The right of political self-determination is among the most important that has been developed in modern international law and legal discourse by both scholars of international law, such as Michla Pomerance and David Rick, and international instruments, such as Article 1 of the International Covenant on Civil and Political Rights and the Eighth Principle of the Helsinki Agreement. Democracy has become an effective means to ensure the exercise of the right to political self-determination. It can be said that, if the right of political self-determination is an important means to achieve popular political participation, then democracy is the ideal legal method to achieve that goal.
The right of self-determination did not cease to be relevant at a certain historical point, such as the end of colonisation; instead, it has evolved with contemporary human thought, serving as a legal justification that people can use in their efforts to end authoritarian governments. Such governments are those that do not seek to achieve social justice but rather use dictatorial behaviour to run the country and commit crimes against humanity to ensure the continuation
175Milena Sterio, The Right to Self-determination Under International Law: "selfistans", Secession and the Rule
of their rule. Thus, the emergence of popular demands within those regimes subjects the people who are claiming this right to real risks, because those regimes will not accept this claim and they will use any and all means to suppress and extinguish the efforts of the people to claim their right to self-determination. This matter asserts that this right is permanently linked with international promotion and intervention, but that approach collides with the principle of non-interference.
Hence, a conflict exists between the right of political self-determination and the principle of non-intervention, and that conflict requires a comprehensive analysis of the provisions of international law that support both self-determination and non-intervention. It is also important to examine the international practices related to this issue, in particular the international interventions that promote the right of political self-determination.
However, before that analysis can be undertaken it is necessary to ensure that the right to political self-determination does not violate the legal concept of statehood or the criteria of statehood in international law. Realising the right to political self-determination certainly leads to a change in the form of statehood. This change must be consistent with international law, particularly the international instruments and conventions that govern the emergence of the state and international recognition of the state after internal or external changes have occurred in regard to the government. The second chapter of this dissertation examines the impact that the right of self-determination has on the concept of the state in international law. It attempts to answer the following questions: Are changes to the form of statehood inconsistent with international law? If so, do they stand in the way of the current trend in contemporary international law and the international community to embrace and participate in the expansion of the right of self-determination?
Chapter Two
The right of political self-determination, statehood and recognition in international contemporary law
2.1 Introduction
Contemporary legal literature holds that a close link exists between the general right to self- determination and the legal principles and concepts that address state-building or rebuilding.176 Consequently, this right and these legal concepts reinforce one another; the right of self-determination cannot be achieved without fundamental changes to the state, whether to its external or internal form.177 However, a conflict arises with the principles of international law that deal with each issue separately.178For example, the principles of state
sovereignty and territorial integrity have been associated with the concept of statehood,179 while the right of self-determination has been linked to contemporary intellectual thought’s concern with promoting human rights, human dignity and social justice.180 International organisations consistently pursue these aims in various ways. 181
The right of political self-determination becomes more prominent in the rebuilding of the state when people seek to achieve self-determination within an already established state.182 Rebuilding state institutions and changing the governance system can lead to a significant transformation in the internal form of the state. Therefore, there is a strong link between the
176David Raic, Statehood and the Law of Self-Determination, The Hague ; New York : Kluwer Law International,
2002, pp 1-3
177Secession played a pivotal role in forming and strengthening the interdependence between statehood and
the right of self-determination in international law. This point becomes clear when looking at the legal literature on statehood, which requires addressing the subject of secession. We do have to state that the legal literature is sophisticated and constantly being updated to be consistent and in harmony with the prevailing legal thought and international practices of modern treaties.
178Jure Vidmar, Democratic Statehood in International Law : The Emergence of New States in Post-Cold War Practice ,Hart Publishing Limited, 2013,pp 10-38
179Obiora Chinedu Okafor, Re-Defining Legitimate Statehood: International Law and State Fragmentation in Africa, Martinus Nijhoff Publishers, 2000, p71
180Srdjan Cvijic, Self-determination as a Challenge to the Legitimacy of Humanitarian Interventions: The Case
of Kosovo, The German Law Journal (2007) Vol. 08, No. 1. pp. 57-81.
181Seth G. Jones , James Dobbins ,The UN's Record in Nation Building, Chicago Journal of International Law,
(2006) Vol. 6, No. 2.
182Milena Sterio, The Case of Kosovo: Self-Determination, Secession, and Statehood Under International Law, Proceedings of the Annual Meeting (American Society of International Law 2010) Vol. 104, pp. 361 – 365.
right of political self-determination and the legal principles that address the internal form of the state, such as absolute sovereignty. This does not mean that the external form of the state is irrelevant to this matter but, rather, that internal changes in the state affect its external form. From this relationship emerge the legal criteria that settled the jurisprudence on international state-building and rebuilding and established that the state is accepted as a normal party among the parties involved in international law.183
Contemporary and traditional legal literature has been concerned with the sovereignty of the state for a variety of reasons, most importantly the maintenance of international peace and security.184 As well, international law aims to achieve and make substantial the aspirations and wishes of the people. Although the contemporary erosion of state sovereignty caused by globalisation and trade agreements should not be overlooked, the most important causes of changes in the concept of sovereignty are the development of human rights and the international responsibility to preserve these rights within a legal model.185
Thus, the formal criteria for the right of self-determination are inconsistent with concepts inherent in international law regarding statehood and state sovereignty. These criteria also demonstrate a lack of connection to the entity from they originated geographically and politically.186 Thus, a fundamental question arises: Do the legal concept of statehood and the maintenance of state sovereignty oppose the present trend in the international community and contemporary international law to embrace expand and embrace the right of self- determination?
This chapter attempts to answer this fundamental question by studying the legal concepts and principles involved in the emergence in international law of statehood and state rebuilding and the impact on the rights of self-determination, especially the right to political self- determination. This chapter begins by reviewing the concept of statehood in international law. Next, this chapter discusses state-building and the criteria for the emergence of the state
183Dealing with diversity in international law: Self-determination and statehood, The International Journal of Human Rights (2005) Vol. 9, No. 4, pp. 539 – 550.
184Heike Krieger, The Kosovo Conflict and International Law: An Analytical Documentation 1974- 1999,Cambridge University Press, 2001, pp 369-371
185J. L. Holzgrefe, Robert O. Keohane, Humanitarian Intervention: Ethical, Legal and Political Dilemmas,
Cambridge University Press, 2003, p. 6. Also see Helen Stacy, Human Rights for the 21st Century: Sovereignty,
Civil Society, Culture, Stanford University Press, 2009, p. 32.
186Duncan French, Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law, Cambridge University Press, 2013, p352
established in law, in particular the Montevideo Convention. Then, the focus shifts to the recognition of statehood and the most prominent classical and modern legal theories of international recognition. Finally, this chapter concentrates on popular demands for the right to self-determination and their impact on the political and legal concepts concerning rebuilding the state internally.