Current Issues and Research in International Law
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This paper will evaluate the scope doctrine of self-determination in international law with special reference to issue of democratic governance. It will outline the relevant sources of the doctrine as contained in UNGA resolutions 1514, 1541 and 2625 and the jurisprudence in the Western Sahara case. The paper will then focus on the way in which Franck approaches the issue of "self" in self-determination and discuss his idea that self-determination must include the ability of the people of a territory to govern themselves through democratic means. The paper will consider any legal responsibilities that the international community might have to peoples who are denied this right, taking into account the doctrines of sovereignty and non-interference; and the powers of the United Nations Security Council. The paper will make reference to at least one of the works one of Burchill, Marks or Fox and Roth and to the relevant provisions of the International Covenant on Civil and Political Rights 1966.
Self-determination in international law is a concept that purports that a ‘people’ have a legal right to choose (or reject) their sovereignty without coercion or influence from external forces. The doctrine of self-determination has its roots in the wars of the world where groups have come clashing with powers that be or other groups competing for the same space. In order to understand the basis for the doctrine of self-determination, it is imperative to also consider the basis for a state, the entity that stirs interest when it comes to self-determination of peoples. The doctrine of self-determination was chartered by the United Nations General Assembly (hereinafter referred to as UNGA) in several resolutions that sought to bring to an end the spirit and era of colonialism (UNGA 1514), to recognize the formal appearance of the non self-governing territories and the need to make them fully self-governed (UNGA 1541) and
lastly to bring all states to a point of international co-operation and friendly relations between states as equals (UNGA 2625). United Nations came to reaffirm faith in the independence of states and the belief that all men and women everywhere are equal. That a people have a right of self-determination is central to the United Nations Charter on peace building around the world.
Right of self-determination was not clearly defined in the years before World War I (WWI). Nations in the colonial era were denied that right or more correctly did not get recognized as nations that had the right of self-determination. Most of the countries in Asia and Africa were forced to work for and live by the administrative enforcement of their colonial masters. WWI, which was referred to as the “War to end all Wars,” brought some significant changes to some increasingly powerful nations such as the USA.
The United States of America begun to engineer a process through their declaration of Independence and affirmed that all men are born equal. President Washington of the United States wrote to congress that self-determination was a much needed political and legal right that all people of the earth were entitled to. He explained that “right of self-determination was an imperative principle of political action that must be enforced by all nations.” New States at this time were in the offing.
According to Smith, for a nation to be considered a state it has to possess three important components; one, a community must occupy space and time for a continuous period with the intention of settling there; two, a community must have emerging relatively permanent political institutions with roles that serve the community; lastly, the community’s loyalty must shift from individuals to the values, norms and creed held by an emerging political and administrative outfit that services the community in general.
The Declarative Theory on Statehood derived from the International Law defines a State as an entity with permanent population, government, territory with boundaries within which it can exercise her internal and external sovereignty and complete Independence/self-rule and ability to enter into diplomatic relations with other sovereign states. (Brownlie, 2008) These requirements for statehood meant that other nations had to cease control and let those countries under their receivership develop autonomy of governance without external interference.
Self-determination took shape in the years following World War II (WWII), which was considered as the war to reign in democracy and self-rule. Powerful nations reconvened and disbanded the League of Nations with the formation of United Nations. Central to the core values of the United Nations became, and still is, freedom for all peoples and the peaceful co-existence of all nations. The need to move towards the independence of colonies was seen as an important step towards the self-government of all colonial states and therefore the development of those people and their nations.
The scramble for nationalism and self-determination of states begun and many nations after the WWII asserted themselves as independent states with their own leadership and political administrations. The United Nations played a critical role in the 1960s as it moved to abolish colonies and restore leadership to the colonies through the various UNGA resolutions to which powerful nations accented to.
So far known states had claimed sovereignty and the concept of political self-determination had taken place. However, Western Sahara still remains a unique station. This country, which is largely a desert, was highly contested by Mauritius and Morocco. Today, Morocco backed by France remains the only country that has control over the largest divisions of Western Sahara. In 2007 the United Nations engaged Morocco in talks about the autonomy of governance for the region and Morocco came up with a plan to speed up the process and oversee a referendum for self-determination in the state to that effect.
Given that Western Sahara remains one of the most sparsely populated nations of the world, any initiative to bring people together in unity of purpose had initially failed. This process made the amalgamation into statehood almost impossible as Smith says in his argument on grounds for statehood. The same conditions made Western Sahara easy prey to re-colonization through successive regimes and altogether difficult for any group for example the Sahrawi Arab Democratic Republic to organize good leadership. The lack of governance in the Western Sahara has made it revert to a state called the unfinished decolonization.
Higgins argues contrary to many theorists on International law that “There is no legal right of secession where there is a representative Government.” (Higgins, 1997) In the case of Western Sahara she sees the nation as living in a delicate balance where Morocco is not fully obliged to legally cede Western Sahara full independence because of the representation of governance in place. While Higgins is seen as an enthusiast of the tenets of United Nations, in the case of self-determination of countries which are not fully self-governed she takes a major philosophical departure. She argues that securities of democracy cannot be guaranteed under receivership and therefore unless and until a country is fully stable and ready for independence it should remain in the shadow of the representative government. The view in this case is not really one that denies the tenets of United Nations but rather addresses fears associated with the manipulation of the process of democracy in a country whose independence is delicately underway.
The right to self-determination was legitimized by the UNGA resolutions and not only that but also the process of aiding those nations that were not yet fully self-governed to attain sovereignty through self-rule and to be admitted in the charter of the United Nations. This increased need for autonomy of self-determination led to the birth of democracy in varied and different ways that promoted growth at individual and collectively at societal level.
The interaction of states on the international platform as equals underlies a much bigger process underneath and behind every state. Since the conformity of working relations is dependent on democracy and free associations, then governments seeking to solidify their relations with other nations must conform to certain liberal approaches in how they govern their subjects. Franck says that the democratization process within a country has international ramifications. He argues that if nations must become compliant with most of the resolutions of the charter of United Nations on Human rights and such affairs as would include governance, then they are bound to revise their general norms of governance to allow for the much needed democratic space for political action.
The pressure from people has increasingly yielded democratic results starting from the push for reforms in many countries with rigid constitutions. The electorate has played a critical role in determining who goes to the highest office in the land and consequently who represents them and their views on the international stage. According to Franck Democracy has become a global entitlement promoted and protected by collective international processes.
In general terms therefore in the words of Franck ‘democracy validates government.’ Since political groups wish to stay in power then they are constantly put to task to work with the will of the people.
Initially, democracy was not considered a keeping of the United Nations but was esteemed as an internal or domestic affair. According to Burchill;
“Only after the Cold War did international law dare to address the question of democracy; it had previously generally been considered to be a ‘domestic’ issue and thus not subject to international scrutiny. The events of 1989–1991 led to the embrace of democracy in many countries.”
The nature of Cold War forced nations to take a back seat in affairs of the more oppressed nations because of the relationships that were at stake. Nations did not exactly go to war with each other at this period but threats of emerging war fronts and unscrupulous manufacturing of weapons of mass destruction scared nations into alliances and DEFCON preparations. International community therefore, in avoiding to infringe on the sovereignty of nations and thus trigger another World War, did not have specific guidelines on rules or resolutions on democracy. Nevertheless, due to the norms that underscore the communion of International Community it became increasingly clear that self-determination was a process that was not complete without democratic processes that helped install leaders as statesmen. If countries did not have a choice regarding the leadership that would represent them in the international negotiations then it meant that the nation was still not freely governed and therefore not self-determined.
These constituent ideals of democracy have seen communities go to war in order to reaffirm their faith on this foundation. Whether the war is civil or ideological, the same principles come crushing through. Democracy therefore has taken a legitimate incontestable position in the hearts and minds of the people. The principles of democracy are written all over the United Nations charter in various forms and requirements. The agreements that are entered into by nations are voluntary and bear no obligations except to the point where an agreement has been entered into. When nations thus bind themselves to these obligations then they are morally expected to deal judiciously with their citizens if they are to expect the same treatment extended to them by the international community. In time and in practice these values of equality and upholding of human rights have been transformed to become more than principles or etiquettes of dealership.
The principles of democracy in many countries have become part of the law drafted to safeguard the sovereignty of a nation through the independence of the peoples of that nation. Democracy has therefore become a norm and an inviolable non-negotiable right however tumultuous the process of attaining democracy can be for a country. Fox and Roth have drawn two sources or forms of democracy on the international stage. The first notion is that democracy is a right and that the legitimacy of governments is dependent on the democratic space in their country. The second notion in academic discourse entails the determination and theorizing of evidence of democracy as a yard stick for legitimacy of governments. They submit that even Western countries, which have a much more mature democracy, still struggle with internal democratic arrangements.
The process of self-determination therefore becomes synonymous with democracy in any given country. Democracy has been reaffirmed time and again in the dealings that nations engage with each other. Since most of the countries affected by dictatorship are third world, one of the ways in which these countries have been encouraged to adopt democratic processes is through pledging democracy as collateral for aid. According to Susan Marks democracy in some other instances has been held as a condition that is part of a country’s territorial sovereignty. One hundred countries ratified the Declaration of the Community of Democracies document in reaffirming their faith in the legitimacy of democracy in sovereignty.
When a country’s democracy is threatened either by internal or external forces so does its legal right to self-determination. Countries that are torn by strife and civil war are hardly stable and therefore lack competent governance that can uphold and defend democracy. International community in this regard has a responsibility to help restore order and normalcy in these nations. The United Nations comes in as an arbiter or a mediator between the warring parties within the society. Barnes says that at this point the responsibility of the international community is to explore the possibility of power sharing in cases of insoluble or extreme conflicts. (Barnes, 2001)
The objective is to maintain peace through an evasive non-violent deal and jumpstart a process of reconciliation between the warring parties. The process continues to the place where the United Nation sponsors a process of constitutional nature so that peace is not only kept but guaranteed in the future in case similar conflicts occur.
Another challenge of democracy is the minority groups seeking self-determination. Secession of a state within a confederation is only possible with the consent of confederate states. A case in point is the American Supreme Court ruling in Texas V. White in which the high court judge ruled that it was possible for a state to secede from the federation only with the consent of the rest of the confederate states. (Pavkovic & Radan, 2003) Therefore, for sub-groups within larger states to seek self-determination would mean that a referendum would be established in keeping with the constitution of the land, which is the supreme law.
International communities cannot act contrary to the opinion of the majority however noble their course is in an area faced by secession. The wish of the majority which is taken as the popular democracy carries the day in a ‘winner takes all’ fashion. A case in point is the Western Australia secession bid from Federate Australia. The proponents wanted to split with Federate Australia because the majority of that federate unit wished so but the Joint Select Committee of British Parliament ruled against them since the majority confederates were not of the idea of the secession of Western Australia from the Confederation. (Pavkovic & Radan, 2003) The international community therefore in promoting and sustaining democracy among warring nations evaluate positions with a key eye on where the scales fall in relation to popular democracy.
On the other hand, in the event a successful secession occurs and emerging New Nations decide to self-govern themselves then the United Nations has made provisions on how that would take place. According to Pavkovic and Radan, the Yugoslav wars set the first application for the use of internal boundaries to become international boundaries.
They said, regarding the state divisions of Yugoslav: “In its wisdom, the international community ordained that the existing internal borders of the seceding Yugoslav republics were to be transformed into international borders.In essence, the principle of uti possidetis juris mandated that the borders of former colonial entities became international borders of the state following decolonization.” (Pavkovic & Radan, 2003)
However, when the threat to democracy is external, then the United Nations have an even greater role to play. The threat of peace due to clashing of sovereign nations can be far more retrogressive in promoting the equality of nations in sovereignty according to the UNGA resolutions. The United Nations Security Council is empowered to move in swiftly in peace keeping missions around the world and quell a mutiny at least until a political solution is arrived at. The Security Council takes a neutral stance in regard to disputed zones and their presence in those areas is to keep violent armed conflict in check. Meanwhile United Nations convene meetings with neighbouring countries to the affected or countries with a sense of political affinity with the affected in order to find an amicable solution.
In conclusion, the process of democratization is synonymous to the sovereignty of nations. The birth of democracy has come along way in determining whether a country is independent and therefore sovereign. The notion of democracy has always existed in the minds and hearts of people in their pursuit of independence from colonialism and continues to persist past the corridors of independence. As long as there is some form of limitation of choice whether in semi-autonomous states or in dictatorial regimes, the will of the people expressed in democracy has and will always force nations to change in that regard. International Law thus in recognition of this norm has legitimized the right to democracy as a prerequisite for recognition of sovereign nations seeking partnerships and favours. Democracy among the nations of the earth has developed to become recognized as a right and not just a principle in practice. The current move in international community is to promote democracy as part of self-determination to the place where it can be recognized as a law on its own in a bid to end the strife attached to dictatorial regimes and promote cohesion and peaceful coexistence of nations as equal sovereigns.
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