Self-Determination of Peoples: A Legal Reappraisal

by Antonio Cassese

• ISBN13: 9780521637527
• ISBN10: 052163752X
• Edition: Reprint
• Format: Paperback
• Copyright: 1999-01-28
• Publisher: Cambridge University Press

Summary

The self-determination of peoples is a major issue in the world community: both radical and subversive, it serves to grant statehood to oppressed peoples, but also to disrupt existing State structures. This book, the first comprehensive legal account, sets out to trace how this political ideal has turned into an international legal standard. Scrutinising State practice through national digests and UN proceedings the author pinpoints the limits within which this political postulate has gained a foothold in the body of international law and assesses the extent to which it has had an impact on existing legal norms. This is primarily a legal inquiry which, however, looks at law within its historical and political context and, given its judicial underpinning, makes an important contribution to the study of the interplay of law, history, and politics in international relations.

Table of Contents

Preface	xv	(2)
List of abbreviations	xvii
1 Introduction	1	(10)
The significance of self-determination	1	(1)
The approach chosen	2	(1)
The principal postulates of this enquiry	3	(8)
PART I THE HISTORICAL BACKGROUND	11	(26)
2 Self-determination as an international political postulate	11	(26)
The French Revolution	11	(3)
Lenin and Wilson	14	(9)
Lenin	14	(5)
Wilson	19	(4)
The aftermath of the First World War	23	(4)
The Aaland Islands case	27	(5)
Concluding remarks	32	(5)
PART II SELF-DETERMINATION BECOMES AN INTERNATIONAL LEGAL STANDARD	37	(128)
3 Treaty law	37	(30)
The United Nations Charter	37	(7)
Political attitudes in the era after the Second World War	44	(3)
The 1966 International Covenants on Human Rights	47	(5)
Introductory remarks	47	(1)
The origin of the Article on self-determination	48	(4)
The content of self-determination as laid down in the Covenants	52	(10)
Self-determination as a continuing right: expression of popular will	52	(3)
Self-determination as a continuing right: freedom from outside interference	55	(1)
The right over natural wealth and resources	55	(2)
Self-determination of dependent peoples	57	(2)
The people referred to in Article 1	59	(3)
The practice of the UN Human Rights Committee	62	(3)
Concluding comments	65	(2)
4 The emergence of customary rules: external self-determination	67	(34)
Introductory remarks: two necessary caveats	67	(4)
The role of treaty rules in the customary process	67	(2)
The role of UN Resolutions in the crystallization of customary rules	69	(2)
External self-determination	71	(19)
The self-determination of colonial peoples	71	(1)
The evolving of general standards	71	(3)
The actual implementation of the standards	74	(1)
An overview of UN practice with regard to colonial situations	74	(2)
To what extent has the United Nations paid regard to the freely expressed will of colonial peoples?	76	(3)
Cases where the principle of self-determination was blatantly set aside	79	(7)
Three outstanding situations	86	(2)
The pronouncements of the International Court of Justice	88	(2)
The self-determination of peoples subjected to foreign domination or occupation	90	(9)
Economic self-determination	99	(2)
5 The emergence of customary rules: internal self-determination	101	(40)
Introductory remarks	101	(1)
A right of self-determination for the populations of sovereign states? The UN practice	102	(6)
The right to self-determination of racial groups denied equal access to government	108	(18)
The 1970 Declaration on Friendly Relations: its saving clause	109	(3)
The literal and logical construction of the clause	112	(3)
The preparatory work bears out the above interpretation	115	(3)
Does the Declaration enshrine a right of secession for racial and religious groups?	118	(2)
The saving clause of the 1970: Declaration: is it customary law?	120	(1)
General	120	(2)
In particular: the refusal of any right to secession	122	(2)
The modes of exercising internal self-determination	124	(2)
Conclusion: the general principle and the customary rules on self-determination	126	(15)
The different role of the principle and the rules	126	(7)
Self-determination as imposing obligations towards the whole international community as part of jus cogens	133	(8)
6 The holders of the right to self-determination and the means of ensuring observance of the right	141	(18)
Introductory remarks	141	(1)
The recipients of the right to self-determination under the UN Convenants: two possible views	141	(4)
The view according to which peoples are only beneficiaries of Article 1	142	(1)
The view according to which peoples are holders of legal rights proper	143	(2)
Means of ensuring respect for the right to self-determination under the Covenants	145	(1)
The recipients of the right to self-determination under customary law	146	(1)
The manner of exercising self-determination under customary law	147	(3)
Enforcement of self-determination by the peoples concerned	150	(5)
Enforcement of self-determination by third states	155	(4)
7 Comparing customary law and treaty law	159	(6)
PART III THE RIGHT TO SELF-DETERMINATION IN OPERATION	165	(112)
8 The impact of self-determination on traditional international law	165	(40)
Introductory remarks	165	(1)
International legal subjects	165	(4)
Sources of law: the rise of jus cogens	169	(5)
The principle of non-interference in domestic affairs	174	(2)
State responsibility	176	(9)
The changing paradigm of state responsibility	176	(1)
`Crimes of States' in the International Law Commission's Draft Convention on State Responsibility	177	(3)
State responses to gross breaches of the principle of self-determination	180	(5)
Territorial sovereighty	185	(8)
Introductory remarks	185	(1)
The validity of existing title over territory	186	(2)
Acquisition of legal title to territorial sovereignty	188	(1)
Cession	189	(1)
Boundaries (uti possidetis v. self-determination)	190	(3)
The use of force	193	(8)
The use of force by the oppressive state	194	(3)
The use of force by the oppressed people	197	(2)
The use of force by third states	199	(1)
Resort to force by the state claiming reversionary rights over the territory of a dependent people	199	(1)
Resort to force by other third states	199	(1)
Final remarks	200	(1)
The humanitarian law of armed conflict	201	(4)
9 Testing international law -- some particularly controversial issues	205	(52)
Introductory remarks	205	(1)
Attempts at implementing self-determination: some case studies	206	(48)
Gibraltar	206	(1)
General	206	(1)
Historical background	207	(1)
The position of Spain	208	(1)
The position of the UK	209	(1)
The position of the UN	210	(1)
Some tentative remarks	211	(3)
Western Sahara	214	(1)
Introductory remarks	214	(1)
Historical background	214	(3)
A thumb-nail sketch of the position of the states concerned	217	(1)
Concluding remarks	218	(1)
Eritrea	218	(1)
Introductory remarks	218	(1)
Historical background	219	(2)
The views and claims of Ethiopia	221	(1)
The views and claims of the Eritreans	221	(1)
Concluding remarks	222	(1)
East Timor	223	(1)
Introductory remarks	223	(1)
Historical background	224	(1)
The views of Portugal	225	(1)
The views of Indonesia	225	(1)
Some tentative remarks	226	(4)
Palestinian rights	230	(1)
Introductory remarks	230	(2)
Historical background	232	(3)
The view advanced by the government of Israel	235	(2)
The view advanced by the Palestine Liberation Organization	237	(1)
The position of the United Nations	238	(2)
A few general remarks	240	(3)
The Israel-PLO agreement of 13 September 1993: some tentative observations	243	(1)
The Agreement and self-determination	243	(2)
The Agreement and the Camp David Accord	245	(2)
Concluding remarks	247	(1)
Quebec	248	(1)
Historical background	248	(3)
The positions advanced by the principal political parties in Quebec	251	(1)
The view advanced by the federal government	251	(1)
Do the Quebecois have a legal right to self-determination?	251	(2)
Rights versus reality	253	(1)
Concluding comments	254	(3)
10 The role of self-determination in the recent break up of the Soviet Union and Yugoslavia	257	(20)
Introductory remarks	257	(1)
The Baltic republics	258	(6)
The position of the republics	258	(3)
The position advanced by the Soviet Union	261	(1)
The rights of the Baltic republics under international law	262	(1)
Rights versus reality	263	(1)
The other Soviet Republics	264	(4)
The crisis in Yugoslavia	268	(5)
Concluding remarks	273	(4)
PART IV THE NEW TRENDS EMERGING IN THE WORLD COMMUNITY	277	(38)
11 Attempts at expanding self-determination	277	(38)
Introduction	277	(1)
The Helsinki Final Act	278	(18)
General	278	(2)
The 1973 proposals	280	(1)
The texts of the four proposals	280	(3)
The discussion of the texts	283	(1)
Principle VIII of the Helsinki decalogue	284	(1)
The novel features of Principle VIII	285	(3)
The traditional facets of Principle VIII	288	(2)
The Helsinki Principle, the UN instruments and customary international law	290	(2)
The CSCE follow-up to the Helsinki Final Act	292	(4)
The 1976 Algiers Declaration on the Rights of Peoples	296	(6)
The main features of the self-determination provisions	296	(5)
The Algiers Declaration and existing international law	301	(1)
The Algiers Declaration and the Helsinki Final Act	301	(1)
The new drive towards the customary recognition of the right to self-determination of the peoples of sovereign states	302	(13)
PART V GENERAL STOCK-TAKING	315	(51)
12 Recapitulation and conclusion	315	(51)
Merits and failings of the present body of international law	315	(24)
The political principle and its different meanings	315	(2)
What notion of self-determination has been upheld in international law? The present legal regulation of self-determination	317	(3)
The historical and political background of the present international regulation of self-determination	320	(3)
Merits of the present law	323	(2)
The alleged flaws of the law	325	(2)
The real flaws	327	(6)
The co-ordination of self-determination with the other fundamental legal principles of the world community	333	(4)
Emerging normative trends	337	(2)
The existing law on self-determination and the new tribalism	339	(2)
From lex lata to lex ferenda: a blueprint for action	341	(25)
The starting point	341	(1)
The failings of UN action	341	(1)
The current context of the international community	342	(2)
A plea for a four-pronged strategy	344	(1)
Putting existing international legislation into effect with regard to some outstanding questions	344	(2)
Promoting the crystallization of rules in statu nascendi on the internal self-determination of peoples of sovereign states	346	(2)
Developing new rules for the internal self-determination of ethnic groups and minorities	348	(1)
General: the need to rethink self-determination and emphasize its `internal' dimension	348	(3)
Looking upon minority protection within the framework of internal self-determination: the link between the two concepts	351	(1)
The means of achieving self-determination for ethnic groups and minorities: strengthening positive action and participatory rights and granting a wide measure of autonomy	352	(7)
Allowing for the exceptional granting of external self-determination to ethnic groups and minorities, subject to international consent and scrutiny	359	(4)
A word of caution about the proposed strategy and some alternative solutions	363	(3)
Index of names	366	(6)
Index of subjects	372