The stability of the legal doctrine for the right of self-determination rests upon two types of claims by the people. First, the right of external self-determination means the right of a nation’s entities (e.g., states, provinces, etc.) to exercise sovereign independence free from external colonialism or, through secession from an undesired union, to form a different union based on shared identities defined by the people. Second, the right of internal self- determination means the freedom of the nation to organise its internal political and economic affairs and social and cultural rights; therefore, enjoyment of the right of determination is limited to those countries possessing full sovereignty.70
However, the objective of diversity in international conventions and instruments on the right of self-determination and the narrow interpretation of this right in Articles 2 and 55 of the UN Charter have contributed to controversy over who enjoys the right to self-determination.
69Helen Quane, The United Nations and the Evolving Right to Self-Determination, International and Comparative Law Quarterly (1998) Vol. 47,pp. 537-572.
70Simone van den Driest, 'Pro-Democratic' Intervention and the Right to Political Self-Determination: The Case
That is, is such a right due to all peoples, to the colony of a dominant power, or to the minorities in a country?
This question raises others such as: Does international law set a standard for the right and legitimacy of the claim of the right to self-determination? Until recently, this position was rejected, and international law was considered to be the province of the state which, as a representative unit, was active and influential in the international arena and thus denied any claims against the popular political unity and territory of any countries. However, the emergence of laws and conventions on human rights has changed dramatically this reality, with the individual and the group gradually taking on the role of the primary rational and influential actors in the international arena. This change has supported the formal definition of the right of self-determination.
In the same context, we find a lack of consensus on the legal value in the concept of self- determination. In the various debates about the concept in the writings of David Rick, Cassese and Buchanan, the absolute value of self-determination has not been specified as an absolute value, except in discussions of colonial peoples. This deficiency becomes more evident when considering instances in which groups that secede from an existing national entity lose the absolute value of the right to self-determination. For example, in the case of Kosovo, the contending parties resorted to armed conflict, contrary to the main objective of the UN Charter to achieve international peace and security and the modern intellectual trend to reject violence and murder.
Moreover, the right to self-determination through secession has conflicted with many legal principles settled in international jurisprudence and conventions. These principles have received great support and been highly documented in the literature on international legal frameworks. Among these, the most important is the principle of territorial integrity.71 This principle seeks to preserve the state’s borders within a framework of realism and legal forms against any threat to break apart a country or changes the regional borders of a state. This principle has been enshrined in international law in order to maintain the sovereignty of the country and maintain the prohibition on the use of armed force in international relations.72
71Ralph Wilde, Self-determination, secession, and dispute settlement after the Kosovo Advisory Opinion, Leiden Journal of International Law (2010) Vol. 24, pp. 149-154.
72Karen Knop, Diversity and Self-Determination in International Law, Cambridge University Press, 2002, pp. 74-
Many international conventions and treaties reference this principle. For example, Article 1 (1) of the UN Charter aims to maintain security and international peace by eliminating any reasons that could threaten the peace. As well, Article 2 (4) prohibits threats or the use of force against the territorial integrity or political independence of any state or any other action inconsistent with the purposes of the UN in international relations. Finally, Article 33 calls for peacefully resolving any threat to international peace and security.73
Although the doctrine and legality of the principle of territorial integrity and of the right of self-determination in the event of secession have been analysed widely, the principle of Uti possidetis more severely restricts the right to self-determination.74 This principle is often invoked by those who seek to resolve the historical legacy of colonialism by prohibiting any changes to the borders of states once independent of colonial power. This principle can serve in an attempt to find a smooth path in the jurisprudence of international law to prevent border disputes,75 especially in formerly colonial areas of Africa, Asia and South America. This principle became one of the important criteria in customary international law adopted by the peoples of Latin America who won their independence from Spanish colonialism in the early nineteenth century. This principle has worked to preserve the national borders inherited from colonisation by independent countries. This result is only logical, considering that all the lands of South America are claimed, and there is no free land that does not belong to a country.76
An important legal opinion from the ICJ mentions this principle when considering the case against Burkina Faso and Mali.77 Specifically, this finding states that ‘the essence of the
principle lies in its primary aim of securing respect for the territorial boundaries at the moment when independence is achieved. Such territorial boundaries might be no more than delimitations between different administrative divisions or colonies all subject to the same sovereign’. Therefore, the managerial boundaries from colonisation became the national
73UN Charter (1945).
74 Patrick Muwunguzi, Reconciling Uti Possidetis and Self-Determination: The Concept of Interstate Boundary
Disputes, King’s College London, 2007.
75John W Donaldson, Perceptions of legal and geographic clarity: Defining international land boundaries in Africa, Chapter 1; Essay in African Land Law , Pretoria University Law Press, 2011, pp. 1-24.
76Jonathan D. Rechner, From the OAU to the AU: A Normative Shift with Implications for Peacekeeping and
Conflict Management, or Just a Name Change? Vanderbilt Journal of Transnational Law (2006) Volume 39.
77John W Donaldson, Perceptions of legal and geographic clarity: Defining international land boundaries in Africa, Chapter 1; Essay in African Land Law, Pretoria University Law Press, 2011, pp 1-24
boundaries of the independent state.78 In this case, John W. Donaldson says, ‘the International Court of Justice admitted that Uti possidetis could be in tension with another general principle of international law, that of self-determination. It was adamant that Uti possidetis provided the most stable territorial platform for the peaceful succession of sovereignty’.79
In this context, the event of secession based on a people’s claim to self-determination has played a pivotal role in the controversy about the standard doctrinal application of the people’s claim to self-determination. Paul Clark has said that, in such cases of secession as those of Kosovo and East Timor, diplomats avoid using the term ‘self-determination’, even when the status quo has been imposed in order to avoid conflict and to change the focus of the case from the popular claim of self-determination to violations of human rights.80
Although diverse international instruments and conventions urge the international community to support the right of self-determination in general, they lack special international conventions to implement the content of this right.81 Additionally, many of these instruments formulate the legal formulas dealing with this right as guidelines, not mandatory obligations. This lack is clearly the result of legal political discussions at the UN and other organisations and of states’ practice of states regarding this right. For instance, Russia supports the right of self-determination in Abkhazia82but not in Syria.83This situation stems from the negative use of this right in most legal instruments and the lack of an international document that applies to all cases and clearly lays out rules for the implementation of this right. The international community also lacks mechanisms to support the right of peoples to self-determination. Accordingly, the International law introduced this right but did not provide any broader interpretations clarifying the general meaning of the right’s content. As a result of this ambiguity, conflicts involving the right of self-determination have not been avoided or
78 Patrick Muwunguzi, Reconciling Uti Possidetis and Self-Determination: The Concept of Interstate Boundary
Disputes, King’s College London 2007.
79John W Donaldson, Perceptions of legal and geographic clarity: Defining international land boundaries in Africa, Chapter 1; Essay in African Land Law, Pretoria University Law Press, 2011, pp. 1-24.
80Paul A. Clark, Taking Self-determination Seriously: When Can Cultural and Political Minorities Control Their
Own Fate? Chicago Journal of International Law (2005) Vol. 5, No.3 .
81Helen Quane, The United Nations and the Evolving Right to Self-Determination, International and Comparative Law Quarterly (1998) Vol. 47, pp. 537-572.
82David Raic, Statehood and the law of self-determination (Martinus Nijhoff Publishers, 2002) p. 196.
83Security Council ‘Meeting No. 6711, Russia, China Use the Veto to block a UN Security Council Resolution on
the Syria Situation’ (4 February 2012) <http://daccess-dds-
reduced but, to the contrary, have been more intense. Moreover, international disputes regarding the right of self-determination have been subject to the varying interpretations of the jurisprudence of the international law and of the states involved according to their interests.