II.

A Concept with Multiple Meanings

This monograph addresses self-determination as the right of all

peoples freely to determine their political, economic and social
status – the formulation used in virtually all relevant UN
documents addressing the issue. However, this definition is broad
and can be taken to encompass various interconnected concepts.
Often, and controversially, self-determination tends to be divided
into an ‘internal’ and an ‘external’ dimension. External self-
determination will normally be taken to include the right to
secession. Internal self-determination concerns the choice of a
system of governance and the administration of the functions of
governance according to the will of the governed. This division is
controversial in its implication that self-determination is not a
continuous right that applies equally in all circumstances
concerning the identity of the state or its governance.

A. The Right to Self-determination in International Law

The following are examples of the different layers of meaning of
self-determination in a legal sense.

Self-determination as an individual right. Self-determination is not only a

right exercised by peoples or groups. It is also a human right of
individuals. Hence, individuals are entitled to participate in the
political, economic or cultural system of their state.26 In that sense,
the individual right to self-determination might be regarded as co-
extensive with the right to some form of democratic governance.27
26
E.g., Article 25 of the UN Covenant on the Civil and Political Rights.
27
Somewhat sceptical is J. Crawford, “Democracy in International Law”, 64 British
Yearbook of International Law (BYIL) (1993) 113; more optimistic is T. Franck, “The
Emerging Right to Democratic Governance”, 86 American Journal of International Law
(AJIL) (1992) 46; for more detail, see G. Fox and B. Roth, eds., Democratic Governance and
International Law, Cambridge: Cambridge University Press (2000). More recent practice,
while far from consistent, has tended to strengthen the extent of international
involvement in internal governance issues; see M. Weller, The Defence of Democracy in
International Law, Oxford: Oxford University Press (forthcoming).

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 Escaping the Self-determination Trap
However, for a long time this ‘right’ was reduced to an underlying
political doctrine that was not actionable. It is only now, albeit
somewhat hesitantly, that it is surfacing as a firm legal entitlement.

Self-determination as a right pertaining to members of groups, and perhaps to

groups themselves. Self-determination is also a right that can be
invoked by members of certain groups, such as national, religious,
ethnic or linguistic minorities. In this sense, self-determination is
congruent with minority rights.28 Minority rights protect the
existence of national, religious, linguistic or ethnic groups, facilitate
the development of their identity and ensure that they can fully and
effectively participate in all aspects of public life within the state.
While it was previously argued that minority rights could only be
held individually by members of minorities, it was clear that they
could be exercised in community with others. Recognition of group
identity as an object of legal protection may also be emerging,
although this remains controversial. This would include
entitlements to cultural autonomy. Some also argue that there may
be an entitlement to territorial autonomy in cases where national
minorities constitute a local majority, but this is not yet accepted in
general practice.

Self-determination and indigenous peoples. In addition to their cultural

identity, indigenous populations tend to claim a historic and
particularly strong bond with territories they have occupied since
time immemorial. Indigenous rights, therefore, not only seek to
enhance the maintenance of the cultural identities of indigenous
peoples but may also extend to land rights and to political or
territorial autonomies. While the technical term ‘people’ is applied
to indigenous populations in the International Labour
Organisation (ILO) Convention 169, that document immediately
clarifies that it does not imply a people’s right to self-determination
in the sense of international law (i.e. secession). Similar restrictions

28
See Weller, Universal Minority Rights, supra n. 1.

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 A Concept with Multiple Meanings
are evident in the recently adopted UN Declaration on the Rights
of Indigenous Peoples.29 Article 3 declares that:
Indigenous peoples have the right to self-determination. By virtue of that
right they freely determine their political status and freely pursue their
economic, social and cultural development.

However, Article 4 focuses on the right to autonomy as the principal

means of implementing self-determination in this context. Moreover,
Article 46 emphasises that nothing contained in the declaration
should be taken to authorise or encourage action against the
territorial unity of states.

Self-determination in cases of limited territorial change. Where a significant

tranche of territory is moved from one sovereign to another, the
population of that territory may be entitled to express and
subsequently exercise its preferences through a plebiscite. As
opposed to the self-determination of peoples, this entitlement does
not extend to free determination of the international legal status of
the territory – for instance, the right to opt for independence or
association with a third state. Instead, it is limited to an endorsement
or rejection of the change proposed by the government concerned.
However, this doctrine is displaced in certain circumstances, for
instance in cases of territorial change anticipated in historical
arrangements (Hong Kong). At times, it may be contested whether
the inhabitants of the territory in question are a ‘people’ entitled to
self-determination of peoples, or merely a ‘population’ attached to a
territory and thus entitled only to a plebiscite. For instance, the
population of Gibraltar might argue that it is a people entitled to full
self-determination, while Spain and the United Kingdom (UK)
adopt a more limited view of self-determination that may apply
subject to the provisions of the Treaty of Utrecht of 1713. Should
the UK ever withdraw from the territory, the treaty provides Spain
with a right of first refusal.
29
UN Declaration on the Rights of Indigenous Peoples, General Assembly Resolution
61/295 of 13 September 2007, A/RES/61/295.

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 Escaping the Self-determination Trap
Self-determination of peoples in the sense of secession. Self-determination
of peoples implies a unilateral right to initiate a change in the status
of a territory through an act of will of the population of that entire
territory. In this way, self-determination of peoples differs from the
right of a population to co-determine the future of a portion of
territory through a plebiscite, noted above. This latter kind of ‘self-
determination’ is ancillary to a decision on the part of states to
effect a transfer of territory. A population rejects or ratifies the
decision of the states involved. Self-determination of peoples, on
the other hand, is an original right that is vested in ‘a people’
merely by virtue of the fact that the technical label ‘people’
attaches to a specific population and territory. Whether the state
involved favours any sort of territorial change is inconsequential;
the exercise of the will of the ‘people’ so nominated is itself
decisive.
Manifestly, the doctrine of self-determination has different legal
consequences in these various contexts. Within the confines of this
discussion, the principal focus must lie on self-determination as
an entitlement of ‘peoples’ freely to determine the international
legal status of a territory. Traditionally, there are three
options: independence, association or integration with another
state.30

B. The Issue of State Consent

Virtually all inhabitable portions of the globe are subject to the
territorial authority of one state or another. Nearly all human
beings also find themselves within the jurisdiction of at least one
state. Hence, if people wish to form a new state, this can only occur
at the expense of an existing one, both in terms of human and
territorial resources. This can occur either with the consent of the
central government concerned or, more likely, in opposition to it. In

30
UN General Assembly Resolution 1541 (XV), 15 December 1960. Text available at
http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/153/15/IMG/NR0153
15.pdf ?OpenElement, accessed 3 November 2008.

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 A Concept with Multiple Meanings
the former case, it is of course not necessary to rely on a right to
self-determination.
Divorce by agreement has occurred in a few instances (e.g.,
Malaysia/Singapore, Czechoslovakia). Where consent from the
central government is lacking, the international system will tend to
deny legal personality to those seeking separation. This may appear
illogical, given the contested relevance to any self-determination
dispute of ‘sovereign’ acts by the central government in relation to
the entity seeking secession, such as the granting of consent.
However, the legal system protects the claims of governments and
will normally only offer status if the government concerned is
content that this be done.
Changes of status by consent occur in a number of instances.
These include:
• Instances where one state joins another. For instance, when the new
German federal states of the former German Democratic
Republic joined the Federal Republic of Germany, the Treaty on
the Final Settlement with Respect to Germany noted expressly
that the “German people, freely exercising their right of self-
determination, have expressed their will to bring about the unity
of Germany as a state”.31 The legal personality of the German
Democratic Republic was extinguished at that point, while that
of the Federal Republic of Germany persisted. There can also
be state unions, where a new composite state is formed, with
both constituent entities relinquishing their international legal
personality.
• Instances of dissolution of composite states. The division of
Czechoslovakia into the Czech and Slovak republics serves as an
example here. Czechoslovakia disappeared as a sovereign entity
by the mutual consent of its two component parts, each of which

31
Treaty on the Final Settlement with Respect to Germany, 12 September 1990.
Text available at http://usa.usembassy.de/etexts/2plusfour8994e.htm, accessed 3
November 2008.

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 Escaping the Self-determination Trap
emerged as a new state. As there was no agreement on
succession among the republics that emerged from the
dissolution of the SFRY, Serbia’s claim to be its universal
successor, continuing its legal personality, was rejected and all
republics were treated as new states. In contrast, what turned out
to be the temporary Constitutional Charter of the State Union
of Serbia and Montenegro provided for the continuation of the
legal personality of the overall state (by then merely the Federal
Republic of Yugoslavia) by Serbia, should Montenegro opt to
leave, as it eventually did. Similarly, when the Soviet Union
dissolved, all its successor states agreed that the Russian
Federation would continue the legal personality of the former
Union.
• Instances of secession. In such cases, it is clear that only one element
of a composite state splits off, without putting into question the
legal personality of the state. An example is furnished by the
secession by agreement of Eritrea from Ethiopia. While Eritrea
emerged as a new state, Ethiopia continued the legal personality
of the former joint state.
The manifestation of an act of will by the population is necessary
even where a government agrees to the separation of certain
territories. Hence, the agreement on the possible secession of
Eritrea required a referendum to be held after an interim period to
confirm that this change in status was indeed in accordance with
popular will. Again, however, there is a crucial difference with cases
of opposed secession. In the case of Eritrea, the exercise of the will
of the population had been approved by the central government,
which accepted that a referendum could be held and that its results
would be respected. An international legal entitlement to self-
determination was not necessarily the trigger for this process at the
outset. Instead, the exercise of self-determination flowed from a
previous, voluntary decision of the newly established central
Ethiopian government that consisted of the victorious former rebel

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 A Concept with Multiple Meanings
movements. Subsequently, Ethiopia included in its constitution a
provision permitting in advance the secession of its remaining
constituent units – a case of constitutional self-determination that
will be considered later. First, however, it will be necessary to
consider the application of classical, colonial self-determination in
some greater detail.

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