Self-Determination in Three Movements

7

SELF-DETERMINATION IN THREE MOVEMENTS

WHEN ARAB, ASIAN, and Latin American delegations began to press the United Nations in the early 1950s to recognize a human right of self-determination, European officials expressed alarm, seeing their campaign as “a mere pretext for attacks on the colonial powers.”¹ The upstart delegations had succeeded in blocking an effort to exempt colonies from the application of the draft covenant intended to transform the Universal Declaration on Human Rights into a legally binding treaty, and now they were setting their sights higher.² Especially exercised by these developments was a Belgian delegate, Fernand Dehousse, who decried that “[c]‌ertain delegations which had spoken in favour of the self-determination clause did not seem to be sufficiently interested in the solution of the question, but appeared to regard the clause in the negative sense, as a weapon for use against the colonial Powers.”³ His protests fell on deaf ears. In 1966, the right of self-determination was enshrined in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights.⁴

Opponents were right to see the campaign to recognize self-determination as a human right as an attack on colonialism. In fact, it is illustrative of a deeper role that the right of self-determination plays in the international legal order. The right of self-determination has become an instrument whose purpose is to promote a just distribution of sovereign power in the international legal order. It has come to assume this task because of three conceptual movements it underwent in the twentieth century that dramatically transformed its legal scope and content. The first had its origins in events surrounding the Paris peace process in 1919, where self-determination’s class of beneficiaries moved from the population of an existing State to also include populations within and across State boundaries. The second, a movement in legal status, from a principle to a right, coincided with international law’s engagement with the dramatic decolonization projects that took root after the Second World War. The third movement is best understood in the context of self-determination’s awkward relationship to central tenets of both public international law and international human rights law. It is a movement between legal orders, from its engagement with the international realm to an additional engagement with the domestic realm, and from an entitlement that had the capacity to protect existing States or produce new States to one that also validates domestic constitutional reorganization of a political community. As a result of these three movements, the right of self-determination authorizes the formation of a new State by a colonized population and, more controversially, when an existing State fails to secure effective measures of political representation—what international law refers to as “internal self-determination”—for a people in its midst.

While these movements have been enlisted by others in support of distinctive claims about the contemporary legal salience of the right of self-determination,⁵ less has been written about their cumulative effect on the normative role that the right plays in the international legal order.⁶ This chapter proposes that these three movements yield a new purpose for self-determination in international law. Its new purpose is to mitigate adverse effects associated with how international law distributes sovereignty around the globe and how it authorizes its exercise by sovereign States. The right of self-determination is an instrument that stands to produce a more just distribution of sovereign power among collectivities that international law recognizes as States. The right of self-determination thus acts as an important conceptual bridge between the structure and operation of international law and international distributive justice. Finally, this chapter offers some reflections on some of the implications of this role, on what it means to speak of the distribution of sovereignty in international law, and on what it means to speak of self-determination as bridging international law and distributive justice.

SELF-DETERMINATION AND THE LEGALITY OF COLONIALISM

References to self-determination include the Charter of the United Nations, which lists the principle of self-determination as one of the purposes of the United Nations.⁷ The Charter also calls for the promotion of a number of social and economic goals “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.”⁸ In addition, both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights provide that “all peoples have the right of self-determination [and to] freely determine their political status and freely pursue their economic, social and cultural development.”⁹

Notwithstanding its present status as a human right, before the First World War, the concept of self-determination—to the extent it received legal recognition—simply reinforced the then existing distribution of sovereignty in the international legal order. In the words of Diane Orentlicher, “if international law enforced any conception of self-determination, it meant one thing: established states had a right to be left alone by other states.”¹⁰ The field traditionally understood self-determination as vesting in the entire population of an existing State, coextensive with sovereignty itself. Its object of attention was the constituted power of a State and its autonomy and independence on the international stage.

International law’s equation of self-determination with sovereignty existed at a time when international law extended legal validity to the colonizing projects of imperial powers. Although colonialism now undoubtedly constitutes a violation of a people’s right of self-determination, for centuries, international law authorized the colonization of peoples by sovereign States. It did so by comprehending the territory of a sovereign State as including the territory of any and all colonies under its imperial control.¹¹ A State’s sovereignty thus extended to its colonial territories and colonized peoples. Any attempt by a colonial population to free itself of its colonial status was comprehended as a threat to the territorial integrity of its colonizing master and an international illegality. Sovereignty, and its latent synonym, self-determination, in other words, extended international legal validity to colonialism.

After the First World War, self-determination surfaced in international legal discourse as a principle relatively autonomous from the concept of sovereignty. It did so in discourse that justified the liberation of Eastern European nations under the yoke of foreign domination. The Paris peace process and its aftermath saw the creation of Finland, Estonia, Latvia, Lithuania, Poland, Bulgaria, Yugoslavia, Czechoslovakia, and Turkey, and the splitting of Austria-Hungary into two separate countries. The ultimately futile geopolitical goal of creating buffer zones to restrain a resurgent Germany no doubt drove the politics of these acts of liberation. The most visible manifestation of this goal was the decision to establish joint occupation of the Rhineland for fifteen years in return for France abandoning its claim for a “free Rhine state.”¹² Nonetheless, the principle that State boundaries should respect the self-determining identities of nations was what Woodrow Wilson unevenly relied on to justify, in normative terms, this radical political redistribution of sovereign power.¹³ In fact, one of Wilson’s advisers, Isaiah Bowman, envisioned the main function of the League of Nations to be the guarantor of “territorial integrity” of the nations of Europe, vested with the power to alter boundaries “if it could be shown that injustice had been done or that conditions had changed.”¹⁴

During this period, self-determination served to legitimate the creation of States, and thus began to mean something more than a principle justifying the existing distribution of sovereignty. By regarding populations in addition to those of existing States as “self-determining,” self-determination began its first movement, from a normative feature of the population of an existing State to one that can also characterize populations within and across State boundaries. Its object of attention now extended beyond constituted power to include constituent power—the power of a people to form a political community. In so doing, it began to assume the role of legitimating recalibrations of the distribution of sovereign power in international law.

Self-determination did not perform this role in universal terms. Its relevance was primarily restricted to Europe and to peoples that international law deemed to be sufficiently developed to merit sovereign recognition. In 1919, the Covenant of the League of Nations declared that territories that had been annexed or colonized by Germany and the Ottoman Empire before the First World War were inhabited by peoples “not yet able to stand by themselves under the strenuous conditions of the modern world.”¹⁵ These territories were administered by “mandatories”—sovereign States—whose administration in turn was supervised by the League Council and the Permanent Mandates Commission. Mandates were grouped into three categories depending on the degree of their “development,” determining the extent to which they enjoyed political autonomy from their mandatory powers.¹⁶ Mandatories were responsible for the “tutelage” of peoples inhabiting mandates—in Woodrow Wilson’s words, they were “tutors and advisors of these people”¹⁷—in accordance with “the principle that the well-being and development of such peoples form a sacred trust of civilization.”¹⁸

This conception of self-determination in international law—one that legally validated the establishment of nation-States in Europe and the colonization of peoples elsewhere¹⁹—remained relatively constant until the aftermath of the Second World War. At the time of its enactment in 1948, the Charter of the United Nations simultaneously reaffirmed the “principle” of self-determination and the international legality of colonialism. Chapter XII of the Charter established the trusteeship system, a modified mandates system for the administration and supervision of remaining mandate territories now deemed trust territories. Trust territories were not the only colonies whose populations international law prevented from acquiring sovereign statehood. Chapter XI of the Charter governed “non-self-governing territories” over which member States at the time of its enactment asserted sovereignty outside of the trusteeship system. Chapter XI implicitly affirmed the international legality of these colonial relations by setting forth a “Declaration” by members who exercised imperial power over colonies of this kind to act in the interests of the colonized populations in a variety of different ways. In the words of Samuel Moyn, “the United Nations, far from being the forum of a new and liberatory set of principles, appeared set at first on colluding in the attempted reimposition of colonial rule after the war.”²⁰

Soon after the U.N. Charter’s enactment, however, international law performed a dramatic reversal on the international legality of colonialism. After a decade of efforts by the African, Arab, Asian, and Latin American delegations to attempt to persuade numerous U.N. bodies to recognize self-determination as a human right, the U.N. General Assembly enacted the 1960 Declaration on the Granting of Independence to Colonial Territories. Formally marking the beginning of self-determination’s second movement, the 1960 Declaration, in the language of universalism, declared self-determination to be a “right” that entitles “all peoples” to “freely determine their political status and freely pursue their economic, social and cultural development.”²¹ The 1960 Declaration also continued self-determination’s first movement by affirming that the right of self-determination vests in colonized peoples, populations that are not coextensive with the population of a State. It provided that the populations of trust territories and non-self-governing territories are peoples, and that these populations are entitled to “complete independence,” or what has become known as “external” self-determination.²²

The 1960 Declaration thus treats the right of self-determination as an instrument that addresses international law’s complicity with colonialism. “With the official acceptance of the right to self-determination,” according to Roland Burke, “the process of decolonization itself became a human right.”²³ The elevation of self-determination to the status of a human right was a striking political achievement, one that underscored a dramatic transformation of the U.N.’s stance toward colonialism. In Rupert Emerson’s words, “[t]‌he earlier assumption that each colonial power should at its own discretion and in an unhurried way lead its dependent peoples to well-being and self-government gave way to the proposition that colonialism was an intolerable and illegitimate abuse to be done away with as speedily as possible by the international community.”²⁴ The relationship between colonized and colonizer was no longer shielded from international scrutiny as a matter “essentially within the domestic jurisdiction” of a State.²⁵ The elevation of self-determination to the status of a human right dramatically transformed colonialism into a matter of international concern.

Some have argued that self-determination’s engagement with decolonization taints its normative status as an international human right.²⁶ Louis Henkin, for example, argued that self-determination was placed on the register of international human rights to be “used as a political weapon against colonialism or economic imperialism, not to enhance the rights of all persons against all governments.”²⁷ Henkin cautioned that “its injection into the human rights covenants could only hamper progress on the covenants and reduce further the likelihood of adherence by important nations.”²⁸ Crawford Young characterized the right of self-determination as an “instrumental norm for the anticolonial movement, a means to the transcendent end of immediate independence.”²⁹ In Young’s words, “the essential value” of democracy and self-determination “was their utility in the combat against colonial rule, rather than their intrinsic worth.”³⁰

These concerns confuse the legal value of the right of self-determination with the politics behind its legal production. What the history of the right of self-determination during this period illustrates is that the international legality of human rights is the product of deep political contestation over the international legal validity of the exercise of certain forms of power, not an inexorable step in the process of moral theory working itself pure on the international stage. The elevation of self-determination to the status of a human right was a spectacular political accomplishment by the Arab, Asian, and Latin American delegations at the United Nations. But the politics behind the legal production of the right of self-determination in international law—however spectacular—does not determine the role it plays in the international legal order. The intent of those responsible for its entrenchment is but one factor in characterizing the purpose of the right. What this politics does suggest, however, is that the right of self-determination was meant by at least some of those responsible for its international legal existence to mitigate some of the adverse effects produced by how international law distributes sovereignty around the globe and authorizes its exercise by sovereign States. The right of self-determination assumed this role in the context of decolonization, by the way it operated to redistribute sovereign power to redress international legal complicity in the colonizing projects of imperial powers.

Partly because of its radical potential, the 1960 Declaration gave rise to more questions than answers. For example, it stated that “[a]‌ny attempt 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.”³¹ So whereas the 1960 Declaration entitles colonized peoples to form their own States, it also reaffirms the territorial integrity of all States. Nor did the 1960 Declaration take explicit issue with international law’s deep-rooted acceptance of the proposition that colonized territory is the territory of the colonizer. But if a State’s territory includes the territories of its colonies, how can independence be achieved without disrupting the territorial integrity of colonizing powers?³²

More important, if self-determination attaches to colonized peoples, then is it no longer coextensive with the entire population of an existing State? That is, does it have the potential to attach to some but not to all members of a State, to communities within States and across States? The 1960 Declaration sets forth that all peoples possess the right of self-determination. It also declares that “alien subjugation, domination and exploitation” constitute violations of fundamental human rights. These forms of oppression presumably include colonization but reach beyond the colonial context. But the 1960 Declaration does not specify that these forms of oppression violate the right of self-determination. And it restricts its discussion of the acquisition of independence to colonies. Does the right entitle a non-colonized people to sovereign statehood?

Some of these questions were clarified by the Declaration on Friendly Relations in 1970.³³ Partly the result of continued efforts by Arab, Asian, and African delegations to recast basic principles of international law, the 1970 Declaration provides extensive detail on principles commonly understood to be foundational to the international legal order, such as the prohibition on the use of force, the duty not to intervene in the domestic jurisdiction of any State, and the principle of sovereign equality of States. In its elaboration of the meaning of self-determination, the 1970 Declaration reaffirms the principle of territorial integrity but adds a crucial qualification. The 1970 Declaration made clear that the territory of a colony has “a status separate and distinct from the territory of the state administering it.”³⁴ Thus, while colonies possess separate territorial status, the territorial integrity of a colony and of a State is inviolable. The acquisition of sovereign independence by a colony via the right of self-determination, in other words, does not threaten the territorial integrity of a State.

Moreover, like the 1960 Declaration, the 1970 Declaration also states that all peoples, not simply colonized peoples, have the right of self-determination. It reiterates the 1960 Declaration’s language of “alien subjugation, domination and exploitation” and says that these conditions constitute a denial of fundamental human rights.³⁵ But it also provides that these forms of oppression constitute a violation of the “principle” of self-determination. Theoretically, this could cover a wide variety of circumstances. And the 1970 Declaration seems to qualify the commitment to territorial integrity even more than treating the territory of a colony as distinct from the territory of the colonizing State. It says that “nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination … and thus possessed of a government representing the whole people without distinction as to race, creed or colour.”³⁶ This suggests that the right can disrupt the territorial integrity of a State not “in compliance with the principle of equal rights and self-determination” and thus not “possessed of a government representing the whole people without distinction as to race, creed or colour.”³⁷

Taken together, the two Declarations produced two specifications of the right of self-determination. First, they treat the right as an instrument of acquiring statehood in a colonial context where the parent State is geographically separate from the colony by deeming colonial territory to possess a legal status separate from the territory of the State administering it. Second, the Declarations can plausibly be construed as treating the right of self-determination as an instrument of acquiring statehood, outside the colonial context, in cases of “alien subjugation, domination and exploitation,” or where a surrounding State is not “in compliance with the principle of equal rights and self-determination” and thus not “possessed of a government representing the whole people without distinction as to race, creed or colour.”³⁸

The first specification of the right of self-determination legitimated an impressive record of decolonization. Between 1945 and 1970, seventy territories achieved independence.³⁹ Angola and Mozambique acquired independence in 1975, and Namibia, a territory once held by South Africa under a League of Nations mandate, acquired independence in 1990. And the United Nations has consistently applied the right of self-determination to colonies seeking independence, typically organizing a referendum before the accession to independence. But given that there are very few formal colonies still remaining in the world,⁴⁰ what is the future of the right in terms of its second iteration, outside the colonial context?

While some applaud “the reluctant sunset of the concept of self-determination,”⁴¹ others, in Orentlicher’s words, are equally “reluctant to retire the right and have earnestly sought to find it new work.”⁴² One context where it does some work is in the context of foreign occupation of territory. In 1971, the International Court of Justice upheld a resolution by the U.N. General Assembly revoking South Africa’s mandate over Namibia after South Africa refused to hand over the territory to U.N. trusteeship authority.⁴³ Part of the Court’s reasons for upholding the resolution rested on the importance of the principle of self-determination. With the mandate terminated, South Africa’s continued presence in Namibia amounted to a foreign occupation in violation of international law.

Another context where self-determination has some salience, at least politically, is in relation to forced annexation of territory, as it did in the case of East Timor, which was annexed by Indonesia in 1975 and not liberated from foreign occupation until 1999. Immediately after annexation, the U.N. Security Council was quick to enact a resolution calling “upon all states to respect the territorial integrity of East Timor as well as the inalienable right of its people to self-determination” and calling “upon the Government of Indonesia to withdraw all its forces from the territory without delay.”⁴⁴ Although the International Court of Justice followed suit with an enthusiastic endorsement of the “irreproachable” right of self-determination of the people of East Timor, it dismissed the claim on technical grounds.⁴⁵

Yet another area where self-determination has some relevance is in relation to Israel and Palestine. In an advisory opinion, the International Court of Justice held that Palestinians constitute a people in international law, and that the wall constructed by Israel around the occupied territories violates their right of self-determination.⁴⁶ The Court, however, said little more about the right and what might constitute a violation. The judgment alludes to territorial claims made by Israel to Jerusalem and certain settlements, with an unstated implication that the wall includes land that belongs to the Palestinians within Israeli territory.⁴⁷ The judgment is “significant as it demonstrated the judges’ willingness to develop a legal rule for the first time (the existence of a non-colonial right of self-determination), and to apply it in a politically charged context.”⁴⁸ But the Court does not address broader questions concerning the right of self-determination and the Palestinians, leaving unclear the territory to which the right refers and what else it might vest in the Palestinian people. As a result, its judgment offers little insight on the relevance of self-determination to the vast majority of contemporary disputes implicating the right of self-determination, which center on the role that it plays in restructuring the relationship between a State and two or more ethnic or religious or cultural communities in its midst.

THE MANY PARADOXES OF SELF-DETERMINATION

Given its commitment to State sovereignty, public international law bears an awkward relation to the norm of self-determination. Despite—or perhaps because of—its intimate relation to freedom, a paradox lies at its heart : it both legitimates and challenges sovereign authority.⁴⁹ On one hand, sovereignty is the formal expression of the principle of self-determination in international law. Sovereignty provides a shield that protects the capacity of a people to determine freely the ways in which they wish to govern themselves, and authorizes State action to protect chosen arrangements from internal or external threat. On the other hand, self-determination, understood in light of the three movements identified here, threatens sovereignty to the extent that it acts as a justification for disrupting the existing distribution of sovereignty around the world by conferring the right to acquire sovereign independence—or external self-determination—on populations other than those of existing States.