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
References
CASSESE, Antonio. Diritto Internazionale. Mulino, 2007, p. 135.
CONFORTI,
Benedetto. Le Nazione Unite. Milano:
CEDAM, 2005, p. 269.
KAPITAN, Tomis. Self-Determination and the
Israeli-Palestinian Conflict. Northern Illinois University,
1995. Disponível
em < http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0CEgQFjAD&url=http%3A%2F%2Fwww.niu.edu%2Fphil%2F~kapitan%2Fpdf%2FSelf-DeterminationintheIsraeli-PalestinianConflict1995.pdf&ei=w5pyUaOSAoHo9ASg84CIAg&usg=AFQjCNHJZ66opTYbgUPQcVZWPRu1-hh8Zw&sig2=uhPhE-Z8lvOYDZrI2z4SlA&bvm=bv.45512109,d.eWU>
Acessado em 20/04/2013.
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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