Introduction:
Self-determination, the mechanism by which a community of people, who typically have a certain degree of national consciousness, create their own state and choose their own. The notion of self-determination, as a political concept, first emerged as a by-product of the ideology of nationalism, to which the French and American revolutions gave early expression. The Allies embraced self-determination as a peace goal in World War I. In its Fourteen Points, the basic peace terms; U.S. Pres. Woodrow Wilson identified self-determination as an important goal for the post-war world; the result was the division into a number of new states.
Background
Following World War II, the promotion of self-determination among subject peoples became one of the UN’s chief objectives. The UN’s precursor, the League of Nations, had already accepted the principle, but the idea obtained its clearest declaration and approval in the UN.
The UN Charter makes two interpretations of the word self-determination simple. Firstly, it is said that a State has the right to self-determination in the sense that it has the right to freely choose its political, economic, social and cultural structures. Secondly, the right to self-determination is characterised as a people’s right to constitute themselves in a state or else freely decide the nature of their association with an established state. Both definitions are based on the Charter. With regard to dependent territories, the Charter notes that authorities should strive to ensure democratic stability and establish self-government.
Idea of Self Determination
In the idea of self-determination, there are essentially 2 dimensions, the external aspect and the internal aspect. Various evidence indicates that the principle of self-determination is a fundamental rule in international law. The principle is binding on parties even though they have not accepted it to tackle a particular issue or dispute. Self-determination is also the legal basis of decolonization laws. This includes the people’s rights to a free determination of the territory’s political status. In addition, the Declaration of Friendly Relations states that a territory that is not self-governing or a colony’s territory has gained a distinct distinction from the management status of its national territories. It is also illegal to use force to prohibit the exercise of colonial people’s self-determination. The principle of self-determination involves a state’s right to choose its political and legal status and to follow its own national, economic and cultural growth. Consequently, it does not place any legal duty on the State to maintain a democratic government. It essentially refers to the concept of state sovereign impartiality, and the prohibition of intervention has become part of international law already.
Self Determination in International Perspective
There has also been an acceptance of the principle of self-determination in numerous international documents. The International Court of Justice is one of the UN’s largest organisations and is headquartered in The Hague, the Netherlands. In the case relating to East Timor, also known as Portugal v Australia (1995), the International Court of Justice ruled that the right to self-determination is a right erga omnes which can be extended to all and is applicable against all. In the 1971 Namibia Advisory Opinion, the International Court of Justice also confirmed its advisory opinion that the principle of self-determination has acquired the status of customary international legislation. This was echoed in the 1975 Western Sahara event.
Australia is the only country in the United Nations that is against the indigenous community’s right to self-determination. Under Australia’s view, the freedom of self-determination is a continuous development of human rights that includes equal rights, the right of individuals to determine how they should be governed, the right to participate in political processes, and the right of individuals to make decisions and manage their own affairs. Article 25 of the ICCPR provides for this. Australia’s right to self-determination is not equated with the right to secession.
The indigenous community has confronted the Australian government since the 1970s and demanded their right to rule their own communities. The right to self-determination is permitted for indigenous peoples primarily in maintaining their culture, language and identity and having the ability to make decisions about their own affair. However, the government and most non-indigenous citizens don’t consent to this. This is because self-determination is seen as a challenge to national unity, as such rights which lead to the creation of “separate rights” or the secession of indigenous peoples. There are claims still that aboriginal people do not have the right of self-determination. However, in compliance with Article 3 of the Proposed Declaration on the Rights of Indigenous People, indigenous people do also hold the right to self-determination.
Regardless of any claims that might emerge regarding the indigenous people’s right to self-determination, they must be ignored. This is because it is explicitly mentioned that indigenous people should have the right to self-determination under the United Nations Human Rights Committee and the Committee on Economic, Social and Cultural Rights, and this includes the indigenous people in Australia. In the cases of Chief Bernard Ominayak and Lubicon Lake Band v Canada (1990) and Marshall (Mikmaq Tribal Society) (1991), the United Nations Human Rights Committee has stated that the indigenous people retain self-determination.
Popular Article 1(1) of the ICESCR and of the ICCPR provides that all have the right to self-determination and that right requires to decide their own political status and to follow their social, economic and cultural growth without interference. Australia is obligated to accept self-determination in compliance with the UN Charter. This means that the right will not form the basis for the independence of colonial indigenous peoples. Under the Draft Declaration on the Rights of Indigenous People, it is stated that all acts contrary to the United Nations Charter are prohibited. From here the Declaration of Principles of International Law of the United Nations General Assembly on Friendly Relations and Cooperation between States in accordance with the Charter of the United Nations also stipulates that the principle should not be interpreted as any action which encourages or authorises the destruction of all Or part of territorial sovereignty or national independence in accordance with equal rights and self-determination and possessed therefore by a government serving all the citizens of the territory. The assertion is also verified by the United Nations Human Rights Treaty. The Committee to Abolish Racial Discrimination has yet to accept the right of the people to declare secession from a state.
Position of Self Determination in India
India was among those countries that had insisted on adding to the International Bill of Human Rights, adopted by the United Nations in 1976, the recognition of the right of all peoples to self-determination to give legal substance to the rights set out in the Universal Declaration of Human Rights proclaimed by the General Assembly in 1948. By view of this right, people “decide freely on their political status and maintain their economic, social and cultural growth”
There wasn’t much debate as long as this idea was applicable to the colonial liberation struggle. For a colonial rule, the post-war era had lost its moral and political legitimacy. Then, in search of their right to self-determination, eventually colonial powers granted freedom to the colonies either voluntarily or after violent or non-violent struggles of the colonial populations. The right has until then been synonymous with democracy. But ethnic consciousness, inequitable development, the concentration of political power and other real or perceived grievances prompted some communities in many nations to pursue a distinct and separate identity, which in some cases asserts their right to self-determination. In the case of geographically and emotionally distant societies away from the centre of power, the phenomenon is particularly pronounced. But after decolonization, their defence of the right became a source of controversy, by constitutional or unconstitutional means, with or without the support of a foreign power.
Legal Status of the Right to Self Determination
Because of its ambiguous nature and the fact that it reflects a “definition of policy and morality” as IanBrownlie puts it until recently the majority of Western jurists did not accept this right as having legal substance. But changes in international law have contributed to reform, and this right is recognised by Western jurists as a legal norm today. For example, Brownlie notes that the generality of the right and its political character do not deny it legal substance. The shift in attitude towards the legal status of self-determination is primarily due to the UN’s work that has culminated in the establishment of the right and the recognition of its legal status. The vast number of documents dealing with the right one testifies to its value as a term. Its legal status persists as customary international law, as contract law or as a basic theory of law, although there is some debate concerning the latter part. The Colonial Declaration, as well as the Declaration of Good Ties, represent legal representations of the UN Charter on the basis of its jurisdiction and its evidence of opinio juris. In addition to being binding treaties, the two International Covenants also represent authoritative interpretations of certain provisions found in the UN Charter. In addition to these instruments dealing with the law in general, there are other UN resolutions dealing with particular self-determination situations.
Criticism
The right to self-determination is subject to many critiques. Clearly not all United Nation citizens are able to follow this definition. There is also no clear definition of self-determination which is an imprecise concept. It can also be risky to concentrate too much on self-determination as it would give rise to issues such as racism and people will not be able to coexist peacefully. It could also question the sovereignty of the territory in order to achieve peaceful self-determination. The UN should find effective ways to resolve these problems so as to avoid any disputes or violence.
Conclusion
For better or worse, self-determination is not going to vanish as a matter with the potential to generate significant tension in the future. But self-determination is not a new problem. Claims of self-determination didn’t begin with the end of the Cold War, as many conflicts in Africa and Asia remind us. But we must guard against the usurpation by both governments and disaffected groups of the slogan and the symbol of self-determination, and its use as a solely partisan political weapon. Since self-determination is such an emotional idea, “racial entrepreneurial” appeals are often likely to build an environment where violence and greater human rights abuses are more, rather than less, likely. That stance may be somewhat conservative, but I think it is a good stance on human rights. As the legendary Mick Jagger said: “You can’t always get what you want but if you try sometimes you could just find what you need”.
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