Lesson 11 - Apuntes 11 PDF

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Apuntes de Public International Law and international relations...

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LESSON 11. PEOPLES PRINCIPLE OF NATIONALITY  Origin of self-determination American Declaration of Independence, 1776 French Revolution, 1789  Two dimensions The government is responsible of the people. In that moment, the principle of selfdetermination had two dimensions: -

Internal. Consent of the governed people to make a government legitimate, this is the root of democracy.

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External. It refers to the legitimacy in the international community of sovereign state  Conceptual shift of the external dimension The first dimension is the based in the principle of nationality, which is only applicable to European minorities. The second dimension has developed with the time. The expression of the external selfdetermination has undergone a conceptual shift, first they talked about the principle of nationality, which had an ethnographic base, it was exclusively apply to the European minorities. Second, the concept of self-determination, with this name, was considered appropriate for the colonial territories, this was the main application of this principle. Finally, it is possible to perform and apply an universal concept of self-determination to all people and to all nations, process by which secessionist groups within a state can gain entry into international community by breaking away from the state structure, that they consider doesn’t represent them The third dimension is the application of the concept to all peoples, this means the applicable to secessionist groups within a State.

 I World War Appears for the first time after the 1ww, it was mentioned on the 14 point of president Wilson. Although it was not mention on the League of Nations Covenant. But its influence can be seen in various provision, for example in the provision about the mandates, the one that stablish the mandates system (mandates was introduce as a type of administration for colonies of the defeated powers during the 1ww).

 II World War After the 2ww, this system change, because the UN system was the trusteeship (administración fiduciaria), this principle was developed mainly after the 2ww, it took place during the decolonization process of the 1960s and 70s.

SELF-DETERMINATION  Charter of the UN, 1945. Articles 1.2 and 55 After the 2ww one of the purposes of the united nations, is to develop friendly relations among nations base on respect for the principle of equal rights and self-determination. The second international treaties that stablish the human rights that we can read in the universal declaration of human rights, is the International Covenant on Civil and Political Rights and International Covenant of the Economic, Social and Cultural Rights from 1966, both have the right to self-determination in their first article.  GA Resolutions We must point out these very important resolutions. The resolution 1514 (XV) talks about colonies. The resolution 2625 (XXV)mentions the right to self-determination that can be exercise by people of a colonies, or people from non-self-government territories.  Peoplehood We don’t have a definition for “people”, the doctrine has said that the criteria for peoplehood involves two kinds of elements, the first kind are objective elements, says that people share commonality. People doesn’t rely necessary on all of these elements, it may occur only some of them, they criteria also involve a subjective element, the members of the nations they consider themselves a unit, and they share the willingness to be a separate or distinct nation. If we have a group of people that believe on the subjective element, and also have some of the objective elements, we can speak about people, about a nation.  The nature of the right of self-determination. The author of our handbook says that the rule of customary rule within the practice of the UN, but it could be problematic to prove the opinio iuris element. However, another part of the foreign doctrine regards the right to self of determination as a preventory norm as a norm of ius cogens. This is a fundamental principal of international law, that doesn’t mean that it is not a norm of ius cogens neither a rule of international customary law, nobody discusses this nature. Require a free and genuine expression of the will of the people consent, that is why we define it as the principle whereby the political future of a colony or similar non independent territory is determined in accordance with the wishes of its inhabitants.

 Freely determine their political status Is not synonymous to the right of independence, this group of people feely determine their political status. So, independence is a possibility, normally the most frequently one, the nation could decide to integrate another state, for example, Alsace and Lorrain, both decide to be part of France. Another example is Sarre, was part of France and decided to became part of Germany. There are also various models of self-government or autonomy, for example they can became an associated state within the framework, for example Puerto Rico within USA, the Cook Island within New Zeeland; other examples are the federal states, and also regional autonomy like in Spain, Italy.  Controversy This principle has created controversy when its application is outside the colonial context. The right to self-determination is a fundamental legal principle, not a simple reaction to colonialism. The right of self-determination outside the traditional context collides with the principle of territorial integrity, this last one is also a fundamental legal principle of international law. The winner of this collision is not clear. Some writers (Spanish) denied the right of self-determination to people whose full participation on political and civil life is available. (Problem that created the recognition of Kosovo), International Law reach the conclusion that this unilateral declaration was not a violation of international law, so it was according to international law. The state practice since the 2ww has been to recognize the principle of selfdetermination only of peoples of nations that have succeeded in separating themselves from the controlling power, most of them by the use of force. However, does that fail have the right to self-determination. (THIS IS NOT LAW). Example. Bangladesh exercise its right to self-determination against Palestine, it was recognized by other states. Another example was Biafra, it lost the war against Nigeria, and the right of selfdetermination was not recognized by other countries because they lost the war against Nigeria. This is not fair. The need for effective expression of the views and aspirations of the people is more than evident that is needed. However, international law doesn’t adequate response, it only affirms the right of self-determination, but them there is not a regulation of how to apply the right of self-determination....