Self determination : its evolution in international law and prescriptions for its application in the post colonial context

SELF-DETERMINATION : ITS EVOLUTION

IN INTERNATIONAL LAW AND PRESCRIPTIONS

FOR ITS APPLICATION IN THE

POST-COLONIAL CONTEXT.

by

S. KWAW NYAMEKE BLAY

LL.B.(Hons.) Ghana ; LL.M.(A.N.U.)

A dissertation submitted to the

Faculty of Law, University of Tasmania

in fulfilment of the requirements

for the Award of the degree of

D E C L A R A T I O N

A C K N O W L E D G M E N T S

In the preparation of this work I received invaluable assistance from various people; I very much appreciate this and wish to acknowledge the same.

I am grateful to my supervisor and head of department, Dr. M. Sornarajah, whose patience and criticism have contributed to any semblance of scholarship this work may claim. I also wish to thank Dr. J.P. Fonteyne (Co-ordinator of the Graduate International Law Program, A.N.U.), Professor James Crawford (Professor of Law, Adelaide University), and my colleague, Dr. Martin Tsameryi (Lecturer in Inter-national Law, University of Papua New Guinea), whose comments and constructive criticisms of the first draft proved

to be very useful. I am further indebted to: my fiancee and close friend, Miss Jayne S. Basheer for her support and understanding when I needed them most; to Miss Barbara Spitzer and Keiren Nixon who proof-read the final draft; Miss Lubuseng Lijane, for helping to sort out the bibliography; and Mrs. Gill, whose secretarial dexterity transformed a hardly legible mess of writing into this final print.

Finally, I am thankful to the staff of the (University of Tasmania) Law Library, Miss Derby Ploughman, and Mrs. H. Stafford for their tol-erance in respect of overdue books; I am particularly grateful to Mr. Peter Cohen (Law Librarian), whose familiarity with complex computer search systems became most beneficial during the difficult times in my quest for vital materials.

While accepting any shortcomings in this work to be solely mine, I very much want to share the credits with the aforementioned people.

Kwaw Blay

Faculty of Law

University of Tasmania HOBART

ABSTRACT

Since 1945 the focus of the principle of self-determination has

been on decolonization. The remarkable success of the application of

the principle in the decolonization process has established it as a

hximan right, a norm of modern international law and (arguably) part of

jus cogens.

With decolonization virtually completed, the question is

whether self-determination as a right of all peoples should still be

legally valid in the post-colonial era. In this research the conclusion

is reached that international law neither recognizes nor prohibits

self-determination as a right in the post-colonial context, and that the law

is in this sense "neutral".

The neutrality of international law on the subject does not prejudge

the issue as to the desirability of a recognition of the right in the

post-colonial context.

A fortiori

it necessitates a rational analysis

of the role of self-determination in the context of decolonization and

the potential of the principle in the pos.t-colonial setting with the view

to regulating competing claims. To this end, the research analyses the

function of self-determination in decolonization and arrives at the

con-clusions that, within that context, self-determination is a putative

remedial right aimed at remedying a specific form of human relations

manifested by domination, exploitation and (or) a general denial of human

rights. In the light of this, the research advances the thesis that in

the post-colonial context, where inter-communal relationships in a

sovereign state are characterized by similar trends of domination and

denials of human rights, the application of self-determination could be

a useful remedy. It also indicates that, as an inherently democratic

principle, self-determination could be used to settle certain types of

territorial disputes.

Using the relationship between human rights and self-determination

as the normative basis for a community policy on post-colonial

^v.

prescriptions on the support for or rejection of specific claims.

The first two chapters of the research deal with the emergence of

self-determination as a right in international law and its application

in the colonial context. Chapter Three discusses the relationship

between self-determination and other norms of international law, namely

territorial integrity, domestic jurisdiction and the use of force (within

the context of decolonization). In all,the first three chapters

define the confines of self-determination as

lex lata.

Chapter Four addresses the issue as to whether self-determination

exists as

lex lata

beyond the context of decolonization and concludes

that it does not exist. Chapter Five is devoted to a normative inquiry

into the desirability of recognizing a right of self-determination in

the post-colonial context. The chapter draws the conclusion that in

view of the persistence of competing claims usually accompanied by

con-flicts of international dimensions, and in view of the relationship

between human rights and self-determination, it is desirable to recognize

the right, at least in cases that involve gross deprivation of human

rights (e.g. genocide).

Chapter Six is devoted to a discussion of separatist movements

that seek a right of self-determination in the post-colonial context.

In Chapter Seven, human rights as the normative basis for a community

policy on post-colonial self-determination is discussed. On the strength

of the discussion, recommendations are made as to which claims should

be supported and which claims should be rejected. It is also

recommend-ed that as a means of expressing popular will, the principle of

self-dtermination could be useful in the settlement of territorial disputes

that involve transfer of populations. Chapters Eight and Nine deal

with the substantive and procedural conditions that must precede the

support of a claim for self-determination in the post-colonial

S E L E C T L I S T OF A B B R E V I A T I O N S

A.J.I.L, A.S.I.L.S.

B.Y.I.L.

American Journal of International Law

Int'l.L.Journ. Association of International Law Students International Law Journal

British Yearbook of International Law

Brownlie, Principles : Brownlie, Principles of Public International Law (3rd edn), Oxford (1979)

Buchheit, Secession -. Buchheit, Secession, the Legitimacy of Self-Determination. New Haven (1978)

Cal. W. Int'l.L.Journ. : California Western International Law Journal

Case W. Res.Int'l.L. : Case Western Reserve Journal of International Law

Col\imbia J.Trans.Law Columbia Journal of Transnational Law Col.L.Rev,

Cobban

Crawford

G.A.Res.

: Columbia Law Review

: Cobban, A, The Nation State and National Self-Determination, Penguin (1969)

: Crawford, J., The Creation of States in International Law, Oxford (1979)

: General Assembly Resolution

Ga.J.Int'l.Comp.L. : Georgia Journal of International and Comparative Law

German Y.B.I.L. Hague Recueil

I.C.J. Reports I.C.L.Q.

I.J.l.L. Int.Affairs l.L.A. I.L.M. Int.Cone. Int.Hist.Rev.

German Yearbook of International Law Recueil de Cours de L'Academic de Droit International

International Court of Justice Reports International and Comparative Law Quarterly Indian Journal of International Law

v%.

Int.Org. •

J.M.A.S. :

L.N.O.J. ;

L.N.T.S. ;

M.R.G. Reports

NYUJILP

O.A.S.

O.A.U.

P.A.S.I.L-P.C.I.J.

POLISARIO

R.I.A.A.

S.C.Res,

Sov.Y.B.I.L.

Sureda

Transactions

U.K.Comd.Papers

Umozurike

U.N.C.I.O. Docs

U.N. G.A.O.R.

U.N. S.C.O.R.

U.N.T.S. ;

U.S.Dept.St.Bull.

Va.J.Int'l.L. ;

WWI :

International Organization

Journal of Modern African Studies

League of Nations Official Journal

League of Nations Treaty Series

Minority Rights Group Report

New York University Journal of International

Law and Policy

Organization of American States

Organization of African Unity

Proceedings of the American Society of

International Law

Permanent Court of International Justice

Frente, Popular para la Liberacion de Singula El

Hamra y Rio de Ora (Western Sahara)

United Nations Report of International Arbitration

Security Council Resolution

Soviet Yearbook of International Law

Sureda, R.,

The Evolution of Self-Determination:

A Study of United Nations Practice,

Leyden (1973)

Transactions of the Grotius Society

United Kingdom Command Papers

Umozurike, U.O.,

Self-Determination in International

Law,

Hamden. Conn.(1972)

United Nations Conference on International

Organization (1945) Doctiments

United Nations General Assembly Official Records

United Nations Security Council Official Records

United Nations Treaty Series

United States Department of State Bulletin

Virginia Journal of International Law

First World War

T A B L E OF C A S E S

VW.

Aaland Island Case

(1921)

Abu Dhabi Aribtration

(1951)

Admissions Case

(1948)

Aerial Accident Case

(1959)

Anglo Norwegian Fisheries Case

(1951)

Asylum Case

(1950)

Barcelona Traction Case

(1970) ..

Belgian Linguistics Case

(1962)

Broh:)n

v

Board of Education

(1954)

Columbia-Venezuela Arbitration Award

(1922) 165

Coe

V

The Commonwealth of Australia

(1979) 231

21, 170, 171, 179, 372 167

335 376 16, 134 134

20, 48, 305, 306 381

229

^

Corfu Channel Case

(1949)

Diversion of Water from the Meuse

(1937

Expenses Case

(1962)

Koowarta

vs.

Bjelke-Peterson

(1982)

Interhandel Case

(1959)

Lawless Case

(1957)

Los singer Case

(1936)

The Lotus Case

(1927)

McLaurin

v

Oklahama State Regents

(1950)

Morgan

v

Virginia

(1946)

V

Namibia Opinion

(1971)

Nationality Decrees in Morocco

(1923)

North American Dredging Company Case

(1925-26) 169

North Sea Continental Shelf Cases

(1959) .. 134

Northern Camerouns Case

(1963) .. 171

Norwegian Loans Case

(1957) .. . . 376

17, 136, 137, 142 374

376 249 376 134 229 229 20

u^^^.

Sipuel

V

Board of Regents

(1948)

South West Africa Case

(1966)

Szekler Petitions

(1932)

Upper Silesia Case

(1933)

U.S. Nationals in Morocco

(1952)

Voting Procedure Case

(1955)

Western Sahara Opinion

(1975)

229

17, 167, 305-307, 319, 338 375

375, 376 42

17

TABLE OF CONTENTS

^x.

P a g e

Declaration

Acknowledgements

Thesis Abstract

Select Table of Abbreviations

Table of Cases

Introduction

^^^

v^^

xvw

CHAPTER ONE; THE EMERGENCE OF SELF-DETERMINATION IN INTERNATIONAL LAW

The Principle of Self-Determination Before WWII

Self-Determination and the United Nations

Self-Determination as the Basis for Decolonization Conclusion

12 22 CHAPTER TWO: THE ACT OF SELF-DETERMINATION IN

THE CONTEXT OF DECOLONIZATION The Beneficiaries of Self-Determination

What is a Colony?

Termination of Colonial or Non-Self-Governing Status Conclusion

25 32 37 70

CHAPTER THREE; THE RELATIONSHIP BETWEEN SELF-DETERMINATION AND OTHER NORMS IN THE CHARTER OF THE UNITED NATIONS

J • Territorial Integrity versus

Self-Determination in Decolonization 73 Conclusions and General Empirical

Observations .. .. 79 Self-Determination and the Use

of Force .. .. 103 Self-Determination Versus The

Principle of Domestic

Page CHAPTER FOUR: IS THERE A RIGHT OF

SELF-DETER-MINATION IN THE POST-COLONIAL CONTEXT?

Conventions or Treaties . . 124 International Customary Law as

Evidenced by State Practice .. 133

(i)

The Practice of the U.N. ..

135

(ii)

The Practice of the OAU

.. 159

The General Principles of Law

Recognized by Civilized Nations . 167 Writings of Publicists .. 173 Conclusion .. .. 177

CHAPTER FIVE; THE CASE FOR AND AGAINST THE RECOGNITION OF A RIGHT OF SELF-DETERMINATION IN THE POST-COLONIAL CONTEXT

The Case Against Self-Determination in the Post-Colonial Context .. 182

The Nature of the Right ..

1 8 2

Peoples as Beneficiaries excludes

184 186 188

190

non-colonial Peoples

Pacta Sunt Servanda .

The Claim that Self-Determination

is an Exhaustive Right

The Claim that Post-Colonial

Self-Determination Would Violate

the Principle of Territorial

Integrity

The Domino Theory Argument

The Claim that it is Unrealistic

to Expect Sovereign States to

Recognize a Right to Post-Colonial

Self-Determination

The Case for Self-Determination in the Post-Colonial Context

There is a Relationship between

self-determination and fundamental

human rights - ..

• • 196

Self-determination is a recurrent

conflict''generating phenomenon

which requires the formulation

of appropriate prescriptions . .

197

xt.

Page CHAPTER SIX: CATEGORIES OF SELF-DETERMINATION

CLAIMS IN THE POST-COLONIAL CONTEXT CLAIMS BASED ON HISTORICAL OR A

CONTINUING TRADITION OF AUTONOMY .. 202 The Catalans of Spain .. 203 The Basque of Spain .. 205

The Croatians .. 208

CLAIMS BASED ON DEPRIVATIONS OF

* SECURITY .. .. 211

Biafra .. .. 212

Bangladesh .. .. 215

CLAIMS BASED ON DEPRIVATIONS OR DESTRUCTION OF FUNDAMENTAL ETHNIC

OR CULTURAL HERITAGE .. 219

Tibet .. .. 221

CLAIMS BASED ON RACIAL

DISCRIM-^ INATION .. . . 226

The Black Americans . . 226 The Aborigines of Australia . . 229 South Africa .. .. 235 CLAIMS BASED ON RELIGIOUS

DIFFERENCES .. .. 243 Northern Ireland . . .. 244 CLAIMS BASED ON DISPARITIES IN

THE DISTRIBUTION OF NATIONAL

WEALTH AND POWER .. .. 250 The Southern Sudan .. .. 251

Katanga . . .. 256

Quebec .. .. 259

CLAIMS BASED ON TERRITORIAL

RECOVERY .. .. 265 The Somalia-Ethiopia-Kenya

Dispute .. . . 265

Kashmir .. .. 269

The Palestinian Question .. 272 CLAIMS BASED ON ABSENCE OF CONSENT

FOR THE ORIGINAL ASSOCIATION .. 277 East Timor

Western Sahara The Baltic States Eritrea

Conclusion

CHAPTER NINE; RECOMMENDED PROCEDURAL CONDITIONS FOR SUPPORTING CLAIMS

x^^.

Page

CHAPTER SEVEN; PRESCRIPTIONS ON POST-COLONIAL SELF-DETERMINATION

A CRITIQUE OF A PROPOSED SCHEME

FOR ADMITTING CLAIMS .. .. 287 OUR PRESCRIPTIONS ON

POST-COLONIAL SELF-DETERMINATION .. 294 Admissible Claims .. .. 311 Inadmissible Claims .. .. 333 Conclusion .. .. 337

CHAPTER EIGHT: RECOMMENDED SUBSTATIVE CONDITIONS FOR SUPPORTING CLAIMS

Population

Identifiable "Self" ..

The Express Wishes of the People Territory

Viability

Implications on the Parent Community

Implications on World Order Conclusion

.. 341 .. 344 . . 345 . . 347 .. 349 . . 362 .. 366 . . 369

DOMESTIC INSTITUTIONS .. 373 Negotiations with the Parent

State .. .- .. 373 Judicial System of the Parent

State .. .- .. 374 REGIONAL INSTITUTIONS . .. 377 The Standing of Claimants Before

Regional Organizations .. 378 Competence of Regional Organizations 381 Enforcement Action .. .. 390 The Rationale for Regional Remedies. 396 GLOBAL INSTITUTIONS .. .. 398 GENERAL CONCLUSION

APPENDICES