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The Degrees of Self-Determination in the United Nations Era

Published online by Cambridge University Press:  27 February 2017

Frederic L. Kirgis Jr.
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Editorial Comment
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American Journal of International Law , Volume 88 , Issue 2 , April 1994 , pp. 304 - 310
Copyright
Copyright © American Society of International Law 1994

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References

1 See Michla Pomerance, The United States and Self-Determination: Perspectives on the Wilsonian Conception, 70 AJIL 1, 2 (1976).

2 See Ruth B. Russell & Jeannette E. Muther, A History of the United Nations Charter: The Role of the United States, 1940–1945, at 810–11 (1958).

3 The case nevertheless demonstrates that, as early as 1921, questions of self-determination in a noncolonial context were not considered solely within the domestic jurisdiction of the resisting state. Finland had argued that they were, but the League of Nations Council took up the matter. See League of Nations, Ten Years of World Co-operation 28–29 (1930); Denys P. Myers, Handbook of the League of Nations 298–99 (1935).

4 Report of the Commission of Rapporteurs presented to the League of Nations Council, League of Nations Doc. B.7.21/68/106 (1921), quoted in Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights 30 (1990). See also A. Rico Sureda, The Evolution of the Right of Self-Determination: A Study of United Nations Practice 29–34 (1973). More recently, the Inter-American Commission on Human Rights concluded that international law does not recognize a right to secede—or more broadly, a right independently to choose its form of political organization—of an ethnic group such as the Miskito population of Nicaragua. Inter-American Commission on Human Rights, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OAS Doc. OEA/Ser.L/V/II.62, doc. 10, rev. 3 (1983).

5 See Russell & Muther, supra note 2, at 811.

6 Id.

7 On the definition of “peoples,” see Anna Michalska, Rights of Peoples to Self-determination in International Law, in Issues of Self-Determination 71 (William Twining ed., 1991).

8 See Sureda, supra note 4, at 99–101.

9 GA Res. 217A, UN Doc. A/810, at 71 (1948). Article 21 did set forth rights now identified with internal self-determination, without labeling them as such.

10 GA Res. 1514, UN GAOR, 15th Sess., Supp. No. 16, at 66, UN Doc. A/4684 (1960).

11 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, Art. 1, 993 UNTS 3; International Covenant on Civil and Political Rights, Dec. 16, 1966, Art. 1, 999 UNTS 171.

12 Ian Brownlie, Principles of Public International Law 513 (4th ed. 1990). Brownlie says that the principle's precise ramifications have not yet been worked out. Id. at 597. See also Héctor Gros Espiell, The Right to Self-Determination: Implementation of United Nations Resolutions, UN Doc. E/CN.4/Sub.2/Rev.l, at 13 (1980) (defining the principle to exclude a right of secession for peoples not under colonial and alien domination); Hector Gros Espiell, Self-Determination and Jus Cogens, in UN Law/Fundamental Rights 167 (Antonio Cassese ed., 1979).

13 See, e.g., Rupert Emerson, Self-Determination, 65 AJIL 459 (1971).

14 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 ICJ Rep. 16, 31 (Advisory Opinion of June 21).

15 Western Sahara, 1975 ICJ Rep. 12, 33 (Advisory Opinion of Oct. 16).

16 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, Annex to GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970), reprinted in 9 ILM 1292 (1970).

17 Id. at 124, 9 ILM at 1296.

18 See Robert Rosenstock, The Declaration of Principles concerning Friendly Relations: A Survey, 65 AJIL 713, 732 (1971); see also Antonio Cassese, Political Self-Determination—Old Concepts and New Developments, in UN Law/Fundamental Rights, supra note 12, at 137, 144–45 (noting the difficulty of determining when a government is “representative”).

19 Vienna Declaration and Programme of Action, pt. I, para. 2, UN Doc. A/CONF. 157/24 (pt. I) (1993), reprinted in 32 ILM 1661 (1993) (emphasis added).

20 GA Res. 1514, supra note 10, at 67.

21 See Frederic L. Kirgis, Jr., Custom on a Sliding Scale, 81 AJIL 146, 149 (1987).

22 See LEE C. Buchheit, Secession: The Legitimacy of Self-Determination 92–96 (1978); Ved P. Nanda, Self-Determination Under International Law: Validity of Claims to Secede, 13 Case W. Res. J. Int'l L. 257, 269–70, 275 (1981). On the territorial point, see text at note 32 infra. Contrast what U Thant said before Resolution 2625 had been adopted: “As an international organization, the United Nations has never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of its Member State.” UN Monthly Chron., Feb. 1970, at 36. Writing in 1989, Hurst Hannum said, “[C]onstant state practice and the weight of authority require the conclusion that such a right [to secede] does not yet exist.” Hannum, supra note 4, at 49. Thomas Franck also finds no general right to secede, but notes that a minority within a state, especially if it occupies discrete territory, may have a right to secede—roughly analogous to a decolonization right —if it is persistently and egregiously denied political and social equality as well as the opportunity to retain its cultural identity. Thomas M. Franck, Postmodern Tribalism and the Right to Secession, in Peoples and Minorities in International Law 3, 13–14 (Catherine Brölmann, Rene Lefeber & Marjoleine Zieck eds., 1993).

23 For recognition that some concepts, such as nonsovereign autonomy, minority rights and integration with an existing state, might be faces of self-determination rather than denials of it, see Michla Pomerance, Self-Determination in Law and Practice 3, 25–26 (1982). Another face—as a building block toward a democratic entitlement—is discussed in Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AJIL 46 (1992). See also Benedict Kingsbury, Claims by Non-State Groups in International Law, 25 Cornell Int'l L.J. 481, 487 (1992) (noting limited categories of cases in which claims to separate statehood have been recognized); Deborah Z. Cass, Re-Thinking Self-Determination: A Critical Analysis of Current International Law Theories, 18 Syracuse J. Int'l L. & Com. 21 (1992) (criticizing the limited “conventional” view of self-determination).

24 They are expressed here as “rights.” They could also be viewed as “remedies.” See S. James Anaya, A Contemporary Definition of the International Norm of Self-Determination, 3 Transnat'l L. & Contemp. Probs. 131 (1993).

25 For a somewhat different typology of self-determination claims actually made, see Benedict Kingsbury, Self-Determination and “Indigenous Peoples,” 86 ASIL Proc. 383, 384 (1992).

26 But see Hurst Hannum, Self-Determination, Yugoslavia, and Europe: Old Wine in New Bottles?, 3 Transnat'l L. & Contemp. Probs. 57 (1993).

27 Supra note 11. See Patrick Thornberry, International Law and the Rights of Minorities 141–247 (1991). Article 27 does not use the term “self-determination.” Since Article 1 does use it without relating it to minority rights, it may be argued that the rights in Article 27 are distinct from self-determination rights. See Rosalyn Higgins, Comments on Postmodern Tribalism and the Right to Secession, in Peoples and Minorities in International Law, supra note 22, at 29, 32.

28 Annex to GA Res. 47/135, UN GAOR, 47th Sess., Supp. No. 49, at 210, UN Doc. A/47/49 (Vol. I) (1992), reprinted in 32 ILM 911 (1993). See also ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, in 2 International Labour Conventions and Recommendations 1919–1991, at 1436 (1992).

29 Supra note 16.

30 Supra note 19.

31 Some manifestations might be called quasi-self-determination, but that term does not add much to the analysis.

32 For example, if the secessionist group once occupied the territory as an independent state, the destabilization posed by its claim may not be as great as if it seeks to carve out new territory for itself. Cf. Lea Brilmayer, Secession and Self-Determination: A Territorial Interpretation, 16 Yale J. Int'l L. 177 (1991). But even a claim to historic title may be quite destabilizing if the territory itself now includes dissident minority groups.

33 A similar chart, illustrating the interaction between state practice and opinio juris in the proof of custom, appears in Kirgis, supra note 21, at 150. When a norm rests heavily on two factors, or variables, the two frequently are not mutually exclusive in practice even if the authoritative statement of the norm treats each of them as an independent standard to be met.

34 See Franck, supra note 23. See also Higgins, supra note 27, pointing out the Human Rights Committee's emphasis on this form of self-determination and its widespread acceptance by governments reporting to the Committee.