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East Timor (Portugal
v.
Aus-
tralia)
case
286
when it declared that ‘Portugal’s assertion that the right of
peoples to self-determination, as it evolved from the Charter and from
United Nations practice, has an
erga omnes
character, is irreproachable.’
The Court emphasised that the right of peoples to self-determination
was ‘one of the essential principles of contemporary international law’.
287
However, in that case, the Court, while noting that for both Portugal and
Australia, East Timor (under Indonesian military occupation since the in-
vasion of 1975) constituted a non-self-governing territory and pointing
out that the people of East Timor had the right to self-determination, held
that the absence of Indonesia from the litigation meant that the Court
was unable to exercise its jurisdiction.
288
These propositions were all reaf-
firmed by the International Court in the
Construction of a Wall
advisory
opinion.
289
The issue of self-determination came before the Supreme Court of
Canada in
Reference Re Secession of Quebec
in 1998 in the form of three
questions posed. The second question asked whether there existed in
international law a right to self-determination which would give Quebec
the right unilaterally to secede.
290
The Court declared that the principle
of self-determination ‘has acquired a status beyond “convention” and is
considered a general principle of international law’.
291
286
ICJ Reports, 1995, pp. 90, 102; 105 ILR, p. 226.
287
Ibid.
288
ICJ Reports, 1995, pp. 105–6. The reason related to the principle that the Court is unable
to exercise jurisdiction over a state without the consent of that state. The Court took
the view that Portugal’s claims against Australia could not be decided upon without an
examination of the position of Indonesia, which had not consented to the jurisdiction of
the Court. See further below, chapter 19, p. 1078.
289
ICJ Reports, 2004, pp. 136, 171–2; 129 ILR, pp. 37, 89–91.
290
(1998) 161 DLR (4th) 385; 115 ILR, p. 536. The first question concerned the existence
or not in Canadian constitutional law of a right to secede, and the third question asked
whether in the event of a conflict constitutional or international law would have priority.
See further below, chapter 10, p. 522, on the question of secession and self-determination.
291
(1998) 161 DLR (4th) 434–5.
256
i n t e r nat i o na l l aw
The definition of self-determination
If the principle exists as a legal one, and it is believed that such is the case,
the question arises then of its scope and application. As noted above, UN
formulations of the principle from the 1960 Colonial Declaration to the
1970 Declaration on Principles of International Law and the 1966 Interna-
tional Covenants on Human Rights stress that it is the right of ‘all peoples’.
If this is so, then all peoples would become thereby to some extent subjects
of international law as the direct repositories of international rights, and if
the definition of ‘people’ used was the normal political–sociological one,
292
a major rearrangement of international law perceptions would have been
created. In fact, that has not occurred and an international law concept
of what constitutes a people for these purposes has been evolved, so that
the ‘self ’ in question must be determined within the accepted colonial
territorial framework. Attempts to broaden this have not been successful
and the UN has always strenuously opposed any attempt at the partial or
total disruption of the national unity and territorial integrity of a coun-
try.
293
The UN has based its policy on the proposition that ‘the territory
of a colony or other non-self-governing territory has under the Charter a
status separate and distinct from the territory of the state administering
it’ and that such status was to exist until the people of that territory had
exercised the right to self-determination.
294
Self-determination has also
been used in conjunction with the principle of territorial integrity so as to
protect the territorial framework of the colonial period in the decolonisa-
tion process and to prevent a rule permitting secession from independent
states from arising.
295
The Canadian Supreme Court noted in the
Quebec
case that ‘international law expects that the right to self-determination
will be exercised by peoples within the framework of existing sovereign
states and consistently with the maintenance of the territorial integrity of
292
See e.g. Cobban,
Nation-State
, p. 107, and K. Deutsche,
Nationalism and Social Commu-
nications
, New York, 1952. See also the
Greco-Bulgarian Communities
case, PCIJ, Series
B, No. 17; 5 AD, p. 4.
293
See e.g. the Colonial Declaration 1960; the 1970 Declaration on Principles and article III
[3] of the OAU Charter.
294
1970 Declaration on Principles of International Law. Note also that resolution 1541 (XV)
declared that there is an obligation to transmit information regarding a territory ‘which
is geographically separate and is distinct ethnically and/or culturally from the country
administering it’.
295
See e.g. T. M. Franck,
The Power of Legitimacy Among Nations
, Oxford, 1990, pp. 153 ff.;
Franck, ‘Fairness in the International Legal and Institutional System’, 240 HR, 1993 III,
pp. 13, 127–49; Higgins,
Problems and Process
, chapter 11, and Shaw,
Title
, chapters 3 and
4.
t h e s u b j e c t s o f i n t e r nat i o na l l aw
257
those states’.
296
Self-determination as a concept is capable of developing
further so as to include the right to secession from existing states,
297
but
that has not as yet convincingly happened.
298
It clearly applies within the
context, however, of decolonisation of the European empires and thus
provides the peoples of such territories with a degree of international
personality.
The principle of self-determination provides that the people of the
colonially defined territorial unit in question may freely determine their
own political status. Such determination may result in independence, in-
tegration with a neighbouring state, free association with an independent
state or any other political status freely decided upon by the people con-
cerned.
299
Self-determination also has a role within the context of creation
of statehood, preserving the sovereignty and independence of states, in
providing criteria for the resolution of disputes, and in the area of the
permanent sovereignty of states over natural resources.
300
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