International law, Sixth edition
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International Law MALCOLM N. SHAW
Determination (ed. C. Tomuschat), Dordrecht, 1993; Higgins, Problems and Process,
chapter 7; T. Franck, The Power of Legitimacy Among Nations, Oxford, 1990, pp. 153 ff.; Franck, ‘Fairness in the International and Institutional System’, 240 HR, 1993 III, pp. 13, 125 ff.; The Rights of Peoples (ed. J. Crawford), Oxford, 1988; Peoples and Mi- norities in International Law (eds. C. Br¨olmann, R. Lefeber and M. Zieck), Dordrecht, 1993, and P. Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’, 38 ICLQ, 1989, p. 867. See also M. Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and Practice’, 43 ICLQ, 1994, p. 241; G. Simpson, ‘The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age’, 32 Stanford Journal of International Law, 1996, p. 255, and R. McCorquodale, ‘Self- Determination: A Human Rights Approach’, 43 ICLQ, 1994, p. 857. 140 See above, chapter 5, p. 251. 141 See further below, p. 372. 290 i n t e r nat i o na l l aw political, economic, social and cultural development’. Article 20 of the African Charter on Human and Peoples’ Rights, 1981 142 stipulates that ‘all peoples shall have the right to existence. They shall have the unques- tionable and inalienable right to self-determination. They shall freely de- termine their political status and shall pursue their economic and social development according to the policy they have chosen.’ The 1970 Declara- tion on Principles of International Law Concerning Friendly Relations 143 referred to the colonial situation and noted that subjection of peoples to alien subjugation, domination and exploitation constituted a violation of the principle. A number of UN resolutions have discussed the relevance of self-determination also to situations of alien occupation where the use of force has been involved. 144 The International Law Commission in 1988 expressed its view that the principle of self-determination was of universal application, 145 while the practice of the UN Human Rights Committee has been of particular significance. Before this is briefly noted, reference must be made to the crucial im- portance of the principle of territorial integrity. 146 This norm protects the territorial framework of independent states and is part of the over- all concept of the sovereignty of states. In terms of the concept of the freezing of territorial boundaries as at the moment of independence (save by mutual consent), the norm is referred to as uti possidetis juris. 147 This posits that boundaries established and existing at the moment of inde- pendence cannot be altered unless the relevant parties consent to change. It is supported by international instruments 148 and by judicial pronounce- ment. In the Burkina Faso/Mali case, 149 the Chamber of the International Court of Justice emphasised that uti possidetis constituted a general prin- ciple, whose purpose was to prevent the independence and stability of 142 See further below, p. 391. 143 General Assembly resolution 2625 (XXV). 144 See, for an examination of state practice, e.g. Cassese, Self-Determination, pp. 90–9. 145 Yearbook of the ILC, 1988, vol. II, Part 2, p. 64. 146 General Assembly resolution 1514 (XV) 1960 (the Colonial Declaration) underlines that ‘any attempt at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the UN’, while resolution 2625 (XXV) 1970 (the Declaration on Principles of International Law Concerning Friendly Relations) emphasises that ‘nothing in the foregoing paragraphs shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign or independent states’. See further below, chapter 10, p. 522. 147 See further below, chapter 10, p. 525. 148 See e.g. General Assembly resolutions 1514 (XV) and 1541 (XV) and Organisation of African Unity resolution 16 (I) 1964. 149 ICJ Reports, 1986, pp. 554, 566–7; 80 ILR, pp. 440, 470–1. t h e p r o t e c t i o n o f h u m a n r i g h t s 291 new states from being endangered by fratricidal struggles provoked by the challenging of frontiers. This essential requirement of stability had induced newly independent states to consent to the respecting of colonial borders ‘and to take account of it in the interpretation of the princi- ple of self-determination of peoples’. The Arbitration Commission of the European Conference on Yugoslavia emphasised in Opinion No. 2 150 that ‘it is well established that, whatever the circumstances, the right to self- determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise’. The principle of self-determination, therefore, applies beyond the colo- nial context, within the territorial framework of independent states. It cannot be utilised as a legal tool for the dismantling of sovereign states. 151 Its use, however, as a crucial principle of collective human rights 152 has been analysed by the Human Rights Committee in interpreting article 1 of the Civil and Political Rights Covenant. 153 In its General Comment on 150 92 ILR, pp. 167, 168. See further above, chapter 5, p. 256. 151 The clause in the 1970 Declaration on Principles of International Law Concerning Friendly Relations (repeated in the UN Vienna Declaration on Human Rights, 1993), stating that nothing in the section on self-determination shall be construed as authorising or en- couraging the dismembering or impairing of the territorial integrity of states conducting themselves in compliance with the principle of self-determination ‘as described above and thus possessed of a government representing the whole people belonging to the ter- ritory without distinction as to race, creed or colour’, may be seen, first, as establishing the primacy of the principle of territorial integrity and, secondly, as indicating the con- tent of self-determination within the territory. Whether it also can be seen as offering legitimacy to secession from an independent state in exceptional circumstances is the subject of much debate. Cassese, for example, concludes that ‘a racial or religious group may attempt secession, a form of external self-determination, when it is apparent that internal self-determination is absolutely beyond reach. Extreme and unremitting perse- cution and the lack of any reasonable prospect for peaceful challenge may make secession legitimate’, Self-Determination, p. 120. See also R. Rosenstock, ‘The Declaration on Prin- ciples of International Law’, 65 AJIL, 1971, pp. 713, 732, and J. Crawford, The Creation Download 7.77 Mb. Do'stlaringiz bilan baham: |
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