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The right of self-determination in International law Research Paper

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Updated: May 21st, 2019

Introduction

Self-determination refers to the rights endowed to different nations to determine and work towards their own future, politically, economically, socially and culturally. Political self-determination is demonstrated by way of having a system of self-governing with the citizens having the freedom to contribute and question government practices. This includes the existence of local governments, which have an upper hand in making decisions on government matters.

Self-determination in this case ensures democracy in decision and little or no international dominance in the government’s affairs. In support of self-determination, Kaczrowska alleges “people have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development” (24).

At the time, this concept was being brought to light, however, it failed to provide for complete independence as a way of attaining self-governance, but this has changed over the years.

There are three aspects that have to be mentioned in the discussion of self-determination. First is the external element which means that a nation can choose their political status that is whether to merge with another state, or run their affairs independently or even maintain political ties with the colonial governments.

The second element is internal in that an economy is independent theoretically while it is practically being governed by international bodies. The third element is also considered as an internal element. This is where the nation is able to make its own decisions including the extent of international interference in the country.

History of self-determination

The law of self-determination came into active existence in 1945, the same year the Second World War came to an end. This was governed by UN constitution in the following clauses. “Chapter 1, Article 1, part 2, which states that the purpose of the UN charter is to 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” (Evans 234) and article 15 which states, “everyone has the right to a nationality and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality”, (Evans 235).

By the time this concept was being established with the United Nations, the membership was made up of only 50 states, which were also the only self-governing states at the time. The other countries were still under the colonial rule of the already independent states. The United Nations organization came up with the concept of self-determination to ensure that most countries gained their independence, either in part or fully.

At the time, this concept was being developed; there were only two independent countries in Africa: Liberia and Ethiopia. From 1945, other countries began attaining self-determination and fighting the colonial rule, and this led to massive freedom of more than 50 states in less than a decade. The peak of the implementation of the idea, however, was realized in the 1970’s when different states started fighting for their independent political governments away from the colonial governments.

This raised the question as to “whether self-determination was limited to territories under the colonial rule or whether within independent states, constituent ethnic groups and nations or peoples were also entitled to self-determination which could undermine the territorial integrity of such independent states” (Cali 86).

Self-determination came to be acknowledged as a right in the two treaties that were signed by the UN in 1966; the international covenant on Economic, Social and Cultural Rights treaty and the International Covenant on Civil and Political Rights treaty.

Principle of Self-Determination

The principle of self-determination is based on the rights of a people in a country to make their own decisions without international interference.

This principle paves way for people to make decisions regarding their political, economic and socio-cultural status. It paves way for freedom especially when making political decisions that are core to the future of the nation. According to Knop “the importance of self-determination; lies in the right of choice, so that the outcome of a people’s choice should not affect the existence of the right to make a choice” (33).

This means that the policies bring laid down in the government with regards to decision making should ensure that the citizens are involved in decision making processes, hence democracy.

In reality, however, the results of practicing self-determination, has an effect on the assertiveness of other nations towards the claims made by the occupants of the country. This principle is faced by a number of setbacks, the greatest being the need to distinguish between state independence and the independence of people, with the latter being of a greater challenge.

Different countries under the UN umbrella respond differently to self-determination. Some countries tend to get better results when they seek self-determination in politics while this does not work for others. Most countries, which respond in this way, are those that have already been colonized since they know what it is to be without political independence. This explains why such countries will always strive to attain political freedom before any other thing.

Other countries mostly those which have already attained political freedom exercise self-determination as a way of increasing “the degree of political, cultural and economic sovereignty, sometimes in the form of a federal relationship” (Kaczorowska 95). Besides these two cases, there are still some other countries where self-determination means struggling for the right to exercise the traditions and cultures of the land without the intrusion of the international organizations.

As a principle, self-determination played a key role in the process of bringing Europe back to life after the First World War. At this time, however, it had not been included in the UN constitution and had not been well established. After the establishment of the principle, it was realized that it was the power behind the refurbishment of this continent.

Since its recognition with the UN, it has been considered “as a right of all peoples in the first article common to the international covenant on civil and political rights and the international covenant on Economic, social and cultural rights” (Anaya 47) both of which became effective in 1976.

Besides these instruments, the principle of self-determination is also acknowledged in other international instruments such as the declaration of principles of international law concerning friendly relations and co-operation among security states, the Helsinki final act, the African charter of human and peoples’ rights, the CSCE charter of Paris for a new Europe, the Vienna declaration and programme of action and the international court of justice.

Being included in these documents was necessary in insisting on the importance of the self-determination principle especially with regards to the universal laws on human rights. It is considered that compliance to this principle paves the way to the development of other political, economic, civil and socio-cultural freedoms. This makes self-determination a tremendous tool to the independence of many countries.

To insist on this importance, Anaya brought illustrated a statement “no other concept is as powerful, visceral, emotional, unruly, and as steep in creating aspirations and hopes as self-determination” (84).

Owing to this fact, it is fair to consider self-determination in a wide scope of resulting factors depending on the situation at hand, the needs to be fulfilled, the interests of the people concerned and conditions thereof. As a conclusion, the principle of self-determination is one that is well recognized in international law and one that s applicable universally.

Self-determination versus territorial integrity

According to most people, self-determination is a political principle applicable to the people of a country while territorial integrity is a legal principle applicable to the state. This is, however, considered as a misrepresentation since self-determination has proved to be the legal principle while territorial integrity is not considered as a principle per se. Territorial integrity is considered in the UN charter as “the preservation of the territory of a state intact” (Evans, 35).

According to the international laws of the United States, territorial integrity is the protection of a state from forceful intervention in its political, economic and social affairs. This prohibits the systems that were used in the pre-colonial era to conquer other countries whereby the main element was coercion.

As an explanation of territorial integrity, this concept has been incorporated in three main documents which include Covenant of the League of Nations, which demanded “the members of the league undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all members of the League” (Knop 92).

The other document is the UN charter which stated “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner consistent with the purposes of the United Nations” (Knop 92).

Finally, is the Helsinki Final Act, which requires “The participating States will refrain in their mutual relations, as well as in their international relations in general, from the threat or use of force against the territorial integrity or political independence of any State” (Knop 93). From these, a conclusion can be drawn that the territorial integrity is merely the right against forceful intrusion.

In differentiating between territorial integrity and self-determination, it is necessary to consider the scope and limitations of each. Territorial integrity has often been misrepresented as a limitation to self-determination. This concept has, however, been proved wrong by Cali who asserts “the government of a state that does not represent the whole population on its territory without discrimination cannot succeed in limiting the right of self-determination on the basis that it would infringe that state’s territorial integrity” (88).

In addition to this, experience indicates that the limitations of territorial integrity on self-determination have often been ignored in most cases. From this, therefore, it is clear that the territorial integrity comes about when the government allows people to exercise democracy in their political, economic and socio-cultural development.

Another difference between territorial integrity and self-determination can be seen from the allegations made by Kaczorowska “the people who are deprived of the right of self-determination can seek forcibly international support to uphold their right of self-determination and no states can use force against such groups” (55). This is what territorial integrity is all about, refraining from using force in dealing with the need for independence or democracy.

An illustration of this is the humanitarian intervention in war torn regions such as Somalia. Despite the allegations that such governments have denied their people the right to territorial integrity, the international community is also considered having breached the right to self-determination by forceful entry into the country, despite the fact that it is for the good of the people and the country at large (Knop 116).

Territorial integrity and self-determination are supplements of each other, whereby the absence of one guarantees the presence of the other. In some cases, however, these two concepts tend not to be compatible and in such a case, territorial integrity is normally compromised for the sake of self-determination. An example of this is when the majority of the population is supporting a crime against humanity, such as genocide.

In this case, self-determination has to take effect and allow the minority or the victimized population to seek international intervention. Self-determination here is therefore, considered as instruments for reinstating international standards where human rights have been has been violated. Anaya supports this assertion by stating “there is increasing agreement among authors that the right to self-determination provides a remedy of secession to a group whose rights have been consistently and severely abused by the state” (86).

Implementation of the right

Despite the fact that self-determination is commonly dated to 1945, this concept was in place in earlier years. Its actual origin is normally considered being the American Revolution of 1776. This concept was also used during the French revolution, but not much has been said about this since by then, a title had not been attached to the idea. The implementation of this right is considered to have officially taken place after World War II in 1945. This is the same time when it was included in the United Nations charter and enforced as a right governing the international relations of the already established states at the time (Anaya 29). Since this time, the right to self-determination has been one of the core elements of the United Nations and its implementation has been an ongoing process that has never been completed to date. This owes to the changing nature of peace related challenges being faced by the United Nations over the years.

The implementation of self-determination as a human right’s element has made a considerable contribution to the inhibition and resolution of skirmishes. This makes the implementation of self-determination a continuous process in the race to attaining a near perfect rule on the issue of humanitarian security.

These according to Knop include “guarantees of cultural security, forms of self-governance and independence, economic reliance, effective participation at the international level, land rights and the ability to care for the natural environment, spiritual freedom and the various forms that ensure the free expression and protection of collective identity in dignity” (101). The right to self-determination is, therefore, attained where there is full participation of democracy and referenda.

In preventing and resolving conflicts, there should be a proactive commitment from the parties involved and the absence of this is what triggers the actions taken under the right of self-determination.

The interference of the international community in conflict resolution is normally considered as an intrusion, but is deemed necessary in the implementation of this right. It is in fact, considered as a basic principle in international law that has been inexistence as long as international law itself has been. As a matter of fact, it is the implementation of this right that brought about an end to most of the colonial malpractices such as apartheid in South Africa.

The implementation of self-determination is considered to be a process rather than an outcome, and this allegation is supported by Cali through his observation of Northern Ireland and statement thereof that “Although the Northern Ireland agreement concluded in 1988 does not result in the immediate creation of a United Ireland, it sets in motion a process of self-determination in which the parties can work towards a change of status though democratic political means” (221).

Being an ongoing process, self-determination paves way for the anticipated changes to take place without there being any allegations of forceful actions. When implementing the right to determination, it is also pertinent to note that just like any other law, this right is not absolute. If the claim, of this right clashes with other international laws, then the options are weighed to determine which one is more inclined to the ultimate goal of maintaining universal harmony and security.

Current movements

Current or modern movements of self-determination have been witnessed in the recent years, mostly in Northern Africa and the Middle East. Countries such as Egypt and Tunisia among others are known to have fought against decades of dictatorial leadership in 2011. The citizens of Tunisia to be specific managed to overthrow the 23 years leadership from Abidine Ben Ali.

Egypt, on the other hand, managed to do away with a 30 year rule of Mubarak which was characterized by lies and corruption. The common causes of these demonstrations were the aspect of ill-treatments of the citizens by the police, with orders from the government.

The citizens were also having a hard time barely surviving owing to the harsh economic conditions brought about by corruption in the government, with only a few people benefiting from the national resources. The result of this was high levels of unemployment, high inflation rates, poverty and high living standards.

The government has also placed a barn on the freedom of speech such that no one could protest over these issues. This explains why these people even managed to stay in power for all those years in the first place. No one would dare oppose them.

Dictatorial leadership is one of the greatest hindrances to self-determination because it stands in the way of all the other freedoms. This explains there has been an uprising of protests against this form of leadership in the recent past. Egypt, Yemen and Libya, are the other countries besides Tunisia with experienced this wave of fighting for self-determination in 2011.

From these cases, it is evident that the international community has always been in support of the people against the dictatorial leadership though not with the interest of the people at heart. The effect of freedom is already been witnessed at large scale in these regions.

In Tunisia, for example, the press now has the freedom to execute their reports and the citizens are free to talk about issues they could never mention for the past 24 years. The journey towards self-determination, though it has not yet been won is one that the international community is strongly backing up, to ensure that this kind of leadership has been abolished throughout the world.

In these recent movements, however, there are some challenges that have been discovered, that bring about, a difficulty in attaining the full state of self-determination in these regions. The key challenge is the weakening trust from the citizens in the Middle East and African countries in the international community.

Mostly governed by the western countries, most people believe that the international community’s intervene only to gain access to the advantages provided by the situations at hand. In most cases as seen in these countries that have experienced the upheaval, international communities have been siding with the citizens against the governments.

It has been established that most of these dictatorial leaders have not been allowing the intervention of foreign countries. So the greatest controversy remains as to whether the international community’s intervene to have the leaders out of power hence gaining access to the resources in the country or for the good of the citizens so that they can experience freedom.

This controversy is strengthened by the fact that these countries are home to some of the most precious resources such as oil. This is one of the claims that the leaders have been using over the years to stay in power and rule with steel; preventing the western countries from invading their territories and taking over their resources.

The End of Self-Determination

An instance of the end of self-determination was experienced in the abolition of The Aboriginal and Torres Strait Islander Commission in Australia. The mandate of this commission was to represent the ATSI population in the government hence giving them a chance to contribute to the decision making process. As a result of the existence of this commission, these people had a channel through which they could contribute to the economic and political development of their area.

Its responsibility was, however, limited by the government in areas such as education, health and family related issues such as domestic violence and housing provision. For some reason, the government preferred to have these matters under its direct jurisdiction. Being the first body to bridge the decision making gap between the indigenous people and the government, it had a weakness for lack of experience.

This commission was representing the right of self-determination and this explains why its demolition spelled out the end of self-determination in the region. The demolition was superseded by allegations that the commission was being run by corrupt individuals and also that it was taking more resources from the fiscal budgetary allocation. The other reason as to why this commission did not live long was the lack of support from the people it supposedly represented.

This was not the case in all regions, but going with democracy, it was deemed infamous. Most people alleged that they represented the needs of the few and hence the government decided to abolish it and run its businesses independently. From these allegations, therefore, it is difficult to determine exactly whether ATSIC was for self-determination or against it, but as a matter of fact, its demolition was considered by many scholars as he end of self-determination in the region.

Conclusion

In conclusion, self-determination can be seen to be a wide concept that cannot be exhausted. It is an ongoing process, being redefined by the day depending on the circumstances at hand. There is, however, a controversy, yet to be resolved as to whether the intervention of international communities in conflict stricken areas should be considered as lack of self-determination or the presence of it. This is so because the international community is almost always in support of what the citizens are fighting for and against the government being fought. On the other hand, however, it is never clear what exactly their intentions in the interventions are.

This is why most countries end up rejecting the international community, yet this could be what they need to get out of their current turmoil. From this, therefore, we can deduce that the subject of self-determination is one that has not been understood, especially in its practical sense.

Description of articles

2011: A year to remember

The author of this article describes the notion he had prior to 2011 in relation to the type of government that they were used to. He as well as other citizens had resigned to the dictatorial leadership and never believed citizens could bring about any changes in the government. The people were oppressed from the inside and were used to harsh treatment from the government, yet they had settled for the status quo.

This came to the peak when the government decided to severe all communication links in the country, after an uprising in Tunisia. This was a threat since what had spurred the revolt in Tunisia is exactly what was happening in Egypt at the time. The desperation that was in these people reached the peak and demonstrations came as a natural response.

From his perspective, the fall of Mubarak’s regime paved way for freedom in Egypt. They even realized that the information obtained from the media was being doctored to fit the needs of the government, hence leading to deceptive and brain washing ideas.

Middle East and Northern Africa unrest

The year 2011 was one characterized by a wave of unrest in the Middle East and northern Africa countries. This turmoil was spurred by harsh living conditions which people believed were brought about by corruption in their dictatorial governments. The protests led to freedom in some countries such as Egypt and Tunisia in the year 2011.

As for others, it has been a series of uprisings that are still ongoing to date. According to the writer, this is a democratic wave, and it cannot be stopped until all the nations have been liberated from authoritarian leadership. Libya is the latest nation to be liberated after the death of Muamar Gadhafi late last year.

Crisis in Libya

This is another article addressing the conflict experienced in the Middle East in the recent past. This explains the uprisings that have been taking place in the region as the urge of freedom from oppressive leadership takes toll. In Libya specifically, the skirmishes started with peaceful demonstrations, which were followed by violent treatment from the authorities. This is what triggered the reactions of violence since the citizens realized that they had to takes up arms and protect themselves.

Despite appearing like they were in the losing side, the citizens appealed to the international community not to intervene owing to threats from the government. This crisis, however, came to an end when Gadhafi was overwhelmed and had to seek refuge. He was later on killed brutally while hiding in a manhole marking an end to his regime. The people of Libya were free at last.

Iraq crisis

This article addresses the issues that have caused Iraq to be a war torn country over the years. The conflict in Iraq is different from the ones described previously in this paper. This is a war against the intervention from the west, specifically the UK and the US. These two parties have been making allegations that Iraq is in possession of nuclear weapons capable of wiping the entire world in a matter of seconds.

The first step towards overcoming this threat was to overthrow the then leader, Saddam Hussein, and this was successful. However, it marked the beginning of a war that was to continue for ages. Peace has become a nightmare, and the most difficult thing about this is that it hard to tell exactly what is causing the upheaval. For some, they are demonstrating against the intervention from the western countries, while, for others, it is a civil war within the region.

Students for justice in Palestine

This is publication by the student’s body of the University of California indicating the support that they have for the liberation of war torn countries in the Middle East and Northern Africa. The students were facing various issues in these regions, with specific reference to Tunisia and Egypt. They claim that the leadership in these regions has been responsible for the living conditions of the masses characterized by unemployment, high cost of living and corruption in the government.

The students who came up with this articles have their roots in this region and the pain of watching as their regions tumble down led to the need to voice their opinions. They believed that the right to self-determination had been long violated and felt the need to revive this freedom and do away with the authoritarian and oppressive leadership.

Works Cited

Anaya, Samuel. Indigenous Peoples in International Law, New York, NY: Oxford University Press, 1996. Print.

Cali, Başak. International Law for International Relations, Oxford, UK: Oxford University Press, 2010. Print.

Evans, Malcolm D. International Law, Oxford, UK: Oxford University Press, 2010. Print.

Kaczorowska, Alina. Public International Law, Abingdon, Oxon: Routledge, 2010. Print.

Knop, Karen. Diversity and Self-Determination in International Law, Cambridge, UK: Cambridge University Press, 2002. Print.

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