Tweet
ON THE PRINCIPLES OF SELF-DETERMINATION AND SO-CALLED "TERRITORIAL INTEGRITY" IN PUBLIC INTERNATIONAL LAW (THE CASE OF NAGORNO-KARABAKH)
NOYAN TAPAN
15 JUNE, 2010
YEREVAN
Ara Papian Head of Modus Vivendi Center
We are not going to negotiate over the right of the people of Artsakh
(Karabakh) to self-determination. - Serzh Sargsyan, President of the
Republic of Armenia, June 1, 2010
It is for the people to determine the destiny of the territory and
not the territory the destiny of the people. - Judge Hardy Dillard,
International Court of Justice, Oct. 16, 1975
The notions of "self-determination" and "territorial integrity"
are often used with regard to the Nagorno-Karabakh conflict.
Unfortunately, these legal terms are largely misused mostly due to
political motives. One of the grave misinterpretations of the said
notions was by Ambassador-to-be (or not to be) Matthew Bryza when
he declared: "There's a legal principle of territorial integrity
of states, there's a political principle of self-determination
of peoples." As a matter of fact, it is just the opposite. There
is a legal principle of self-determination and there is no such
principle of territorial integrity. Article 2(4) of the UN Charter
declares merely: "All Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations". Thus
this has nothing to do with absolute "territorial integrity", (i.e.
preservation of the territory of a state intact) but, according to
authoritative interpretation of the United States Foreign Relations
Law, it is simply the rule against intervention, a "prohibition of
use of force" and purely calls to refrain from "the use of force by
one state to conquer another state or overthrow its government."
In order to have adequate understanding of the status, scope and
content of the principles of "self-determination" and so called
"territorial integrity" in contemporary international law, we need
to elaborate more on the issue.
SELF-DETERMINATION Self-determination: Historical Background
Self-determination is an ancient political right that is cherished
by every people. The word "self-determination" is derived from the
German word "selbstbestimmungsrecht" and was frequently used by German
radical philosophers in the middle of the nineteenth century. The
political origins of the concept of self-determination can be traced
back to the American Declaration of Independence of July 4, 1776. The
American Revolution is considered to be "an outstanding example of the
principle of self-determination." The principle of self-determination
was further shaped by the leaders of the French Revolution. During the
nineteenth century and the beginning of the twentieth, the principle
of self-determination was interpreted by nationalist movements as
meaning that each nation had the right to constitute an independent
State and that only nationally-homogeneous States were legitimate.
During World War I, President Wilson championed the principle of
self-determination as it became crystallized in Wilson's Fourteen
Points (January 8, 1918) and consequently was discussed in the
early days of the League on Nations. The Mandate system was to some
degree a compromise between outright colonialism and principles of
self-determination. While discussion of the political right and
principle of self-determination has a long history, the process
of establishing it as a principle of international law is of more
recent origin. Since the codification of International Law is today
mostly achieved through an international convention drown up in a
diplomatic conference or, occasionally, in the UN General Assembly
or similar forum on the basis of a draft with commentary prepared by
the International Law Commission or some other expert body, we must
follow the development of the discussed notions through international
instruments. It must be stressed that if the rules, incorporated in
the form of articles in the conventions, reflect existing customary
international law, they are binding on states regardless of their
participation in the conventions.
Self-determination: Development under the Aegis of the United
Nations: 1. Incorporation into the UN Charter The principle of
self-determination was invoked on many occasions during World War II.
It was proclaimed in the Atlantic Charter (14 August 1941). The
provisions of the Atlantic Charter were restated in the Washington
Declaration of 1942, in the Moscow Declaration of 1943 and in other
important instruments of the time. Owing to these declarations already
at the days of establishment of the United Nations, the notion of
self-determinations was seen as a principle of international law.
Ultimately, "the principle of equal rights and self-determination of
peoples" was incorporated into the United Nations Charter. The Charter
[Article 1(2)] clearly enunciated the principle of self-determination:
"The purposes of the United Nations are: To develop friendly relations
among nations based on respect for the principle of equal rights and
self-determinations of peoples" and self-determination is conceived
as one among several possible "measures to strengthen universal peace."
Chapter IX (International Economic and Social Co-operation, Article
55) lists several goals the organization should promote: "With a view
to the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations based
on respect for the principle of equal rights and self-determination
of peoples." Under Article 56, "all Members pledge themselves to
take joint and separate action in cooperation with the Organization
for the achievement of the purposes set forth in Article 55." The
principle of self-determination, as it follows from Article 55
of the UN Charter, is one of the fundamentals of peaceful and
friendly international relations. In other words, there can be no
such relations without the observance of this principle. The same
article says it is the duty of the United Nations to promote respect
for fundamental human rights (para. c) and, consequently, for the
nations' right to self-determination. And since the establishment of
friendly relations between peoples and the promotion of respect for
human rights figure among the United Nation's most important tasks,
it is obvious that this organization is entitled to raise the question
of a people's self-determination. The Charter is dominant over all
the other international documents. This provision is set down in
Article 103 of the Charter, and is accepted by all the members of
the UN. It is clear that the UN considers the self-determination
of peoples (self-determination, not just the right of people for
self-determination, i.e. the application of this right) as not only
one of its basic principles but also as a basis for friendly relations
and universal peace. Hence, rejection of self-determination hinders
friendship and universal peace. In addition, Article 24, Point 2 holds:
"In discharging these duties [the maintenance of international peace
and security] the Security Council shall act in accordance with
the Purposes and Principles of the United Nations." It means that,
in the maintenance of international peace and security, the Security
Council must be guided by self-determination of peoples because it is
one of its principles. 2. Development through UN Practice The concept
of self-determination was further developed by the United Nations.
Through its resolutions the United Nations has expounded and developed
the principle of self-determination. In Resolution 637A(VII) of
December 16, 1952 the General Assembly declared that: "the right of
peoples and nations to self-determination is a prerequisite to the
full enjoyment of all fundamental human rights." The General Assembly
recommended, inter alia, that "the States Members of the United Nations
shall uphold the principle of self-determination of all peoples and
nations." In 1960, the General Assembly adopted Resolution 1514(XV)
entitled Declaration on the Granting of Independence to Colonial
Countries and Peoples which declares that: [para. 2]. "All peoples
have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their
economic, social and cultural development." The Declaration regards
the principle of self-determination as a part of the obligations
stemming from the Charter, and is not a "recommendation", but is in
the form of an authoritative interpretation of the Charter. Later
on, the principle was incorporated in a number of international
instruments. In 1966 two conventions on human rights entered into
force - the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights.
The Covenants have a common Article 1 which states: "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."
Consequently the Declaration of Principles of International Law
Concerning Friendly Relations and Co-operation among the States
in accordance with the Charter of the United Nations [General
assembly Resolution 2625 (XXV), 1970] confirmed the principle that
self-determination is a right belonging to all peoples and that
its implementation is required by the UN Charter: "By virtue of the
principle of equal rights and self-determination of peoples enshrined
in the Charter of the United Nations, all peoples have the right
freely to determine, without external interference , their political
status and to pursue their economic, social and cultural development,
and every state has the duty to respect this right in accordance with
the provisions of the Charter." M. Zahovic, rapporteur for the Special
Committee on Principles of International Relations concerning Friendly
Relations and Co-operation among the Nations, remarked: "Nearly all
representatives who participated in the debate emphasised that the
principle was no longer to be considered a mere moral or political
postulate; it was rather settled principle of modern international
law. Full recognition of the principle was a prerequisite for the
maintenance of international peace and security, the development of
friendly relations and cooperation among the States, and the promotion
of economic, social and cultural progress throughout the world."
Self-Determination: The Principle and Human Rights The principle of
self-determination developed from a philosophical to political concept
in international relations and has now matured into a fundamental
principle of positive international law. It has developed recently as
an aspect of human rights belonging to the group rather than to the
individual and therefore rightly belongs to both Covenants of Human
Rights, as it was mentioned. On 25 June 1993, representatives of 171
States adopted by consensus the Vienna Declaration and Programme
of Action of the World Conference on Human Rights (June 14-25,
1993). The final document agreed to in Vienna, which was endorsed by
the forty-eighth session of the General Assembly (resolution 48/121,
of 1993), reaffirms the principles that have evolved during the
past 45 years and further strengthens the foundation for additional
progress in the area of human rights. The document recognizes
interdependence between democracy, development and human rights,
including the right to self-determination. The final document
emphasizes that the Conference considers the denial of the right
of self-determination as a violation of human rights and underlines
the importance of the effective realization of this right [para. 2]:
"The World Conference on Human Rights considers the denial of the right
of self-determination as a violation of human rights and underlines
the importance of the effective realization of this right". Armenia,
Azerbaijan, Turkey, and co-sponsors of the OSCE Minsk group as well
(Russian Federation, United States of America, France) are parties to
this convention. International organizations which are concerned with
human rights and world peace have given full recognition to the fact
that respect for self-determination is a condition for world peace.
Fundamental human rights are meaningful in the context of a people
enjoying self-determination. The raison d'etre for the principle of
self-determination is the enjoyment by all peoples, regardless of
race, religion, or sex, of full democratic rights within the law,
free from internal or external domination. It seeks to provide the
opportunities for the political, economic, social, and cultural
development of all peoples. The basic objective of the principle
is to guarantee that all peoples have a government to their choice
that responds to their political, economic, and cultural needs. Thus,
denial of the right to self-determination is a human rights violation
and constitutes a breach of international law.
Self-determination: Development of the Principle Through Other
Organizations
The International Commission of Jurists (affiliated to the
International Court of Justice) has held numerous conferences on the
rule of law attempting to provide a clear and comprehensive definition
of rule of law and better measures of implementation in the context of
protecting human rights. Its first congress was held in Athens in 1955,
where the participants gave effect to the Act of Athens which resolved:
" (9) The recognition of the right to self-determination being one
of the great achievements of our era and one of the fundamental
principles of international law, its non-application is emphatically
condemned. (10) Justice demands that a people or an ethnic or political
minority be not deprived of their natural rights and especially of
the fundamental rights of man and citizens or of equal treatment for
reasons of race, colour, class, political conviction, caste or creed".
The First World Conference of Lawyers on World Peace through Law,
in their Declaration of General Principles for a World Rule of Law
(Athens, July 6, 1963), adopted a resolution which stated: "In order
to establish an effective international legal system under the rule
of law which precludes resort to force, we declare that: (...) (6)
A fundamental principle of the international rule of law is that
of the right of self-determination of the peoples of the world,
as proclaimed in the Charter of the United Nations."
Self-determination: Development of the Principle Through the ICJ
The principle of self-determination is exemplified in the decisions
by the International Court of Justice (ICJ). For example, in the
South-West Africa Cases (December 26, 1961, and July 18, 1966) Judge
Nervo, dissenting, expressed the belief that the concept of equality
and freedom "will inspire the vision and the conduct of peoples the
world over until the goal of self-determination and independence
is reached."
The Advisory Opinion of the International Court relating to the Western
Sahara Case (October 16, 1975) reconfirmed as well "the validity of the
principle of self-determination" in the context of international law.
Also in the decision of June 30, 1995, concerning the East Timor Case
(Portugal v. Australia) the International Court reaffirmed that the
principle of self-determination of peoples is recognized by the UN
Charter and by its own jurisprudence as being "one of the essential
principles of contemporary international law."[Para. 29]
Self-Determination: Status, Scope and Content in Contemporary
International Law.
Both the United Nations and the majority of authors are alike in
maintaining that the principle of self-determination is part of modern
international law. Due to developments in the United Nations since
1945, jurists now generally admit that self-determination is a legal
principle. The principle has been confirmed, developed and given more
tangible form by a consistent body of State practice and has been
embodied among "the basic principles of international law" in the
Friendly Relations Resolutions. The generality and political aspect of
the principle do not deprive it of legal content. Furthermore, having
no doubts that the principle of the self-determination of peoples
is a legal principle, currently many declare self-determination to
be a jus cogens (peremptory) norm of international law. Accordingly,
no derogation is admissible from the principle of self-determination
by means of a treaty or any similar international transaction.
It must be underlined that the right of self-determination is the
right to choose a form of political organization and relations with
other groups. The choice may be independence as a state, association
with other groups in a federal state, or autonomy or assimilation in a
unitary (non-federal) state. A situation involving the international
legal principle of self-determination cannot be excluded from
the jurisdiction of the United Nations by a claim of domestic
jurisdiction. International customary law is binding on all states
regardless of consent; and in any event, states have bound themselves
under the Charter to respect the principle. The claims of the states
that the implementation of the principle of self-determination
infringes on their rights or is contrary to their "constitutional
processes" cannot be made a pretext for depriving other peoples of
their right to self-determination. Presently self-determination as
a principle is truly universal in scope. It is also unconditional
because most of the UN members also hold that realization of the
right to self-determination should not have any strings attached to it.
All these conceptions were summarized in the statement by Hans
Brunhart, Head of Government and Minister of Foreign Affairs of the
Principality of Liechtenstein, during the Forty-Seventh Session of
the General Assembly of the United Nations (September 23, 1992, UN Doc.
A/47/PV.9) [para. 6]: "The right to self-determination as
principle is now universally accepted. I would recall not only that
self-determination is one of the foundations of the Charter, but also
that most States represented in this Assembly are already under certain
specific legal obligations in this area by virtue of Article 1 of each
of the great human rights conventions of 1966. [i. e. the International
Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights.] There it is formally and
with legally binding effect acknowledged that: "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."
Despite all this, and with some notable exceptions, the practical and
peaceful application of the principle of self-determination has often
been lacking. Time and again have dominant powers hindered oppressed
peoples from availing themselves of their right to self-determination
despite the obligations assumed in signing the UN Charter. So how
is one to establish that a people wants to be the master of its own
destiny? There are different ways of establishing the will of the
people demanding self-determination. The will of the people may be
determined by a plebiscite. A plebiscite or, what amounts to the same
thing, a referendum means the right of the majority of the population
to determine the political and legal status of the territory it
inhabits. The will of people may be expressed by parliament or by any
other representative institutions elected by the self-determining
people. By and large there are plebiscites without a popular vote
on the questions concerned. In such cases, the population of the
self-determining territory elects a representative organ which then
expresses the people's will. If the elections to these organs and
the vote in them are conducted on a democratic basis, this method
of expressing the people's will is quite legitimate. This is the
situation that we had lately (May 23, 2010) in Nagorno-Karabakh during
the elections of the Parliament of the Republic of Nagorno-Karabakh
(Artsakh). The will of the people may also be expressed in the
form of mass protests (civil disobedience, demonstrations, rallies,
newspaper articles, etc.). Lastly, it may find expression in armed
uprisings or wars for national liberation. The latter is an extreme
measure and people resorts to it only if forced to do so. A rule
of customary international law has emerged, according to which the
principle of self-determination includes a right of secession and, as
a consequence, the legality of wars of national liberation and third
party interventions on behalf of the secessionist movements. The
use of force to achieve self-determination and for the assistance
of national liberation movements has increasingly been claimed as
legitimate in recent years, on the ground that it furthers the
principles of the UN Charter. There is no rule of international
law forbidding revolutions within a state, and the United Nation's
Charter favors the self-determination of peoples. Self-determination
may take the forms of rebellion to oust an unpopular government, of
colonial revolt, of an irredentist movement to transfer territory,
or of a movement for the unification or federation of independent
states. It should be especially stressed that whatever way is chosen,
no "central authority" or any other people can solve the problem for
the self-determining people, for that would be contrary to the very
principle of self-determination.
While establishing the scope of self-determination, a question must be
answered: Are the peoples and nations which have already implemented
their right to self-determination subjects of this right? The
answer is "Yes", inasmuch as the UN Charter recognizes the right to
self-determination of all peoples and nations, without distinguishing
between those which have attained statehood and those which have not.
The question is answered analogically in the General Assembly
resolution on the inclusion of the clause on human rights in
the International Covenant on Human Rights. It has been strongly
advocated that a nation which has been divided into States by outside
interference and without the clear consent of the population still
possess the inherent right of self-determination including the right
of reunification.
Furthermore, infringement of the right to self-determination has been
used by the European Community as a potential ground for withholding
recognition of an entity as a State and hence to deny the legitimacy
of a government or a State which does not protect the right of
self-determination. In the EC Declaration on the Guidelines on the
Recognition of New States in Eastern Europe and in the Soviet Union
(December 16, 1991), there is the requirement that a potential new
State has constitutional guarantees of democracy and of "the rights of
ethnic and national groups and minorities" before recognition by the
EC States would be granted. Moreover, a new rule of international
law holds that a State established in violation of the right of
self-determination is a nullity in international law.
Another question which concerns the self-determination of
peoples is: Can the right of self-determination be applied to
non-colonial entities? Certainly the main objective of the right of
self-determination was to bring a speedy end to colonialism. However,
since codification of that principle in the UN Charter, not one of
the major international instruments which have dealt with the right
of self-determination have limited the application of the right to
colonial situations. For example, the common Article 1 of the two
International Human Rights Conventions of 1966 (International Covenant
on Civil and Political Rights and International Covenant on Economic,
Social and Cultural Rights) applies the right to "all peoples" without
any restriction as to their status, and the obligation rests on all
States. Likewise, principle VIII of the Final Act of the Helsinki
Conference 1975 includes: "by virtue of the principle of equal rights
and self-determination of peoples, all peoples have the right, in
full freedom, to determine, when and as they wish, their internal
and external political status, without external interference, and to
pursue as they wish their political, economic, social and cultural
development". State practice also supports a broader application of
the right of self-determination beyond strictly colonial confines.
Indeed, the international Commission of Jurists, in its report on
Bangladesh's secession, stated that: "if one of the constituent peoples
of a State is denied equal rights and is discriminated against, it is
submitted that their full right of self-determination will revive". In
the Treaty on the Final Settlement with Respect to Germany (September
12, 1990), which was signed by four of the five Permanent Members of
the Security Council, it was expressly mentioned that the "German
people, freely exercising their right of self-determination, have
expressed their will to bring about the unity of Germany as a State",
[Preamble, para. 11], despite the fact that neither East nor West
Germany was a colony. It was also been applied by States in the context
of the break-up of the former Soviet Union and former Yugoslavia.
TERRITORIAL INTEGRITY AND POLITICAL INDEPENDENCE "Territorial
Integrity": Evaluation and Content The notion of "territorial
integrity" has been employed only three times in international
instruments. All other cases are only references to these said
documents. The concepts of territorial integrity and political
independence emerged during the years immediately following the end
of World War I. Article 10 of the Covenant of the League of Nations
stipulated that: "the Members of the League undertake to respect and
preserve as against external aggression the territorial integrity and
existing political independence of all Members of the League". The
same understanding of "territorial integrity" was reaffirmed in the
UN Charter: "2(4). All Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations." The
other important international instrument which is often referred
to is the Helsinki Final Act (adopted on August 1, 1975) which
requires the following: "The participating States will refrain in
their mutual relations, as well as in their international relations
in general, from the threat or use of force against the territorial
integrity or political independence of any State ..." It is obvious
that the Helsinki Final Act, likewise the UN Charter and League of
Nations Covenant earlier, condemns merely the use of force against
territorial integrity and does not unconditionally advocate for
the absolute maintenance of territorial integrity. It makes clear
that use of external force or threat of use against territorial
integrity and political independence is unacceptable. Meanwhile, the
Helsinki Final Act (Chapter 1) specifically holds that: " frontiers
can be changed, in accordance with international law, by peaceful
means and by agreement." It is apparent that ever since the first
time that the notion of "territorial integrity" appeared within
the domain of international law, it has been closely intertwined
with the question of the use of external force. In other words, the
principle of "territorial integrity" is traditionally interwoven with
the fundamental principle of the prohibition of the threat or use of
force and not with the absolute preservation of the territory of a
state intact. As it was mentioned above, it is just the "prohibition
of use of [external] force" and the renunciation of "the use of force
by one state to conquer another state or overthrow its government."
"Territorial Integrity": Scope, Limitation and Status under
International Law. In modern political life there are repeated wrongful
attempts to present "territorial integrity" as a general limitation
on the right to self-determination. The basis for such limitation
is false because the government of a State which does not represent
the whole population on its territory without discrimination cannot
succeed in limiting the right of self-determination on the basis that
it would infringe that State's territorial integrity.
Moreover, state practice shows that territorial integrity limitations
on the right of self-determination are often ignored, as seen in
the recognition of the independence of Bangladesh (from Pakistan),
Singapore (from Malaysia) and Belize, "despite the claims of
Guatemala". In addition, after the recognition by the international
community of the disintegration of the Soviet Union and Yugoslavia,
recognition of East Timor and Eritrea, recognition to a certain extent
of Kosovo, Abkhazia and South Ossetia, it could now be the case that
any government which is oppressive to peoples within its territory
may no longer be able to rely on the general interest of territorial
integrity as a limitation on the right of self-determination.
Therefore there is a clear-cut understanding: only a government of a
State which allows all its peoples to decide their political status
and economic, social and cultural development freely has an interest
of territorial integrity which can possibly, only possibly, limit the
exercise of a right of self-determination. So territorial integrity,
as a limitation on the exercise of the right of self-determination,
can apply only to those States in which the government represents
the whole population in accordance with the exercise of internal
self-determination. Thus, there is an apparent conceptual link between
democracy and self-determination. Democracy is often viewed as internal
self-determination, and secession as external self-determination,
that is, as the right of a people to govern itself, rather than be
governed by another people. Moreover, it is clear that those deprived
of the right of self-determination can seek forcible international
support to uphold their right of self-determination and no State
can use force against such groups. As it was referred above,
the Declaration on Principles of International Law provides that
"every State has the duty to refrain from any forcible action which
deprives peoples ... of their right of self determination and freedom
and independence". The increase in actions by the international
community which could be classed as humanitarian intervention,
such as in Somalia and with the creation of "safe havens" for the
Kurds North of the 36th parallel in Iraq (1991-2003), indicates
the reduced importance given by the international community to
the territorial integrity of a State when human rights, including
the right of self-determination, are grossly and systematically
violated. The right of self-determination applies to all situations
where peoples are subject to oppression by subjugation, domination
and exploitation by others. It is applicable to all territories,
colonial or not, and to all peoples. Indeed, many of the claims for
self-determination arose because of unjust, State-based policies
of discrimination and when the international legal order failed to
respond to the legitimate aspirations of peoples. Self-Determination:
Human Rights and the Right to Secession One of the supposed dangers
of self-determination is that it might encourage secession. First
of all, there is no rule of international law that condemns all
secessions under all circumstances. Self-determination includes the
right to secede. In a situation when the principle of territorial
integrity is clearly incompatible with that of self-determination,
the former must, under present international law, give way to the
latter. For instance, if a majority or minority insists on committing
an international crime, such as genocide, or enforces a wholesale
denial of human rights as a deliberate policy against the other part,
it is submitted that the oppressed party, minority or majority, may
have recourse to the right of self-determination up to the point of
secession. As Azerbaijan used force in answer to the free and peaceful
expression of the will of the people of Nagorno-Karabakh (rallies,
referendums, claims, appeals), took inadequate means of punishment,
perpetrated massacres of the Armenian citizens of Azerbaijan in
Sumgait, Baku, Kirovabad, and waged a ruthless war with Ukrainian,
Afghan, Russian mercenaries and sustained defeat, it cannot expect
that the people of Nagorno-Karabakh will renounce their lawful right
and will not exercise their right of self-determination. Actually, the
world community is under legal and moral obligation to recognize the
political self-determination of the people of Nagorno-Karabakh, i.e.
to recognize the Republic of Nagorno-Karabakh; if a de facto state has
crystallized, refusal to recognize it may be tantamount to a denial
of self-determination. Moreover, there is a clear understanding
in international law: after the international requirements for the
recognition of belligerency have been fulfilled (as it was done with
regard to Nagorno-Karabakh by the Bishkek Protocol (May 5, 1994), and
by the Cease-fire Agreement, (May 12, 1994)), a duty of recognition
of belligerency necessarily follows, and refusal of recognition is
interference with the right of political self-determination of the
people of a State, and therefore constitutes illegal intervention.
This obligation arises from the understanding that the principle and
rules on self-determination are erga omnes, that is, they belong
to that class of international legal obligations which are not
"bilateral" or reciprocal, but are in favor of all members of the
international community. In the Loizidou v. Turkey Case, a 1996
judgment of the European Court of Human Rights, Judge Wildhaber
identifies an emerging consensus that the right of self-determination,
more specifically secession, should be interpreted as remedial for
certain human rights abuses: "Until recently in international practice
the right to self-determination was in practical terms identical to,
and indeed restricted to, a right to decolonisation. In recent years
a consensus has seemed to emerge that peoples may also exercise a
right to self-determination if their human rights are consistently
and flagrantly violated or if they are without representation
at all or are massively underrepresented in an undemocratic and
discriminatory way. If this description is correct then the right
to self-determination is a tool which may be used to re-establish
international standards of human rights and democracy". As Judge
Wildhaber attests, there is increasing agreement among authors that
the right of self-determination provides the remedy of secession to a
group whose rights have been consistently and severely abused by the
state. The self-determination of the people of Nagorno-Karabakh must
certainly be assessed as an act of corrective justice as well. So a
minority's entitlement to self-determination can and must be judged
within a human rights framework. Self-determination postulates the
right of a people organized in an established territory to determine
its collective political destiny in a democratic fashion. It is legal
nonsense to presume that self-determination should take place within
previous administrative borders, without regard for the cultural,
linguistic or ethnic identity of the people there. Internal boundaries
in the former Soviet Union were often drawn in a way which ensured
that many members of the titular nation were outside the boundaries
of their (titular) republic, as it was with Nagorno-Karabakh. A
politically disempowered distinct group in a specific region has
the right to independence, regardless of whether or not they are
organized in an administrative unit. There is no doubt that the people
of Nagorno-Karabakh (not only the people of the Nagorno-Karabakh
Autonomous Region) are entitled to independence as their choice of
self-determination due to the extreme discrimination that they faced
under Azerbaijan.
Summary: · Self-determination is an ancient political right. Presently
the right to self-determination is a well-established principle in
public international law. The principle has been confirmed, developed
and given more tangible form by a consistent body of State practice
and has been embodied in various international instruments. · The
principle of self-determination is exemplified in the decisions
by the International Court of Justice (ICJ). · The principle of
self-determination is one of the fundamentals of peaceful and
friendly international relations. Respect for self-determination
is a condition for world peace. Those deprived of the right of
self-determination can seek forcible international support to
uphold their right of self-determination. · Self-determination as
a principle of international law is universal in scope. The right
of self-determination applies to all situations where peoples are
subject to oppression by subjugation, domination and exploitation
by others - all peoples and nations, without distinguishing between
those which have attained statehood and those which have not. · The
principle of the self-determination of peoples is a legal principle
and is a jus cogens (peremptory) norm of international law. · The
right of self-determination is the right to choose a form of political
organization and relations with other groups. Denial of the right of
to self-determination is a human rights violation and constitutes a
breach of international law. · The right of peoples and nations to
self-determination is a prerequisite to the full enjoyment of all
fundamental human rights. Therefore the General Assembly recommended
that the member states of the United Nations uphold the principle of
self-determination of all peoples and nations. · Article 2(4) of the
UN Charter has nothing to do with absolute "territorial integrity",
but is simply the rule against intervention, a "prohibition of use
of force" and purely calls to refrain from "the use of force by
one state to conquer another state or overthrow its government." ·
Self-determination includes the right to secede. The people of
Nagorno-Karabakh (not only the people of the Nagorno-Karabakh
Autonomous Region) are entitled to independence as their choice
of self-determination. · Self-determination postulates the right
of a people organized in an established territory to determine its
collective political destiny in a democratic fashion.
From: A. Papazian
NOYAN TAPAN
15 JUNE, 2010
YEREVAN
Ara Papian Head of Modus Vivendi Center
We are not going to negotiate over the right of the people of Artsakh
(Karabakh) to self-determination. - Serzh Sargsyan, President of the
Republic of Armenia, June 1, 2010
It is for the people to determine the destiny of the territory and
not the territory the destiny of the people. - Judge Hardy Dillard,
International Court of Justice, Oct. 16, 1975
The notions of "self-determination" and "territorial integrity"
are often used with regard to the Nagorno-Karabakh conflict.
Unfortunately, these legal terms are largely misused mostly due to
political motives. One of the grave misinterpretations of the said
notions was by Ambassador-to-be (or not to be) Matthew Bryza when
he declared: "There's a legal principle of territorial integrity
of states, there's a political principle of self-determination
of peoples." As a matter of fact, it is just the opposite. There
is a legal principle of self-determination and there is no such
principle of territorial integrity. Article 2(4) of the UN Charter
declares merely: "All Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations". Thus
this has nothing to do with absolute "territorial integrity", (i.e.
preservation of the territory of a state intact) but, according to
authoritative interpretation of the United States Foreign Relations
Law, it is simply the rule against intervention, a "prohibition of
use of force" and purely calls to refrain from "the use of force by
one state to conquer another state or overthrow its government."
In order to have adequate understanding of the status, scope and
content of the principles of "self-determination" and so called
"territorial integrity" in contemporary international law, we need
to elaborate more on the issue.
SELF-DETERMINATION Self-determination: Historical Background
Self-determination is an ancient political right that is cherished
by every people. The word "self-determination" is derived from the
German word "selbstbestimmungsrecht" and was frequently used by German
radical philosophers in the middle of the nineteenth century. The
political origins of the concept of self-determination can be traced
back to the American Declaration of Independence of July 4, 1776. The
American Revolution is considered to be "an outstanding example of the
principle of self-determination." The principle of self-determination
was further shaped by the leaders of the French Revolution. During the
nineteenth century and the beginning of the twentieth, the principle
of self-determination was interpreted by nationalist movements as
meaning that each nation had the right to constitute an independent
State and that only nationally-homogeneous States were legitimate.
During World War I, President Wilson championed the principle of
self-determination as it became crystallized in Wilson's Fourteen
Points (January 8, 1918) and consequently was discussed in the
early days of the League on Nations. The Mandate system was to some
degree a compromise between outright colonialism and principles of
self-determination. While discussion of the political right and
principle of self-determination has a long history, the process
of establishing it as a principle of international law is of more
recent origin. Since the codification of International Law is today
mostly achieved through an international convention drown up in a
diplomatic conference or, occasionally, in the UN General Assembly
or similar forum on the basis of a draft with commentary prepared by
the International Law Commission or some other expert body, we must
follow the development of the discussed notions through international
instruments. It must be stressed that if the rules, incorporated in
the form of articles in the conventions, reflect existing customary
international law, they are binding on states regardless of their
participation in the conventions.
Self-determination: Development under the Aegis of the United
Nations: 1. Incorporation into the UN Charter The principle of
self-determination was invoked on many occasions during World War II.
It was proclaimed in the Atlantic Charter (14 August 1941). The
provisions of the Atlantic Charter were restated in the Washington
Declaration of 1942, in the Moscow Declaration of 1943 and in other
important instruments of the time. Owing to these declarations already
at the days of establishment of the United Nations, the notion of
self-determinations was seen as a principle of international law.
Ultimately, "the principle of equal rights and self-determination of
peoples" was incorporated into the United Nations Charter. The Charter
[Article 1(2)] clearly enunciated the principle of self-determination:
"The purposes of the United Nations are: To develop friendly relations
among nations based on respect for the principle of equal rights and
self-determinations of peoples" and self-determination is conceived
as one among several possible "measures to strengthen universal peace."
Chapter IX (International Economic and Social Co-operation, Article
55) lists several goals the organization should promote: "With a view
to the creation of conditions of stability and well-being which are
necessary for peaceful and friendly relations among nations based
on respect for the principle of equal rights and self-determination
of peoples." Under Article 56, "all Members pledge themselves to
take joint and separate action in cooperation with the Organization
for the achievement of the purposes set forth in Article 55." The
principle of self-determination, as it follows from Article 55
of the UN Charter, is one of the fundamentals of peaceful and
friendly international relations. In other words, there can be no
such relations without the observance of this principle. The same
article says it is the duty of the United Nations to promote respect
for fundamental human rights (para. c) and, consequently, for the
nations' right to self-determination. And since the establishment of
friendly relations between peoples and the promotion of respect for
human rights figure among the United Nation's most important tasks,
it is obvious that this organization is entitled to raise the question
of a people's self-determination. The Charter is dominant over all
the other international documents. This provision is set down in
Article 103 of the Charter, and is accepted by all the members of
the UN. It is clear that the UN considers the self-determination
of peoples (self-determination, not just the right of people for
self-determination, i.e. the application of this right) as not only
one of its basic principles but also as a basis for friendly relations
and universal peace. Hence, rejection of self-determination hinders
friendship and universal peace. In addition, Article 24, Point 2 holds:
"In discharging these duties [the maintenance of international peace
and security] the Security Council shall act in accordance with
the Purposes and Principles of the United Nations." It means that,
in the maintenance of international peace and security, the Security
Council must be guided by self-determination of peoples because it is
one of its principles. 2. Development through UN Practice The concept
of self-determination was further developed by the United Nations.
Through its resolutions the United Nations has expounded and developed
the principle of self-determination. In Resolution 637A(VII) of
December 16, 1952 the General Assembly declared that: "the right of
peoples and nations to self-determination is a prerequisite to the
full enjoyment of all fundamental human rights." The General Assembly
recommended, inter alia, that "the States Members of the United Nations
shall uphold the principle of self-determination of all peoples and
nations." In 1960, the General Assembly adopted Resolution 1514(XV)
entitled Declaration on the Granting of Independence to Colonial
Countries and Peoples which declares that: [para. 2]. "All peoples
have the right to self-determination; by virtue of that right they
freely determine their political status and freely pursue their
economic, social and cultural development." The Declaration regards
the principle of self-determination as a part of the obligations
stemming from the Charter, and is not a "recommendation", but is in
the form of an authoritative interpretation of the Charter. Later
on, the principle was incorporated in a number of international
instruments. In 1966 two conventions on human rights entered into
force - the International Covenant on Civil and Political Rights and
the International Covenant on Economic, Social and Cultural Rights.
The Covenants have a common Article 1 which states: "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."
Consequently the Declaration of Principles of International Law
Concerning Friendly Relations and Co-operation among the States
in accordance with the Charter of the United Nations [General
assembly Resolution 2625 (XXV), 1970] confirmed the principle that
self-determination is a right belonging to all peoples and that
its implementation is required by the UN Charter: "By virtue of the
principle of equal rights and self-determination of peoples enshrined
in the Charter of the United Nations, all peoples have the right
freely to determine, without external interference , their political
status and to pursue their economic, social and cultural development,
and every state has the duty to respect this right in accordance with
the provisions of the Charter." M. Zahovic, rapporteur for the Special
Committee on Principles of International Relations concerning Friendly
Relations and Co-operation among the Nations, remarked: "Nearly all
representatives who participated in the debate emphasised that the
principle was no longer to be considered a mere moral or political
postulate; it was rather settled principle of modern international
law. Full recognition of the principle was a prerequisite for the
maintenance of international peace and security, the development of
friendly relations and cooperation among the States, and the promotion
of economic, social and cultural progress throughout the world."
Self-Determination: The Principle and Human Rights The principle of
self-determination developed from a philosophical to political concept
in international relations and has now matured into a fundamental
principle of positive international law. It has developed recently as
an aspect of human rights belonging to the group rather than to the
individual and therefore rightly belongs to both Covenants of Human
Rights, as it was mentioned. On 25 June 1993, representatives of 171
States adopted by consensus the Vienna Declaration and Programme
of Action of the World Conference on Human Rights (June 14-25,
1993). The final document agreed to in Vienna, which was endorsed by
the forty-eighth session of the General Assembly (resolution 48/121,
of 1993), reaffirms the principles that have evolved during the
past 45 years and further strengthens the foundation for additional
progress in the area of human rights. The document recognizes
interdependence between democracy, development and human rights,
including the right to self-determination. The final document
emphasizes that the Conference considers the denial of the right
of self-determination as a violation of human rights and underlines
the importance of the effective realization of this right [para. 2]:
"The World Conference on Human Rights considers the denial of the right
of self-determination as a violation of human rights and underlines
the importance of the effective realization of this right". Armenia,
Azerbaijan, Turkey, and co-sponsors of the OSCE Minsk group as well
(Russian Federation, United States of America, France) are parties to
this convention. International organizations which are concerned with
human rights and world peace have given full recognition to the fact
that respect for self-determination is a condition for world peace.
Fundamental human rights are meaningful in the context of a people
enjoying self-determination. The raison d'etre for the principle of
self-determination is the enjoyment by all peoples, regardless of
race, religion, or sex, of full democratic rights within the law,
free from internal or external domination. It seeks to provide the
opportunities for the political, economic, social, and cultural
development of all peoples. The basic objective of the principle
is to guarantee that all peoples have a government to their choice
that responds to their political, economic, and cultural needs. Thus,
denial of the right to self-determination is a human rights violation
and constitutes a breach of international law.
Self-determination: Development of the Principle Through Other
Organizations
The International Commission of Jurists (affiliated to the
International Court of Justice) has held numerous conferences on the
rule of law attempting to provide a clear and comprehensive definition
of rule of law and better measures of implementation in the context of
protecting human rights. Its first congress was held in Athens in 1955,
where the participants gave effect to the Act of Athens which resolved:
" (9) The recognition of the right to self-determination being one
of the great achievements of our era and one of the fundamental
principles of international law, its non-application is emphatically
condemned. (10) Justice demands that a people or an ethnic or political
minority be not deprived of their natural rights and especially of
the fundamental rights of man and citizens or of equal treatment for
reasons of race, colour, class, political conviction, caste or creed".
The First World Conference of Lawyers on World Peace through Law,
in their Declaration of General Principles for a World Rule of Law
(Athens, July 6, 1963), adopted a resolution which stated: "In order
to establish an effective international legal system under the rule
of law which precludes resort to force, we declare that: (...) (6)
A fundamental principle of the international rule of law is that
of the right of self-determination of the peoples of the world,
as proclaimed in the Charter of the United Nations."
Self-determination: Development of the Principle Through the ICJ
The principle of self-determination is exemplified in the decisions
by the International Court of Justice (ICJ). For example, in the
South-West Africa Cases (December 26, 1961, and July 18, 1966) Judge
Nervo, dissenting, expressed the belief that the concept of equality
and freedom "will inspire the vision and the conduct of peoples the
world over until the goal of self-determination and independence
is reached."
The Advisory Opinion of the International Court relating to the Western
Sahara Case (October 16, 1975) reconfirmed as well "the validity of the
principle of self-determination" in the context of international law.
Also in the decision of June 30, 1995, concerning the East Timor Case
(Portugal v. Australia) the International Court reaffirmed that the
principle of self-determination of peoples is recognized by the UN
Charter and by its own jurisprudence as being "one of the essential
principles of contemporary international law."[Para. 29]
Self-Determination: Status, Scope and Content in Contemporary
International Law.
Both the United Nations and the majority of authors are alike in
maintaining that the principle of self-determination is part of modern
international law. Due to developments in the United Nations since
1945, jurists now generally admit that self-determination is a legal
principle. The principle has been confirmed, developed and given more
tangible form by a consistent body of State practice and has been
embodied among "the basic principles of international law" in the
Friendly Relations Resolutions. The generality and political aspect of
the principle do not deprive it of legal content. Furthermore, having
no doubts that the principle of the self-determination of peoples
is a legal principle, currently many declare self-determination to
be a jus cogens (peremptory) norm of international law. Accordingly,
no derogation is admissible from the principle of self-determination
by means of a treaty or any similar international transaction.
It must be underlined that the right of self-determination is the
right to choose a form of political organization and relations with
other groups. The choice may be independence as a state, association
with other groups in a federal state, or autonomy or assimilation in a
unitary (non-federal) state. A situation involving the international
legal principle of self-determination cannot be excluded from
the jurisdiction of the United Nations by a claim of domestic
jurisdiction. International customary law is binding on all states
regardless of consent; and in any event, states have bound themselves
under the Charter to respect the principle. The claims of the states
that the implementation of the principle of self-determination
infringes on their rights or is contrary to their "constitutional
processes" cannot be made a pretext for depriving other peoples of
their right to self-determination. Presently self-determination as
a principle is truly universal in scope. It is also unconditional
because most of the UN members also hold that realization of the
right to self-determination should not have any strings attached to it.
All these conceptions were summarized in the statement by Hans
Brunhart, Head of Government and Minister of Foreign Affairs of the
Principality of Liechtenstein, during the Forty-Seventh Session of
the General Assembly of the United Nations (September 23, 1992, UN Doc.
A/47/PV.9) [para. 6]: "The right to self-determination as
principle is now universally accepted. I would recall not only that
self-determination is one of the foundations of the Charter, but also
that most States represented in this Assembly are already under certain
specific legal obligations in this area by virtue of Article 1 of each
of the great human rights conventions of 1966. [i. e. the International
Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights.] There it is formally and
with legally binding effect acknowledged that: "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."
Despite all this, and with some notable exceptions, the practical and
peaceful application of the principle of self-determination has often
been lacking. Time and again have dominant powers hindered oppressed
peoples from availing themselves of their right to self-determination
despite the obligations assumed in signing the UN Charter. So how
is one to establish that a people wants to be the master of its own
destiny? There are different ways of establishing the will of the
people demanding self-determination. The will of the people may be
determined by a plebiscite. A plebiscite or, what amounts to the same
thing, a referendum means the right of the majority of the population
to determine the political and legal status of the territory it
inhabits. The will of people may be expressed by parliament or by any
other representative institutions elected by the self-determining
people. By and large there are plebiscites without a popular vote
on the questions concerned. In such cases, the population of the
self-determining territory elects a representative organ which then
expresses the people's will. If the elections to these organs and
the vote in them are conducted on a democratic basis, this method
of expressing the people's will is quite legitimate. This is the
situation that we had lately (May 23, 2010) in Nagorno-Karabakh during
the elections of the Parliament of the Republic of Nagorno-Karabakh
(Artsakh). The will of the people may also be expressed in the
form of mass protests (civil disobedience, demonstrations, rallies,
newspaper articles, etc.). Lastly, it may find expression in armed
uprisings or wars for national liberation. The latter is an extreme
measure and people resorts to it only if forced to do so. A rule
of customary international law has emerged, according to which the
principle of self-determination includes a right of secession and, as
a consequence, the legality of wars of national liberation and third
party interventions on behalf of the secessionist movements. The
use of force to achieve self-determination and for the assistance
of national liberation movements has increasingly been claimed as
legitimate in recent years, on the ground that it furthers the
principles of the UN Charter. There is no rule of international
law forbidding revolutions within a state, and the United Nation's
Charter favors the self-determination of peoples. Self-determination
may take the forms of rebellion to oust an unpopular government, of
colonial revolt, of an irredentist movement to transfer territory,
or of a movement for the unification or federation of independent
states. It should be especially stressed that whatever way is chosen,
no "central authority" or any other people can solve the problem for
the self-determining people, for that would be contrary to the very
principle of self-determination.
While establishing the scope of self-determination, a question must be
answered: Are the peoples and nations which have already implemented
their right to self-determination subjects of this right? The
answer is "Yes", inasmuch as the UN Charter recognizes the right to
self-determination of all peoples and nations, without distinguishing
between those which have attained statehood and those which have not.
The question is answered analogically in the General Assembly
resolution on the inclusion of the clause on human rights in
the International Covenant on Human Rights. It has been strongly
advocated that a nation which has been divided into States by outside
interference and without the clear consent of the population still
possess the inherent right of self-determination including the right
of reunification.
Furthermore, infringement of the right to self-determination has been
used by the European Community as a potential ground for withholding
recognition of an entity as a State and hence to deny the legitimacy
of a government or a State which does not protect the right of
self-determination. In the EC Declaration on the Guidelines on the
Recognition of New States in Eastern Europe and in the Soviet Union
(December 16, 1991), there is the requirement that a potential new
State has constitutional guarantees of democracy and of "the rights of
ethnic and national groups and minorities" before recognition by the
EC States would be granted. Moreover, a new rule of international
law holds that a State established in violation of the right of
self-determination is a nullity in international law.
Another question which concerns the self-determination of
peoples is: Can the right of self-determination be applied to
non-colonial entities? Certainly the main objective of the right of
self-determination was to bring a speedy end to colonialism. However,
since codification of that principle in the UN Charter, not one of
the major international instruments which have dealt with the right
of self-determination have limited the application of the right to
colonial situations. For example, the common Article 1 of the two
International Human Rights Conventions of 1966 (International Covenant
on Civil and Political Rights and International Covenant on Economic,
Social and Cultural Rights) applies the right to "all peoples" without
any restriction as to their status, and the obligation rests on all
States. Likewise, principle VIII of the Final Act of the Helsinki
Conference 1975 includes: "by virtue of the principle of equal rights
and self-determination of peoples, all peoples have the right, in
full freedom, to determine, when and as they wish, their internal
and external political status, without external interference, and to
pursue as they wish their political, economic, social and cultural
development". State practice also supports a broader application of
the right of self-determination beyond strictly colonial confines.
Indeed, the international Commission of Jurists, in its report on
Bangladesh's secession, stated that: "if one of the constituent peoples
of a State is denied equal rights and is discriminated against, it is
submitted that their full right of self-determination will revive". In
the Treaty on the Final Settlement with Respect to Germany (September
12, 1990), which was signed by four of the five Permanent Members of
the Security Council, it was expressly mentioned that the "German
people, freely exercising their right of self-determination, have
expressed their will to bring about the unity of Germany as a State",
[Preamble, para. 11], despite the fact that neither East nor West
Germany was a colony. It was also been applied by States in the context
of the break-up of the former Soviet Union and former Yugoslavia.
TERRITORIAL INTEGRITY AND POLITICAL INDEPENDENCE "Territorial
Integrity": Evaluation and Content The notion of "territorial
integrity" has been employed only three times in international
instruments. All other cases are only references to these said
documents. The concepts of territorial integrity and political
independence emerged during the years immediately following the end
of World War I. Article 10 of the Covenant of the League of Nations
stipulated that: "the Members of the League undertake to respect and
preserve as against external aggression the territorial integrity and
existing political independence of all Members of the League". The
same understanding of "territorial integrity" was reaffirmed in the
UN Charter: "2(4). All Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations." The
other important international instrument which is often referred
to is the Helsinki Final Act (adopted on August 1, 1975) which
requires the following: "The participating States will refrain in
their mutual relations, as well as in their international relations
in general, from the threat or use of force against the territorial
integrity or political independence of any State ..." It is obvious
that the Helsinki Final Act, likewise the UN Charter and League of
Nations Covenant earlier, condemns merely the use of force against
territorial integrity and does not unconditionally advocate for
the absolute maintenance of territorial integrity. It makes clear
that use of external force or threat of use against territorial
integrity and political independence is unacceptable. Meanwhile, the
Helsinki Final Act (Chapter 1) specifically holds that: " frontiers
can be changed, in accordance with international law, by peaceful
means and by agreement." It is apparent that ever since the first
time that the notion of "territorial integrity" appeared within
the domain of international law, it has been closely intertwined
with the question of the use of external force. In other words, the
principle of "territorial integrity" is traditionally interwoven with
the fundamental principle of the prohibition of the threat or use of
force and not with the absolute preservation of the territory of a
state intact. As it was mentioned above, it is just the "prohibition
of use of [external] force" and the renunciation of "the use of force
by one state to conquer another state or overthrow its government."
"Territorial Integrity": Scope, Limitation and Status under
International Law. In modern political life there are repeated wrongful
attempts to present "territorial integrity" as a general limitation
on the right to self-determination. The basis for such limitation
is false because the government of a State which does not represent
the whole population on its territory without discrimination cannot
succeed in limiting the right of self-determination on the basis that
it would infringe that State's territorial integrity.
Moreover, state practice shows that territorial integrity limitations
on the right of self-determination are often ignored, as seen in
the recognition of the independence of Bangladesh (from Pakistan),
Singapore (from Malaysia) and Belize, "despite the claims of
Guatemala". In addition, after the recognition by the international
community of the disintegration of the Soviet Union and Yugoslavia,
recognition of East Timor and Eritrea, recognition to a certain extent
of Kosovo, Abkhazia and South Ossetia, it could now be the case that
any government which is oppressive to peoples within its territory
may no longer be able to rely on the general interest of territorial
integrity as a limitation on the right of self-determination.
Therefore there is a clear-cut understanding: only a government of a
State which allows all its peoples to decide their political status
and economic, social and cultural development freely has an interest
of territorial integrity which can possibly, only possibly, limit the
exercise of a right of self-determination. So territorial integrity,
as a limitation on the exercise of the right of self-determination,
can apply only to those States in which the government represents
the whole population in accordance with the exercise of internal
self-determination. Thus, there is an apparent conceptual link between
democracy and self-determination. Democracy is often viewed as internal
self-determination, and secession as external self-determination,
that is, as the right of a people to govern itself, rather than be
governed by another people. Moreover, it is clear that those deprived
of the right of self-determination can seek forcible international
support to uphold their right of self-determination and no State
can use force against such groups. As it was referred above,
the Declaration on Principles of International Law provides that
"every State has the duty to refrain from any forcible action which
deprives peoples ... of their right of self determination and freedom
and independence". The increase in actions by the international
community which could be classed as humanitarian intervention,
such as in Somalia and with the creation of "safe havens" for the
Kurds North of the 36th parallel in Iraq (1991-2003), indicates
the reduced importance given by the international community to
the territorial integrity of a State when human rights, including
the right of self-determination, are grossly and systematically
violated. The right of self-determination applies to all situations
where peoples are subject to oppression by subjugation, domination
and exploitation by others. It is applicable to all territories,
colonial or not, and to all peoples. Indeed, many of the claims for
self-determination arose because of unjust, State-based policies
of discrimination and when the international legal order failed to
respond to the legitimate aspirations of peoples. Self-Determination:
Human Rights and the Right to Secession One of the supposed dangers
of self-determination is that it might encourage secession. First
of all, there is no rule of international law that condemns all
secessions under all circumstances. Self-determination includes the
right to secede. In a situation when the principle of territorial
integrity is clearly incompatible with that of self-determination,
the former must, under present international law, give way to the
latter. For instance, if a majority or minority insists on committing
an international crime, such as genocide, or enforces a wholesale
denial of human rights as a deliberate policy against the other part,
it is submitted that the oppressed party, minority or majority, may
have recourse to the right of self-determination up to the point of
secession. As Azerbaijan used force in answer to the free and peaceful
expression of the will of the people of Nagorno-Karabakh (rallies,
referendums, claims, appeals), took inadequate means of punishment,
perpetrated massacres of the Armenian citizens of Azerbaijan in
Sumgait, Baku, Kirovabad, and waged a ruthless war with Ukrainian,
Afghan, Russian mercenaries and sustained defeat, it cannot expect
that the people of Nagorno-Karabakh will renounce their lawful right
and will not exercise their right of self-determination. Actually, the
world community is under legal and moral obligation to recognize the
political self-determination of the people of Nagorno-Karabakh, i.e.
to recognize the Republic of Nagorno-Karabakh; if a de facto state has
crystallized, refusal to recognize it may be tantamount to a denial
of self-determination. Moreover, there is a clear understanding
in international law: after the international requirements for the
recognition of belligerency have been fulfilled (as it was done with
regard to Nagorno-Karabakh by the Bishkek Protocol (May 5, 1994), and
by the Cease-fire Agreement, (May 12, 1994)), a duty of recognition
of belligerency necessarily follows, and refusal of recognition is
interference with the right of political self-determination of the
people of a State, and therefore constitutes illegal intervention.
This obligation arises from the understanding that the principle and
rules on self-determination are erga omnes, that is, they belong
to that class of international legal obligations which are not
"bilateral" or reciprocal, but are in favor of all members of the
international community. In the Loizidou v. Turkey Case, a 1996
judgment of the European Court of Human Rights, Judge Wildhaber
identifies an emerging consensus that the right of self-determination,
more specifically secession, should be interpreted as remedial for
certain human rights abuses: "Until recently in international practice
the right to self-determination was in practical terms identical to,
and indeed restricted to, a right to decolonisation. In recent years
a consensus has seemed to emerge that peoples may also exercise a
right to self-determination if their human rights are consistently
and flagrantly violated or if they are without representation
at all or are massively underrepresented in an undemocratic and
discriminatory way. If this description is correct then the right
to self-determination is a tool which may be used to re-establish
international standards of human rights and democracy". As Judge
Wildhaber attests, there is increasing agreement among authors that
the right of self-determination provides the remedy of secession to a
group whose rights have been consistently and severely abused by the
state. The self-determination of the people of Nagorno-Karabakh must
certainly be assessed as an act of corrective justice as well. So a
minority's entitlement to self-determination can and must be judged
within a human rights framework. Self-determination postulates the
right of a people organized in an established territory to determine
its collective political destiny in a democratic fashion. It is legal
nonsense to presume that self-determination should take place within
previous administrative borders, without regard for the cultural,
linguistic or ethnic identity of the people there. Internal boundaries
in the former Soviet Union were often drawn in a way which ensured
that many members of the titular nation were outside the boundaries
of their (titular) republic, as it was with Nagorno-Karabakh. A
politically disempowered distinct group in a specific region has
the right to independence, regardless of whether or not they are
organized in an administrative unit. There is no doubt that the people
of Nagorno-Karabakh (not only the people of the Nagorno-Karabakh
Autonomous Region) are entitled to independence as their choice of
self-determination due to the extreme discrimination that they faced
under Azerbaijan.
Summary: · Self-determination is an ancient political right. Presently
the right to self-determination is a well-established principle in
public international law. The principle has been confirmed, developed
and given more tangible form by a consistent body of State practice
and has been embodied in various international instruments. · The
principle of self-determination is exemplified in the decisions
by the International Court of Justice (ICJ). · The principle of
self-determination is one of the fundamentals of peaceful and
friendly international relations. Respect for self-determination
is a condition for world peace. Those deprived of the right of
self-determination can seek forcible international support to
uphold their right of self-determination. · Self-determination as
a principle of international law is universal in scope. The right
of self-determination applies to all situations where peoples are
subject to oppression by subjugation, domination and exploitation
by others - all peoples and nations, without distinguishing between
those which have attained statehood and those which have not. · The
principle of the self-determination of peoples is a legal principle
and is a jus cogens (peremptory) norm of international law. · The
right of self-determination is the right to choose a form of political
organization and relations with other groups. Denial of the right of
to self-determination is a human rights violation and constitutes a
breach of international law. · The right of peoples and nations to
self-determination is a prerequisite to the full enjoyment of all
fundamental human rights. Therefore the General Assembly recommended
that the member states of the United Nations uphold the principle of
self-determination of all peoples and nations. · Article 2(4) of the
UN Charter has nothing to do with absolute "territorial integrity",
but is simply the rule against intervention, a "prohibition of use
of force" and purely calls to refrain from "the use of force by
one state to conquer another state or overthrow its government." ·
Self-determination includes the right to secede. The people of
Nagorno-Karabakh (not only the people of the Nagorno-Karabakh
Autonomous Region) are entitled to independence as their choice
of self-determination. · Self-determination postulates the right
of a people organized in an established territory to determine its
collective political destiny in a democratic fashion.
From: A. Papazian