Self-determination

The right of nations to self-determination (from German: Selbstbestimmungsrecht der Völker) is a cardinal principle in modern international law (commonly regarded as a jus cogens rule), binding, as such, on the United Nations as authoritative interpretation of the Charter’s norms.^[1][2] It states that nations, based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no external compulsion or interference.^[3] This principle can be traced to the Atlantic Charter, signed on 14 August 1941, by Franklin D. Roosevelt, President of the United States of America, and Winston Churchill, Prime Minister of the United Kingdom, who pledged The Eight Principal points of the Charter.^[4] It also is derived from principles espoused by President Woodrow Wilson following World War I, after which some new nation states were formed, or previous states were revived after the dissolution of empires. The principle does not state how the decision is to be made, nor what the outcome should be, whether it be independence, federation, protection, some form of autonomy or full assimilation.^[5] Neither does it state what the delimitation between nations should be— nor what constitutes a nation. There are conflicting definitions and legal criteria for determining which groups may legitimately claim the right to self-determination.^[6]

On 14 December 1960, the United Nations General Assembly adopted United Nations General Assembly Resolution 1514 (XV) under titled Declaration on the Granting of Independence to Colonial Countries and Peoples, which supported the granting of independence to colonial countries and peoples in providing an inevitable legal linkage between self-determination and its goal of decolonisation, It postulated a new international law-based right of freedom also in economic self-determination. Article 5 states: Immediate steps shall be taken in Trust and Non-Self-Governing Territories,^[7] or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

On 15 December 1960 the United Nations General Assembly adopted United Nations General Assembly Resolution 1541 (XV) under titled 'Principles which should guide members in determining whether or nor an obligation exists to transmit the information called for under Article 73e of the United Nations Charter in Article 3,' provided that [  i ]  nadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. To monitor the implementation of Resolution 1514, in 1961 the General Assembly created the Special Committee referred to popularly as the Special Committee on Decolonization^[8] to ensure decolonization complete compliance with the principle of self-determination in General Assembly Resolution 1541 (XV), 12 Principle of the Annex defining free association with an independent State, integration into an independent State, or independence as the three legitimate options of full self-government^[9] compliance with the principle of self-determination.^[10][11]

"National aspirations must be respected; people may now be dominated and governed only by their own consent. Self determination is not a mere phrase; it is an imperative principle of action. . . . "

— Woodrow Wilson in his famous self-determination speech on 11 February 1918^[12] after he announced his Fourteen Points on 8 January 1918.

By extension the term self-determination has come to mean the free choice of one's own acts without external compulsion.^[13][14]

History

Pre-20th century

Origins

The employment of imperialism, through the expansion of empires, and the concept of political sovereignty, as developed after the Treaty of Westphalia, also explain the emergence of self-determination during the modern era. During, and after, the Industrial Revolution many groups of people recognized their shared history, geography, language, and customs. Nationalism emerged as a uniting ideology not only between competing powers, but also for groups that felt subordinated or disenfranchised inside larger states; in this situation, self-determination can be seen as a reaction to imperialism. Such groups often pursued independence and sovereignty over territory, but sometimes a different sense of autonomy has been pursued or achieved.

Empires

The world possessed several traditional, continental empires such as the Ottoman, Russian, Austrian/Habsburg, and the Qing Empire. Political scientists often define competition in Europe during the Modern Era as a balance of power struggle, which also induced various European states to pursue colonial empires, beginning with the Spanish and Portuguese, and later including the British, French, Dutch, and German. During the early 19th century, competition in Europe produced multiple wars, most notably the Napoleonic Wars. After this conflict, the British Empire became dominant and entered its "imperial century", while nationalism became a powerful political ideology in Europe.

Later, after the Franco-Prussian War in 1870, "New Imperialism" was unleashed with France and later Germany establishing colonies in Asia, the Pacific, and Africa. Japan also emerged as a new power. Multiple theaters of competition developed across the world:

• Africa: multiple European states competed for colonies in the "Scramble for Africa";
• Central Asia: Russia and Britain competed for domination in the "Great Game"
• Eastern Asia: colonies and various spheres of influence were established, largely to the detriment of the Qing Empire.

The Ottoman Empire, Austrian Empire, Russian Empire, Qing Empire and the new Empire of Japan maintained themselves, often expanding or contracting at the expense of another empire. All ignored notions of self-determination for those governed.^[15]

Rebellions and emergence of nationalism

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The revolt of New World British colonists in North America, during the mid-1770s, has been seen as the first assertion of the right of national and democratic self-determination, because of the explicit invocation of natural law, the natural rights of man, as well as the consent of, and sovereignty by, the people governed; these ideas were inspired particularly by John Locke's enlightened writings of the previous century. Thomas Jefferson further promoted the notion that the will of the people was supreme, especially through authorship of the United States Declaration of Independence which inspired Europeans throughout the 19th century.^[6] The French Revolution was motivated similarly and legitimatized the ideas of self-determination on that Old World continent.^[16][17]

Within the New World during the early 19th century, most of the nations of Spanish America achieved independence from Spain. The United States supported that status, as policy in the hemisphere relative to European colonialism, with the Monroe Doctrine. The American public, organized associated groups, and Congressional resolutions, often supported such movements, particularly the Greek War of Independence (1821–29) and the demands of Hungarian revolutionaries in 1848. Such support, however, never became official government policy, due to balancing of other national interests. After the American Civil War and with increasing capability, the United States government did not accept self-determination as a basis during its Purchase of Alaska and attempted purchase of the West Indian islands of Saint Thomas and Saint John in the 1860s, or its growing influence in the Hawaiian Islands, that led to annexation in 1898. With its victory in the Spanish–American War in 1899 and its growing stature in the world, the United States supported annexation of the former Spanish colonies of Guam, Puerto Rico and the Philippines, without the consent of their peoples, and it retained "quasi-suzerainty" over Cuba, as well.^[6]

Nationalist sentiments emerged inside the traditional empires including: Pan-Slavism in Russia; Ottomanism, Kemalist ideology and Arab nationalism in the Ottoman Empire; State Shintoism and Japanese identity in Japan; and Han identity in juxtaposition to the Manchurian ruling class in China. Meanwhile, in Europe itself there was a rise of nationalism, with nations such as Greece, Hungary, Poland and Bulgaria seeking or winning their independence.

Karl Marx supported such nationalism, believing it might be a "prior condition" to social reform and international alliances.^[18] In 1914 Vladimir Lenin wrote: "[It] would be wrong to interpret the right to self-determination as meaning anything but the right to existence as a separate state. "^[19]

World Wars I and II

Europe, Asia and Africa

Woodrow Wilson revived America's commitment to self-determination, at least for European states, during World War I. When the Bolsheviks came to power in Russia in November 1917, they called for Russia's immediate withdrawal as a member of the Allies of World War I. They also supported the right of all nations, including colonies, to self-determination."^[19] The 1918 Constitution of the Soviet Union acknowledged the right of secession for its constituent republics.^[6]

This presented a challenge to Wilson's more limited demands. In January 1918 Wilson issued his Fourteen Points of January 1918 which, among other things, called for adjustment of colonial claims, insofar as the interests of colonial powers had equal weight with the claims of subject peoples.^[6] The Treaty of Brest-Litovsk in March 1918 led to Russia's exit from the war and the independence of Armenia, Finland, Estonia, Latvia, Ukraine, Lithuania, Georgia and Poland. The end of the war led to the dissolution of the defeated Austro-Hungarian Empire and the creation by the Allies of Czechoslovakia and the union of the State of Slovenes, Croats and Serbs and the Kingdom of Serbia as new states. However, this imposition of states where some nationalities (especially Poles, Czechs, and Serbs and Romanians) were given power over nationalities who disliked and distrusted them eventually helped lead to World War II. Also Germany lost land after WWI: Northern Slesvig voted to return to Denmark after a referendum. The defeated Ottoman empire was dissolved into the Republic of Turkey and several smaller nations, including Yemen, plus the new Middle East Allied "mandates" of Syria and Lebanon (future Syria, Lebanon and Hatay State), Palestine (future Transjordan and Israel), Mesopotamia (future Iraq). The League of Nations was proposed as much as a means of consolidating these new states, as a path to peace.^[21]

During the 1920s and 1930s there were some successful movements for self-determination in the beginnings of the process of decolonization. In the Statute of Westminster the United Kingdom granted independence to Canada, New Zealand, Newfoundland, the Irish Free State, the Commonwealth of Australia, and the Union of South Africa after the British parliament declared itself as incapable of passing laws over them without their consent. Egypt, Afghanistan and Iraq also achieved independence from Britain and Lebanon from France. Other efforts were unsuccessful, like the Indian independence movement. And Italy, Japan and Germany all initiated new efforts to bring certain territories under their control, leading to World War II. In particular, the National Socialist Program invoked this right of nations in its first point (out of 25), as it was publicly proclaimed on 24 February 1920 by Adolf Hitler.

In Asia, Japan became a rising power and gained more respect from Western powers after its victory in the Russo-Japanese War. Japan joined the Allied Powers in World War I and attacked German colonial possessions in the Far East, adding former German possessions to its own empire. In the 1930s, Japan gained significant influence in Inner Mongolia and Manchuria after it invaded Manchuria. It established Manchukuo, a puppet state in Manchuria and eastern Inner Mongolia. This was essentially the model Japan followed as it invaded other areas in Asia and established the Greater East Asia Co-Prosperity Sphere.

In 1912, the Republic of China officially succeeded the Qing Dynasty, while Outer Mongolia, Tibet and Tuva proclaimed their independence. Independence was not accepted by the government of China. By the Treaty of Kyakhta (1915) Outer Mongolia recognized China's sovereignty. However, the Soviet threat of seizing parts of Inner Mongolia induced China to recognize Outer Mongolia's independence, provided that a referendum was held. The referendum took place on October 20, 1945, with (according to official numbers) 100% of the electorate voting for independence.

Many of Eastern Asia's current disputes to sovereignty and self-determination stem from unresolved disputes from World War II. After its fall, the Empire of Japan renounced control over many of its former possessions including Korea, Sakhalin Island, and Taiwan. In none of these areas were the opinions of affected people consulted, or given significant priority. Korea was specifically granted independence but the receiver of various other areas was not stated in the Treaty of San Francisco, giving Taiwan de facto independence although its political status continues to be ambiguous...

The Cold War world

The UN Charter

In 1941 Allies of World War II signed the Atlantic Charter and accepted the principle of self-determination. In January 1942 twenty-six states signed the Declaration by United Nations, which accepted those principles. The ratification of the United Nations Charter in 1945 at the end of World War II placed the right of self-determination into the framework of international law and diplomacy.

• Chapter 1, Article 1, part 2 states that purpose of the UN Charter is: "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace. "^[22]
• Article 1 in both the International Covenant on Civil and Political Rights (ICCPR)^[23] and the International Covenant on Economic, Social and Cultural Rights (ICESCR)^[24] reads: "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 United Nations Universal Declaration of Human Rights article 15 states that everyone has the right to a nationality and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality.

However, the charter and other resolutions did not insist on full independence as the best way of obtaining self-government, nor did they include an enforcement mechanism. Moreover, new states were recognized by the legal doctrine of uti possidetis juris, meaning that old administrative boundaries would become international boundaries upon independence if they had little relevance to linguistic, ethnic, and cultural boundaries.^[25][26] Nevertheless, justified by the language of self-determination, between 1946 and 1960, thirty-seven new nations in Asia, Africa, and the Middle East gained independence from colonial powers.^[6][27][28] The territoriality issue inevitably would lead to more conflicts and independence movements within many states and challenges to the assumption that territorial integrity is as important as self-determination.^[25]

The communist versus capitalist worlds

Decolonization in the world was contrasted by the Soviet Union's successful post-war expansionism. Tuva and several regional states in Eastern Europe, the Baltic, and Central Asia had been fully annexed by the Soviet Union during World War II. Now, it extended its influence by establishing satellite states Eastern Germany and the countries of Eastern Europe, along with support for revolutionary movements in China and North Korea. Although satellite states were independent and possessed sovereignty, the Soviet Union violated principles of self-determination by suppressing the Hungarian revolution of 1956 and the Prague Spring Czechoslovak reforms of 1968. It invaded Afghanistan to support a communist government assailed by local tribal groups.^[6] However, Marxism-Leninism and its theory of imperialism were also strong influences in the national emancipation movements of third world nations rebelling against colonial or puppet regimes. In many Third World countries, communism became an ideology that united groups to oppose imperialism or colonization.

Soviet actions were contained by the United States which saw communism as a menace to its interests. Throughout the cold war, the United States created, supported, and sponsored regimes with various success that served their economic and political interests, among them anti-communist regimes such as that of Augusto Pinochet in Chile and Suharto in Indonesia. To achieve this, a variety of means was implemented, including the orchestration of coups, sponsoring of anti-communist countries and military interventions. Consequently, many self-determination movements, which spurned some type of anti-communist government, were accused of being Soviet-inspired or controlled.^[6]

Asia

In Asia, the Soviet Union had already converted Mongolia into a satellite state but abandoned propping up the Second East Turkestan Republic and gave up its Manchurian claims to China. The new People's Republic of China had gained control of mainland China in the Chinese Civil War. The Korean War shifted the focus of the Cold War from Europe to Asia, where competing superpowers took advantage of decolonization to spread their influence.

In 1947, India gained independence from the British Empire. The empire was in decline but adapted to these circumstances by creating the British Commonwealth—since 1949 the Commonwealth of Nations—which is a free association of equal states. As India obtained its independence, multiple ethnic conflicts emerged in relation to the formation of a statehood during the Partition of India which resulted in Islamic Pakistan and Secular India. Before the advent of the British, no empire based in mainland India had controlled any part of what now makes up the country's Northeast, part of the reason for the ongoing insurgency in Northeast India.^[29] In 1971 Bangladesh obtained independence from Pakistan.

Burma also gained independence from the British Empire, but declined membership in the Commonwealth. Internal conflict in Burma that challenge the ruling government persist.

Indonesia gained independence from the Netherlands in 1949 after the latter failed to restore colonial control. As mentioned above, Indonesia also wanted a powerful position in the region that could be lessened by the creation of united Malaysia. The Netherlands retained Dutch New Guinea, but Indonesia threatened to invade and annex it. A vote was supposedly taken under the UN sponsored Act of Free Choice to allow West New Guineans to decide their fate, although many dispute its veracity. Later, Portugal relinquished control over East Timor in 1975, at which time Indonesia promptly invaded and annexed it.

North Borneo and Sarawak

Another controversial episode with perhaps more relevance was the British beginning their exit from British Malaya. An experience concerned the findings of a United Nations Assessment Team that led the British territories of North Borneo and Sarawak in 1963 to determine whether or not the populations wished to become a part of the new Malaysia Federation.^[30] The United Nation Team's mission followed on from an earlier assessment by the British-appointed Cobbold Commission which had arrived in the territories in 1962 and held hearings to determine public opinion. It also sifted through 1600 letters and memoranda submitted by individuals, organisations and political parties. Cobbold concluded that around two thirds of the population favoured to the formation of Malaysia while the remaining third wanted either independence or continuing control by the United Kingdom. The United Nations team largely confirmed these findings, which were later accepted by the General Assembly, and both territories subsequently wish to formed the new Federation of Malaysia. The conclusions of both the Cobbold Commission and the United Nations team were arrived at without any referendums self-determination being held.^[31][32][33] Unlike in Singapore, however, no referendum was ever conducted in Sarawak and North Borneo.^[34] they sought to consolidate several of the previous ruled entities then there was Manila Accord, an agreement between the Philippines, Federation of Malaya and Indonesia on 31 July 1963^[35][36] to abide by the wishes of the people of North Borneo and Sarawak within the context of United Nations General Assembly Resolution 1541 (XV), Principle 9 of the Annex^[37][38] taking into account referendums in North Borneo and Sarawak that would be free and without coercion.^[39] This also triggered the Indonesian confrontation because Indonesia opposed the violation of the agreements.^[40][41]

After the Cold War

The Cold War began to wind down after Mikhail Gorbachev assumed power in March 1985. With the cooperation of the American president Ronald Reagan, Gorbachev wound down the size of the Soviet Armed Forces and reduced nuclear arms in Europe, while liberalizing the economy.

In 1989 – 90, the communist regimes of Soviet satellite states collapsed in rapid succession in Poland, Hungary, Czechoslovakia, East Germany, Bulgaria, Romania, and Mongolia. East and West Germany united, Czechoslovakia peacefully split into Czech Republic and Slovakia, while in 1990 Yugoslavia began a violent break up into its former 6 sub-unit republics. Kosovo, which was previously an autonomous unit of Serbia declared independence in 2008, but has received less international recognition.^[6]

In December 1991, Gorbachev resigned as president and the Soviet Union dissolved relatively peacefully into fifteen sovereign republics, all of which rejected communism and most of which adopted democratic reforms and free-market economies. Inside those new republics, four major areas have claimed their own independence, but not received widespread international recognition.

After decades of civil war, Indonesia finally recognized the independence of East Timor in 2002.

In 1949, the Communists won the civil war and established the People's Republic of China in Mainland China. The Kuomintang-led Republic of China government retreated to Taipei, its jurisdiction now limited to Taiwan and several outlying islands. Since then, the People's Republic of China has been involved in disputes with the ROC over issues of sovereignty and the political status of Taiwan.

As noted, self-determination movements remain strong in some areas of the world. Some areas possess de facto independence, such as Taiwan, North Cyprus, Kosovo, and South Ossetia, but their independence is disputed by one or more major states. Significant movements for self-determination also persist for locations that lack de facto independence, such as Kurdistan, Balochistan, Chechnya, and the State of Palestine

Current issues

Since the early 1990s, the legitimatization of the principle of national self-determination has led to an increase in the number of conflicts within states, as sub-groups seek greater self-determination and full secession, and as their conflicts for leadership within groups and with other groups and with the dominant state become violent.^[42] The international reaction to these new movements has been uneven and often dictated more by politics than principle. The year 2000 United Nations Millennium Declaration failed to deal with these new demands, mentioning only "the right to self-determination of peoples which remain under colonial domination and foreign occupation. "^[26][43]

In an issue of Macquarie University Law Journal Associate Professor Aleksandar Pavkovic and Senior Lecturer Peter Radan outlined current legal and political issues in self-determination.^[44] These include:

Defining "peoples"

There is not yet a recognized legal definition of "peoples" in international law. Vita Gudeleviciute of Vytautas Magnus University Law School, reviewing international law and UN resolutions, finds in cases of non-self-governing peoples (colonized and/or indigenous) and foreign military occupation "a people" is the entire population of the occupied territorial unit, no matter their other differences. In cases where people lack representation by a state's government, the unrepresented become a separate people. Present international law does not recognize ethnic and other minorities as separate peoples, with the notable exception of cases in which such groups are systematically disenfranchised by the government of the state they live in.^[26] Other definitions offered are "peoples" being self-evident (from ethnicity, language, history, etc.), or defined by "ties of mutual affection or sentiment", i.e. "loyalty", or by mutual obligations among peoples. Or the definition may be simply that a people is a group of individuals who unanimously choose a separate state. If the "people" are unanimous in their desire for self-determination, it strengthens their claim. For example, the populations of federal units of the Yugoslav federation were considered a people in the breakup of Yugoslavia, although some of those units had very diverse populations.^[44] Libertarians who argue for self-determination distinguish between the voluntary nation (the land, the culture, the terrain, the people) and the state, the coercive apparatus, which they have a right to choose or self-determine.^[21]

Abulof suggests that self-determination entails the "moral double helix" of duality (personal right to align with a people, and the people's right to determine their politics) and mutuality (the right is as much the other's as the self’s). Thus, self-determination grants individuals the right to form "a people," which then has the right to establish an independent state, as long as they grant the same to all other individuals and peoples.^[45]

Self-determination versus territorial integrity

National self-determination appears to challenge the principle of territorial integrity (or sovereignty) of states as it is the will of the people that makes a state legitimate. This implies a people should be free to choose their own state and its territorial boundaries. However, there are far more self-identified nations than there are existing states and there is no legal process to redraw state boundaries according to the will of these peoples.^[44] According to the Helsinki Final Act of 1975, the UN, ICJ and international law experts, there is no contradiction between the principles of self-determination and territorial integrity, with the latter taking precedence. ^{[46][47][48][49]}

Pavkovic and Radan describe three theories of international relations relevant to self-determination.

• The realist theory of international relations insists that territorial sovereignty is more important than national self-determination. This policy was pursued by the major powers during the Cold War.
• Liberal internationalism has become an alternative since that time. It promotes the abolition of war among states as well as increased individual liberty within states, and holds the expansion of global markets and cross-border cooperation diminishes the significance of territorial integrity, allowing for somewhat greater recognition of greater self-determination of peoples.
• Cosmopolitan liberalism calls for political power to shift to a world government which would make secession and change of boundaries a relatively easy administrative matter. However, it also would mean the de facto end of self-determination of national groups.^[44]

Allen Buchanan, author of seven books on self-determination and secession, supports territorial integrity as a moral and legal aspect of constitutional democracy. However, he also advances a "Remedial Rights Only Theory" where a group has "a general right to secede if and only if it has suffered certain injustices, for which secession is the appropriate remedy of last resort. " He also would recognize secession if the state grants, or the constitution includes, a right to secede.^[26]

Vita Gudeleviciute holds that in cases of non-self-governing peoples and foreign military occupation the principle of self-determination trumps that of territorial integrity. In cases where people lack representation by a state's government, they also may be considered a separate people, but under current law cannot claim the right to self-determination. On the other hand, she finds that secession within a single state is a domestic matter not covered by international law. Thus there are no on what groups may constitute a seceding people.^[26]

A number of states have laid claim to territories, which they allege were removed from them as a result of colonialism. This is justified by reference to Paragraph 6 of UN Resolution 1514(XV), which states that any attempt "aimed at partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter". This, it is claimed, applies to situations where the territorial integrity of a state had been disrupted by colonisation, so that the people of a territory subject to a historic territorial claim are prevented from exercising a right to self-determination. This interpretation is rejected by many states, who argue that Paragraph 2 of UN Resolution 1514(XV) states that "all peoples have the right to self-determination" and Paragraph 6 cannot be used to justify territorial claims. The original purpose of Paragraph 6 was "to ensure that acts of self-determination occur within the established boundaries of colonies, rather than within sub-regions". Further, the use of the word attempt in Paragraph 6 denotes future action and cannot be construed to justify territorial redress for past action.^[50] An attempt sponsored by Spain and Argentina to qualify the right to self-determination in cases where there was a territorial dispute was rejected by the UN General Assembly, which re-iterated the right to self-determination was a universal right.^[51][52]

Methods of increasing minority rights

In order to accommodate demands for minority rights and avoid secession and the creation of a separate new state, many states decentralize or devolve greater decision-making power to new or existing subunits or autonomous areas. More limited measures might include restricting demands to the maintenance of national cultures or granting non-territorial autonomy in the form of national associations which would assume control over cultural matters. This would be available only to groups that abandoned secessionist demands and the territorial state would retain political and judicial control, but only if would remain with the territorially organized state.^[44]

Self-determination versus majority rule/equal rights

Pavković explores how national self-determination, in the form of creation of a new state through secession, could override the principles of majority rule and of equal rights, which are primary liberal principles. This includes the question of how an unwanted state can be imposed upon a minority. He explores five contemporary theories of secession. In "anarcho-capitalist" theory only landowners have the right to secede. In communitarian theory, only those groups that desire direct or greater political participation have the right, including groups deprived of rights, per Allen Buchanan. In two nationalist theories, only national cultural groups have a right to secede. Australian professor Harry Beran's democratic theory endorses the equality of the right of secession to all types of groups. Unilateral secession against majority rule is justified if the group allows secession of any other group within its territory.^[53][54]

Constitutional law

Most sovereign states do not recognize the right to self-determination through secession in their constitutions. Many expressly forbid it. However, there are several existing models of self-determination through greater autonomy and through secession.^[55]

In liberal constitutional democracies the principle of majority rule has dictated whether a minority can secede. In the United States Abraham Lincoln acknowledged that secession might be possible through amending the United States Constitution. The Supreme Court in Texas v. White, held secession could occur "through revolution, or through consent of the States. "^[56][57] The British Parliament in 1933 held that Western Australia only could secede from Australia upon vote of a majority of the country as a whole; the previous two-thirds majority vote for secession via referendum in Western Australia was insufficient.^[44]

The Chinese Communist Party followed the Soviet Union in including the right of secession in its 1931 constitution in order to entice ethnic nationalities and Tibet into joining. However, the Party eliminated the right to secession in later years, and had anti-secession clause written into the Constitution before and after the founding the People's Republic of China. The 1947 Constitution of the Union of Burma contained an express state right to secede from the union under a number of procedural conditions. It was eliminated in the 1974 constitution of the Socialist Republic of the Union of Burma (officially the "Union of Myanmar"). Burma still allows "local autonomy under central leadership. "^[55]

As of 1996 the constitutions of Austria, Ethiopia, France, Singapore, Saint Kitts and Nevis Republics have express or implied rights to secession. Switzerland allows for the secession from current and the creation of new cantons. In the case of proposed Quebec separation from Canada the Supreme Court of Canada in 1998 ruled that only both a clear majority of the province and a constitutional amendment confirmed by all participants in the Canadian federation could allow secession.^[55]

The 2003 draft of the European Union Constitution allowed for the voluntary withdrawal of member states from the union, although the State wanted to leave could not be involved in the vote deciding whether or not they can leave the Union.^[55] There was much discussion about such self-determination by minorities^[58] before the final document underwent the unsuccessful ratification process in 2005.

Drawing new borders

In determining international borders between sovereign states, self-determination has yielded to a number of other principles.^[59] Once groups exercise self-determination through secession, the issue of the proposed borders may prove more controversial than the fact of secession. The bloody Yugoslav wars in the 1990s were related mostly to border issues because the international community applied a version of uti possidetis juris in transforming the existing internal borders of the various Yugoslav republics into international borders, despite the conflicts of ethnic groups within those boundaries. In the 1990s indigenous populations of the northern two-thirds of Quebec province opposed being incorporated into a Quebec nation and stated a determination to resist it by force.^[44]

The border between Northern Ireland and the Irish Free State was based on the borders of existing counties and did not include all of historic Ulster. A Boundary Commission was established to consider re-drawing it. Its proposals, which amounted to a small net transfer to Northern Ireland, were leaked to the press and then not acted upon. In December 1925, the governments of the Irish Free State, Northern Ireland, and the United Kingdom agreed to accept the existing border.

Notable cases of self-determination

There have been a number of notable cases of self-determination. For more information on past movements see list of historical autonomist and secessionist movements and lists of decolonized nations. Also see list of autonomous areas by country and list of territorial autonomies and list of active autonomist and secessionist movements.

Australia

From 2003 onwards, self-determination has become the topic of some debate in Australia in relation to Aboriginal Australians and Torres Strait Islanders. In the 1970s, the Indigenous community approached the Federal Government and requested the right to administer their own communities. This encompassed basic local government functions, ranging from land dealings and management of community centres to road maintenance and garbage collection, as well as setting education programmes and standards in their local schools.

Azawad

The traditional homeland of the Tuareg peoples was divided up by the modern borders of Mali, Algeria and Niger. Numerous rebellions occurred over the decades, but in 2012 the Tuaregs succeeded in occupying their land and declaring the independence of Azawad. However, their movement was hijacked by the Islamist terrorist group Ansar Dine.

Basque Country

The Basque Country (Basque: Euskal Herria, Spanish: País Vasco, French: Pays Basque) as a cultural region (not to be confused with the homonym Autonomous Community of the Basque country) is a European region in the western Pyrenees that spans the border between France and Spain, on the Atlantic coast. It comprises the autonomous communities of the Basque Country and Navarre in Spain and the Northern Basque Country in France. Since the 19th century, Basque nationalism has demanded the right of some kind of self-determination. This desire for independence is particularly stressed among leftist Basque nationalists. The right of self-determination was asserted by the Basque Parliament in 1990, 2002 and 2006.^[60] Since self-determination is not recognized in the Spanish Constitution of 1978, some Basques abstained and some voted against it in the referendum of December 6 of that year. It was approved by a clear majority at the Spanish level, and with 74. 6% of the votes in the Basque Country.^[61] However, the overall turnout in the Basque Country was 45% when the Spanish overall turnover was 67, 91%. The derived autonomous regime for the BAC was approved by Spanish Parliament and also by the Basque citizens in referendum. The autonomous statue of Navarre (Amejoramiento del Fuero: "improvement of the charter") was approved by the Spanish Parliament and, like the statues of 13 out 17 Spanish autonomous communities, it didn´t need a referendum to enter into force.

Euskadi Ta Askatasuna or ETA (English: Basque Homeland and Freedom; pronounced [ˈeta]), is an armed Basque nationalist, separatist and terrorist organization. Founded in 1959, it evolved from a group advocating traditional cultural ways to a paramilitary group with the goal of Basque independence. Its ideology is Marxist-Leninist.^[62][63]

Biafra

From 1999 to the present day, the indigenous people of Biafra have been agitating for independence to revive their country. They have registered a human rights organization known as Bilie Human Rights Initiative both in Nigeria and in the United Nations to advocate for their right to self-determination and achieve independence by the rule of law. This struggle for self determination of Biafra came very much alive in 2015 after the arrest of Nnamdi Kanu, the director of Radio Biafra and leader of the Indigenous People Of Biafra in October, 2015 after he came back to Nigeria from his base in the UK. Protest for his release and the actualization of the defunct Republic of Biafra has been the other of the day in major cities of South-Eastern and some cities in the Niger Delta area. Though Their protests are peaceful, the Nigerian Army and police keeps on attacking the peaceful protesters. Scores have been killed by the police and army during their protests. Many others have been injured and others arrested. The international community seems to be silent on this. ^[64]

Canada

In Canada, many in the province of Quebec have wanted the province to separate from Confederation. The Parti Québécois has asserted Quebec's "right to self-determination. " There is debate on under which conditions would this right be realized.^[65] French-speaking Quebec nationalism and support for maintaining Québécois culture would inspire Quebec nationalists, many of whom were supporters of the Quebec sovereignty movement during the late-20th century.^[66]

Catalonia

After the 2012 Catalan march for independence, in which more than 1. 5 million citizens marched, the President of Catalonia, Artur Mas, called for new parliamentary elections on 25 November 2012 to elect a new parliament that would exercise the right of self-determination for Catalonia. The Parliament of Catalonia voted to hold a 'referendum or consultation' in the next four-year legislature in which the people of Catalonia would decide on becoming a new independent and sovereign state. The parliamentary decision was approved by a large majority of MPs: 84 voted for, 21 voted against, and 25 abstained.^[67] On December 2013 the President of the Generalitat Artur Mas and the governing coalition agreed to set the referendum for self-determination on 9 November 2014, which was declared void by the Spanish Courts and called by means of a "consultation to the people" instead.

The question in the consultation was "Do you want Catalonia to be a State?" (possible answers were yes or no) and, in case the answer to this question is yes, "do you want Catalonia to be an independent State?" (possible answers again yes or no). However, as the consultation was not a proper referendum, these answers were just suggestions and other answers were also accepted and catalogued as "other answers" instead as null votes. The participation in this consultation was about 2.3m people out of 6,228,531 people that were called to vote (this figure does not coincide with the official census because of two main reasons: first, as the consultation was not a referendum, the organization of the consultation had no access to the census, second, people under 18 but above 16 were also entitled to vote, as opposed to ordinary referenda where the voting age is 18). As the organization did not had a proper census, it used a system based on the Street of the Address in the Spanish National Identity Card to determine where to vote and whether you had already voted or not. This is the reason why some claimed irregularities in the voting system and some people even alleged in Spanish media to have exploited the system to vote twice or several times. The overall result was 80,76% in favor of both questions, 11% in favor of the first question but not of the second questions,4,54% against both and the rest were classified as "other answers".

Chechnya

Under Dzhokhar Dudayev, Chechnya declared independence as the Chechen Republic of Ichkeria, using self-determination, Russia's history of bad treatment of Chechens, and a history of independence before invasion by Russia as main motives. Russia has restored control over Chechnya, but the separatist government functions still in exile, though it has been split into two entities: the Akhmed Zakayev-run secular Chechen Republic (based in Poland, the UK and the USA), and the Islamic Caucasus Emirate.

Eastern Ukraine

There is an active secessionist movement based on the self-determination of the residents of the Donetsk and Luhansk regions of eastern Ukraine, allegedly against the instability and corruption of the Ukrainian government. However, many in the international community assert that referendums held there in 2014 regarding independence from Ukraine were illegitimate and undemocratic.^[68][69] Similarly, there are reports that presidential elections in May 2014 were prevented from taking place in the two regions after armed gunmen took control of polling stations, kidnapped election officials, and stole lists of electors, thus denying the population the chance to express their will in a free, fair, and internationally recognised election.^[70] There is also speculation that the de facto separation of Eastern Ukraine from the rest of the country is not in fact an expression of self-determination, but rather an invasion by neighbouring Russia, with Ukrainian President Petro Poroshenko reporting to MPs on the 4th June 2015 that up to nine thousand Russian soldiers were deployed in Ukraine.^[71]

Falkland Islands

Self-determination is referred to in the Falkland Islands Constitution^[72] and is a factor in the Falkland Islands sovereignty dispute. The population has existed for over nine generations, continuously for over 175 years.^[73] In the 2013 referendum organised by the Falkland Islands Government, 99. 8% voted to remain British.^[74] The British Government considers that since the majority of inhabitants wish to remain British, transfer of sovereignty to Argentina would be counter to their right to self-determination.^[75]

Argentina states that the principle of self-determination is not applicable since the UK illegally occupied the islands in 1833 expelling the Argentine authorities and preventing their return, and the future establishment of Argentines from the mainland.^[76]

Gibraltar

The right to self-determination is referred to in the pre-amble of Chapter 1 of the Gibraltar constitution,^[77] and, since the United Kingdom also gave assurances that the right to self-determination of Gibraltarians would be respected in any transfer of sovereignty over the territory, is a factor in the dispute with Spain over the territory.^[78] The impact of the right to self-determination of Gibraltarians was seen in the 2002 Gibraltar sovereignty referendum, where Gibraltarian voters overwhelmingly rejected a plan to share sovereignty over Gibraltar between the UK and Spain. However, the UK government differs with the Gibraltarian government in that it considers Gibraltarian self-determination to be limited by the Treaty of Utrecht, which prevents Gibraltar achieving independence without the agreement of Spain, a position that the Gibraltarian government does not accept.^[79]

The Spanish government denies that Gibraltarians have the right to self-determination, considering them to be "an artificial population without any genuine autonomy" and not "indigenous".^[80] However, the Partido Andalucista has agreed to recognise the right to self-determination of Gibraltarians.^[81]

Kurdistan

Kurdistan is a historical region primarily inhabited by the Kurdish people of the middle east. The territory is currently part of 4 states Turkey, Iraq, Syria and Iran. There are Kurdish self-determination movements in each of the 4 states. Iraqi Kurdistan has to date achieved the largest degree of self-determination through the formation of the Kurdistan Regional Government, an entity recognised by the Iraqi Federal Constitution.

Although the right of the creation of a Kurdish state was recognized following World War I in the Treaty of Sèvres, the treaty was then annulled by the Treaty of Lausanne. To date two separate Kurdish republics and one Kurdish Kingdom have declared sovereignty. The Republic of Ararat (Ağrı Province, Turkey), the Republic of Mehabad (West Azerbaijan Province, Iran) and the Kingdom of Kurdistan (Sulaymaniyah Province, Iraqi Kurdistan, Iraq), each of these fledgling states was crushed by military intervention. The Patriotic Union of Kurdistan which currently holds the Iraqi presidency and the Kurdistan Democratic Party which governs the Kurdistan Regional Government both explicitly commit themselves to the development of Kurdish self-determination, but opinions vary as to the question of self-determination sought within the current borders and countries.

Nagalim

Naga refers to a vaguely-defined conglomeration of distinct tribes living on the border of India and Burma. Each of these tribes lived in a sovereign village before the arrival of the British, but developed a common identity as the area was Christianized. After the British let India, a section of Nagas under the leadership of Angami Zapu Phizo sought to establish a separate country for the Nagas. Phizo's group, the Naga National Council (NNC), claimed that 99. 9% of the Nagas wanted an independent Naga country according to a referendum conducted by it. It waged a secessionist insurgency against the Government of India. The NNC collapsed after Phizo got his dissenters killed or forced them to seek refuge with the Government.^[82][83] Phizo escaped to London, while NNC's successor secessionist groups continued to stage violent attacks against the Indian Government. The Naga People's Convention (NPC), another major Naga organization, was opposed to the secessionists. Its efforts led to the creation of a separate Nagaland state within India in 1963.^[84] The secessionst violence declined considerably ater the Shillong Accord of 1975. However, three factions of the National Socialist Council of Nagaland (NSCN) continue to seek an independent country which would include parts of India and Burma. They envisage a sovereign, predominantly Christian nation called "Nagalim".^[85]

South Africa

Section 235 of the South African Constitution allows for the right to self-determination of a community, within the framework of "the right of the South African people as a whole to self-determination", and pursuant to national legislation.^[86] This section of the constitution was one of the negotiated settlements during the handing over of political power in 1994. Supporters of an independent Afrikaner homeland have argued that their goals are reasonable under this new legislation.^[86]

Turkish Cypriots

Since Turkey's invasion and continued occupation of Cyprus in 1974, following ethnic clashes and turmoil on the island, an administration recognized by Turkey only was declared in 1983 – the Turkish Republic of Northern Cyprus.^[87] Turkish Cypriots and their former leader, Fazıl Küçük said that Turkish Cypriots had the right of self-determination, as well as Greek Cypriots.^[88] The Turkish Cypriots prior to the invasion constituted an 18% minority and were not concentrated in a specific region of the island. Only after the forced removal of the Greek Cypriots from the North of Cyprus did they form a local majority.

United States

The colonization of the North American continent and its Native American population has been the source of legal battles since the early 19th century. Many Native American tribes were resettled onto separate tracts of land (reservations), which have retained a certain degree of autonomy within the United States. The federal government recognizes Tribal Sovereignty and has established a number of laws attempting to clarify the relationship among the federal, state, and tribal governments. The Constitution and later federal laws recognize the local sovereignty of tribal nations, but do not recognize full sovereignty equivalent to that of foreign nations, hence the term "domestic dependent nations" to qualify the federally recognized tribes.

Certain Chicano nationalist groups seek to "recreate" an ethnic-based state to be called Aztlán, after the legendary homeland of the Aztecs. It would comprise the Southwestern United States, historic territory of indigenous peoples and their descendants, as well as colonists and later settlers under the Spanish colonial and Mexican governments.^[89] Black nationalists have argued that, by virtue of slaves' unpaid labor and the harsh experiences of African Americans under slavery and Jim Crow, African Americans have a moral claim to the black belt region of the American South. They believe this area should be the basis of forming an independent state of New Afrika, designed to have an African-American majority and political control.

There are several active Hawaiian autonomy or independence movements, each with the goal of realizing some level of political control over single or several islands. The groups range from those seeking territorial units similar to Indian reservations under the United States, with the least amount of independent control, to the Hawaiian sovereignty movement, which is projected to have the most amount of independence. The Hawaiian Sovereignty movement seeks to revive the Hawaiian nation under the Hawaiian constitution. Supporters of this concept say that Hawaii retained its sovereignty while under control of the United States.

Since 1972, the U.N. Decolonization Committee has called for Puerto Rico's 'decolonization' and for the U.S. to recognize the island's right to self-determination and independence. In 2007 the Decolonization Subcommittee called for the United Nations General Assembly to review the political status of Puerto Rico, a power reserved by the 1953 Resolution.^[90] This followed the 1967 passage of a plebiscite act that provided for a vote on the status of Puerto Rico with three status options: continued commonwealth, statehood, and independence. In the first plebscite, the commonwealth option won with 60.4% of the votes, but U.S. congressional committees failed to enact legislation to address the status issue. In subsequent plebiscites in 1993 and 1998, the status quo was favored.^[91]

In a referendum that took place in November 2012, a majority of Puerto Rican residents voted to change the territory's relationship with the United States, with the statehood option being the preferred option. But a large number of ballots—one-third of all votes cast—were left blank on the question of preferred alternative status. Supporters of the commonwealth status had urged voters to blank their ballots. When the blank votes are counted as anti-statehood votes, the statehood option would have received less than 50% of all ballots received.^[92] As of January 2014, Washington has not taken action to address the results of this plebiscite.

Many current U.S. state, regional and city secession groups use the language of self-determination. A 2008 Zogby International poll revealed that 22% of Americans believe that "any state or region has the right to peaceably secede and become an independent republic. "^[93][94]

Since the late 20th century, some states periodically discuss desires to secede from the United States. Secession was ruled unconstitutional by the U.S. Supreme Court in Texas v. White (1869).

West Papua

The self-determination of the West Papuan people has been violently suppressed by the Indonesian government since the withdrawal of Dutch colonial rule under the Netherlands New Guinea in 1962.

Western Sahara

There is an active movement based on the self-determination of the Sahrawi people in the Western Sahara region. Morocco also claims the entire territory, and maintains control of about two-thirds of the region.

See also

References

Bibliography

• Temesgen Muleta-Erena, "The political and Cultural Locations of National Self-determination: The Oromia Case", Oromia Quarterly, Vol. II, No. 2, 1999. ISSN 1460-1346.

External links

Wikimedia Commons has media related to Self-determination.

• Thürer, Daniel, Burri, Thomas. Self-determination, Max Planck Encyclopedia of Public International Law
• The Liechtenstein Institute on Self-Determination, Princeton University
• United Nations General Assembly Resolution 1514(XV). "Declaration on the Granting of Independence to Colonial Countries and Peoples"
• United Nations Charter.
• Text of International Covenant on Civil and Political Rights.
• Text of International Covenant on Economic, Social and Cultural Rights.
• Self Determination in Focus, Foreign Policy In Focus self-determination papers site.
• Andrei Kreptul, The Constitutional Right of Secession in Political Theory and History, Journal of Libertarian Studies, Ludwig von Mises Institute, Volume 17, no. 4 (Fall 2003), pp.  39 – 100.
• Jacob T. Levy, Self-Determination, Non-Domination, and Federalism, published in Hypatia: A Journal of Feminist Philosophy.
• "Winds of Change or Hot Air? Decolonization, Self-determination and the Salt Water Test, " Legal Frontiers International Law Blog
• The Right of Nations to Self-Determination Vladimir Lenin February – May 1914.
• Parliamentarians for National Self-Determination Unofficial page for London-based Parliamentary lobby group.
• Self Determination - International Law and Practise collated and sequenced by Nadesan Satyendra.
• The Center for World Indigenous Studies.
• Post-2011 scenarios in Sudan: What role for the EU?, edited by Damien Helly, Report No. 6, November 2009, European Union Institute for Security Studies
• self determination for Puerto Rico and all Latin American nations

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