JUS5710/JUR1710 Institutions and Procedures

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1 JUS5710/JUR1710 Institutions and Procedures 1 T H E R I G H T O F S E L F - D E T E R M I N A T I O N U N P R O C E D U R E S

2 The right to self-determination Changed the international law setting from being solely state oriented, to include peoples and nations in international affairs. Controversial principle Established as part of international law: Anti-colonialist standard A ban on foreign military occupation A requirement that all racial groups shall have full access to government (Cassese, 2005) As part of international human rights law 2

3 Scope of the right to self determination (1) 3 Internal and External aspects: o 126 The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination -- a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. External self-determination can be defined as in the following statement from the Declaration on Friendly Relations as [t]he establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people. [Emphasis added.] (Reference re Secession of Quebec, Supreme Court of Canada, 20 August 1998)

4 Scope of the right to self determination (2) Respect for territorial integrity: 4 In accordance with the Declaration on Principles of International Law concerning Friendly Relations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind. (Vienna Declaration and Programme of Action, A/CONF.157/23 (12 July 1993) para. 2.)

5 International Instruments Charter of the United Nations Article 1.2 GA Res (XV) 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples All peoples have the right to self-determination in decolonialization process GA Res.2625 (XXV) 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations o 5 Equal rights and self-determination of all peoples a right of political self-determination Common Article 1 of the ICCPR and the ICESCR Article 3 and 4 of the UN Declaration of the Rights of Indigenous Peoples

6 Independence of Namibia 6

7 UN Charter (1) Article 1 of the Charter of the United Nations (1945): The Purposes of the United Nations are: To maintain international peace and security, 7 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; To achieve international co-operation nd in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and Article 2 of the UN Charter: o The organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following principles... o Which are the important principles?

8 Article 55 UN Charter (2) 8 With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations based on respect for the principle of equal rights and selfdetermination of peoples, the United Nations shall promote: c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. Article 56 All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55

9 UN Charter (3) Non-self-governing territories Article 73 (b) Trust territories Article 76(b) GA Res (XV) 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples All peoples have the right to self-determination GA Res.2625 (XXV) 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations Equal rights and self-determination of all peoples Respect for territorial integrity of states 9

10 Rights and obligations The use of force limitation as to the use of force by States against legitamte claims to self-determination and legitimate liberation movements etc have a right to the use of force o Humanitarian law If denial of the right to self-determination bring the question before competent UN bodies. o Which? Territorial claims o o o 10 Title to territory in violation of the right to self-determination Idea of terra nullius Transfer of territory without consent of the population

11 The two UN Covenants 11 Article 1 ICCPR and the ICESCR: 1. 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 2. All peoples may for their own ends, freely dispose of their natural wealth and resources In no case may a people be deprived of its own means of subsistence 3. The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self- Governing and Trust Territories, shall promote the realization of and shall respect that right, in conformity with the provisions of the Charter of the United Nations

12 Identical Article 1: The two UN Covenants Political, cultural and resource dimensions Political: External aspect: sovereignty Internal aspect: governance a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. No deprivation of own means of subsistence (Art. 1.2) Art. 47 for the interpretation Obligations on all states to promote and respect the right of self-determination (Art. 1.3) 12

13 Indigenous peoples 13 GA Res. 61/ United Nations Declaration on the Rights of Indigenous Peoples Article 3: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development Cf. ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989) Articles 1, 6, 7, 13, 14 and 15

14 Indigenous peoples GA Res. 61/ Declaration on the Rights of Indigenous Peoples Article 4: Indigenous peoples, in exercising their right to selfdetermination, have the right to autonomy or selfgovernment in matters relating to their internal or local affairs, as well as means of financing their autonomous functions. Article 20.1: Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress. See also Art. 28 Articles 26-30, 32, 31 14

15 ICCPR Reporting (Art. 40) (ICESCR) Inter-state communications (Art.41) Procedures Individual communications (Art. 1 Optional Protocol) Lubicon Lake Band case v. Canada 15 the question whether the Lubicon Lake Band constitutes a "people" is not an issue for the Committee to address under the Optional Protocol to the Covenant. The Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. There is, however, no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged breaches of their rights. Human Rights Council UPR Special procedures Complaints procedures: consistent patterns of gross and reliably attested violations of human rights

16 ICCPR 16 Progressive development interdependence of rights Gen Comment 12- right of self-determination The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants. Political dimension and resource dimension meaningful consultation of affected indigenous or minority group/community effective participation - the decision-making process must be effective, which requires not mere consultation but the free, prior and informed consent of the members of the community. securing the sustainability of traditional/distinctive way of life of the group Kitok v. Sweden, Lubicon Lake Band v. Canada, Länsman cases v. Finland, Angela Poma Poma v. Peru Cf. Gen Comment 23 rights of minorities of the HRCmmttee Cf. Gen Recommendations 21 (right to self-determination) and 23 (the rights of indigenous peoples) of the CERD

17 ICCPR or ECSCR Other treaty bodies CERD? Human Rights Council Principal organs GA, SC, ICJ? Procedures 17

18 For discussion Think about how a case of a violation of the right of self-determination could be handled through UN Procedures? Positive or negative aspects with different alternatives. 18

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