Internal Self-Determination in International Law a Critical Third-World Perspective

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Internal SelfDetermination in International Law: A Critical ThirdWorld Perspective

Kalana SENARATNE

Asian Journal of International Law / Volume 3 / Issue 02 / July 2013, pp 305 339DOI: 10.1017/S2044251313000209, Published online: 03 July 2013

Link to this article: http://journals.cambridge.org/abstract_S2044251313000209

How to cite this article:Kalana SENARATNE (2013). Internal SelfDetermination in International Law: A Critical ThirdWorld Perspective. Asian Journal of International Law, 3, pp 305339 doi:10.1017/S2044251313000209

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Asian Journal of International Law, 3 (2013), pp. 305–339

doi:10.1017/S2044251313000209

r Asian Journal of International Law, 2013

Internal Self-Determination in InternationalLaw: A Critical Third-World Perspective

Kalana SENARATNE*University of Hong Kong SAR, People’s Republic of [email protected]

AbstractInternal self-determination is a popular dimension of self-determination in internationallaw. Often regarded as a right to democratic governance, its early promoters were largelyWestern states and international lawyers. A central observation made by such promoterswas 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self-determination while the Third World did not.The present article will argue why this is a misconception and an outdated observationtoday. However, having argued so, the article proceeds to develop a Third World-orientedconstructive critique of internal self-determination, suggesting why the Third World shouldnevertheless be more critically cautious and vigilant about the promotion of internalself-determination by Western actors as a distinct and concrete right in international law.

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.1

However, the West (most prominently, European states)2 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

* PhD Candidate, Faculty of Law, University of Hong Kong. LL.B (London), LL.M. (London). Thisarticle 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.

1. Accordance with International Law of the Unilateral Declaration of Independence in Respect ofKosovo, Advisory Opinion, [2010] I.C.J. Rep. 1 at 29230.

2. In this article, by ‘‘West’’ I refer to a collection of states which includes Member States of the EU—including the UK—the US, and Canada. By ‘‘Third World’’ I am referring to those states—in Asia,Africa, and Latin America—which share a common history of being subjected to colonial and foreigndomination. I have also included China within the ‘‘Third World’’ category. While it is admitted thatthese terms lack clear and precise definitions, especially in contemporary times, reference to them is stilluseful for present purposes given the manner in which promoters of internal self-determination havecome to distinguish the two groups, as will be discussed in Section II of this article.

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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, alreadyconstituted as a State, to choose its form of government and to determine the policy itmeant to pursue. The latter was the right of a group which considered itself a nation toform a State of its own.3

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’’.4 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’’.5

Internal self-determination clearly referred to ‘‘the relationship between a people

and ‘its own’ State or government’’.6 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’’.7

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’’.8

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’’.9 Highlighting the internal aspects of self-determination was another

3. Netherlands, 7 GAOR (1952) 3rd Committee, 447th Meeting., (A/C.3/SR.447), para. 4; quoted inJames SUMMERS, Peoples and International Law: How Nationalism and Self-Determination Shapea Contemporary Law of Nations (Leiden/Boston: Martinus Nijhoff, 2007) at 188.

4. Antonio CASSESE, ‘‘Political Self-Determination: Old Concepts and New Developments’’ in AntonioCASSESE, ed., UN Law/Fundamental Rights: Two Topics in International Law (Alphen aan den Rijn:Sijthoff & Noordhoff, 1979), 137 at 137.

5. Antonio CASSESE, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: CambridgeUniversity Press, 1995) at 101.

6. Patrick THORNBERRY, ‘‘The Democratic or Internal Aspect of Self-Determination with SomeRemarks on Federalism’’ in Christian TOMUSCHAT, ed., Modern Law of Self-Determination(Dordrecht/Boston/London: Martinus Nijhoff, 1992), 101 at 101.

7. Alan ROSAS, ‘‘Internal Self-Determination’’ in Tomuschat, supra note 6, 225 at 232.

8. Ibid., at 230 (author’s emphasis, footnote omitted).

9. Sarah JOSEPH, Jenny SCHULTZ, and Melissa CASTAN, The International Covenant on Civil andPolitical Rights: Cases, Materials, and Commentary (Oxford: Oxford University Press, 2000) at 103

(footnote omitted).

306 as i a n jo u r n a l o f i n t e r n at i o n a l l aw



way of conceiving self-determination as ‘‘an endogenous right protecting the rights of

the people against its own government’’.10

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 Quebec11 pointed out, the right to self-determination was

‘‘normally fulfilled’’12 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’’.13 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’’.14

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’’15 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’’.16

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,

10. Jean SALMON, ‘‘Internal Aspects of the Right to Self-Determination: Towards a DemocraticLegitimacy Principle?’’ in Tomuschat, supra note 6, 253 at 265.

11. Reference re Secession of Quebec, Supreme Court of Canada, 161 Dominion Law Reports (1998),4th Series, at 385.

12. Ibid., at 437.

13. Ibid., at 438.

14. ‘‘Committee on the Elimination of Racial Discrimination, General Recommendation 21’’, online:University of Minnesota /http://www1.umn.edu/humanrts/gencomm/genrexxi.htmS.

15. Cassese, supra note 5 at 101.


i n t e r n a l s e l f - d e t e r m i n at i o n i n i n t e r n at i o n a l l aw 307



self-determination was a concept that was essentially external in orientation. As

Patrick Thornberry stated:

Internal self-determination is favoured by Western States, reflecting their notions ofdemocracy y For the States of the Third World, concerned with ridding themselves ofWestern domination, self-determination is externally oriented, and, in so far as it has aninternal aspect, this is to do with majority rule (rule of the ‘‘whole people’’) and theavoidance of rule by minorities, especially white minorities.17

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’’.18 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’’.19

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

17. Patrick THORNBERRY, International Law and the Rights of Minorities (Oxford: Clarendon Press,1991) at 217 (footnotes omitted); Patrick THORNBERRY, ‘‘Self-Determination, Minorities, HumanRights: A Review of International Instruments’’ (1989) 38 International and Comparative LawQuarterly 867 at 883 [Thornberry, ‘‘Self-Determination, Minorities, Human Rights’’].


19. Photini PAZARTZIS, ‘‘Secession and International Law: the European Dimension’’ in Marcelo G.KOHEN, ed., Secession: International Law Perspectives (Cambridge: Cambridge University Press,2006), 355 at 372.




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’’.20 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’’.21 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.22

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-determinationmeans enjoying a degree of autonomy inside a larger entity, not leaving it altogether but,

20. Written statement of the Republic of Albania, 14 April 2009, at 40 (emphasis added), online: ICJ/http://www.icj-cij.org/docket/files/141/15618.pdfS.

21. Written statement of the Kingdom of The Netherlands, 17 April 2009, at 9 (emphasis added), online:ICJ /http://www.icj-cij.org/docket/files/141/15652.pdfS.

22. Written statement of the Republic of Cyprus, 3 April 2009, at 3324, online: ICJ /http://www.icj-cij.org/docket/files/141/15609.pdfS. It is a right which ‘‘applies between the State and all itspopulation, giving people the right to choose the form of government and have access to constitutionalrights’’ (p. 35).




as a rule, deciding issues of local relevance on a local level. External self-determinationmeans the right of a group freely to determine its own political and constitutional statuson the international level.23

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.24

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]’’;25 the ‘‘[f]ailure by Serbian authorities to

provide a credible framework for internal self-determination’’;26 that ‘‘Kosovo could

not expect to enjoy meaningful internal self-determination as part of the FRY [the

former Federal Republic of Yugoslavia]’’.27 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;28 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’’.29 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.

23. Written statement of the Federal Republic of Germany, 15 April 2009, at 33 (emphasis added), online:ICJ /http://www.icj-cij.org/docket/files/141/15624.pdfS.

24. Written statement of Finland, 16 April 2009, at 3, online: ICJ /http://www.icj-cij.org/docket/files/141/15630.pdfS.

25. Ibid., at 4 (emphasis added).



28. Written statement by the Russian Federation, 16 April 2009, at 30, online: ICJ /http://www.icj-cij.org/docket/files/141/15628.pdfS.

29. Written statement of the Slovak Republic, 16 April 2009, para. 10, online: ICJ /http://www.icj-cij.org/docket/files/141/15626.pdfS.




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.30

Adopted in 1975 as the Final Act of the Conference on Security and Co-operation

in Europe (CSCE),31 the 1975 Helsinki Final Act came to be regarded as an instrument

which 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 peoplesalways have the right, in full freedom, to determine, when and as they wish, theirinternal and external political status, without external interference, and to pursue asthey wish their political, economic, social and cultural development.32

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’’.33

But this was only part of the story. The acknowledgment 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

30. Conference on Security and Co-operation in Europe Final Act, Helsinki 1975, online: OSCE /http://www.osce.org/mc/39501?download5trueS [1975 Helsinki Final Act].

31. The Conference on Security and Co-operation in Europe (CSCE) process has been regarded as ‘‘anengine of democratic change and a repository of democratic principles’’; Thornberry, supra note 6 at121 (footnote omitted). In 1994, the CSCE was renamed the ‘‘Organization for Security andCo-operation in Europe’’ (OSCE).

32. Principle VIII of the 1975 Helsinki Final Act, supra note 30 (emphasis added).

33. Cassese, supra note 4 at 152 (emphasis added).




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).34

As Martti Koskenniemi has pointed out, there is here that ‘‘apparent paradox’’35

inherent and so visible in many instruments which refer to the principle of self-

determination; a paradox which 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 which 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.36 And

one of the intentions of the participants was to exclude the category of ‘‘national

minorities’’ from being included within the term ‘‘peoples’’.37 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 in the forefront of promoting

minority rights through numerous regional instruments while having also recognized

34. See 1975 Helsinki Final Act, supra note 30.

35. Martti KOSKENNIEMI, ‘‘National Self-Determination Today: Problems of Legal Theory andPractice’’ (1994) 43 International and Comparative Law Quarterly 241 at 256.


37. Ibid., at 151.




the notion of local self-government (through the 1985 European Charter of Local

Self-Government),38 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.39 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 ofthe existing states to ensure national minorities their full identity and to enable them tolive free and achieve their aims, especially in the cultural and educational fields. I thinkthere is a great variety of possibilities here which have to be explored in order to solvethe problem of national minorities in a satisfactory way.40

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’’.41

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 y This so

called internal self-determination can balance the seemingly antithetical concepts of

self-determination and the maintenance of frontiers.’’42

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

38. European Charter of Local Self-Government, Strasbourg, 15.X.1985, online: Council of Europe/http://conventions.coe.int/Treaty/EN/Treaties/Html/122.htmS.

39. The HCNM acts mainly as a facilitator and mediator concerning problems relating to minorities. Onespecific category which receives the HCNM’s attention is the issue of the ‘‘political participation’’ ofminorities. In this regard, the HCNM is particularly attentive to the need for continuous dialoguebetween minority groups and governments. See generally John PACKER, ‘‘The OSCE HighCommissioner on National Minorities’’ in Gudmundur ALFREDSSON, Jonas GRIMHEDEN,Bertram G. RAMCHARAN, and Alfred de ZAYAS, eds., International Human Rights MonitoringMechanisms (The Hague/Boston/London: Martinus Nijhoff, 2001) at 641256.

40. See ‘‘High Commissioner on National Minorities: Speech by Max van der Stoel’’, 13 May 1994, online:OSCE /http://www.osce.org/hcnm/37259S.

41. Ibid.

42. ‘‘Early Warning and Early Action: Preventing Inter-Ethnic Conflict’’, 9 July 1999 (emphasis added),online: OSCE /http://www.osce.org/hcnm/32107S. For a more recent statement on the variousmodels available for minority participation, see ‘‘Rights for Peace: Promoting Minority Participation toAvert Conflicts’’, 4 October 2011, online: OSCE /http://www.osce.org/hcnm/83622S.




the Effective Participation of National Minorities in Public Life of 1999.43 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.44 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.45

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,

43. ‘‘The Lund Recommendations on the Effective Participation of National Minorities in Public Life &Explanatory Note’’, September 1999, online: OSCE /http://www.osce.org/hcnm/32240?download5trueS[Lund Recommendations]. See especially para. 19 at 11212, on ‘‘territorial arrangements’’.

44. Francesco PALERMO, ‘‘When the Lund Recommendations are Ignored. Effective Participation ofNational Minorities through Territorial Autonomy’’ (2009) 16 International Journal on Minority andGroup Rights 653 at 65425. As the author notes, however, this does not mean that the LundRecommendations are not useful as a set of expert guidelines.

45. Ibid., at 659.




thereby appearing to be strong and vociferous defenders of self-determination and

non-intervention.46

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. As 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.’’47 In stating this,

Nkrumah argued that political freedom referred to the ‘‘complete and absolute

independence from the control of any foreign government’’.48 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)49—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.50

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.51 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

46. Antony ANGHIE, ‘‘The Evolution of International Law: Colonial and Postcolonial Realities’’ (2006)27 Third World Quarterly 739 at 748.

47. Kwame NKRUMAH, Towards Colonial Freedom: Africa in the Struggle against World Imperialism(London/Melbourne/Toronto: Heinemann, 1962) at 43 (emphasis added).

48. Ibid. (emphasis added).

49. See generally A. APPADORAI, The Bandung Conference (New Delhi: The Indian Council of WorldAffairs, 1955).

50. Ibid., at 21. The discussion on self-determination and human rights had not taken too much time,given the universal acceptance afforded to the principle of self-determination. The only contributionwas the show of support for the rights of the people of Palestine, calling for the implementation ofrelevant UN Resolutions that had been adopted on the matter (pp. 15218).

51. Declaration on the Granting of Independence to Colonial Countries and Peoples, UN GeneralAssembly Resolution 1514(XV), 14 December 1960, online: OHCHR /http://www2.ohchr.org/english/law/independence.htmS [1960 Colonial Declaration]. This was largely promoted by ThirdWorld states. Eighty-nine states voted for, while none voted against. Interestingly, however, a numberof states abstained from voting, most of which belonged to the European/Western bloc; namely,Portugal, Spain, Belgium, France, the UK, and the US.




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.52

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 ofself-determination’’ appearing in [this Article] apply only to the peoples under foreigndomination and that these words do not apply to sovereign independent States or to asection of a people or nation—which is the essence of national integrity.53

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 Kosovo54 provide clear evidence of this approach. China believed that the

‘‘principle of self-determination of peoples has specifically defined contents and scope

of application’’.55 Its application is ‘‘restricted to situations of colonial rule or foreign

occupation’’ and cannot ‘‘undermine the sovereignty and territorial integrity of the

State concerned’’.56 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.’’57

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

52. Thornberry, ‘‘Self-Determination, Minorities, Human Rights’’, supra note 17 at 875.

53. See the declaration of the Government of India, online: UN /http://treaties.un.org/Pages/ViewDetails.aspx?src5TREATY&mtdsg_no5IV-3&chapter54&lang5en#EndDecS.

54. Written statement of the People’s Republic of China, 16 April 2009, online: ICJ /http://www.icj-cij.org/docket/files/141/15611.pdfS.

55. Ibid., at 3.






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.58 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.59 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 the former East Pakistan; a result that arose after ‘‘all realistic

options for the realisation of internal self-determination’’ had been exhausted.60

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 acknowledgment 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

58. As India once noted: ‘‘Like other citizens of India, the people of Jammu and Kashmir had beenperiodically exercising their right to self-determination within India’s constitutional frameworkby participating in the five nation-wide general elections that had been held in the 29 years sinceIndia’s independence. There could be no question of the people of Jammu and Kashmir exercisingthe right of self-determination separately from India. That would be a violation of the IndianConstitution and of the sovereignty and territorial integrity of India and an unwarranted interferencein its internal affairs, all of which would constitute a violation of the United Nations Charter’’:31 GAOR (1976) 3rd Committee., 17th Meeting, (A/C.3/31/SR.17), para. 57, quoted in Summers,supra note 3 at 366 (ftn 202).

59. See, for instance, Yash GHAI, ‘‘Autonomy Regimes in China: Coping with Ethnic and EconomicDiversity’’ in Yash GHAI, ed., Autonomy and Ethnicity: Negotiating Competing Claims in Multi-Ethnic States (Cambridge: Cambridge University Press, 2000) at 77298.

60. John DUGARD and David RAIC, ‘‘The Role of Recognition in the Law and Practice of Secession’’ inKohen, ed., supra note 19, 94 at 123.




and principles, including those of tolerance and pluralism;’’ and ‘‘the right to

independence of action and opinion.’’61

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.62

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’’.63 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.64

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’’.65 Interestingly, the ‘‘lamp of

assembly-based democracy was first lit in the East’’—lands that geographically

correspond to contemporary Syria, Iraq, and Iran.66

Also, at the time European colonization began, there were well-established

political, judicial, and governance systems based on democratic principles, which

61. ‘‘Statements Made by Mr. Hardeep Singh Puri, Ambassador and Permanent Representative of India atthe 60th Session of the Commission on Human Rights, Geneva (March 152April 23, 2004)’’, online:Ministry of External Affairs, India /http://www.meaindia.nic.in/mystart.php?id553017848S.

62. Pemmaraju Sreenivasa RAO, ‘‘The Indian Position on Some General Principles of International Law’’in Bimal N. PATEL, ed., India and International Law (Leiden/Boston: Martinus Nijhoff, 2005), 33 at5224.

63. Written statement of the Arab Republic of Egypt, 16 April 2009, at 19, online: ICJ /http://www.icj-cij.org/docket/files/141/15622.pdfS.

64. Section 235 in Chapter 14 of the 1996 Constitution of the Republic of South Africa, online: SouthAfrican Government Information (SOGA) /http://www.info.gov.za/documents/constitution/1996/96cons14.htmS. See also the 1993 Interim Constitution of South Africa, online: SOGA /http://www.info.gov.za/documents/constitution/93cons.htm#SECTION231S, wherein similar provisions onself-determination (especially Principles XII and XXXIV) were considered to be a recognition ofinternal self-determination; Christine BELL, Peace Agreements and Human Rights (Oxford: OxfordUniversity Press, 2000) at 133.

65. John KEANE, The Life and Death of Democracy (London: Pocket Books, 2010) at x.

66. Ibid., at xi.




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.67 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 inwhich the affairs of these early examples of representative self-governing institutionswere conducted. And it may come as a surprise to many to learn that in the Assembliesof the Buddhists in India two thousand years and more ago are to be found therudiments of our own parliamentary practice of the present day.68

It is also countries such as India which provided early evidence of village-level

devolution (the panchayat raj system)69 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.70

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.71 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.

67. See generally Jomo KENYATTA, ‘‘The Kikuyu System of Government’’ in Wilfred CARTEY andMartin KILSON, eds., The African Reader: Independent Africa (New York: Vintage Books, 1970) at19228.

68. G.T. GARRATT, ed., The Legacy of India (Oxford: Clarendon Press, 1937) at xi.

69. Ibid.

70. C.G. WEERAMANTRY, Equality and Freedom: Some Third World Perspectives (Colombo: Hansa,1976) at 26.

71. See for instance: the African Charter on Human and Peoples’ Rights, 27 June 1981 (enteredinto force 21 October 1986), online: UNHCR /http://www.unhcr.org/refworld/type,MULTILATERALTREATY,OAU,,3ae6b3630,0.htmlS [1981 African Charter]; the African Charteron Democracy, Elections and Governance, 30 January 2007, online: African Union/http://www.africa-union.org/root/au/Documents/Treaties/text/Charter%20on%20Democracy.pdfS;the Inter-American Democratic Charter, 11 September 2001, online: OAS /http://www.educadem.oas.org/documentos/dem_eng.pdfS; the South Asian Association for RegionalCooperation (SAARC) Charter of Democracy, online: SAARC /http://www.saarc-sec.org/SAARC-Charter-of-Democracy/88/S; the Arab Charter on Human Rights, 22 May 2004, online: University ofMinnesota /http://www1.umn.edu/humanrts/instree/loas2005.htmlS.




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 theirentitlement 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 orseparation but a principle of inclusion.72

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.73

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’’.74 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 andinalienable right to self-determination. They shall freely determine their politicalstatus and shall pursue their economic and social development according to thepolicy they have freely chosen.

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

3. All peoples shall have the right to the assistance of the states parties to the presentCharter in their liberation struggle against foreign domination, be it political,economic or cultural.75

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

72. Written statement of The Islamic Republic of Iran at 7, online: ICJ /http://www.icj-cij.org/docket/files/141/15646.pdfS.

73. For a useful examination of the African and Inter-American jurisprudence, see Dinah SHELTON,‘‘Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon’’ (2011) 105

American Journal of International Law 60.

74. Fatsah OUGUERGOUZ and Djacoba Liva TEHINDRAZANARIVELO, ‘‘The Question of Secessionin Africa’’ in Kohen, supra note 19, 257 at 257.

75. 1981 African Charter, supra note 71.




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,76 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.77 In stating this, the African Commission clearly

recognized the complex and diverse manner in which self-determination becomes

operational within the state.78

Also, the African Commission has held in the Kevin Mgwange Gunme v.

Cameroon79 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’’.80 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.81

76. Katangese Peoples’ Congress v. Zaire, Communication 75/92, Eighth Annual Activity Report(199421995), online: University of Minnesota /http://www1.umn.edu/humanrts/africa/ACHPR1.htmS.

77. Ibid.

78. This has been viewed as the Commission’s acceptance of the view that serious human rights violationsand the denial of internal self-determination would lead to a disruption of Zaire’s sovereigntyand territorial integrity, and that therefore ‘‘Katanga was under an obligation to implement the right ofself-determination internally’’; Dugard and Raic, supra note 60 at 108.

79. Kevin Mgwanga Gunme v. Cameroon, Communication 266/2003, Twenty Sixth AnnualActivity Report (200822009), online: /http://xa.yimg.com/kq/groups/18367317/1483467725/name/Verdict1of1Communication1No1266-2003.pdfS.

80. Ibid., at 37.

81. U.O. UMOZURIKE, Introduction to International Law (Ibadan: Spectrum Law Publishing, 1993) at55 (footnote omitted). See also W. OFUATEY-KODJOE, ‘‘Self-Determination’’ in OscarSCHACHTER and Christopher C. JOYNER, eds., United Nations Legal Order, Vol. 1 (Cambridge:Cambridge University Press, 1995), especially the discussion on ‘‘Self-Determination in the Post-Decolonization Era’’ at 38329.




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.82 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’’.83

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).84

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 a 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.

82. Markku SUKSI, Sub-State Governance through Territorial Autonomy: A Comparative Study inConstitutional Law of Powers, Procedures and Institutions (Heidelberg/Dordrecht/London/New York:Springer, 2011) at 244269.

83. Ibid., at 252. See ‘‘Memorandum of Understanding between the Government of the Republic ofIndonesia and the Free Aceh Movement’’, online: Aceh Monitoring Mission /http://www.aceh-mm.org/download/english/Helsinki%20MoU.pdfS. This paved the way for the adoption of the Law of theRepublic of Indonesia No. 11 of 2006 on the Governing of Aceh.

84. Ibid., at 1882213. The two-government structure which was put in place as a consequence of theformation of Tanzania (i.e. the coming together of Zanzibar and Tanganyika in 1964) has thereforebeen regarded as a solution ‘‘that guaranteed Zanzibar a large measure of internal self-determinationon the basis of residual law-making powers’’ (p. 640).




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’’.85 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, were ‘‘half-way measures to keep

them complacent and to throttle their aspiration for complete independence’’.86

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’’.87 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 y The peoples of thecolonies must have the right to elect their own government, a government withoutrestrictions from a foreign power y The long, long night is over. By fighting for tradeunion rights, the right to form co-operatives, freedom of the press, assembly,demonstration and strike; freedom to print and read the literature which is necessaryfor the education of the masses, you will be using the only means by which your libertieswill be won and maintained.88

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.

85. Nkrumah, supra note 47 at xvi2xvii.

86. Ibid., at 27. Therefore, ‘‘self-government’’ or autonomie were ‘‘nothing but blinds and limitations inthe way of the struggle of the national liberation movement in the colonies towards self-determinationand complete national independence’’ (p. 32).

87. Ibid., at 43.





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’’.89 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 intimatelyconcerned with the imperialism that dominated over us. Was this imperialism to go? Didthey recognise the independence of India and her right to frame her own constitutionthrough a Constituent Assembly?90

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’’.91 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.92

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

89. Jawaharlal NEHRU, An Autobiography (New Delhi: Jawaharlal Nehru Memorial Fund, 1981) at 418.


91. Ibid., at 420.

92. Keane, supra note 65 at 597.




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.93 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 theThird 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 which 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.94 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.95

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

93. That Third World international lawyers should refuse to ‘‘unquestioningly reproduce scholarshipthat is suspect from the standpoint of the interests of third world peoples’’ has been usefullymade in B.S. CHIMNI, ‘‘Third World Approaches to International Law: A Manifesto’’ in AntonyANGHIE, Bhupinder CHIMNI, Karin MICHELSON, and Obiora OKAFOR, eds., The Third Worldand International Order: Law, Politics and Globalization (Leiden/Boston: Martinus Nijhoff, 2003),47 at 61.


95. Ibid.




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.96

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 towardsindependence, presided over by benign Westerners; he particularly admired Britishimperialist methods and, more generally, was a cultural Anglophile y Moreover, as anAmerican Southerner, he shared many of the racist assumptions of his background.97

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.’’98

Such reasons partly explain why many states and leaders were reluctant to endorse

self-determination as a ‘‘prescriptive for future conduct’’,99 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;100 further

confirming the view that self-determination, during its formative years, was a

selectively applied principle.

96. Joshua CASTELLINO, International Law and Self-Determination: The Interplay of the Politics ofTerritorial Possession with Formulations of Post-Colonial ‘‘National’’ Identity (The Hague/Boston/London: Martinus Nijhoff, 2000) at 13.

97. David PRIESTLAND, The Red Flag: Communism and the Making of the Modern World(Harmondsworth: Penguin Books, 2010) at 235. It has been also pointed out in this regard how,when Nguyen Tat Thanh (Ho Chi Minh) approached the Palace of Versailles in June 1919 as a twenty-nine-year-old native of French Indochina, with a petition entitled ‘‘Demands of the Annamite[Viatnamese] People’’, which was a demand for political autonomy for the Vietnamese people, thedemand was not adequately taken into consideration. What he received was simply a letter from one ofWilson’s senior advisers, promising that the demand would be drawn to the attention of Wilson (p. 234).Also, viewed from this perspective, Lenin’s advocacy of national self-determination, even though it toowas for political reasons, had a more universal and revolutionary appeal than that of Wilson’s; BillBOWRING, ‘‘Positivism versus Self-Determination: the Contradictions of Soviet International Law’’ inSusan MARKS, ed., International Law on the Left: Re-examining Marxist Legacies (Cambridge:Cambridge University Press, 2008), 133 at 143.

98. Quoted in Nathaniel BERMAN, ‘‘The International Law of Nationalism: Group Identity and LegalHistory’’ in David WIPPMAN, ed., International Law and Ethnic Conflict (Ithaca, NY/London:Cornell University Press, 1998), 25 at 37 (ftn 30).

99. Ian BROWNLIE, ‘‘An Essay in the History of the Principle of Self-Determination’’ in C.H.ALEXANDROWICZ, ed., Grotian Society Papers 1968: Studies in the History of the Law of Nations(The Hague: Martinus Nijhoff, 1970), 90 at 95.

100. Ibid., at 97.




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.101

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 InternalSelf-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.102

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

101. Manfred NOWAK, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev. ed.(Kehl: N.P. Engel, 2005) at 10.

102. B.S. CHIMNI, ‘‘Marxism and International Law: A Contemporary Analysis’’ Economic and PoliticalWeekly (6 February 1999), 337.




economic system and structure of the colonized state.103 As a consequence, it has been

observed that:

[T]here is scarcely any Third World condition today which is not directly linked ortraceable to some aspect of its colonial past y [C]olonialism was so all-embracing aphenomenon that there was no aspect of social, political or economic life which it leftuntouched and unaltered.104

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 which were able to overthrow the yoke of

colonialism after World War II ‘‘quickly realized that political independence was

largely illusory y Although now formally free, Third World states were still

bonded—politically, legally, and economically—to the West’’.105 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, hasvirtually completely delegitimized the Third World State as an independent initiator of alocally coherent and cohesive economic development. All development must be‘‘outward’’, export oriented towards the West.106

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.107 The inequalities generated due to globalization have taken place both

103. The impact of colonialism on the economic condition of the Third World has been examined innumerous studies. See, for instance, Paul HARRISON, Inside the Third World: The Anatomy ofPoverty, 3rd ed. (Harmondsworth: Penguin Books, 1993), who notes, inter alia, that ‘‘almost all theimbalances that now cripple the economies, societies and politics of the Third World had their originsin colonialism’’ (p. 45). Third World leaders can be blamed for many of the economic problemsconfronting their countries. However, the continuing impact of colonialism and its destruction of localeconomies at the time independence was granted to Third World states cannot be ignored.

104. Weeramantry, supra note 70 at 38.

105. Makau MUTUA, ‘‘What is TWAIL?’’ ASIL, Proceedings of the 94th Annual Meeting, April 2000,online: University of Buffalo /http://www.law.buffalo.edu/Faculty_And_Staff/submenu/MutuaM/reports/asil040500.pdfS.

106. Anthony CARTY, ‘‘The National as a Meta-Concept of International Economic Law’’ in Asif H.QURESHI, ed., Perspectives in International Economic Law (London: Kluwer Law International,2002), 65 at 71.

107. Antony ANGHIE, ‘‘Time Present and Time Past: Globalization, International Financial Institutions,and the Third World’’ (2000) 32 New York University Journal of International Law and Politics 243.




within and between Third World states, further undermining the vulnerable and poor

peoples and their economic freedoms.108 Free trade has its own share of advantages,

but it is also noted that the ‘‘comparative advantage of colonies was coercively

restructured’’109 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.110 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.111 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’’.112

The struggle against this global economic framework has been a daunting one for

the Third World.113 Also, economic development in the Third World developing

countries cannot be ensured through the government of the concerned state alone.114

Therefore, while the primary duty of course lies with the government of the

developing state, meaningful economic self-determination cannot be achieved

108. Ibid., at 246.

109. B.S. CHIMNI, ‘‘Developing Countries and the GATT/WTO System: Some Reflections on the Idea of FreeTrade and Doha Round Trade Negotiations’’ in Chantal THOMAS and Joel P. TRACHTMAN, eds.,Developing Countries in the WTO Legal System (Oxford: Oxford University Press, 2009), 21 at 26.

110. Chimni, supra note 102 at 341. Also see, Chimni, ibid., at 39240; M. SORNARAJAH, ‘‘A DevelopingCountry Perspective of International Economic Law in the Context of Dispute Settlement’’ in Qureshi,supra note 106 at 832110. Crucial to this understanding is to note how these policies have an impacton the independence of the developing Third World state. See, for instance, Helene Ruiz FABRI,‘‘Regulating Trade, Investment and Money’’ in James CRAWFORD and Martti KOSKENNIEMI, eds.,The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012) at352272. As the author points out, certain rules of international investment promotion are intrusive inthat they affect the different areas and sectors of the state, thereby limiting the regulatory ability andpolitical choices available to the host state. On paper, the state is free to reject investment: ‘‘But what istrue from a formal legal perspective is not so true from an economic one. Many states really have littlechoice’’ (pp. 359260).

111. Anghie, supra note 107 at 288. This, however, is not meant to disregard some of the achievements ofthe Mandate system.

112. See generally B.S. CHIMNI, ‘‘International Institutions Today: An Imperial Global State in theMaking’’ (2004) 15 European Journal of International Law 1. In doing so, the sovereign economicspace of many Third World states has been seceded due to the demands of globalization, whichinclude, inter alia, the adoption and application of uniform laws irrespective of the stage ofdevelopment countries are undergoing. As a consequence, ‘‘sovereign powers have been relocated fromthird world states and peoples to WTO’’ (p. 7). Through the removal of barriers confronting capitalaccumulation, what is also being promoted are the narrow interests of transnational corporations tothe disadvantage of the self-determination of Third World states and peoples.

113. Even though Third World states realized independence from colonial rule, it did not mean that theirefforts at establishing a New International Economic Order could succeed. See generally MohammedBEDJAOUI, Towards a New International Economic Order (Paris: UNESCO, 1979); T.O. ELIAS,New Horizons in International Law, 2nd rev. ed. (Dordrecht/Boston/London: Martinus Nijhoff,1992), esp. Chapter 13, ‘‘Basic Principles and Perspectives of the New International Economic Order’’at 1852200; Weeramantry, supra note 70 at 13528.

114. See Declaration on the Right to Development, A/Res/41/128, 4 December 1986, online: UN /http://www.un.org/documents/ga/res/41/a41r128.htmS. Article 4(2) therein states: ‘‘As a complement to theefforts of developing countries, effective international co-operation is essential in providing thesecountries with appropriate means and facilities to foster their comprehensive development.’’




without the active co-operation of the outside world.115 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.116 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’’.117 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’’.118 Also to be noted here is

the impact of certain colonial policies such as the application of the principle of uti

possidetis,119 which are considered to be having a continuing (adverse) impact on

questions of legitimate governance in places such as Africa.120

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.

115. Susan MARKS and Andrew CLAPHAM, International Human Rights Lexicon (Oxford: OxfordUniversity Press, 2005) at 102.

116. Carty, supra note 106 at 79.

117. Asif H. QURESHI and Andreas R. ZIEGLER, International Economic Law (London: Sweet &Maxwell, 2007) at 57. As the authors go on to note, there is the further question concerning the extentto which this ‘‘inalienable domain at the level of General International Economic Law is intact’’.

118. As some of the prominent mainstream advocates of internal self-determination have admitted: AntonioCASSESE, International Law, 2nd ed. (Oxford: Oxford University Press, 2005) at 506.

119. Uti possidetis juris refers to the principle of respecting the colonial boundaries already existing at thetime of attaining independence. As the ICJ has noted in the case between Burkina Faso and theRepublic of Mali [see Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali),Judgment, [1986] I.C.J. Rep. 554], the essence of this principle ‘‘lies in its primary aim of securingrespect for the territorial boundaries at the moment when independence is achieved’’ (p. 566).However, this principle still fails to address the grievance concerning the lack of independence andfreedom that the African peoples ought to have been entitled to exercise in deciding what the ultimateterritorial boundaries and frontiers were to be at the time of gaining independence. The principle hastherefore attracted much criticism, even from Third World international lawyers. See Makau MUTUA,‘‘Why Redraw the Map of Africa: A Moral and Legal Inquiry’’ (1995) 16 Michigan Journal ofInternational Law 1113, wherein the radical proposal for the need to ensure that ‘‘pre-colonial entitieswithin the post-colonial order be allowed to exercise their right to self-determination’’ (p. 1118) ismade. Hence, the need to abandon the principle of uti possidetis juris, which is a ‘‘device that falselylinked the decolonization of the colonial state to the liberation of African peoples’’ and ‘‘continues todeny freedom to millions of Africans’’ (p. 1175).

120. See generally Edward QUASHIGAH and Obiora OKAFOR, eds., Legitimate Governance inAfrica: International and Domestic Legal Perspectives (The Hague/London/Boston: Kluwer LawInternational, 1999). For a recent account, see Sabelo J. NDLOVU-GATSHENI, ‘‘Fiftieth Anniversaryof Decolonization in Africa: A Moment of Celebration or Critical Reflection?’’ (2012) 33 Third WorldQuarterly 71.




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 inthe 1949 Special Report of the United Nations Commission for Indonesia y During thenegotiations, it was pointed out that the Provisional Constitution of the republic madereference only to an ‘‘internal right of self-determination,’’ which was ‘‘the right ofpopulations to determine, by democratic procedure, the status which their respectiveterritories shall occupy within the federal structure of the Republic of the United States ofIndonesia’’. The Netherlands delegation, however, claimed to attach particular importanceto an ‘‘external right of self-determination’’, that is, the right of populations to disassociatetheir respective territories from the Republic of the United States of Indonesia.121

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.122 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’’.123

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

121. Lee C. BUCHHEIT, Secession: The Legitimacy of Self-Determination (New Haven, CT/London: YaleUniversity Press, 1978) at 14215 (footnotes omitted).

122. This argument was prominently made in James SUMMERS, ‘‘Why does the Right of Self-determination have Internal and External Aspects?’’. Lecture delivered at the Lauterpacht Centre forInternational Law, University of Cambridge (28 October 2011), online: University of Cambridge/http://sms.cam.ac.uk/media/1183823S.

123. Buchheit, supra note 121 at 15.




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.124 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’’.125

Self-determination was regarded as the ‘‘historic root from which the democratic

entitlement grew’’.126 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.127

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,128

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

124. The leading argument in this regard has been made in Thomas FRANCK, ‘‘The Emerging Right toDemocratic Governance’’ (1992) 86 American Journal of International Law 46. For a useful recentevaluation of this argument, see Susan MARKS, ‘‘What Has Become of the Emerging Right toDemocratic Governance?’’ (2011) 22 European Journal of International Law 507.

125. Franck, supra note 124 at 46.

126. Ibid., at 52. The right to self-determination was therein interpreted as a ‘‘right of a people organized inan established territory to determine its collective political destiny in a democratic fashion’’.

127. See discussion in Gregory H. FOX, Humanitarian Occupation (Cambridge: Cambridge UniversityPress, 2008), esp. at 20729. This is especially if the occupied peoples argue that the occupying poweris violating their right to internal self-determination, considered as a norm of jus cogens. However,such an argument, as Fox admits, is problematic given the questionable jus cogens status of internalself-determination (p. 211).

128. The body of literature on the broader topic of humanitarian intervention is large. On the narrow topicof ‘‘pro-democratic intervention’’, however, see generally: Christine GRAY, International Law and theUse of Force (Oxford: Oxford University Press, 2000) at 4224; Cedric RYNGAERT, ‘‘Pro-DemocraticIntervention in International Law’’, Institute for International Law, Working Paper No. 53, April 2004,online: KU Leuven Centre /http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP53e.pdfS. Morespecifically, see Simone van den DRIEST, ‘‘‘Pro-Democratic Intervention’ and the Right to PoliticalSelf-determination: The Case of Operation Iraqi Freedom’’ (2010) 1 Netherlands International LawReview 27.




by powers such as the US.129 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.130 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.131 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)132 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’’.133 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 politicalindependence of territorial communities so that they can continue to express their desirefor political community in a form appropriate to them y Each application of Article2(4) must enhance opportunities for ongoing self-determination.134

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.

129. Gray, supra note 128, at 42; Christine GRAY, ‘‘The Use of Force and the International Legal Order’’ inMalcolm EVANS, ed., International Law (Oxford: Oxford University Press, 2010), 615 at 620.

130. James CRAWFORD, ‘‘Sovereignty as a Legal Value’’ in Crawford and Koskenniemi, supra note 110,117 at 130. Cases which are generally regarded under this form of intervention are mostly theinterventions in Grenada (1983), Panama (1989), Haiti (1994), and Sierra Leone (1997); Driest, supranote 128 at 39.

131. Gray, supra note 129 at 620.

132. Article 2(4) of the UN Charter states: ‘‘All Members shall refrain in their international relations fromthe threat or use of force against the territorial integrity or political independence of any State, or inany other manner inconsistent with the Purposes of the United Nations.’’

133. W. Michael REISMAN, ‘‘Coercion and Self-Determination: Construing Charter Article 2(4)’’ (1984)78 American Journal of International Law 642 at 643.

134. Ibid.




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,135 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’’.136 Similarly, it was the argument of

Ved Nanda137 that:

The majority of states does not view the right of self-determination to mean that there isa right to democratic representation or that the government must reflect the will of themajority of the people. The United States stands alone in making such a claim, and thecommunity response at the United Nations and the OAS has appropriately been to rejectthe claim.138

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,139 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.’’140 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,141 Gray also notes that, with the end of

the Cold War, arguments in favour of such intervention have not been abandoned.

135. Oscar SCHACHTER, ‘‘The Legality of Pro-Democratic Invasion’’ (1984) 78 American Journal ofInternational Law 645.

136. Ibid., at 648.

137. Ved P. NANDA, ‘‘The Validity of United States Intervention in Panama under International Law’’(1990) 84 American Journal of International Law 494.

138. 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 43.




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’’.142 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 y Towards this

end suitable international law concepts are adopted or adapted’’.143

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.144

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.145 It is therefore a language that has a significant hegemonic element.146

142. Ibid., at 42.

143. B.S. CHIMNI, ‘‘Legitimating the International Rule of Law’’ in Crawford and Koskenniemi, supranote 110, 290 at 301. Not just legal principles, but events too get adapted or twisted in the hands ofpowerful states desiring intervention and regime change. As Richard Falk recently reminded us, ‘‘theneocon presidency of George W. Bush, was in 2001 prior to the attacks openly seeking a pretext tolaunch a regime-changing war against Saddam Hussein’s Iraq, and the 9/11 events, as interpreted andspun, provided just the supportive domestic climate needed for launching an aggressive war against theBaghdad regime’’; Richard FALK, ‘‘A Commentary on Marathon Murders’’ Richard Falk Blog(19 April 2013), online: Richard Falk Blog /http://richardfalk.wordpress.com/2013/04/19/a-commentary-on-the-marathon-murders/S.

144. This should not be difficult given the critical or sceptical manner in which the broader notion ofhumanitarian intervention has been viewed within the Third World. For a discussion on such views, seegenerally Watanabe KOJI, ed., Humanitarian Intervention: The Evolving Asian Debate (Tokyo/NewYork: Japan Centre for International Exchange, 2003). Also see Ramesh THAKUR, The UnitedNations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge:Cambridge University Press, 2006), esp. at 264287. Of particular importance is the observation that‘‘there is unanimous opposition to the idea of Western military interventions unauthorised by the UN’’(p. 285).

145. The classic study in this regard is that of Antony ANGHIE, Imperialism, Sovereignty and the Makingof International Law (Cambridge: Cambridge University Press, 2004). Also see James Thuo GATHII,‘‘International Law and Eurocentricity’’ (1998) 9 European Journal of International Law 184.

146. Balakrishnan RAJAGOPAL, ‘‘Counter-hegemonic International Law: Rethinking Human Rights andDevelopment as a Third World Strategy’’ (2006) 27 Third World Quarterly 767. As the author pointsout, this can be said about the language of ‘‘human rights’’ as well, whereby the discourse on humanrights has been part of ‘‘hegemonic international law, reinforcing pre-existing tendencies in worldpolitics’’ (p. 768).




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’’.147 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 which 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,148 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.149 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’’.150 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.

147. Edward SAID, Culture and Imperialism (London: Vintage, 1994) at 18.

148. Robert A. DAHL, ‘‘Democracy and Human Rights Under Different Conditions of Development’’ inAsbjorn EIDE and Bernt HAGTVET, eds., Human Rights in Perspective: A Global Assessment(Oxford: Blackwell, 1992), 235 at 235.

149. It has been the view of a former UN Independent Expert on the Right to Development, Dr ArjunSengupta, that the right to development could only be achieved through a development plan which‘‘would be totally different from the earlier forms of central planning and would be based entirely ondecentralized decision-making with the participation and empowerment of the beneficiaries’’; see‘‘Report of the Independent Expert on the Right to Development’ (submitted by the UN SecretaryGeneral at the Fifty-Fifth Session to the UN General Assembly, 17 August 2000), reproduced inFranciscans International, ed., The Right to Development: Reflections on the First Four Reports of theIndependent Expert on the Right to Development, Dr. Arjun Sengupta (Geneva: FranciscansInternational, 2003) at 183.

150. Chimni, supra note 102 at 343 (footnote omitted). It can also be argued that ‘‘low-intensity’’democracies come close to the kind of governance structures maintained by colonial rulers.




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.151 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 thecolonially-imposed state, the prevalence of poverty and disease, and the lack of decentshelter? Of what use is such a system if it does not lead to even the slightest concretetransformation in the material conditions in which they exist? Conversely y is anadmittedly non-liberal regime such as that imposed by Lee Kuan Yew in Singaporenecessarily illegitimate?152

To be sure, this is not an argument in support of the Asian values thesis about

democracy and human rights.153 Rather, what is argued here is that the litmus test

of a democracy cannot be the mere holding of periodic elections. The test of

a democracy has much to do about the economic dimension as well. But such a

comprehensive understanding of democracy does not seem to be one which gets

promoted by the West, as the discussion in the initial part of this article suggested.

Assessing the economic dimension of democracy, for example, may be 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 which 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

151. Gerry J. SIMPSON, ‘‘Imagined Consent: Democratic Liberalism in International Legal Theory’’ (1994)15 Australian Yearbook of International Law 103 at 121.

152. Edward QUASHIGAH and Obiora OKAFOR, ‘‘Toward the Enhancement of the Relevance andEffectiveness of the Movement for the Securement of Legitimate Governance in Africa’’ in Quashigahand Okafor, supra note 120, 539 at 547 (footnote omitted).

153. For a review of this debate, see Yash GHAI, ‘‘Human Rights and Governance: The Asian Debate’’(1994) 15 Australia Year Book of International Law 1.




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’’.154 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.155 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’’.156 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.’’157

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

154. Marks and Clapham, supra note 115 at 69.

155. Simpson, supra note 151 at 121.

156. Eric HOBSBAWM, Globalisation, Democracy and Terrorism (London: Abacus, 2007) at 99.

157. Salmon, supra note 10 at 280.




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.



Internal Self-Determination in International Law a Critical Third-World Perspective

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