Sunday, June 26, 2011

A Legal Appraisal of Self-Determination

Julian Aguon for Marianas Variety
Monday, June 27, 2011

(Editor's Note: Julian Aguon is an attorney who specializes in international law, and has authored several books and law journal articles on the subjects of self-determination, decolonization, and international human rights law. He teaches International Law at the University of Guam and has lectured extensively on these and other issues on four continents. This is the first of a series on his legal appraisal of Guam’s quest for self-determination.)

THE imprecision let loose on this island is more dangerous now than it has ever been, and writers, like myself, are being called to battle in a way we were not before.

In these high-stakes times – when the chips we are gambling with are children, coral reefs, limestone forests, narratives, whole imaginations – writers are called upon to do more than use our words; we are called to wield them. And in a time when words have been so methodically drained of meaning, it is irresponsible, if not indictable, to be imprecise.

The recent clamor around self-determination has demonstrated the danger of haphazardly flinging words around. The onslaught of opinion about the right of self-determination – namely what it is and who holds it – has reached a deafening roar.

We can hardly hear ourselves think. But in the end, opinions about the law are not the law. And despite the aggressive assertions of some, self-determination, at least as a matter of law, is not entirely up for debate. For instance, self-determination is not principally a race-based issue. Neither is it a purely political (as opposed to legal) one.

The right of self-determination has a certain shape and contour on which nearly the whole world has agreed. Self-determination is well-established in both the legal literature and actual practice of countries, and is an exalted normative domain in the contemporary international legal system. The recent clamor, then, is cruel. It does not help the people of Guam make sense of self-determination. It clouds, not clarifies, the law in this area. The following is a brief legal appraisal of self determination under international law, which is offered in an attempt to erase some of the confusion surrounding the fundamental human right.

What is the right of self-determination?

Upon the founding of the United Nations at the end of World War II and continuing thereafter, the international community increasingly recognized that the plight of colonized peoples, and later of indigenous peoples, must be terminated and their self-determination assured. The UN Charter itself, being both a political compact and an organic document, made but cursory references to this norm.

Its Article 1 calls for the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Article 55 then states that the United Nations shall promote, among other values, “universal respect for, and observance of, human rights and fundamental freedoms for all.”

Article 73, which addresses the rights of peoples in non-self-governing territories (like Guam) who have not yet attained a full measure of self-government, commands states administering them to “recognize the principle that the interests of the inhabitants of these territories are paramount.” These Administering Powers accept as a “sacred trust” the obligation to develop self-government in the territories, taking due account of the political aspirations of the people. Toward this end, subsection (e) of Article 73 commands Administering Powers to submit annual reports to the United Nations on the steps they have taken and the progress they have made to move the territories toward self-government.

The interpretation of these Charter articles has been set out in major declarations adopted by the United Nations General Assembly.

For instance, the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, or Resolution 1514, states that “[t]he subjection of peoples to alien subjugation, domination, and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.” Although the general rule is that declarations and resolutions of the General Assembly are not in themselves binding, to the extent that they illuminate and record the position of the international community on any given subject, they may be, and are frequently invoked as, evidence of the practice of states, which is a source of customary international law.


Moreover, where General Assembly resolutions concern general norms of international law, their acceptance by a majority vote both constitutes evidence of the opinions of governments on any given subject and provides a basis for the progressive development of the law.

The International Court of Justice (ICJ) in its 1975 advisory opinion in the Western Sahara case adopted this perspective when it relied heavily on General Assembly resolutions to establish basic legal principles concerning the right of peoples to self-determination.

Major international conventions, or treaties, have lent further meaning and growth to the concept of self-determination. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (known collectively as the 1966 Human Rights Covenants) enshrine self-determination as a right. Approved by the General Assembly in 1966, and legally binding as of 1976, these treaties bind those countries that ratify them. The first article in each covenant, identically worded, indicates the fundamental importance of the right of self-determination in international law and sets out its classic wording: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Finally, the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, also known as Resolution 2625 (XXV), provides that all peoples have the right to determine their political status without external interference, and that every state has the duty to respect this right.

Unlike the 1966 Covenants, which bind only those states that ratify them, Resolution 2625 is considered a datum of customary international law binding on all countries.

1 comment:

Anonymous said...

Wow...I was told by a mutual friend that you had written something VERY good, and having read this...I would have to agree. I heard you on a panel in Hawaii a while back, and was just as impressed at that time. Mahalo for the legal clarification...I will pass it around in the Kanaka Maoli community. We are allies. Besides the legal have a poetic way of writing that adds humanity to your legal arguments.