The Concept of Self Determination in International Law - Coursework Example

Following the First World War the doctrine of self-determination was developed to promote world order After World War II the principle was codifiedby the United Nations Charter Article 1 which required all member states: “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”2 The principle of self-determination was further fortified by the Covenants on Civil and Political Rights and on Economic Social and Cultural Rights 1966, Article 1 which makes the following provision: “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.”3 Academics argue however, that while the principle of self-determination is an appropriate democratic concept it is not altogether certain that it can promote world order. There are residual problems that might impact on domestic stability or stability with neighboring territories. As a result the concept of self determination in international law is, in practice, less wide-ranging than might be supposed. The following discussion demonstrates the validity of this observation. Helen Quane argues that the right to self-determination implicitly validates the right of certain ethnic groups to reject territorial regimes.4 The theory purportedly protects the rights of minority groups and has the potential to create civil unrest with the result that world order is compromised. In support of her position Qane cites several incidents of turmoil that resulted from the right of self-determination. In Kosovo and the Balkans, for example the theory of external self-determination led to conflict and bloodshed.5 Quane argues therefore that principles of self-determination in international law should only be applicable when questions concerning the abuse of human rights arise.6 Malcolm Shaw provides a startling yet realistic possibility created by the doctrine of self-determination. Since the UN Charter recognizes the right of ethnic groups to self-determination there are myriad problems for internal conflict. Shaw points out that there are competing and diverse interest among different ethnic groups in a community and goes on to ask: “Precisely which groups would be entitled in such situations to claim a share of the territory? The possibilities range from large indigenous groups and ethnic, religious and language groups to cultural or political groups. How would one tackle in such circumstances the possible claims of groups within groups, such as for the sake of argument, religious groups within language groups in Canada?....If each group or set or individuals was able to make claims in this area, questions would arise as to how to rank such claims between such groups.”7 Johhan, D. Van Der Vyer argues however that there is a distinction to be drawn between oppression of an ethnic group and national sovereignty under the principle of self-determination.8 Van Der Vyer submits that the intent of the principle of self-determination is not for the redefinition of internal borders in a manner consistent with diversity within a nation. Instead it seeks to adhere to the will of the “general support of the political society.”9 While the theory of self-determination recognizes the rights and status of diverse groups within a particular territory, there is no automatic sovereign recognition of particular groups as sovereign nations for the purposes of International Law.10 Van Der Vyer uses the Province of Quebec as an example. While Quebec was recognized as a separate province within Canada, it is for all intents and purposes not a sovereign nations under the doctrine of self-determination although the very doctrine made it possible for Quebec to achieve its status as a province.11 Van Der Vyer adamantly maintains that the theory of self-determination arose in response to territorial conflicts following the two World Wars. The obvious intent was to reestablish borders and recognize the sovereignty of nations. In other words: “International law does not sanction secession as the answer to the plight of a repressed minority.”12 Hillgruber argues that the principle of self-determination is caught at cross-roads between the recognition of new states and the status of groups that have broken away from internal rule. Automatic application of sovereignty under the doctrine of self-determination is not practical.13 The Bosnia-Herzegovina conflict is a testament to this theory. The theory of self-determination prevented intervention. Inherent in this position is the fact that isolating and “internationally ostracizing a regime” can have unpleasant consequences. Hillgruber identifies these consequences as follows: “the entity is deprived of rights under international law… it also has the undesirable consequence that it cannot be called on to fulfill international obligations and responsibilities…”14 Hillgruber submits that there is a general tendency on the part of historians and academics alike to over-estimate the intent and spirit of the doctrine of self-determination. In order to gain a full understanding of how the doctrine is applied and to avoid estimating unhappy consequences for its application one needs only to look at the purpose for its implementation and the circumstances giving rise to its development. Hillgruber points out that the theory of self-determination arose out of international conflict and the forced occupation of sovereign nations. The doctrine of self-determination only arose to restore these nations to their former status within the scope and range of international law.15 The recent breakdown of the USSR and Czechoslovakia are examples of the operation of the doctrine of self-determination. The breakdown of these territorial regimes did not threaten world peace and are manifestations of the practical intent of the doctrine of self-determination. The resulting sovereign states were manifestations of the legitimate aim of the doctrine of self-determination and the international community had no difficulty with the integration of these states into the established world order. Hillgruber goes onto to explain: “Recognition of the former Soviet republic therefore gives no reason to assume that the community of states has recognized a right of secession derived from the right of self-determination of peoples in any context other than the colonial one.”16 Be that as it may the Badinter Arbitration Committee raises new issues and restates the concerns expressed by Helen Quane. The Badinter Arbitration Committee was set up in 1991 by the European Community in response to the conflict in Yugoslavia.17 For the purpose of this discussion the relevant question for determination by the Badinter Arbitration Committee was the right of the Serbian population to self-determination within Croatia and Bosnia-Herzegovina. The Badinter Arbitration Committee in broadening the scope and range of the United Nations’ Charter on the right to self-determination maintained that the Charter made no effort to define the doctrine and the only reasonable conclusion was that people within a state had aright to be recognized and bestowed with: “all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their national identity”.18 . Ideally the doctrine of self-determination should function peacefully with this understanding. The ability to function peacefully under the auspice of western democratic principles was evidenced in the Quebec situation in 1995. The question of self-determination was left to the citizens of Quebec presented in a referendum. The people of Quebec were ultimately charged with the question of self-determination. It was the people of Quebec who by a narrow majority vetoed the idea of secession from Canada.19 It was ultimately the doctrine of self-determination that facilitated this free choice. A review of the literature as discussed above proves that the application of the doctrine of self-determination less wide-ranging than might be supposed. In a typical case secession is not borne out of an internal right to secession. It gives rise to internal political recognition. Only in circumstances where a majority of the people within a territory agrees to secession can the doctrine of self-determination be applied as a tool for the reconstruction of internal borders. Works Cited Covenants on Civil and Political Rights and on Economic Social and Cultural Rights 1966 Hillgruber, Christopher. “The Admission of New States to the International Community”. European Journal of International Law 9 (1998) No3 Available at: http://www.ejil.org/journal/Vol9/No3/090491.pdf Retrieved November 10, 2007 Kapitan, Tomis.(2006) “Self-determination International Order.” The Monist, (April 2006) ‘Parliament of Canada. Parliamentary Information and Research Service ‘Aboriginal Peoples and the 1995 Quebec Referendum: A survey of the issues’ Available at: http://www.parl.gc.ca/information/library/PRBpubs/bp412-e.htm Retrieved November 10, 2007 Pellet, Alain. “The Opinions of the Badinter Arbitration Committee: A second breath for the self determination of peoples.” European Journal of International Law 3 (1991) No1 available at http://www.ejil.org/journal/Vol3/No1/art12.html Retrieved November 10, 2007 Quane, Helen. ‘The United Nations and the Evolving Right to Self-Determination’ International and Comparative Law Quarterly 47 (1998) p539 Shaw, Malcolm. “Peoples, Territories and Boundaries.” European Journey of International Law 8 (1997) No3 p478 United Nations Charter Van Der Vyer, Johan, D. “Self-Determination of the Peoples of Quebec Under International Law.” Journal of Transnational Law and Policy Vol 10.1, (Fall, 2000) Available at: http://209.85.165.104/search?q=cache:WVF_afoYF2kJ:www.law.fsu.edu/Journals/transnational/vol101/vyver.pdf+%E2%80%98Self-Determination+of+the+Poeples+of+Quebec+Under+International+Law%E2%80%99+by+Johan+D.+van+der+Vyver&hl=en&ct=clnk&cd=1&gl=us Retrieved November 10, 2007 Read More