The Concept of Self-Determination in International Law - Essay Example

 The question whether self-determination is given prominence internationally has been through an ideal or a political goal occasionally pursued by government in the course of a longer or shorter capacity of history of human beings. ‘The substantial rank of a rule of international law is complicated by the very special nature of objective –subjective content of the rule’1 In terms of subjectivity those who gain are the constituencies of states. In terms of objectivity it is not just the question of the enjoyment and exercise by individuals or groups of any political, civil, socio-cultural or economic rights in the community where they belong. It is in terms of whether the human element within several states is entitled to choices that may lead to severing their destiny from that of a given state and ultimately disrupt the state’s body politic. (Coicaud, 2001, p.53). The uniqueness of self-determination makes the existence of a corresponding international rule whether contractual or general far more problematic. This also varies in degree according to whether its conceived as a right conferred by international law or as a right which states an internationally obliged to ensure within their legal systems self determination as seen as a freedom within the internal logic of declaration, human rights and fundamental freedom which every state would be bound under general law, charter or other instruments to ensure it to persons or groups within their legal system, a matter de lege ferenda. (Karen, 2002, p.29). Exceptions are allowed in given arrangements of conventional law. Personality of individuals is not believed in international law. Thus the existing international law is even further from ensuring a right of self-determination as a matter of direct right under international law itself. International law and international politics comprise the rules and reality of the international system so that it makes sense to study one without the other. Scholars decide to separate the so called `real politiks from the utopian idealism on the emphasis that the failure of League of Nations and the rise of fascism were clear demonstrations of the ineffectiveness and irrelevance of international law and institutions’2. This described reality was as anarchic international law system in which the state was the primary actor and its interaction with other states was in a context of a competitive war of all against all motivated by national self interest and a thirst for power. (Karen, 2002, p.42). The tribunal created was the result of a unique convergence of legal, political and diplomatic circumstances. The international criminal tribunal which was established for former Yugoslavia was the result of a political decision to involve the legal power and authority of the Security Council to reinforce another set of international law, those regulating the use of force by creating a judicial institution with a political mandate. The mandate was the restoration and the maintenance of international peace and security and was to be achieved through prosecution of individuals for serious violations of international humanitarian law. (ibid, p. 45). The process of establishing an international tribunal was difficult and expensive. The practical difficulties were compounded by the complex political and diplomatic environment which was established. Also the fact that there was very little precedent to draw on the secretary general recognized the importance of ensuring that the tribunal apply rules of international humanitarian law that are beyond any doubt part of customary law so that the problem of adherence of some but not all states to specific mandate and its competence was restricted according to terms of subject matter temporal and territorial jurisdiction. (Coicaud, 2001, p.77). The judges took wider legal and political context in the tribunals and its wider powers. This created a tendency to interpret the law as a means of contributing to the maintenance of international peace and security rather than case by case basis. ‘In an era of rapid and dramatic international political change it may be difficult to accommodate interests within a frame of international law’3. This varying interest may be due to territorial change that impacts on international community and the states concerned. In situations of change of sovereignty a part from human rights generally, the laws relating to territorialism are considered. This embraces the rules governing the acquisition of title and the principles of stability of boundaries and territorial integrity. The problem is raised of the legal basis of the transformation of internal or administrative border into international boundaries upon independence in the light of territorial human rights. (ibid, p.81). Essential focus lies on the instant in time or the bridge of time at which or during which a new political entity emerges upon the international scene. The present purpose is the basis of legitimating of the new entity in law and not in politics or morality for these raise different issues. The effectiveness of international law is based on the choice between self-determination or other possible variant of human rights and territorialism as the founding principles of governing the positioning of boundaries in the case of newly emerging states. The question on the basis of legitimacy of a new state in international law is different from the establishment of its boundaries, in reality there is a close relationship between the two. This is particularly the case of newly independent states emerging out of the existing states where there were established administrative borders. (Richard&Edward, 1985, p.91). Self-determination concentrates upon the ‘relevant people whose pattern of habitation will dictate the appropriate international boundaries’4. Territorialism on the other hand puts emphasis upon the fact that the existing borders do whatever provenance will continue by virtue of changing their status from internal to international lines. In the period between world wars self-determination was present but the practice reveals that is concerned rather a political principle than a right. The unclear principle of self-determination developed through the decolonization process into full blown right and this is because of the moral and political imperatives of the process. The international court of justice acknowledges in its advisory opinion on the Western Sahara case (1975) that the right to self-determination has the status of customary law. (ibid, p.95). It can be argued that it would concern a role of jus cogens international law court of justice in the East timer case (Portugal v Australia) In that case the ‘right of people’s to self determination as one of the essential principles of contemporary international law’1 and postulates that it has ‘erga omnes’ character. Majority of scholars recognize the value of customary law and its value of the right to self-determination .There are authors who still argue that self determination would not be a legal but merely a moral principle. (Coicaud, 2001, p.89). Taking a look at the treatment of the Kurdish minority it was inter alia the reason for which the European Parliament questioned Turkey’s application for membership. Another striking commitment regarding minorities was taken after the collapse of the former Yugoslavia. ‘The then twelve member states convened and international peace conference in The Hague where they established the so called Badinter’5 commission which was responsible for delivering expert opinions on legal questions arising. Quebec supporters of secession of the Cree both present arguments based on the right to self determination. The principles of self determination evolved at the international level therefore lack a precise definition in international law governments and legal scholars give different positions on the issue. (Karen, 2002, p.53). The arguments put forth by the different parties raise questions about rights to self determination, the conditions for secession and rights to territory that are based on international law. ‘This deals with the concepts of self determination, secession and territorial integrity both widely applied and applied to aboriginal people’5 .Since international law is complex and it is involving in nature it is evident that different interpretations can be presented.(ibid, p.56). The concept of self determination seem to show the idea of democracy according to which the people are presumed to be best qualified to govern themselves .International law seem to recognize the right to national self determination unreservedly. The appeal of national self determination is however not restricted to democrats and has deeper roots in human nature. Human beings live in groups and all persistent groups share a common culture. Commitment to a common culture entails an inclination to resist the imposition of alien cultures, although groups respond in various ways to contact with the subjection to other cultures. The value of self determination rests on the belief that individuals cannot live in safety and dignity if their lives are controlled by others. Therefore a set of rights to protect their freedom should be given so as to choose their way of life and their capacity to live it. Such rights are protested by their governments which are accountable to their people and subject to the rule of law .This makes the concept of self-determination less wide in practice than it may appear at a glance. (Karen, 2002, p.62). BIBLIOGRAPHY Edward L, Richard M.1985, Intrinsic motivation and self determination in human Behavior, Taylor & Francis. Jean-marc, C.2002, The legitimacy of international organizations, UN University press Karen, K 2002, Diversity and self-determination in international law, Cambridge University press Read More