IMPORTANT EXCERPTS THAT CANADIANS AND INDIGENOUS PEOPLES NEED TO UNDERSTAND REGARDING THE ONLY SOLUTION THAT CAN STOP GOVERNMENT CORRUPTION, WHICH IS COLLECTIVE
Self-determination in International Law: A Democratic Phenomenon or an Abuse of Right?
Self-determination has been recognised as an erga omnes right 12 and even as a peremptory (jus cogens) norm. 13
Traditionally, international law has been silent on the choice of internal governance structures to be adopted within each state. Legal scholarship, in particular across the Atlantic, promptly advocated for an emerging ‘right to democratic governance’ in international law. 16
The argument is that democratic governance, in particular its procedural elements such as multiparty elections, is necessary for the realisation of self-determination. his article re-evaluates the underlying thesis and argues that democracy conceived as a multiparty political system is not a sufficient condition for the realisation of the right to self-determination in contemporary international law.
Like many other human rights, the right to self-determination is not absolute. Its exercise is limited by the principles of territorial integrity and uti possidetis juris (ie. the creation of a new entity must occur within the previous administrative boundaries). 17
It is widely agreed that there are two means of exercising the right to self-determination in international law: an external one, which provides the people with the right to determine the international status of the territory; and an internal one ensuring the right of peoples to self-government within the confines of the parent state. 18
Outside the decolonisation context, and subject to the potential exception of remedial secession,19 international law does not bestow upon groups, including ethnic, national, religious, cultural, or linguistic minorities, the right to exercise external self-determination. These groups are instead entitled to a form of self-government or autonomy within the confines of their parent state. 20
As the Supreme Court of Canada held:
The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination—a people’s pursuit of its political, economic, social and cultural development within the framework of an existing state. 21
Similarly, the Badinter Commission of the International Conference on the Former Yugoslavia stressed that ‘communities’ within a state may have the right to self -determination, but its exercise could not (in the absence of agreement) result in changes to state borders existing at the time of independence. Rather, the right implied an acknowledgement of a people’s cultural identity and their legal protection as minorities under relevant international instruments. 22
Accordingly, today self-determination is mainly consummated in its internal form, so as not to ‘dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States’. 23
It is questionable whether the choice of a democratic form of government, within the understanding of a multiparty democracy, is yet an additional limitation to the people’s exercise of the right to self-determination. (The Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A (III) (UDHR) art 21 and ICCPR, art 25 do not require a multiparty setting as a precondition of the right to political participation. See also UN Human Rights Committee, ‘CCPR General Comment 25: Article 25
International law does not impose a restriction on the people’s choice as to the form of government, as long as the exercise of that choice takes place in a free manner, without any external influence or coercion. Foreseeing democracy as the only legitimate outcome ‘cannot truly be considered a free act of self-determination’. 25
Moreover, democracy, conceived as a majority rule in elections, is not a sufficient guarantee for the proper operation of the right to self-determination outside the decolonisation context. The genuine realisation of the right to self-determination implies not only a transparent electoral benchmark, but also respect of the principles of territorial integrity and sovereignty, compliance with and promotion of other human rights, and the implementation of the rule of law.
The right to self-determination needs to be exercised in a free and fair way, benefiting from a representative government. However, the choice of people as to the governing system and its modalities is not dictated as a matter of positive international law. Mandating that a people must determine to be free, as denied by a particular procedural model of democracy, significantly constrains their right to make a free determination of their own political status. This, of course, is not to say that self-determination should not be exercised, or that the full extent of its consequences can be realised in practice outside a functioning democracy. 29
Article 25 ICCPR provides that every citizen has the right to take part in the conduct of public affairs, directly or through freely chosen representatives, which necessarily entails the right to vote and to be elected at genuine periodic elections. 33
Such elections must be by universal and equal suffrage, held by secret ballot ‘in circumstances which guarantee the free expression of the will of the electors. 34
Other provisions of international and regional instruments setup similar parameters for the expression of the will of the people. However, critically, the democratic interpretation of article 25 ICCPR is not universally accepted in contemporary international law.35
Nor does the interdependence of human rights imply that self-determination can only be exercised with a particular form of government in place. 36
As the Human Rights Committee pointed out in its General Comment:
– The rights under article 25 are related to, but distinct from, the right of peoples to self-determination.
– By virtue of the rights covered by article 1(1) peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government. Article 25 deals with the right of individuals to participate in those processes which constitute the conduct of public affairs.37 General Comment 25 (n 24) 2.
Both democracy and self-determination are ‘sources of political legitimacy, both are considered to be important for the enjoyment of individual rights and both hold that the power derives from the people. 38
Article 1 ICCPR and ICESCR could then be regarded ‘as affirming the self-direction of each society by its people, and thus as affirming the principle of democracy at the collective level’. 39
In the Western Sahara Advisory Opinion, the International Court of Justice (ICJ or the Court) clarified that the people of a territory entitled to self-determination have the right ‘to determine their future political status by their own freely expressed will’. 53
The Court stressed that ‘[t]he validity of the principle of self-determination, denied as the need to pay regard to the freely expressed will of peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. 54
In practice, ‘the will of the people’ meant the will of the majority of the inhabitants of a colonial territory. 56
Yusuf argues that the right to self-determination ‘is manifestly opposable to unconstitutional forms of government such as military governments, as well as to authoritarian or despotic government’. 57
Finally, the exercise of the right to self-determination, in particular in its internal mode, may ‘take a variety of forms, from autonomy over most policies and laws in a region or part of a State (…) to a people having exclusive control over only certain aspects of policy. 69
International law provides no ‘guidelines on the possible distribution of power among institutionalized units or regions’. 70
One possible way to define the representativeness of the government in the context of the right to self-determination is that:
the government and the system of government is not imposed on the population of a State, but that it is based on the consent or assented by the population and in that sense is representative of the will of the people regardless of the forms or methods by which the consent or assent is freely expressed. 71
It remains questionable how much democratic pedigree exists in the concept of self-determination.
In the author’s view, a right to democracy or democratic governance remains de lege ferenda, and should not be conflated with the right to self-determination.
(Definition – “de lege ferenda”: being on the basis of new law) NL
Eleanor Roosevelt stated back in 1952 that ‘[j]ust as the concept of individual human liberty carried to its logical extreme would mean anarchy, so the principle of self-determination given unrestricted application could result in chaos. 102
Once regarded self-determination has not caused over the years the instability or disorganisation of the international society as some had predicted. In a great majority of cases, it has allowed people to liberate themselves from colonialism and alien domination.
It is undeniable that any people entitled to the right to self-determination must exercise it freely, whether through a plebiscite, referendum, or some other agreed procedure. However, the imposition of a multi-party democracy as the form of government is not a requirement in positive international law for the exercise of the right to self-determination, even if many authors argue the point de lege ferenda. What international law requires for the exercise of self-determination is the existence of a government that is representative (not necessarily a multiparty democracy), that respects human rights, and that does not discriminate against the people entitled to the right to self-determination.
The international community is yet to witness the emergence of ‘a duty not only of the state concerned, but also of other states and international organisations, to ensure the respect of the rights of peoples freely to choose a government which truly represents them and reflects the expression of the will of the majority in free and fair elections. 105
Yusuf explains that ‘such legal obligation of other states could consist of the withholding of recognition, individually or collectively, from governments which are not respectful of the will of their peoples or the suspension of their membership in universal or regional organizations. 106
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12. East Timor Judgment (n 2) para 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)  ICJ Rep 136, para 155 (Wall Advisory Opinion).
13. Antonio Cassese, International Law (2nd edn, OUP 2005) 65. See also David Raic, Statehood and the Law of Self-determination (Kluwer Law International 2002) 218–19; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections)  ICJ Rep 595, para 90 (Dissenting Opinion of Judge Kreca).
16. Thomas M Franck, ‘the Emerging Right to Democratic Governance’ (1992) 86 AJIL 46.
17. Case Concerning the Frontier Dispute (Burkina Faso/Mali) (Judgment)  ICJ Rep 554, para 25. See also Robert McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 ICLQ 857, 875–76.
18. Steven Wheatley, Democracy, Minorities and International Law (CUP 2005) 5–6.
19. Quebec Reference (n 11). he doctrine of remedial secession remains highly controversial. In Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion)  ICJ Rep 403, para 81 (Kosovo Advisory Opinion), the Court took a minimalist approach without discussing the subject. See, eg, Antonello Tancredi, ‘A Normative “Due Process” in the Creation of States through Secession’ in Marcelo G Kohen (ed), Secession: International Law Perspectives (CUP 2006); Simone F van den Driest, Remedial Secession: A Right to External Self-Determination as a Remedy
to Serious Injustices? (CUP 2013); Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations of International Law (OUP 2004).
20. For state practice see Raić (n 13) 230–33. See generally, Marc Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) 20 EJIL 111 (identifying nine different categories of self-determination settlements).
21. Quebec Reference (n 11) para 126.
22. Arbitration Commission of the International Conference on the Former Yugoslavia, ‘Opinion No 2’ (reprinted in 1992) 31 ILM 1497, 1498–99 (Badinter Opinion No 2). See Jan Klabbers, ‘he Right to be Taken Seriously: Self-Determination in International Law’ (2006) 28 Human Rights Q 186, 204: suggesting that ‘the right to internal self-determination came about, it could be argued, as a compromise position: Where secession or external self-determination would be out of reach, the least one could expect from states is that they would somehow not make peoples’ lives too miserable.’
23. Friendly Relations Declaration (n 8) principle 5, para 7.
24. The Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217A (III) (UDHR) art 21 and ICCPR, art 25 do not require a multiparty setting as a precondition of the right to political participation. See also UN Human Rights Committee, ‘CCPR General Comment 25: Article 25
25. Cecile Vandewoude, ‘The Rise of Self-Determination versus the Rise of Democracy’ (2010) 2 Goettingen J Intl L 981, 984; Eckert (n 15) 69–70.
29. Eckert (n 15) 57.
33. ICCPR, art 25.34. UDHR, art 21; European Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) ETS No 5, protocol 1, art 3 (European Convention on Human Rights); American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 art 23; and African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 art 13.
35. Vidmar, Democratic Statehood in International Law (n 28) 19–39.
36. See Vidmar, ‘he Right of Self-Determination and Multiparty Democracy’ (n 1); Vidmar, ‘Judicial Interpretation of Democracy’ (n 24)
38. James J Summers, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations (Martinus Nijhof 2007) 372.
39. James Crawford, ‘Democracy and International Law’ (1993) 64 BYBIL 113, 116. See UN Human Rights Committee, ‘Third Periodic Reports of States Parties due in 1992’ (17 June 1996) UN Doc CCPR/C/76/ Add.6, 32. States often refer to the democratic process or the right to democracy in relation to the right of self-determination: eg ‘[t]he exercise of the right to self-determination required the democratic process’ (Germany (13 October 1988) UN Doc A/C.3/43/SR.7, 76); ‘[t]he internal aspects of self-determination (…) includes [sic] the right of people to choose their own form of government and the right to democracy’ (India (17 June 1996) UN Doc CCPR/C/76/Add.6, 32). See also Patrick Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism’ in Christian Tomuschat (ed), Modern Law of Self-determination (Martinus Nijhof 1993) 120; Wheatley (n 18) 135–36
53. Friendly Relations Declaration (n 8) principles 5, 7.
54. Western Sahara (Advisory Opinion)  ICJ Rep 12, para 70. See also paras 121–22 (Separate Opinion of Judge Dillard) (‘the present Opinion is forthright in proclaiming the existence of a “right” (…) he pronouncements of the Court thus indicate, in my view, that a norm of international law has emerged applicable to the decolonization of those non-self-governing territories which are under the aegis of the United Nations’); para 81 (Declaration of Judge Nagendra Singh) (‘the consultation of the people of the territory awaiting decolonization is an inescapable imperative whether the method followed on decolonization is integration or association or independence. (…) Thus even if integration of territory was demanded by an interested State, as in this case, it could not be had without ascertaining the freely expressed will of the people—the very sine qua non of all decolonization’). See also he Right of Peoples and Nations to Self-Determination, UNGA Res 637A (VII) (16 December 1952) UN Doc A/RES/637(VII) [A], 2, which expressly states that the exercise of the right to self-determination should take place in accordance with ‘the freely expressed wishes of the peoples concerned, the wishes of the people being ascertained through plebiscites or other recognized democratic means, preferably under the auspices of the United Nations.
56. Higgins, The Development of International Law (n 8) 104; Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘Study prepared by Héctor Gros Espiell: he Right to Self-Determination—Implementation of United Nations Resolutions’ (20 June 1978) UN Doc E/CN.4/Sub.2/405, 10–11.
57. Yusuf (n 26) 384.
70. Cassese, Self-Determination of Peoples: A Legal Reappraisal (n 4) 332.
71. Raic (n 13) 279.
105. Yusuf (n 26) 384 (emphasis in original).
106. ibid. For the consequences of the breach of the right to self-determination on third parties, see Wall Advisory Opinion (n 12) para 159 (including the obligations of non-recognition and non-assistance).