Self-determination and the Use of force
USE OF FORCE IN PUBLIC INTERNATIONAL LAW
Overview
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General key issues
• Territory
• People
• Right Self-determination
Components of the right to self-determination
General
1. The key ingredients of self-determination
1. Territory
2. People
3. Right to self-determination
General: Territory
1. Acquisition of territory
1. Occupation
2. Prescription
3. Conquest
4. Discovery
5. Cession
General: Territory: Occupation
1. Intention to occupy
2. Actual taking of possession
3. BUT:
1. Occupation presupposes that a territory is terra nullius
2. Occupation of territories not terra nullius is unlawful
3. Examples:
1. Eastern Greenland Case (Denmark v. Norway) 1932 PCIJ
2. Fisheries Case (UK v. Norway) 1951 ICJ
3. Las Malvinas/Falkland Islands
General: People
1. Not every person is a person
2. Not every people are a people
3. Article 38(1)(c): ‘civilized’ nations
Right to Self-determination
1. History
2. Contemporary status
3. Content
4. Scope
Right to Self-determination: History
1. 1776 Declaration of Independence: “We the people…”
2. 1789-1799 French Revolution: Popular sovereignty
3. 19th-early 20th century: nationalist interpretations
1. Lenin: right to self-determination = independent state
2. Unification of German peoples
3. Dismemberment of Austro-Hungarian Empire
4. Post WW1
1. Wilson’s 14 points
2. Åland Islands Dispute
Right to Self-determination: Contemporary Status
1. UN Charter, Preamble: “We the peoples determined…”
2. UN Charter, art. 1(2): Purpose of the UN is to:
“…develop friendly relations among nations based on respect
for the principle of…self-determination of peoples…”
3. 1960 Declaration on the Granting of Independence to Colonial
Countries and Peoples
4. 1966 ICCPR and ICESCR
5. 1970 Friendly Relations Declaration
=> Western Sahara AO 1975 ICJ
Right to Self-determination: Content
1. What does the right entitle to?
1. External independence
1. Establishment of an independent state
2. Free association
Which territory?
1. Preservation of colonial borders (uti possidetis iuris)
2. Or can borders be redrawn?
Right to Self-determination: Content
1. What does the right entitle to?
1. Internal autonomy
1. Integration with existing state
2. Autonomous modes of governance
2. Means chosen by referenda: 1960 GAR 1541
Right to Self-determination: Scope
1. Who holds the right?
1. No definition of “people”
2. Uti possidetis: colonial categories survive?
3. Wall AO 2004 ICJ: “existence of a Palestinian people is no
longer in issue”
4. Kosovo AO 2008 ICJ: “the people of Kosovo must take over
the running of their affairs”
5. Western Sahara AO 1975 ICJ: still unclear who “the people”
are
2. Who is obliged to respect the right?
1. Right is of erga omnes character
2. Wall AO 2004 ICJ:
Right to Self-determination: Scope
1. Does it apply outside the colonial context?
1. Examples:
1. Quebec
2. Scotland
3. Catalonia
4. Palestine
2. Issues:
1. Destabilising potential
Right to Self-determination: Scope
1. Can self-determination trump territorial integrity?
1. Quebec
2. Åland Islands Dispute
3. Kosovo
4. Crimea