Alfred de Zayas: herrien autodeterminazio-eskubide unibertsalaz (Gironan)

Lecture in Girona on the universal right of self-determination of peoples

(https://dezayasalfred.wordpress.com/2018/05/21/lecture-in-girona-on-the-universal-right-of-self-determination-of-people/)

NOTES FOR THE ASSESSMENT OF ACTIVITIES AND ALLEGATIONS RELATED TO THE PEACEFUL AND DEMOCRATIC EXERCISE OF THE UNIVERSAL RIGHT OF SELF-DETERMINATION OF PEOPLES

Introduction: The “right of self-determination of peoples”, hereinafter the “right of self-determination”, is a fundamental right protected at the highest level by the international legal order. It is enshrined in the first article of the Charter of the United Nations, the founding treaty of the Organization, and in other international legal instruments, including the UN Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. It is considered “jus cogens”, that is, fundamental norm of superior hierarchical rank, standing above any contradictory legal provision which would become automatically null, in accordance with the Charter and with Article 53 of the Vienna Convention on the Law of Treaties.

It is therefore a direct and legally binding right applicable to all United Nations Member States. The respect of such a right binds all State institutions, that is, the legislative (which should not legislate against), the executive (which should not act against) and the judiciary, which should not take decisions against it. Thus, the right of self-determination is not an abstract and ethereal principle in the political and doctrinal dominion, but it rather generates real rights and obligations in national law; rights and obligations which are legally binding on all authorities and institutions of the Member States who have decided to commit themselves to the application of the right of self-determination.

The present “Notes” summarize the current state of affairs on the matter, and have been prepared as a practical guide to assist the tasks of administrative and judiciary officials of United Nations Member States and parties to the Covenants. Such officials will thus be able to assess the legitimate exercise of the right of self-determination in the framework of a specific activity or a claim in an internal judicial proceeding.

The “Notes” reflect the fundamentals developed in my report to the General Assembly in 2014 (A/69/272)[1] in my capacity as “Independent Expert[2] of the Human Rights Council of the United Nations on the promotion of a democratic and equitable international order”. My mandate[3]approved by United Nations Member States aims “To support the strengthening and promoting of (…) respect for human rights and fundamental freedoms in the entire world”. These “Notes” are not subject to copyright. They can be used freely by quoting the source, and even such quoting is not required when used in the framework of administrative or jurisdictional procedures.

Comments and questions on the present “Notes” are welcome:

Prof. Dr. Alfred de Zayas

Independent Expert of the United Nations on the promotion of a democratic and equitable international order (2012-2018)

Postal address: Chemin des Crêts de Pregny 23, CH-1218 Le Grand Saconnex, Geneva (Switzerland)

Tel: + 41 22 788 2231 Email: alfreddezayas@gmail.com

The recognition of the right of self-determination in the international legal order

The “right of self-determination of peoples”, hereinafter the “right of self-determination” (…), is a fundamental right protected at the highest level by the international legal order. It is included, amongst others, in the following core legal instruments:

– Charter of the United Nations (UNC 1945)[4], the founding treaty of the United Nations, adopted on 26 June 1945, and in force since 24 October 1945. The Charter has been ratified by all the 193 Member States[5] of the United Nations as it is a compulsory instrument to become UN member.

Article 1 (2) of UNC 1945:

” Article 1

The Purposes of the United Nations are: (…)

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

It should be noted that the Charter refers to relations between “nations” and not between “States”. This means that, in respect of the right of self-determination, the Charter also applies to relations between a national-people (be it administratively defined as a federal state, a region, a province, an autonomy, a non-self-governing territory, etc.) and the national-State that exercises its jurisdiction. The Charter also protects the right of self-determination on the basis of its Article 55 and its Chapter XI.

– International Covenant on Civil and Political Rights (ICCPR 1966)[6], adopted by the General Assembly of the United Nations resolution 2200A (XXI), of 16 December 1966. In force since 23 March 1976. 170 ratifications by States[7].

Article 1 (1) (3) of ICCPR 1966:

” Article 1

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (…)
The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

– International Covenant on Economic, Social and Cultural Rights (ICESCR 1966)[8] , adopted by the General Assembly of the United Nations resolution 2200A (XXI), of 16 December 1966. In force since 3 January 1976. 166 ratifications by States[9].

Article 1 (1) (3) of ICESCR 1966:

” Article 1

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (…)
The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

Further to the three key instruments referred above, the right of self-determination is included in numerous other multilateral and regional instruments, as well as in numerous Declarations, Resolutions and Reports of the United Nations, among others:

– Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations[10], adopted by the General Assembly of the United Nations by Resolution 2625 (XXV) of 24 October 1970, reaffirming among others that ” self-determination of peoples constitutes a significant contribution to contemporary international law”; It includes a specific and detailed section on “The principle of equal rights and self-determination of peoples”.

– Final Act of the Conference on Security and Co-operation in Europe (CSCE, 1 August 1975 )[11], which resulted, among others, on the establishment of the Organization for Security and Cooperation in Europe (OSCE).

– Vienna Declaration and Programme of Action[12], adopted by the World Conference on Human Rights on 25 June 1993, which pursuant to Part II, paragraph 18, led to the establishment of the function of the United Nations High Commissioner for Human Rights (OHCHR).

– Declaration on the occasion of the fiftieth anniversary of the United Nations (A/RES/50/6)[13], adopted by the General Assembly of the United Nations on 9 November 1995.

Paragraph 1 (3) of the Declaration:

“PEACE

To meet these challenges, (…) we will: (…)

– Continue to reaffirm the right of self-determination of all peoples, (…) and recognize the right of peoples to take legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination . (…) ”

– Report of the UNESCO International Conference of experts on The Implementation of the right to self-determination as a contribution to conflict prevention[14], held from 21 to 27 November 1998.

– Resolution on the Universal realization of the right of peoples to self-determination (A/RES/68/153)[15], adopted by the General Assembly of the United Nations on 18 December 2013 .

– Resolution on the Promotion of a democratic and equitable international order (A/RES/68/175)[16], adopted by the General Assembly of the United Nations on 18 December 2013 .

The right of self-determination is also widely recognized by the jurisprudence of the International Court of Justice (cases of Namibia, Western Sahara, East Timor, Kosovo) and is developed by the Human Rights Council and the Human Rights Committee of the United Nations, standing bodies which, among others, monitor the compliance by the parties of the International Covenant on Civil and Political Rights. Finally, the right of self-determination is broadly covered by international doctrine.

Thus, not only the right of self-determination is enshrined in the most important article (Article 1, on the Purposes of the United Nations) of the founding treaty of the main international organization (known as “the World Constitution”), but its relevance has been consistently reaffirmed over the years at the highest levels in numerous instruments of many international organizations.

The Charter of the United Nations (1945) provides a pre-eminent role to the right of self-determination, above any other international treaty:

“Article 103

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

In fact, States, judges of international courts and professors of international law agree that the right of self-determination has reached the status of jus cogens, that is, a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted. Therefore, it is a fundamental norm of superior hierarchical rank, standing above any contradictory legal provision, which would become automatically null in accordance with articles 53 and 64 of the Vienna Convention on the Law of Treaties[17], of 23 May 1969:

“Article 53

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”

“Article 64

If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.”

Additionally, if a jus cogens such as the right of self-determination is above any international treaty, it is also above any conflicting provision in national law, of lower rank as it has to comply with international treaties that have been ratified by the State in question.

Conclusion: The right of self-determination is jus cogens, fundamental norm of superior hierarchical rank, recognized by the United Nations founding treaty, and compulsory on any national or international provision that may conflict with it.

Definition and scope of the right of self-determination

The right of self-determination is well defined at the international level, amongst others by the instruments referred above, and in Treaties, Resolutions, Declarations and Reports of the United Nations and its bodies and institutions such as the Human Rights Committee, and in Resolutions or Advisory Opinions of the International Court of Justice, among other actors of international law.

From such wide international legal and doctrinal corpus, it can be concluded that the right of self-determination basically refers to the peoples’ capacity to take charge of their own destiny and fully develop their identity, either within the limits of existing States, or by acceding to independence.

The right of self-determination should not be considered a final result, but rather a process subject to review and adjustment, and its manifestation must respond to the free and voluntary choice of the peoples concerned, in the framework of protecting human rights and non-discrimination.

The right of self-determination entails the intrinsic ability of peoples to determine their political future, being able to freely prioritize at any particular point in history from full integration in a State even without differentiating from other regions (possibly guaranteeing specific cultural, linguistic and religious rights), up to secession and full independence; and different models in-between of regional empowerment, autonomy, or special status in a federal State (in all cases with varying degrees of cultural, economic and political autonomy).

As clarified in the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (see reference in Section 1), “the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”.

As a permanent democratic exercise, the right of self-determination entails the participation of peoples in decision-making in condition of equality, in a continuous dialogue whereby parties adjust and readjust their relationship in their mutual benefit.

Just as the rights of life, freedom and identity, the right of self-determination is a fundamental right that cannot be waived nor can be extinguished with time. Thus, any formal renunciation by a people, even if this was an apparent free choice, cannot be definitive but just temporary, circumscribed to the situation of the people at a specific historical point in time. In fact, the people in question can unilaterally distance itself from such a renunciation at any point in time.

Conclusion: The right of self-determination refers to the peoples’ capacity to decide their political status. This includes the external exercise of the right of self-determination (deciding on secession or unification) as well as its the internal exercise (deciding on the degree of integration in a State). The exercise of the right of self-determination entails the equal participation of peoples in decision-making in an ongoing dialogue in which the parties adjust and readjust their relationship in their mutual benefit. Self-determination is an expression of human dignity as a human right in its holistic dimension – collective and individual.

The right holders of the right of self-determination: “All peoples”

It is clearly apparent from the legal and doctrinal corpus referred before that the holders of the right of self-determination are “All Peoples”.

Among others, Articles 1 (1) of the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR) (see references in Section 1) indicate:

” Article 1

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (…)

Likewise, the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (see reference in Section 1), indicates as follows, in its section on “The principle of equal rights and self-determination of peoples”:

“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.”

In spite of its frequent use in international fora, the concept of “people” has never been defined conclusively. Participants at a UNESCO meeting of experts in 1998 on the right of self-determination (see reference in Section 1) endorsed the so-called ” Kirby definition”[18], according to which a “people” is recognized as being a group of persons with a common historical tradition, an ethnic or racial identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection or a common economic life. An additional subjective element is required: the awareness of being a people and the willingness to be recognized as such.

The administrative organization and the territorial extent of a people at a particular moment in history are irrelevant to its definition as such. A people may occupy a territory within one or several States (and exercise their entire control), or be an administrative entity (federal State, region, province, autonomous community, non-self-governing entity, etc.) within a broader State, which may be more or less centralized. Or, in a most extreme case, simply not having any representation in the State at all. Indeed, the definition of a people is based on its intrinsic characteristics, and not on its administrative status in relation to a state entity at a specific historical moment.

Although it may be questioned on a case by case basis whether, at a given point in time, a human community has the required characteristics to be defined as “people”, it is undisputable that, should that be the case, such community would always be a right holder of the right of self-determination. Indeed, “all peoples” are right holders of the right of self-determination. There is no legal basis to differentiate between peoples who may be holders of the right and others who may not be, even less on the basis of the administrative status of a people at a given point in time.

Thus, for instance, any arbitrary limitation of the right of self-determination only to peoples subject to colonial domination or foreign occupation, or to non-self-governing territories (or trust territories) would be contrary to international law. It would indeed be an abusive interpretation of, among others, the United Nations Charter and the International Covenants (see References in Section 1), in violation of the “General Rule of Interpretation” of Article 31 (1) of the Vienna Convention on the Law of Treaties (see reference above): “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. Not even the consultation of the minutes of the preparatory works may support an arbitrarily limiting interpretation of the right of self-determination applicable only to some peoples and not to all of them.

It is true that, in the context of the normative implementation of the right of self-determination, the International Covenants and Resolutions of the United Nations refer to the situation of some peoples in particular, thus reflecting a historical concern of the international community regarding these specific cases of the exercise of the right of self-determination.

Among others, Articles 1 (3) of the International Covenants on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR) (see references in Section 1) establish as follows:

“Article 1

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

Likewise, the “Declaration on the occasion of the fiftieth anniversary of the United Nations” (see reference in Section 1) indicates, in its paragraph 1 (3) on that matter:

“PEACE

(…) we will: (…)

– Continue to reaffirm the right of self-determination of all peoples, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, and recognize the right of peoples to take legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination. (…)”

It is clear that the aforementioned Covenants and Resolutions refer to the “particular situation” of dominated peoples, non-self-governing territories or trust territories, among “all peoples” which hold the right of self-determination. Other Resolutions are similar in that respect.

Taking into account that neither the Charter of the United Nations nor the International Covenants on Civil and Political Rights, or on Economic, Social and Cultural Rights, restrict right holders of such a fundamental right, and that no provision of lower rank does it either (and if it did, it would be null), there is no basis to defend an arbitrary limitation of the right of self-determination to less people than to “all peoples”.

Likewise, it would also be arbitrary to limit the right of self-determination to particular situations and at specific times in the history of peoples, such as situations of armed conflict, invasion, occupation and/or massive violation of human rights. It is obvious that extreme situations in the history of a people can generate or increase the desire to exercise the right of self-determination; nevertheless, constraining such exercise to the aforementioned extreme situations would find no ground in the legal and doctrinal corpus referred above. A restrictive interpretation of the right of self-determination is not possible in accordance with articles 31 and 32 of the Vienna Convention on the Law of Treaties.

Conclusion: The right holders of the right of self-determination are “all peoples” without distinction. Although the definition of “people” does not yet exist internationally, in general it is recognized for a group of persons with a common historical tradition, an ethnic or racial identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection or a common economic life, with the awareness of being a people and the willingness to be recognized as such. Any arbitrary limitation of the right of self-determination only to some peoples (for example, those subjected to colonial domination) or only in certain historical moments in time (for example in situations of armed conflict) would be contrary to international law.

The duty bearers of the right of self-determination: “Every State”

The same legal and doctrinal corpus referred above establishes that the duty bearers of the right of self-determination are all States Members of the United Nations, which must recognize and promote this right, individually and collectively, in accordance with the erga omnes provisions of the Charter and of treaties on human rights.

Among others, Articles 1 (3) of the International Covenant on Civil and Political Rights (ICCPR) and on Economic, Social and Cultural Rights (ICESCR) (see references in Section 1) establish as follows:

“Article 1

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

Likewise, the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (see reference in Section 1), indicates, in its section on “The principle of equal rights and self-determination of peoples” as follows:

“Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, (…)”

Thus, the right of self-determination is not an abstract and ethereal principle in the political and doctrinal dominion, but rather generates actual rights and obligations to the States that have ratified the legal instruments referred under Section 1. They have committed to abide by and facilitate the exercise of the right of self-determination in accordance with the provisions of the Charter of the United Nations, particularly in a peaceful and democratic manner.

Such compliance binds not only the central executive power (which should not give orders against it), but also all the powers, organs, institutions and state authorities, both at central, as well as at regional and local levels, including the legislative power (which should not legislate against), and the judiciary, which should not rule against.

These obligations exist in the actions of the State both outside its territory, that is, avoiding external interference contrary to the principle of territorial integrity, as well as internally, that is, actively facilitating the exercise of the right of self-determination among the peoples under its jurisdiction. The obligations within its territory are in fact most important: as other States cannot interfere (they would be in violation of the principle of territorial integrity), the State where a people is located has all the responsibility to facilitate the exercise of the right of self-determination of the people in question.

Finally, just as the peoples must exercise their right of self-determination within the framework of dialogue and negotiating processes, the States must respect and facilitate such processes without conditioning them. Otherwise, there would be a risk that the right holder would be undermined by its duty bearer.

Conclusion: The duty bearer of the right of self-determination is “Every State”, whose institutions should not only respect the exercise of that right (for instance refraining from external interference) but also actively facilitate it, especially in relation to the peoples under its jurisdiction.

Relevance of the principle of territorial integrity

The principle of territorial integrity is a basic principle of international law, recognized by the Charter of the United Nations. It regulates the conduct of the Member States among themselves, basically ensuring the preservation of the territory against external interference. The principle is set out in Article 2 (4) of the Charter of the United Nations.

Article 2 (4) of the Charter of the United Nations (UNC, 1945):

“Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: (…)

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Article 2 (4) of the Charter codifies the principle of territorial integrity within the framework of relations between States. This is confirmed by the first paragraph of the Article (“Members … shall act”), by paragraph 4 (“Members”, “in their international relations”, “any State“), as well as by the previous paragraph (“international disputes”).

The principle of territorial integrity is developed in numerous United Nations instruments and resolutions (for example, Resolution 3314). Likewise, there are resolutions that underline that the right of self-determination should be regulated while taking into account other principles of international law, in particular the principle of territorial integrity.

For instance, the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” (Resolution 2625 (XXV), see reference in Section 1), in its section on “The principle of equal rights and self-determination of peoples” forbids any external interference under the alleged promotion of the right of self-determination:

“(…) Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples (…).

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country.”

This resolution and all other resolutions of the United Nations with the same purpose, including those referred in Section 1, have been adopted and are applied in the framework of the external relations between States, in order to prohibit threats or foreign incursions that may undermine the territorial integrity of sovereign states. Thus, when the provision prohibits “any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”, it obviously refers to actions of other States (and not of peoples), since the Resolution has been adopted by, and is directed to, the States themselves. The last sentence of the provision confirms that point even more explicitly if at all possible, since it excludes that the violation of territorial integrity could be carried out by the “people” (“Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country”).

Therefore, while a State may invoke the principle of territorial integrity (Article 2 of the UNC) in order to prevent the external interference by another state that may try to occupy part of its territory (or interfere in it) under the pretext of promoting the right of self-determination of a people under its jurisdiction, no State can refer to the principle of territorial integrity to free itself from its legal obligation regarding the exercise of the right of self-determination of a people under its jurisdiction (Article 1 of the UNC). While the principle of territorial integrity is a legal, political and pragmatic construction, the right of self-determination has a deep ethical basis.

Thus, the principle of territorial integrity gives way to the right of self-determination, and may not be applied against a people who may be aiming at deciding on their political status in accordance with Article 1 of the UNC, and may be exercising that right without external interference from another State, and in particular if it does so in a peaceful and democratic manner.

A conflicting interpretation which would result in the preeminence of the principle of territorial integrity over the right of self-determination when there was no external interference would completely hollow out the exercise of that right. This is most apparent in the case of the external exercise of the right of self-determination (decide on secession or unification) but also in the case of its internal exercise (decide on the degree of integration within the State), as it would also negate that the people could aim at deciding on a change of its internal status within the State (for instance, aspiring to an extension of powers or to the status as a federated state).

Conclusion: The principle of territorial integrity cannot be used as a pretext to undermine the responsibility of the State to protect the human rights of the peoples under its jurisdiction. The right of self-determination is a right recognized to peoples as right holders, and is not the prerogative of the State to grant it or negate it, not even on the basis of the principle of territorial integrity, unless there is external interference. In case of conflict between the principle of territorial integrity and the human right to self-determination, it is the latter which prevails.

Practical execution of the right of self-determination

The right of self-determination is not self-executing. The States should respect it and promote it, and peoples should be able to exercise it as appropriate in specific cases.

The right of self-determination should be exercised without violating other fundamental human rights. In practice, this means that it should be exercised peacefully and democratically. Thus, among the obligations of States as duty bearers of the right of self-determination, and within the framework of their respective jurisdictions, is the obligation to facilitate the debate (for example by protecting the right of peaceful assembly and manifestation, the rights of association and of freedom of expression), as well as to facilitate consultations by and within the people in question regarding the right to self- determination and its form of exercise (for instance, through democratic mechanisms such as referenda)

In the framework of such internal consultations, or in the framework of their outcome, there should also be mechanisms for dialogue and negotiation between the legitimate representatives of States and of peoples, in conditions of equality, allowing the parties to adjust and readjust their relationship in a permanent dialogue in their mutual benefit.

The exercise of the right of self-determination should be made effective through specific measures, such as legislative and executive norms and judicial decisions. It is not grounded on simple promises, but its right holders enjoy rights protected by justice. This applies to any manifestation of the right of self-determination which may be autonomously decided by a people, be it in the framework of its external or internal exercise.

All the powers, organs, institutions and authorities of States that have ratified the right of self-determination should facilitate such peaceful and democratic mechanisms, thus respecting the exercise of this right by their right holders: “all peoples” under their jurisdiction. The refusal to facilitate that exercise, and even interfere with it, would be a serious violation of a fundamental human right protected at the highest level; it would be a failure to comply with obligations which the State committed to vis-à-vis the internal community and its own citizens. This would entail the responsibility of the State and possibly also that of the institutions involved in such violations.

Conclusion: Peoples should exercise the right of self-determination in a peaceful and democratic manner. States should facilitate such an exercise effectively, under conditions of equality, securing a permanent dialogue in their mutual benefit. All the organs of the State are bound by it; creating obstacles to the exercise of the right of self-determination would amount to a serious violation of a fundamental human right, and would result in the responsibility of the State.

The incorporation of the right of self-determination in the legal system of the States

The foundation of the principle and the execution of the right of self-determination have been described in the previous sections on the basis of the international legal order currently in force.

Finally, it is necessary to describe the mechanisms of application of such fundamental right in the domestic legal system of a State that may have ratified one or more of the instruments listed in Section 1.

The most obvious mechanism is the express transposition. Indeed, the right of self-determination can be expressly stated in a national constitution, typically in the case of States who may have considered that such an indication was required for domestic purposes at the time of the adoption of the Constitution (or later on). It can also be expressly recognized in national jurisprudence. In those cases, the express reference serves as the provision which incorporates the right of self-determination from the international level into the national internal legal order. Of course, the said national provision must not be contrary to the international order, nor limit the right of self-determination beyond what is stated in it.

The national legal systems of all other States that have ratified the right of self-determination incorporate it at the national level via:

the national instruments of adoption, accession or ratification, whereby the State adheres to the Charter of the United Nations or to any other of the international instruments listed in Section 1; and

the standard national provisions for the transposition of international law, whereby the State transposes any international obligation to the domestic national order. These provisions are normally enshrined in the Constitutions of the States.

Thus, if a State has adhered to the obligations of the Charter of the United Nations, or ratified another treaty or instrument that includes the right of self-determination at the international level (see Section 1), it is completely irrelevant whether the right of self-determination is, or not, expressly recognized or developed by its national Constitution or any other internal provision. The contrary would question the validity in the State of the jus cogens, mandatory norm of superior hierarchical rank, to which a State may have committed internationally (through the accession or ratification of the treaty or corresponding instrument), but which may not be transposed at the national level through its express mention in some instrument of internal order. Such an interpretation would result in a de facto violation of fundamental rights of the United Nations, and would question the adherence of the State to the principles of the United Nations Charter, and should normally originate the mechanisms of international sanctions provided to that effect.

In the same way as the absence of internal transposition does not question the validity of the right of self-determination in the internal order of a State that has adhered to such jus cogens, neither does any internal provision that, expressly or by means of interpretation, could be considered contrary to such fundamental right. Indeed, such internal norm should necessarily be interpreted by internal and by international jurisdictional bodies in respect of the right of self-determination, in the sense of facilitating it and not of obstructing it. In case of flagrant contradiction by any domestic provision (whether legislative, executive or judiciary), such a provision must give in to the jus cogens and should ultimately be considered as null and void.

Finally, it is also irrelevant if any other Member State of the United Nations may have, at any particular point in time, expressly rejected the right of self-determination to any of its peoples (even if done by legislative or judiciary action), as it is obvious that the possible violation of fundamental international law by a given State (were that to be established by an international tribunal) does not authorize any other State to incur in a similar violation.

Conclusion: The right of self-determination exists in the internal national order of all the Member States of the United Nations, since it is jus cogens, an imperative norm of superior hierarchical rank, of mandatory compliance in accordance with the Charter of the United Nations.

Conclusion

The right of self-determination is jus cogens, fundamental norm of superior hierarchical rank, recognized by the United Nations founding treaty, and compulsory on any national or international provision that may conflict with it.

The right of self-determination refers to the peoples capacity to decide their political status. This includes the external exercise of the right of self-determination (deciding on secession or unification) as well as its internal exercise (deciding on the degree of integration in a State). The exercise of the right of self-determination entails the equal participation of peoples in decision-making in an ongoing dialogue in which the parties adjust and readjust their relationship in their mutual benefit. Self-determination is an expression of human dignity as a human right in its holistic dimension – collective and individual.

The right holders of the right of self-determination are “all peoples” without distinction. Although the definition of “people” does not yet exist internationally, in general it is recognized for a group of persons with a common historical tradition, an ethnic or racial identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection or a common economic life, with the awareness of being a people and the willingness to be recognized as such. Any arbitrary limitation of the right of self-determination only to some peoples (for example, those subjected to colonial domination) or only in certain historical moments in time (for example in situations of armed conflict) would be contrary to international law.

The duty bearer of the right of self-determination is “Every State”, whose institutions should not only respect the exercise of that right (for instance refraining from external interference) but also actively facilitate it, especially in relation to the peoples under its jurisdiction.

The principle of territorial integrity cannot be used as a pretext to undermine the responsibility of the State to protect the human rights of the peoples under its jurisdiction. The right of self-determination is a right recognized to peoples as right holders, and is not the prerogative of the State to grant it or negate it, not even on the basis of the principle of territorial integrity, unless there is external interference. In case of conflict between the principle of territorial integrity and the human right to self-determination, it is the latter which prevails.

Peoples should exercise the right of self-determination in a peaceful and democratic manner. States should facilitate such an exercise effectively, under conditions of equality, securing a permanent dialogue in their mutual benefit. All the organs of the State are bound by it; creating obstacles to the exercise of the right of self-determination would amount to a serious violation of a fundamental human right, and would result in the responsibility of the State.

The right of self-determination exists in the internal national order of all the Member States of the United Nations, since it is jus cogens, an imperative norm of superior hierarchical rank, of mandatory compliance in accordance with the Charter of the United Nations.

Prof. Dr. Alfred de Zayas

Independent Expert of the United Nations on the promotion of a democratic and equitable international order (2012-2018), 23 chemin des Crêts de Pregny, CH-1218 Grand Saconnex

March 2018

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