scholarly journals El derecho a decidir y el principio democrático

2016 ◽  
pp. 477 ◽  
Author(s):  
José Tudela Aranda
Keyword(s):  
Political Parties ◽  
International Law ◽  
Legal Framework ◽  
Self Determination ◽  
Independence Movement ◽  
Democratic Principle ◽  
The Subject ◽  
Definition Of ◽  
The Right ◽  
Right Of Self Determination

Decidida la independencia, las fuerzas políticas partidarias de la misma, tenían que encontrar la manera de poder encauzar sus aspiraciones. No teniendo cauce ni en derecho interno ni el derecho internacional, se busco ese cauce en el principio democrático mediante la construcción del llamado derecho a decidir. Un derecho a decidir que suponía, en esencia, reducir el principio democrático a un solo acto electoral, con reglas establecidas unilateralmente. En este artículo se pretende desmentir tanto la oposición entre principio de legalidad y principio democrático como la propia ortodoxia democrática del derecho a decidir. Junto a ello, se argumenta que en ningún caso resulta posible constitucionalizar, normativizar, un derecho de autodeterminación. Más allá de su naturaleza difícilmente compatible con la esencia de cualquier orden constitucional, las dificultades de fijar las condiciones concretas de su ejercicio, lo antojan imposible. No en vano, ningún ordenamiento jurídico del mundo lo reconoce.After having decided the objective of independence, the political parties in favour of this objective had to find a way how to articulate their aspirations. Since there is no legal way within the national or international law, the independence movement based their demands in the democratic principle by building the so-called right to decide. However this right to decide means to limit the democratic principle to a single electoral act, with unilaterally established rules and outside the existing legal framework. In this article we try to disprove both the supposed opposition between the rule of law and the democratic principle, as well as the supposed democratic spirit of the right to decide. Along with this, we will argue that it is impossible to constitutionalise the right of self-determination. The right of self-determination is opposed to the essence of any constitutional order, moreover the difficulties of setting the conditions in order to implement this right, and particularly, the definition of the subject, makes the application impossible.

Whether the Criteria Contained in the 1989 International Convention against the Recruitment, Use, Financing and Training of Mercenaries Notably Motivation Apply to Today’s Foreign Fighters?

2016 ◽  
Vol 18 (5) ◽  
pp. 400-417 ◽  
Author(s):  
José L. Gómez del Prado
Keyword(s):  
International Law ◽  
Self Determination ◽  
International Convention ◽  
Jus Ad Bellum ◽  
Additional Protocol ◽  
Definition Of ◽  
The Right ◽  
Foreign Fighters ◽  
International Law Commission ◽  
And Training

To protect the right of peoples to self-determination enshrined in its Charter, the United Nations adopted instruments to fight against mercenary activities and the crime of mercenarism. These actions were developed within the context of Jus ad bellum or the prerequisites, established in the un Charter, under which States may resort to the use of armed force. In 1991, un abandoned the recommendation made by the International Law Commission to maintain the crime of mercenarism in the code of crimes against the peace and the security of mankind. Instead, un adopted the 1989 Convention which definition of mercenary based on Article 47 of Additional Protocol i under jus in bello, sets out a number of prerequisites revolving around the foreign character of the mercenary and his motivation. Such conditions are at the origin of the difficulties to apply the 1989 Convention that has proved unworkable to deal with the phenomenon of mercenarism.

scholarly journals Shaping Indigenous Self-Determination: Promising or Unsatisfactory Solutions?

2011 ◽  
Vol 13 (4) ◽  
pp. 413-436 ◽  
Author(s):  
Mauro Barelli
Keyword(s):  
United Nations ◽  
International Law ◽  
Indigenous Peoples ◽  
Self Determination ◽  
Straightforward Manner ◽  
History Of ◽  
United Nations Declaration ◽  
The Right ◽  
Right Of Self Determination ◽  
Do So

AbstractThe right of peoples to self-determination represents one of the most controversial norms of international law. In particular, two questions connected with the meaning and scope of this right have been traditionally contentious: first, who constitutes a ‘people’ for the purposes of self-determination, and, secondly, what does the right of self-determination actually imply for its legitimate holders. Against this unsettled background, the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirmed, in a straightforward manner, that indigenous peoples have the right to self-determination. In light of the uncertainties that were mentioned above, it becomes necessary to clarify the actual implications of this important recognition. This article will seek to do so by discussing the drafting history of the provision on self-determination contained in the UNDRIP and positioning it within the broader normative framework of the instrument.

scholarly journals PRINCIPLES OF INTERNATIONAL LAW AND THEIR ROLE IN CONFLICT RESOLUTION IN KOSOVO AND CRIMEA. Part 2

2019 ◽  
Keyword(s):  
International Law ◽  
International Community ◽  
Self Determination ◽  
Local Authorities ◽  
Territorial Integrity ◽  
Legal Norms ◽  
Conflict Situations ◽  
History Of ◽  
Definition Of ◽  
The Right

The second part of the article considers the issue of the contradiction of the realization of the right to self-determination and the principle of territorial integrity of Serbia and Ukraine on the example of Kosovo and Crimea. It presents an analysis of the legitimacy of the will expression of Kosovars and Crimeans and its compliance with the norms of international law. The preconditions and factors of the ethnopolitical conflict are examined and the main problematic issues that caused controversies between the central and local authorities in Kosovo and Crimea are identified. The article emphasizes that the result of the plebiscites in Kosovo (1998) and Crimea (2014) was the declaration of independence, denied by central authorities of Serbia and Ukraine and met with mixed reactions by the international community. The self-proclaimed republics have only external features of statehood and are subject to external administration of other countries. A latent opposition of geopolitical opponents in the international arena is noted, which is to some extent traced through the position on the recognition / non-recognition of Kosovo and Crimea. The article draws attention to the fact that inconsistent interpretations of certain principles of international law promote secession movements in countries where conflicts periodically arise between central and local authorities. The emphasis is placed on the necessity of a clearer definition of the aforementioned international legal norms and obligations undertaken by subjects of international law. The article holds that in order to avoid such situations as in Kosovo or Crimea, to eliminate conflicts related to the possibility of an ambiguous interpretation and application of the principles of international law, an internationally recognized system of more stringent and comprehensive measures should be introduced to cease and prevent threats to the territorial integrity of countries. A strong position of the international community on the abovementioned principles with the history of the liberation movements of these peoples taken into account should become the measure precluding the aggravation of conflict situations related to the aspiration of peoples for self-determination.

scholarly journals The Right of Self-Determination: Its Emergence, Development, and Controversy

2016 ◽  
Vol 12 (1) ◽  
pp. 1
Author(s):  
Munafrizal Manan
Keyword(s):  
Human Rights ◽  
International Law ◽  
Self Determination ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Human Right ◽  
International Human Rights ◽  
International Human ◽  
The Right ◽  
Right Of Self Determination

This paper discusses the right of self-determinationfrom  international  law  and international human rights law perspective. It traces the emergence and development of self-determination from political principle to human right. It also explores the controversy of the right of self-determination. There have been different and even contradictory interpretations of the right of self-determination. Besides, there is no consensus on the mechanism to apply the right of self-determination. Both international law and international human rights law are vague about this.

scholarly journals Media role in the formation of public opinion towards the right of self-determination for Kurds in Iraq

2020 ◽  
Vol 7 (2) ◽  
pp. 214-241
Author(s):  
Hemin Majeed Hasan ◽  
Baqir Dawd Hussein ◽  
Kamil Omar Sleman
Keyword(s):  
Self Determination ◽  
Structural Representation ◽  
Strategic Issues ◽  
University Teachers ◽  
The Subject ◽  
The Individual ◽  
The Right ◽  
Social Components ◽  
The University ◽  
Right Of Self Determination

This research deals with the subject of the Kurdish media in relation to the right of self-determination, which the Kurds prepare for its central cause and struggle for it. The importance of this research comes from the importance of its basic components represented by the Kurdish media and the right to self-determination, where they combine the equation of influence and influence, which is the operator of the formative relations of things and designed in all human groups, including the community of the region, in addition to being one of the few Kurdish studies in this field, To cast its positive on the operators of the terms of reference.The aim of this research is to realize the levels of interest of the Kurdish media in the concept of the right to self-determination and its role in conveying its meanings and implications to the Kurdish individual, as well as to identify the mechanisms used by this media to convince the individual mentioned this right and activate his tendencies toward him.The research depends on the university teachers, in addition to their field dimension, because they are the most appropriate and the right to express opinions about such strategic issues and their details and implications, because of their knowledge, scientific, specialized and other structural participants, as well as their structural representation of various social components in the Kurdistan Region.

scholarly journals Indigenous “People” in the context of the Right to Self Determination: A Critical Appraisal

2021 ◽  
Vol 13 (3) ◽  
Author(s):  
Mitul Dutta ◽  
◽  
Navin Sinha ◽  
Keyword(s):  
International Law ◽  
Indigenous People ◽  
Critical Appraisal ◽  
Self Determination ◽  
Controversial Issues ◽  
Human Rights Regime ◽  
Depth Analysis ◽  
The Right ◽  
International Instruments ◽  
Right Of Self Determination

Under the international human rights regime, the right to self-determination is a right guaranteed to the groups of “people”. This right is one of the most controversial issues of international law as it comes into conflict with the principle of sovereignty and territorial integrity of the states. There are various uncertainties associated with this right regarding the scope of the right and mode of implementation etc. The present article seeks to make an in-depth analysis of the claimants of the right and the uncertainties associated with the meaning of the term “people” in the context of the right to self-determination. The article encompasses, among other things, the right of indigenous people under various international instruments and how they interrelate to the right of self-determination.

scholarly journals Origin, establishment and development of the idea of self-determination of peoples

2021 ◽  
pp. 60-73
Author(s):  
Azer Kagraman Ogly Kagramanov
Keyword(s):  
International Relations ◽  
International Law ◽  
Self Determination ◽  
Modern World ◽  
Territorial Integrity ◽  
The World ◽  
The Status ◽  
The Subject ◽  
The Right

The subject of this research is the examination of evolution of the idea of self-determination of peoples based on the fundamental works of the Russian and foreign scholars, thinkers of the antiquity and modernity. The author considers the transformations experienced by the principle of self-determination at various historical stages of development; as well as builds a corresponding systems of the development cycles. The conclusion is made that after conception of the idea of self-determination, the colonial powers viewed this concept as ethical, seeing the threat to legitimacy of the established order. Therefore, throughout almost a century, the leading countries refused to include this right into the corresponding international and domestic documents. The main conclusions are as follows: after consolidation of the principle in the Charter of the United Nations, it became the foundation for the emergence of news states and destruction of the colonial world; the principle served as a leitmotif for the development of human rights and international relations, but at the same time became a threat and challenge to the territorial integrity; wars between the countries are replaced with the civil and interethnic conflicts; the world is captured with such phenomena as state nationalism that subsequently grew into extremely radical forms, such as fascism and Nazism; the modern international law actively promotes the two competing principles – territorial integrity and self-determination; in modern world, the right to self-determination is not limited by peoples under the colonial past – there occur new forms of self-determination that threaten the existence of sovereign states. Uncertainty of the status of the newly emerged states formations serves as the source of domestic and international tension, which inevitably leads to intergovernmental clashes and negatively impacts geopolitical situation in separate regions and in the world as a whole.

scholarly journals Prawo do opieki dyplomatycznej i konsularnej – przyczynek do rozważań w świetle standardu międzynarodowego

2019 ◽  
pp. 143-162
Author(s):  
Krzysztof Kozłowski
Keyword(s):  
International Law ◽  
Host Country ◽  
Standard Of Care ◽  
Point Of View ◽  
Legal Standard ◽  
The Subject ◽  
Definition Of ◽  
The Individual ◽  
The Right ◽  
Subjective Rights

This article aims at analyzing the right to diplomatic and consular protection in the context of the standard resulting from international law. It tries to give a definition of this institution, pointing to its public and subsidiary nature. It also points out that diplomatic and consular assistance is carried out in a situation of conflict between the interests of the individual and the country of origin, and that of the host country. The article also discusses the subject and subject matter of consular and diplomatic care.                 Moreover, the study comments on the specific features of this right from the point of view of the complexity and effectiveness of the protection of rights at the international level. In this context it was pointed out that the right to diplomatic and consular protection is not a classic right, but can be considered as an instrument for the operation of other rights or freedoms. The right to consular and diplomatic care is devoid of homogeneous regulation, but also depends on the legal standard of care offered by the home state and must be within the limits set by the host country. The scope of its application may be related to any legal event that may occur when the entity is in a situation of contact with the legal system of the receiving state.                 The discussions under consideration highlighted the subsidiarity of the right to diplomatic and consular assistance for the exercise by the individual of his or her rights and freedoms. However, There is no complete protection standard in this respect, which is conducive to the lack of exhaustive regulation at the convention level, which, in extreme cases, can jeopardize the exercise by the individual of his or her subjective rights, that is to ensure its adequate protection standard in the territory of the host country.

scholarly journals A Look at the Evolution of the Right to Self-determination in International Law

2020 ◽  
Vol 25 (3) ◽  
pp. 117-132
Author(s):  
Paweł von Chamier Cieminski ◽  
Keyword(s):  
Soviet Union ◽  
International Law ◽  
Self Determination ◽  
Advisory Opinion ◽  
International Treaties ◽  
The Soviet Union ◽  
Political Events ◽  
Recent Developments ◽  
Definition Of ◽  
The Right

The article takes stock of the historical development of the notion of the right of a people to self-determination in international law. It provides a coherent review of the main international treaties, customary rules, and legal rulings that shaped the evolution of the term over the course of the twentieth century. In doing so, it focuses on the main historical and political events, which had an impact on that process as well as the preconditions that have to be met in order for a people to have the legal capacity to execute the right to self-determination. Three main processes, which it focuses on are: decolonization, the establishment of a number of new countries following the dissolution of the Soviet Union, and the recent developments following ICJ’s Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. It also delineates the subject of the legal definition of a “people” as opposed to a “minority”, describes the legal tension between the right to self-determination and the principle of territorial continuity in international law, and discusses potential further development of the term.

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