Peoples’ Right to Self-Determination: From a Political Ideal to an Ever-Evolving Legal Right
The “principle of equal rights and self-determination of peoples” is one of the foundational purposes of the United Nations Charter, codified in Article 1 therein. Notwithstanding its political and legal affirmation by the international community as a whole, self-determination remains a vexed legal construct. This paper offers a historical overview of the evolution of self-determination from a political ideal to a legal principle and to a legal right. It argues that the most constructive understanding of the concept is one that acknowledges its composite nature as both a principle and a right, and it seeks to ascertain which categories of peoples are recognized as having the right to self-determination, whether internal or external, under international law, following a wide range of international legal instruments from the UN General Assembly Decisions to the ICJ Advisory Opinions. Using the case of Kosovo as an illustration of this dynamic, it presents a historical and analytical framework that might assist in (re)conceptualising and critically assessing more recent and future claims for self-determination.
Halkların Kendi Kaderini Tayin Hakkı: Politik Bir İdealden Sürekli Gelişen Hukukî Bir Hakka
“Eşit haklar ve halkların kendi kaderini tayin (self-determinasyon) ilkesi” Birleşmiş Milletler Şartı’nın kurucu amaçlarından biri olarak 1. maddesinde düzenlenmiştir. Uluslararası toplumun tamamı tarafından politik ve hukukî olarak onaylanmasına karşın, self-determinasyon tartışmalı bir hukukî yapı olarak varlığını sürdürmektedir. Bu çalışma self-determinasyon kavramının politik bir idealden hukukî bir ilkeye ve oradan da hukukî bir hakka evrilişini tarihsel süreç içerisinde sunmaktadır. Kavramın en doğru ele alınışının onun hem bir ilke hem bir hak olarak dinamik ve birleşik bir doğası olduğunu kabul etmekten geçtiğini savunmakta ve BM Genel Kurul Kararlarından UAD Danışma Görüşlerine uzanan geniş bir kapsamda uluslararası hukuk enstrümanlarını takip ederek uluslararası hukukta hangi halk kategorilerinin içsel veya dışsal anlamda self-determinasyon hakkına sahip olduğunu saptamayı amaçlamaktadır. Kosova’nın bağımsızlığı sorununun bu dinamiğin bir örneği olarak kullanıldığı çalışma, self-determinasyon ilkesi ve hakkının ele alınması ve eleştirel değerlendirmeye tabi tutulmasına yardımcı olmak için tarihsel ve analitik bir çerçeve sunmaktadır.
Self-Determination is a dynamic concept that constantly evolves. It attaches different legal meanings to different categories of people in accordance with the needs of the international community and the trends in the international system. It started its life as a political ideal, explicitly in the early 20th century, transformed into a legal principle in the immediate aftermath of WWII and was gradually recognized as “people’s right to self-determination”. Today, self-determination exists in a dual form. It is only recognized as a right under certain circumstances. Thus, for other circumstances it still exists as a legal principle.
A similar problem, it may be argued, is the definition of people with regard to the identity of the right-holders of the “people’s right to self-determination”. In international law, this definition too, seems to be of an evolving nature and the attempts of international law bodies to define who constitutes a people is open to debate.
There are four main sections of this paper. After the introduction which lays out the groundwork and the problem, the second section traces the origins of the concept of self-determination. The origins of the concept can be traced back to nationalism and self-government. In its core, it refers to the expression of the free will of the people regarding their political status. The American and French Revolutions may be taken as the early examples of self-determination as a political ideal. In the early 20th century, self-determination was advocated by the Russian revolutionary V. I. Lenin and American president Woodrow Wilson, though with different undertones. The experience of the Paris Peace Conference of 1919 and the Aaland Islands Case attest to the fact that the political ideal did not transform into a legal right and was ignored as a principle for the sake of pragmatism in the context between the two World Wars.
The third section addresses the codification of self-determination as a legal principle in the UN Charter. It fleshes out the tensions in this codification process between Socialist and Third World states on the one hand, and Western states on the other, framing them through the lenses of a clash between the Leninist and the Wilsonian conceptions of self-determination explored in the previous section of the paper. It also provides an overview of the treatment of this concept in chapters XI and XII of the UN Charter.
The fourth section addresses the evolution of this concept from a legal principle into a modern right to self-determination. The term “modern” is used to describe the first codifications of the principle of self-determination. The principle hardened into a legal right for 3 kinds of peoples: colonial peoples, people as a whole and racial groups (i.e., people being systematically discriminated based on their race). The strong insistence of the Socialist and developing states led to the 1960 Declaration on the granting of independence to colonial countries and peoples (“Resolution 1514(XV)”), the first legal recognition of the principle; an external right to self-determination for colonial people. It is followed by the right to internal self-determination for the whole people living in an existing state through Common Article 1 of the “UN Human Rights Covenants”, that is, the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). The reaction of the UN to racist regimes led to a racial groups’ right to self-determination, finding support both in the text of the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (“Friendly Relations Declaration”, “1970 Declaration”), and the UN practice towards the racist regimes of South Africa and Southern Rhodesia.
Declaration on the granting of independence to colonial countries and peoples (“Resolution 1514(XV)”), the first legal recognition of the principle; an external right to self-determination for colonial people. It is followed by the right to internal self-determination for the whole people living in an existing state through Common Article 1 of the “UN Human Rights Covenants”, that is, the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”). The reaction of the UN to racist regimes led to a racial groups’ right to self-determination, finding support both in the text of the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (“Friendly Relations Declaration”, “1970 Declaration”), and the UN practice towards the racist regimes of South Africa and Southern Rhodesia.
Concerning indigenous peoples, their right to self-determination found support in the United Nations Declaration on the Rights of Indigenous Peoples (“2007 Declaration”). The analogies drawn between it and Resolution 1514 makes it possible that a right to self-determination for indigenous peoples does exist. The scope of the right is the internal right to self-determination. This is evident in the language of the 2007 Declaration. Moreover, the democratic and human rights foundations also point to the same conclusion.
Minorities or minority peoples is a concept understood as including any people living in a state other than the dominant people of the said state which constitutes the majority of the population. A lack of sufficient international instruments made it hard to distinguish the legal situation of the concept regarding minorities. Nevertheless, the emerging consensus both in the international judiciary and international legal academia points to the emergence of the legal right to self-determination for minority peoples as well. The scope of self-determination is again internal for the same principle as stated above. Nevertheless, secession as a last resort (“remedial secession”) is also recognized by some authors, therefore leaving the door open for external self-determination, albeit subject to a very narrow interpretation. This argument was upheld by the Supreme Court of Canada in its Advisory Opinion on Re Secession of Quebec.
This section concludes with the case study of the secession of Kosovo from Serbia. After a brief summary of the events which led to Kosovo’s declaration of independence, the Advisory Opinion rendered by the International Court of Justice (“ICJ”) on the matter is analyzed. As the ICJ was asked about the legality of the declaration of independence according to international law, the Court refrained to make comments whether the people of Kosovo had the right to (internal or external) self-determination. Even though, it is open to debate whether the external selfdetermination of the people of Kosovo was the execution of a principle or a rule, the case still amounts to a valid and important recognition of the remedial secession as external self-determination of a minority people by the majority of the international community.
