My name is Srinivas Burra. I teach at the Faculty of Legal Studies, South Asian University, New Delhi. The topic that I am going to discuss now is the right to self-determination. Right to self-determination. as part of international law in general and with specific reference to international human rights law.
As it stands today, right to self-determination constitutes a significant component of international human rights law of framework. In many respects reference is made to the significance of right to self-determination in a larger sense in terms of collective rights of the people. But if you look at the historical evolution of this legal concept or legal right that we understand it today had different origins in a historical sense. Before the Second World War that was prior to the adoption of the UN Charter and establishment of the United Nations.
The right to self-determination was not strictly considered as a legal right under the international law framework. Therefore, its origins could be traced back to in larger political sense where I think two individuals have significantly contributed towards the formulation of the principle. of right to self-determination. One is Lenin in the context of the right to self-determination of nationalities. In a similar sense, Woodrow Wilson also contributed towards the emergence of the principle of right to self-determination at the international level.
That both these the initiatives were happening either during the First World War or just after the First World War. But they remain largely as political slogans rather than as legal entitlements. Despite the fact that there was an emphasis at different levels on the right to self-determination at the international level during the First World War and just after the First World War, mostly in relation to the independence of nationalities and the rights of the minorities under international legal framework, but the right to self-determination has not attained the status of a legal right. under international law. So largely it remained as a more of a kind of a political assertion than of a legal right at the international level.
As a result of that one would come across the fact that the right to self-determination was not really referred to as part of the covenant of the League of Nations. Therefore, there is no reference to right to self-determination under the League of Nations framework. So, that continued for a longer period of time till the end of the Second World War. And the end of the Second World War, in fact, can be considered as a significant turning point in the history of right to self-determination because after the Second World War, one can emphatically argue that... the political slogan in the form of right to self-determination has attained the status of a legal right under the international legal international law framework and later on over a period of time it also attained the significance of a significant human rights in the sense of the collective rights of the people.
Now it started in the sense that how the transformation of a political slogan of right to self-determination transformed into a legal right can be looked at through some of the examples especially in the form of international treaty treaties. The first important treaty that one has to come across when one looks into the history of the right to self-determination. self-determination is the United Nations Charter.
United Nations Charter can be considered as a significant international development because after the failure of the League of Nations in many respects, which in fact was also a failure of the first international organization in a comprehensive sense, the UN Charter has established another international organization which can be considered as a significant contribution towards the... maintaining international relations. Therefore, if you look at the UN Charter, various provisions of it, and look for the right to self-determination, one comes across the reference to right to self-determination within the UN Charter framework in the purposes of the United Nations Charter, which are enshrined in Article 1. And if one looks at Article 1, Paragraph 2 of the United Nations Charter, it says that 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. In fact, this is the beginning.
This is how the political right of right to self-determination got into the international legal framework by way of its entry into an important international human rights treaty after the second world war that is the united nation charter and this is not the only place where a reference has been made to right to self-determination in the united nation charter there are several a few other provisions which also refer to either directly or indirectly to the right to self-determination for example article 55 which falls under the chapter 9 of the UN Charter which deals with international economic and social cooperation. It reads that with a view to the creation of conditions of stability and well-being which are necessary for the peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determinations of people the United Nations shall promote. It goes on like that. So that means a reference is again made to the right to self-determination of peoples. as part of the charter framework and further if you go into other aspects other other other chapters of the United Nations Charter especially in relation to chapter 11 which deals with the declaration regarding non-self-governing territories.
So this this this provision in certain respects makes a reference in an indirect form to the right to self-determination of the people. If you read article 73 of the of chapter 11 of the UN Charter it says that members of the United Nations which have assumed responsibility for the administration of territories whose people have not yet attained a full measure of self-government, recognize the principle that the interests of the inhabitants of these territories are paramount and accept as a sacred trust the obligation to promote to the utmost within the system of international peace and security established by the present charter the well-being of the inhabitants of these territories and to this end. And it goes on. So, therefore...
there are several places where a direct reference has been made to the right to self-determination within the UN Charter Framework and there are also other places where an indirect reference is made to the assertion of the right to self-determination of people or giving respect to the right to self-determination of the people. So therefore it is a clear example where in fact a break has taken place where the right to self-determination has moved from the understanding of a political assertion. to a concrete legal right which can be argued for by the people who would like to exercise the right to self-determination. Now this is what the United Nations Charter Framework which has in certain respects codified the right to self-determination.
But the work of the United Nations has not just ended with the mere inclusion of these provisions in the United Nations Charter Framework. After the Charter was adopted. there were several attempts made in terms of codifying international human rights framework.
And the major momentum towards adoption of the international human rights framework started with the adoption of Universal Declaration of Human Rights in 1948. And the entire human rights framework that has evolved, the post Second World War inclusion of the charter provisions as part of the charter framework have gone into other areas in terms of expansion by way of United Nations work into different aspects of the human rights. And right to self-determination has become part of the United Nations important human rights work. That can be looked at.
in a more significant form in the development of right to self-determination beyond the Charter by way of adoption of the General Assembly Resolution as was done by the General Assembly in few occasions. And the most important General Assembly Resolution which talks about the right to self-determination was the United Nations General Assembly Resolution 1514 which was adopted on 14th December 1960. This General Assembly resolution is known as the Declaration on the Granting of Independence to Colonial Countries and Peoples. This is the first significant contribution one can say that the United Nations has dealt with the right to self-determination after the United Nations Charter was adopted which included the right to self-determination as a treaty right. According to this resolution adopted by the United Nations General Assembly, All peoples have the right to self-determination.
So therefore, all the administrative powers who were exercising the governance were asked to take immediate steps to transfer power to those people who were who were who were being governed by by by other other states. So, therefore, the 1960 General Assembly resolution can be considered as a significant developments towards the process of decolonization which started within the United Nations framework. And this this this resolution should be looked at. in a historical sense and in a contextual sense also for the reason that this resolution was adopted in 1960 when the large number of states which are which got decolonized and emerged as post-colonial states have started getting into the United Nations framework and mainly within the United Nations General Assembly because it was not possible or it is still not possible to get into the United Nations Security Council whose membership is limited. So, therefore, all the members of the United Nations are part of the United Nations General Assembly.
So, the significant developments in terms of resolutions of radical nature of like the 1960 resolution on declaration on the Grand Slam. granting of independence to colonial countries were adopted within the United Nations General Assembly framework. So this is in respects have authoritatively established or paved the way in certain respects in a legal sense within the General Assembly framework towards the decolonization process. So in that sense it can be considered as an important and significant developments within the United Nations structures. so far as the legal articulation of the right to self-determination as it was enshrined in the UN Charter is concerned.
So these developments which started after the United Nations Charter beyond the Charter framework within the framework of the human rights have expanded beyond the General Assembly resolutions and that happened in a most significant form which can still be considered as a significant human rights that is the right to self-determination is that The adoption of the two important covenants within the field of international human rights law. These two important human rights covenants which are the international covenant on civil and political rights and the international covenant on economic, social and cultural rights which were adopted in 1966 specifically refer to the right to self-determination of the peoples. And the most important aspect of it is that in fact both the treaties in article 1 of the treaty.
use a similar language in relation to this right. This article reads that all peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.
It further goes that all peoples may, for their own ends, freely dispose of their natural wealth and resources. without any prejudice to any obligations arising out of international economic cooperation based upon the principles of mutual benefit and the international law. In no case may a people be deprived of its own means of substance.
The state parties of the present government include those having the responsibility for the administration of non-self-government and trust territories. Shall promote the realization of the right of self-determination and shall respect that right so this provision goes on and talks about the right to self-determination of the people and the underlining aspect of this provision is that the Similar language used both in international covenant on civil and political rights as well as in international covenant on economic social and cultural Rights that means that this right is has both political connotations as well as in terms of economic sovereignty it talks about. So, since these two important treaties specifically deal with the right to self-determination or human rights of individuals and in certain respects collectives at the international level and both the treaties do recognize the right to self-determination means that the right to self-determination as a human right has been as well entrenched into the international human rights treaty couples with the.
adoption of these two important human rights treaties. Further it should be stated that along with these rights for example if you also have other important international treaties which were adopted later to the adoption of these two important international treaties dealing with human rights that is that the friendly relations declaration. The friendly relations declaration also very specifically talks about the right to self-determination of the peoples.
So, altogether including the United Nations Charter Framework, the 1960 resolution on the question of declaration on the granting of independence to colonial countries and peoples and the reference made in Article 1 of the Covenants of the ICCPR and ICECR as well as the Friendly Relations Declaration. constitute an important international legal framework so far as the right to self-determination as a human rights is concerned. One can argue that the declaration on the granting of independence to colonial countries was a General Assembly resolution.
In a similar lines, Friendly Relations Declaration is also a resolution adopted by the United Nations General Assembly. So, in comparison to the United Nations Charter and both the covenants which are full-fledged international treaties. treaties, these two are in a relative sense are not legally binding in nature that is the declaration granting of independence to colonial countries as well as the friendly relations declaration. But both these resolutions along with these treaties can be considered as a clear articulation of the will of the states and the peoples across the world especially those states which were under the Yoke of colonialism started as setting the angels and asked for the right to self-determination of the peoples at the international level in the form of a legal right.
Apart from these the human rights framework, if one slightly moves away from the human rights and talks about the humanitarian law framework, where in fact all the national liberation movements after the 1977 Protocol 1. were considered as international armed conflicts. There also an emphasis is made that they are clear entities different from the colonial powers therefore, any kind of an armed conflict taking place between the colonial power. and the colonized ah should be considered as an international armed conflict therefore, the entire international human humanitarian law applicable to international armed conflicts was extended to these kind of colonial struggles in the form of armed conflict. So therefore, the expansion of the right or the inclusion of the right to self-determination was not only limited to the human rights framework, but in certain respect it also entered into the corpus of international humanitarian law. also.
So, therefore, if one looks at the legal status or the human rights status of the right to self-determination, these aspects that is that its inclusion into the international humanitarian law framework or recognition in certain respects can be considered as a as a kind of a supporting evidence to show that how significant the right to self-determination has become part of international human rights law framework. So, this is this is a legal framework that has come into existence. post Second World War that is that to from the political articulation to a legal assertion in the form of United Nations Charter followed by the General Assembly resolutions on the granting of independence to colonial territories.
Then inclusion into the two human rights treaties followed by the friendly relations declaration and also inclusion or reference or recognition as part of the international humanitarian law as international armed conflict together can be constituted. as a larger legal framework at the international level that exists today in relation to the right to self-determination. Now this is the legal framework that is that that has come into existence so far, but at the jurisprudence level that is that how the courts have if there was any if there are matters in relation to right to self-determination how the courts have responded.
In most of the circumstances the international courts particularly the international court of justice has responded positively in terms of recognition of the right to self-determination. of the people. The examples can be that South Africa's, South West Africa's issue or Western Sahara's advisory opinion followed by the cases in relation to East Timor and the construction of the wall on the and the territory occupied territories of Palestine. In all these cases a reference is can be clearly established towards the recognition of the right to self-determination of the of the peoples who are under occupation. who are subjected to external political domination both in political sense as well as in economic sense.
So, therefore, one can very clearly and emphatically establish that the emergence of the right to self-determination as part of human rights law has also been so far accepted or asserted by the international jurisprudence in the form of the Constitution. form of the judgments delivered or advisory opinion and advisory opinions delivered by the International Court of Justice on several occasions. This was further was established by the International Court of Justice in the advisory opinion in relation to the Kosovo which was which is the latest.
A reference to the right to self-determination where the International Court of Justice has very clearly said that there is no prohibition on the right to self-determination under international law. So, therefore, if a set of peoples determined to declare themselves as right to self-determination, one is free to, the set of people are free to go ahead with the right to self-determination. the declaration of right to self-determination which we which we for on which there is no prohibition under international law. So, this is the position which has been taken by the international court of justice in the sense of right to self-determination.
This this very clearly establishes that the existing treaty framework as well as the jurisprudence is in favor of recognizing the right to self-determination as a significant rise part of international law. But how this right to self-determination can be realized, what are its constituent elements in what in which what kind of circumstances this right can the right can be exercised by the peoples who claim to be exercising this right to self-determination. There is seems to be a almost a uniform understanding with regard to the existence of right to self-determination of under international law. But there does not seem to be a uniform understanding in relation to what constitutes or in relation to what are the constituent elements of the right to self-determination under international law.
That can be reflected at various levels from different groups of states or different states. If you look at the covenants which which to to which states have become parties as part of the human rights law framework did express certain reservations when they became parties to these two covenants that is covenant on civil and political rights and covenant on economic, social and cultural rights. A good example of the right to self-determination and reservations being put on it can be looked at from India's declaration when it became a party to both the covenants. India made a declaration which can also be declaration one can say the oblique reservation when it became a party to both the covenants. India became a party to these covenants in 1979. While becoming a party it made certain declaration.
The first declaration is made to article 1 of the both the covenants. This article deals with as I as I already pointed out to right to self determinations of people to determine their political status and to pursue. economic, social and cultural development.
So, India made several declarations to these two covenants when it became a party in 1979. But the first declaration refers to the article 1 of the both the covenants. This declaration says that with reference to article 1 of the international covenant on economic, social and cultural rights and article 1 of the international under political rights. The government of Republic of India declares that the words the right of self-determination appearing in this article apply only to peoples under foreign domination and that these words do not apply to sovereign independent states or to a section of the people or nation which is the which is the essence of national integrity. So the declaration very clearly says that the right to self-determination can be applied to only those situations. situations where peoples are under foreign domination and this right does not apply to sovereign independent states or to a section of the people or nation.
That means that this right cannot be exercised or asserted by people in independent state in the sense of the term post-colonial independent state which got independence from colonialism. So, the understanding of this declaration which may which generally can be shared by many states and these states in fact are post-colonial states is that they would clearly want to confine the right to self-determination only to classical colonial situations, but not to allow it to be extended to the present position where the independence. this kind of rights assertion is being made on their own territories which are otherwise can be considered as independent states.
So, that means that India and similarly placed countries like to understand the right to self-determination in narrow sense. The narrow sense of the term that is to confine it to only colonial situations. Now, this is the one of the contentious issues with regard to the right to self-determination in most of the situations. This is how it has it is looked at by most of the governments and on the other hand those people who are accepting the right to self-determination are trying to look at it in a more expansive way by including those situations.
which in fact do exist in the form of violation of right to self-determination in the independent states. Now whether this is if this is the situation which means that there is a uniform or relatively uniform understanding or uniformity in relation to the existence of the right to self-determination as part of international law. That means that there is not much of opposition to the existence of a right to self-determination under international law.
That there is a there is seems to be an opposition in a more dominant way is to the constituent elements of the right to self-determination. And one of the important aspects is that as to what are involved which context the right to self-determination can be exercised by the people who are under domination who are being nominated by others. So, the clear reflection is at least most of the developing countries who which are also post-colonial states who argue themselves as independent states. I say that the right to self-denomination in their context does not exist because the right to self-denomination is specifically meant for colonial situations only.
Now, the question arises is, is it a right way of interpretation of the right to self-denomination under international law? One can those who are arguing it with regard to the narrow sense of the term that is right to self-denomination may say that the friend relations declaration also in certain respects puts this condition where the right to self-determination may not be extended to independent states. But both the covenants, the covenant on civil and political rights and the covenant on economic, social and cultural rights where in fact the right to self-determination got a clear articulation in the form of human rights do not really put any form of conditions describing it as a right only in relation to classical colonial situation. So, in the absence of a clear reference to the colonial situation in the treaty framework, whether this right should be understood as only within the framework of the classical colonial situation. If one goes into the details of it, it is an undeniable fact that the right to self-determination which was largely seen as a political assertion prior to Second World War got the articulation in the form of a a legal right only after the Second World War and predominantly in the process of decolonization.
So, during the process of decolonization, in fact, the right to self-determination attained the proper legal sense. Therefore, does that create an argument, a strong argument to see, to say that this right is only specifically meant for. right to colonial situations. In fact, that is in my view that I think cannot be seen as a strong argument for the simple reason is that the right to self-determination is an outstanding contribution in forms of political assertion at the international level.
national level not because it emerged in the colonial context, but because it it it it is asserted against domination of different forms. So, that means, that the strength of the right or the constituent elements of the right to self-determination are or not the colonial situation, but of its assertion against domination. So, the colonial situation was one situation, a historical context in which this right came into existence and this was articulated and assertive. That does not confine this right just because it emerged in a colonial context. That context does not limit this right only to colonial domination because the progressive element of this right goes beyond colonial situation and it talks about or against domination.
So, therefore, any form of a domination both political, economic and cultural domination that exists at the international level even if it is not a colonial situation this right needs to be articulated at least it should be argued that this right has to be extended to other forms of domination that exist across the world. Otherwise, in fact the universality of human rights is not contextual when you argue that there are certain fundamental rights which are universal. universal, the understanding is that their constitutive elements are not governed by context and they are universal in nature. In whatever the context that they have emerged should be extended to other situations also wherever such kind of violations do take place. If you extend that argument in relation to the right to self-determination and also taking reference from the International Court of Justice reference that right to self-determination can be considered as an against.
against everybody in the form of a obligation ergo omnis. Therefore, this right has to be looked at in a universal sense and any form of confining it to colonial sense makes it a narrow right. I think that is not in the right spirit of the right to self-determination, which also has the potential to be used as an important right against all forms of domination that exist across the world today.
Thank you.