Gabriele Sidlauskaite is a researcher in Public International Law, with a special interest in international humanitarian law and the use of force in international relations.

The law on self-determination reflects the state-centred Westphalian system that is rooted in colonial legacies, while the substance of the principle of self-determination must rest on upholding the will of the people. The dissonance between the two approaches makes the law on self-determination conceptually incoherent and destabilises the current international system in practice. The attempts to push the law on self-determination forward in the context of secession have been unsuccessful even though this article argues that the destabilising effect of resting the international system on an unenforceable paradox is worse than the destabilising effect of secession.

Definition of self-determination

The principle of self-determination was defined in the General Assembly resolution 1514 (XV), which declared that ‘all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’[1] The Special Rapporteur on Palestine expands on this definition, claiming that a right to self-determination must include a political and an economic component: the right to govern itself without interference and enjoy ‘natural wealth and resources as an expression of permanent sovereignty over them’.[2] Given that the definition includes social, economic and cultural rights as well as political, the law on self-determination must be people rather than state-centred.

Westphalian system

The Westphalian system centres around ‘the state’s supreme political authority’[3] and allows for the bypassing of the principle of self-determination of peoples. States have interests while people have morals. Interests are about gaining power and influence and morals are about giving power away or empowering others. Thus, a state-centred system allows policymakers to distance themselves from the moral implications of their decisions. This approach is justified in that acting in the interest of the state protects the wellbeing of the citizens of that state. Nevertheless, often morally void policy decisions can endanger states’ interests in the long run. For example, by cutting the country’s contributions to international humanitarian aid, the country might retain more money for their citizens but may raise a security threat. In light of the conflict in Ukraine, the EU has decided to forego the direct economic benefits of buying Russian gas at a favourable price to protect a deeper interest of the people, which is the security in the region. Thus, the whole international system rests on a paradox: it claims to protect self-determination of peoples, yet only deals with interrelationships between states. It is impossible to have a long-lasting and sustainable system that is built on foundational principles that are at odds.

Bypassing self-determination

            The principle of self-determination, even though foundational, has proved to be so elusive as to never be challenged directly. International actors must bypass the self-determination question and garner recognition for the cause through different means. For example, a number of scholars have argued that Israel’s crimes against Palestine amount to apartheid.That is a useful framework for protecting some Palestinian rights because it has a precedent in international law. However, the UN Special Rapporteur on Palestine explains that this framework excludes the rights of Palestinian refugees, and most importantly, does not acknowledge that the Palestinian right to self-determination has been infringed upon.[4] A more malicious strategy of bypassing the principle of self-determination is to frame it as a conflict between opposing parties, as was done with Palestine and Israel, rather than admit an occupation.[5] In 2004 the ICJ published an advisory opinion concluding that the construction of an Israeli wall on Palestinian territory infringes on the right of Palestinian people to self-determination but did not acknowledge that the Israeli actions in Palestine amount to occupation.[6] Fortunately, there has been some promising developments in this area. Most recently, the UN General Assembly adopted a resolution requesting an advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.This is an opportunity for the ICJ to afford some justice to the occupied Palestinians and to clarify the law on self-determination.

            The question posed in the Chagos Archipelago advisory proceedings was whether the process of decolonisation of Mauritius lawfully completed in 1968 following the separation of the archipelago from Mauritius.[7] Self-determination was, essentially, at issue, yet the question was constructed so narrowly as to touch upon self-determination as lightly as possible. The hesitation is reasonable because to truly address the principle of self-determination would mean tearing down the current system of international law. It would mean Palestine must be freed and Israel held accountable. Likewise, it would create an obligation to liberate Ukraine. This would mean redefining the legal content of self-determination so that it would truly protect the political, economic and cultural rights of peoples and not be weaponized by imperialist regimes, as has become Russia‘s usual political strategy.To truly address the law on self-determination would mean redrawing the map of the world. That cannot be achieved within the current state-centred Westphalian international system as it would require giving sovereign power away to new states. Creating a law of self-determination would mean to destabilizing the current system for the idealistic pursuit of a more egalitarian international system that centres around the people and that shakes the historical shadows of exploitation.

Decolonisation

Decolonisation was supposed to enforce the principle of self-determination[8], however, in the way it has been exercised, it undermines the idealistic aspirations of developing nations and upholds the Westphalian system. The Western colonizer states have been set as a standard to strive for, yet they achieved their wealth through abusing Third World nations. Since now there are no countries to exploit for resources, developing nations must achieve the same level of development through  Structural Adjustment Programs provided by the World Bank and the International Monetary Fund. The system works by issuing loans to developing states subject to conditions regarding their domestic economic policies. Thus, First World countries still exercise control over developing nations that is similar to a colonial relationship.[9] The right to self-determination of the people in developing nations is violated both politically and economically with wealthy nations denying people choice over their domestic policies and the way their natural resources are used under the guise of the legitimacy of international law and the rhetoric of ‘development’.

The Chagos Advisory Opinion addresses the issue of decolonisation in the context of self-determination. The judges conclude that the principle of self-determination has been a part of customary international law since 1965 as confirmed by state practice and opinio juris.[10] John Reynolds argues that while the assertion provided the desired result it was unsubstantiated.[11] He argues that the traditional conception of customary international law advances the imperial order by requiring established state practice and opinio juris. The idea of decolonisation is to restructure the global hierarchies of power for a more egalitarian system, but opinio juris and state practice are aimed at upholding the status quo of the colonial order. Therefore, in the Chagos advisory proceedings, the right to self-determination is upheld but only in a system that sustains historical hierarchies of power that is bound to violate that right again.

Secession

Secession concerns the right to self-determination outside of the colonial context. Secession has not been recognised in international law, apart from instances of remedial secession, such as South Sudan, where the people are subject to some form of subjugation, exploitation, or domination.[12] However, this type of secession does not truly enforce the principle of self-determination because it shifts the focus of the issue from people’s choice to remedying harm. This implies that an emerging state requires violence to be perpetrated against it to be recognized, which encourages conflict. On the other hand, this may encourage the parent state to make concessions, so the secessionist movement does not qualify for remedial secession. Secession based on people’s will is a destabilising doctrine because it allows minority populations to make a serious bid for statehood which interferes with the territorial integrity of the parent states. However, the current rules on secession that make violence a prerequisite for statehood perpetuate conflict that can be an even more destabilising force. Therefore, international organisations whose objectives are to protect global peace and security cannot function by bypassing the self-determination issue in secession cases because the way they function encourages conflict and that goes against their reason for being.

The law on self-determination is strongly defined by historical considerations, however, any enforcement of the principle that could lead to destabilizing idealism has yet been avoided. The law on self-determination that is based on the expression of the will of the people is cautious at best and fictional at worst. Currently, we idealistically strive to preserve the status quo which is impossible to uphold because the system skirts around the fundamental right of peoples, which contributes to the further destabilization of the system. What we need is a controlled breakdown of the international project so we can rebuild out of spare parts and not a collapse that will require complete restructuring.

Photo by Olivier Bancoult: the first members of the Chagos Resilience Group disembark on the island of Diego Garcia for the first time.

Bibliography:

Cases

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, (2019) ICJ Reports 95.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports (2004), p. 136.

Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada [1998] 2 RCS 217.

Articles

Albanese, Francesca, ‘Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967’, A/77/356 (2022) [accessed at: https://www.un.org/unispal/wp-content/uploads/2022/10/A.77.356_210922.pdf].

Anghie, Antony, ‘Sovereignty and the Post-Colonial State’, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press 2012), 196-244.

Bauder, Harald, Mueller, Rebecca, ‘Westphalian Vs. Indigenous Sovereignty: Challenging Colonial Territorial Governance’, Geopolitics (2021), 1-18.

Munarriz, Gerardo J., ‘Rhetoric and Reality: The World Bank Development Policies, Mining Corporations, and Indigenous Communities in Latin America’, International Community Law Review 431:10 (2008), 431-443.

Reynolds, Jason, ‘Decolonising the Chagos Islands?’, Nigerian Yearbook of International Law, Vol. 2 (2019).

Legislation

UN General Assembly resolution 1514 (XV), 14 December 1960.

United Nations, Charter of the United Nations (1945) 1 UNTS XVI [available at: https://www.refworld.org/docid/3ae6b3930.html].

[1] General Assembly resolution 1514 (XV).

[2] Francesca Albanese, ‘Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967’, A/77/356 (2022), 7.

[3] Harald Bauder, Rebecca Mueller, ‘Westphalian Vs. Indigenous Sovereignty: Challenging Colonial Territorial Governance’, Geopolitics (2021), 1.

[4] Albanese, Situation of human rights in the Palestinian territories occupied since 1967, 5.

[5] Ibid.

[6] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports (2004), p. 136.

[7] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, (2019) ICJ Reports 95.

[8]Antony Anghie, ‘Sovereignty and the Post-Colonial State’, Imperialism, Sovereignty and the Making of International Law (2012), 196.

[9] Gerardo J. Munarriz, ‘Rhetoric and Reality: The World Bank Development Policies, Mining Corporations, and Indigenous Communities in Latin America’, International Community Law Review 431:10 (2008), 442.

[10] Jason Reynolds, ‘Decolonising the Chagos Islands?’, Nigerian Yearbook of International Law, Vol. 2 (2019).

[11] Ibid.

[12] Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada [1998] 2 RCS 217.