Self-determination, applications

Even in relation to such traditional colonies, the right to self-determination can only be exercised within the boundaries established by the colonial power in that way it does not overcome the effects of coloniahsm, but the self-determination entity itself is defined by it. Furthermore, the right is of singular application. As soon as a colony has gained independence, it will itself start defending its own territorial integrity with utmost vigour. There is no secession from secession. And when armed self-... 

This irrelevance, generated through the exclusive application of self-determination in the sense of possible secession in the colonial context, applies in at least three sets of circumstances ... 

Of course, many populations in other circumstances claim to be disenfranchised or suppressed. They will argue that they too have been subjected to colonialism. However, they are excluded from application of the concept. For example, Chechnya argued that it was forcibly incorporated into Russia during the period of imperialism and colonially exploited. Nevertheless, its claims to colonial self-determination were simply brushed aside on the international stage. Some politicians in Kosovo were tempted to make a similar argument in relation to Serbia. Again, this... 

The question arises as to what the legal position of such an entity would be in the event that it was faced with the prospect of forcible incorporation. There would certainly be room for the argument that this would amount to violation of the right to self-determination of the Taiwanese population, even if the vast majority of governments accepts the PRC claim that the territory is dejure part of China. Such an application of the doctrine of self-determination would reflect the entity s separate legal identity, developed in this instance over half a century of self-rule. However, it has to be admitted that this theory is as yet untested. 

Deferment of the implementation of a claim to self-determination which has, in principle, been accepted is not to be confused with deferment of implementation of statns after an act of self-determination. An example of deferment of status after the completion of the act of self-determination is furnished by East Timor. There, the central state concerned, Indonesia, denied that colonial self-determination was still applicable, the purported integration of the territory having taken place in accordance with the wishes of the population. Indonesia offered East Timor special autonomy. In an agreement with East Timor s colonial power, Portugal, of 5 May 1999, it was decided that a referendum on the proposed special autonomy would decide the status issue. If the referendum were in favour of the autonomy, East Timor wonld... 

Another model concerns the balancing of self-determination claims. Such settlements will unambiguously confirm the applicability of the rule of self-determination. However, they may then dilute the identification of the self-determination entity. Either side may claim confirmation of its legal position in this respect. As there is a mechanism for the administration of the act of self-determination attached, however, the issue is resolved in practice. In the case of Northern Ireland, this mechanism consists of recognising that a referendum must be held in both parts of the island, but that no change in status is possible without the concurrence of the North. 

Of course, classically, self-determination has been defined as the right of peoples freely to determine their political status and pursue their economic, social and cultural development.In practice, the application of this provision had been severely contextually reduced, in both its external and internal dimensions. As was noted at the outset, external self-determination in the sense of secession would appertain only to colonial peoples defined by prolonged colonial administration within uti possidetis boundaries. Internal self-determination would address both the constitutional system of public authority and the right of democratic participation in governance. However, it was simply presumed that any constitutional system and structures of governance were, merely by virtue of their existence, the product of free determination by the people concerned. Internal self-determination was therefore, until quite recently, practically irrelevant. 

Sara E. Allgood, United Nations Human Rights Entitlements the Right to Development Analyzed within the Application of the Right of Self-determination , Georgia Journal of International and Comparative Law (2003). 

One could argue that this project thus stops short of the really interesting question. It closes with an answer to minorities and self-determination. It does not go on further and tests the applicability of the conclusion in cases. This is a next step that remains to be done it is simply not within the scope of this project. 

Self-determination has shown itself to be a flexible concept. From Wilson s internal idea to decolonization it is argued it has turned back to political participation. If art. 1 is understood in this form there is much less reason to argue against a universal applicability. The Human Rights Committee has continuously applied self-determination to post-decolonization contexts and the idea has undoubtedly taken a general hold. ... 

A second but very important point is the applicability. Principle IV defines a colony and establishes the so-called salt-water rule. A colonial power must report on a territory that is geographically separate from the administering country. The territory must also be ethnically and/or culturally distinct. This rule is taken to establish that giving away an overseas territory does not threaten the territorial integrity of the colonial power. This is important in relation to minorities. If they were given any kind of external self-determination, most cases would threaten the territorial integrity which in turn would be against the spirit of the UN Charter. 

Rosenstock (1971), pp. 730 and 732. Rosenstock argues convincingly for an extra-colonial application of the right to self-determination. 

The documents on self-determination also meet most of Franck s criteria but show weaknesses on others. Res. 1541 is strong on determinacy and pedigree. The so-called salt-water rule would not be approved of in the original position and it lacks in coherence with other documents on self-determination. According to the principle of equality, self-determination is applicable to everyone and not limited by non-substantive criteria such as geographical separateness. It lacks coherence on the salt-water rule and even though adherence can be found, the supporting rules are often indeterminate. 

If this statement can be taken to mean that autonomy and self-government in general mean a denial of self-determination is not entirely clear. What is clear, however, is that we are dealing with an issue in the context of decolonization and here, external self-determination is undoubtedly applicable. 

Fourth, light needs to be shed on the issue for whom self-determination is actually applicable under recognized and accepted international law. It was introduced as a right for nations, and then it became a right of peoples. Considering that peoples and minorities are very close as groups, it has to be discussed how far international law has developed. 

On a different point, one may note that self-determination after World War I was only applicable to those peoples and territories whose destinies had to be resettled. It hardly promotes general applicability of self-determination, but it should soothe states that external self-determination can be made applicable only to abnormal situations. Settled and stable states do not need to fear self-determination. 

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