International law, Sixth edition
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International Law MALCOLM N. SHAW
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286 when it declared that ‘Portugal’s assertion that the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable.’ The Court emphasised that the right of peoples to self-determination was ‘one of the essential principles of contemporary international law’. 287 However, in that case, the Court, while noting that for both Portugal and Australia, East Timor (under Indonesian military occupation since the in- vasion of 1975) constituted a non-self-governing territory and pointing out that the people of East Timor had the right to self-determination, held that the absence of Indonesia from the litigation meant that the Court was unable to exercise its jurisdiction. 288 These propositions were all reaf- firmed by the International Court in the Construction of a Wall advisory opinion. 289 The issue of self-determination came before the Supreme Court of Canada in Reference Re Secession of Quebec in 1998 in the form of three questions posed. The second question asked whether there existed in international law a right to self-determination which would give Quebec the right unilaterally to secede. 290 The Court declared that the principle of self-determination ‘has acquired a status beyond “convention” and is considered a general principle of international law’. 291 286 ICJ Reports, 1995, pp. 90, 102; 105 ILR, p. 226. 287 Ibid. 288 ICJ Reports, 1995, pp. 105–6. The reason related to the principle that the Court is unable to exercise jurisdiction over a state without the consent of that state. The Court took the view that Portugal’s claims against Australia could not be decided upon without an examination of the position of Indonesia, which had not consented to the jurisdiction of the Court. See further below, chapter 19, p. 1078. 289 ICJ Reports, 2004, pp. 136, 171–2; 129 ILR, pp. 37, 89–91. 290 (1998) 161 DLR (4th) 385; 115 ILR, p. 536. The first question concerned the existence or not in Canadian constitutional law of a right to secede, and the third question asked whether in the event of a conflict constitutional or international law would have priority. See further below, chapter 10, p. 522, on the question of secession and self-determination. 291 (1998) 161 DLR (4th) 434–5. 256 i n t e r nat i o na l l aw The definition of self-determination If the principle exists as a legal one, and it is believed that such is the case, the question arises then of its scope and application. As noted above, UN formulations of the principle from the 1960 Colonial Declaration to the 1970 Declaration on Principles of International Law and the 1966 Interna- tional Covenants on Human Rights stress that it is the right of ‘all peoples’. If this is so, then all peoples would become thereby to some extent subjects of international law as the direct repositories of international rights, and if the definition of ‘people’ used was the normal political–sociological one, 292 a major rearrangement of international law perceptions would have been created. In fact, that has not occurred and an international law concept of what constitutes a people for these purposes has been evolved, so that the ‘self ’ in question must be determined within the accepted colonial territorial framework. Attempts to broaden this have not been successful and the UN has always strenuously opposed any attempt at the partial or total disruption of the national unity and territorial integrity of a coun- try. 293 The UN has based its policy on the proposition that ‘the territory of a colony or other non-self-governing territory has under the Charter a status separate and distinct from the territory of the state administering it’ and that such status was to exist until the people of that territory had exercised the right to self-determination. 294 Self-determination has also been used in conjunction with the principle of territorial integrity so as to protect the territorial framework of the colonial period in the decolonisa- tion process and to prevent a rule permitting secession from independent states from arising. 295 The Canadian Supreme Court noted in the Quebec case that ‘international law expects that the right to self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of 292 See e.g. Cobban, Nation-State, p. 107, and K. Deutsche, Nationalism and Social Commu- nications, New York, 1952. See also the Greco-Bulgarian Communities case, PCIJ, Series B, No. 17; 5 AD, p. 4. 293 See e.g. the Colonial Declaration 1960; the 1970 Declaration on Principles and article III [3] of the OAU Charter. 294 1970 Declaration on Principles of International Law. Note also that resolution 1541 (XV) declared that there is an obligation to transmit information regarding a territory ‘which is geographically separate and is distinct ethnically and/or culturally from the country administering it’. 295 See e.g. T. M. Franck, The Power of Legitimacy Among Nations, Oxford, 1990, pp. 153 ff.; Franck, ‘Fairness in the International Legal and Institutional System’, 240 HR, 1993 III, pp. 13, 127–49; Higgins, Problems and Process, chapter 11, and Shaw, Title, chapters 3 and 4. t h e s u b j e c t s o f i n t e r nat i o na l l aw 257 those states’. 296 Self-determination as a concept is capable of developing further so as to include the right to secession from existing states, 297 but that has not as yet convincingly happened. 298 It clearly applies within the context, however, of decolonisation of the European empires and thus provides the peoples of such territories with a degree of international personality. The principle of self-determination provides that the people of the colonially defined territorial unit in question may freely determine their own political status. Such determination may result in independence, in- tegration with a neighbouring state, free association with an independent state or any other political status freely decided upon by the people con- cerned. 299 Self-determination also has a role within the context of creation of statehood, preserving the sovereignty and independence of states, in providing criteria for the resolution of disputes, and in the area of the permanent sovereignty of states over natural resources. 300 Download 7.77 Mb. Do'stlaringiz bilan baham: |
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