Self-determination territorial

Kaiyan Homi Kaikobad, Self-determination, Territorial Disputes and International Law An Analysis of UN and State Practices , 1... 

D A statement of principles on Israeli withdrawal from occupied territories and the right of Palestinians to self-determination. 

Israeli armed forces withdraw from all occupied territories and Palestinians gain right to self-determination ... 

Gaza, and the airfields there are used for civilian purposes only. Finally, Israeli armed forces withdraw from all occupied territories. However, Israel makes no promise for Palestinians about their self-determination. 

The principle of equal rights and self-determination. .. does not grant an unlimited right of secession to populations living in the territory of an independent sovereign state. .. 

There is a well-established rule of international law protecting the territorial integrity and unity of states. For instance, even UN Security Council Resolution 1514 (XV), which first enshrined the principle of self-determination as classically understood, determined that ... 

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-... 

Nevertheless, the continued refusal of the international community to apply self-determination norms when they conflict with the statist norm of territorial integrity only underscores to sub-state groups the perceived irrelevance of international law to the problems faced by minorities and indigenous peoples throughout the world. 

Challenges to the territorial dfnition of former colonial entities (for example, Bougainville, Sri Lanka, the Philippines, Burma, India in relation to tribal peoples). These are cases where a former colony exercised the right to self-determination, but ethnic movements emerging within the newly independent state seek separation. 

However, Article 4 focuses on the right to autonomy as the prineipal means of implementing self-determination in this eontext. Moreover, Article 46 emphasises that nothing eontained in the deelaration should be taken to authorise or eneourage aetion against the territorial unity of states. 

Manifestly, the doctrine of self-determination has different legal consequences in these various contexts. Within the confines of this discussion, the principal focus must lie on self-determination as an entitlement of peoples freely to determine the international legal status of a territory. Traditionally, there are three options independence, association or integration with another state. ... 

It is for the people to determine the destiny of the territory and not the territory the destiny of the people .This renowned definition of the right to self-determination, expressed by Judge Dillard in his Individual Opinion in the 1975 Western Sahara case, demonstrates the dangers of well-intentioned judicial activism, for there has rarely been a judicial pronouncement more dangerously mistaken than this one. 

Accordingly, self-determination disenfranchises populations. This process of disenfranchisement has traditionally proceeded in five steps. First, self-determination is intrinsically linked with, and deployed to justify, the disenfranchising doctrine of territorial unity. Second, there is the issue of the definition of the object of... 

The right to opposed unilateral secession stands in obvious tension with the claim to territorial integrity and unity of existing states. Governments have enshrined the doctrine of territorial unity in countless international declarations and other instruments, often tied to, or twinned with, declarations concerning self-determination. ... 

The granting of the right to self-determination as an apparent exception to the rule of territorial unity therefore appears to indirectly confirm the existence of such a rule. Why would it be necessary to invoke a positive entitlement to self-determination, if there was no broad prohibition of secession that otherwise applied Of course, the answer lies in the distinction between privileged and unprivileged secession noted above. However, the first disenfranchising element of self-determination is rooted in the suggestion that secession is only possible in the narrowly conceived circumstances where the doctrine applies. 

The classical right of colonial self-determination is now a core part of international law and enjoys a status that is legally superior to other international norms that do not enjoy this elevated position (jm cogens). However, it is applied only to colonial and non-self-governing territories of which practically none remain. This is the second disenfranchising aspect of the doctrine of self-determination it is established as an exception to the doctrine of territorial unity (above), but the exception is framed so narrowly that it does not apply to many or any situations of struggle for independence outside of the colonial context. 

As already noted, in addition to genuine colonies, it is accepted that peoples living under alien occupation (Palestine) and under racist regimes (formerly South Africa) are entitled to the right of self-determination. The same applies to secondary colonies. These are entities that were entitled to colonial self-determination in the first place. However, when they were at the very point of administering the act of self-determination, they were forcibly incorporated into another state. East Timor and Western Sahara are the two principal examples of this phenomenon. The 1999 referendum in East Timor, and the territory s subsequent independence from Indonesia, is an example of the implementation of colonial self-determination in the classical sense, albeit somewhat delayed. 

While self-determination is an activist right intended to overcome the evils of colonialism, it is in fact administered in a way that is consistent with the territorial designs and administrative practices imposed by the colonisers. This is the third level of disenfranchisement of the doctrine of self-determination. For the definition of the entity that is entitled to exercise the right of self-determination is in itself a product of colonial administration. Hence, self-determination does not aim to restore ethnic or tribal links among populations that were artificially divided by the colonisers. Instead, the people entitled to self-determination are those who happen to live within the colonial boundaries drawn by the colonial powers. 

The aim of decolonisation is therefore not the restoration of the situation that existed prior to colonialism. Instead, the facts are merely re-shaped in accordance with the reality of colonial administration. Thus, it is the territorial shape of that administration that defines the self-determination entity, not the will of the people. Herein lies the third element of disenfranchisement. Contrary to the dictum of Judge Dillard, quoted at the outset, the free will of populations can only apply within boundaries that have been colonially defined. For instance. 

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