This article has been written by Deeksha.D.R.This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).
Self-determination refers to a process through which people are given the right to freely choose their own State and Government. It allows the people to choose their own economy, social and cultural developments. In International Law, it is identified as a process belonging to the people and not to the Government.
Self-determination is a political concept that evolved from the concept of nationalism. Nationalization is a process whereby the Government takes over control of an industry or a company. The term self – determination was first coined by the late United States President Woodrow Wilson during World War I. It became a peace aim after the end of World War I. The previous Austro-Hungarian and Ottoman empires, as well as Russia’s former Baltic provinces, were fragmented into a number of new states as a result of the War.
Self-determination is now a major purpose of the United Nations, as well as its ancestor, the League of Nations. The right of all peoples to self-determination is entrenched in Article 1 of the United Nations Charter. The notion was included in the Atlantic Charter of 1941 as well as the Dumbarton Oaks proposals, which eventually became the United Nations Charter. It says that, “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
A state’s right to self-determination is defined as its ability to freely determine its political, economic, social, and cultural systems. Second, the right to self-determination is defined as a people’s right to form a state or to freely select the form of their relationship with an existing state. The charter supports both interpretations (Article 1, paragraph 2; and Article 55, paragraph 1). The charter stipulates that administering authorities shall take steps to ensure political advancement and the establishment of self-governing independent regions (Article 73, paragraphs a and b; and Article 76, paragraph b).
Self – determination began in the nineteenth century during the French Revolution when the two values of popular sovereignty and nationalist resentment were combined. President Woodrow Wilson coined the term in 1918. He campaigned for a similar method to be used to the remnants of the European Concert at the end of World War I.
It was later used as the basis for the Versailles Peace Treaty, which was signed in 1919. He preferred the term “self-governance” to “self-determination” because “self-governance” suggested that people had the right to elect their own democratic government. Despite the fact that it was formulated to help minorities, its use did not imply that the principle of self-determination was recognised as a legal need, and it was not included in the League of Nations covenant. Despite the criticism, however, the principle prevailed.
The idea of self-determination had already been established worldwide when the United Nations was founded, and it was then placed in the UN Charter, which did not appear to be a logical decision at the time, since it was still considered to be controversial. Finally, under Soviet pressure, it was formally recognised and adopted in the United Nations Charter. With the passage of the two International Covenants on Human Rights in 1966, this right increasingly developed and was acknowledged as a right under international law, it also began to include the concept of human rights.
Minority-related difficulties, “indigenous peoples,” regional diversity, self-declared “nationalities,” and, in general, all phenomena associated with being allocated to a certain group, have proliferated during the globalisation period that began with the conclusion of the cold war. The creation of blocs and the commitment to international ideologies of countries with significant internal variety resulted from the ideological divide of the Cold War.
This phenomenon emphasised social inequalities, or “class” tensions, rather than ethnic, religious, or other divisions. This was why rival Powers accepted undemocratic political leaders from a variety of religious backgrounds, even those who were not totally dedicated to Western principles, as long as they supported the established blocs. Internal minorities were frequently suppressed mercilessly by such states, with no response or protection from big powers or blocs.
The influence of the past alliances quickly decreased when the power blocs that controlled the latter part of the twentieth century disintegrated. Individual expectations were broadened and anchored more securely to their “primordial ties” as a result of the globalisation of communications, a key aspect of the internationalization process, as well as the globalisation of markets and consumer networks.
So-called globalisation is inextricably tied to the rise of worldwide communications and consumption, as well as self-definition and self-affirmation at the local level. The “globalisation of norms” has risen to the fore at the international level, with one key problem being the acceptable and unacceptable levels of human rights exercise.
The globalisation of communications and the removal of all types of barriers have resulted in a considerable expansion of rights, if not as a physical reality, then at least as ambitions on the part of a large portion of humanity.
The “identity question” has resurfaced with an intensity that has been difficult to grasp in the last decade. Local groups have embarked on a process of “construction of identity” as they have become increasingly diverse – minorities who had been out of sight and voice for decades or even centuries, indigenous peoples who were widely believed to have vanished, and groups of extremely varied and curious origins.
Many of these are communities that have maintained a historically continuous connection to their past and customs, which have been kept secret for many years due to constraints on the expression of cultural identity. Most nation-states have allowed low-level cultural manifestations in limited areas and among specific minorities or indigenous peoples in the twentieth century. Minority, indigenous, aboriginal, and local communities with an unbroken link to the past have taken the chance provided by globalisation to make their voices heard.
Much of the conversation around identity revolves around “ethnogenesis” or “identity reconstruction.” Tradition or its relics are reinterpreted in light of modern globalisation conceptions, offering the people living in these communities a fresh sense of belonging and a unique perspective on global processes. After a long period of stillness, a culture has been “reinvented” in a number of instances. These cannot generally be described as peaceful processes , since they frequently involve intolerance, social disintegration, and even political violence. Furthermore, new forms of racism and xenophobia frequently feed off such affirmations of identity, leading to “fundamentalist,” “irredentist,” and other movements whose main goal is to destroy a given ethnic or intercultural society when carried to extremes. However, in many societies or centralised states, the majority group fails to “acknowledge” the existence of cultural, social, and political diversity within society, resulting in a “spiral of intolerance.”People turn to terrorism, and the basic causes of the dispute are lost in the chaos.
In the last few decades, we’ve seen this in a number of international confrontations. As a result, the United Nations Working Group on Minorities has placed a strong emphasis on the development of “early warning systems,” which include preventative measures to promote tolerance and harmony and thus avoid conflicts, as well as the promotion of “peaceful conflict resolution,” which involves finding ways to broker agreements between States and various groups that, for various reasons, arrogate rights to themselves and demand recognition of their uniqueness. Regardless of how complicated the situation is, simply ignoring it is the worst policy of all.
Overall, the issue of self-determination and minorities is inextricably linked to peace and the need to find constructive solutions in a globalised world, one in which the search for local and minority identities and origins is an integral part of the globalisation process.
Self determination justifies a people’s secession from their existing mother state only as a last resort in situations where the people are oppressed or the mother state’s government does not legitimately represent the people’s interests,Throughout the development of international law in the twentieth century, this theory has remained constant. In addition to the United Nations Charter, the 1960 Declaration on the Granting of Independence to Colonial Countries and the 1970 Friendly Relations Declaration both addressed the issue of self-determination.
However, only within the decolonization paradigm did both declarations envision self-determination leading to secession as a last resort: here, both conditions for a right to self-determination were met insofar as colonised peoples were oppressed and their colonial governments failed to adequately represent their interests. Both declarations reaffirmed the importance of existing nations’ territorial integrity, and so accepted the notion that self-determination could only result in the geographical rupture of existing states in extreme cases of tyranny or colonisation.
It might be claimed that international law evolved to incorporate self-determination in a binary form, implying rights to internal or external self-determination depending on the conditions. People who are not classified as colonised or oppressed can exercise their right to self-determination through internal mechanisms such as free association and autonomy. Oppressed or colonial peoples, on the other hand, have the right to external self-determination, which they might exercise by seceding from their mother state.
This view of self-determination was confirmed in a 1998 Canadian Supreme Court opinion regarding Quebec’s proposed secession from Canada, in which the Court stated that while all peoples have the right to various forms of internal self-determination, only some peoples, such as those who have been subjected to conquest, colonisation, and possibly oppression, have the right to external self-determination through remedial secession.
Today, it is possible to infer that international law bestows the right to self-determination on all peoples, but that the right to external self-determination, exercised by remedial secession, only applies to colonised and severely persecuted peoples under extreme circumstances.
- The United Nations Charter, 1945
Article 1(2) of the United Nations Charter, as well as Article 55, both address self-determination. There was no reference to self-determination in the Dumbarton Oaks proposals, which served as the foundation for the United Nations Charter. “It was not until the San Francisco discussions that the Soviet Union suggested a modification that added the phrases ‘based on respect for the concept of equal rights and self-determination of peoples in the language of Article 1(2) and Article 55,” writes Heather A. Wilson.
Article 1(2), which is part of Chapter I, and deals with the UN’s principles and purposes, mentions the concept of self-determination while stating one of the body’s four goals. Furthermore, the self-determination of peoples is emphasised in Article 55 as a basis on which ‘peaceful and amicable relations among nations’ are envisioned to be founded.
While the scope and definition of the rights are disputed, its evolution as a rule of law in international public law is almost unquestionable. Foreign domination and other forms of alien governance and subjugation originally referred to colonialism have evolved beyond that to include current forms of alien governance. The UN Charter’s conception of the right to self-determination is far from being directed to create a binding legal norm, but rather constitutes the mere expression of a political principle.
- UN General Assembly (GA) Resolution 1514 (The Declaration on Granting Independence to Colonial Countries and People)
“All people have the right to self-determination; by virtue of that right, they freely determine their political status and freely pursue their economic, social, and cultural development,” according to the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the GA in 1960 with 89 votes in favour, none against, and nine abstentions.
The connection of self-determination to the political status of peoples (which was understood as a political ideal with a weak legal context until 1960) can be seen as a significant step toward its eventual inclusion in the International Covenant on Civil and Political Rights (ICCPR). Similarly, the inclusion of the right to self-determination in Article 1 (common to ICCPR) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) six years later can be interpreted as a sign of the inclusion of the right to self-determination in Article 1 (common to ICCPR) of the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
Similarly, Joshua Castellino points out that Resolution 1514 links self-determination to better living conditions and greater freedom, implying that this norm was already recognised to some extent as one that fostered improved living standards and freedom. It’s possible to argue that Castellino’s point suggests that by defining self-determination in terms of human rights, Resolution 1514 indirectly invented the notion of self-determination. Furthermore, Castellino emphasises the Resolution’s understanding of self-determination, adding that “one of the main effects of the Declaration is that it incorporated self-determination as a fundamental human right, putting it within the ambit of the Universal Declaration of Human Rights 1948.”
- Other United Nations Resolutions
Innumerable Resolutions, both from the Security Council (SC) and the General Assembly (GA), address the right to self-determination and the rules of international law that govern it. The Declaration on Friendly Relations and the Declaration on the Independence of Colonial Peoples are two of the most important Resolutions approved by the United Nations, although they are not the only noteworthy Resolutions.
The Declaration on the Inadmissibility of Intervention in States’ Domestic Affairs and the Protection of Their Independence and Sovereignty (GA Resolution 2131(XX), 1965) is relevant in this situation. Other GA Resolutions on non-interference in states’ internal affairs, such as the Declaration on the Inadmissibility of Intervention and Interference in States’ Internal Affairs (Resolution 36/103, 1981), do not necessarily have the same strong legal status as the Friendly Relations Declaration and Resolution 1514 if any legal status at all. There are also other resolutions forbidding unilateral economic actions against developing countries as a form of political and economic coercion.
Another key General Assembly (GA) Resolution related to self-determination and the subjects addressed above is the Declaration on the Right to Development, GA Resolution 41/128 of December 1986. In the realm of human rights law and within the UN system, this proclamation is very noteworthy.
While this collective right has been and continues to be a high priority on the UN agenda, it is still not a recognised right in international law. The notion of self-determination, which encompasses economic self-determination and the unrestricted use of one’s natural resources, underpins the right to development.
It is also tied to the United Nations Charter, namely Article 55, the Friendly Relations Declaration, as well as other laws and ideals that promote international collaboration. Third-world campaigners and governments have almost entirely raised and evoked these issues.
Self-determination has had a great importance because it is mainly based on two arguments: first, that this right protects the community, which is important in shaping both the self of individuals and the ability to exercise their freedom; and second, that it is a safe guard to resist the threats of structures of power, exploitation and domination perpetrated by powerful peoples or majorities within the same State. In terms of international law, it involves two rights, namely, internal and external self-determination. According to international law, not all people are entitled to both rights. In order to maintain the stability of States, only those peoples who are oppressed by a larger number of people within the State they belong to can claim external self-determination. But assuming a broad notion of self-determination in which people do not need to be oppressed to be entitled to both internal and external self-determination. This assumption is not arbitrary, it is a fact that nowadays even peoples belonging to traditional democracies are claiming the right to secession that international law only recognizes for colonial peoples.
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