Info Article: The Right of Self-Determination in International Law – How Does It Apply in Practice?

Even though the right to self-determination has come under the spotlight on numerous occasions throughout the last decades, the European Union has been recently shaken up by the practical use of this principle within its own borders. The Catalonian attempt to unilaterally secede from Spain, while using the power of media to bring their cause within earshot of the international audience, has opened, once again, a debate whether and under which conditions people have the right to self-determination in order to gain the full autonomy or even become a sovereign state.

The principle of self-determination is based on customary international law and as such, has not been fully embodied in any international treaty. That being said, it is not without curiosity that the United Nations mentions the principle in Article 1 para 2 of the Charter when defining the goal and purpose of its mission: “The purpose of the United Nations is (…) 2) to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” Whereas the existence of the principle is not being challenged nowadays, and in the context of colonies and territories subject to alien subjugation it has been even supported, the international community has not yet come to a consensus on the legal and practical aspects of the principle when being exercised in practice.

In fact, the right to self-determination creates a grey zone. The prevailing opinion among legal experts is that no state is obliged to acknowledge secession of its territory based on the principle of self-determination, but any actions brought by the state against those who attempt to exercise the right must be compliant with the state’s national legal order, and at the same time do not breach any of the state’s obligations arising from international law. For example, a state can bring to justice the actors of the unilateral secession for the crime of treason committed against the state, but the state would not be allowed to torture the accused as the prohibition of torture is embodied in different international treaties of which the state is with high probability a signatory, among others, the European Convention on Human Rights of 1950 or the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984. However, it should be noted that even in lack of such international contractual obligations, the prohibition of torture would still apply as it constitutes customary international law, and as such, is binding on the states.

Interestingly, the right to self-determination is not prohibited either, as concluded by the International Court of Justice (ICJ) in its advisory opinion of 22 July 2010 on Kosovo in para 84: “(…) the Court considers that general international law contains no applicable prohibition of declarations of independence.” Therefore, if a secession is successful, the existence of the new sovereign state could be, in principle, considered legal, and thus recognised by the international community. The practical example of this scenario is Kosovo, though not yet fully recognised by all the states, among which also five EU Member States (Cyprus, Greece, Romania, Slovakia, and Spain), and decades later, remaining a controversial example of the exercise of right to self-determination.

Furthermore, the principle is, by its nature, in conflict with other principles of international law, notably the principle of territorial integrity. One of the legal doctrines states that the exercise of the right to self-determination which would lead to a unilateral secession of a part of the state’s territory can be justified only on the grounds that the state renders the exercise practically impossible, thus impairing the possibility to seek for self-determination within the state organisation. This was upheld by the Supreme Court of Canada in its landmark decision on the right to self-determination in Quebec (2 SCR 217, para 134 – 135): “A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. (…) when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. (…) Clearly, such a circumstance parallels the other two recognized situations in that the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated. ”

This clearly shows the attempt to recognise the right, even if in a limited and modest manner, outside of the casebook examples of severe suppressions of peoples, i.e. the colonies and territories subject to alien subjugation and domination, which raise basically no opinion division in the context of the exercise of the right to self-determination. The question remains, however, whether the interpretation as also upheld by the Supreme Court of Canada will become a standard interpretation of the principle of self-determination under international law or, in the light of the recent situation in Catalonia, it will simple not be enough as Catalonia aspires only for the full independence from Spain. It seems like the international law is walking a tightrope once again.

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