The Right of All Peoples to Self-Determination

Definition
Self-determination as a concept provides that the people of the colonially defined
territorial unit in question may freely determine their own political status. Such
determination may result in independence, integration with a neighbouring state, free
association with an independent state or any other status. What are the principle’s scope
and application? Stressed that it is the right of ‘all peoples’ in various declarations, but this
is determined within the accepted colonial territorial framework, as emphasised in
Quebec. Attempts to broaden the definition have been unsuccessful, as they may
disruptive of national unity and territorial integrity.

The Establishment of the legal right

This principle first appeared after WW1. Wasn’t included in the League of Nations
Covenant and not regarded originally as a legal principle, but did influence provisions for
minority protection and the mandate system. Little practice regarding the principle in
international law in the 10 years before WW2, though a number of treaties concluded by
the USSR noted the principle. However, in Aaland Islands, clearly accepted by both
International Commission of Jurists and the Committee of Rapporteurs dealing with the
situation that the principle was a political concept.

WW2 stimulated further consideration of the idea, and it was included in the UN Charter.
However, it is disputed whether the reference in there is enough to entail its recognition as
a binding right. Since 1945, though, practice can be seen as having ultimately established
the legal standing of the right in international law. This has been achieved through treaty
and custom and also, controversially, through being a general principal of law. All of
these routes are relevant, though.

Resolution 1514(XV) stressed that all people have the right to self-determination, and
inadequacy of political, social, economic or educational preparedness was not to serve as a
protest for delaying independence. Further, disrupting the national unity and territorial
integrity of a country were deemed incompatible with the UN Charter. This clearly
established the emphasis on the colonial context within the self-determination debate. In
1966, the GA adopted the International Covenants on Human Rights, and both of these
reference the right to self-determination within their first article. They came into force in
1976 and are binding on the relevant parties, but are also authoritative interpretations of
several human rights provisions in the UN Charter, including self-determination.

The UN has also dealt with self-determination in practice in a series of specific resolutions
in both the GA and the SC. This reinforces the conclusion that the principle has become a
right in international law. Also possibility that this is now a rule of customary
international law, but finding opinio juris is not easy, requires careful assessment.

Judicial discussion on the issue is rare, and is basically limited to the decisions in Namibia
and Western Sahara. However, we also have the case of East Timor (Portugal v
Australia), when the court declared that that Portugal’s assertion that the right of peoples
to self-determination has an erga omnes character is irreproachable. However, the absence
of Indonesia from the litigation meant that the court could not exercise its jurisdiction in
that case. This was advanced in the decision in Quebec, when the Court declared that the
principle of self-determination had acquired a status beyond ‘convention’ and was now a
general principle of international law.