Without a doubt, ever since its proclamation by the French Revolution (1789), the principle of self-determination has been the subject of a number of interpretations that have taken into account the history and conditions of peoples. If this right had appeared in Europe, it would have become universal on account of the contribution of every continent and of every State towards its redefinition, while taking care to preserving its initial components. Certainly, the people's right to self-determination, which is recognized by international law, constitutes one of the fundamental tenets of the United Nations Charter. Indeed, as soon as this principle came into existence, it started to be applied to a "human community" to whom one would recognize "the faculty of making choice of one's political belonging by way of reattachment to a State, of change of sovereignty or accession to political independence." Nevertheless, the question raised at this level concerns those cases wherein the principle of self-determination ought to be applied. In general, and according to the United Nations, recourse to this particular principle occurs when a certain nation is subject to some form of colonial domination, be it racist or foreign. No mention can be had, however, of the case wherein some peoples who are held to be a minority would claim rights that they would consider as having been violated by their own State. Hence, would the right of people to self-determination apply to their case?

In fact, to define the concept of the right of people to self-determination appears to be a priority should one wish to understand its mechanisms, objectives and limitations. While demonstrating the juridical consecration on this right, we are going to uncover its limitations along with the contradictory aspects that it holds in embryo in relation to the principles put forth by the Charter; namely, the inviolability of territorial integrity and non-interference.

I.    The Juridical Consecration of the Right of People to Self-Determination

The juridical consecration of the right of people to self-determination has, ever since the First World War, been a nodal point in many a text. This right was first set forth on January 11, 1918 under the rubric of the principle of nationality by President Wilson in his famous Fourteen Points, in these terms: "the other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomy development." Later on, the expression (the right of people to self-determination) would appear in the Versailles Treaty of June 28, 1919, following which it was used in the Atlantic Charter of August 14, 1941. Besides, the commission of jurists drafted a report which it submitted to the Society of Nations Council on September 5, 1920. In this report, one remarks the so-important place that the concept of the right of people to self-determination occupies in the political thought of the post-war period. Notwithstanding, the principle was not "inscribed within the framework of the Society of Nations (SDN), and (its) consecration (...) in a certain number of international treaties would not suffice for it to be considered as one of the positive rules of the rights of people."

Later on, the concept of ‘people' was introduced in the United Nations Charter, of June 26, 1945. The 1st Article in the Charter clearly demonstrates the role that the great international authorities have to assume for the express purpose of "developing peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and tak(ing) any other measures likely to consolidate peace in the world." Further down, Article 55 insists on the fact of "creating the conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on the respect for the principle of equal rights and self-determination of peoples." In its insistence on the respect for this right, the UN charter aimed essentially at implementing the process of decolonisation, and orienting the conduct of the peoples in question towards independence and the acquisition of their proper means of administration. Likewise, the international political climate that pervaded in the Sixties, the Seventies and even the Eighties strongly conditioned the UN approach to the right of people to self-determination.

Hence, in its Resolution 1514 (XV), of December 14, 1960, the General Assembly determined that "all peoples have the right to self-determination, by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." Likewise, and in the terms of Article 1 of the Pacts adopted on December 16, 1966 by the General Assembly of the United Nations, "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." In other terms, one could say that "the principle of self-determination irradiates peoples' rights. It is the "pivot" of collective rights. It entitles people to political, economic, cultural and social rights."

In accord with the Declaration on the principles of international law relative to friendly relations and cooperation between States, enshrined in Resolution 2625 (XXV), of October 24, 1970: "the establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people." According to this Resolution, "by virtue of the principle of equal rights and the self-determination of peoples enshrined in the United Nations Charter, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter." According to this text, emphasis is laid not only on the right of people to self-determination, but equally on the right of choice for a mode of development within the framework of a sovereign State.

Thus, all people have the right to determine their own political status "in all freedom and without foreign interference." In return, every State has to observe the respect for this right, which is only recognized for people that live under the yoke of colonial and racist regimes; or under foreign domination. How about the problem of secessions? Let us recall in this respect that the text of Resolution 2625 does not encourage "any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour." 

In addition, the right of people to self-determination carries in embryo a certain number of rights such as the right to political self-determination, economic self-determination and the sovereignty of people over their natural resources. The acquisition of such a right automatically, and progressively so, leads on to obtaining the other rights. Likewise, the contradiction running through the principle with respect to the other principles recognised by international law, expresses the ambiguity surrounding its application for cases that present all at the same time aspects that come under the entire set of principles, singular or combined alike. This said, in the case of multi-ethnic States, sovereign States, that are exposed to dismemberment, "the affirmation of the rights of people to self-determination is the most widespread form of interference"

II.    The limits of the right of people to self-determination

From the set of texts cited above, one notices the absence of definitions of such terms as "peoples", "nations," in addition to the indeterminacy of their component parts. The United Nations Charter would speak in global terms about "people" and "nations" without making it precise what is meant by these concepts. It is, however, quite difficult to come to clear and convincing definitions, for the problems attached to these concepts never cease to crop up, and to take by surprise through their content and complexity even the most specialised and most meticulous jurists and political scientists. The fact to be added here is that divergences of opinion are great in this respect; even when there is convergence or closeness between the concepts, their implementation remains difficult.

By way of an example, let us cite here the concept of "nation" as defined by Ernest Renan. For him, "a nation is a soul, a spiritual principle. Two things, which in truth are but one, constitute this soul or spiritual principle. One lies in the past, one in the present. One is the possession in common of a rich legacy of memories; the other is present-day consent, the desire to live together, the will to perpetuate the value of the heritage that one has received in an undivided form." He also wrote that "a nation is therefore a large-scale solidarity, constituted by the feeling of the sacrifices that one has made in the past and of those that one is prepared to make in the future. It presupposes a past; it is summarized, however, in the present by a tangible fact; namely, consent, the clearly expressed desire to continue a common life."

On the other hand, in parallel to this universal definition by Ernest Renan, Fichte has proposed a more organicist and ethnic-oriented one. For Fichte," a people is the sum total of human beings who live together in society, and who reproduce themselves on end, both spiritually and naturally, abiding as they do by a certain special law according to which the divine element runs through the whole. It is the community of this special law that, in the eternal world as well as in the temporal one, reunites this entire crowd into a natural and homogeneous entity. This law could in sum be understood at its depth: that is what we have remarked about the Germans that were considered as a primitive people."

Besides, one can cite other definitions of the concept of nation. Thus, for Ernest Gellner, "nations, akin to Statesare a matter of contingency, not of universal necessity. Neither nations nor States exist at all times and in all circumstances. Besides, nations and States do not emanate from the same contingency. Nationalism affirms that they both were destined for each other, that one without the other is incomplete, and constitutes a tragedy. But before becoming dedicated to each other, there had to be the emergence of one and of the other, and this emergence was nothing short of independence and contingency. Without a single doubt, the State emerged without the assistance of the nation, and in fact some nations have emerged without the blessing of the States to which they belong. One could, however, wonder if the normative idea of a nation, in its modern acceptation, has not presupposed the prior existence of the State." Having said that, the mutations that occurred towards the end of Twentieth Century in a number of States in Eastern Europe amply illustrate this scenario, and clearly show that the nation and the State can at any moment confront each another to the point of  tearing each other apart, to the point of breaking up.

However, the right of people to self-determination, which was strongly promoted during the waves of great independences, was closely tied in with the destiny of Third World peoples. A great majority of the latter lived under the yoke of colonialism, and struggled by all means at their disposal to achieve their independence. How many were the international authorities that received right at the heart of their premises the echoes of the claims made by people struggling for self-determination? And how many of these same authorities ended up by adopting decisions in favour of those subjugated people?

Yet, the implantation of this right by the UN has triggered a conflict with a host of other principles such as the non-recourse to violence, the peaceful settlement of differences, the sovereign equality of States and non-intervention, in addition to which is the fact that States have put in place a number of security systems that would help in opposing its application.

Indeed, certain provisions in the Charter could oppose the exercise of people's right to self-defence, a right which requires that force be utilised as a means of resistance. We cite in this respect, § 4 of Article 2, which stipulates that "all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations». It transpires from this one paragraph the obvious will of the United Nations to concentrate its efforts with a view to prohibiting whatever manoeuvre is likely to engender the dismemberment, so to speak, of a determinate State. The § 7 of the same Article adds that " the United Nations (cannot) intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter."  The sections relative to human rights no longer proceed from the internal sphere of the State, for the mere observation of a violation of human rights by a determinate State could constitute a legal as well a legitimate cause for intervention in its internal affairs.

Moreover, the General Assembly had declared that "any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations" and that "all States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non- interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity." This Resolution, be it noted, has added that non-autonomous territories could chose to become an independent State, to freely join forces with an independent State; or yet integrate with another independent State.

It is fitting to remember here that the movements of national liberation have found in Resolution 1514 a legal platform for their struggles against colonising States. The latter have, in turn, opposed the right of people to self- determination, along with those rights for territorial integrity, the political unity of States and border intangibility, all with a view to bringing to nought their projects for independence.

Nevertheless, the principle of self-determination does not apply to the case of the Western Sahara, for ever since the 1950's, Morocco has not ceased to claim the restitution of this territory. And since this country has been under the obligation of completing its territorial unity in a progressive manner, beginning with the recuperation of Tarfaya in 1958 and Ifni in 1962, it led the same combat, so to say, for the restitution of its province of the south. The regional stakes; however, had repercussions on the regular settlement; namely, the reintegration of the Sahara within Morocco. The question here is not one of a process of decolonisation of a territory, looking as it would for the realisation of its independence as a State, but of the completion of the territorial integrity of a State (Morocco), which formerly was subject to the presence of more than one coloniser on its territories, in the north and the south respectively.

Aicha Ouasmine
Professor-Researcher- Faculty of Law, Souissi-Rabat
 

 

02/10/2012