The Status and Norms of Self-determination in Contemporary International Law

Extract

The humble contribution of this writer to the Festschrift in honour of Professor A.J.P. Tammes relates to a study of the status and norms of the principle of self-determination in contemporary international law. There has been a prolonged controversy on the issue: some consider that the principle now enjoys the status of a legal right with corresponding obligations while others attribute only a moral status to the principle without any binding legal effect. By way of illustration of the nature of the controversy one can refer to the views of Rosalyn Higgins on the one hand and of Leo Gross, L.C. Green and Rupert Emerson on the other. According to Rosalyn Higgins, the main question is not whether the General Assembly resolutions have any binding effect but whether the practice of States (which she finds unanimous and consistent) revealed by the cumulative effect of such resolutions indicates the emergence of new norms or rules of customary international law. Dr. Higgins considers that the conclusion is inescapable that self-determination has developed into an international legal right. To Professor Leo Gross, the practice of decolonization (which he finds neither constant nor uniform) is a matter of political expediency, not based on a sense of legal obligation. Hence, subsequent practice as an element of interpretation does not support the theory that the principle of self-determination has acquired the status of a legal right or that human rights provisions could be interpreted as rights with corresponding obligations either generally or specifically with respect to the right to self-determination. Rupert Emerson considers it a relevant factor that the colonial Powers and a number of States supporting them have not accepted the basic principle that colonization is illegitimate nor the corollary proposition that the colonial peoples are entitled to as speedy as possible an exercise of their right to self-determination. After pointing out that there is still no right of self-determination in positive international law, Professor Green has conceded that since 1966 (when by Resolution 2200 (xxi) of 16 December 1966 both the Covenants on Human Rights were adopted by the General Assembly), such a right may be one in nascendi and may mature into a legal right in future as and when such non-binding instruments come into force; such a right can never operate retroactively, particularly because no attempt has been made to clarify what is meant by the “peoples” who are supposed to enjoy the right.