. Since self-determination has both the statist (traditional state-centric view) and romantic (rousseauesque, nationalist or secessionist) faces, it ultimately both supports and challenges sovereign statehood.
The self-determination and territorial integrity needs to be carefully considered as they often come into each others way and create tension in international legal discourses. Territorial integrity is generally a principle of territoriality based on the traditional statist understanding of international law, whereas the principle of self-determination is primarily a principle of nationality, democracy and justice. This paper analyse which principle prevails over the other at the time of conflict between them.
The practice since the end of the World War I is abundantly clear that in the normal situations (where there are no legitimate self-determination claims) or as a general rule, the principle of territorial integrity has a superior legal standing and thus overrides the principle of self-determination, especially taking into account the need to maintain international peace and stability. Therefore it created a strong basic presumption in favour of territorial integrity as general rule of international law. Whereas the principle of self-determination comes to the forefront only in abnormal or exceptional situations where there are legitimate claims against this basic presumption, in which territorial integrity only acts as a shield to hide gross atrocities and suppression of large section of its peoples and as a veil behind which gross injustices are being covered up. Thus the role of self-determination is to lift that territorial veil in favour of the peoples consistently oppressed and unrepresented by the state.
ContentIntroduction
Self-Determination: Historical Evolution
(a) Lenin and Self-Determination
(b) Wilsonian Self-Determination
(c) Aaland Islands case
Self-Determination vs. Territorial Integrity
i. Territorial Integrity
ii. Decolonization Context
(a) 1960 General Assembly Declaration
(b) The 1970 Declaration on Friendly Relations
(c) Judicial Pronouncements
iii. Post-Decolonization: Emerging Customary Norms
(a) People under Foreign Domination and Occupation
(b) Racial Groups’ Right to Internal Self-Determination
Conclusion
IntroductionThe principle of self-determination, which is closely linked with the territorial integrity of the states, is one of the most controversial subjects of international law. Through-out history, scholars and nations are divided on the meaning, understanding and scope of the principle. Its meaning and scope ranges from “absolute right of ethnic groups, nations or people to full independent statehood in the secessionist sense”, to “right of whole population of a state to its majority rule” and to “right of minority ethnic, linguistic and religious groups to its internal democratic participatory right”. Therefore, principle of self-determination lacks uniform consensus in theory as well as in practice in international legal discourse. The prime reason of this lies in the very nature of the principle's in-built capabilities in influencing the very existence and disappearance of sovereign statehood in the international sphere.
Generally, the principle has two basic faces . On the one hand, its “classical, conservative or statist conception” justifies the state-centric system of international law by identifying the nation as the state, thus rendering whole state as one self determining unit with right of political independence, preservation of its territorial integrity and right to claim recognition of non-intervention in its internal domestic matters. On the other hand, its “secessionist, romantic, rousseauesque and nationalist approach” challenges the formal structures of statehood and looks deeper into the nation as an authentic community deserving right to determine its future by creating its own statehood, thus threatening existing formal structures of the state. This approach is often secessionist, exclusivist and isolationist in nature and might lead to violence, chaos and instability in international system. Indeed as Martti Koskenniemi has pointed out, self-determination, in the end, “both supports and challenges statehood” and one is unable to consistently apply a right to self-determination precisely because one cannot distinguish, much less choose, between the two. Therefore, this lack of consensual definition, understanding and its application has prompted James Crawford to critique the right as lex obscura or uncertain law.
The recent trend in self-determination discourse has led to divide the whole concept into two broad categories, namely, “external” and “internal self-determination”. External self-determination, generally, means people's right to determine their international legal status on a certain territory of their own, which is usually seen in terms of independent statehood or secession. Whereas internal self-determination means right of minority ethnic, linguistic, religious or indigenous group to participate in a state's internal self government such as autonomous arrangements. The use of these two words (external and internal) is merely objective characterization for better understanding of the concept and does not intent to attribute any normative characteristics on these terms. Therefore the scope of this paper is on the external dimension of right of self-determination and territorial integrity. The “external” aspect of self-determination has remained the most extreme, isolated and controversial part of the whole concept. Nevertheless, an attempt to focus on this area should not be seen as a glorification of it, but rather it is a closer look or examination of this generally tabooed, left out and much ignored part of the concept in international discourses.
Traditionally, international law has treated the formation of sovereign statehood or acquisition of sovereignty as purely a matter outside the realm of law. Thus secession naturally becomes a matter of fact. In fact, positive international law did not regulate emergence and disappearance of states in international sphere, leaving a huge space for the role of politics to shape the outcome of facts. Once outside the realm of law, only practical guarantee for the success in forming new sovereign entities remains use of force. It could, in turn, lead to bloody conflicts resulting in more escalation of violence, chaos and instability which renders the concept of secession unwanted, unfavoured and negative one. It is beyond the scope of this paper to argue in favour of need to bring forth law of secession (in remedial sense) within international law so as to remove its destructive and explosive nature (when they remain outside realm of law), in order to have systematic legal regulation of secession for ultimate peaceful transfer of sovereignty.
Another problem of the principle of self-determination is the definition of “self” or in other words, who those self determining “people” are, and how are they to be identified. The answer to this question remains mystery and so far we are unable to reach a consensual international legal definition of “peoples”. It seems we are unlikely to reach there anytime soon. So any future attempt to define or codify the definition will always make a bad draft and will never be free of criticisms and disagreements. Nevertheless this inability to reach a perfect definition shouldn't be seen as problem or cause of much concern. In fact international law can provide other examples where there consists of inherent inabilities within a concept which doesn't necessarily render the whole concept meaningless. For example, regarding the concept of customary international law, scholars found it impossible to find exactly when opinio juris emerge after state practices in order to make it a customary norm of international law. Even then, such inherent inability within this concept does not render the whole concept meaningless. The emergence of opinio juris in international law is generally objectively felt or appears self-evident through various United Nations and multilateral declarations and resolutions. Likewise, the existence of “self” or “peoples” in the concept of self-determination is to be determined objectively as a matter of fact in each individual case or circumstances through referring to various United Nations declarations and resolutions.
The very nature of the concept of self-determination is such that not a single interpretation or understanding of self-determination by scholars and nations is free of criticism and therefore it is quite natural that my understanding and focus on the concept of self-determination in this paper is bound to attract criticisms, if not outright rejections.
Self-Determination: Historical EvolutionWe can trace genesis of the principle of self-determination back to the Enlightenment era’s (18th century) most influential and powerful political ideas, namely, “Popular Sovereignty” and “Theory of Consent – Consent of the Governed”. These ideas have sparked the eighteenth century’s two most dramatic and influential events, “French Revolution of 1789” and “American Revolution of 1776”.
The concept of Popular Sovereignty as propounded by Rousseau sought to understand the capacity of people to determine their own future and destiny. It implies that a people should be free to choose their own state and to determine the territorial boundaries of that state. Therefore, it is the will of the people or the consent of the governed that makes a state legitimate. Thus it marked the demise of the notion that individuals and people as subjects of the king, where they were treated as objects to be transferred, alienated and ceded in accordance with the interests of the monarch. So the government must be of the people and be responsible to the people. The means to achieve such notion (popular sovereignty) was through the concept of “right to rebel against tyranny”.
The relevance of the ideals of the French revolution to the international self-determination has been explained as follows:
The history of self-determination is bound up with the history of the doctrine of popular sovereignty proclaimed by the French Revolution: government should be based on the will of the people, not on that of the monarch, and people not content with the government of the country to which they belong should be able to secede and organize themselves as they wish. This meant that the territorial element in a political unit lost its feudal predominance in favour of the personal element: people were not to be any more a mere appurtenance of the land.
Therefore, the conception of self-determination as a political ideal arose out of the eighteenth century French and American revolutionary urge to claim sovereignty for “the people”. Of course, the term “self-determination” didn’t appear in the political rhetoric of this period. The phrase “right to self-determination” later receives its first specific treatment in a resolution of the London International Socialist Congress in 1896.
(a)
Lenin and Self-determinationThe first forceful proponent of the concept of self-determination at the international level was Vladimir Lenin. He insisted that the right of self-determination be established as a general criterion for the liberation of peoples. He advocated it from his socialist understanding and interpretation of the term where it was considered as a means of realizing the dream of worldwide socialism. It was to lead to the liberation of oppressed peoples which would in turn contribute to the success of the socialist revolutions.
Lenin’s self-determination was premised on the concept of “equality of nations” , and since all the nations in various states were equal (theoretically), national self-determination was to be primarily realized through secession or formation of independent states for each oppressed nation. His philosophical argument is that once all the oppressed nations achieve independence (separation or secession), there shall be proletarian revolution within the bourgeois nation and thence quite naturally to proletarian Internationalism. Therefore it will lead to unity rather than actual separation. Nevertheless, Rosa Luxemburg had called Lenin’s approach of self-determination a Utopian idea ; that is to preach separation and yet expect independent nations, once come into existence, to unite again with their former oppressors seemed fantastic.
But Lenin’s theoretical defense argued that only by way of the political struggle inside the national state could the proletariat arrive at the proper level of revolutionary consciousness. Thus he championed self-determination more to further his ideological and political objectives than to safeguard peoples. The socialist cause and the interest of the revolution always took priority over the principle. In one of his article in 1918, he was clearly in favour of the conclusion of a peace treaty with Germany and her allies ( Brest-Litovsk treaty), where he was forced to give away Poland, Lithuania and several other Soviet territories in order to safeguard socialism. The question was whether it was a betrayal towards those peoples and whether it constitutes an abandonment of the principle of self-determination. He then asked rhetorically, ‘Which should be put first, the right of nations to self-determination, or socialism?’ His answer was: ‘Socialism’. Thus he endorsed the treaty in order for socialism to thrive and triumph. So the principle of self-determination was championed only in so far as it furthered the cause of class struggle and its philosophical ideal was employed as a strategic tool.
(b)
Wilsonian Self-DeterminationPerhaps the strongest proponent of principle of self-determination in the 20th century who made it a global political principle was US President Woodrow Wilson during Versailles Peace Conference in Paris at the end of First World War. He advocated self-determination as a guiding principle in the post-war international system and for its immediate reconstruction work in Europe after years of destructions caused by war. The Wilsonian self-determination originates from the western liberal democratic perspective, where the government must be based on ‘the consent of the governed’ and popular sovereignty, thus consisted of the right of people to freely choose their government. In fact, in Wilson’s celebrated “Fourteen Points” speech of 11 February 1918, he addressed the question of self-determination directly:
National aspirations must be respected; peoples may now be dominated and governed only by their own consent. “Self-determination” is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril...
Peoples and Provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game.
He propounded four different variants of self-determination on international level; first, he advocated the right of each people to choose the form of government under which it would live. The second version of self-determination related to the restructuring of the states of central Europe in accordance with national desires. He believed that if the principle was implemented correctly, the risk of renewed global conflict would be largely reduced. Thus it was held as guiding principle during the division of Ottoman and Austro-Hungarian empires and redrawing the map of Europe after the First World War. Thirdly, he made self-determination as a criterion governing territorial change. Thus in his speech he said “every territorial settlement in this war must be made in the interest and for the benefit of the populations concerned, and not as a part of any mere adjustment or compromise of claims amongst rival states.”
The critics soon raised objections against Wilson’s conception of self-determination for being too loose, indeterminate and fatally ambiguous , and that by encouraging unrealistic nationalist aspirations it would provoke violent conflicts. In fact one of President’s closest associates Secretary of State Robert Lansing raised these doubts in some of his critical remarks as he wondered:
When the President talks of ‘self-determination’ what unit has he in mind? Does he mean a race, a territorial area or a community? Without a definite unit which is practical, application of this principle is dangerous to peace and stability.
The critics also raised the point that Wilson was not aware of all the implications of his theory when he so forcefully and eloquently proposed it in the international area, thus it was contended that he could have naively underestimated the consequences of his own idea. In fact, Robert Lansing, in a note of 30th December 1918, wrote that “[t]he more I think about the President’s declaration as to the right of ‘self-determination’, the more convinced I am of the danger of putting such ideas into the minds of certain races … The phrase is simply loaded with dynamite. It will raise hopes which can never be realized.”
Subsequently, Wilson himself had to acknowledge this as a serious mistake and was unable to consistently pursue his ideas in order to have them accepted by other statesmen of his time at the international arena. Therefore, neither the Peace Treaties following the First World War nor the Covenant of the League of Nations upheld Wilson’s ideas. Instead, the principle of ‘Territorial Integrity’ was upheld in these international initiatives, so the original romantic and secessionist version of self-determination was thoroughly rejected and was made subservient to this statist principle of territorial integrity so as to safeguard state sovereignty and political independence of existing states in order to maintain stability and status quo in international system. Thus began the uneasy co-existing and contradictory relationship between principle of self-determination and the principle of territorial integrity, details of which I shall discuss subsequently.
Thus the scope of principle of self-determination, as initially propounded by Wilson, was tremendously reduced and its application in reality was made limited only to Central and Eastern European territories of vanquished powers (Ottoman and Habsburg empires) and the vast majority of peoples of the colonies belonging to European powers (in Asia and Africa) were simply denied and kept outside the scope of the self-determination, as they were put under the mandate system of the League of Nations.
(c)
Aaland Islands caseThe first ever case related to the legality, scope and applicability of the principle of self-determination in international arena was the question of Aaland Islands before the League of Nations. For centuries Aaland Islands, located in the Baltic Sea between Sweden and Finland, were under the Swedish control (1157-1809) and retained their Swedish linguistic and cultural heritage. After Sweden’s defeat by Russia in 1809, the Treaty of Frederiksham ceded Finland (including the Aaland Islands) to Russia, thus Finland became an autonomous Grand Duchy within the Russian empire. In the early twentieth century with the disintegration of Russian empire in 1917, Finland declared its Independence in December 1917. Soon after, the dispute arose between Sweden and Finland on the question of legal status of the Aaland Islands which was referred to the Council of the League of Nations. The issue was whether majority of Swedish speaking population of Aaland Islands had right of self-determination in order to secede from Finland and join the kingdom of Sweden. So Finland raised objections by saying that the Aaland Islands case was simply falling within the domestic matter of Finland and the League of Nations had no jurisdiction to adjudicate upon the case.
In July 1920, the Council of the League of Nations appointed a Commission of three Jurists to examine the case. The International committee of Jurists had to first determine the jurisdiction of League of Nations (international jurisdiction) in the case before examining the real question in the dispute. The Jurists rejected Finland’s jurisdictional objections and acknowledged that the right of disposing of territory is essentially an attribute of the sovereignty of every state. So in a dispute where a particular group is to be granted the right to determine its own political fate is one which under normal circumstances international law leaves entirely to the domestic jurisdiction of the state which exercises sovereignty over the territory in question.
Nevertheless the commission of jurists found that the matter of Aaland Islands was in fact one of international concern and therefore within the League’s competence because Finland, which was liberated from Russian control, had not yet acquired the character of a definitively constituted state and, therefore, was not an independent member of the international community.
The Jurists, then, went on to the key question of self-determination of Aalanders and proclaimed that the concept of self-determination could not be considered an international legal norm . The report stated:
Although the principle of self-determination of peoples plays an important part in modern political thought, especially since the Great War, it must be pointed out that there is no mention of it in the covenant of the League of Nations. The recognition of this principle in a certain number of international treaties cannot be considered as sufficient to put it upon the same footing as a positive rule of the law of nations.
The report seeking to balance sovereign right of the states and the quest for self-determination underscores that:
Positive International law does not recognize the right of national groups, as such, to separate themselves from the state of which they form part by the simple expression of a wish, any more than it recognizes the right of other states to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method is, exclusively, an attribute of the sovereignty of every state which is definitively constituted. A dispute between two states concerning such a question, under normal conditions therefore, bears upon a question which international law leaves entirely to the domestic jurisdiction of one of the states concerned. Any other solution would amount to an infringement of the sovereign rights of a state and would involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very idea embodied in the term ‘State’, but would also endanger the interests of the international community.
Having taken into account the Jurists’ view, the Council appointed a Commission of Rapporteurs to recommend a Programme of action. The Commission’s report suggested that the Aaland Islands remain under the sovereignty of Finland, but it was obliged to increase guarantees of minority protection by giving them sufficient autonomy. It described self-determination as “a principle of justice and of liberty, expressed by a vague and general formula which has given rise to the most varied interpretations and differences of opinion.” It stated:
Is it possible to admit as an absolute rule that a minority of the population of a state, which is definitely constituted and perfectly capable of fulfilling its duties as such, has the right of separating itself from her in order to be incorporated in another state or to declare its independence? The answer can only be in the negative. To concede to minorities, either of language or religion, or to any fractions of a population the right of withdrawing from the community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within states and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the state as a territorial and political unity.
Therefore, the period in the aftermath of the First World War, it was clearly recognized that the principle of self-determination was not a part of positive International Law. Nevertheless two international bodies did not limit itself to this view; instead they went ahead and proclaimed two important points, one regarding the question of minority protection, and the second one about the possibility and scope of secession. Regarding minority protection, the Commission concluded that the Aaland Islands’ culture and tradition should be safeguarded by granting the Islands autonomy under Finnish sovereignty. It appears the League of Nations bodies took the view that while the protection of minorities was the only rational and sensible solution for providing safeguards to ethnic or religious groups without disrupting the territorial integrity of states, there might however be cases where minority protection could not be regarded as sufficient.
The international committee of jurists also made a distinction between ‘normal’ and ‘exceptional’ situations. In the normal situation, the principle of territorial integrity, generally, overrides the principle of self-determination as stated in both the reports of international bodies. But in exceptional circumstances where the state at issue manifestly abuses its authority to the detriment of the minority by oppressing or persecuting its members, or else proved to be utterly powerless to implement the safeguards protecting the minorities , the committee of jurists regarded that the dispute no longer remain within the purview of state’s domestic jurisdiction. The Commission of Rapporteurs took a stronger view by stating that the ‘right of separation’ arises for those oppressed minorities within that state. It stated:
The separation of a minority from the state of which it forms a part and its incorporation in another state can only be considered as an altogether exceptional solution, a last resort when the state lacks either the will or the power to enact and apply just and effective guarantees.
The Commission then applied this concept to the Aaland Islands question and concluded that the Aalanders had no right to secession because they have neither been persecuted nor oppressed by Finland. It stated that there was no need for a separation as the Finnish state was ready to grant the inhabitants satisfactory guarantees and faithfully to observe the engagement which it would enter into with them. Interestingly, a similar view was also taken, less than a century later, by Canadian Supreme Court ruling in the Quebec secession case.
Another important point under the exceptional circumstances was raised by the Jurists on the question of state sovereignty and self-determination. The Jurists noted that, in situations where the state sovereignty itself is in question, the principle of self-determination finds its application. For them, national self-determination was a fall-back position which was normally dormant and enclosed within sovereignty. However during the periods of political transformation when the existence of states becomes uncertain, self-determination becomes applicable to reconstitute the political normality of statehood. In the end, we can conclude here that the ‘right of secession’ as a remedial right (a last resort) which was later proposed and brought into international legal discourses by various scholars and jurists had its origin (at least in legal sense) in the decision of the International Committee of Jurists on the question of Aaland Islands.
Self-Determination vs. Territorial IntegrityThe principle of self-determination and territorial integrity (two most crucial principles of international law) need to be carefully considered as they often come into each others way and create tension in international legal discourses. Territorial integrity is generally a principle of territoriality based on the traditional statist understanding of international law, whereas the principle of self-determination is primarily a principle of nationality, democracy and justice. Therefore, their conceptual basis comes from the opposite ends of the spectrum. Nevertheless, in actual practice of international law, the two principles need not always necessarily conflict with each other as it was many times claimed to be. In fact, the practice since the end of the First World War is abundantly clear that in the normal situations (where there are no legitimate self-determination claims) or as a general rule, the principle of territorial integrity has a superior legal standing and thus overrides the principle of self-determination, especially taking into account the need to maintain international peace and stability. Therefore it created a strong basic presumption in favour of territorial integrity as general rule of international law.
The principle of self-determination comes to the forefront only in abnormal or exceptional situations where there are legitimate claims against this basic presumption, in which territorial integrity only acts as a shield to hide gross atrocities and suppression of large section of its peoples and as a veil behind which gross injustices are being covered up. Thus the role of self-determination is to lift that territorial veil in favour of the peoples consistently oppressed and unrepresented by the state. In other words, the principle of self-determination in exceptional situations has overriding effect as long as the principle of territorial integrity adheres to its ultimate purpose which is ‘to safeguard the interest of the peoples of a territory’.
Prior to brief conceptual understanding of the principle of territorial integrity, it is important to note that the ‘territorial integrity’ is a general norm where as ‘self-determination’ is an exceptional case. Since self-determination is primarily a principle of justice, it comes into operation every time an act of gross injustice is apparent. Therefore, an understanding and the usage of this concept could naturally follow the abovementioned rule. The existence of too many self-determination claims in the last more than 60 years does not mean that the self-determination can be brought forth as a general norm to be applied in each and every case, but it only meant the existence of too many acts of injustices being committed rendering them exceptional in nature. In this paper, the conflict between these two principles are dealt with through its area of application or rather its contextual application (meaning in what context self-determination generally prevails over the territorial integrity, or vice versa). So it could be broadly divided in two categories, namely, decolonization and post-decolonization context.
Territorial Integrity In a system of international law founded upon the sovereign and independent states, the principle dealing with protection of integrity of the territorial expression of such states is bound to assume major importance. Much before the emergence of the modern sovereign state system, human beings were naturally drawn towards certain portion of area (land) basically for the purposes of shelter, use of resources and security, in order to survive. So their relationship with certain parts of land had always been a major component of human civilization from the very beginning. Thus preservation and protection of that piece of land had been one of their prime goals in order to maintain peace and stable environment. This led to the emergence of the 'Concept of Territoriality', which means “the control of a given space and its resources by dominating human individuals or groups after they have succeeded in neutralizing any internal or external competitors, and its use for political, social and economic ends.”
With the introduction of sovereign state system at the Peace of Westphalia (1648), international order was restructured in favour of sovereignty of each independent states, non-interference in each other’s internal matters, and unity of a state’s territory. The concept of “territorial sovereignty” became prominent concept which basically called for the absolute as well as exclusive sovereign right and competences within internal dealings of that territory without any outside interference. In other words, it means nothing more than the competencies exerted by a state over, or within, its territory. The development of a norm concerning respect for states’ territoriality is particularly important because the territorial disputes have been the major cause of enduring interstate rivalries and succeeding wars.
After reviewing studies on interstate wars, John Vasquez wrote that “Of all the issues over which wars could logically be fought, territorial issues seem to be the ones most often associated with wars. Few interstate wars are fought without any territorial issue being involved in one way or another.” In fact, major wars of the last two hundred years (Napoleonic Wars, First and Second World Wars) were all primarily a territorial wars. Therefore, it led to the need for a strong protection, unity and integrity of territories of states. After the First World War, with the adoption of the League Covenant, ‘Principle of Territorial Integrity’ emerged as one of the central foundation of the new international legal order.
Article 10 of the Covenant of the League of Nations declared that ‘the Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all the Members of the League.’ Article 11 of the Montevideo Convention on Rights and Duties of States, 1933, provided that ‘the territory of a state is inviolable and may not be the object of military occupation nor of other measure of force imposed by another state directly or indirectly or for any motive whatever even temporarily.’ Article 2(4) of the United Nations Charter emphasized that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Such views have also been reflected in other documents. Article 17 of the Charter of the Organization of American States in 1948 proclaimed that ‘the territory of a state is inviolate.’
However, one must distinguish between the concepts of territorial integrity and inviolability of frontiers. Although they are clearly connected in that a violation of a frontier, for example, could also involve a violation of the territorial integrity of a state, there is a basic conceptual difference in that not every border violation constitutes a violation of territorial integrity. The incursion across the frontiers of another state might occur as a result of the right of self-defence in which case the territorial integrity of the state is not offended in international law. There are fundamental differences between the notions of territory and frontier, since the former operates to express the physical basis of the state and manifests its identity within the international community, while the latter marks the extent of the physical expression of the state. The concept of territorial integrity is therefore broader and more fundamental than that of the inviolability of frontiers. It may indeed be that the latter is but one aspect of the former, since in many ways the inviolability of frontiers constitutes a concretization of the concept of territorial integrity.
Principle IV of Helsinki Final Act of the Conference on Security and Co-operation in Europe provided that:
(T)he participating States will respect the territorial integrity of each of the participating States. Accordingly, they will refrain from any action inconsistent with the purposes and principles of the Charter of the United Nations against the territorial integrity, political independence or the unity of any participating State, and in particular from any such action constituting a threat or use of force. The participating States will likewise refrain from making each other’s territory the object of military occupation or other direct or indirect measure of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal.”
Two of the most authoritative UN General Assembly declarations also laid down the overriding role of the principle of territorial integrity, namely, (I) Declaration on the Granting of Independence to Colonial Countries and People, 1960, and (II) Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 1970. Para 6 of the UNGA resolution 1514 (XV) declared that ‘any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’. It was also echoed in the 1970 GA resolution 2625 (XXV) of 1970, where it was noted in the section on the principle of equal rights and self-determination of peoples that every state ‘shall refrain from any action aimed at the partial or total destruction of the national unity and territorial integrity of any other State or country’. The point was also included under the principle of the sovereign equality of states, which was deemed to include the proposition that ‘the territorial integrity and political independence of the State are inviolable’.
Thus, it seems that the concept of territorial integrity in international law protects the state from unlawful interference by other states with regard to its territory. It is not, however, an absolute concept since the doctrine of self-defence permits states in certain circumstances to resort to the use of force against the territorial integrity of other states. In addition, a state may of course voluntarily alter its territorial composition by acquiring territory or ceding or exchanging territory. What are not permissible in the light of the principle would be changes in territorial extent by force. Since the concept of self-determination inherently consists of both the internal and external components, international community continues to exhibit a highly sceptical and ambiguous attitude towards claims for self-determination, especially taking into consideration its extreme secessionist tendencies which vigorously strives for ‘by-passing sovereignty in the name of sovereignty’.
The concept of self-determination basically challenges some of the key essential components of a state’s very existence as states in international sphere, namely, ‘state sovereignty’ including both the preservation of territorial integrity and political independence. State sovereignty is the ultimate criteria for an entity to become international legal person in order to join exclusive community of nations in international law, in which states traditionally remains the only subject of international law.
The notion of territorial integrity includes both ‘territorial preservation’ and ‘territorial sovereignty’, where as the political independence requires both ‘exclusive internal and equal external sovereignty’. Therefore with above points, we can say that international community upheld the territorial status quo of states in order to maintain international stability and ensures their own existence, many times at the cost of right of oppressed peoples. So it undermines the true emancipatory values of the principle of self-determination. Thus it prompted Prof. Richard Falk to opine that the “international law normally takes a statist view of self-determination”.
Theoretically, the state can be considered as the body that has been entrusted by international law with the responsibility of representing its citizens. It can be seen as a simple instrument or an apparatus that is primarily meant to enable the people to determine them, politically, economically, socially and culturally. It is significant in this regard that both the Covenants of International Human Rights Law talks about “peoples” and not about “states” when they state, as do many UN General Assembly resolutions (including its most authoritative 1970 Declaration on Friendly Relations), that peoples have the right to self-determination and that, by virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development. Thus the main actor, though still behind the scenes, is the people and not the state. Consequently, the right to sovereign territorial existence is materially a right of the people. This is a crucial element without which one cannot understand the true contemporary legal meaning, scope and implications of territorial integrity.
So, one of the key conclusion to be drawn from the above is that the principle of territorial integrity will remain relevant only if it incorporates the idea that its fundamental goal is to protect the existence of the people. As U. O. Umozurike has pointed out:
the ultimate purpose of territorial integrity is to safeguard the interests of the peoples of a territory. The concept of territorial integrity is …. Meaningful (only) so long as it continues to fulfill that purpose to all the sections of the people.
Such an understanding of the concept would bring the principle of territorial integrity closer to the right of self-determination even though they have traditionally been opposed to one another. However, the right to self-determination has throughout maintained the potential to de-link itself from territorial integrity, whenever it appears that the state is no longer able to reflect popular sovereignty. Thus, Abdelhamid El Ouali has underscored that:
the principle of territorial integrity is the principle that recognizes the sovereign existence of peoples, represented by their own states, within territories the legal basis and the limits of which have been established in accordance to international law.
The principle of territorial integrity does indeed reflect the territorial sovereign right of the existence of peoples represented by their states. Thus the modern trend is to treat territorial integrity as a rebuttable presumption, which can be invoked only by states that act in accordance with the principle of self-determination.
Decolonization ContextNow we shall deal with the contextual application of these two principles, first in the context of Decolonization, and later on with the Post-Decolonization context where we trace out several emerging customary norms of self-determination outside the period of decolonization.
Initially when the UN Charter was first adopted, the legitimacy of colonial rule in Asia and Africa was not really much of an issue. Most of the European Colonial Powers did not comprehend the application of right of self-determination in their respective overseas colonial territories. Thus they treated self-determination as a mere guiding political principle for the attainment of ‘self-government’. Nevertheless the principle evolved in such a manner that no drafter could have ever foreseen. They initially resisted the claims of anti-colonial forces, but soon the momentum generated by the anti-colonialist movement (in Asia and Africa) supported by Socialist States shifted the whole emphasis of the principle from ‘self-government’ to ‘right to independence from the colonial rule’. Thus it de-legitimized the very existence of colonial rule over these dependent territories of Trust and Non-Self-Governing territories.
Under the general understanding of the principle of self-determination, all self-identified groups with a coherent identity and connection to a defined territory are entitled to collectively determine their political destiny in a democratic fashion and to be free from systematic persecution. It concurs with the ‘need to pay regard to the freely expressed will of people’. But such a definition will always remain vague and indeterminate unless it is viewed in the light of a particular context of its application. Thus in the context of decolonization, the beneficiary (self) of the right becomes clearly apparent, namely, people of colonies. Now it remains to be seen whether in this particular context self-determination trumps the norm of territorial integrity, or vice versa.
Frantz Fanon viewed the history of colonialism as the ‘the history of pillage’ and that colonialism imposes material and moral violence which must be struggled against. Judge Ammoun’s famous separate opinion in the Namibia (1971) and Western Sahara (1975) cases before the International Court of Justice stated that the colonialism is a plague which causes a distortion in history for the colonised. He argued that self-determination is the only means by which a claimant people may overcome that historical distortion and reassert their independence.
Nevertheless, the meaning and definition of colonialism for the purpose of self-determination remains highly specific and limited in nature based on the “theory of salt-water colonialism” where self-determination could only apply to territories which were separated from their metropolitan parent by oceans or high seas. Thus it described colonies as “geographically separate, and distinct ethnically and culturally from the country administering it”. In this way, overland acquisitions and annexations of territories were excluded from consideration. It excluded the ethnic groups within a colonial territory who regarded ‘the majority rule’ as alien or oppressive. So in the absence of any requirement of strict adherence to internal self-determination, the elites within the state were rendered free from ‘colonial stigma’ no matter how oppressive and unrepresentative their rule in the state may have been. Therefore, colonial self-determination attained extreme measure of conceptual consistency mainly because of its reliance on a salt-water definition of colonialism, meant exclusively for European colonies in Asia and Africa.
(a)
1960 General Assembly Declaration In 1960 UN General Assembly adopted the Resolution 1514(XV) on Declaration on the Granting of Independence to Colonial Countries and Peoples with the overwhelming majority. It is seen as the “Magna Carta” of decolonization which articulated a revolutionary change in the essential character of the principle of self-determination, where the pattern of meticulous preparation for independence favoured by the UN Charter for the Trust Territories was abandoned in favour of “a speedy and unconditional end to colonialism”. It was meant to eradicate colonialism which most states by late 1950’s had recognized to be a palpable evil.
Between the early 1950s and the 1960s, at the behest of socialist countries led by the Soviet Union, and with the strong support of the developing countries that had already achieved political independence, the principle of self-determination was vociferously invoked within the UN to legitimize the termination of colonial rule. When the initial reluctance of Western countries gradually gave way to grudging acceptance of the new trends, a wide measure of agreement evolved in the UN both about the idea that non-self-governing territories should have the opportunity freely to choose their international status and about the manner in which their right to self-determination would be implemented. This Declaration provides an authoritative interpretation of the scope and content of the right to self-determination as it for the first time gives a definition of the right in article 2 of this Declaration, which was later reiterated in number of resolutions, declarations and international covenants on human rights.
In its preamble, the Declaration proclaims ardent desire of peoples of the world to end the colonialism in all its manifestations and convinced that the continued existence of colonialism prevents the development of international economic co-operation, impedes the social, cultural and economic development of dependent peoples and militates against the United Nations ideal of universal peace. It also mentioned that “all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory, thus it solemnly proclaims the necessity of bringing speedy and unconditional end to colonialism in all its forms and manifestations. Further it stated that:
The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation … All peoples have the right to self-determination, by virtue of their right they freely determine their political status and freely pursue their economic, social and cultural development … Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence ... Immediate steps shall be taken, in Trust and Non-Self-Governing territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.
The Declaration categorically reaffirms the right of all peoples to self-determination, the competence of the United Nations in assisting the movement for independence of Trust and Non-Self-Governing Territories, and the obligation of member states to observe the principles of the Charter, the Universal Declaration on Human Rights and the current Declaration. In addition, the Declaration presented two principles that provide some assistance in defining the right to self-determination. The unlawfulness of subjecting peoples to alien subjugation expressed in paragraph 1 of the Declaration points directly to the idea that those peoples who can legitimately claim the right to self-determination are also those who at the material time of the claim are under alien domination and therefore are denied their right to self-determination. The principle of the inviolability of the territorial integrity of peoples in paragraph 4, 6 and 7 confirms the notion that self-determination is a right of a territorially based group, as opposed to a dispersed minority or of an individual. The Declaration defines self-determination as self-government by independence. This is explained by its primary concern with the subcategory of colonial peoples. The Declaration does affirm its conviction that “all peoples have an inalienable right to complete freedom” though for colonial peoples, the Declaration shows a strong preference for independence as the means of exercising that right, ignoring the two other modes that have evolved in UN practice, namely, ‘integration’ and ‘association’ as mentioned in the General Assembly’s Resolution 1541 (XV) , adopted on the same day. This resolution supplies an even more authoritative definition of the meaning of the right of peoples to self-determination.
It establishes a precise and comprehensive statement of both the criteria for identifying a dependent people and the point at which such a people can be said to have exercised its right to self-determination. This resolution has furnished the basis of subsequent UN practices of self-determination and the principles underpinning UN actions on decolonization. It provides twelve principles, where Principle VI specifically points out that a Non-Self-Governing Territory can be said to have reached a full measure of self-government by (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State.
(b)
The 1970 Declaration on Friendly Relations A decade later in 1970, the General Assembly adopted a landmark restatement of International Law through its Resolution 2625 (XXV) on 24 October 1970 called “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. It still stands as the most authoritative interpretation of International Law in general and right to self-determination in particular.
As regarding those peoples to whom the right of self-determination applies, the Declaration on Friendly Relations largely focused on the right of peoples of colonies (in paragraph 2(b)) to bring speedy end to colonialism while having due regard to the freely expressed will of the peoples concerned. In paragraph 6, it was laid down that the territories of colonies or Non-Self-Governing Territories have status separate and distinct from the territory of the State administering it, meaning that the argument of territorial integrity of administering states cannot be brought forward in the case of these colonies. Thus right to self-determination of peoples of these dependent territories (colonies) prevails over the general norm of territorial integrity. Nevertheless the wording of the declaration was not strictly limited to the colonial populations, instead it also included all groups whose self-government is compromised by external subjugation, namely, “subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle”. Thus it enlarged the scope and application of principle of self-determination beyond decolonization context, details of which we shall discuss later. As to the exercise of the right to self-determination, the Declaration repeated the three modalities originally outlined in Resolution 1541, which are: independent status, free association with an independent state, and integration with an independent state.
The Declaration added a fourth option, “the emergence into any other political status freely determined by a people.” Even though both these landmark Declarations (Resolution 1514 & 2526) laid down the prime importance of maintaining the norm of territorial integrity and political unity of the state, nevertheless as it was discussed earlier, they only recognized it as a general rule which must be observed in a normal situations. But in a special or exceptional situation like colonialism, the principle of self-determination comes into operation as a special rule – thus overriding territorial integrity, at least in colonial situations.
Thus close scrutiny of these General Assembly pronouncements, the statements made by States in the United Nations both before and after their adoption, as well as the practice of the UN in the area of decolonization, warrants the conclusion that in the 1960s there evolved in the world community a set of general standards specifying the principle of self-determination enshrined in the UN Charter, with special regard to colonial peoples. The legal position was best summarized in 1971 by the ICJ in its Advisory Opinion on Namibia, when the court held that:
The subsequent development of international law in regard to Non-Self-Governing Territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them.
Antonio Cassese pointed out several essential contents of the standards concerning colonial peoples, which can be outlined as follows:
(1) all peoples subjected to colonial rule have a right to self-determination, that is, to ‘freely determine their political status and freely pursue their economic, social and cultural development’.(operative paragraph 2 of Resolution 1514 (XV);
(2) this right only concerns external self-determination, that is, the choice of the international status of the people and the territory where it lives;
(3) the right belongs to the people as a whole: if the population of a colonial territory is divided up into various ethnic groups or nations, they are not at liberty to choose by themselves their external status. This is because the principle of territorial integrity should here play an overriding role. Indeed, under operative paragraph 6 of Resolution 1514 (XV), ‘Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations’. It is apparent, both from the text of this provision and from the preparatory work, that developing countries, with the full support of socialist States and without any opposition from Western countries, firmly believed that colonial boundaries should not be modified, lest this would trigger the disruption of many colonial countries, as well as serious disorder as a result of the carving up of old States into new. In short, the principle of Uti Possidetis was regarded as paramount. These geopolitical considerations led States actually to deny the right of self-determination to individual ethnic groups within colonial territories;
(4) as for the procedures for realizing the right to self-determination, States ultimately made a distinction based on the final result of self-determination, that is, according to whether a colonial country would (i) end up as a sovereign independent State, or (ii) associate with an independent State or instead (iii) integrate into an independent State. For the first of these three cases, it was not formally required that the wishes of the population concerned should be ascertained by means of a plebiscite or referendum. On the contrary, for the other two cases Resolution 1541 (XV) required that association or integration with an independent State ‘should be the result of a free and voluntary choice by the peoples of the territory concerned expressed through informed and democratic processes’ (in the case of integration even more stringent requirements were set out);
(5) once a people has exercised its right to external self-determination, the right expires. This may be inferred from paragraph VI of the Principle on self-determination laid down in the Declaration on Friendly Relations.
Once independence was achieved, no matter how arbitrarily the boundaries of these colonies were initially drawn (without any regard to the ethnic, national and cultural considerations), the principle of territorial integrity of these new States (erstwhile colonies) freezes the territorial status quo post independence, based upon the doctrine of Uti possidetis (as you possess, so may you possess) which converts former colonial boundaries into new international state borders.
(c)
Judicial PronouncementsThe judicial pronouncements by International Court of Justice in a number of succeeding decisions since 1971’s Namibia case firmly established self-determination as fundamental international legal right (especially in the context of decolonization). In the Namibia case , the Court was asked by the Security Council for an advisory opinion concerning South Africa’s occupation of Namibia in the face of resolutions by the U.N. revoking its League of Nations Mandate and declaring illegal its continued occupation of the territory. This question partly depended on whether the UN had the power to revoke South Africa’s League of Nations Mandate and whether it had grounds for revocation. The court’s discussion of self-determination came in its interpretation of the nature of the Mandate, particularly of the concept of the “sacred trust” bestowed upon the Mandatory Power. The court’s interpretation of the “sacred trust” in light of the principle of self-determination contributed to its holding that the Mandate over Namibia was revocable in the face of a material breach. The court agreed with the UN that such a material breach had occurred because of South Africa’s policy of apartheid. The court held that apartheid constituted a violation of South Africa’s duties under the Mandate as well as its obligation under the UN Charter to “observe and respect, in a territory having an international status, human rights and fundamental freedoms for all without distinction of race”. The court held that “plague of colonialism gives rise to the need for an international law of self-determination, a law whose goal would be to restore the world to its true history, free from the distorting effects of colonialism. It was also held that “the ultimate objective of the sacred trust (of the mandate system) was the self-determination and independence of the peoples concerned”.
Even though self-determination issue was not a central issue in this opinion, but the court nonetheless displayed a strong acceptance of self-determination as a substantive right that accrues to peoples or at least to non-self-governing territories including people of Namibia. Thus it concluded by saying that “the subsequent development of international law in regard to Non-Self-Governing Territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them”.
In 1975’s Western Sahara case , the I.C.J. was confronted with many of the central issues of the law of self-determination. Spain (administering power), which had ruled the Western Sahara since the late nineteenth century, had agreed to hold a referendum to determine the wishes of the people belonging to the territory after series of General Assembly resolutions requesting her to grant self-determination to the colony of Western Sahara. But Morocco and Mauritania each claimed sovereignty over the territory of Western Sahara. They based their claims on legal ties that existed at the time of Spanish colonization between the Western Sahara and Morocco and the Mauritanian entity. So they claimed that the grant of self-determination to the territory would violate the territorial integrity principle.
Thus the UN General Assembly asked the International Court of Justice for an advisory opinion on the legal status of the Western Sahara at the time of colonization. The General Assembly basically asked two crucial questions; (a) was Western Sahara at the time of the colonization by Spain a terra nullius ?, and if not, (b) what were the legal ties between this territory and the kingdom of Morocco and the Mauritanian entity? The first question was out rightly dismissed and the court comes to the question of nature of legal ties between these entities at the time of colonization. The court observed that:
The materials and information presented … do not establish any ties of territorial sovereignty between the territory of Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found legal ties of such a nature as might affect the application of resolution 1514 (XV) in the decolonization of Western Sahara and, in particular, of the principle of self-determination through the free and genuine expression of the will of the peoples of the Territory.
Thus in court’s view, in the absence of any ties of sovereignty, no ties existed that could affect the application of self-determination with respect to Western Sahara, in particular the application of the self-determination through the free and genuine expression of the will of the peoples of the territory. The court further noted that:
the validity of the principle of self-determination, defined as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases, the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a “people” entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances.
In his concurring opinion, Judge Dillard stated that the Court’s review of the numerous resolutions of the General Assembly dealing with decolonization in general and Western Sahara in particular, fortified by the “two dicta in the Namibian case indicate in my view that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations.” Thus the Court reiterated that the principle of self-determination applies to all non-self-governing territories, and the people of Western Sahara were certainly beneficiaries of this right.
In the East Timor case , the court discussed the issue of self-determination for the people of East Timor, then a non-self-governing territory. It noted that the principle of self-determination exists in positive international law and may even be viewed as having an erga omnes character.
Thus, at least in the colonial context, with the several major landmark UN General Assembly declarations, resolutions, state practices in this regard and number of affirmative judicial pronouncements clearly established the norm that right of self-determination of people has attained the status of customary international law. Therefore in the question of “Self-determination v. Territorial Integrity” in the colonial context, self-determination came out as a clear winner which overrides the principle of territorial integrity.
Post-Decolonization: Emerging Customary NormsIn the post decolonization period, which is generally seen as the period since 1975, the principle of self-determination evolved out of its traditional customary decolonization mandate and found its way in several other areas of application. Even though self-determination had found its niche in the process of decolonization, its application in later cases has always remained ambiguous and lacks certainty, let alone their positive legal application. The principle of self-determination came into such a close contact with decolonization process that the states and scholars reluctantly agreed its application beyond this context in other areas. Thus it almost called upon the need to decolonize the law of self-determination itself. Nevertheless we can point out that at least in two other areas, customary norm of self-determination are emergent.
The genesis of these new developments can be traced to the 1970 Friendly Relations Declaration’s provision on the principle of self-determination. In Para 2(b), which throws light on who the beneficiaries of self-determination are, declares “to bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter”.
Thus apart from the people of colonies, for the first time the peoples under alien subjugation, domination and exploitation were also recognized as having status as a holder of the right of self-determination. Even though the meaning of these new categories were not mentioned anywhere in the Declaration, nor can it be traced properly from the Travaux preparatoires. Another very important provision of the Declaration is its ‘Saving Clause’ in Para 7 which basically affirms the overriding norm of territorial integrity over self-determination in all normal situations where secession as a matter of right was out rightly rejected. Nevertheless this paragraph lays down a crucial condition (caveat) which says: to be entitled to protection of its territorial integrity against secession, a state must possess a government representing the whole people belonging to the territory without distinction as to race, creed or colour. This clause can be interpreted in two ways: first one basically calls for the application of internal self-determination of a particular group of people (of race, creed and colour) or their right of democratic representation through self-government within the state. But the next one simply legitimizes secession of a territory when the government of that state does not represent the whole people, or rather it means that those politically and culturally unrepresented peoples within that state may opt for separation or secession from the union.
(a)
People under Foreign Domination and OccupationState practice and UN resolutions make it clear that external self-determination is a right belonging not only to colonial peoples but also to peoples subject to foreign occupation. This notion, which had already been put forward, although in rather vague and ambiguous terms, in the 1960 UN Declaration on the Independence of Colonial Peoples, and then implicitly upheld in the Common Article 1 of the two UN Covenants on Human Rights of 1966, was spelled out in 1970’s Friendly Relations Declaration. Rather than presenting colonialism as an umbrella concept embracing all situations giving rise to the right of self-determination – as argued by many developing and socialist States – the Declaration makes it clear that ‘alien subjugation, domination and exploitation’ may exist outside a colonial system. The broader ambit of the concept has been widely accepted not only by individual groupings of states, but by the world community at large. In this respect, the authoritative pronouncement of the UN International Law Commission in 1988 while discussing the provision on colonialism of the ‘Draft Code of Crimes against the Peace and Security of Mankind’. All members of the Commission agreed that self-determination did not only apply to colonial peoples but also to ‘peoples under alien subjugation’. According to the Report of the ILC to the General Assembly:
“The principle of self-determination, proclaimed in the Charter of the United Nations as a universal principle, had been applied mainly in eradicating colonialism, but there were other cases in which it had been and could and should be used. By not tying it exclusively to colonial contexts, it would be applied much more widely. In that connection, all members of the commission believed that the principle of self-determination was of universal application.”
The problem, nevertheless, arises of ascertaining the meaning of ‘alien subjugation, domination and exploitation’. However the complexity of this issue is highlighted by reference to the body of state practices and international documents on the subject. The definition of alien domination cannot be ascertained without first taking into account the practice of the United Nations and its member states in the years following the adoption of the Declaration. Two points need to be noted here: first, there is a large divergence between the statements made by Third World and Socialist States in connection with resolutions advocating a broad definition of self-determination and the actual behaviour of these states. In actual practice, these states adopted a much narrower view of self-determination, one which is primarily motivated by real politik and concern for territorial integrity. Secondly, these states (developing and socialist states) traditionally espoused an expansive right to self-determination in the General Assembly had in fact advocated a limited right to self-determination at two critical junctures in the evolution of the right of self-determination from political principle into legal rules, namely , first during the drafting of Article 1 of the 1966 International Covenants on Human Rights in 1955-6, and then during the drafting of Article 1(4) of the first Additional Protocol to 1949’s Geneva Conventions in 1974-7.
Article 1 of the First 1977 Geneva Protocol supports the thesis that the right to external self-determination is considered to arise when a state dominates the people of a foreign territory using military means. Although the language employed is certainly broad enough to encompass ‘foreign domination’, the article does not contain an express reference to that form of the denial of self-determination. During the drafting process of this protocol, inclusion of the phrase ‘alien domination’ in Article 1(4) (on the wars of national liberation as international armed conflicts) was replaced, at the instigation of the Latin American States, by the more restrictive ‘alien occupation’. Also in the United Nations, small number of states also considered economic exploitation of a foreign state (in the form of neo-colonialism) as a breach of self-determination. Nevertheless the vast majority of states rejected all attempts to broaden the class of peoples entitled to external self-determination to include those suffering from economic exploitation.
Later General Assembly resolutions on self-determination which characterizes ‘acts of foreign military intervention, aggression and occupation’ as absolute infringements of the right of self-determination suggests that, in actual practice, states have agreed to limit the concept of ‘foreign domination’ to intervention by use of force and military occupation.
The actual state practice on the matter primarily consists of declarations and statements made by national delegates in the international forums, thus setting out states’ views on the matter. It appeared to have covered situations such as Afghanistan, Kampuchea (Cambodia), the Arab territories occupied by Israel, the Baltic States, Grenada, East Timor and Kuwait. As for the United Nations practice on the matter is concerned, the major instances of military occupation of foreign territories on which the UN General Assembly has adopted resolutions includes: the Soviet invasion of Hungary in 1956, the Chinese occupation of Tibet in 1959, the Israeli occupation of the Arab territories in 1967, the Turkish occupation of Northern Cyprus in 1974, the Indonesian occupation and annexation of East Timor, the 1979 Vietnamese invasion of Kampuchea, the Soviet invasion of Afghanistan in 1979, and the 1990 Iraqi invasion of Kuwait. In most of these cases, UN action was limited to the adoption of resolutions demanding that the right to self-determination of occupied people be respected. In some of these cases the UN called upon member states to refrain from recognizing, that is legitimizing, the situations brought about by the denial of self-determination.
Although the United Nations failed to implement the right at issue in number of these cases (especially because permanent members of the Security Council were either directly or had a strong interest in the outcome of these conflicts), but these failure being motivated by political circumstances, does not in any way question the very existence of the right of occupied peoples to self-determination. Thus it is reasonable to conclude that the term ‘alien domination’ or ‘subjugation’ does not contemplate economic exploitation or ideological domination. Rather ‘alien subjugation, domination and exploitation’ covers those situations in which any one power dominates the people of a foreign territory by recourse to force. If this is so, then self-determination is violated whenever there is a military invasion or belligerent occupation of a foreign territory, except in case of use of force under the self-defense provision of Article 51 of UN Charter.
Such proposition was affirmed in the 1974 Definition of Aggression adopted by the General Assembly, where it was clearly mentioned in the preamble that “reaffirming the duty of States not to use armed force to deprive peoples of their right to self-determination, freedom and independence, or to disrupt territorial integrity”. Further, according to Article 7 of this definition, “ Nothing in this definition, and in particular Article 3, could in any way prejudice the right of self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the 1970 Declaration on Friendly Relations , particularly peoples under colonial and racist regimes or other forms of alien domination: nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of Charter and in conformity with the above mentioned Declaration”. Thus taking into account all these arguments, it is said that customary rule on external self-determination has emerged for the peoples under foreign military occupations.
(b)
Racial Groups’ Right to Internal Self-DeterminationThe emergent right of racial groups to internal self-determination was a result of the 1970 Declaration on Friendly Relations which eventually crystallized and amalgamated the previously conflicting views of states. During the drafting of the Declaration, a conflict emerged between the western states and their socialist counterparts (supported by third world states), where the western states were in favour of extending the right of internal self-determination to all peoples of sovereign states based on their western ideology as well as its use as potential political weapon against the socialist states and authoritarian regimes in the developing world. Where as the socialist states were eager to restrict the right of internal self-determination as much as possible.
In the preparatory work of the 1970 Declaration, the Western view that self-determination ought to be a universal right was advanced in two proposals by US in 1966 and UK in 1967. Their proposals were designed to further the concept of political democracy and included a provision relating to peoples distinct from the remainder of the population of the state. The British proposal noted that the right to self-determination also belonged to the people of a territory geographically distinct and ethnically or culturally diverse from the remaining other parts of the state administering it. But the developing and socialist countries strongly opposed these provisions where they claimed that the language of the texts could be invoked to legitimize secessionist movements and the disruption of sovereign states. So as a compromise solution, Italian delegation came up with a draft that added a saving clause to the earlier US and British proposals which was later welcomed by large number of states. However, Lebanon proposed an amendment to the draft and thus included the phrase which is at the heart of this discussion: ‘without distinction as to race, creed or colour’.
It is worth noting that this phrase initially appeared in a 1969 amendment tabled by Czechoslovakia, Poland, Romania and USSR, which was taken from the operative paragraph 5 of the General Assembly Resolution 1514 (XV) of 14 December 1960. The intention of including this phrase is to restrict the general thrust and scope of the clause on self-determination which would otherwise give a very sweeping right to all other collectives such as national, ethnic, linguistic etc. Thus in the end the views of the socialist states prevailed. The majority did not agree with the western view that internal self-determination ought to be considered a universal right to which the people of independent and sovereign states were entitled.
Even though the Declaration largely focused only on the right of external self-determination and considered internal self-determination as a secondary importance. Nevertheless it was envisaged in the saving clause of the Declaration. The logical reading and textual translation of the clause provides that: if in a sovereign state the government is ‘representative’ of the whole population, in that it grants equal access to the political decision making process and political institutions to any group and in particular does not deny access to government for groups on the grounds of race, creed or colour, then that government respects the principle of self-determination. Thus consequently, groups are entitled to claim a right to self-determination only where the government of a sovereign state denies access on such grounds.
The expressions ‘race’ and ‘colour’ shows an identical concept: race. It has its roots in the language of Article 2(1) of the Universal Declaration of Human Rights, which bans any distinction based on ‘race, colour, sex, language, religion, political or other opinion’. The word ‘creed’ refers to a ‘system of religious beliefs’. So according to the text of the Declaration, right of internal self-determination seem to be conferred only to the racial or religious groups living in a sovereign state which are denied access to the political decision making process, thus linguistic or national groups do not seemed to have such right. But question is why the drafters gave such privileges to racial and religious groups while ignoring other collectives. Regarding the racial groups, the strong anti-racist sentiments were voiced by the developing countries resulting in a consensus that racism was an evil practice and contemptible ill which needs to be removed by adopting extreme measures that might even come at the cost of disrupting political unity and territorial integrity of a state.
It appears that on the provision on religious discrimination, strong feelings were voiced by countries that were keen to protect religious groups. According to Cassese, since religious persecution is a relatively isolated phenomenon, the widely shared belief was that the granting of right of self-determination to groups suffering on this ground was unlikely to disturb the political unity and territorial integrity of the states. The most states believed that the granting of self-determination to other collectives like ethnic, linguistic or cultural groups would be an end of the norm of territorial integrity. Even though these groups (racial and religious groups) were afforded rights under the Declaration, but in reality it did not meant much. It only provides an ‘equal access to government’ and not ‘equal rights’, which in turn means that states allow racial and religious groups to have access to government institutions. The state practice in the UN forum since 1970s was clearly evident of the fact that the granting of internal self-determination to racial groups persecuted by central government has become part of customary international law.
The string of General Assembly resolutions on South Rhodesia and South Africa (black majority ruled and discriminated by white minority) as well as number of significant statements made by western countries condemning illegal regimes based on white supremacy, called for the implementation of the principle of self-determination and majority rule. As for South Africa’s policy of Apartheid, the UK delegate to the UN Commission on Human Rights (in 9 February 1988) stated that:
the system of Apartheid, which denies them (vast majority of black population) any role in deciding how they should be governed or what sort of society they should live in, is the very negation of the right to self-determination … There should be no doubt that the UK Government joins wholeheartedly in condemning Apartheid as a flagrant violation of the right to self-determination.
In contrast, the Declaration’s clause relating to the religious groups has not matured into a customary rule because of no major cases of religious groups claiming for self-determination emerged, which rendered lack of any state practice in this matter. At the same time, the possibility of racial groups to secede under the extreme circumstances has also not become customary law.
Conclusion Therefore, we can conclude that there are three areas of the principle of self-determination which has achieved the status of customary international law, namely:
(i) Anti-Colonialist standard or Colonial self-determination;
(ii) Ban on foreign military occupation.
(iii) Racial groups be given full access to government.
Out of these three, the first two norms are related the external self-determination and thus overrides the principle of territorial integrity. Where-as the third category only dealt with the area of internal self-determination.
Endnotes:1. Martti Koskenniemi, “National Self-Determination Today: Problems of Legal Theory and Practice” (1994) 43: 2 ICLQ 249 [Hereinafter Koskenniemi]
2. Ibid
3. Jan Klabbers, “The Right to be Taken Seriously: Self-Determination in International Law” (2006) 28 Hum Rts Q 188.
4. Crawford, James (2001) “The Right of Self-Determination in International Law: Its Development and Future”, in Philip Alston (eds.) People’s Rights, pp.7-67. As cited in Amy Maguire, “Law Protecting Rights: Restoring the law of self-determination in the neo-colonial world” (2008) 12 Law Text Culture 15
5. Antonio Cassese, Self-determination of peoples: A legal reappraisal (Cambridge University Press, 1995) 327 [Hereinafter Cassese]
6. See Cassese, supra note 5. Guyora Binder, “The Case for Self-Determination” (1993) 29 Stan J Int’l L 223-270; Lea Brilmayer, “Secession and Self-determination: A Territorial Interpretation” (1991) 16 Yale J Int’l L 177-202; Ingrid Barnsley and Roland Bleiker, “Self-determination: from decolonization to deterritorialization” (2008) 20:2 Global Change, Peace and Security 121-136
7. Aleksandar Pavkovic and Peter Radan, “In Pursuit Of Sovereignty and Self-Determination: Peoples, States and Secession in the International Order” (2003) 3 Macq Law J 4
8. See Cassese, supra note 5, at 11.
9. Lea Brilmayer, “Secession and Self-determination: A Territorial Interpretation” (1991) 16 Yale J Int’l L 180 [Hereinafter Brilmayer]
10. A. Sureda, A., The evolution of the right of self-determination: A study of United Nations practice (Sijthoff, 1973) 17
11. Gerry J. Simpson, “The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age” (1996) 32 Stan J Int’l L 262 [Hereinafter Simpson]
12. Umozurike Oji Umozurike, Self-Determination in International law (Hamden: Archon, 1972) 3. Cited in Simpson, supra note 11, at 262.
13. See Cassese, supra note 5, at 14
14. Ibid, at 15
15. Ibid, at 17
16. Ibid.
17. Stanley W. Page, “Lenin and Self-Determination” (1950) 28:71 The Slavonic and East European Review 351
18. Ibid.
19. Ibid, at 352.
20. See Cassese, supra note 5, at 18
21. Ibid
22. Ibid.
23. Hurst Hannum, “Rethinking Self-Determination” (1993) 34 Va J Int’l L 3
24. See Cassese, supra note 5, at 19
25. Ibid.
26. See Hannum, supra note 23, at 4.
27. See Cassese, supra note 5, at 20
28. Ibid, at 22
29. Guyora Binder, “The Case for Self-Determination” (1993) 29 Stan J Int’l L 229 [Hereinafter Binder]
30. Ibid
31. Ibid
32. See Cassese, supra note 5, at 22
33. Ibid.
34. See Hannum, supra note 23, at 8
35. See Cassese, supra note 5, at 27
36. Nathaniel Berman, “Sovereignty in Abeyance: Self-Determination and International Law” (1988) 7 Wis Int’lJ 73 [Hereinafter Berman]
37. See Hannum, supra note 23, at 9
28. ‘Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question’, Official Journal of the League of Nations, Special Supplement No. 3, October 1920, 14. Cited in Cassese, supra note 5, at 29
39. See Cassese, supra note 5, at 28
40. Ibid, at 29
41. The Aaland Islands Question, at 27, League of Nations Doc. B7.21/68/106 (1921) (English version) (Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs). Cited in Hannum, supra note 23, at 10
42. Ibid, at 28
43. See Hannum, supra note 23, at 10
44. See Cassese, supra note 5, at 31
45. See Koskenniemi, supra note 1, at 246
46. See Cassese, supra note 5, at 31
47. Ibid
48. See Koskenniemi, supra note 1, at 246
49. Ibid
50. Abdelhamid El Ouali, “Territorial Integrity: Rethinking the Territorial Sovereign Right of the Existence of the States” (2006) 11:4 Geopolitics 645 [Hereinafter Ouali]
51. Malcolm Shaw, Title to Territory in Africa: International Legal Issues (Clarendon Press Oxford, 1986) 180 [Hereinafter Shaw]
52. J. Agnew, “Sovereignty Regimes: Sovereignty and Territory over Time and Space”, paper presented at the International Workshop, “Globalization, Territoriality, and Conflict”, The Institute for International, Comparative, and Area Studies (IICAS), University of California, San Diego, January 2004, p. 1. Cited in Ouali, supra note 50, at 635
53. See Ouali, supra note 50, at 632.
54. John A. Vasquez (1993) The War Puzzle, Cambridge: Cambridge University Press, p.151. Cited in Mark W. Zacher, “The Territorial Integrity Norm: International Boundaries and the Use of Force” (2001) 55:2 International Organization 216
55. http://www.unhcr.org/refworld/type,MULTILATERALTREATY,LON,,3dd8b9854,0.html
56. http://www.cfr.org/publication/15897/montevideo_convention_on_the_rights_and_duties_of_states.html
57. See Shaw, supra note 51, at 181
58. http://www.osce.org/documents/mcs/1975/08/4044_en.pdf
59. See Berman, supra note 36, at 102
60. Stuart Elden, “Contingent Sovereignty, Territorial Integrity and the Sanctity of Borders” (2006) 26:1 SAIS Review 11
61. R. Falk, ‘The Rights of Peoples (In Particular Indigenous Peoples)’, in Crawford, The Rights of Peoples, 24-7. Cited in Cassese, supra note 5.
62. McCorquodale, Robert (1994), “Self-determination: A Human Rights Approach”, ICLQ, vol. 43, (note 122). Cited in Ouali, supra note 50, at 645
63. See Ouali, supra note 50, at 645
64. Ibid.
65. Ibid.
66. U. O. Umozurike (1972) Self-Determination in International Law, Hamden, CT: Archon Books, p.236. Cited in Ouali, supra note 50, at 645.
67. See Ouali, supra note 50, at 646
68. Michael P. Scharf, “Earned Sovereignty: Juridical Underpinnings” (2004) 31:3 Denv J Int’l L & Pol’y 379
69. See Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (16 Oct.). Cited in Klabbers, supra note 3, at 194
70. Sharawy H 2003 ‘Frantz Fanon and the African revolution, revisited at a time of globalization’ CODESRIA 30th Anniversary Conference Dakar. Cited in Amy Maguire, “Law Protecting Rights: Restoring the law of self-determination in the neo-colonial world” (2008) 12 Law Text Culture 17
71. Amy Maguire, “Law Protecting Rights: Restoring the law of self-determination in the neo-colonial world” (2008) 12 Law Text Culture 17
72. See Simpson, supra note 11, at 272
73. See Rosalyn Higgins (1963) The Development of International Law through the Political Organs of the United Nations, 104. Cited in Simpson, supra note 11, at 273
74. See Simpson, supra note 11, at 273
75. http://www.un.org/documents/instruments/docs_en.asp?year=1969
76. UN General Assembly Resolution 1514 (XV) passed on 14 December 1960 by a vote of 89 to 0, with 9 abstentions (Australia, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa, UK, US.)
77. See Simpson, supra note 11, at 269
78. Ved P. Nanda, “Self-Determination Under International Law: Validity of Claims to Secede” (1981) Case W Res J Int’l L 275 [Hereinafter Nanda 1981]
79. See Cassese, supra note 5, at 71
80. Passed on 15 December 1960 by a vote of 69 to 2 (Portugal, Union of South Africa) with 21 abstentions (from Socialist, as well as some Western Countries).
81. http://www.un.org/documents/instruments/docs_en.asp?year=1970
82. Para 2(b) of UN General Assembly Resolution 2625 (XXV).
83. Para 4, Ibid. This is also affirmed in the Western Sahara case. 1975 ICJ Rep. 12 n. 81.
84. ICJ, Reports 1971, 31 (para. 52). Cited in Cassese, supra note 5, at 72.
85. Principle IX (b) of Resolution 1541 (XV).
86. See Cassese, supra note 5, at 73.
87. Ratner, Steven R. (1996) “Drawing a Better Line: Uti Possidetis and the Borders of New States”, 90 American Journal of International Law,at 590. Cited in K. William Watson “When in the Course of Human Events: Kosovo’s Independence and the Law of Secession” (2008-9) 17 Tul J Int’l & Comp L 278.
88. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ 16 (June 21)
89. See Berman, supra note 36, at 97
90. Ibid, at 98
91. See Supra note 88, at 53
92. See ICJ Reports 1971, Supra note 84
93. Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16)
94. G.A. Res. 3292, 29 U.N. GAOR Supp. (No. 31) at 104, U.N. Doc. A/9361. Cited in S. K. N. Blay, “Self-Determination versus Territorial Integrity in Decolonization” (1986) 18 NYUJ Int’l L & Pol 460
95. Western Sahara Case, 1975 I.C.J. at 68
96. Ibid, at 121. See W. Ofuatey-Kodjoe, “Self-Determination” in Oscar Schachter and Christopher C. Joyner, eds, United Nations Legal Order: Vol 1 ( a Co-publication with American Society of International Law, 1995) 371
97. East Timor (Portugal v. Australia), 1995 I.C.J. 102 (30 June).
98. Ibid, at 29
99. See Cassese, supra note 5, at 129.
100. See Cassese, supra note 5, at 90
101. Yearbook ILC, 1988, vol. II, Part II, 64 (para. 266). Cited in Cassese, supra note 5, at 29
102. G. Abi-Saab (1979) Wars of National Liberation in the Geneva Conventions and Protocols, 165 HR, at 395. Cited in Cassese, supra note 5, at 93
103. UNGA Res. 38/16, of 22 November 1983 and GA Res. 41/100 of 4 December 1986. Cited in Cassese, supra note 5, at 93
104. See Cassese, supra note 5, at 98
105. Ibid, at 99
106. Ibid
107. UN General Assembly Resolution 3314 (XXIX) of 14 December 1974.
108. See Cassese, supra note 5, at 129
109. UN Doc. A/ AC. 125/ SR. 69, 18. See Cassese, at 115
110. UN Doc. A/ AC. 125/ L.80. See Cassese, at 116
111. See Cassese, at 109
112. Ved P. Nanda, “Self-Determination and Secession under International Law” (2001) 29: 4 Denv J Int’l L & Pol’y 310 [Hereinafter Nanda 2001]
113. See Cassese, supra note 5, at 112
114. Ibid, at 113
115. Ibid, at 114
116. Ibid.
117. Ibid, at 120
118. 59 BYIL, 1988, 442. See Cassese, at 121
119. See Cassese, supra note 5, at 121
