Self-Determination

External and internal

External self-determination is the choice of political status in relation to other States, and outside the colonial context it is tightly constrained by territorial integrity.

Internal self-determination is a people's continuing right to determine its political status within an existing State, which connects to article 25's guarantee of participation in the conduct of public affairs.

The safeguard clause in Resolution 2625 is the bridge between them, and it is the textual basis for the argument that a people denied internal self-determination by a government that does not represent it may have a remedial external claim. That argument has never been accepted by a court as establishing a general right of secession.

The consequences for the order

Decolonisation. The membership of the United Nations roughly trebled, and the new majority produced the instruments in Module IV: the permanent sovereignty resolutions, the New International Economic Order and the Right to Development.

Permanent sovereignty over natural resources. Article 1(2) is the treaty form of General Assembly resolution 1803 (XVII) of 1962, and it is the provision on which [What the New International Economic Order Was] rests.

The obligation on third States. Article 1(3) is unusual because it requires every party to promote the realisation of a right in territories it does not administer, which is the first-generation exception to the rule that obligations look inward.

The remedy problem

The Human Rights Committee has consistently held that a communication under the Optional Protocol cannot be founded on article 1, because the Protocol is open to individuals claiming to be victims and article 1 confers a right on peoples.

The practical answer has been article 27, the minorities provision, and article 25, through which the substance of internal self-determination reaches the Committee in the form of individual claims about culture, language and participation.

And in the International Court of Justice, the right has been treated as an obligation owed to all, which is why proceedings about it can be brought by States with no special interest.

Worked example

A group within a State claims independence, alleging exclusion from government and expropriation of the minerals under its land.

Is it a "people"? The term is undefined in both Covenants, and the objective markers of shared history, language, culture and territory are combined in practice with a subjective sense of identity.

External self-determination is available in the colonial and analogous contexts, and outside them territorial integrity ordinarily prevails.

Internal self-determination is the stronger claim on these facts: exclusion from government engages article 25, and cultural and linguistic exclusion engages article 27.

Article 1(2) supports the minerals claim directly, since a people may freely dispose of its natural wealth and in no case be deprived of its means of subsistence.

But the forum is the problem. No individual communication lies on article 1, so the claim must be pleaded through articles 25, 26 and 27.

That is the model answer: substance under article 1, remedy under the individual rights.

What it does NOT mean

It is not a general right of secession. Resolution 2625 expressly preserves the territorial integrity of States conducting themselves in compliance with the principle.

And it is not exhausted by independence. The internal aspect continues after decolonisation, which is why the right still does work in States that were never colonies.

Quick revision

• Identical article 1 in both Covenants, placed before the obligation clauses.
• 1(1) all peoples freely determine political status and freely pursue economic, social and cultural development. 1(2) freely dispose of natural wealth and resources, without prejudice to obligations from international economic co-operation based on mutual benefit, and in no case deprived of its own means of subsistence. 1(3) administering States shall promote and respect.
• Charter articles 1(2) and 55: a principle in 1945. Resolution 1514 (XV), 1960: a right, and unpreparedness is no pretext for delay. 1541 (XV): independence, free association, integration. 2625 (XXV), 1970: the representative government safeguard clause.
• External and internal; the safeguard clause is the bridge; no general right of secession.
• No individual communication lies on article 1, since the Protocol is for individuals; plead articles 25, 26 and 27 instead. In the International Court it is an obligation owed to all.

Test yourself

1. Quote the substance of article 1 and explain why it is identical in both Covenants. Paragraph 1 provides that all peoples have the right of self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development. Paragraph 2 provides that all peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation based upon the principle of mutual benefit and international law, and that in no case may a people be deprived of its own means of subsistence. Paragraph 3 requires States Parties, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, to promote the realisation of the right and to respect it in conformity with the Charter. It is identical in both because the drafters regarded the division of the catalogue into two treaties as a matter of machinery rather than of principle, and placing the same article at the head of each was their way of saying so. The placement is equally deliberate: it stands in Part I of each Covenant, before the obligation clauses and before every substantive right, because a people whose political status is settled elsewhere cannot secure any of the rights that follow.

2. Trace the movement from principle to right. The Charter of 1945 names the principle twice, in article 1(2) as a purpose of the Organization, to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and again in article 55 as the basis of economic and social co-operation. But Chapters XI and XII created duties for administering powers, including the obligation in article 73 to develop self-government and to transmit information, without conferring a right on the inhabitants. The change becomes explicit in General Assembly resolution 1514 (XV) of 1960, which declares that all peoples have the right to self-determination and that inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. Resolution 1541 (XV) of the same year supplied the three lawful outcomes of emergence to a full measure of self-government: independence, free association with an independent State, or integration with an independent State, the second and third requiring a free and informed choice. Resolution 2625 (XXV) of 1970 restated the right for all peoples and added the clause preserving the territorial integrity of States conducting themselves in compliance with the principle and possessed of a government representing the whole people without distinction. The Covenants of 1966 made it a treaty obligation.

3. Why is article 1 a right without an individual remedy, and what is done about it? Because the Optional Protocol to the Civil and Political Covenant admits communications from individuals who claim to be victims of a violation of a right set forth in the Covenant, and article 1 confers its right on peoples rather than on individuals. The Human Rights Committee has therefore consistently held that a communication cannot be founded on article 1, however strong the underlying grievance, which produces the odd result that the article the drafters placed first is the one article the individual complaints machinery cannot reach. Three responses have developed. Claims are pleaded instead under article 25, which guarantees every citizen the right and the opportunity to take part in the conduct of public affairs, under article 26's free-standing equality guarantee, and under article 27, which protects persons belonging to ethnic, religious or linguistic minorities in enjoying their culture, professing their religion and using their language, so that the substance of internal self-determination arrives in an individual form. The reporting procedure addresses article 1 directly, since States must report on it. And before the International Court of Justice the right has been treated as an obligation owed to the international community as a whole, so its enforcement there does not depend on individual standing at all.