Self Determination

Self-Determination in ICCPR and ICESR

• Framework right- created for protecting other rights

• Supreme rights of rights

• Kind of controversial

Article 1 in ICCPR and ICESR

• All people have the right of self-determination- freely determine their political status

• All people may freely dispose of their natural wealth and resources without prejudice

• The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination

Term of Interest in Article 1

• All peoples- right of peoples

  • The convention chooses to refer to self-determination as a right to all people not individuals

  • Shows it is a collective right not individual

  • Unusual in human rights as human rights are generally belonging to individuals

  • Does not speak about communities- important because self-determination can apply to people regardless they are a nation or not

  • Do not necessary need to identify as a nation

Europe in the 19th century

international relations had to geared towards balance of power- individuals in the free market acts with self interest- statesmen took this idea and put it in international relations- states act in self interest

US world order

US world order was more of a rule based order- first rule was self-determination- the nations that were liberated after WW1 had to get self-determination and gain full independence from colonial- these became mandated territories

• Woodrow Wilson's Fourteen Points introduced a new era of international order founded on normative principles.

• Self-determination emerged as a foundational principle and became a hallmark of the evolving norm-based international order

Wilsonian Self-Determination

• Rooted at Liberal nationalism- aimed at restructuring Europe after WW1

• Idea that certain people belonging to certain territory have a bond with that territory

• Nationhood

Marxist- Leninist Self-Determination

Based on class struggle, national groups should have right to secede, beyond Europe

Form on anti-colonial struggles, created instability in the Middle East, Africa and Asia

People don’t belong to nationhood but belong to class

Argued that based on class struggle and historical oppression, the oppressed people need to rise against their colonizer and the ruling elite

Wilson’s Speech January 1917

Declared US entry into the war

Wilson’s speech puts an end to the US isolation

US in principle was against European colonialism

Realist Critique by Henry Kessinger

• Post-WW1 failure of Wilsonian as the Versailles Treaty and League of Nations failed to create lasting stability

• The rise of ethnic conflicts in the 20th century, where nationalist aspirations led to wars rather than peace (e.g., Yugoslavia, Rwanda, Sudan).

• The Cold War, where self-determination was often manipulated by both the U.S. and the Soviet Union to support proxy conflicts rather than genuine independence

Realist Alternative

• Concept of powers approach

• Stability over Ideology:

  • major powers should prioritize stability over encouraging nationalist movements.

• Strategic Settlements:

  • territorial and political arrangements should be based on pragmatic diplomacy.

• Power-Balancing Diplomacy:

  • Kissinger advocates a concert of powers approach

• Self determination is a political and not the matter of law

UNSG 1992 Report: Agenda for Peace

• If we give right to a certain ethnic group, why not give it to others

  • More ethnic conflicts, more civil wars

  • Self-determination has not contributed to stabilizing certain affairs.

Right or Principle

• As a principle, people have the right to decide their own political future.

• It was not a legal right, but rather an ideological principle.

• Decolonization turned the principle of self-determination into a right.

• International Court of Justice confirms self-determination as a fundamental principle of international law

Self-Determination in Soft Law

Resolution 1514- established that all colonial peoples have a right to self determination

Resolution 1541- Outlined the paths to self-government including independence, free association or integration

Resolution 2625- Defined self-determination as. a fundamental principle of international law

Self-Determination is not a jus cogens norm of international law

Principles Limitign Self-Determination

• Territorial integrity:

  • Self-determination must not disrupt the unity of sovereign states.

  • Can't change territory boundaries of state

• Uti possidetis juris:

  • New states must emerge within pre-existing administrative borders.

Examples of Self-Determination: South Sudan

• South Sudanese are Christian compared to main Sudan - same language

• During civil war, US took side to South Sudan

• After long civil war, there was a referendum in South Sudan and gained independence

• Today, South Sudan is in a way worse condition today- different armed groups emerged

Example of Self-Determination: Kosovo

• Gained independence by US support

• Statehood not recognized in international community

• Functions as de facto state

• Give impact to other groups

• Giving it independence causes instability in all Europe

• When went to court, they said international law does not prohibit referendum but does not identify them

Remedial Succession

• Only people facing genocide and crimes against humanity can claim independence/self-determination 

• People who want to claim through this, they try to make the case they have been victims of genocide by creating the genocide or making the false claims

• It is not that much of a successful norm

Federalism

• Administrative system of governance- to create efficiency that are large

• When mixing federalism and ethnic complexities can create issues- never mix administrative and ethnic issues

• Ethnic federalism

  • Iraq employs ethnic federalism in Kurds

    • Central government does not care much about the Kurdistan region

  • Yugoslavia

    • Caused civil wars, collapse of Yugoslavia, genocide

  • Ethnic federalism is not a good remedy - doomed to fail

  • Can’t be functional

Two Dimension of Self-Determination

• External - means independence

• Internal- right to democratic governance- undisputed

  • Every people are entitled to internal self-determination

  • More practical for legal purposes

• Kessinger was right about external, the claims of self-determination is only applicable only if other states recognize it