The right of self-determination is a moral and legal right
The concept of self-determination is personified in the Charter of the United Nations and the International Covenant on Civil and Political Rights (hereinafter referred to as ICESCR) and the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as ICCPR). This concept is a principle on international law which allows the people of a state to determine the sovereignty and political status of that state without any interference. It must be noted that there is no clear, precise definition as to the concept of self-determination.
The United Nations was formed after the Second World War to replace the League of Nations. The principles of self-determination may have been outlined after the First World War but these ideas were constructed upon after the Second World War. The concept of self-determination was constantly raised during the Second World War and the concept was proclaimed under several provisions in the Atlantic Charter1941. These provisions later influenced the San Francisco Conference 1945 where the concept was enshrined into the United Nations Charter.
The said concept is mentioned in Article 1(2) and Article 55 of the United Nations Charter and is referred to in Article 73 and 76 of the Charter. However, these provisions are not clear and the question arises as to whether they create any legal obligations. The Charter does not give a definition of the term “people" nor does it specify the legal consequences. This causes difficulty in the interpretation of this concept.
The United Nations Charters’ principle of self-determination has been repeatedly appealed in order to provide a legal force to the decolonization process. In 1960, the Declaration on the Granting of Independence to Colonial Countries and People was adopted and according to this declaration, everyone has the right to self-determination. It also represents the political and legal foundation for the policy on decolonization of the United Nations on the operation of specific procedures.
Article 1 in the ICESCR and Article 1 in the ICCPR was adopted in the United Nations Charter and it also reinstated the right of self-determination to the people. Both the ICESCR and the ICCPR provide sufficient proof to the meaning and concept of self-determination. The concept was further elaborated in the adoption of the Friendly Relations Declaration in 1970.
To prevent the rule in allowing secession from arising in the independent states, the concept of self-determination is applied to the principle of territorial integrity. This way, it can also in the decolonization process provide protection to the territorial of the colonial rule.
The concept of self-determination provides that the people may determine their political status freely and it could lead to independence, merging with neighbouring states, freedom of association with an independent state or other political status decided by the people. Self-determination also preserves the sovereignty of states in settlements of disputes and in the area of permanent sovereignty of state over natural resources.
There must be a balance between the protection of human rights and preserving the international community. Self-determination may support the former but it can be destructive to the latter.
Secession arises when a group people or community in a state declare their independence from the reigning government. When this happens, the group creates its own form of government in place of the previous reigning government. Australia still remains as one of the colony of the British government. In the 19th century, New South Wales was divided by the British government into various new settlements. Secession movements have occurred several times in Western Australia. In 1933, a referendum for secession from the Federation of Australia passed with a two-thirds majority. The British Parliament had to ratify the referendum, but declined to act, on the grounds that it would infringe the Australian Constitution.
Rights of self-determination originated as far back to the French Revolution and the American War of Independence. In the American War of Independence, it was claimed that their power from the consent had been derived and the people are the ones who has the right to alter or abolish the government. The creation of many European states was based on this idea and every country should have the right to establish an independent nation.
In January 1918, President Woodrow Wilson of the United States made a speech known as the Fourteen Points to the American Congress. This speech outlined the fourteen elements that President Wilson felt that was important in achieving an eternal peace. In his fifth point he stated that there must be an unbiased alteration of all colonial claims which is based on an observation of the principle that in determining sovereignty, the interests of the people must have equal weight with the claims of the government. The principle of self-determination is not absolute but merely a factor of importance. It is clear that people who are under colonization do not have the right to determine their own political and legal status.
Article 22 of the League of Nations Covenant provides that the mandate system was designed to provide some form of conciliation between the interest of administrative power and the principle of self-determination. Nevertheless, it was just a political concept in the League of Nations and it did not form a part of it as per The Aaland Island Case.
There are basically 2 aspects in the concept of self-determination, the external aspect and the internal aspect. There are several evidences that show that the concept of self-determination is a binding rule of international law. The concept is binding on parties even though they have not adopted it to address to a specific problem or controversy. Self-determination is also the legal basis on the law of decolonization. This includes the rights of the people to determine the political status of the territory freely. Additionally, the Friendly Relations Declaration recognizes that a territory that is not self-governing or the territory of a colony achieved a distinct separation from the status of the management of its national territory. Consequently, it is unlawful to use force to for the prevention of the exercise of self-determination of colonial people. The concept of self-determination includes the right of people of a state to choose their political and legal status and pursue their own social, economic and cultural development. It, therefore, does not impose any legal obligation on the state to sustain a democratic government. It basically refers to the principle of sovereign impartiality of states and the prohibition of interference has already formed a part of international law.
The concept of self-determination has also been recognized in various international documents. The International Court of Justice is one of the main institutions of the United Nations and is situated in The Hague, Netherlands. The International Court of Justice stated in the case concerning the East Timor, also known as the case of Portugal v Australia (1995) that the right to self-determination is a right erga omnes that can be applied to everyone and is valid against all. The International Court of Justice also stated its advisory opinion in the Namibia Advisory Opinion in 1971 that the concept of self-determination has achieved the status of customary international law. This was reaffirmed in the case of Western Sahara in 1975.
Australia remains as the only country in the United Nations which is against the right of self-determination of the indigenous community. The rights of self-determination under Australia’s view is a continuous development of human right s which includes equal rights, the right of the people to decide how they should be governed, the right to participate in political process and the right of people to make decisions and manage their own affairs. This is seen in Article 25 of the ICCPR. The right to self-determination in Australia does not equate to the right of secession.
Around the 1970s, the indigenous community have approach the Australian government and requested for their right to govern their own communities. For indigenous people, the right of self-determination is allowed mainly in preserving their culture, language and identity and to have the right to make decisions for their own affair. Nevertheless, this is not agreed by the government and most of the non-indigenous people. This is because self-determination is viewed as a threat to national unity as such rights may lead to the establishment of “separate rights" or to the secession of the indigenous people. There are also arguments that indigenous people do not possess the right of self-determination. However, indigenous people do indeed possess the right of self-determination in pursuant with Article 3 of the Draft Declaration on the Rights of Indigenous People.
Regardless of any arguments that may arise against the right of self-determination of indigenous people, they must be rejected. This is because under the United Nations Human Rights Committee and the Committee on Economic, Social and Cultural Rights, it is clearly stated that indigenous people should have the right of self-determination and this includes the indigenous people in Australia. The United Nations Human Rights Committee has confirmed in the cases of Chief Bernard Ominayak and Lubicon Lake Band v Canada (1990) and Marshall (Mikmaq Tribal Society) (1991), that self-determination is held by the indigenous people.
Common Article 1(1) of the ICESCR and ICCPR provides that everyone has the right to self-determination and that right is inclusive of the right to determine their own political status and pursue their social, economic and cultural development without interference. Australia is obliged to recognize self-determination in line with the Charter of United Nations. This guarantees that the right will not form the basis of secession of indigenous people in colonial countries. It is provided under the Draft Declaration on the Rights of Indigenous People that any actions opposing to the Charter of United Nations are prohibited. The United Nations General Assembly Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of United Nations also provides that the principle should not be interpreted as any action that encourages or authorizes which would lead to destruction to all or part of the territorial integrity or political unity in compliance with the equal rights and self-determination and therefore, possessed of a government representing all people of the territory. The United Nations Human Rights Treaty also confirms this statement. The Committee on the Elimination of Racial Discrimination has yet to recognize the people’s right to declare secession from a state.
The Australian Government does not agree that the indigenous people have the right to secession. However, there are some indigenous leaders in Australia who believes that the right to self-determination includes the right of secession. Indigenous people in Australia do indeed have the right to self-determination but does not have the right of secession. It is also clear that this concept has been widely accepted by the indigenous people in Australia. Nevertheless, the extent of these rights still remains as a political debate.
The concept of self-determination, however, has no binding force in Australia. It is merely a policy for the indigenous people and it was never given a legal status in Australia. It is the discretion of the government whether to comply with the policy and even if the government chooses not to comply with it, there would be no legal repercussions. The government is also entitled to make necessary changes to the policy at any time.
There are several criticisms on the right of self-determination. It is clear that not all the members of the United Nation are ready to apply this concept. It also an imprecise concept there is no specific definition of self-determination. Too much focus on self-determination can also be dangerous as it would give rises to problems such as intolerance and the people would not be able to co-exist peacefully. In order to achieve self-determination peacefully, it may also challenge the integrity of the territory. The United Nations should develop better ways of addressing these issues in order to prevent any conflicts or violence.