The Classical Right to Self-determination

While this appears logical, the reality is of course very different, as Asbjorn Tide puts it9  

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.  

Most notably, of course, General Assembly resolutions 1414 (XIV), 5 December 1959 and 2625 (XXV), 24 October 1970. Full text available at http //daccessdds.un.org/ doc/RESOLUTION/GEN/NRO/142/37/IMG/NR014237.pdf OpenElement and http //daccessdds.un.Org/doc/RESOLUTION/GEN/NR0/348/90/IMG/NR0348 90.pdf OpenElement respectively, accessed 3 November 2008. 

However, in the absence of external recognition, it is difficult to identify the point in time when an entity has achieved sufficient effectiveness to consolidate statehood outside of the colonial 

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It is too general to conclude that minorities have a right to self-determination. It is necessary to keep in mind that minorities are meant to be classic minorities. Self-determination is understood as meaning internal self-determination. Thus, a right to internal self-determination for classic minorities seems to emerge. This conclusion is reached within the framework of legitimacy and justice. It is necessary to place this conclusion in a larger context. 

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. 

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. 

Legitimacy and Justice allow for a more inclusive view on the international field compared to legal positivism and the sources doctrine. While the sources doctrine only lets us see certain aspects of international relations and international law, legitimacy and justice let us see more. They let us see, if not all, at least more of the actors and instruments that exist in the field of minority rights and self-determination. International law treats these two categories of actors and instruments differently. While international law has come to accept that states are not the only actors in international law, it has much more difficulty accepting classically non-binding instruments. 

This notion shows international self-determination and classic minorities belong together. The link between internal self-determination and classic minorities is fair. Depending on the circumstances, the same group of persons can be a people or a minority. Recognizing the right to internal self-determination for classic minorities in Europe overcomes historical inconsistencies, solves definitional problems and moves international law one step closer to reality. 

Chapter 3 provides an overview of minority rights and self-determination that can be found according to the classic sources of international law under art. 38 (1) ICl-S. The conclusion is that among these sources only treaty law is an indispensable source for this project Customary international law as the second of the two most important sources of international law is imbued with too many conceptual problems that even a modem approach of customary international law cannot solve sufficiently. 

The chapter shows a complex picture of actors and instruments in the fields of minority rights and self-determination. The sources doctrine of classic international law does not know how to deal with these actors and instruments. The sources doctrine relies on the sources of art. 38 (1) of the Statute of the Intemational Court of Justice. The instruments introduced in this chapter cannot be part of the analysis when relying solely on the sources doctrine yet, the instrument carmot be ignored. Therefore, an approach of intemational law is called for that allows for the actors and instruments to be taken seriously. 

The question whether minorities have a right to internal self-determination can now be answered in the affirmative. There are several important overlaps. Minority rights and self-determination overlap. Peoples and minorities overlap. Self-determination is best understood as an internal concept. Classic minorities in Europe have a right to internal self-determination. 

All the classic self-improvement books say a positive mental attitude is the key to success. As general and ambiguous as that statement is, the trait of Optimism comes closest to capturing the essence of this skill. If you have a sample of handwriting written on unlined paper, you can quickly determine how optimistic someone really is. The more the entire baseline is tilted up and to the right, the more positive this writer is. This "slanting uphill" is an easy trait to remember and accept, because both our body language and our... 

Ordinarily, constitutional self-determination will assign a right to secession only to federal-type territorial units, such as constituent republics, that are clearly defined in terms of territory. The classical example is furnished in the constitution of the former Union of Soviet Socialist Republics (USSR). In accordance with Leninist... 

If self-determination and minorities were completely separate, the conditionality of human rights violations would be superfluous. The categorical denial of a connection between self-determination and minorities does not make sense. If there is no possibility for minorities to achieve any kind of self-determination, then what does the conditionality propose The cormection between minorities and self-determination may be weak under classic international law but it exists. Usually, there are two ways of refusing self-determination to minorities. Either self-determination is restricted solely to the context of decolonization or self-determination is not applicable because minorities are not peoples. Both of these arguments do not hold up at closer scrutiny. By using Franck s and Rawls approaches, the connection between minorities and self-determination becomes much more obvious. 

Legitimacy is the procedural aspect of fairness. Justice is the substantive aspect of fairness. For the conclusion this means, in short, that a right to internal self-determination for classic minorities is fair. This does not mean that political reality will be changed. However, as the context shows, a right to internal self-determination for classic minorities is not threatening states in Europe. It is rather the recognition of a reality that has existed for the past 15-20 years and which has solid historical roots. 

The question considered in this project is straight forward Do minorities have a right to internal self-determination The very short overall answer is that classic minorities in Europe have a right to internal self-determination according to the approach of legitimacy and justice. Several questions arise both from the question and the conclusion and are addressed in the different chapters. 

Chapter 11 takes this conclusion and provides the larger context. It draws on previous chapters and establishes that a right to internal self-determination for classic minorities in Europe does not threaten states. Furthermore, the chapter shows that recognizing a minority right to internal self-determination is simply to recognize a reality that has existed for the last 15-20 years. 

The right to internal self-determination for classic minorities in Europe today may at the most be considered to be soft law. Soft law has been justified as only being an interim step towards hard law. Time will tell whether states will recognize the right to internal self-determination for classic minorities in Europe. 

No global and general conclusion is envisaged there are restrictions in place. The project is limited to the European framework. It is further restricted to classic minorities. The argument is based on an approach of legitimacy and justice. The analysis in this project shows that some minority rights overlap with the different dimensions of internal self-determination. In short, classic minorities in Europe have a right to internal self-determination. 

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