FLB 307: PUBLIC

INTERNATIONAL LAW
LESSON 11: SELF DETERMINATION
History of the Principle
 Idea of SD is not a modern phenomenon, has been
present throughout recorded history people have
always used similar language to assert their
independence from political control
 London congress of Socialist International of 19 th C is
replete with language of SD
 US Revolutionary War was about SD, French
Revolution—Fraternite was linked to consent and SD
 WWI saw the greatest use of the term
 Post WWII UN Charter was intended to end all wars
and prominent in this document was Self
Determination
UN CHARTER
 Article 1(2) purposes of the UN is develop
friendly relations among nations based on the
principle of respect for human rights and
national determination of peoples and to
take other appropriate measures to strengthen
peace
 Article 55, 73 - elaborate
provisions/indications of international legal
obligations of states to maintain the principle
of SD
Universal Declaration of Human
Rights
 Enacted three years after the UN Charter but
does not mention self-determination or that
most of the global population was living under
a colonial regime—this is because the drafters
were colonial powers
1961—Resolution 1514
 General Assembly Resolution—subjection of
peoples to colonial rule is contrary to principles
of human rights
 all people have the right to SD and by virtue of
this right they freely pursue their social and
economic development
 underdevelopment should not be an impediment
to realization of Self Determination
 armed action to suppress colonial action is not
permitted
ICCPR AND ICESR
 both covenants have as their first article a
statement on SD—it says that all peoples have
the right to Sd and by virtue of that right they
have the right to freely pursue their social and
economic development—all peoples may for
their own ends freely dispose of their national
wealth and resources without prejudice…
 these treaties give Resolution 1514 binding

force at international law

1993—Vienna Declaration and Program
of Action
 issued after Vienna world conference on human rights
—states clearly that all peoples have the right to self
determination—this replicates a 1975 resolution of the
UNGA “Declaration on Friendly Relations” which was
an authoritative interpretation of the UN Charter—
right of SD is available to all peoples but this right
ought not lead to the division of any state if that
state is conducting itself in compliance with the
values of equality of peoples and respecting the
human rights of all peoples.
 general exception in the case of colonized peoples who
always have the right to impair the integrity of their colonial
oppressors.
What does SD Really Mean?
 Profesor Levin “the right of a people of a nation
freely without outside pressure to determine their
state affiliation including the right to form an
independent state and to determine the forms of
their economic, political and social life.”
 Judge Dillard opinion in Western Sahara Case
—“it is for the people to determine the destiny of
the territory and not for territory to determine the
destiny of the people”
How do States Attain SD?
 political means — ensure representation,
protection of minority language, culture,
limited degrees of autonomy, right of forcibly
divided states to unite, right to secede, right to
dissolve a state peaceably and form a new
state, right to choose attachment to other
countries
 most established face is the right not to be

colonized
Case law
 two cases have affirmed the right of SD: Quebec Secession
Reference (in folder) & Katangese Peoples Assocaition v. Zaire
 Courts in both cases were faced with a secessionist claim and used
the Marbury v. Madison strategy—the particular minority group
has no right to secede but there may be circumstances where a
peoples has the right to secede if:
a) Where a people is a former colony
b) where there is oppression under a military government
c) if they can show that they have been fundamentally excluded from
the political infrastructure
 if these circumstances have not been met, the peoples have a right
to negotiate in good faith
Food for thought
 Whither MRC?
The end
Hasta la vista!