Academic journal article Washington and Lee Law Review

The Right of Self-Determination in the Twenty-First Century

Academic journal article Washington and Lee Law Review

The Right of Self-Determination in the Twenty-First Century

Article excerpt

I. Introduction

One can address the right of self-determination from a number of different perspectives. For example, the exercise of this right in the past decade has had a dramatic effect on theories of international organizations, the role of force, and conflict resolution. Claims of self-determination led in part to the destruction of the former Yugoslavia, and the specter of secessionist movements has magnified the attention given to the rights of minorities and indigenous peoples.

In the following discussion, I will link self-determination to human rights in two different ways. First, I explore self-determination as a human right, addressing issues of content and definition. Second, I discuss the impact of self-determination claims on other human rights.

II. Self-Determination as a Human Right

Self-determination is a human right. Although there are many hortatory references to self-determination in General Assembly resolutions and elsewhere, the only legally binding documents in which the right of self-determination is proclaimed are the two international covenants.' The first paragraph of common article 1 states: "All peoples 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."2

Although the quoted language fails to answer several questions, at least some aspects ofthe right have become clear through subsequent reflection and interpretation. The first clarification is that self-determination is a right that belongs to collectivities known as "peoples," not to individuals. Thus, the Human Rights Committee has consistently made clear that claims that the right of self-determination has been violated cannot be raised under the First Optional Protocol, which applies only to individuals.3 I think that the Committee is probably wrong to exclude self-determination claims automatically from the scope of individual complaints, but its jurisprudence has been consistent on this point.

It also is clear that self-determination is a right that belongs to peoples, but not to minorities.4 This truism may only shift the debate to definitions and semantics, but the distinction between minorities and peoples remains an article of faith for states and international bodies concerned with monitoring human rights.

There are numerous problems in defining both "peoples" and what they are entitled to "determine." Without reviewing the entire history of selfdetermination, let me just outline how the concept has passed through at least two distinct phases and is now entering a third one.5 Initially, meaning perhaps the middle of the nineteenth century when the phrase "self-determination" came into common usage, self-determination was not a right but was a principle. It was a principle that first allowed disparate people who spoke the same language, such as Germans and Italians, to group themselves together and form a new state. This "grouping," of course, did not occur without coercion and, in some cases, a good deal of violence. A bit later, at the end of World WarI, the principle of self-determination provided a guiding principle orrationale for dismembering the defeated Austro-Hungarian and Ottoman empires.

As a political principle, but not a right under international law, selfdetermination in this period was subject to many limitations. The most obvious limitation, consistent with realpolitik concerns, was that the successful exercise of self-determination required the support of the victorious powers if there had been a war or the support of major powers even absent a war. Philosophically, "external" self-determination or independence would be rejected if the resulting state would not be economically and politically viable. Self-serving political restrictions made the principle of self-determination applicable to Europe, for instance, but not to colonial empires; thus to Poland, but not to Ireland. …

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