Internal Self-Determination in International Law: A Critical Third-World Perspective

Internal Self-Determination in International Law: A Critical Third-World Perspective

Published online by Cambridge University Press:  03 July 2013Kalana SENARATNEShow author details

Abstract

Internal self-determination is a popular dimension of self-determination in international law. Often regarded as a right to democratic governance, its early promoters were largely Western states and international lawyers. A central observation made by such promoters was that the West favoured internal self-determination while the Third World did not. The present article will argue why this is a misconception and an outdated observation today. However, having argued so, the article proceeds to develop a Third World-oriented constructive critique of internal self-determination, suggesting why the Third World should nevertheless be more critically cautious and vigilant about the promotion of internal self-determination by Western actors as a distinct and concrete right in international law.


TypeArticlesInformationAsian Journal of International Law , Volume 3 , Issue 2 , July 2013 , pp. 305 – 339DOI: https://doi.org/10.1017/S2044251313000209[Opens in a new window]CopyrightCopyright © Asian Journal of International Law 2013 

I. Internal Self-Determination

The right to self-determination encapsulates a great ideal; the total freedom of peoples to choose any form of political, economic, social, and cultural destiny they desire. It became intensely popular during the period of decolonization in the second half of the twentieth century, as a right guaranteeing independence from colonial domination and exploitation, resulting in the creation of newly independent states.Footnote1

However, the West (most prominently, European states)Footnote2 came to suggest that the right to self-determination was composed of two distinct dimensions. As the Netherlands pointed out in 1952:

[The] idea of self-determination was a complex of ideas rather than a single concept. Thus the principle of internal self-determination, or self-determination on the national level, should be distinguished from that of external self-determination, or self-determination on the international level. The former was the right of a nation, already constituted as a State, to choose its form of government and to determine the policy it meant to pursue. The latter was the right of a group that considered itself a nation to form a State of its own.Footnote3

Interestingly, with the end of the decolonization process, the above understanding came to be revived by international lawyers who felt that the meaning of self-determination, beyond the colonial context, had to be of relevance to peoples within independent states. Rethinking self-determination, predominantly as a right to internal self-determination, soon became a dominant trend in international law literature. A number of mainstream international lawyers from the West began to promote this internal dimension.

Antonio Cassese, one of the leading proponents of this idea, wrote that the right to internal self-determination generally meant that the people of a sovereign state “can elect and keep the government of its choice”, or that ethnic, racial, or religious minority groups within a state have “a right not to be oppressed by the central government”.Footnote4 More concretely, it was a “right to authentic self-government, that is, the right of a people really and freely to choose its own political and economic regime”.Footnote5

Internal self-determination clearly referred to “the relationship between a people and ‘its own’ State or government”.Footnote6 It was considered to be primarily addressing “the right of the people (population) of an existing state to exert control over its ‘own’ constitution and government, in other words, its right to democracy”.Footnote7 According to Alan Rosas, internal self-determination had a number of distinct features: mainly of the “right of a people to determine its constitution (pouvoir constituant) including an autonomous status within the confines of a bigger State” and the “right of a people to govern, that is, to have a democratic system of government”.Footnote8 In broad terms, internal self-determination referred to “the right of peoples to choose their political status within a State, or of exercising a right of meaningful political participation”.Footnote9 Highlighting the internal aspects of self-determination was another way of conceiving self-determination as “an endogenous right protecting the rights of the people against its own government”.Footnote10

Certain judicial and human rights bodies came to accept this internal/external dichotomy of self-determination. As the Supreme Court of Canada, in its opinion concerning the secession of QuebecFootnote11 pointed out, the right to self-determination was “normally fulfilled” Footnote12 by people within a state through internal self-determination, i.e. the “people’s pursuit of its political, economic, social and cultural development within the framework of an existing state”.Footnote13 The Committee on the Elimination of Racial Discrimination noted in its General Recommendation XXI of 1996 that the right to self-determination had an “internal aspect, that is to say, the rights of all peoples to pursue freely their economic, social and cultural development without outside interference”.Footnote14

In short, internal self-determination came to be perceived as a right to democratic governance applicable to peoples within states. It was an “ongoing right” Footnote15 which was always applicable to peoples. It was to be distinguished from the right to external self-determination, i.e. the right to independence.

II. West (Internal), Third World (external)

In promoting internal self-determination in international law, international lawyers made an interesting observation. They argued that the West and the Third World (including socialist countries) understood self-determination differently; especially during the period of the Cold War. According to this argument, Western countries were considered to be the promoters of fundamental human rights and political freedom, and therefore promoters of internal self-determination. Third World and socialist countries, on the other hand, were considered to be promoters of external self-determination only. Cassese therefore noted that “to socialist countries, self-determination means only ‘external’ self-determination and only for peoples subject to colonial or racist rule or to foreign occupation”.Footnote16

In other words, internal self-determination was considered a notion which was greatly favoured by Western states as it embodied and reflected those ideals which were considered to be cherished by the West; such as democracy, political freedom, and human rights. This, however, was not the case with the Third World, which was mostly concerned about getting rid of colonial rule. For Third World states, self-determination was a concept that was essentially external in orientation. As Patrick Thornberry stated:

Internal self-determination is favoured by the Western States, reflecting their notions of democracy … For the States of the Third World, concerned with ridding themselves of Western domination, self-determination is externally oriented, and, in so far as it has an internal aspect, this is to do with majority rule (rule of the “whole people”) and the avoidance of rule by minorities, especially white minorities.Footnote17

It has also been argued that Western states, after showing some passivity, had progressed, unlike other states, to vigorously promote self-determination as a “universal doctrine, not essentially confined to colonial countries” and as a principle which “should primarily concern the internal structure of States”.Footnote18 Unsurprisingly then, “on a European level, respect of internal self-determination—including respect of human and minority rights, representative government, respect for the rule of law—has been elevated to a necessary condition before any right to external self-determination is recognized”.Footnote19

In sum, the West emerges as the promoters of internal self-determination, while the Third World emerges as the promoters of external self-determination. By implication, the Third World is seen to be less concerned about internal self-determination than the West.

This claim has gone untested over the years. It is a claim, I argue, which seems to be somewhat misconceived and outdated. But before examining this, it is necessary to first examine what the Western approaches to internal self-determination really amount to. Is it some unique form of understanding of the right to self-determination? Is there any dominant Western (or European) formula of internal self-determination? Does the promotion of internal self-determination mean that the West has given primary importance to self-determination over sovereignty? And does the West recognize a right to internal self-determination for minority groups?

III. Western Approaches to Internal Self-Determination

The greatest contribution of the West towards the contemporary understanding of self-determination lies in its promotion of internal self-determination by way of a reminder that self-determination ought to be applicable to peoples within independent states. This, undoubtedly, is useful. But the more one scrutinizes some of the Western approaches, the more one realizes that internal self-determination, according to Western thinking, has no clear or unified meaning, is subject to the principle of sovereignty, and is not a distinct right applicable to minority groups.

A. Diverse Meanings

First, while Western (mostly European) states have been more forthcoming than the rest of the world in terms of endorsing internal self-determination, this phrase is understood in diverse ways by different states. This becomes clear when examining the written submissions made by European states on the Unilateral Declaration of Independence (UDI) of Kosovo, before the International Court of Justice (ICJ). A number of countries—such as Albania, Cyprus, Denmark, Estonia, Finland, Germany, Ireland, the Netherlands, Romania, Russia, Serbia, Spain, and Switzerland in particular—recognized internal self-determination as a distinct dimension. But on closer scrutiny, it becomes clear that the phrase has been defined and expressed differently.

For instance, some states seemed comfortable in drawing the distinction between internal and external self-determination, and considered internal self-determination to be a right in international law. Albania stated that the “right to internal self-determination [of the Kosovar Albanians] was continuously denied by the Serb authorities after the unilateral revocation of autonomy in 1989”.Footnote20 What Albania attempted to point out was that the Kosovar Albanians had a distinct right in international law, in the form of a right to internal self-determination.

The Netherlands, having asserted the existence of two distinct dimensions of self-determination, stated that the absence of a government which represents the whole people belonging to a territory can be described as a “violation of the right to internal self-determination”.Footnote21 The Netherlands too articulated its position by reference to the language of “rights”, and understood internal self-determination as a right applicable to all the people within a state, enabling them to choose a representative and democratic government. Similarly Cyprus, while being critical of Kosovo’s UDI, did recognize the existence of a right to internal self-determination; it is a right for all the people living within the jurisdiction of a state.Footnote22

But there were other states which, while acknowledging the internal dimension of self-determination, seemed somewhat reluctant to consider it a right in international law. As Germany pointed out:

Self-determination may be exercised internally and externally. Internal self-determination means enjoying a degree of autonomy inside a larger entity, not leaving it altogether but, as a rule, deciding issues of local relevance on a local level. External self-determination means the right of a group freely to determine its own political and constitutional status on the international level.Footnote23

According to the above articulation, Germany seems to be more comfortable in considering external self-determination as a right in international law; while internal self-determination articulated a particular way of enjoying a measure of autonomy within the state.

Finland’s position exemplified a nuanced understanding of internal self-determination. It recognized that the right to self-determination of peoples can be realized in different ways; one such way being through autonomy within the state.Footnote24 But it did not seem to consider internal self-determination a distinct or separate right in international law. Instead, Finland uses the phrase in different contexts and ways, to refer to: the “absence of a meaningful prospect for a functioning internal self-determination regime [in Kosovo]”;Footnote25 the “[f]ailure by Serbian authorities to provide a credible framework for internal self-determination”;Footnote26 that “Kosovo could not expect to enjoy meaningful internal self-determination as part of the FRY [the former Federal Republic of Yugoslavia]”.Footnote27 Such references seem to suggest that Finland regarded internal self-determination as an expression of a political desire for autonomy.

Russia, on the other hand, recognized the importance of internal self-determination in a post-colonial world;Footnote28 whereas Slovakia did not refer to the phrase “internal self-determination” even when pointing out that the people of a state exercise “the right of self-determination through their participation in the governmental system of the state on a basis of equality”.Footnote29 For Slovakia, then, the phrase “internal self-determination” was of limited use to articulate its claims.

That internal self-determination can be understood in different ways is a positive feature in the Western approaches to internal self-determination. But this also means that the phrase can be used to articulate or promote different objectives and projects. As the above analysis suggests, internal self-determination (in the context of Kosovo) appeared as a right in international law which was applicable to Kosovar Albanians; a right which applied to all the people of Serbia as well; a dimension which was necessary to articulate the idea of democratic governance for some; but unnecessary for some others. At best, internal self-determination thereby became an expression of a political desire for democratic governance and/or autonomy.

B. Sovereignty vs. Internal Self-Determination

Second, the promotion of internal self-determination by Western states may give the impression that the West places greater importance on the self-determination of peoples than on state sovereignty. If not, the promotion of internal self-determination tends to lose its novelty or distinctive quality.

However, a careful analysis shows that the West, in promoting internal self-determination, has not given any primacy to the concept of internal self-determination over sovereignty. The best evidence is the Helsinki Final Act.Footnote30 Adopted in 1975 as the Final Act of the Conference on Security and Co-operation in Europe (CSCE), Footnote31 the 1975 Helsinki Final Act came to be regarded as an instrument that contained one of the most explicit references to the internal dimension of self-determination. As Principle VIII (Equal Rights and Self-Determination of Peoples) stated:

By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.Footnote32

The above formulation shows that self-determination is a principle applicable to all peoples always (i.e. self-determination is of a continuing nature), enabling them to determine their internal political status (not only the external) without being subjected to any form of external or outside interference. International lawyers considered this formulation to be an important development. In particular, the inclusion of the word “internal” within Principle VIII was considered to be a significant development of the scope and understanding of self-determination. Cassese noted that the Helsinki Final Act “gives a definition of self-determination that breaks new ground in international relations” by embodying “the idea that self-determination means a permanent possibility for a people to choose a new social or political regime, to adapt the social or political structure to new demands”.Footnote33

But this was only part of the story. The acknowledgement of this internal dimension of self-determination in Principle VIII needs to be viewed in a more holistic manner by taking note of certain other prominent principles contained in the same document. Most significantly, the first paragraph of Principle VIII on self-determination refers to the importance of realizing self-determination in conformity with the principle of territorial integrity of states. Furthermore, there is particular emphasis placed on sovereign equality, political independence, and territorial integrity of states throughout the document. Hence, the inclusion of strong assertions of those principles, in the form of Principle I (Sovereign Equality, Respect for the Rights Inherent in Sovereignty); Principle III (Inviolability of Frontiers); Principle IV (Territorial Integrity of States); and Principle VI (Non-Intervention in Internal Affairs).Footnote34

As Martti Koskenniemi has pointed out, there is here that “apparent paradox” Footnote35 is inherent and so visible in many instruments which refer to the principle of self-determination; a paradox that arises due to the apparent clash of the principles of self-determination and territorial integrity. The recognition of self-determination does not amount to anything spectacular in the final analysis, since the realization of self-determination is always meant to respect the territorial integrity of the existing state. Under these circumstances, reference to the internal dimension of self-determination simply becomes a reference to the broader democratic freedom guaranteed within the internal political framework of the state; an aspect that gets promoted even when recognizing the right to vote.

Also, what makes the 1975 Helsinki Final Act less groundbreaking than it was thought to be was that even when recognizing the internal dimension of self-determination, it still regarded the term “peoples” in the traditional sense; i.e. as a reference to all the people within a state. This was due to the fact that all the participants who gathered in Helsinki were sovereign and independent states.Footnote36 And one of the intentions of the participants were to exclude the category of “national minorities” from being included within the term “peoples”.Footnote37 In doing so, the participating states not only blocked the possibility of claims for a right to secession but also ensured that minorities did not have a specific claim for a right to internal self-determination in international law.

This, however, does not mean that the recognition of the internal dimension of self-determination was an insignificant feature. Rather, the argument here is that in the final analysis, the Western approach as embodied in the 1975 Helsinki Final Act places greater emphasis on the principle of sovereignty than on the principle of internal self-determination. This, as will be explained further below, does not seem to make the Western approach any more significant or groundbreaking than some of the Third World approaches to internal self-determination.

C. Internal Self-Determination and Minorities: A Toolbox

Third, given the above approach that places greater emphasis on sovereignty, it is not too difficult to understand why internal self-determination does not amount to a clear right applicable to minority groups within states.

While European states, in particular, have been at the forefront of promoting minority rights through numerous regional instruments while having also recognized the notion of local self-government (through the 1985 European Charter of Local Self-Government), Footnote38 internal self-determination for minority groups is regarded as a broad principle; an approach that is adopted in the work of High Commissioner on National Minorities (HCNM), established through the OSCE.Footnote39 In numerous statements, the holders of the office of HCNM have referred to the relevance of internal self-determination for minorities. For example, Max van der Stoel, a promoter of internal self-determination for minorities, stated in 1994 that since granting external self-determination to minority groups in the world would lead to the creation of around 2,000 states, greater emphasis should be placed on:

[I]nternal self-determination. In other words: what can be done within the framework of the existing states to ensure national minorities have their full identity and to enable them to live free and achieve their aims, especially in the cultural and educational fields. I think there is a great variety of possibilities here that have to be explored in order to solve the problem of national minorities in a satisfactory way.Footnote40

Within the broader notion of internal self-determination, there are a “variety of possibilities” for protecting and preserving minorities, or a “wide range of options which could to a very large degree meet the demands of various minorities, while the risk of bloody confrontation would be much smaller”.Footnote41

In other words, as the HCNM pointed out in 1999, internal self-determination was to be regarded as a “toolbox”: “The toolbox relating to internal rather than ‘external’ self-determination is full of interesting and relatively untested possibilities … This so-called internal self-determination can balance the seemingly antithetical concepts of self-determination and the maintenance of frontiers.”Footnote42

If so, Western (or European) approaches seem to recognize the relevance and applicability of internal self-determination for minority groups. But internal self-determination does not amount to a clear right to autonomy per se. Rather, internal self-determination refers to a “toolbox” from which various arrangements and solutions can be picked, considered, and applied, at different times, according to the given circumstances and context. This broad and general approach is the one advocated by experts on minority issues, as seen by the Lund Recommendations on the Effective Participation of National Minorities in Public Life of 1999.Footnote43 This is the prominent feature in the Western approaches to internal self-determination. As will be discussed below, this approach is not strikingly different from the approaches adopted by certain Third World states.

But it is also to be noted that even though the West has been more prominent in the matter of recognizing internal self-determination in international law, there is not much evidence to suggest that this has had a very positive impact on minority or substate groups within Europe. Recent studies suggest that nothing has changed concerning territorial autonomy in the OSCE region during the last decade: while no new territorial arrangements have been set up, nothing much has changed in the existing autonomy regimes. Therefore, it has been argued that the arrangements set out in the Lund Recommendations, in particular, have not been followed, and have had limited impact on the European states.Footnote44 One reason is the common perception shared by numerous Central and East European states that granting territorial autonomy to minority groups would result in a gradual slide towards secession.Footnote45

The above examination—which shows not only the different interpretations given to internal self-determination (hence the indeterminacy surrounding the concept) but also the emphasis placed by Western states on the principle of state sovereignty—should therefore add some perspective to the argument raised by certain scholars that the West has been the dominant promoter of internal self-determination in international law and that this promotion has been groundbreaking.

IV. Third World Approaches: Rectifying A Misconception

Before engaging in a Third World oriented critique of internal self-determination, it is necessary to rectify the view that Third World states do not favour internal self-determination. This today, is an outdated view.

But it needs to be stated at the outset that it is easy to reach the conclusion that the Third World favours only external self-determination. Therefore, Western scholars cannot be overly blamed for developing such an impression. Why so?

In principle, this is because Third World states and peoples, given the colonial subjugation they have had to undergo at the hands of many Western colonial powers, have often demanded the right to self-determination amounting to independence from colonial rule. And given this history, Third World states and their leaders often asserted (and continue to assert) the importance of preserving their sovereignty, thereby appearing to be strong and vociferous defenders of self-determination and non-intervention.Footnote46

This often comes across as an uncompromising stand. During colonial times, the demand of emerging Third World leaders was for total independence, articulated in such uncompromising terms that it became easy to read such demands as nothing less than demands for external self-determination. Like Kwame Nkrumah, the former leader of Ghana, once pointed out: “The goal of the national liberation movement is the realization of complete and unconditional independence.”Footnote47 In stating this, Nkrumah argued that political freedom referred to the “complete and absolute independence from the control of any foreign government”.Footnote48 No room seems to be left for the accommodation of a concept such as internal self-determination.

This perception is further strengthened when observing the way in which Third World states have promoted self-determination over the years. For example, during the 1955 Asian-African Conference held in Indonesia (famously known as the Bandung Conference, held in Bandung, Indonesia)Footnote49—wherein a number of Asian and African states gathered to discuss the common interests and problems affecting them—there was strong political commitment shown towards the recognition of the territorial integrity of states as a fundamental principle governing the relations of the non-aligned, Third World states, and the need to speedily end all forms and manifestations of colonialism applicable to dependent peoples.Footnote50

More significantly, the UN provided the ideal forum for the Third World to articulate and promote this demand for unconditional independence and the right to self-determination of peoples. The UN in a sense was transformed into a platform wherein self-determination came to be interpreted largely as external self-determination during the period of decolonization. This was most prominently seen in the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples.Footnote51 Its wording clearly reflects the external dimension of self-determination, wherein it recognized, inter alia, “the passionate yearning for freedom in all dependent peoples and the decisive role of such peoples in the attainment of their independence” and “that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory”. Significantly, it even asserted that: “Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.” For Western scholars then, the logic of the 1960 Colonial Declaration appeared to be rather simple: peoples had the right to self-determination; a “people” amounted to the entire population of the territory in question, and therefore self-determination was to be exercised by gaining independence from colonial rule.Footnote52

Furthermore, certain statements made by Third World (especially Asian) states affirm this impression.

For example, in the declaration appended when acceding to the Covenants on Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights (ICESCR), India showed particular concern about common Article 1 of those Covenants which refers to the right to self-determination applicable to all peoples. India’s declaration states that with reference to common Article 1:

[T]he Government of the Republic of India declares that the words “the right of self-determination” appearing in [this Article] apply only to the peoples under foreign domination and that these words do not apply to sovereign independent States or to a section of a people or nation—which is the essence of national integrity.Footnote53

The above seems to indicate India’s unwillingness to accept an understanding of the right to self-determination in international law beyond the colonial context. India thereby seems to be arguing that the right to self-determination is of no applicability in a post-colonial context.

A similarly rigid and uncompromising view of self-determination is adopted by China, which has been a strong advocate of state sovereignty and the preservation of territorial integrity. Its views on self-determination presented to the ICJ on the issue of KosovoFootnote54 provide clear evidence of this approach. China believed that the “principle of self-determination of peoples has specifically defined contents and scope of application”.Footnote55 Its application is “restricted to situations of colonial rule or foreign occupation” and cannot “undermine the sovereignty and territorial integrity of the State concerned”.Footnote56 More remarkably, China submitted that: “Even after colonial rule ended in the world, the scope of application of the principle of self-determination has not changed.”Footnote57

The underlying message is clear: nothing about self-determination—its nature, scope, or applicability—has changed in the decolonization era. It is a principle which has a fixed and specific meaning. Self-determination refers to the right to independence from colonial and foreign domination. There is no right to internal self-determination in international law, according to China’s understanding.

Apart from the above, a broad and general look at the Third World would suggest to the observer that the Third World does not place much emphasis on internal self-determination. Such a perception is created largely because of the fratricidal and violent ethnic and substate conflicts that the observer sees in the Third World. India is troubled by secessionist movements, and it has been reluctant to recognize the Kashmir issue as a case of self-determination.Footnote58 The grant of autonomy by China (in the case of Hong Kong, for example) is read not as a genuine grant of autonomy but as something imposed by China.Footnote59 More specifically, the formation of Bangladesh has been seen as an example of the failure, on the part of Pakistan, to guarantee internal self-determination to former East Pakistan; a result that arose after “all realistic options for the realisation of internal self-determination” had been exhausted.Footnote60

In short, the above analysis tends to give the impression that the Third World rejects the principle of internal self-determination in international law. But this impression—which is most commonly shared by the early (Western) promoters of the principle—seems to be misplaced due to a number of reasons, as discussed below.

A. Implicit and Explicit Acknowledgment

First, Third World states have understood self-determination to be a broad concept, which includes characteristics that are often associated with internal self-determination. Such states have therefore made implicit acknowledgement of the internal dimension of self-determination.

One of the best examples in this regard is India. Before the (then) UN Human Rights Commission in 2004, India stated that while it remained committed to the right to self-determination in international law, it recognized that this right is characterized by certain distinguishing features which included: “the right of the whole people to participate in freely held elections and govern themselves through a representative government;” “the right to collectively participate in all walks of national life and national decision-making through democratic institutions;” “the achievement of all fundamental rights on the basis of full equality and non-discrimination, including for religious, ethnic, linguistic and other minorities;” “the full exercise of fundamental freedoms, and respect for universal human rights norms and principles, including those of tolerance and pluralism;” and “the right to independence of action and opinion.”Footnote61

The above characteristics represent the features often associated with the broader principle of internal self-determination. It can be well stated that India therefore accepts the internal dimension of self-determination, even though India does not seem to label those characteristics as amounting to a specific right to internal self-determination. It would therefore be misleading to regard India as a rejectionist of the broader notion of, or the idea underlying, internal self-determination.Footnote62

On the other hand, some Third World states seem to have made explicit acknowledgment of the internal/external dimensions of self-determination. Egypt, while recognizing the distinction of internal and external self-determination made by the Canadian Supreme Court, has stated that “the right to internal self-determination, in accordance with national legislation, might be established in certain circumstances in line with human rights norms”.Footnote63 This is in addition to the fact that Third World states have, through their constitutions, recognized a broader notion of internal self-determination. The South African Constitution is one such example, wherein the right to self-determination as applicable to the entire population is recognized.Footnote64

B. Democratic Governance as a Political Commitment

Second, to claim that the Third World does not favour internal self-determination is misleading since the core ideal animating the principle of internal self-determination—democracy or democratic governance—is not a novel concept to the Third World.

Democracy was not necessarily a gift that the Third World inherited from Europe or the West. As John Keane’s study on democracy shows, the ideal did not originate in Europe. It was not a Greek invention. The belief that “democracy is or could be a universal Western value, a gift to the world, dies hard”.Footnote65 Interestingly, the “lamp of assembly-based democracy was first lit in the East”—lands that geographically correspond to contemporary Syria, Iraq, and Iran.Footnote66

Also, at the time European colonization began, there were well-established political, judicial, and governance systems based on democratic principles, which were suitably devised and maintained in a manner closer to the interests and practices of Third World societies. These democratic forms were unique to the cultural ethos of such peoples and their times. In Africa, for example, there was the Kikuyu system of governance, which incorporated a number of democratic and consultative practices, such as a government in the hands of councils of elders (kiama), and the holding of elections based on a system of rotation of generations in order to prevent despotic rule.Footnote67 Similarly, from India comes the great example of early modes of democratic and representative self-governance based, inter alia, on the principles and teachings of Buddhism. As even the Marquess of Zetland noted:

It is, indeed, to the Buddhist books that we have to turn for an account of the manner in which the affairs of these early examples of representative self-governing institutions were conducted. And it may come as a surprise to many to learn that in the Assemblies of the Buddhists in India two thousand years and more ago are to be found the rudiments of our own parliamentary practice of the present day.Footnote68

It is also countries such as India which provided early evidence of village-level devolution (the panchayat raj system)Footnote69 in Asia, whereas in countries such as Sri Lanka, there were similar systems of village-level representative governance, known as gansabhawas, dating back to 425 bc.Footnote70

Even today, the Third World has not abandoned the political commitment to promote democracy within their states and respective regions. Third World states are parties to international instruments such as the ICCPR, and have, through numerous regional instruments, sought to recognize the democratic ideal.Footnote71 While the actual realization of those democratic rights may be challenging and the record imperfect, the political commitment is such that the internal dimension of self-determination, amounting to democratic governance, has not been rejected.

C. Self-Determination and Minorities

Third, the normative contribution of the Third World in terms of recognizing the relevance of self-determination of minority groups has been a significant one. On the one hand, Third World countries have been explicit in recognizing the relevance of internal self-determination to minority groups. Interestingly, it was Iran which noted that:

[T]he right to self-determination for minorities is an internal one and means their entitlement to democracy and human rights and does not involve any right to secession. This means that the right of self-determination is not a principle of exclusion or separation but a principle of inclusion.Footnote72

More importantly, particular note needs to be taken of the African jurisprudence which shows the numerous ways in which African states and institutions have attempted to recognize the internal functioning and realization of self-determination through their own regional human rights instruments and human rights bodies.Footnote73 And some writers have even argued that “the contemporary African legal order has been promoting the respect for internal self-determination, which could be seen as an alternative to secession”.Footnote74 This has happened in numerous ways.

For example, the 1981 African Charter on Human and Peoples’ Rights is an instrument which recognizes the importance of the complete liberation of Africa from all forms of colonialism and discrimination, the achievement of which is considered to be a duty. It thereby guarantees the right to self-determination in Article 20:

1. All peoples shall have right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.

3. All peoples shall have the right to the assistance of the states parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.Footnote75

The African Charter adopts an interesting approach. In Article 20(1), it recognizes the existence of peoples within independent states who have a right to self-determination enabling them to freely pursue their political and other freedoms. It also recognizes the internal character of self-determination and the freedoms applicable to people within independent entities. In addition, as Article 20(2) points out, there are peoples under colonial domination to whom the right to freedom applies and who have a right to resort to recognized international means to achieve that right. This recognizes the importance of self-determination as a right to freedom from colonial rule; in other words, the external dimension of self-determination. Therefore, Article 20 recognizes both dimensions (internal and external) of self-determination.

Furthermore, the African Commission has, through a number of decisions, enumerated how self-determination applies to minority groups. In the Katangese Peoples’ Congress case, Footnote76 for example, the African Commission, while preserving the sovereignty and territorial integrity of Zaire, went on to hold that Katanga was obliged to exercise a variant of self-determination within the framework of the existing state and that there are different ways in which the right to self-determination can be realized. They included not only independence (which amounts to external self-determination), but also those ways which conform with internal modes of self-determination: ranging from self-government, through local government, to federalism, confederalism, unitarism, or other forms of relations which accord with the peoples’ wishes—while also recognizing the principles of sovereignty and territorial integrity.Footnote77 In stating this, the African Commission clearly recognized the complex and diverse manner in which self-determination becomes operational within the state.Footnote78

Also, the African Commission has held in the Kevin Mgwange Gunme v. Cameroon Footnote79 case that the people of southern Cameroon constituted a “people”, given especially the fact that they identified themselves “as a people with a separate and distinct identity”.Footnote80 And, while rejecting the right to independence of southern Cameroon, the African Commission did recognize that self-determination can be attained and realized through structures such as federalism, confederalism, and self-government.

In a more global context whereby there is a reluctance to accept a broad definition of the term “peoples”, the above jurisprudence is a useful contribution to the normative and further development of the right to self-determination in international law. That self-determination can be exercised through various forms ranging from federalism and confederalism to numerous other forms of self-government has been the general understanding of many Third World international lawyers as well.Footnote81

It may also be noted in this regard that whatever the defects and limitations may be, the Third World is also home to some of the complex substate political power-sharing arrangements in the world. The quasi-federal structure in India has been a much-celebrated example of political power-sharing within a democratic framework. The autonomy arrangements which have been implemented by China are still very complex mechanisms that provide for a significant measure of autonomy when compared with other autonomous arrangements in the world. Power-sharing in relation to the Province of Aceh (Indonesia) also provides a useful example.Footnote82 In particular, the 2005 Memorandum of Understanding signed between the Indonesian government and the Free Aceh Movement has been regarded as a document that was “focused on internal self-determination of the people of Aceh without using the institutional terminology of autonomy, self-government and self-determination to characterize the arrangement”.Footnote83 In addition to the above, complex substate structures are to be seen in Africa as well. One of the most interesting and complex cases in this regard is the autonomy arrangement concerning Zanzibar (Tanzania).Footnote84

D. Independence Was Not Only About External Self-Determination

Finally, it is necessary to remember that the demand for independence made during colonial times by Third World leaders was not simply a demand for external self-determination. To read the demand for independence from colonial rule as demand for external self-determination and nothing else reflects a very narrow view or understanding about the struggle for independence of the Third World.

It is of course true, as previously discussed, that Third World leaders had often demanded unconditional freedom and independence for their peoples from all forms of colonial and foreign domination during their colonial struggles. However, a closer examination will show that these demands could be easily read as demands for a broader and meaningful form of self-determination, which includes the internal dimension of self-determination. Independence from external control was meant to ensure independence internally. External self-determination in the form of independence was to guarantee the internal self-determination of the people, and internal self-determination so realized would now ensure that external self-determination is further strengthened. It may have been because of this obviousness, the intertwining of the external and internal dimensions, that the distinction between those two dimensions would have seemed artificial to Third World leaders since both dimensions had to be realized together, however difficult that task may have been.

Kwame Nkrumah was quoted in a previous section to show how strongly African leaders desired the right to unconditional independence from colonial rule. But his writings were also very clear about the fact that such unconditional independence was sought, not for the mere realization of external self-determination and the formation of an independent state, but also for the realization of democracy and greater freedoms for the people, internally. What Nkrumah and others rejected was not necessarily the concept of internal self-determination per se, but rather the concept of internal self-determination as promoted by colonial rulers in the form of trusteeship. This difference needs to be appreciated.

This becomes clear when Nkrumah argued that it was “incoherent nonsense to say that Britain or any other colonial power has the ‘good intention’ of developing her colonies for self-government and independence”.Footnote85 This internal form of self-determination that was to be exercised by the colonial powers, in terms of granting the colonized peoples a measure of political participation in colonial government and the affairs of public governance, was “half-way measures to keep them complacent and to throttle their aspiration for complete independence”.Footnote86 Furthermore, independence meant not only political freedom in the form of complete independence but also democratic freedoms of the people: i.e. “freedom from political tyranny and the establishment of a democracy in which sovereignty is vested in the broad masses of the people”, which included the freedom for social reconstruction; “the freedom from poverty and economic exploitation and the improvement of social and economic conditions of the people”, enabling them to achieve a better livelihood and the realization of their “right to life and happiness”.Footnote87 As the Declaration to the Colonial Peoples of the World, drafted by Nkrumah, stated:

We believe in the rights of all peoples to govern themselves … The peoples of the colonies must have the right to elect their own government, a government without restrictions from a foreign power … The long, long night is over. By fighting for trade union rights, the right to form co-operatives, freedom of the press, assembly, demonstration and strike; freedom to print and read the literature which is necessary for the education of the masses, you will be using the only means by which your liberties will be won and maintained.Footnote88

The above words can be easily passed off as a definition of the contemporary principle of internal self-determination. Therefore, it should become clear that the demand for political independence was also a demand for the realization of the internal aspects of self-determination and freedom. After independence, government policy was going to be of the people, for the people, by taking into account the interests and aspirations of the people.

Asian leaders struggling against colonialism were also passionate advocates of such forms of internal self-determination. Pundit Jawaharlal Nehru, who went on to become independent India’s first prime minister, made this quite clear in his writings during the period of India’s colonial struggle. For instance, writing about the difference between dominion status and independence, Nehru pointed out that the “former envisages the same old structure, with many bonds visible and invisible tying us to the British economic system; the latter gives us, or ought to give us, freedom to erect a new structure to suit our circumstances”.Footnote89 Therefore, independence was clearly the desired policy. But the demand for independence was not a demand to do whatever they desired; rather, it was a demand for democratic and constitutional government. For, as Nehru queried:

We had frequently condemned Fascism and Nazism but we were more intimately concerned with the imperialism that dominated over us. Was this imperialism to go? Did they recognise the independence of India and her right to frame her own constitution through a Constituent Assembly? Footnote90

The independence of India was then closely tied up with the right to establish her own constitutional government within a democratic framework. And, as Nehru went on to say, political independence was to be achieved for something greater too; a democratic and peaceful world order. It was not to seek isolation and engage in undemocratic practices, as the colonial powers who rushed to explain that self-determination had an internal dimension may have feared. Rather, there was even the readiness to “surrender part of that independence, in common with other countries, to a real international order”.Footnote91 All this was said and written at a time when leaders such as Mahatma Gandhi were strongly insisting on the re-establishment and development of “village republics” and the strengthening of local self-governance in India.Footnote92

Therefore, long before colonial rulers talked about internal self-determination, Asian or Third World leaders had understood what self-determination in the form of independence ought to mean. In short, the Third World understood what self-determination and independence meant, even though its understanding of independence, freedom, and self-determination as applicable to the peoples within the post-colonial state was not expressed in the now popular phrase “internal self-determination”.

V. Internal Self-Determination: A Third World Critique

The above analysis has so far shown, first, that the West has been explicit and prominent in its recognition and promotion of internal self-determination, and second, that Third World states also recognize the principle; some implicitly, others more explicitly. However, this article will proceed to argue that irrespective of whether or not the Third World recognizes internal self-determination in international law, there are reasons why a more cautious, vigilant, and critical approach towards the promotion of internal self-determination needs to be adopted.Footnote93 Such a critical approach is necessary, given the absence of any critical appreciation of internal self-determination, especially from a Third World perspective.

To be sure, the argument here is not that the Third World should now proceed to reject internal self-determination or its relevance in international law. Rather, what will be argued here is that the principle of internal self-determination and its development should be viewed with caution by the Third World. In other words, the Third World, while recognizing the importance of the concept of internal self-determination, should nevertheless be mindful of the limitations of it as well as the dangers that would result when the principle is promoted as a concrete right in international law, especially in a fractured and divisive geopolitical environment.

A. The Evolving Concept of Self-Determination and the Role of the Third World

Self-determination is an evolving concept. But internal self-determination, as has been promoted so far, is an essentially Western-oriented construction, and it is necessary to be mindful of who gets to construct, define, and promote different dimensions of self-determination in the form of principles or rights in international law. That the West seems to be always at the forefront of deciding what forms of self-determination get to be promoted in international law is problematic.

It is necessary to note that the Third World had to struggle hard to make self-determination applicable to itself from the early days of colonialism. In those times, self-determination was not a right that was seen to be applicable to colonized peoples. Rather, its application (by Western powers) was selective and suited their own political aspirations and interests. For example, the application of self-determination in the form of a plebiscite was not consistent.Footnote94 Colonial powers did their best to ensure that the results of such plebiscites were to their liking; in other words, plebiscites were held if the people of a given territory were not seen to be challenging the authority of the powers granting the plebiscite.Footnote95

The colonized Third World was not the initial beneficiary of self-determination. It was mainly Europe and the people of Europe who were initially billed to benefit from it. Woodrow Wilson advocated self-determination largely to assist his own political agenda of promoting liberalism and the idea of national government; his advocacy was meant to facilitate the creation of states within the fractured European empires (forming the basis of the 1919 Versailles peace settlement), and was not meant for the facilitation of independence (or even autonomy) for the peoples of the Third World. Self-determination, therefore, was not meant to be applied universally.Footnote96

As David Priestland notes, Wilson had no “real interest in colonial peoples and their rights”, and

regarded them as “underdeveloped peoples”, who would very slowly move towards independence, presided over by benign Westerners; he particularly admired British imperialist methods and, more generally, was a cultural Anglophile … Moreover, as an American Southerner, he shared many of the racist assumptions of his background.Footnote97

Self-determination, then, was to be applied to the “civilized” and was not for the benefit of the “uncivilized”. This insensitive attitude was also best captured in Jan Smuts’s statement: “[T]he German colonies in the Pacific and Africa are inhabited by barbarians, who not only cannot possibly govern themselves, but to whom it would be impracticable to apply the idea of self-determination in the European sense.”Footnote98

Such reasons partly explain why many states and leaders were reluctant to endorse self-determination as a “prescriptive for future conduct”,Footnote99 especially during the interwar years; the Covenant of the League of Nations being the best piece of evidence of the reluctance to recognize the importance of self-determination to colonized peoples. This ambivalence was further exhibited during the initial stages of the drafting of the UN Charter, resulting, for example, in the absence of any reference to self-determination in the Dumbarton Oaks Proposals;Footnote100 further confirming the view that self-determination, during its formative years, was a selectively applied principle.

Also, it is useful to remember that it was the Western group of states (including, in particular, the old colonial powers) which was initially opposed to the recognition of a distinct legal right to self-determination in the first place; especially during the time of the drafting of the International Covenants on Human Rights. Its recognition, which has now enabled many Western powers to proclaim the importance of the right to self-determination, is largely due to the efforts undertaken by the socialist and Third World states.Footnote101

Therefore, the Third World needs to take note that the promotion of self-determination and its different dimensions (in this case, the internal dimension) tends to be Western oriented. The implication here is that self-determination and its different dimensions tend to get promoted and recognized in a way that suits the geopolitical interests of Western powers. That these dimensions can be of use to the Third World is not denied. But it needs to be mentioned that Third World concerns hardly figure in the initial construction and promotion of these dimensions. What certain Third World states, in explicitly recognizing internal self-determination, have been unable to do is to critique this trend. In more practical terms, the Third World should seek to promote their own understandings of the self-determination concept and its different dimensions, without always having to accept and follow the strict dimensions that get to be defined and promoted by the West.

B. The Legacy of Colonialism and the Inadequacy of Internal Self-Determination

Internal self-determination is a principle that seeks to guarantee the internal independence and freedom of peoples. Therefore, the Third World needs to acknowledge the potential usefulness of such a principle. However, a question the Third World should raise is this: Is this form of internal independence (which is promoted by internal self-determination) adequate, given the colonial legacy it has had to inherit?

The Third World needs to be mindful of the relationship between a country’s internal policies, structure, and organization and the external world order.Footnote102 This means that Third World states should be aware of the broader international legal and institutional framework—the global order—when assessing the relevance of internal self-determination; more so, given the colonial legacy which the Third World had to inherit. In other words, the Third World needs to re-evaluate the relevance and meaning of internal self-determination in a global order which is often seen to be intruding on the domestic freedoms of the post-colonial Third World state.

Consider, for example, the aspect of economic freedom or sovereignty of Third World states. Colonialism was one of the principal forms of domination and subjugation of Third World peoples, which had a direct and adverse impact on the economic system and structure of the colonized state.Footnote103 As a consequence, it has been observed that:

[T]here is scarcely any Third World condition today which is not directly linked or traceable to some aspect of its colonial past … [C]olonialism was so all-embracing a phenomenon that there was no aspect of social, political or economic life which it left untouched and unaltered.Footnote104

This necessarily meant, from an economic perspective, that the mere attainment of political self-determination and independence did not guarantee the ability of Third World peoples to realize meaningful economic freedom within the state. Independence and freedom were not attainable just by the end of colonial rule. As Makau Mutua has noted, colonies that were able to overthrow the yoke of colonialism after World War II “quickly realized that political independence was largely illusory … Although now formally free, Third World states were still bonded—politically, legally, and economically—to the West”.Footnote105 In other words, the formally free Third World state was seen to be bonded to a global economic order which effectively diminished the economic sovereignty of Third World states and peoples. As critical scholars have pointed out, the global economic legal and institutional framework is largely dominated by the interests of the developed powers in Europe, or the Western world. The framework of international economic law,

as well as the more informal exercise of US led Western hegemonic economic power, has virtually completely delegitimized the Third World State as an independent initiator of a locally coherent and cohesive economic development. All development must be “outward”, export oriented towards the West.Footnote106

Consider also the critique of the global order developed by Third World international law scholars. It has been pointed out, for example, that the kind of globalization promoted by International Financial Institutions (IFI)—such as the World Bank, the World Trade Organization (WTO), and the International Monetary Fund (IMF)—has had adverse and debilitating consequences on Third World states and peoples.Footnote107 The inequalities generated due to globalization have taken place both within and between Third World states, further undermining the vulnerable and poor peoples and their economic freedoms.Footnote108 Free trade has its own share of advantages, but it is also noted that the “comparative advantage of colonies was coercively restructured”Footnote109 during the colonial era. Further impact on the freedoms of Third World states takes place through numerous policies and practices adopted by major capitalist powers in the field of trade, investment promotion, and monetary regulation; policies which have the effect of denying the “space for independent self-reliant development” of certain Third World countries.Footnote110 The “subordinate sovereignty” that results due to the above policies goes back to the era of colonialism, and can be seen to have been even further strengthened through the mandate system.Footnote111 In addition to this, the economic sovereignty of states has been eroded due to IFIs coming together to form what is considered to be an “imperial” or “nascent global state”.Footnote112

The struggle against this global economic framework has been a daunting one for the Third World.Footnote113 Also, economic development in the Third World developing countries cannot be ensured through the government of the concerned state alone.Footnote114 Therefore, while the primary duty of course lies with the government of the developing state, meaningful economic self-determination cannot be achieved without the active co-operation of the outside world.Footnote115 Third World states should ensure that there is not only a strong affirmation of political independence in their continuing struggle for greater freedom, but that there is also national and regional co-operation and reassertion.Footnote116 In the final analysis, while on paper the state has sovereignty to determine its own economic system—and in that sense has the freedom to decide internally—this is “de facto subject to the impact of the globalized economy”.Footnote117 In some instances, this means that certain states would need to adopt a different kind of economic structure which departs from the “liberal, free-market approach taken and advocated by industrialized States”.Footnote118 Also to be noted here is the impact of certain colonial policies such as the application of the principle of uti possidetis,Footnote119 which are considered to be having a continuing (adverse) impact on questions of legitimate governance in places such as Africa.Footnote120

Given the above, Third World states’ response to the Western promotion of internal self-determination should first be in the form of a gentle reminder of the impact of the colonial legacy, and the continuing intrusions into their freedom and sovereignty that take place due to the way in which the contemporary global order is constructed. It is the Third World’s responsibility to remind the West that the principle of internal self-determination will be of greater relevance only within a global economic and institutional order which is far more democratic and sensitive to Third World concerns. In other words, the serious practical limitations that hamper the effective realization of internal self-determination need to be emphasized by the Third World. The Third World should not engage in such a practice with the intention of denying a measure of internal self-determination to its own people. Rather, it should be done to remind the rest of the world community that principles such as internal self-determination, however laudable, are inadequate to bring about any considerable changes in the overall global framework.

C. Internal/External Self-Determination: The Divisive Agenda

Another objection that Third World countries do not seem to have raised concerns the rationale underlying the promotion of internal self-determination by certain Western powers. Initially, such promotion did not take place out of sympathy for the democratic freedoms of peoples within states. Rather, internal self-determination (and therefore the internal/external dichotomy of self-determination) was promoted as a divide-and-rule tactic, by an old colonial power, the Netherlands. The promotion of the internal/external dichotomy of self-determination took place in the context of the 1949 Roundtable Conference negotiations concerning the formation of an independent state of Indonesia. As Lee Buchheit has noted:

A very curious use of the terms “internal” and “external” self-determination was made in the 1949 Special Report of the United Nations Commission for Indonesia … During the negotiations, it was pointed out that the Provisional Constitution of the republic made reference only to an “internal right of self-determination,” which was “the right of populations to determine, by democratic procedure, the status which their respective territories shall occupy within the federal structure of the Republic of the United States of Indonesia”. The Netherlands delegation, however, claimed to attach particular importance to an “external right of self-determination”, that is, the right of populations to disassociate their respective territories from the Republic of the United States of Indonesia.Footnote121

The dichotomy of self-determination was thereby promoted as a divide-and-rule tactic by a colonial power. It was devised as an argument which gave the federalists within Indonesia the option to break away and if necessary to form a loose association with the Netherlands. In doing so, the split of self-determination helped certain groups to create and sustain divisions within the state.Footnote122 This was to enable different groups or federal units to argue for external self-determination in the form of independence. In this context, external self-determination came to be understood as a “right to secession”.Footnote123

In other words, creating the internal/external dichotomy of self-determination out of the broader concept of self-determination was part of a divisive plan undertaken by a colonial power. Constructing the language of internal self-determination was therefore a way in which the policy of separation was promoted. While this does not mean that internal self-determination will always get promoted as a divisive policy or tactic, it is still necessary to bear in mind this critical and forgotten historical detail in promoting the principle. It should help the Third World (or any state for that matter) to remember that the promotion of internal self-determination as a unifying and peaceful principle in a particular context could just end up having an entirely different and contrasting effect.

D. The Spectre of Pro-Democratic Intervention

International lawyers have argued that the ideal of democracy can be regarded as an emerging right in international law.Footnote124 With the end of the Cold War, democratic governance was seen to be on its way “to becoming a global entitlement, one that increasingly will be promoted and protected by collective international processes”.Footnote125 Self-determination was regarded as the “historic root from which the democratic entitlement grew”.Footnote126 Self-determination and democracy were intertwined.

Interestingly, this linkage between self-determination and democracy is what the right to internal self-determination reintroduces in a more direct and definite fashion; a fact that becomes clear from the discussion in Section II of this article, wherein the right to internal self-determination was often regarded as a principle or right promoting the notion of democracy (or democratic governance).

Such a linkage can be useful for states, since the idea of self-determination has an essentially democratic component and internal self-determination thereby becomes a useful principle that reflects the larger democratic ideals and freedoms of peoples. Also, it becomes an argument that can be used to resist foreign occupation.Footnote127

But this same linkage can be problematic, since it also has the potential of becoming a convenient pretext for intervention. Therein lies the danger of considering internal self-determination and the notion of democratic governance to be synonymous in international law. In other words, the internal self-determination-democracy linkage once again opens up the spectre of pro-democratic intervention,Footnote128 the idea whereby the ideal of democracy is promoted within non-democratic states even through the unilateral use of force. It is a policy that has come to be promoted by powers such as the US.Footnote129 Through such a right to internal self-determination, the case for pro-democratic intervention receives an additional fillip; i.e. another legal argument that seeks to further justify or strengthen the case for intervention.

It is not the intention of this article to discuss the phenomenon of pro-democratic intervention in any great detail. The record of such intervention is in any case quite minor.Footnote130 Rather, it is thought necessary to point out why this spectre is not a wholly exaggerated or illusory one. This will be clear by revisiting an old debate that took place concerning the US invasion of Panama of 1989; an invasion that was largely considered to be a pro-democratic form of intervention. To be sure, the US did not make the legal argument that their intervention was based on the existence (and therefore the violation by Panama) of a right to democracy. Rather, the case was largely a political one.Footnote131 However, the debate that ensued shows that the reasons adduced to both justify and attack the intervention revolved around the question of whether the right to self-determination was to be regarded as a right to democracy or not. Note also that this debate took place during a time when the principle of internal self-determination was not as popular as it is today in the international legal literature.

During this debate, international lawyers such as Michael Reisman interpreted Article 2(4)Footnote132 of the UN Charter in a way that allowed intervention through the use of force if such intervention was meant for the “enhancement of the ongoing right of peoples to determine their own political destinies”.Footnote133 This was to be done, as Reisman went on to stress because it was believed that:

The basic policy of contemporary international law has been to maintain the political independence of territorial communities so that they can continue to express their desire for political community in a form appropriate to them … Each application of Article 2(4) must enhance opportunities for ongoing self-determination.Footnote134

Here, self-determination is linked with the notion of democracy and popular rule. Interestingly, the above is an argument in favour of what is today considered to be a right to continuing (or as Reisman stated) ongoing self-determination: in contemporary terminology, the right to internal self-determination. Reisman does not refer to a specific right to internal self-determination, of course, but that reference can now be conveniently made given the manner in which internal self-determination has come to be defined.

The dangers posed by this marriage of self-determination and democracy, as well as the consideration of self-determination to be an ongoing right to democratic governance, led numerous other international lawyers to reject the pro-democratic argument for intervention. Arguing against the “Reisman thesis” was Oscar Schachter, Footnote135 who argued that the claim made by Reisman—that the enhancement of ongoing self-determination was the main purpose of international law—had no “appropriate legal and empirical foundation”.Footnote136 Similarly, it was the argument of Ved NandaFootnote137 that:

The majority of states does not view the right of self-determination to mean that there is a right to democratic representation or that the government must reflect the will of the majority of the people. The United States stands alone in making such a claim, and the community response at the United Nations and the OAS has appropriately been to reject the claim.Footnote138

Interestingly, the above argument of Nanda is, in contemporary terms, an argument against considering internal self-determination as a right to democratic governance (or political representation). Nanda’s argument is one that seeks to de-link the principle of self-determination and democracy, since the linkage could prove dangerous when pro-democratic intervention is deemed necessary by powerful actors or states.

So, regardless of the complexities attending such forms of intervention,Footnote139 what this article proposes is the need to be cautious about the self-determination-democracy link which the principle of internal self-determination quite conveniently creates. Contrary to what Nanda has stated above, the Third World’s explicit acceptance of this link would suggest that the US is not alone in making the claim that (internal) self-determination and democracy are synonymous.

The ICJ once noted in the Nicaragua case that: “The Court cannot contemplate the creation of a new rule opening up the right to intervention by one State against another on the ground that the latter has opted for some particular ideology or political system.”Footnote140 The Third World would need to ask the question: Might not a right to internal self-determination—perceived as a right to democratic governance—amount to a new rule which has every potential of opening up the right to intervention?

While recognizing that state practice does not seem to support a right to pro-democratic intervention in international law,Footnote141 Gray also notes that, with the end of the Cold War, arguments in favour of such intervention have not been abandoned. Now, the case for the use of force may not be based on the argument that the UN system has broken down (as was evident during the Cold War), but rather on the argument that such use of force is “designed to further purposes of the UN such as the protection of human rights”.Footnote142 The right to self-determination (as well as internal self-determination) falls within the broader category of human rights protection. It is as well then to note in this regard the warnings coming from critical Third World scholars. As B.S. Chimni recently noted, the mission of imperialist powers is to “bring democracy, the rule of law and good governance to others … Towards this end suitable international law concepts are adopted or adapted”.Footnote143

In short, the spectre of pro-democratic intervention becomes more prominent with the crystallization of a right to internal self-determination (as a guarantee of democracy). It is another way in which an international law concept (self-determination) gets “adopted or adapted” in a way that could facilitate imperialistic projects. Such a development would only go to further impede the effective realization of the self-determination of weaker states. There is every reason why the Third World should be far more circumspect in the matter of promoting, or accepting, a right to internal self-determination in international law.Footnote144

E. Problems with the Core of Internal Self-Determination: Democratic Governance

International law has been useful for the consolidation of colonial rule in the Third World. Far from being a language of independence and liberation, international law was also one of the primary languages by which oppression was promoted through colonial rule.Footnote145 It is therefore a language that has a significant hegemonic element.Footnote146

One such hegemonic dimension which becomes apparent from the historical origin of internal self-determination is that it provided colonial powers (especially the Netherlands) to state what type of independence was suitable to whom and how the state which was to become independent was to structure itself. This can be read as a subtle reintroduction of the old distinction between the civilized and the uncivilized; the re-emergence of the “old divisions between colonizer and colonized”.Footnote147 The language and rhetoric of internal self-determination, its use and application, should then at all times be viewed with great caution, given its inherent but hidden hegemonic character.

Another aspect that reintroduces this hegemonic element is democracy, the core element of internal self-determination. The concern arising here is: What does democratic governance mean, and can such an ideal be neatly expressed in the form of internal self-determination?

Democratic governance is often associated with a political system and framework which is essentially based on the right to vote and the holding of elections, enabling the participation of citizens in the public affairs of the state, as well as the promotion of human rights and the rule of law. It is often a framework that guarantees the minimum procedural conditions of democracy,Footnote148 such as the right to vote. However, it is problematic to consider such a broad concept or ideal as a concrete right, for a number of reasons.

First, the above understanding of democracy is inadequate, since what is thereby created is a low-intensity democratic framework which lacks the deepening of democracy and decision-making power through, for example, political power-sharing at the grassroots level. The promotion of such low-intensity democracies could be extremely useful for the perpetuation of policies that are inimical to the people without deeper democratic deliberation within the state.Footnote149 It has also been argued that the granting of legitimacy to low-intensity democracies “suits the interests of transnational capital which is keen to see the rule of law prevail without it translating into participatory rights of people”.Footnote150 Therefore, where internal self-determination is promoted as a right to democratic governance, questions do need to be raised as to what democratic governance (or democracy) means in the first place.

Second, the conventional definition of democratic governance gives greater prominence to civil and political rights over the economic rights and standards of peoples. It thereby fails to strike a balance in terms of accommodating both the political and economic dimensions of freedom applicable to peoples, amounting in turn to a narrow and formalistic definition that makes democracy less meaningful to a number of Third World states.Footnote151 Legitimacy is thereby granted to governments which simply hold elections, thereby ignoring those vital ingredients which help make democracy more meaningful than the mere casting of a vote. As Quashigah and Okafor have queried:

Of what use is a state that is merely formally democratic to a people who are, as it were, almost completely absorbed by fundamental problems such as the acceptability of the colonially-imposed state, the prevalence of poverty and disease, and the lack of decent shelter? Of what use is such a system if it does not lead to even the slightest concrete transformation in the material conditions in which they exist? Conversely … is an admittedly non-liberal regime such as that imposed by Lee Kuan Yew in Singapore necessarily illegitimate?Footnote152

To be sure, this is not an argument in support of the Asian values thesis about democracy and human rights.Footnote153 Rather, what is argued here is that the litmus test of a democracy cannot be the mere holding of periodic elections. The test of democracy has much to do about the economic dimension as well. But such a comprehensive understanding of democracy does not seem to be one that gets promoted by the West, as the discussion in the initial part of this article suggested. Assessing the economic dimension of democracy, for example, maybe more difficult than assessing whether a country held relatively free and fair elections. Yet this cannot be an excuse for partial and narrow definitions of the term “democratic governance” in international law. Therefore, even though the Third World has made a political commitment to respect democracy through elections, it is still necessary for Third World states to maintain that its conception of democracy is broader, and is one that cannot be limited to the aspect of elections alone.

Third, all definitions of democracy or democratic governance which fail to take note of the aspect of international democracy need to be viewed with suspicion. The nature of the internal structure of democracy and freedoms enjoyed by the people is influenced also by the kind of framework within which the broader international legal, political, economic, and institutional framework is created. As discussed earlier in this article, the absence of democracy externally—that is, in the international decision-making and governance process—has an impact on the measure and extent to which democracy and freedoms can be realized internally. And a definition which does not take into account the dimension of international democracy always has the danger of lending “undue credence to the idea that national democracy alone can suffice”.Footnote154 The Third World, given the colonial legacy it has had to inherit, cannot fail to stress this aspect.

Fourth, and importantly, it is necessary to be mindful of the question: Who decides what democratic governance means? There is no authoritative body or state which can determine what it means in international law.Footnote155 And since power plays an immensely crucial and significant role in the creation of international rules and norms, and importantly, in shaping the content of those rules, all definitions which are made by a particular group of states representing a particular region or part of the world cannot be uncritically accepted. And for that broader dialogue to take place, a more level playing field should be created. This is very much similar to the point discussed earlier about Western constructions of self-determination which get promoted as principles and rules of international law while the Third World is seen to be playing the role of a passive spectator who adopts them without much critical deliberation.

In conclusion, any definition which fails to take note of the above factors cannot amount to a meaningful definition of democratic governance or democracy in international law. It is necessary for the Third World to argue that such inadequately defined terms cannot form the basis of any purported right in international law; in this case, as a right to internal self-determination. Also, no single model of democratic government—especially the liberal-democratic form of government, as promoted in Europe (or in the West)—can be considered to be superior to any other form of governance elsewhere. As Eric Hobsbawm stated, “the well being of countries does not depend on the presence or absence of any single brand of institutional arrangement, however morally commendable”.Footnote156 The mere failure of the Marxist-Leninist model of democracy need not mean that “other socialist systems” are excluded from the model of democracy: “One should not be mesmerized by a purely liberal concept of democracy based on a list of formal rights and institutional processes.”Footnote157

VI. Conclusion

The challenge before Third World states and international lawyers is a critical one. It lies in understanding internal self-determination as another expression of different political aspirations, and in constructively evaluating and critiquing how, and in what ways, internal self-determination is sought to be articulated and promoted by states and other actors in a volatile geopolitical context. A sustained commitment to a constructive critique of the concept of internal self-determination is necessary to ensure that it does not end up being another instrument in the hands of a few powerful states (of both the West and the Third World); an instrument which can be used to the detriment of less-powerful states and peoples.

As this article has sought to show, what has been promoted by the West as a principle or right to internal self-determination seems to have been uncritically accepted and explicitly endorsed by certain members of the Third World. But it was considered necessary to alert the Third World to some of the critical limitations, concerns, and even dangers embedded in the concept of internal self-determination. It is through a continuing and constructive critique that a concept (or principle) such as internal self-determination in international law can be better understood and made more useful for the realization of freedoms of peoples, in both the Third World and the West.


Footnotes

*

PhD Candidate, Faculty of Law, University of Hong Kong. LL.B (London), LL.M. (London). This article is based on ongoing doctoral research work. I wish to thank my supervisor, Professor C.L. Lim, and the two anonymous reviewers, for their valuable comments on an earlier draft of this article.


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51

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56

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57

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58

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137

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Ibid., at 500 (footnotes omitted).

139

For a detailed discussion especially in the context of the Iraqi invasion (2003), see generally Driest, supra note 127.

140

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment, [1986] I.C.J. Rep. 14 at 133.

141

Gray, supra note 128 at 43Google Scholar

142

Ibid., at 42.

143

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