Editing Self-determination (section)

== Current issues ==

[[File:South Sudan Independence Celebration (5963420792).jpg|thumb|[[South Sudan|Southern Sudanese]] expressed joy and jubilation on their day of independence, July 9, 2011, from Sudan.]]

Since the early 1990s, the legitimatization of the principle of national self-determination has led to an increase in the number of conflicts within states, as sub-groups seek greater self-determination and full secession, and as their conflicts for leadership within groups and with other groups and with the dominant state become violent.<ref>Martin Griffiths, [http://www.austlii.edu.au/au/journals/MqLJ/2003/3.html Self-determination, International Society And World Order], [[Macquarie University]] Law Journal, 1, 2003.</ref> The international reaction to these new movements has been uneven and often dictated more by politics than principle. The 2000 [[United Nations Millennium Declaration]] failed to deal with these new demands, mentioning only "the right to self-determination of peoples which remain under colonial domination and foreign occupation."<ref name="Gudeleviciute" /><ref>{{cite web|url=https://www.un.org/millennium/declaration/ares552e.pdf |title=United Nations Millennium Declaration, adopted by the UN General Assembly Resolution 55/2 (08 09 2000), paragraph 4. |access-date=2012-03-04}}</ref>

In an issue of ''[[Macquarie University]] Law Journal'' Associate Professor Aleksandar Pavkovic and Senior Lecturer Peter Radan outlined current legal and political issues in self-determination.<ref name="Pavkovic">{{Cite web |url=http://www.austlii.edu.au/au/journals/MqLJ/2003/1.html |title=n Pursuit of Sovereignty and Self-determination: Peoples, States and Secession in the International Order|access-date=2021-03-30 |website=Macquarie Law Journal |last1=Pavkodic|first1=Aleksander|last2=Radan|first2=Peter}}</ref>

=== Defining "peoples" ===
There is not a recognized legal definition of "peoples" in international law.<ref>[http://www.cambridge.org/gb/academic/subjects/law/public-international-law/statehood-and-self-determination-reconciling-tradition-and-modernity-international-law] Duncan French, 2013, Statehood and Self-Determination Reconciling Tradition and Modernity in International Law, p.97</ref> Indeed, [[Ivor Jennings]] called Wilson's doctrine "ridiculous" because, though on the surface it seems reasonable to "let the people decide", in practice "the people cannot decide until someone decides who are the people".<ref name="Oxford University Press"/>

Reviewing various international judgements and UN resolutions, Vita Gudeleviciute of [[Vytautas Magnus University]] Law School finds that, in cases of non-self-governing peoples (colonized and/or indigenous) and foreign military occupation, "a people" is defined as the entire population of the occupied territorial unit, no matter their other differences. Meanwhile, in cases where people lack representation by a state's government, the unrepresented become a defined as a separate people. Present international law does not recognize ethnic and other minorities as separate peoples, with the notable exception of cases in which such groups are systematically disenfranchised by the government of the state they live in.<ref name="Gudeleviciute" />

Other definitions offered are "peoples" as self-evident (from ethnicity, language, history, etc.),{{Explain|date=May 2024}} or defined by "ties of mutual affection or sentiment" ("loyalty", or by mutual obligations among peoples).<ref>{{cite book|author=Pictet, Jean|title=Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949|year=1987|publisher=Martinus Nijhoff Publishers|pages=52–53|display-authors=etal}}</ref>

Professor Uriel Abulof suggests that self-determination entails the "moral double helix" of duality: 1. personal right to align with a people, and the people's right to determine their politics; and 2. and mutuality (the right is as much the other's as the self's). Thus, self-determination grants individuals the right to form "a people," which then has the right to establish an independent state, as long as they grant the same to all other individuals and peoples.<ref name="Abulof">{{Cite journal|doi = 10.1080/17449057.2015.1051809|title = The Confused Compass: From Self-determination to State-determination|year = 2015|last1 = Abulof|first1 = Uriel|journal = Ethnopolitics|volume = 14|issue = 5|pages = 488–497|s2cid = 142202032}}</ref>

=== Self-determination versus territorial integrity ===

[[File:Kosova independence Vienna 17-02-2008 b.jpg|thumb|200px|Celebration of the [[2008 Kosovo declaration of independence|Declaration of Independence]] of [[Kosovo]] in 2008]]
National self-determination appears to challenge the principle of [[territorial integrity]] (or [[sovereignty]]) of states as it is the will of the people that makes a state legitimate. This implies that people should be free to choose their own state and its territorial boundaries. However, there are far more self-identified nations than there are existing states and there is no legal process to redraw state boundaries according to the will of these peoples.<ref name="Pavkovic" /> According to the Helsinki Final Act of 1975, the UN, ICJ and international law experts, there is no contradiction between the principles of self-determination and territorial integrity, with the latter taking precedence.<ref>{{cite web|url=http://www.un.int/azerbaijan/pdf/unrep1.pdf |title=Protracted conflicts in the GUAM area and their implications for international peace, security and development. The situation in the occupied territories of Azerbaijan, Security Council, Sixty-third year/ General Assembly, Sixty-third session, Agenda items 13 and 18, A/63/664 – S/2008/823, 29 December 2008 |access-date=2012-03-04 |url-status=dead |archive-url=https://web.archive.org/web/20120120120717/http://www.un.int/azerbaijan/pdf/unrep1.pdf |archive-date=January 20, 2012 }}</ref><ref>{{cite journal|url=http://www.law.fsu.edu/journals/transnational/vol101/vyver.pdf |author=Johan D. van der Vyver |title=Self-Determination of the Peoples of Quebec Under International Law |journal=Journal of Transnational Law & Policy |volume=10 |issue=1–38 |date=Fall 2000 |access-date=2012-03-04 |url-status=dead |archive-url=https://web.archive.org/web/20120206211910/http://www.law.fsu.edu/journals/transnational/vol101/vyver.pdf |archive-date=2012-02-06 }}</ref><ref>{{cite journal |url=http://cria-online.org/1_2.html |author=M. Mammadov |title=Legal Aspects of the Nagorno-Garabagh Conflict |journal=Caucasian Review of International Affairs |volume=1 |issue=1 |date=Winter 2006 |pages=14–30 |via=cria-online.org |access-date=2012-03-04 |archive-url=https://web.archive.org/web/20120402120053/http://cria-online.org/1_2.html |archive-date=2012-04-02 |url-status=dead }}</ref><ref>{{cite web |url=http://ucss.ge/lecture%203%20-%20TI%20and%20NSD41.doc |author=S. Neil MacFarlane |title=Normative Conflict – Territorial Integrity and National Self-Determination |publisher=Centre for Social Sciences |date=December 14, 2010 |access-date=2012-03-04 |archive-date=2016-04-28 |archive-url=https://web.archive.org/web/20160428013355/http://ucss.ge/lecture |url-status=dead }}</ref>

[[File:2014-05-11. Референдум в Донецке 011.jpg|thumb|[[2014 Donetsk and Luhansk status referendums|Donetsk status referendum]] organized by separatists in [[Ukraine]]. A line to enter a polling place, 11 May 2014]]

[[Allen Buchanan]], author of seven books on self-determination and secession, supports territorial integrity as a moral and legal aspect of constitutional democracy. However, he also advances a "Remedial Rights Only Theory" where a group has "a general right to secede if and only if it has suffered certain injustices, for which secession is the appropriate remedy of last resort." He also would recognize secession if the state grants, or the constitution includes, a right to secede.<ref name="Gudeleviciute" />

Vita Gudeleviciute holds that in cases of non-self-governing peoples and foreign military occupation the principle of self-determination trumps that of territorial integrity. In cases where people lack representation by a state's government, they also may be considered a separate people, but under current law cannot claim the right to self-determination. On the other hand, she finds that secession within a single state is a domestic matter not covered by international law. Thus, there are no on what groups may constitute a seceding people.<ref name="Gudeleviciute" />

[[File:Hong Kong IMG 20190616 171444 (48073669892).jpg|thumb|During the [[2019–2020 Hong Kong protests|2019–20 Hong Kong protests]], calls rose for self-determination by [[Hongkongers]].]]
A number of states have laid claim to territories, which they allege were removed from them as a result of colonialism.  This is justified by reference to Paragraph 6 of UN Resolution 1514(XV), which states that any attempt "aimed at 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".  This, it is claimed, applies to situations where the territorial integrity of a state had been disrupted by colonisation, so that the people of a territory subject to a historic territorial claim are prevented from exercising a right to self-determination.  This interpretation is rejected by many states, who argue that Paragraph 2 of UN Resolution 1514(XV) states that "all peoples have the right to self-determination" and Paragraph 6 cannot be used to justify territorial claims.  The original purpose of Paragraph 6 was "to ensure that acts of self-determination occur within the established boundaries of colonies, rather than within sub-regions".  Further, the use of the word ''attempt'' in Paragraph 6 denotes future action and cannot be construed to justify territorial redress for past action.<ref name="Musgrave2000">{{cite book|author=Thomas D. Musgrave|title=Self-Determination and National Minorities|url=https://books.google.com/books?id=BJg6T7SqJ1gC|access-date=5 March 2012|year=2000|publisher=Oxford University Press|isbn=978-0-19-829898-4|page=239}}</ref> An attempt sponsored by Spain and Argentina to qualify the right to self-determination in cases where there was a territorial dispute was rejected by the UN General Assembly, which re-iterated the right to self-determination was a universal right.<ref>{{cite web|url=http://www.falklands.gov.fk/assembly/documents/The%20Challenge%20of%20Sovereignty%20in%20small%20states.pdf |title=The Challenge of Sovereignty in small states |access-date=2012-03-07 |url-status=dead |archive-url=https://web.archive.org/web/20120430061445/http://www.falklands.gov.fk/assembly/documents/The%20Challenge%20of%20Sovereignty%20in%20small%20states.pdf |archive-date=2012-04-30 }} Falkland Islands Government, Dick Sawle MLA, The Challenge of Sovereignty in small states ''As I mentioned previously, the UN itself, in 2008, rejected the claim that a dispute over sovereignty affected self-determination, affirming self-determination to be "a basic human right."''</ref><ref>{{cite web | url=https://www.un.org/News/Press/docs/2008/gaspd406.doc.htm | title=General Assembly GA/SPD/406 | publisher=UN Department of Public Information | date=20 October 2008 | access-date=March 10, 2012}}</ref>

=== Methods of increasing minority rights ===

In order to accommodate demands for minority rights and avoid secession and the creation of a separate new state, many states [[decentralization|decentralize]] or [[devolution|devolve]] greater decision-making power to new or existing subunits or [[autonomous area]]s.

=== Self-determination versus majority rule/equal rights ===
Self-determination can be at odds with the principle of [[majority rule]] and equal rights, especially when there is a sizable minority group. In democratic societies, majority rule is often used to determine the outcome in electoral and voting processes. However, a major critique of majority rule is that it may result in the [[tyranny of the majority]], especially in cases in which a simple majority is used in order to determine outcome. This flaw is particularly poignant when there is a large minority group whose interests are not being represented, and who may then seek to secede.

The right to self-determination by a minority has long been contested in democracies with majority rule. For instance, in his first inaugural speech [[Abraham Lincoln]] argued that:<blockquote>Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.<ref>{{Cite web |title=Inaugural Addresses of the Presidents of the United States: from George Washington 1789 to George Bush 1989 |url=https://avalon.law.yale.edu/19th_century/lincoln1.asp |access-date=2022-10-02 |website=avalon.law.yale.edu}}</ref></blockquote>However, liberal proponents for the right to self-determination by minority groups contradict this notion by arguing that, in cases where the minority is not able to become the majority, and that minority is territorially concentrated and does not want to be governed by the majority, it may serve the best interest of the state to allow the secession of this group.<ref>{{Cite journal |last=Beran |first=Harry |date=March 1984 |title=A Liberal Theory of Secession |url=https://journals.sagepub.com/doi/10.1111/j.1467-9248.1984.tb00163.x#:~:text=The%20claim%20is%20made%20that,is%20morally%20and%20practically%20possible. |journal=Political Studies |volume=32 |issue=1 |pages=26–27 |doi=10.1111/j.1467-9248.1984.tb00163.x |s2cid=144826573 |via=Sage Journals}}</ref>

=== Constitutional law ===

Most [[sovereign state]]s do not recognize the right to self-determination through secession in their constitutions. Many expressly forbid it. However, there are several existing models of self-determination through greater autonomy and through secession.<ref name="Kreptul">Andrei Kreptul, [https://mises.org/journals/jls/17_4/17_4_3.pdf The Constitutional Right of Secession in Political Theory and History], [[Journal of Libertarian Studies]], [[Ludwig von Mises Institute]], Volume 17, no. 4 (Fall 2003), pp. 39 – 100.</ref>

In liberal constitutional democracies the principle of [[majority rule]] has dictated whether a minority can secede. In the United States [[Abraham Lincoln]] acknowledged that secession might be possible through [[List of amendments to the United States Constitution|amending]] the [[United States Constitution]]. The [[Supreme Court of the United States|Supreme Court]] in ''[[Texas v. White]]'' held secession could occur "through revolution, or through consent of the States."<ref>Aleksandar Pavković, Peter Radan, [https://books.google.com/books?id=-IjHbPvp1W0C Creating New States: Theory and Practice of Secession], p. 222, Ashgate Publishing, Ltd., 2007.</ref><ref>[https://www.law.cornell.edu/supct/html/historics/USSC_CR_0074_0700_ZO.html ''Texas v. White''], 74 U.S. 700 (1868) at [[Cornell University Law School]] Supreme Court collection.</ref> The [[Parliament of the United Kingdom|British Parliament]] in 1933 held that [[Western Australia]] only could secede from Australia upon vote of a majority of the country as a whole; the previous two-thirds majority vote for secession via referendum in Western Australia was insufficient.<ref name="Pavkovic" />

The [[Communist Party of China|Chinese Communist Party]] followed the Soviet Union in including the right of secession in its 1931 constitution in order to entice ethnic nationalities and Tibet into joining. However, the Party eliminated the right to secession in later years and had anti-secession clause written into the Constitution before and after the founding the People's Republic of China. The 1947 Constitution of the [[Burma|Union of Burma]] contained an express state right to secede from the union under a number of procedural conditions. It was eliminated in the 1974 constitution of the Socialist Republic of the Union of Burma (officially the "Union of Myanmar"). Burma still allows "local autonomy under central leadership".<ref name="Kreptul" />

As of 1996 the [[Constitution of Austria|constitutions of Austria]], [[Constitutions of Ethiopia|Ethiopia]], [[Constitution of France|France]], and [[Constitution of Saint Kitts and Nevis|Saint Kitts and Nevis]] have express or implied rights to secession. Switzerland allows for the secession from current and the creation of new [[Cantons of Switzerland|cantons]]. In the case of proposed [[Quebec]] separation from Canada the [[Supreme Court of Canada]] in 1998 ruled that only both a clear majority of the province and a [[constitutional amendment]] confirmed by all participants in the Canadian federation could allow secession.<ref name="Kreptul" />

The 2003 draft of the [[Treaty establishing a Constitution for Europe|European Union Constitution]] allowed for the voluntary withdrawal of member states from the union, although the State which wanted to leave could not be involved in the vote deciding whether or not they can leave the Union.<ref name="Kreptul" /> There was much discussion about such self-determination by minorities<ref>Xenophon Contiades, [http://www.inter-disciplinary.net/AUD/s6.htm Sixth Scholarly Panel: Cultural Identity in the New Europe], 1st Global Conference on Federalism and the Union of European Democracies, March 2004. {{webarchive |url=https://web.archive.org/web/20090105214649/http://www.inter-disciplinary.net/AUD/s6.htm |date=January 5, 2009 }}</ref> before the final document underwent the unsuccessful ratification process in 2005.

As a result of the successful [[2003 Liechtenstein constitutional referendum|constitutional referendum]] held in 2003, every municipality in the [[Liechtenstein|Principality of Liechtenstein]] has the right to secede from the Principality by a vote of a majority of the citizens residing in this municipality.<ref>{{Cite web|url=https://www.fuerstenhaus.li/en/monarchy/the-reform-of-the-constitution-in-2003/|title=The Reform of the Constitution in 2003|website=fuerstenhaus.li|access-date=2017-01-02|archive-date=2017-01-02|archive-url=https://web.archive.org/web/20170102172008/https://www.fuerstenhaus.li/en/monarchy/the-reform-of-the-constitution-in-2003/|url-status=dead}}</ref>

=== Drawing new borders ===
{{See also|Partition (politics)}}In determining international borders between sovereign states, self-determination has yielded to a number of other principles.<ref name="Anstis">Sebastian Anstis, [http://www.tandfonline.com/doi/abs/10.1080/09592296.2010.482477 The Normative Bases of the Global Territorial Order], [[International relations|Diplomacy and Statecraft]], Volume 21, no. 2 (June 2010), pp. 306 – 323.</ref> Once groups exercise self-determination through secession, the issue of the proposed borders may prove more controversial than the fact of secession. The bloody [[Yugoslav Wars]] in the 1990s were related mostly to border issues because the international community applied a version of [[uti possidetis juris]] in transforming the existing internal borders of the various Yugoslav republics into international borders, despite the conflicts of ethnic groups within those boundaries. In the 1990s indigenous populations of the northern two-thirds of Quebec province opposed being incorporated into a Quebec nation and stated a determination to resist it by force.<ref name="Pavkovic" />

The border between [[Northern Ireland]] and the [[Irish Free State]] was based on the borders of existing counties and did not include all of historic [[Ulster]].  A [[Irish Boundary Commission|Boundary Commission]] was established to consider re-drawing it. Its proposals, which amounted to a small net transfer to the Free State, were leaked to the press and then not acted upon. In December 1925, the governments of the Irish Free State, Northern Ireland, and the United Kingdom agreed to accept the existing border.