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The Right of Self-Determination

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9International bodies and legal scholars have universallyaccepted the idea that the realization of the group right toself-determination is a prerequisite for the effective enjoy-ment of individual rights. In its General Comment 12, the UNHuman Rights Committee (HRC) states that “[t]he right of self-determination is of particular importance because its realizationis an essential condition for the effective guarantee and obser-vance of individual human rights and for the promotion andstrengthening of those rights. It is for that reason that States . . .placed this provision as [A]rticle 1 [of the InternationalCovenant for Civil and Political Rights] apart from and beforeall of the other rights. . . .” This principle is illustrated by thesituation in Kashmir, where massive violations of individualrights are being committed daily in the context of a largerstruggle over group rights and state boundaries. Nevertheless,unlike 50 years ago, when the universal human rights system wasin its infancy, today the developmentof the right to self-determinationpoints to a legally tenable solution.As exemplified by East Timor, thissolution requires that the people ofKashmir be allowed to freely exercisetheir right to self-determinationthrough an impartial plebiscite andthat the international communityserve as a guarantor of this right inthe event the States involved do notallow for its realization.The Expanding Scope of the Right to Self-Determination inInternational LawThe right to self-determination of peoples is enshrined in thefirst article of the Charter of the United Nations, the Interna-tional Covenant on Economic, Social and Cultural Rights (ICE-SCR), and the International Covenant on Civil and PoliticalRights (ICCPR). Article 1.1 of both the ICCPR and ICESCRstates, “[a]ll peoples have the right of self-determination. Byvirtue of that right they freely determine their political status andfreely pursue their economic, social and cultural development.”According to the Committee on the Elimination of all Forms ofRacial Discrimination, the right to self-determination is “a fun-damental principle of international law.” This fundamentalprinciple has slowly expanded from being a right exclusivelybelonging to colonized peoples to include all peoples who aresystematically denied human rights.Despite being enshrined in the first article of numeroushuman rights instruments, the right to self-determination is nev-ertheless relatively underdeveloped. This is in part because theHRC declared it has no competence to receive complaintsasserting a violation of the right to self-determination becausethe right is a group right rather than an individual right. Indi-vidual rights, according to the HRC, are set out in articles 6through 27 of the ICCPR. Modern commentary on the right toself-determination has thus been left to UN treaty bodies’ com-ments on State reports, general comments, or recommendations,and resolutions of the UN General Assembly, which, accordingto Article 13(1)(a) of the UN Charter, is charged with “encour-aging the progressive development of international law and itscodification.” The result is a relatively undefined scope of theright to self-determination. The seminal issue in defining the right has been establish-ing to which peoples the right to self-determination belongs. Thefirst significant comments on this issue, and on the right of self-determination in general, appeared in Resolutions 1514 and1541 of the General Assembly. In those resolutions, the GeneralAssembly made clear that the right to self-determination belongsto peoples under colonial domination who are struggling forindependence. General Assembly Resolution 1514—the 1960Declaration on the Granting of Independence to ColonialCountries and Peoples—relates the right to self-determinationonly to “the subjection of peoples to alien subjugation, domi-nation and exploitation” and of those in “Trust and Non-Self-Governing Territories.” Neither of the resolutions addresses whether the right appliesto peoples in non-colonial States. Additionally, Resolution 1514seemingly closes the door on any unilateral right of secessionby stating that “[a]ny attempt aimedat the partial or total disruption ofthe national unity and the territor-ial integrity of a country is incom-patible with the purposes and prin-ciples of the Charter of the UnitedNations.” Resolution 1514, there-fore, applies the right of self-deter-mination only to colonized peoplesand forbids unilateral secession bystating that the right does notinclude an effort to disrupt the ter-ritorial integrity of a country.The General Assembly revisited the issue of unilateral seces-sion in 1970 when it passed Resolution 2625, the “Declarationon Principles of Friendly Relations and Cooperation AmongStates in Accordance with the Charter of the United Nations.”For the first time, a qualifying principle was applied to thenotion of absolute territorial integrity. Resolution 1514 forbidsany action that “would dismember or impair, totally or in part,the territorial integrity . . .” of a State. Resolution 2625 states thatthe Resolution 1514 prohibition applies only to those countries“conducting themselves in compliance with the principle ofequal rights and self-determination of peoples . . . and thus pos-sessed of a government representing the whole people belong-ing to the territory without distinction as to race, creed orcolour.” Thus, if a State did not conduct itself in compliance withthe principles of “equal rights and self-determination of peoples,”its territorial integrity could be questioned.Recently, commentators and courts have taken this qualifi-cation on territorial integrity to mean that the right of self-determination applies not only to colonized peoples, but alsoto peoples who suffer massive and systematic human rights vio-lations, or have no means of representation or redress withintheir government. For instance, in a 1998 Reference Opinionon the secession of Quebec from Canada, the Supreme Courtof Canada stated that “an oppressed people” who suffer “mas-sive violation of its fundamental rights” may have a right to forma sovereign State. Also, in a Concurring Opinion in a case tan-gentially related to the issue of self-determination, Judge Wild-haber of the European Court of Human Rights noted, “[u]ntilrecently in international practice the right to self-determinationcontinued on next page. . . unlike 50 years ago,


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