The doctrines of self-determination and territorial integrity provide
autonomy to two different entities of international law, the individuals, and
the state respectively. The presence of these rights provokes a conflict between
the autonomy of the state and the autonomy of the people within the state. As a
result of a conflict between the two principles, the international community
favored the state's sovereignty over the rights of the individuals.
The universal endorsement of territorial integrity trumps the right of individuals within the state. Upon such expression by the international community, this paper aims to cross check the truth behind this expression. The paper will analyze if the acceptance of the territoriality arises from the state's compliance with the right to self-determination. Consequently, the paper will answer whether the doctrine of self-determination is restricted by territorial integrity or is it the other way around in international practice.
The right to self-determination was officially adopted in the Charter of the United Nations in Article 1(2)[i]. However, the charter neither explains the term nor does it lay down any specific context or element concerned with self-determination. Self-determination is generally understood as the right of individuals to determine their political status. Moreover, in the non – existence ofany direct definition, the theoretical understanding of self-determination is segregated into internal and external self-determination.
Internal determination is exercised within the boundaries of the state and external right is employed to revolutionize the state's boundaries. Internal self-determination is broadly related to the status of the relationship between the people in the state and the government of the state. It provides people with the representation needed in the state, along with the right to decide their governing body.Due to the internal application of the right, there is no international objection to it.
On the other hand, external self-determination extends to the right of individuals in the state to determine their status by seceding from the present state and formulating a new state or uniting with an already existing state. Owing to the possibility of secession via external right, it is contended to conflict with the state's right to territorial integrity.
Territorial integrity implies the right of state to remain as one with the same territorial boundaries and actions such as secession will disrupt the territory and oneness of the state. Thus, thesignificance of the integrity and unity of a state in international law renders the concept of external self-determination invalid. However, the following part of the article will examine if the external self-determination is invalid in all circumstances, or the international practice provides conditions for the application of external self-determination.
It is crucial to highlight the international validation of external determination in the case of colonized states. In the 1950s, the right to self-determine was seen as a significant tool to free the colonies from their colonizers; although the committee formulating the UN Charter never saw the right as a tool for decolonization. With this revolution and Resolution 1514(XV) the application of external right for decolonization was validated and this application was not against territorial integrity. The validation of external right conveys that the right can be employed for international measures when the situation calling for it arises.
Till date the use of external self-determination is restricted due to the principle of territorial integrity in every circumstance other than decolonization. However, this position can be negated, and a claim can be made that the individuals within the state can exercise secession when they are not provided with the internal right of self-determination. In other words, the territorial integrity of a state is limitedto its compliance with the right of self-determination; thus, the scope for external right beside decolonization. This claim can be supported by certainexplanatory provisions and incidents at the international level.
Besides the UN Charter, the right toself-determination is also mentioned in Article 1 of ICCPR and Article 1 of ICESCR. These covenants as well do not provide any definition or implication of the right. However, they highlight the importance of compliance with the right to achieve the larger goal of universal peace and security.Owing to the absence of any clear definition, the interpretative burden falls upon a declaration passed by the General Assembly.
The interpretative role is upheld byte International Court of Justice while mentioning the authoritative position of a declaration for the interpretation of international principles. Friendly Relations Declaration provides for the interpretation that validates external self-determination. According to paragraph 7 of Principle V in this declaration, the territorial integrity of a state is vital, but it may not be protected if the state is not conforming with the right of representation and self-governance internally.
The declaration restricted itself to racial and religious groups for the benefit of this non-compliance. However, there are other declarations to support the same claim and include others too. The Vienna Declaration also mentions the same language and includes that the government must represent and provide opportunity for representation to all without differentiating in any manner. The same inference can also be drawn from Article 1(3) on self-determination in the Fiftieth Anniversary Declaration.
The apparent conclusion from these declarations is that territorial integrity is not guaranteed to the state if it differentiates any group and obstructs their right to internal self-determination. Thus, the territorial integrity of the state is restricted by the compliance with internal self-determination and in case of non-compliance the individuals may exercise remedial secession.
Additionally, the CSCE Final Act can also be employed to back the claim on the validity of external determination in certain violative conditions. Principle VII of the Act, while stressing the territorial integrity of the state, entails the importance of internal self-determination and refers to the possibility of external self-determination or secession. It also puts weight on the significance of this right within the state for friendly relations and the larger goal of universal peace and security. Moreover, the Act also stresses that the self-determination right must not be violated at all.
All the declarations convey the belief that the state may not continue to enjoy its territorial integrity and political unity if it does not represent all the individuals of its state and comply with self-determination. The primary idea behind this belief is that the state conforms with internal right and if it does not comply, then the right of self-determination will be available to the individuals in entirety. However, external self-determination cannot be used arbitrarily and as the first remedy in case of violation of internal right. The external determination or secession must be utilized as the last alternative after employing all the less assertive remedies to the group.
Consequently, the external determination must be looked at as remedial secession for the oppressed people. Moreover, it should be allowed when it is evident that internal self-determination is not reasonable. Therefore, unlike the colonies, the group within the state cannot be granted the right of secession merely on denial of representation, there has to be a massive violation of human rights.According to Anderson, there is a higher standard for the application of external self-determination.
The standard includes:
Besides practical interpretation of the texts, the presence of remedial secession can also be substantiated via certain international judgments. In 1921, the Commission of Jurists and Commission of Rapporteur concluded that no unqualified right of secession can be granted on the wish of an existing entity if the state agrees to accept its demand of self-determination.
However, if the state fails to fulfill such demand either by will or lack of power, then the discriminated minority may secede as it might be the last remedy possible. A similar position was taken by the judges of the European Court of Human Rights in the case of Loizidou v Turkey[ii], the judges opined that remedial secession is possible in circumstances where the individuals of the state are discriminated against and have no or little political representation in their state.
Another crucial judgment on the same lines was passed by the Supreme Court of Canada[iii], where the court emphasized the possibility of external self-determination in three cases:
These proclamations convey the presence of external self-determination within
the overall right of self-determination. However, all the judgments confirmed
this right in the absence of internal self-determination.
In addition to court pronouncements on self-determination, the international community has also witnessed some secessionist movements. According to Crawford, Bangladesh is an apt example of the exercise of external self-determination as remedial secession. The secession of Bangladesh from Pakistan acted as the last possible remedy to the human rights violation and non-representation faced by the Bengali population in the Pakistani state.
This incident can support the claim that the right of remedial secession is a possible entitlement for oppressed individuals in the state.After the case of Bangladesh, another case widely accepted internationally was the unilateral secession of Kosovo[iv] from the state of Serbia. Unlike the case of Bangladesh, the court discussed and delivered a judgment on the secession of Kosovo. The court was posed with a very narrow question on the legality of Kosovo's secession, and it answered the question in affirmation.
The court did not comment on the remedial secession of Kosovo as it was not part of the question posed to it, but the position on remedial secession can be interpreted from pleadings of other states. Along the same line as the court, the majority[v] of states have accepted this secession and many reasoned it as remedial secession as there was no visible option available with the people of Kosovo to exercise their right to self-determination. [vi]
However, some states claimed the 'sui generis' character of Kosovo in the international community to accept the secession. However, few states did not explicitly discard the concept of remedial secession but argued its non-application on Kosovo.[vii] Moreover, the opinion of Judge Yusuf in the Advisory Opinion of ICJ on Kosovo also directed towards the link between internal and external self-determination, where non-compliance with internal right may lead to remedial secession.
The scheme of states in granting sui generis character to Kosovo is seen as restricting the movement of secession just to the situation of Kosovo. However, this restriction can be lifted bydisproving the sui generis status of Kosovo. Abkhazia, a state in the South Caucasus, and its struggle with Georgia convey strong similarity with the situation of Kosovo. Both these cases represent the equivalent intensity of human rights violations with prolonged denial of the right to internal self-determination.
Thus, the sui generis claim of restricting secession cannot be seen as realistic. Hence, after discarding the sui generis restriction, the wide acceptance of secession in Kosovo implies that if a situation similar to Kosovo arises internationally then the right of external self-determination can be employed.
However, this can still not be considered as complete support as there are many states not supporting the secession. Moreover, a comparison of Abkhazia and Kosovo also highlights the state practice, where the statesfeel obliged to support the secessionist movement because it would be politically beneficial to them. [viii]
After analyzing all the possible ways to support external self-determination, it can be deduced that there are provisions and declarations to support the presence of remedial secession in a textual context. However, the obligation of states to strengthen this principle is highly influenced by their political agenda.Hence there is some sort of partial obligation in place concerning the right of external self-determination in the international community.
Consequently, it can be asserted that UN Charters, covenants, declaration, and other acts endorse the presence of self-determination and support the proposition that the territorial integrity of states is limited to their compliance with the terms of internal self-determination.This implies that no state enjoys absolute territorial integrity without complying with the crucial right to internal self-determination.
However, in relation to the obligation on part of the state it can be claimed that with time, the partial support for remedial secession would convert to complete support. This interpretation of external self-determination is valuable as itdoes not completely negate the possibility of remedial secession but makes some ground for the development of the principle in the future.
Written By: Tanu Kankariya, 4th Year Law Student At Jindal Global Law
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