TOPIC- RIGHT OF SELF DETERMINATION IN INTERNATIONAL ARENA

For a granting sanity to a particular state act under international law, it should be proved that the
particular act it well within the limits of customary international law. Customary International
Law is typically defined as the general and the consistent practices of states that they follow from
a sense of legal obligation.1 Thus, this definition put forth’s two essential elements of customary
international law i.e. there must be a widespread and uniform state practices of states and states
must engage in the practice out of a sense of legal obligation i.e. opinio juris.

The rights of peoples and non-recognized nations to obtain sovereignty fall within the rubric
of self-determination.2 The right to self-determination is also considered as a principle of
customary international law3 and thus, states have an obligation to facilitate the exercise of such
right.4 This principle is even considered as a peremptory norm of international law.5 

In the present paper, we will also try to justify the right of self determination in the grab of
Customary International Law, by showing various state practices, UN Charter Articles, General
Assembly Resolutions, Judicial decision and few treaties.

STATE PRACTICES

In the Asylum6 Case, I.C.J. held that before state practice could be acknowledged as law, it has to
be in accordance with a “constant and uniform usage” practiced by the states in question. 7 In the
case of right of self determination also, the state practices have shown consistence and
uniformity which can clearly be seen from the decolonization process involving over 70 states
since 1946 and the explicit recognition by the member states of the United Nations Organization

1
JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 23(Oxford University Press 2005).
2
Curtis G. Berkey, International Law and Domestic Courts: Enhancing Self-Determination for Indigenous Peoples,
5 Harv. Hum. Rts. J. 65, 75(1992).
3
HalimMoris, Self-Determination: An Affirmative Right or mere Rhetoric?, 4 ILSA J. Int'l & Comp. L. 201, 219,
1997. 
4
Laurence S. Hanauer, The Irrelevance of Self-Determination Law to Ethno-National Conflict: A New Look at the
Western Sahara Case, 9 Emory Int’l L. Rev. 133, 153 (1995); Sam Blay, Self-Determination: A Reassessment in
Post Communist Era, 22 Denv. J. Int’l L. &Pol’y 275 (1994); PATRICK THORNBERRY, THE UNITED NATIONS AND
THE PRINCIPLES OF INTERNATIONAL LAW 184 (Vaughan Lowe & Colin Warbrick eds., 1994).
5
Deborah Z. Cass, Re-thinking Self-Determination: A Critical Analysis of Current International Law Theories, 18
Syracuse J. Int'l L. & Com. 21, 26(1992). 
6
I.C.J. Reports 1950 at 266 & 277.
7
REBECCA M.M. WALLACE, INTERNATIONAL LAW 11&12 (5th ed., Sweet & Maxwell 2005).
(the “UN”) of the right to self-determination in case of the Namibian and the Palestinian people 8,
independence of the Gilbert Islands from the United Kingdom in 1979 leading to formation of
the Republic of Kiribati9, independence of Tuvalu Islands from the United Kingdom10 and the
Jewish people’s right to self-determination which was fully implemented in the State of Israel.11

UNITED NATION CHARTER

Even the UN Charter expressly mentions the principle of self-determination in Articles 1(2)12 and
5513. It also recognizes the fundamental nature of the principle in Chapters XI, XII and XIII by
imposing obligation upon the trustee states of non self-governing territories to help those
territories achieve self-government.14

GENERAL ASSEMBLY RESOLUTIONS

Since in the Barcelona Traction, Light and Power Company 15 case, it was observed that, “[i]t
cannot be denied, with regard to the resolutions which emerge therefrom, or better, with regard
to the votes expressed therein in the name of States, that these amount to precedents contributing
to the formation of custom.” In the furtherance of right of self-determination a no. of General
Assembly resolutions have been passed, which quite clearly shows the acceptance of this
principle or right of self determination in the international arena. The Universal Declaration of
Human Rights16, the Declaration on the Granting of Independence to Colonial Countries and

8
Deborah Z. Cass, Re-thinking Self-Determination: A Critical Analysis of Current International Law Theories, 18
Syracuse J. Int'l L. & Com. 21, 27(1992). .
9
Question of the Gilbert Islands, G.A. Res. 32/23, U.N. G.A.O.R., 32 nd Sess., Supp. No. 45, at 162, U.N. Doc.
A/32/45 (1978).
10
TarynRanaeTomasa, Ho’olâhui: The Rebirth of a nation, 5 Asian L.J. 247, 277 (1998).
11
Frances Raday, Self-Determination and Minority Rights, 26 Fordham Int'l L.J. 453, 466 (2003).
12
U.N. Charter, Article 1(2) states that one of the purposes of the United Nations is to:
"[t]o develop friendly relations among nations based on respect for the principle of equal rights and self
determination of peoples, and to take other appropriate measures to strengthen universal peace."
13
U.N. Charter, Art. 55 states:
[W]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly
relations among nations based on respect for the principle of equal rights and self-determination of peoples, the
United Nations shall promote: . . . universal respect for, and observance of human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion. 
14
Mitchell A. Hill, What the Principle of Self-Determination means today, 1 ILSA J. Int'l & Comp. L. 119, 124
(1995).
15
(Second Phase) I.C.J. Reports 1970 at 3, p. 303.
16
Universal Declaration of Human Rights, G.A. Res. 217, U.N. Doc. A/810, at 71, 75 (1948).
Peoples17, the Declaration on Colonized Countries18 and the Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation Among States in Accordance
with the Charter of the United Nations19, are various General Assembly which have entrenched
the right to self-determination as a “concept or right or ideal or vision of self-determination”20.

The General Assembly Resolution 154121 states the test for determining whether a territory is a
‘non-self governing territory’ within the meaning of Article 73(e) of the Charter of the United
Nations Organization.22 Under Principle IV of this resolution, non-self governing status exists
prima facie “in respect of a territory which is geographically separate and is distinct ethnically
and/or culturally from the country administering it.”23 Thus, the two conditions for a territory to
be non-self governing are (a) geographic separation and (b) ethnic and/or cultural distinction,
from the non-self governing body.24

JUDICIAL OPINION

Although, strictly speaking the International Court of Justice is only to apply the law and not to
make the law, it has delivered a no. of judgments and advisory opinions, which have influenced
and contributed to the development of international law.25 The principle of self determination has
also been pondered upon by the ICJ in a no. of occasions, with a view to determine the rights of
people of different states.

17
Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR
Comm., Sess. Supp. No. 21, at 166, U.N. Doc. A/4684 (1960).
18
G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, UN Doc. A/4684 (1961).
19
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations, G.A. Res. 2625, Annex, 25 U.N. GAOR Supp. (No. 17), at 66,
U.N. Doc. A/5217 (1970).
20
HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT 1248 (2d ed., Oxford
University Press, 2000).
21
General Assembly Resolution 1541, G.A. Res. 1541, U.N.GAOR, 15th Sess., Supp. No. 16, 948th plen. mtg. at
153, U.N. Doc. A/4684, at 29 (1960).
22
Thomas M. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int’l L. 46, 57(1992).
23
G.A. Res. 1541, U.N.GAOR, 15th Sess., Supp. No. 16, 948th plen. mtg. at 153, U.N. Doc. A/4684, at 29 (1960),
Principle IV.
24
Thomas D. Grant, Extending Decolonization: How the United Nations might have Addressed Kosovo, 28 Ga. J.
Int’l & Comp. L. 9, 29(1999).
25
REBECCA M.M. WALLACE, INTERNATIONAL LAW 27 (5th ed., Sweet & Maxwell 2005).
In the Namibia Opinion26, the ICJ held that non-self governing territories’ regime under Article
73 of the UN Charter relates to colonies. 27 It also observed that “[t]he subsequent development of
international law in regard to non-self governing territories, as enshrined in the Charter of the
United Nations, made the principle of self determination applicable to all of them”.28

In Frontier Dispute29case I.C.J. again had cause to consider self-determination and, in particular,
the relationship of self-determination to the right of states to their territorial integrity. In doing
so, the Court reaffirmed the existence of a principle of self-determination at international law,
but again declined to suggest limits on the exercise of such a right.30

Further, in the East Timor31 case ICJ held the right of determination to be one of the essential
principles of customary International law, a recent judgment of ICJ also relied upon right of self-
determination i.e. Legal consequences of a wall occupied Palestine Territory.32

TREATIES OR COVENANTS

The International Covenant of Civil and Political Rights (the “ICCPR”)33 and the International
Covenant on Economic, Social, and Cultural Rights (the“ICESCR”)34provide for a series of
individual rights35 and compliance with the rights contained in these treaties is obligatory for all
state parties.36 The inclusion of the right to self-determination in both the ICCPR and the

26
Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia,
1971 I.C.J. 6 (June 21).
27
Thomas D. Grant, Extending Decolonization: How the United Nations Might have Addressed Kosovo, 28 Ga. J.
Int'l & Comp. L. 9, 28 (1999).
Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia,
28

1971 I.C.J. 6 (June 21). at 6.

Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, 556-57 (Dec. 22).
29

Gerry J. Simpson, Judging the East Timor Dispute: Self-Determination at the International Court of Justice, 17
30

Hastings Int’l & Comp. L. Rev. 323, 334(1994).

31
Portugal v. Austrialia, I.C.J. Reports 1995, p. 102, para 29.
32
I.C.J. Reports, (2004), 136.
International Covenant on Civil and Political Rights, G.A. Res. 2000, 21 U.N. GAOR, Supp. No. 16, at 52, U.N.
33

Doc. A/6316 (1966).

34
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 1514, U.N. GAOR, Supp. No. 16, at
52, U.N. Doc. A/6316 (1966).
35
Christopher J. Fromherz, Indigenous Peoples’ Courts: Egalitarian Juridical Pluralism, Self- Determination, and
the United Nations Declaration on the Rights of Indigenous Peoples, 156 U. Pa. L. Rev. 1341, 1352 (2008).
36
Douglas Donoho, Human Rights Enforcement in the Twenty-First Century, 35 Ga. J. Int'l & Comp. L. 1, 5 (2006);
Fromherz, supra note 48, at 1353.
ICESCR reflects that it is a source and pre-requisite for all other individual human
rights.37Article 1(1) of both the ICCPR and the ICESCR38guarantees the right to self-
determination to all peoples and entitles them to freely determine their political status and freely
pursue their economic, social, and cultural development. Further, Article 1(3) of both these
treaties place an obligation on the state parties including those having responsibility for the
administration of non-self governing and trust territories to promote the realization of the right to
self-determination and to respect that right in conformity with the provisions of the UN Charter.

According to Article 31(1) of the Vienna Convention on the Law of Treaties 39, a treaty should be
interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and purpose. Article 31(1) reflects customary
international law40 and thus can even be used to interpret the ICCPR and the ICESCR. The
prominent placement of provisions relating to self-determination at the beginning of ICCPR and
ICESCR demonstrates the peremptory nature of the right to self-determination and shows that it
forms the basis for the civil, political, social and economic rights guaranteed under both of
them.41

STRONG OPPOSITION

The preservation of states’ territorial integrity is of paramount concern both strategically and
legally42 and self-determination should not be construed to hold that every group of human
beings who constitute a distinct ethnic community has a right to establish its own

37
Richard N. Kiwanuka, The Meaning of "People" in the African Charter on Human and Peoples' Rights, 82 Am. J.
Int'l L. 85 (1988); ANTONIO CASSESE, THE SELF-DETERMINATION OF PEOPLES, IN THE INTERNATIONAL BILL OF
RIGHTS: THE COVENANT ON CIVIL AND POLITICAL RIGHTS 92,101 (Louis Henkin ed., Columbia University Press
1981).
38
Paul A. Isaac, The Urgent Reawakening of the Assyrian Question in an Emerging Iraqi Federalism: The Self-
Determination of the Assyrian People, 29 N. Ill. U. L. Rev. 209, 221(2008).
39
Vienna Convention on the Law of Treaties, 27 January, 1980, 1155 UNTS, 331.
40
Territorial Dispute (Libya v Chad) [1994] ICJ Rep 6, 21; Kasikili/Sedudu Island (Botswana v Namibia) [1999]
ICJ Rep 1045, 1059.
41
Alice Farmer, Towards a Meaningful Rebirth of Economic Self-Determination: Human Rights Realization in
Resource-Rich Countries,39 N.Y.U. J. Int'l L. & Pol. 417, 430(2006); Isaac, Supra note 60, at 224.
42
Timothy L.H. McCormack & Gerry J. Simpson, The International Law Commission’s Draft Code of Crimes
Against the Peace and Security of Mankind: An Appraisal of the Substantive Provisions, 5 Crim. L.F. 1, 32-33
(1994).
state.43The right to territorial integrity of a state is a fundamental norm of international law 44 and
it is more strongly established in law and in practice than any right to establish a new state.45 The
ICJ has also affirmed the normative pre-eminence of the right to territorial integrity in
international law in the Nicaragua46 case. Further, the UN instruments which form the core of the
contemporary interpretation of the principle of self-determination47 forbid nation states from
interfering with the territorial integrity of other nation states 48, i.e., they do not recognize a right
to secede based on the principle of self-determination.49

The ‘Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States in Accordance with the Charter of the United Nations’ 50 (the “1970
Declaration”) simultaneously protects the concept of territorial integrity for independent states
and the right of self-determination for special group of peoples51 and provides that “[e]very State
shall refrain from any action aimed at the partial or total disruption of the national unity and
territorial integrity of any other State or country.” This reaffirms the primacy of territorial
integrity as a fundamental principle of international law.52 Further, the‘Declaration on the
Granting of Independence to Colonial Countries and Peoples’ also states that “[a]ny attempt

43
Michael Curtis, International Law and the Territories, 32 Harv. Int’l L. J. 457, 471 (1991); Richard F. Iglar, The
Constitutional Crisis in Yugoslavia and the International Law of Self-determination: Slovenia and Croatia’s Right
to Secede, 15 B.C. Int’l & Comp. L. Rev. 213 (1992).
Gerry J. Simpson, Judging the East Timor Dispute: Self-Determination at the International Court of Justice, 17
44

Hastings Int’l & Comp. L. Rev. 323, 339(1994).

45
JORRIDUURSMA, FRAGMENTATION AND THE INTERNATIONAL RELATIONS OF MICRO-STATES: SELF-
DETERMINATION AND STATEHOOD 77-84 (1st ed., Cambridge University Press, 1996); Grant, supra note 47, 23-24.
46
Military and Paramilitary Activities in and against Nicaragua, 1986 I.C.J. 40.
47
Mitchell A. Hill, What the Principle of Self-Determination means today, 1 ILSA J. Int’l & Comp. L. 119, 123
(1995).  
48
U.N. Charter, Article 2, paragraph 7.
49
James E. Falkowski, Secessionary Self-Determination: A Jeffersonian Perspective, 9 B.U. Int’l L.J. 209, 209
(1991).
50
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations, UN General Assembly Resolution, 2625 (XXV), October 24,
1970.
51
Mitchell A. Hill, What the Principle of Self-Determination means today, 1 ILSA J. Int’l & Comp. L. 119, 127
(1995).  
Laurence S. Hanauer, The Irrelevance of Self-Determination Law to Ethno-National Conflict: A New Look at the
52

Western Sahara Case, 9 Emory Int’l L. Rev. 133, 144 (1995).

aimed at the partial or total disruption of the national unity and the territorial integrity of a
country is incompatible with the purposes and principles of the Charter of the United Nations.”53

Thus, the right to self-determination cannot to be construed as authorizing impairment of

territorial integrity of sovereign and independent states. 54 The 1970 Declaration55 also lays down
the need to preserve the territorial integrity of sovereign and independent States on the condition
that they must be “possessed of a government representing the whole people belonging to the
territory without distinction as to race, creed or colour.” 56 It implies that a state will be protected
against violations of its territorial integrity and political unity if its government is representative
of “the whole people belonging to the territory without distinction as to race, creed, or color.”57

CONCLUSION

From the above discussion it can be seen that the right of self determination has been evidenced
by a no. of controversies since its inception, but also justifies itself under the grab of Customary
International Law, as it has been uniformly and consistently being followed by the states since
1947, after the emergence of United Nations and with the passing of various General Assembly
Resolutions. Further, various I.C.J. decisions and two legally binding covenants i.e. 1966
covenants, also gave an impetus to the development of right of self-determination. Thus it can be
said that right of self determination has satisfied itself under the light of essentials elements of
Customary International Law and thus any state acting under the clutchof self determination
cannot be said to have done any wrongful activity.

53
Declaration on the Granting of Independence to Colonial Countries and Peoples,G.A.Res. 1514, U.N. GAOR,
15th Sess., Supp. No. 16, at 66, U.N.Doc. A/4684 (1960).
54
Frances Raday, Self-Determination and Minority Rights, 26 Fordham Int’l L.J. 453, 456 (2003).
55
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in
Accordance with the Charter of the United Nations, UN General Assembly Resolution, 2625 (XXV), October 24,
1970.
56
Mitchell A. Hill, What the Principle of Self-Determination means today, 1 ILSA J. Int’l & Comp. L. 119, 127
(1995).  
57
LEE C. BUCHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION 93(1st ed., Yale University Press,
1978).