The right of self-determination contributes to the development of international law in the sense of the development of human rights and underlies the international order. The importance of the principle stems from its inclusion in United Nations Charter. 1It was incorporated into Art 1(2) of UN Charter, which represents the purposes of the United Nations 2; “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” 3.]
Recognition of the right of external self-determination within the right to self-determination leads to the option of independence. The internal self-determination may result in i.e. the autonomy for the entity.
Art. 1 of International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights declares 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.” 4;
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3, art 1.] The principle of self-determination is determined in an unrestricted form; therefore it is open for broad interpretation in differing situations. 5
The erga omnes character of the right of self-determination was reaffirmed by International Court of Justice in Case concerning East Timor: “(…) the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court …; it is one of the essential principles of contemporary international law.” 6  ]
The dimension of right to self-determination has two components; the right to internal and the external self-determination. Both of these terms and their collision are much related to the every secessionist impulse.
Internal Self-Determination
The internal dimension is met by satisfying the principle of self-determination on some level within a state. It is achieved by participation of peoples or groups in the political system of a state with the respect to the state’s territorial integrity. 7 4th January 2015 [hereinafter “Crawford – Quebec”].]
The form of self-determination and its internal dimension is based on Art. 1 ICCPR and Art 1. ICESC and also on the other legal instruments i.e. the Helsinki Final Act and the doctrinal teaching. The internal aspect encompasses the right of ‘a people’ to forms of political, economic and cultural participation. 8
External Self-Determination
The modern theories of the right to external self-determination are based on its reach beyond the decolonization. The right to external self-determination in modern context arises especially from practice and present status of international affairs.
The Supreme Court of Canada in Reference re Secession of Quebec identified three circumstances. Three declared conditions under which the right to external self-determination may be considered are:
The case of decolonization
Subjection of peoples to alien subjugation, domination or exploitation
When a people is blocked from the meaningful exercise of its right to self-determination. 9
These circumstances were mentioned also in the Case of Cameroon and Katanga, which was judged by the Court of African Union. Decisions in these two cases coupled the b) and c) conditions to the right to remedial secession. 10, 4th  January 2015, [hereinafter “Cameroon”].] The second condition means extreme grievances on people and gross violations of human rights.  As mentioned-above, this theory is allowing the right to secession, although only as an ultima ratio.
Exploitation of Peoples
One of the fundamental principles of United Nations is the promotion of respect for human rights and for fundamental freedoms for all without distinction. 11 Oppression of people means massive and systematic human rights violations, such as ethnic cleansing, mass murder, slaver and widespread torture. 12The oppression of people plays a part in the many cases in a recent past, such as Kosovo, in which the central government reached toward radical means of maintaining power and control over its populations before or after the secessionist tendencies.
Secession as a the Ultimate Last Resort
The third condition allows the right to remedial secession only under exhausting the meaningful ways to apply for the right to internal self-determination within the parental state.
The condition of exhaustion the application of the right to self-determination within the domestic ways means, that if people are internally blocked from the meaningful exercise of the right to self-determination, they are authorized to exercise it by secession, as a last resort. 13, p. 202.]
A. Buchanan refers to the secession as a last way of remedy in connection to Kosovo Case and Case of South Sudan. Secession became the option of the last resort, while it was clear that both of the parental states Serbia and Sudan had committed serious grievances on their population with no change to realize remedy of any kind. 14
The Right to Self-Determination in Practice
The right to self-determination and its application emerges with the people. The International Court of Justice advised in the case Western Sahara (1975) that there is a strong legal claim for “the principle of self-determination as functionalized in the free and genuine expression of the will of the peoples of [a] territory.” 15The example of Western Sahara indicates that ‘a people’ could lay a claim to the territory and remain free from the outside intrusion. 16
The Yugoslavia case concerns the right to self-determination of the Serbian population in Croatia and Bosnia-Herzegovina. The Badinter Commission was established in 1991 and it was appointed to answer the legal questions arising from the dissolution of Socialist Federal Republic of Yugoslavia. The Badinter Commission shows its view on the topic of self-determination in Opinion No. 2. “The Arbitration Committee is therefore of the opinion: (i) that the Serbian population in Bosnia-Herzegovina and Croatia is entitled to all the rights concerned to minorities and ethnic groups under international law.” 17.]
The Canadian Supreme Court addressed in 1998 decision in the case of Québec, in which francophone population of Québec demanded unilateral secession from Canada. Although the Canadian Supreme Court came to the conclusion that secession would be illegal for Québec, it stated that secession could be legally recognized under different circumstances. The Supreme Court of Canada referred to the right to self-determination at para 126: “[t]he recognized sources of international law establish that the right to self – determination of a people is normally fulfilled through internal self – determination.” 18The non-recognition was reasoned by the successful cooperation between the two governments; the central government and the Province of Québec.
The decision leads to conclusion, that Québécois were not oppressed by the central government. The province maintained complete internal agenda of language, education cultural programs, and social developments. Named aspects of self-determination are identified as crucial aspects in Helsinki Final Act. 19Hence Quebecers were recognized as fully competent to uninhibitedly enjoy internal self-determination; therefore there was no need for external self-determination. The exercise of the right to self-determination must have some limits to prevent threats to an existing state’s territorial integrity. 20
The Friendly Relations Declaration
The limits of the right to self-determination are shown in Resolution 1514 (XV). 21 The connection between democratic representation and self-determination is reflected in the „safeguard clause“ which does not authorize: “ … any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples (…) and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.“ 22
A similar argument can be deduced from The Aaland Island Question: Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, wherein the Commission stated: “The separation of a minority from a State of which it forms a part and its incorporation into another State can only be considered
(Zdroj: commons.wikimedia.org)

(Zdroj: commons.wikimedia.org)

The right of self-determination contributes to the development of international law in the sense of the development of human rights and underlies the international order. The importance of the principle stems from its inclusion in United Nations Charter. 1It was incorporated into Art 1(2) of UN Charter, which represents the purposes of the United Nations 2; “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” 3.]

Recognition of the right of external self-determination within the right to self-determination leads to the option of independence. The internal self-determination may result in i.e. the autonomy for the entity.

Art. 1 of International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights declares 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.” 4;

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3, art 1.] The principle of self-determination is determined in an unrestricted form; therefore it is open for broad interpretation in differing situations. 5

The erga omnes character of the right of self-determination was reaffirmed by International Court of Justice in Case concerning East Timor: “(…) the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court …; it is one of the essential principles of contemporary international law.” 6  ]

The dimension of right to self-determination has two components; the right to internal and the external self-determination. Both of these terms and their collision are much related to the every secessionist impulse.

1. Internal Self-Determination

The internal dimension is met by satisfying the principle of self-determination on some level within a state. It is achieved by participation of peoples or groups in the political system of a state with the respect to the state’s territorial integrity. 7 4th January 2015 [hereinafter “Crawford – Quebec”].]

The form of self-determination and its internal dimension is based on Art. 1 ICCPR and Art 1. ICESC and also on the other legal instruments i.e. the Helsinki Final Act and the doctrinal teaching. The internal aspect encompasses the right of ‘a people’ to forms of political, economic and cultural participation. 8

2. External Self-Determination

The modern theories of the right to external self-determination are based on its reach beyond the decolonization. The right to external self-determination in modern context arises especially from practice and present status of international affairs.

The Supreme Court of Canada in Reference re Secession of Quebec identified three circumstances. Three declared conditions under which the right to external self-determination may be considered are:

  1. The case of decolonization
  2. Subjection of peoples to alien subjugation, domination or exploitation
  3. When a people is blocked from the meaningful exercise of its right to self-determination. 9

These circumstances were mentioned also in the Case of Cameroon and Katanga, which was judged by the Court of African Union. Decisions in these two cases coupled the b) and c) conditions to the right to remedial secession. 10, 4th  January 2015, [hereinafter “Cameroon”].] The second condition means extreme grievances on people and gross violations of human rights.  As mentioned-above, this theory is allowing the right to secession, although only as an ultima ratio.

Exploitation of Peoples

One of the fundamental principles of United Nations is the promotion of respect for human rights and for fundamental freedoms for all without distinction. 11 Oppression of people means massive and systematic human rights violations, such as ethnic cleansing, mass murder, slaver and widespread torture. 12The oppression of people plays a part in the many cases in a recent past, such as Kosovo, in which the central government reached toward radical means of maintaining power and control over its populations before or after the secessionist tendencies.

Secession as a the Ultimate Last Resort

The third condition allows the right to remedial secession only under exhausting the meaningful ways to apply for the right to internal self-determination within the parental state.

The condition of exhaustion the application of the right to self-determination within the domestic ways means, that if people are internally blocked from the meaningful exercise of the right to self-determination, they are authorized to exercise it by secession, as a last resort. 35, p. 202.]

A. Buchanan refers to the secession as a last way of remedy in connection to Kosovo Case and Case of South Sudan. Secession became the option of the last resort, while it was clear that both of the parental states Serbia and Sudan had committed serious grievances on their population with no change to realize remedy of any kind. 14

3. The Right to Self-Determination in Practice

The right to self-determination and its application emerges with the people. The International Court of Justice advised in the case Western Sahara (1975) that there is a strong legal claim for “the principle of self-determination as functionalized in the free and genuine expression of the will of the peoples of [a] territory.” 15The example of Western Sahara indicates that ‘a people’ could lay a claim to the territory and remain free from the outside intrusion. 16

The Yugoslavia case concerns the right to self-determination of the Serbian population in Croatia and Bosnia-Herzegovina. The Badinter Commission was established in 1991 and it was appointed to answer the legal questions arising from the dissolution of Socialist Federal Republic of Yugoslavia. The Badinter Commission shows its view on the topic of self-determination in Opinion No. 2. “The Arbitration Committee is therefore of the opinion: (i) that the Serbian population in Bosnia-Herzegovina and Croatia is entitled to all the rights concerned to minorities and ethnic groups under international law.” 17.]

The Canadian Supreme Court addressed in 1998 decision in the case of Québec, in which francophone population of Québec demanded unilateral secession from Canada. Although the Canadian Supreme Court came to the conclusion that secession would be illegal for Québec, it stated that secession could be legally recognized under different circumstances. The Supreme Court of Canada referred to the right to self-determination at para 126: “[t]he recognized sources of international law establish that the right to self – determination of a people is normally fulfilled through internal self – determination.” 18The non-recognition was reasoned by the successful cooperation between the two governments; the central government and the Province of Québec.

The decision leads to conclusion, that Québécois were not oppressed by the central government. The province maintained complete internal agenda of language, education cultural programs, and social developments. Named aspects of self-determination are identified as crucial aspects in Helsinki Final Act. 19Hence Quebecers were recognized as fully competent to uninhibitedly enjoy internal self-determination; therefore there was no need for external self-determination. The exercise of the right to self-determination must have some limits to prevent threats to an existing state’s territorial integrity. 20

The Friendly Relations Declaration

The limits of the right to self-determination are shown in Resolution 1514 (XV). 21 The connection between democratic representation and self-determination is reflected in the „safeguard clause“ which does not authorize: “ … any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples (…) and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.“ 44

A similar argument can be deduced from The Aaland Island Question: Report Submitted to the Council of the League of Nations by the Commission of Rapporteurs, wherein the Commission stated: “The separation of a minority from a State of which it forms a part and its incorporation into another State can only be considered

 

Zuzana Žaludová

  1.  M. Planck: Self-determination, p. 27, 28.
  2.  Ibid, p. 6.
  3.  Charter of the United Nations (24 October 1945) 1 UNTS XVI, art.  1(2) [hereinafter “UN Charter”
  4.  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art.  1 [hereinafter “ICCPR”
  5.  M. Planck: Self-determination, p. 45.
  6.  Case concerning East Timor, (Portugal v. Australia) (Hungary v. Slovakia) (ICJ) (1995). [hereinafter “East Timor Case”
  7.  Crawford J, ‘State Practice and International Law in Relation to Unilateral Secession Report to Government of Canada concerning unilateral secession by Quebec’ (1997), [online:http://tamilnation.co/selfdetermination/97crawford.htm
  8.  M. Planck: Self-determination.
  9.  Reference re Secession of Quebec para 133, 134.
  10.  Kevin Mgwanga Gunme et al / Cameroon (May 27 2009) Decision 266/03 [online: http://www.achpr.org/communications/decision/266.03/
  11.  UN Charter, Art. 1(3).
  12.  Krüger, H., ‘The Nagorno-Karabakh Conflict: A Legal Analysis‘, Springer, edition 2010 p. 75.
  13.  Reference re Secession of Quebec para 134;
Wood, M, Milanovic, M., ‘The Law and Politics of the Kosovo Advisory Opinion‘ [online:http://ukcatalogue.oup.com/product/9780198717515
  •  Buchanan, Theories of secession.
  •  Western Sahara (Advisory Opinion) (16 October 1975) ICJ Rep 12, para 58. UNGA Res 1514 (XV) (14 December 1960).
  •  Day: The Remedial Right of Secession, p. 2.
  •  Badinter Commision, The Opinions of the Badinter Arbitration (27 August 1991), Opinion 2(1) [hereinafter “Badinter Commission”
  •  Reference re Secession of Quebec.
  •  Day: The Remedial Right of Secession.
  •  Reference re Secession of Quebec, para 127.
  •  Tomuschat C., ‘Self-determination in a post-colonial world’ in Henry J. Steiner, Philip Alston (ed), International human rights in context: law, politics, morals: text and materials (Oxford: Clarendon Press 1996), 27.
  •  UNGA Res 2625 (XXV) (24th October 1970), principles 7;
  • UNGA Res 1514 (XV) (14th December 1960), art. 46 (1).
  •  M. Planck: Self-determination, p. 27, 28.
  •  Ibid, p. 6.
  •  Charter of the United Nations (24 October 1945) 1 UNTS XVI, art.  1(2) [hereinafter “UN Charter”
  •  International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art.  1 [hereinafter “ICCPR”
  •  M. Planck: Self-determination, p. 45.
  •  Case concerning East Timor, (Portugal v. Australia) (Hungary v. Slovakia) (ICJ) (1995). [hereinafter “East Timor Case”
  •  Crawford J, ‘State Practice and International Law in Relation to Unilateral Secession Report to Government of Canada concerning unilateral secession by Quebec’ (1997), [online:http://tamilnation.co/selfdetermination/97crawford.htm
  •  M. Planck: Self-determination.
  •  Reference re Secession of Quebec para 133, 134.
  •  Kevin Mgwanga Gunme et al / Cameroon (May 27 2009) Decision 266/03 [online: http://www.achpr.org/communications/decision/266.03/
  •  UN Charter, Art. 1(3).
  •  Krüger, H., ‘The Nagorno-Karabakh Conflict: A Legal Analysis‘, Springer, edition 2010 p. 75.
  •  Reference re Secession of Quebec para 134;

    Wood, M, Milanovic, M., ‘The Law and Politics of the Kosovo Advisory Opinion‘ [online:http://ukcatalogue.oup.com/product/9780198717515

  •  Buchanan, Theories of secession.
  •  Western Sahara (Advisory Opinion) (16 October 1975) ICJ Rep 12, para 58. UNGA Res 1514 (XV) (14 December 1960).
  •  Day: The Remedial Right of Secession, p. 2.
  •  Badinter Commision, The Opinions of the Badinter Arbitration (27 August 1991), Opinion 2(1) [hereinafter “Badinter Commission”
  •  Reference re Secession of Quebec.
  •  Day: The Remedial Right of Secession.
  •  Reference re Secession of Quebec, para 127.
  •  Tomuschat C., ‘Self-determination in a post-colonial world’ in Henry J. Steiner, Philip Alston (ed), International human rights in context: law, politics, morals: text and materials (Oxford: Clarendon Press 1996), 27.
  •  UNGA Res 2625 (XXV) (24th October 1970), principles 7;

    UNGA Res 1514 (XV) (14th December 1960), art. 46 (1).