In 1960, the Assembly undertook its Decolonisation Declaration in the form of General Assembly Resolution 1514(XV). Ten years later, its Friendly Relations Declaration reinforced the anti-colonial message of ten years earlier, in a General Assembly Declaration designed to practically develop the future work plan for the Organization. This momentum was further buf- feted by the adoption of the ICCPR and ICESCR in 1966. Although the covenants did not enter into force for another decade, they did serve to reinforce anti-colonialism, particularly given their common article 1 concerning self-determination. In particular, as the decolonisation process began in earnest and the practical effects of this process began to be recognised with the admission of newly independent states to the United Nations, the General Assembly allocated a portion of its own programme of work to evaluating the work of the organisation, which culmi- nated in a significant declaration by the General Assembly, twenty-five years after the creation of the United Nations. In resolution 1815(XVIII) in 1962, the General Assembly authorised a study of the principles of the organisation and their duties imposed on member states. A committee was established the following year in resolution 1966(XVIII) to undertake this study, the result of which was the 1970 Declaration on Friendly Relations, which was adopted by consensus as
General Assembly resolution 2625 (XXV).65
Although the Declaration has come to be closely identified with ideas of self- determination, no overt reference to the 1514 resolution is to be found. The Declaration is writ- ten in forward-looking language, the most salient parts of which, as identified by Hurst Han- num, are quoted below:
The use of force to deprive peoples of their national identity constitutes a violation of their inalienable rights and of the principle of non-intervention [...]
By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without exter- nal interference, their political status and to pursue their economic, social and cultural devel- opment, and every State has the duty to respect this right in accordance with the provisions of the Charter.
Every State has the duty to promote [...] realization of the principle of equal rights and self- determination of peoples [...] in order:
(a) To promote friendly relations and co-operation among States; and
63 Cassese, supra note 3, at 101.
64 Although the Soviet Union has ceased to exist and an unfettered right to secession was definitively blocked in United Nations practice, the intellectual underpinning of external self-determination, as a final guarantor of the manifestation of that right, cannot be overlooked.
65 For discussion, see R. Rosenstock, The Declaration of Principles of International Law Concerning Friendly Relations: A Survey 730 (1971).
(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned; and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle [of self-determination], as well as denial of fundamental human rights, and is contrary to the Charter [...]
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any ac- tion which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus pos- sessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.66
Every State shall refrain from any action aimed at the partial or total disruption of the na- tional unity and territorial integrity of any other State or country [...]
The territorial integrity and political independence of the State are inviolable.67
From this, certain observations may be made. In the 1514 and 1541 resolutions, inde- pendence from colonial situations was identified as one of the primary focuses of self- determination. By 1970, the Declaration states that “independence [was] only one of several equally legitimate alternatives, declaring that the right of self-determination could be imple- mented by the establishment of an independent state, association or integration with an inde- pendent state, or ‘the emergence into any other political status freely determined by a people’”.68
The scope of ‘prohibition of discrimination’ within the Friendly Relations Declaration
Cassese gives considerable attention to the concern expressed by Member States in the formulation of the Declaration that the principle of territorial integrity was “considered sa-
cred”,69 particularly as it followed the 1514 resolution, and as such he terms paragraph 7 as the
Declaration’s saving clause, which served to reinforce directly the concept of external self- determination as viewed through the decolonising framework, further implying that internal self-determination would be a notion only indirectly addressed by the Declaration. Cassese makes clear that any question of secession based upon paragraph 7 of the Declaration would be immediately suspect, owning to the weight in international law allocated to the principle of ter- ritorial integrity.70
The clause can be seen as giving rise to a form of legal recourse to post-decolonisation separatism, including the possibility of secession, or at least it can be said not to explicitly pro- hibit it. While no right to secession can be found in the Declaration alone, secession can neither be seen specifically lawful nor unlawful per se. Cassese himself does not reject secession claims out of hand, but claims that “[o]ne thing is made very clear: any licence to secede must be inter-
preted very strictly”.71 This precariously balanced interpretation does very little to instil greater
clarity on an already confounding legal topic. Although it is clear that the Declaration reaffirms
66 This paragraph (emphasis added) is number 7 in the Declaration, and can be said to be the most impor- tant continuing element from the Friendly Relations Declaration. This language was expanded in the Vi- enna Declaration and Programme of Action as “without distinction of any kind”, drawing reference to Article 2 of the Universal Declaration of Human Rights. See General Assembly Resolution 48/121, con- firming the VDPA as originally published in UN document A/CONF.157/24 (Parts I and II).
67 GA Res. 2625 (annex), UN Doc. A/5217 (1970) [hereinafter Friendly Relations Declaration], as quoted inHannum, supra note 8, at 35.
68 Musgrave, supra note 36, at 76 (emphasis added). 69 Cassese, supra note 3, at 112.
70 See Id. at 112. 71Id.
the continual nature of self-determination, the contrasting identity to which a peoples’ self-
determination is directed has shifted from the colonising state to the postcolonial state. The col-
lectivité undertaking self-determination will be a portion of the postcolonial state, as opposed to
the entire territory of the colony undergoing decolonisation.72 Therefore, identity-based con-
structions of a ‘people’ operate on a more complicated level in the postcolonial state than during
colonial times,73 particularly when territorial delimitations, which were the product of the im-
position of the European state on Africa, could come under question. This could be most read- ily observed if Lenin’s formulation of the necessity of recourse to external self-determination as a fundamental means of guarantee of self-determination were to retain its intellectual currency, albeit as an obscure juridical source.
Cassese concludes that “secession is not ruled out but may be permitted only when very stringent requirements have been met”, as “the possibility of impairment of territorial integrity is not totally excluded, [and therefore] logically admitted”.74 However, his remarks are viewed
through his desire to read the Declaration with a strong inclination toward upholding the prin- ciple of territorial integrity. Such an inclination serves to negate the importance of ethnic, cul- tural and linguistic criteria in the state’s formulation. Obviously, individuals meeting such criteria are rarely found in precisely defined geographies intrinsically conterminal with the terri- torial boundaries of a state. Nevertheless, Cassese makes claims for considerable juridical weight to be allocated to the principle of territorial integrity, as a consequence of the advocacy, through his reading of the traveaux préparatoires of the Declaration, for a restrictive effect to have
been caused by adding the phrase ‘race, creed of colour’ to paragraph 7.75 Thus, Cassese con-
cludes that the level of representation required to satisfactorily evaluate the level of access to
government by a group would not necessarily be definitive.76 He argues that internal self-
72Cf. R. Higgins, Postmodern Tribalism and the Right to Secession: Comments, in C.M. Brölmann et al (eds.), Peoples and Minorities in International Law 32 (1993). See also R. Higgins, V General Course on Public International Law, International Law and the Avoidance, Containment and Resolution of Disputes, 230 Rec. des Cours, at 154 et seq. (1991). Higgins conceptually links territorial statehood with the overall concept of ‘government’ per se, thereby implying a deep presumption that the territory of a ‘people’ is in- herently co-terminal with the territory of a state. Although it may be observed that such a perspective re- inforces the absolutism of territorial integrity as a matter of primacy, one must recall how even Cassese allowed for the conceptual possibility of a diversion from such a primacy to be legitimately juridically construed. By implication, the equivocation of ‘peoplehood’ with that exclusively defined by ‘governmen- talism’ must never go critically unevaluated. The pivot point of this equation will be formed by the inter- actions between the theoretical concepts of ‘territorial integrity’, ‘governance’ and ‘effectiveness’, as contrasted with the more explicit provisions of historical treaties dictating the circumstances of territo- rial transfer of title from colonised entities to such proponents.
73Cf. Cassese, supra note 3, at 114-115: “By limiting self-determination to racial and religious groups, the draftsmen made it clear that self-determination was not considered a right held by the entire people of an authoritarian State. The existence of a government which tramples upon its citizens’ basic rights and fun- damental freedoms does not give rise to a right of internal self-determination. However, even those groups that are afforded rights under the Declaration are not as well off as one might expect, for it is equal access to government which they are entitled, not equal rights. The Declaration does not require States to grant racial and religious groups a menu of rights, nor does it prohibit the imposition of invidious meas- ures. It simply demands that States allow racial and religious groups to have access to government insti- tutions. The draftsmen undoubtedly assumed that once these groups were granted equal access to government, they would be in a position to ensure that all attempts to pass discriminatory legislation would be defeated—an assumption that is only partially correct.”
74Id. at 118-119. 75 See Id. at 115-118.
76Cf. Id. at 117: “The insertion of the phrase ‘race, creed or colour’ was intended to qualify, that is, to re- strict, the general thrust of [an] Italian compromise text. Indeed, without those words, the scope of the clause would have been very sweeping: any national, linguistic, ethnic, racial, or religious group not ‘rep-
determination is conferred “only on racial or religious groups which are denied access to the po-
litical decision-making process; linguistic or national groups do not have a concomitant right”.77
It could be assumed that the most extreme form of self-determination outside the colonial context—secession—produces a confounding set of problems for the systematic functioning of international law, particularly that the validity of such actions will largely be determined by the
level of political recognition afforded by other states in the ‘international community’.78
This may be why there exists such a fixation on the seemingly unchallenged presumption that the territorial integrity of all states is as uniform and as constant as the sovereign equality of all states. Without negating the reality that the territorial integrity does, indeed, form a funda- mental basis for statehood, and thus the system of public international law, it must be also stated that the importance of the non-territorial aspects of a state’s composition can not go overlooked, for the primary test of self-determination itself is, of course, access to government.
In this sense, David Raič has undertaken a critical evaluation of Cassese’s premise which
is worth considering.79 Raič observes Cassese’s synonymous equation of the terms ‘race’ and
‘colour’,80 and asserts that “the term ‘race’ should not be limited to the notion of ‘colour’”.81 This
stands to reason, as e.g. Hispanics can be of any race and colour. Raič writes:
[I]f Cassese’s argument is accepted, internal self-determination would, as far as subgroups are concerned, be confined to one specific, narrowly defined subgroup only. It is submitted, however, that this point of view cannot be maintained upon closer analysis and that the sub- ject of internal self-determination includes ethnic groupings other than Cassese’s narrowly defined subgroups.82
This leads him to conclude that the term ‘race’, as used in the Declaration, is formulated in such a way so as to preclude distinctions from being made amongst such groups. In recalling the text from paragraph 7 “without distinction as to race, creed or colour”, a “differentiation between groups, even on the basis of race, is not prohibited under international law, [and] the reference to the term ‘distinction’ must be interpreted as referring to the practice of arbitrary distinction,
that is, discrimination”.83 Raič links this assessment to Article 1 of the 1966 Convention on the
Elimination of All Forms of Racial Discrimination, which states that “the term ‘racial discrimi- nation’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin […]”, and goes further to assert that the actual underlying motivation behind paragraph 7 aims towards the universal application of such provisions as opposed to mere commentary on specific situations.
resented’ in the government would have had a right to self-determination. In addition, the populations of States with authoritarian and despotic governments would probably also have been entitled to claim the right.” For the proposed Italian text to the General Assembly preparatory committee, see UN Doc. A/AC.125/L.80, particularly that “states enjoying full sovereignty and independence, and possessed of a government representing the whole of their population shall be considered to be conducting themselves in conformity with the principle of equal rights and self-determination of peoples as regards that popula- tion”. For a further critique of the notion that claims to the right of self-determination cannot be made by ‘the populations of States with authoritarian and despotic governments’, see infra chapter four of this study.
77 Cassese, supra note 3, at 114.
78 For discussion, see J. Dugard and D. Raič, The role of recognition in the law and practice of secession, in M. Kohen (ed.) Secession: International Law Perspectives (2006), at 94 et seq.
79 See D. Raič, Statehood and the Law of Self-Determination (2002), at 250 et seq [hereinafter Raič]. 80 See Cassese, supra note 3, at 112.
81 Raič, supra note 79, at 251. 82Id.
Raič is thus led to conclude that internal self-determination must not only be limited to
“‘racial’ groups (defined in terms of physical appearance) and religious groups”,84 and that “if,
with respect to internal self-determination, racial groups would be considered to have a special position under international law in comparison to other subgroups it is at least remarkable that no other such special position is referred to in common Article 1 of the Human Rights Cove-
nants or any other instrument containing provisions on self-determination”.85
Raič then finds himself in a position to take issue with Higgins’ assessment that a ‘people’ must mean either “the entire people of a State or […] all the persons comprising distinctive
groupings on the basis of race, ethnicity and perhaps religion”,86 and asserts that ‘subdivisions’,
or ‘subgroups’ within a state, are the true beneficiaries of internal self-determination, and such
groups may be both racial and ethnic in composition.87 He writes that “the main objective or
purpose of the concept of self-determination is the protection, preservation, strengthening and
development of the identity or individuality of a ‘people’”,88 and thus “the applicability of self-
determination therefore presumes the distinctiveness of that ‘people’”.89 This leads Raič to begin
to offer hypothetical criteria for ‘peoplehood’ under this more forward-looking formulation. He suggests objective criteria of: (a) a (historical) territorial connection, on which territory the group forms a majority; (b) a common history; (c) a common ethnic identity or origin; (d) a
common language; (e) a common culture; and/or (f) a common religion or ideology,90 as well
as a subjective criteria of “the belief of being a distinct people distinguishable from any other people inhabiting the globe, and the wish to be recognized as such, as well as the wish to main-
tain, strengthen and develop the group’s identity”, expressing the will for a common future.91
The implications of Raič’s analysis are sweeping, in that they clearly demonstrate the shift in meaning of self-determination, from the decolonisation to the newly-independent state pe- riod. As such his meticulous conclusion merits serious consideration:
[I]f a specific subgroup within a State can be qualified as a people in an ethnic sense on the basis of the abovementioned criteria, that subgroup would be a holder of the collective ‘right’ of internal self-determination. This does not mean, however, that the composition of a State’s government must necessarily reflect all that State’s peoples qua peoples. A people may be of the opinion that its collective identity is sufficiently protected by the applicability of, and respect for, specific minority rights […]. Under these circumstances there is no im- mediate further legal obligation on the side of the State to provide for specific and extra guarantees. […] It may also be envisaged that a subgroup as such does not exercise its right of internal self-determination on the central level of decision-making but that it does exercise this right freely through some form of autonomy. In such a case […] there is at least a pre- sumption that the right of internal self-determination is respected.92