Abstract
When it comes to discussing the concept of self-determination as a principle of international law, there is little that is self-evident or on which everyone can agree. Great difficulties are encountered when an attempt is made to apply the principle consistently. Some international lawyers see the concept as ius cogens and as erga omnes and some as both. On the other hand there are international lawyers who consider it too broad and ill-defined to constitute a general rule of international law. It lends itself thus to applications in a variety of particular cases.
The principle can be easily formulated and gives the impression of being of universal applicability. In practice however, a lot of problems arise. The obvious questions that arise are: Who may claim to exercise the right of self-determination? When, and under what circumstances, may the claim be made? What are the rights and obligations of others states in relation to the claim to self-determination? What is the status of the principle of self-determination in international law?
The roots of the modern concept of self-determination can be found at the Versailles Peace Conference. Although not referred to as self-determination, the roots of the principle are as old as the existence of nations on the earth. President Woodrow Wilson can be considered to be the person that popularized the term, although the term owes as much to the Bolsheviks as to Wilson.
The fact that self-determination as a general principle did not form part of the Covenant of the League of Nations made it a political rather than a legal concept during the time of the League. After World War Two, self-determination was listed among the purposes of the United Nations as set out in article I of the Charter of the United Nations. The Charter however contain no special application of the principle of self-determination. At this stage the concept was seen to be too vague to entail specific rights and obligations. A powerful and sustained international organisational effort got under way to make self-determination work. Self-determination consequently became a dynamic concept in international affairs. The principle of self-determination made a major breakthrough with Resolution 1514(XV) on the Granting of Independence to Colonial Countries and Peoples in 1960.
In 1966 the principle of self-determination rose in status as a result of Article I of the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights. The principle is also embodied in the 1970 Declaration Concerning Friendly Relations. Self-determination as a right was thus first granted to peoples living in colonial countries and thereafter extended to ethnic and religious groups.
The right of self-determination in many instances has become an essential precondition for the effective recognition of the rights and freedoms of individuals. Thus, self-determination was not only seen to be effected on an external basis, but also on an internal basis.
The 1970 Declaration Concerning Friendly Relations is seen to be the most important single statement representing what the members of the United Nations agree to be the law on the fundamental principles of inter state relationships. One of these principles was equal rights and self-determination of peoples.
A large proportion of states appeared to hold that entitlement of self-determination applies not only to colonial peoples, but to peoples anywhere, whether in a political independent state or a dependent territory. A distinction is thus made between each state’s legal position and rights of minorities within each state in conformity with Article 27 of the Covenant on Civil and Political Rights declaring that ethnic, religious or linguistic minorities shall not be denied the right in community with other members of the group to enjoy their own culture to profess and practice their own religion or to use their own language. Self-determination as a legal principle and as a right of all peoples is not exhausted by the achievement of independence. The continuation of self-determination beyond the colonial area is a fundamental pre-supposition of contemporary international law. Self-determination is thus seen as a continuing right and not a right exercised once and for all at the time of independence. As long as multi- ethnic states respect the individual and collective rights of ethnic groups and their members, these group can find their protection within the state in accordance with present day international law. As soon as that state constantly violates these rights, a situation arises in which the suppressed people or ethnic group may evoke its right of self-determination in order to bring about constitutional changes within a state or to find an international solution by seceding.
The doctrine of uti possidetis assumes as a governing principle that boundaries must be as they were at the declaration of independence. The doctrine is of great importance as it obviously is most relevant when boundary treaties have to be interpreted. It leads to the stability of state boundaries. It would appear that the principle is of universal application which especially in Africa encompasses the principle of territorial integrity. The principle seeks to qualify the right of self-determination. If however, self-determination is a universal right and of general application and appears to be ius cogens, then the two principles are mutually incompatible. The CSCE, the United Nations and the European Community have recently recognised that states emerging out of the dissolution of the USSR and Yugoslav Federation keep the borders they had prior to dissolution of the federation. It cannot thus be denied that the application of the principle of uti possidetis in practise can lead to inequitable situations for many peoples where extraordinary boundary lines remain.
The modern post-colonial interpretation of self-determination, the right of all to participate in a democratic process of government, is illustrated in the Helsinki Declaration. Situations existed in Europe which came under the purview of a broader concept of self-determination than that embodied in the limited United Nations instruments. This declaration applies to both external and internal self-determination and stresses the fact that the principle of self-determination applies to all peoples regardless of whether or not they live in a sovereign or independent state. It also conveys the idea that the right of self-determination is a continuing right, a right that keeps its validity even after statehood is achieved.
Problems of definition of the concept “people” who are entitled to self-determination is a complex matter hedged by limitations and caveats. The United Nations, although stating on many occasions that this right indeed exist, did not define the entity or the group, but purported to be the forum endowed with the power to decide when self-determination is justified and when not. Many definitions are offered. No completely objective criteria can be found to identify what is meant by “peoples”. There is a subjective approach and an objective approach. The Permanent Court of International Justice referred to a group as persons living in a given country, having a race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, and instructing their children in accordance with the spirit and conditions of the group.
A combination of the subjective and objective criteria should lead to a set of relatively verifiable criteria for determining what constitutes a people entitled to self-determination. The fact is that a simple definition remains absent and the door is to a large extent still left open as to precisely who is entitled to self-determination.
If one maintains that minorities as separate entities may in modern times also claim self-determination as a “people” in the sense of Article 1 of the two UN Human Rights Covenants, the issue of secession raises its head. States have in the main categorically rejected the right of ethnic or other population groups to secede from an independent state. It is open to debate whether there is a pre-emptory norm prohibiting the fragmentation of a self-determination unit. While both Resolutions 1514(XV) and 2625(XXV) reaffirm the principle of territorial integrity as a component of self-determination, it is also true that the United Nations gave its approval to the territorial partition of British Cameroon and Ruanda Urundi. It can thus be stated the principle of self-determination does not include a general prohibition of secession from an independent state, as is evidenced by the secession of Bangladesh from Pakistan and of several states from Yugoslavia and the former USSR and Eritrea from Ethiopia. The view has grown that absolute adherence to territorial integrity is no virtue - rather it is self-defeating when the people who demand self-determination are subject to systematic deprivations on a vast scale. It is so that territorial integrity ensures order and stability among nations but it must not become a shield for governments. Secession still remains a logical extension of self-determination.
A further group that claims to have the right of self-determination, is minorities. The first problem however that arises is to obtain a clear perception of what constitutes a minority. The answer to this question is extremely complex and it appears that ethnic, religious and linguistic groups are covered, while so-called indigenous groups may as a category overlap with minorities. Article 27 of the Covenant on Civil and Political Rights is one of the few, if not only, substantial general statements on minorities in modern international law. It states that in those states in which ethnic, religious or linguistic minorities exist those people must not be denied the right to enjoy their own culture, to profess and practise their own religion, or to use their own language.
Some commentators maintain that minorities as separate entities by being just that may claim the right of self-determination as a “people” in terms of article 1 of the United Nations Human Rights Covenants.
Self-determination as a concept of international law has unfolded in a world which has seen an astounding transformation of geo-politics. Ethnic diversity and diverging political and moral ambitions have kept the concept of self-determination alive. The question is how far does the principle go? It is all a matter of interpretation. A popular interpretation would be that a state possessing a representative government of all peoples within its territory, is satisfying the self-determination of all the people, including minorities. The distinct minority themselves may of course hold a different view. Self-determination now entitles peoples in all states to free, fair and open participation in the democratic process of governance. When such participation is denied, where a people that is geographically separate and is distinct ethnically and/or culturally has been placed in a position or status of subordination, a secession option may re-emerge as an international legal entitlement.
Self-determination remains a collective right. It is vested in the people in question as a group. For the right of self-determination to be applied the people concerned must be accepted by the international community as a people who can assert the right.
Self-determination in South Africa is seen by many to have been achieved by the 1994 election in which all the citizens of South Africa, without any distinction as to race, for the first time had the chance to participate in a general election. Internal self-determination is also recognised by the Constitution of the Republic of South Africa. There are however many Afrikaners who feel that the only form of self-determination that can really safeguard their future, is a form of external self-determination, i.e. in a territory where the Afrikaner is in the majority and which lawfully can secede from the rest of the country. The Afrikaner has a history indicative of a struggle, mainly through Afrikaner-nationalism, where Afrikaners seeked independence from outside interference in the form of a republic. The problem is however that no distinct territory can be identified where Afrikaners are clearly in a majority. Therefore, no territory exists which can secede from the rest of South Africa. Although the Constitution does nor recognize secession as a method for realization of self-determination, international law does not ban secession as a method to achieve external self-determination.
It is clear that state practice has re-formulated the principle of self-determintion to adapt to the post-colonial situation. A balance must be found between the protection of the rights of groups (and individuals within that group) and the basic framework of the international community, namely independent states. Self-determination must promote both. As stated by Dixon:
The task of the international lawyer in all of this is to search for a legal rule - founded in customary or treaty law - and not to postulate a political, moral or philosophical principle that simply will not work in practice.
Prof. G.N. Barrie