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PAPIAN: ON THE PRINCIPLES OF 'SELF-DETERMINATION' AND 'TERRITORIAL INTEGRITY' IN PUBLIC INTERNATIONAL LAW: THE CASE OF NAGORNO-KARABAGH
Ara Papian
Armenian Weekly
Wed, Jun 23 2010
We are not going to negotiate over the right of the people of Artsakh
[Karabagh] to self-determination.
-Serge Sarkisian, 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-Karabagh 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 that "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.,
the preservation of the territory of a state) but, according to
an authoritative interpretation of the U.S. Foreign Relations Law,
is simply the rule against intervention, a "prohibition of use of
force,"[1] and calls to refrain from "the use of force by one state
to conquer another state or overthrow its government."[2]
In order to have an 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: 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 19th 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 was further shaped
by the leaders of the French Revolution. During the 19th century and
the beginning of the 20th, 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 Woodrow 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 drawn 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 aegis of UN
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 (Aug.
14, 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 UN, 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 UN 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 was conceived
as one among several possible "measures to strengthen universal
peace."[7] Chapter IX (International Economic and Social Cooperation,
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 people." 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 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 Nations' 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 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, the 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." This 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 Dec. 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 Members States 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 "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" (para. 2). The Declaration regards the
principle of self-determination as part of the obligations stemming
from the Charter; it 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 Cooperation 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
Cooperation among the Nations, remarked: "Nearly all representatives
who participated in the debate emphasized 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 June 25, 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 48th session of the General
Assembly (Resolution 48/121, 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 (Russian Federation, United States of America,
France) are parties to this convention.
International organizations that 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 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, color, 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 that 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 principle through 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 (Dec. 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 (Oct. 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 47th Session of the General
Assembly of the United Nations (Sept. 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 dominant powers have 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 want to be the master of its own
destiny?
There are different ways of establishing the will of a 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 that 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-Karabagh during
the elections of the parliament of the Republic of Nagorno-Karabagh
(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 resort 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 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 that 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 that have attained statehood and those that 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 (EC) 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 that 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 (Dec. 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 is 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 that 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 that 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 (Sept. 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 has also been applied by states in the context of the
breakup of the former Soviet Union and former Yugoslavia.[43]
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 often referred to is the Helsinki
Final Act (adopted on Aug. 1, 1975), and 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, like 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 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 that 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, and recognition
to a certain extent of Kosovo, Abkhazia, and South Ossetia, it could
now be the case that any government that 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.
There is therefore a clear-cut understanding: Only a government of a
state that allows all of its peoples to freely decide their political
status and economic, social, and cultural development has an interest
of territorial integrity that 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 right to secession
One of the supposed dangers of self-determination is that it might
encourage secession. First, 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
(rallies, referendums, claims, appeals) of the will of the people of
Nagorno-Karabagh, took inadequate means of punishment, perpetrated
massacres of the Armenian citizens of Azerbaijan in Sumgait, Baku,
and Kirovabad, and waged a ruthless war with Ukrainian, Afghan, and
Russian mercenaries and sustained defeat, it cannot expect that the
people of Nagorno-Karabagh 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-Karabagh, that is, to recognize the Republic of
Nagorno-Karabagh. 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 was done with regard to Nagorno-Karabagh by
the Bishkek Protocol, May 5, 1994, and by the Ceasefire 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 identified 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 decolonization. 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 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-Karabagh 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 that ensured that many members of the titular nation
were outside the boundaries of their (titular) republic, as it was
with Nagorno-Karabagh.[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-Karabagh (not only the people of
the Nagorno-Karabagh 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 that have attained statehood and those that 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.
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-Karabagh (not only the people of the Nagorno-Karabagh
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 is head of the Modus Vivendi Center.
--------------------------------------------------------------------------------
[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,
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, vol. 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 Feb. 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
Ara Papian
Armenian Weekly
Wed, Jun 23 2010
We are not going to negotiate over the right of the people of Artsakh
[Karabagh] to self-determination.
-Serge Sarkisian, 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-Karabagh 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 that "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.,
the preservation of the territory of a state) but, according to
an authoritative interpretation of the U.S. Foreign Relations Law,
is simply the rule against intervention, a "prohibition of use of
force,"[1] and calls to refrain from "the use of force by one state
to conquer another state or overthrow its government."[2]
In order to have an 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: 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 19th 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 was further shaped
by the leaders of the French Revolution. During the 19th century and
the beginning of the 20th, 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 Woodrow 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 drawn 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 aegis of UN
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 (Aug.
14, 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 UN, 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 UN 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 was conceived
as one among several possible "measures to strengthen universal
peace."[7] Chapter IX (International Economic and Social Cooperation,
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 people." 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 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 Nations' 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 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, the 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." This 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 Dec. 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 Members States 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 "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" (para. 2). The Declaration regards the
principle of self-determination as part of the obligations stemming
from the Charter; it 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 Cooperation 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
Cooperation among the Nations, remarked: "Nearly all representatives
who participated in the debate emphasized 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 June 25, 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 48th session of the General
Assembly (Resolution 48/121, 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 (Russian Federation, United States of America,
France) are parties to this convention.
International organizations that 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 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, color, 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 that 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 principle through 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 (Dec. 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 (Oct. 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 47th Session of the General
Assembly of the United Nations (Sept. 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 dominant powers have 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 want to be the master of its own
destiny?
There are different ways of establishing the will of a 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 that 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-Karabagh during
the elections of the parliament of the Republic of Nagorno-Karabagh
(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 resort 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 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 that 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 that have attained statehood and those that 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 (EC) 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 that 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 (Dec. 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 is 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 that 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 that 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 (Sept. 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 has also been applied by states in the context of the
breakup of the former Soviet Union and former Yugoslavia.[43]
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 often referred to is the Helsinki
Final Act (adopted on Aug. 1, 1975), and 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, like 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 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 that 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, and recognition
to a certain extent of Kosovo, Abkhazia, and South Ossetia, it could
now be the case that any government that 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.
There is therefore a clear-cut understanding: Only a government of a
state that allows all of its peoples to freely decide their political
status and economic, social, and cultural development has an interest
of territorial integrity that 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 right to secession
One of the supposed dangers of self-determination is that it might
encourage secession. First, 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
(rallies, referendums, claims, appeals) of the will of the people of
Nagorno-Karabagh, took inadequate means of punishment, perpetrated
massacres of the Armenian citizens of Azerbaijan in Sumgait, Baku,
and Kirovabad, and waged a ruthless war with Ukrainian, Afghan, and
Russian mercenaries and sustained defeat, it cannot expect that the
people of Nagorno-Karabagh 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-Karabagh, that is, to recognize the Republic of
Nagorno-Karabagh. 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 was done with regard to Nagorno-Karabagh by
the Bishkek Protocol, May 5, 1994, and by the Ceasefire 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 identified 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 decolonization. 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 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-Karabagh 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 that ensured that many members of the titular nation
were outside the boundaries of their (titular) republic, as it was
with Nagorno-Karabagh.[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-Karabagh (not only the people of
the Nagorno-Karabagh 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 that have attained statehood and those that 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.
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-Karabagh (not only the people of the Nagorno-Karabagh
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 is head of the Modus Vivendi Center.
--------------------------------------------------------------------------------
[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,
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, vol. 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 Feb. 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