" Self-determination in its original conception was a liberating revolutionary
doctrine, and
it
has served this function in the decolonizing process. Indeed, it may be viewed
as the �Marseillaise� of de�colonization. But in other contexts, the doctrine
has been domesticated to serve the interests of ruling classes. Its present
state, in United Nations practice, is a bewildering complex of radicalism and
conservatism.
A vast literature of debates, resolutions,
declarations, and re�ports, a veritable blizzard,�1
attests to the significance of the doc�trine in the proceedings of the United
Nations. It includes two major studies, both under the aegis of the
Sub-Commission on Prevention of Discrimination and Protection of Minorities. The
first, by Hector Gros Espiell, The
Right to Self-Determination: Implementation of United Nations Resolutions,2
is concerned with the implementation of United Nations resolutions relating to
the right of peoples under colonial and alien domination to self-determination.
It was intended not merely as a theoretical work but as a contribution to the
struggle against colonialism in all its forms, and it
is essentially a revolutionary
document. Thus the right to self-determination is viewed as extending beyond the
original free determination of political status to the maintenance, assurance
and perfection of �full legal, political, economic, social and cultural
sovereignty.� Moreover, it is conceived as having lasting force: it does not
lapse after having been first exercised to secure political self-determination,
and it extends to all fields.3
At the same
time, there is a strong conservative cast to the ex�position of the doctrine.
This right, we are told, does not apply to peoples already organized in the form
of a state that is not under colonial and alien domination, since various U.N.
instruments condemn attempts aimed at the partial or total disruption of the
national unity and the territorial integrity of a country.
So, too, �the
right to secession from an existing state member of the United Nations does not
exist as such in the instruments or in the practice followed by the
Organisation, since to seek to invoke it in order to dis�rupt the national unity
and he territorial integrity of a State would be a misapplication of the
principle of self-determination contrary to the purposes of the
United Nations Charter.�
We are warned,
however, against accepting surface appearances: colonial and alien domina�tion
may persist under the guise of an ostensible national unity. And our attention
is drawn to a proviso, in the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States. This ties respect
for territorial integrity to the require�ment that the State should conduct
itself in compliance with the principle of equal rights and self-determination,
and thus be �possessed of a government representing the whole people belonging
to the territory without distinction as to race, creed or colour.�4
The second
study, by Aureliu Cristescu, The Right to Self Determination: Historical and
Current Development on the Basis of United Nations Instruments5
deals more broadly with the develop�ment of the basic concepts involved in
self-determination. The right itself is described in the most glowing terms. It
is �a fundamental right, without which other rights cannot be fully enjoyed. It
is not only a principle, but the most important subjective right among hu�man
rights . . . a prerequisite for the exercise of all individual rights and
freedoms.�6
The principle
of equal rights and self-determination should be understood in its widest sense.
It signifies the inalienable right of all peoples to choose their
own political, economic and social system and their own international
sta�tus. The principle of equal rights and self-determination of peoples thus
possesses a universal character, recognised by the Charter, as a right of all
peoples whether or not they have attained independence and the status of a
State. Furthermore, the very concept of the principle of equal rights and
self-determination of peoples is extremely wide ... The charter of the United
Nations should not be interpreted as confining that right to a particular
cat�egory of peoples, because, as United Nations practice has made clear, the
word �peoples� as used in Article 1, paragraph 2, of the Charter means all
peoples .7
The statement
of the principle could hardly be more radical, and this radical quality is
particularly marked in the subsidiary prin�ciples that the author derives from
the right to self-determination. Thus, in discussing the right of peoples freely
to pursue their eco�nomic development as an essential element of the right to
self-determination, the author raises the issue of social justice at both the
national and international levels. At the national level, �public own�ership of
the means of production, which is practised by an increas�ing number of
countries, remains the decisive factor in achieving eq�uitable distribution of
the national income, economic and social democratization and social justice.� At
the international level, �the principles of law and justice which necessarily
derive from the de�velopment of the right to self-determination� should �provide
for the equalization of the levels of economic development of all countries, as
a genuine basis for the democratization of international life.�8
But again,
political conservatism is juxtaposed to revolutionary radicalism. The
conservatism is protective of the independent sov�ereign state. A provision of
the
Declaration on the Granting of Independence to Colonial Countries and Peoples
(1960) is invoked as authority for the proposition that �the principle of
equal rights and self-determination is not to be applied to parts of the
territory of a sovereign State. Such a provision is needed in order to prevent
the principle from being applied in favour of secessionist movements in
independent States.�9
In a later
passage, we read that the principle of equal rights and self-determination of
peoples should serve to unite peoples on a voluntary and democratic basis, not
to break up exist�ing national entities. It is necessary to avoid any
formulation of the principle which might be interpreted as widening its scope
and making it applicable to peoples who already form part of an independent
sovereign State. To do otherwise would be to encourage secessionist movements in
sovereign States, and might serve as a pretext for endangering the national
unity and territorial integrity of sovereign States. . . . The principle of
self-determination should not be misused. It should not be invoked to call in
question the frontiers established between States.10
There are
further warnings against the principle being inter�preted as an encouragement to
secessionist or irredentist movements, and in one passage an admonition against
its use to justify �activities aimed at changing a country�s system of
government.�11 And as if all this
were not conservative enough, the author includes a panegyric in favor of
nationalism, which, I would have thought, constituted the major contemporary
threat to the survival of our spe�cies.12
The report does
not totally exclude the right of secession. It �unquestionably exists .. . in a
special, but very important case: that of peoples, territories and entities
subjugated in violation of international law."13
And the rapporteur does introduce some nuances to the conservatism. He links the
self-determination of peoples to human rights and comments that �the
international community has gener�ally accepted the idea that the principle of
non-intervention does not apply in a case of violation of those rights.��14
However, the
implications of this exception are not very clear to me, nor are they developed
in the report, which emphasizes the general principle of non�intervention in the
domestic affairs of sovereign states. There is mention of the proviso, or
qualification, to the general obligation to refrain from actions that would
dismember or impair the territorial integrity or political unity of a sovereign
and independent state, namely, that the State conduct itself in compliance with
the principle of equal rights and self-determination of peoples and be
representative, without discrimination, of the population as a whole. But in a
passage dealing with this qualification, the rapporteur curiously in�troduces
the word particularly so as to strengthen the injunction against �any act likely
to prejudice the national unity and territorial integrity of a
State�particularly a State� that conducts itself in the manner described above.�
15
These major
United Nations reports thus elaborate a radical revolutionary ideology in
respect to liberation from colonial and alien subjugation and in the
perspectives they offer on external self-determination of the successor
sovereign states.
By contrast,
the perspectives on internal determination in the independent sovereign
states are highly conservative, especially in relation to secession.
The term
itself is pejorative, with connotations of disloyalty, of treachery. Why
should the process not be described as �separation� or, in appropriate
cases, as �liberation�?
This
combination of radical and conservative ideologies should not surprise us. The
radical ideologies, both in respect to decoloni�zation and in the extension of
self-determination to economic, social, and cultural areas, are ideologies of
Third World countries. Indeed, they have a wider basis of support within the
United Nations. But as for the conservative ideologies on internal
self-determination, they are clearly not the ideologies of many of the peoples
of Third World countries, as is indicated by numerous destructive struggles for
po�litical restructuring of ethnic relations, for autonomy and for sepa�ration.
They are essentially ideologies of the ruling classes of these countries,
ideologies protective of their power and privilege.
These
conservative interpretations are by no means mandatory. They do not flow
inescapably from United Nations declarations. Cristescu, in chapter 2 of his
study, surveys the development of the right to self-determination in major
United Nations instruments, and I have selected the following key references
from his survey.
Article 1,
paragraph 2, of the
United Nations Charter states that one of the purposes of the United Nations
is
To develop
friendly relations among nations based on respect for the prin�ciple of
equal rights and self-determination of peoples, and to take other
ap�propriate measures to strengthen universal peace.
In addition,
the introductory paragraph to article 55 refers to
the creation
of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations based on respect for the prin�ciple of
equal rights and self-determination of peoples.
The General
Assembly�s
Declaration on the Granting of Independence to Colonial Countries and Peoples
mentions self-determination in the preamble and describes it as follows in
paragraph 2.
All peoples
have the right to self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, so�cial
and cultural development.�16
The right
appears again, in the same terms, in both the
International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights.17
As article 1 in both covenants, it has pride of place, indicating its status as
a fundamen�tal human right.
On the occasion
of the twenty-fifth anniversary of the United Nations, the General Assembly
adopted the
Declaration on Principles of International Law concerning Friendly Relations and
Co-operation among States in accordance with the Charter of the United
Nations.�18
Cristescu
describes this declaration as being �of the greatest importance in the
progressive development and codification of the prin�ciple of equal rights and
self-determination of peoples.�19
The following three paragraphs of the
preamble deal with this principle.
Convinced
that the subjection of peoples to alien subjugation, domination and
exploitation constitutes a major obstacle to the promotion of interna�tional
peace and security.
Convinced
that the principle of equal rights and self-determination of peoples
constitutes a significant contribution to contemporary international law,
and that its effective application is of paramount importance for the
promotion of friendly relations among States, based on respect for the
principle of sovereign equality.
Convinced in
consequence that any attempt aimed at the partial or total dis�ruption of
the national unity and territorial integrity of a State or country or at its
political independence is incompatible with the purposes and prin�ciples of
the Charter.
The
substantive provisions regarding self-determination define it as follows:
By virtue of
the principle of equal rights and self-determination of peoples enshrined in
the Charter of the United Nations, all peoples have the right freely to
determine, without external interference, their political status and to
pursue their economic, social and cultural development, and every State has
the duty to respect this right in accordance with the provisions of the
Charter.
Further
provisions impose on states the duty to promote the realization of equal rights
and self-determination of peoples and the respect for, and the observance of,
human rights and fundamental freedoms. There is a duty to refrain from any
forcible action that deprives peoples �in the elaboration of the present
principle of their right to self-determination and freedom and independence.�
The political forms of self-determination are described as �the establishment of
a sovereign and independent State, the free association or integration with an
independent State or the emergence into any other political status freely
determined by a people.�
The declaration
thus expresses the right to self-determination in the widest terms. The right is
clearly available to the peoples of in�dependent states (there is a separate
paragraph dealing with colonial and other non-self-governing territories). Any
injunction against the impairment of the territorial integrity or political
unity of sovereign and independent states is in direct conflict with the
principle of self-determination as defined above. Yet the declaration includes
this prohibition as one of the cardinal principles. Thus, two contradictory
cardinal principles are incorporated in the same declaration.
However, the
declaration does make a �courageous attempt�20
to reconcile this contradiction in the following manner.
Nothing in
the foregoing paragraphs shall be construed as authorizing or encouraging
any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States
conducting themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus pos�sessed of a
government representing the whole people belonging to the territory without
distinction as to race, creed or colour.
The implication
of this provision, to which we have already made reference, is that people of
different race, religion, or color enjoy the right to self-determination but in
a form that falls short of separation or total independence. However, the
limitation on the right to self-determination applies only in the absence of
discrimi�nation. Where there is discrimination and the government does not
represent all the peoples, self-determination may take the form of the
establishment of a sovereign and independent state. This is a far less
conservative position than that taken in the Cristescu report, or by the
Pakistan representative in his contention that it was �the established
jurisprudence of the United Nations that, while the principle of
self-determination governs the liberation of territories which are under
colonial rule or are in dispute between Member States, it can�not be extended to
areas that are recognised as integral parts of the territories of Member
States.�
The reference
in the above quotation is to the established jurisprudence of the United
Nations, a phrase that presumably incorporates actual practice. So let us turn
to this aspect, with primary concern, however, for cases involving secession
from member states.
The United
Nations has been very actively involved in the whole process of decolonization.
This is indeed one of its major contributions. In the report
The Right to Self Determination: Implementation of United Nations Resolutions,
the rapporteur refers to the very large number of situations in which the United
Nations has passed reso�lutions relating to the right of peoples under colonial
and alien dom�ination to self-determination.21
It is clearly the established jurisprudence of the United Nations that the
principle of self-determination governs the liberation of colonial territories.
However, the
process of self-determination in colonies has generally taken the form of a
self-determination of populations, not of peoples. That is to say, a territorial
criterion has governed the liberation of colonies.22
Many member states thus inherited the diversity of peoples in former colonial
territories and were confronted with the problem of integrating them into a
national unity. In the actual process of decolonization, consideration was often
given to the relations between these different peoples, or it was a matter of
contention. In a few cases, decolonization immediately provoked genocidal
massacre, as for example, in India on partition, and in Rwanda. At the present
time, the relationship between different ethnic and other groups, racial and
religious, continues to be a contentious issue in many of the successor states,
raising demands for internal self-determination.
Indeed, the
phenomenon is worldwide and not confined to the recently decolonized societies.23
Bangladesh raised in acute form the problem of self-determination by way of
secession, in the context of a great destruction of human life. The problem was
raised similarly in Nigeria by the secession of Eastern Nigeria (Biafra) and in
the Sudan by a move�ment for the secession of Southern Sudanese African peoples.
I pro�pose to refer briefly to these cases as a way of introducing general
comment relating to the �established jurisprudence� of the United Nations on the
issue of secession from independent sovereign states. But first, mention must be
made of the United Nations� response to the secession of Katanga from the newly
independent Congo in July 1960.
The events in
the Congo during the turbulent period immediately following independence from
Belgian colonial rule obliged the United Nations to define its attitude toward
secession, and its final opposition may be regarded as setting a precedent
against secession. But there were many special circumstances to the secession.
Katanga was rich in minerals, and it was clear that the Congo could not easily
survive without the revenues to be derived from these mineral re�sources.
Moreover, outside investment in Katangan wealth encour�aged the belief that
secession was being supported, if not instigated, by certain Western nations to
protect business interests in the region. Many members of the United Nations did
not believe that the Katangan regime represented the true wishes of the majority
of the Katan�gan population. Then, too, �the Congo showed every indication of
being further beset by separatist demands if the legitimacy of the Katanga
secession had been recognised.� And finally there was a readily available legal
justification for opposition to secession in a provision of the constitution
that �the Congo constitutes within its present boundaries, an indivisible and
democratic State.�24
The secession
of Biafra raised the very different issue of secession as a protection or remedy
against gross violations of human rights. The Proclamation of the Republic of
Biafra, on 30 May 1967, makes many charges of discrimination by the federal
government against the Eastern Region, and above all, it describes a series of
massacres by Northerners...."
1.Phrase used by Buchheit, 1978:34.
2. United Nations Publications, E/CN .4/Sub .2/405/Rev .1.
3. Ibid., para. 47.
4.
Ibid.,paras.60,89,and9O.
5. United Nations Publications, E/CN.4/Sub.2/404/Rev.1.
6. Ibid., para. 228.
7. Ibid., para. 268.
8. Ibid., paras. 346, 715.
9. Ibid., para. 174.
10.Para. 209.
11.See para. 268.
12.Paras.281�86.
13.Para. 173.
14.Para. 180.
15.Para. 228.
16.GA. Resolution 1514 (XV), dated 14 Dec. 1960.
17.Adopted by GA. Resolution 2200 A (XXI), dated 16 Dec. 1966.
18.By Resolution 2625 (XXV), dated 24 Oct. 1970.
19.1981, para.54.
20. Phrase used by the International Commission of Jurists in an excellent
dis�cussion of the problem in the context of the Bangladesh conflict. See The
Events in East Pakistan 1971, 1972, part v.
21.198l,chap.3.
22. See discussion by Sureda, 1973:355, and Murphy, 1980:44�45. Murphy
con�trasts the Wilsonian period after World War I with self-determination
focused on eth�nic groups and with the application of a territorial criterion
after World War II.
23. See the discussions by Connor, 1967:30�53 and 1972:319�55.
24. This discussion of Katanga follows the analysis by Buchheit,
1978:142�43, 152�53.
