Right Of Self-determination Research Articles

Chagos in the South Pacific? The principle of self-determination and the France-Vanuatu dispute over the Matthew and Hunter Islands

Abstract The dispute over the Matthew and Hunter Islands (MHIs) has long been a constant strain on Vanuatu-French relations. The article examines this dispute in light of the Chagos Advisory Opinion and a few other cases concerning territorial disputes. It first submits that sovereignty over the MHIs had never been raised until 1962, when, at the occasion of a private claim, France and Britain, the two administering powers of the New Hebrides at that time, considered the issue. The two states reached an agreement in 1965, asserting that the MHIs were part of the French colony of New Caledonia and not the British-French Condominium of the New Hebrides. This article then considers the legal implications and lawfulness of the agreement, which did not take into account the local populations’ will. Although there are some important differences between the Chagos and MHIs disputes, mainly due to the fact that the MHIs are uninhabited, the applicability of the right of self-determination to both cases is nevertheless beyond doubt. The article contends therefore that the 1965 Agreement between France and Britain may constitute a violation of the right to self-determination of the people of the New Hebrides (Vanuatu), who were not consulted on the decision to attach the MHIs to the French territory of New Caledonia, and suggests that there may be, however, some other legal principles under international law that can come into play. Finally, the article contends that negotiated solutions could be a potential way forward for the parties involved.

Evaluation of Theory of Remedial Secession in International Law and Its Corresponds to the Demand for Independence of the Kurdistan Region

The main subject of this study is “Remedial secession,” which emerged associated with the global development and promotion of human rights in a non-colonial context as a new theory of the principle of external self-determination right. In this respect, this study aims to analyze the direction and history of the Remedial secession paradigm and explain how the doctrine of this theory has formed and turned into conventional practice. Besides, in addition to a description of the foundation of remedial succession theory, several successful practical patterns of implementation of this theory all around the world have been introduced. Finally, the conventional position and legislation process of the theory of remedial succession in international law were evaluated and based on the current theory, the separation of the Kurdistan Region from Iraq was studied.

Legal basis for the use of covert means

Aim: The use of covert means is any information gathering intelligence operation (secret police activity) in which the authorised authorities of the State seek to obtain new knowledge in the course of administrative and criminal proceedings without the knowledge of the holder of the information, by limiting the right of self-determination. In dictatorships, this form of exercise of state power is also dominated by arbitrariness. Constitutional states place the use of secret means on a public law basis. This study aims to demonstrate that it is possible to regulate acts of public authority that are at the heart of secrecy by means of legal instruments whose core is publicity. Methodology: The objective outlined above can only be achieved if the dogmatic and moral characteristics of the legislation are harmonised with the specific characteristics of the secret police. The task is not easy. Legislation is always about the future and is always based on abstract prognosis; covert intelligence aims to discover the past, the present and the future, and the knowledge to be acquired is always unique and concrete. Finidings: The abstract nature of the regulation and the uniqueness of the intelligence operation resolve the contradiction between publicity and secrecy. What is public is the rule, what is secret is the application of the rule to a specific situation. However, legislation can become fully formalised when it no longer imposes limits on the operation of state power, but merely authorises it, opening the way to free discretion. In such a case, the guise of legality conceals an untrammelled power. Value: Law that serves humanity is an effective means of preserving social order. Secret data-collection requires a limitation of rights, yet it is indispensable to combat violations (principle of necessity), provided that it does not cause more serious harm than the threat against which it is used (principle of proportionality).

Legal basis for the use of covert means

Aim: The use of covert means is any information gathering intelligence operation (secret police activity) in which the authorised authorities of the State seek to obtain new knowledge in the course of administrative and criminal proceedings without the knowledge of the holder of the information, by limiting the right of self-determination. In dictatorships, this form of exercise of state power is also dominated by arbitrariness. Constitutional states place the use of secret means on a public law basis. This study aims to demonstrate that it is possible to regulate acts of public authority that are at the heart of secrecy by means of legal instruments whose core is publicity. Methodology: The objective outlined above can only be achieved if the dogmatic and moral characteristics of the legislation are harmonised with the specific characteristics of the secret police. The task is not easy. Legislation is always about the future and is always based on abstract prognosis; covert intelligence aims to discover the past, the present and the future, and the knowledge to be acquired is always unique and concrete. Finidings: The abstract nature of the regulation and the uniqueness of the intelligence operation resolve the contradiction between publicity and secrecy. What is public is the rule, what is secret is the application of the rule to a specific situation. However, legislation can become fully formalised when it no longer imposes limits on the operation of state power, but merely authorises it, opening the way to free discretion. In such a case, the guise of legality conceals an untrammelled power. Value: Law that serves humanity is an effective means of preserving social order. Secret data-collection requires a limitation of rights, yet it is indispensable to combat violations (principle of necessity), provided that it does not cause more serious harm than the threat against which it is used (principle of proportionality).

The War on Tigray: Geopolitics and the Struggle for Self-Determination

Tigray continues to be a unique case among ancient kingdoms, Westphalia nation-states, post-colonial Africa, and post-Cold War national liberation struggles. It is one of the oldest civilizations (Aksumite Kingdom) and the historical, cultural, and political soul of ancient and modern Ethiopia. But it was made to be an ‘oppressed nation struggling for regional autonomy and survival from genocidal aggression’ by the empire state of Ethiopia and the ‘garrison state’ of Eritrea. It also survived Egyptian and Mahdist expansionists, and Italian colonialism, though it lost ‘Bahre-Negash’ (Eritrea) to Italy due to the Wuchale Agreement (or Treaty of Wichale) in 1889. Eritrea was handed over to Italian colonialists by Menelik II of Shewa-Amhara in order to weaken Tigray’s geopolitical power base. Tigray was also the hotbed of the first Woyane rebellion in 1943 which sparked the idea of ‘land to the Tiller, fair taxation, and self-rule,’ and the Tigray People’s Liberation Front (TPLF) led the second Woyane rebellion (1975–91) that restructured the empire state of Ethiopia into a federation with the 1995 constitution. Since 2018, after 27 years of the Ethiopian People’s Revolutionary Democratic Front (EPRDF)- led federal experiment, Tigray again became a victim of a ‘genocidal war’ led by the Ethiopian federal army, Amhara forces, Ethiopian regional forces, and Eritrean army, supported by UAE and Turkey drones, and the Somalian army. The international community and the African Union supported Abiy Ahmed and Issaias Afewerki’s genocidal war in the name of “maintaining the territorial integrity of Ethiopia” by neglecting the principles of Responsibility to Protect (R2P), people’s self-determination rights, and the prevention of genocide. Tigray, therefore, is a rare case in the vicious cycle of violence. The Tigrayan ‘two-year’ survival war (from November 2020 to November 2022) against those who practice genocide was destined to break Tigray’s historically vicious cycle of violence perpetrated by Ethiopia and Eritrea. The paper aims to investigate the historical, geopolitical, and security reasons that have trapped Tigray into facing the post-2020 genocidal war.

Resistance and Change in Form and Content of International Law: A Third World Perspective on Commodity Form Theory of International Law

Can Marxists, especially in the Third World, use international law for progressive social change? Responding to the Soviet Union's context and its jurisprudential challenges in constructing socialism, Pashukanis's seminal work on commodity form theory is nihilistic, assuming the very nature of form of international law as bourgeois with limited possibilities of radical change as its new content. European Marxism, on the other hand, in its context of revolutionary defeat and consequent postmodernist pessimism of cultural Marxism, either relies on Pashukanis's nihilistic position or a pragmatist and realist posture, insisting on staying within the law's bourgeois form and being content with social democracy. As opposed to this, Third World Approaches to International Law (TWAIL) scholars, while exploring the imperialist nature of international law and representing one variant of Third World Marxism, have been more optimistic, wanting to use international law to restrain and shield against powerful Western states, i.e., they believe that the content of Third World resistance can change the form of international law. This article deconstructs this class “content” of international law in the understanding of TWAIL and shows the postcolonial Third World states, and even in the yet to be independent states, were dominated by their dependent local elite, which had compromised by the ex-colonizers and had started blocking radical structural changes in Third World. Soon, the target of imperialism and the Third World elite became radical movements in the Third World, and this struggle of the marginalized shaped international law. Therefore, relying on the radical tradition of Third World Marxism and taking the right of self-determination as an example, this article argues that both the content and form of international law were simultaneously used, subverted, and changed in a dialectical and dynamic way by the resistance of the people of the Third World.

THE SOVEREIGNTY OF STATES OVER NATURAL RESOURCES AND THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION FROM THE INTERNATIONAL HUMAN RIGHTS LAW

This paper focuses on the analysis of the principle of State sovereignty over natural resources (PSNR) from the perspective of International Human Rights Law. The United Nations Declaration and the American Declaration on the Rights of Indigenous Peoples, which recognize their right to self-determination and the right to collective property, raise the hypothesis about the extension of the PSNR towards the recognition of the rights of indigenous peoples to exercise jurisdiction over their ancestral lands and territories. A documentary study of the origin and development of the PSNR has been carried out in relation to the right of self-determination of peoples and it is concluded that in a non-colonial context, indigenous peoples are holders of that right and that the right to their territories, to Land and natural resources are elements of the PSNR, which is the basis of its political and economic autonomy. The failure of States to respect and guarantee these rights promotes the risk of secession.

Judicial Autonomy of Vilnius and 16 January 1566 Privilege of Sigismund Augustus – Guaranteeing the Rights of Self-Government in the Context of Judicial Reform

In 1387, Jogaila’s privilege granted Vilnius the Magdeburg law and guaranteed the judicial autonomy of its citizens. Vilnius citizens had the right and the obligation to conduct their legal affairs in the courts of the Vaitas, the Bench judges and the Council, which started to function from the moment the privilege of self-governance was granted or shortly afterwards, and to be governed by Magdeburg law. The preservation of judicial autonomy had to be constantly taken care of, and the Vilnius city authorities did this by securing confirmatory privileges of self-governance and, if necessary, the ruler’s injunctions against their violation by the Vilnius Palatine and Bishop, whose courts some times violated the judicial autonomy of Vilnius. In this respect, one of the critical moments was the reform of the courts of the Grand Duchy of Lithuania and the renewal of the Statute of Lithuania in the pre-union period (the 1560s). During the reign of Sigismund Augustus, King of Poland and Grand Duke of Lithuania, the City of Vilnius was granted as many as three Confirmation privileges, which renewed the rights of self-governance and ensured the inviolability of the city’s legal autonomy during the period of judicial reform and the adoption of the Second Lithuanian Statute. The last one, on 16 January 1566, crowned the intense struggle of Vilnius citizens during the years of great changes in the Grand Duchy of Lithuania.

The Rationale of Turkish Cypriot Position on Two-State Solution in Cyprus

This article examines the rationale behind the Turkish Cypriot position on the Two-State solution in Cyprus. The analysis consists of three interrelated parts. Initially, the question of whether Turkish Cypriots are entitled to ‘peoplehood’ that can exercise the right of self-determination according to international law is discussed. This is followed by evaluating the reasons driving the Turkish Cypriot side to exercise the right of self-determination and whether Turkish Republic of Northern Cyprus (TRNC) fulfills the criteria for statehood. In accordance with arguments carried out in the previous sections, the final part delves into the reasons for the Turkish Cypriot position on the Two-State solution in Cyprus in detail. It is argued that Turkish Cypriot people possess all of the attributes of statehood and are entitled to the same rights and status as the Greek Cypriot side currently exercises. Therefore, reinstating Turkish Cypriot people’s rights by reaffirming their sovereign equality and equal international status is necessary for a just and sustainable settlement in Cyprus.

Should obstetric mortality be an inalienable right?

Obstetricians often times find themselves in a conflict of right and duty with their patients, when these patients refuse recommended treatment. On the one hand, the obstetrician, aiming to fulfil the duty of care, recommends a treatment in the best interest of the woman. The woman, on the other hand, exercising her right of self-determination and autonomy, declines the recommended treatment. A search was conducted for literature, articles and case reports on the subject on PubMed/MEDLINE and Google Scholar using the keywords: medical ethics, medical law, obstetric mortality, maternal medicine, foetal medicine, patient autonomy, informed consent, right to life and right to liberty. Opinions have historically differed on whether maternal or foetal rights should be deferred to in situations where pregnant women refuse obstetric interventions. So also have legal decisions on the issue. The general consensus is, however, to respect a woman's refusal of recommended medical treatment, in deference to her right of self-determination and autonomy. The obstetric outcomes in such instances are however, often times, unfavourable. The ethics of patient care in the face of conflicting rights deserves renewed examination and discourse.

Differences in sexual development-S2k guideline update

Human beings with adifference in sexual development (DSD) often underwent gender reassignment surgery during early childhood. However, the medical decision was often not congruent with the gender identity that affected persons developed later on. To represent the interests of affected persons, an interdisciplinary guideline in cooperation with support groups was written. The revision of the first version of the guideline, published in 2016, was edited by 18professional societies and working groups as well as 3support groups. Aliterature search was performed for each of the 12chapters. Recommendations and statements created by the working groups were voted on during four consensus conferences. The guideline highlights the right of self-determination of affected persons. In this context, new legal requirements are reported. Other than necessary primary diagnostics, medical procedures should be postponed. Most important is the psychological support of parents and patients. Tumor risk of the gonads and protection of fertility are analyzed and discussed in detail. The content of the guideline represents aparadigm shift in dealing with human beings with adifference of sexual development. Projects as DSD Care and Empower-DSD help to promote the practical implementation of the guideline's recommendations.

The Council of Europe and the Catalan Secessionist Process: The Authoritarian Drift of the Radical Democratic Principle

This study shines a light on the problem of Catalan secessionist leaders’ abuse of the term “democracy”, an issue rarely discussed in the academic debate. The Catalan secessionist case has mainly been studied as a problem concerning the principle of territorial integrity and how it relates to the existence (or otherwise) of a right of self-determination for a substate entity. However, it is also a problem of democracy. For the entire secessionist process was based on a democratic principle outside and against the Spanish Constitution: one that defends the supremacy and inviolability of the (regional, in this case) parliamentary majority over the rule of law and respect for minority rights. It thus pitted a radical or identity-based democracy against the democracy protected and promoted by the Council of Europe (in which the rule of law, human rights and democracy are inseparable principles forming a single whole). The Venice Commission, the European Court of Human Rights and a divided Parliamentary Assembly have all witnessed this defence of authoritarianism through the radical democratic principle advocated by the leaders of the Catalan process. In response, the first two have defended constitutional democracy, the common heritage on which European public order is based. In 2021, the PACE took a short-lived position (it has adopted no further resolutions in this sense), buoyed by a weak majority, in favour of the Catalan radical democratic principle. Two years later, however, it, too, would defend constitutional democracy as the “genuine democracy” to which the 1949 Treaty of London refers, albeit again by a slim majority. The study concludes that there is no place for the radical democratic principle in Council of Europe law.

On the International Law Issues of Crimean Public Investment in Russia

On March 16, 2014, Crimea held a referendum to leave Ukraine as part of the Russian Federation. The referendum is a legal procedure used by the people of a region when applying the principle of national self-determination, while the public investment in Crimea involves national sovereignty and territorial integrity. So, when the principle of national self-determination and territorial integrity conflict, does the referendum comply with international law and be recognized? Crimea and public investment in Russia are the case of "foreign self-determination". This paper analyzes the applicable conditions of "foreign self-determination" and the situation of the Crimean people's exercise of the right of national self-determination, and makes specific judgments on the legitimacy of Crimea and public investment in Russia.

On the International Law Issues of Crimean Public Investment in Russia

On March 16, 2014, Crimea held a referendum to leave Ukraine as part of the Russian Federation. The referendum is a legal procedure used by the people of a region when applying the principle of national self-determination, while the public investment in Crimea involves national sovereignty and territorial integrity. So, when the principle of national self-determination and territorial integrity conflict, does the referendum comply with international law and be recognized? Crimea and public investment in Russia are the case of "foreign self-determination". This paper analyzes the applicable conditions of "foreign self-determination" and the situation of the Crimean people's exercise of the right of national self-determination, and makes specific judgments on the legitimacy of Crimea and public investment in Russia.

The End of Liberal Peacebuilding

The End of Liberal Peacebuilding

Ethical challenges of technological advance: Apple Vision Pro

Addressing the ethical developments of the technology involved in the Apple Vision Pro device that proposes access to virtual and augmented reality, we address the evolution of the technology involved in contrast to the slow development of law, highlighting the need for regulation adaptable to social and technological changes. This article aims to propose a discussion about the role of law in user privacy considering legal and ethical implications, especially in relation to the rights of privacy and self-determination. In this context, the influence and neutrality of algorithms are addressed from the aspect of political control, raising the need for a dialogue between science, technology and their influence on democracy so that this technology does not interfere with the protection of individual and collective rights. The present study is based on exploratory research, with bibliographic analysis based on data collection on updated scientific material on the topic.

Media Discourse on the Kashmir Conflict after Abrogation of Article 370

The study tries to unfold how the Kashmir conflict is constructed in the Pakistani media after the abrogation of Article 370 of the Indian Constitution. To understand the media discourse a Critical discourse analysis of the news stories published about Indian held Kashmir (i.e. that part of the former princely state of Jammu and Kashmir occupied by India post the 1947 partition, notably the valley of Kashmir) in the e-paper of Dawn was carried out. The findings reveal a distinctive narrative strategy employed by Pakistani media in response to the abrogation of Article 370. This strategy accentuates the negative aspects of the Indian government's actions in Kashmir while simultaneously highlighting the voices of Kashmiris advocating for their right of self-determination. The findings also indicated that media discourse revolved around challenging the legitimacy of the Indian Parliament’s act of abrogating Article 370 and also focused on the casualties and losses which took place as a result of clashes between the Indian security forces and the Kashmiri separatist fighters. The media also gave significance to social media trends about Indian held Kashmir and also to posts of Kashmiri and Pakistani politicians. Negative actor description was used to highlight Bharatiya Janata Party (BJP)’s propaganda regarding the return of normalcy in the Indian held Kashmir whereas positive actor description was used for the Kashmiri separatist fighters.

Study on the relationship between technology, data and body isomorphism—The example of smartwatches

The Smart Watch has become an important tool for individuals to understand the physical body, construct the technological body and promote the right of self-determination of the body. This study examined the daily self-tracking practices of 25 smartwatch users through participatory observation and semi-structured interviews. On the one hand, the tracking data generated by the smartwatch helps to build the technological body, thus digitizing the body and empowering the individual's body cognition. On the other hand, continuous monitoring results in the body being shaped by technology and data, and people bear the cost of digitization under the power of Technology. This study also noted the care logic of smart watches. When children give their parents smart watches as gifts, a lively and powerful practice of digital care is taking place. The investigation of the self-tracking practice in the use of smart watches is helpful to understand the role of data technology in contemporary life politics from the perspective of human subjectivity.

Can an effective end-of-life intervention for advanced dementia be viewed as moral?

Many people dread prolonged dying with suffering in the terminal illness, advanced dementia. To successfully facilitate a timely dying, advance directives must be effective and acceptable. This article considers whether authorities, including treating physicians, can accept as moral, the effective intervention that ceases caregivers' assistance with oral feeding and hydrating. The article presents eight criticisms and "alternate views" regarding ceasing assisted feeding/hydrating. It draws on perspectives from clinical medicine, law, ethics, and religion. The conflict is between (A) people's core beliefs that reflect cultural norms and religious teachings regarding what is moral versus (B) patients' autonomous right of self-determination and claim right to avoid suffering. The article presents each side as strongly as possible. Accepting the intervention as moral could allow patients a peaceful and timely dying from patients' underlying disease. Confidence in future success can deter patients and their surrogates from considering a hastened dying in earlier stages of dementia.

How Lincoln Scooped Habermas

In opposing Stephen Douglas’s alleged popular right to choose a slave constitution, Abraham Lincoln developed a rudimentary conception of the normative presuppositions of democratic rights that prefigures the theory of popular sovereignty articulated by Jürgen Habermas. While Lincoln was influenced by a civic republican conception of natural rights, and referred to personal autonomy in arguing that some political choices violate the grounds of collective self-governance rights, both Lincoln—as read by Jaffa—and Habermas conceive human rights not as trans-political principles but as linking moral norms with the rule of law (or coordination through political power in general). The comparison shows that Habermas’s approach to the co-originality of civil liberties and democratic rights implies that legitimate secession, revolution, and primary constituent authority must be oriented toward creation of a just legal order. This enriched linkage approach explains why the right to democracy, like the right to basic liberty, is inalienable.