Wednesday, February 15, 2006

Taking Peoples' Right to Self-Determination Seriously 2

Latest input on right to self-determination of peoples on the Transatlantic Assemblyweblog alas does not bring our discussion further since you more or less submit the arguments which were already given. Nevertheless, you may know that International Court of Justice in the West-Saharan Advisory Opinion defined self-determination as the need to pay regard to the freely expressed will of peoples. The same Court recognized it in South West Africa cases as one of the essential principles of international law. Later, in East Timor case ICJ once again confirmed the right of peoples to self-determination

You basically do not take in account the case law of ICJ and basic principles of international human rights law. Many scholars (Cassesse, Alfredsson, Schenin, Koskeniemi, Klabbers) have written on the topic of internal and external self-determination. My previous contributions argued that there is right to external self-determination everywhere basic human rights have been blatantly violated. I would accept if some would argue that this not the state of international law at this point of time since international law nowadys might only recognize the exercise of right to self-determination only in the context of decolonization (as in the case of Greenland and Faore Islands) and non-self-governing territories. But sure one may argue that international human rights law is developing towards greater accountability for human rights violations in nation states. Certainly international law and international community has in last decade showed more "humane face" as in the case of humanitarian intervention in Kosovo. The right of colonized peoples to self-determination is confirmed in the consistent practice of States and international organizations, including case-law ans is therefore beyond any doubt. However, other possible self-determination scenarios amy be considered, including liberation of occupied territories, the separation from a State with a non-representative government, and peoples who were subjected to gross human rights violations.

1 Comments:

At 4:42 PM, Blogger Fozia Lone said...

Dear Jernej, I generally agree with what you have mentioned especially your argument that other circumstances in which right to self-determination can be used must be developed, is persuasive. However, as has been mentioned that violation of human rights gives the right to exercise external self-determination is equally correct. In Bangladesh case it was the fact of repression rather then the fact that Bengalis were linguistically, ethnically and culturally different from Pakistanis, which ultimately vindicated the creation of Bangladesh as an independent state.

On the other hand Srdjan, comment that right to self-determination is disappearing from the vocabulary of the major political actors involved in the Kosovo crisis seems to be sound. However, Srdjan seems to ignore the fact that this notion of right to self-determination still exists in international law although is accompanied by the confusion as to its beneficiaries. Politicians, especially of countries who are caught in this identity crisis, generate a lot of this mystification. It is because politicians usually take contextual approach that suits them while discussing this concept and forget about its legal side. Additional problem has been caused by the ineffective drive to identify ‘people’ in international law, particularly in the post-colonial period. Further uncertainty crops up when the concept of right to self-determination is discussed in relation with other equally unclear notions like territorial integrity, derogation, and secession. This right has also suffered by the bewildering state practice, contradictory resolutions from international organisation, treaty laws that are poorly drafted without defining the central entity- ‘people’ and by the uncommunicative views of the courts.

While inquiring into the past parameters of self-determination it may appears that self-determination is only for decolonised people or non-self-governing states as pointed by Jernej. But how can we ignore the up and coming crises like Kosovo, Kashmir and Palestine, which need immediate indulgence. We cannot simply consent to let people suffer just because there is no international law that can be applied on them. Law has to change with the shifting time and same applies on the right to self-determination. Although there is no shortage of literature on various dimensions of self-determination but surprisingly enough there is the bizarre deficiency of wide-ranging legal narrative of this concept. This vacuum can be filled if this concept will be amending or clarified within international law otherwise it can soon be the ‘dead letter of past’. Therefore the time has arrived to make efforts to rotate this concept in a direction within international law so that International peace can be protected.

Miss Fozia Lone
Research Student,
University of Aberdeen,
f.lone@abdn.ac.uk

 

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