Analysis of the Right to Self-determination in Contemporary International Law

By Julian Lagus, Student in  International and European Law at the University of Groningen in The Netherlands, on exchange at the University of Edinburgh,  EST Ambassador to Scotland. Feel free to contact Julian at scotland.est@gmail.com.

The right to self-determination is generally perceived as a collective legal right of all peoples to govern themselves.[1] Understood to be comprised of two dimensions, internal and external, it is one of the core principles of international law often awarded the status of jus cogens by legal professionals.[2] Like all questions regarding social, political or cultural status of people, self-determination can have a polarizing effect in the case of emergence of new states, prone to cause conflicts between the new and the parent state. In order to avoid the aforementioned conflicts, at least from a territorial point of view, self-determination can be limited by the principle of uti possidetis juris.[3] The legal analysis provided in this paper will focus on the contemporary status of right to self-determination, the internal and external aspects of it, and its limitation, while at the same time addressing the declaration of independence of Kosovo in this context.

Before the second World War, the general right to self-determination did not enjoy the status of a legal right. For example, in the Aaland Islands Case it was claimed to be a purely political concept.[4] The right achieved a higher status after the war when it was codified by articles 1, 55 and 56 of the Charter of United Nations, and later by article 1 of both of the 1966 United Nations’ Covenants on Human Rights; it played a big part in the independence of colonial countries and peoples.[5] The aforementioned articles provide the right to the “peoples”, but surprisingly offer no clarification whether, for example, an ethnic minority inside a state can be considered “peoples” and awarded their own exclusive right to self-determination apart from the main population of the state. The International Court of Justice (ICJ) acknowledged the right to self-determination in international law in the Namibia case, where it held that continuing occupation would violate the right to self-determination of the Namibian people; thereafter the ICJ has examined self-determination in the colonial context in, for example, the Western Sahara case and East Timor case, before the Wall case, where it concluded that there were practical impediments for the exercise of self-determination of the Palestinian people, a case which took place outside the colonial context.[6] In Kosovo, the discrimination and suppression of Kosovan Albanians by the Serb population led to the claim for self-determination by way of secession and independent statehood; in the Kosovo case, the ICJ discussed the right to self-determination only partly by focusing on different issues, and claimed that the “will of the people” is enough for the declaration of independence to be considered an exercise of self-determination.[7] This meant that the positive right to “remedial secession”, secession from the parent state enabled by a violation of self-determination by that very state, was not discussed. It is more or less ambiguous, whether the Kosovo Albanians would have been able to be separated from the universal right to self-determination embedded also to the Serbians, and claim a separate right to self-determination as minority, while they still were assimilated to the same state. Arguably, the Wall case and Kosovo case have both extended the applicability of self-determination beyond its original spectrum.[8]

During the colonial era, the right to self-determination presented itself as the right of dominated people to achieve equality with the people dominating them; post-colonialism state practice has shown that the scope of application of the right is broader. In contemporary international law, self-determination is divided into two notions, internal and external self-determination, which are not meant to be different rights, but rather different modes of implementation of the right.[9] Internal self-determination refers to the relationship of an individual with an existing state or government when it comes to, for example, various political and social rights, whereas external refers to the people’s ability to decide their status in the field of international relations, which is usually done by way of achievement or realization of full legal independence.[10] The relationship of the external and internal categorization of the right to self-determination was discussed in the Quebec case. In the aforementioned case, the Supreme Court of Canada stated that regularly the right to self-determination is fulfilled through the internal mode and that “a right to external self-determination arises in only the most extreme of cases”.[11] The court found that under international law, the right to external self-determination of the people of Quebec does not confer them the legal right to secede from the parent state.[12] However, in case the parent state oppresses its people and prevents the enjoyment of internal self-determination, the people may seek help from the international community.[13] The situation of Kosovo is relatively different to the ones that have come before, since when it comes to its declaration of independence and secession from Serbia, an act that can arguably be categorized as an exercise of right to external self-determination, the ICJ did not address whether there was a right to secession, but whether the unilateral declaration of independence was adopted in the violation of international law.[14] Essentially, this allowed the ICJ to construct its opinion in a way that did not make it necessary to address the question of self-determination and its relationship with unilateral secession for the purposes of the case. It was left undetermined whether the maltreatment and the alleged violation of internal self-determination of Kosovo Albanians would actually be an “extreme situation” as provided in the Quebec case, and give rise to the right to external self-determination being manifested in a way of remedial secession from the state of Serbia.[15]

In the Frontier Dispute case, the ICJ noted that the right to self-determination conflicts with another principle of international law, the principle of uti possidetis juris (UPJ).[16] UPJ is a principle of customary international law, which creates limitations to right to self-determination to preserve the boundaries of former colonies or federations emerging as new states; it has been held the deciding factor when borders of new states are being drawn and works as a tool to maintain stability, international peace, and security.[17] When it comes to the declaration of independence of Kosovo and secession from Serbia, and possible instabilities that could have been created by this action, UPJ limited the right to external self-determination by precluding the possible emergence of multiple boundary variants by providing the boundaries relevant for the process of determining the status of Kosovo.[18]

The status and application of the right of self-determination in the international legal order remain more or less ambiguous still to this date. Hence, the external mode of the right might have the potential to evolve into allowing for a certain group of people to unilaterally secede from the parent state. The internal mode in its current state appears to be more clear, as it ensures that people are guaranteed with certain rights within a state, by that state; if state disregards its obligations, the international community can take action to make sure individuals are not neglected. As the concept of self-determination keeps evolving, the right originally meant to create independence in colonial countries might play a big part in the creation of new states, and by this way, molding the international community of the future.

Castellino J, International Law and Self-Determination (Martinus Nijhoff Publishers 2000)

Crawford J, The Creation of States in International Law (2nd edn, OUP 2006)

Shaw M, International Law (7th edn, CUP 2014)

Orakhelashvili A, Peremptory Norms in International Law (OUP 2006)

Raič D, Statehood and the Law of Self-determination (Martinus Nijhoff Publishers 2002)

Roepstorff K, The Politics of Self-determination: Beyond the Decolonisation Process (Routledge 2013)

Eide A, ‘In Search of Constructive Alternatives to Secession’ in Christian Tomuschat (ed), Modern Law and Self-determination (Martinus Nijhoff Publishers 1993)

Thornberry P, ‘The Democratic or Internal Aspect of Self-determination with Some Remarks on Federalism’ in Christian Tomuschat (ed), Modern Law and Self-determination (Martinus Nijhoff Publishers 1993)

Aaland Islands Case (1920) League of Nations Official Journal Spec Supp 3

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403

Case Concerning East Timor (Portugal v. Australia) (Judgement) [1995] ICJ Rep 90

Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (Judgement) [1986] ICJ Rep 554

Legal Consequences of Constructing a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16

Reference Re Secession of Quebec [1998] 2 SCR 217

Western Sahara (Advisory Opinion) [1975] ICJ Rep 12

McCorquodale R, ‘Self-determination: A Human Rights Approach’ (1994) 43(4) ICLQ 857

McLellan T, ‘Kosovo, Abkhazia, and the Consequences of State Recognition’ (2009) 5(1) CSLR 1

Oklopcic Z, ‘Populus Interruptus: Self-determination, Independence of Kosovo, and the Vocabulary of Peoplehood’ (2009) 22(4) LJIL 677

Senaratne K, ‘Beyond the Internal/External Dichotomy of the Principle of Self-determination’ (2013) 43 HKLJ 463

Värk R, ‘The Advisory Opinion on Kosovo’s Declaration of Independence: Hopes, Disappointments, and Its Relevance to Crimea’ (2014) 34 Polish YB Intl’ L 115

Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3

International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171

[1] P Thornberry, ‘The Democratic or Internal Aspect of Self-determination with Some Remarks on Federalism’ in Christian Tomuschat (ed), Modern Law and Self-determination (Martinus Nijhoff Publishers 1993) 101.

[2] A Orakhelashvili, Peremptory Norms in International Law (OUP 2006) 51; J Castellino, International Law and Self-Determination (Martinus Nijhoff Publishers 2000) 123; J Crawford, The Creation of States in International Law (2nd edn, OUP 2006) 101.

[3] The principle of uti possidetis juris preserves the stability of territorial boundaries of a state, and with this, attempts to maintain international peace and security; R McCorquodale, ‘Self-determination: A Human Rights Approach’ (1994) 43(4) ICLQ 857, 880.

[4] M Shaw, International Law (7th edn, CUP 2014) 183; Aaland Islands Case (1920) League of Nations Official Journal Spec Supp 3, 3.

[5] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS 16 arts 1(2), 55 and 56; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 art 1; International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 art 1.

[6] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16 (Namibia case), para 52; Western Sahara (Advisory Opinion) [1975] ICJ Rep 12; Case Concerning East Timor (Portugal v. Australia) (Judgement) [1995] ICJ Rep 90 (East Timor case); Legal Consequences of Constructing a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136 (Wall case).

[7] K Roepstorff, The Politics of Self-determination: Beyond the Decolonisation Process (Routledge 2013) 24; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403 (Kosovo case).

[8] K Roepstorff (n7), 25.

[9] D Raič, Statehood and the Law of Self-determination (Martinus Nijhoff Publishers 2002) 226-227.

[10] K Senaratne, ‘Beyond the Internal/External Dichotomy of the Principle of Self-determination’ (2013) 43 HKLJ 463, 468 and 474.

[11] Reference Re Secession of Quebec [1998] 2 SCR 217 (Quebec case), para 126.

[12] Ibid., para 111.

[13] R Värk, ‘The Advisory Opinion on Kosovo’s Declaration of Independence: Hopes, Disappointments, and Its Relevance to Crimea’ (2014) 34 Polish YB Intl’ L 115, 128.

[14] Kosovo case (n.7), para 56.

[15] Some have argued that there indeed exists a qualified right to secession in cases of breaches of fundamental human rights and/or denial of people’s right to internal self-determination; T McLellan, ‘Kosovo, Abkhazia, and the Consequences of State Recognition’ (2009) 5(1) CSLR 1, 4-5.

[16] Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali) (Judgement) [1986] ICJ Rep 554 (Frontier Dispute case), 566-567.

[17] A Eide, ‘In Search of Constructive Alternatives to Secession’ in Christian Tomuschat (ed), Modern Law and Self-determination (Martinus Nijhoff Publishers 1993) 154.

[18] Z Oklopcic, ‘Populus Interruptus: Self-determination, Independence of Kosovo, and the Vocabulary of Peoplehood’ (2009) 22(4) LJIL 677, 689.