One of the core principles of international law which arise under customary law is the right of self-determination. Peoples of every nation have the legal right to decide their state of being in international law.
The right of self-determination is enshrined in several international treaties such as the United Nations Charter, the Helsinki Final Act 1975, and the International Convention on Civil and Political Rights. However, the right of self-determination is also recognized as a general principle of law.
The international Convention on Civil and Political Rights, under article 1, provides thus:
- 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.
- All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
- The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
The principle of self-determination is most important in this age when most constitutions provide for people power, the sovereignty of its people. – that all power lies with the people who shall exercise it wholly under the constitution, that the people may exercise their sovereign power either directly or through their democratically elected representatives, and some constitutions even provide for the delegation of people power to state organs such as parliament, the judiciary and the executive.
It is the right of self-determination that led to successful movements for decolonization of Africa in the 1960s. It is the right of self-determination that fueled the secessionist movements in Europe during and after the world wars.
Modern scholars of international law categorise self-determination into two:
- Internal self determination
- External self determination
Internal self determination refers to the many political and civil rights. It is the right of the people of every nation to exercise their people power. It is their right to participate in the democratic process of governance and to influence their future – politically, socially and culturally. In the West – Sahara case, the International Court of Justice defined self-determination as the need to pay regard to the freely expressed will of the people.
In this context, self-determination does not often imply secession from the state. It means that people have the right to decide how they are governed and by who. Does it therefore mean that when a government suppresses its people from protesting/demonstrating, when free speech is crashed, when a free media is suppressed, it is suppressing its people’s right to self-determination? Does it mean that when a government rigs an election, it is suppressing its people’s right of self-determination?
External self-determination refers to full legal independence/secession for the given people from the larger politico-legal state. In this context, it is a right of a state as against every other state in the world. External self-determination finds its basis in the rights of the state to be independent and sovereign.
I strongly advocate for the recognition of people’s rights of internal self-determination. This can be done in many ways. Adequate mechanisms should be developed at the national level to ensure that the people enjoy their right of self-determination. The right of self-determination is a form of checks and balances to several state organs and therefore is important for a properly functioning democracy.
Parliament (a body constituted by people power) has no moral authority passing legislation meant to muzzle people power.
Let me conclude by saying, “Amandla Awethu!”
BY SAMALI BITALA
This article appears in our digital magazine, The Deuteronomy Vol 7, Issue 2 of October 14th, 2016
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