Agadir – The right to self-determination is one of the core principles in the international law. At its inception, the principle was associated with the principles of founding the modern state, such as popular sovereignty and state nationalism.
The first instances of use of the self-determination principle involved the building of powerful European States like France and Britain. Later, in the 19th century, the principle was used to accomplish unity within fragmented entities in Europe, notably Italy and Germany. In the twentieth century, particularly after the creation of the United Nations, the principle has sustained the birth of new states after a long process of national liberation. Today, in the context of deep transformations inside the international system, the right to self determination is lacking a clear legal framework, and become subject to divergent interpretations and even misuses in the frame of the struggle for power and the defense of national interests.
Emergence of the right of self-determination as an international legal principle
After World War I, former U.S. President Woodrow Wilson declared that self-determination was one of the 14 principles that should contribute to international peace. However, this right was recognized only for European peoples, while no Europeans were considered as “uncivilized” and thus not worthy of exercising self-determination. More recently, the national movements of liberation in Africa and Asia have embraced the right of self-determination to fight against the occupation of colonial powers. Arguably, after World War II, the principle became inherently associated with the right of oppressed peoples freely to choose their political and economic systems, and to be liberated from western colonization.
The international norms which framed the right to self-determination were established in a historical context linked to decolonization. UN General Assembly Resolution No. 1514, adopted in 1960, limited this right to colonized peoples. Resolution No. 1541 in the same year added the condition that the right applies for people that are geographically, ethnically, and/or culturally distinct from the metropolitan state (colonial power). The AG (UN) resolution No. 2625 adopted in 1970 extended the right to peoples subjected to racial discrimination, domination, and exploitation.
In this respect, two major observations proceed from this UN legal framework: the first is that the relevant texts stressed specifically the right to self-determination for people under colonization and domination. The second observation is that the same texts made clear that any attempt to threaten the national unity or the territorial sovereignty of states would be considered a violation of the UN Charter and the principles of the United Nations. Moreover, all resolutions clearly specified, although in different terms, that the right to self-determination could never be used as a blank check for secession from the state
Nevertheless, the normative framing of the right to self-determination does not answer some crucial issues. First, the definition of the concept of “people” remains controversial since there is no agreement on the nature of the material and subjective elements which describe the concept of a “people”. And even when such elements are presented piecemeal, it is never easy to ignore the political strategies behind them.
Indubitably, the principle of self determination is a critical right recognized by modern international law, but, regrettably, no normative texts, not even UN texts, define the criterion of people, and thus which people have the right to self determination remains an open question and a source of conflicts in international politics.
According to UN resolutions, one can confirm that the peoples concerned with self-determination are those who were colonized or illegally occupied, or people who were subjected to systematic discrimination and exploitation.
The Post Cold War and the Dangerous Politicization of the Right to Self-Determination
The transformation of the international system in the post cold war era, combined with the rise of micro nationalism and the revival of sub state forms of cultural identities contributed to divergence, deviation, and abuse in the implementation of people’s right to self-determination. In fact, the ambiguity surrounding the definition of the concept of “people” made easy its instrumentalization for serving geopolitical interests in the arena of international politics. In the 90’s, it resulted in a wave of new independent states in the Balkans, and the phenomenon of unilateral declarations of independence throughout many parts of Eastern Europe and Central Asia (Transnistria 1990, South Ossetia, Nagorny Karabakh in 1991, Abkhazia 1999 …).
Two recent cases involving unilateral declarations of independence demonstrate the weakness and vulnerability of the principle of people’s right to self determination. The first case occurred in 2008, when Kosovo — a territory historically claimed by Serbia — declared unilateral independence and was rapidly recognized by the United States and the Western countries, while Kosovo’s unilateral declaration was considered by Serbia, and Russia and China to be illegal and unfounded on the basis of international law. The second case in 2014, following the Crimean unilateral declaration of secession from Ukraine to join the Russian Federation, the U.S. and E.U. countries contested the legality of the Crimean unilateral declaration and judged it as a flagrant violation of Ukrainian sovereignty and its territorial integrity.
These two cases demonstrate that the principle of people’s right to self-determination remains much contested and subject to opposing interpretations based upon self-serving geopolitical interests.
This situation raises concern about the stability of the international system. The absence of a legal basis that regulates the creation of new states outside the decolonization rules threatens the very legal and material foundations of “statehood.” The principle of people’s right to self-determination has been used politically to divide up states according to the national interests of the great powers, and the consequence is obviously the creation of more failed, dependent states and not viable new states.
The problem with the current implementation of this principle is its tendency not to make a distinction between self-determination and independence. The right to self-determination has never been considered by international law as a right to secede from a sovereign state. Today, the politicization of the principle is clearly demonstrated in international politics, and seems based on a preference for the territorial approach over the real sense and philosophy of the self-determination principle which is linked to respect for and defense of the civil, political, socio-economic, and cultural rights of peoples, and their freedom from fear and hunger.
In conclusion, it is obvious that the principle of self-determination is emerging from its international legal framework under the pressures of the current trends in global politics. Thus, it is duty of the United Nations to reframe the implementation of this principle so as not to violate the sacred principles upon which the whole legal international system is based: the sovereignty and the territorial integrity of states. Otherwise, this principle will certainly become a cause of war and structural instability in the international system.
The views and opinions expressed in this article are those of the author and do not represent any institution or entity.
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