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Self-Determination

Published online by Cambridge University Press:  28 March 2017

Rupert Emerson
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Extract

Any examination of self-determination runs promptly into the difficulty that while the concept lends itself to simple formulation in words which have a ring of universal applicability and perhaps of revolutionary slogans, when the time comes to put it into operation it turns out to be a complex matter hedged in by limitations and caveats. In a different turn of phrase, what is stated in big print—as in the reiterated United Nations injunction: All peoples have the right to self-determination—is drastically modified by what follows in small print. Indeed, once the major original exercise of self-determination has been undertaken, the small print takes over and becomes the big print which establishes the new and far more restrictive guidelines.

Type
Research Article
Information
American Journal of International Law , Volume 65 , Issue 3 , July 1971 , pp. 459 - 475
Copyright
Copyright © American Society of International Law 1971

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References

1 Wolfgang Friedmann, , The Changing Structure of International Law 139 (Columbia University Press, 1964)Google Scholar. His comment bore specifically on declaratory resolutions of the U.N.

2 Rosalyn Higgins, , “The United Nations and Lawmaking: the Political Organs,” 64 A.J.I.L. 43 (Sept., 1970)Google Scholar.

3 U. N. General Assembly, 15th Sess., Official Records, Supp. No. 16 (A/4684), p. 66.

4 Ibid., 16th Sess., Supp. No. 17 (A/5100), p. 65.

5 Rosalyn Higgins, , The Development of International Law through the Political Organs of the United Nations 101-102 (Oxford University Press, 1963)Google Scholar. Muhammad Aziz Shukri, , The Concept of Self-Determination in the United Nations 338-350 (Damascus, Syria, 1965)Google Scholar, also inclines to accept self-determination as a legal right, but he qualifies his acceptance by pointing to the many political considerations, based on national interest, which circumscribe its application.

6 Leo Gross, “The Right of Self-Determination in International Law,” in New States in the Modern World, edited by Martin Kilson (a forthcoming publication of the Harvard University Press.)

7 Ibid.

8 U. N. General Assembly, 20th Sess., Official Records, Supp. No. 14 (A/6014), p. 3.

9 Ibid., 21st Sess., Supp. No. 16 (A/6316), p. 5.

10 Save Portugal, which clings to the contention that it has no colonies.

11 “The more strictly the people to whom it is to be applied are defined, the more possible it is to classify self-determination as a right which can be stated with reasonable precision and given institutional expression.” Harold S. Johnson, Self-Determination within the Community of Nations 55 (Leiden, 1967).

12 Cited note 3 above.

13 Rosalyn Higgins, having found self-determination to be an international legal right but one whose extent and scope is still open to some debate, defined it as “the right of the majority within an accepted political unit to exercise power.” The Development of International Law through the Political Organs of the United Nations 103-105. This serves to embrace the current anti-colonial phase of self-determination and the Hungarian rising against Soviet domination, but it runs counter to the post-World War I version. It also risks being out of tune with what may well be the next incarnation of selfdetermination when the peoples now subjected to what they regard as alien rule in states composed of heterogeneous elements rise up to demand the right to rule themselves. Her assertion that, in the present political climate, “the right of self-determination is likely to continue to be presented in a racial context” is more plausible than the contention that traditionally the term self-determination referred to the desire of a race for independence. Ibid. 105-106.

14 7 U.N. Monthly Chronicle 36 (Feb., 1970). The Special Committee on Principles of International Law concerning Friendly Relations and Cooperation among States, in dealing in its Report with the principle of equal rights and self-determination of peoples, which it accepted as a principle of international law, took a firm stand against any action which would dismember or impair the territorial integrity or political unity of independent states. U.N. General Assembly, 25th Sess., Official Records, Supp. No. 18 (A/8018), 1970, p. 69. For self-evident reasons the Organization of African Unity, in its Charter and elsewhere, has been particularly firm in its insistence on the maintenance of sovereignty and territorial integrity and on banning interference in internal affairs.

15 U.N. General Assembly, 20th Sess., Official Records, Supp. No. 14 (A/6014), p. 11; 60 A.J.I.L. 662 (1966).

16 “If it becomes common for Assembly resolutions of this nature to be passed by large majorities only to be immediately ignored, then the seriousness with which the Organization deserves to be taken will have been significantly downgraded.” David A. Kay, , “The Impact of African States on the United Nations,” 23 International Organization 32 (Winter, 1969)Google Scholar. It deserves also to be noted that in a distinctive burst of honesty Malta declined to participate in the unanImous vote for the Declaration on the ground that it was being openly violated by several states which voted for it, and that they were unlikely to modify their policies. 2 U.N. Monthly Chronicle 23 (Jan., 1966).

17 For the text of the Declaration see the Report of the Special Committee, cited note 14 above, pp. 62-71; also reprinted in 65 A.J.I.L. 244 (1971).

18 See Alexander J. Pollock, , “The South West Africa Cases and the Jurisprudence of International Law,” 23 International Organization 786 (Autumn 1969)Google Scholar.

19 U.N. Doc. A/AC.125/L.75 (Sept. IS, 1969), p. 4. The U.K. submitted an almost identical text, p. 6. In the Declaration adopted by the Special Committee there survived from these proposals the statement that states which complied with the principle of equal rights and self-determination, as described in the Declaration, were “thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour.” Report of the Special Committee 69.

20 Professor Karl W. Deutsch has suggested that “Scandinavianization” be substituted for “Balkanization,” thus producing an immediate change in implication and attitude. The derogatory sound of “Balkanization” obscures the very real possibility that the construction or maintenance of larger heterogeneous political units lumping together peoples without common bonds may produce disastrously costly results, of which Nigeria is the most recent unhappy example. Furthermore it has been cogently argued that the Austro-Hungarian Empire was not necessarily the ideal political solution and that balkanizing the Balkans was a step forward, not a step backward.

21 See Wainhouse, David W., Remnants of Empire (New York and Evanston, 1964)Google Scholar, and the voluminous documentation of the Special Committee of 24, dealing with the implementation of the Declaration on colonial independence.

22 U.N. General Assembly, 22nd Sess., Official Records, Supp. No. 1A(A/6701/ Add. 1), p. 20.

23 Status and Problems of Very Small States and Territories (Unitar Series, No. 3). PP- 73-74. The population figures cited are taken from the relevant issues of the Yearbook of the United Nations and the Unitar Status and Problems.

24 A number of Assembly resolutions make substantially the same point. Res. 1541 (XV) of 1960, for example, states that self-government can be attained through emergence as an independent state, or through free association or integration with an independent state; but the deep-rooted preference for independence generally shines out undisguised.

25 See Unitar, Status and Problems, particularly Pt. II, Chap. II: and Patricia Wohlgemuth Blair, The Ministate Dilemma (Carnegie Endowment for International Peace, Occasional Paper No. 6, 1967).

26 Unitar, op. cit. 157.

27 U.N. General Assembly, 18th Sess., Official Records, Supp. No. 15 (A/5515), p. 8.

28 For an illuminating discussion of this problem as well as of a number of other points relevant to self-determination, see Chap. 5, “Self-Determination and Minority Rights,” in Vemon Van Dyke, Human Rights, the United States, and World Community (New York, London, Toronto, 1970).

29 Roger Fisher, “The Participation of Microstates in International Affairs,” 1968 Proceedings, American Society of International Law 166 (Washington, D. C, 1968).

30 Professor Fisher explicitly recognized that in order to have its advice accepted as expert and impartial, without political preconceptions, the “U.N. would have to change quite radically its orientation to small places,” departing from the rôle hitherto played by the Committee of 24 “as an international lobby for absolute independence regardless of the consequences.” Ibid. 168-169. How real is the prospect that the U.N. could divorce itself from politics and political preconceptions for such purposes?

31 It deserves to be noted that promptly following Professor Fisher's paper at the 1968 A.S.I.L. meeting, Elizabeth Brown of the Office of U.N. Political Affairs, Department of State, called attention to “some serious problems” involved if the U.N. were to offer political and constitutional advice to an area under the administration of a sovereign state. On the basis of past experience, it was her conclusion that the metropoles would find very little more than technical assistance in the narrow sense acceptable. Ibid. 180.

32 See the writer's Self-Determination Revisited in the Era of Decolonization (Occasional Paper No. 9, Center for International Affairs, Harvard University, 1964). Rosalyn Higgins sees the principle of self-determination as having, “over the last 15 years, led to the widespread view that there may now be a legal right of revolution; that is to say, that under the principle of self-determination the peoples of a territory must be allowed—if absolutely necessary by forceful means—to replace the government by one of their own choice. This principle finds express approval in the resolutions passed on the Hungarian intervention.” The Development of International Law through the Political Organs of the United Nations 211.

33 The Secretary General has in at least three recent instances been called upon to play a significant rôle in issues of self-determination: in 1963, certifying the willingness of the people of Sabah and Sarawak to join Malaysia; in 1969, joining in supervising “the act of free choice” of West Irian in remaining a part of Indonesia; and in 1970, undertaking to ascertain “the wishes of the people of Bahrain” at the request of the United Kingdom and Iran.