Self-Determination: A Right in Three Parts - Exploring the History of the Principle and the Legitimacy of Claims to the Right by Persons, States, and Dependent Peoples in International Law

Abstract

The right to self-determination is uniquely difficult to define among the bundle of rights that exist in international law, at the outset, because the concept of self-determination appears in a number of different contexts in the international legal regime. The primary confusion surrounding the concept relates to the question of whom has the right to exercise it and on whose behalf. As a right extant in modern international law, self-determination began as a right belonging almost exclusively to states, but has since migrated into the realm of international human rights law and more recently found itself defined as a right belonging to “peoples,” further complicating the question of to whom the right belongs, in a legal sense. Thus, in order to define the scope of the right to self-determination, one must first clarify who is attempting to exercise it and in what context. This paper contends that the best way to clear up this confusion is to conceptualize the right as belonging to all three: persons, peoples, and states, but that the exercise, and therefore the obligation associated with the duty to protect the right, looks different at each different level. Although it runs counter to the historical development of the right, given recent developments in international public policy shifting towards a focus on the obligations of states to people, be they the states’ nationals or the nationals of another state, it seems clear that contemporary international law must lean more towards a natural law interpretation of the right. In this context, that means that each level builds upon the next, so the right primarily belongs to the person, but gets aggregated at each subsequent level, such that a people, and ultimately a state, may only legitimately exercise or enforce the right if it can be said to have obtained the consent of persons on whose behalf it is attempting to exercise it. As such, the paper will attempt to define the scope of the right to exercise at each subsequent level. Finally, as the International Court of Justice reasoned in the Barcelona Traction case, “[r]esponsibility is the necessary corollary of a right.” In other words, for a right to be enforceable, there must be an obligation capable of violation owed to the party seeking to enforce the right by some other party. As such, once the party attempting to exercise or enforce the right has been identified, allowing for a determination of the scope of the right to which that party is entitled, the next critical question is to whom the obligation to protect, promote, or, at the very least, not to infringe upon the right belongs. The paper will, therefore, also explore the notion of responsibility at each level in an effort to provide some insights regarding to whom the obligation belongs and the scope of the obligation as it corresponds to the scope of the right to exercise it.