Self determination is a more important driving force in the international community than the ‘sanctity’ of international borders?
Antonio Cassese, in Self-determination of peoples: A legal reappraisal (University of Cambridge, 1995) writes, “Self-determination has been one of the most important driving forces in the new international community.” Indeed during the 1990's we could see the renewed expansion of the international community with the breakup of the Soviet Union and Yugoslavia, East Timor managed to obtain independance from Indonesia in 1999. Yet many sucessionist attempts, such as Western Sahara attempting to assert independance from Morroco run up against states assertion that soverignty and the sanctity of borders are paramount.
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United Nations Charter
The United Nations Charter states that one of the purposes of the UN is: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”.
Charter of the United Nations Chapter 1, Article 1, http://www.un.org/aboutun/charter/
The United Nations hedges its bets.
One of the main principles of international relations is sovereignty, this conflicts with ideas of self determination. The United Nations therefore has statements supporting both sides as “Any attempt aimed at the partial or total disruption of national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”
Article 6, General Assembly Resolution 1514, 14th December 1960, http://www.un.org/documents/ga/res/15/ares15.htm
Potential for universality
“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.”
Article 1.1 of the International Human Rights Covenant
If self determination is considered universal this could have an immense impact on the International Community; there are over 350 potential nations in India alone.
The 1970 Declaration on Friendly Relations accepted this only in the colonial context, providing only for internal self determination, in effect full autonomy in any other context.
No state will accept the legality of succession movements and as the state is the primary framer of international law it is unlikely that self determination will ever be universally recognised.
Courts have ruled against self determination
The supreme court of Canada ruled in relation to Quebec “It is clear that international law does not specifically grant component parts of sovereign states the legal right to secede unilaterally from their "parent" state.”
Reference re Secession of Quebec, August 20 1998 http://scc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html p65
The supreme court however left the possibility of external self determination open “where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government”.
Reference re Secession of Quebec, August 20 1998 http://scc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html p76
Uti possidetis is that “boundaries established and existing at the moment of independence cannot be altered unless the relevant parties consent to change.”
Malcolm N. Shaw, International Law, 4th edition, (Cambridge University Press, Cambridge, 1997), p.216.
“Its obvious purpose is to prevent the independence and stability of new states being endangered”.
ICJ Frontier dispute (Burkina Faso/Republic of Mali) Judgement of 22nd December 1986, http://www.icj-cij.org/docket/index.php?p1=3&p2=3&code=hvm&case=69&k=b3 p565
Where uti possidetis conflicts with national self determination it sacrifices long term order for short term stability, boundaries should not be so rigid as they are ahistorical constructs that are contributing to the failure of African states.
Joshua Castellino, International Law and Self-Determination: The Interplay of the Politics of Territorial Possession with Formulations of Post-Colonial ‘National’ Identity, (Martinus Nijhoff, The Hague, 2000)
Self determination has never occured
True self determination of peoples has never occurred, even in the colonial context the states there was no self determination of peoples as the boundaries taken were the administrative boundaries that the colonial powers had set up that took no account of the identities of peoples they ran through.
Indeed it is very unlikely to occur, peoples are so intermixed that drawing any boundery will divide communities that identify themselves as having a joint identity.
For this reason it established states will not recognise embryonic states that do not have defined borders.
Self determination can occur. The international community will accept a de-facto situation and recognise territories that fulfil the criteria for statehood meaning a group seeking self determination must simply fulfil those criteria. For example the EC chose to recognise Slovenia and Croatia on the 15th of January 1992.
What do you think?