Self-Determination from a Use of Force Perspective

1. Self-Determination from a Use of Force Perspective

2. Self-Determination in a Nutshell • Origins in enlightenmentphilosophy. Linked to the American Declaration of Independence and to the French Revolution • Used as the drivingideology in the context of Latin American decolonization (1810–1825) • Linked to the project of nationalism in the 19th century – the correspondence of national identity with stateboundaries • Adapted by both Lenin and Wilson in the WWI era - redrawing of boundariesfollowing the dissolution of empire – rights of minorities

3. Self-Determination in a Nutshell • Article 1(2) of the UN Charter  declaresthatdevelopment of friendly relations, based upon respect for self-determination, is a purpose of the United Nations organisation. Alsomentioned in article 55 • James Crawford: canrefer to the sovereignequality of existing States, and in particular the right of the people of a State to chooseitsown form of governmentwithoutexternal intervention. • Article 73 provides that: ”Members of the United Nations which have or assumeresponsibilities for the administration of territories whosepeoples have not yetattained a full measure of self-government”

4. Decolonisation • Subsequentdevelopments, though, lead to a gradual legalisation of self-determination, initially with regard to colonial, foreign-dominated and raciallysubmittedpeoples • Anti-colonialeffortsculminate in 1960 ColonialDeclaration • In Case Concerning East Timor, the ICJ described as irreproachable the proposition that, ' ... the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an ergaomnescharacter’ • This meansthat the right must berespected by all members of the international community. It alsomeansthat all states have a legal interest in ensuring proper exercise of the right

5. UNGA Declaration 1514 • The subjection of peoples to aliensubjugation, domination and exploitationconstitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of worldpeace and co-operation. • All peoples have the right to self-determination; by virtue of that right theyfreelydeterminetheirpolitical status and freelypursuetheireconomic, social and culturaldevelopment. • Inadequacy of political, economic, social or educationalpreparednessshould never serve as a pretext for delayingindependence. • All armed action or repressive measures of all kinds directedagainst dependent peoplesshallcease in order to enablethem to exercisepeacefully and freelytheir right to completeindependence, and the integrity of their national territory shallberespected. • Any attemptaimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

6. Decolonisation • A colonisedpeoplemayachieveself-determination in one of threeways: • (i) theymaychoose to associate with an existingstate, • (ii) fullyintegrate with it, • (iii) insteaddecide on completeindependence. • The international community has generally acceptedthatcolonisedpeoples must beallowed to make a free and informedchoice as to the end result of the decolonisationprocess, expressed perhaps by way of a United Nations sponsoredplebiscite. • It is, however, broadlyacceptedthatachievement of self-determination in the colonialcontext is a 'oneoff’ proposition. Must conform with the idea of ‘utipossedetisjuris’

7. Self-Determination in International Law Article 1 of the 1966 Covenantsstatesthat: • 1. All peoples have the right of self-determination. By virtue of that right theyfreelydeterminetheirpolitical status and freelypursuetheireconomic, social and culturaldevelopment. • 2. All peoplesmay, for theirownends, freelydispose of theirnaturalwealth and resourceswithoutprejudice to any obligations arising out of international economicco-operation, based upon the principle of mutualbenefit, and international law. • 3. The States Parties to the present Covenant, includingthosehavingresponsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shallrespectthat right, in conformity with the provisions of the Charter of the United Nations

8. Self-Determination in International Law • 1970 Friendly Relations Declarationenshrined SD as a guidingprinciple of the UN • Linked to non-intenvention and economicself-determination during the Cold War – ‘aliensubdugation’ ie a broadercategorythancolonialism – for example the cases of South Africa and Zimbabwe • Alsolinked to growing human rights agenda in 1970s and 80s – ‘right’ to democraticgovernance? • Popped up againduringaftermath of break-up of USSR.

9. ContemporaryIssues: Who? • It is not entirelycertainwhatself-determination means or entails to the holders of the right as well as itsmeans of enforcement. • ‘Whoare the peoplewhomaybeentitled to self-determination?’ • ‘Colonialpeoples’. Howeverwhatconstitutes ‘colonial’ in this case remainsundefined. • Three distinctgroupsbeyondcolonialpeoplesemerge: (a) Peoples of states; (b) Indigenouspeoples, also referred to as First Nations or ‘Indians’, and usuallyconsidered to subsume ‘Tribal Peoples’; (c) Minorities, also referred to as ‘ethnic, linguistic, or religiousminorities’ or as ‘national minorities’.

10. ContemporaryIssues: How? • Judge Dillard famouslystatedthat it is for ‘the people to determine the fate of the territory and not the territory the fate of the people’.Yet, as is often the case, thisnotion is not always borne out in practice. • Ie the Chagos Islands Case • Western Sahara Case • Goa

11. ContemporaryIssues: What? • Non-Intervention: Underpinssovereignequality of states and non-intervention in the internal affairs of states (non intervention politically, economically, militarily) • Political participation in the political, social and economiclife of state? So-called ‘internalself-determination’ • Territorial change/ Independent statehood/secession: most controversialaspect. Only a handful of successfulclaims – Bangladesh, Kosovo (sort of)

12. Self-Determination and Use of Force Main issuesconcerningUoF and SD: • The prohibition on the use of force by states to denypeoplestheir right to self-determination. • The prohibition on assistance to stateswhichareforciblydenyingpeoplestheir right to self-determination. • The right of peoples to useforciblemeans to exercisetheir right of self-determination. • The right of states to provide military assistance to peoplesstruggling for their right of self-determination. • Territorial Change and Use of Force

13. Self-Determination and Use of Force • Self-determination generate an inherentinstability in interactionbetween the international community and the politicalaspects of statesovereignty • Struggles for SD have become the main type of armedconflictduring the Charter era. • Doctrinal arguments have arisen over inter-stateuses of force and againstintereference in the foreign affairs of the state. • Iethrough assistance or recognition to independencegroups • Main rule is that ‘international lawtreats civil wars as purelyinternalmatters, with the possibleexception of self-determination conflicts”

14. Self-Determination and Use of Force • Decolonisationprocessblurred the line betweeninternal and international conflicts – raised a tension between the duty of non-intervention, and the requirement to assistpeoples in attainingself-determination • Before the creation of an enforceable right to SD, colonial powers sought to internalise the conflict. • Ie the AlgerianWar of Independenceagainst France (1954-1962) • France referred to it as ‘terrorism’ – employed torture widely

15. Self-Determination and Use of Force • Movetowardsrecognisingspecialcategory of ‘National LiberationMovements’ • Line betweeninternal and international conflictsfurtherblurred by Friendly Relations: The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shallexistuntil the people of the colony or Non-Self-Governing Territory have exercisedtheir right of self-determination in accordance with the Charter, and particularlyits purposes and principles. • Declarationappears to assumethat international rules of armedconflictapply in struggles for self-determination

16. 1. Duty of states to refrain from the use of force to denyself-determination • Can befound in principles 1 and 5 of the Friendly Relations Declaration: Every State has the duty to refrain from anyforcible action whichdeprivespeoples referred to in the elaboration of the principle of equalrights and self-determination of their right to self-determination and freedom and independence • Can alsobefound in Principle 4 of the ColonialIndependenceDeclaration and the preamble of the Definition of Aggression

17. 1. Duty of states to refrain from use of force to denyself-determination • By virtue of the principle of equalrights and self-determination of peoplesenshrined in the Charter of the UN, all peoples have the right freely to determine, withoutexternalinterference, theirpolitical status and to pursuetheireconomic, social and culturaldevelopment, and every State has the duty to respectthis right in accordance with the provisions of the Charter. • Has alsobeenread as extending to military intervention • See Legal Consequences of the Construction of a Wall in the OccupiedPalestinian Territory (Advisory Opinion), (2004)

18. 2. Prohibition on assistance to stateswhichareforciblydenyingpeoples SD • In the Wall Case, the Court did not specifythatIsrael’sconstruction of the West Bank barrier in itselfconstitutedsuch “forcible action”. • However, proceeding from the principle of the illegality of territorial acquisition resulting from the use of force, the barrier wasfound to give “expression in loco” to suchacquisitions • Together with changes to the demographics of the Arab population, thesewerefound to “severelyimpede” Palestinianself-determination. • This wasfound to be a breach of Israel’s obligation to respect the right, and, in turn, established an obligation for otherstates not to recognise, or aid or assistthat illegal situation.

19. 3. Right of peoples to useforciblemeans to exercisetheir right of self-determination. • Extreme reluctance of somecolonial powers to withdraw from theircolonial territories. ParticularlyPortuguese territories, and the racist states of South Africa and Southern Rhodesia – dubbed “the greatshame of ourcontinent” by Coted’Ivoire’sPresident Felix Houphouet-Boigny • In his separate opinion in the Namibia Opinion, Vice-President of the Court Fouad Ammounraised the controversialissue of the growing impetus of the Afro-Asia bloc in construing the frustration of self-determination throughcontinuedcolonialrule as an act of aggression: • In law, the legitimacy of the peoples' strugglecannotbe in anydoubt, for it follows from the right of self- defence, inherent in human nature, which is confirmed by Article 51 of the United Nations Charter

20. 3. Right of peoples to useforciblemeans to exercisetheir right of self-determination • Friendly Relations Declarationrecognizesthat: Everystate has the duty to refrain from anyforcible action whichdeprivespeoples. . . of their right to self-determination and freedom and independence. In their actions against and resistance to suchforcible action in pursuit of the exercise of self-determination, suchpeoplesareentitled to seek and to receive support in accordance with the purposes and principles of the Charter • The nature of the “resistance” and “struggle”ofthosepeopleswas never specified, although by implication it wouldappear to involveforcible action. • In the opinions of scholars of the period Asbjørn Eide and Georges Abi-Saab, thisparagraphconfirmedthat national liberationmovements have authority to use force in international law.

21. 3. Right of peoples to useforciblemeans to exercisetheir right of self-determination • Various arguments have beenadduced in justification of the use force by national liberationmovements. • Several Third World statesarguethatthere is a right of self-defenseagainst racist and colonialdomination • It wasalsoassertedthat the right of the struggle for national liberationwas a new exception to the prohibition on the use of force, recognising the uniquejustice of the cause of anti-colonialism • Alsoarguedthattherewasnoprohibitionbecausethesewereinternal affairs (weakerarguement)

22. 3. Right of peoples to useforciblemeans to exercisetheir right of self-determination • The Definition of Aggression referred to the right of peoplesforciblydeprived of the right of self-determination to struggle to that end. • Subsequent instruments, such as the Vienna Declaration 1993 and the UN Fiftieth Anniversary Declaration 1995 have spoken more ambiguouslyabout, “the right of peoples to takeanylegitimate action, in accordance with the Charter of the United Nations, to realizetheirinalienable right to self- determination.”

23. 4. Right of states to provide military assistance to peoplesstruggling for SD • Found in the Friendly Relations Declaration and the Definition of Aggression. • Bothrefer to peoplesstrugglingagainst the forcibledenial of self-determination beingentitled to seek and receive “support”inaccordance with the Charter. • The formula in both resolutions was not to specifywhat “support” included. If it involvedhumanitarian assistance it wasunlikely to clash with the principles of Charter. • The real issuewaswhethermilitary assistance, arms and personnel, which under normal circumstanceswouldbe a violation of article 2(4) of the Charter

24. Jus in Belloin Wars of National Liberation • The U.N. General Assembly has consistentlycalled for the application of the Geneva Conventions to armedconflictsinvolving national liberationmovements, thusimplicitlycharacterizingthem as international conflicts • In 1977 the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable to ArmedConflictsfollowed the General Assembly and expanded the reach of the First Additional Protocol to the 1949 Geneva Conventions to “armedconflicts in whichpeoplesarefightingagainstcolonialdomination and alienoccupation and against racist regimes in the exercise of their right to self-determination”.

25. 5. Territorial Change and Use of Force • Beyond the colonialcontext, however, this is more complicated. Secessionclaimscontinue to be made: Scotland, Quebec, Kurds, Cataloniaetc . • Post-Cold War border changes. International communitylargelyaccepted the forciblereintergration of Chechnyainto Russian territory in 1999 • However, the EU confirmedthatSlovenia and Croatiawereentitled to the protection of the prohibition of the use of force, aftertheydeclaredindependence, and beforetheyachieved international recognition. • Mostlyrelied on construction of legal personality deriving from federal arrangement

26. Kosovo Opinion • Kosovo declaredindependence from former Yugoslavia – eruptedintoarmedconflict – NATO intervenes in 1999 – placed under UN territorial administration • Revival of arguments relating to humanitarian intervention, and remedialsecession • ICJ confirmedthatdoctrine of territorial integrity and unityonlyappliesbetweenstates – so groupswithin the stateare not restrained by international law in seekingsecession • So secessionoperates in a vaccuum • Howeverwhat of the legality of the NATO intervention?