Public International Law Project

TAMIL NADU NATIONAL LAW SCHOOL

PUBLIC INTERNATIONAL LAW PROJECT ON

TERRIRORIAL INTEGRITY AND SELF DETERMINATION APPROACH OF INTERNATIONAL LAW

SUBMITTED IN THE PARTIAL FULFILLMENT OF B.COM. L.L.B (Hons.), SIXTH SEMESTER

Submitted to: Asst. Prof. NIKITA PATTAJOSHI Submitted by: Bhagwat Sharma; BC0140019

Table of Contents Chapter - I: Introduction..................................................................................................................1 Research Questions..................................................................................................................... 2 Chapter - II: Historical Context.......................................................................................................2 Chapter - III: Development............................................................................................................ 5 Chapter - IV: The Inter-Relation.................................................................................................... 9 Chapter - V: Conclusion................................................................................................................12 Bibliography..................................................................................................................................13

Chapter 1: Introduction The emergence of International Law is closely connected with the formation of independent states. It is intended to govern the conduct of independent states in their relationship with one another via norms and principles. Territorial integrity and self-determination of nations are two principles of the International Law, which raise a lot of debates because of a supposed conflict. Territorial integrity refers to the protection of an independent state’s territory from aggression of other states and Self-determination is defined as a right of nations to freely decide their sovereignty and political status without external compulsion or outside interference. Thus, territorial integrity is related to the relations among sovereign independent states, while self determination refers to the relations between an independent state and a people. The principles of territorial integrity and self-determination are integral parts of the International Law. The importance of these principles is enormous in the international community. The first is closely connected with a basic order in interstate relations, while the second is a fundamental human right. The so called conflict between the two is that the self-determination principle advocates for countries to freely determine their international politics status and sovereignty without outside interference challenges the territorial integrity principle. This is because states are made legitimate by people, which means that people should be given freedom to choose territorial boundaries and states as they wish. Self -determination therefore comes in conflict with the principle of territorial integrity which advocates for fixed territories among states which should be respected by the rest of the world to avoid acts of aggression. The complete implementation of the principle of self-determination undermines the principle of territorial integrity. Both the principles are important when defining international politics and law and the international law has given each one its own dimension to grow without any conflict so as to cater to the need of global peaceful coexistence without any interference to the exercise of sovereignty by every legitimate state and the sovereign.

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Research Questions 1) What is the scope of the principles of self determination and territorial integrity in the international law? 2) How did the principles of self determination and territorial integrity came to be what they are today in the international law? 3) What is the approach of international community and international law towards these principles? 4) Is there any conflict between the two principles that restrict them both from a total application?

Chapter 2: Historical Context Self-Determination: The roots of the self-determination concept go back to the political ideas of Aristotle, later John Locke and Jean-Jacques Rousseau. The core philosophical meaning of the principle was that every human being has a right to control his own destiny. Nevertheless, this idea was not accepted in the past. The concept was also included in Marxist doctrine as a right of working class to liberate from capitalism1. The further development of the idea brought to its political implication. The rebirth of self-determination was related to the World War I. The greatest advocates of the principle in its political aspect were V. Lenin and W. Wilson. The US president W. Wilson believed that national self-determination was very important in maintaining peaceful relations among nations. Self-determination is an ancient political right that is cherished by every people.

The

word

“self-determination”

is

derived

from

the

German

phrase

“Selbstbestimmungsrecht der Völker”. While discussion of the political right and principle of self-determination has a long history, the process of establishing it as a principle of international law is of more recent origin. The codification of international law is today mostly achieved through an international convention drawn up in a diplomatic conference or, occasionally, in the UN General Assembly. 1 Edita Gzoyan; Lilit Banduryan, Territorial Integrity and Self Determination: Contradiction or Equality, Sept. 2011 4 | Page

The political origins of the concept of self-determination can be traced back to the American Declaration of Independence of July 4, 1776. President Woodrow Wilson, introducing the concept to the League of Nations in 1919, described self-determination as "the right of every people to choose the sovereign under which they live, to be free of alien masters, and not to be handed about from sovereign to sovereign as if they were property."2 Self-determination, as a principle of international law, originated following World War I with the development of the mandate system. The mandate system was to some degree a compromise between outright colonialism and principles of self-determination. The mandate derived from Roman law notions under which property of certain peoples unable to manage their own affairs was placed under the control of a guardian. Sovereignty over the property remained with the ward. In the following two decades, the acceptance of the principle of self determination was reflected by, inter alia, its incorporation into the Soviet Constitution as Article 29 of the Constitution of the Union of Soviet Socialist Republics, adopted in 1917, stated that the USSR's relations with other states were based on, inter alia, "the equal rights of peoples and their right to decide their own destiny." And, most significantly, into article 1 of the Charter of the United Nations.3 The definition was further elaborated regarding the manner in which the right could be implemented. The right to self-determination can be exercised in one of three ways - integration, free association or independence - but whichever method is chosen, it is clear that it is the process itself which is the "essential feature."4 The principle has been confirmed, developed, and given more tangible form by a consistent body of state practice and has been embodied in various international instruments. Those deprived of

2 Eric M. Amberg, Self-Determination in Hong Kong: A New Challenge to an Old Doctrine, 22 SAN DIEGO L. REV. 839, 842 (1985).

3 Article 1, U.N. Charter, 1945. 4 Western Sahara Case, Para. 57 International Court of Justice 12 (1975) 5 | Page

the right of self-determination can seek forcible international support to uphold their right of selfdetermination.

Territorial Integrity: The concepts of territorial integrity and political independence emerged during the years immediately following the end of World War I. The Covenant of the League of Nations stipulated, “The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.”5 The same understanding of territorial integrity was reaffirmed in the UN Charter, "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”6 The other important international instrument often referred to is the Helsinki Final Act (adopted on Aug. 1, 1975), and requires the following: “The participating States will respect the territorial integrity of each of the participating States. Accordingly, they will refrain from any action inconsistent with the purposes and principles of the Charter of the United Nations against the territorial integrity, political independence or the unity of any participating State, and in particular from any such action constituting a threat or use of force.”7 It is apparent that ever since the first time the notion of territorial integrity appeared within the domain of international law, it has been closely intertwined with the question of the use of external force. In other words, the principle of territorial integrity is traditionally interwoven with the fundamental principle of the prohibition of the threat or use of force and not with the absolute preservation of the territory of a state intact. It is just the prohibition of use of external force and the renunciation of the use of force by one state to conquer another state or overthrow its 5 Article 10, The Covenant of The League of Nations, 1919. 6 Article 2(4), U.N. Charter, 1945 7 Conference on Security and Co-operation in Europe Final Act, Helsinki 1975, 1(a) IV, Territorial Integrity of States 6 | Page

government and does not unconditionally advocate for the absolute maintenance of territorial integrity. It only makes clear that use of external force or threat of use against territorial integrity and political independence is unacceptable. In modern political life there are repeated wrongful attempts to present territorial integrity as a general limitation on the right to self-determination.

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Chapter 3: Development Self-Determination: Self-determination of peoples as a practice has its origins in the American and French Revolutions of the Eighteenth Century, developing naturally with the political, ethnic and linguistic demands of ethnic groups8 . In fact, during the time of World War I, the concept of selfdetermination served as a major tool in the creation of individual nation-States out of the ruins of the Austro-Hungarian and Ottoman Empires. Yet, it was not until the adoption of the United Nations Charter in June 1945 that the doctrine of self-determination was codified, or brought into the realm of positive international law. Fifty years after the adoption of the Charter, in the Case Concerning East Timor, the International Court of Justice affirmed that: "The principle of self-determination has been recognised by the United Nations Charter and in the jurisprudence of the Court … [and] is one of the essential principles of contemporary international law."9 The nature, content and concept of self-determination has largely been formulated in the modern international law by the international acts that include and have fleshed out the concept of selfdetermination. These Acts are: 1) 2) 3) 4) 5) 6)

The United Nations Charter The United Nations Covenants on Human Rights The Declaration on the Granting of Independence to Colonial Countries and Peoples The Declaration on Friendly Relations The Helsinki Final Act; and The Charter of Paris and Document of Copenhagen

The International Court of Justice too has recognised the principle of self determination in a number of cases mainly within the decolonisation context. In its Advisory Opinion concerning 8 Simpson, G.J., The Diffusion of Sovereignty: Self -determination in the Post-colonial Age, 32 Stan. J. Int'l L. 255 1996 at 262. 9 Case Concerning East Timor, International Court of Justice Reports 102 (1995). 8 | Page

Namibia10, it affirmed the right to self-determination as defined by the United Nations, declaring that “the subsequent development of international law in regard to non-self governing territories, as enshrined in the Charter of the United nations, made the principle of self-determination applicable to all of them11”. Self determination always entails the need to pay regard to the freely expressed will of the peoples, but that exceptionally this requirement can be and has been dispensed in two instances - when one is not faced with a ‘people’ proper, and when ‘special circumstances’ make a plebiscite or referendum unnecessary. The recognised sources of international law enumerated in the Statute of the ICJ 12 uphold 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. As such, the right to self-determination encompasses political, economic, social and cultural aspects, each of which are being closely and indissolubly linked. Being interdependent, each aspect may be fully realised through the complete recognition and implementation of the others.13 Self-determination as a principle of international law is universal in scope. The right of self-determination applies to all situations where peoples are subject to oppression by subjugation, domination, and exploitation by others—all peoples and nations, without distinguishing between those that have attained statehood and those that have not. This universal principle has now come to enumerate that people have a right to decide for themselves as to under which sovereign umbrella they want to exist and what they want to resist.

10 Reports 1971, 31 at para. 52 International Court of Justice. 11 ICJ Advisory Opinion Legal consequences for states of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), ICJ Report, 1971, 16, at para. 31-32 12 Article 38, Statute of The International Court of Justice, 1945 13 Dajena Kumbaro, The Kosovo Crisis in an International Law Perspective - Self Determination, Territorial Integrity and The NATO Intervention, Final Report 16 June 2001, North Atlantic Treaty Organisation, Office of Information and Press

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Territorial Integrity: “The principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4.....the scope of the principle of territorial integrity is confined to the sphere of relations between States14” The concept of territorial integrity, if not the term, is as old as the sovereign State. It is one of the rights inherent in sovereignty and independence. “It is one of the most fundamental and wellestablished principles of international law15”. Its chief importance lies in the field of the international law on the use of force (jus ad bellum)16.The principle of territorial integrity states that countries should avoid promoting border changes or secessionist movements in other countries. This principle was developed many centuries ago due to the belief that intruding into another territory is an act of aggression which justifies war. Many wars including the First and Second World War have been fought as a result of applying the territorial integrity principle. The adoption of the UN charter by countries supported territorial integrity. The birth of the modern approach to the principle of territorial integrity dates back to 1648 Peace of Westphalia. The territory of state was considered to be the main factor, determining the security and wealth of the state; and the protection of territory was impetus of the state’s foreign policy. The principle was included in the League of Nations Covenant: “The members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League 17”. After World War I the principle was stated in several declarations and treaties18.

14 Accordance with international law of the unilateral Declaration of Independence of Kosovo, Advisory Opinion, ICJ Reports (2010), para. 80, International Court of Justice. 15 Thomas D. Musgrave, Self-determination and National Minorities, (Oxford: Clarendon Press, 1997), p.181. 16 Michael Wood, Territorial Integrity, Encyclopedia Princetoniensis, The Princeton Encyclopedia of Self Determination (https://pesd.princeton.edu/?q=node/271) Last Retrieved on 27-04-2017 18:09 17 Article 10, The league of Nations Covenant, 1919 10 | P a g e

From the historical view, the emergence of the principle was connected with the necessity of great states to maintain status quo in the world order. The importance of this principle is very great in interstate relations. It is worth emphasizing the word interstate, as the principle refers to the relations between independent states, not to the state and people. Its meaning implies to the protection of state territory against foreign aggression. The 1960 UN Declaration states: “any attempt aimed at the partial or total disruption of the national unity or territorial integrity of a country is incompatible with the purposes and principles of the Charter of the UN. 19” In the 1990s both the EU and NATO members concluded accords with adjacent states, concerning their borders, thus putting the end to territorial aspirations among the member-states. As it can be seen, all the documents on territorial integrity refer to the relations between states. This leads to the conclusion that the principle of territorial integrity is the principle applied in relations between states and not inside a single state. Accordingly, respecting the territorial unity and integrity of a state by its own population would be considered a domestic affair and would not fall within the international law jurisdiction.

18 United Nations Charter - Article 2(4); The African Union Charter - Article 3(b); The Montevideo Convention, 1933 - Article 3; The Helsinki Final Act, 1975

19 Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV) of 14 December 1960 11 | P a g e

Chapter 4: The Inter-Relation The principles of territorial integrity and self-determination are integral parts of the International Law. The importance of these principles is enormous in the international community. The first is closely connected with a basic order in interstate relations, while the second is a fundamental human right. Although the principles have equal importance they should be implemented in different situations. There is a conflict between the principles of territorial integrity and self determination. As the principle of self-determination usually appears together with the principle of territorial integrity in the texts of international law, the latter is viewed as limiting the scope for the interpretation and application of self-determination20. The self determination principle advocates for countries to freely determine their international politics status and sovereignty without outside interference which challenges the territorial integrity principle. This is because states are made legitimate by people, which means that people should be given freedom to choose territorial boundaries and states as they wish. Self determination therefore conflicts which territorial integrity which advocates for fixed territories among states which should be respected by the rest of the world to avoid acts of aggression. The notion of territorial integrity is fundamental to the Westphalian State system, and underlies the contemporary rules of international law on the use of force, as embodied in the Charter of the United Nations and customary international law. Many now challenge this view of the world. The increasing importance of international human rights law, including the right of selfdetermination, has - it is often suggested - made this view outmoded. Yet such views are essentially of a political nature, and as a matter of law it is difficult to discern any weakening of the principle of territorial integrity. Some would even go so far as to suggest that in an age of globalization the principle of territorial integrity no longer has the importance it once has. This is a view propounded chiefly by international relations experts. Few international lawyers would agree; the International Court has recently reaffirmed that the principle is “an important part of the international legal order”21. The fact that sovereignty over a piece of territory is disputed in 20 Vita Gudeleviciute, Does the Principle of Self-Determination prevail over the Principle of Territorial Integrity, International Journal of Baltic Law; Volume 2, No. 2 (April, 2005).

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no way entitles a State to use force to ‘recover’ territory which it claims; to do so would infringe the territorial integrity of the State in control of the disputed territory. There is a certain tension between the right of self-determination and the territorial integrity of States. In the Friendly Relations Declaration 22, the seventh paragraph under the heading ‘The principle of equal rights and self-determination of peoples’ provides that – “Nothing in the foregoing paragraphs shall 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 accordance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or colour”. A parallel principle of territorial integrity exists in the context of self-determination. In its resolution 1514 (XV)23, the UN General Assembly declared that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the United Nations.” And, as noted above, this is reflected in the Friendly Relations Declaration’s reference to the “territorial integrity of any State or country”. The meaning of the term “peoples” determines who are the holders of the rights of selfdetermination and has a primary effect on the establishment of the harmony between the principle of self-determination and the principle of territorial integrity. Generally for independent states, the principle of self-determination of peoples prevails over the principle of territorial integrity only under the condition that the term “peoples” means the entire population of a state. 21 Supra Note, 14 22 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, General Assembly Resolution 2625 (XXV) of October 24, 1970. 23 Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV) of 14 December 1960. 13 | P a g e

It is recognized that the principle of self-determination has a universal realization 24 and the obligations rising from the principle of self-determination are erga omnes25, therefore it applies to the whole international community. Although the principle of territorial integrity is applied in the relations between states and, by contrast, the principle of self–determination is the right of peoples, the international community (states) while interpreting and applying the principle of self-determination is bound to the principle of territorial integrity. Self–determination of peoples versus territorial integrity of a state is a very complex, delicate and particularly controversial international issue. Territory is one of fundamental attributes of a state, but the right to choose his own destiny inherently belongs to every human. Many armed conflicts in the whole world nowadays are based on the claims for self-determination. While the principle of territorial integrity is considered as one of the primary importance in achieving and maintaining international security and stability in the world, the principle to self-determination of peoples is one of the fundamental human rights firmly established in the international law. The fulfillment of the right of self-determination is impossible without the expression of free will. Both these principles and other related international law should be interpreted keeping in mind the overall international law objective to maintain peace and security.

24 The UN General Assembly Resolution 51/84 (adopted 28 02 1997), which reaffirms “universal realization of the right of peoples to self-determination”.

25 Advisory opinion of the International Court of Justice on “Legal consequences of the construction of a wall in the occupied Palestinian Territory” (09 07 2004, No.131).

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Chapter 5: Conclusion Self-determination is a concept that can be traced back to the beginning of government. The development of modern states in Europe and the rise of popular national consciousness enhanced the status of self-determination as a political principle, but it was not until the period of World War I that the right of national independence came to be known as the principle of national self determination. In general terms, it was simply the belief that each nation had a right to constitute an independent state and to determine its own government. Nowadays, the principle of selfdetermination has an important place in modern International law. The principle has been and continues to be a powerful motivation in the international relations. Meanwhile, a declining importance of interstate territorial boundaries is observed, related to globalization and formation of the international community. The fundamental approach should be that all peoples have a full right of self-determination. This is a basic rule, which does not recognize international and domestic boundaries. Although the principle of territorial integrity is applied in the relations among states and, by contrast, the principle of self determination is the right of peoples, the international community (states) while interpreting and applying the principle of self-determination is bound to the principle of territorial integrity. The principles of self-determination and territorial integrity do not contradict. The latter refers to the relationship between states, while the former implies to the relationship between the State and the people. International legal instruments relating to self-determination invariably refer to the “peoples” as being entitled to the right of self-determination. The meaning of the term “peoples” determines who are the holders of the rights of self determination and has a primary effect on the establishment of the harmony between the principle of self-determination and the principle of territorial integrity.

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Bibliography Secondary Sources: Books: 1) 2) 3) 4)

Robert Jennings, Oppenheim's International Law (Part 2-4) Malcolm Shaw, International Law Ian Brownlie, Principles of International Law Antonio Cassese, International Law

Articles: 1) Edita

Gzoyan; Lilit Banduryan, Territorial Integrity and Self Determination:

Contradiction or Equality? 2) Eric M. Amberg, Self-Determination in Hong Kong: A New Challenge to an Old Doctrine 3) Simpson, G.J., The Diffusion of Sovereignty: Self -determination in the Post-colonial Age 4) Dajena Kumbaro, The Kosovo Crisis in an International Law Perspective - Self

Determination, Territorial Integrity and The NATO Intervention 5) Thomas D. Musgrave, Self-determination and National Minorities 6) Michael Wood, Territorial Integrity 7) Vita Gudeleviciute, Does the Principle of Self-Determination prevail over the Principle of

Territorial Integrity 8) Avishai Margalit and Joseph Raz, National Self-Determination 9) Deborah Z. Cass, Re-Thinking Self-Determination 10) Jan Klabbers, The Right to Be Taken Seriously: Self-Determination in

International Law

Websites: 1) Law Journal Library - HeinOnline (http://www.heinonline.org) 2) Official Document System of The United Nations (http://daccess-ods.un.org/) 3) General Assembly Resolutions - United Nations (http://www.un.org)

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