self-determination under international law

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 Citation: 13 Case W. Res. J. Int'l L. 257 1981

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INTRODUCTORY ARTICLE

Self-Determination Under International Law: Validity of Claims to Secede   y Ved I.

P

Nanda*

INTRODUCTION

EVERAL RECENT EVENTS including the Soviet and th the e Vietnamese interventions in Afghanistan and Kampuchea respectively, and the imminent termination of the Micronesian Trusteeship relationship,8 raise recurrent questions regarding the nature, content, and Distinguished Visiting Professor of International Law, IIT Chicago-Kent College of

 

Law, Summer-Fall, 1981; Professor of Law and Director, International Legal Studies Program, University of Denver College of Law. Elected Secretary-General of the World Associa-

tion of Law Professors at the annual meeting in Sao Paulo, Brazil, August 1981. B.A., M.A. Panjab University, India; LL.M. Northwestern University School of Law, Chicago; Graduate Fellow, Yale Law School.

See, e.g. Soviet Invasion of Afghanistan, 80 DEP T STATE BULL. 62-65 (June 1980); Elliot, Jr., Afghanistan: Fact and Fiction, Wall St. J. Jan. 9, 1980, at 20, col. 3; Soviet Invasion of Afghanistan, WEEKLY COMP. OF PRES. Doc. 25-27 (Jan. 4, 1980); Afghanistan: Action and Reaction, 32 CURRENT DIG. SOVIET PRESS, 1-8, (Feb. 6 1980). For discussion and  

action at the United Nations, see Immediate Withdrawal of Foreign Troops from Afghanistan Urged, 17 U.N. MONTHLY CHRONICLE, 5-17, 107-09 (March 1980); see also 18 U.N. MONT LY CHRONICLE 7 (Jan. 1981) and text accompanying notes 16 and 17 infra. See, e.g. Duncanson, Limited sovereignty in Indochina, 34 WORLD T O D Y 26 0

(1978); Mendenhall, Communist Vietnam and the Border War: Victim or Aggressor, 6 STRATEGIC REV. 56 (Summer 1978); Simon, Cambodia:Barbarism in a Small State under Siege, 75 CURRENT HIST. 197 (Dec. 1978). For discussion and action at the United Nations, see 16 U.N. MONTHLY CHRONICLE 5-19 (Feb. 1979); id. at 5-17, 42-47 (March 1979); id. at 46 49 (April 1979); 17 U.N. MONTHLY CHRONICLE 39-41, 122 (Jan. 1980); id. at 52 (Nov. 1980); id. at 13, 59 (Dec. 1980) and text accompanying notes 10-15 infra. I Following the termination of the trusteeship relationship, present indications are that the Trust Territory of the Pacific Islands (which includes the Northern Mariana Islands, Paku, the Marshall Islands, and the Federated State of Micronesia) will not emerge as an independent state, but will exist as four separate entities-each with an associate relationship with the United States. See Clark, Self-Determination and Free Association-Should the United Nations Terminate the Pacific Islands Trust?, 21 HARV. INT L L.J. 1 7 1980). Considering the arguments raised during the 1960 s and 1970 s that the United States should have defused the secessionist movements in the Pacific Islands Trust, Professor Roger Clark has pointed out that separation has been the express wish of the people: The United States (and Micronesian) response to these considerations is es-

 

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scope o f the right of peoples to self determination.   4 A principle e n shrined in the United Nations Charter,5 self-determination has been most frequently and vigorously invoked in the post-World War II period to claim the right of independence for colonies.6 In light o f the wide acceptance of the principle,7 accompanied by its successful application as a legal sentially that, while the principle of territorial integrity is an important one, it must of course give way to the freely expressed wishes of the peoples concerned (another important goal of the Charter) and to the realities of the situation. A s the United States Permanent Representative to the United Nations recently put it: The United States regrets that the exercise of full self-determination by the peoples of the Territory has led to the decision to divide the Territory into more than one entity. However, both the United States and th the e Trusteeship Council are in agreement that it is ultimately for the Micronesians themselves to decide upon their future political relations with one an-

other. To take any other position, for example, that unity should be imposed upon the people of the Trust Territory, would make a mockery of th the e concept of self-determination as democratically conceived ... In the case of the Northern Mariana Islands, the elected leaders of these islands, including those elected to the Congress of Micronesia, all supported a different political status than that preferred by the leaders of th the e rest of the Territory. Their desire was supported by popular referenda and legislative positions in the Marianas dating back to 1949. It was on this basis that the United States decided, and then only reluctantly, to conclude

a separate political status agreement with the Northern Mariana Islands. After the plebiscite in the Marianas, held in June 1975, the Congress of Micronesia took the position that it did not object to the separation of th the e Northern Mariana Islands since that was the express wish of their people. Id at 81 . 4 Among the items on the agenda of the thirty-fifth session of the United Nations General Assembly was again the topic, Importance of the universal realization of the right of peoples to self-determination

for the effective guarantee and observance of human

rights. . . . s 17 U.N. MONTHLY CHRONICLE 78 Item 75 Nov. 1980). Recent studies addressing various self-determination issues include I. Bin6, THE PARALYSIS OF INTERNATIONAL INSTITUTIONS ND THE REMEDIES (1976); L. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELFDETERMINATION (1978); R . EMERSON, SELF-DETERMINATION REVISITED IN AN ERA OF Center for International Affairs, Occasional Papers in International Affairs No. 9, Dec. 1964); H. JOHNSON, SELF-DETERMINATION WITHIN THE COMDECOLONIZATION (Harvard University

(1967); W. OFUATEY-KODJOE, THE PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAW (1977); SELF-DETERMINATION: NATIONAL, REGIONAL, AND GLOBAL DIMENSIONS Y. Alexander R. Friedlander eds. 1980); A. Rioo SUREDA, THE EVOLUTION OF THE RIGHT OF SELF-DETERMINATION (1973); U. UMOZURIKE, SELF-DETERMINATION IN INTERNATIONAL LAW (1972); and D. WAINHOUSE, REMNANTS OF EMPIRE: THE UNITED NATIONS AND THE END OF COLONIALISM 1964). MUNITY OF NATIONS

' Articles 1 and 55 of the

U.N. Charter refer specifically to self-determination a s a principle. U.N. CHARTER arts. 1, 55. See also U.N. CHARTER arts. 2(2), 56, 73-91 and text accompanying notes 62-65 infra.

' For a summary report see W. OFUATEY-KoDJOE supra note 4 at 129-47. One commentator argues [o]n the basis of the state practice the conclusion can be drawn that there has emerged a general consensus on the meaning of the principle which

 

1981

CLAIMS TO SE E E

prescription in the process of decolonization, self-determination, at least in the specific context of colonialism, has acquired the status o f an established rule o f customary international law. Beyond that, however, there seems to have developed little concensus among publicists and politicians alike on the content and scope o f the principle.9 is shared by all the members of the international community. note

W.

OFUATEY-KODJOE

supra

t 144

Today, there is no doubt that self-determination, as defined in U.N. and general international practice, is a principle of international law which yields a right to self-government that can be claimed legitimately by bona fide dependent peoples. W. OFUATEYupra note 4 at 147. See generally Sub-Commission on Prevention of DiscriminaKODJOE tion and Protection of Minorities, U.N. Commission on Human Rights, The Historical an d Current Development of the Right to Self-Determination on the Basis of the Charter of the United Nations and Other Instruments Adopted by United Nations Organs, with Particular Reference to the Promotion and Protection of Human Righs and Fundamental Freedoms, U.N. Doc. E/CN.4/Sub.2/L.641 at 12 (29th Session July 8, 1976). For the various U.N. resolutions on the subject, see id at 7-8. See also R . HIGGINS THE DEVELOPMENT O F INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS 90-106 (1963). But se e Sinha, Is Self-Determination PassV? 12 C O L U M J. TRANSNAT L L. 260, 271 (1973) evidence does not permit an affirmative answer that self-determination has become a principle of NEW W international law); Gross, The Right of Self-Determination in InternationalLaw in NE STATES IN THE MODERN WORLD 136 (M. Kilson ed. 1975) (the practice of decolonization does not illustrate the establishment of self-determination as a principle of customary, international law). I Voluminous literature exists on the subject. For a bibliography on self-determination,

see U.N. Doc. E/CN.4/Sub. j/377/Add. 7 (1977). For a selected list of articles helpful in clarifying various issues, see authorites cited in notes 4 and 8 supra and Bassiouni, SelfDetermination and the Palestinians, 1971] PROC. AM. Soc'Y INT L L. 31; Dinstein, CollecCoMP. L.Q. 102 (1976); Emerson, tive Human Rights of peoples and Minorities, 25 INT'L Self-Determination, 65 AM. J. INT L L. 459 (1971); Emerson, Self-Determination, [1966] PROC. AM. Soc Y INT L L. 135; Friedlander, Self-Determination: Legal-Political nquiry, 1 DET. C.L. R E V 71 (1975); Green, Self-Determination and Settlement of the Arab-Israeli Chen, The Protection of Conflict [1971] PROc. AM. Soc. INT L L. 40; McDougal, Lasswell, Respect and Human Rights: Freedom of Choice and World Public Order, 24 A M U.L. REV. 919 (1975); Chen, Self-Determination as a Human Right, in TOWARD WORLD ORDER AND B. Weston eds. 1976); Moore, Toward an Applied HUMAN DIGNITY 198 W.M. Reisman Theory for the Regulation o f Intervention, in LAW AND CIVIL WAR N THE MODERN WORLD, 3   J. Moore ed 1974); Murphy, Self-Determination: United States Perspectives in (Y. AlexR. Friedlander eds.), supra note 4 at 43; Mustafa, The Principle of Self-Determiander nation in International Law 5 INT L LAW., 479 (1971); Nanda, Self-Determination Outside R. Friedthe Colonial Context: The Birth of Bangladesh in Retrospect, in Y. lexander lander eds.) supra note 4, at 193; Nawaz, The Meaning and Range o f the Principle of SelfDetermination, 1965 DUKE L.J. 82; Nayar, Self-Determination Beyond the Colonial Context: Biafra in Retrospect, 10 TEXAS INT'L L.J. 321 (1975); Paust, Self-Determination: Definitional Focus, in Y. lexander R. Friedlander eds.) supra note 4, at 3; see generally Prologue fo r Reisman Suzuki, Recognition and Social Change in International Law: B. Decisionmaking, in TOWARD WORLD ORDER AND HUMAN DIGNITY 403 W.M. Reisman Weston eds. 1976); Richardson, Self-Determination, InternationalLaw and the South African Bantustan Policy, 17 C O L U M J. TRANSNAT L L. 185 (1978); Suzuki, Self-Determination TerritorialSeparation, Separation,16 VA. J. INT L L. and World Public Order Community Response to Territorial

 

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Nations deliberations on the conflicts in Kampuchea and Afghanistan illustrate the normative ambiguities associated with the term self-determination. Kampuchea called upon the Se curity Council to respect the right o f the people o f Kampuchea to decide their own destiny. ' 0 In contrast, the Vietnamese representative replied terming the issue as that o f the support and assistance o f the Vietnamese people for the armed revolutionary struggle o f the people of Kampuchea for achievement o f their right o f self-determination [which] was being provided at the request o f that people and on the basis o f m u tual respect for the independence, sovereignty and territorial integrity of each country. Subsequently, in the General Assembly debate, the Kampuchean representative again declared o n October 9, 1979, that   Kampuchea should have its right to self-determination without outside interference. The Kampuchean people should decide on their own representatives through secret ballot and free elections supervised by the United Nations Secretary-General. ' 2 A year later, at the thirty-fifth session o f the General Assembly, the representative o f democratic Kampuchea reiterated this demand: A ny solution to the Kampuchean problem would require the total and unconThe

recent

United

ditional withdrawal of the Vietnamese occupation forces

After th the e

withdrawal o f the Vietnamese troops, the Kampuchean people would choose their national government through general and free elections. ' s O n October 22, 1980, the General Assembly decided to convene an international conference o n Kampuchea during 1981 for the purpose o f reaching agreement on, among other items, the total withdrawal o f foreign troops from Kampuchea and the implementation of U.N. supervised free elections there. Earlier, at a meeting of the Subcommission on the Prevention o f Discrimination and Protection o f Minorities o f the U.N. Commission o n Human Rights held in August-September 1980, the expert from Tunisia recommended that the right to self-determination o f the people o f Kampuchea would have to be recognized as a n inalienable human right and that the Kampucheans had to be given the possibility of exercising it. 1 In December 1980, the General Assembly adopted a resolution which 779 (1976); Wright, Recognition and Self-Determination, [1954] PROC. 23; Note, The Logic of Secession, 89 Y LE L. J 8 2 (1980). 1 16 U N MONTHLY CHRONICLE 12 (March 1979).

AM

Soc Y INT'L L.

For a summary report on the debate, s id. at 5-17, 42-47; id. at 5-19 (Feb. 1979); id. at 46-49 (April 1979). 12 17 U.N. MONTHLY CHRONICLE 122 (Jan, 1980). Id at 59 (Dec. 1980).  

Id

See id. at 13. For the earlier Assembly action, see id. at 39-41 (Jan. 1980); see also N.Y. Times, Oct. 22, 1981, at 5, col. 5.  

 1

17 U N MONTHLY

CHRONICLE

at 52 (Nov. 1980).

 

CLAIMS TO SECEDE

1981

called for the immediate withdrawal of foreign troops from Afghanistan and reaffirmed the right o f the Afghan people to determine their form of government and choose their political, economic and social system free from outside intervention, subversion, coercion or restraint. ' Earlier in January 1980, the General Assembly had adopted a similar resolution at its sixth emergency special session. With the settlement in Zimbabwe,18 the era o f colonialism is coming to a close. However, secessionist struggles continue in many parts o f the world. Recent demands for territorial separation found expression in violent upheavals with international implications in Bangladesh,   Biafra, ' and Katanga.21 In addition to the highly volatile situations in the Middle East 2 and South Africa, several recent movements in the Basque region in Spain,

16

24

28 7 6 5 East Timor,' Eritrea,' Formosa,' Kurdistan,' Micronesia,

29

18 U.N. MONTHLY CHRONICLE 7 (Jan. 1981). The resolution was adopted with an

overwhelming majority of 111 for, 22 against, and 12 abstentions.  7 or a summary report, see 17 U.N. MONTHLY CHRONICLE 5-9,

107-09 (March 1980). The text of the resolution is reprinted id. at 109. For a summary report on the deliberations in the Security Council, see id. at 9-17. 8 For recent commentaries, see Hill, Facing Social Reconstruction in Zimbabwe 11 BLACK SCHOLAR, 37 (May/June 1980); Palley, What Future for Zimbabwe?, 51 POL. Q. 28 5 (1980); Saul, Zimbabwe: The Next Round, 32 MONTHLY REV., (Sept. 1980) at 1; Soames, From Rhodesia t Zimbabwe 56 INT L APF. 405 (1980).   Among several commentaries, see, e.g., East Pakistan Staff Study, 8 INT L COMM N JUR. REV. 42 (1972); Nanda, Self-Determination in InternationalLaw: The Tragic Tale of Two Cities-Islamabad West Pakistan) and Dacca (East Pakistan),66 A M J. INT L L. 321

(1972).

See generally F.

(1969); Ijalaye, Was Biafra at Any Time a State in InternationalLaw?, 65 AM. J. INT L L. 551 (1971); Nixon, Self-Determination: The Nigeria/BiafraCase 24 WORLD POL. 473 (1972); Post, Is There a Case for Biafra? 44 INT L AFF 26 (1968).   See generally L . MILLER, WORLD ORDER AND LOCAL DISORDER 66-117 (1967); AumaOsolo, Retrospective Analysis of United Nations Activity in the Congo and its Signifi20

FORSYTH, THE BIAFRA STORY

cance for Contemporary Africa, 8 VAND. J. TRANSNAT L L. 451 (1975); Lemarchand, The Th e Limits of Self-Determination: The Case of the Katanga Secession, 56 AM. POL. Sci. REV.

404 (1962).   See generally B. O NEILL, ARMED STRUGGLE IN PALESTINE: A POLITICAL-MILITARY ANALYSIS (1978); Note, Self-Determination in International Law: The Palestinians,12 CASE W . RES. J. INT L L . 137 (1980); Campbell, The Middle East: The Burdens of Empire, 57 FOR FF. 613 (1978); Lenczowski, The Arc of Crisis: Its Central Sector, 57 FOR. AFF 96 (1979); Perlmutter, Race Against Time: The Egyptian Israeli Negotiations over the Future of Palestine, 57 FOR.

540 (1980).  3 See generally G.

AFF

987 (1979); Quandt, The Middle East Crises, 58 FOR.

AFF

(1980); L . G A N N & P. DUIGNAN, SOUTH AFRICA: WAR, R E V O L U T I O N OR PEACE? (1978); Johnson, Sanctions and South Africa, 19 HARV. INT L L.J. 887 (1978). See, e.g., Richardson, Basque Country: Violence is a Way of Life, U.S. NEws & CARTER, WHICH WAY IS SOUTH AFRICA GOING?

 

WORLD REP., Mar. 17, 1980, at 56; ECONOMIST, Jan. 13, 1979, at 41; id., Feb. 3, 1979, at 15 .

Basque violence in the first nine months of 1980 resulted in over 100 deaths. N.Y. Times,

 

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Northern Ireland, 0 Quebec,81 the Southern Sudan, 2 Tibet, 8 and the Western Sahara illustrate the global strength o f the struggle for self-determination. Given the wide ranging political impact o f these moveOct. 14, 1980, at 7, col. 6. See also Markham, Strike by Basques Protests Jail Death, id., Feb. 17, 1981, at 3, col. 1. 28 See e.g. Cantarow, The Secret War in East Timor, MOTHER JONES, May 1979, at 64; K. SUTER, WEST IRIAN EAST TIMOR AND INDONESIA (Minority Rights Group Rep. No. 42, London, Sept. 1979). On November 11, 1980, the U.N. General Assembly adopted Resolution 35/27 reaffirming the inalienable right pf the people of the East timor to self-determination and independence, and declaring that the people of that Territory must be enabled freely to determine their own future within the framework of the United Nations. 18 U.N. MONTHLY CHRONICLE 18 (Jan. 1981). For earlier reports, see 16 CHRONICLE 53 (Jan. 1980).   6 See generally R. SHERMAN, ERITREA: THE UNFINISHED REVOLUTION (1980); Koehn, Ethiopian Politics:Military Intervention and Prospects for Further Change, 22 AFR. T oD Y 7 (April-June 1975); Martin, War in Eritrea, 89 NEW STATESMAN 166, 166-67 (1975); Morgan, A GeographicEvaluationo f the Ethiopia-EritreaConflict 15 J . MOD. AFR. STUD. 667 (1977); Tseggai, The Case for Eritrean EritreanNational National Independence, 7 BLACK SCHOLAR, 20 (June 1976). 27 See generally CHINA AND THE TAIWAN ISSUE (H. Chiu ed. 1979); L. CHEN H. LASSWELL,

FORMOSA,

CHINA

AND

THE

UNITED

NATIONS:

FORMOSA

IN

THE

WORLD

COMMUNITY

(1967); Chen Reisman, Who Owns Taiwan: A Search for International Title, 81 YALE L.J. 599, 599 n.2 (1972) and authorities cited therein; Chiu, The Outlook for Taiwan, 7 ASIAN AFF. 137 (Jan./Feb. 1980). 11See generally Edmonds, Kurdish Nationalism, 6 J. CONTEMP. HIST., no. 1, at 87 (London 1971); Hazen, Minorities in Revolt: The Kurds o f Iran, Iraq, Syria, and Turkey in THE POLITICAL ROLE OF MINORITY GROUPS IN THE MIDDLE EAST 49-75 (R. McLaurin ed. ed . 1979). 29 See generally Clark, supra note 3. For a report on the action of the U.N. Special Committee on Decolonization, see 17 U.N. MONTHLY CHRONICLE 23-25 (Nov. 1980). 2 See generally C. O BRIEN, STATES OF IRELAND (1972); Hume, The Irish Question: A British Problem, 58 FoR. AFF. 300 (1980). 3 See, e.g. C. LEGENDRE, FRENCH C A N A D A

A NEW SOCIETY IN THE MAKING? (Minority Rights Group Rep. No. 44, London, May 1980); Levesque, For an Independent Quebec, 54 FOR. AFF. 734, 734-44 (1976); Morton, Quebec in Revolt, 56 CAN. FORUM 13 (Feb. 1977); Smith, Preparing or Independence, 56 CAN. FORUM 4, 4-5 (Feb. 1977); Canada s Last Chance, THE ECONOMIST, Nov. 20, 1976, at 15-16; Note, The Legality of an Independent Quebec: Canadian ConstitutionalLaw and Self-Determination n InternationalLaw,

3 B.C. 2

INT L COmP. L . REV. 99 (1979). See generally E. O BALLANCE, THE

IN CRISIS:

SECRET WAR IN THE SUDAN:

1955-1972 (1977);

Gray, The Southern Sudan, 6 J. CONTEMP. HIST., no. 1, at 108 (London 1971); AI-Rahim, Arabism, Africanism, and Self-Identification in the Sudan, 8 J. MOD. AFR. STUD. 23 3

(1970). See generally Sinha, How Chinese was China s Tibet Region?, 1 TIBETAN REV. (April 1968) at 7; Norbu, The 1959 Tibetan Rebellion: An Interpretation, 77 CHINA Q. (March 1979) at 74; van Walt van Praag, Tibet and the Right to Self-Determination, 26 WAYNE L.  3

REV. 279 (1979).   See generally Hodges, Western Sahara: U S Arms and the Desert War, 25 AFR. REP., May/June 1980), at 42; Solarz, Arms for Morocco?, 58 FOR. AFF. 278 (1980). On November 11, 1980, the U.N. General Assembly adopted Resolution 35/19 reaffirming the inalienable right of the people of Western Sahara to self-determination and independence,

 

CLAIMS TO

SE

E

E

ments, further development of the concept o f self-determination is essential for the world community. While the debate continues on the meaning of self 5 and the varieties o f determination, ''13 the international lawyer must endeavor to clarify the legal issues involved in claims for self-determination, especially those for secession. Standards and criteria should be suggested for determining under international law the validity and permissibility o f secession as a valid exercise o f the principle o r right of selfdetermination.8 7 This paper is an initial attempt to perform that task.

II.

POLICY ISSUES REG RD IN G

THE LEGITIM CY OF SECESSION

States share a common interest in denying legitimacy to claims from groups within the body politic either for independence as a separate e n tity o r for association with another state. People, territory and resources constitute the state's power base and it is inconceivable that a state would willingly, part with any one of them. It follows that in the contemporary international arena where states are the most powerful actors, inin tergovernmental organizations would be justifiably opposed to acknowledging the right of secession. Former Secretary General U Thant reflected this position in a statement h e made regarding the Biafran conflict. He contended that the attitude o f the United Nations as a n international organization is unequivocal, since it has never accepted and does no t accept and I do not believe will ever accept the principle o f secession o f a part o f its Member State. ss

Legal norms, as well as political considerations, can be invoked to deny the legitimacy of secessionist claims. These legal norms include pacta sunt servanda territorial integrity, prohibition o n the use of force, ' and nonintervention.  ' Pacta aunt servanda for example, could s

and urging Morocco to terminate its occupation of Western Sahara. 18 U.N. MONTHLY CHRONICLE 19 (Jan. 1981). For a similar resolution adopted by the Assembly at the thirtythird session, see 16 U.N. MONTHLY CHRONICLE 41 (Jan. 1979). For a summary report on the debate in the Security Council, see 16 U.N. MONTHLY CHRONICLE 30 (July 1979). See, e.g., BUCHHEIT, supra note 4, at 9-11 and authorities cited therein. See e.g., BUCHHEIT, supra note 4, at 11-16 and authorities cited therein. self-determination ermination is a right or even a principle There are divergent views on whether self-det under international law. See authorities cited in notes 8-9 supra.   7 U.N. MONTHLY CHRONICLE 36 (Feb. 1970).   9 For an argument that pacta sunt servanda could apply, see, e.g., R. EMERSON, supra note 4, at 28-30. 4 Art. 2, para. 4 of the U.N. Charter reads: All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations. U.N. CHARTER art. 2, para. 4. For two divergent viewpoints on the continuing validity of Article 2(4), compare Franck, Who Killed Article 2 4)?, 64 Am 8099 INT L L. 80  6  

 

(1970) with Henkin, The Reports of the Death of Article 2 4) Are Greatly Exaggerated 65 AM. J INT L L 544 (1971).

 

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be invoked to argue that since the various constituent groups comprising a state have exercised their right of self-determination in its formation,

they do not possess any residual right to secede, thereby causing disruption and disintegration of the state. Under the complementary norm o f rebus sic stantibus, however, a substantial change in circumstances would allow a group to exercise a continuing right to secede.

Similarly, the principle o f territorial integrity lies at the basis of the

contemporary international system, which is state oriented. Any measures which tend to encourage territorial separation would be considered disruptive of the system and therefore unacceptable. Paragraph 6 of th the e Declaration on the Granting of Independence to Colonial Countries and Peoples,48 considered by most African and Asian nations as a document only slightly less sacred than the Charter, 4 4 states: Any attempts aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles o f the Charter of the United Nations.'4 5 The prohibition on the use of force as contained in Article 2(4) of the U.N. Charter4 and the doctrine of nonintervention 7 could also be invoked to discourage outside groups from giving assistance to those demanding secession. Nevertheless, as the sub-

sequent discussion will show,4  there are equally persuasive legal prescriptions under which a qualified right to secede could be considered valid. Political considerations are frequently cited to deny the legitimacy of secession. They include the fear o f balkanization and fragmentation which are likely to promote international instability. Should secession

41 The principle of nonintervention is recognized in two U.N. General Assembly Declarations: The 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, G.A. Res. 2131, 20 U.N. GAOR, Supp. No. 14) 11, 12, U.N. Doc. A/6014 (1966), and the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, G.A. Res. 2625, 25 U.N. GAOR, Supp. (No. 28) 121, 123-24, U.N. Doc. A/8028 (1971) [hereinafter cited as Declaration Concerning Friendly Relations]. See generally Moore, The Control of Foreign Intervention in Internal Conflict, 9 VA. J. INT L L. 205 (1969). For an argument that rebus sic stantibores could apply, see, e.g. Levin, The Principle of Self-Determination of Nations in InternationalLaw, [1962] SoviET Y.B. INT L L. 45, 46 . Declaration on the Granting of Independence to Colonial Countries and Peoples,  

 

G.A. Res. 1514, 15 U.N. GAOR, Supp. (No. 16) 66, U.N. Doc. A/4684 (1960). Rosenstock, The Declaration of Principles of International Law Concerning Friendly Relations: Survey, 65 AM. J. INT L L. 713, 730 (1971).  5 G.A. Res. 1514, supra note 43, at para. 6. See generally, Clark, supra note 3, at 78  

83 .

 s For the language of this prohibition, see note 40 supra.   7 For the language of this doctrine, see note 41 supra. This topic is dealt with in section III(A) and IV of text infra.  

See generally BUCHHEIT, supra note 4, at 27-31 and the authorities cited therein. For

 

CLAIMS T O SECEDE

be perceived by other states as creating a nonviable economic or political unit likely to provide a fertile ground for external interventions (especially in the case o f revolutionary adventurist governments), many states would be apprehensive o f the chaotic impact the right o f secession could have in the international arena.50 It has been noted that had the United States accepted a right to secede in the mid-nineteenth century, its character would have been drastically altered and its existence seriously threatened. Furthermore, since the concept is imprecise and there exist neither objective standards nor viable machinery to apply those standards even if a consensus could be reached, it could be argued that ethnic and cultural groups which spill over state boundaries o r groups within a 52

state do not have a right to secede. is not likely to , A blanket rejection o f the right to secede, however, fo r repress the existing or potential demands for group identification and for the expression of such identification in claims to secede. Frequently the group or subgroup perceives separation a s the only viable remedy for the manifest abuse of its human rights within the body politic.53 Therefore, a useful and desirable approach is to suggest circumstances under which secession might be considered justifiable and to investigate the process and the machinery under which it could be effectuated. III.

PRESCRIPTIONS AND STATE PRACTICES

Prescriptions

A

Although the historical antecedents of self-determination are no t pertinent to the present discussion, a recollection of President Woodrow W ilson ilson s enunciation of the doctrine o f national self-determination, 5 and the League o f Nations' rather limited application o f the doctrine to insure le-the protection o f minorities provides a useful perspective of concept's le Gardner, The United Nations in the United States position opposing balkanization, s Crisis: uba and the Congo 48 DEP T STATE BULL. 477, 479 (1963). 8 For the problems posed by the creation of ministates, see UNITAR, STATUS AND PROBLEMS OF VERY SMALL STATES AND TERRITORIES,

(UNITAR Ser. No. 3, 1969); Franck

Hoffman, The Right of Self-Determination in Very Small Places 8 N.Y.U.J. INT L L. POL. 331 (1976); Mendelsohn, Diminutive States in the United Nations 21 I r L + COMP. L.Q. 609 (1972); Rapoport, The Participation f Ministates in InternationalAffairs [1968] PROC. AM. Soc Y INT L 0 82

L . 155.

Note, supra note 22, at 148. For a case study of the dispute between Somalia and Ethiopia over Western Somali-

land, see Note, supra note 9 at 820-24. See Section III(B) of the text infra. Bangladesh provides an apt illustration. See generally Nanda, supra note 19, at 3288

33 .

See generally W . OFUATEY-KODJOE, supra note 4, at 21-38. 8 For an incisive commentary, see Pomerance, The United States and Self-Determination: Perspectives on the Wilsonian Conception 70 AM. J. INT L L. 1 (1976).

 

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In the words of a commentator, the League's approach was in gal status. many respects a profound disappointment to minorities that had staked

their hopes on the principle of self-determination. Not only were they refused national autonomy but, in return for the minimal protection of7 of their fered by the treaties, they were required to act as loyal subjects alien masters. s In the Aaland Islands controversy, the League of Nations rejected a request by the representatives of the Island for annexation to Sweden as an exercise of their right of self-determination. Instead, the League favored Finland's asserted sovereignty over the Islands, pursuant to an advisory opinion of a specially appointed International Commission o f Jurists. In the words of the Commission: Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form part by the simple expression o f a wish, any more than it recognizes the right of other States to claim such Subsequently, in a report to the League on the Aaland a separation. Islands question, a Commission of Rapporteurs concluded that to concede the right of territorial separation would be to destroy order and stability within States and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the State as a terri61 torial and political entity. Although the Dumbarton Oaks proposal did not mention self-deterthe e mination, the United Nations Charter makes specific reference to th principle in Articles 1 and 55. According to Article 1 2) of the Charter, one of the purposes of the United Nations is to develop friendly relations among nations based on respect for the principle of equal rights and . Article 55 explicitly states the relaself-determination of peoples. the e tionship between equal rights and self-determination of peoples on th the e one hand, and respect for human rights and fundamental freedoms on th other:

With a view to the creation o f conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle o f equal rights and self-determination

  7

68

See generally W . OFUATEY-KODJOE, supra note 4, at 67-96. See BUCHHEIT, supra note 4, at 69-70. For a history of the controversy, see L E G U E OF NATIONS OFF. J.,

  1920).

6

1

ee id. at 3.

 9 6

SPECIAL SUPP

Id

at 5.

For the report, see League of Nations, Report of the Commission of Rapporteurs on

the Aaland Islands, L.N. Doc. B.7 21/68/106 1921). The rejection of the principle of selfdetermination has been applauded on the ground that in its unlimited and unrestrained form it threatened the integrity and menaced the welfare of all nations, and thus of all men. Gregory, The Neutralization of the Aaland Island, 17 AM. J. INT L L. 63, 76 1923).

 

CL

IMS

TO

SE

E

E

of peoples, the United Nations shall promote ... universal respect fo r and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

Among other provisions, Articles 262 and 56 3 create direct obligations

of member States pertaining to the implementation of the provisions of Articles 1 and 55. Additionally, Chapters XI, XII and XIII, which deal with non-self-governing and t r us t territories, implicitly proclaim the principle by imposing obligations on member States to effectuate the prin64

ciple.

Specifically, Article 73 obliges those States responsible for the ad -

ministration

of

non-self-governing

territories

to

develop

self-

government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions ....65

The General Assembly took the initiative in 1950 to call upon

th e

and Social Council and request th t the Commission on Human Rights study ways and means which would insure the right of 6 peoples and nations to self-determination. It was subsequently decided Economic

the Internationl Covenants on Human Rights should include an arti  67 An cle on the right of all peoples and nations to self-determination. article drafted by the Commission and adopted by the General Assembly in December, 1966 gives the right of self-determination a prominent place in the International Covenant on Economic, Social and Cultural 8 Article 1, which is common to both Covenants, reads: Rights. th

t

All peoples have the right of self-determination. B y virtue of that right they freely determine their political status and freely pursue 1

 2

Article 2(2) reads:

andd All Members, in order to insure to all of them the rights an

benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. U.N. CHARTER art. 2, para. 2. 6 Article 56 reads: All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55. U.N. CHARTER art. 56. 6

 6

73-91. The goal of this Article is to ensure, within due respect for the culture of the peoee U.N. CHARTER arts.

ples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses (and] to develop self-government, to take du e account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement. U.N. CHARTER art. 73. 66 .A. Res. 421D, 5 U.N. GAOR, Supp. (No. 20) 42, U.N. Doc. A/1775 (1950). 67 G.A. Res. 545, 6 U.N. GAOR, Supp. (No. 20) 36, U.N. Doc. A/2119 (1952). 68 he International Covenant on Economic, Social and Cultural Rights was adopted in G.A. Res. 2200, 21 U.N. GAOR, Supp. (No. 16) 49, U.N. Doc. A/6319 (1967). The International Covenant on Civil and Political Rights was adopted in G.A. Res. 2200A, 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966).

 

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their economic, social and cultural development; The States Parties to the present Covenant .   shall promote the realization o f the right o f self-determination and shall respect that right, in conformity with the provisions of the Charter of the United

3.

Nations.

Earlier, in 1960, the General Assembly had, by a vote of 8 9 to 0 with 9 abstentions, adopted the Declaration on the Granting of Independence to Colonial Countries and Peoples 9 which acknowledges that all peoples have the right to self-determination; b y virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 0 Although the document stated that inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delayed independence, it prohibited all atat tempts aimed at the partial or total disruption of the national unity and 72 the territorial integrity of any state. Subsequently, the General Assembly at its twenty-fifth session unanimously adopted the Declaration on Principles of International Law concerning Friendly Relations (hereinafter cited as the Declaration). T he Declaration was drafted by a special committee established b y the General Assembly in 1963 and instructed to consider the principle of equal rights and self-determination of peoples. ' It explicitly recognizes th the e right of all peoples to determine their political, economic, social, and cultural destiny without any external interference. The Preamble of the Declaration states:

[TIhe subjection of peoples to alien subjugation, domination and exex ploitation constitutes a major obstacle to the promotion of international peace and security, [and] the principle of equal rights and self-determiantion of peoples constitutes a significant contribution to contemporary international law, and ... its effective application is o f paramount imim portance for the promotion of friendly relations among states, based on 75 respect for the principle o f sovereign equality One of seven principles proclaimed b y the Declaration is the principle of equal rights and self-determination of peoples, by virtue of which all '9

70  

7

73S

G.A. Res. 1514, supra note 43 .

G.A. Res. 1514, supra note 43. G.A. Res. 1514, supra note 43 . G.A. Res. 1514, supra note 43 .

Declaration Concerning Friendly Relations, supra note 41.

ee generally Rosenstock,

supra note 44; Note, Toward Self-Determination-A Reappraisal as Reflected laration on Friendly Relations, 3 GA J INT L & COMP. L. 145 (1973).   G.A. Res. 1966, 18 U.N. Declaration Concerning   '

in

the Dec-

GAOR, Supp. No. 15) 70, U.N. Doc. A/5515 (1963). Friendly Relations, supra note 41, at Preamble.

 

CL IMS TO

SE

E

E

peoples have the right freely to determine, without external interference, their political status and pursue their economic, social and cultural development, and every state has the duty to respect this right in accordance 76 with the provisions of the Charter. The Declaration also acknowledges that the right of self-determination could be implemented in any of the following forms: [tihe establishment of a sovereign and independent State, the free association or integration with an independent State, or the emergence into any other [freely determined] political status 77 . According to the Declaration, however, a state's duty towards a people claiming the right to self-determination is:

to refrain from any forcible action which deprives peoples referred to above in the elaboration o f the present principle of their right to selfdetermination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit o f the exercise of their right to self-determination, such peoples are entitled to seek and to re re-ceive support in accordance with the purposes and principles o f the Charter

16

Moreover, the Declaration addresses the issue of the territorial integrity of states:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above an d thus possessed o f a government representing the whole people belonging 79 to the territory without distinction as to race, creed or colour. The Declaration's pronouncement regarding the scope of a people's right to self-determination is arguably imprecise, for it grants several options, such as full independence, or freely determined federal structure or any other political status. It enunciates a significant standard, however, to satisfy the requirement of conducting itself in compliance with the principle of equal rights and self-determination of peoples. 80 A state must be possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. 8 1 Consequently, a state has to meet the requirement of possessing a Declaration Declaration 78 Declaration 79 Declaration 80 Declaration 81 Declaration 7

77

Concerning Concerning Concerning Concerning Concerning Concerning

Friendly Friendly Friendly Friendly Friendly Friendly

Relations, Relations, Relations, Relations, Relations, Relations,

supra note suppa note supra note supra note supra note supra note

41, 41, 41, 41, 41, 41,

at Principle at Principle at Principle at Principle at Principle at Principle

e). e), para. 4. e), para. 5 e), para. 7 e), para. 7 e) para. 7

 

C SE

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  government representing the whole people,8 2 before it is entitled to protection from any action which would dismember or impair. [its] ter-

ritorial integrity or political unity Thus, under special circum. stances, the principle of self-determination is to be accorded priority over the opposing principle of territorial integrity. The statement in the Preamble of the Declaration that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security, lends support to this interpretation of the document. In December 1974, the General Assembly adopted a definition of aggression which refers to the right of self-determination:  

[N]othing in this Definition ... could in any way prejudice the right to self-determination freedom and independence, as derived from the Charter, of peoples forcibly deprived o f that right and referred to in the Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations particularly peoples under colonial and racist re re-gimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in. accordance with the principles o f the Charter and in conformity with the above-mens tioned Declaration. The discussion in the Special Committee on the Question of Defining A ggression, however, showed a lack of consensus on whether Article 7 could be construed to legitimize the use of force by people in their struggle for 6 5 self-determination. Among many other declarations and resolutions of the General Assembly asserting the importance of the right to self-determination are the Declaration on the Establishment of a New International Economic

Order,8 7 and the Charter of Economic Rights and Duties of States.86 During the thirty-fifth session, on November 14, 1980, the General Assembly

8

84

Declaration Concerning Friendly Relations, supra note 41, at Principle e), para. 7. Declaration Concerning Friendly Relations, supra note 41, at Principle e), para. 7. G.A. Res. 3314, 29 U.N. GAOR, Supp. No. 31) 142, U.N. Doc. A/9631 1974). See

generally B . FERENCZ DEFINING INTERNATIONAL AGGRESSION THE SEARCH FOR WORLD PEACE: A DOCUMENTARY HISTORY AND ANALYSIS (1975). 6 See generally The Report of the Special Committee on the Question of Defining

Aggression, 29 U.N. GAOR, Supp. No. 19) passim, U.N. Doc. A/9619 1974). For a discussion on Art. 7, see 2 B. FERENCZ, supra note 83, at 47-49.   8 See generally, U.N. ECOSOC, Report of the Secretary-General, Agenda Item 8) 106-11 (1979).   G.A. Res. 3201, 6th Special Sess., U.N. GAOR, Supp. No. 1 , U.N. Doc. A/9559  1974). For a recent commentary, see Geiser, A New InternationalOrder: Its Impact o n the Evolution of International Law 9 ANNALS INT L STUD. 97 (1978). 88 G.A. Res. 3281, 29 U.N. GAOR, Supp. No. 31), U.N. Doc. A/9631 1974).

 

CLAIMS T

1981

SECEDE

adopted a resolution which strongly condemned all Governments which did not recognize the right to self-determination and independence of all peoples still under colonial and foreign domination and alien subjugation   9

A s this brief survey indicates, the right to self-determination had its the e roots in the foregoing instruments of the League of Nations and th United Nations. Its acceptance under international law is further evidenced by two recent advisory opinions delivered by the International Court of Justice. The Court affirmed the right to self-determination in its Advisory Opinion on Legal Consequences for States of the Continued Presence of South Africa in Namibia South West Africa) Notwithstanding Security Council Resolution 276 1970): 90 [T]he subsequent development of International Law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principle of self-determination applicable to all of them. ' 1 Subsequently, in the Western Sahara case, s  the Court approvingly spoke of the right o f the population of the Western Sahara to determine their future political status by their own freely expressed will. 93 Thus, since the termination of World War I there has been an evolving, albeit limited, acceptance o f the e the legitimacy of secession within international law norms. At least in th colonial context, the principle of self-determination has acquired the status of an enforceable legal right.

State Practices

B.

The reluctance of states to accept a principle which might allow, and perhaps even encourage, groups within their own population to secede is understandable. 4 Thus, most states have not accepted claims for territorial separation in a non-colonial setting. Leaders of newly independent states have been consistently vocal in asserting that the right to self-determination does not include the right to secession. Examples of peaceful 8' Reported in 18 U.N. MONTHLY CHRONICLE 9

39 (Jan. 1981 .

[1971] I.C.J. 16 16..

at 31. See also Judge Fouad Aminoun's Separate Opinion in the Barcelona Traction case [1970] I.C.J. 3, 287, describing self-determination as a norm profoundly imbued with the sense of natural justice, morality, and humane ideals. Id at 311.   1 Advisory Opinion on Sahara, [1975] I.C.J. 6. '3 See id. at 35-36. 91 Id

See notes 49-52 supr and accompanying text.   See, e.g. BUCHHEIT, supra note 4, at 105: It seems probable that an accurate survey of international opinion would re 

veal less support for the legitimacy of secessionist self-determination, both in

terms of the number of States willing to countenance, the suggestion of such legitimacy and the intensity of feeling over the issue, than would have been the case fifty years ago.

 

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secession such as Senegal from the Mali Federation, Syria from the United Arab Republic,'9 7 and Singapore from the Malaysian Federation, are rare and because of the special circumstances in each situation, do not offer sufficient guidance to allow an observer to draw broad conclusions. Consequently, it should come as no surprise that a state's rejection o f a claim to secede is foreshadowed by the attitude reflected in the record of their deliberations at the United Nations and regional intergovernmental organizations and the decisions made there. The Biafran conflict provides a n apt illustration. While the Biafran claim for self-determination was acknowedged neither b y the United Nations nor the Organization of African Unity (OAU),' five states recognized an independent Biafra.101 The OAU strongly favored a unified N igeria. While the OAU charter specifically requires adherence to the principle o f respect for the sovereignty and territorial integrity o f each state,1 0 2 the OAU position was reflected in the assertion b y then Emperor Haile Selassie o f Ethiopia (one o f the six members of the OAU consultative mission on Nigeria) that the national unity o f individual African states was a n essential ingredient for the realization of the larger and greater objective of African unity. 103 Earlier at a meeting o f the supreme organ of OAU, the Assembly o f Heads o f State and Government, secession was generally condemned, reaffirmed adherence to the principle of re respect for the sovereignty and territorial integrity o f Nigeria, and resolved to send the six-member consultative mission to the Head of the Federal Government o f Nigeria to assure him of the Assembly's desire fo forr the territorial integrity, unity and peace o f Nigeria. ' 1 4 The fear o f potential conflicts in Africa, such as the Eriterian conflict,10 5 has a powerful

 

For a commentary,

s

Cohen, Legal Problems Arising from the Dissolution of th e

Mali Federation, [1960] BRIT. Y.B. INT L L. 375. 97 For a discussion, see Yodfat, The End of Syria s Isolation?, 27 WORLD TODAY 32 9   1971).

State Succession: InternationalRelations COMP. L. Q . 398 1970) and Suryanarayan, Singapore in Ma and Internal Law, 19 INT L laysia, 11 INT L STUD. 1969). 9 The Text of the Declaration of Secession of May 30, 1967, is reprinted in 6 INT'L LEGAL M TERI L 679 1967). The Biafran surrender was announced on January 12, 1970. For commentaries, see note 20 supra. 00 See generally Tiewul, Relations Between the United Nations Organizationand the Organization of African Unity in the Settlement of Secessionist Conflicts, 16 HARV. INT'L L J 259, 289-91 1975). '' Ijalaye, supra note 20, at 551-54. 102 Art. III, CHARTER OF THE ORGANIZATION OF AFRICAN UNITY, 479 U.N.T.S. 39, 74. 103 Report of the O.A.U. Consultative Mission to Nigeria, cited in Ijalaye, supra note 9' See generally Jayakumar, Singapore and

20, at 556. '0'

 0

AHG/Res. 51 (IV) 1976), cited in Tiewul, supra note 99, at 290. See authorities cited in note 26 supra.

 

1981

CLAIMS TO

SE

E

E

influence on the OAU decisionmaking process. Likewise, the United N a tions never even discussed the conflict despite Biafra's appeals to the United Nations in December, 1967, charging the Federal Government of Nigeria with genocide and deliberate and continuous contraventions of the U.N. Charter provisions o n human rights.106 Three years later the U.N. Secretary General observed that the Security Council could not have acted because n o member state had brought the question before the

The reason is obvious. . the Nigerian Government strongly maintained that the war was a n 'internal matter' in which n o other State or outside agency has a right to interfere, a view shared b y the Organization of African Unity. 1 0 7 Commenting on his role he said, I have been accused in some circles o f 'passivity,' and even o f indifference to the sufferings o f Nigerian people, as if the sovereign independence of its States Members was not, for better or for worse, a basic principle of the United Nations which is especially binding o n its Secretarycouncil. He said:

General.

 

' 08

Earlier, during the Congo crisis, there was a strong and organized opposition to Katanga's claim to secede. 10 9 Initially, there was considerable hesitation o n the part of then Secretary General Dag Hammarskjold to use the United Nations forces in suppressing the Katanga secession. he argued that the United Nations forces which were sent to the Congo in response to a call for help by the Lumumba government to restore order, should not intervene in the internal affairs o f the host country. 1 0 The situation, however, changed because o f a combination of the following factors: 1) repeated allegations by Afro-Asian and the Soviet-bloc states that Belgium and its allies were supporting secession; 2) Lumumba's call for U.N. help in regaining control o f the Congo; 3) the Soviet military a n d economic assistance to Lumumba; and 4) Lumumba's assassination followed by Hammarskjold's death. ' Consequently, on November 24, 1961, the Security Council adopted a resolution completely rejecting the claim that Katanga is a sovereign independent nation, and reaffirming one of the purposes o f the United Nations action in the Congo, that o f maintain-

107

See generally Documents: Biafra/Nigeria 2 N.Y.U.J. INT L L . 7 U.N. MONT LY CHRONICLE 100 (Jan. 1971).

POL. 398 (1969).

1B Id at 100-01. lo

CAREY,

In addition to the authorities cited in note 21 supra see geneally T. FRANCK THE LEGAL

ASPECTS

OF THE

UNITED NATIONS ACTION IN THE

GORDON, THE UNITED NATIONS IN THE CONGO: A QUEST FOR PEACE

CONGO (1963);

J. K.

1962); Miller, Legal As-

pects of the United Nations Action in the Congo 55 AM. J. INT L L. 1 (1961); Wright, Legal Aspects of the Congo Situation 4 INT'L STUD. 1 (1962).

'10 For an observation that perhaps Hammarskjold's European antecedents were responsible for his hesitation to take active measures to suppress the Katanga secession, see Auma-Osolo, supra note 21, at 469-70. 1 1 See generally BUCHHEIT, supra note 4, at 148-50.

 

CASE W. RES. J

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ing the territorial integrity and political independence of the Congo. The resolution demanded that the deplorable secessionist activities and

armed action taking place in Katanga shall cease forthwith. 1' By th the e 113 end of January 1963 the secession had ended. It appears that allegations of Belgian intervention in support of these secessionist movements provided the major impetus for the United Nations action in maintaining the territorial integrity of the Congo. The fear of intervention by external adventurous elements is likely to be one of the policy reasons underlying the opposition many states posed for secessionist claims. Subsequently, in the Bangladesh crisis the United Nations was conspicuously inactive.   The subject was brought to the attention of th the e Subcommission on Prevention of Discrimination and Protection of Minorities of the U.N. Commission on Human Rights at the intitiative of several nongovernmental organizations in consultative status with the Economic and Social Council. 1 5 The Subcommission even briefly discussed the matter, but no action was taken. Similarly, although the U.N. Secretary General took the initiative to apprise the Security Council of th the e gravity of the situation, ' neither the Security Council nor the General Assembly even discussed the matter ' until India and Pakistan were locked in a military confrontation. 9 In 1971, in an incisive commentary b y Professor Van Dyke on th the e United Nations practice, it was observed that the U.N. would be in an extremely difficult position if it were to interpret the right of self-determination in such a way as to invite or justify attacks on the territorial integrity of its own members. 2 0 A year later, Professor Rupert Emerson suggested that the room left for self-determination in the sense of th e attainment of independent statehood is very slight, with the great current exception of decolonizat decolonization. ion. ' 2 Emerson's prediction was accurate, for during the last decade, the concerns and practices of the United Nations regarding self-determination have centered primarily on colonial 22 situations.' 16 U.N. SCOR, Supp. (Oct.-Dec. 1961) 148

 '

149

U.N. Doc.

S/5002

(1961).

N.Y. Times, Jan. 23, 1963, at 3, col. _.

,

See generally Nanda, Crisis, 49 DEN L J 53 (1972). See id. at 58 . See id. at 58-59. See id. at 63-64.   8 See id. at 55-56. See id. at 60-63.  '

Critique of the United Nations Inaction in the Bangladesh

 

 

V. VAN DYKE, HUMAN RIGHTS, THE UNITED STATES AND THE WORLD COMMUNITY 10 2

 '

(1970). 1   2

2

Emerson, Self-Determination, 65 AM. J INT L L. 459 465 (1970). See, e.g. 18 U.N. MONTHLY CHRONICLE 39 (Jan. 1981); 17 U.N. MONTHLY

CHRONICLE

23 (Nov. 1980) (Report of the Special Committee on Decolonization). For an earlier report

 

CLAIMS TO SECEDE

IV.

APPRAISAL

AND

RECOMMENDATIONS

Although a literal reading o f the 1960 Declaration o n the Granting of Independence to Colonial Countries and People12 s would apparently foreclose any attempt at secession, it is submitted that the 1960 Declaration should b e read in historical context. The genesis and object o f the Declaration, the specific issues it addressed, and its timing are all crucial considerations. The Declaration was meant to eradicate Colonialism which most states by late 1950's had recognized to be a palpable evil. A fear of tribal fragmentation o f the newly emancipated states outweighed the apparent illogic o f maintaining the arbitrarily drawn colonial borders. 12 Accordingly, the 1960 Declaration can both be seen as a n effort to remove the salt-water colonialists '   and to maintain the semblance of stability in the fledgling states. When the Declaration is analyzed in the context o f these considerations and in light o f the subsequent U.N. pronouncements which d o not exclusively address issues of colonialism, such as the General Assembly Declaration, o n Principles o f International L aw Concerning Friendly Relations' 7 and the Definition o f Aggression, 2 ' a persuasive case can b e made for recognizing the legitimacy of some secessionist movements in a noncolonial context. Even assuming the legitimacy and permissibility under international law o f the right to secede, many difficult definitional hurdles remain before this right could be applied and implemented. To establish the minimum standards of legitimacy, it is necessary to identify: 1 the group that is claiming the right o f self-determination; 2) the nature and scope of their claim; 3) the underlying reasons for the claim; and 4) the degree of the deprivation of basic human rights. The identification of peoples who are claiming the right of selfdetermination is a difficult task. The claim to the right to participate in all value processes-power, wealth and resources, respect and rectitude, enlightenment and skill, and affection and well-being' 29 -(focusing on the on specific situations concerning self-determination before the United Nations, see U.N. Doc. E/CN.4/Sub. 2/377/Add 2 1976). 122  I

G.A. Res. 1514, supra note 43.

This would be the outcome since under the Declaration on the Granting of Indepen-

dence to Colonial Countries and Peoples all attempts arrived at the partial or total disruption of the national unity and the integrity of a state are prohibited. G.A. Res. 1514, supra note 43. See e.g. Kapil, O n the Conflict Potential of Inherited Boundaries in Africa 18 POL. 656 (1966); Touval, The Organizationo f African Unity and African Borders WOR L  

21 INT'L ORG. 102 (1967). 128 Clark, supra note 3, at 79 . 127 See notes 73-82 supra and accompanying text.   28 See notes 83 & 84 supra and accompanying text. 129 Professor Myles McDougal articulates these value processes in M . McDOUGAL, STUD-

 

CASE W RES. J

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deprivation o f human rights) is collective and not individual.1 0 Both ob jective and subjective elements need to b e considered to identify such 13   peoples. Both kinds o f elements are often present when a claim fo forr self-determination is made. From a n objective standpoint, the group's sense o f identity may be traced to a combination o f elements such as a common ethnic background, a shared history, language or religion, while from a subjective standpoint it may be due primarily to an ethos or state o f mind. Arguably, the emphasis should be on the subjective factors o f a group s identity and a common destiny, for it is that group s own values and preferences which lie at the basis of their claim to have the power to decide their future course. Accordingly, psychological perceptions and no t tangible attributes, such a s racial characteristics, should determine whether the group seeking secession meets the threshold requirement. The nature and scope o f the alienation o f the subgroup and the separation between the subgroup and the dominant group in a body politic should also be considered. The major question here relates to the extent to which perceptions and commitments are shared by members o f the subgroup. The focus has to b e on how widely the demands articulated by the elites of the subgroup are shared by the other members o f the subgroup.1 2 This inquiry will give rise to two further questions: What is the th e proper percentage of support required to constitute a following sufficient to warrant serious consideration of the claim to self-determination? and how does one identify and accommodate those who prefer to remain with the body politic? 8 The next major step toward legitimizing a movement is ascertaining the reasons underlying the group s desire to secede. For a claim to b e considered valid, the reasons ought to be compelling. There must be little hope that any action short o f separation would satisfy the subgroup s d e sire for effective participation in the value processes. Since self-determination cannot be considered in isolation without studying its potential impact upon the parent state, the surrounding region, o r the international community, every claim must b e examined in a broad context and must be required to meet the test o f the maximization o f values which the com3 munity a s a whole strives to achieve.' 4 IES

IN WORLD

note 9.

SO For

131 13

  '

PUBLIC

ORDER

336 37

1960). See also McDougal, Lasswell,

Chen, supra

a thoughtful analysis, see Suzuki, supra note 9, at 848-56.

See generally Dinstein, supra note 9, at 104-05. See generally Suzuki, supra note 9, at 816.

For a criticism of the various theories of national self-determination, including pleb-

iscites as the preferred mechanism to determine the wishes of the people, see W. KODJOE, supra note 4, at 28-38. 13

See generally

OFuATEY

Suzuki, supra note 9, at 813-20. Professor Suzuki articulates the fol-

lowing criteria to determine the legitimacy of a claim:

 

CLAIMS TO

SE

E

E

A combination of several reasons may underlie the claim to secede: divergent political beliefs, the desire to control and manage one's ow ownn resources more effectively and a strong ethnic or cultural identification with a neighboring group. However, in light o f the maximization o f community values standard mentioned previously, and in view o f the nature o f the international system which tends to revolve around states dissimilar or even divergent political beliefs, claims to resources, or ethnic or cultural identification cannot form the main thrust o f a claim to self-

determination. Since the current state system reflects and accommodates divergent views as to political and economic organizational structures it would be dangerous and unworkable to accord legitimacy to claims rising out of ideological beliefs. Claims arising out of the desire to control and manage one's own natural resources are implicit in any self-determination movement whether or not such desire makes up a major part o f the claim. Claims to resources and group identification should not by themselves allow the claim to territorial separation to supercede the principle o f territorial integrity. Finally, when a group seeks territorial separation in order to become part o f a neighboring state inhabited by a population with whom the ,group identifies on religious, linguistic, tribal historical, o r cultural grounds, it is understandable and even emotionally compelling, especially since the colonial powers drew up boundaries without considering the ties between the people who would b e affected by them.18 5 In the absence, however, o f other factors related primarily to the deprivation o f the group's human rights by not allowing it to participate in the society's value processes, international legitimization o f secession based on such principles would seriously undermine the stability o f the world order. Once the group has been identified and its reasons for seeking separation established the only remaining test to determine the legitimacy of a claim to secession is the nature and extent o f the deprivation o f human rights o f the group making the claim. It is noteworthy that the law of international human rights although o f recent origin, has made dramatic advances during the last three decades. 8 6 Not only have human rights The critical questions are whether the sub-group's disidentification is real an d whether its demands are compatible with basic community policies. In short to approximate a public order of human dignity, the test of reasonableness is the determining factor in deciding how to respond to the claim of self-determination. The total context of such a claim must be considered: the potential effects of th thee grant or denial of self-determination upon the subgroup, the incumbent group, neighboring regions, and the world community. Suzuki, supra note 9 at 784 (footnotes omitted).  

36

note 124 supr See generally M . McDoUGAL

See e.g.

H.

LASSWELL

L.

CHEN

HUMAN

RIGHTS AND

WORLD

 

CASE W . RES. J

INT L L .

Vol. 13:257

issues become a matter of widespread international concern,' 7 but the status o f an individual under international law has also undergone a radical transformation 8 in light o f the emerging expectation that a n individual has a right to a dignified human existence.' Since this right finds fruition when the group to which the individual belongs has the opportunity to participate in the value processees o f the body politic, it is in this context that territorial territori al integrity, self-determination and other related principles o f international law such as humanitarian intervention, 4 non-intervention,1 4 1 and prohibition on the use of force1 4 2 must be examined. A s an observer has recently remarked, the need is to focus on the essential relationship between the principle o f self-determination a n d human rights, and assert the essential nature o f the right o f self-determination as a right that justifies the remedying of a deprivation by restoring self-government.

1

'3

The test to determine severe deprivation o f a group's human rights involves a n examination o f the extent to which it suffers subjugation, and the correlative extent to which it itss domination and exploitation,' individual members are deprived o f the opportunity to participate in the value processees of a body politic because of their group identification. Once this human rights deprivation test is met along with the test of legitimacy of the claim for territorial separation by its evaluation in a contextual setting, ' such a claim should be accorded recognition by the international community. The traditional principle o f self-determination, which was primarily instrumental in the dramatic transformation of former colonies into independent states, is thereby extended to include the right o f territorial separation o f such people. Since secession appears to be an irrepressible feature o f the contemporary world scene, it is imperative that existing institutional structures within the United Nations framework be used to accomplish it. If necesPUBLIC ORDER

1980); R .

OF LAW AND POLICY ald TIVE

LILLICH &

F.

NEWMAN, INTERNATIONAL HUMAN RIGHTS: PROBLEMS

1979); THE INTERNATIONAL LAW AND POLICY OF WELFARE (R. MacDon-

D. Johnston & G. Morris eds 1978);

GLOBAL HUMAN RIGHTS: PUBLIC POLICIES, COMPARA-

MEASURES, ND NGO S TR TEGIES (V. Nanda, J. Scarrit & G. Shepherd eds. 1981).  37 ee, e.g. Ermacora, Human Rights and Domestic Jurisdiction (Article 2 § of th e

Charter), 124 HAGUE RECUEIL DES COURS 371 1968).

 38 ee, e.g. Higgins, Conceptual Thinking about the Individual in InternationalLaw,

24 N.Y.L.S.L. REv. 11 1978).  39 ee generally L. HENKIN, 14

THE RIGHTS OF MAN TODAY

See generally HUMANITARIAN

INTERVENTION AND

1978).

THE UNITED NATIONS

(R. Lillich ed.

1973).

See The Declaration Concerning Friendly Relations, supra note 41. 41 .  42 ee U.N. CHARTER art. 2, para. 4.

 4

OFUATEY-KODJOE, supra note 4, at 190.  44 ee preamble of the Declaration Concerning Friendly Relations, supra note 41. 41 .  

'

 I

See note 132 supra and accompaning text.

 

1981

CLAIMS TO

SE

E

E

sary, new institutions should b e established to apply these tests toward a determination o f whether o r not the curcumstances warrant the right to secession. The recognition o f this right is likely to have several desirable effects. The institutionalization o f a right o f secession will introduce some element o f predictability to generally destabilizing secessionist movements. The ability to predict the international reaction to a given movement will benefit both those within and without the value processes o f a state. A governing state will hesitate before committing itself to a bloody civil war if it knows not only that it will receive little outside help, but also that the antagonists will receive international encouragement. 14 Conversely, if a secessionist movement can predict from the outset that its claim is legitimate under international standards, it might b e more 14 7 willing to mediate within the structure o f the governing state.147 Moreover, predictability will minimize chaos not only within states, but b etween and among states since intrastate conflicts invariably effect the world community, as was so forcefully demonstrated by the recent conflicts in Angola148 and Zaire. 49 By whichever mechanism, abusive state practices will b e deterred. A t the United Nations, the Secretary-General o f the United Nations is authorized under Article 99 to bring the matter of secession before the Security Council.150 While the Security Council has the primary responsibility under the Charter to act on situations which potentially threaten international peace and security,151 the General Assembly has secondary competence to make appropriate recommendations. 1   Perhaps the U.N. human rights machinery is the proper forum for investigating the claims for territorial separation. The Subcommission on the Prevention o f Discrimination and Protection of Minorities has been specifically authorized to discuss situations which reveal a consistent pattern of violation of This point is made in BUCHHEIT, supra note 4, at 219. 147 BUCHHEIT, supra note 4 at 219. I ' See, e.g. Ebinger, External Intervention in Internal War: The Politics and Diplomacy of the Angolan Civil War, 20 ORals 669 (1976); Garrett, Lessons o f Angola: n Eyewitness Report, 7 BLACK SCHOLAR June 1976) at 2-15; Saul, Angola and After, 28 MONTHLY REV. (May 1976), at 4-15.   94 See e.g. Howe, Mobutu s Katanga Problem: Ghost from the Past, 60 NEW LEADER 4 (1977); Young, Zaire: The Unending Crisis, 57 FOR. AFF. 169 (1978); Massacre in Zaire, NEWSWEEK May 29, 1978 at 34-36; Inside Kolwezi: Toll o f Terror, TIME June 5, 1978, at 32-36; Massacre In Zaire, U.S. NEWS WORLD REPORT, June 5, 1978, at 41-42. 16 The U.N. Charter provides: The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security. U.N. CHARTER art. 99 . See generally U.N. CHARTER arts. 24, 34, 39-51. See generally United for Peace Resolution, G.A. Res. 377A, 5 U.N. GAOR, Supp. (No. 20) 10, U.N. Doc. A/1775 (1951). For a commentary, see Andrassy, Uniting for Peace,   62

50 AM.

J INT L L.

563 (1956).

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