sábado, 20 de abril de 2013

Self-determination of peoples and the role of the United Nations

 Thiago Assunção*

The importance of the principle of the self-determination of peoples can be deducted by its normative previsions: it appears initially in the UN Charter, art. 1, par. 2, and it´s repeated in the article 55. Moreover, it is the core of the common art. 1 of both most important treaties of Human Rights (the International Covenant on Civil and Political Rights; and the International Covenant on Economic, Social and Cultural Rights), which states:

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. (…) The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

And so in many resolutions and declarations of the General Assembly, especially the 1970’s Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States. Thus, there is no doubt of the strength that the international community wanted to give to this principle. Actually, the self-determination is already considerate a “general principle of customary law” (CONFORTI, 2005).
Woodrow Wilson was the first to sustain publicly the self-determination of peoples, in his draw of a new world order after the first war, even if his Secretary of State, Robert Lasing, in a famous phrase, has described the self-determination as something that was “simply loaded with dynamite”. Despite the President’s enthusiasm, not only Lasing but many people thought by that time that a principle like this, if broadly applicable, could create some problems and even more conflicts.
Antonio Cassese sustains that the raise of the principle of self-determination put into question the own sovereignty of the states (CASSESE, 2007). As a new democratic principle at the time, it has changed the usual form of thinking the international relations, being from then on, the bound duty of the states to respect the will of the peoples. In other words, the peoples could argue their right to make themselves heard, or how it calls Klabbers, “the right to be taken seriously” (KLABBERS, 2006).
One can also remember the difference between internal and external self-determination. The first regards the right of the population of an existing state to participate and to be listened in the political process, what includes the respect for the minorities. The second, being the external conception and the most used one, refers to the right of the people who are under colonial submission, military foreign occupation or a racist government, to be freed. In effect, Cassese identifies the three above situations as the typical cases which the principle of self-determination has its boundary application.
Concerning the legal nature, the self-determination is considered a general principle of international law, but it is not alone: it brings with it a range of customary law rules, reflecting the praxis of the states and the constructed opinio iuris. So, the principle constitutes a framework in which specific issues find a general rule, and depending on each case it can be interpreted in one form or another.
Another feature of the self-determination principle is its erga omnes character, which means that some obligations are owed not just to one’s treaty partners, but to the world community as a whole. This character is more and more often associated with the application of the human rights, which are being considered as a duty of all States in relation with the entire international community.
The origin of the self-determination is quite uncertain, having much probably its historical roots back in the French and American revolutions. The Woodrow Wilson’s “fourteen points” of 1918 can be considered the speech that pioneering launched the self-determination concept. Nevertheless, the United Nations Charter of 1945 was the first act to use the expression “self-determination”. This principle, as it gone end up in the UN Charter, was not the same of the one it have been given to it afterwards. In effect, the head of states of the great powers by that time did not think that the same principle was going to be extensively used afterwards, to denounce the colonialism as practiced by their own countries in Africa and Asia.
Indeed, with the self-determination previewed in the UN Charter, and inspired by the role of General Assembly as a scenario of permanent debate, the international community started to put pressure on the colonial Empires. It did not make sense those beautiful norms and discourses if so many nations were yet pending  their desired (and promised) independence.
Thus, quickly the UN became a privileged forum to promote the self-determination of the peoples. And that is explained by the following reasons: a) the declared opposition against colonialism sustained by the two postwar emerging potencies (US and USSR); b) the difficulties by the metropolis to maintain their colonies after have had their economies ruined by the war; c) the struggle by the colonized nations and their success on putting their claims in the international agenda (partially explained by the space that gained in the media the General Assembly’ debates). As a consequence, and with different levels of acceptance or fight, including many wars, the independence of those peoples began to be conquered.
The reason why the self-determination is considered difficult to be purely applied by the judicial or quasi-judicial bodies is simply: in many cases, the recognition of this right to one group means the denial to another. That occurs especially when territorial matters are involved, as it was the case in many countries in Africa.
The above statement can raise the following question: is the self-determination a substantive right or it can be considerate a procedural principle? Some authors sustain that, with the end of the decolonization process, from sustainable and enforceable right, which once had the power to sustain even secessions, the self-determination principle evolved to a more limited application, an “open-textured principle”.
Indeed, from the Namibia case on, the International Court of Justice has changed its approach, saying that the self-determination, in the case of Western Sahara for instance, means “the need to pay regard to the freely expressed will of peoples”, what brings the concept more to an internal and limited dimension. 
The reason for that is exactly the change in the world’s priorities, considering that the majority of the former colonies had got or were in the process of getting their independences. In fact, a Chamber of the International Court of Justice has sustained, in a frontier dispute case in 1986: “the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled by their independence (…)”(KLABBERS, 2006).
In the meantime, the populations from the territories under colonial authority started to organized themselves, and in many of them emerged national liberation movements, which played an important role in that context. The strength of their cause, a part the use of violence by some, is that they were now legitimated by the international law (CASSESE, 2007). In fact, what they were aiming was the practical change that reflected what it was wrote and said at the time by the international community.
One good example is the PLO – Palestine Liberation Organization, founded in 1969, and who still today struggles for the liberation and the illegal occupation of the Palestinian territories by Israel[1]. Probably the Question of Palestine is the most famous and yet unsolved cases in regard of self-determination. The 1948’s partition plan that divided the historical Palestine was never put it into practice, considering that a Palestinian State was never created. The illegal military occupation of the Palestinian territories by Israel consists in one of the clearest denials of the self-determination of a people (KAPITAN, 1995).

[1] The UN Security Council Resolution 446, “Determines that the policy and practices of Israel in establishing settlements in the Palestinian and other Arab territories occupied since 1967 have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East. Disponível em < http://unispal.un.org/UNISPAL.NSF/0/BA123CDED3EA84A5852560E50077C2DC> Acessado em 20/04/2013.

Thiago Assunção é Mestre em Educação para a Paz pela Universidade de Roma III e Professor de Direitos Humanos e Integração Regional do UNICURITIBA. E-mail: thiago_assuncao@hotmail.com

CASSESE, Antonio. Diritto Internazionale. Mulino, 2007, p. 135.

CONFORTI, Benedetto. Le Nazione Unite. Milano: CEDAM, 2005, p. 269.

KLABBERS, Jam. The right to be taken seriously: Self-determination in International Law. Human Rights Quarterly, John Hopkins University Press, Vol. 28 N. 1, Feb. 2006, p. 186.


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