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Self-determination: Time for a Re-Assessment?

Published online by Cambridge University Press:  21 May 2009

Robin C.A. White
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Extract

The question of defining self-determination and of determining the legitimacy of claims of self-determination have been issues which have exercised the minds of international lawyers and political scientists for many years. A considerable literature and diversity of views has resulted. From the reference in Articles 1(2) and 55 of the United Nations Charter to the development of “friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples” has sprung a whole body of United Nations and state practice in a number of widely differing situations. The main focus of activity has been in the area of decolonisation and this development has practically eclipsed Chapters XI–XIII of the Charter, which were clearly intended to deal with the emancipation of non-self-governing and trust territories. The seventeen words of Articles 1(2) and 55 have been elaborated in the 1970 Declaration on Friendly Relations. It is no overstatement to say that the elaboration of the principle of self-determination in the 1970 Declaration provides the cornerstone of the United Nations approach to the concept. The Declaration was the result of seven years work by a Special Committee and was adopted on a consensus vote. It is generally regarded as being normative in character by virtue of its elaboration of essential Charter principles. This elaboration seeks to state the nature of the right in general terms and to deal with the application of the rule in certain contexts; it is concerned primarily with decolonisation and with limiting claims to secession.

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Articles
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Netherlands International Law Review , Volume 28 , Issue 2 , August 1981 , pp. 147 - 170
Copyright
Copyright © T.M.C. Asser Press 1981

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References

1. See 5 Whiteman, M., Digest of International Law, (hereafter cited as “Whiteman”) 38–87Google Scholar; 13 Whiteman 701–68; 137 Hague Recueil (1972: III) 561; 159 Hague Recueil (1978: I) 100; Panel, , “Problems of Self-Determination and Political Rights in the Developing Countries,” 60 Proc. ASIL (1966) 129Google Scholar; Emerson, , “Self-Determination,” 65 AJIL (1971) 459Google Scholar; Nanda, , “Self-Determination in International Law, A Tale of Two Cities,” 66 AJIL (1972) 328Google Scholar; Umozurike, U., Self-Determination in International Law (1972)Google Scholar; Sureda, A. Rigo, The Evolution of the Right of Self-Determination (1973)Google Scholar; Sinha, “Is Self-Determination Passe?” 12 Colum. J. Transnat'l L. (1973) 260Google Scholar; Buchheit, L., Secession, The Legitimacy of Self-Determination (1978) (hereafter cited as “Buchheit”)Google Scholar; Crawford, J., The Creation of States in International Law (1979) (hereafter cited as “Crawford”)Google Scholar; Brownlie, I., Principles of Public International Law(3rd ed. 1979) 593–6Google Scholar.

2. GA Res. 2625 of October 24, 1970, 25 UNGAOR Supp. (No. 28), 122, UN Doc. A/8028 (1970).

3. Brownlie, I., Principles of Public International Law, (3rd ed. 1979), 15 and 595Google Scholar; Rosenstock, , “The Declaration of Principles of International Law Concerning Friendly Relations: A Survey,” 65 AJIL (1971) 713Google Scholar; contra 137 Hague Recueil (1972: 111)614.

4. Buchheit, 219.

5. This theme is elaborated below.

6. Moore, , “Towards an Applied Theory for the Regulation of Intervention” Law and Cvil War in the Modern World (Moore, J. ed. 1974), 19Google Scholar.

7. Professor Moore cites as an example of a state claim, the claim of North Korea to be unified with South Korea, and as an example of a claim by a people, the claim of the Jewish people for the establishment of a Jewish state of Israel.

8. GA Res. 1514 of December 14, 1960, 15 UNGAOR Supp. (No. 16), 66, UN Doc. A/4684 (1960).

9. GA Res. 1541 of December 15, 1960, 15 UNGAOR Supp. (No. 16), 29, UN Doc. A/4684 (1960). This resolution was expressly concerned with the implementation of Art. 73.

10. See GA Res. 1654 of November 27, 1961, 16 UNGAOR Supp. (No. 17), 65, UN Doc. A/5100 (1961); for a criticism see the comments of the United States representative on the Committee reproduced in 13 Whiteman 717–20.

11. See Broderick, , “Associated Statehood, A New Form of Decolonisation” 17 ICLQ (1968) 368Google Scholar.

12. Advisory Opinion on the Western Sahara, [1975] ICJ Rep. 12, see Shaw, , “The Western Sahara Case.” 49 BYIL (1978) 118Google Scholar.

13. [1975] ICJ Rep. 12, 121.

14. See Introduction to Brownlie, I., African Boundaries (1979)Google Scholar.

15. It has been estimated that the membership of the United Nations might rise as high as 200 by the time the process of granting independence to the many island colonies has been completed.

16. The problem of mini-states caused the United Nations to consider the possibility of establishing some form of associate membership, but at no time was the capacity of the small territories to attain statehood strongly questioned. See Higgins, R., The Development of International Law through the Political Organs of the United Nations (1963) 34–37Google Scholar; UNITAR Status and Problems of Very Small States and Territories (1969)Google Scholar; Mendelson, , “Diminutive States in the United Nations.” 21 ICLQ (1972) 609Google Scholar; Crawford, 139–141.

17. McDougal, , Lasswell, & Reisman, , “The World Constitutive Process of Authoritative Decision.” in: The Future of the International Legal Order (Falk, R. & Black, C. eds. 1969), 82Google Scholar. See also Fatouros, “Participation of ‘New’ States in the International Legal Order of the Future.” in ibid 317, passim.

18. Fitzmaurice, , 92 Hague Receuil (1957: III) 13Google Scholar; Higgins, R., op. cit., supra n. 16, 13Google Scholar. See also Crawford, passim and Restatement (Second) of Foreign Relations, para. 4.

19. Brownlie, I., Principles of Public International Law (3rd ed. 1979), 74–5; Crawford, 36 & 77 et seqGoogle Scholar.

20. Rousseau, , 73 Hague Recueil, (1948: II) 171Google Scholar.

21. Harris, , “Microstates in the United Nations, A Broader Purpose.” 9 Colum. J. Transnat'l L. (1970) 23, 30Google Scholar.

22. See Simmonds, , “The Caribbean Economic Community: A New Venture in Regional Integration.” 23 ICLQ (1974) 453Google Scholar.

23. Cmnd. 6220 (1975) and Cmnd. 7895 (1980): see Rhein, , “The Lome Convention: Political and Juridical Aspects of the Community Policy Towards LDCs.” 12 CML Rev. (1975) 385Google Scholar; Simmonds, , “The Lome Convention and the New International Economic Order.” 13 CML Rev. (1976) 315Google Scholar; Simmonds, , “The Second Lome Convention: The Innovative Features.” 17 CML Rev. (1980) 415Google Scholar.

24. GA Res. 3314 of December 14, 1974, 29 UNGAOR Supp. (No. 31), 142, UN Doc. A/9631 (1974).

25. Rosenstock, , “The Declaration of Principles of International Law Concerning Friendly Relations: A Survey,” 65 AJIL (1971) 713 acknowledges at 732–3 the “vagueness” of this part of the DeclarationGoogle Scholar. Contra Schwebel, , “Wars of Liberation as Fought in United Nations Organs” in Law and Civil War in the Modern World (Moore, J. ed. 1974), 446, 453–4Google Scholar.

26. Harris, D., Cases and Materials on International Law (2nd ed. 1979), 109Google Scholar.

27. See Franck, , “The Stealing of the Sahara.” 70 AJIL (1976) 694Google Scholar; Shaw, , “The Western Sahara Case.” 49 BYIL (1978) 118, and Crawford, 378–384Google Scholar.

28 . See Fawcett, , 132 Hague Recueil (1971: I) 514Google Scholar.

29. [1975] ICJ Rep. 12,122.

30. Elliott, , “The East Timor Dispute.” 27 ICLQ (1978) 238Google Scholar.

31. Letter from the Portuguese Embassy in London, June 7, 1978, cited in Harris, D., Cases and Materials on International Law, (2nd ed. 1979), 110, n. 85aGoogle Scholar.

32. Advisory Opinion on Namibia, [1971] ICJ Rep. 16; for detailed comments see 11 Colum. J. Transnat'l L. (1972) 1–73, 193–239.

33. See SC Res. 216 of November 12, 1965, 20 UNSCOR Resolutions and Decisions 1965, (1967) 8.

34. See GA Res. 31/6 of October 26, 1976, 31 UNGAOR Supp. (No. 39), 10, UN Doc. A/31/39 (1976).

35. SC Res. 232 of December 16, 1966, 21 UNSCOR Resolutions and Decisions 1966 (1968) 7; SC Res. 253 of May 29, 1968, 23 UNSCOR Resolutions and Decisions 1968 (1970) 5.

36. See SC Res. 418 of November 4, 1977, 32 UNSCOR, Resolutions and Decisions 1977 (1978)5.

37. Emerson, , “Self-Determination”, 65 AJIL (1971) 459, 467Google Scholar.

38. But see Clinebell, & Thomas, , “Sovereignty and Self-Determination: The Rights of Native American Indians under International Law,” 27 Buffalo L. Rev. (1978) 669Google Scholar.

39. 16 UNSCOR (987th meeting), 8–14, UN Doc. S/PV. 987 (1961).

40. Wright, , “The Goa Incident.” 56 AJIL (1962) 617Google Scholar.

41. Ibid. 632.

42. See generally Buchheit, and Crawford, 115–7 and 247–70.

43. 7 UN Monthly Chronicle (Feb. 1970) 36.

44. See Crawford, 115–7.

45. Buchheit, 220–223.

46. Buchheit, 222.

47. Buchheit, 216–245 and Appendix 2.

48. Emerson, , Supra n. 37, 475Google Scholar.

49. GA Res. 3281 of 12 December, 1974, 29 UNGAOR Supp. (No. 31), 50, UN Doc. A/9631 (1974).

50. In the case of isolated island groups independence for the islands is an inevitable outcome given the geographic facts; recognition of such special circumstances would prevent dangerous generalisations.

51. The term “inhibitions” is intended to indicate that they do not operate as legal barriers to statehood.

52. Secretariat of the International Commission of Jurists, , The Events in East Pakistan (1972) 70Google Scholar.

53. See Nanda, , “Self-Determination in International Law, A Tale of Two Cities,” 66 AJIL (1972)328Google Scholar, and Buchheit, 198–215.

54. Supra n. 18.

55. But Nauru has not applied for membership of the United Nations.

56. Suggestions that economic viability might be a condition of secession appear with considerable frequency: see, e. g., Nanda, supra n. 53; Broderick, supra n. 11; and Buchheit, 152 and 213.

57. Higgins, R., The Development of International Law Through the Political Organs of the United Nations (1963) 103Google Scholar.

58. Ibid., 211.

59. Moore, , “Towards an Applied Theory for the Regulation of Intervention,” in Law and Civil War in the Modern World (Moore, J. ed. 1974) 3, 26Google Scholar.

60. Indeed at one point the very inclusion of the articles was a matter of contention. For a convenient summary of the debates, see Buchheit, 76–85.

61. See Art. 27 of the International Covenant on Civil and Political Rights. See also, under the European Convention on Human Rights, the Belgian Linguistics Case, 6 ECHR Ser. A, Judgment of July 23, 1968.

62. Blix, H., Sovereignty, Aggression and Neutrality (1970) 13–14Google Scholar.

63. There is some evidence of concern over the issue in the Sub-Commission on the Prevention of Discrimination and Protection of Minorities. See Humphrey, , “The United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities.” 62 AJIL (1968) 869Google Scholar. See also Yearbook of the United Nations 1977, 730–1; 14 UN Monthly Chronicle, Aug.–Sept. 1977, 43 and 17 UN Monthly Chronicle, Nov. 1980, 51.