Two Faces of Self-determination in Political Divorce

ICL Journal ◽  
2016 ◽  
Vol 10 (4) ◽  
Author(s):  
Han Liu
Keyword(s):  
International Law ◽  
Conventional Wisdom ◽  
The Self ◽  
The Other ◽  
Self Determination ◽  
Real Problem ◽  
Nation State ◽  
Parent State ◽  
Daunting Task ◽  
The Right

AbstractFor decades, international law has denied the right to secede even if it enshrines self-determination. Existing scholarship explains this contradiction by opposing the right to self-determination and the principle of territorial integrity: self-determination itself does not justify a valid claim to the disputed territory. This article, against conventional wisdom, argues that the opposition is superficial. The real problem lies within the notion of self-determination itself. Self-determination contains within it two opposite faces: one breeds separatist movements; the other supports unification and territorial sovereignty. Historically, self-determination grounded both union and separation in the rise of the nation-state; secessionist self-determination only came into play when epochal wars had weakened the sovereignty of the parent state. Conceptually, the ambiguity of self-determination makes defining the ‘self’ a daunting task for the law, especially when both the parent state and the seceding group make national claims.

Self-Determination, Human Rights, and the Nation-State

2017 ◽  
Vol 19 (4-5) ◽  
pp. 443-484
Author(s):  
Gaetano Pentassuglia
Keyword(s):  
Human Rights ◽  
International Law ◽  
Minority Groups ◽  
Self Determination ◽  
Nation State ◽  
International Human Rights Law ◽  
General Process ◽  
Cultural Minority ◽  
The Right

Abstract In this article I examine selective dimensions of the nexus among the right to self-determination, human rights, and the ‘nation-state’ as they relate to claims made by certain ethno-cultural minority groups. I first discuss some conceptual extensions of ‘national’ claims and their underlying relation to international law and state sovereignty. Then, I critique elements of ‘national’ self-determination that are supposedly constitutive of the law of self-determination, including arguments about sub-national groups as ‘peoples’, and discuss some alternative approaches to the role of international law vis-à-vis this sort of claims. Finally, I argue that international human rights law can offer a synthesis of the above nexus insofar as it works, not so much as a platform for accepting or rejecting seemingly ‘absolute’ rights or solely enabling legal-institutional ad hocism, but rather as a general process-based framework for assessing group- related pathologies that are (directly or indirectly) of international law’s own making.

scholarly journals The Right to Self-Determination of Modern Secessionist Movements under International Law

2021 ◽  
Vol 10 (1) ◽  
pp. 285-302
Author(s):  
Ja’far Mohammad Khair Al Sabbagh
Keyword(s):  
International Law ◽  
Self Determination ◽  
Historical Background ◽  
Parent State ◽  
The World ◽  
New States ◽  
The Stability ◽  
The Right ◽  
Universal Order

States’ boundaries have changed to a large extent over the course of time, in fact, the world has not always been the same as nowadays. In place of archaic forms of social organisation, the universal order has appeared where determinate and inviolable borders play a crucial role in ensuring the stability of states and resisting separatist movements. At the same time, secessionist movements throughout the world continually aim to gain independence from the ‘parent’ state invoking the right to self-determination. In this paper, the researcher will examine whether a part of the population of a state or a sub-unit of that state has a right to secede and create a new state and/or integrate into another. The article consists of a strong theoretical part dealing with statehood, self-determination and secession with a view of the dynamic development of these notions since the rapid birth of many new states as a result of decolonization. Thereafter, the validity of the gathered results will be verified by a comparative analysis of the cases of Kosovo, Crimea and Catalonia with regard to the historical background of these secessionist entities.

scholarly journals Rencana Pemisahan Catalonia dari Spanyol Ditinjau dari Prinsip Self-Determination

2020 ◽  
Vol 1 (1) ◽  
pp. 46-53
Author(s):  
Mochamad Ardhi Ma’arif ◽  
Wisnu Aryo Dewanto ◽  
Muhammad Insan Tarigan
Keyword(s):  
International Law ◽  
The Self ◽  
Self Determination ◽  
Legal Concept ◽  
Cultural Aspects ◽  
Cultural Status ◽  
The Right ◽  
Political Economic

Abstract—This Study discussed the problem whether the secession of Catalonia from Spain is in accordance with the self-determination principle in the International Law. This study used a legal, concept and case approach and concluded as follows: Catalonia was able to separate them selves from the parent nation according to the self-determination principle by making a referendum. This act of making a referendum was a way for the Catalonia society to state their opinion. This condition was in accordance with the self-determination principle in the international law because the right for secession may occur in a certain condition other than the context of decolonization. When a country is retricted by the reigning government in savoring internal self-determination (in obtaining political, economic, social and cultural status), then the country may perform a secession from the parent nation. The requierements of self-determination in the Catalonia and Spain case were political, economic, social and cultural aspects. Afterwards, Catalonia needed full fill the requirements stated in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, and they need to get a recognition from another country. Keywords : secession, referendum, self-determination principle, recognation Abstrak—Penelitian berjudul rencana pemisahan Catalonia dari Spanyol di tinjau dari prinsip self-determination, dengan membahas permasalahan apakah pemisahan diri Catalonia dari Spanyol sesuai dengan prinsip self-determination dalam hukum internasional. Penelitian ini menggunakan pendekatan undang-undang, konsep dan kasus, sehingga diperoleh suatu kesimpulan bahwa Catalonia bisa memisahkan diri dari Spanyol sesuai dengan prinsip self-determination dengan melakukan referendum. Referendum adalah suatu cara masyarakat Catalonia untuk menyampaikan pendapat. Hal ini sesuai dengan prinsip self-determination dalam hukum internasional, karena hak untuk memisahkan diri bisa muncul dalam keadaan khusus, selain dalam konteks dekolonisasi. Ketika suatu bangsa dihalangi haknya oleh pemerintah yang berkuasa dalam menikmati internal self-determination (untuk mendapatkan status politik, ekonomi, sosial dan budaya), maka sebagai jalan terakhir yang diperbolehkan dalam hukum internasional adalah upaya melepaskan diri dari negara tersebut. Syarat-syarat self-determination dalam kasus Catalonia dengan Spanyol yang ingin memisahkan diri adalah aspek politik, ekonomi, sosial dan budaya. Setelah itu Catalonia harus sesuai dengan Konvensi Montevideo Tentang Hak dan Tugas Negara Tahun 1933 Pada Pasal 1 yaitu syarat terbentuknya suatu negara, dan terakhir Catalonia harus mendapatkan pengakuan dari sebuah negara. Kata kunci : pemisahan diri, referendum, prinsip self-determination, pengakuan

Frontiers of International Law, Part One: The Chechen People, Continued

1997 ◽  
Vol 10 (1) ◽  
pp. 16-20
Author(s):  
René Lefeber ◽  
David Raič
Keyword(s):  
Human Rights ◽  
International Law ◽  
Self Determination ◽  
Military Force ◽  
Right To Life ◽  
Customary International Law ◽  
Parent State ◽  
The People ◽  
The Law ◽  
The Right

We agree with André de Hoogh that the Chechens did not possess a right to external self-determination prior to the massive indiscriminate use oi military force by Russia in December 1994. At no point have we argued or suggested otherwise. Hence, up to December 1994, the Chechen claim did indeed not meet the conditions set by paragraph seven of the Friendly Relations Declaration. However, the Friendly Relations Declaration needs to be interpreted in view of usus and opinio iuris. In other words, one has to analyse how this paragraph has developed in customary international law. According to our analysis of the law of self-determination, the emergence of a right to external self-determination depends on two cumulative conditions, viz. 1) the serious and persistent violation of the right to internal self-determination and 2) the exhaustion of all total and international peaceful remedies by the people concerned to effectuate its right to internal self-determination. These conditions must be deemed fulfilled if the parent state seriously and massively violates the fundamental human rights and freedoms – in particular by an arbitrary violation of the right to life – of the persons belonging to the people concerned.

Sovereignty, Self-Determination, and Natural Resources

2018 ◽  
Author(s):  
Jérémie Gilbert
Keyword(s):  
Natural Resources ◽  
International Law ◽  
Indigenous Peoples ◽  
Potential Role ◽  
Food Sovereignty ◽  
Self Determination ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Ambivalent Relationship ◽  
The Right

The issue of sovereignty over natural resources has been a key element in the development of international law, notably leading to the emergence of the principle of States’ permanent sovereignty over their natural resources. However, concomitant to this focus on States’ sovereignty, international human rights law proclaims the right of peoples to self-determination over their natural resources. This has led to a complex and ambivalent relationship between the principle of States’ sovereignty over natural resources and peoples’ rights to natural resources. This chapter analyses this conflicting relationship and examines the emergence of the right of peoples to freely dispose of their natural resources and evaluates its potential role in contemporary advocacy. It notably explores how indigenous peoples have called for the revival of their right to sovereignty over natural resources, and how the global peasants’ movement has pushed for the recognition of the concept of food sovereignty.

Self-Determination Through Autonomy or Independence? – On the Current and Future Position of New Caledonia

ICL Journal ◽  
2021 ◽  
Vol 15 (1) ◽  
pp. 67-105
Author(s):  
Markku Suksi
Keyword(s):  
Human Rights ◽  
New Caledonia ◽  
Legal Order ◽  
The Self ◽  
Self Determination ◽  
Normative Framework ◽  
European Court ◽  
Determination Process ◽  
The Right

Abstract New Caledonia is a colonial territory of France. Since the adoption of the Nouméa Accord in 1998, a period of transition towards the exercise of self-determination has been going on. New Caledonia is currently a strong autonomy, well entrenched in the legal order of France from 1999 on. The legislative powers have been distributed between the Congress of New Caledonia and the Parliament of France on the basis of a double enumeration of legislative powers, an arrangement that has given New Caledonia control over many material fields of self-determination. At the same time as this autonomy has been well embedded in the constitutional fabric of France. The Nouméa Accord was constitutionalized in the provisions of the Constitution of France and also in an Institutional Act. This normative framework created a multi-layered electorate that has presented several challenges to the autonomy arrangement and the procedure of self-determination, but the European Court of Human Rights and the UN Human Rights Committee have resolved the issues regarding the right to vote in manners that take into account the local circumstances and the fact that the aim of the legislation is to facilitate the self-determination of the colonized people, the indigenous Kanak people. The self-determination process consists potentially of a series of referendums, the first of which was held in 2018 and the second one in 2020. In both referendums, those entitled to vote returned a No-vote to the question of ‘Do you want New Caledonia to attain full sovereignty and become independent?’ A third referendum is to be expected before October 2022, and if that one also results in a no to independence, a further process of negotiations starts, with the potential of a fourth referendum that will decide the mode of self-determination New Caledonia will opt for, independence or autonomy.

I. The Northern Ireland Peace Agreement, Minority Rights and Self-Determination

1998 ◽  
Vol 47 (4) ◽  
pp. 943-950 ◽  
Author(s):  
Colin Warbrick ◽  
Dominic McGoldrick ◽  
Geoff Gilbert
Keyword(s):  
Northern Ireland ◽  
Minority Groups ◽  
Religious Affiliation ◽  
Holistic Approach ◽  
Minority Rights ◽  
The Other ◽  
Self Determination ◽  
Peace Agreement ◽  
The Troubles ◽  
The Right

The Northern Ireland Peace Agreement1 was concluded following multi-party negotiations on Good Friday, 10 April 1998. It received 71 per cent approval in Northern Ireland and 95 per cent approval in the Republic of Ireland in the subsequent referenda held on Friday 22 May, the day after Ascension. To some, it must have seemed that the timing was singularly appropriate following 30 years of “The Troubles”, which were perceived as being between a “Catholic minority” and a “Protestant majority”. While there are some minority groups identified by their religious affiliation that do require rights relating only to their religion, such as the right to worship in community,2 to practise and profess their religion,3 to legal recognition as a church,4 to hold property5 and to determine its own membership,6 some minority groups identified by their religious affiliation are properly national or ethnic minorities–religion is merely one factor which distinguishes them from the other groups, including the majority, in the population. One example of the latter situation is to be seen in (Northern) Ireland where there is, in fact, untypically, a double minority: the Catholic-nationalist community is a minority in Northern Ireland, but the Protestant-unionist population is a minority in the island of Ireland as a whole.7 The territory of Northern Ireland is geographically separate from the rest of the United Kingdom. The recent peace agreement addresses a whole range of issues for Northern Ireland, but included are, on the one hand, rights for the populations based on their religious affiliation, their culture and their language and, on the other, rights with respect to their political participation up to the point of external self-determination. It is a holistic approach. Like any good minority rights agreement,8 it deals with both standards and their implementation and, like any good minority rights agreement, it is not a minority rights agreement but, rather, a peace settlement.

Russland und das Selbstbestimmungsrecht der Völker im postsowjetischen Raum

2021 ◽  
Vol 67 (1) ◽  
pp. 8-26
Author(s):  
Johannes Socher
Keyword(s):  
International Law ◽  
Self Determination ◽  
Legal Rhetoric ◽  
Power Politics ◽  
Regional Comparison ◽  
State Practice ◽  
Soviet Space ◽  
The Right ◽  
Fragmentation Of International Law ◽  
Post Soviet Space

As a concept of international law, the right to self-determination is widely renowned for its unclarity. Broadly speaking, one can differentiate between a liberal and a nationalist tradition. In modern international law, the balance between these two opposing traditions is sought in an attempt to contain or ‘domesticate’ the nationalist conception by limiting it to ‘abnormal’ situations, i.e. to colonialism in the sense of ‘alien subjugation, domination and exploitation’. Essentially, this distinction between ‘normal’ and ‘abnormal’ situations has since been the heart of the matter in the legal discourse on the right to self-determination, with the important qualification regarding the need to preserve existing borders. This study situates Russia’s approach to the right to self- determination in that discourse by way of a regional comparison vis-à-vis a ‘western’ or European perspective, and a temporal comparison with the former Soviet doctrine of international law. Against the background of the Soviet Union’s role in the evolution of the right to self-determination, the bulk of the study analyses Russia’s relevant state practice in the post-Soviet space through the prisms of sovereignty, secession, and annexation. Complemented by a review of the Russian scholarship on the topic, it is suggested that Russia’s approach to the right to self-determination may be best understood not only in terms of power politics disguised as legal rhetoric, but can be seen as evidence of traits of a regional (re-)fragmentation of international law.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

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