The Concept of Self-Determination

With the first republics in the eighteenth century, a state’s decisions were no longer seen as an

expression of the ruler’s will, but as the expression of the collective decision of its people though its government. The people freely choose governments and through its decisions people determine themselves. Consequently, self-determination has to do with a collective right of some group to govern themselves, which is said to be the basis of the democratic principle of law and politics. Two practical problems arise immediately from this concept of self-determination. The first is about the scope of the population referred to by the “self” part, or as Christian Tomuschat calls it, the ratione personae of self-determination (Tomuschat 1999: 254). The second problem is about the final outcome or the goal that is to be achieved through the self- determination, or its ratione materiae (Tomuschat 1999: 255). The two problems are interconnected. Depending on how widely or narrowly we define the scope of persons who are to be granted the right to self-determination, we are also to define their eligible claims, e.g.

statehood, federal units, some sort of political autonomy. The other way around is also possible: if the ultimate goal of self-determination is seen exclusively as leading to independent statehood, then not all groups can be granted this right, since otherwise none of today’s large states would exist. The fact that states are still the most powerful players on the global political scene should not be overlooked. They dominate decisions of international law and hence would not accept provisions that would endanger their existence, which means that either self-determination does not necessarily assume independent statehood, or the persons that are allowed to self-determine themselves are a priori co-nationals (as in the case of colonial peoples).

The first distinctive portion of the population that was explicitly given the right to self-determination was the population of former African colonies. Their territories, in Africa, were conquered in the sixteenth century by the great European powers and the population was placed under European rule. United Nation’s Resolution 1514 (1960) liberated those territories and explicitly gave to “the peoples” a right to self-determine their political systems: “All peoples have a right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic social and cultural development” (Res. 1514, Art.2)

What did this mean in practice? Colonial populations, following years of guardianship, did not have the human resources or the know-how-strategies to build their own institutions. Giving them independent statehood also assumed supporting them in making their institutions work. “The peoples” were still in the need of guidance, assistance and supervision - the difference being that this time the period of supervision was to be limited.

In addition, the awarded statehood did not necessarily follow ethnic or racial lines, but was determined along the borders that Europeans, i.e. the colonial powers, had set. This was again a political decision

since otherwise the newly independent states would have ended up in endless disputes or maybe even in a war. Hence, Resolution 1514 introduced the idea of peoples and insisted on its inalienable connection to the idea of self-determination as the counterpart to the interference or non-subjugation to foreign rule, but did not specify the characteristics of the people, or what kind of political autonomy self-determination implies.

Another population group, the Palestinians, in this case of the same ethnicity, was granted the right to self-determination not long after the Resolution 1514. When the British Government retreated from Palestine in 1948, Jewish settlers in the region quickly proclaimed the Jewish state of Israel.

Palestinians did not have enough time to organize their future. After the Arab-Israeli war in June 1967, Israel occupied the Gaza Strip, the West Bank and East Jerusalem. The General Assembly of the United Nations recognized that the Palestinian “people” have the right to self-determination (Resolution 2535, from 1969); the European Council joined this recognition in 1980 (Tomuschat 1999: 247). This specific ethnicity however, is not being granted an independent statehood, but rather another form of political autonomy.

Hence, if by ´peoples´ only a part of a population or a specific ethnicity of some already existent state is meant, like in the cases of Quebec, the Basque Country, the Kurds, etc., then self-determination does not necessarily mean granting them independent statehood.³³ This does not, however, mean that these ethnic groups or parts of a population would not have certain linguistic, cultural even political rights. On the contrary, the rights and needs of these groups need to be accounted for within the political system of the state in which they live. The system needs to allow them to self-determine themselves even without an independent statehood. Being under “foreign” rule does not mean that this rule needs to be despotic or disrespectful of the ´peoples’´ culture. An extreme example of having a different moral and cultural codex from that prescribed by the state is the lifestyle of some indigenous peoples. They still live in their traditional way and did not assimilate to the life of the state’s majority. How should both the indigenous people and the state deal with this? Resolution 54 (1994) of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, reads: “Indigenous peoples have a right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. This provision may be read as a call for a breakaway from the state in which the indigenous peoples currently live or it may be seen as a call for some form of internal political autonomy.

33 But can, as in the case of Kosovo.

Resolution 2625 (1970) says: “the people have a right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development”. It is not said that political status need be that of statehood. What is being determined through self-determination is their culture, their social and economic well-being. This can be done within a group, association, and ultimately within the state. ´Peoples´ are thus active on all levels.

As far as existing states are concerned, or even those that are emerging, it has became a standard that the government needs to express the will of its people, or rather, that a people is to govern itself through government. In other words, there should not be a government that does not express the wish for the self-determination of its people, but it seems that there may be one government that expresses the wish for self-determination of a few peoples.