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The law on self-determination today

by Prof Dr iur. et phil. Alfred de Zayas*

International law is dynamic. It develops through treaties and practice. A progressive development of international law has gradually brought forward the ideal of self-determination of peoples from the early conceptions of autonomy in Woodrow Wilson’s famous 14 points via the UN-charter through to decolonisation and to the recognition of the right to secession in the states of the former Soviet Union and Yugoslavia which achieved their independence. Pursuant to the precedents created by the unilateral declarations of independence of Slovenia, Croatia, Kosovo etc. the human right to self-determination in the form of secession has been established – however, as a last resort when internal self-determination can no longer be achieved.
Pursuant to the 2010 Advisory Opinion of the International Court of Justice on Kosovo, a unilateral declaration of independence does not violate international law. The separation of Kosovo from Serbia has established an important precedent in international law that is being invoked by many peoples aspiring to independence, including the Kurds and the Catalans. While recognition is declaratory and not constitutive of statehood, it is in the interest of the international community to welcome de facto States into the United Nations and thus enable them to adhere to United Nations conventions, particularly the human rights treaty system. The elements of statehood are objective: defined territory, population, government and capacity to enter into relations with other States. A new State must be economically viable and observe human rights and international law.

Law on self-determination as peremptory international law

Modern international law on self-determination recognizes that self-determination as peremptory international law (ius cogens) is a right of peoples, and not a prerogative of States to grant or deny. Self-determination is an expression of democracy, as democracy is also a mode of self-determination. However, this right –like all rights – is not automatic, meaning not self-executing. It requires the exercise of effective control, which sometimes can only be obtained by waging a successful war as in Bangladesh in 1971, or can fail as in the case of the Tamils of Sri Lanka in 2009.
The right of self-determination has been and continues to be denied with impunity, similarly as the ius cogens prohibition of the use of force contained in Article 2(4) of the UN Charter, is all too frequently violated with impunity, as in the case of the illegal invasion and bombardment of Iraq in 2003, which UN Secretary General Kofi Annan correctly denounced as an “illegal war”. The violation of the right of self-determination or of the prohibition of the use of force does not diminish the legal force of the norm of international law. It only manifests once again the lack of enforcement mechanisms in the UN system and the fact that war crimes and crimes against humanity often go unpunished.
Territorial integrity is a central principle of international law and international relations, particularly important when it reinforces the peace and stability of the international community. The principle is related to the prohibition of the use of force in Articles 2(4) of the UN Charter, and is reaffirmed in General Assembly Resolution 2625 on Friendly Relations, and resolution 3314 containing the Definition on Aggression. The principle of territorial integrity means that no State can encroach on the territorial integrity of another State, hence is external. But the principle cannot be invoked internal against a people seeking self-determination. Its application is external against outside threats and not internal, as that would be incompatible with Article 1 ICCPR and ICESCR and could not justify continued subjugation of minorities or of peoples under occupation. When a people strives for internal or external self-determination, the world community should facilitate its realization and thus prevent a local dispute from becoming a threat to regional or international peace. In case of conflict between the principle of territorial integrity and self-determination, it is the latter that prevails.
Addressing the aspiration of peoples to self-determination in a timely fashion is an important conflict-prevention measure, as is evidenced by countless wars since 1945 that found their origin in the DENIAL of self-determination. The best way to know whether a population wants autonomy or independence is by conducting a referendum. The United Nations conducted such referenda in Ethiopia/Eritrea, Timor Leste and South Sudan, but only after tens of thousands of persons had perished in war. It would have been preferable to have mediated in a timely fashion and organized referenda with all guarantees and monitoring required.

One hundred-year development

Some antiquated professors of international law want to stop the progressive development of international law, contending that self-determination only applies to decolonisation. Whoever is aware of the one hundred year development of the norm, will shake his head, because law is a living thing. We are not living in the days of the Estonian Declaration of Independence of 1918, the pious pronouncements of the League of Nations, the system of minorities protection… A promising development was Article 3 of the Atlantic Charter of 1941, later enshrined in the Declaration of United Nations of 1942 and Article 1(2) of the United Nations Charter, and Chapter XI of the UN Charter concerning non-self-governing peoples.
What has followed has been a steady development toward letting people decide on their futures by way of plebiscite or referendum. We recall Security Council Resolution 47 on a plebiscite in Kashmir, General Assembly Resolution 194(III) on the right to return of the Palestinians, GA resolution 1514 on Decolonisation (1960), the failed self-determination war of the Igbos for the independence of Biafra 1967–70, the declaration of independence of Bangladesh in 1971 and the Pakistani-Indian War, the entry into force of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights in 1976, common Article 1 of which proclaims the self-determination of peoples. We saw the establishment of the United Nations Mission for the Referendum in Western Sahara (MINURSO) by Security Council resolution 690 (1991); the independence referendum and secession of Nagorno Karabakh in 1988, the ensuing wars against Azerbaijan 1992–94, including OSCE mediation; the dissolution of the Soviet Union into 15 republics, the 1991–92 wars and unilateral declarations of independence of Abkhazia and Southern Ossetia, the unilateral declarations of independence of the separatist regions of Yugoslavia, Slovenia, Croatia, Bosnia and Herzegovina, Macedonia through armed conflict.
We also saw the friendly separation of the Czech and Slovak republics in 1993; the Eritrean referendum of 1993; the Quebec self-determination referendum of 1995; NATO’s bombardment of Serbia in 1999 and dismantlement of its territorial integrity; the Timor Leste independence referendum of 1999; the Montenegro referendum of 2006, the 1983–2009 failed war of independence of the Tamils of Sri Lanka; the unilateral declaration of independence of Kosovo in 2008 and Advisory Opinion of the International Court of Justice in 2010; the South Sudanese referendum in 2011; the Crimea referendum in 2014 and reincorporation into Russia; the de-facto separation of Donetsk and Lugansk from Ukraine in 2014; the Scottish referendum 2014; the Kurdistan referendum 2017; the Catalan referendum in 2017 etc. The list of peoples aspiring to self-determination is long, and it is in everyone’s interest not to stick our heads in the sand, but to anticipate their needs and propose solutions in a timely fashion.
Henceforth the United Nations, the European Union, the Organisation of American States, the African Union, the OSCE and other international organisations should develop “early warning” mechanisms and offer mediation and good offices so as to solve self-determination disputes before they degenerate into violent confrontation. Self-determination can be exercised as internal self-determination in the form of federalism with a high degree of autonomy, or in the form of external self-determination through secession. A democratic choice through referendum is the civilized way to implement this right which is so essential to sustainable peace.•

* Alfred de Zayas is UN Special Rapporteur on the Promotion of a Democratic and Equitable International Order. This statement is expressed in his personal capacity and not as UN independent expert.