The right to self-determination
There is a recognised right to self-determination in international law. It is controversial whether a positive right to armed struggle to fulfil this right exists. It is clearly illegal under international law to deprive a people of their right to self-determination by using forcible actions including use of violence.
UN Charter definition
“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.”
(The United Nation General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970)
In the opening chapter of the UN Charter, respect for the right to self-determination of peoples is presented as one of the purposes of the United Nations. The right to self-determination of peoples was confirmed by the United Nations General Assembly (GA) in the Declaration of Friendly Relations, which was unanimously adopted in 1970 and is considered an authoritative indication of customary international law. Article 1, common to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), reaffirms the right of all peoples to self-determination, and lays upon state parties the obligation to promote and to respect it.
The right to self-determination was first recognised in the context of decolonisation; however, numerous human rights instruments, including conventional law, such as common Article 1 of ICCPR and ICESCR, as well as several GA Resolutions coupled with state practice, have extended its application beyond the colonial context, for example to South Africans under the apartheid regime. Some scholars also affirmed its application to analogous cases, such as peoples under belligerent occupation.
Criteria for the right to self-determination
A people can be said to have realised its right to self-determination when they have either (1) established a sovereign and independent state; (2) freely associated with another state or (3) integrated with another state after freely having expressed their will to do so . The definition of realisation of self-determination was confirmed in the Declaration of Friendly Relations .
The right of self-determination puts upon states not just the duty to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. In particular, the use of force to prevent a people from exercising their right of self-determination is regarded as illegal and has been consistently condemned by the international community. The obligations flowing from the principle of self-determination have been recognised as erga omnes, namely existing towards the whole international community. The International Court of Justice (ICJ) has recently reiterated the erga omnes status of the general principle of self-determination in its Advisory Opinion on the Wall. Additionally, scholars and commentators have indicated that the principle has acquired the status of jus cogens – a peremptory norm of international law .
The right to self-determination - IHL