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CONFLICT BETWEEN STATE SOVEREIGNTY AND SELF-DETERMINATION
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CONFLICT BETWEEN STATE SOVEREIGNTY AND SELF-DETERMINATION
AUTHORED BY - JAHNAVI DAGA
Independence has always had the
potential to destabilising. The Government of Sri Lanka attempted to preserve
the state sovereignty and territorial integrity against the rebellious Tamil
who demanded to give effect to their right to self-determination and establish
a self-governing territory within Sri Lanka. This tussle resulted in the loss
of lives of over 65,000 people since 1984. In response to Bosnia’s declaration
of independence from Yugoslavia, about 250,000 civilians of Bosnia were killed
and over one million people were uprooted in a campaign of genocide which was
carried out by Serbia. The war of secession in Sudan, nearly killed two million
people[1].
This tension between the fundamental UN principles of state sovereignty and
self-determination have caused violence, terrorism, violation of human rights
principles and mass destruction. These sovereignty-based conflicts are
extremely difficult to resolve as statistics show that since 1965 only ten
sovereignty-based conflicts have been resolved by mutual agreement and only
five of these conflicts have been settled by granting independence to the
substate entity[2]. In
international law, the doctrine of self -determination provide autonomy to the
individuals, whereas the doctrine of state sovereignty provide autonomy to the
state. These rights create a conflict among the autonomy of the state and the
people within it. Though these principles are so fundamental to international
law, they can never exist together within the same borders. While seeking to
resolve such conflicts the existing legal principles and norms of the UN are
theoretical and often not relevant to the situation in practicality which
creates a huge gap. This paper aims to analyse the tension between the
principles of self-determination and state sovereignty in the UN aiming to
understand how this may have led to ambiguities in the UN policies. It will
also suggest some solutions to bridge this gap by approaching it with the
concept of earned sovereignty. This paper is divided into six parts. The
origins and the interpretations of the self-determination and the sovereignty
principles have to be discussed in order to understand the tension that exists
among these principles in Part I and Part II respectively. Part III of the
paper discusses the tension between these principles. Part IV of the paper
discusses traditional approaches to solve this tension among the theories. Part
V of the paper proposes a novel approach to tackle this tension between the
theories. Lastly, Part VI concludes the article.
I.
Sovereignty
The concept of sovereignty is divided
into two components which is internal and external sovereignty which was
introduced by Michael Keating. This distinction is important to be comprehend
the applicability of sovereignty especially when it is against the claims of
self-determination. The privilege of
states to maintain full authority within its borders is known as internal
sovereignty (Keating, 2001:14) while external sovereignty means that “a state
has no superiority in the international arena” (Keating, 201:12-13)[3].
The relationship between the people of the state and the government of the
state is related to the concept of self-determination. The people of the state
have the right to determine their governing body and are provided with the
representation needed in the state. As this right is only internally applicable
it does not have any international objections against it. The definition of
external sovereignty gives rise to the right of individuals in the state to
secede from their current state to formulate a new state or untie with a state
that already exists. The principles of territorial integrity and
non-intervention are also associated with the concept of sovereignty. No state
has the right to intervene in the matters of another state unless there is
massive suffering by the people. The concept of territorial integrity which is
related to sovereignty is mentioned in Article 2(4) [4]of
the UN Charter which states that all Members shall refrain from threatening or
using force against the territorial integrity or political independence of any
state, or in any other manner [5]which
is inconsistent with the purpose of United Nations in their international
dealings. It implies that a state has the right to remain with the same
territorial boundary and an act such as secession will jeopardise the oneness
and territory of the state. Through the principle of territorial integrity, the
UN is indirectly rejecting the idea of unilateral secession. In the earlier
nineteenth century, the link between sovereignty and territorial integrity
began to solidify with the emergence of the principle of uti possidetis
juris among the Latin American states[6].
This doctrine states that the “the territorial boundaries of post-colonial
states cannot alter the boundaries of the colonial territories that they
replaced[7]”.
As per this doctrine it can be inferred that colonies have the right to
become independent only when they are within the confines of their pre-existing
colonial boundaries[8]. However, the concept of external sovereignty
creates a possibility of secession, and the territorial integrity of a state is
threatened. Therefore, it can be seen that the UN places more importance on the
sovereignty of the state rather than the rights of the individuals since the
concept of territorial integrity has been defined more clearly.
II.
Self-Determination
The theory of democracy gave rise to
the principle of self-determination. In the Cold war, it was the democratic
side which prevailed. It had an impact on the idea that self-determination
should be expressed in a democratic form so as to choose the government which
best represents the people. Hence, the democratic theory of self-determination
came into existence. Statehood is often associated with the concept of
self-determination. Peter Malanczuk defines self-determination as “the right of
a peoples living in a territory to determine the political and legal status of
that territory—for example, by setting up a state of their own or choosing to
become part of another state”. There was a transformation in the understanding
of self-determination with reference to the UN due to the decolonization
process after the Second World. In Article 1(2) [9]of
the UN charter the concept of the right to self-determination was officially
included. The principle of self-determination was now concerned with
decolonization and laid down groundwork for the same in the 1960’s. Now, in the
contemporary world, there exists two aspects of self-determination which are
internal and external. The right of people to govern themselves without outside
influence is known as internal self-determination. The right of the peoples to
select their own political position and be independent of alien domination
which also includes the development of their independent state is known as
external self-determination. However, the only possibility of external
self-determination is not limited to independence. After the right to
self-determination was recognised in 1960s in international law it was regarded
as a right of all the colonial territories to become independent or choose any
other status the peoples freely choose. The indigenous or ethnic groups did not
have an opportunity to separate themselves and become independent of the
“peoples” of the territory as a whole. In the modern world, human rights norms
are the main basis on which the right of groups to govern themselves is based
on particularly the rights of ethnic and indigenous people. As of yet, no right
to secession has been recognised under international law however it is quite
possible that in the future a right to secession will be recognised as an
exceptional measure. This right is extremely important for the minority group
of people who have been facing gross injustice and violations of human rights
and repeatedly denied the right to participate in the government of the state
or if such a group has been denied participation in the government.
III.
Tension between state sovereignty and self-determination
As mentioned above, the UN has
accepted the principle of self-determination since the establishment of the UN
Charter. One of the main purposes of the UN institution which is mentioned in
the opening paragraph Article 1 Section 2 [10]
of the UN Charter is “to develop friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples,
and to take other appropriate measures to strengthen universal peace.”
Subsequently, the UN has also set out the principles of territorial integrity
and sovereignty in its Charter[11]
under Article 2(4) which states that its members are not permitted to threaten
or use force against any state’s territorial integrity or political
independence. The preamble of the Declaration on Principles of International
Law concerning Friendly Relations and Co-operation among States, the UN
reaffirmed its position following the Charter and stipulated that: [12]
“the basic importance of
sovereign equality and stressing that the purpose of the United Nations can be
implemented only if the States enjoy sovereignty equality and comply fully with
the requirements of this principle in their international relations” (UN,
1970).
Therefore, it can be concluded by
theses statements that UN accepts both the sovereignty principle and the self
determination principle of the Charter. These two doctrines are considered to
be the foundational principles of the UN.
The purpose of Resolution 1514 was to
make the process of decolonization and the application of self-determination
principles easier. The sovereignty principle with reference to the territorial
principle is appliable by the UN on the adoption of the uti possidetis doctrine mentioned in
Paragraph 6 of the Resolution 1514[13].
The doctrine of uti possidetis states that it “is a principle of customary international law that serves to preserve the
boundaries of colonies emerging as States”[14].
It can be inferred from this
application of the doctrine with respect to the principle of sovereignty that
the UN still prefers the sovereignty of the state to prevail over the principle
of self-determination. Therefore, it is understood that the UN will not accept
any unilateral secession in the name of self-determination right. There has
been a differentiation which has been mentioned in the doctrine of uti
possidetis between “unilateral secession” and the “nationalist” movement.
If the nationalist movement is permitted to self-determination under the UN
Charter and Resolution 1514, the UN will reject the second which is unilateral
succession. The tensions have heightened by the inclusion of the “non-self-governing
territory” according to the Resolution 1514. The Special Committee on
Decolonization which is established by the UN or “C-24” for short classifies
the non-self-governing territories. The territories which have not yet attained
a full measure of self-government are called the “non-self-governing
territories” under Chapter XI of the UN Charter. In 1946, the General Assembly
has listed these territories with the issuance of Resolution 66(1). Therefore,
when a self-determination claim is made in a territory which is not classifies
as a non-self-governing territory, there are tensions between sovereignty and
self-determination principles in the UN.
The Declaration on Principles of
International Law concerning Friendly Relations and Resolution 1541 also give
rise to the tensions between self-determination and sovereignty principles. An
effort to increase the scope of self-determination beyond the understanding of
decolonisation has been made by the Declaration by giving options to the people
as the implementation of their right to self-determination, however the
territorial integrity of the state is still taken into consideration. Nothing
shall be understood as the acceptance of the UN towards the act of unilateral
succession. The options of self-determination right to be considered have not
been mentioned in Resolution 1514. No clarification in the Resolution has been
provided for the for the phrase “emergence as a sovereign independent state”
which creates tension between self-determination and sovereignty principles.
These tensions create confusion in the UN when it refers to the practical
implications of the Declaration.
IV.
Solving Sovereignty Based Conflicts: Traditional Approach
The traditional approach to resolving
sovereignty related conflicts is classified into two parts, the “sovereignty
first” approach which deals with the principles of territorial integrity and
sovereignty or the “self-determination” first approach which is based upon
protection of human rights and self-determination[15].
The states who wish to protect their
territorial integrity or third-party states who fear that the international
stability may be undermined by the creation of too many new states which may
act as a precedent for the secessionist movements within their states may
approach the “sovereignty first” approach. Under this approach the basis of
international relations is sovereignty and is considered the reason for
political existence. The mediators who take the “sovereignty first” based
approach accommodate aggressor regimes.
The secessionist movements usually
rely upon the “self-determination first” approach and are received by states
who do not have a significant minority population. The principle that the right
to exercise self-government must be given to dependant peoples is the basis for
this approach which has evolved with respect to decolonisation. All
self-identified groups with a coherent identity and connection to a defined
territory are entitled to democratically determine their political destiny and
to be free of systematic persecution under this approach[16].
An autonomous province is created under the territory of the parent state
through which self-determination is achieved.
Both these approaches have failed to
provide satisfactory options for structuring peaceful resolutions in order to
solve sovereignty-based conflicts. These options often result in increased
violence and political tension and hence are not efficient.
V.
Earned Sovereignty: A new approach
Earned sovereignty is an emerging
conflict resolution approach which is intended to provide a mechanism for
resolving sovereignty- related disputes by allowing for the controlled transfer
of sovereign authority and functions from a state to a substate entity. In some
cases, the substate entity may gain sufficient sovereign authority and
functions to seek international recognition while in others it may gain only
limited authority to operate within a stable system of heightened autonomy[17].
This approach of Earned Sovereignty
aims to promote an equitable and acceptable power sharing arrangement which
will promote peaceful coexistence among a substate entity and a state. This
approach is not focused on promoting self-determination claims. This is a
non-violent approach to resolving conflicts by restoring security and
encouraging the development of democracy in war-torn areas.
Earned sovereignty has evolved as a
conflict resolution strategy that is inherently flexible and can be implemented
over a variety of time periods. This resolution strategy has three main
elements which are shared sovereignty, determination of a final status and
institution building[18]. Three
optional elements may be included in the process: phased sovereignty,
conditional sovereignty, and constrained sovereignty.[19]
These optional elements are included in this approach in order to cater to the
specific situations of conflict that arise and according to the particular
needs of the parties.
VI.
Conclusion
This article talks about the origin
of the principle of self-determination and State sovereignty. Then it
identifies the tensions that still exist among these two fundamental principles
of the UN. Then the two traditional approaches to resolve sovereignty-based
conflicts namely the “sovereignty first” approach and “self-determination
first” approach is examined. On examining these approaches, it is observed that
none of them were providing peaceful solutions. Therefore, a need for a new
approach to resolve sovereignty-based disputes is required which is known as
Earned sovereignty. This approach is found to be the most peaceful means to
resolve such conflicts. Hence, the UN must include such a type of conflict
resolution which promotes the development of the democracy.
[1] Paul R. Williams & Francesca
Jannotti Pecci, 'Earned Sovereignty: Bridging the Gap between Sovereignty and
Self-Determination' (2004) 40 Stan J Int'l L 347
[3] Syanthy Christianity, ‘Tensions
between Sovereignty and Self-Determination Principles in the UN: UN’s Ambiguity
in relation to the West Papua Self-Determination Claims’ (2020), https://www.diva-portal.org/smash/get/diva2:1472851/FULLTEXT02 accessed 13 April 2020
[4] UN Charter, Article 2(4)
[5] Territorial Integrity | The
Princeton Encyclopedia of Self, https://pesd.princeton.edu/node/686 accessed on 13 April 2022
[6] MacFarlane, Neil, and Natalie
Sabanadze. ‘Sovereignty and Self-Determination: Where Are We?’
(2013) International Journal 68, no. 4 609,627 < http://www.jstor.org/stable/24709362> accessed 13 April 2022
[7]
Christianity (n 3)
[8] ibid.
[9]
UN Charter (1945), Article 1(2).
[10] UN Charter (1945), Article 1
Section 2.
[11] UN Charter (1945), Article 2(4).
[12] Syanthy Christianity, ‘Tensions
between Sovereignty and Self-Determination Principles in the UN: UN’s Ambiguity
in relation to the West Papua Self-Determination Claims’ (2020), https://www.diva-portal.org/smash/get/diva2:1472851/FULLTEXT02 accessed 13 April 2020.
[15] Paul R. Williams & Francesca
Jannotti Pecci, 'Earned Sovereignty: Bridging the Gap between Sovereignty and
Self-Determination' (2004) 40 Stan J Int'l L 347
[16] Declaration of Principles of
International Law Concerning Friendly Relations 1970
[17] Paul R. Williams & Francesca
Jannotti Pecci, 'Earned Sovereignty: Bridging the Gap between Sovereignty and
Self-Determination' (2004) 40 Stan J Int'l L 347
[18]Paul R. Williams & Francesca
Jannotti Pecci, 'Earned Sovereignty: Bridging the Gap between Sovereignty and
Self-Determination' (2004) 40 Stan J Int'l L 347
Article Information
CONFLICT BETWEEN STATE SOVEREIGNTY AND SELF-DETERMINATION
Authors: JAHNAVI DAGA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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