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The right to self-determination: an international criminal law perspective Lee, Joanne Elizabeth 2000

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THE RIGHT TO SELF-DETERMINATION: AN INTERNATIONAL CRIMINAL LAW PERSPECTIVE by JOANNE ELIZABETH LEE BA (Hons), The Flinders University of South Australia, 1988 LLB (Hons), The Northern Territory University, 1997 Graduate Diploma in Legal Practice (Merit), The Australian National University, 1997 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (FACULTY OF LAW) We accept this thesis as conforming to the required standard. THE LTNTVERSITY OF BRITISH COLUMBIA December 2000 © Joanne E. Lee, 2000 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada DE-6 (2/88) (ii) ABSTRACT Recent events in East Timor and other regions have highlighted the dangers of leaving issues of self-determination unresolved for too long. Despite the tact that self-determination is one of the guiding principles of the UN Charter, many controversies over its precise meaning and application continue to preclude a coherent, comprehensive approach to the principle by Stales. This thesis analyses the main controversies over the right of all peoples to self-determination and suggests some conclusions as to the present status of this right under international law. The author also analyses potential approaches to enforcing a legitimate right to self-determination and concludes that there appears to be no effective enforcement mechanism, unless one has the support of a sovereign State in advocating one's cause. Historically, realisation of this right has more often involved a successful campaign of violence or coercion against the party denying the right, and subsequent recognition by the international community of the legitimacy of the campaign. Clearly, this situation is not conducive to international peace and security. The author argues that international criminal law may provide the only effective means of enforcing legitimate rights to self-determination at this time. This conclusion is drawn with reference to Professor M. Cherif Bassiouni's theory of five stages through which a human right evolves, from a mere aspiration, to a right whose breach attracts penal proscriptions. Bassiouni argues that, in international law, a human right becomes a suitable subject for international criminal law when effective enforcement modalities for that right have failed. The thesis concludes with a suggestion that the right to self-determination may be one of the rights protected under the 1998 Rome Statute of the International Criminal Court, within the definition of the crime against humanity of "persecution" (article 7(l)(h) & (2)(g)). TABLE OF CONTENTS Abstract -. («) Acknowledgements (^0 Chapter One: Introduction 1 1.1 Literature review 4 1.2 Methodology 10 1.3 Self-determination and nationalism 18 1.4 Self-determination and theories of international law 20 1.5 Overview of chapters 31 Chapter Two: The Philosophical and Political Basis of the Principle of Self-Determination 32 2.1 Self-detennination and "freedom" 33 2.2 The rise of "natural law" theories 38 2.3 The American and French revolutions 42 2.4 Latin American decolonisation and "uti possidetis" 44 2.5 The "scramble for Africa" 46 2.6 The "postcolonial" legacy 49 2.7 The first World War 52 2.8 Conclusion 54 Chapter Three: The "Enunciative Stage" of the Principle of Self-Determination 57 3.1 The aftermath of the first World War 59 3.2 Post-war developments in the communist States 62 3.3 Minority protection treaties 65 3.4 The League of Nations and the Mandate System 68 iv (Chapter Three - continued) 3.5 The demise of the League of Nations 74 3.6 Conclusions 75 3.6.1 "Freewill" 76 3.6.2 Equality 83 3.6.3 The "social contract", or "consent of the governed" 88 3.6.4 "Internationally perceived shared values" in practice 89 Chapter Four: The "Declarative Stage" of the Principle of Self-Determination 91 4.1 Minority rights after the second World War 93 4.2 Article 73 and the "principle of setf-deteimination" 98 4.3 The end of the British Palestine Mandate 105 4.4 The "liberation" of Tibet and Mongolia 110 4.5 Conclusions 114 Chapter Five: The "Prescriptive Stage" of the Right to Self-Determination 116 5.1 The 1960 resolutions on setf-determination 116 5.2 Some immediate results of the new approach 121 5.3 The human rights covenants and the right to setf-determination 125 5.4 Minority rights 128 5.5 Self-determination in Africa and "utipossidetis" 133 5.6 Developments in Israel during the 1960's 138 5.7 Conclusions 140 Chapter Six: The Current Status of the Right to Self-Determination 142 6.1 The "enforcement stage" of the right to seh°-determination 143 6.2 Setf-detennination as the right to decolonisation 147 6.3 Self-determination as the right to territorial integrity 155 (Chapter Six - continued) 6.4 National constitution 161 6.5 The right of indigenous peoples to self-detennination 167 6.6 Minority rights to setf-detennination 171 6.6.1 "Internal" self-detemimation in operation in Palestine 174 6.6.2 Conclusions as to the rights of minorities to self-determination. 178 6.7 The right of all peoples to internal self-determination 179 6.8 Enforcement of the right to setf-detennination 180 6.9 National liberation movements 184 6.10 Summary of current status of seh>deteimination 195 6.11 Conclusion 199 Chapter Seven: Conclusion - Potential Criminal Proscriptions for Severe Breaches of the Right to Self-Determination 201 7.1 Early steps in the "criminalisation stage" of human rights 202 7.2 The legacy of Nuremberg and Tokyo 209 7.3 The lead-up to the Rome Conference and Statute 217 7.4 Conclusion: Setf-detennination and the Rome Statute 219 Bibliography 224 V-1 ACKNOWLEDGEMENTS The author would like to express her deep gratitude to all those who have assisted in the creation of this thesis, either directly by providing insightful comments, or by providing the circumstances necessary to facilitate its production. In this regard, special thanks are due to Professor Peter Burns, who both supervised and facilitated this thesis with great patience, and to Mr. Daniel C. Prefontaine QC, second reader, and Executive Director, International Centre for Criminal Law Reform & Criminal Justice Policy, Vancouver, as well as to all those involved with the Centre, where this thesis took its final shape. Heartfelt thanks also to the many other people who contributed invaluable comments at various stages throughout the process, especially those who so graciously volunteered to be "second reader", even if only temporarily: Professors Ivan Head, and Douglas Sanders. The author would also like to thank her other colleagues in the Faculty of Law and at St. John's College, UBC, who provided endless encouragement and inspiration. Every contribution was greatly appreciated. May God bless you all for your generosity. -1 Chapter One: Introduction "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law."' Recent events in East Timor and other regions have highlighted the dangers of leaving issues of self-determination unresolved for too long. Despite the fact that self-determination is one of the guiding principles of the UN Charter, many controversies over its precise meaning and application continue to preclude a coherent, comprehensive approach to the principle by States. There is still no effective means of enforcing one's right to self-determination, if one lacks the support of a sovereign State in advocating one's cause. Historically, realisation of this right has often involved a successful campaign of violence against, or coercion of, the party denying the right, and subsequent recognition by the international community of the legitimacy of the campaign. Clearly, this situation is not conducive to international peace and security."2 Many of the most intractable international and internal conflicts this century all revolve around questions of setf-detennination, or problems that have been created by a particular approach to self-determination3 At the same time, the term "self-detennination" has become synonymous for "secession", thereby sounding alarm bells whenever it is mentioned outside the context of decolonisation (as the latter was understood when the UN Charter was created). Thus, even where the concept of self-determination is relevant in the non-secessionist sense, the actual expression "self-1 Preambular paragraph 3, Universal Declaration of Human Rights, 1948, UN Doc. A/1811. 2 Cf. C. Tomuschat, "Self-Determination in a Post-Colonial World", [hereinafter Tomuschat, "Self-Determination"] in C. Tomuschat, ed., Modern Law ofSelf-Determination, (Dordrecht, Netherlands: Martinus Nijhoff Publishers, 1993) 1 at 18-19 [hereinafter: Tomuschat, "Modern Law"]. 3 For example: East Timor, Former Yugoslavia, Israel/Palestine, Northern Ireland, Sri Lanka, Tibet, and Western Sahara. 1 -2-determination" is avoided, in order not to raise expectations and concerns.4 Professor Morton Halperin and several colleagues recently suggested: "Self-determination movements are decidedly not all alike or even similar to each other. As a first step toward a modern approach, governments must adopt a broader and less alarmist view of self-determination. The full exercise of self-determination need not result in the outcome predicted by those who would discredit the principle - independent statehood for every single ethnic group. Rather, the full exercise of self-determination can lead to a number of outcomes, ranging from minority-rights protections, to cultural or political autonomy, to independent statehood. The principle of self-determination is best viewed as entitling a people to choose its political allegiance, to influence the political order under which it lives, and to preserve its cultural, ethnic, historical, or territorial identity. Often, although not always, these objectives can be achieved with less than full independence."5 [my emphasis] This thesis will analyse the main controversies surrounding the right to self-determination in international law, and draw some conclusions as to its current status. It will also analyse the mechanisms that are currently available which potentially could provide a means of enforcing this right, and concludes that these are inadequate to address the majority of concerns of those agitating legitimately for self-detennination. As the title of the thesis suggests, the right to setf-detenriination will also be analysed from an international criminal law perspective. In other words, the thesis explores the possibility of providing criminal proscriptions for grave breaches of the right to self-detenrunation, in much the same way as international criminal law in the twentieth century developed proscriptions for grave breaches of other important human rights, such as the rights to be free from torture, from persecution, and from egregious discrimination based on one's race, ethnicity, nationality, or religious beliefs.6 4 For example, Security Council Resolution 1244 (1999) on the future of Kosovo, only provided for "provisional institutions for democratic and autonomous self-government", and avoided mention of any possible right to internal self-determination for Kosovo Albanians. Cf. Chapter Six, below, on the rights of minority groups to self-determination. 5 M.H. Halperin, D.J. Scheffer & P.L. Small, Self-Determination in the New World Order, (Washington, DC: Carnegie Endowment for International Peace, 1992) at 46. 6 Cf. Discussion in Chapter Seven of the crimes prosecuted at the Nuremberg Tribunal, and the subsequent "criminalisation'' of grave breaches of human rights throughout the twentieth century, leading up to the 2 -3-This analysis will involve answering the following questions: (i) what does "a right to self-determination" mean in international law? ie. who holds such a right and what does it entail for them? (ii) what would constitute a "grave breach" of that right for them? (iii) how does any particular breach of a human right attract criminal sanctions? in what circumstances? who decides? (iv) could a "grave breach" of a right to self-determination ever be considered as warranting criminal sanction? why, or why not? what authority is there to suggest that a breach of the right to self-determination is or is not an appropriate area of concern for international criminal law? As many writers have noted, there is considerable confusion as to the definition of a "right to self-determination", and even less clarity as to who may assert this right as a matter of international law.7 Professor Ofuatey-Kodjoe points out that the confusion largely stems from the tendency of many commentators to focus on the political or philosophical underpinnings of the concept, without placing it in a sufficiently pragmatic, normative context.8 He insists that the right to self-determination can be defined with sufficient legal clarity, simply by analysing international practice and identifying the "implied core, or nexus, that represents that part of the practice that the states accept as binding."9 This process of analysis necessarily is an ongoing one. State practice in relation to claims of self-deterrnination continues to take different forms in different contexts, depending upon many variables, not the least of which is the passage of time.10 Between 1945 and 1966 alone, self-determination evolved from a "principle" guiding the development of "friendly relations among nations",11 to the drafting of the Rome Statute of the International Criminal Court, UN website on the International Criminal Court [hereinafter "ICC"], online: <http://www.un.org/law/icc/statute/99_corr/cstatute.htm> (last visited 19 January 2000) [hereinafter: "Rome Statute"], which was adopted in July 1998, and will enter into force when sixty States have ratified it (article 126, Rome Statute) As at 12 December 2000, 26 States had ratified the Statute and 120 had signed, suggesting that the Statute may enter into force within the next few years: cf. UN website on the ICC, online: <http://un.org/icc/>. 7 Cf. Select Bibliography, below. 8 O. Qmatey-Kodjoe, The Principle of Self-Determination in International Law, (New York: Transnational Publishers, 1977) at vii. See also T. Becker, "Setf-Detennination in Perspective: Palestinian Claims to Statehood and the Relativity of the Right to Self-Determination", (1998) 32 Is. L. R. 301 at 301. 9 Ofuatey-Kodjoe, ibid, at ix. 1 0 For example, international support for the recent referendum held in East Timor, and recent developments in the peace process in Israel, represent significant policy shifts amongst the key players, in terms of recognising and enforcing the rights of persons living in "occupied territories". 11 Article 1.2, Charter of the United Nations 3 -4-"right" of "all peoples ... to freely determine their political status and freely pursue their economic, social and cultural development."12 A contemporary understanding of this right thus requires some analysis of recent State practice and opinio juris, in order to assess its current status in international law. However, it is also important to appreciate the philosophical and political origins of the principle of self-detennination, in order to place in perspective current controversies over the right to self-determination. Ofuatey-Kodjoe does not deny that claims to self-determination are based on theoretical concepts. For example, his definition of the "beneficiary" of a right to self-determination, based on his analysis of State practice at the time, is "a self-conscious politically coherent community that is under the political subjugation of another community."13 [emphasis in original] The notion of the "self-consciousness" of a community is at least partly subjective, and implies that some form of existential analysis is required. Thus, an appropriate starting point for any discussion of self-determination is in philosophy. However, I hope to avoid the current trend amongst commentators to leave this most important of rights suspended in the abstract,14 and will attempt to marry the philosophical with the normative as much as possible in the following chapters. 1.1 Literature review It is well beyond the scope of this thesis to attempt an exhaustive analysis of the evolution of the right to self-detennination and its relationship with developments in international criminal law.15 Therefore, in the chapters that follow, I will highUght only the major developments in this process, both in theory and practice, without necessarily elaborating on every development. In this way, I hope to identify key 1 2 Common article 1, International Covenant on Civil and Political Rights [hereinafter: "ICCPR"] and International Covenant on Economic, Social and Cultural Rights [hereinafter: "ICESCR"]. 1 3 Ofuatey-Kodjoe, supra, at 156. (nb. this book was published in 1977, more than twenty years ago, and thus Ofuatey-Kodjoe's conclusions do not necessarily reflect the current state of the law). 1 4 As Phillip Allott notes, The impulse [of international lawyers] seems to be to abstract the idea in question from the frenzied dialectic of national and international politics, to launder it into a value-beyond-value, a value which can then be incorporated into a law-beyond-law": P. Allott, "Self-determination - Absolute Right or Social Poetry?", in Tomuschat, "Modern Law", supra, 177 at 207. 1 5 For further guidance, see "Select Bibliography". 4 indicators of "the implied core" that States consider as binding, as it has evolved over time to its present state, with respect to the following key questions: (i) Who holds the right?; (ii) What is the extent of that right in each instance?;17 and (iii) What could constitute such a serious breach of that right in each instance, that it could attract a penal proscription? There is a wealth of theoretical literature on the right to self-determination, which is also beyond the scope of this paper to analyse thoroughly. Suffice it to say, much of the literature is more concerned with what the right to self-deterrriination should entail, rather than the actualities of State practice and opinio juris. On the other hand, in his article "Self-Detennination - Absolute Right or Social Poetry?", Professor Philip Allott suggests: "Self-deterrrunation is a conventional name for a complex social phenomenon. That phenomenon is not difficult to analyse at a systematic level: 1. Human beings have desires about how they want to live together in society. 2. There are certain social systems available, at any particular time, to satisfy those desires. 3. Available social systems include sub-systems for deteirnining participation in the system - who is a participant and on what terms. 4. The desires of human beings about how they want to live together in society, at any particular time, may not match available social systems, or may not match the determinations made by available social systems in the matter of participation. 5. In such a situation, a tension is created, which can generate very high levels of psychic and social energy, giving rise to secondary phenomena ranging from dissent and civil disobedience and martyrdom, discrimination and persecution, through civil war and terrorism, up to genocide and world war. This way of analysing the social phenomenon of self-determination suggests an explanation of why self-determination generates high levels of psychic and social energy. Three things are interacting powerfully: desire, power, and ideas."18 Ofuatey-Kodjoe, supra, at 156. 1 7 As I will be arguing below, the extent of a right to self-determination varies according to the holder of that right. 1 8 P. Allott, supra, at 177. s - 6 -At a more legalistic level, the main theories on the right to self-determination initially address the question whether the right is restricted to the practice of decolonisation, or whether it extends beyond decolonisation, to encompass all situations where "the desires of human beings about how they want to live together in society ... may not match available social systems". If it does extend beyond decolonisation, what does it entail? The form of self-determination that prevailed throughout the era of decolonisation predominantly entailed the creation of independent sovereign States from former colonies of European powers. Thus, self-determination in this initial manifestation was associated almost exclusively with secession or some other form of new international status, which is now generally described as "external" self-determination. In more recent years, the concept of "internal" self-detennination has received growing support, at least in theoretical terms.19 The 1975 Final Act of the Helsinki Conference on Security and Co-Operation in Europe provided that "all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference".20 [my emphasis] This has been interpreted to mean that all people are free to choose their form of governance, and in some instances to have a certain measure of autonomy within a sovereign State.21 Some authors find the external/internal dichotomy too simplistic for the multitude of situations where self-determination may be relevant. For example, Halperin et al have identified what they see as six different nianifestations of the right to self-detennination: (i) "Anti-Colonial Self-Detennination"; (ii) "Sub-State Self-Detennination"; (iii) 'Trans-State Self-Determination"; (iv) "Self-Determination of 1 9 Cf. G.H. Fox, "Self-I^termination in the Post-Cold War Era: A New Internal Focus?", Book Review of International Monitoring of Plebiscites, Referenda and National Elections: Self-Determination and Transition to Democracy by Y. Beigbeder (1995) 16 Mich. J. Int'l L. 733. 2 0 This formulation was subsequenUy incorporated into the Vienna Declaration and Programme of Action of 1993, which were adopted by 171 States. Cf. A. Cassese, Self-Determination of Peoples: A Legal Reappraisal, 2nd. reprint, (Cambridge: Cambridge University Press, 1996) at 278-292 [hereinafter: Cassese, "Self-Determination"]. 2 1 Cf. Discussion below in Chapter Six on indigenous and minoriry rights to self-determination. 6 dispersed peoples"; (v) "Indigenous Self-Detennination"; and (vi) "Representative Self-Detennination".22 This categorisation highlights one of the most vehement controversies within the international debates on the right to self-deterrnination: who is entitled to claim this right? The relevant international treaties provide that "all peoples" have the right to self-detennination.23 But there is no single definition of "peoples" upon which all members of the international community agree. In the same way, there is considerable disagreement as to what is the scope of the right to self-detennination in any given situation. Most commentators seem to agree that the right to secede (ie. the "full" exercise of a right to self-determination, or "external" self-deterrnination) is only relevant in the context of decolonisation. However, a significant number of authors have suggested that other situations may lead to a right of secession, where all other means of protecting the human rights of a group have failed. For example, Professor Christian Tomuschat links/confuses persecution and genocide with grave breaches of self-deterrnination, to suggest: "It is with a great measure of caution that one should approach answering the question as to what situations exhibit the degree of gravity required to give rise to a right of self-deterrnination to the benefit of a group within an existing State. On one hand, it is obvious that any State is under a basic obligation to protect the life and the physical integrity of its citizens. Therefore, if a State machinery turns itself into an apparatus of terror which persecutes specific groups of the population, those groups cannot be held obligated to remain loyally under the jurisdiction of that State. Genocide is the ultimate of all international crimes. Any government that engages in genocide forfeits its right to expect and require obedience from the citizens it is targeting. If international law is to remain faithful to its own premises, it must give the actual victims a remedy enabling them to live in dignity."24 [footnotes omitted] Tomuschat is not the first commentator to suggest that grave breaches of the right to self-detennination should fall within the ambit of international criminal law, but he is one of the few to do so. The Halperin et al, supra, at 49-52. 2 3 Cf. Discussion below in Chapter Five of the relevant international instruments that provide for a right to self-detennination. 2 4 Tomuschat, "Self-Determination", supra, at 9. 7 -8-International Law Commission ("ILC") tried to expand the concept of "crimes against peace" to include "colonial domination" in its 1954 Draft Code of Crimes Against the Peace and Security of Mankind?5 (hereinafter "Draft Code".] However, after receiving comments from governments on a similar provision in the 1991 draft, the crime of "colonial domination and other forms of alien domination" was removed from the 1996 Draft Code.26 At the same time, the ILC's Draft Articles on State Responsibility of 1974 still include "a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the j establishment or maintenance by force of colonial domination" as an example of an international crime of State.27 [my emphasis] There is very little literature available which analyses these developments in any depth. Most commentators dismiss the concept of a crime of "colonial domination" or anything similar, as an historical quirk, arising from the frustration experienced by many liberation movements during the 1960's and 1970's, but without any application to today's realities.28 Lyal S. Sunga actually devotes an entire section of a chapter to the crime of "colonial domination and other forms of alien domination".29 He describes the historical development and significance of the principle of self-detennination, and then analyses the debates over the 1991 Draft Code and subsequent government statements. He suggests that there were two competing voices within the ILC, as to the relevance of "colonial domination" or self-determination in the context of international criminal law. One side was arguing "that virtually all colonies had already emerged as independent entities and that the system of 2 5 Cf. D. Thiam, Special Rapporteur on the Draft Code of Crimes Against the Peace and Security of Mankind, Crimes against Peace in the 1954 draft code, UN Doc. A/CN.4/411 and Con. 1 and 2 (in Ybk, 1988, v. 11(1)); and ILC Report A/43/10, 1988, chp. IV (B), paras. 211-278. 2 6 Cf. Discussion below in Chapter Seven, of the right to self-determination in international criminal law. 2 7 Article 19(3), Draft Articles on State Responsibility, reprinted in S. Rosenne, ed., The International Law Commission's Draft Articles on State Responsibility, Part 1, Articles 1-35, (Dordrecht: Martinus Nijhoff Publishers, 1991). 2 8 T.L.H. McCormack & G. Simpson, eds., The Law of War Crimes: National and International Approaches, (The Netherlands: Kluwer Law International, 1997) at 251. See also S. Williams, "The Draft Code of Offenses Against the Peace and Security of Mankind", in M.C. Bassiouni, ed., International Criminal Law, Vol. 1: Crimes, (New York: Transnational Publishers, 1986). 2 9 L.S. Sunga, The Emerging System of International Criminal Law - Developments in Codification and Implementation, (The Netherlands : Kluwer Law International, 1997) at 90-104. 8 -9-colonialism no longer existed. However, many ILC members of countries that formerly were colonised, insisted Article 18 [on colonial domination or any other form of alien domination] be retained. These members argued that because it is not inconceivable that new colonies might be created in future, the draft Code should cover future cases of colonial domination that may arise in addition to those situations still in existence."30 Several Western governments provided commentaries that criticised the provision in question for vagueness, amongst other criticisms.31 However, as Sunga points out, "Rather than to attempt to make the provisions on individual crirnmal responsibility for colonial domination in the 1991 draft Code more precise, the ILC took the radical step of deleting them entirely",32 even though the ILC's own Commentary on the article suggested that "there is ample precedent in General Assembly Resolutions and the prior work of the Commission on State Responsibility to: 1) warrant the inclusion of the article in the Draft Articles and 2) justify the language used here."33 In another contemporaneous commentary on article 18, Ved P. Nanda provided a brief sketch of some of the concerns he perceived would arise in relation to article 18, then concluded: "I concur wholeheartedly with the Commission's conclusion that there is "universal condemnation of colonialism and the need to eliminate all vestiges of it and any possibility of its revival. However, the Draft Code is not the place to fight the battle."34 While the Draft Code may not have been the most appropriate mechanism for assisting with the enforcement of legitimate rights to self-detemunation, I argue in this thesis that proscribing grave breaches of the right to self-detennination in some form is necessary, given the "enforcement crisis" 3 0 Sunga, ibid, at 103-104. 31 Comments and Observations of Governments on the Draft Code of Crimes Against the Peace and Security of Mankind adopted on First Reading by the International Law Commission at its 43rd. Session, UN Doc. A/CN.4/448 of March 1993. 3 2 Sunga, supra, at 104. 3 3 V.P. Nanda, "Commentary on article 18", in M.C. Bassiouni, Commentaries on the International Law Commission's 1991 Draft Code of Crimes Against the Peace and Security of Mankind, Nouvelles Etudes Penales, (France: eres, 1993) 229 at 229. 3 4 Nanda, ibid, at 230. 9 - 10-currently facing the right.35 Just as many of the provisions of the 1991 Draft Code were not included in the 1996 Draft Code, so many of the provisions of the latter were not included in the Rome Statute. But this does not mean that all the deleted provisions are not considered as international crimes. A summary of the ILC Report on the 1996 Draft Code states that the ILC "adopted the final text of a set of 20 draft articles ... with the understanding that, in order to reach consensus, the Commission had considerably reduced the scope of the Code. It is understood that the inclusion of certain crimes in the Code does not affect the status of other crimes under international law, and that the adoption of the Code does not in any way preclude the further development of this important area of law."36 Thus, it is still appropriate to explore the possible avenues for proscribing grave breaches of the right to self-determination. However, in light of the wide acceptance given to the Rome Statute, the focus of my analysis will be on the crimes that will be within the jurisdiction of the proposed International Criminal Court, particularly the crime of aggression and the crime against humanity of "persecution".37 1.2 Methodology There are very few available theoretical models for analysing the development of a human right and following its transformation into a concern of international criminal law, as Professor M. Cherif Bassiouni has pointed out.38 Speakers at a recent symposium posited some different theories on how human rights evolve into norms, but they did not consider criminal matters.39 Their differences of Cf. Discussion in Chapter Six on the inadequacy of current enforcement mechanisms for those with a right to self-determination. 3 6 United Nations, Analytical Guide to the Work of the International Law Commission, 1949-1997, (New York: United Nations, 1998) at 151-152, discussing the Report of the ILC on the work of its 48th. Session, 6 May to 26 July 1996, ILC Report, A/51/10,1996, Ch.H, paras. 30-50. 3 7 Cf. Article 5, Rome Statute, supra. The Statute was adopted by a non-recorded vote of 120 for, 7 against, and 21 abstentions: UN Press Release L/ROM/22, "UN Diplomatic Conference Concludes in Rome with Decision to Establish Permanent International Criminal Court", 17 July 1998, online: <http://www.un.org/icc/>. Cf. Discussion below in Chapter Seven on the Rome Statute. 3 8 M.C. Bassiouni, "The Proscribing Function of International Criminal Law in the Processes of International Protection of Human Rights", (1982) 9 Yale J. of World Public Order 179 at 181 (hereinafter: Bassiouni, "Proscribing Function"). 3 9 See generally, papers from Symposium on "Customary International Human Rights Law: Evolution, Status and Future", in: (1995) Ga. J. Int'l. & Comp. L. 10 -11 -opinion mostly involved problems of "positivist" versus "natural law" views of human rights, rather than providing models of human right "evolution".40 As a framework for my analysis, I will be adopting Bassiouni's theory of human rights development, whereby a human right evolves through five stages, from a mere aspiration, to a right whose breach attracts penal proscriptions: "Stage 1 - The Enunciative Stage - The emergence and shaping of internationally perceived shared values through intellectual and social processes. Stage 2 - The Declarative Stage - The declaration of certain identifiable human interests or rights in an international document or instrument. Stage 3 - The Prescriptive Stage - The articulation of these human rights in some prescriptive form in an international instrument (general or specific) generated by an international body; or the elaboration of specific normative prescriptions in binding international conventions. Stage 4 - The Enforcement Stage - The search for, or the development of, modahties of enforcement. Stage 5 - The Criminalization Stage - The development of international penal proscriptions." Bassiouni identifies the "Enunciative Stage" as the first step in the evolution of an international human right. He suggests that this stage is where various social and intellectual processes lead to the emergence and shaping of shared values amongst members of the international community. Once these common values are determined, then the international community can decide collectively how important these values are, and whether they are being protected sufficiently, in light of their relative importance. As Bassiouni points out, this entire process is analogous to the "evolution of social values and the development of civil prescription and penal proscriptions in any organised society."41 However, the international community's approach is usually less structured or predictable than that of national or 4 0 Cf. Discussion below in this Chapter on the relevance of these theories of law to international human rights interpretation, particularly the right to self-determination. 4 1 Bassiouni, "Proscribing Function", supra, at 181-182. 11 -12-regional legal systems, because the latter are generally far more homogeneous and thus involve fewer variables. In addition, the issues involved in the theory and practice of self-determination have inspired more disagreement than agreement within the international community, when it comes to the "emergence and shaping" of values. Thus, describing the evolution of "shared values" is extremely complex when it comes to self-detennination. Even today, different interest groups in the international community perceive their own diverse range of values as supporting the imperative to recognise various rights to self-determination.42 This makes it particularly difficult to justify the inclusion of the right to self-determination within the ambit of international criminal law, the latter of which requires extreme precision and at least the appearance of being devoid of political implications, in order to appear "just". Bassiouni's own theoretical analysis focuses on crimes that are mostly "against the person"43, which are far less controversial, because they all involve actual physical harm, of some kind, to a human being.44 Such prohibitions are common to all cultures and legal systems, in varying degrees. However, as Bassiouni suggests, there "is no classification of rights according to the values sought to be advanced or effective enforcement modahties." [footnote omitted]45 His theory is that "the adoption of criminal proscriptions has not derived from an appraisal of the significance of the right sought to be preserved and protected; rather, it has been caused by the inadequacy of modahties of protection in the first four stages [through which a human right evolves]. Thus, the inadequacy of these modahties has 4 2 See Discussion in Chapter Six below. 4 3 In illustrating his theory, Bassiouni uses the following crimes as examples: crimes against peace, war crimes, crimes against humanity, genocide, apartheid, slavery and slave-related practices, torture, unlawful human experimentation, piracy, hijacking, kidnapping of diplomats and the taking of civilian hostages, and unlawful use of the mails (to kill or inflict harm on anyone handling or receiving mailed materials): Bassiouni, "Proscribing Function", supra, at 183-191. 4 4 However, note my discussion below in Chapter Seven on the requirements to establish that a crime against humanity of persecution has been committed. It requires more than just the mere act of persecution, which may or may not involve physical harm to persons - there must be an additional element, most of which do involve some kind of physical harm (torture, disappearances, etc.). 4 5 Bassiouni, "Proscribing Function", supra, at 180. 12 -13-compelled the tramfonnation of the protected right into a prohibited crime. Therefore, international criminal proscriptions are the ultima ratio of enforcing internationally protected human rights."46 In other words, the fact that the right to self-determination has always been controversial, does not mean it could never warrant modalities of protection such as international criminal proscription. There are, of course, those who believe that self-determination is actually one of the most important rights to be protected 4 7 On the other hand, there are some who claim that "the legal right to self-detenriination has not reflected the revolutionary content of its political forebear. It has been unable to convert the grandiose and sweeping nature of its beginnings into a legal principle conducive to consistent practical appUcation."48 The application of the principle of self-determination has certainly been more prone to political considerations than many of the other human rights contained in the major international instruments. For example, the Universal Declaration of Human Rights49 [hereinafter: "UDHR"] does not mention group rights, let alone self-detennination,50 despite the fact that the UN Charter exphcitly states as one of the UN's purposes, to "respect... the principle of equal rights and self-detenruhation of peoples".51 Yet, two years after the adoption of the UDHR, in 1950 the General Assembly recognised the right to self-deterrnination as a fundamental human right,52 and by 1952 the Generally Assembly had decided Bassiouni, ibid, at 182. 4 7 They point to the fact that it is article 1 in both the ICCPR and the ICESCR: cf. Cassese, "Self-Determination", supra, at 47-59. 4 8 Becker, supra, at 301. 49 Universal Declaration of Human Rights, supra. Adopted by 48 states voting in favour and 8 abstaining (Saudi Arabia, South Africa, the Soviet Union, plus 4 East European states and a Soviet republic whose votes were controlled by the Soviet Union): H.J. Steiner & P. Alston, International Human Rights in Context: Law, Politics, Morals, (New York: Oxford University Press, 1996) at 119. 5 0 Russia proposed that the following provision be included: "Every people and every nation has the right to national self-deternunation", and then extended to people in non-self-governing territories. But their proposal was rejected. Cf. UN Doc. A/784, discussed in U.O. Umozurike, Self-Determination in International Law, (Connecticut: Archon Books, 1972) at 48. 51 Article 1(2), UN Charter. 5 2 Cf. GA Res. 521(V) 4 Dec. 1950, which "calls upon the ECOSOC to request the Commission on Human Rights to study ways and means which would ensure the right of peoples and nations to self-determination, and to prepare recommendations for consideration by the General Assembly": discussed in G. Simpson, The Right of Secession in International Law: A New Theory of Legitimacy, (LLM Thesis, University of British Columbia 1989) [unpublished] at 56. See also Cassese, "Self-Determination", supra, at 47-52, for discussion of differing political concepts of the right at the time (Soviet vs. Western states). 1 3 -14-"to include in the International Covenant or Covenants on Human Rights an article on the right of all peoples and nations to self-determination in reaffirmation of the principle enunciated in the Charter of the United Nations."53 Clearly there were complex political machinations involved in this seemingly contradictory approach to the significance of the principle of self-detennination, during these formative years for the United Nations.54 At the same time, Bassiouni himself once labelled war crimes and crimes against humanity as "political" crimes, which he envisaged would not be the "bread and butter cases" of an International Criminal Tribunal he proposed in 1992.55 He thought that such a tribunal would deal mainly with transnational crimes such as international drug trafficking and money laundering. In response to Bassiouni's 1992 Draft Statute for an International Criminal Tribunal, Gianaris wrote in the same year: "While an international criminal court could and should eventually deal with both types of crimes, it does not appear feasible that countries would be willing to allow an international criminal court to hear such types of political cases which could also be dealt with in a non-criminal fashion and by other international organisations."56 Yet, the International Criminal Court will only have jurisdiction over these "political cases": the only crimes presently within its jurisdiction are genocide, crimes against humanity, war crimes, and aggression.57 Thus, one should not jump to conclusions as to the suitability of the right to self-determination for the kind of analysis and progression towards an ultimo ratio that Bassiouni has propounded for human rights in general, simply because it has strong political overtones and thus did not appear in every significant human rights instrument. Clearly, Bassiouni has in mind the UDHR when he speaks of the "Declarative Stage" in the evolution of a human right or interest. Yet, as I will argue below, the 5 3 GA Res. 545 (V) of 5 February 1952. Discussed further in Umozurike, supra, at 49. 5 4 See discussion in Chapters Four and Five below. 5 5 M.C. Bassiouni, "The Need for an International Criniinal Court in the New International World Order", (1992) 25:2 Vanderbilt J. of Transnational L. 151 at 173. 5 6 W.N. Gianaris, "The New World Order and the Need for an International Criminal Court", (1992/93) 16 Fordham Int. L. J. 88 at 88-89, n. 1. 5 7 Article 5, Rome Statute, supra. NB. Aggression will only be within its jurisdiction once a suitable definition is found: article 5(2). 14 -15-principle of self-detennination reached its "Declarative Stage" before the UDHR was ever adopted, in the form of the principle's inclusion in the Charter of the UN.58 Therefore, while it is important to bear in mind the strong influence of politics in "shaping" the international community's views on self-detennination, it is still a valid exercise to try and elaborate some of the "intellectual and social processes" that also shaped them. In this regard, the following observation from Professor Jordan Paust seems particularly pertinent: "There are no single sources or evidences of human rights law; no single set of participants; and no single arenas or institutional arrangements for the creation, invocation, application, change or termination of such law. Like all human law, it is full of human choice and rich in individual and group participation."39 Another complicating factor is that the right to self-determination has been identified as imposing upon States obligations erga omnes.60 In other words, the right to self-determination is said to impose corresponding obligations on all States, regardless of their consent.61 These unspecified obligations were first referred to in the Barcelona Traction Case of 1970, in an oft-quoted section of the judgment: "In particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-a-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes. Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, 5 8 If there is any doubt about this, it is clear that the right to self-determination had definitely reached its "Declarative Stage" by 1960, when the Declaration on the Granting of Independence to Colonial Countries and Peoples (GA Res. 1514 (XV), 14 December 1960) was adopted by the General Assembly, recognising "the right of all peoples to self-determination", albeit some 12 years after most of the other important human rights were "declared" in the UDHR. Self-detennination then "caught up" with the other rights, in a sense, through its inclusion in both the ICCPR and ICESCR. Some would even say that it eclipsed all the other rights at that time, by being given pride of place as common article 1 in both Covenants (cf. discussion in Chapter Five below). 5 9 J. Paust, "The Complex Nature, Sources and Evidences of Customary Human Rights", (1995/96) Ga. J. Int'l & Comp. L. 147 at 147. 6 0 Cassese, "Self-Determination", supra, at 133-141. Cf. Case concerning East Timor (Portugal v. Australia) [1995] ICJ Rep., at para. 29 [hereinafter: "East Timor case"]. 61 "Erga omnes" means: "binding on all others, regardless of consent. [L: in respect of all]", CCH Australia Limited, The CCH Macquarie Dictionary of Law, 2nd. ed., Sydney: CCH Australia Limited, 1993) [hereinafter: "CCH Dictionary"] s.v. "erga omnes". 1 5 -16-including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general international law others are conferred by international instruments of a universal or quasi-universal character."62 However, the exact nature and extent of these obligations has never been clarified, despite the fact that the ICJ has considered them on a number of occasions.63 As Judge Weeramantry noted in his dissenting opinion in the East Timor case: "I am conscious ... that violation of an erga omnes right has not thus far been the basis of judicial relief before this Court. Yet the principles are clear, and the need is manifest for a recognition that the right, like all rights, begets corresponding duties. ... The erga omnes concept has been at the door of this Court for many years. A disregard of erga omnes obligations makes a serious tear in the web of international obligations, and the current state of international law requires that violations of the concept be followed through to their logical and legal conclusion. Partly because the erga omnes obligation has not thus far been the subject of judicial detennination, it has been said that: "Viewed realistically, the world of obligations erga omnes is still the world of the "ought" rather than the "is"."64 Those who advocate that all States have "universal jurisdiction" for international crimes, are basing this claim on a notion of erga omnes obligations with respect to international crimes. However, "universal jurisdiction" has yet to receive widespread support within the international community.65 At present, there is considerable activity at the international level, to try and draft some principles concerning the right of States to intervene in another State for "humam'tarian" purposes, following on from some of the controversies surrounding the bombing of Serbia by the members of NATO in Case concerning the Barcelona Traction, Light and Power Company, Limited, Second Phase, [1970] ICJ Rep. 3 at 32, para. 34 [hereinafter: "Barcelona Traction case"]. 6 3 Cf. Two of the South West Africa cases: Preliminary Objections [1962] ICJ Rep. 319 and Second Phase [1966] ICJ Rep. 6; as well as the Case concerning Northern Cameroons [1963] ICJ Rep. 15; Case concerning Nuclear Tests (Australia v. France; New Zealand v. France) [1974] ICJ Rep. 253; Case concerning United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep. 3; Case concerning Border and Transborder Armed Actions (Nicaragua v. Honduras) Jurisdiction and Admissibiliry, [1988] ICJ Rep. 69. 6 4 East Timor case, dissenting opinion of Justice Weeramantry, supra, at 59-60. 6 5 Cf. Amnesty International, Universal Jurisdiction: 14 Principles on the Effective Exercise of Universal Jurisdiction, (London: Amnesty International, 1999). 1 6 -17-1999.66 Thus, it cannot be said at this point in time that there is any clear law on what kinds of erga omnes obligations the right to self-detennination may impose upon all States.67 Nor is it clear to what extent this right may be asserted erga omnes, particularly since the majority of the Court in the East Timor case appeared to be suggesting that even erga omnes rights and their corresponding obligations require a measure of acceptance before a State may be bound by them.68 It is also worth considering at this point the impact of some other concepts that were evolving at the same time as the principle of self-deterniination, and have continued to play an important role in its theory and practice. These influences are: (i) nationalism, and (ii) competing theories of international law and its sources. It is beyond the scope of the present analysis to discuss either of these perspectives in any depth.69 But it is worth briefly reflecting upon how these influences have shaped current thinking on self-determination, even though they evolved as entirely separate fields of enquiry, at least initially. 1.3 Self-determination and nationalism 6 6 For example, the ICJ is currently in the middle of proceedings questioning the legality of such use of force, cf. Case concerning Legality of Use of Force, (Yugoslavia v. Belgium) (Yugoslavia v. Canada) (Yugoslavia v. France) (Yugoslavia v. Germany) (Yugoslavia v. Italy) (Yugoslavia v. Netherlands) (Yugoslavia v. Portugal) (Yugoslavia v. Spain) (Yugoslavia v. United Kingdom) (Yugoslavia v. United States of America), Request for the Indication of Provisional Measures, Orders of 2 June 1999, online: <http://un.org/icry/> [hereinafter: "Yugoslavia case"]. 6 7 For some guidance, see generally A. de Hoogh, Obligations Erga Omnes and International Crimes: A Theoretical Inquiry into the Implementation and Enforcement of the International Responsibility of States, (The Hague: Kluwer Law International, 1996). 6 8 Rebecca Kavanagh argued in 1996: "In ignoring the legal interest of the international community in the protection of erga omnes rights and obligations, the Court has in effect subordinated the protection of fundamental human rights to the national interest of a single state." R Kavanagh, "Oil in Troubled Waters: The International Court of Justice and East Timor - Case Concerning East Timor (Australia v Portugal)", (1996) 18 Sydney L. Rev. 87 at 93. 6 9 See for example: E. Y. Benneh, "Statehood, Territory, Recognition and International Law: Their Interrelationships" in E.K. Quashigah & O.C. Okafor, eds., Legitimate Governance in Africa: International and Domestic Legal Perspectives, (The Hague: Kluwer Law International, 1999) [hereinafter: "Quashigah & Okafor"]. For excellent analyses of the relationship between nationalism and self-detennination, cf. R.J. Johnston, D.B. Knight & E. Kofman, eds., Nationalism, Self-Determination and Political Geography, (New York: Croom Helm, 1988), and M. Moore, National Self-Determination and Secession, (New York: Oxford University Press, 1998). As some interesting examples of the many different approaches to international law theory, cf. A. Anghie, "Francisco de Vitoria and the Colonial Origins of International Law", (1996) 5 Soc. & Legal Stud. 321; T. Franck, Fairness in International Law and Institutions, (New York: Oxford University Press, 1995); R Higgins, Problems & Process: International Law and How We Use It, (New York: Oxford 17 -18-The complex evolution of the principle of self-determination in international law is further problematised by its conflicted relationship with notions of State sovereignty and nationalism. Self-determination in the form of secessionist movements within nation states strikes at the very heart of concepts such as the sovereignty of States. These concepts are extremely important in understanding the nature of the international legal system today, which is traditionally viewed as the laws between sovereign states. However, the positivist view of international law initially distinguished between "civilised states and non-civilised states and asserted further that international law applied only to the sovereign states that composed the civilised 'Family of Nations'."70 Thus, "nationalist" movements in "non-civilised" countries seeking to exercise a right to self-determination have met with mixed success over the years.71 As Gerry Simpson suggests, "the relationship between nationalism and self-determination has been a paradoxical one. Nationalism has frequently been instrumental in creating the self in self-determination. On the other hand, nationalism has also been the single greatest force in opposition to self-determination since the 17th. century."72 This continuing tension and contradiction was best illustrated by the international community's various responses to the outbreak of ethnic violence in the Former Yugoslavia in the early 1990's and the contemporaneous disintegration of the former Soviet Union. As Professor Thomas Franck points out, "When secession has been accomplished peacefully or by negotiated agreement, the international community and the United Nations have given rapid recognition to the successor states, as, most recently, in the case of the constituent republics of the former Soviet Union."73 At the same time, the United Nations has "encouraged anti-colonialist movements that struggled for release against the University Press, 1995) [hereinafter: Higgins, "Problems & Process"]; and M. Koskenniemi, "International Law in a Post-Realist Era", (1995) 16 Aus. Y.B. Int'l L. 23. 7 0 A. Anghie, "Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law", (1999) 40 Harv. J. Int'l L. 4 [hereinafter: Arighie, "Colonialism"]; see also E. Evatt, "The Acquisition of Territory in Australia and New Zealand", in CH. Alexandrowicz, Studies in the History of the Law of Nations, (The Hague: Nllartinus Nijhoft 1970) 16 at 17. 71 Cf. Discussion in Chapter Six below. 7 2 Simpson, supra, at 18. 7 3 T. M. Franck, "Postmodern Tribalism and the Right to Secession", [hereinafter: Franck, "Postmodern Tribalism"] in C. Brolmann et al, eds., Peoples and Minorities in International Law, (Dordrecht: Martinus 18 - 19 -embrace of empire from Algeria to Indonesia", thereby "embracing] the secessionist cause". However, on other occasions, the United Nations has "endorse[d] the sanctity of existing boundaries and the means necessary to enforce them actively sid[ing] with the authorities seeking to prevent the success of a secessionist movement."74 On yet other occasions, as in the case of the rise of various nationalisms and the concomitant disintegration of the former Yugoslav Republic, Franck suggests that the international community "tr[ied] to be neutral between the secessionistic dynamic and forces upholding static territorial integrity, ... while still asserting an interest in the maintenance of peace, negotiated conflict resolution, and adherence to human rights."75 Eventually, of course, the international community recognised the sovereignty of the new States that emerged as a result of the various arrangements for peace that were made, such as the "Dayton Peace Accord".76 Nathaniel Berman suggests that such contradictory responses to various manifestations of what Franck describes as "the global phenomenon of postmodern tribalism"77, are based on "a variety of conceptual conundrums. Deference to nationalist desire might be enthusiastically welcomed either because of the vital energy it would bring or because of its fundamentally stabilising quality; alternatively, it might be merely grudgingly accepted either because of fear of consequences of repressing its energy or because of a rninimisation of the consequences of acknowledging such moribund cultures. Finally, such deference might be rejected either because it would destabilise the legal system or because it would lodge an immutable source of inflexibility in the international system."78 [emphases in original]. Such dualistic thinking is equally apparent in the international Nijhoff Publishers, 1993) at 12,; see also J.D. van der Vyver, "Universality and Relativity of Human Rights: American Relativism", (1998) 4 Buff. Hum. Rts. L. Rev. 43 at 54. 7 4 Franck, "Postmodern Tribalism, supra, at 4. The examples provided by Franck are Katanga, Cyprus, Mayotte "and elsewhere". 7 5 Franck, ibid. Cf. Franck's five point summary of "the reaction of the system - European Community, CSCE and United Nations", and all its qualified approaches to the right of secession, ibid, at 19-20. 76 General Framework Agreement for Peace in Bosnia and Herzegovina, initialled 21 November 1995, signed 14 December 1995, online: <http:www.ohr.int//gfa/gfa-home.htm>. 7 7 Franck, "Postmodern Tribalism, supra, at 3. 7 8 N Berman, "A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits of the Interwar Framework", (1992) 33:2 Harv. Int'l L. J. 353 at 377 [hereinafter: Berman, "Nationalist Desire"]. 1 9 - 20 -community's ambivalent attitude toward the right to self-determination generally, which some commentators argue arises from "the tension between its political origins and its legal manifestation."79 1.4 Self-determination and theories of international law It is also important to note the views of many international law commentators, who point out that "The Law of Nations" upon which current international laws are based in large part, is a construct of only a small group of European countries, who arrogated to themselves the right to prescribe laws for the entire world, in order merely to validate the realisation of their own self-serving territorial and political ambitions, mostly during the late nineteenth and early twentieth century.80 This perspective is particularly relevant in any discussion on the principle of self-detennination, because self-determination is so closely related to the control of territory and to addressing the various legacies of colonialism.81 In fact, Professor Antony Anghie argues that "the colonial confrontation is central to an understanding of the character and nature of international law" in general.82 He identifies positivist jurisprudence as the driving force behind colonial expansion, with its emphasis on the "primacy of the state" - meaning a "sovereign" European-style state only83 - and describes how the particular system of values advocated by positivism reached their peak influence towards the end of the nineteenth century. Anghie also points out that "the universahty of international law is a relatively recent development. It was not until the end of the nineteenth century that a set of doctrines was established as applicable to Becker, supra, at 301, citing M. Koskenniemi, "National Self-Determination Today: Problems of Legal Theory and Practice", (1994) 43 Int'l & Comp. L. Q. 241 at 245-9 [hereinafter: Koskenniemi, "National Self-Determination"]; and Ofuatey-Kedjoe, supra, at 10-11. 8 0 The first author to make such a claim is probably Richard Falk, in "Historical Tendencies, Modernizing and Revolutionary Nations, and the International Legal Order", (1962) 8 How. L. J. 128 at 133-35; see now Anghie, "Colonialism", supra, at 1; M. wa Mutua, "Why Redraw the Map of Africa: A Moral and Legal Inquiry", (1995) 16 Mich. J. Int'l L. [hereinafter: Mutua, "Why Redraw"] at 1120: "Though today it is the main currency regulating international relations, international law or the law of nations is a development out of exclusively European historical circumstances.". 81 Cf. I. Brownlie, Principles of Public International Law, 4th. ed., (Oxford: Clarendon Press, 1990) at 521-552. 8 2 Anghie, "Colonialism", supra, at 5. However, note that he then goes on to state: "but... the extent of this centrality cannot be appreciated by a framework that adoptes as the commencing point of its inquiry the problem of how order is created among sovereign states. In attempting to demonstrate this centrality I have focused instead on how order is created among entities characterized as belonging to entirely different cultural systems." 20 -21 -all states, whether these were in Asia, Africa, or Europe."84 Previously, there was a range of views amongst international law publicists, as to how territory could be controlled and acquired.85 Dr. Barbara Wells suggests that the two main "threads" that "come forward again and again through five hundred years of discussion and struggle over the disposition of lands and peoples ... are the question of cession, usually following conquest, and the view that territorial and political rights of peoples are inalienable and inherent because they are given either by natural or divine law."86 In the sixteenth century, the so-called "Spanish School"87 of international law scholars was dominated by "the natural law philosophies of Renaissance European theorists, which were in some measure, although not entirely, sympathetic to indigenous peoples' existence as self-determining communities in the face of imperial onslaught ... Within a frame of thinking traditionally linked to the rise of modern international law, prominent European theorists questioned the legality and morality of claims to the 'New World' and of the ensuing, often brutal, settlement patterns".88 However, the influence of these Spanish theorists was minimal, as evidenced by the extent of colonial expansion during this era. In 1758, the Swiss jurist, Emer de Vattel, wrote Le Droit des Gens, which was subsequently translated into English as The Law of Nations. Vattel has been held responsible in large part for influencing European notions of their superior claim to title in "lands which the savages have no special need of and are making no present and continuous use of'.89 Vattel argued that States had no right to settle on and lay claim to lands that were being used by the native population. However, his concept of "using" land involved each community fulfilling its obligation "to cultivate the land that has fallen to its share 8 3 Ibid, at 2. 8 4 Ibid, at 1. 8 5 It is beyond the scope of this paper to address international jurisprudence from non-European traditions. 8 6 B.J. Wells, United Nations Decisions on Self-Determination (Ph.D. Thesis, New York University 1963), Authorized Reprint, (Ann Arbor, Michigan: University Microfilms, 1966) at 6-7. 8 7 Said to include Vitoria, Domingo de Soto, Francisco Suarez and Bartolome de Las Casas (cf. discussion below in Chapter Two). 8 8 S. James Anaya, Indigenous Peoples in International Law, (New York: Oxford University Press, 1996). Bartolome de Las Casas estimated that by the middle of the sixteenth century, fifteen million natives in South and Central America had been massacred by the conquistadors: in F. Wilmer, The Indigenous Voice in World Politics, (California: Sage Publications, Inc., 1993) at 95. 21 -22-because 'the whole world is destined to feed its inhabitants' and this cannot be achieved today without intensive cultivation - the clearing of forest, tillage and the managed rotation of crops and pasture."90 Therefore, according to these standards, any native population that was not actively involved in such cultivation could legitimately be dispossessed of their land, either by force, through necessity, or by formal means such as a treaty ceding territory to the colonising power. In the 1920's, a British publicist, M.F. Lindley, argued that there had in fact been a "persistent preponderance of juristic opinion in favour of the proposition that lands in the possession of any backward peoples who are politically organised ought not to be regarded as if they belonged to no one",91 in other words recognising the territorial rights of indigenous people, even though they did not organise their societies in the same way as the Europeans who came into contact with them. He cited as examples Vittoria, Grotius, Pufendorf and several others from the "natural law" tradition, whose views were "against regarding backward territory as res nullius".92 One of the earliest proponents of such a view was Erasmus who, in the early sixteenth century "condemned title acquired by conquest, distinguishing between authority over men and beasts and contending that all power over men should rest on the consent of those concerned."93 A century later, Grotius developed this idea further, arguing that: "In the alienation of a part of the sovereignty, it is also required that the part which is to be alienated consent to the act. For those who united to form a state, contract a certain perpetual and immortal society, in virtue E. de Vattel, The Law of Nations, or, Principles of the Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, vol. 3, trans. C. Fenwick, (Washington: Carnegie Institution, 1916) Book I, Chapter XVUI s.209, at 85, quoted in Evatt, supra, at 40. 9 0 E. de Vattel, The Law of Nations, or, Principles of the Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, vol. 3, trans. C. Fenwick, (Washington: Carnegie Institution, 1916) Book I, Chapter VII, at 37-38, quoted in P. Moloney, "Colonisation, Civilisation and Cultivation: Early Victorians and the Extension of Their World", ("Law and Freedom" Conference of the Australian and New Zealand Law and History Society, Newcasde, Australia, June 1999) [unpublished] at 4. 91 M.F. Lindley, The Acquisition and Government of Backward Territory in International Law - Being a Treatise on the Law and Practice Relating to Colonial Expansion, (New York: Negro Universities Press, 1926), in G.C. Marks, "Indigenous Rights and the Origins of International Law", ("Law and Freedom" Conference of the Australian and New Zealand Law and History Society, Newcastle, Australia, June 1999) [unpublished] at 5. 9 2 Evatt, supra, at 17. Res nullius, which came to be replaced by the term terra nullius, means "no-one's thing; a thing without an owner": CCH Dictionary, supra, s.v. "res nullius".] 9 3 Wells, supra, at 7, footnote omitted. 22 -23-of their being integrant parts of the same; whence it follows that these parts are not under the body in such a way as the parts of a natural body, which cannot live without the life of the body, and therefore may rightly be cut away for the utility of the body ... And in like manner, on the other hand, a part has not a right to withdraw from the body, except evidently it cannot otherwise preserve itself: for, as we have said, in every thing of human institution the case of extreme necessity is to be excepted, which reduces the matter to mere Natural Law ... And hence it may be sufficiently understood, why, in this matter, the part has a greater right to protect itself than the body has over a part; because the part uses a right which it had before the society was formed, and the body does not."94 Another century after Grotius wrote this, Lindley's analysis also pointed to extensive State practice over many centuries, whereby European States rarely relied on the doctrine of terra nullius95 in order to assert dominion over lands occupied by people who were perceived as less "civilised" than themselves.96 Instead, they predominantly relied on conquest, and/or the formal cession of sovereignty by the native population.97 i However, the latter approach sat uneasily with the superior, positivist view taken of the indigenous peoples with whom the nineteenth century Imperial Powers had been concluding treaties since at least Wells, ibid, at 8, quoting H. Grotii, De Jure Belli et Pacts, trans. William Whewell (Cambridge: Cambridge University Press, 1853) at 342-3. 9 5 "... territory belonging to no state, ie. territory not inhabited by a community with a social and political organisation. In international law, effective occupation is the traditional mode of extending sovereignty over terra nullius." CCH Dictionary, supra, J . V . "terra nullius"]. 9 6 The occupation of Australia by Great Britain in the eighteenth century is one of the more obvious exceptions to this trend. But note Evatt's comments, supra, at 18-19: "There is a practical explanation for this, for although a State might prefer to obtain some form of consent where there is an organised community with a recognised chief, this was impossible in the case of Australia, inhabited by scattered unorganised tribes." [only in the sense that they were unorganised as amongst the various tribes, not that the individual tribes themselves were unorganised] No such excuse can be given for the treatment of the native peoples of British Columbia, who were also never involved in formally "ceding" their territories to the British by way of a treaty. As one commentator points out, "Consequently, having never been defeated in war, and having never sold any land, the Indians of British Columbia could not understand why white setders should simply be allowed to take possession of land which the Indians felt they owned by right of occupation and use.": RJ. Surtees, The Original People, (Toronto: Holt, Rinehart and Winston of Canada, 1971) at 62, quoted in C. Jefferson, Conquest by Law, (Ottawa: Aboriginal Corrections Unit, Ministry of the Solicitor General, Government of Canada, 1994) at 110. 9 7 For example, Treaty of Waitangi, Confederation of the United Tribes of New Zealand and Her Majesty the Queen of England, 6 February 1840. However, on the circumstances surrounding the conclusion of this treaty and its questionable legitimacy at international law, see Evatt, supra, at 18, & 40-42. For a discussion on how the differences between the English version of this treaty and its Maori translation have caused various problems in the interpretation of the treaty's provisions, cf. J-F. Tremblay & P-G. Forest, Aboriginal Peoples and Self-Determination: A few aspects of government policy in four selected countries, (Quebec: Secretariat aux affaires autochtones, Gouvernement du Queoec, 1993) at 37. 2 3 -24-the fifteenth century.98 As Anghie rightly concludes, "the fundamental premises of positivism, when extended to their logical conclusion, implicitly suggested that treaties with non-Europeans were impossible [as the latter's] ... understanding of law was so fundamentally different from that of the Europeans that the two parties existed in incommensurable universes."99 However, by the end of the nineteenth century, so many of these treaties were in force and were being accorded the weight of law by all parties, that international stability would have been severely challenged if anyone dared to question the validity of any of these treaties. Thus it was that the Conference of Berlin was convened in 1885, to "legalise"100 the system of acquisition of title in Africa by European powers concluding treaties with native populations.101 The logical outcome of this Conference should have been that the African parties to the treaties would then have been recognised as sovereign States, if they were perceived as having the requisite authority to enter into international treaties. However, this was not the outcome. As Anghie explains, not only were African peoples not consulted at all on the suitability of the borders being negotiated,102 but their "exclusion was reiterated and intensified in a more complex way by the positivist argument that African tribes were too primitive to understand the concept of sovereignty and, hence, were unable to cede it by treaty."103 He points to Oppenheim's influential International Law text of 1912, which stated that any cession of territory by a "native" population fell outside of the Law of Nations.104 Yet j the European participants at the Conference of Berlin used the treaties that had been concluded with Anghie, "Colonialism", supra, at 38. 9 9 Anghie, ibid, at 39. Note Lindley's comments in this regard: "It is difficult to see how, having regard to the universality of the practice of grounding a colonial protectorate upon an agreement with the local authority, and to the importance attached by the European Powers to these agreements in their relations inter se, the requirement for such an agreement can be regarded otherwise than as a rule of law.": supra, quoted in Evatt, supra, at 41. 1 0 0 Mutua, "Why Redraw", supra, at 1127,1130-31. 101 This undertaking was unnecessary in relation to continents where territories had been "ceded" by the native population only to one Imperial Power, or where subsequent wars had left only one Imperial Power in control of the territory, as was the case in many parts of North America. 1 0 2 I take up this theme again in Chapter Five, more specifically on the issue of how the right to self-determination evolved. 1 0 3 Anghie, "Colonialism", supra, at 58. 1 0 4 Cf. Anghie, ibid, at 58, n. 209. 24 -25-i the "natives" as the basis for detennining their claims to sovereignty in territory thus ceded, representing "a fundamental irony for positivist jurisprudence."105 In addition, instead of improving the status of Africans in the international sphere, the Conference of Berlin merely opened the door for further exploitation of the continent's resources by the imperial powers and expansion of the system of "protectorates", whereby African peoples "ceded" sovereignty over their lands, in return for the "protection" of an imperial authority.106 The Treaty of Berlin, which was negotiated at the Berlin Conference, purported to impose obligations on "All the Powers exercising sovereign rights or influence in the aforesaid territories ... to watch over the preservation of the native tribes, and improve their moral and material well-being, and help in suppressing slavery and especially slave trade."107 However, these obligations were only sporadically observed, as European powers continued to use their military advantage to conquer more territory within their respective "spheres of influence" as delineated at the Berlin Conference, even into the early years of the twentieth century.108 In addition, Professor Makau wa Mutua points out that most of the "treaties of protection" were concluded "after a war, through coercion, intimidation, deceit, or any combination thereof."109 He cites the example of King Jaja of Opobo, a Nigerian Ibo, who "was denied trading rights even after assurances that "protection" would leave his country still under his government."110 The influence of positivism only began to wane towards the middle of the twentieth century, as certain powerful members of the international community became increasingly disillusioned by positivism's unrelenting insistence that sovereign States were not accountable for actions undertaken in the name of "conquest", or for their treatment of their own "subjects", both of which attitudes rnanifested 1 0 5 Anghie, ibid, at 61. 1 0 6 M. wa Mutua, "Putting Humpty Dumpty Back Together Again: The Dilemmas of the Post-Colonial African State", Book Review of Collapsed States: The Disintegration and Restoration of Legitimate Authority by I. W. Zartman, ed. (1995) 21 Brook. J. Int'l L. 505 at 518 [hereinafter: Mutua, "Humpty Dumpty"]. 1 0 7 Article 6, Berlin Act, 1885, quoted in Umozurike, supra, at 28. 1 0 8 Mutua, "Why Redraw", supra, at 1131. 1 0 9 Ibid. 1 1 0 Ibid at 1133. 25 - 26 -themselves in the some of the worst atrocities of both World Wars.111 In retrospect, the Allied Powers' condemnation and punishment of Nazi authorities for their treatment of Jews, in the form of the Nuremberg Trials, was a clear turning point in the return to international jurisprudence of some kind of "natural" limit on the powers of a State.112 However, those who initially drafted the Charter for the International Military Tribunal at Nuremberg113 (hereinafter: Nuremberg Charter] represented the views of only four countries: the United States, Great Britain, the Provisional Government of France, and the U.S.S.R. These countries had fought together against the Nazis, and the Nuremberg Charter was subsequently adhered to by nineteen more of their war-time allies.114 Thus, many commentators have argued that the Nuremberg Trials were merely indicative of "victor's justice", and did not represent a universal consensus on international humanitarian or human rights law at the time.113 For example, in finding that "crimes against peace" and "war crimes" had been committed, the judges of the Nuremberg Tribunal relied mostly on peace and war crimes treaties to which Germany was a party.116 However, there were no such concrete sources of law for the concept of "crimes against humanity" at that time. Bassiouni claims that "There 111 Cf. Discussions below in Chapters Three and Four. 1 , 2 A. D'Amato, "Human Rights as Part of Customary International Law: A Plea for Change of Paradigms", (1995/96) Ga. J. Int'l & Comp. L. 47 at 47. Note, however, his observation that some jurists continue to rely exclusively on treaty provisions for any evidence of a human rights norm (at 97 - referring to Weisburd's paper from the same Symposium, supra). See also Koskenniemi's observation that a similar shift is reflected in the domestic sphere: M. Koskenniemi, "The Politics of International Law", in Steiner & Alston, supra, at 56-57. And see Marks, supra, who argues that current principles of international law actually evolved from the solutions that Western colonial powers arrived at in the early days of colonisation, in response to the "problem" of dealing with the indigenous peoples' rights. Thus, he and other authors claim that a return to natural law principles is a return to the origins of international law itself. 1 1 3 Reprinted in: B.B. Ferencz, An International Criminal Court, A Step Toward World Peace - A Documentary History and Analysis, Vol. 1, Haifa Century of Hope, (London: Oceana Publications, 1980) at 470. 1 1 4 Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, Venezuela, and Yugoslavia. 1 1 5 Cf. M.C. Bassiouni, The Statute of the International Criminal Court: A Documentary History, (New York: Transnational Publishers, Inc., 1998) at 8 [hereinafter: Bassiouni, "Documentary History"]. 1 1 6 For example, the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes, the 1928 Pact of Paris (Kellog-Briand Pact), as well as the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous Gases and Bacteriological Methods of Warfare, the 1929 Geneva Convention on the Treatment of Prisoners of War, and the 1936 London Proces-Verbal Relating to the Rules of Submarine Warfare, set forth in Part IV of the Treaty of London of 22 April, 1930. 26 -27-was indeed nothing under existing international law that would have justified these charges."117 But most commentators would agree that something had to be created to deal with the worst atrocities of the Nazi regime, to characterise clearly unconscionable behaviour as illegal behaviour, despite the lack of a precedent. There was, after all, no precedent for the Holocaust. Thus, the influence of pure positivism began to wane, as the international law of "human rights" began to take its initial shape.118 However, positivism has not entirely relinquished its hold over the key policy and law makers in the international sphere, by any means. Throughout the remainder of the twentieth century, the various institutions within the United Nations have striven to identify and codify, as "objectively" as possible, what "the law" is concerning human rights. At the same time, the number of members of the United Nations grew rapidly in the early years of the organisation, introducing a range of different perspectives and values to its work. The extensive debates between representatives of different cultures and legal systems in the early years of the UN, even over the most fundamental principles,119 made it clear that an "objective" view of human rights and their sources in law, was a fiction at the time. Today, many years later, in addition to the opinio juris that was finally agreed to in the form of the UDHR, the ICCPR, and the ICESCR, we can evaluate which aspects of State practice are consistent with that opinio juris, with the benefit of many years of observation, and thus draw some conclusions as to what exactly the customary law on human rights is at present, in many instances. For example, many commentators now agree that the UDHR has become binding customary law in its own right.120 i 1 1 7 M. C. Bassiouni, "Nuremberg: Forty Years After", in American Society of International Law, Proceedings of the 80th Annual Meeting, Washington D.C., 9-12 April, 1986, 59 at 62 [hereinafter: Bassiouni, "American Society Pnxxedings"]. 1 1 8 Note that the Nuremberg Charter provided the basis of the Nuremberg Principles, which were widely supported by the international community in 1950: Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 29 July 1950, UN GAOR Supp. (No. 12) at 11, UN Doc. A/1316. 1 1 9 Cf. Cassese, "Self-Determination", supra, at 47 & 51, who describes the debate over "political" vs. "economic" rights, which culminated in the creation of two International Human Rights Covenants (ICCPR and ICESCR) instead of the one that was envisioned once the UDHR was finalised. 1 2 0 Cf. R.B. Lillich, "The Growing Importance of Customary International Human Rights Law", (1995/96) 25 Ga. J. Int'l & Comp. L. 2 at 2-6. 27 -28-On the other hand, Professor Weisburd claimed in the 1990's that human rights obligations still only arose from existing treaties, not from merely declaratory instruments, nor from any other "customary" norms that impose the same obligations on non-States Parties.121 But this perspective denies the reality of the twentieth century's experience with the evolution of human rights norms, which derived initially from the retrospective recognition of certain limited human rights standards in the Nuremberg judgment, and only subsequently did consistent State practice ensue, such that customary human rights norms could truly be said to have crystallised.122 In other words, applying the same conceptual framework, there may be some human rights norms that do not yet appear in treaties but, with sufficient time and the requisite elements of consistent opinio juris and State practice, may yet be accepted as binding customary law norms. In addition, as noted by the International Court of Justice [hereinafter: "ICJ"] in the cases between Nicaragua and the United States,123 even where State practice appears to be inconsistent with opinio juris in many respects - as in the case of prohibitions on the use of armed force in the UN Charter - if the opinio juris is strong enough, it may provide sufficient evidence of customary international law.124 The approach of the ICJ in those cases could be seen as an elaborate, positivist attempt to justify a "natural law" proposition, that aggressive wars are "wrong" - by expanding the definition of opinio juris to include non-binding international instruments.125 The many criticisms of their approach, however, suggest that the decision was never entirely successful in swaying the positivists.126] A.M. Weisburd, "The Effect of Treaties and Other Formal International Acts on the Customary Law of Human Rights", (1995/96) 25 Ga. J. Int'l & Comp. L. 99 at 141. 1 2 2 cf. Lillich, supra, at 10-13. 123 Case concerning Military and Paramilitary Activities in and against Nicaragua (Jurisdiction and Admissibility) (1984) ICJ Rep. and Merits (1986) ICJ Rep. [hereinafter "Nicaragua Case"]. 1 2 4 cf. H.C.M. Charlesworth, "Customary International Law and the Nicaragua Case" (1991) 11 Aus. Y.B. Int'l L. 6. 1 2 5 The Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations), annexed to GA Res. 2625 (XV), 24 October 1970 [hereinafter: "Friendly Relations Declaration"] is the instrument most often cited in the Nicaragua case and subsequently. Cf. Discussion below in Chapter Five. 1 2 6 cf. B. Simma & P. Alston, "The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles", (1992) Aus. Y.B. Int'l L. 82 at 106, for a strong criticism of the ICJ's approach to customary international law in these cases. 2 8 -29-When ICJ Vice-President Weeramantry used a similar approach at an interim stage in the recent ICJ case on the legality of the use of force by NATO in Yugoslavia, he found himself dissenting from the more positivist views of his brethren on the bench.127 Justice Weeramantry argued: "Whatever the reason for the aerial bombing which is now in progress, and however well-intentioned its origin, it involves certain fundamentals of the international legal order - the peaceful resolution of disputes, the overarching authority of the United Nations Charter and the concept of the international rules of law. The applicability of these principles, whether individually or in combination, produces a situation in which at least a prima facie case has been made out of the existence of circumstances justifying the issue of interim measures, pending a fuller consideration by the Court of the complex legal issues involved. This Application highlights in classic form one of the most ancient and valued attributes of the judicial process - the power and obligation of a court to do what lies within its power to promote the peaceful settlement of disputes by such interim measures as may be necessary pending the final determination of the case before the Court. It is also a time-honoured attribute of the judicial mission that courts should, within the limits of the judicial function, do what they can to prevent the escalation of the conflict between the litigating parties."128 [emphasis in original] However, the majority held that the Court lacked prima facie jurisdiction to entertain Yugoslavia's Application, based on technical issues concerning the timing of Yugoslavia's acceptance of the jurisdiction of the ICJ in relation to "the existence of a specific dispute".129 The growing positivist influence on lawmaking in the latter part of the twentieth century has proven particularly catastrophic for the developing jurisprudence on the right to self-determination and the means to enforce it. In 1975, the ICJ in its Advisory Opinion on Western Sahara,130 had already taken a liberal view of some aspects of the international instruments under consideration in the Nicaragua case, and rninirnised existing State practice on the issue of whether a "peoples" should be consulted on Yugoslavia case, supra. See also Complaint to the International Criminal Tribunal for the Former Yugoslavia (Professor Michael Mandel, Osgoode Hall Law School, Toronto, Canada et al., May 6, 1999) online: <http://jurist.law.pitt.edu/icty.huii> which alleged (unsuccessfully) that NATO members committed war crimes during their bombing campaign in Serbia. 1 2 8 Dissenting opinion of Justice Weeramantry, Yugoslavia case, supra paras. 3-5. 1 2 9 Cf. Yugoslavia case, supra paras. 21-32, 41, 43, 47. However, note the Declaration made by Judge Koroma, who disputes the tenability of the proposition concerning the existence of the dispute. 130 Advisory Opinion of Western Sahara, [1975] ICJ Rep. 32, para. 55, discussed in Cassese, supra, at 88 [hereinafter "Western Sahara case"]. 29 -30-whether they wished to have political independence.131 The Court concluded: "The validity of the principle of setf-detennination, defined as the need to pay regard to the freely expressed will of the peoples, is not affected by the fact that in certain cases the General Assembly has dispensed with the requirement of consulting the inhabitants of a given territory. Those instances were based either on the consideration that a certain population did not constitute a 'people' entitled to self-determination or on the conviction that a consultation was totally unnecessary, in view of special circumstances."132 The decision of the ICJ in the 1986 "Frontier Dispute Case" involving the doctrine of uti possidetis was evidence of another move towards pure positivism.133 By 1995, after significant changes had been made to the bench of the ICJ, the majority opinion came down heavily in favour of a purely positivist approach in the East Timor case.134 This is significant because it suggests that the very basis of international law, which has formed the basis of the exercise of the right to self-deteimination, is questionable, thus leading to many of the current controversies over the practical application of the right. These issues also go to the gravity of any crime that may be identified, and whether self-determination is a suitable topic for international criminal law at all. 1.5 Overview of Chapters The arrangement of Chapters in this thesis is based largely upon Bassiouni's five stages, as described above. However, the first substantive Chapter (Chapter Two) provides an initial analysis of the philosophical and political basis of the principle of self-detennination, in order to set the scene for later developments of the principle. The second substantive Chapter (Chapter Three) then addresses Bassiouni's first stage: the "Enunciative Stage" of self-determination. Chapters Four and Five 131 Cassese, "Self-Determination'', supra at 88-89. 1 3 2 Western Sahara case, supra at 33, para. 59. 133 Case concerning the Frontier Dispute (Burkina Faso v Republic of Mali), [1986] ICJ Rep., 554 [hereinafter "Frontier Dispute case"]. 1 3 4 Discussed below in Chapter Six, in the discussion on the enforcement of the right to self-determination. 30 -31-analyse stages two and three, respectively, namely the "Declarative Stage" and the "Prescriptive Stage". \ Chapter Six analyses the current status of the right to self-detennination in international law, as well as current mechanisms for its enforcement (the "Enforcement Stage"). Finally, Chapter Seven explores the potential for future criminal proscription for severe breaches of the right to self-determination (the "Criminalisation Stage"). The thesis concludes with the suggestion that the right to self-determination may be relevant to the crime against humanity of "persecution", as defined under the Rome Statute. Under article 7(l)(h) & (2)(g), "persecution" is defined as "the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity ... in connection with any act referred to in ... paragraph [(1)] or any crime within the jurisdiction of the Court". The author suggests that the right to self-determination is one of the "fundamental rights" envisaged by those who drafted article 7, or which should have been envisaged by them. Thus, the right to self-detennination appears to have reached the "Criminalisation Stage", which will become more apparent when the ICC commences an investigation for such a crime. 31 Chapter Two: The Philosophical and Political Basis of the Principle of Self-Determination. -32-In the English-speaking wodd, the "principle of sdf-deterrnination" is widely regarded as having been "fathered" by US President Woodrow Wilson, when he included a reference to the "principle of national self-detemiination" in his famous "Fourteen Points" speech on principles for a "fair and just peace", in 1918.135 In an eadier speech, in 1917, he had stated: "No peace can last or ought to last, which does not accept the principle that governments derive all their just powers from the consent of the governed, and that no right anywhere exists to hand peoples about from sovereignty to sovereignly as if they were property."13* However, the "principle of self-determination" had a much lengthier incubation period than this sequence of events may suggest. The word "selbstbestimmung", from which the English term derives, was being used by radical German philosophers as eariy as the 1840's.137 Even in political terms, the right of all nations to self-determination was advocated by socialist congresses from at least 1886138 and in 1916 Vladimir Lenin had championed this right for all colonised peoples, as the cornerstone of his programme of socialist internationalism: "The right of nations to self-determination implies exclusively the right to independence in the political sense, the right to free political separation from the oppressor nation. Specifically, this demand for political democracy implies complete freedom to agitate for secession and for referendum on secession by the seceding nation."139 The import of the principle into global politics represented the ailrnination of a range of philosophical and political trends mat eventually gained currency due to the exigencies of the international political M. Moore, supra, at 2-3. Cf. Discussion below on the Wilsonian concept of "self-determination''. 1 3 6 J.B. Scott, ed., Official Statements of War Aims and Peace Proposals, (1921) at 52, in M.C. van Walt van Praag, Tibet and the Right to Self-Determination, (Dharamsala, India: Information Office, Central Tibetan Secretariat, 1979) at 5. Note van Walt van Praag's observation that this statement was obviously influenced by the philosophies of Locke, Rousseau, Mill and Jefferson. Cf. Chapter Three below for more discussion on this point. 1 3 7 Ofuatey-Kodjoe, supra, at 21. 1 3 8 Sunga, supra, at 92. 1 3 9 V. Lenin, The Significance of the Right to Self-Determination and its Relation to Federation, 22 Collected Works (Jan.-Feb. 1916), in Sunga, ibid at 143-148. Cf. Discussion in Chapter Three below on the socialist concept of "self-determination" and its limited application. 32 - 33 -situation in the late nineteenth and early twentieth centuries.140 Thus, in order to understand what was meant by those who introduced the political concepts of "self-detennination" to the wodd stage in the early twentieth century, it is necessary first to examine its diverse philosophical and political origins, in order to understand how the relevant "intellectual and social processes" had managed to shape self-deterrnination into an "internationally perceived shared" value by this time.141 In this Chapter, I will analyse the basis of the principle of self-determination, identifying both its political and its philosophical roots. I will then discuss how the ideas behind this principle were shaped and guided by a range of circumstances, over many regions of the wodd, from the time of Aristode, to the beginning of the first World War. 2.1 Self-determination and 'freedom" Dr. Ian Brownlie suggests that the "ideological roots of self-determination are to be found in at least three distinct but related concepts which can be traced in the history of Western philosophy."142 He identifies these as: (j) free will; (if) egalitarianism; and (iii) "social contract" theories, whereby the acceptance of "the authority of the monarch" by her/his subjects was supposed to be conditional upon the performance by the monarch of certain duties to look after them.143 Since ancient times, variants on each of these ideas have manifested themselves in diverse political and social forms, and faced periods of both broad support and attempts to suppress them, depending upon the influence of their respective supporters at any given time, with the twentieth century no exception.144 Thus, the "values" undedying the "principle of sdf-deterrnination" are a farrago of often contradictory ideas. 1 4 0 Ofuatey-Kodjoe, supra, at 22. 141 Bassiouni, "Proscribing Function", supra, at 181. 1421. Brownlie, "An Essay in the History of the Principle of Self-Determination", in Alexandrowicz, supra, 90 at 91. Note Brownlie's assertion: "The writer is not competent to refer to developments in other philosophies, but as a matter of progenitive political influence, both simple, and indirect in the form of counter-products and contradictory derivatives such as marxism, it is Western philosophy that is most relevant to the enquiry." (ibid.) It is beyond the scope of this paper to explore this assertion any further. 1 4 3 Ibid. As Brownlie points out, the most influential theorists who propounded the "social contract" theory and its related concepts were Grotius, Hobbes, Locke, Paine, and Rousseau. 1 4 4 As one example, witness the changing attitudes of the Roman Catholic Church to the concept of "free will", from the time of the Spanish Inquisition to the Second Vatican Council in the 1960's: cf. generally, the Vatican website, online: <http://www.vatican.va>. 33 -34-One of the greatest problems faced by those who agitate for "self-determination", is its relationship with the "idea of freedom", which is itself difficult to define with any clarity.145 To many, self-deterrnination tr freedom, the ultimate and greatest freedom, encompassing all other forms of freedom. This is what gives self-determination such appeal to those who seek it, and reservations to those who are asked to grant it to others. Absolute freedom of any one party is usually at the expense of another party, and because assertions of the right to self-deterrnination are frequently made in absolute terms, they give the unfortunate impression that self-determination of any kind is necessarily a grave threat to order and stability in a society.146 Yet "freedom" is one of the highest values that human beings aspire to.147 While individual freedom may only be a Judao-Christian, or "Western" value,148 the freedom of a community to deterrnine its own destiny is supported by both Western and non-Western philosophical and religious traditions. For example, note the wide-ranging acceptance given by a broad range of culturally diverse States to the International Convention on the Elimination of all Forms of Racial Discrimination^9 Aristode was the earliest Western philosopher known to have advocated "political liberty", by which he meant that all citizens have a right "to rule and be ruled in turn",150 as long as they "live according to the rule of the constitution; for it is their salvation."151 Of course, he did not extend this idea to slaves or to 1 4 5 M. J. Adler, The Idea of Freedom: A Dialectical Examination of the Conceptions of Freedom, (New York: Doubleday & Co., 1958). 1 4 6 In fact, as discussed previously, self-determination today is most often associated in people's minds with egregiously violent ethnic conflicts that have left many communities destabilized and anything but "free". 1 4 7 However, note Erich Fromm's thesis that human beings also fear freedom, in E. Fromm, Escape from Freedom, (New York: Rinehart & Co., 1941), and George Bernard Shaw's famous statement: "Liberty means responsibility. That is why most men dread it" 1 4 8 See generally, T. Franck, "Is Personal Freedom a Western Valuer, (1997) 91 Am. J. Int'l Law, 593 [hereinafter Franck, "Freedom"]. 1 4 9 For example, China (acceded in 1981), Cambodia (ratified in 1983), Egypt (ratified in 1967), India (ratified in 1968), Indonesia (acceded on 25 June 1999), Islamic Republic of Iran (ratified in 1968), Japan (acceded in 1995), Mongolia (ratified in 1969), Namibia (acceded in 1982), and Nepal (acceded in 1971). The Convention had 77 signatories and 155 parties, as at 25 September 1999 (for full list, cf. UN Treaty database, online <http://www.un.org/Depts/Treaty>). 1 5 0 W.D. Ross, ed., The Works of Aristotle, vol. X {Politico), trans. B. Jowett (Oxford: Oxford University Press, 1921) at Book VI, Ch. 2,1317b 1-2, in Adler, supra, at 332. 151 W.D. Ross, ibid, at Book V, Ch. 9, 1310a 25-36, in Adler, ibid. 34 -35-women at the time, because he viewed political liberty as a relative right, based on social status, not an absolute right for all human beings.152 According to one view, subsequent dunking on the issue can be reduced to three, non-exclusive categories of theories of freedom:153 ® that everyone has a circumstantial ability to act as s/he wishes, in other words the exercise of this freedom depends upon the existence of the appropriate circumstances to facilitate such exercise (sometimes referred to as "self-realisation");154 (ii) that everyone has an acquired ability to live as s/he ought, also known as "self-perfection",155 or "collective freedom"156 (that is, having "attained a certain state of mind or character",157 which is not necessarily attainable by all, the individual and/or the society can freely develop its own moral/paradigmatic values, but once again the free exercise of these values depends upon the availability of conducive circumstances); and (iii) that everyone has a natural ability to determine for her/himself what s/he wishes to do or to become, but cleady is dependent upon circumstances to provide the opportunity then to act according to those wishes (sometimes referred to as "self-determination" in the philosophical sense)158. In each case, the right circumstances must be present in order to allow the exercise of the freedom. This is essentially what those who are seeking self-determination are concerned with: provision of contingencies for the exercise of freedom/s. Without such contingencies, one does not have true freedom, even if one has the "acquired" and/or "natural" freedoms described above. As suggested by Frederic L. Kirgis, Jr. in 1994, in the legal context different "degrees of self-determination" may be appropriate, depending upon the amount of freedom that the group or entity has W.D. Ross, ibid, at Book I, Ch. 5-6, 13, in Adler, ibid, at 331. Similar criticisms can be levelled at those who drafted the American Constitution and Bill of Rights, neither of which documents attempted to address the rights of African slaves to be free in the new federation, nor the rights of women to equality. Cf. Discussion below, this Chapter. 1 5 3 Adler, ibid, at 592-4. Note that this view is based on an analysis of Western philosophical traditions only. 1 5 4 This is the view taken by, eg. Bentham, Hobbes, Kelsen, Mannheim and Voltaire: cf. Adler, ibid, at 592. 1 5 5 This perception has been championed by a diverse group of theorists, including Plato, Seneca, Marcus Aurelius, Saint Thomas Aquinas, and John Locke: cf. Adler, ibid, at 250, 553-555, 592-594. 1 5 6 This variant of acquired self-perfection was suggested by Comte, Engels, Marx, and Nietzsche: cf. Adler, ibid, at 592. 1 5 7 Adler, ibid, at 250. 1 5 8 Such a view has been taken by, eg. Aristotle (within the limits described above viz-a-viz slaves and women versus citizens), Saint Augustine, Cicero, Descartes, Epicurus, Maimonides, Rousseau, and Sartre: cf. Adler, ibid, at 592-3. 3 5 -36-already.159 For example, a group or entity that has a significant amount of freedom does not require as much of an alteration in circumstances as a group or entity that has little or no freedom. In the latter case, full autonomy or secession may be the only means of providing the right circumstances for the group or entity to exercise any freedom.160 Clearly there must be a balance between competing claims for freedom. Theories on how to achieve this balance vary widely, according to the theorist's view of the innate qualities of human beings. As Martti Koskenniemi elaborates, there are two competing approaches to this aspect of the principle of self-detenrunation, essentially reflecting the dichotomy between positivist and natural law theories.161 The first is what he terms the "classical, or Hobbesean, conception of self-determination. It starts from the assumption that the authentic expression of human nature in primitive communities is something essentially negative - that unless it can be channelled into formally organised States, whatever natural bonds exist will not prevent a bellum omnium."162 The emphasis of this approach is on the procedures for enforcing participation in the conduct of the State, and on maintaining the territorial inviolability of States.163 It presupposes that complete intolerance of all those who are not in the group is always the motive for that group to seek greater independence, rather than a simple desire to provide the group with sufficient freedom to maintain its own values and traditions, in order then to live more securely and harmoniously with its neighbours.164 1 5 9 F. Kirgis, "The Degrees of Self-Detennination in the United Nations Era", (1994) 88 Am. J. Int'l Law 304 at 308-310. 1 6 0 As I will discuss in further detail below (Chapter Six), many commentators have suggested that parts of General Assembly Resolution 2625 (XXV) of 24 October 1970 (the "Friendly Relations Declaration") support this view of self-detennination as a relative right. The "Friendly Relations Declaration" only appears to prohibit secessionist activities in "States conducting themselves in compliance with the principle of equal rights and self-determination of peoples ... and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour": paragraph 7, "The principle of equal rights and self-determination of peoples". 161 Koskenniemi, "National Self-Determination", supra, at 249. Cf. Discussion in Chapter One (Introduction), on how this dichotomy has manifested itself in terms of international law itself. 1 6 2 Koskenniemi, "National Self-Determination", ibid. 1 6 3 For example, cf. M. Eisner, "A Procedural Model for the Resolution of Secessionist Disputes", (1992) 33 Harv. Int'l L. J. 407. 1 6 4 For example, in 1992, then UN Secretary-General Boutros-Boutros Ghali warned: "if every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace, security, and well-being for all would become even more difficult to achieve": UN Doc. A/47/277; S/24111, 17 June 1992. 36 -37-By contrast, the second approach identified by Koskenniemi emphasises the end that is to be achieved: "whether [the exercise of popular will] participates in the natural life-form appropriate for each nation as an authentic (and not artificial) community."165 As one example of this approach, Brownlie has argued that the "core" of the principle of self-determination "consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives."166 Koskenniemi calls this the "romantic or ... rousseauesque approach. ... For it, me primitive is good, something that was tragically lost in the political struggles that organised themselves into the State and that must now be resuscitated so as to escape the legitimation crisis of the modem State and the malaise of (Western) civil society."167 One writer has labelled the current manifestation of this approach "postmodern tribalism", cleady trying to evoke positivist concerns over "primitive" behaviour and the need to repress it. 1 6 8 These two competing approaches can also be characterised as the philosophical difference between freedom from (eg. oppression) and freedom ta (do and/or be whatever one wishes).169 Differing philosophical approaches to the law and to "freedom" over the centuries have been reflected in corresponding changes in the practices and attitudes of those in power, particularly in relation to the way that indigenous communities the wodd over have been perceived and treated by European 1 6 5 Koskenniemi, "National Setf-Determination'', supra, at 250. For example, cf. Gerry Simpson's "critical variables" that should be taken into account when assessing the legitimacy of a right to secede, and which include moral, economic, political and legal factors: Simpson, supra, at 245-258. 1 6 6 Brownlie, supra, at 90. 1 6 7 Koskenniemi, supra, at 250. 1 6 8 Thomas Franck^  who coined the term "postmodern tribalism", writes derisively: "Tribalism, in its postmodern form, is not - as it once was perceived - the exclusive property of so-called backward peoples. It is now openly flaunted everywhere, unapologetically, with zealously raised arms and firearms. It manifests itself in efforts to break up, equally, the old nations of Europe (such as the Union of Scotland with England and Wales), the nineteenth century nations of the Americas (such as Quebec's pursuit of secession from Canada) and the newest nations of the third world (such as the Karen effort to secede from Myanmar). Postmodern tribalism seeks to promote both a political and a legal environment conducive to the breakup of existing sovereign states. It promotes the transfer of defined parts of the populations and territories of existing multinational or multicultural states in order to constitute new uninational and unicul rural - that is, postmodern tribal - states.": Franck, "Postmodern Tribalism", supra, at 3-4. Note that Franck's comments need to be viewed in the context of what was happening at the time that he presented this paper in Europe in 1992, namely, the break-up of the Former Republic of Yugoslavia. Croatia and Slovenia bad declared their independence from the Yugoslavian Federation in 1991 and were contending with an aggressive Serbian response. Bosnia-Herzegovina followed this lead in 1992, sparking the Bosnian-Serb uprising against the other ethnic groups in Bosnia, which continued through to 1995, when the Dayton Agreement was signed. Cf. Discussion below in Chapter Six, and V. Morris & M.P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 1, (New York: Transnational Publishers, 1995). 1 6 9 Koskenniemi, "Self-Determination", supra, at 250, 37 -38-nations.170 For example, wimess the prevalence of the Aristotelian/Christian idea of a "just war", whereby "superior" people had a duty to bring "enlightenment" to the "unenlightened" wodd, by forceful means if need be.171 During the era of colonisation, European monarchs believed that they had a God-given right to acquire territory through conquest, in order to bring "salvation" to the peoples of that territory. If they won a battle, it was seen as the will of God in operation, thereby justifying their actions, no matter how barbaric these were.172 22 The rise of "natural law" theories In the sixteenth century, Francisco de Vitoria and Bartolome de Las Casas, two Spanish priests, tried to suggest that there were some limits on the right of the "civilised" wodd to treat their newly conquered, "uncivilised" subjects in any way they chose.173 They argued that the "Indians of America" - newly "discovered" by Columbus174 - had some "basic" forms of governance, which suggested that they possessed at least a small amount of "reason" and therefore warranted treatment as human beings, not mere animals, "for they have polities which are ordedy arranged and they have definite marriage and magistrates, ovedords, laws and workshops, and a system of exchange, all of which call for the use of reason."175 Vitoria then went on to suggest mat both the Indians and the Spanish were bound by a "universal natural law"'Jus gentium, by reason of the fact that they both possessed reasoning ability.176 However, as Anghie points out, although this perspective was the first attempt to suggest that the Spanish monarchy had some "universal natural law" obligations to treat the Indians with some dignity, Cf. Discussion in Chapter One (Introduction) as well. 171 Cf. CR. Beitz, "Covert Intervention as a Moral Problem", in J.H. Rosenthal, Ethics and International Affairs: A Reader, (Washington, DC: Georgetown University Press, 1995) 171 at 175-176; and Wilmer, supra, at 95. 1 7 2 Note the similarities between the Christian "just war" concept, and the Islamic "jihad", or "Holy War", which provided a similar means of justification for Muslim territorial conquests. 1 7 3 Cf. J.B. Scott, The Spanish Origin of International Law: Francisco de Vitoria and his Law of Nations, (Oxford: Clarendon Press, 1934); G.C Marks, "Indigenous peoples in International law: The Significance of Francisco de Vitoria and Bartolome de Las Casas", (1993) Aus. Y.B. Int'l L. 1; and A. Anghie, "Francisco de Vitoria and the Colonial Origins of International Law", (1996) 5 Soc. & Leg. Studies 321 [hereinafter Anghie, "Vitoria"]. 1 7 4 On the doctrine of "discovery" cf. S.H. Venne, Our Elders Understand Our Rights: Evolving International Law Regarding Indigenous Peoples, (Penticton, British Columbia: Theytus Books, 1998) at 8-10; and Lindley, supra, at 129-132. 1 7 5 F. de Vitoria, De Indis Et Ivre Belli Relectione (1557), trans. Nys and Bate, (Washington: Carnegie Institute, 1917) at 127, para. 333, quoted in A. Anghie, "Universality and the Concept of Governance in International Law", in Quashigah & Okafor, supra, at 24 [hereinafter Anghie, "Universality"]. 38 - 3 9 -"the "universal" standard is revealed, upon further scrutiny, to be an idealised European standard which is projected onto the Indians. Once brought into the realm of the universal natural law, the Indians are bound by a series of doctrines which they must almost inevitably violate because these doctrines reflect the standards and realities of European societies."177 As Anghie argues further, the Indians were punished for failing to observe such "fundamental principles of natural law" as the right of the Spanish to travel wherever they wished on Indian lands. The punishment usually consisted of waging a war, which Vitoria argued was a "just war", and therefore in his view sufficient legal basis for completely dispossessing the Indians of their land and acquiring sovereignty over them when the militarily superior Spanish invariably won the war.178 Las Casas differed slighdy from Vitoria in his views on the validity of such means of acquiring territory, and in 1550, in response to a growing number of reports on the "horror of colonisation",179 the King of Spain established a "Council of the Indies" to debate the moral and legal issues that were involved. Of course, no indigenous people were invited to participate, since they "were not seen as legitimate peoples in the eyes of the Spanish."180 Instead, Las Casas represented their views to the Council, arguing against the views of another eminent jurist, Juan Gins de Sepulveda, who based his case for treating Indians as animals largely on some of the teachings of the Bible.181 Ultimately, the Council decided that the most important objective of colonisation was to bring their version of Christianity to the Indians, by all available means. This included killing any unbaptised Indians, if necessary, and acquiring as much of their territory as possible.182 Thus, Vitoria's and Las Casas' more humane approaches had no influence at the time, and the European conquest of the entire "uncivilised" wodd continued unabated.183 1 7 6 Anghie, "Universality", ibid. 1 7 7 Anghie, ibid, at 25. 1 7 8 Anghie, ibid, at 25-26. 1 7 9 Venne, supra, at 5. 1 8 0 J.C. Mohawk, "Indians and Democracy: No One Ever Told Us", at 50, in Venne, ibid, at 7, n.28. 181 Venne, ibid, n.26. 1 8 2 Mohawk, supra, at 7. 1 8 3 In recent years, various scholars have again focussed on the ideas of Vitoria and Las Casas, to highlight the hypocrisy and injustice of colonial treatment of indigenous peoples in the Americas, arguing that it continues to affect the way indigenous people are viewed and treated today. For example, cf. D. Sanders, "The Re-Emergence of Indigenous Questions in International Law", (1983) 1 Can. Hum. Rts. Y.B. 3 [hereinafter: Sanders, "Indigenous Questions"]. Cf. Discussion of indigenous rights to self-determination, below in Chapter Six. 39 -40-However, the connection between monarchs and their so-called "divine rights" was subsequendy challenged by another group of influential European philosophers from what is now known as the "natural law" tradition, although the emphasis of writers such as Hobbes and Locke was on the rights of "civilised" individuals to be free from tyranny.184 They asserted that such individuals should be at the centre of society, not the monarch.185 Rousseau, who was highly influential during the French Revolution, then took this idea further, suggesting that individual liberty, once attained, should then evolve into a sense of responsibility towards one's community, or an ongoing collective "sovereignly" of the people.186 However, these writers did not challenge the way that colonised peoples were being treated by their new "sovereigns". While drawing upon some of these natural law propositions, another influential European jurist, Emer de Vattel, also expounded a theory that "ownership" of land could be distinguished from "sovereignly" over that land.187 Ownership, in his view, was the right to use and to dispose of a designated portion of land for the supply of one's necessities, and entailed an obligation to cultivate the land so as to make the best use of it. His idea of "sovereignty" is the basis of our current conception of that term: total control over a defined territory, which may include land "owned" by different peoples. In Vattel's view, each sovereign "nation" was obliged to exploit the natural resources of its territory to the fullest, in order to attempt to sustain its entire population thereby.188 Thus, colonising nations could justify their claims to the resources of any land where indigenous groups were not taking full advantage of its agricultural potential.189 By the late 1700's, this emphasis on "developing" the land was married with Hobbesean notions of "civilisation" versus "barbarism".190 Not only was the land to be cultivated, but so were the "primitive" 1 8 4 See also Chapter One (Introduction). 1 8 5 Simpson, supra, at 16. And note that Hobbes distinguished between the rights of "civilised" peoples and those of "barbarians", in much the same way as Aristotle bad argued that different rights attached themselves to citizens as opposed to slaves. 1 8 6 J.J. Rousseau, The Social Contract, (1762), in Simpson, ibid, at 16-17. 1 8 7 He was influenced greatly by Grotius, Pufendorf, and Locke. Cf. Discussion above on the influence of Vattel's theories on international law, in Chapter One (Introduction). 1 8 8 See generally, de Vattel, supra. 1 8 9 Note that this emphasis on developing the resources of the world is merely an extension of the "just war" philosophy, also arising out of Christian ideology. 1 9 0 T.C. Patterson, Inventing Western Civilization, (New York: Monthly Review Press, 1997). 4 0 -41-peoples of the world. They were to be "freed" from their "backward" ways, not just in the religious sense. The extent to which they asserted control over the land they lived on determined how "advanced" they were, in the minds of many positivist theorists at the time, as well as the many explorers who were influenced by such theorists.191 Thus, when Captain James Cook of England arrived in Australia in 1788, he was able to conclude quickly that the Australian Aborigines were not "in possession" of their land, as he understood that concept, because he could perceive no attempt on their part to manipulate it in any way. Further, he lacked the ability to appreciate the complexities of traditional Aboriginal laws and customs regarding land ownership, and claimed it for Great Britain, as terra nullius, or "land of no-one".192 Similar theories and policies had driven and justified global colonial expansion and, in particular, the slave trade in Africa, for many centuries.193 By contrast, treaties conferring various benefits in return for land were concluded between many colonial powers and those groups who exhibited forms of governance that were more familiar to Western eyes, such as the British Roy<al'Proclamation of 1763,194 the Treaty ofWaitang between the British and the Maori people of New Zealand, and many treaties between European powers and African tribes.195 2.3 The American and Trench Revolutions To some extent, the American and the French Revolutions were driven by "natural law" theories of the right of "civilised" peoples to determine under whose sovereignty they should live.196 In both cases, For example, Adam Smith in Scotland, Turgot in France, and later James Lorimer in Britain. 1 9 2 This situation was not remedied until 1992, when the High Court of Australia finally rejected the application of the doctrine of terra nullius to Australia, in the case ofMabo v Queensland (No.2) (1992) 175 CLR 1. 1 9 3 The slave trade was justified by claims that the Africans were not really "humans". 1 9 4 Which confirmed the boundaries between British colonies and indigenous territories in the aftermath of the British/French war of 1755-1763 in the Americas. As Venne points out, this Proclamation "refers to Indigenous Peoples as "Nations", as distinct societies with their own forms of political organization with whom treaties had to be negotiated ... [and with] an inalienable right to their lands.": Venne, supra, at 8, n.34. 1 9 5 Cf. Discussion in Chapter One (Introduction). 1 9 6 Umozurike points out that John Locke's natural law theories were highly influential both on Thomas Jefferson ("the greatest leader of the American Revolution") and on the French philosophers Montesquieu and Rousseau, who "influenced the commoners as well as the younger nobles" to revolt against the French monarchy: Umozurike, supra, at 6-11. However, some writers argue that the American Revolution was based merely on the "philosophy" that the states involved did not want British rule, rather than any belief in the inherent rights of humankind: cf. D. Cameron, Nationalism, Self-determination and the Quebec Question, (Canada: Macmillan, 1974). 41 -42-these revolutions were an explicit rejection of the "divine right" of monarchs or other oppressive rulers to dictate the destiny of the people in their territory.197 However, the focus in the American Revolution was more on individual liberty,198 as conceived by Locke, than on the community-oriented views of Rousseau that inspired the French Revolution.199 The new American federation focused predominandy on building its national identity by strengthening the ties between the states mat had already joined the Union, and encouraging other states to follow, but not through forceful means. It also recognised the right of each state to maintain its own identity through self-government.200 In addition, the American Declaration ojIndependence of 1776 emphasised that there was an ongoing right to challenge the legitimacy of any government that purported to control people's destinies: "Governments ... deriv[e] their just Powers from the Consent of the Governed,... [and] whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it and to institute new Government, laying its Foundation on such Principles and organising its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness."201 As pointed out previously, however, the "Right of the People" to overthrow oppressive regimes did not extend to slaves or to the indigenous people of North America at the time, who were not considered "civilised" enough to be able to exercise such rights wisely.202 Instead, the new American Constitution simply handed control of the "Indian nations" to the new Congress.203 By contrast, all those living in French colonial territories were initially awarded the same rights as those living in France itself, according to a revolutionary decree promulgated just after the Declaration des droit 1 9 7 A. Rigo Sureda, The Evolution of the Right of Self-Determination: A Study of United Nations Practice, (Leiden, The Netherlands: A. W. Sijthoff International PubUshing Company, 1973) at 17. 1 9 8 Which focus was then applied to each existing state, as if it were an "individual". 1 9 9 Simpson, supra, at 16. 2 0 0 However, the differing attitudes of various states towards slavery at the time of federation, were ultimately "homogenised" through forceful means, during the American Civil War. 2 0 1 In Umozurike, supra, at 8. 2 0 2 Some would argue that it still does not apply to minority groups in America, particularly indigenous groups: cf. discussion below in Chapter Six. 2 0 3 For a discussion on how this was later interpreted by the US Supreme Court as a recognition of the "preconsututional sovereignty" of native Americans, which had been lost through conquest, cf. RJ . Perry, From Time Immemorial: Indigenous Peoples and State Systems, (Austin, Texas: University of Texas Press, 1996) at 95. 4 2 -43-de I'homme et atoyen,204 which stated: "all men, without distinction of colour, domiciled in the French colonies are French citizens and enjoy all the rights assured by the Constitution."205 But by 1792, another decree imposed the death penalty on anyone who tried to cede any part of France's territory. Thus, the indigenous peoples of the French colonies cleady were not supposed to agitate for their choice of sovereign. In the same way, the new French nation also proceeded to deny any right of self-deterrnination even to other "civilised" peoples who were successfully conquered by Napoleon Bonaparte and his army. The Declaration des droit de I'homme et citoyen guaranteed the rights of French citizens to equality and to self-government, and initially inspired the holding of plebiscites in various neighbouring regions, to give the people there a choice on whether or not to join the new French Republic.206 However, in 1792, a plebiscite was held in Belgium that only allowed French-sympathisers to vote, signalling the end of genuine free choice as to one's sovereign, by all the peoples of a territory that was being considered for acquisition by the French Republic.207 In fact, Dr. Umozurike Oji Umozurike argues that the principle behind the idea of the plebiscite "was abused, for it became an end in itself, being used to justify the annexation of territory that belonged to another sovereign."208 Thus, France's embrace of nationalism and its own "liberty" superseded any concerns it may have had over the application of the same standards of freedom it had enjoyed, to other peoples who were forced to join the French Republic. 2.4 Latin American decolonisation and "utipossidetis" By the beginning of the nineteenth century, Spanish and Portuguese control over their southern American territories was so complete that they decided it was safe to grant autonomy to their representatives in these territories. However, the authorities of the New Spain wanted more than just autonomy; they wanted complete independence. Thus, the various Latin American countries were 204 Declaration of the Rights of Man and Citizen, 1789. 2 0 5 In Umozurike, supra, at 10. 2 0 6 Plebiscites were held in the papal enclaves of Avignon and Venaissin in 1791, in Savoy in 1792, and in Nice in 1793: Umozurike, ibid, at 10-11. 2 0 7 Simpson, supra, at 19. 2 0 8 Umozurike, supra, at 11. 43 -44-formed, as a result of both revolutions and via a host of bilateral treaties and new constitutions.209 It was decided that the boundaries of these new countries should follow the boundaries established during the colonisation period, a concept that has come to be known as "uti possidetis", which literally means "as you now have in your possession".210 This was intended to avoid future territorial disputes between die new nations, based on any historical attachments to territory which pre-dated colonisation. In relation to the indigenous peoples of these territories, immediately prior to independence a protectionist policy had been in place which "served to recognise, marginalize and separate the indigenous societies while, in many cases, also giving them territorial and cultural space sufficient for their survival and reproduction."211 However, the move to independence "radically changed"212 the status and situation of the Latin American indigenous peoples. It is beyond the scope of this paper to discuss how independence separately affected the wide range of different indigenous groups throughout the continent of what is now Latin America.213 However, Jose Bengoa, Director of the Special Committee on Indigenous Peoples in Chile, suggests that "liberal" views on the equality of all peoples, which came from the "French tradition of enlightenment", translated into a general policy of "formal equality" throughout Latin America, which has persisted to the present day.214 He argues that this ideology was responsible for the assimilation and destruction of many indigenous cultures, while those cultures that "did not disappear survived because they had rriaintained a hostile attitude towards colonisation and in many cases defended their resources and lands by the use of arms."215 2 0 9 Cassese, "Self-Determination", supra, at 190. 2 1 0 Cf. Chapter One and also discussion below in Chapter Five of how this concept was then also applied during the decolonisation of Africa. 2 1 1 J. Bengoa, "Indigenous development and autonomy", in L. van der Vlist, ed., Voices of the Earth: Indigenous Peoples, new partners & the right to self-determination in practice, (Amsterdam: The Netherlands Centre for Indigenous Peoples, 1994) 30 at 31. 2 1 2 Bengoa, ibid. 2 1 3 For some discussionof this, including on the way that this period impacted on the present situation of indigenous peoples in Latin America, see eg. I. Acosta G., "The case of the Pech in Honduras"; E. Pereira & A. Da Cruz, "Indigenous peoples of the Brazilian Amazon; struggle for autonomy"; E. Potiguara, "Indigenous peoples of northeast Brazil; double discriminated peoples"; L. Maldonado & M. A. Carlosama, "A new relationship between peoples" (which discusses the situation of the Quichua people in Ecuador); and A. Morales Guerrero, "Economic, social, and cultural rights: of the Kuna people of Panama"; all in van der Vlist, supra (all papers and/or presentations from the Voices of the Earth Conference, held in 1993 in the Netherlands). See also R. Peny, supra, at 57-65, on the situation in Mexico. 2 1 4 Bengoa, supra, at 31. 2 , 5 Bengoa, ibid, at 32. 44 - 4 5 -By the end of the nineteenth century, Bengoa suggests that indigenous peoples in Latin America had separated themselves into two kinds of groups, both of which were at a significant disadvantage within the larger community. The first group, who were largely situated in agricultural areas and came to take part in "the forced labour system (peonaje),... became part of the most impoverished social class within Latin American countries, in general the poor peasantry."216 They have maintained some of their distinctive traditional clothing, languages, and festivities to this day, but Bengoa argues that they "were not ethnically recognized by the larger societies and the states, who conjoined them under the social group of peasants."217 The other kind of group "took refuge" in "relatively inaccessible geographical areas" after independence, rather than face assimilation, and thus managed to preserve more of their traditional beliefs and customs. However, as Bengoa argues, these peoples have always been "viewed by the higher levels of society with suspicion and disregard ... [and they] are considered "primitive"" by comparison.218 2.5 The "scramble for Africa™ While the British, French, Spanish and Portuguese governments had dominated the colonisation of the Americas, the continent of Africa was claimed by a larger range of European nations, all competing for access to the resources of the lands: Great Britain, France, Germany, Belgium, Portugal, Italy, and Spain all claimed territory in Africa. As one commentator has suggested: "Africa, in the rhetorical metaphor of imperial jingoism, was a ripe melon awaiting carving in the late nineteenth century. Those who scrambled fastest won the largest slices and the right to consume at their leisure the sweet, succulent flesh. Stragglers snatched only small servings or tasteless portions; Italians, for example, found only deserts on their plates."220 2 1 6 Ibid. 2 , 7 Ibid. 2 1 8 Ibid. Some of these groups continue to this day to agitate for greater recognition of their rights to control the land with which they managed to stay connected, eg. the Mayan people of Chiapas, Mexico, some of whom formed part of the "Zapatista Army of National Liberation": cf; Perry, supra, at 80-83. 2 , 9 cf. Mutua, "Why Redraw", supra, at 1126. 2 2 0 C. Young, "The Heritage of Colonialism", quoted in Mutua, "Why Redraw", ibid, at 1126, n.38. 45 -46-By the mid-1800's, the various European powers with territory in Africa, mosdy won by force and/or deceit,221 decided to carve the continent up between themselves peacefully, rather than resort to hostilities.222 This agreement was manifested in the 1885 Treaty of Berlin,122 which divided Africa mosdy according to European political and economic interests, rather than in accordance with tribal boundaries or any other issues relevant to the original inhabitants. As Mutua points out, "only Botswana, Burundi, Egypt, Ethiopia, Lesotho, Madagascar, Morocco, Rwanda, Swaziland, and Tunisia have any meaningful pre-colonial territorial and political identity."224 In other words, all of the current West African nations, and most of those in eastern, central and southern Africa are creations of their European colonisers. No Africans were consulted as to the appropriateness or otherwise of the method of dividing up their territory.225 Yet the colonial powers purported to act at least partially in what they argued were the best interests of the African peoples as a whole, attempting to "stabilise" the continent for its peoples by imposing ineluctable borders around lands that were the subject of disputes between tribes. As Siba N'Zatioula Grovogui states: "... the Bedin regime reasserted Western superiority and facilitated the conquest and exploitation of Africans. It effected Africa's marginality and subordination to Europe by articulating African otherness in a new system of signs that posited African disorders in the cultural and political spheres as a key justification for European political control. The formal colonisation of Africa was construed as the means to African spiritual and political salvation, economic regeneration, and civilisation."226 \footnote omitted] For example, Germany managed to conclude treaties in the 1880's with the Hereto, Baster, and Nama peoples of South West Africa/Namibia, by deceiving them into believing that some of their sovereign rights would be protected under the new system of German colonial administration. The Basters had a system of laws that even the Europeans could recognize, yet the Germans arrogated to themselves full sovereignty over the three territories, on the premise that the land was terra nullius. It was on this basis that Germany then defended the territory against British claims: cf. J. Dugard (ed.), The South West Africa/Namibia Dispute: Documents and Scholarly Writings on the Controversy Between South Africa and the United Nations, (Berkeley: University of California Press, 1973) at 20-22. 2 2 2 Although Britain and Germany continued to threaten one another with the use of force over ownership of South-West Africa until 1890, when they finally concluded the Anglo-German Agreement of 1890, which defined the boundaries of German South-West Africa: Dugard, ibid. ^General Act of the Berlin Conference, 26 February 1885. Cf. Discussion in Chapter One (Introduction). 2 2 4 Mutua, "Why Redraw", supra, at 1115, n.6. 2 2 5 See generally D.C.J. Dakas, "The Right to Self-Determination in the African Post-Colonial Context: Partition or Perish?", 03erkeley-Stanford Joint Conference on Africa, Stanford University, U.S.A., 24 April 1999) [unpublished]. 2 2 6 S. N'Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans, (Minneapolis: University of Minnesota Press, 1996) at 69. 46 -47-As the plethora of recent conflicts across the African continent has demonstrated, many disputes between different tribes or ethnic groups were not resolved in this manner, but were simply driven underground until the process of decolonisation gave them the opportunity to resurface.227 In addition, as U N Secretary-General Kofi Annan has suggested, "[tjhe character of the commercial relations instituted by colonialism also created long-term distortions in the political economy of Africa. Transportation networks and related physical mfrastructure were designed to satisfy the needs of trade with the metropolitan country, not to support the balanced growth of an indigenous economy."228 This idea of the colonial powers, that only they knew what was in the best interests of the so-called "backwards" peoples of the wodd, persisted into the twentieth century. Only they thought they knew what circumstances should be provided to "primitive" people in order to give them true freedom from their "primitive" tendencies.229 Such thinking was behind policies such as taking indigenous children in former British colonies away from their families and giving them a European-style upbringing, in order to provide them with more opportunities for "advancement" in a Western culture.230 This practice continued into the 1960's in Australia, affecting generations of indigenous people.231 Very little consideration was given to the emotional cost of such practices, which now appears to have outweighed most of the benefits that these children may have received. Those who believe that all people have a "natural" ability to determine for themselves what is in their own best interests, and will only be free if K. Annan, "The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa", Report to the United Nations Security Council, 16 April 1998, paras. 8-15, online: <http://www.un.org/ecosocdev/gemrf Recent ethnic strife in the Balkans suggests that any carving up or amalgamation of territory without first consulting the inhabitants, as happened there after World War II, creates a time bomb of some kind. Cf. Discussion of the situations in Kosovo, and discussion on Africa and uti possidetis, in Chapters Five and Six below. 2 2 8 Annan, ibid, at para. 9. 2 2 9 This view coincides with that of philosophers who only recognize the "acquired" freedom of self-perfection, not the "natural" freedom of self-detennination, eg. Saint Ambrose, Marcus Aurelius, Bosanquet, Epictetus, Plato, Plotinus, Seneca, and Spinoza: Adler, supra, at 592. 2 3 0 Practised in different forms in Australia, Canada, and the United States: cf. J-F. Tremblay & P-G. Forest, supra. 2 3 1 Although the Australian Minister for Aboriginal Affairs recently tried to deny that even one "generation" of Aboriginal people had been thus affected: J. Herron, "A generation was not stolen", The Sydney Morning Herald, (4 April 2000) 15. 47 - 48 -they are allowed to pursue these self-determined interests, seem to have been vindicated, in this context at least. 2.6 The "postcoloniaT' legacy A swelling chorus of writers argues that a "postcolonial" attitude still prevails today in many former colonies and in international affairs generally. For example, Grovogui writes: "In a very subtle way, the West is still assumed to possess intellect, reason, science, and wisdom. In contrast, it is still feared or suspected that the immature, unreformed other(s) may act through instinct and confusion. In short, the others may still need guidance, even against their own volition. Then as now, however, the aim of international law has been to justify or facilitate Western hegemony and its power to exploit the other(s)."232 \footnote omitted] In a similar vein, Taiaiake Alfred of the Rotinohshonni people of North America states: "In the past 500 years, our people have suffered murderous onslaughts of greed and disease. Even as history's shadow lengthens to mark the passing of that brutal age, the Western compulsion to control remains strong. To preserve what is left of our cultures and lands is a constant fight- ••• The collective struggle for indigenous self-determination is truly a fight for freedom and justice."233 These themes will be taken up in more depth in later Chapters, as they are highly relevant to the current status of the right to self-determination and current controversies over the application of this right.234 For example, some authors have argued that self-determination is only relevant in the colonial context and, since "decolonisation" has now been achieved, self-determination is no longer a useful principle with any practical legal application in the international context.235 Postcolonial authors would reply that, while there has been formal "decolonisation", in the form of transferring sovereignty to new governments in Africa, or recognising the legal status of indigenous peoples within former British 2 3 2 N'Zatioula Grovogui, supra, at 42. See also, eg. A. Anghie, " 'The Heart of My Home': Colonialism, Environmental Damage, and the Nauru Case", (1993) 34 Harv. Int. L. J. 445 at 505. 2 3 3 T. Alfred, Peace, Power, Righteousness: An Indigenous Manifesto, (Ontario: Oxford University Press, 1999) at xi. 2 3 4 Cf. Chapters Five and Six. 2 3 5 For example, cf. R. Emerson, "Setf-Deteiraination", (1971) 10 Am. J. Int'l L. 459 at 464-5; and M. Halberstaum, "Nationalism and Self-Determination: The Arab-Israeli Conflict", (1994) 24 N.Y.UJ Int'l L. & Pol. 573. 48 -49-colonies, "colonial" attitudes are still hampering the full exercise of self-determination by formerly colonised peoples. For example, as Professor June McCue pointed out in 1999: "In the context of colonisation, both the colonizer and the colonised have to decolonize in tandem before the colonial regime can truly be de-centered or dismanded and different legal cultures can co-exist. This requires the voice of the colonizer to be subjective about their relationship with indigenous peoples, to be complicit and accountable for creating masks of oppression that continue to suffocate indigenous peoples."236 UN Secretary General Kofi Annan also pointed out in his 1998 report to the Security Council on The Causes of Conflict and the Promotion of Durable Peace and Sustainable Development in Africa: "The difficult relations between State and society in Africa owe much to the authoritarian legacy of colonial governance. Because there was litde need to seek political legitimacy, the colonial State did not encourage representation or participation. The result was often social and political fragmentation, and a sometimes weak and dependent civil society. A number of African States have continued to rely on centralised and highly personalized forms of government and some have also fallen into a pattern of corruption, ethnically based decisions and human rights abuses. Notwithstanding the holding of multiparty elections in a majority of African countries, much more must be done to provide an environment in which individuals feel protected, civil society is able to flourish, and Government carries out its responsibilities effectively and transparendy, with adequate institutional mechanisms to ensure accountability."237 Many African scholars are also questioning the assumptions that were made about the suitability of "Western" modes of governance for the African situation. For example, many of the essays in the book Legitimate Governance in Africa: International and Domestic legal Perspectives, seek to address "the appropriateness of traditionally accepted liberal democratic conceptions and practices in bringing about a lasting era in Africa in which legitimate governance and political stability thrives."238 In the Introduction to this book, the two editors, Edward Kofi Quashigah and Dr. Obiora Chinedu Okafor, point out that "most of the liberal democratic concepts, institutions, and customs ... developed in societies that are, and have been, relatively homogenous in terms of the degree of social distance observable among their inhabitants. It is also well known that these same conceptual tools have been and continue to be 2 3 6 J. McCue, Indigenous Legal Theory Perspectives, (L.L.M. Thesis, University of British Columbia, 1999) [unpublished] at 25. 2 3 7 Annan, supra, at para. 71. 4 9 -50-superimposed on the social fabric of the intensely fragmented polities that form post-colonial African states."239 These authors are not content simply to "blame" the impact of colonialism for all of their current concerns over the status of their respective peoples. Most of them are looking for constructive ways to address the legacy of colonialism, to "look beyond ... [Africa's] colonial past for the causes of current conflicts"240 and, at the same time, to question the "admittedly potent but obviously simplistic determinist temptation" to attribute the rest of Africa's problems "to the peculiarities of the African psyche and/or the authoritarian orientation of African leaders."241 Such voices were not heard at the time that the principle of self-determination was being "shaped" into an "internationally perceived shared value", at the turn of the twentieth century, as they were considered to come from the "uncivilised" sector of the international community at that time. Now, almost 100 years later, their views are finally gaining some currency, and leading many to question the representativeness of the supposedly "internationally perceived shared values" that shaped the evolution of the principle of self-determination. Thus, it is appropriate to keep these previously marginalised voices in mind throughout the following analysis of that final "shaping" process. 2.7 The first World War Gerry Simpson has argued "that prior to the First Wodd War, self-determination could more readily be described as a strategy than a principle, capable, like all strategies of being discarded should it fail to further the vital interests of the major powers."242 He bases this assessment on the inconsistent application of the principle by the French after their Revolution, as discussed above,243 on the repressive 2 3 8 Quashigah & Okafor, supra, at 9. 2 3 9 Ibid at 9-10 [emphasis in original]. A footnote to this statement suggests further: "Even though all states are contrived political formations, African states are widely recognised to be the most contrived of all. Cf. C. Young, The African Colonial State in Comparative Perspective, (New Haven: Yale University Press, 1994); and Mutua, "Why Redraw", supra, at 10, n.9. 2 4 0 Annan, supra, at para. 12. 2 4 1 Quashigah & Okafor, supra, at 9 [emphasis in original]. 2 4 2 Simpson, supra, at 20. Many authors argue that this view is still relevant to the application of the principle throughout the twentieth century: cf. discussions in later Chapters. 2 4 3 In Chapter One (Introduction). 5 0 -51-approach by the US and France towards Mexican "sdf-deterrnination" in the mid-nineteenth century,244 and on the way mat the new Soviet Union incorporated more than 100 nations "with varying degrees of voluntarism"245 after the 1917 Bolshevik Revolution, despite the fact that both Marx and Lenin had previously advocated "the right of nations to sdf-determination [which] implies exclusively the right to independence in the political sense, the right to free political separation from the oppressor nation."246 In relation to the "nationalist dilemma of the Bolsheviks in 1917",247 which gave rise to such a contradictory approach to national sdf-determination, Isaac Deutscher later commented: "The Leninists still believed that socialism demanded equality between nations; but they also felt that the reunion of most, if not all, of the Tsar's dominions under the Soviet flag served the interests of socialism."248 Another interesting example of the contradictory attitudes of imperial powers towards the principle of self-deterrnination prior to Wodd War I, is the formation of Albania and the separation of Kosovo 2 4 9 under a separate, "foreign" sovereignty under the Florence Protocol of 1913. Until 1912, ethnic Albanians predominandy lived within the "vilayet" (province) of Prishtina in the Ottoman Empire. However, the most influential force in that Empire since 1908 had been the "Young Turks", who wished to impose Turkish nationalism on all Ottoman subjects, to the extent of closing schools that used any other language than Turkish. In some senses, the Young Turks were exercising a form of their own "self-determination", since they were attempting to strengthen die Ottoman Empire and its Turkish identity. However, the Albanians protested forcefully against this policy, and in 1912 they were granted a measure 2 4 4 Cf. Perry, supra, at 62, describing how the United States "acquired" Texas from Mexico in 1845, and how the French had taken advantage of political instability in 1838 to blockade the port of Velacruz, in an attempt to extort compensation from the Mexican government for damage caused to French citizens in a civil riot. 2 4 5 1. Bremmer, "Post-Soviet nationalities theory: past, present, and future", in I. Bremmer & R. Taras, eds., New States, New Politics: Building the Post-Soviet Nations, (Cambridge: Cambridge University Press, 1997) 3 at 3. 2 4 6 Lenin, supra, in Sunga, supra, at 143-148. 2 4 7 Bremmer, supra, at 6. 2 4 8 I. Deutscher, Stalin: A Political Biography, 2nd ed. (New York: Oxford University Press, 1967) at 243, in Bremmer, ibid, at 6. 2 4 9 Note that I am using the term "Kosovo" as it is understood in the present day context of recent events in that part of Serbia where Muslim "Kosovo-Albanians" appear to form the largest ethnic group (Kosovo-Albanians have boycotted every Yugoslavian census for the last twenty years, so there are no accurate records of the exact percentage of the population that they comprise: O. Antic, "Kosovar Independence": Muenzel's Biased Pro-Greater Albania Approach, at para. 4, online: Jurist <http://jurist.law.pitt.edu/antic.htm> (last visited October 1999). At the beginning of the twentieth century, there was no such distinct "Kosovar" territory within the Ottoman Empire. 51 -52-of local autonomy. This led in part to the First Balkan War of 1912, when Montenegro, Serbia, Bulgaria, and Greece declared war on the Ottoman Empire, at least in part as a reaction to the granting by the Ottoman authorities of autonomy to Albania.250 However, the four aggressors claimed that they were trying to liberate all "Balkan" peoples, including the Albanians, from Ottoman control - another attempt to exercise a form of sdf-deterrnination on their part. Eventually the First Balkan War ended with the London Peace Treaty of 1913, negotiated at the insistence of the European powers, between the four aggressors and the Ottoman Empire, in which the latter ceded sovereignly over the former, according to the approximate territorial borders of those four countries today. The territory of the previously autonomous province of Albania was not part of the treaty, but its fate was instead left to the six major European powers: the Austro-Hungarian Empire, Great Britain, France, Germany, Italy, and Russia. The decision they arrived at was approached from a similar set of values and guiding principles as had guided the carving up of Africa in the 1885 Treaty of Berlin. In other words, the right of the peoples to determine under whose sovereignty they should live was not taken into account, and borders were imposed that divided ethnic groups and forced them to co-exist as a minority within the territory of a nation dominated by a different ethnic group, rather than allowing peoples of the same ethnic group to remain under the same sovereignty - all to appease more powerful nations' political concerns and to protect their national interests. The European powers decided that Albania should be ruled by a foreign prince, with the assistance of an international police force, and an "International Control Commission" formed by the powers. The borders of the new Republic were determined in accordance with the strong wishes of Russia, which did not want a strong Muslim country so close to its borders. Inese borders left half of all Albanians to live outside of Albania, in either Montenegro or Serbia, and that was how the ethnic Albanian-dominated area known as "Kosovo" was created, which has received so much international attention in recent years.251 2 5 0 F. Muenzel, What Does Public International Law Have to Say About Kosovar Independence?, at para. 2, online: Jurist <http://jurist.law.pitt.edu/simop.htm> (last visited October 1999). Professor Dr. Muenzel claims that the four aggressors, who were all neighbours of Albania, wanted to partition it between themselves, rather than allow it to survive as a separate country. 2 5 1 Cf. Discussion below on the fate of Albania after the First World War, and in Chapter Six on Kosovo in the context of the right to self-detennination of minorities. 52 -53-Of course, the aggressors in the First World War also paid scant regard to any theories on the right of peoples to detennine under whose sovereignty they would live. Proscriptions against "aggressive wars" had been set out in the 1899 and 1907 Hague Conventionsfor the Pacific Settlement of International Disputes, and the 1928 General Treatyfor the Renunciation of War (also known as the Pact of Paris or the Kellog-Briand Pact). But these treaties were ignored by the German Kaiser and his allies, and State practice at the time still predominandy supported the use of conquest as a means of acquiring territory, even if the opinio juris supporting the opposite view was steadily growing.252 2.8 Conclusion As we have seen from this Chapter, the principle of self-detennination was merely nascent by the beginning of the twentieth century. Various forms of some of its underiying principles had manifested themselves intermittendy. But it had yet to materialise as a recognisable principle with relatively consistent application. Some may argue that self-deterrnination remains an unrealised principle. It certainly has not lived up to its potential for liberating all of humanity from all situations of oppression and discrimination. However, as we will see in the next Chapter, some of the ideas relating to "self-determination", that had been bubbling away prior to the twentieth century, came to the fore in that century, in ways that no-one could ever have dreamed of. 2 5 2 Cf. P.J.I.M. De Waart, Dynamics of Self-Determination in Palestine: Protection of Peoples as a Human Right, (Leiden, The Netherlands: E.J. Brill, 1994) at 43. 53 Chapter Three: The "Enunciative Stage" of the Principle of Self-Determination -54-As we have seen from the previous Chapter, various aspects and manifestations of the principles underlying the concept of "self-determination" were already emerging in national and international affairs, long before the term "self-determination" came to international political prominence during the First World War.253 In this Chapter, I will discuss how these concepts and successive events subsequently shaped the "Enunciative Stage" of the principle of self-determination in international human rights law. Bassiouni identifies the "Enunciative Stage" of an international human right as the time when such "intellectual and social processes" combine and emerge in the form of "internationally perceived shared values."254 In this Chapter, I will outline how the aftermath of the First World War, with the creation of the League of Nations and its various responsibilities towards non-State entities, was the first real opportunity for "self-detennination" to emerge as a truly international value, even though it sometimes meant different things to different actors, as we will see. I conclude my discussion with an analysis of the ways that "free will", "equality", and "the consent of the governed"255 have frequently been applied inconsistently, drawing upon the material in the previous Chapter, and showing how such inconsistencies continued right through to the outbreak of the Second World War, after which there was another significant shift in the development of the principle of self-determination. During the First World War, President Woodrow Wilson of the United States made his famous speech to the US Congress, supporting the rights of all the occupied nations and oppressed minorities in Europe at the time, said to be the basis of the current right of all peoples to self-determination256: "No peace can last or ought to last, which does not accept the principle that governments derive all their just powers from the consent of the governed, and 2 5 3 Cf. Discussion in Chapter Two. 2 5 4 Bassiouni, "Proscribing Function", supra, at 181. 2 5 5 Cf. Discussion in Chapter Two. 2 5 6 Cf. Discussion in Chapter Two. Note, however, the discussion below of America's repressive policy towards socialist regimes, despite the fact that many of these reflected the "Consent of the Governed". 5 4 -55-that no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property."257 Michla Pomerance argues that Wilson's conception of "self-determination'' at this time had evolved from his belief in the right of all peoples to select its own form of governance ("internal" self-determination, based on democratic ideals258), which "in the context of the war, ... came to subsume "external" self-determination as well: the right of every people to "choose the sovereignty under which they shall live," [and] to be free of alien masters".259 Yves Beigbeder suggests further that Wilson's views were influenced by the eighteenth century philosopher Irnmanuel Kant, who argued in his "Perpetual Peace", that permanent global peace could only be achieved if democratically governed nations made a compact with one another.260 Kant believed that democracies were inherently more peaceful nations than those with any other form of governance, since, "[i]f the consent of the citizens is required in order to decide that war should be declared ... nothing is more natural than that they would be very cautious in commencing such a poor game, decreeing for themselves all the calamities of war."261 Wilson, who served as the chairman of the committee which drafted the Covenant of the League of Nations, was initially against any non-democratic nations joining the League. He argued: "Only free people can hold their purpose and their In van Walt van Praag, supra, at 5. Note van Walt van Praag's observation that this statement was obviously influenced by the philosophies of Locke, Rousseau, Mill and Jefferson. Cf. this Chapter, below, for more discussion on this point. 2 5 8 Successive American governments did not (and still do not) believe that the right to self-determination also entails a right to choose a non-democratic government instead, as their numerous interventions across the globe in socialist countries demonstrates. In particular, see the "Nicaragua case" (discussed in Chapter One), and the wars in Vietnam and Korea (referred to in Chapter Six). In addition, note the US' lack of response to the invasion of East Timor by Indonesia in 1975, which was clearly in violation of international law. Yet because the East Timorese allegedly were supportive of a communist form of government, US foreign policy at the time was to let the Indonesians retain control over the territory: A. Moreira, "The invasion of East Timor by Indonesia", in Catholic Institute for International Relations & International Platform of Jurists for East Timor, eds., International Law and the Question of East Timor, (London: Catholic Institute for International Relations & International Platform of Jurists for East Timor, 1995) 290 at 294. 2 5 9 M. Pomerance, Self-Determination in Law and Practice, (The Hague: Martinus Nijhoff Publishers, 1982) at 1 [hereinafter: Pomerance, "Self-Determination"]. 260 Y. Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections: Self-determination and Transition to Democracy, (Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1994) at 75. 2 6 1 H. Reiss, Kant's Political Writings, (Cambridge: Cambridge University Press, 1970) in Beigbeder, ibid, at 23. 55 -56-honour steady to a common end and prefer the interests of mankind [sic] to any narrow interest of then-own."262 3.1 The Aftermath of the First World War Wilson's views on the iUegitimacy of a "government which is not controlled by the will and vote of its people"263 were only adopted to some extent by the other victors when it came to determining how to deal with all the oppressed "nationalities" that emerged from the war. As Pomerance points out, the Versailles Peace Conference was the "first major testing ground for ... [Wilson's] package of ideas and it was there that the deceptively simple and just-sounding principle of self-determination was exposed in all its intricacy and mtractability."264 The most difficult task was determining who the "self' was that had acquired the right of self-detennination. Wilson had used numerous terms when describing how the principle of self-determination should work, such as "peoples", "provinces", "population concerned", "national elements", and "nations".265 As mentioned previously, he also supported a right to both "internal" setf-deterniination (democratic governance) and "external" self-determination (secession), but failed to elaborate any principles as to which manifestation of the principle was most relevant to each case. As many authors have noted, nationalism was one of the major driving forces behind the First World War and the resultant breakup of the four empires of east and central Europe.266 Most significantly in terms of the evolution of the principle of self-determination, prior to and during the war, claims for 2 6 2 Quoted in G. A. McCurdy, "The League of Free Nations", The League of Nations Union, Series 2, Pamphlet 3 (London: 1919-20), in Beigbeder, ibid, at 76. However, the Covenant says nothing about only "democratic" nations being allowed to join. And note that the communist/totalitarian USSR was admitted to the League of Nations in 1934. 2 6 3 H. Foley, Woodrow Wilson's Case for the League of Nations, (New Jersey: Princeton University Press, 1923) at 64-65, in Beigbeder, ibid, at 76. 2 6 4 M. Pomerance, "Self-Determination", supra, at 2. 2 6 5 S. N. Leger, "People" and "Minority": From Theory to Reality, (L.L.M. Thesis, Faculty of Law, UBC 1999) [unpublished] at 42. 2 6 6 Cf. Ofuatey-Kodjoe, supra, at 22-23; and see the discussion in Chapter One on the vexed relationship between nationalism and self-determination generally. 56 -57-independence by groups describing themselves as "nationahties",267 were regarded as internal matters for each empire to address. However, at the conclusion of the war, these claims had to be addressed by the victors, and thus they came to have international status, as they concerned the right of those groups to form their own independent states. Thus, the principle of self-determination was conceived at this time as the right of secession from an existing state by "nationahties" within the state, whatever these "nationahties" were exactly.268 However, ultimately "the principle of external self-detennination was applied only in a few exceptional cases by the victorious Allies of World War I, for whom secret treaties, strategic, political and economic interests, historic claims had more priority and importance than any genuine democratic concern for allowing the territories' inhabitants to express their wishes in free plebiscites. States preferred to make their decision by conquest or by negotiation among the major Powers."269 During the war, numerous secret treaties had been negotiated, promising certain parts of captured territories to a particular future victor.270 As a result, a compromise had to be reached as to which ethnic, religious or other groups in Europe were entitled to full nationhood, which ones should be consulted in the form of a plebiscite, and which would remain as minorities within other territories, without any consultation. When the political map of Europe was redrawn by the Allies, Austria, Hungary,271 Czechoslovakia, Finland, Estonia, Latvia, Lithuania, and Poland emerged in their own right, and Yugoslavia, Greece, and Rumania extended their borders. Only five plebiscites were held between 1919 and 1921, in 2 6 7 There has been much debate about the exact definition of "nationality", which Ofuatey-Kodjoe argues has never satisfactorily been resolved, as all of the ethnic groups claiming to be "nations" with a right to a separate existence at this time "were vastly dissimilar from the point of view of size, level of national and political consciousness, and territorial consciousness." [footnote omitted] Clearly there had to be some limit as to which ones were viable "nations", "otherwise it was possible for individual households to argue that they had the right to independence.": Ofuatey-Kodjoe, supra, at 24-25. 2 6 8 Ofuatey-Kodjoe, ibid, at 24. 2 6 9 Beigbeder, supra, at 79. 2 7 0 Beigbeder, ibid, at 80. 2 7 1 Note, however, that Austria and Hungary, as well as all the other nations defeated in the war, "were convinced that self-determination had been denied to them at the Peace Conference", as their territory was consistently reduced in size, leaving large numbers of their nationals under the control of other nations: T.D. Musgrave, Self-Determination and National Minorities, (New York: Oxford University Press, 1997) at 57. 57 -58-accordance with the various Peace Treaties or the Venice Protocol,272 and the League of Nations later supervised the Saar plebiscite in 1935, which was actually a requirement of the Peace Treaty of Versailles. Proposals for plebiscites in Alsace-Lorraine, Austria, the Aalands Islands, and Vilna 2 7 3 were rejected by either the Allies or the League, and the 1945 Treaty ofNeuilly made no provision for plebiscites at all. Thus, Wilson's insistence that "the settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship, [should be] upon the basis of the free acceptance of that settlement by the people immediately concerned"274 was largely ignored. In addition, this compromise did not represent a clear delineation of the legal rights of those various peoples. Ofuatey-Kodjoe suggests that three competing theories were in operation at the Versailles Peace Conference: (i) "the plebiscite theory, ... based on the definition of a nationality as a group of peoples with a common subjective attachment to the same state";275 in other words, a plebiscite must be held to ensure "the continuing political consent of the inhabitants to be members of the state",276 in accordance with democratic principles; (ii) "the national determinism theory [which is] based mainly on nationality defined as an ethnic community"277, that is, "one nation: one state", and thus cannot accommodate differing views amongst the population of that state; and (iii) "the national equality theory [which] is based on nationality defined essentially on the basis of a common territory and nationalistic outlook."278 Thus, the final outcome was that not every national group was allowed to choose its sovereign. The Swedish-speaking people of the Aaland Islands tried to reunite with Sweden after their territory was transferred from Russia to the new state of Finland. However, they were treated as nearly every minority group has been since then: they were denied any right to setf-detennination that would the 2 7 2 Schleswig (1920), Allenstein and Marienwerder (1920), Klagenftut Basin (1920), Upper Silesia (1921), and Sopron (1921). 2 7 3 A city claimed by both Lithuania and Poland. 2 7 4 S. Wambaugh, A Monograph on Plebiscites, (New York: Oxford University Press, 1920) at 11, in Beigbeder, supra, at 80. 2 7 5 Ofuatey-Kodjoe, supra, at 36 2 7 6 Ibid, at 31. 2 7 7 Ibid at 36. 58 -59-disrupt the territorial integrity of the state that they happened to find themselves in through no fault of their own. Upholding this outcome, the International Committee of Jurists in their Advisory Opinion on the Aaland Islands Question stated : "To concede to minorities either of language or of religion, or to any fractions of a population, the right of withdrawing from the community to which they belong, because it is their wish or their good pleasure, would be to uphold a theory incompatible with the very idea of the State as a territorial entity."279 They further held that, "Although the principle of self-determination of peoples plays an important part in modern political thought, especially since the Great War,... [it] cannot be considered ... as a positive rule of the Law of Nations."280 And so the first limit on the principle of self-determination was decided: a minority group within the territory of a different national group within Europe had no right to choose its own sovereign.281 3.2 Post-war developments in the Communist States On the other hand, the recently formed Communist "Republics" appeared to recognise explicitly the right of their constituent national "autonomous States" to choose their own sovereign. For example, the Chinese Soviet Republic's 1931 Constitution provided that each of its "national minorities"282 had the "right to complete separation from China, and to the formation of an independent state for each 2 7 8 Ibid, at 36. 2 7 9 This Committee of three Jurists had been appointed by the Council of the League of Nations in 1920, and their report was adopted subsequently by the Council, then forwarded to a Commission of Rapporteurs, who were to recommend a programme of action. Cf. Commission of Rapporteurs' Report, Council Doc. B.7 21/68/106 (1921), discussed in-depth in Cassese, "Self-Determination", supra, at 27-31. 2 8 0 Commission of Rapporteurs' Report, ibid. 2 8 1 Justice Rosalyn Higgins of the ICJ (as she is now) maintained in 1994 that that was still the case under international law then. She believed that the right to self-detennination attached to all the peoples of a State collectively, not to any subgroup of the population separately: Higgins, "Problems and Process", supra, at 121-128. Cf. Discussion of minority rights to self-determination in Chapter Six, below. 2 8 2 Note that the Chinese conception of a "nationality" or "minzu", comes "from an attempt to apply Stalin's four stages of social evolution - the clan (rod), tribe (plemya), nationality (narodnosf), and nation (natsiya) - to the Chinese situation, in which natsiya was linked with the emergence of capitalism and narodnost referred to a precapitalist formation. Minzu from the beginning was taken to mean "nation" but the intermediary formation was problematic", and eventually it came to describe both the Han people, who had already "satisfied all the criteria of Stalin's definition of a nation, being a stable community historically constituted by a common language, territory, economic life, and psychological formation expressed in a common culture", plus all the various other ethnic groups in China that are recognised today (fifty-six "nationalities" are officially recognised by the present Chinese government): N. Tapp, "Minority Nationality in China: Policy 5 9 - 60 -national minority. All Mongolians, Tibetans, Miao,283 Yao,284 Koreans, and others living on the territory of China shall enjoy the full right to self-detennination, ie., they may either join the Union of Chinese Soviets or secede from it and form their own state as they may prefer."285 The Constitutions of the Soviet Union and of the new Federal Republic of Yugoslavia also contained similar "out" clauses for various territories, but these were never exercised until towards the end of the twentieth century 2 8 6 But as early as March 1932, in accordance with the new Chinese Constitution, the leaders of Fengtien, Kirin, Heilungkiang, and Jehol Provinces, and the Harbin Special District, as well as various Mongolian representatives, representing thirty million people in total, proclaimed the establishment of a new State of Manchukuo, which stretched between the Mongolian Soviet Republic and Korea. The relevant part of the Proclamation stated: "Manchuria287 and Mongolia had been in the past a separate and Practice", in R.H. Barnes, A. Gray, & B. Kingsbury, Indigenous Peoples of Asia, (Michigan: The Association for Asian Studies, 1995) 195 at 196 & 198. 2 8 3 The "Miao" people are actually a collection of three different "cultural and linguistic groups widely separated by geography and relatively powerless for that reason. ... Subgroups of the Miao and Yao, however, are represented by populations outside China, in Southeast Asia, and contacts with these outsiders have led to the emergence of rudimentary nationalist sentiments that consequently are carefully controlled [in the present era]." Tapp, ibid, at 202. 2 8 4 The Yao people are actually a sub-group of the "Miao" peoples, who are also known as the "Miao-Yao". Tapp, ibid. 2 8 5 C. Brandt, B. Schwartz, & J.K. Fairbank, A Documentary History of Chinese Communism, (New York: 1967) at 220-224, in van Walt van Praag, supra, at 190-191. 2 8 6 In addition, Bremmer claims that only 53 of the more than 100 Soviet "nations" were allowed to be "identified with a particular territory and so afforded rights by virtue of their national status - the so-called "titular" nationalities. Fully half or more of the Soviet Union's national groups had no political recognition as nations." Of these 53 "titular nationalities", only 15 were designated as "union republics, with a right to secede. (Bremmer, supra, at 8) [emphasis in original] Under Stalin's rule, national rights were eroded further, as Russia began to dominate the other republics. For example, Chechens, Germans, Kalmyks, and Crimean Tatars "were deported by the hundreds of thousands to Central Asia and Siberia, punished qua nations for crimes against the Soviet Union." (Bremmer, ibid, at 7, n.23) 2 8 7 The Manchurian people had conquered China in 1644, but were overthrown in 1911. Tapp claims that they "are in fact a mixed group of Mongolian origin, now largely Han-speaking but having developed and retained a fierce sense of ethnic distinctiveness." (supra, at 200). 6 0 -61 -state detached from China proper.288 By necessity of the present situation we are in a position to strive for national independence."289 Interestingly, the Proclamation also contained the following provision: "There shall be no discrirnination among those people who now reside within the territory of the new state with respect to race and creed, including the races of the Hans, Manchus, Mongols, Japanese and Koreans; nationals of other countries may upon application as permanent residents acquire equal treatment with others and their rights shall be guaranteed thereby."290 Only Japan recognised the Statehood of the new territory, although Soviet Russia extended a form of de facto recognition.291 China did not recognise "Manchukuo's" independence. The Government of Japan launched a campaign to try and encourage Western countries, particularly the United States, to recognise the State of Manchukuo. In a leaflet published in 1933 in New York, by the Japanese Chamber of Commerce, they point out: "Was not the freedom of Cuba from Spain won by the United States? Were not the Secession States of Europe assisted to independence by the Allied Powers? Why is it that whenever an event occurs in Asia that directly parallels events in the Western World, Europeans and Americans seem to be outraged? The assistance provided the new state of Manchukuo parallels in every respect the assistance given to Cuba by the United States. Yet, we are told that it was an act of humanity to help Cuba win her freedom. Why is it not an act of humanity to help Chinese in Manchuria to win their freedom?"292 This campaign was not successful. However, in 1945, the Government of China allowed a referendum on independence to the peoples of "Outer Mongolia",293 in which the majority voted in favour of Mongolia had achieved independence in 1912, and this was recognised in a series of treaties with Russia and China. However, in 1919 the Chinese government formally cancelled Mongolia's independence. In 1921, the Mongolians regained their independence, with the assistance of the Soviet Union, forming the "Mongolian Soviet Republic", which was not, however, recognised by China. 289 Proclamation of the Establishment of Manchukuo, 1 March 1933, in Japanese Chamber of Commerce, Manchukuo: The Founding of the New State in Manchuria, (New York: Japanese Chamber of Commerce, 1933) at 5 [hereinafter: "Manchukuo"]. 2 9 0 "Manchukuo", ibid, at 5. 2 9 1 Ibid, at 37. 2 9 2 Ibid, at 3. Those who were attempting to create the State of Manchukuo were alleging that the Chinese government was using profits from the lucrative soya bean crops from the region, to fund its military expenses, and allowing the farmers of those soya beans to become completely impoverished, (at 1-2) 2 9 3 As mentioned previously, the Mongolian people were a more distinctive "national" group than the Manchus, and the 1931 Constitution had specifically provided the right of self-detennination to "Mongolians", not to Manchus. 61 -62-independence. At the same time, China did not actually recognise the independence of the "Mongolian Peoples Republic" until 1950,294 and between 1945-1950 the Chinese government did not list this Republic as one of its "non-self-governing territories" as it should have, in accordance with article 73 of the UN Charter.295 It was clear that China would have preferred that what it perceived as the "autonomous states" of Mongolia, Tibet and Turkestan, would choose to unite voluntarily with China in a federal communist republic. Given subsequent claims by Tibet, in particular, that it never was an "autonomous state" of China,296 and the tardiness of China in recognising Mongolia's independence, it is not clear whether the Chinese Constitution of 1931 can be said to have advocated "minority" rights of secession, in any strict sense. 3.3 Minority Protection Treaties Instead of gaining an independent state, the rights of many of the "national minorities" within Europe were outlined in special Minority Protection treaties, whereby the governing authority in a country promised to protect their "minority" populations, sometimes as a condition of a Peace Treaty,297 sometimes as a condition of admittance to the League of Nations,298 and otherwise in a special minority treaty in the case of newly formed or enlarged states.299 In all cases, the "minority" had a right of recourse to the Permanent Court of International Justice to determine any questions of a legal nature, which at the time was "an entirely novel idea, and ... considered to be of paramount importance for the protection of minorities."300 As Nathaniel Berman suggests: "Many writers thought that international law had undergone a fundamental transformation by turning its attention to nationalism after World War I. They saw nationalism as a vital, yet dangerous, force which demanded a departure from the exclusive preoccupation with sovereignty characteristic of pre-World War I 2 9 4 Official note from Zhou Enlai to A. Vyshinsky, Minister of Foreign Affairs of the U.S.S.R., 14 February 1950, in van Walt van Praag, supra, at 192, n. 27. 2 9 5 Cf. Discussion below on article 73 and "non-self-governing territories", in Chapter Five. 2 9 6 The Tibetans expelled all Chinese forces from Tibet in 1912, and then proclaimed the independence of Tibet. 2 9 7 In the cases of Austria, Hungary, Bulgaria, and Turkey. 2 9 8 In the cases of Albania, Lithuania, Latvia, Estonia, and Iraq. 2 9 9 As in the cases of Poland, Czechoslavakia, Romania, Yugoslavia, Greece, and Danzig. 3 0 0 Musgrave, supra, at 46. 62 -63-positivism. Yet, precisely because of its explosive force, nationalism was seen as requiring the development of unprecedentedly autonomous and experimental international legal theory, doctrines, and institutions.''301 [footnotes omitted] The League of Nations guaranteed all the rights of the minorities enumerated in the treaties, which included equality before the law, freedom of religion, and the right to life and liberty, without distinction as to birth, nationality, language, race, or religion. However, the League only guaranteed the rights of persons belonging to "racial, religious, or linguistic" minorities.302 Each State was required to give preference to all minority treaty obligations, if there was ever any conflict with national laws. Minorities could also submit petitions to the League Council; however, they did not have standing, as such, before the Council. Their petition merely brought the matter to the attention of the Council, which could then decide whether or not to pursue the matter. In addition, the minorities treaties conferred rights on the individual members of a minority group, not on the group as such. The Council allowed a group to present a petition, but the Council's decision was intended to protect the individual rights of the members of that group. All of these features combined, led to dissatisfaction amongst both the minorities and those entrusted with the protection of their rights. The states with obligations to protect minorities felt that this was a threat to their internal stability, an intrusion on their sovereignty, and thus in violation of the principle of equality of states. They regularly mistreated their minorities, leading to 204 petitions by minorities to the League Council between 1930-1931.303 In 1935, the Permanent Court of Justice issued two opinions that Berman argues illustrated a lack of attention to the "dilemma inherent in modernist jurisprudence", caused by the tension between the desire to allow formerly repressed "nationahties" to assert their identity, and the need for "an unprecedented international legal authority."304 In the Minority Schools in Albania Case,305 the majority of the Court held that Albania's Declaration of its Berman, "Nationalist Desire", supra, at 354-355. Musgrave, supra, at 44. Ibid, at 55. Berman, "Nationalist Desire", supra, at 375. 1935 P.C.I.J. (ser. A/B) No. 64. 6 3 -64-commitment to protect its minorities, made as a condition of acceptance into the League of Nations, required it "to ensure a genuine and effective equality, not merely a formal equality",306 to all of its citizens. This meant that a 1933 Albanian constitutional amendment, which would have abolished all private schools, was in violation of the need "to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions, and their national characteristics ... [T]here would be no true equality between a majority and a minority if the latter were deprived of its own institutions, and were consequently compelled to renounce that which constitutes the very essence of its being a minority".307 Most significantly, the Court recognised that the subjective "importance to the State" of creating a formally equal system of schooling (ie. no special treatment for minorities), was not as decisive a factor as the subjective importance to the minority of mamtaining their own schools, which the Court itself would adjudicate.308 By contrast, the same Court in the same year held that a new Danzig penal provision that relied in part on the concept of "sound popular feeling (nach gesundem Volksempfinden)'" f09 was too subjective and gave too much authority to the "prejudiced dictates of the Nazi Volk"3i0. The Court felt that "deference to the Volk's views would rob the judge of the necessary exercise of sound judicial discretion",311 even though in the Minority Schools in Albania Case they had argued that deference to the minorities' views was essential and did not in any way interfere with judicial discretion. Clearly, the subjective view by the Court of the political leanings of the particular group in question was more 3 0 6 Ibid, at 15. 3 0 7 Ibid, at 17. 3 0 8 Berman, "Nationalist Desire", supra, at 371. 3 0 9 Article 1, Creation of law by the application ofpenal laws by analogy decree, quoted in 1935 P.C.I.J. (ser. A/B) No. 65, at 45. The full text of the article is: "Any person who commits an act which the law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of a penal law and sound popular feeling shall be punished. If there is no penal law directly covering an act, it shall be punished under the law of which the fundamental conception applies most nearly to the said act." (cf. Berman, "Nationalist Desire", supra, at 373 & especially at 374, n. 84, where he discusses the similarities between this law and certain aspects of the subsequent Nuremberg Charter, which were challenged, unsuccessfully, on the very grounds raised by the PCIJ in this decision.) 3 1 0 Berman, "Nationalist Desire", supra, at 374. 64 -65-important in the latter case, rather than the Court's claim to be acting "objectively".312 Berman suggests that the Court could only conceive of "nationalist passion" as either "simply irrational", or as "a source of the authentic, the unique, the original", depending on the circumstances, and on their particular political persuasions, and provided no real guidance to the international community at the time as to how to deal even-handedly and consistently with the rights of all minority groups to "ensure ... suitable means for the preservation of their racial peculiarities, their traditions, and their national characteristics".313 The minorities subject to the treaty protection regime ultimately resented the limitations on their status under international law, which limited their effective recourse to the Council, and by 1938-1939, when the Council received only four petitions, the regime of minority protection had all but collapsed, and not just in the context of the rise of Nazism during these same years. The worst example of the failure of the Minority Protection Regime was of course Nazi Germany's abhorrent treatment and persecution of Jews and other minorities, which was only halted when Germany was finally defeated by the Allies in 1945. However, as is well-documented elsewhere, the primary motivation of the Allies in entering the war was not to protect victimised German minorities, but rather to prevent Germany from conquering any further territory. 3.4 The League of Nations and the Mandate system In 1931, after a series of Imperial Conferences involving delegates from both the British Government and from Britain's various independent "Dominions", the Parliament of the United Kingdom passed the Statute of Westminster,™ which provided greater autonomy to the former British colonies of Australia, Canada, Ireland, Newfoundland, New Zealand, and South Africa, such that Britain's Colonial Laws Validity Act of 1865 would not apply to laws made in these territories, from the date of entry into force 3 1 2 Note also the decision in the Rights of Minorities in Upper Silesia (Minority Schools) Case of 1928, where the Permanent Court took the view that identity could not be "objectively" determined: 1928 P.C.I.J. (ser. A) (Judgments) No. 12, in Berman, "Nationalist Desire", supra, at 379, n.92. 313 Minority Schools in Albania Case, supra. 65 -66-of the Statute. It also abolished appeals to the British Privy Council from certain of these territories, and made some other legal adjustments in relation to regulation-making and defence issues. However, the right of all "nations" to self-determination played itself out quite differently when it came to the peoples living in the still-dependent colonies of the European powers. With respect to the right of peoples living in German colonies in Africa, Lloyd George had made the following statement in 1917: "When we come to settle who must be the future trustees of those uncivilised lands, we must take into account the sentiments of the peoples themselves".315 A year later, he pointed out: "The natives live in their various tribal organisations under chiefs and councils who are competent to consult and speak for their tribes and thus represent their wishes and interests in regard to their disposal. The general principle of self-detennination is, therefore, as applicable in their cases as in those of European occupied territories."316 However, when the Allies sat down at the Versailles Peace Conference to implement this "general principle", the peoples in the German colonies were never actually consulted at all, just handed over to the newly formed League of Nations, because they "were supposedly unable to stand by themselves."317 No reference was ever made at this Conference to the rights of the people in other European colonies, such as those under British control at the time. Nor was Britain prepared to address the concerns of the Irish people, despite supporting the rights of many other ethnic minorities in Europe.318 Wilson later explained such hypocrisy away by saying: "We were sitting there with the pieces of the Austro-Hungarian Empire in our hands ... We were sitting there with various dispersed assets of the German Empire in our hands ... but we did not have our own dispersed assets in our hands 3 1 4 52 and 53 Vict c. 63. 3 1 5 Speech made in Glasgow in June 1917, one month after Wilson's speech, quoted in Umozurike, supra, at 17. 3 1 6 Statement made in January 1918, quoted in Umozurike, ibid. 3 1 7 Umozurike, ibid, at 22. This is a recurring theme across the globe. For example, cf. Clarity Act (Bill C-20, 2000), Canadian Federal Government, which purports to determine the basis upon which the province of Quebec may secede from the rest of Canada. 3 1 8 As noted by one commentator: "The most ardent British advocate of the principle of self-determination found himself, sooner or later, in a false position. However fervid might be our indignation regarding Italian claims to Dahnatia and the Dodecanese it could be cooled by a reference, not to Cyprus only, but to Ireland, Egypt and India. We had accepted a system for others which, when it came to practice, we should refuse to apply to ourselves.": H. Nicolson, Peace making 1919, (London, 1933) at 193, quoted in Umozurike, supra, at 21. 66 -67-... and therefore we had often, with whatever regret, to turn away from questions that ought some day to be discussed and settled and upon which the opinion of the world ought to be brought to bear."319 Wilson renrained concerned that unsatisfactorily resolved claims to self-determination would jeopardise the peace that was to be at the heart of the new League of Nations. Thus, he suggested the following wording for article 10 of the League's Covenant, which was intended to promote the stability of the League: "The Contracting Powers unite in guaranteeing to each other political independence and territorial integrity; but it is understood between them that such territorial readjustments, if any, as may in the future become necessary by reason of changes in present racial conditions and aspirations or present social and political relationships, pursuant to the principle of self-determination, and also such territorial readjustments as may in the judgment of three fourths of the Delegates be demanded by the welfare and manifest interest of the peoples concerned, may be effected, if agreeable to those peoples; and that territorial changes may in equity involve material compensation. The Contracting Powers accept without reservation the principle that the peace of the world is superior in importance to every question of political jurisdiction or boundary."320 [my emphasis] Ultimately, this attempt to suggest that League members remain receptive to legitimate claims to self-determination in the future was not supported,321 and the term "self-detennination'' was not even included in the League's Covenant. However, Wilson continued to advocate a "right of revolution" which he said was "sacred",322 despite also insisting that the League would have the final decision on any such claims.323 The newly formed Soviet Union took advantage of this obvious inconsistency, to champion the right of all colonised peoples to "self-determination", as part of Lenin's programme of socialist internationahsm. By this it meant that colonised peoples should be equally free to reject Western 3 1 9 Presidential Address of September 4, 1919, quoted in M. Pomerance, "The United States and Self-Detennination: Perspectives on the Wilsonian Conception," (1976) 70 Am. J. Int. L., 1 at 9 [hereinafter Pomerance, "The US and Self-Deterrnination"]. 3 2 0 D. Hunter Miller, The Drafting of the Covenant, Vol. 2 (New York: Putnam's, 1928) at 12-13, in Pomerance, "The US and Self-Deterntination", supra, at 7. 3 2 1 It was especially opposed by Britain: Cassese, "Self-Determination", supra, at 23. 3 2 2 R. Stannard Baker & W.E. Dodd, eds., The Public Papers of Woodrow Wilson, vol. 5, (New York and London: Harper, 1925-1927) at 632, in Pomerance, "The US and Self-Determination", supra, at 7. 67 -68-democracy and capitalism, in favour of socialist or communist-style governance in an independent state.324 In fact, Lenin later wrote, "the right to self-detennination cannot and must not serve as an obstacle to the exercise by the working-class of its right to dictatorship".325 However, the definition of the right to self-determination in the socialist context was narrowed progressively, as successive regimes tried to weaken any threats to the "intemationalisation"326 of socialism, and to their own form of "nation-building". Stalin only advocated support for "the principle of self-determination where it is directed at or against feudal, capitalist and imperialist states."327 As happened with the French, the soviet socialists realised that a broad application of the principle of self-determination would undermine their own new-found liberty and authority too much. Nevertheless, all members of the newly-formed League of Nations managed to agree that some attention should be paid to colonial claims for independence. Thus, the principle of self-determination was associated with decolonisation of one kind or another, from its introduction into global politics. The Wilsonian interpretation of it provided the basis for the League of Nations' Mandate and Trustee system, which determined that the Mandated Powers had an obligation - albeit a paternalistic one - to protect "the well-being and development" of the peoples in the Mandated territories, and to tutor them 3 2 3 Stannard Baker & Dodd, ibid, at 617, in Pomerance, ibid, at 7. 3 2 4 It is significant that such a position was being advocated only a year after the Treaty of Berlin (supra) was concluded. Socialism's support for a right to self-determination was as much an attack on European imperialism as on the oppression of the working class within Europe. While the early socialists were not exactly concerned about the rights of African peoples per se, they were eager to encourage the spread of communism, and saw the disenfranchised Africans as potentially receptive to the idea of proletariat-style revolution and the overthrow of Western capitalist/imperialist colonial regimes. The philosophy they espoused was that all peoples should be free to choose a communist or socialist style of governance if that is what they wanted. In fact, as Nelson Mandela observed in his autobiography, communism appealed to a great many Africans, because of the analogies that could be drawn between the oppressed working classes and the oppressed African people: N. Mandela, Long Walk to Freedom, 1st ed., (Boston: Little, Brown, 1994) at 113. 3 2 5 I.V. Lenin, The Right of Nations to Self-Determination, (New York: International Publishers, 1951) in Simpson, supra, at 27. 3 2 6 The original idea of Marx was that communism would "transcend national boundaries and attitudes", facilitating what he described as "internationalism." He was opposed to nationalism and self-determination, because he believed they would set up obstacles in the way of the "natural" progress of internationalization. However, Lenin and Stalin both drew upon ideas of nationalism and self-determination to facilitate the spread of communism, as a somewhat more pragmatic application of the principle of internationalism. But they did not support a right to self-determination away from communist principles. The only autonomy allowed, once a nation had joined the socialist "fold", was within the confines of a multinational State, such as the USSR: Simpson, supra, at 26-28. 68 -69-in political advancement, as part of the "sacred trust of civihsation", since these peoples were "not yet able to stand by themselves under the strenuous conditions of the modern world".328 However, Wilson's attitude towards decolonisation was far less generous than Lenin's, requiring that the colonial power's interests be given equal weight: "A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the population concerned must have equal weight with the equitable claims of the government whose title is to be determined."3™ [my emphasis] One of the more controversial Mandates of this era was the British Palestine Mandate.330 Prior to the war, the Ottoman Empire had controlled all of what came to form this Mandate, which consisted of the independent "Sanjak" (district) of Jerusalem and the Sanjaks of Balka (Nablus) and Acre, which all formed part of the villayet of Beirut.331 In addition, an area known as 'Transjordan", which was east of the Jordan River, belonged to the Ottoman vilayet of Syria.332 During the war, Great Britain had sought the support of the Arabs living in all Ottoman-held territories, promising to "support the independence of the Arabs in all the regions within the limits demanded by the Sherif of Mecca".333 After Britain had conquered Palestine, British Foreign Secretary Lord Balfour sent what became known as the "Balfour Declaration" to Baron Rothschild, informing the World Zionist Organization that Britain wished to establish a homeland for Jewish people in that territory, which would not 3 2 7 J. Stalin, Marxism and the Colonial Question, (New York: International Publishers), in Simpson, ibid, at 27. 328Article 22, Covenant of the League of Nations. Note Ofuatey-Kodjoe's comment that this article "is a legal purist's nightmare, and unsurprisingly, it has attracted a variety of contradictory interpretations." (supra, at 88). 329W. Wilson, Public Papers: War and Peace, (1927) at 155-62, in L.S. Sunga, supra, at 27. 3 3 0 Note that it is beyond the scope of this paper to provide an in-depth analysis of the controversies surrounding this Mandate and its legacy. For some guidance, see generally: W.T. Mallison & S.V. Mallison, The Palestine Problem in International Law and World Order, (Essex: Longman Group, 1986) [hereinafter: Mallison, "Palestine Problem"]; H. Cattan, Palestine and International Law: The Legal Aspects of the Arab-Israeli Conflict, (London: Longman Group, 1973); and Becker, supra. 3 3 1 De Waart, supra, at 101, n.13. 3 3 2 Ibid, n. 14. 3 3 3 British Government, Correspondence between Sir Henry McMahon and Sherif Hussain of Mecca, Cmd 5957 (1939), 50, in Cassese, "Self-Determination", supra, at 232. -70-"prejudice the civil and religious rights of existing non-Jewish communities".334 At the same time, England and France negotiated a declaration supporting "the complete and definite emancipation of the [Arab] peoples and the establishment of national governments and administration deriving their authority from the initiative and free choice of the indigenous populations".335 However, Lord Balfour later wrote a memorandum in reference to this declaration, outlining Britain's thoroughly contradictory policy towards the principle of self-detennination: "Palestine should be excluded from the terms of reference because the Powers [have] committed themselves to the Zionist programme, which inevitably excluded numerical self-determination. Palestine presents] a unique situation; We are dealing not with the wishes of an existing community but are consciously seeking to re-constitute a new community and definitely building for a numerical majority in the future."336 Subsequently, the gist of the Balfour Declaration was included in the 1922 Mandate for British Palestine, in preference to the various documents that supported Arab independence. Instead, articles 15,16 and 18 of the Mandate granted a very limited amount of recognition to the rights of the peoples of the whole territory to freedom of conscience and free exercise of worship, supervision over religious and eleesymonary bodies of all faiths, and the prohibition of discrimination, respectively.337 Not surprisingly, however, as the number of Jewish immigrants increased to their newly established "homeland", outbreaks of violence between the two groups escalated and in 1936 the British formed the Palestine Royal Commission, which recommended that Palestine be partitioned into an Arab state and a Jewish state. Neither group supported this idea, and to this day they are still negotiating an acceptable arrangement to "share" the territory amicably between them.338 The Jews believed that the right to self-deterrnination of the Palestinians had been satisfied in 1921, by the creation of Transjordan, which comprised approximately three quarters of the total territory of the Palestine 3 3 4 Cassese, ibid, at 232. 3 3 5 Ibid, at 233. 3 3 6 British Government, Public Records Office, Foreign Office no. 371/4183, 1919, in Cassese, "Self-Determination", supra, at 233. 3 3 7 Cf. De Waart, supra, at 101. 70 -71 -Mandate and went on to become the independent state of Jordan in 1946.339 However, the Arabs living in the remaining territory of the Mandate, such as those living on the west bank of the Jordan River, were still left without a choice as to their sovereign. As Antonio Cassese rightly points out, "The legacy of Great Britain's twin obligations in Palestine has been one of permanent strife."340 3.5 The demise of the League of Nations The outbreak of the Second World War brought an abrupt end to the League of Nations and all its attendant systems of'Trusteeship" and "protection" of "dependent" peoples. All attention was focused once more on Europe and on the right to self-determination of those whom the Nazis had conquered. The principle of self-detennination was at the forefront in the Atlantic Charter of 1942, which enunciated the fundamental principles of American and British policy which were to apply once the war was over. The Charter was also signed by twenty-two allied governments, who all declared: "First, their countries seek no aggrandisement, territorial or other; Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned; Third, they respect the right of all peoples to choose the form of government under which they live, and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of mem ... ' , 3 4 1 However, British Prime Minister Winston Churchill had earlier made it clear that he didn't see the Atlantic Charter as applying to British colonies, only to the "states and nations of Europe now under the Nazi yoke".342 Once again, the finest rhetoric was designed to protect the rights of those peoples whom the war's victors considered "civilised", while the rest of the so-called "uncivilised" world was again at the mercy of the vagaries of war and the political and economic concerns of the ultimate 3 3 8 For example, cf. R. Dunn, "Peres and Arafat reach truce amid spiralling violence", Sydney Morning Herald, online: <http://smh.com.au/news/specials/mu^ 3 3 9 Cassese, "Self-Determination", supra, at 236. 3 4 0 Ibid, at 233. [footnote omitted]. Cf. Discussions in Chapters Four, Five and Six, below, on the longstanding effects of this legacy. 3 4 1 Issued as a Joint Declaration of Eight Points on 14 August 1941, later reissued as the annex to the Declaration by the United Nations of 1 January 1942,204 L.N.T.S. 382, in Sunga, supra, at 39. 3 4 2 Sunga, supra, at 95-96. 71 -72-victors.343 The "right of all peoples to choose the form of government under which they live" was a long way from being realised. 3.6 Conclusions Some may argue that the principle of self-determination had reached Bassiouni's "Declarative Stage",344 when the terminology of the Atlantic Charter was supported by so many different nations. The "Declarative Stage" involves the "declaration of certain identifiable interests or rights in an international document or instrument."345 However, many of those who supported the Atlantic Charter envisaged a very limited application of the principle, as Winston Churchill's comments demonstrate, so that most colonised peoples would be left out of the Charter's vision. In addition, the term "self-detennination" was not endorsed in the earlier Covenant of the League of Nations and, as the previous analysis demonstrates, the practical application of the principle between the wars was sporadic, at best. Thus, the principle of setf-determination could not accurately be characterised as an "interest or right" that was capable of useful definition by 1942. It was merely reaching the culmination of its "Enunciative Stage ". So, what conclusions can be drawn from the emergence of this principle in world affairs in the early twentieth century? What "internationally perceived shared values" could we say that it represented? What forms of "liberty, equality, and fraternity" had proven acceptable to the international community to this point? At the outset, it must be said that there are no easy answers to these questions. The principle of self-detennination was then, just as it is now, a very mixed bag of ideas. Nevertheless, some conclusions 3 4 3 Cf. B.S. Chimni, who points to what he describes as the "barbarian/civilized dichotomy which characterize^] imperialist international law ... [and suggests] that the western powers 'could go ahead [comfortably] and kill, bomb, and destroy, since what would be being attacked was really negligible, brittle with no relationship to books, ideas, cultures, and no relation either ... to real people'. ... In brief, the conclusion suggests itself that like in the colonial period, the laws of war are seen as imposing few constraints where the non-European world is concerned.": B.S. Chimni, "Marxism and International Law: A Contemporary Analysis", 6 February 1999, Economic and Political Weekly, 337 at 345. 3 4 4 Bassiouni, "Proscribing Function", supra, at 181. 72 -73-can be drawn as to the major points of agreement and disagreement prior to the conclusion of World War U, when the principle was receiving its final "polish", before becoming an "identifiable interest or right" that was included in an international document and given widespread support.346 As we have seen, the concepts of free will, equality, and "social contract" played an important part in the evolution of the principle, as Dr. Brownlie pointed out. However, the application of these concepts was always qualified in some way, to the detriment of a particular group, throughout human history. Free will and equality are actually irreconcilable ideals in the first place, if they are taken to their extremes. An individual's perception of her/his right to complete freedom may interfere with the right of another individual to equal treatment, and vice versa. Therefore these concepts must of necessity be qualified in some way, if the society is not to be torn apart by their competing claims. This is why the "social contract", or the concept of "fraternity" are intended to provide the balance; theoretically, individual deference to the "greatest good" of a society provides its own reward, as the term "greatest good" implies. But who has the right to decide what the "greatest good" is for a particular community? Do all members of every society have the right to determine what the "greatest good" would be for their particular society? Or does some external, "superior" entity have the right to determine what is best for certain societies, after having determined that those societies have not "evolved" sufficiently to be able to make such a determination? 3.6.1 "Freewill" The analysis throughout this chapter demonstrates clearly that the right to "liberty", or free will, has generally only been granted to peoples who were considered sufficiently "civilised" or "developed", in the eyes of those who made the rules on how one comes to be considered "civilised" or "developed". The latter's ideas flow from the theory that the ability to exercise true freedom is something that one As I will be discussing in more detail below, I am treating the inclusion of the principle of self-detennination in the 1945 UN Charter as its "Declarative Stage". 73 -74-acquires, and only if one attains the appropriate "state of mind or character".347 This view presupposes that human beings do not have a "natural ability" to determine what is best for themselves, contrary to the views of philosophers such as Rousseau and Descartes,348 and "natural law" theorists such as Erasmus, Grotius, and Las Casas.349 If one is seen to be driven merely by instinct (the "primitive"), as opposed to "reason", then the prevailing view has been that more "rational" beings are naturally entitled to control and repress these "primitive" tendencies. This argument would be sustainable if there were some objective standard of "reason", which took into account a representative range of views on the subject. For example, to take a more modern example, how was dropping a nuclear bomb on a densely-populated city in 1945 any less "barbaric" than using a "primitive" weapon to defend one's fellow citizens? Also by way of illustration, consider that some of the original "centres of human civilisation" were in Arab centres such as Persia and Mesopotamia, yet the Arab inhabitants of the Middle East have largely been treated as "uncivilised" since Christianity first asserted its dominance over Europe. This is all the more ironic, given that Jesus Christ was actually from the Middle East, not Europe. Some colonisers, such as Vitoria and Las Casas, were able to see that the natives of the Americas, Africa, Asia, and Oceania were people of reason. In 1917, Lloyd George had tried to argue that the "natives [in German colonies in Africa] live in their various tribal organisations under chiefs and councils who are competent to consult and speak for their tribes".350 However, for the most part, the European world failed to comprehend the intricacies and complexities of these societies, which had evolved without reference to the same narrow perceptions and interests as those held by the ''Western" world, and in vastly different physical climates. Only in the latter part of the twentieth century have 3 4 7 That is, the "acquired ability" to live as one ought, advocated by Plato and Locke, et al. (cf. Discussion in Chapter One (Introduction), and Adler, supra, at 250). 3 4 8 Cf. Discussion above in Chapter One (Introduction) and Adler, supra, at 592-3. 3 4 9 Cf. Discussion above in Chapter One (Introduction), supra. 3 5 0 Sunga, supra, at 24. 74 -75-the majority of anthropologists and others been able, to appreciate the high level of organisation of many of these societies, which could not have survived if the people concerned lacked reason.351 Yet the categorisation of groups as more or less "civilised", in the eyes of European powers, has been highly influential in terms of the evolution of the principle of s^ If-detennination. Ffistorically, the right to exercise free will has only been granted to the "civilised". Those considered "uncivilised" have not even been consulted on issues of paramount importance, such as the Spanish mistreatment of the indigenous people of the Americas,352 the carving of Africa into "nations" that conformed mostly to European economic interests,353 the creation of a "Jewish homeland" in the midst of an Arab population,354 and the carving of traditional ethnic Albanian territory into several entities after World War I, to suit Russia's national interests.355 More recently, "nationahsm" has been linked to the "primitive", and thus the use of plebiscites to ascertain the views of "nationahties" after World War I was very token. Instead, those who had physical control of the various territories divided them up according to their needs and interests, including their need to break up some of the larger "nationahties" in an attempt to keep them from challenging their power in the new Europe.356 As the increasing mistreatment of minority groups throughout Europe between the wars demonstrates, the right to "free will" of minorities was also rejected by many States, in practice. This need of those in power, to control humanity's allegedly "primitive" urges, has been reinforced by the growing dominance of "positive" theories on what "law" is. 3 5 7 Positivists such as Hobbes358 and 3 5 1 For example, cf. L.I. Rigney, Internationalization of an Indigenous Anti-Colonial Cultural Critique of Research Methodologies: a guide to indigenist research methodology and its principles (Adelaide, Australia: Flinders University of South Australia, 1997). 3 5 2 Council of the Indies of 1550. 3 5 3 Berlin Conference of 1885. 3 5 4 British Palestine Mandate of 1922. 3 5 5 Florence Protocol of 1913. 3 5 6 For example, no plebiscite was held in Austria, as the Allies did not want an "Anschluss" at this point: Beigbeder, supra, at 81. 3 5 7 Cf. Discussion in Chapter One (Introduction). 3 5 8 Ibid. 75 -76-Kelsen 3 5 9 start from the assumption that human nature is inherently "bad" and must be controlled by "stable" structures and procedures. In international law terms, this has translated into an emphasis on sovereignty, rather than rights, and an insistence in some quarters that "law" is an entirely "objective" form of adjudicating disputes, therefore treaties must also be honoured no matter whether there was equal bargaining power on both sides during the treaty negotiations. Thus we have the doctrine of uti possidetis, and the Berlin Conference of 1885, purporting to try and create "stability" in regions where the original inhabitants had been exploited and mistreated by those who now claimed to be acting in their "best interests". The denial of the wishes of the Swedish minority in the Acdand Islands Case in 1921 is another example of a positivist concern to avoid any future disputes as to the "natural" borders of a recently-formed State, by insisting that a State is "a territorial entity", not an organisation of people consenting to live together as a unit.360 i The tension between law's "subjectivity" and "objectivity" has been the focus of the modern Critical Legal Studies (CLS) movement, and thus I will not attempt to address it in any detail here. The CLS movement is generally highly critical of the following assumptions about "law", which have supported what they describe as the "myth of legal reasoning": (i) "legal reasoning" is a purely objective process, (ii) carried out by apolitical, impartial arbiters, (iii) using quasi-scientific methods, (iv) which can be learned by anyone with sufficient "ability" and appropriate training, no matter what their background, (v) in order to determine the "truth" and make "correct" decisions at all times and in all cases.361 Instead, CLS scholars emphasise that law is made by people, not robots, and thus can never be separated entirely from the intrinsic complexities of human cognitive behaviour and experience. In their view, law "provides only a wide and conflicting variety of stylised rationalizations from which courts pick and choose", depending on the particular judge's "social and political judgments".362 This struggle to rationalise and "objectify" such subjective judgments is apparent in the 1935 Permanent 3 5 9 H. Kelsen, General Theory of Norms, trans, by M. Hartney, (Oxford: Clarendon Press, 1991). 3 6 0 Cf. Discussion in Chapter One (Introduction). 3 6 1 See generally, eg. D. Kairys, ed., The Politics of Law, A Progressive Critique, (New York: Pantheon Books, 1982). 76 -77-Court of International Justice decision in the Danzig Legislative Decrees Case, where the Court argued that "sound popular feeling" could not be determined subjectively by the group in question, even though in the Minority Schools in Albania Case of the same year, the same Court had argued that the "essence" of a minority group could only be determined subjectively by that particular group.363 Critical legal scholars do not deny that subjectivity should have a role in determining "legal" issues, but they resent positivism's insistence on trying to deny that any such subjectivity could be involved in such a "stable" institution as "the Law". The rise of Nazism relied on similar "myths" about the objective superiority of a particular race of humans and their institutions, and thus their right to control and even destroy "inferior" beings. It is interesting to note that Dr. Sigmund Freud's psychological theories on the "undesirable" innate qualities of humans and the need for strong external controls364 were being promulgated during the interwar years, thereby reinforcing many of the tenets of Nazism. As another German psychoanalyst, Dr. Karen Horney, pointed out in the late 1940's: "[T]here is a wide divergence of opinion about the desirability or necessity of a disciplinary inner control system for the sake of insuring moral conduct. ... Broadly speaking, there are three major concepts of the goal of morality which rest upon these different interpretations of essential human nature. Superimposed checks and controls cannot be relinquished by anyone who believes - in whatever terms - that man is by nature sinful or ridden by primitive instincts (Freud). The goal of morality must then be the taming or overcoming of the status naturae and not its development. The goal must be different for those who believe that there is inherent in human nature both something essentially "good" and something "bad", sinful, or destructive. It will center upon the insurance of the eventual victory of the inherent good, as refined, directed, or reinforced by such elements as faith, reason, will, or grace - in accordance with the particular dorninating religious or ethical concept. Here the emphasis is not exclusively upon combatting and suppressing evil, since there is also a positive program. Yet the positive program rests either upon supernatural aids of some sort or upon a strenuous ideal of reason or will, which in itself suggests the use of prohibitive and checking inner dictates. 362Kairys,ibid,at3. 3 6 3 Cf. Discussion in Chapter One (Introduction). 3 6 4 Freud's basic premise was that the human psyche was comprised of three "identities": the "id", "ego" and "superego". In his view, the "superego" was the positive moralising force in the human being, which drew on societal values to control the "instinctive" and therefore undesirable urges of the "id", to create a healthy "ego" (self-identity). 77 -78-Lastly, the problem of morality is again different when we believe that inherent in man are evolutionary constructive forces, which urge him to realize his given potentialities. This belief does not mean that man is essentially good - which would presuppose a given knowledge of what is good or bad. It means that man, by his very nature and of his own accord, strives toward self-realisation, and that his set of values evolves from such striving. Apparently he cannot, for example, develop his full human potentialities unless he is tmthful to himself; unless he is active and productive; unless he relates himself to others in the spirit of mutuality. ... He can grow, in the true sense, only if he assumes responsibmty for lumself. ... You need not, and in fact cannot, teach an acorn to grow into an oak tree, but when given a chance, its mtrinsic potentialities will develop. Similarly, the human individual, given a chance, tends to develop his particular human potentialities."365 [sic] Homey was initially a strong advocate of Freud's theories, and she taught at the Berlin Psychoanalytic Institute from 1918 to 1932.366 However, she came to question the allegedly "positive" influence of the "superego", which was supposed to help a person conform to the values of the society, when that society consistently undervalued and demeaned half of its membership, namely women.367 The same challenge could be taken up by those judged to be "uncivilised" by the "Western world". Notably, Horney's theories were never accepted by the psychoanalytic community, and were instead taken up by the "behavioural" school of psychology.368 However, even Wilson and Lenin believed that a society had to reach a certain level of "development", before it should be allowed to exercise its free will, thus assuming that all societies evolved from a more "primitive" model than each of these statesmen advocated. Of course, their respective views were completely contradictory. Wilson attempted to curtail the freedoms of won-democratic communities, by denying them any right to self-determination or membership in the League of Nations, while Lenin believed that true freedom could only be expressed in societies that rejected democracy and capitalism - only "enhghtened" proletariats were sufficiently capable of rejecting capitalism and 3 6 5 K. Horney, Neurosis and Human Growth: The Struggle Toward Self-Realization, (New York: W.W. Norton & Company, 1950) at 14-15, 17. 3 6 6 Horney, ibid, rear cover notes. 3 6 7 M. Westkott, The Feminist Legacy of Karen Horney, (New Haven, Massachusetts: Yale University Press, 1986) at 3. 78 - 79 -forming effective societies. Neither of these politicians accepted that self-determination should be granted to communities that were not open to their political views. In much the same way, even natural law theories turned into a rationale for denying freedom to "primitive" peoples, as discussed above in the context of Vitoria's views on "Indian" rights to self-determination.369 In addition, de Vattel argued that more "civilised" nations had a "natural" right to claim land that was not being exploited adequately.370 This twist came about through a combination of the influence of the acquired freedom of self-perfection and the circumstantial freedom of self-realisation on the "natural" view of freedom - because "uncivilised" societies could not defend or "cultivate" their territory adequately, or they gave it away (even though they may not have been aware of the inequity of the trade-off), then they "lost" their natural right to freedom. In recent years, even some disadvantaged groups have tried to distinguish themselves from other groups or individuals whose identities and culture have not survived as well, for whatever reason, as happened in Latin America after independence.371 This is the least defensible aspect of the "natural" law view that the "authentic"/ "primitive" is "good". It presupposes that the "authentic" identity of a group means: completely unchanged by historical circumstances. For example, there are arguments that the "traditional" right of certain Aboriginal groups in Australia to hunt certain animals, could never accommodate the right of these people to use guns for hunting, instead of the "traditional" weapons. It has also manifested itself in arguments as to what percentage of "blood" one must have, before one can claim membership of certain indigenous groups in Canada, the US, and Australia. This approach merely replicates the same discriminatory systems that have disadvantaged these groups in the first place, by trying to insist that identity with a group is necessarily "objective", not subjective. 3.6.2 Equality 3 6 9 Cf. Discussion in Chapter One (Introduction). 3 7 0 Ibid. 3 7 1 Cf. Discussion in Chapter One (Introduction). 79 - 80 -The right to "equality" has also been qualified by reference to subjective criteria such as social status (in the case of Aristotle, slaves, and women), one's choice of political institutions (democratic versus socialist), and one's level of "civilisation", or "reason". In addition, the right to "equal" treatment was heavily influenced by one's objective ability to defend one's culture and territory, even to the extent of the "unequal" treatment of those who may have wished to stay within German territories after World War I but were not consulted. In this regard, note also the attitude of Lord Balfour in relation to the issue of "equality" in Arab-dominated territories: "We are not dealing with the wishes of an existing community but are consciously seeking to re-constitute a new community and definitely building for a numerical majority [of Jews] in the future."372 [my emphasis] In other words, Lord Balfour perceived that the wishes of the future numerical majority should take precedence over the views of any minority group, in order to achieve the right "balance of power" in the new "Jewish homeland". Both democracy and socialism are based on ideals of "equality", although of course they manifest themselves in vastly different institutional structures and methods of achieving "equality". Even within democracies, many have argued that not all people are treated equally, even if there is a formal equality. Majority rule must be tempered by some deference to the minority's views, if the minority is to maintain its identity, as the Permanent Court of Justice decided in the Minority Schools in Albania Case?13 In recent years, there has been increasing criticism of the "liberal" theory of equality and democracy, which tends to favour formal equality over actual equality. "Liberalism" is a variant on the natural law view of people's "natural" ability to develop themselves. "Liberals" believe that by creating "equal" opportunities for everyone to exercise their freedom (the "level playing field" concept), this will result in equal status for everyone, given sufficient time. However, this theory presupposes that everyone starts from a sufficiently "equal" position in the first place, which is rarely the case, even in most modern democracies. It also does not take into account that different circumstances within a 3 7 2 Cf. Discussion above, this Chapter. 8 0 -81 -particular society may be more or less conducive to the exercise of different people's natural abilities. Some indigenous groups in Latin America survived only because they withdrew from the rest of society and vigorously defended their territory, after "protectionist" policies were abolished, rather than face the inevitable assimilation that took place amongst other Latin American indigenous groups. Even today, societal prejudices, based on such factors as the colour of one's skin or eyes, invariably hamper the progress of members of certain racial or religious groups to levels of authority in democratic societies (most Western democracies have yet to elect a non-white, non-Christian President or Prime Minister374). The emphasis on "individual liberty" over "fraternity" in such societies tends to place individual interests higher than those of the society as a whole, thereby leading to large inequities in terms of power and financial distribution, because not every individual starts off "equal". The same arguments have been made in relation to the unequal distribution of economic wealth and political power in the context of global affairs. For example, many commentators have criticised the insistence of the "developed" world on "free trade" policies, when there is such a disparity of wealth and negotiating power between them and the rest of the world. A "G77" summit of leaders, representing 80 per cent of the world's population, met in April 2000 and drafted a resolution calling for "a new Global Human Order." This new Order would allow these developing countries to "participate on an equal footing in decisions which affect them", and force developed countries to "open their markets to farm and textile products from the South". The members of the Summit were particularly critical of the policies of the International Monetary Fund and the World Bank, which had made loans to many developing countries conditional on certain institutional restructuring. As the Prime Minister of Belize pointed out during the Summit, "They told us these measures would stabilise our economy. Instead, they have stabilized poverty."375 3 7 3 Cf. Discussion in Chapter One (Introduction). 3 7 4 Women are also notably absent from the highest positions of power in "liberal" democratic societies: for example, cf. photo of 149 world leaders taken at UN Millenium Summit, 6-8 September, 2000, in W.R. Pace & J. Stoyles, "Summit Shows Depth of ICC Support", (2000) 16 The International Criminal Court Monitor, 1. 3 7 5 Associated Press and Reuters News Agency, "Third World leaders call for sharing of wealth", The Globe and Mail (15 April 2000) A25. 81 -82-It is also interesting to analyse the most "peaceful", and thus theoretically the most "successful", examples of co-habitation of a territory by peoples of different ethnic origins, from the point of view of "equality". "Multicultural" policies in the context of democratic societies appear to encourage the most tolerance for individual differences, and thus appear to provide the best circumstances for the free expression of one's "authentic" identity.376 However, in order to maintain the "equihbrium" of such societies, their various institutions must be dynamic, not static, responding to regular shifts in the balance of various powers, as the population grows and evolves, in order to find the most appropriate balance between "good" to one versus "harm" to another. This dynamism is most worrying to positivists, particularly when it manifests itself in what they like to call "judicial activism", which they claim threatens to disrupt the fabric of society.377 In addition, there are some contradictory aspects of the most "successful" multicultural societies, namely Australia, Canada, Great Britain, New Zealand, and the United States of America. All of these countries have had their share of violent internal conflicts in the past, based on disputes over territory between different groups. The current internal stability of these countries is based on the historical complete military dominance by one particular group (or two groups - British and French - in the case of Canada378) of all the other groups, and the resultant "hegemony" of a particular set of ideals and values, which has never been successfully challenged since the military dominance was achieved. This "hegemony" is particularly pronounced in the United States, which has a "melting pot" policy rather than a true "multicultural" policy that tolerates and encourages difference.379 Australia's recent 3 7 6 In comparison to the problems of Europe and other continents where hostilities have been waged throughout the twentieth century, between different inhabitants of the same territory. For example, cf. B. Laghi, "Cliirac applauds Canadian harmony", The Globe and Mail (7 September 1999) A4. 3 7 7 . For example, cf. J. Tibbetts, "Critics of judicial activism kept from Supreme Court anniversary 'love-in' ", The Vancouver Sun (28 September 2000) A7. 3 7 8 Although there is continuing tension between the British and the French descendants within Canada, that erupted into violence in the 1960's. One author recently identified the "unifying idea of the Canadian experience" as follows: "We are the children of the expelled, the persecuted, the abandoned and the marginal. We are the remnants of empires and the refugees of lost causes": M. Starowicz, "Ignore the past at your peril", The Globe and Mail (20 September 2000) A l l . 3 7 9 Cf. J.A. Sigler, Minority Rights: A Comparative Analysis, (Westport, Connecticut: Greenwood Press, 1983) at 17-27. Note also the recent US Justice Department study which found "wide racial and geographic disparities in the federal government's requests for death penalties", such that "[minorities were far more 82 -83-multicultural policies are also in direct contrast to the "white Australia" inimigration policy that prevailed until the 1970's, which consolidated "white" hegemony, especially in relation to any historical claims to territory.380 By contrast, most of the twentieth century's civil wars have occurred in countries where there are still two or more groups with enduring competing historical claims to territory, powerful enough to launch a campaign of violence against those who currently control the territory, in order to attempt to redress past deprivations and/or injustices. As Professor Jay Sigler has pointed out: "For most of human history, population movements have brought dissimilar peoples into the same territories. Intergroup conflict has been the rule, not the exception."381 Thus, the "successful" cases of multiculturalism rely on the fact that most of the population has no historical claim to territory, particularly any territory which has been taken from them in the past, and which could be the cause of disputes. They also rely on the fact that those groups with the only, or the longest-standing, historical claims to territory in the majority of these countries, have been almost completely subjugated by superior firepower, introduced diseases, unfair treaties and/or economic policies, and in some cases the complete denial of citizenship rights.382 As an Australian priest, Father Ted Kennedy, wrote recently: "We must all remember that not one of these good things that we non-Aboriginal Australians enjoy today - benefits that are the envy of the world, which seem to sparkle the more in the Australian sunlight - not one of these good things has been attained without the wrenching distress and grieving, starvation and dying of Aboriginal people in the past."383 There has been some recognition of this fact prevalent among those recommended for the death penalty than their proportion in the population.": Associated Press, "Minorities majority on U.S. death row", The Globe and Mail (15 September 2000) A13. 380 Qf j QaitQn Agj^  "Australia: A mixed legacy of mixing cultures", The Globe and Mail (15 September 2000) A15, who writes: "... Australian multiculturalism is built on a deep post-imperial bedrock of political, legal and even social mono-culture. Comparable stories can be told for English Canada or the United States. However much the descendants of white settlers may, and probably should, feel retrospective shame, these countries are still the best examples we have of functioning multicultural societies - and their limits." 3 8 1 Sigler, supra, at 16. 3 8 2 Australian Aborigines were not considered to be "citizens", and thus were denied voting and other rights, until 1967. 3 8 3 T. Kennedy, Who is Worthy? (Sydney: Pluto Press, 2000), excerpt reprinted as "Our savage moment of truth", The Sydney Morning Herald (17 April 2000) at 30. 83 -84-in most of the postcolonial countries, in the form of granting some form of autonomy to groups with historical claims to certain territory.384 However, most of these groups continue to struggle for "equal" treatment with those who have a weaker or non-existent historical claim to the territory. The situation is particularly difficult for the Aborigines of Australia, and the indigenous people of Canada's British Columbia, as most of these peoples do not even have a treaty to rely on if their rights are taken away. Nor does Australia have a Bill of Rights or anything similar to protect the rights of the country's original inhabitants, unlike Canada. Thus, the current Federal Australian Government of Prime Minister John Howard was able to give preference to "pastoral lease" holders over "native title" holders in the 1998 "Wik" amendments to Australia's Native Title Act, despite the fact that the former had a very tenuous "historical" claim to their "territory".385 In other words, even today the international community has yet to come up with a model of peaceful governance and self-detennination that truly provides real "equality" to all of its citizens, where the territory is inhabited by peoples of different ethnic origins. 3.6.3 The "social contract", or "consent of the governed" The French and American Revolutions demonstrated the rise of the theory that the authority of any governing body rests on the "consent of the governed". Thus, various limits were set by "the people" on the rights of those who governed them, most notably in the context of democracy, where governments remain accountable to "the governed" through regular elections and consultations. However, for many centuries, only "civilised" peoples were deemed to be "entitled" to set such limits on their "governors", and on each other, once they were in power. The "uncivilised" peoples of the world, such as slaves and indigenous peoples, clearly were not perceived as eligible to participate in the Cf. Discussion in Chapter Six, below. 3 8 5 Cf. Native Title Amendment Act 1998, No.97, 1998 (Commonwealth of Australia), which was adopted to clarify some aspects of the decision of the High Court of Australia in The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors (1996) 141 ALR 129. 84 -85-"social contract", as evidenced by their widespread mistreatment and complete subjugation throughout the centuries. Vitoria's idea of a "universal natural law" had provided some hope to the indigenous peoples of the Americas that they could seek adequate protection under such a noble "social contract". However, as discussed above, the projection of European standards and interests onto the "uncivilised" world, predominantly because of the former's superior firepower, allowed the imperial powers to set the terms of any "social contract" they entered into. This is particularly evident in the treatment of non-Europeans who entered into treaties with European powers, yet were never accorded the appropriate legal status thereafter.386 In more recent times, such as in the Minority Treaty Protection regime, the intermittent upholding of this democratic "contract" to recognise the rights of the governed has ameliorated some of these concerns. The language of the League of Nations Covenant also reveals an attempt to recognise a form of "sacred trust" to protect "the well-being and development" of the peoples in the Mandated territories, until they were "able to stand by themselves under the strenuous conditions of the modern world".387 However, Wilson's insistence that "the interests of the population concerned must have equal weight with the equitable claims of the government whose title is to be deterrnined"388 also suggests that he fancied there was equal bargaining power between the governed and the government in every case, which was completely erroneous. This dichotomous and paternalistic approach to "uncivilised" peoples' eligibility for protection and political independence ultimately was replicated in the widespread mistreatment of minorities and in the minimisation of their right to be consulted consistently by means of plebiscite. 3.6.4 "Internationally perceived snared values " in practice Cf. Discussion in Chapter One (Introduction). Article 22, Covenant of the League of Nations. W. Wilson, Public Papers: War and Peace, (1927) at 155-62, in Sunga, supra, at 92. ss -86-In suinrnary, by the time of the Second World War, both of the major political theories of the time significantly limited the right to free will and equality, to those peoples who were considered sufficiently "developed". In other words, these were perceived as relative rights only. In addition, the most powerful States reserved to themselves the right to determine which peoples were sufficiently "developed" to be able to claim these "rights". The standard of "development" was the only serious point of contention at this time: most democratic States believed that a democratic form of governance and/or the renunciation of disruptive "nationalist passions" were the only indicators of sufficient "development", while socialist States believed that "development" could manifest itself in any form of governance other than capitalist, imperialist, liberal democracies. However, ultimately, socialism did not allow much free will to those who had joined their fold. There was also considerable confusion as to how best to implement "equal rights", especially in the democratic context: whether equality meant providing the same "level playing field" for everyone, or whether some consideration should be given to providing a range of "circumstances" to different groups within which they could practice "freedom", in recognition of existing limits on their access to freedom within various societal constraints. It was also unclear if the "subjective" views of a minority group should be taken into account, and if so, to what extent. For the most part, these decisions were made "objectively" by external actors, without consulting the group in question. In terms of the right to adequate protection by the government (the "social contract"), there was an apparent acceptance by both political viewpoints that majority rule had to be tempered to some extent by some form of protection or autonomy of minorities, as well as the less "developed". However, this sentiment did not manifest itself in consistent practice. In addition, consultation (the "consent of the governed") was treated not as a right, but more as a "privilege" that each group had to earn, by following the "rules" of the most powerful States. The "greatest good" of any society was only ever determined by "developed", or more powerful societies. There was also some deference to the view that the size of a "developed" group would influence their right to be consulted as to their future. At 86 -87-the same time, those governments that had effectively subjugated all competing historical claims to their territory insisted that it was possible for (iifferent "nationalities" to co-exist peacefully on unequal terms on the same territory, despite their irreconcilable and vigorous historical claims to that territory. At the same time, "sovereignty" and "stability" were emphasised. However, in practical terms, these disparate values did translate into some tangible developments in terms of the principle of self-determination: (i) general recognition of the right of certain groups to manage their own affairs without external interference, and to be consulted as to their wishes, particularly "the removal of conscious and recognizable [political] communities from foreign domination, restoring their destiny into their own hands, as far as was possible, within the framework of a stable international community"389; (ii) general recognition of the right of other groups, who may have a "psychological or historical basis"390 for their sense of community, yet were interspersed within the pohtical territory of another group, to have some form of "cultural autonomy"391 and "equality"; (iii) general recognition of the right of "less developed" groups to be put under the "tutelage" and "protection" of more advanced States, with a view to eventual self-management, once they had "developed the necessary consciousness of community and the capacity for self-government.";392 (iv) general recognition of the need to have some kind of international enforcement mechanism/s for minority groups who did not feel their rights were being protected adequately by their governments; (v) recognition of the need to have two kinds of international enforcement mechanisms for minority rights: the Permanent Court of International Justice for the resolution of "legal" issues, and recourse by minorities to the Council of the League of Nations for the resolution of all other issues, such as "political" issues; and 3 8 9 Ofuatey-Kodjoe, supra, at 94 & 95. 3 9 0 Ibid, at 95. 3 9 1 Ibid. 3 9 2 Ibid, at 96. 87 -88-(vi) ehgibility for membership of the League of Nations ultimately was not based on the political persuasion of the particular member, but sometimes it was based on the member's apparent commitment to protect its minorities. As we will see below, each of these developments has continued to manifest itself in different forms in the ensuing years. 88 -89-Chapter Four: The "Declarative Stage" of the Principle of Self-Determination Bassiouni describes the "Declarative Stage " of the principle of self-detennination as "the declaration of certain identifiable human interests or rights in an international document".393 In this Chapter, I argue that this stage occurred when the "principle of self-detennination'' was included as one of the guiding principles of the United Nations Charter of 1945.394 It bad not previously appeared in a truly international document prior to that. At the same time, I will demonstrate how the principle continued to be applied inconsistently, despite growing opinio juris upholding the principle as a right, and wide support for the principles for the protection of minorities that were established by the Nuremberg Tribunal. In general terms, most of the human rights that are widely recognised by the international community are contained in the 1948 Universal Declaration of Human Rights (UDHR). However, during the negotiations for this Declaration, conflicts between different country representatives as to the meaning of "self-determination" prevented the inclusion of the "right to self-determination" in the UDHR.395 However, at the same time, article 28 of the UDHR upholds a form of the principle of self-determination: "Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realised." As mentioned in Chapter One (Introduction), whatever your view of the right to freedom is, the right circumstances must be present in order to allow the exercise of true freedom, as article 28 seems to acknowledge. Despite failing to materialise as an enunciated "right" in the UDHR, the "principle of self-determination" had previously become an "identifiable human interest in an international document", arguably with even more legitimacy than any right in the UDHR, when it was included as one of the guiding principles of the UN Charter of 1945, most notably in article 1(2): 3 9 3 Bassiouni, "Proscribing Function", supra, at 181-182. 3 9 4 In Article 2(1), discussed below. 89 -90-"The Purposes of the United Nations are: ... (2) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other measures to strengthen universal peace", [my emphasis] The inclusion of this terminology was not uncontroversial, as many authors have noted. The Soviet Union wanted to use "right" instead of "principle", in accordance with their political agenda, but many State representatives argued that this would be the equivalent of endorsing "international anarchy".396 Thus, "principle" was the preferred compromise, and several of the Charter's other provisions make it clear that this "principle" was to be exercised within a stable international system that prohibited the use of force, and provided "trusteeship" and other such supervisory mechanisms for "non-self-governing territories", until they were able to develop the capacity for "self-government" and "independence."397 As Cassese points out, "the principle enshrined in the UN Charter boils down to very little; it is only a principle suggesting that States should grant self-government as much as possible to the communities over which they exercise jurisdiction."398 It does not impose any obligations as such on Member States, although articles 55 and 56 taken together seem to suggest that Members should take some kind of action to "respect" and "promote" the principle.399 Cassese concludes: "In spite of all these limitations and shortcomings, the fact remains that this was the first time that self-determination had been laid down in a multilateral treaty - a treaty, one should add, that had been conceived of as one of the major pieces of 3 9 5 Cf. Discussion in Chapter One (Introduction) as to why self-determination was not included within the UDHR. 3 9 6 Statement of the delegation of Colombia, Debates of the First Committee of the First Commission of the San Francisco Conference, 14-15 May and 1 & 11 June, 1945, Library of the Palais des Nations, Geneva [unpublished microfilmed minutes] 15 May, at 20, in Cassese, "Self-Determination", supra, at 39-40. 3 9 7 See especially articles 73 & 76, UN Charter. 3 9 8 Cassese, "Self-Determination", supra, at 42 [footnote omitted]. 3 9 9 Article 55 provides: "With a view to the creation of conditions of stability and well4)eing which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: (a) higher standards of living, full employment, and conditions of economic and social progress and development; (b) solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and (c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." [my emphasis] Article 56 then provides: "All Members pledge themselves to take joint and separate action in co-operation with the Organisation for the achievement of the purposes set forth in Article 55." 90 -91-legislation of the new world community. Thus, the adoption of the UN Charter marks an important turning point; it signals the maturing of the political postulate of self-detennination into a legal standard of behaviour."400 [my emphasis] 4.1 Minority rights after the Second World War At a more tangible level, the most dramatic evidence of the international community's recognition of their collective failure to protect minorities adequately both before and during the war, was the inclusion of "crimes against humanity" in the Charter of the International Military Tribunal at Nuremberg ("Nuremberg Charter") in 1945.401 Those who drafted the Nuremberg Charter recognised that the abhorrent treatment by the Nazis of the Jews was a "crime against humanity", not just a matter for international civil litigation (such as the right of minorities to have recourse to the Permanent Court of International Justice), or purely political solutions (such as the right of minorities to petition the League of Nations Council).402 Despite being criticised as "victors' justice" in the eyes of many scholars,403 the International Military Tribunal at Nuremberg ("Nuremberg Tribunal") undoubtedly set a new and promising standard in prosecuting individuals for international crimes, and for using the international Rule of Law to address gross injustices to minority groups. For the first time in known history, a non-military court, created under an international treaty, gave defeated leaders the chance to defend their actions in the forum of a trial, instead of merely facing extra-judicial executions based on untested allegations.404 4 0 0 Cassese, "Self-Determination", supra, at 43. 4 0 1 Article 6(c). "Crimes against humanity" were also included in article 5(c), Charter of the International Military Tribunal for the Far East, and article II(l)(c), Control Council Law No. 10 (Punishment of Persons Guilty of War Ccrimes Against Peace and Against Humanity), 20 December 1945, (signed by France, Union of Soviet Socialist Republics, United Kingdom, and the United States of America), Official Gazette of the Control Council for Germany, No. 3, Berlin, 31 January 1946, reprinted in B.B. Ferencz, An International Criminal Court, A Step Toward World Peace - A Documentary History and Analysis, Vol. 1, Half a Century of Hope, (London: Oceana Publications, Inc., 1980). Cf- Fuller discussion in Chapter Seven of "crimes against humanity". 4 0 2 The Nazis also targetted other minority groups, such as "gypsies", Communists, and Catholics, but the Jewish populations of the German-occupied territories were the most profoundly affected group overall. 4 0 3 Bassiouni, "Documentary History", supra, at 8. 404The latter of which option the British government preferred in order to deal with the Nazi leaders, but they were won over by the Americans. 91 -92-Thc Allies were particularly motivated to make amends for their previous failed attempt to deter the German leadership at the Leipzig Trials of 1921, which had allowed the Nazis to continue to pursue their genocidal policies unabated. The Leipzig Trials have widely been acknowledged as a "sham",405 focusing predominantly on mistreatment of shipwrecked survivors of submarine incidents and prisoners of war, rather than on the conduct of hostilities.406 So, those who set up the Nuremberg Tribunal were determined to condemn unequivocally the actions and attitudes of the Nazis, to make sure that Germany would never again terrorise the European continent.407 One of the first arguments raised by the defendants at the Nuremberg Tribunal was of course the maxim nulla poena sine lege, nullem crimen sine lege.40* The defendants argued that those who drafted the Nuremberg Charter had only recently "created" the crimes they were charging, ex post facto, and were arbitrarily exercising an elaborate form of the usual "victors' justice". However, the judges of the Tribunal held that "The [Nuremberg] Charter is not an arbitrary exercise of power on the part of victorious Nations, but in the view of the Tribunal, ... it is the expression of international law existing at the time of its creation ; and to that extent is itself a contribution to international law."409 The indictment alleged that "[The] methods and crimes constituted violations of international conventions, of internal penal laws, [and] of the general principles of criminal law as derived from the criminal law of all civilised nations" 4 1 0 Critics of the Tribunal's verdict were particularly opposed to the idea of uncodified "general principles" of "civilised nations" forming the basis of international 4 0 5 A.G. Karibi-Whyte, "International Criminal Court: Developments and Future", (1998) May, The Reformer, 3 at 4. 4 0 6 Cf. U.S. Department of the Army Pamphlet No. 27-161-2, H International Law 221-22 (1962) in J.J. Paust et al (eds.), International Criminal Law: Cases and Materials, (Durham, North Carolina: Carolina Academic Press, 1996). 4 0 7 The trials were only part of an overall arrangement to de-Nazify Germany and bring its peoples back to "civilization" (cf. Karibi-Whyte, supra). 408 "Nullapoena sine lege" means: "no punishment without law", ie. "conduct cannot be punished as criminal without legal authority." "Nullum crimen sine lege" means: "no crime without law", ie. there must be a pertinent criminal law in existence at the time that the alleged crime was committed, in order to establish criminal responsibility for the particular act or omission: CCH Dictionary, supra, s.v. "nulla poena sine lege ", "nullum crimen sine lege ". 4 0 9 Judgment, "Trial of the Major War Criininals before the International Military Tribunal, Nuremberg, 14 November 1945 - 1 October 1946", (Nuremberg, Germany : International Military Tribunal, Nuremberg, 1947) reprinted in Ferencz, supra, at 475. 92 -93-criminal prosecutions, arguing that there was no way for the accused to have ascertained the criminality of their actions.411 The Tribunal dismissed this claim, pointing to the existence of a number of relevant conventions and stating that the defendants "must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression."412 In addition, the concept of "crimes against humanity", in the context of the Holocaust, appears to be one of the few occasions where these so-called "general principles" of "civilised nations" would seem to reflect the concerns of all of humanity, not just those who considered themselves to be the only "civilised" ones (except for the worst proponents of Nazism's policies, of course). Some authors have suggested that while "crimes against peace" and "war crimes" may have been "valid" crimes at the time, "crimes against humanity" did not actually exist as such at that stage 4 1 3 However, the Nuremberg Charter took the cautious approach in its definition of "crimes against Indictment, reprinted in Ferencz, ibid at 474. 4 1 1 As mentioned previously, Berman argues that this aspect of the Tribunal's judgments was almost a direct contradiction of the Permanent Court of International Justice's decision in the 1935 case, Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, 1935 P.C.I.J. (ser. A/B) No. 65, where the Court failed to uphold a penal provision that was based on an assessment of "sound popular feeling {nach gesundem Volksempfinden: Berman, "Nationalist Desire", supra. 4 1 2 Judgment, reprinted in Ferencz,' supra, at 478. Note that the Allied and Associated Powers were able to obtain the complete and unconditional surrender of the German Reich, and thus were able to exercise sovereign legislative power over all the major Nazi leaders, unlike the surrender of the Japanese, which involved allowing the civilian government to continue to operate. This distinction brought the International Military Tribunal for the Far East [hereinafter: 'Tokyo Tribunal"] into some disrepute, because there was not a well-established basis for setting up an international tribunal on the territory of a sovereign power in order to try its leaders. This was noted by the Indian judge sitting on the Tokyo Tribunal, Dr. Rahadbinod Pal, who caused considerable controversy by producing a lengthy dissenting opinion acquitting the accused on all counts. Justice William O. Douglas, of the United States Supreme Court, concurred subsequently with Justice Pal's political characterization of the Tokyo Tribunal, stating, "[the Tribunal] took its law from its creator and did not act as a free and independent tribunal to adjudge the rights of petitioners under international law. As Justice Pal said, it did not therefore sit as a judicial tribunal. It was solely an instrument of political power.": Hirota v. MacArthur, 338 U.S. at 215, where Justice Douglas outlines his reasons for refusing to hear the appeal of the Tokyo defendants. And cf. E.S. Kopelman, "Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial", (1991) 23 N.Y.U. J. Int. L. & Pol. 373, for an excellent analysis of Justice Pal's "almost schizophrenic" vacillation between such pure positivism and a "radical Third World perspective" (at 378). 4 1 3 Bassiouni, "American Society Pnx«edings", supra, at 62. 93 -94-hurnanity'', of incorporating fairly well-recognised "war crimes" "against ... civilian populations",414 and then linking the "crime against humanity" of "persecutions" to the other two crimes, effectively creating a specialised category of "war crimes", in order to remove any suggestion that the Allies had "invented" a new crime: "(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian populations, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated."415 [my emphasis] The judges of the Tribunal respected this requirement of a nexus between the "crime against humanity" of "persecutions" and the commencement of hostilities in 1939. But in the Judgment, they took the opportunity to condemn the "policy of terror" carried out by the German government prior to 1939, citing the "persecution of Jews" and the "persecution, repression and murder" of its political opponents as the most "revolting and horrible ... crimes", but regrettably beyond the Tribunal's jurisdiction. Partly in response to this gap in the Tribunal's jurisdiction, the United Nations subsequently (irafted the Convention on the Prevention and Punishment of the Crime of Genocide [hereinafter: "Genocide Convention"].416 The "crime of genocide" does not require a nexus with armed conflict,417 even though the crime of genocide "was intended to embody "crimes against humanity"".418 However, article II of the Convention creates its own set of obstacles to successful prosecutions, by requiring proof of an 4 1 4 Which were subsequently included in the fourth Geneva Convention of 12 August 1949: Geneva Convention relative to the Protection of Civilian Persons in Time of War (IV), Treaty Series No. 39, Cmnd. 550. 4 1 5 The other crimes with which there had to be a connection, were "crimes against peace" and "war crimes" -article 6(a) & (b), respectively. Note that article 6 also provided: "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan." 4 1 6 Adopted 9 December 1948, 78 U.N.T.S. 277, 28 I.L.M. 763 (entered into force 12 January 1951). Cf. M.C. Bassiouni, Crimes Against Humanity in International Criminal Law, (The Netherlands: Martinus Nijhoff Publishers, 1992) at 538 [hereinafter: Bassiouni, "Crimes Against Humanity"]. 4 1 7 Article I. 4 1 8 M.C. Bassiouni, International Criminal Law Conventions and Their Penal Provisions, (New York: Transnational Publishers, 1997) at 270. [hereinafter: Bassiouni, "Criminal Law Conventions"]. NB. Bassiouni points out that the crime of genocide does not successfully embody crimes against humanity, "even though there is an overlap between the two categories of crime" which is "nowhere addressed." (ibid.) 94 - 95 -"intent to destroy, in whole or in part, a national, ethnical, racial or religious group".419 Not only is such an "intent to destroy" a group extremely difficult to prove, but political and social groups are not protected by this Convention,420 and a "national" group is not defined sufficiently to protect "national" minority groups within sovereign "nations" 4 2 1 In addition, the "Genocide Convention" envisaged that prosecutions of such crimes would be carried out, by a permanent "international penal tribunal" 4 2 2 which the International Law Commission was charged with researching in 1948,423 and such a tribunal has yet to materialise 4 2 4 So "genocidaires" and those who have committed "crimes against humanity" since the Nuremberg Trials, have largely gone unpunished.425 Nevertheless, the "criminalization" of gross mistreatment of minority groups in these documents was an important step forward for the international community, in delimiting the powers of governments and majority populations in this regard, and reinforcing some respect for the "social contract" as it applied to all members of a society. Due to a lack of enforcement mechanisms, most minority groups are still unable to insist that those in power uphold their part of this "contract" in all its respects 4 2 6 4 1 9 Cf. M. Lippman, "The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years Later", (1998) 15:2 Arizona J. Int. & Comp. L. 415. 4 2 0 Thus, Pol Pot and the Khmer Rouge were able to avoid being accused of "international crimes", because (a) the target of their "genocidal" policies was a particular social and/or political sector of an otherwise homogeneous society, in national, ethnic, racial and political terms; and (b) there was no armed conflict to provide the necessary nexus at the time to establish that a "crime against humanity" had been committed. Cf. S. Ratner & J.S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, (New York: Oxford University Press, 1997) at 227-283. 4 2 1 Bassiouni, "Criminal Law Conventions", supra, at 245. 4 2 2 Article VI. 4 2 3 GA Res 260 B (U) of 9 December 1948. 4 2 4 It is beyond the scope of this thesis to outline the many reasons why it has taken so long for the international community to create a permanent international criminal tribunal. For some guidance, cf. M.C. Bassiouni, "Documentary History", supra, at 1-39, and note the 1998 "Rome Statute", supra, which will create such a Court once 60 States have ratified this Statute: cf. discussion in Chapter One (Introduction). 4 2 5 The most notable exceptions are those who have been charged in relation to the recent atrocities in the Former Yugoslavia and Rwanda, under either the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 25 May 1993, S.C. Res. 827, U.N. S.C.O.R., 48th. Sess., 3217th mtg., at 1-2, UN Doc. S/RES/827 (1993), 32 I.L.M. 1159, or the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, 8 November 1994, S.C. Res. 955, U.N. S.C.O.R., 49th Sess., 3453rd mtg., UN Doc. S/RES/955 (1994), 33 I.L.M. 1598. 4 2 6 Cf. Discussion below in Chapter Six. 95 4.2 Article 73 and the "principle of self-determination -96-Article 73 of the UN Charter requires those countries administering "territories whose peoples have not yet attained a full measure of self-government" to undertake certain responsibilities, with a view to promoting "to the utmost, ... the well-being of the inhabitants of these territories". These responsibilities include: "a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c. to further international peace and security; d. to promote constructive measures of development, to encourage research, and to co-operate with one another ...; and e. to transmit regularly to the Secretary-General for information purposes, ... statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XU and XDI apply."427 These measures obviously were intended to compensate for the centuries of abuse that many of these peoples had suffered under their respective colonial regimes. Clearly, the idea was that "self-government" is a desirable thing for all peoples, as long as they are considered sufficiently "advanced" by UN members, and that the UN would monitor the fulfilment by States of their responsibihties to "advance" those under their administration. In addition, administering States are required "to take due account of the political aspirations of the peoples", apparently with only two exceptions: taking into account (i) "the particular circumstances of each territory and its peoples" and (ii) their "stage of advancement". Of course, this language left the way wide open for justifications similar to those made during the Versailles Peace Conference, for denying certain groups of peoples the right to be consulted as to their political future. But the requirement for transmission of relevant information to the UN provided a modest amount of accountability for administering States, in the sense that ostensibly the 4 2 7 Chapter XH of the Charter concerns the International Trusteeship System, and Chapter XUI concerns the Mandate system, both of which were legacies of the League of Nations system. 96 -97-UN was intended to monitor how "advanced" the peoples were in "objective" rather than "subjective" terms ("information of a technical nature"). However, nowhere in the Charter is there any definition of "self-government", whereby those territories yet to attain its "full measure" could immediately be identified. Nor is there any definition of a sufficient level of "advancement", to clarify which territories are ready to be granted "self-government". Nevertheless, by 1946 the General Assembly had accepted the voluntary declarations of seven States (Australia, Belgium, France, the Netherlands, New Zealand, the United Kingdom, and the United States) that they were administering 74 non-self-governing territories between them, and the required information in relation to these territories began to be transmitted to the UN. Problems with this voluntary approach manifested themselves very quickly. Within a few years of the enactment of article 73, there were several disputes between States as to whether they were actually administering the territories they claimed to be,428 and many disputes as to whether a particular State was justified in ceasing to transmit information on a territory because it claimed that the territory was no longer "non-self-governing".429 In other words, the same tendency from historical times of the imperial powers, to assume that they knew what was best for the peoples of their colonial territories, without even consulting them, threatened to make a mockery of the whole scheme. In 1949, a majority of members of the UN insisted that the UN intervene, to assert its sole right to determine whether a territory had "developed self-government" or not, rather than leaving the decision with the administering territory. In response, the UN passed a resolution, over the objections of the administering States, creating an Ad Hoc Committee on Iriformation, which was to "examine the factors which should be taken into account in determining whether any territory is or is not a territory whose people have not yet attained a full measure of self-government."430 This resolution also stated, 4 2 8 For example, the Soviet Union challenged the Netherlands' claim that it held sovereignty over Indonesia: Ofuatey-Kodjoe, supra, at 114, n. 57. 4 2 9 For example, in 1947 the United Kingdom took Malta off the list of its non-self-governing territories, and France removed Guadalupe, Guyana, Martinique, and Reunion: Ofuatey-Kodjoe, supra, at 114. 4 3 0 GA Res. 334 (TV), 2 December 1949. 97 - 98 -inter alia, "it is within the responsibility of the General Assembly to express its opinions on the principles which have concerned or which may in the future guide the Members concerned in enumerating the territories for which the obligation exists to transmit information under article 73(e) of the Charter." By 1952, the Ad Hoc Committee had devised a suggested list of factors that needed to be taken into account in determining whether "a full measure of self-government" had been achieved or not. The factors were in three categories, with no suggestion as to the amount of weight that each should be given: (1) factors "indicative of the attainment of independence"; (2) factors "indicative of the attainment of other systems of self-government"; and (3) factors "showing free association of a territory with all or any part of its metropole or other country", including: "(a) general factors (political advancement, opinion of the population, geographic considerations, ethnic and cultural considerations); (b) legal or constitutional nature of the association; (c) considerations with respect to status of the territory (legislative representation, citizenship of territory's inhabitants, ehgibility of officials from the territory to public offices of the central authority); and (d) internal constitutional conditions (universal suffrage and free, periodic elections characterised by an absence of undue influence; scope of territorial legislative rights of the inhabitants; method of choosing local officials)."431 The Committee subsequently revised these factors, to make it clear that any association of territory must be on an "equal" basis with the metropole or other country 4 3 2 By 1952, information on 15 of the 74 "non-seh°-governing territories" was no longer being transmitted by the administering powers, because the latter claimed that these territories had now achieved "the full measure of self-government". This caused significant consternation amongst the UN members who were not administering powers, because of the potential for abuse by self-serving administrations, particularly in relation to access to a territory's natural resources. But the relevant administering 4 3 1 A.H. Leibowitz, Colonial Emancipation in the Pacific and the Caribbean: A Legal and Political Analysis, (New York: Praeger Publishers, 1976) at 195. 432 Report of the Ad Hoc Committee on Factors (Non-Self-Governing Territories), UN Doc. A/2428, Agenda Item 33, Annexes, General Assembly Official Documents, 8th. Sess. (1953), at 5 etseq. 98 -99-powers asserted that they had fulfilled all of their obligations in respect of the administration of these territories.433 Early in 1952, the majority of members of the General Assembly again managed to overcome the objections of the administering powers, and passed two resolutions, together representing "significant advances to clarify and strengthen the legal nature of the principle [of self-detenrunation]", as part of "a process of clarifications and refinements that culminated in the incorporation of the right of self-detennination in the two Human Rights Conventions and the exhaustive definitions in Resolution 1541 (XV) (1960) of both the group entitled to the right and the ways in which the right may be exercised."434 The first of these resolutions requested the Ad Hoc Committee on Information to expand on the earlier study of the factors upon which to assess whether the "full measure of self-government" had been attained by a "non-self-governing-territory.''435 The second resolution called on the UN Human Rights Commission to include the "right to self-determination" in the draft Human Rights Covenant it had been working on since 1950.436 In December 1952, the General Assembly adopted two more resolutions that helped to clarify and interpret the "principle of self-determination", and to develop the concept of the "right to self-determination", as well as further angering those administering powers opposing greater UN involvement in the decolonisation process. In Resolution 648 (VII),437 the Assembly provisionally approved some of the recommendations of the Ad Hoc Committee, agreeing that there were three methods by which a territory could attain "a full measure of self-government": (i) "the attainment of independence"; (ii) "the attainment of other separate systems of self-government"; and (iii) "the free 4 3 3 Leibowitz, supra, at 194-195. 4 3 4 Ofuatey-Kodjoe, supra, at 115. 4 3 5 GA Res 567 (VI), 18 January 1952. 4 3 6 GA Res 545 (VI), 8 February 1952, which was largely supported by socialist countries and newly independent former colonies. Those who voted against this resolution were: Australia, Belgium, Canada, France, The Netherlands, New Zealand, Turkey, the United Kingdom, and the United States. Chile, China, Colombia, Cuba, Denmark, Ecuador, Israel, Norway, Peru, and Sweden abstained. Note that the Soviet Union had proposed in 1950 that such a right be included in the Human Rights Covenant, but the Third Committee of the General Assembly had rejected it. Cf. Cassese, "Self-Determination'', supra, at 48-50. 4 3 7 Adopted 10 December 1952. 99 - 100-association of a territory with other component parts of the metropolitan or other country." The same resolution established a second Ad Hoc Committee, to define "a full measure of self-government", in relation to article 73, as well as to enunciate principles to determine what "features" would "guarantee" the "principle of self-detennination", and what would constitute the "manifestation of the freely expressed will of the peoples in relation to the determination of their national and international status"438 Less than a week later, General Assembly resolution 637A (VII)439 again endorsed the inclusion of the "right to self-determination" in the draft Human Rights Covenant, in response to the conflicts over its inclusion that had taken place during the year within the Human Rights Commission.440 This resolution further provided that all UN members should "uphold the principles of self-determination of peoples and nations",441 and that administering powers in particular must recognise and promote the right of the peoples of the trust territories to self-determination, by helping "to prepare them for complete self-government or independence", and allowing them to express their will freely by means of plebiscites or other recognised democratic means, preferably under the auspices of the UN.442 By the end of this year, the General Assembly had also passed several resolutions recognising the "right" of certain territories to "self-deterniination", including Eritrea,443 Morocco, Tunisia, and Algeria.444 The administering powers continued to claim that only they had the right to determine whether a territory under their administration had achieved "self-government" or not. They also opposed the inclusion of the term "self-determination" as a "right" in any document. However, the other UN members argued to the contrary on both points, asserting that the administering powers "had entered a 4 3 8 Cf. Ofuatey-Kodjoe, supra, at 116. 4 3 9 Adopted 16 December 1952. 4 4 0 Cassese, supra, at 50, n. 40. 4 4 1 Note Ofuatey-Kodjoe's analysis, supra, at 117, where he points out that the inclusion of "nations" along with "peoples" represented a "truly remarkable" advance in the development of the concept of self-determination. 4 4 2 Cf. Ofuatey-Kodjoe's analysis, supra, at 117-119. 4 4 3 GA Res. 390 (V), 2 December 1950. 4 4 4 GA Res. 611 (VH), 17 December 1952; and GA Res. 612 (VU), 19 December 1952. 100 -101-bilateral obligation from which they could not free themselves unilaterally",445 and that the UN Charter clearly envisaged that "the principle of self-determination" included the "right" to be free of colonial domination. The Western States had relented to some extent earlier in the year, with the US delegation conceding to the UN Economic and Social Council in March 1952 that the principle of self-detennination as envisaged by the Charter included "internal self-determination", through the "promotion of self-government".446 However, the US was also concerned to point out that "the problem of self-determination is a universal one - one of significance for all States and not only States adrninistering non-self-governing territories".447 By this they were intending to infer that socialist republics, such as the Soviet Union, should also respect the right of their various constituents to choose independence if they wished, rather than holding on to all of their territories against the will of some of them, while at the same time criticising the administering powers for denying "self-government" to their respective territories. At the General Assembly's eighth session in 1953, all of these matters came to a dramatic head, consistent with the Cold War being fought out in this era on such "minor" ideological matters as the definition of "self-government". The Second Ad Hoc Committee tabled its report on the factors to be taken into account when determining whether or not a territory was "non-self-governing", and it was adopted without amendment, as an annex to General Assembly Resolution 742 (VIII), Factors which should be taken into account in deciding whether a territory is or is not a territory whose people have not yet attained a full measure of self-government.448 These factors are extensive and relatively detailed, reflecting much of the same material that was produced by the first Ad Hoc Committee, particularly the wide range of relevant factors in relation to the assessment of the "free association" of a territory with another country.449 Leibowitz, supra, at 196. Cassese, "Self-Determination'', supra, at 46, n. 31. Cassese, ibid, at 46, n. 31. Adopted 27 November 1953. Some of these factors will be discussed in greater detail in Chapter Five, below. 101 - 102 -Particular concerns were then expressed in the General Assembly over the removal by the respective administering powers of the Netherland Antilles, Surinam, and Puerto Rico, from the list of "non-self-governing territories" about which information should be transmitted.450 The president of the Independence Party of Puerto Rico and a representative of the Nationalist Party of Puerto Rico both attempted to make oral statements to the Fourth Gomrnittee of the General Assembly, but the US delegation pointed out that "elections, referenda, and other democratic steps" had already been carried out in Puerto Rico, such that "the people of Puerto Rico have achieved a full measure of self-government through a compact entered into by mutual consent between Puerto Rico and the United States."451 The US narrowly won a vote to deny the two representatives the right to make 452 statements. However, the US had failed to provide the Puerto Ricans with the option of choosing "independence" in the referendum they had held, and various delegates expressed concerns over other aspects of the arrangement whereby the United States retained substantial powers over Puerto Rican affairs.453 Eventually, the US won the vote allowing it to cease transmitting information on Puerto Rico, again by a very narrow margin, this time 24 in favour, 17 against, and 17 abstentions.454 However, a couple of years later, the US and its supporters failed to prevent the inclusion of the "right to self-detennination" in the two Human Rights Covenants, despite their objections that these Covenants were intended to provide only for individual rights, not group rights, and that all sorts of catastrophes would ensue.455 It seems ironic now that the basis of the US' concerns was that its views were not being taken into account adequately in international fora, because a numerical majority of States had opposed it on 4 5 0 Leibowitz, supra, at 195. 451 United States Department of State Bulletin, Vol. XXDC, No. 746 (12 October 1953) at 499, in Leibowitz, ibid, at 198-199. 4 5 2 The vote result was 25 in favour, 19 against, and 11 abstentions. (Leibowitz, ibid, at 199.) 4 5 3 Cf. Leibowitz, ibid, at 200. 4 5 4 For the full list, see Leibowitz, ibid, at 200-201. Interestingly, the Netherlands, New Zealand, and the United Kingdom all voted against the US. 4 5 5 The Human Rights Commission decided in 1954 to separate its work into two separate Covenants, and the common article in both of these Covenants was adopted in 1955: Cassese, "Self-Determination", supra, at 47 &51. 102 - 103 -certain issues. Yet, at the same time, it had failed to accept the same kinds of objections by two Puerto Rican political parties, who were claiming that the views of the majority that had prevailed in the US-sponsored referendum did not adequately represent the views of all the population (not to mention that the most important question had not been asked, namely, do Puerto Ricans want independence?). No doubt the US justified its grievances by differentiating the Puerto Ricans, as well as its socialist and Third World opponents, as ''uncivilised", and therefore not worthy of "equal" consideration, in line with previous practice. Thus, the "principle of self-detennination" became highly politicised from its early days in international affairs, as both sides of the Cold War conflict tried to use it to gain an advantage over the other, without ever honouring it fully within their own sphere of influence. 4.3 The end of the British Palestine Mandate Meanwhile, Germany's atrocious mistreatment of the Jews during World War II had provoked increased support for the creation of a Jewish state in Palestine, predominantly as a means of compensation and reparation. In 1947, the newly formed United Nations decided to adopt a second Palestine Partition Plan, which envisaged a Jewish and an Arab State, as the British had suggested previously, but with a substantially larger Jewish State than before. The city of Jerusalem was to be a corpus separatum, this time to be administered by the United Nations. Both new States were to consist of three separate pieces of land, each surrounded by the territory of the other State, and united economically. As the Special Committee devising the plan stated: "The basic premise underlying the partition proposal is that the claims to Palestine of the Arabs and Jews, both possessing validity, are irreconcilable. ... Regardless of the historical origins of the conflict, the rights and wrongs of the promises and counter-promises ... there are now in Palestine some 650,000 Jews and some 1,200,000 Arabs ..., separated by political interests which render difficult full and effective cooperation among them ... Only by partition can these conflicting aspirations find substantial expression".456 Quoted in M. Eisner, "Jerusalem: An Analysis of Legal Claims and Political Realities", (1994) 12:2 Wisconsin Int. L. J. 221 at 226-227. 103 -104-The Jews pragmatically agreed to accept the Partition Plan as the best possible solution available at the time, even though they would have preferred to have Jerusalem as their capital. Not surprisingly however, the Arabs rejected the proposal, and threatened to use force to prevent its implementation.457 The latter also requested the UN General Assembly to refer a number of questions of law, at the heart of the whole dispute, to the new International Court of Justice for an Advisory Opinion. But a slim majority of States in the General Assembly voted against this course of action.458 The questions of law included, inter alia: "(a) Whether the indigenous population of Palestine has not an inherent right to Palestine and to determine its future constitution and government; (b) Whether the pledges and assurances given by Great Britain to the Arabs during the First World War ... concerning the independence and future of Arab countries at the end of the war did not include Palestine; (c) Whether the Balfour Declaration, which was made without the knowledge or consent of the indigenous population of Palestine, was valid and binding on the people of Palestine, or consistent with the earlier and subsequent pledges and assurances given to the Arabs; ... [and] (f) Whether a plan to partition Palestine without the consent of the majority of its people is consistent with the objectives of the Covenant of the League of Nations, and with the provisions of the Mandate for Palestine".459 The British and UN Palestine Partition plans were based on an interesting array of values and perspectives on "equality". They represented an attempt to impose prospective, formal and arithmetical equality, rather than contemporaneous, substantive or proportionate equality, expecting that in future Jews would greatly outnumber Arabs in the respective territories. As the UN Committee that recommended the partition pointed out, the solution did not take into account "the historical origins of the conflict, [or] the rights and wrongs of the promises and counter-promises [made in the past]".460 The plans resisted any attempt to interrogate the origins of the conflict, to ensure that they were not merely perpetuating injustices created long ago. They were ostensibly a "compromise between Jewish K. Armstrong, Jerusalem: One City, Three Faiths, (New York: Alfred A. Knoff, 1996) at 386. Cattan, supra, at 47. Cattan, supra, at 47-49. Eisner, supra, at 227. 1 0 4 - 105 -and Palestinian claims of self-deternaination",461 devised without any genuine attempt to assess the legitimacy of either of these claims, from a legal point of view. The principle of "self-detennination" implies that the "self' will have some say in the "determination", but the Arab views on the UN proposal were ignored and the Jewish reservations went unheeded, so neither of the concerns of the most important "selves" were considered adequately. Clearly, one side's views had to be preferred, in order to reconcile the "irreconcilable". However, the sacrifice envisaged by the two Partition Plans was incredibly unrealistic. Both plans represented the ultimate positivist "fantasy": that the conflict would somehow be contained or defused, or even solved, by creating borders through law; that the Arabs and Jews would feel morally obliged to respect these borders, over and above their "other-worldly" duties to protect their respective Holy Places and historical claims to territory. In this sense, the proposals are similar to the solution proposed for the baby in the Judgment of Solomon: the territory clearly could not withstand being carved up in this way, even though a strictly mathematical analysis of the situation might dictate such an approach. A minority of those on the relevant UN Committee recognized this, but they were ignored, most likely because they were not Great Powers462. Imbalances in the world order at the time also played their part in the conflict, as in other parts of the world. Conflicts between Arabs and Jews escalated throughout 1947 and 1948, but the British refused to intervene, despite their status as the Mandate protectorate, with the corresponding duty to "protect" the peoples under the Mandate. The British Mandate expired in May 1948, and they simply withdrew their personnel, leaving Jerusalem to the warring parties and a small delegation of UN representatives, who had arrived to start implementing the "internationahsation" of Jerusalem envisaged by the Partition Plan.463 4 6 1 Eisner, ibid, at 228. 4 6 2 They were India, Iran and Yugoslavia, all relative newcomers to the so-called ''civilized11 world of European dominated world affairs. 4 6 3 Cf. Armstrong, supra, at 387. 105 -106-However, the new State of Israel was proclaimed by Ben Gurion the day before the British left, and the new State was recognized immediately by the United States and the Soviet Union. Jordan and the other Arab States sent troops into Jerusalem to defend the Arab inhabitants and their Holy Sites, and war raged until July 1948, when the UN was able to organise a truce. By this stage, Israel had gained control over West Jerusalem, and Jordan controlled the rest of the city. Both Israel and Jordan ignored a General Assembly Resolution464 which called on them to hand Jerusalem over to the international community, instead formalising their respective territorial claims in the Armistice Agreements of 16 March 1949.465 At the same time, the Palestinian Arabs were furious that Jordan had simply incorporated East Jerusalem and the West Bank of the Jordan into its territory, rather than allowing the Palestinians to form their own state.466 Many Palestinian Arabs were displaced by the Israeli acquisition of West Jerusalem, and approximately 750,000 of these refugees fled to various surrounding Arab states, where many of them have remained to this day, living in refugee camps.467 Jews were also expelled in large numbers from East Jerusalem and the Walled City, and they mostly crowded into West Jerusalem. During the hostilities, Israel had seized more territory than the UN Partition Plan would have allowed them. But most UN members were really only concerned about the "illegal" occupation by both Israel and Jordan of Jerusalem. General Assembly Resolution 303 maintained that the boundaries of "the City of Jerusalem shall include the present municipality of Jerusalem plus the surrounding villages and towns", consistent with the Palestine Partition Resolution.468 However, the Security Council failed to take any action to enforce any of the relevant General Assembly Resolutions, "for political reasons".469 4 6 4 GA Res 303, 9 December 1949. 4 6 5 Cf. Armstrong, supra, at 387. 4 6 6 Egypt had held on to the Gaza Strip for the Arabs, and subsequently created a trusteeship over it. Note also that Eisner points out, "Transjordan annexed the West Bank through a series of steps that held at least the trappings of democratic self-determination.": Eisner, supra, at 229, n. 40. 4 6 7 Cf. W.T. & S.V. MaUison, An International Law Analysis of the Major United Nations Resolutions Concerning the Palestine Question, (New York : United Nations, 1979) at 174-187 [hereinafter: MaUison, "International Law Analysis"]. 4 6 8 First operative paragraph. 4 6 9 Eisner, supra, at 229. 106 -107-The Secretary-General of the UN at the time, Trygve Lie, later called this failure one of "the most chsheartening head-in-the-sand moments of the Chamberlain appeasement era."470 The only action taken by the international community was to adopt a policy of non-recognition of either Jordan's annexation of East Jerusalem471 or Israel's assertion of sovereignty over West Jerusalem.472 Israel was prepared to negotiate a permanent peace agreement with all the other Arab States, but they refused to recognise Israel as being endowed with the requisite authority to conclude such an agreement, despite Israel's acceptance into the UN in 1949473 A UN Palestine Conciliation Commission was created to try and bring the parties together, which allowed the Arabs to explain that they wished the Jews to withdraw behind the lines drawn in the Partition Resolution before they would consider a permanent truce, and even then they would never recognise the State of Israel. Various Arab guerrilla organisations formed474 in order to prevent the Israelis from feeling secure and stable in their new territory. Several Jewish Holy Sites in the Arab parts of Jerusalem were also desecrated, and Jews were not allowed to visit the Wailing Wall inside the Walled City for the next twenty years. The Israelis retaliated with "frequently asymmetrical" force,475 not just in the new Jordanian territories in Jerusalem but also in the established territories of Arab governments who allowed Arab guerrillas to organise themselves on their territory. Clearly this was a form of punishment, as well as self-defence.476 It is interesting to note that the Arabs living in the Palestine Mandate were never referred to as anything other than "refugees" or "inhabitants" in UN declarations and resolutions prior to December 4 7 0 Quoted in Eisner, ibid. 4 7 1 Although Britain and Pakistan recognized it: Eisner, ibid, at 230. 4 7 2 For a discussion of the legal implications of non-action in this context, cf. A. Cassese, "Legal Considerations on the International Status of Jerusalem", [hereinafter Cassese, "Jerusalem"] in H. Kochler (ed.), The Legal Aspects of the Palestine Problem, With Special Regard to the Question of Jerusalem, (Wien: Wilhelm Braumuller Ges. m.b.H., 1981) at 147. 4 7 3 Eisner, supra, at 231. 4 7 4 Including the Palestine Liberation Organization in 1964. 4 7 5 Eisner, supra, at 232. 4 7 6 Cattan, supra, at 121. 107 -108-1969, when they were first described as the "people of Palestine".477 Thus, while the controversial process of defining a "non-self-governing-territory" was being carried out in the General Assembly, even those with the best intentions did not foresee at that stage that the Arabs living under the administration of Israel were entitled to any form of "self-government". That is why it is so difficult for many commentators today to accept that the Palestinian Arabs may have a right to form their own sovereign State.478 4.4 The "Liberation" of Tibet and Mongolia In February 1949, the Communists gained control over all of China's territories, including Mongolia, but not Tibet.479 A year later, however, after capturing Tibet, they recognised the independence of the Mongolian Peoples Republic. Their intention initially was to "unify" all of China, including "hberating" significant territories that bordered on China, such as Tibet and Mongolia, even though both those territories had considered themselves independent from China since 1912. Since Mongolia was not considered a threat to the People's Liberation Army, it was allowed to gain its independence, as it was also under the watchful eye of its other Communist neighbour, the Soviet Union.480 The government of Tibet responded to the Communist takeover of China, by closing down the Chinese Mission in Lhasa, and giving "an official and friendly send-off' to the Mission's Chinese employees.481 In late 1949, the Chinese Communist army marched into the Dalai Lama's home town of Amdo, prompting the Tibetan government to write a letter to Mao Zedong, pointing out that Tibet was an "independent Country whose political administration had never been taken over by any Foreign 4 7 7 GA Res. 2535 (XXIV) B, 10 December 1969, which reaffirmed "the inalienable rights of the people of Palestine" and requested the Security Council to enforce the relevant resolutions that had previously been ignored. Earlier, in 1968, the General Assembly had "affirmed the inalienable rights of all inhabitants who have left their homes as a result of the outbreak of hostilities in the Middle East": GA Res. 2443 (XXffl), 19 December 1968. 4 7 8 For example, cf. Becker, supra. 4 7 9 Cf. Discussion in Chapter Three, as to whether Tibet was actually a territory of China at this stage. 4 8 0 Cf. Minority Rights Group International, ed., World Directory of Minorities, (United Kingdom: Minority Rights Group International, 1997) at 632. 4 8 1 van Walt van Praag, supra, at 89. 108 - 109-Country".482 Copies of this letter were also sent to the British, United States, and Indian governments, who had all previously expressed various forms of support for Tibet's stand against China, without formally recognising the sovereignty of Tibet. However, none of these governments wished to engage in open hostilities with China, and instead resorted to various diplomatic efforts, but were significantly hampered by the threat of both China's and Russia's veto powers in the Security Council.483 The government of India organised for a delegation of Tibetans to initiate negotiations with the Chinese Ambassador in New Delhi, which led to the Tibetans deciding to go to Beijing to try and negotiate a peace treaty.484 However, while negotiations were continuing at the diplomatic level, in November 1950 the People's Liberation Army launched a full-scale invasion of Eastern Tibet, claiming to be freeing "three million Tibetans from imperialist oppression."485 The United States and Britain expressed their support for India's subsequent condemnation of the invasion, but considered that India should take responsibility for initiating any military action against China. However, India's national self-interest in niaintaining relatively peaceful relations with its largest neighbour ultimately caused it to abandon any plans to free Tibet.486 The Tibetan government then sought the assistance of the United Nations, but the invasion of Korea by China overshadowed the issue of Tibet's plight during General Assembly deliberations at the time. However, the US continued 4 8 2 L/P&S/12/4232, Tibetan Foreign Office to Chairman Mao Zedong, 2 November 1949, in van Walt van Praag, ibid, at 91. 4 8 3 van Walt van Praag, ibid, at 92. 4 8 4 NCNA, 21 November 1950, Letter from the Government of India to the Government of the PRC, 26 October 1950, in van Walt van Praag, ibid, at 143. 4 8 5 van Walt van Praag, ibid, at 142. The "imperialists" in question were the religious order of Tibetan Buddhists, headed by the Dalai Lama, who was also the political leader of Tibet, and who the Chinese claimed was imposing feudal imperialism on the Tibetan population. In 1958, a Tibetan language newspaper issued by the Chinese stated: "The position of the reactionary religious leaders is interlinked with that of autocratic feudal lords. They are engaging themselves in conspiracy. They put obstacles in the way of the liberation of the working people, hence they are the rocks on the path of progress. Unless they are destroyed completely liberation is not possible." Karzey Nyinrey Sargypur (16 November 1958) 1, in International Commission of Jurists Legal Inquiry Committee on Tibet, Tibet and the Chinese People's Republic, (Geneva: International Commission of Jurists, 1960) at 18 [hereinafter: "ICJ Inquiry on Tibet"]. 4 8 6 "Nehru's Note on China and Tibet", 18 November 1950, in van Walt van Praag, ibid, at 143. India was also concerned to distance itself from the US's interference in the Korean war, which also commenced in 1950. 109 - n o -te- express support for Tibet, and in December 1950 the Department of State included the following statement in an Aide Memoire to the British Embassy: "The United States, which was one of the early supporters of the principle of self-deterrnination of peoples, believes that the Tibetan people has the same inherent right as any other to have the determining voice in its political destiny. It is believed further that, should developments warrant, consideration could be given to recognition of Tibet as an independent State. The Department of State would not at this time desire to formulate a definitive legal position to be taken by the United States Government relative to Tibet. It would appear adequate for present purposes to state that the United States Government recognises the de facto autonomy that Tibet has exercised since the fall of the Manchu Dynasty, and particularly since the Simla Conference. It is believed that, should the Tibetan case be introduced into the United Nations, there would be an ample basis for international concern regarding Chinese Communist intentions towards Tibet, to justify under the United Nations Charter a hearing of Tibet's case in either the U.N. Security Council or the U.N. General Assembly."487 In February 1951, while the Tibetan government was still waiting for such sentiments to transform into material forms of assistance, and with Chinese Communist forces still occupying Eastern Tibet, the Dalai Lama sent a fifteen-person delegation to Beijing to try and negotiate a peace deal on behalf of the government. These negotiations resulted in an "Agreement of the Central People's Government and the Local Government of Tibet on Measures for the Peaceful Liberation of Tibet",488 which effectively authorised the Chinese to enter the rest of Tibet without further resistance, and to assume control over Tibet's external affairs. As many authors have noted, the Tibetan delegation was left with little option but to sign this agreement, or they would have invoked a full-scale military invasion of the rest of Tibet. In other words, the Agreement was signed under duress, and the Dalai Lama was secretly counselled by the US government to repudiate it. 4 8 9 However, in September 1951, the Chinese mihtary forces assumed control over the rest of Tibet, and the Dalai Lama decide to acquiesce in the Agreement, "in order to save my people and country from the danger of total destruction."490 The 1954 4 8 7 US Department of State to British Embassy, Aide Memoire, 30 December 1950, in van Walt van Praag, ibid, at 146. 4 8 8 Cf. Appendix 25, van Walt van Praag, ibid, at 337-340. This Agreement was also known as the "Seventeen-Point Agreement". 4 8 9 Steere to the Secretary of State, 11 July 1951, transmitting secret letter to the Dalai Lama, in van Walt van Praag, ibid, at 149. 4 9 0 Statement by the Dalai Lama on 20 June 1959, quoted in The New York Times (21 June 1959), in van Walt van Praag, ibid, at 149. 110 - I l l -Constitution of China formally abolished Tibet's status as a "special" autonomous region, which had been part of the Seventeen Point Agreement, and the Chinese State Council immediately adopted a "Resolution on the Establishment of the Preparatory Committee for the Autonomous Region of Tibet", which was intended "to further integrate the adn_nistration of Tibet with that of the PRC."491 The US claimed in 1959 that they had "never recognized the pretensions to sovereignty over Tibet put foreward [sic] by the Chinese Communist regime."492 However, neither they nor the British interfered to prevent the subsequent persecution of the Tibetans by the Chinese, which the International Commission of Jurists claimed in 1960 was the equivalent of "genocide" against a religious group 4 9 3 Between 1951-1959, the Commission found that there was evidence establishing "four principal facts in relation to genocide: (a) that the Chinese will not permit adherence to and practice of Buddhism in Tibet; (b) that they have systematically set out to eradicate this religious belief in Tibet; (c) that in pursuit of this design they have killed religious figures because their religious belief and practice was an encouragement and example to others; (d) that they have forcibly transferred large numbers of Tibetan children to a Chinese materialist environment in order to prevent them from having a religious upbringing."494 The Chinese government also had a policy of forcing Han people to migrate in large numbers to Tibet, "in an attempt to change the demographic profile of the region, and thus ensure the integration of Tibet into the mainstream of Chinese politics.''495 The Tibetan people became increasingly rebellious during this period, culminating in the 1959 'Tibetan National Uprising", which was violently quelled by the Chinese, resulting in the deaths of thousands of Tibetan men, women, and children. The Dalai Lama and many Tibetans fled Tibet at this point, establishing a "government-in-exile" in India. However, no "States have yet recognised this "government". van Walt van Praag, ibid, at 161. Transcript of press and radio news conference, 11 September 1959, in van Walt van Praag, ibid, at 169. "ICJ Inquiry on Tibet", supra, at 3. Ibid, at 3. Minority Rights Group International, supra, at 605. in -112-In October 1959, continuous pressure from a growing number of governments at the General Assembly finally resulted in that body passing a resolution condemning China's denial of "the fundamental human rights and freedoms of the people of Tibet".496 However, the Security Council lacked the necessary consensus to intervene in any way, despite the fact that China's mistreatment of Tibetans worsened in the years following the uprising. Notably, the term "self-determination" was not included in the 1959 General Assembly resolution on Tibet. It wasn't until December 1961, after several other significant resolutions affirming the "right of all peoples" to self-detennination had been passed, that the General Assembly recognised the "right to self-deterniination" of the Tibetan people.497 4.5 Conclusions Despite all these apparent inconsistencies in practice, a significant number of "non-self-governing territories" did manage to achieve "self-determination" during this era, and many were admitted to membership in the United Nations as new States.498 Notably absent from this list were a large number of other African, Caribbean, and Pacific Island territories, which were still being "administered" by colonial powers. Clearly something more had to be done to turn self-determination into a prescribed right, which would create concomitant obligations upon those with the power to grant this right to then-dependent peoples. In the next Chapter, we will see how the prescription of the "right to self-determination" in several international documents in the 1960's did help to move along the process of decolonisation more rapidly than in the first 15 years following the establishment of the UN. However, at this point it is interesting to note how the international community was still struggling with the unwillingness of the "Great Powers" to relinquish any form of control, by actually creating effective enforcement mechanisms for those who had grievances about the abuse of their rights. If the 4 9 6 GARes. 1353 (XTV), 21 October 1959. 4 9 7 GA Res. 1723 (XVI), 20 December 1961. Article 2 of this resolution states: The General Assembly "Solemnly renews its call for the cessation of practices which deprive the Tibetan people of their fundamental human rights and freedoms, including their right to self-deterniination". 4 9 8 For example, Indonesia (1949), Eritrea - federated with Ethiopia (1952), Cambodia (1955), Laos (1955), Libya (1955), Ghana (1956), Morocco (1956), Tunisia (1956), Malaysia (1957), and Guinea (1958). 112 - 113 -UN bad been allowed to intervene more in the decolonisation process, particularly in determining whether a territory had achieved the "full measure of self-government" or not, would not more administering powers have been encouraged to release their dependent territories more quickly and more equitably? If the Palestinian Arabs had been allowed to ask the advisory opinion of the International Court of Justice about their legal status, might not we be closer to arriving at a solution to the continuing crisis in the Middle East? If there had been an international penal tribunal in 1959, would the Chinese have been able to continue with their genocidal policies towards the Tibetans? In addition, although the "Permanent Five" members of the Security Council had been entrusted with the maintenance of "international peace and security" under the UN Charter, two of these members, the Soviet Union and China, were responsible for some of the worst post-war atrocities towards peoples within their purview. "Free will", "equality", and the "social contract", were still a long way from being realised. 113 -114-Chapter Five: The "Prescriptive Stage" of the Right to Self-Determination This Chapter contains an analysis of the "Prescriptive Stage" of the right to self-determination.499 This stage is where the particular human right is articulated "in some prescriptive form in an international instrument (general or specific) generated by an international body" or elaborated in the form of "specific normative prescriptions in binding international conventions."500 In this Chapter, I argue that the right to self-detennination reached the "Prescriptive Stage" when it was articulated in the Declaration on the Granting of Independence to Colonial Countries and Peoples of I960,501 and subsequently elaborated as a normative right in common article 1 of the two 1966 covenants on human rights.502 As a conclusion to this Chapter, I will analyse briefly some of the immediate effects of this elevation of the principle of self-determination to a "right" of "all peoples", in the context of different regions of the world. 5.1 The 1960 resolutions on self-determination Most commentators agree that certain events in 1960 marked a significant turning point in the evolution of the "principle of self-deterrnination" into the "right to self-determination". In that year, two particular resolutions were passed by the General Assembly within a day of each other, that each clarified how the "principle of self-determination" should work in practice. Resolution 1514 (XV), otherwise known as the Declaration on the Granting of Independence to Colonial Countries and Peoples, provided, inter alia: "Mindful of the determination proclaimed by the peoples of the world in the Charter of the United Nations to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large 4 9 9 Bassiouni, "Proscribing Function", supra, at 182. 5 0 0 Ibid. 5 0 1 GARes. 1514 (XV) of 14 December, 1960 [hereinafter: the "Colonial Declaration"]. 5 0 2 ICCPR and ICESCR, supra. 114 - 115 -and small and to promote social progress and better standards of life in larger freedom, Recognising the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the attainment of their independence, Aware of the increasing conflicts resulting from the denial of or impediments in the way of the freedom of such peoples, which constitute a serious threat to world peace, Believing that the process of liberation is irresistible and irreversible and that, in order to avoid serious crises, an end must be put to colonialism and all practices of segregation and discrimination associated therewith, Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory, Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations; And to this end Declares that: 1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation. 2. 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. 503 4. All armed action or repressive measures of any kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected. 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom."504 Resolution 1541 (XV), adopted the following day, included an Annex entitled Principles Which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for under Article 73e of the Charter.505 These principles include, inter alia: Article 3 is discussed below. 5 0 4 The "Colonial Declaration" was adopted on 14 December 1960 by a vote of 89 to 0, with nine abstentions: Australia, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa, the United Kingdom, and the United States. 5 0 5 Adopted 15 December 1960, by a vote of 69 to 2 (Portugal and Union of South Africa), with 21 abstentions (including some socialist countries) [hereinafter: "the Article 73e Resolution"]. 115 -116-"Principle I. The authors of the Charter of the United Nations had in mind that Chapter XI should be applicable to territories which were then known to be of the colonial type. ... Principle II. Chapter XI of the Charter embodies the concept of Non-Self-Governing Territories in a dynamic state of evolution and progress towards a "full measure of self-government". As soon as a territory and its peoples attain a full measure of self-government, the obligation ceases. Until this comes about, the obligation to transmit information under Article 73e continues. Principle IV. Prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it. Principle V. Once it has been established that such a prima facie case of geographical and ethnical or cultural distinctness of a territory exists, other elements may then be brought into consideration. These additional elements may be, inter alia, of an administrative, political, juridical, economic or historical nature. If they affect the relationship between the metropolitan State and the territory concerned in a manner which arbitrarily places the latter in a position or status of subordination, they support the presumption that there is an obligation to transmit information under Article 73e of the Charter. Principle VI. A Non-Self-Governing Territory can be said to have reached a full measure of self-government by: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State."506 Both resolutions were supported by almost all UN members at the time, although most of the administering powers abstained from voting on them, unwilling actively to support declarations advocating more rapid decolonisation, but clearly trying to avoid further antagonising the rest of the international community by actively opposing them. However, Portugal and the Union of South Africa actively voted against the Article 73e Resolution.507 Nevertheless, these two resolutions represented major steps forward in the movement towards independence for all colonial and other "non-self-governing territories". Seventeen newly independent States had been accepted for membership by the United Nations during that year.508 But there were 5 0 6 Other principles set out how to determine if a territory has "freely" chosen "free association" and "integration". 5 0 7 Cf. Cassese, "Self-Determination", supra, at 71. 5 0 8 Cameroon, Senegal, Togo, Madagascar, Zaire, Somalia, Dahomey (now Benin), Niger, Upper Volta, Ivory Coast, Chad, Central African Republic, People's Republic of the Congo, Cyprus, Gabon, Mali, and Nigeria: H.G. Espiell, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of 116 - i n -still more than thirty "non-self-governing" territories waiting for independence. The General Assembly already had tried various means of putting pressure on certain individual administering powers to speed up the process of decolonisation in certain territories.509 These two new Resolutions were intended to provide "a set of general standards specifying the principle of self-detennination enshrined in the UN Charter, with special regard to colonial peoples",510 and thus to remove potential sources of disputes as to interpretations of the obligations of those administering such peoples. However, as Ofuatey-Kodjoe points out, there were several significant contradictions between these two documents.511 The Article 73e Resolution, consistent with previous interpretations of article 73e, provided that Non-Self-Governing Territories may reach a "full measure of self-government" by three different means: independence, "free association with an independent State", or "integration" into an independent State.512 But the Colonial Declaration described the granting of "complete independence and freedom" to all Non-Self-Governing Territories as the only way to bring to an end "the subjection of peoples to alien subjugation, domination and exploitation" which was the result of "colonialism and all practices of segregation and discrimination associated therewith". Minorities, The Right to Self-Determination: Implementation of United Nations Resolutions, UN Doc. E/CN.4/Sub.2/405/Rev.l, 1980, at 46, notes 14-30. Note, however, that many of these new States were formed as a result of complex negotiations and previous manoeuvring by the colonial powers and certain powerful groups within the territories, as well as the UN General Assembly (which monitored certain plebiscites), whereby sometimes several plebiscites had to be held in the same territory, which had the effect of restricting the choices of some populations. For example, the northern part of the British Cameroons initially voted to postpone consideration of its political future, rather than voting to join Nigeria - the only two options presented - while the southern part was able to choose between joining Nigeria, or forming the independent republic of Cameroun (they oveiwhelmingly supported the latter option). The northern part subsequently was forced to vote between joining Nigeria or Cameroun, and it voted for the former, although the majority of all those living in British Cameroons (ie. the two parts) had actually voted for joining Cameroun: M. Shaw, Title to Territory in Africa: International Legal Issues, (New York: Oxford University Press, 1986) at 112-113. Note also that Mali and Senegal were previously constituent parts of the Mali Federation, formed in January 1959, but subsequently they became separately independent and were recognised as such when they sought membership in the United Nations: Shaw, ibid, at 213-214. 5 0 9 For example, in 1959 the General Assembly had passed Resolution 1413 requesting Belgium to provide a timetable for the independence of "Ruanda-Urundi", after an outbreak of fighting between the Tutsi and Hutu tribes in the region: Shaw, ibid, at 113-114. 5 1 0 Cassese, "Self-Determination", supra, at 72. 5 1 1 Ofuatey-Kodjoe, supra, at 120-123. See also Cassese, "Self-Determination", supra, at 71-74. 5 1 2 Discussed in Chapter Four, supra. 117 - 118 -In reality, however, as Ofuatey-Kodjoe suggests, subsequent State practice continued to support the three methods of providing self-determination for their dependent territories. For example, in 1962 the New Zealand Minister for Island Territories requested the semi-autonomous Legislative Assembly for the Cook Islands to decide between the following options: (i) complete independence from New Zealand; (ii) annexation and integration into New Zealand; (iii) joining at some future point an as-yet-undefined "Polynesian federation"; and (iv) maintaining internal self-government, with continued "free association" with New Zealand.513 The Legislative Assembly voted by a large majority for the latter option, although article 41 of the Cook Islands Constitution provides that a two-thirds majority of the Assembly can vote in the future to change this arrangement.514 Another important difference between these two resolutions was their respective underlying philosophies. The Article 73e Resolution still envisaged that many Non-Self-Governing Territories remained in a "dynamic state of evolution", whereby they may not necessarily be "advanced" enough for full self-government. By contrast, article 3 of the Colonial Declaration stated: "Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence", and article 5 further demanded that "immediate steps" be taken "to transfer all powers" to the peoples of all Non-Self-Governing Territories, "without any conditions or reservations, in accordance with their freely expressed will and desire". Clearly, these two Resolutions were based on different ideas of what true "freedom" is and how one acquires it. The Colonial Declaration describes "the process of liberation" as "irresistible and irreversible". It also describes "freedom" as "an inalienable right" of "all peoples", to "freely determine their political status and freely pursue their economic, social and cultural development", thus advocating the natural idea of freedom, as the ability of all human beings to determine their destiny for 3 1 3 Cf. Leibowitz, supra, at 137. The New Zealand government had already allowed the Cook Islands to have its own Legislative Council in 1947, in response to demands from the "Cook Islands Progressive Association", which had formed in 1945 to address the economic concerns of Cook Islanders: Leibowitz, ibid, at 135-136. 5 1 4 Leibowitz, ibid, at 137-138. Note, however, that many criticisms were levelled at the New Zealand Government for "the limited degree of power accorded the Cook Islands under the association", and for 118 - 119 -themselves, without need of external guidance.515 However, the Article 73e Resolution continued to support the more widely-accepted view of freedom as something that one acquires, only when one has attained a certain state of being ("advancement").516 As discussed in Chapter Three, the right to equality and the right to be protected under the "social contract" have also been similarly qualified throughout history by the so-called "civilised" world's largely self-serving characterisation of what "civilised" means. Not surprisingly, these philosophical differences manifested themselves in a growing number of disputes between "dependent peoples" and their "administering powers" throughout the 1960's and 1970's, as to what kind of "freedom" they were entitled to.517 Tal Becker has recently suggested that these two Resolutions were also adopted in order to resolve "a conflict as to self-determination's centre of gravity. While socialist states used the principle to further their political agenda and undermine Western colonial interests, Western states adopted a "self-detennination as democracy" stance to threaten internal socialist structures."518 Thus, these Resolutions were also used as weapons in the Cold War, as each side struggled to impose its own political ideology on the vast number of peoples suddenly "free" to shape their own political destiny for the first time in several hundred years. 5.2 Some immediate results of the new approach In 1961, a year after the adoption of the two aforementioned Resolutions, the phrase "right to self-determination" was used for the first time in a General Assembly resolution condemning China's invasion of Tibet, and upholding the rights of the Tibetan peoples.519 However, this did not lead to China's acknowledgement that it should begin transmitting information about Tibet in accordance with applying undue pressure on the Cook Islands Legislative Assembly: P. Allen, "Self-Determination in the Western Indian Ocean", (1966) 5601.C. at 390-392, in Ofuatey-Kodjoe, supra, at 123, n. 86. 5 1 5 This view is supported by, eg. Grotius and Rousseau: cf. Chapters Two and Three, supra. 5 1 6 This view is supported by, eg. Locke and Marx (although each had a different idea of what constituted the appropriate level of "advancement"): cf. Chapters Two and Three, supra. 5 1 7 Cf. Discussion in Chapter Six on the right of "national liberation movements" to use force. 5 1 8 Becker, supra, at 314. 5 1 9 GA Res. 1723 (XVI), adopted 20 December 1961. Cf. discussion in Chapter Four, supra, concerning previous General Assembly positions on this issue. 119 -120-article 73e of the UN Charter. It seems that China exercised sufficient power in the Security Council to be able to argue successfully that Tibet was not an independent State prior to the invasion, and therefore was not a "non-self-governing territory" within the context of colonialism.520 In much the same way, India annexed the Portuguese-administered territory of Goa, Damao, and Din in 1961, without sanction. Most of the Security Council condemned India's actions, with some delegates even referring to the "principle of self-deteimination" and the need to take into account the "will of the peoples" concerned.521 However, the Soviet Union used its Security Council veto to block a resolution submitted by France, Turkey, the United Kingdom, and the US, which would formally have condemned India's disregard for the "principle of self-detennination". Thus, the "right to self-determination" was flagrantly disregarded in this instance.522 In the same year, only three Non-Self-Governing Territories achieved independence and were admitted to membership of the United Nations: Mauritania, Sierra Leone, and Western Samoa.523 At the end of that year, the General Assembly established a 17-member committee to examine the application of the 5 2 0 As will be discussed below in Chapter Six, now that self-determination has also been recognised as a right outside of the colonial context, there are strong arguments to suggest that the Tibetan people are still entitled to exercise their right to choose their own sovereign, whether or not China was correct in asserting that Tibet was not an independent State in 1950: A. Dulaney, "Resolving claims of self-determination: A proposal for Integrating Principles of International Law with specific application to the Tibetan people", (Conference of International Lawyers on Issues Relating to Self-Determination and Independence for Tibet, London, 6-10 January 1993) in R McCorquodale & N. Orosz, eds., Tibet: The Position in International Law, (London: Edition HansjOrg Mayer & Serindia Publications, 1994) at 115. 5 2 1 These States were Ceylon (as it then was), Chile, Ecuador, the United Arab Republic, and the United States: Cassese, "Self-Determination", supra, at 81. 5 2 2 By contrast, after Indonesia annexed the Nemerlands-administered territory of West Irian (also known as "West Papua") in 1961, the UN insisted that Indonesia hold a plebiscite to ascertain the wishes of the population (although India sided with Indonesia in rejecting a UN-sponsored plebiscite). This plebiscite appeared to favour integration with Indonesia. However, the actual "plebiscite" was a public consultation between Indonesian authorities and 1,026 "specially selected" delegates, who met over 2 weeks in well-controlled "representative" councils that all voted unanimously to remain with Indonesia: Beigbeder, supra, at 139-142. Given the tenacity of the "Free Papua Movement" (OPM), which was formed in 1965, and a report in 1990 by the Anti-Slavery Society that alleges the Indonesian occupation has resulted in 300,000 deaths and 15,000 refugees, it seems that the plebiscite did not represent the "freely expressed will of the peoples" at all: A. Gray, "The Indigenous Movement in Asia", in Barnes et al, supra, 35 at 47 & 53. Note also recent developments in West Papua, including the recognition by the Pacific Islands Forum of the volatility of the situation, in its Biketawa Declaration of October 2000, signed in the Republic of Kiribati. Cf. G. Dyer, "West Papua shaping up to be next East Timor", The New Zealand Herald (25 October 2000) A13. 5 2 3 Espiell, supra, at 46, notes 31-32, 34. For a discussion of the various conflicts and problems that had delayed the independence of Mauritania, cf. Shaw, supra, at 120-123. 120 - 121 -Colonial Declaration "and to make recommendations on the progress and extent of its application."524 These 17 members came from a range of colonial and "decolonised" countries and regions, as well as representing both the Western and socialist perspectives on decolonisation: Australia, Cambodia, Ethiopia, India, Italy, Madagascar, Mali, Poland, Syria, Tanganyika (now part of the United Republic of Tanzania), Tunisia, the Soviet Union (USSR), the United Kingdom, the United States, Uruguay, Venezuela, and Yugoslavia.525 In 1962, the "General Assembly noted that, with few exceptions, the provisions of the [Colonial] Declaration had not been carried out, and that repressive measures, including armed action, continued to be taken against dependent peoples."526 Therefore, the "Special Committee on Decolonization" was established formally, comprising representatives from the above countries plus seven new ones: Bulgaria, Chile, Denmark, Iran, Iraq, Ivory Coast, and Sierra Leone. This Committee then became known as the "Special Committee of 24",527 and subsequently assumed the work of the Committee on Information in monitoring the progress of Non-Setf-Governing Territories towards a "full measure of self-government".528 However, the UN was not involved in monitoring every plebiscite or other process by which Non-Self-Governing Territories achieved independence. Sometimes the adnunistering power made the decision to grant a certain territory independence, sometimes without even consulting those agitating for Leibowitz, supra, at 201. 5 2 5 Leibowitz, ibid, at 201-202. 5 2 6 United Nations, The United Nations and Decolonization - History, at para. 6, online: <http://www.un.org/Depts/dpi/decoto (date accessed: 4 August 2000). 5 2 7 Leibowitz, supra, at 202. 5 2 8 At the same time, the Trusteeship Council established under the UN Charter (representing the United States, China, France, the Russian Federation, and the United Kingdom) retained its responsibilities throughout most of the rest of the twentieth century. In November 1993, the Council oversaw the last plebiscite to be held in the last remaining Trust Territory, Palau, by which the people of Palau voted by a slim majority to associate with the United States: Trusteeship Council, Press Release TR/2420, "Trusteeship Council Hopes Palau - Last Trust Territory - Will Achieve Independence in Near Future", 18 January 1994, online: <gopher://gopher.undp.org:70/00/uncuir/press_releases/rR/94_01/2420 (date accessed: 30 January 1999). In November 1994, the Trusteeship Council formally suspended its operations, and decided to meet in the future "only on an extraordinary basis, as the need arose": Trusteeship Council, Press Release TR/2424, "Trusteeship Council Formally Suspends Operations with Independence of Palau - Last Remaining UN Trust Territory", 1 November 1994, online: <gopher://gopher.undp.org:70/00/uncurr/press_releases/TR/94_l 1/2424 (date accessed: 30 January 1999). 121 -122-independence.529 As Beigbeder notes: "UN monitoring of self-detennination electoral processes was therefore not adopted, or accepted as a general rule, but only in specific cases. The reasons for non-requesting, or rejecting international monitoring was usually the wish of the administering authority to retain full power over the transition period to independence, to identify and legitimize the new leaders and control the emerging political processes".530 He suggests that the motives of the administering powers frequently involved trying to guarantee their own continuing access to the former dependent territory's natural resources. In addition, even in those plebiscites monitored by the UN, only the male adult population of a territory was entitled to vote, not the female adult population. This is despite the fact that women's suffrage had been recognised in many European and other States earlier in the twentieth century, and the fact that women in many Non-Self-Governing Territories had been actively involved in politics during the colonial period, particularly in the political processes leading to plebiscites in various parts of Africa.531 Thus, the apparent "consent of the governed" was not necessarily derived from a representative sample of "the governed", for the most part. Women's universal suffrage in colonial territories largely met with the same obstacles that had faced the "uncivilised" world in trying to assert its right to be consulted as to its "sovereign": women were not considered "advanced" enough to be able to make a well-informed determination for themselves.532 5 2 9 Beigbeder, supra, at 129. As examples of Non-Setf-Governing Territories that attained independence without UN monitoring of the relevant electoral processes, he cites India and Pakistan (1947), Belgian Congo (1960), Algeria (1962), and Guinea-Bissau (1973): ibid, at 130. 5 3 0 Beigbeder, ibid, at 130. 5 3 1 For example, cf. W. Muigai, "Apolitical versus Political Feininism: The Dilemma of the Women's Movement in Kenya", in Quashigah & Okafor, supra, at 67, which describes how in 1952 the "first formally organized Kenyan women's group", the MYWO, was formed, which "was the product of the colonial administration's purported effort to improve the life of women" but was actually "formed to deflect the women from the political struggle of the African people", suggesting that this potential influence was a real cause of concern to the colonial power (at 87). 5 3 2 Note that women in the political sphere in many former colonies are still trying to shake off such condescending treatment. For example, cf. S. Tamale, "Towards Legitimate Governance in Africa: The Case of Affirmative Action and Parliamentary Politics in Uganda", in Quashigah & Okafor, supra, at 235. 122 -123-Later in 1962, the General Assembly passed Resolution 1803 (XVH), which contained the Declaration on Permanent Sovereignty Over Natural Resources.533 This Declaration was intended to clarify the meaning of "freely determine" one's "economic development", in order to balance the rights of Third World countries to develop their natural resources, with the need of potential foreign investors to have some form of security when investing in those countries. It provided that peoples subject to colonial rule or foreign domination have the right freely to dispose of their natural wealth and resources, as long as this is done "in the interest of the national development and of the well-being of the people".534 Cassese points out that this restriction also applies to the colonial or foreign power, such that "any use or exploitation of natural resources of a territory under colonial or foreign domination, carried out by the colonial or foreign Power without acting in the exclusive interest of the people at issue, amounts to a gross infringement of the right of peoples to self-detennination.''535 5.3 The human rights covenants and self-determination In 1966, the General Assembly adopted the two covenants on human rights that had been under negotiation in one form or another since before the Universal Declaration of Human Rights was adopted in 1948.536 Common article 1 of both the ICCPR and the ICESCR provides that: "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. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic 5 3 3 Adopted 14 December 1962, by a vote of 87 votes to 2 (France and South Africa), with 12 abstentions (mostly socialist countries, plus Burma and Ghana): Cassese, "Self-Determination", supra, at 100. 5 3 4 Ex operative paragraph 1. 5 3 5 Cassese, "Self-Detenimiation'', supra, at 100. Note, however, that Cassese was only able to reach such a conclusion after analysing a significant amount of State practice that took place after the Declaration was adopted (his book was published in 1995). He then refers (at n. 102) to several recent articles on Israel's economic policies in the Occupied Territories, which support his contention that the foreign power's (ie. Israel's) exploitation of water and land in those territories amounts to a "gross infringement" of the right to self-determination of the people of the Occupied Territories (which right was only recognised in 1970). 5 3 6 Cassese argues that, even before the UDHR was drafted, certain UN members always intended to prepare binding treaty provisions based on the general principle of respect for human rights that is provided under the Charter: Cassese, "Self-Determination", supra, at 47. Cf. Discussion on the drafting of the UDHR, in Chapter Four. 123 -124-co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibihty for the administration of Non-Self-Govenung and Trust Territories, shall promote the realisation of the right of self-detennination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations." These words were the subject of lengthy debates, prior to the adoption of the two Covenants, and there are still many disputes in the international community today as to the meaning of some of the words. Many Western States had tried to create "technical" arguments as to why there should be no such provision for a "collective right" in a Covenant for individual human rights, while the socialist and Third World countries supported its inclusion, but took a range of positions on the preferred scope of the provision.537 Cassese suggests that the Western powers were really more concerned about "their colonial interests, or ... fear[ful] that the paragraph relating to the free disposition of natural resources imperilled foreign investments and enterprises in developing countries", rather than genuinely being concerned about mixing different types of rights together.538 In the end, he argues, the attempts by the Western States to insist that self-determination went beyond the colonial situation, and thus should be kept out of a human rights Covenant, only served to broaden the scope of the article.539 Cassese suggests that the following are the key elements of the negotiated language of common article 1 of the ICCPR and ICESCR: (i) self-determination is a continuing right, which entitles people to "choose their legislators and political leaders free from any manipulation or undue influence from the domestic authorities", in other words freedom from despotism, and some kind of right to representative government, consistent with the very vague guarantees of political and civil rights in the ICCPR;540 5 3 7 Cassese, "Self-Determination", ibid, at 48-52. 5 3 8 Ibid, at 50. 5 3 9 Ibid, at 52. 5 4 0 Ibid, at 53. He argues that the right is "continuing" by virtue of the fact that the phrase "shall have the right" was finally changed to "have the right", thus providing for a permanent right (at 54). As for the right to representative government, Cassese points out that the Human Rights Committee has interpreted this to include even single-party systems of government: ibid, at 63. 124 -125-(ii) self-detennination means "freedom from outside interference", in other words freedom from invasions or other forms of foreign intervention or occupation;541 (iii) "the right to control and benefit from a territory's natural resources lies with the inhabitants of that territory", by virtue of the fact that they have the right to choose their political leaders, who are thus accountable to the people;542 and (iv) peoples of non-setf-governing and trust territories have the right freely to decide their international status, in accordance with the principles set out in the Article 73e Resolution.543 The most controversial term in the article is, without a doubt, "peoples".544 Nowhere in the Covenants is this term defined, even though the Covenants were clearly envisaging that such "peoples" would include some of those from territories other than non-self-governing or trust territories, and hence expands to some extent upon previous understandings of that term. Cassese contends that the language of the article suggests that the following "peoples" are entitled to external self-determination, in the form of determining their international status: (i) "entire populations living in independent and sovereign States"; (ii) "entire populations of territories that have yet to attain independence"; and (iii) "populations hving under foreign military occupation."545 At the same time, consistent with the minimal democratic guarantees in other parts of the ICCPR, Cassese points out that most States supported the idea that all "peoples" living in sovereign States had a right to determine their domestic political institutions, in other words, internal self-determination. Again, such a right was to attach to all the peoples of a given territory, not to any particular group 5 4 1 Cassese, ibid, at 55. 5 4 2 Ibid, at 55-57. Note, however, article 47, ICCPR and article 25, ICESCR, which both provide: "Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilise fully and freely their natural wealth and resources", which Cassese argues means "that in cases of expropriation or nationalization of the natural resources of a people, the duty to pay compensation, if any, is governed by the rules of customary international law currenuy in force": ibid, at 57. 5 4 3 Cassese, ibid, at 57-58. 5 4 4 See generally J. Crawford, ed., The Rights of Peoples, (New York: Oxford University Press, 1988). 125 - 126-within the territory over and above the rights of the rest of the population of that territory. However, India lodged a reservation to this article when it ratified both Covenants, stating that the right to self-detennination pertains "only to the peoples under foreign domination'' and clarifying that it did not apply "to sovereign independent States or to a section of a people or a nation - which is the essence of national integrity."546 The Netherlands, France, and the Federal Republic of Germany all lodged objections to India's reservation, arguing that "all peoples" includes people within sovereign States.547 Furthermore, as will be discussed below, State practice tends to support Cassese's interpretation, that peoples within sovereign States have a limited right to internal self-detennination. However, neither of the two Covenants entered into force until 1976, some ten years after they were adopted by the General Assembly.548 Therefore, their provisions did not become binding until that time, and thus, disputes as to the meaning of common article 1 were merely academic at this time. Nevertheless, the inclusion of the "right to self-deterrnination" in a treaty that was intended to be binding on all parties in the near future, was an important example of strong opinio juris in this area of international law. 5.4 Minority rights Another significant development in 1966 was the adoption of article 27 of the ICCPR, which provides: "In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language."549 Cassese, "Self-Determination", supra, at 59. United Nations, Human Rights, Status of International Instruments, UN Doc. ST/HR/5, 1987, 9. Halperin et al, supra, at 22-23. The ICCPR entered into force on 23 March 1976, while the ICESCR entered into force on 3 January 1976. Note that there is no corresponding right for minorities in the ICESCR. 126 - 127 -As many authors have noted, this provision had a lengthy and turbulent negotiating history, which had some common features with the negotiating history of the right to self-detennination.sso As mentioned previously, the UDHR did not provide for any group rights, and many States were reluctant to see any form of group rights in the ICCPR. However, in 1947, the newly-formed "Sub-Commission on Prevention of Discriniination and Protection of Minorities" (hereinafter: "Sub-Committee on Minorities"] had suggested the following text for inclusion in the UDHR: "In States inhabited by well-defined ethnic, linguistic or religious groups which are clearly distinguished from the rest of the population and which want to be accorded differential treatment, persons belonging to such groups shall have the right as far as compatible with public order and security to establish and maintain their schools and cultural or religious institutions, and to use their own language and script in the press, in public assembly and before the courts and other authorities of the states if they so choose."551 Socialist States were generally very supportive of such a provision containing detailed elaborations as to the limits and extent of any such minority rights. However, many Latin American countries, as well as the United States and Australia, emphasised the need for immigrant groups to assimilate to their new environment, not to maintain their own culture.552 In addition, the Latin American States suggested that indigenous groups should not be considered as minorities at all, but as "an integral part" of their relevant societies.553 Thus, the issue of "minority rights" was left to one side when the UDHR was being finalised, and the eventual wording of article 27, ICCPR, was "formulated in an extremely „554 cautious, vague manner. Some of the major flaws that have been identified in the wording of article 27 are: 5 5 0 For example, cf. H. Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, (Philadelphia: University of Pennsylvania Press, 1990); P. Thornberry, International Law and the Rights of Minorities, (Oxford: Oxford University Press, 1991); and Brolmann et al, Peoples and Minorities in International Law, supra. 5 5 1 UN Doe. E/CN.4/52, at 9. 5 5 2 A. Spiliopoulou Akermark, Justifications of Minority Protection in International Law, (The Hague: Kluwer Law Internationa], 1996) at 124. Cf. Discussion in Chapter Three, as to the restricted application of the concept of "equality" in relation to assimilationist policies. 5 5 3 Spiliopoulou Akermark, ibid, at 124, n. 25. 5 5 4 M. Nowak, "The Right to Education", at 485, in Spiliopoulou Akermark, ibid, at 124. 127 -128 -(i) it unnecessarily restricts the range of groups that may need protection within a society, for example, the rights of people who belong to national, racial, political, social or cultural groups within a larger population are not addressed in this article;555 (ii) it provides for individual rights only and fails to provide any protection for a collective or group as such, speaking only of the rights of "persons belonging to such minorities" who are seeking to exercise their rights "in community with the other members of their group", not "groups" or even "in community with ... their group"; and (iii) it does not provide positive rights for people belonging to minorities, unlike the 1947 formulation by the Sub-Committee on Minorities, and the decision of the Permanent Court of International Justice in the Minority Schools in Albania Case.556 Article 27 merely stipulates that States must not deny the specific "rights" listed within the article. Thus, there is no actual positive obligation on States to protect minority rights in general terms. The State only has the obligation to ensure that, where it seems that a person from one of the groups mentioned is being denied one or more of its enunciated rights, the State must prevent the further denial of that person's rights.557 Several months before the ICCPR was adopted, the General Assembly adopted another important treaty protecting minority rights: the Convention on the Elimination of all Forms of Racial 5 5 5 Note that the 1948 "Genocide Convention", supra, discussed in Chapter Four, applies to crimes of genocide against "national, ethnical, racial or religious" groups. Also, the Convention on the Elimination of all Forms of Racial Discrimination, adopted earlier in 1966 and discussed further below, provides protection against any discrimination "based on race, colour, descent, or national or ethnic origin" (article 1, C.E.R.D., adopted 7 March 1966). More recently, article 7(l)(h) of the "Rome Statute" provides that the crime against humanity of persecution involves the severe denial of the rights of "any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender ... , or other grounds that are universally recognized as impermissible under international law" (see also article 7(2)(g) & (3)). This provision was drafted to take into account the wide range of minority rights that have been violated on a wide scale in various regions of the world, since the drafting of article 27, which failed to protect any of them. Cf. Discussion in Chapter Seven on crimes against humanity and self-determination. 5 5 6 Cf. Discussion of this case in Chapter Three, supra. 5 5 7 Spiliopoulou Akermark points out the important distinction between prohibition of discrimination, and recognition of the rights of minorities, including the place of "affirmative action", supra, at 23-28. Cf. Discussion in Chapter Six on the "rights" of minority groups. 128 -129-Discrimination [hereinafter the "CERD"].558. This Convention was also influenced by the developments in 1960 with respect to the right to self-detennination of colonised peoples. Its fourth preambular paragraph makes explicit reference to the General Assembly's support for the Colonial Declaration, and its condemnation of "colonialism and all practices of segregation and discrirnination associated therewith." Article 1 of the Convention defines "racial discrirnination" as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin". However, as with article 27, ICCPR, the CERD does not provide any positive rights to people being discriminated against in such a manner. But it does create more of an obligation on States to ensure that they "prohibit and ... eliminate all forms of racial mscrimination" and to "guarantee the right of everyone" to many of the rights contained in the ICCPR.559 In addition, article 1(4) allows a State to take "special measures" - such as affirmative action - "for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms". Further, article 2(2) allows States to take "special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms." In other words, the Convention recognises that "groups" may have "rights", and that "equality" does not necessarily result from the "liberalist" view of the "level playing field".560 On the latter point, Professor Douglas Sanders has pointed out that some groups who are not actually suffering from discrimination, but whose unique group identity is being threatened with extinction through processes such as cultural assimilation, are not provided for adequately by the usual regimes Note that the General Assembly had previously adopted the Declaration on the Elimination of all Forms of Racial Discrimination, GARes. 1904 (XVm), 20 November 1963. 5 5 9 Article 5, CERD. Note that these rights are individual, not group, rights. 5 6 0 Cf. Discussion in Chapter Three, supra, criticising the "liberal" view of "equality", which assumes that all groups are equally well-equipped to maintain their identity within pluralist societies. 129 - 13