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SELF-DETERMINATION
Lragir.am
15/06/10
On the Principles of Self-Determination and so-called "Territorial
Integrity" in Public International Law (The Case of Nagorno-Karabakh)
We are not going to negotiate over the right of the people of Artsakh
(Karabakh) to self-determination. - Serzh Sargsyan, President of the
Republic of Armenia, June 1, 2010
It is for the people to determine the destiny of the territory and
not the territory the destiny of the people. - Judge Hardy Dillard,
International Court of Justice, Oct. 16, 1975
The notions of "self-determination" and "territorial integrity"
are often used with regard to the Nagorno-Karabakh conflict.
Unfortunately, these legal terms are largely misused mostly due to
political motives. One of the grave misinterpretations of the said
notions was by Ambassador-to-be (or not to be) Matthew Bryza when
he declared: "There's a legal principle of territorial integrity
of states, there's a political principle of self-determination of
peoples." As a matter of fact, it is just the opposite. There is a
legal principle of self-determination and there is no such principle of
territorial integrity. Article 2(4) of the UN Charter declares merely:
"All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations". Thus this has nothing to do with
absolute "territorial integrity", (i.e.
preservation of the territory of a state intact) but, according to
authoritative interpretation of the United States Foreign Relations
Law, it is simply the rule against intervention, a "prohibition of
use of force"[1] and purely calls to refrain from "the use of force
by one state to conquer another state or overthrow its government."[2]
In order to have adequate understanding of the status, scope and
content of the principles of "self-determination" and so called
"territorial integrity" in contemporary international law, we need
to elaborate more on the issue.
SELF-DETERMINATION
Self-determination: Historical Background
Self-determination is an ancient political right that is cherished by
every people. The word "self-determination" is derived from the German
word "selbstbestimmungsrecht" and was frequently used by German radical
philosophers in the middle of the nineteenth century. The political
origins of the concept of self-determination can be traced back to
the American Declaration of Independence of July 4, 1776. The American
Revolution is considered to be "an outstanding example of the principle
of self-determination."[3] The principle of self-determination was
further shaped by the leaders of the French Revolution. During the
nineteenth century and the beginning of the twentieth, the principle
of self-determination was interpreted by nationalist movements as
meaning that each nation had the right to constitute an independent
State and that only nationally-homogeneous States were legitimate.[4]
During World War I, President Wilson championed the principle of
self-determination as it became crystallized in Wilson's Fourteen
Points (January 8, 1918) and consequently was discussed in the early
days of the League on Nations.
The Mandate system was to some degree a compromise between outright
colonialism and principles of self-determination.
While discussion of the political right and principle of
self-determination has a long history, the process of establishing it
as a principle of international law is of more recent origin. Since
the codification of International Law is today mostly achieved through
an international convention drown up in a diplomatic conference or,
occasionally, in the UN General Assembly or similar forum on the
basis of a draft with commentary prepared by the International Law
Commission or some other expert body,[5] we must follow the development
of the discussed notions through international instruments. It must
be stressed that if the rules, incorporated in the form of articles
in the conventions, reflect existing customary international law,
they are binding on states regardless of their participation in the
conventions.[6]
Self-determination: Development under the Aegis of the United Nations:
1. Incorporation into the UN Charter
The principle of self-determination was invoked on many occasions
during World War II. It was proclaimed in the Atlantic Charter (14
August 1941). The provisions of the Atlantic Charter were restated
in the Washington Declaration of 1942, in the Moscow Declaration of
1943 and in other important instruments of the time. Owing to these
declarations already at the days of establishment of the United
Nations, the notion of self-determinations was seen as a principle
of international law.
Ultimately, "the principle of equal rights and self-determination of
peoples" was incorporated into the United Nations Charter. The Charter
[Article 1(2)] clearly enunciated the principle of self-determination:
"The purposes of the United Nations are: To develop friendly relations
among nations based on respect for the principle of equal rights and
self-determinations of peoples" and self-determination is conceived as
one among several possible "measures to strengthen universal peace."[7]
Chapter IX (International Economic and Social Co-operation, Article
55) lists several goals the organization should promote: "With a view
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 principle of equal rights and self-determination of
peoples." Under Article 56, "all Members pledge themselves to take
joint and separate action in cooperation with the Organization for
the achievement of the purposes set forth in Article 55."
The principle of self-determination, as it follows from Article
55 of the UN Charter, is one of the fundamentals of peaceful and
friendly international relations. In other words, there can be no
such relations without the observance of this principle. The same
article says it is the duty of the United Nations to promote respect
for fundamental human rights (para. c) and, consequently, for the
nations' right to self-determination. And since the establishment of
friendly relations between peoples and the promotion of respect for
human rights figure among the United Nation's most important tasks,
it is obvious that this organization is entitled to raise the question
of a people's self-determination.[8]
The Charter is dominant over all the other international documents.
This provision is set down in Article 103 of the Charter, and
is accepted by all the members of the UN. It is clear that the UN
considers the self-determination of peoples (self-determination, not
just the right of people for self-determination, i.e. the application
of this right) as not only one of its basic principles but also as a
basis for friendly relations and universal peace. Hence, rejection
of self-determination hinders friendship and universal peace. In
addition, Article 24, Point 2 holds: 'In discharging these duties [the
maintenance of international peace and security] the Security Council
shall act in accordance with the Purposes and Principles of the United
Nations.' It means that, in the maintenance of international peace and
security, the Security Council must be guided by self-determination
of peoples because it is one of its principles.
2. Development through UN Practice
The concept of self-determination was further developed by the United
Nations. Through its resolutions the United Nations has expounded and
developed the principle of self-determination. In Resolution 637A(VII)
of December 16, 1952 the General Assembly declared that: "the right
of peoples and nations to self-determination is a prerequisite to
the full enjoyment of all fundamental human rights." The General
Assembly recommended, inter alia, that "the States Members of the
United Nations shall uphold the principle of self-determination of
all peoples and nations."
In 1960, the General Assembly adopted Resolution 1514(XV) entitled
Declaration on the Granting of Independence to Colonial Countries and
Peoples which declares that: [para. 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, social
and cultural development." The Declaration regards the principle of
self-determination as a part of the obligations stemming from the
Charter, and is not a "recommendation", but is in the form of an
authoritative interpretation of the Charter.[9]
Later on, the principle was incorporated in a number of international
instruments. In 1966 two conventions on human rights entered into
force - the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights.
The Covenants have a common Article 1 which states: "All peoples have
the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic,
social and cultural development."
Consequently the Declaration of Principles of International Law
Concerning Friendly Relations and Co-operation among the States
in accordance with the Charter of the United Nations [General
assembly Resolution 2625 (XXV), 1970] confirmed the principle that
self-determination is a right belonging to all peoples and that
its implementation is required by the UN Charter: "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."
M. Zahovic, rapporteur for the Special Committee on Principles
of International Relations concerning Friendly Relations and
Co-operation among the Nations, remarked: "Nearly all representatives
who participated in the debate emphasised that the principle was
no longer to be considered a mere moral or political postulate;
it was rather settled principle of modern international law. Full
recognition of the principle was a prerequisite for the maintenance
of international peace and security, the development of friendly
relations and cooperation among the States, and the promotion of
economic, social and cultural progress throughout the world."[10]
Self-Determination: The Principle and Human Rights
The principle of self-determination developed from a philosophical
to political concept in international relations and has now matured
into a fundamental principle of positive international law. It has
developed recently as an aspect of human rights belonging to the group
rather than to the individual[11] and therefore rightly belongs to
both Covenants of Human Rights, as it was mentioned.
On 25 June 1993, representatives of 171 States adopted by consensus
the Vienna Declaration and Programme of Action of the World Conference
on Human Rights (June 14-25, 1993). The final document agreed to in
Vienna, which was endorsed by the forty-eighth session of the General
Assembly (resolution 48/121, of 1993), reaffirms the principles that
have evolved during the past 45 years and further strengthens the
foundation for additional progress in the area of human rights. The
document recognizes interdependence between democracy, development
and human rights, including the right to self-determination. The
final document emphasizes that the Conference considers the denial
of the right of self-determination as a violation of human rights
and underlines the importance of the effective realization of this
right[12] [para. 2]: "The World Conference on Human Rights considers
the denial of the right of self-determination as a violation of human
rights and underlines the importance of the effective realization of
this right".[13] Armenia, Azerbaijan, Turkey, and co-sponsors of the
OSCE Minsk group as well (Russian Federation, United States of America,
France) are parties to this convention.
International organizations which are concerned with human rights
and world peace have given full recognition to the fact that respect
for self-determination is a condition for world peace. Fundamental
human rights are meaningful in the context of a people enjoying
self-determination.[14]
The raison d'etre for the principle of self-determination is the
enjoyment by all peoples, regardless of race, religion, or sex, of
full democratic rights within the law, free from internal or external
domination. It seeks to provide the opportunities for the political,
economic, social, and cultural development of all peoples. The basic
objective of the principle is to guarantee that all peoples have
a government to their choice that responds to their political,
economic, and cultural needs.[15] Thus, denial of the right to
self-determination is a human rights violation and constitutes a
breach of international law.
Self-determination: Development of the Principle Through Other
Organizations
The International Commission of Jurists (affiliated to the
International Court of Justice) has held numerous conferences on
the rule of law attempting to provide a clear and comprehensive
definition of rule of law and better measures of implementation
in the context of protecting human rights. Its first congress was
held in Athens in 1955, where the participants gave effect to the
Act of Athens which resolved: " (9) The recognition of the right
to self-determination being one of the great achievements of our
era and one of the fundamental principles of international law, its
non-application is emphatically condemned. (10) Justice demands that
a people or an ethnic or political minority be not deprived of their
natural rights and especially of the fundamental rights of man and
citizens or of equal treatment for reasons of race, colour, class,
political conviction, caste or creed".[16]
The First World Conference of Lawyers on World Peace through Law,
in their Declaration of General Principles for a World Rule of Law
(Athens, July 6, 1963), adopted a resolution which stated: "In order
to establish an effective international legal system under the rule
of law which precludes resort to force, we declare that: (...) (6)
A fundamental principle of the international rule of law is that
of the right of self-determination of the peoples of the world,
as proclaimed in the Charter of the United Nations."[17]
Self-determination: Development of the Principle Through the ICJ
The principle of self-determination is exemplified in the decisions
by the International Court of Justice (ICJ). For example, in the
South-West Africa Cases (December 26, 1961, and July 18, 1966) Judge
Nervo, dissenting, expressed the belief that the concept of equality
and freedom "will inspire the vision and the conduct of peoples the
world over until the goal of self-determination and independence
is reached."[18]
The Advisory Opinion of the International Court relating to the
Western Sahara Case (October 16, 1975) reconfirmed as well "the
validity of the principle of self-determination" in the context of
international law.[19]
Also in the decision of June 30, 1995, concerning the East Timor Case
(Portugal v. Australia) the International Court reaffirmed that the
principle of self-determination of peoples is recognized by the UN
Charter and by its own jurisprudence as being "one of the essential
principles of contemporary international law."[Para. 29][20]
Self-Determination: Status, Scope and Content in Contemporary
International Law.
Both the United Nations and the majority of authors are alike in
maintaining that the principle of self-determination is part of
modern international law. Due to developments in the United Nations
since 1945, jurists now generally admit that self-determination is
a legal principle.[21] The principle has been confirmed, developed
and given more tangible form by a consistent body of State practice
and has been embodied among "the basic principles of international
law" in the Friendly Relations Resolutions.[22] The generality
and political aspect of the principle do not deprive it of legal
content.[23] Furthermore, having no doubts that the principle of
the self-determination of peoples is a legal principle, currently
many declare self-determination to be a jus cogens (peremptory) norm
of international law.[24] Accordingly, no derogation is admissible
from the principle of self-determination by means of a treaty or any
similar international transaction.[25]
It must be underlined that the right of self-determination is the
right to choose a form of political organization and relations with
other groups. The choice may be independence as a state, association
with other groups in a federal state, or autonomy or assimilation
in a unitary (non-federal) state.[26] A situation involving the
international legal principle of self-determination cannot be excluded
from the jurisdiction of the United Nations by a claim of domestic
jurisdiction. International customary law is binding on all states
regardless of consent; and in any event, states have bound themselves
under the Charter to respect the principle.[27] The claims of the
states that the implementation of the principle of self-determination
infringes on their rights or is contrary to their "constitutional
processes" cannot be made a pretext for depriving other peoples of
their right to self-determination.[28] Presently self-determination as
a principle is truly universal in scope.[29] It is also unconditional
because most of the UN members also hold that realization of the right
to self-determination should not have any strings attached to it.[30]
All these conceptions were summarized in the statement by Hans
Brunhart, Head of Government and Minister of Foreign Affairs of the
Principality of Liechtenstein, during the Forty-Seventh Session of
the General Assembly of the United Nations (September 23, 1992, UN Doc.
A/47/PV.9) [para. 6]: "The right to self-determination as
principle is now universally accepted. I would recall not only that
self-determination is one of the foundations of the Charter, but also
that most States represented in this Assembly are already under certain
specific legal obligations in this area by virtue of Article 1 of each
of the great human rights conventions of 1966. [i. e. the International
Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights.] There it is formally and
with legally binding effect acknowledged that: "All peoples have
the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic,
social and cultural development."[31]
Despite all this, and with some notable exceptions, the practical and
peaceful application of the principle of self-determination has often
been lacking. Time and again have dominant powers hindered oppressed
peoples from availing themselves of their right to self-determination
despite the obligations assumed in signing the UN Charter. So how
is one to establish that a people wants to be the master of its
own destiny?
There are different ways of establishing the will of the people
demanding self-determination. The will of the people may be determined
by a plebiscite. A plebiscite or, what amounts to the same thing,
a referendum means the right of the majority of the population
to determine the political and legal status of the territory it
inhabits.[32] The will of people may be expressed by parliament or by
any other representative institutions elected by the self-determining
people.[33]
By and large there are plebiscites without a popular vote on
the questions concerned. In such cases, the population of the
self-determining territory elects a representative organ which then
expresses the people's will. If the elections to these organs and
the vote in them are conducted on a democratic basis, this method
of expressing the people's will is quite legitimate.[34] This is the
situation that we had lately (May 23, 2010) in Nagorno-Karabakh during
the elections of the Parliament of the Republic of Nagorno-Karabakh
(Artsakh).
The will of the people may also be expressed in the form of mass
protests (civil disobedience, demonstrations, rallies, newspaper
articles, etc.). Lastly, it may find expression in armed uprisings or
wars for national liberation. The latter is an extreme measure and
people resorts to it only if forced to do so. A rule of customary
international law has emerged, according to which the principle
of self-determination includes a right of secession and, as a
consequence, the legality of wars of national liberation and third
party interventions on behalf of the secessionist movements.[35] The
use of force to achieve self-determination and for the assistance
of national liberation movements has increasingly been claimed
as legitimate in recent years, on the ground that it furthers the
principles of the UN Charter.[36]
There is no rule of international law forbidding revolutions within a
state, and the United Nation's Charter favors the self-determination
of peoples. Self-determination may take the forms of rebellion to
oust an unpopular government, of colonial revolt, of an irredentist
movement to transfer territory, or of a movement for the unification
or federation of independent states.[37] It should be especially
stressed that whatever way is chosen, no "central authority" or any
other people can solve the problem for the self-determining people, for
that would be contrary to the very principle of self-determination.[38]
While establishing the scope of self-determination, a question must be
answered: Are the peoples and nations which have already implemented
their right to self-determination subjects of this right? The
answer is "Yes", inasmuch as the UN Charter recognizes the right to
self-determination of all peoples and nations, without distinguishing
between those which have attained statehood and those which have not.
The question is answered analogically in the General Assembly
resolution on the inclusion of the clause on human rights in the
International Covenant on Human Rights.[39] It has been strongly
advocated that a nation which has been divided into States by outside
interference and without the clear consent of the population still
possess the inherent right of self-determination including the right
of reunification.[40]
Furthermore, infringement of the right to self-determination has been
used by the European Community as a potential ground for withholding
recognition of an entity as a State and hence to deny the legitimacy
of a government or a State which does not protect the right of
self-determination. In the EC Declaration on the Guidelines on the
Recognition of New States in Eastern Europe and in the Soviet Union
(December 16, 1991), there is the requirement that a potential new
State has constitutional guarantees of democracy and of "the rights of
ethnic and national groups and minorities" before recognition by the
EC States would be granted. Moreover, a new rule of international
law holds that a State established in violation of the right of
self-determination is a nullity in international law.[41]
Another question which concerns the self-determination of
peoples is: Can the right of self-determination be applied to
non-colonial entities? Certainly the main objective of the right of
self-determination was to bring a speedy end to colonialism. However,
since codification of that principle in the UN Charter, not one of
the major international instruments which have dealt with the right
of self-determination have limited the application of the right to
colonial situations. For example, the common Article 1 of the two
International Human Rights Conventions of 1966 (International Covenant
on Civil and Political Rights and International Covenant on Economic,
Social and Cultural Rights) applies the right to "all peoples" without
any restriction as to their status, and the obligation rests on all
States. Likewise, principle VIII of the Final Act of the Helsinki
Conference 1975 includes: "by virtue of the principle of equal rights
and self-determination of peoples, all peoples have the right, in
full freedom, to determine, when and as they wish, their internal
and external political status, without external interference, and to
pursue as they wish their political, economic, social and cultural
development". State practice also supports a broader application of
the right of self-determination beyond strictly colonial confines.
Indeed, the international Commission of Jurists, in its report on
Bangladesh's secession, stated that: "if one of the constituent peoples
of a State is denied equal rights and is discriminated against,
it is submitted that their full right of self-determination will
revive".[42] In the Treaty on the Final Settlement with Respect
to Germany (September 12, 1990), which was signed by four of the
five Permanent Members of the Security Council, it was expressly
mentioned that the "German people, freely exercising their right of
self-determination, have expressed their will to bring about the unity
of Germany as a State", [Preamble, para. 11], despite the fact that
neither East nor West Germany was a colony. It was also been applied
by States in the context of the break-up of the former Soviet Union
and former Yugoslavia.[43]
TERRITORIAL INTEGRITY AND POLITICAL INDEPENDENCE
"Territorial Integrity": Evaluation and Content
The notion of "territorial integrity" has been employed only three
times in international instruments. All other cases are only references
to these said documents.
The concepts of territorial integrity and political independence
emerged during the years immediately following the end of World War I.
Article 10 of the Covenant of the League of Nations stipulated that:
"the Members of the League undertake to respect and preserve as
against external aggression the territorial integrity and existing
political independence of all Members of the League".[44] The same
understanding of "territorial integrity" was reaffirmed in the UN
Charter: "2(4). All Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations." The
other important international instrument which is often referred to
is the Helsinki Final Act (adopted on August 1, 1975) which requires
the following: 'The participating States will refrain in their mutual
relations, as well as in their international relations in general,
from the threat or use of force against the territorial integrity or
political independence of any State ...'
It is obvious that the Helsinki Final Act, likewise the UN Charter and
League of Nations Covenant earlier, condemns merely the use of force
against territorial integrity and does not unconditionally advocate for
the absolute maintenance of territorial integrity. It makes clear that
use of external force or threat of use against territorial integrity
and political independence is unacceptable. Meanwhile, the Helsinki
Final Act (Chapter 1) specifically holds that: ' frontiers can be
changed, in accordance with international law, by peaceful means and
by agreement."
It is apparent that ever since the first time that the notion of
"territorial integrity" appeared within the domain of international
law, it has been closely intertwined with the question of the use
of external force. In other words, the principle of "territorial
integrity" is traditionally interwoven with the fundamental principle
of the prohibition of the threat or use of force[45] and not with
the absolute preservation of the territory of a state intact. As it
was mentioned above, it is just the "prohibition of use of [external]
force"[46] and the renunciation of "the use of force by one state to
conquer another state or overthrow its government."[47]
"Territorial Integrity": Scope, Limitation and Status under
International Law.
In modern political life there are repeated wrongful attempts
to present "territorial integrity" as a general limitation on the
right to self-determination. The basis for such limitation is false
because the government of a State which does not represent the whole
population on its territory without discrimination cannot succeed in
limiting the right of self-determination on the basis that it would
infringe that State's territorial integrity.[48]
Moreover, state practice shows that territorial integrity limitations
on the right of self-determination are often ignored, as seen in
the recognition of the independence of Bangladesh (from Pakistan),
Singapore (from Malaysia) and Belize, "despite the claims of
Guatemala".[49] In addition, after the recognition by the international
community of the disintegration of the Soviet Union and Yugoslavia,
recognition of East Timor and Eritrea, recognition to a certain extent
of Kosovo, Abkhazia and South Ossetia, it could now be the case that
any government which is oppressive to peoples within its territory
may no longer be able to rely on the general interest of territorial
integrity as a limitation on the right of self-determination.
Therefore there is a clear-cut understanding: only a government of a
State which allows all its peoples to decide their political status
and economic, social and cultural development freely has an interest
of territorial integrity which can possibly, only possibly, limit the
exercise of a right of self-determination. So territorial integrity,
as a limitation on the exercise of the right of self-determination,
can apply only to those States in which the government represents
the whole population in accordance with the exercise of internal
self-determination.[50] Thus, there is an apparent conceptual
link between democracy and self-determination. Democracy is often
viewed as internal self-determination, and secession as external
self-determination, that is, as the right of a people to govern itself,
rather than be governed by another people.[51]
Moreover, it is clear that those deprived of the right of
self-determination can seek forcible international support to uphold
their right of self-determination and no State can use force against
such groups. As it was referred above, the Declaration on Principles
of International Law provides that "every State has the duty to
refrain from any forcible action which deprives peoples ... of
their right of self determination and freedom and independence". The
increase in actions by the international community which could be
classed as humanitarian intervention, such as in Somalia and with the
creation of "safe havens" for the Kurds North of the 36th parallel in
Iraq[52] (1991-2003), indicates the reduced importance given by the
international community to the territorial integrity of a State when
human rights, including the right of self-determination, are grossly
and systematically violated.[53] The right of self-determination
applies to all situations where peoples are subject to oppression by
subjugation, domination and exploitation by others. It is applicable
to all territories, colonial or not, and to all peoples.[54] Indeed,
many of the claims for self-determination arose because of unjust,
State-based policies of discrimination and when the international
legal order failed to respond to the legitimate aspirations of peoples.
Self-Determination: Human Rights and the Right to Secession
One of the supposed dangers of self-determination is that it might
encourage secession. First of all, there is no rule of international
law that condemns all secessions under all circumstances.
Self-determination includes the right to secede.[55] In a situation
when the principle of territorial integrity is clearly incompatible
with that of self-determination, the former must, under present
international law, give way to the latter.[56] For instance, if a
majority or minority insists on committing an international crime,
such as genocide, or enforces a wholesale denial of human rights as
a deliberate policy against the other part, it is submitted that the
oppressed party, minority or majority, may have recourse to the right
of self-determination up to the point of secession.[57]
As Azerbaijan used force in answer to the free and peaceful expression
of the will of the people of Nagorno-Karabakh (rallies, referendums,
claims, appeals), took inadequate means of punishment, perpetrated
massacres of the Armenian citizens of Azerbaijan in Sumgait, Baku,
Kirovabad, and waged a ruthless war with Ukrainian, Afghan, Russian
mercenaries and sustained defeat, it cannot expect that the people
of Nagorno-Karabakh will renounce their lawful right and will not
exercise their right of self-determination.
Actually, the world community is under legal and moral obligation
to recognize the political self-determination of the people of
Nagorno-Karabakh, i.e. to recognize the Republic of Nagorno-Karabakh;
if a de facto state has crystallized, refusal to recognize it may
be tantamount to a denial of self-determination. Moreover, there is
a clear understanding in international law: after the international
requirements for the recognition of belligerency have been fulfilled
(as it was done with regard to Nagorno-Karabakh by the Bishkek
Protocol (May 5, 1994), and by the Cease-fire Agreement, (May 12,
1994)), a duty of recognition of belligerency necessarily follows,
and refusal of recognition is interference with the right of political
self-determination of the people of a State, and therefore constitutes
illegal intervention.[58] This obligation arises from the understanding
that the principle and rules on self-determination are erga omnes,
that is, they belong to that class of international legal obligations
which are not "bilateral" or reciprocal, but are in favor of all
members of the international community.[59]
In the Loizidou v. Turkey Case, a 1996 judgment of the European Court
of Human Rights, Judge Wildhaber identifies an emerging consensus that
the right of self-determination, more specifically secession, should
be interpreted as remedial for certain human rights abuses: "Until
recently in international practice the right to self-determination
was in practical terms identical to, and indeed restricted to, a
right to decolonisation. In recent years a consensus has seemed to
emerge that peoples may also exercise a right to self-determination if
their human rights are consistently and flagrantly violated or if they
are without representation at all or are massively underrepresented
in an undemocratic and discriminatory way. If this description is
correct then the right to self-determination is a tool which may
be used to re-establish international standards of human rights
and democracy".[60] As Judge Wildhaber attests, there is increasing
agreement among authors that the right of self-determination provides
the remedy of secession to a group whose rights have been consistently
and severely abused by the state.[61] The self-determination of the
people of Nagorno-Karabakh must certainly be assessed as an act of
corrective justice as well.
So a minority's entitlement to self-determination can and must be
judged within a human rights framework. Self-determination postulates
the right of a people organized in an established territory to
determine its collective political destiny in a democratic fashion.[62]
It is legal nonsense to presume that self-determination should
take place within previous administrative borders, without regard
for the cultural, linguistic or ethnic identity of the people
there. Internal boundaries in the former Soviet Union were often drawn
in a way which ensured that many members of the titular nation were
outside the boundaries of their (titular) republic, as it was with
Nagorno-Karabakh.[63] A politically disempowered distinct group in
a specific region has the right to independence,[64] regardless of
whether or not they are organized in an administrative unit. There is
no doubt that the people of Nagorno-Karabakh (not only the people of
the Nagorno-Karabakh Autonomous Region) are entitled to independence
as their choice of self-determination due to the extreme discrimination
that they faced under Azerbaijan.
Summary:
Self-determination is an ancient political right. Presently the
right to self-determination is a well-established principle in public
international law. The principle has been confirmed, developed and
given more tangible form by a consistent body of State practice and
has been embodied in various international instruments.
The principle of self-determination is exemplified in the decisions
by the International Court of Justice (ICJ).
The principle of self-determination is one of the fundamentals
of peaceful and friendly international relations. Respect for
self-determination is a condition for world peace. Those deprived
of the right of self-determination can seek forcible international
support to uphold their right of self-determination.
Self-determination as a principle of international law is universal
in scope. The right of self-determination applies to all situations
where peoples are subject to oppression by subjugation, domination
and exploitation by others - all peoples and nations, without
distinguishing between those which have attained statehood and those
which have not.
The principle of the self-determination of peoples is a legal principle
and is a jus cogens (peremptory) norm of international law.
The right of self-determination is the right to choose a form of
political organization and relations with other groups. Denial of
the right of to self-determination is a human rights violation and
constitutes a breach of international law.
The right of peoples and nations to self-determination is a
prerequisite to the full enjoyment of all fundamental human rights.
Therefore the General Assembly recommended that the member states of
the United Nations uphold the principle of self-determination of all
peoples and nations.
Article 2(4) of the UN Charter has nothing to do with absolute
"territorial integrity", but is simply the rule against intervention,
a "prohibition of use of force" and purely calls to refrain from
"the use of force by one state to conquer another state or overthrow
its government."
Self-determination includes the right to secede. The people of
Nagorno-Karabakh (not only the people of the Nagorno-Karabakh
Autonomous Region) are entitled to independence as their choice of
self-determination.
Self-determination postulates the right of a people organized in an
established territory to determine its collective political destiny
in a democratic fashion.
Ara Papian Head of Modus Vivendi Center June 1-7, 2010
[1] Restatement of the Law (Third), The Foreign Relations Law of the
United States, The American Law Institute, Washington, 1987, v. 2,
§ 905(7), p. 389.
[2] Ibid., p. 383.
[3] O. U. Umozurike, Self-Determination in International Law, 1972,
Connecticut, 1972, p. 8.
[4] D. Thurer, Self-Determination, in R. Bernhardt (ed.), Encyclopaedia
of Public International Law, vol. IV, Amsterdam, 2000, p. 364.
[5] Sh. Rosenne, Codification of International Law, in R. Bernhardt
(ed.), Encyclopaedia of Public International Law, v. I, Amsterdam,
1992, p. 633.
[6] Ibid.
[7] D. Thurer, op. cit., p. 365.
[8] G. Starushenko, The Principle of Self-determination in Soviet
Foreign Policy, Moscow, 1963, p. 221.
[9] Recueil des cours de l'Academie de droit international, The Hague,
1962, II, p. 33. Annual Report of the Secretary-General , 1960, 2.
Chief Judge Moreno Quintana, International Court of Justice Reports,
1960, pp. 95-96.
[10] O.U., Umozurike, op. cit., p. 192.
[11] Ibid., p. 271.
[12] T. Hillier, Sourcebook on Public International Law, London-Sydney,
1998, p. 192.
[13] Documents, UN General Assembly, A/CONF.157/23; 12 July 1993.
[14] O.U., Umozurike, op. cit., p. 188.
[15] Ibid., p. 273.
[16] Ibid., p. 185.
[17] Declaration of General Principles for a World Rule of Law,
American Journal of International Law, 58, (1964) pp. 138-151, at 143.
[18] International Court of Justice, Reports, 1966, v. IV, p. 465.
[19] ICJ Reports (1975) 12 at 31-33. See also the Namibia Opinion,
ibid. (1971), 16 at 31; Geog K. v. Ministry of Interior, ILR 71,
at 284; and the Case Concerning East Timor, ICJ Reports (1995) at 102.
[20] D. Thurer, op. cit., p. 370.
[21] I. Brownlie, Principles of Public International Law, Oxford,
1998 (5th ed.), p. 600.
[22] D. Thurer, op. cit., p. 366.
[23] I. Brownlie, op. cit., p. 600.
[24] T. Hillier, op. cit., p. 191. Supporters of the view that the
right of self-determination is part of jus cogens include: I.
Brownlie, op. cit., (4th ed.), Oxford, 1991, p. 513. A. Cassese,
International Law in a Divided World, Oxford, 1989, p. 136; J.
Craword, "The Rights of Peoples: Some Conclusions", in J. Crawford,
(ed.), The Rights of Peoples, Oxford, 1988, pp. 159-175, at p. 166; H.
Gros Espiell, The Right to Self-Determination, Implementation of United
Nations Resolutions (1978), para. 85; and the UK's and Argentina's
statements in the context of the Falklands/Malvinas dispute (1982)
53 British Yearbook of International Law, pp. 366-379.
[25] A. Cassese, Self-determination of Peoples, Cambridge, 1995,
p. 134-35.
[26] I. Brownlie, op. cit., p. 599.
[27] O. U. Umozurike, op. cit., p. 196.
[28] G. Starushenko, op. cit., p. 209.
[29] D. Thurer, op. cit., p. 369.
[30] G. Starushenko, op. cit., p. 210.
[31] Self-Determination and Self-Administration, A Sourcebook, (ed. W.
Danspeckgruber and A. Watts), London, 1997, Appendix 2, The
Liechtenstein Initiative at the UN, p. 405.
[32] G. Starushenko, op. cit., p. 214.
[33] Ibid., p. 213.
[34] Ibid., p. 215-6.
[35] D. Thurer, op. cit., p. 368.
[36] T. Hillier, op. cit., p. 612.
[37] Self-Determination, Digest of International Law (ed. M.
Whiteman), Washington, 1974, v. 5, § 4, p. 39.
[38] G. Starushenko, op. cit., p. 214.
[39] Resolution 545 (VI) of February 5, 1952.
[40] D. Thurer, op. cit., p. 368.
[41] Ibid., p. 369.
[42] The Secretariat of the International Commission of Jurists,
Report on "Events in East Pakistan, (1971)", Geneva, p. 69.
[43] R. McCorquodale, Self-Determination: Human Rights Approach, The
International and Comparative Law Quarterly, vol. 43, # 4 (Oct. 1994),
p. 861.
[44] Ch. Rozakis, Territorial Integrity and Political Independence,
in R. Bernhardt (ed.), Encyclopaedia of Public International Law,
v. IV, Amsterdam, 2000, p. 813.
[45] Ibid., pp. 812-13.
[46] Restatement of the Law (Third), op. cit., p. 389.
[47] Ibid., p. 383.
[48] R. McCorquodale, op. cit., p. 880.
[49] J.Maguie, "The Decolonization of Belize: Self-Determination v.
Territorial Integrity" (1982) 22 Virginia Journal of International Law,
p. 849.
[50] R. McCorquodale, op. cit., p. 880.
[51] M. Moore, National Self-Determination, Oxford, 1998, p. 10.
[52] Security Council Resolution 688 (April 5 1991).
[53] R. McCorquodale, op. cit., p. 882.
[54] Ibid., p. 883.
[55] M. Moore, op. cit., p. 23.
[56] O.U. Umozurike, op. cit., p. 187.
[57] Ibid., p. 199.
[58] A.V.W. Thomas and A.J. Thomas, Non-Intervention: The Law and
its Import in the Americas, Dallas, 1956, p. 220.
[59] A. Cassese, op. cit., p. 134.
[60] Loizidou v. Turkey (Merits), European Court of Human Rights,
18 December, 1996, (1997) 18 Human Rights Law Journal 50 at p. 59.
[61] K. Knop, Diversity and Self-Determination in International Law,
Cambridge, 2002, p. 74.
[62] Ibid., p. 85.
[63] M. Moore, op. cit., p. 140.
[64] T.M. Frank, The Power of Legitimacy among the Nations, New York,
1990, p. 171.
From: A. Papazian
Lragir.am
15/06/10
On the Principles of Self-Determination and so-called "Territorial
Integrity" in Public International Law (The Case of Nagorno-Karabakh)
We are not going to negotiate over the right of the people of Artsakh
(Karabakh) to self-determination. - Serzh Sargsyan, President of the
Republic of Armenia, June 1, 2010
It is for the people to determine the destiny of the territory and
not the territory the destiny of the people. - Judge Hardy Dillard,
International Court of Justice, Oct. 16, 1975
The notions of "self-determination" and "territorial integrity"
are often used with regard to the Nagorno-Karabakh conflict.
Unfortunately, these legal terms are largely misused mostly due to
political motives. One of the grave misinterpretations of the said
notions was by Ambassador-to-be (or not to be) Matthew Bryza when
he declared: "There's a legal principle of territorial integrity
of states, there's a political principle of self-determination of
peoples." As a matter of fact, it is just the opposite. There is a
legal principle of self-determination and there is no such principle of
territorial integrity. Article 2(4) of the UN Charter declares merely:
"All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations". Thus this has nothing to do with
absolute "territorial integrity", (i.e.
preservation of the territory of a state intact) but, according to
authoritative interpretation of the United States Foreign Relations
Law, it is simply the rule against intervention, a "prohibition of
use of force"[1] and purely calls to refrain from "the use of force
by one state to conquer another state or overthrow its government."[2]
In order to have adequate understanding of the status, scope and
content of the principles of "self-determination" and so called
"territorial integrity" in contemporary international law, we need
to elaborate more on the issue.
SELF-DETERMINATION
Self-determination: Historical Background
Self-determination is an ancient political right that is cherished by
every people. The word "self-determination" is derived from the German
word "selbstbestimmungsrecht" and was frequently used by German radical
philosophers in the middle of the nineteenth century. The political
origins of the concept of self-determination can be traced back to
the American Declaration of Independence of July 4, 1776. The American
Revolution is considered to be "an outstanding example of the principle
of self-determination."[3] The principle of self-determination was
further shaped by the leaders of the French Revolution. During the
nineteenth century and the beginning of the twentieth, the principle
of self-determination was interpreted by nationalist movements as
meaning that each nation had the right to constitute an independent
State and that only nationally-homogeneous States were legitimate.[4]
During World War I, President Wilson championed the principle of
self-determination as it became crystallized in Wilson's Fourteen
Points (January 8, 1918) and consequently was discussed in the early
days of the League on Nations.
The Mandate system was to some degree a compromise between outright
colonialism and principles of self-determination.
While discussion of the political right and principle of
self-determination has a long history, the process of establishing it
as a principle of international law is of more recent origin. Since
the codification of International Law is today mostly achieved through
an international convention drown up in a diplomatic conference or,
occasionally, in the UN General Assembly or similar forum on the
basis of a draft with commentary prepared by the International Law
Commission or some other expert body,[5] we must follow the development
of the discussed notions through international instruments. It must
be stressed that if the rules, incorporated in the form of articles
in the conventions, reflect existing customary international law,
they are binding on states regardless of their participation in the
conventions.[6]
Self-determination: Development under the Aegis of the United Nations:
1. Incorporation into the UN Charter
The principle of self-determination was invoked on many occasions
during World War II. It was proclaimed in the Atlantic Charter (14
August 1941). The provisions of the Atlantic Charter were restated
in the Washington Declaration of 1942, in the Moscow Declaration of
1943 and in other important instruments of the time. Owing to these
declarations already at the days of establishment of the United
Nations, the notion of self-determinations was seen as a principle
of international law.
Ultimately, "the principle of equal rights and self-determination of
peoples" was incorporated into the United Nations Charter. The Charter
[Article 1(2)] clearly enunciated the principle of self-determination:
"The purposes of the United Nations are: To develop friendly relations
among nations based on respect for the principle of equal rights and
self-determinations of peoples" and self-determination is conceived as
one among several possible "measures to strengthen universal peace."[7]
Chapter IX (International Economic and Social Co-operation, Article
55) lists several goals the organization should promote: "With a view
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 principle of equal rights and self-determination of
peoples." Under Article 56, "all Members pledge themselves to take
joint and separate action in cooperation with the Organization for
the achievement of the purposes set forth in Article 55."
The principle of self-determination, as it follows from Article
55 of the UN Charter, is one of the fundamentals of peaceful and
friendly international relations. In other words, there can be no
such relations without the observance of this principle. The same
article says it is the duty of the United Nations to promote respect
for fundamental human rights (para. c) and, consequently, for the
nations' right to self-determination. And since the establishment of
friendly relations between peoples and the promotion of respect for
human rights figure among the United Nation's most important tasks,
it is obvious that this organization is entitled to raise the question
of a people's self-determination.[8]
The Charter is dominant over all the other international documents.
This provision is set down in Article 103 of the Charter, and
is accepted by all the members of the UN. It is clear that the UN
considers the self-determination of peoples (self-determination, not
just the right of people for self-determination, i.e. the application
of this right) as not only one of its basic principles but also as a
basis for friendly relations and universal peace. Hence, rejection
of self-determination hinders friendship and universal peace. In
addition, Article 24, Point 2 holds: 'In discharging these duties [the
maintenance of international peace and security] the Security Council
shall act in accordance with the Purposes and Principles of the United
Nations.' It means that, in the maintenance of international peace and
security, the Security Council must be guided by self-determination
of peoples because it is one of its principles.
2. Development through UN Practice
The concept of self-determination was further developed by the United
Nations. Through its resolutions the United Nations has expounded and
developed the principle of self-determination. In Resolution 637A(VII)
of December 16, 1952 the General Assembly declared that: "the right
of peoples and nations to self-determination is a prerequisite to
the full enjoyment of all fundamental human rights." The General
Assembly recommended, inter alia, that "the States Members of the
United Nations shall uphold the principle of self-determination of
all peoples and nations."
In 1960, the General Assembly adopted Resolution 1514(XV) entitled
Declaration on the Granting of Independence to Colonial Countries and
Peoples which declares that: [para. 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, social
and cultural development." The Declaration regards the principle of
self-determination as a part of the obligations stemming from the
Charter, and is not a "recommendation", but is in the form of an
authoritative interpretation of the Charter.[9]
Later on, the principle was incorporated in a number of international
instruments. In 1966 two conventions on human rights entered into
force - the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights.
The Covenants have a common Article 1 which states: "All peoples have
the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic,
social and cultural development."
Consequently the Declaration of Principles of International Law
Concerning Friendly Relations and Co-operation among the States
in accordance with the Charter of the United Nations [General
assembly Resolution 2625 (XXV), 1970] confirmed the principle that
self-determination is a right belonging to all peoples and that
its implementation is required by the UN Charter: "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."
M. Zahovic, rapporteur for the Special Committee on Principles
of International Relations concerning Friendly Relations and
Co-operation among the Nations, remarked: "Nearly all representatives
who participated in the debate emphasised that the principle was
no longer to be considered a mere moral or political postulate;
it was rather settled principle of modern international law. Full
recognition of the principle was a prerequisite for the maintenance
of international peace and security, the development of friendly
relations and cooperation among the States, and the promotion of
economic, social and cultural progress throughout the world."[10]
Self-Determination: The Principle and Human Rights
The principle of self-determination developed from a philosophical
to political concept in international relations and has now matured
into a fundamental principle of positive international law. It has
developed recently as an aspect of human rights belonging to the group
rather than to the individual[11] and therefore rightly belongs to
both Covenants of Human Rights, as it was mentioned.
On 25 June 1993, representatives of 171 States adopted by consensus
the Vienna Declaration and Programme of Action of the World Conference
on Human Rights (June 14-25, 1993). The final document agreed to in
Vienna, which was endorsed by the forty-eighth session of the General
Assembly (resolution 48/121, of 1993), reaffirms the principles that
have evolved during the past 45 years and further strengthens the
foundation for additional progress in the area of human rights. The
document recognizes interdependence between democracy, development
and human rights, including the right to self-determination. The
final document emphasizes that the Conference considers the denial
of the right of self-determination as a violation of human rights
and underlines the importance of the effective realization of this
right[12] [para. 2]: "The World Conference on Human Rights considers
the denial of the right of self-determination as a violation of human
rights and underlines the importance of the effective realization of
this right".[13] Armenia, Azerbaijan, Turkey, and co-sponsors of the
OSCE Minsk group as well (Russian Federation, United States of America,
France) are parties to this convention.
International organizations which are concerned with human rights
and world peace have given full recognition to the fact that respect
for self-determination is a condition for world peace. Fundamental
human rights are meaningful in the context of a people enjoying
self-determination.[14]
The raison d'etre for the principle of self-determination is the
enjoyment by all peoples, regardless of race, religion, or sex, of
full democratic rights within the law, free from internal or external
domination. It seeks to provide the opportunities for the political,
economic, social, and cultural development of all peoples. The basic
objective of the principle is to guarantee that all peoples have
a government to their choice that responds to their political,
economic, and cultural needs.[15] Thus, denial of the right to
self-determination is a human rights violation and constitutes a
breach of international law.
Self-determination: Development of the Principle Through Other
Organizations
The International Commission of Jurists (affiliated to the
International Court of Justice) has held numerous conferences on
the rule of law attempting to provide a clear and comprehensive
definition of rule of law and better measures of implementation
in the context of protecting human rights. Its first congress was
held in Athens in 1955, where the participants gave effect to the
Act of Athens which resolved: " (9) The recognition of the right
to self-determination being one of the great achievements of our
era and one of the fundamental principles of international law, its
non-application is emphatically condemned. (10) Justice demands that
a people or an ethnic or political minority be not deprived of their
natural rights and especially of the fundamental rights of man and
citizens or of equal treatment for reasons of race, colour, class,
political conviction, caste or creed".[16]
The First World Conference of Lawyers on World Peace through Law,
in their Declaration of General Principles for a World Rule of Law
(Athens, July 6, 1963), adopted a resolution which stated: "In order
to establish an effective international legal system under the rule
of law which precludes resort to force, we declare that: (...) (6)
A fundamental principle of the international rule of law is that
of the right of self-determination of the peoples of the world,
as proclaimed in the Charter of the United Nations."[17]
Self-determination: Development of the Principle Through the ICJ
The principle of self-determination is exemplified in the decisions
by the International Court of Justice (ICJ). For example, in the
South-West Africa Cases (December 26, 1961, and July 18, 1966) Judge
Nervo, dissenting, expressed the belief that the concept of equality
and freedom "will inspire the vision and the conduct of peoples the
world over until the goal of self-determination and independence
is reached."[18]
The Advisory Opinion of the International Court relating to the
Western Sahara Case (October 16, 1975) reconfirmed as well "the
validity of the principle of self-determination" in the context of
international law.[19]
Also in the decision of June 30, 1995, concerning the East Timor Case
(Portugal v. Australia) the International Court reaffirmed that the
principle of self-determination of peoples is recognized by the UN
Charter and by its own jurisprudence as being "one of the essential
principles of contemporary international law."[Para. 29][20]
Self-Determination: Status, Scope and Content in Contemporary
International Law.
Both the United Nations and the majority of authors are alike in
maintaining that the principle of self-determination is part of
modern international law. Due to developments in the United Nations
since 1945, jurists now generally admit that self-determination is
a legal principle.[21] The principle has been confirmed, developed
and given more tangible form by a consistent body of State practice
and has been embodied among "the basic principles of international
law" in the Friendly Relations Resolutions.[22] The generality
and political aspect of the principle do not deprive it of legal
content.[23] Furthermore, having no doubts that the principle of
the self-determination of peoples is a legal principle, currently
many declare self-determination to be a jus cogens (peremptory) norm
of international law.[24] Accordingly, no derogation is admissible
from the principle of self-determination by means of a treaty or any
similar international transaction.[25]
It must be underlined that the right of self-determination is the
right to choose a form of political organization and relations with
other groups. The choice may be independence as a state, association
with other groups in a federal state, or autonomy or assimilation
in a unitary (non-federal) state.[26] A situation involving the
international legal principle of self-determination cannot be excluded
from the jurisdiction of the United Nations by a claim of domestic
jurisdiction. International customary law is binding on all states
regardless of consent; and in any event, states have bound themselves
under the Charter to respect the principle.[27] The claims of the
states that the implementation of the principle of self-determination
infringes on their rights or is contrary to their "constitutional
processes" cannot be made a pretext for depriving other peoples of
their right to self-determination.[28] Presently self-determination as
a principle is truly universal in scope.[29] It is also unconditional
because most of the UN members also hold that realization of the right
to self-determination should not have any strings attached to it.[30]
All these conceptions were summarized in the statement by Hans
Brunhart, Head of Government and Minister of Foreign Affairs of the
Principality of Liechtenstein, during the Forty-Seventh Session of
the General Assembly of the United Nations (September 23, 1992, UN Doc.
A/47/PV.9) [para. 6]: "The right to self-determination as
principle is now universally accepted. I would recall not only that
self-determination is one of the foundations of the Charter, but also
that most States represented in this Assembly are already under certain
specific legal obligations in this area by virtue of Article 1 of each
of the great human rights conventions of 1966. [i. e. the International
Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights.] There it is formally and
with legally binding effect acknowledged that: "All peoples have
the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic,
social and cultural development."[31]
Despite all this, and with some notable exceptions, the practical and
peaceful application of the principle of self-determination has often
been lacking. Time and again have dominant powers hindered oppressed
peoples from availing themselves of their right to self-determination
despite the obligations assumed in signing the UN Charter. So how
is one to establish that a people wants to be the master of its
own destiny?
There are different ways of establishing the will of the people
demanding self-determination. The will of the people may be determined
by a plebiscite. A plebiscite or, what amounts to the same thing,
a referendum means the right of the majority of the population
to determine the political and legal status of the territory it
inhabits.[32] The will of people may be expressed by parliament or by
any other representative institutions elected by the self-determining
people.[33]
By and large there are plebiscites without a popular vote on
the questions concerned. In such cases, the population of the
self-determining territory elects a representative organ which then
expresses the people's will. If the elections to these organs and
the vote in them are conducted on a democratic basis, this method
of expressing the people's will is quite legitimate.[34] This is the
situation that we had lately (May 23, 2010) in Nagorno-Karabakh during
the elections of the Parliament of the Republic of Nagorno-Karabakh
(Artsakh).
The will of the people may also be expressed in the form of mass
protests (civil disobedience, demonstrations, rallies, newspaper
articles, etc.). Lastly, it may find expression in armed uprisings or
wars for national liberation. The latter is an extreme measure and
people resorts to it only if forced to do so. A rule of customary
international law has emerged, according to which the principle
of self-determination includes a right of secession and, as a
consequence, the legality of wars of national liberation and third
party interventions on behalf of the secessionist movements.[35] The
use of force to achieve self-determination and for the assistance
of national liberation movements has increasingly been claimed
as legitimate in recent years, on the ground that it furthers the
principles of the UN Charter.[36]
There is no rule of international law forbidding revolutions within a
state, and the United Nation's Charter favors the self-determination
of peoples. Self-determination may take the forms of rebellion to
oust an unpopular government, of colonial revolt, of an irredentist
movement to transfer territory, or of a movement for the unification
or federation of independent states.[37] It should be especially
stressed that whatever way is chosen, no "central authority" or any
other people can solve the problem for the self-determining people, for
that would be contrary to the very principle of self-determination.[38]
While establishing the scope of self-determination, a question must be
answered: Are the peoples and nations which have already implemented
their right to self-determination subjects of this right? The
answer is "Yes", inasmuch as the UN Charter recognizes the right to
self-determination of all peoples and nations, without distinguishing
between those which have attained statehood and those which have not.
The question is answered analogically in the General Assembly
resolution on the inclusion of the clause on human rights in the
International Covenant on Human Rights.[39] It has been strongly
advocated that a nation which has been divided into States by outside
interference and without the clear consent of the population still
possess the inherent right of self-determination including the right
of reunification.[40]
Furthermore, infringement of the right to self-determination has been
used by the European Community as a potential ground for withholding
recognition of an entity as a State and hence to deny the legitimacy
of a government or a State which does not protect the right of
self-determination. In the EC Declaration on the Guidelines on the
Recognition of New States in Eastern Europe and in the Soviet Union
(December 16, 1991), there is the requirement that a potential new
State has constitutional guarantees of democracy and of "the rights of
ethnic and national groups and minorities" before recognition by the
EC States would be granted. Moreover, a new rule of international
law holds that a State established in violation of the right of
self-determination is a nullity in international law.[41]
Another question which concerns the self-determination of
peoples is: Can the right of self-determination be applied to
non-colonial entities? Certainly the main objective of the right of
self-determination was to bring a speedy end to colonialism. However,
since codification of that principle in the UN Charter, not one of
the major international instruments which have dealt with the right
of self-determination have limited the application of the right to
colonial situations. For example, the common Article 1 of the two
International Human Rights Conventions of 1966 (International Covenant
on Civil and Political Rights and International Covenant on Economic,
Social and Cultural Rights) applies the right to "all peoples" without
any restriction as to their status, and the obligation rests on all
States. Likewise, principle VIII of the Final Act of the Helsinki
Conference 1975 includes: "by virtue of the principle of equal rights
and self-determination of peoples, all peoples have the right, in
full freedom, to determine, when and as they wish, their internal
and external political status, without external interference, and to
pursue as they wish their political, economic, social and cultural
development". State practice also supports a broader application of
the right of self-determination beyond strictly colonial confines.
Indeed, the international Commission of Jurists, in its report on
Bangladesh's secession, stated that: "if one of the constituent peoples
of a State is denied equal rights and is discriminated against,
it is submitted that their full right of self-determination will
revive".[42] In the Treaty on the Final Settlement with Respect
to Germany (September 12, 1990), which was signed by four of the
five Permanent Members of the Security Council, it was expressly
mentioned that the "German people, freely exercising their right of
self-determination, have expressed their will to bring about the unity
of Germany as a State", [Preamble, para. 11], despite the fact that
neither East nor West Germany was a colony. It was also been applied
by States in the context of the break-up of the former Soviet Union
and former Yugoslavia.[43]
TERRITORIAL INTEGRITY AND POLITICAL INDEPENDENCE
"Territorial Integrity": Evaluation and Content
The notion of "territorial integrity" has been employed only three
times in international instruments. All other cases are only references
to these said documents.
The concepts of territorial integrity and political independence
emerged during the years immediately following the end of World War I.
Article 10 of the Covenant of the League of Nations stipulated that:
"the Members of the League undertake to respect and preserve as
against external aggression the territorial integrity and existing
political independence of all Members of the League".[44] The same
understanding of "territorial integrity" was reaffirmed in the UN
Charter: "2(4). All Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations." The
other important international instrument which is often referred to
is the Helsinki Final Act (adopted on August 1, 1975) which requires
the following: 'The participating States will refrain in their mutual
relations, as well as in their international relations in general,
from the threat or use of force against the territorial integrity or
political independence of any State ...'
It is obvious that the Helsinki Final Act, likewise the UN Charter and
League of Nations Covenant earlier, condemns merely the use of force
against territorial integrity and does not unconditionally advocate for
the absolute maintenance of territorial integrity. It makes clear that
use of external force or threat of use against territorial integrity
and political independence is unacceptable. Meanwhile, the Helsinki
Final Act (Chapter 1) specifically holds that: ' frontiers can be
changed, in accordance with international law, by peaceful means and
by agreement."
It is apparent that ever since the first time that the notion of
"territorial integrity" appeared within the domain of international
law, it has been closely intertwined with the question of the use
of external force. In other words, the principle of "territorial
integrity" is traditionally interwoven with the fundamental principle
of the prohibition of the threat or use of force[45] and not with
the absolute preservation of the territory of a state intact. As it
was mentioned above, it is just the "prohibition of use of [external]
force"[46] and the renunciation of "the use of force by one state to
conquer another state or overthrow its government."[47]
"Territorial Integrity": Scope, Limitation and Status under
International Law.
In modern political life there are repeated wrongful attempts
to present "territorial integrity" as a general limitation on the
right to self-determination. The basis for such limitation is false
because the government of a State which does not represent the whole
population on its territory without discrimination cannot succeed in
limiting the right of self-determination on the basis that it would
infringe that State's territorial integrity.[48]
Moreover, state practice shows that territorial integrity limitations
on the right of self-determination are often ignored, as seen in
the recognition of the independence of Bangladesh (from Pakistan),
Singapore (from Malaysia) and Belize, "despite the claims of
Guatemala".[49] In addition, after the recognition by the international
community of the disintegration of the Soviet Union and Yugoslavia,
recognition of East Timor and Eritrea, recognition to a certain extent
of Kosovo, Abkhazia and South Ossetia, it could now be the case that
any government which is oppressive to peoples within its territory
may no longer be able to rely on the general interest of territorial
integrity as a limitation on the right of self-determination.
Therefore there is a clear-cut understanding: only a government of a
State which allows all its peoples to decide their political status
and economic, social and cultural development freely has an interest
of territorial integrity which can possibly, only possibly, limit the
exercise of a right of self-determination. So territorial integrity,
as a limitation on the exercise of the right of self-determination,
can apply only to those States in which the government represents
the whole population in accordance with the exercise of internal
self-determination.[50] Thus, there is an apparent conceptual
link between democracy and self-determination. Democracy is often
viewed as internal self-determination, and secession as external
self-determination, that is, as the right of a people to govern itself,
rather than be governed by another people.[51]
Moreover, it is clear that those deprived of the right of
self-determination can seek forcible international support to uphold
their right of self-determination and no State can use force against
such groups. As it was referred above, the Declaration on Principles
of International Law provides that "every State has the duty to
refrain from any forcible action which deprives peoples ... of
their right of self determination and freedom and independence". The
increase in actions by the international community which could be
classed as humanitarian intervention, such as in Somalia and with the
creation of "safe havens" for the Kurds North of the 36th parallel in
Iraq[52] (1991-2003), indicates the reduced importance given by the
international community to the territorial integrity of a State when
human rights, including the right of self-determination, are grossly
and systematically violated.[53] The right of self-determination
applies to all situations where peoples are subject to oppression by
subjugation, domination and exploitation by others. It is applicable
to all territories, colonial or not, and to all peoples.[54] Indeed,
many of the claims for self-determination arose because of unjust,
State-based policies of discrimination and when the international
legal order failed to respond to the legitimate aspirations of peoples.
Self-Determination: Human Rights and the Right to Secession
One of the supposed dangers of self-determination is that it might
encourage secession. First of all, there is no rule of international
law that condemns all secessions under all circumstances.
Self-determination includes the right to secede.[55] In a situation
when the principle of territorial integrity is clearly incompatible
with that of self-determination, the former must, under present
international law, give way to the latter.[56] For instance, if a
majority or minority insists on committing an international crime,
such as genocide, or enforces a wholesale denial of human rights as
a deliberate policy against the other part, it is submitted that the
oppressed party, minority or majority, may have recourse to the right
of self-determination up to the point of secession.[57]
As Azerbaijan used force in answer to the free and peaceful expression
of the will of the people of Nagorno-Karabakh (rallies, referendums,
claims, appeals), took inadequate means of punishment, perpetrated
massacres of the Armenian citizens of Azerbaijan in Sumgait, Baku,
Kirovabad, and waged a ruthless war with Ukrainian, Afghan, Russian
mercenaries and sustained defeat, it cannot expect that the people
of Nagorno-Karabakh will renounce their lawful right and will not
exercise their right of self-determination.
Actually, the world community is under legal and moral obligation
to recognize the political self-determination of the people of
Nagorno-Karabakh, i.e. to recognize the Republic of Nagorno-Karabakh;
if a de facto state has crystallized, refusal to recognize it may
be tantamount to a denial of self-determination. Moreover, there is
a clear understanding in international law: after the international
requirements for the recognition of belligerency have been fulfilled
(as it was done with regard to Nagorno-Karabakh by the Bishkek
Protocol (May 5, 1994), and by the Cease-fire Agreement, (May 12,
1994)), a duty of recognition of belligerency necessarily follows,
and refusal of recognition is interference with the right of political
self-determination of the people of a State, and therefore constitutes
illegal intervention.[58] This obligation arises from the understanding
that the principle and rules on self-determination are erga omnes,
that is, they belong to that class of international legal obligations
which are not "bilateral" or reciprocal, but are in favor of all
members of the international community.[59]
In the Loizidou v. Turkey Case, a 1996 judgment of the European Court
of Human Rights, Judge Wildhaber identifies an emerging consensus that
the right of self-determination, more specifically secession, should
be interpreted as remedial for certain human rights abuses: "Until
recently in international practice the right to self-determination
was in practical terms identical to, and indeed restricted to, a
right to decolonisation. In recent years a consensus has seemed to
emerge that peoples may also exercise a right to self-determination if
their human rights are consistently and flagrantly violated or if they
are without representation at all or are massively underrepresented
in an undemocratic and discriminatory way. If this description is
correct then the right to self-determination is a tool which may
be used to re-establish international standards of human rights
and democracy".[60] As Judge Wildhaber attests, there is increasing
agreement among authors that the right of self-determination provides
the remedy of secession to a group whose rights have been consistently
and severely abused by the state.[61] The self-determination of the
people of Nagorno-Karabakh must certainly be assessed as an act of
corrective justice as well.
So a minority's entitlement to self-determination can and must be
judged within a human rights framework. Self-determination postulates
the right of a people organized in an established territory to
determine its collective political destiny in a democratic fashion.[62]
It is legal nonsense to presume that self-determination should
take place within previous administrative borders, without regard
for the cultural, linguistic or ethnic identity of the people
there. Internal boundaries in the former Soviet Union were often drawn
in a way which ensured that many members of the titular nation were
outside the boundaries of their (titular) republic, as it was with
Nagorno-Karabakh.[63] A politically disempowered distinct group in
a specific region has the right to independence,[64] regardless of
whether or not they are organized in an administrative unit. There is
no doubt that the people of Nagorno-Karabakh (not only the people of
the Nagorno-Karabakh Autonomous Region) are entitled to independence
as their choice of self-determination due to the extreme discrimination
that they faced under Azerbaijan.
Summary:
Self-determination is an ancient political right. Presently the
right to self-determination is a well-established principle in public
international law. The principle has been confirmed, developed and
given more tangible form by a consistent body of State practice and
has been embodied in various international instruments.
The principle of self-determination is exemplified in the decisions
by the International Court of Justice (ICJ).
The principle of self-determination is one of the fundamentals
of peaceful and friendly international relations. Respect for
self-determination is a condition for world peace. Those deprived
of the right of self-determination can seek forcible international
support to uphold their right of self-determination.
Self-determination as a principle of international law is universal
in scope. The right of self-determination applies to all situations
where peoples are subject to oppression by subjugation, domination
and exploitation by others - all peoples and nations, without
distinguishing between those which have attained statehood and those
which have not.
The principle of the self-determination of peoples is a legal principle
and is a jus cogens (peremptory) norm of international law.
The right of self-determination is the right to choose a form of
political organization and relations with other groups. Denial of
the right of to self-determination is a human rights violation and
constitutes a breach of international law.
The right of peoples and nations to self-determination is a
prerequisite to the full enjoyment of all fundamental human rights.
Therefore the General Assembly recommended that the member states of
the United Nations uphold the principle of self-determination of all
peoples and nations.
Article 2(4) of the UN Charter has nothing to do with absolute
"territorial integrity", but is simply the rule against intervention,
a "prohibition of use of force" and purely calls to refrain from
"the use of force by one state to conquer another state or overthrow
its government."
Self-determination includes the right to secede. The people of
Nagorno-Karabakh (not only the people of the Nagorno-Karabakh
Autonomous Region) are entitled to independence as their choice of
self-determination.
Self-determination postulates the right of a people organized in an
established territory to determine its collective political destiny
in a democratic fashion.
Ara Papian Head of Modus Vivendi Center June 1-7, 2010
[1] Restatement of the Law (Third), The Foreign Relations Law of the
United States, The American Law Institute, Washington, 1987, v. 2,
§ 905(7), p. 389.
[2] Ibid., p. 383.
[3] O. U. Umozurike, Self-Determination in International Law, 1972,
Connecticut, 1972, p. 8.
[4] D. Thurer, Self-Determination, in R. Bernhardt (ed.), Encyclopaedia
of Public International Law, vol. IV, Amsterdam, 2000, p. 364.
[5] Sh. Rosenne, Codification of International Law, in R. Bernhardt
(ed.), Encyclopaedia of Public International Law, v. I, Amsterdam,
1992, p. 633.
[6] Ibid.
[7] D. Thurer, op. cit., p. 365.
[8] G. Starushenko, The Principle of Self-determination in Soviet
Foreign Policy, Moscow, 1963, p. 221.
[9] Recueil des cours de l'Academie de droit international, The Hague,
1962, II, p. 33. Annual Report of the Secretary-General , 1960, 2.
Chief Judge Moreno Quintana, International Court of Justice Reports,
1960, pp. 95-96.
[10] O.U., Umozurike, op. cit., p. 192.
[11] Ibid., p. 271.
[12] T. Hillier, Sourcebook on Public International Law, London-Sydney,
1998, p. 192.
[13] Documents, UN General Assembly, A/CONF.157/23; 12 July 1993.
[14] O.U., Umozurike, op. cit., p. 188.
[15] Ibid., p. 273.
[16] Ibid., p. 185.
[17] Declaration of General Principles for a World Rule of Law,
American Journal of International Law, 58, (1964) pp. 138-151, at 143.
[18] International Court of Justice, Reports, 1966, v. IV, p. 465.
[19] ICJ Reports (1975) 12 at 31-33. See also the Namibia Opinion,
ibid. (1971), 16 at 31; Geog K. v. Ministry of Interior, ILR 71,
at 284; and the Case Concerning East Timor, ICJ Reports (1995) at 102.
[20] D. Thurer, op. cit., p. 370.
[21] I. Brownlie, Principles of Public International Law, Oxford,
1998 (5th ed.), p. 600.
[22] D. Thurer, op. cit., p. 366.
[23] I. Brownlie, op. cit., p. 600.
[24] T. Hillier, op. cit., p. 191. Supporters of the view that the
right of self-determination is part of jus cogens include: I.
Brownlie, op. cit., (4th ed.), Oxford, 1991, p. 513. A. Cassese,
International Law in a Divided World, Oxford, 1989, p. 136; J.
Craword, "The Rights of Peoples: Some Conclusions", in J. Crawford,
(ed.), The Rights of Peoples, Oxford, 1988, pp. 159-175, at p. 166; H.
Gros Espiell, The Right to Self-Determination, Implementation of United
Nations Resolutions (1978), para. 85; and the UK's and Argentina's
statements in the context of the Falklands/Malvinas dispute (1982)
53 British Yearbook of International Law, pp. 366-379.
[25] A. Cassese, Self-determination of Peoples, Cambridge, 1995,
p. 134-35.
[26] I. Brownlie, op. cit., p. 599.
[27] O. U. Umozurike, op. cit., p. 196.
[28] G. Starushenko, op. cit., p. 209.
[29] D. Thurer, op. cit., p. 369.
[30] G. Starushenko, op. cit., p. 210.
[31] Self-Determination and Self-Administration, A Sourcebook, (ed. W.
Danspeckgruber and A. Watts), London, 1997, Appendix 2, The
Liechtenstein Initiative at the UN, p. 405.
[32] G. Starushenko, op. cit., p. 214.
[33] Ibid., p. 213.
[34] Ibid., p. 215-6.
[35] D. Thurer, op. cit., p. 368.
[36] T. Hillier, op. cit., p. 612.
[37] Self-Determination, Digest of International Law (ed. M.
Whiteman), Washington, 1974, v. 5, § 4, p. 39.
[38] G. Starushenko, op. cit., p. 214.
[39] Resolution 545 (VI) of February 5, 1952.
[40] D. Thurer, op. cit., p. 368.
[41] Ibid., p. 369.
[42] The Secretariat of the International Commission of Jurists,
Report on "Events in East Pakistan, (1971)", Geneva, p. 69.
[43] R. McCorquodale, Self-Determination: Human Rights Approach, The
International and Comparative Law Quarterly, vol. 43, # 4 (Oct. 1994),
p. 861.
[44] Ch. Rozakis, Territorial Integrity and Political Independence,
in R. Bernhardt (ed.), Encyclopaedia of Public International Law,
v. IV, Amsterdam, 2000, p. 813.
[45] Ibid., pp. 812-13.
[46] Restatement of the Law (Third), op. cit., p. 389.
[47] Ibid., p. 383.
[48] R. McCorquodale, op. cit., p. 880.
[49] J.Maguie, "The Decolonization of Belize: Self-Determination v.
Territorial Integrity" (1982) 22 Virginia Journal of International Law,
p. 849.
[50] R. McCorquodale, op. cit., p. 880.
[51] M. Moore, National Self-Determination, Oxford, 1998, p. 10.
[52] Security Council Resolution 688 (April 5 1991).
[53] R. McCorquodale, op. cit., p. 882.
[54] Ibid., p. 883.
[55] M. Moore, op. cit., p. 23.
[56] O.U. Umozurike, op. cit., p. 187.
[57] Ibid., p. 199.
[58] A.V.W. Thomas and A.J. Thomas, Non-Intervention: The Law and
its Import in the Americas, Dallas, 1956, p. 220.
[59] A. Cassese, op. cit., p. 134.
[60] Loizidou v. Turkey (Merits), European Court of Human Rights,
18 December, 1996, (1997) 18 Human Rights Law Journal 50 at p. 59.
[61] K. Knop, Diversity and Self-Determination in International Law,
Cambridge, 2002, p. 74.
[62] Ibid., p. 85.
[63] M. Moore, op. cit., p. 140.
[64] T.M. Frank, The Power of Legitimacy among the Nations, New York,
1990, p. 171.
From: A. Papazian