DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
SESSION 2021-22

SUBJECT – PUBLIC INTERNATIONAL LAW

TOPIC – ANALYSIS OF RIGHT OF SELF

DETERMINATION

SUBMITTED TO SUBMITTED BY

DR. ABDULLAH NASIR Yash Bhatnagar

ASSISTANT PROF. (LAW) 200101157

SEC. B

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 ACKNOWLEDGEMENT
I express my gratitude and deep regards to my teacher for the subject DR. ABDULLAH
NASIR for giving me such a challenging topic and also for his exemplary guidance,
monitoring and constant encouragement throughout the course of this thesis.

I also take this opportunity to express a deep sense of gratitude to my seniors in the college
for their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.

I am obliged to the staff members of the Madhu Limaye Library, for the timely and valuable
information provided by them in their respective fields. I am grateful for their cooperation
during the period of my assignment.

Lastly, I thank almighty, my family and friends for their constant encouragement without
which this assignment would not have been possible.

Thanking you all

Yash Bhatnagar

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CONTENTS
ACKNOWLEDGEMENT .............................................................................................................. 2

INTRODUCTION .......................................................................................................................... 4

ORIGIN........................................................................................................................................... 6

SELF DETERMINATION IN INTERNATIONAL LAW: TREATIES AND JUDICIAL

DECISIONS .................................................................................................................................... 7

MINORITIES AND SELF DETERMINATION ......................................................................... 10

LEGAL STATUS OF THE RIGHT TO SELF-DETERMINATION .......................................... 11

CONCLUSION ............................................................................................................................. 13

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 INTRODUCTION
Right of Self-determination has served as a powerful slogan and a vital justification for the
independence of many peoples, most significantly the independence of colonial peoples. In fact,
the colonial context is what specifically comes to mind when the right to self-determination is
brought up and it is the colonial aspect of the right to self-determination that is uncontested, for
the right to self-determination consists of many elements and it has several aspects. 1 Self-
determination represents the absolute legal right people have to decide their own destiny in the
international order. Self-determination is a core principle of international law arising from
customary international law, but also recognized as a general principle of law, and codified under
a number of international conventions and protocols. The right of people to self-determination is
a cardinal principle in modern international law (commonly regarded as jus cogens rule). The
interesting thing about this right is the fact that it is linked to many of the most important and
fundamental principles of public international law and that it incarnates the concept of the right
of peoples to determine their own destiny without outside interference or subjugation,
presupposing all peoples are equal.2
FIRSTLY ,This complements fundamental principles of public international law like State
sovereignty, the equality of States and territorial integrity, including the prohibition of force and
the principle of non-intervention.3 With self-determination as a slogan minorities or indigenous
groups raise claims of either secession from an already sovereign State entity or independence
and freedom from foreign domination. This right does not only exist under public international
law but also under international human rights law.
SECONDLY, there is the aspect of economic and political self-determination which is closely
related to the principles of non-intervention and noninterference aimed at guaranteeing territorial
integrity. This aspect is often seen in the light of colonialism and its remnants today where the
term neo-colonialism is often used.
THIRDLY, the right to self-determination is used as an argument in miscellaneous situations in
international law such as questions relating to liberation movements, rebels, aid and assistance or

1
Maya Abdullah, The Right to Self-Determination in International Law: Scrutinizing the Colonial Aspect of the
Right to Self-determination (University of Gooterborg, 2006) 4 available at
<https//gupea.ub.gu.se>bitstream>agu…pdf> accessed on 6 November, 2017
2
Ibid.
3
Ibid.
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intervention against these groups and movements.4 As a matter of fact, there are many situations
in the world where the right to self-determination is of great convenient importance.
An important characteristic of the right to self-determination is that it could be external or
internal. In the colonial context, its external manifestation represents the aspiration to form an
independent State vis-à-vis other States and the international community. The external aspect of
self-determination requires action from and imposes obligations on States to support and
facilitate a people’s aspirations to reach independence.
Conversely, self-determination outside the context of decolonization has an internal nature that
consists of a people’s right to freely pursue their economic, social and cultural development,
ideally through democratic governance.

4
Ibid
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 ORIGIN
Self-determination stems from the American Declaration of Independence of 1789 and was then
reiterated in the French Revolution by the French National Assembly on 17th November, 1792.
These uprisings sought to establish states which would secure the unalienable rights of citizens
and derive its power from those it governed, thereby ensuring that decent respect is given to the
opinion of mankind. Franck explains this by saying that “self-determination basically postulates
the right of a people to be organized in an established territory and to determine its collective
political destiny in a democratic fashion and is therefore at the core of the democratic
entitlement.” The rise of democratic entitlement in the modern world was born out of the
Versailles Peace Conference of 1919. This Conference was an attempt to correct the wrong made
by the Congress of Vienna when they drew maps for Europe and left out quite a few national
minorities. American President Wilson, concerned about the oppression of minorities within
larger states that did not represent them, made ‘self-determination’ his guiding principle in the
redefinition of maps.

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 SELF DETERMINATION IN INTERNATIONAL LAW: TREATIES AND JUDICIAL
DECISIONS

The principle of self-determination has developed after the Second World War into a legal,
rather than a political concept. At the time of the evolution of the United Nations, although the
Dumbarton Oaks proposal did not mention self-determination, the United Nations Charter makes
specific reference to the principle in Articles 1 and 55. According to Article 1(2) of the Charter,
one of the purposes of the United Nations is to “develop friendly relations among nations based
on respect for the principle of equal rights and self-determination of peoples. . . .” Article 55
explicitly states the relationship between equal rights and self-determination of peoples on the
one hand, and respect for human rights and fundamental freedoms on the other:
“With a view to the creation of conditions of stability and well-being which are necessary for
peaceful and friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples, 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.”

General Assembly at its twenty-fifth session unanimously adopted the Declaration on principles
of International Law concerning Friendly Relations. This Declaration was drafted by a special
committee established by the General Assembly in 1963 and instructed to consider the “principle
of equal rights and self- determination of peoples.”‘ It explicitly recognizes the right of all
peoples to determine their political, economic, social, and cultural destiny without any external
interference. One of seven principles proclaimed by the Declaration is the principle of equal
rights and self-determination of peoples, by virtue of which “all peoples have the right freely to
determine, without external interference, their political status and 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.”‘ 5 The Declaration also acknowledges that the right of self-
determination could be implemented in any of the following forms: “the establishment of a

5
1970 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, 25 U.N. GAOR, Supp. (No. 28) 121,
123-24, U.N. Doc. A/8028 (1971)
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sovereign and independent State, the free association or integration with an independent State, or
the emergence into any other [freely determined] political status.

In December 1974, the General Assembly adopted a definition of aggression which refers to the
right of self-determination: “[N]othing in this Definition … could in any way prejudice the right
to self-determination, freedom and independence, as derived from the Charter, of peoples
forcibly deprived of that right and referred to in the Declaration of Principles of International
Law concerning Friendly Relations and Cooperation among States in accordance with the
Charter of the United Nations….. “6

The Declaration on the Establishment of a New International Economic Order and The Charter
of Economic Rights and Duties of States are the other important General Assembly resolutions
about self-determination.

The doctrine was referred to by the International Court of Justice in some of its decisions.
In Advisory Opinion on Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970):
“[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.”7 The court also dealt with the doctrine in the Western Sahara8case
also, where it stated that self-determination had “direct and particular relevance for non-self-
governing countries”. It also held that people of East Timor had right to self-determination
in Portugal v. Australia 9 . It also opined that it was one of the essential principles of
contemporary international law and it had an ‘erga omnes’ character.

Most of the states, because of the fear of secession, do not recognise the right to self-
determination.10 The United States also, most of the times, was hesitant to do any action just on
the basis of the doctrine. In the Bifaran conflict, the claim of self-determination by Biafra was

6
G.A. Res. 3314, 29 U.N. GAOR, Supp. (No. 31) 142, U.N. Doc. A/9631 (1974).
7
Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution [1971] I.C.J . 16.
8
Western Sahara 1986 ICJ Reports 14
9
Portugal v. Australia 1995 ICJ Reports 90.
10
Ved P Nanda, Self-determination under international law: Validity of claims to secede, 1982
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not recognised by the United Nations, as Nigeria was against any interference in its internal
matters. However, the case of Eritrea was quite different. The UN recognised the Eritrea’s right
to self-determination and it resulted in a UN monitored plebiscite, thereby ensuring its freedom
from Ethiopia. However, it was so because Eritrea was a former non self-governing territory,
merged into a federation with Ethiopia in 1952. Professor Rupert Emerson suggests “the room
left for self-determination in the sense of the attainment of independent statehood is very slight,
with the great current exception of decolonization.”‘

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 MINORITIES AND SELF DETERMINATION

The international law gives the right to self-determination to “all people”. However, there are
questions as to whether minorities come under the purview of the term “people”. A UN study by
Caportorti, Special Rapporteur in the ‘Study on the Rights of persons belonging to Ethnic,
religious and linguistic minorities’ define the minority as:

“A group which is numerically inferior to the rest of the population of a state and in a non-
dominant position, whose members possess ethnic, religious or linguistic characteristics which
differ from the rest of the population who, if only implicitly, maintain a sense of solidarity,
directed towards preserving their culture, traditions, religion and language.”11

Under international law, minorities are not generally considered ‘people’. Minority cannot be
covered under Article 1 of ICCPR which talks about self-determination as a right of all people.
Minority is covered under Article 27 which falls short of giving the right to self-determination.
The Human Rights Committee, in the case of Miqmak Tribal Society Claim, stated as minorities
are not people. In the present world, minorities continue to use the path of self-determination and
the states continue to deny them.12 Although some states like Eritrea have successfully used the
doctrine to gain independence, yet the right of minorities for self-determination is not fully
recognised in international law.

11
Caportorti F., Study on the Rights of persons belonging to Ethnic, religious and linguistic minorities of 1977, UNP
Sales No. E.91.XIV.2.
12
Joshua Castellino, International Law and Self Determination, p. 73
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 LEGAL STATUS OF THE RIGHT TO SELF-DETERMINATION
Until recently the majority of Western jurists did not recognize this right as having legal content
due to its vague scope and the fact that it represents a “concept of policy and morality” 13 as Ian
Brownlie puts it. But the developments in international law have led to a change and Western
jurists do accept this right as a legal principle today. Brownlie, for instance, states that the
generality of the right and its political nature do not deny it legal content. 14 The change of
attitude towards the legal status of self-determination is in large due to the work of the UN that
has resulted in the elaboration of the right and the affirmation of its legal status. The huge
amount of documents dealing with the right testifies to its importance as a concept. Its legal
status exists as customary international law, as treaty law or as a general principle of law,
although some controversy surrounds the latter aspect.15 The Colonial Declaration as well as the
Friendly Relations Declaration constitute binding interpretations of the UN Charter due to their
authoritativeness and their being evidence of opinio juris. The two International Covenants are
not only binding treaties but also constitute authoritative interpretations of many provisions
found in the Charter of the UN. Additionally and beside these instruments dealing with the right
in general, there are other UN Resolutions treating specific situations relating to self-
determination.
Furthermore, the ICJ has affirmed in the East Timor Case that the right to self-determination has
an “erga omnes character”. 16 The Court went on stating that the right of peoples to self-
determination is “one of the essential principles of contemporary international law”. 17 Many
authors will even go further to state that it constitutes a norm of jus cogens. The firm manner in
which the numerous GA Resolutions are formulated, the State practice, where States have
repeatedly expressed the obligation to respect the right, the rulings of the ICJ and the strong
standpoint taken in the doctrine supporting the idea of jus cogens are all factors, according to
Raic, supporting the notion that this right constitutes jus cogens. In addition to that, the
International Law Commission takes the stand, in light of, inter alia, the East Timor Case, that
the obligation to respect the right is jus cogens.

13
Ibid.
14
Ibid.
15
Ibid.
16
East Timor (Portugal v. Australia), Judgment 30 June 1995 ICJ Reports 1995, 90
17
Ibid (n 10) 180; Ibid (n 7) 218-219
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In concluding this consideration, the legal status of the right to self-determination can be
summarized as follows. Its mention in the United Nations Charter was of monumental
importance. Although it was laid down as a vague principle, the fact that it was included in the
charter made future developments, mainly by way of customary international law, possible.18
The 1960 UN Declaration on Granting Independence to Colonial Countries and Peoples helped
affirm the principle as a right and gave it its colonial shape, meaning it affirmed peoples’ right to
freedom from colonial rule. Six years later, the two International Covenants were adopted. These
Covenants play a double role, that of treaty law and of yet another tool in the elaboration of
customary international law, as they are used to interpret the UN Charter. Their identical first
article means that the right to self-determination does not end with independence since the
external aspect of the right is affirmed. For instance, the importance of respecting the political
independence and territorial integrity of States and thus the prohibition of outside interference is
stressed.19 Subsequently, and with the adoption of the 1970 Friendly Relations Declaration the
scope of the right was extended to other areas. Statements made and stands taken by States
before, during and after this period in history together with State practice, rulings by
international courts and more constituted usus and opinion juris that in conjunction are necessary
in crystallizing customary international law.20

18
Ibid.
19
This fact is established through numerous case laws concluded at the International Court of Justice and other
domestic superior courts.
20
Ibid .
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 CONCLUSION
Self-determination came into existence as a measure for the promotion of the decolonization
movement. This doctrine, though accepted as a part of customary international law in operation
today, has been subject to several criticisms. States, very often, are reluctant to put this doctrine
into practice out of the apprehension of secession.
Thus, it has been established that the right to self-determination is a legal right under public
international law and human rights law, although its exact scope is not clear and it is doubtful
that it ever will be given the political nature of the right. It has also been made clear that the one
element that is more or less free from contentions is the right to self-determination in the colonial
context, since the actual emergence of the right took place in the light of colonialism and the
process of decolonization. It is also this aspect that has become the benchmark for ascertaining
whether this right to self-determination is still relevant today or whether it belongs to the pages
of history books. Whether this right, no matter how legalized can be enforced separately from
political will and advantage, the right does not just belong to the books of the annals of history. It
is a right readily placed fresh on the shelf of world politics, available to be tested at any given
time.

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