Self-Determination (International Law)

Introduction

The right of peoples to self-determination is their right to freely determine their political status and freely pursue their economic, social, and cultural development. It has a central position in international law as a primary principle in the creation and destruction of states. It features in Article 1 of the UN Charter (1945) as one of the purposes of the organization. It is positioned as the first right in the twin Human Rights Covenants (the International Covenant on Civil and Political Rights [ICCPR], and the International Covenant on Economic, Social and Cultural Rights [ICESCR]). Many commentators argue for its peremptory or jus cogens status. Nonetheless, despite a general description in international instruments about what this right might allow peoples to do, the right itself has no exact definition (it is, after all, self-determined) and its subject, the “people,” has famously escaped legal formulation. These ambiguities provide plenty of fuel for academic writing. Engaging with the extensive literature on self-determination can be a monumental task, and this survey is necessarily no more than the tip of the iceberg of the total works available. The omission of particular titles here reflects on space requirements, not on their quality. The academic coverage of self-determination is enormous and growing energetically. Moreover, it is spread across a range of disciplines, not only law but also the study of nationalism and ethnic conflict in the political and social sciences, as well as history and philosophy. This is not to mention the overlapping issues of minority rights and indigenous peoples’ rights, which are covered in separate entries. A well-informed approach to the right of self-determination will require a wider reading than the primarily legal publications listed here, and it is recommended that researchers familiarize themselves with nationalism, liberalism, and the historical context of the right. The right of self-determination, rather like a magician, relies on perceptions and assumptions that a good analysis needs to be able to see through. The right is also linked with fast-changing events, and a good way to keep up with current developments is through websites like ASIL Insights or EJIL: Talk!.

General Overviews

There are a number of general works on self-determination that embrace most of the issues that the concept raises. Cassese 1995 might be a researcher’s first port of call, as it provides a detailed analysis of international instruments. However, it does date from 1995 and has been overtaken by some events. Summers 2007 is also a comprehensive analysis of instruments and cases. If these books provide too much detail, a briefer overview is provided by Quane 1998. Musgrave 1997 and Wheatley 2005 are short, effective books that also cover minority rights. Crawford 2006 is primarily about states, but states provide the context for self-determination, and there is considerable examination of the right in this volume. Lastly, there are two general works from the 1970s: Rigo-Sureda 1973 and Umozurike 1972. While these are also dated, they provide effective coverage.

Cassese, Antonio. Self-Determination of Peoples: A Legal Reappraisal. Cambridge, UK: Cambridge University Press, 1995.
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Perhaps the most widely used authority on self-determination, cited, for example, by the Canadian Supreme Court in Reference re Secession of Quebec. This is an extensive analysis of self-determination from the perspective of its internal and external aspects. It covers instruments like the Human Rights Covenants and Friendly Relations Declaration in extensive detail, and case studies outline the principle’s practical application.
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Crawford, James. The Creation of States in International Law. 2d ed. Oxford: Clarendon, 2006.
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In many ways the right of self-determination is a mirror to statehood. While Crawford’s book is primarily about states, it also provides a highly regarded analysis of the law of self-determination and secession. In oral submissions in the Kosovo Advisory Opinion it was referred to as “probably . . . the most widely quoted in these proceedings.”
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Musgrave, Thomas D. Self-Determination and National Minorities. Oxford: Clarendon, 1997.
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This book provides a readable and relatively concise account of minority rights and self-determination in 250 pages. It addresses key issues such as peoples, secession, irredentism, and historic title in sufficient but not extensive depth.
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Quane, Helen. “The United Nations and the Evolving Right to Self-Determination.” International and Comparative Law Quarterly 47.3 (1998): 537–572.
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This is one of the best concise overviews of self-determination. In thirty-five pages, Quane runs through the basic instruments on self-determination and considers categories of secessionist claims.
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Rigo-Sureda, A. Evolution of the Right to Self-Determination: A Study of United Nations Practice. Leiden, The Netherlands: A. W. Sijthoff, 1973.
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This is an extensive and well-researched account of self-determination, focused on the practical application of the right. A number of case studies demonstrate the problems involved in this application. The structure of the book, in which case studies are split up and returned to from different angles, may, however, be found disorientating.
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Summers, James. Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations. Leiden, The Netherlands: Martinus Nijhoff, 2007.
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Extensive analysis of the law of self-determination from the perspective of the interaction of nationalism with international law. The book covers international instruments and some cases on self-determination with considerable detail, and draws conclusions on the legal status of different aspects of the right.
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Umozurike, U. O. Self-Determination in International Law. Hamden, CT: Archon, 1972.
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This is an effective account of the law of self-determination by a Nigerian jurist. The main focus of the work is on colonial self-determination—in particular, Namibia—but Umozurike also covers economic self-determination and case studies on secessionist conflict.
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Wheatley, Steven. Democracy, Minorities and International Law. Cambridge, UK: Cambridge University Press, 2005.
DOI: 10.1017/CBO9780511584336Save Citation »Export Citation »E-mail Citation »
Wheatley provides a well-researched account, addressing minority rights, self-determination, and democracy. The work is concise and informative.
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Textbooks

Self-determination features in a number of key international law textbooks, but they are often little more than brief overviews. Both Cassese 2005 and Brownlie 2008 address the right in four pages, which leaves little room for detail and explanation. Shaw 2008 is more extensive, but the analysis is spread over different parts of the work. Higgins 1994 provides a more substantial introduction. Perhaps the best general introduction is Kaczorowska 2005, with a clear, student-orientated account. Both Verzijl 1968 and Malanczuk 1997 are critical of the right, highlighting inconsistencies in its application.

Brownlie, Ian. Principles of Public International Law. 7th ed. Oxford: Clarendon, 2008.
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Self-determination appears only in a brief four-page overview, and Brownlie concedes that “it is difficult to do justice to the problems in a small compass.” A fuller examination by the author can be found in “The Rights of Peoples in Modern International Law,” printed in The Rights of Peoples, edited by James Crawford (Oxford: Clarendon, 1988), pp. 1–16.
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Cassese, Antonio. International Law. 2d ed. Oxford: Oxford University Press, 2005.
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The jurist provides a short summary on self-determination as one of the fundamental principles governing international relations. Essentially this is a four-page version of Self-Determination of Peoples: A Legal Reappraisal (Cassese 1995, cited under General Overviews).
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Higgins, Rosalyn. Problems and Process: International Law and How We Use It. Oxford: Clarendon, 1994.
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Chapter 7 of Higgins’s text is on self-determination. She provides a good outline of the right over seventeen pages, dividing it into two phases: independence from colonial rule and human rights. This is a good basic introduction.
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Kaczorowska, Alina. Public International Law. 3d ed. Abingdon, UK: Routledge Cavendish, 2005.
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Chapter 14 on the self-determination of peoples provides a clearly laid out and good basic introduction to the right. It runs through its historic background, decolonization, racist regimes, Palestine, secession, and indigenous peoples. Altogether a good introductory text aimed at undergraduates.
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Malanczuk, Peter. Akehurst’s Modern Introduction to International Law. 7th ed. London: Routledge, 1997.
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Provides a good basic outline of the instruments on and aspects of self-determination, in a chapter shared with the use of force. It also critiques the right, at least, in the colonial or neocolonial context by investigating the charge of double standards.
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Shaw, Malcolm N. International Law. 6th ed. Cambridge, UK: Cambridge University Press, 2008.
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This is a highly authoritative textbook, often cited before the International Court of Justice (ICJ). However, despite its significant length, references to self-determination are scattered and brief, with self-determination being separately examined in relation to the criteria for statehood, as a legal right in international law, and as a human right.
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Verzijl, J. H. W. International Law in Historical Perspective. Vol. 1, General Subjects. Leiden, The Netherlands: A. W. Sijthoff, 1968.
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Verzijl takes issue with self-determination as a legal concept. Describing it as a right with an obviously political nature and a slogan-like quality, he finds its application marred by evident arbitrariness and flagrant international hypocrisy. The book contains a boldly phrased critique of self-determination from a period when it was still possible to argue that international law could exclude it.
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Conceptual Approaches

It is common practice for works on self-determination to incorporate some form of conceptual framework. Nonetheless, the frameworks below may be considered particularly significant, as they either incorporate a tradition of thought in writing about self-determination or have had an influential impact on the subsequent literature in this field. Pomerance 1982 encapsulates a skeptical legalist tradition towards the right. Koskenniemi 1994 exposes its conflicting philosophical roots. Knop 2002, from a feminist perspective, considers the function of inclusion. Williams and Pecci 2004 outlines a modern version of trusteeship, which has historically underpinned the right. Berman 1992, from a critical legal perspective, outlines the interplay of politics and law. Anaya 1991 brings an indigenous peoples’ perspective to the right.

Anaya, James S. “The Capacity of International Law to Advance Ethnic or Nationality Rights Claims.” Human Rights Quarterly 13.3 (1991): 403–411.
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In a short article, Anaya outlines two approaches to self-determination. The first is a historical sovereignty approach, in which a historical community seeks to restore sovereignty that has been denied. The second is a human rights approach, whereby self-determination emerges as an extension of individual human rights. Anaya sees this approach as a more flexible way of addressing the claims of ethnic groups within states.
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Berman, Nathaniel. “Sovereignty in Abeyance: Self-Determination and International Law.” In International Law. Edited by Martti Koskenniemi, 389–443. New York: New York University Press, 1992.
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Berman explores self-determination as a doctrine that functions in states of exception, where sovereignty is in abeyance. This presents an opportunity for legal creativity as conflicting elements of law and morality in international law confront each other. The Commission of Jurists’ statement in the Åland Islands case that self-determination is called into play when sovereignty is uncertain is illustrative. Originally published in the Wisconsin International Law Journal in 1988.
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Knop, Karen. Diversity and Self-Determination in International Law. Cambridge, UK: Cambridge University Press, 2002.
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The book investigates self-determination as a means of inclusion in international law. It does not just look at the law, but also the structures in which it operates. Principles and categories, reporting under the trusteeship system, the drafting of International Labour Organization (ILO) Convention 169 and the Declaration on the Rights of Indigenous Peoples are considered.
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Koskenniemi, Martti. “National Self-Determination Today: Problems of Legal Theory and Practice.” International and Comparative Law Quarterly 43.2 (1994): 241–269.
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Koskenniemi see self-determination as falling between two poles: a liberal “Hobbesian” perspective that seeks stability and a “Rousseaueque” view that seeks authenticity in the groups exercising the right.
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Pomerance, Michla. Self-Determination in Law and Practice: The New Doctrine in the United Nations. The Hague: Martinus Nijhoff, 1982.
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In a relatively short but closely argued work, Pomerance takes issue with the inconsistencies in the law of self-determination. The book is a prominent example of a line of criticism, including Emerson, Franck, and Verzijl, about self-determination’s suitability as a legal principle based on its inherently subjective elements.
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Williams, Paul R., and Francesca Jannotti Pecci. “Earned Sovereignty: Bridging the Gap between Sovereignty and Self-determination.” Stanford Journal of International Law 40 (2004): 1–40.
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The term “earned sovereignty” was coined in the context of the international administrations in East Timor and Kosovo, though the authors conceive it as a general approach to secession. Earned sovereignty is presented as a middle ground between the prevalence of self-determination or sovereignty. It has three core elements: shared sovereignty, institution-building, and a final status process.
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Philosophical Accounts

The philosophy of self-determination has generated considerable literature. This section outlines two contemporary works (Raz and Margalit 1994 and Tesón 1998), as well as classic philosophical works such as Locke 1967, Rousseau 1980, Bentham 1843, Mazzini 1907, Mill 1954, and Acton 1922. A common feature in these works, which spread across the centuries, is the tension between the individual theory of liberalism and the collective focus of nationalism.

Acton, John Emerich Edward Dalberg. “Nationality.” In The History of Freedom and Other Essays. By John Emerich Edward Dalberg Acton. Edited by John Neville Figgis and Laurence Reginald Vere, 270–300. London: Macmillan, 1922.
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In response to Mill, Lord Acton argues against the nationality principle as a mechanism for advancing liberal values. Nationality is at best neutral on those points. More negatively, linking the rationale of a state to a particular nation means that any other nation within that state’s borders would be inherently subordinate, its fate depending on the degree of civilization in the dominant nation. The coexistence of several nations within a state, he considered, was the best guarantee of freedom. First published 1862.
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Bentham, Jeremy. “Emancipate Your Colonies.” In The Works of Jeremy Bentham. Vol. 4. By Jeremy Bentham. Edited by John Bowring, 407–418. Edinburgh: William Tait, 1843.
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Bentham delivers a bold attack on colonialism from a liberal nationalist perspective, which anticipates the combination of equal rights and self-determination that would be used against colonial rule in the decolonization process.
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Locke, John. Two Treatises of Government: A Critical Edition with an Introduction and Apparatus Criticus. 2d ed. Edited by Peter Laslett. Cambridge, UK: Cambridge University Press, 1967.
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Locke’s work is the classic text of liberal government. Government is conceived as a trust instituted for the benefit of the governed, and for the protection of their rights. If the trust is broken, then government in the last resort can be deposed. Locke conceived his arguments against James II (or Charles II) of England, but they can justify a liberal approach to self-determination and secession. First published 1690.
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Mazzini, Guiseppe. “The Duties of Man.” In The Duties of Man and Other Essays. Guiseppe Mazzini. Edited by Thomas Jones, 7–122. London: J. M. Dent & Sons, 1907.
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Mazzini is often seen as the archetypal nationalist. The Duties of Man is his most famous work, in which he develops a philosophy of duties that is profoundly nationalistic. However, while Mazzini sees the world in terms of nations, they themselves exist within a strong liberal and Christian framework, which balances the national with the individual and humanity.
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Mill, John Stuart. “Considerations on Representative Government.” In Utilitarianism, Liberty, Representative Government. By John Stuart Mill, 171–393. London: J. M. Dent & Sons, 1954.
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Mill is supportive of the nationality principle as a basis for liberal representative government. Nation-states are likely to have less barriers to communication and more likely to have a sense of common feeling necessary for the working of representative government. First published 1861.
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Raz, Joseph, and Avishai Margalit. “National Self-Determination.” In Ethics in the Public Domain. By Joseph Raz, 110–130. Oxford: Clarendon, 1994.
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Raz and Margalit argue in support of an instrumentalist right of self-determination from a liberal perspective. Individuals need relationships to pursue worthwhile goals, and relationships are culturally determined. Self-government for national groups means that they are likely to respect the basic rights of members of their groups, and thus, on balance, add to the sum of good.
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Rousseau, Jean-Jacques. The Social Contract. Translated by Maurice Cranston. Harmondsworth, UK: Penguin Classics, 1980.
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Rousseau’s philosophy, which builds on Locke, is transitional between liberalism and nationalism. Sovereignty is held by the people as a collective entity guided by a general will. The people have the power to construct and reorganize political structures at will. Rousseau conceives of the people as intensely patriotic, and his liberalism appears to slip when considering those who behave unpatriotically. First published in 1762.
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Tesón, Fernando R. “Ethnicity, Human Rights and Self-Determination.” In International Law and Ethnic Conflict. Edited by David Wippman, 86–111. Ithaca, NY: Cornell University Press, 1998.
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The author outlines a liberal repudiation of nationalist approaches to self-determination, arguing that group rights are justified to escape injustice or from a legitimate territorial claim rather than an inherent group identity. Tesón criticizes the communitarian approach of Margalit and Raz, considering it still allows a nonvoluntary group identity to override individualism.
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History

The history prior to the development of the contemporary right of self-determination can be divided into two main periods: the era after the French Revolution, in which the principle of nationality was applied; and the period after World War I–in particular, during the Versailles Peace Conference–when self-determination became popularized. Cobban 1969 is a general work on self-determination that covers these periods well.

Cobban, Alfred. The Nation-State and National Self-Determination. London: Collins, 1969.
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This is a general work on self-determination, though with a strong historical perspective. Cobban runs through self-determination from the French Revolution to World War I. He then provides an extensive analysis of the Peace Conference of Versailles and follows with the failure of the minority regimes in the interwar period. The remainder of the book is an analysis of self-determination from a rich historical perspective.
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The Nationality Principle

The principle of nationality reflects the basic doctrine of political nationalism that the nation is the basis for the state. The principle became politically significant after the French Revolution of 1789, particularly in the mid- to late 19th century. In the 20th century, after World War I, it began to be replaced as a terminology by the more ambiguous right of peoples to self-determination, though nationalism remains important politically. Two works are cited in this section: Bluntschli 1885 provides a succinct account of the principle in theory, and Wambaugh 1920 provides an effective account of much of the practice. The theory of the nationality principle is also scrutinized in the conflicting accounts of Mill 1954 and Acton 1922 (see Philosophical Accounts).

Bluntschli, Johann Kaspar. The Theory of the State. Oxford: Clarendon, 1885.
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The book contains excellent descriptions from this period of the nationality principle and its rationale.
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Wambaugh, Sarah. A Monograph on Plebiscites with a Collection of Official Documents. New York: Carnegie Endowment for International Peace, 1920.
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This is still the standard legal work on self-determination in the period of the French Revolution and 19th century. The book charts a number of plebiscites in this period.
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The Paris Peace Conference

The Paris Peace Conference brought together the victorious powers from World War I to forge a postwar settlement, resulting in the Treaty of Versailles and other agreements. It is significant as the period in which self-determination was popularized as a principle of international diplomacy. There were also important applications of the principle, though the period is often remembered for the many instances when self-determination was not realized. Temperley 1920–1924 presents an extensive account of the proceedings. Wambaugh 1933 and Wambaugh 1940 document the plebiscites held in that period. Nicolson 1933 delivers a contemporary account of the failures of the conference. Lansing 1921, Lloyd George 1938, Lenin 1946, and Wilson 1966–1994 are the works of significant political figures in that period.

Lansing, Robert. The Peace Negotiations: A Personal Narrative. Boston: Houghton Mifflin, 1921.
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This is a contemporary account of the conference by the most enduring critic of Wilsonian self-determination, his secretary of state, Robert Lansing.
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Lenin, V. I. “The Right of Nations to Self-Determination.” In Selected Works. Vol. 1. By V. I. Lenin, 564–611. Moscow: Foreign Languages Publishing House, 1946.
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Lenin lays out the Bolshevik strategy on self-determination, which ultimately embraces the right as a dispensable tool for the promotion of socialism.
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Lloyd George, David. The Truth about the Peace Treaties. London: Victor Gollancz, 1938.
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This work, by the British prime minister, is engagingly written for a political biography and provides an insider’s account of the peace conference.
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Nicolson, Harold. Peacemaking 1919. London: Constable, 1933.
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Nicolson delivers a critical account of the aims and organization of the Paris conference.
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Temperley, Harold W. V. A History of the Peace Conference of Paris. 6 vols. London: Henry Frowde/Hodder and Stoughton, 1920–1924.
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A comprehensive history of the peace conference at Versailles.
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Wambaugh, Sarah. Plebiscites since the World War, with a Collection of Official Documents. Washington, DC: Carnegie Endowment for International Peace, 1933.
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An excellent account of the plebiscites that redrew some of the borders of Europe after World War I. The plebiscites were integral to the dreams and failures of the postwar settlement and brought surprising results that challenged the assumptions of nationalism.
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Wambaugh, Sarah. The Saar Plebiscite, With a Collection of Official Documents. Cambridge, MA: Harvard University Press, 1940.
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Wambaugh continues her examination of postwar plebiscites with a detailed consideration of the Saar Plebiscite of 1935, in which this ethnically German territory overwhelmingly voted to join Hitler’s Reich.
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Wilson, Woodrow. The Papers of Woodrow Wilson. 69 vols. Edited by Arthur S. Link. Princeton, NJ: Princeton University Press, 1966–1994.
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This collection includes the speeches of President Woodrow Wilson in which he outlines the principle of self-determination and how a peace settlement should be based on the principle of nationality. The most important of these documents are “An Address to a Joint Session of Congress [14 Points]” (Vol. 45, pp. 534–539) and “An Address to a Joint Session of Congress [4 Points]” (Vol. 46, pp. 318–324).
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International Instruments

The right of self-determination in international law derived from, at least, the two principal sources of international law: treaties and custom, both of which drew from a number of international instruments, detailed in the following subsections.

United Nations Charter, 1945

The United Nations Charter of 1945 is the treaty that established the United Nations, and it is the legal wellspring for the subsequent UN law that has built up around self-determination. The principle of equal rights and self-determination of peoples is referred to twice in the charter, in Article 1(2), as one of the purposes of the organization, and in Article 55 on the conditions for international economic and social cooperation. Significant also are Chapters XI and XII, on the systems for non–self-governing territories and trust territories, respectively. Both of those systems, though based on the principle of trusteeship, provided the framework for the operation of colonial self-determination in the decolonization process. The UN Charter and its drafting are discussed in detail in Cassese 1995 and Summers 2007 (both cited under General Overviews), and more specific works are Simma 2002 and Swan 1982.

Simma, Bruno, ed. The Charter of the United Nations: A Commentary. 2d ed. 2 vols. Oxford: Oxford University Press, 2002.
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This edited volume is an article-by-article examination of the provisions of the UN Charter. Particularly valuable in the context of self-determination are the entries by Karl Doehring on “Self-Determination” (Vol. 1, pp. 47–63), Ulrich Fastenrath on the “Declaration Regarding Non-Self-Governing Territories” (Vol. 2, pp.1089–1097), Dietrich Rauschning on the “International Trusteeship System” (Vol. 2, pp.1099–1128), and Rudolf Geiger on “The Trusteeship Council” (Vol. 2, pp.1129–1138).
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Swan, George Steven. “Self-Determination and the United Nations Charter.” Indian Journal of International Law 22 (1982): 264–277.
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The author provides a concise overview of the articles of the UN Charter relevant to self-determination, as well as engaging in the academic debate on how to interpret those provisions.
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Universal Declaration of Human Rights, 1948

The Universal Declaration of Human Rights (1948) is a nonbinding declaration of the UN General Assembly, though many of the rights it contains are considered to be part of custom. It provided the first part of the “International Bill of Rights,” followed by the twin Human Rights Covenants. The declaration does not specifically include a right to self-determination, though Article 21(3) states, “The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” Rosas 1999 places Article 21 in the context of self-determination.

Rosas, Allan. “Article 21.” In The Universal Declaration of Human Rights: A Common Standard of Achievement. Edited by Gudmunder Alfredsson and Asbjørn Eide, 431–451. The Hague: Martinus Nijhoff, 1999.
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This chapter provides a thorough examination of Article 21 and its drafting. It also analyses its role in self-determination by examining its relationship with Articles 1 and 25 of the International Covenant on Civil and Political Rights.
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Human Rights Covenants, 1966

The twin Human Rights Covenants of 1966—the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights—were the first binding instruments to refer to self-determination as a right, and they perhaps remain the most important for how the right has developed. Article 1(1) of both Covenants has become the standard formula for expressing self-determination in international instruments: “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.” Article 1(2) contains a complex formula for economic self-determination. Article 1(3) establishes a duty to promote the realization of self-determination, citing, in particular, non–self-governing and trust territories. Article 1 has been the subject of a commentary by the Human Rights Committee (HRC) in General Comment No. 12 (24th Session, 1984), though this is generally quite vague. General Comments 23 (50th Session, 1994) and 25 (57th Session, 1996), on rights of persons belonging to minorities and rights connected to democratic governance, respectively, also refer to self-determination. Like the UN Charter, the Human Rights Covenants and their drafting are discussed on detail in Cassese 1995 and Summers 2007 (both cited under General Overviews). More specific works include Morphet 1989, Nowak 1993, and Bossuyt 1987.

Bossuyt, Marc J. Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights. Dordrecht, The Netherlands: Martinus Nijhoff, 1987.
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This is a very technical guide to the drafting history of the International Covenant on Civil and Political Rights.
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Morphet, Sally. “Article 1 of the Human Rights Covenants: Its Development and Current Significance.” In Human Rights and Foreign Policy: Principles and Practice. Edited by Dilys M. Hill, 67–88. London: Macmillan, 1989.
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The chapter is a detailed account of the circumstances of the drafting of Article 1, along with a more general examination of the subsequent development of self-determination.
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Nowak, Manfred. UN Covenant on Civil and Political Rights: CCPR Commentary. Kehl, Germany: N. P. Engel, 1993.
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This book is an article by article examination of the Civil and Political Covenant. It provides an extensive account of the historical context and legal implications of Article 1.
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The Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV), 1960

The Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV), 15 December 1960, though formally nonbinding, is the most significant instrument promoting the right of self-determination of colonial peoples. It was referred to by the ICJ in the Namibia Advisory Opinion and the Western Sahara Advisory Opinion. The drafting of the declaration is examined in detail by Kay 1967 and Summers 2007 (see General Works). It is also analyzed by Pomerance 1982 (see Conceptual Approaches), Blay 1986 (see Colonial Self-Determination), Maguire 1982 (see Specific Territories), and Quane 1998 (see General Overviews).

Kay, David A. “The Politics of Decolonization: The New Nations and the United Nations Political Process.” International Organization 21.4 (1967): 786–811.
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The article looks at the context surrounding the Declaration on Colonial Independence of 1960 and its relationship with the UN Charter. It also looks more broadly at UN practice in decolonization, in particular, in relation to Southern Rhodesia.
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General Assembly Resolution 1541 (XV), 1960

General Assembly Resolution 1541 (XV), 15 December 1960, outlines the principles for identifying a non–self-governing territory, using the “salt-water” test of geographical separation, as well as ethnic and/or cultural distinctiveness. It was referred to by the International Court in the Western Sahara Advisory Opinion. Details of its drafting can be found in Summers 2007 (see General Overviews) and it is examined in Ofuatey-Kodjoe 1995, as well as in Pomerance 1982 (see Conceptual Approaches) and Musgrave 1997 (see General Overviews).

Ofuatey-Kodjoe, W. “Self-Determination.” In United Nations Legal Order. Vol. 1. Edited by Oscar Schachter and Christopher C. Joyner, 349–389. Cambridge, UK: Cambridge University Press, 1995.
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The book chapter provides an overview of the resolution, in the context of other instruments on decolonization, as part of a general study of the law of self-determination.
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The Declaration on Principles of Friendly Relations, General Assembly Resolution 2625 (XXV), 1970

The Declaration on Friendly Relations (officially, the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States) is perhaps the most legally significant resolution of the General Assembly, being a contemporary (at the time) interpretation of the principles of the UN Charter. In the context of self-determination it has been cited by the ICJ in the Namibia, Western Sahara, Wall in Occupied Palestinian Territory, and Kosovo Advisory Opinions (see Decisions by Courts and Tribunals). The declaration reaffirms much of the content of General Assembly Resolution 1514 (XV) and General Assembly Resolution 1541 (XV), consolidating the right of colonial peoples. Detail of the drafting of the declaration can be found in Arangio-Ruiz 1972, Suković 1972, and Rosenstock 1971 in this section, and also in Cassese 1995 and Summers 2007 (see General Overviews for both). Much of the attention in the literature on the declaration has been focused on its “saving” or “safeguard” clause (Paragraph 7 of Principle 5), which states, “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.” References to the provision can be found in most of the general literature on self-determination. Nonetheless, two competing perspectives, in McCorquodale 1994 and Horowitz 2003, have been selected for this section.

Arangio-Ruiz, Gaetano. “The Normative Role of the General Assembly of the United Nations and the Declaration of Friendly Relations.” Recueil des Cours 137.3 (1972): 419–626.
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In a lengthy work on the Declaration, Arangio-Ruiz considers self-determination, following Emerson, as an issue of the “big print,” the proclamation of the right, and the “small print,” by which the right is limited into a more workable formula. Arangio-Ruiz himself doubts that self-determination is yet a rule of international law.
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Horowitz, Donald L. “A Right to Secede?” In Secession and Self-Determination. Edited by Stephen Macedo and Allen Buchanan, 50–76. New York: New York University Press, 2003.
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A skeptical assessment of Paragraph 7 from Donald Horowitz, author of the basic text on ethnic conflict, Ethnic Groups in Conflict (Berkeley: University of California Press, 2000). He considers that commentators are going out on a limb in trying to squeeze a right of secession out of the cryptic language of the provision.
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McCorquodale, Robert. “Self-Determination: A Human Rights Approach.” International and Comparative Law Quarterly 43.4 (1994): 857–885.
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McCorquodale takes an expansive view of the implications of Paragraph 7 considering that, under the saving clause, territorial integrity as a limit on the right to self-determination can only apply to a minority of states where the government represents the whole people. The human rights approach that he outlines generally corresponds to the approach of the saving clause, which shifts the emphasis on the realization of self-determination to nondiscrimination and representation.
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Rosenstock, Robert. “The Declaration of Principles of International Law Concerning Friendly Relations: A Survey.” American Journal of International Law 65.5 (1971): 713–735.
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An article by the legal advisor to the US delegation at the UN. Rosenstock outlines the provisions on self-determination and the difficulties in agreeing to them, as part of a general examination of the declaration. He supports an interpretation of the saving clause as promoting representative government.
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Suković, Olga. “Principle of Equal Rights and Self-Determination of Peoples.” In Principles of International Law Concerning Friendly Relations and Co-operation. Edited by Milan Săhović, 323–373. Belgrade, Yugoslavia: Institute of International Politics and Economics, 1972.
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The author looks both at self-determination in the drafting of the declaration as well more generally in international law.
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Helsinki Final Act, 1975

The Helsinki Final Act (1975) is a declaration adopted by the Conference on Security and Cooperation in Europe (now the Organization for Security and Co-operation in Europe [OSCE]). Principle VIII addresses self-determination within an explicit context of territorial integrity. Although nonbinding, its principles have been influential in shaping states’ behavior, especially in a European context. It has been recognized by the ICJ in Nicaragua Case of 1986 and the Kosovo Advisory Opinion, though in the context of the use of force rather than self-determination. Details of the drafting of the Final Act can be found in Arangio-Ruiz 1977 and Russell 1976, as well as in Cassese 1995 and Summers 2007 (both cited under General Overviews). Salo 1991 provides a good overview of the context of the act.

Arangio-Ruiz, Gaetano. “Human Rights and Non-Intervention in the Helsinki Final Act.” Recueil des Cours 157.4 (1977): 195–328.
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The author examines self-determination as part of an in-depth study of the Final Act. He expands on the Cold War context and the internal and external aspects implied in the principle. Available online through purchase.
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Russell, Harold S. “The Helsinki Declaration: Brobdingnag or Lilliput.” American Journal of International Law 70.2 (1976): 242–272.
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An article from the principal US negotiator at Helsinki, providing good detail on the context and process. The examination of self-determination is brief but provides some useful insights.
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Salo, Juha. “Self-Determination: An Overview of History and Present State with Emphasis on the CSCE Process.” Finnish Yearbook of International Law 2 (1991): 268–342.
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A lengthy article on self-determination orientated around the Final Act. Salo looks at the provisions on the right and process of drafting the Final Act, while placing self-determination in a broader historical context.
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African Charter on Human and Peoples’ Rights, 1981

The African (or Banjul) Charter on Human and Peoples’ Rights is a binding regional instrument that covers not only human rights but also peoples’ rights. In Article 20(1), it proclaims the unquestionable and inalienable right of peoples to self-determination, as well as other peoples’ rights. Kiwanuka 1988 and Addo 2000 both examine the concept of self-determination in this instrument.

Addo, Michael K. “Political Self-Determination within the Context of the African Charter on Human and Peoples’ Rights.” In Self-Determination in International Law. Edited by Robert McCorquodale, 267–278. Aldershot, UK: Ashgate/Dartmouth, 2000.
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The chapter engages with the concept of self-determination in the African Charter, demonstrating, despite considerable ambiguity, that it should be interpreted more widely than colonial and foreign domination. Originally published in the Journal of African Law 32.2 (1988): 182–193.
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Kiwanuka, Richard N. “The Meaning of ‘People’ in the African Charter on Human and Peoples’ Rights.” American Journal of International Law 82.1 (1988): 80–101.
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The article provides an insightful examination of the different contexts in which “peoples” could exist in the Banjul Charter. Kiwanuka finds that “people” could mean the population of a political unit not enjoying self-government, an ethnic population, a state, or the population of a state, depending on how peoples’ rights are used.
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Decisions by Courts and Tribunals

The right of self-determination has featured in a number of decisions by national and international courts and tribunals, which are detailed in the following subsections.

Aaland (Åland) Islands Reports, 1920 and 1921

The Åland Islands are an archipelago of Swedish-speaking islands between Finland and Sweden. Historically part of Finland, they became a source of international concern as a result of the clearly expressed wishes of the islanders to join Sweden after Finnish independence in 1917. The claims of the islanders were examined in reports by two international commissions. The Report by the Commission of Jurists (League of Nations Official Journal, Special Supplement No. 3, October 1920) sought to determine whether the dispute fell entirely within the domestic jurisdiction of Finland. The Report of the Commission of Rapporteurs (League of Nations Document B7 [C] 21/68/106, April 1921) recommended a solution to the League. Both commissions took similar positions with regard to self-determination. Both did not consider it a rule of international law. Both argued that it was contained by state sovereignty, though both also allowed that this position might be altered by continued abuse. Lastly, both considered that self-determination had an essentially functional relationship with minority rights, as different means of achieving justice and development for national groups. Accounts of the Åland Islands decisions can be found in Verzijl 1968 (see Textbooks), Cassese 1995, Crawford 2006, Rigo-Sureda 1973, and Summers 2007 (all under General Overviews), and more specifically in Barros 1968 and Padelford and Andersson 1939.

Barros, James. The Åland Islands Question: Its Settlement by the League of Nations. New Haven, CT: Yale University Press, 1968.
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A comprehensive account of the decisions by the two commissions, including the political and historical context to the dispute.
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Padelford, Norman J., and K. Gösta A. Andersson. “The Aaland Islands Question.” American Journal of International Law 33.3 (1939): 465–487.
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The article examines the reports and considers in detail the surrounding political decisions.
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Namibia Advisory Opinion, 1971

The Namibia Advisory Opinion is significant as the first instance where the International Court of Justice recognized the applicability of the principle of self-determination to non-self-governing territories.

“Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970): Advisory Opinion of 21 June 1971.” ICJ Reports (1971): 16–66.
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An advisory opinion by the International Court of Justice (ICJ) concerning Namibia (South West Africa), administered by South Africa in violation of its mandate agreement. The opinion is significant in its development of the principle of trusteeship, contained in both the League of Nations Covenant and the UN Charter, into a right of self-determination and independence. In regard to non-self-governing territories, the Court found, the principle applied to all of them.
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Western Sahara Advisory Opinion, 1975

The International Court of Justice’s Western Sahara Advisory Opinion is the ICJ’s most extensive engagement with the principle of self-determination. The opinion concerned Western Sahara, a Spanish non-self-governing territory claimed by Morocco and Mauritania. Both countries argued that they had historic ties to the colony, which meant that their territorial integrity should prevail over self-determination for Western Sahara. The court examined the ties that the states had to the territory and found none of them amounted to territorial sovereignty, which might affect the application of self-determination. Judge Dillard also wrote a notable separate opinion, in which he famously said that it was for the people to determine the territory, not the territory the people. The Court found no impediment to the decolonization of Western Sahara, though Morocco subsequently implemented its interpretation of the opinion by invading the territory. Shaw 1978 provides a good account of the case and its context. The case is also examined in detail in Summers 2007 (see General Overviews).

Shaw, Malcolm. “The Western Sahara Case.” British Yearbook of International Law 49 (1978): 119–154.
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The article is a substantial examination and critique of the case, which also outlines the factual and legal context.
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“Western Sahara: Advisory Opinion of 16 October 1975.” ICJ Reports (1975): 12–82.
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This advisory opinion looks at the principles surrounding the application of self-determination in decolonization. As such it has relevance for contemporary disputes, such as the Falkland (Malvinas) Islands, Gibraltar, Mayotte and, of course, Western Sahara itself, whose conflict remains unresolved.
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Decisions of the Human Rights Committee

The jurisprudence of the Human Rights Committee on complaints on Article 1 of the International Covenant on Civil and Political Rights under Optional Protocol I concern petitions from individuals who assert that their people have been denied self-determination. The committee has not directly engaged with these claims. In the Mikmaq Tribal Society case (A. D. v. Canada), the committee dismissed the complaint on the grounds that the author had not shown himself to be the authorized representative of his society. However, in Ivan Kitok v. Sweden (1988) the committee considered that an individual could not be the victim of a violation of self-determination on account of the right’s collective nature. In subsequent jurisprudence—in Chief Bernard Ominayak and Lubicon Lake Band v. Canada, E. P., et al. v. Columbia, A. B., et al. v. Italy and R. L., et al. v Canada—the committee considered that individuals could not bring petitions under Article 1. In 2000, however, in J. G. A. Diergaardt, et al. v. Namibia, Apirana Mahuika v. New Zealand, and Marie-Hélène Gillot v. France, the committee allowed indirect consideration of self-determination as an element in the interpretation of rights in Articles 25, 26 and 27.

A. B., et al. v. Italy. Communication No. 413/1990 (1990).
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This case involved the German-speaking population of South Tyrol, a territory annexed by Italy after World War I. The collective right to self-determination was not the subject of individual petition.
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A. D. v. Canada. Communication No. 78/1980 (1984).
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This communication included a complaint that the Mikmaq, an indigenous group, had been denied self-determination by the Canadian government. The Human Rights Committee dismissed the claim on the grounds that the author had not shown himself to be the authorized representative of his society.
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Apirana Mahuika, et al. v. New Zealand. Communication No. 547/1993 (2000).
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This complaint from a member of the Maori people of New Zealand continued the role of self-determination in the interpretation of other rights, in this case Article 27.
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Chief Bernard Ominayak and Lubicon Lake Band v. Canada. Communication No. 167/1984 (1990).
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The complaint was brought by the leader of a Canadian indigenous group. However, the committee considered that an individual could not bring a claim for violation of self-determination.
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E. P., et al. v. Columbia. Communication No. 318/1988 (1990).
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The communication was brought by members of an English-speaking community living in islands off Columbia. The committee again dismissed the entitlement of individuals to bring a claim for the violation of self-determination.
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Ivan Kitok v. Sweden. Communication No. 197/1985 (1988).
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The case concerned a Sami who claimed the right to farm reindeer. The committee observed that the individual could not claim to be the victim of a violation of self-determination, a collective right.
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J. G. A. Diergaardt, et al. v. Namibia. Communication No. 760/1997 (2000).
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This communication by a member of a Namibian minority community saw a limited engagement with self-determination in Article 1 as a right that may be relevant in the interpretation of individual rights in the International Covenant on Civil and Political Rights, specifically, Article 25 (right to vote and political participation), Article 26 (equality before the law) and Article 27 (rights of persons belonging to minorities).
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Marie-Hélène Gillot v. France. Communication No. 932/2000 (2002).
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This case involving residents of New Caledonia saw self-determination used in the interpretation of Article 25.
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R. L., et al. v. Canada. Communication No. 358/1989 (1991).
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In this complaint by the Whispering Pines Indian Band, a Canadian indigenous group, self-determination again was not subject to individual petition.
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Frontier Dispute (Burkina Faso/Mali) 1986

The International Court of Justice’s judgment in Case Concerning the Frontier Dispute (Burkina Faso/Mali) did not directly involve self-determination, but the relationship of the right with the principle of uti possidetis, which upholds borders on independence, was considered in the case. This short comment, though, has been extremely influential and would subsequently become central to the reasoning of the Badinter Commission when dealing with the break-up of Yugoslavia. The case is the subject of Naldi 1987.

“Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali): Judgment of 22 December 1986.” ICJ Reports (1986): 554–651.
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Self-determination did not play a central role in this case, appearing in a comment of one paragraph on the Organization of African Unity’s policy on uti possidetis. The court considered that while self-determination appeared to clash with uti possidetis superficially, the principle was interpreted in light of the need of African states to consolidate their independence and avoid fratricidal conflict.
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Naldi, Gino J. “The Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali): Uti Possidetis in an African Perspective.” International and Comparative Law Quarterly 36.4 (1987): 893–903.
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This is a short article that examines the implications for self-determination arising from the Burkina Faso/Mali Case. The author looks, in particular, at the relationship between self-determination and territorial integrity and the question of whether it is jus cogens.
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Opinions of the Yugoslav Arbitration “Badinter” Commission 1992

The Arbitration Commission of the Conference on Yugoslavia, or Badinter Commission, after its chairman Robert Badinter, was a consultative body established by the European Community, with the aim of delivering nonbinding opinions on legal aspects of the break-up of Yugoslavia. It delivered fifteen opinions altogether, covering legal aspects of the collapse of Yugoslavia, (characterized as the dissolution of a federal state), as well as recommendations on the recognition of new states that emerged from it. A key element in the recognition of new states was the principle of self-determination and its relationship with uti possidetis, which was found to uphold the borders of the Yugoslav republics. The commission’s opinions have generated considerable discussion within the academic literature. In the works cited in this section, Pellet 1992 and Shaw 1997 are more positive, while Craven 1995 and Ratner 1996 are more critical. Criticism has focused on whether many of their legal conclusions can be justified in international law, including the extension of uti possidetis from the colonial context, the extraction of an individual right to nationality from self-determination, and the application of a peremptory status to minority rights.

“Arbitration Commission of the Conference on Yugoslavia, Opinions No. 1, 2, and 3.” International Legal Materials 31 (1992): 1494–1500.
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Opinion No. 2 considered the application of self-determination in the dissolution of Yugoslavia, though it needs to be read with Opinions 1 and 3, which develop the legal principles in which the right operates. The commission found that self-determination must not involve changes to existing frontiers at the time of independence, under the principle of uti possidetis.
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Craven, Matthew C. R. “The European Community Arbitration Commission on Yugoslavia.” British Yearbook of International Law 66 (1995): 333–413.
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This is a lengthy, detailed article covering the formation and composition of the Badinter Commission and its opinions in relation to state recognition and self-determination, among other issues. Craven considers that the commission’s use of uti possidetis, as derived from the Frontier Dispute (Burkina Faso/Mali) case, was a novel and expansive use of the principle. The International Court had previously referred to it in the context of decolonization.
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Pellet, Alain. “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples.” European Journal of International Law 3 (1992): 178–185.
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A short article on self-determination in the Badinter opinions, but widely cited. The article provides a concise overview on self-determination, as handled by the Badinter Commission. Pellet considers that the commission has given self-determination a second breath by moving it from the colonial context and breaking down the distinction between people and minority.
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Ratner, Steven R. “Drawing a Better Line: Uti possidetis and the Borders of New States.” American Journal of International Law 90.4 (1996): 590–624.
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Ratner’s article is a broad and highly informative study of uti possidetis, tracing its history and development and the functions of borders. Ratner gives a good context for his consideration of the Badinter opinions. He believes the commission erred in applying uti possidetis as a universal principle from the Frontier Dispute (Burkina Faso/Mali) case.
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Shaw, Malcolm N. “Peoples, Territorialism and Boundaries.” European Journal of International Law 8.3 (1997): 478–507.
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Shaw’s article is broad examination of self-determination and principles relating to boundaries. In this wider context, it also looks at the Badinter decisions, with Shaw taking a more positive line than Ratner, and arguing that the commission correctly derived from Burkina Faso/Mali a wider principle of uti possidetis not merely restricted to decolonization.
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Tatarstan 1993 and Chechnya 1995

The Tatarstan Case and The Chechnya Case are two cases by the Russian Constitutional Court concerning self-determination. Both cases considered that the right of self-determination was restricted in international law by the principle of territorial integrity. The case is analyzed in Suksi 1997.

“The Chechnya Case.” Statutes and Decisions: The Laws of the USSR and Its Successor States 31.5 (1995): 48–94.
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This case by the Second Russian Constitutional Court involved the constitutionality of Russian presidential edicts issued in the First Chechen War, though self-determination was a central issue in the case. The court found that self-determination was restricted by the principle of territorial integrity.
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Suksi, Markku. “On Mechanisms of Decision-Making in the Creation (and the Re-Creation) of States—With Special Reference to the Relationship between the Right to Self-Determination, Sovereignty of the People, and the Pouvoir Constituant.” Tidsskrift for Rettsvitenskap 110 (1997): 426–459.
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The article includes an analysis of the Tatarstan case. Suksi considers that the court restricted Tatarstan’s self-determination through international law, and also notes the wider context of the political struggle between Tatar and Russian authorities.
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“The Tatarstan Case.” Statutes and Decisions: The Laws of the USSR and its Successor States 30.3 (1994): 32–48.
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This case by the First Russian Constitutional Court concerned the constitutionality of a declaration of state sovereignty by the Republic of Tatarstan and a referendum on independence. It found self-determination was restricted in international law by territorial integrity and respect for human rights.
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Katangese Peoples’ Congress v. Zaire, 1995

Katangese Peoples’ Congress v. Zaire was a complaint brought against Zaire (now Democratic Republic of Congo) under the African Convention on Human and Peoples’ Rights. The commission took a similar position to other bodies and held that self-determination had to be consistent with the sovereignty and territorial integrity of states. The decision is examined in Summers 2007 (cited under General Overviews).

African Commission on Human and Peoples’ Rights. “Katangese Peoples’ Congress v. Zaire.” In Documents of the African Commission on Human and Peoples’ Rights. Edited by Rachel Murray and Malcolm Evans, 389. Oxford: Hart, 2001.
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The African Commission on Human and Peoples’ Rights rejected the applicant’s claim for a right to independence. Self-determination could be exercised in different ways, but it had to be consistent with the sovereignty and territorial integrity of states. It also found no evidence or denial of participation in government or human rights violations to call territorial integrity into question.
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East Timor (Portugal v. Australia) 1995

In 1975, the Portuguese non-self-governing territory of East Timor was invaded and annexed by Indonesia. In 1989, Australia concluded the Timor Gap Treaty with Indonesia, dividing the seabed between East Timor and Australia and the oil resources expected therein. Portugal brought proceedings against Australia in the International Court of Justice for its conclusion of the treaty. The court, though, found that it did not have jurisdiction to decide on the merits of the case. The Case Concerning East Timor only deals briefly with self-determination, but is notable for finding it to be erga omnes.

“Case Concerning East Timor (Portugal v. Australia): Judgment of 30 June 1995.” ICJ Reports (1995): 90–106.
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The case was brought by Portugal against Australia for a treaty concluded with Indonesia dividing the seabed of its former colony, East Timor. The court, however, found that due to the Monetary Gold Rule it would not exercise jurisdiction without its consent. The case is significant, though, for the Court’s recognition that self-determination was a right erga omnes.
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Reference re Secession of Quebec, 1997

The Canadian Supreme Court’s decision in Reference re Secession of Quebec is probably the most extensive case on self-determination beyond the colonial context. The reference concerned a request by the Governor in Council on the legal situation in the event of a secession attempt by the Francophone Canadian province of Quebec. The case differs from the ICJ’s advisory opinion on Kosovo in 2010 in that it concerned whether a positive right to secede existed for Quebec, rather than negative restrictions on declaring independence. The court considered that international law expected that self-determination was exercised consistently with the territorial integrity of states. The case is examined in Bayefsky 2000, Oliver 1999, and Haljan 1999.

Bayefsky, Anne F. Self-Determination in International Law: Quebec and Lessons Learned. The Hague: Kluwer, 2000.
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Bayefsky provides a short introduction to this edited collection outlining the right of self-determination and context of the case. However, the main contents are the expert opinions from James Crawford, Luzius Wildhaber, George Abi-Saab, Thomas Franck, Allain Pellet, Malcolm Shaw, Christine Chinkin, Rosalyn Higgins, and Christian Tomuschat.
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Haljan, David P. “A Constitutional Duty to Negotiate Amendments: Reference Re Secession of Quebec.” International and Comparative Law Quarterly 48.2 (1999): 447–457.
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The article is a short but effective critical analysis of the Quebec case. Haljan takes issue, in particular, with the court’s findings on a duty to negotiate and the historical principles underpinning the Canadian constitution.
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Oliver, Peter. “Canada’s Two Solitudes: Constitutional and International Law in Reference re Secession of Quebec.” International Journal on Minority and Group Rights 6.1–2 (1999): 65–95.
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The article examines the Supreme Court’s decision, and also considers the political and constitutional background to the case.
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“Reference re Secession of Quebec.” 2 S.C.R. 217 (1998). Dominion Law Reports, 4th ser. 161 (1998): 386–449.
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The Canadian Supreme Court considered that self-determination had to be consistent with the territorial integrity of states. The right was normally exercised internally. External self-determination only arose in situations of colonial or alien domination, or, the court tentatively noted, if a people within a state had been denied internal self-determination. Quebec did not fall into those situations.
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Wall in Occupied Palestinian Territory Advisory Opinion, 2004

The ICJ’s advisory opinion Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory is significant for its recognition of self-determination beyond the situation of an obvious non-self-governing territory. The court, though, did not specify exactly what category Palestinian self-determination fell into. Damrosch and Oxman 2005, Gareau 2005, Orakhelashvili 2006, and Scobbie 2005 examine the opinion and its context.

Damrosch, Lori Fisler, and Bernard H. Oxman, eds. “Agora: ICJ Advisory Opinion on Construction of a Wall in Occupied Palestinian Territory.” American Journal of International Law 99 (2005): 1–141.
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This agora by the American Journal of International Law brings together commentary on the Wall opinion from a range of international lawyers. Self-determination, however, only features in some of the articles. Notable contributions in this regard are by Geoffrey R. Watson, Michla Pomerance, Richard A. Falk, and Ardi Imseis
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Gareau, Jean-François. “Shouting at the Wall: Self-Determination and the Legal Consequences of the Construction of a Wall in Occupied Palestinian Territory.” Leiden Journal of International Law 18 (2005): 489–521.
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The article is the most extensive one focusing on self-determination in the Wall opinion. Gareau examines the court’s investigation of an essentially idiosyncratic right of Palestinian self-determination, which draws from the colonial context, but extends into a postcolonial right.
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“Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Advisory Opinion of 9 July 2004.” ICJ Reports (2004): 136–203.
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The advisory opinion concerned the legality of a barrier constructed by Israel in the occupied Palestinian territory of the West Bank. The court identified the Palestinians as a people entitled to self-determination. This right to self-determination had been violated by de facto annexation and demographic changes. These violations were considered to have erga omnes effects for other states.
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Orakhelashvili, Alexander. “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: Opinion and Reaction.” Journal of Conflict and Security Law 11.1 (2006): 119–139.
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Orakhelashvili examines self-determination fairly briefly, among a range of legal issues considered in the advisory opinion. He considers the identification of a right of Palestinian self-determination by the court innovative in applying the principle outside the colonial context.
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Scobbie, Iain. “Unchart(er)ed Waters? Consequences of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory for the Responsibility of the UN for Palestine.” European Journal of International Law 16 (2005): 941–961.
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The article includes consideration of the legal obligations that might flow from the court’s recognition of Palestinian self-determination. Scobbie finds such obligations abstract and detached, more an exhortation to action than a duty of precise content.
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Kosovo Advisory Opinion, 2010

The Kosovo Advisory Opinion (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo) concerned the legality of a declaration of independence by Kosovo authorities in 2008. The ICJ limited itself to a narrow interpretation of the question, looking purely at whether the declaration of independence was prohibited, rather than whether there was a positive right to secede, as examined in Reference re Secession of Quebec. The court found that there was no prohibition on making a unilateral declaration of independence in international law. While the opinion has been criticized for its very limited engagement with international law surrounding secession, written statements and oral proceedings provide a wealth of state practice on the issue. The opinions and its context are examined in Weller 2011, Vidmar 2011, Kohen and Del Mar 2011, Peters 2011, and Summers 2011.

“Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo: Advisory Opinion of 22 July 2010.” ICJ Reports (2010).
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The advisory opinion concerned the legality of a unilateral declaration of independence by authorities in Kosovo in 2008. The ICJ limited itself to a narrow interpretation of the question, looking purely at whether the declaration of independence was prohibited, rather than whether there was a positive right to secede. The court found that there was no such prohibition.
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Kohen, Marcelo G., and Katherine Del Mar. “The Kosovo Advisory Opinion and UNSCR 1244 (1999): A Declaration of ‘Independence from International Law?’” Leiden Journal of International Law 24.1 (2011): 109–126.
DOI: 10.1017/S0922156510000634Save Citation »Export Citation »E-mail Citation »
This is an article from two members of Serbia’s legal team, who are critical of the court’s opinion, describing it as “unsettling.” The article focuses on perhaps the most controversial aspect of the opinion: the finding that the authors were not Provisional Institutions of Self-Government in Kosovo, and therefore their actions were not ultra vires under Security Council Resolution 1244. The authors lay out a case why this was incorrect.
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Peters, Anne. “Does Kosovo Lie in the Lotus-Land of Freedom.” Leiden Journal of International Law 24.1 (2011): 95–108.
DOI: 10.1017/S0922156510000622Save Citation »Export Citation »E-mail Citation »
The reference in the title is to the Lotus Principle, by which any action not prohibited in international law is permitted. The author focuses on this issue, which underpins the court’s findings, endorsing the criticisms made by Judge Simma that this position overlooks the nuances that can exist in terms of influencing international behavior.
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Summers, James, ed. Kosovo: A Precedent?: The Declaration of Independence, the Advisory Opinion and Implications for Statehood, Self-determination and Minority Rights. Leiden, The Netherlands: Martinus Nijhoff, 2011.
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This edited collection covers issues of Kosovo’s declaration of independence, minority rights and self-determination, and Kosovo as a precedent for other regions, in light of the International Court of Justice’s advisory opinion.
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Vidmar, Jure. “The Kosovo Advisory Opinion Scrutinized.” Leiden Journal of International Law 24.2 (2011): 355–383.
DOI: 10.1017/S0922156511000057Save Citation »Export Citation »E-mail Citation »
Vidmar engages in a lengthy analysis of the Kosovo Opinion, connecting it to a broader discussion of international law. He argues that the court’s findings on the neutrality of international law on unilateral declarations of independence would have been strengthened if it had discussed whether such a right existed.
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Weller, Marc. “Modesty Can Be a Virtue: Judicial Economy in the ICJ Kosovo Opinion?” Leiden Journal of International Law 24.1 (2011): 127–147.
DOI: 10.1017/S0922156510000646Save Citation »Export Citation »E-mail Citation »
Marc Weller has written extensively on Kosovo, and his article situates the opinion in its wider context. Acknowledging the critical reaction that the opinion provoked in many quarters, he argues that the ICJ exercised judicial economy with a short direct route that, nonetheless, offers important insights on statehood and secession.
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Legal Status

The legal status of self-determination encompasses three questions: whether self-determination is a principle or a right, whether it is jus cogens, and whether it is erga omnes. The first involves whether self-determination has the status of a principle or a right. As concepts, principles are generally seen to be flexible and relational. A principle may have some core content, but its effect will depend on the context in which it is applied and its relationship with other principles. A right carries moral weight and is held by a subject, in this case a people, and exercised against an object, in this case the state. In fact, self-determination is usually referred to as both, somewhat interchangeably. If self-determination is seen as a right, it is generally recognized to operate within a matrix of principles, such as sovereignty and territorial integrity. References to self-determination as a principle and a right can be found, in particular, in Cassese 1995 and Summers 2007 (both cited under General Overviews). The significance of self-determination as a principle is examined in Knop 2002 (cited under Conceptual Approaches). The second issue is whether self-determination is jus cogens, a peremptory or higher norm of international law that overrides normal legal rules and renders conflicting treaties void. There is some debate on this point in the literature—see, for example, the view of Cassese 1995 (cited under General Overviews), on the one hand, and Pomerance 1982 (cited under Conceptual Approaches) and Summers 2007 (cited under General Overviews), on the other. Three specific studies (Hannikainen 1988, Gros Espiell 1980, and International Law Commission 2001) support self-determination as jus cogens. Third is the question of whether self-determination is erga omnes, an obligation held toward the international community as a whole, in which every state can claim a legal interest. Its status as erga omnes was supported by the International Court of Justice in the East Timor (Portugal v. Australia) and Wall in Occupied Palestinian Territory decisions.

Gros Espiell, Héctor. The Right to Self-Determination: Implementation of United Nations Resolutions. UN Doc. E/CN.4/Sub.2/405/Rev.1. New York: United Nations, 1980.
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The UN special rapporteur’s report examines the legal status of the right of peoples under colonial and alien domination to self-determination. He also considers this right a peremptory norm.
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Hannikainen, Lauri. Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status. Helsinki: Finnish Lawyers’ Publishing Company, 1988.
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Hannikainen devotes a chapter in his book on peremptory norms to self-determination, and argues for its jus cogens status.
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International Law Commission. Commentary on Article 26, Compliance with Peremptory Norms of the Draft Articles on Responsibility of States for Internationally Wrongful Acts: Report of the International Law Commission on the Work of Its Fifty-Third Session (23 April-1 June and 2 July-10 August 2001). New York: International Law Commission, 2001.
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The International Law Commission’s commentary on Article 26 of the Articles on the Responsibility of States for Internationally Wrongful Acts identifies self-determination as jus cogens, though its authority (East Timor) appears to conflate the concept with erga omnes.
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Peoples

The concept of “people” in international law is famously undefined, though it is considered related to the equally ambiguous concept of “nation.” The issue of the definition of peoples is dealt with throughout the literature. Nonetheless, two works may be of interest. The first is United Nations Educational, Scientific and Cultural Organization (UNESCO)1989, which includes a description of a “people.” It refrains from considering this as a definition, but it is as good as any and comes from an authoritative source. The second is Zernatto 1944, a short article outlining the history of the word “nation” that provides some useful context. In the absence of any particular definition, the groups entitled to self-determination (or not) may be organized into three categories (bearing in mind the criticism of categories expressed by Knop 2002 (see Conceptual Approaches): colonial peoples, peoples under foreign domination or occupation, and minorities within states. A fourth category, the populations of states, is present in the literature without a specific focus on it.

United Nations Educational, Scientific and Cultural Organizaiton (UNESCO). International Meeting of Experts on Further Study of the Concept of the Rights of Peoples, UNESCO Paris, 27–30 November 1989: Final Report and Recommendations. UN Doc. SHS-89/CONF.602/7. Paris: UNESCO, 1989.
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This expert report by UNESCO provides an example of a description (not a definition) of a people that has often been referred to in the literature. The report characterizes a people by a series of objective features, together with subjective consciousness of being a people and institutions that express this identity. The description is typical of other definitions of peoples.
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Zernatto, Guido. “Nation: The History of a Word.” Review of Politics 6.3 (1944): 351–366.
DOI: 10.1017/S0034670500021331Save Citation »Export Citation »E-mail Citation »
The study of nationalism is really outside the scope of this bibliography. Nonetheless, this short article provides a sense of perspective on how “nation” or “natio” have been historically used.
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Colonial Trusteeship

This category refers primarily to the populations of non-self-governing territories under Chapter XI of the UN Charter, and trust territories under Chapter XII. It may also include mandate territories under Article 22 of the League of Nations Covenant 1919, which encompassed Namibia. The literature here can be divided into works on the mandate, non-self-governing, and trust systems themselves, and on the subsequent development of self-determination around that framework. The mandate system of the League of Nations and the trust and non-self-governing territory systems of the UN are systems of colonial rule, which legitimize foreign administration under the principle of trusteeship or the sacred trust. Three works may be of interest here: Smuts 1928 is a proposal for a mandate system, revealing the mentality behind this form of government. Hall 1948 and Toussaint 1956 are both book-length studies.

Hall, H. Duncan. Mandates, Dependencies and Trusteeship. London: Stevens & Sons, 1948.
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This book looks at the origins and development of the mandate and trusteeship systems.
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Smuts, J. C. “The League of Nations: A Practical Suggestion.” In The Drafting of the Covenant. Vol. 2. Edited by David Hunter Miller, 23–60. New York: G. P. Putnam’s Sons, 1928.
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Although he was drawing on earlier ideas, South African leader Jan Christian Smuts can be seen as one of the leading proponents behind the mandate system. Here he lays out the idea of mandates, revealing his own colonial mentality.
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Toussaint, Charmian Edwards. The Trusteeship System of the United Nations. New York: Praeger, 1956.
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The book traces the development of the trusteeship system from mandates, and the notion of accountability.
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Colonial Self-Determination

Literature on colonial self-determination can be divided into two types: general works on the legal principles surrounding this area of law, and works on particular colonial territories. The classic general work on the decolonization is Rupert’s Emerson’s From Empire to Nation (Emerson 1960), though this only covers part of that process. The principles and context of decolonization are also considered in Johnson 1967, Blay 1986, Jacobson 1967, and Franck and Hoffman 1975. The main cases on colonial self-determination are Western Sahara Advisory Opinion and Namibia Advisory Opinion, though neither provides solid guidance on problem cases of where self-determination is in dispute.

Blay, S. K. N. “Self-Determination versus Territorial Integrity in Decolonization.” New York University Journal of International Law and Politics 18 (1986): 441–472.
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The article considers the relationship between self-determination and territorial integrity: firstly in the context of the interpretation of Principle 6 of the Declaration on Colonial Independence; and secondly, looking at practice in a variety of disputed and problematic cases, including West Iran, East Timor, Belize, Western Sahara, and Gibraltar.
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Emerson, Rupert. From Empire to Nation: The Rise to Self-assertion of Asian and African Peoples. Cambridge, MA: Harvard University Press, 1960.
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Emerson analyzes decolonization from a Westernization theory for anticolonial nationalism, in which the leadership, at least, came from a Westernized elite. Emerson further develops his ideas in Self-Determination Revisited in the Era of Decolonization (Harvard University Center for International Affairs, Occasional Papers in International Affairs, No. 9, 1964). In this volume he focuses on self-determination’s failure in the new states.
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Franck, Thomas M., and Paul Hoffman. “The Right of Self-Determination in Very Small Places.” New York University Journal of International Law and Politics 8 (1975): 331–386.
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The article examines inconsistencies in the application of self-determination in small colonial territories. The very small places in question are Western Sahara, East Timor, Djibouti, Belize, Gibraltar, and the Falkland Islands.
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Jacobson, Harold Karan. “The United Nations and Colonialism: A Tentative Appraisal.” International Organization 16.1 (1967): 37–56.
DOI: 10.1017/S0020818300010808Save Citation »Export Citation »E-mail Citation »
The article gives a good account of the position and ideology of states in the UN during the decolonization process.
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Johnson, Harold S. Self-Determination within the Community of Nations. Leiden, The Netherlands: A. W. Sijthoff, 1967.
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The book provides an analysis of self-determination in the context of decolonization, with particular focus on the plebiscite as a means for exercising the right.
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Specific Territories

The general principles of colonial self-determination may also be seen in the context of particular territories. Here is a selection of the literature in this area detailing some problematic issues of decolonization. Each one covers a territory where self-determination was or is in dispute: Goa (Wright 1962), Western Sahara (Franck 1976), Belize (Maguire 1982), Walvis Bay (Berat 1990), Gibraltar (Fawcett 1967), the Falkland Islands (Malvinas) (Sanchez 1983, Franck 1983), and East Timor (Clark 1980).

Berat, Lynn. Walvis Bay: Decolonization and International Law. New Haven, CT: Yale University Press, 1990.
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The book is an examination of the legal issues surrounding Walvis Bay. The author outlines the historical background to the territory, but the main focus is on the legal basis for South Africa’s title, which Berat rejects.
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Clark, Roger S. “The ‘Decolonization’ of East Timor and the United Nations Norms on Self-Determination and Aggression.” Yale Journal of World Public Order 7.1 (1980): 2–44.
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Examines the Indonesian invasion of East Timor from perspectives of competing principles of self-determination and territorial integrity, and also addresses Indonesian arguments justifying its intervention.
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Fawcett, J. E. S. “Gibraltar: The Legal Issues.” International Affairs 43.2 (1967): 236–251.
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The article is somewhat dated but still an effective analysis of a legal issue that has not changed much over several decades.
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Franck, Thomas M. “The Stealing of the Sahara.” American Journal of International Law 70.4 (1976): 694–721.
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Franck uses a potent example to highlight inconsistencies in decolonization. The article describes the UN practice surrounding the decolonization of Western Sahara, briefly covering the ICJ’s 1975 advisory opinion (see Western Sahara Advisory Opinion). It also highlights the ineffectual international response and the complicity of some states in the Moroccan invasion of the territory that followed that opinion.
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Franck, Thomas M. “Dulce et Decorum Est: The Strategic Role of Legal Principles in the Falklands War.” American Journal of International Law 77.1 (1983): 109–124.
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Franck comments on international attitudes to the Falkland Islands in the wake of the Falklands War of 1982.
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Maguire, Robert J. “The Decolonization of Belize: Self-Determination v. Territorial Integrity.” Virginia Journal of International Law 22 (1982): 849–879.
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The article examines self-determination in the context of Belize, a British non-self-governing territory claimed by Guatemala. It also considers the legal status of the right in light of the principle of territorial integrity.
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Sanchez, Miguel Antonio. “Self-Determination and the Falkland Islands Dispute.” Columbia Journal of Transnational Law 21.3 (1983): 557–584.
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Examines the Falkland Islands in light of the competing principles of self-determination and territorial integrity. Sanchez also compares the islands with Gibraltar, Western Sahara, and Belize to understand UN practice.
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Wright, Quincy. “The Goa Incident.” American Journal of International Law 56.3 (1962): 617–632.
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The article provides the context and the legal arguments surrounding India’s 1961 invasion of the Portuguese colony of Goa.
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Peoples Under Foreign Domination or Occupation

Peoples under foreign domination or occupation is an ambiguous concept. Such peoples are outside the UN-defined colonial context, but in an analogous situation. Unlike the non-self-governing territory and General Assembly Resolution 1541 (XV), there is no criteria for identifying such situations. Nonetheless, the right of such peoples has been recognized by the ICJ in the Kosovo Advisory Opinion and by the Canadian Supreme Court in Reference re Secession of Quebec. The designation has been seen to include the concept of “racist regimes” applied to Southern Rhodesia and South Africa. It may also include states that have been occupied. However, the principal population falling into this category appears to be Palestinians. References to peoples under foreign domination or occupation are spread across the literature. There is no specific book or article on the concept as such, but a number of works on Palestinian self-determination are listed here: Bowen 1997, Watson 2000, and Cassese 1993 concern the context around the Oslo Accords, while Becker 1998, Radley 1978, and Cattan 1973 are more general.

Becker, Tal. “Self-Determination in Perspective: Palestinian Claims to Statehood and the Relativity of the Right to Self-Determination.” Israel Law Review 32 (1998): 301–354.
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The article is a lengthy and engaging article on self-determination, with an emphasis on the Palestinian context. Becker examines the general development of the right of self-determination, and then looks at Palestinian right of self-determination, concluding that it is a sui generis concept and a relative right, which exists alongside Jewish self-determination.
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Bowen, Stephen, ed. Human Rights, Self-determination and Political Change in the Occupied Palestinian Territories. The Hague, Martinus Nijhoff, 1997.
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This edited collection covers a variety of self-determination and human rights issues in relation to the occupied Palestinian territories, including the Oslo Framework, self-determination, the right’s relationship to women, and population transfers.
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Cassese, Antonio. “The Israel-PLO Agreement and Self-Determination.” European Journal of International Law 4.4 (1993): 564–571.
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A concise summary of the Israel-PLO Agreement, with the Declaration on Principles for Interim Self-Government annexed.
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Cattan, Henry. Palestine and International Law: The Legal Aspects of the Arab-Israeli Conflict. London: Longman, 1973.
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Somewhat dated, but, nonetheless, a good examination of the history and law of the Palestinian conflict, albeit from a stated pro-Palestinian position.
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Radley, Kurt René. “The Palestinian Refugees: The Right to Return in International Law.” American Journal of International Law 72.3 (1978): 586–614.
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Recounts the history of Palestinian refugees from the British withdrawal and creation of Israel. Radley examines the position of displaced Arabs in relation to the Geneva Conventions, and considers General Assembly resolutions on refugees, self-determination, and a Palestinian people.
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Watson, Geoffry R. The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements. Oxford: Oxford University Press, 2000.
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The Oslo Accords, though now defunct, provide the framework for Palestinian self-government, and thus for the institutions through which self-determination will most likely be exercised. This monograph provides an effective examination of these accords, as well as outlining the historical and legal background to them.
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Minorities within States

The question of whether minorities within states constitute peoples with a right of self-determination is a matter of some debate among states. Nonetheless, if minorities do have the right, it could be exercised through state structures, possibly involving autonomy, or it could involve independence from that state. This distinction is often characterized as the internal and external aspects of self-determination. This section will first look at the literature on this distinction, then on self-determination within state structures, and then secession.

Internal and External Self-Determination

The distinction between internal and external self-determination is generally considered to refer to forms of self-determination exercised within the political structures of a state, and those that lead to secession, respectively. References to internal and external aspects of self-determination are widespread in the literature, though often quite brief. There is little specialist literature on the distinction. The most extensive analysis of international law from this perspective is Cassese 1995 (see General Overviews). The most authoritative explanation of the concept can be found in the Canadian Supreme Court’s decision in Reference re Secession of Quebec. Nonetheless, three specific chapters on internal and external self-determination can be found in Tomuschat’s edited collection, Modern Law of Self-Determination (Tomuschat 1993).

Tomuschat, Christian, ed. Modern Law of Self-Determination. Dordrecht, The Netherlands: Martinus Nijhoff, 1993.
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See the chapters “Internal Self-Determination” (pp. 225–251), by Allan Rosas; “Internal Aspects of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?” (pp. 253–282), by Jean Salmon; and “The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism” (pp. 101–138), by Patrick Thornberry.
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Self-Determination within a State

One form that self-determination could take within a state is autonomy. There are a number of works discussing the idea of a right to autonomy, though support for autonomy as an international legal right seems to be limited. Autonomy generally is seen as a tool for achieving other rights. Hannum 1996 is the most significant monograph in this area. There are also edited collections such as Skurbaty 2005, Suksi 1998, and Weller and Metzger 2008, which bring together different perspectives on this issue.

Hannum, Hurst. Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights. Rev. ed. Philadelphia: University of Pennsylvania Press, 1996.
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This is a highly-regarded work addressing autonomy, though it is a bit dated. Hannum looks at autonomy first from its legal sources in self-determination, minority rights, indigenous rights, and human rights. He then considers its practical application. Autonomy, he concludes, is a tool for ensuring the protection of other rights and lies at the end of a progression of those rights.
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Skurbaty, Zelim A., ed. Beyond a One-Dimensional State: An Emerging Right to Autonomy? Leiden, The Netherlands: Martinus Nijhoff, 2005.
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This edited work is a wide-ranging study of an emerging right to autonomy, though the book as a whole casts doubt on whether such a right exists as part of positive international law. Autonomy is examined from legal, economic, and theoretical perspectives, and in case studies, which mostly focus on European arrangements, but which also cover Eritrea and South Asia.
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Suksi, Markku, ed. Autonomy: Applications and Implications. The Hague: Kluwer, 1998.
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This collection examines autonomy in international and constitutional law. Autonomy is analyzed conceptually and from the perspectives of self-determination, minority rights, and indigenous rights. Case studies focus on Italy, Britain, and Spain, as well as European institutions: the Organization for Security and Co-operation in Europe (OSCE), Council of Europe, and the European Union.
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Weller, Marc, and Barbara Metzger, eds. Settling Self-Determination Disputes. Leiden, The Netherlands: Martinus Nijhoff, 2008.
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This is an extensive edited collection that examines the theory of complex power-sharing. It also looks at the practice, with case studies from the former Soviet Union and Yugoslavia, as well as Northern Ireland, Mindanao, and Bougainville. The authors engage with the structures of power sharing and control of functions, such as education, policing, and security.
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Secession

Secession is the separation and independence of a piece of territory from a state, which continues in a rump form. New states may also be formed by the dissolution of a state. There is an extensive literature on secession, including general works as well as studies of particular countries and regions. The literature here is divided into sections on general works on secession and literature on particular situations. The position of international law on secession has been examined in Reference re Secession of Quebec, the Tatarstan and Chechnya cases (see Tatarstan 1993 and Chechnya 1995), Katangese Peoples’ Congress v. Zaire and the Kosovo Advisory Opinion. These cases support the conclusion that there is no general right to secession in international law. The literature here can be divided into general studies on secession in international law and specific studies of secession in particular territories. General works on secession are often concerned with the relationship between minority groups and states and the conditions under which secession may become possible under international law, or at least legitimate as a remedial measure. These works include Committee on the Elimination of Racial Discrimination 1996, Buccheit 1978, Heraclides 1991, Raič 2002, Buchanan 2003, Kohen 2006, Moore 1998 and Macedo and Buchanan 2003.

Buccheit, Lee C. Secession: The Legitimacy of Self-Determination. New Haven, CT: Yale University Press, 1978.
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A good monograph on secession, which first examines the concept and history of secession and then looks at case studies, including Katanga, Biafra, the Kurds, Somalia, the Nagas, and Bangladesh. The book’s basic contention is that acceptance of secessionist entities depends on their legitimacy.
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Buchanan, Allen E. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. Oxford: Oxford University Press, 2003.
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Buchanan expands on his earlier work on secession toward a broader examination of the moral foundations of international law. The argues for a principled human-rights-based approach to the problems of secession and considers such a right as only a remedy of last resort.
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Committee on the Elimination of Racial Discrimination. General Recommendation 21: The Right to Self-Determination (48th session, 1996). U.N. Doc. A/51/18, annex VIII at 125 (1996).
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The committee (CERD) approaches the issue of secession from the perspective of clarifying the position for ethnic or religious groups on this “alleged” right. It rejects a right to secession, but still recognizes an interplay of internal and external self-determination and discrimination.
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Heraclides, Alexis. The Self-Determination of Minorities in International Politics. London: Frank Cass, 1991.
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This effective account looks at the political considerations behind the success or failure of particular secessionist movements. It includes case studies of Katanga, Biafra, Bangladesh, Moro, and Eritrea.
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Kohen, Marcelo G., ed. Secession: International Law Perspectives. Cambridge, UK: Cambridge University Press, 2006.
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This edited work examines secession from a variety of perspectives and in regional contexts. It has been influential, with chapters from the collection often cited in proceedings before the ICJ in the Kosovo Advisory Opinion.
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Macedo, Stephen, and Allen E. Buchanan, eds. Secession and Self-Determination. New York: New York University Press, 2003.
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This edited collection provides contrasting perspectives from lawyers and political scientists on a right to secede.
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Moore, Margaret, ed. National Self-Determination and Secession. Oxford: Oxford University Press, 1998.
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This edited collection looks at secession from a largely theoretical perspective, examining self-determination’s relationship with the underlying doctrines of liberalism and nationalism.
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Raič, David. Statehood and the Law of Self-determination. The Hague: Kluwer, 2002.
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The work develops the hand-in-glove relationship between states and self-determination, drawing together a theory of secession based on the relationship between statehood, recognition of statehood, and the right of self-determination. Raič tests secessionist movements by the criteria for statehood, and by their merits under the right of self-determination, adopting a qualified secession doctrine that fits within ideas of remedial secession.
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Specific Territories

There is an extensive range of works covering specific self-determination and secessionist struggles within states. Below is a mere selection of such work covering some key state breakups or attempted secessions: Biafra (Kaladharan Nayar 1975), Bangladesh (International Commission of Jurists Secretariat 1972, Nanda 1972), Yugoslavia (Weller 1992, Radan 2002, Trbovich 2008), Kosovo (Weller 2009), and the former Soviet Union (Potier 2001).

International Commission of Jurists Secretariat. The Events in East Pakistan: A Legal Study. Geneva, Switzerland: Secretariat of the International Commission of Jurists, 1972.
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The report provides a detailed analysis of the conflict in Bangladesh and its origins, with considerable detail on the scope of the humanitarian catastrophe that ensued. It also examines the legal implications from the perspectives of international humanitarian law, international criminal law, the potential for humanitarian intervention, and self-determination.
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Kaladharan Nayar, M. G. “Self-Determination Beyond the Colonial Context: Biafra in Retrospect.” Texas International Law Journal 10.2 (1975): 321–345.
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The author outlines the background to the Biafra attempted secession and the fault lines that existed in Nigeria prior to this. He also considers the response of the OAU and UN. Despite the failure of Biafra’s separation in the face of lack of international support, he argues that self-determination is a continuing right that must exist within states and be respected within them, though this could be by internal self-determination.
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Nanda, Ved P. “Self-Determination in International Law: The Tragic Tale of Two Cities—Islamabad (West Pakistan) and Dacca (East Pakistan).” American Journal of International Law 66.2 (1972): 321–336.
DOI: 10.2307/2199032Save Citation »Export Citation »E-mail Citation »
The article makes a case for Bangladesh to be distinguished from other noncolonial separatist situations, to limit the application of territorial integrity. Nanda cites six distinctive factors: Bangladesh’s physical separation from Pakistan; linguistic and cultural differences; regional economic disparity; the electoral mandate for autonomy; genocide; and the benign impact of an independent Bangladesh.
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Potier, Tim. Conflict in Nagorno-Karabakh, Abkhazia and South Ossetia: A Legal Appraisal. The Hague: Kluwer, 2001.
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The author provides the factual background and a legal analysis on the separatist regions in Georgia and Azerbaijan. The sections on these regions could be more detailed, however, and this 2001 work has been partly overtaken by events. Nonetheless, this remains a good legal introduction to these post-Soviet conflicts.
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Radan, Peter. The Break-Up of Yugoslavia and International Law. London: Routledge, 2002.
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The book is an analysis of self-determination in the context of the disintegration of Yugoslavia. Radan starts with a general analysis of self-determination, uti possidetis, and minority rights. He then charts the legal history of Yugoslavia from its formation in 1918 to its breakup and the aftermath.
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Trbovich, Ana S. A Legal Geography of Yugoslavia’s Disintegration. Oxford: Oxford University Press, 2008.
DOI: 10.1093/acprof:oso/9780195333435.001.0001Save Citation »Export Citation »E-mail Citation »
The Serbian academic provides an extensive analysis of the breakup of Yugoslavia from the perspectives of self-determination and sovereignty. The book covers, in particular, the legal questions arising from the aftermath of the dissolution, including Kosovo, Bosnia, Eastern Slavonia, and Montenegro.
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Weller, Marc. “The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia.” American Journal of International Law 86 (1992): 568–607.
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Weller’s article provides an effective, concise examination of the break-up of Yugoslavia in its initial phase up to 1992, including the opinions of the Badinter Commission.
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Weller, Marc. Contested Statehood: Kosovo’s Struggle for Independence. Oxford: Oxford University Press, 2009.
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Weller’s book brings together the different phases in the crisis over Kosovo, which ultimately led to its contested statehood. In particular, he outlines Kosovo’s position within Yugoslavia, the insurgency in the territory, the Rambouillet negotiations, NATO intervention, and the final status negotiations.
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Relationship with Democratic Government

Self-determination draws not merely from nationalist ideas establishing nation-states, but also from liberalism and a democratic tradition. Self-determination has been seen as an expression of liberal democracy and the best right for promoting such a system of government. This has also been expressed through the internal/external dichotomy within self-determination, with internal self-determination being seen to incorporate a right to democratic government. Franck 1992 and Fox 2000 draw from self-determination as a source of democratic government.

Fox, Gregory H. “The Right to Political Participation in International Law.” In Democratic Governance and International Law. Edited by Gregory H. Fox and Brad R. Roth, 48–90. Cambridge, UK: Cambridge University Press, 2000.
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Fox looks at the sources of the standards for democratic governance and finds, in particular, considerable practice in international election monitoring in relation to acts of self-determination.
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Franck, Thomas M. “The Emerging Right to Democratic Governance.” American Journal of International Law 86.1 (1992): 46–91.
DOI: 10.2307/2203138Save Citation »Export Citation »E-mail Citation »
In the early 1990s the collapse of state communism injected a sense of real momentum into the spread of democratic government. Franck’s article is the leading expression of that period. His emerging right to democratic governance is conceived as an aspect of self-determination, which he describes as the oldest and best-established democratic entitlement.
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Relationship with the Use of Force

The relationship between self-determination and the use of force is an ambiguous one. The principal instruments that address the use of force by national liberation movements are the Declaration on Friendly Relations, General Assembly Resolution 2625 (XXV) of 1970 (see The Declaration on Principles of Friendly Relations) and the Definition of Aggression, General Assembly Resolution 3314 (XXIX) of 1974. Both instruments use deliberately ambiguous language that underscores profound disagreement between states on this issue. In addition, the position of combatants fighting in national liberation struggles is covered in the Additional Protocol I to the Geneva Conventions of 1977. Listed in this section is Cassese 1986, which covers different aspects of these relationships, as well as two monographs, Chadwick 1996 and Wilson 1988.

Cassese, Antonio, ed. The Current Legal Regulation of the Use of Force. Dordrecht, The Netherlands: Martinus Nijhoff, 1986.
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This edited collection contains a number of useful chapters on the relationship between self-determination and the use of force. See, in particular, the chapters by Bert V. A., Röling, “The 1974 U.N. Definition of Aggression” (pp. 413–421); Natalino Ronzitti, “Resort to Force in Wars on National Liberation” (pp. 319–353); and Antonio Tanca, “The Prohibition of Force in the U.N. Declaration on Friendly Relations of 1970” (pp. 397–412).
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Chadwick, Elizabeth. Self-Determination, Terrorism and the International Humanitarian Law of Armed Conflict. The Hague: Martinus Nijhoff, 1996.
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This book covers a variety of aspects of self-determination in relation to the use of force, including the legality of the use of force, the application of international humanitarian law, and difficulties in codifying the concept of terrorism.
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Wilson, Heather A. International Law and the Use of Force by National Liberation Movements. Oxford: Clarendon, 1988.
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The book provides a close look at the use of force by national liberation movements, focusing in particular on the provisions of UN resolutions and the Protocols to the Geneva Conventions.
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