Inalienable Rights of Colonized Peoples

A Call for Establishing an Internal Decolonization Committee by the General

Assembly of the United Nations
Mehmet kr Gzel*

Abstract
The United Nations Charter was prepared during the Second World War in order to protect
the peace and security of the World from another kind of Lebensraum ideology 1 . The
Lebensraum ideology of Germany was the key reason for the Second World War, and similar
ideologies can be found in the history of wars conducted for colonization and conquest.
To achieve the protection of the peace and the security of the World, two important criteria for
the first time of human history were incorporated into the United Nations Charter, the
sovereign equality of nations and protection of the territorial integrity of the member states.
To understand United Nations system, one must understand the concept of protection of the
territorial integrity of the member states, preeminent cause of war. Conquest is forbidden in
the Charter to prevent future wars.
The object of the United Nations Charter is to guarantee the territorial integrity of States
except for the colonies 2 with metropolitan areas which means a legal obligation of
decolonization by United Nations Charter. It is with good reason that the Declaration on
Principles of International Law concerning Friendly Relations and Cooperation among States
refers to the norm that the territorial integrity and political independence of the State are
inviolable.
The meaning of decolonization3 of the territories to independence is very clear; the colonies to
which United Nations Charter applies, no less than in respect of their metropolitan areas 4
have the right to decide their own fate, including independence.
* Member of Mapuche Human Rights Commission Auspice Stella
1

Lebansraum signifies a territory which a group, state, or nation believes is needed for its natural development.
http://www.oxforddictionaries.com/definition/english/Lebensraum, 07.03.2015. Lebensraum or living space,
was the policy of the Nazis during WWII to conquest territory in Europe for German use. Germany had only just
become a united country in 1871. It had missed out on the Scramble for Africa in the late 19 th century, when
countries like Britain and France had taken control of huge African colonies that they could exploit for wealth
and prestige. Germans complained that their country did not have enough territory and colonies to house its
population or build a powerful economy like that of Britain and France. German nationalists believed that great
people like the Germans deserved more space to become a great power. One can say that the Second World War
was the biggest colony war of the World.
The term colony comes from the Latin word colonus, meaning farmer. This root reminds us that the practice
of colonialism usually involved the transfer of population to a new territory, where the arrivals lived as
permanent settlers while maintaining political allegiance to their country of origin.
2

Decolonization of territories defined as a territory which is geographically separate and is distinct ethnically
and/or culturally from the country administering it. General Assembly Resolution 1541, Principles which

On the other hand, there are still colonized peoples living in colony states who gained
independence by the overseas settlers from the colonizer country before the 20th century.
These states changed into a norm of settler colony states. These colonized peoples living in
settler colony states do not have a right of having independence. Even if, colonized peoples
living in settler colony states do not have a right of independence, they still have their special
collective rights of decolonization in the United Nations system.
Key Words: Decolonization, self-determination, self-government, internal, external

Introduction
Classical international law was that it did not guarantee the rights of states to exist. A fortiori,
it did not guarantee the rights of non-states to become states. Classical international law left
that to power politics, and therefore almost by definition, it left the question of selfdetermination to power politics as well. Savue qui peut. Self- determine qui peut.5
As a political rather than a legal concept, self-determination can be traced back many
centuries. It suffices to recall the Declaration of Independence of the United States of 4 July
1776, which proclaimed that Governments derive their powers from the consent of the
governed and that, whenever any Form of Government becomes destructive of these ends, it
is the Right of the People to alter or abolish it. Similarly, the French revolution advanced the
doctrine of popular sovereignty and considered that any annexation of territory should be by
plebiscite.6
In its origins, however, self-determination was an enlightenment concept relating to
individuals, not to nations. Over roughly 150 years, from the mid- and late eighteenth century
to World War I, it evolved from a primarily individualist into a collectivist doctrine. Tracking
this dramatic, often unnoticed transformation is more than an exercise in intellectual
genealogy. Untangling the diverse meanings of self-determination goes to the heart of the
complexities and dilemmas intrinsic to the history and politics of human rights.7

should guide Members in determining whether or not an obligation exists to transmit the information called for
under Article 73e of the Charter, Principle IV
United Nations Charter Article 74; Members of the United Nations also agree that their policy in respect of the
territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the
general principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of
the world, in social, economic, and commercial matters. General Assembly Resolution 1541, principle IV,
defines a colony who has a metropolitan area as a territory which is geographically separate and is distinct
ethnically and/or culturally from the country administering it.
4

James Crawford, The Right of Self-Determination in International Law: Its Development and Future,
http://internationalhumanrightslaw.net/wp-content/uploads/2012/01/Crawford-The-Right-of-Self-Determinationin-Intl-Law.pdf , 05.03.2015
6

Alfred-Maurice de Zayas, Promotion of a Democratic and Equitable International Order, A/69/272,

http://daccess-ddsny.un.org/doc/UNDOC/GEN/N14/497/95/PDF/N1449795.pdf?OpenElement, 05.03.2015
7

Eric D.Weitz, Self-Determination: How a German Enlightenment Idea Became the Slogan of National
Liberation and a Human Right, The American Historical Review 2015, 120 (2) pages 462-496, at page 463
http://ahr.oxfordjournals.org/content/120/2/462.full.pdf+html 07.03.2015

With the independence of the Spanish colonies in Latin America, an additional element came
upthe declarations of independence in the early nineteenth century stated also a natural
right of peoples in the colonies to determine their own political fate, and this might take the
form of independent statehood. In order to avoid violent conflicts over territory, Latin
American diplomatic practice linked this new right with a preservation of the inherited
territorial status quo, in the form of the principle of uti possidetis.8
What is understood as the independence of American countries was in fact the independence
of the so-called old continent settlers from the colonial powers. As an example, the territory of
Mapuche nation had never been conquered by Spain and and its autonomy was already
recognized (by a border treaty of Quillen in 1641). Mapuche nation well-established political,
judicial and governance systems based on like todays democratic principles. Furthermore, in
1860 a constitutional kingdom in Araucana and Patagonia was founded by the Mapuche
people in the territory later colonized by the settlers which in the decade of 1810 created what
is today the republics of Chile and Argentina. 9
Today all the states in the continent America are described as settler colonialist states.
The transformation of self-determinations meaning occurred in deep consonance with
political developments, even for the most lofty of philosophers. At every stage, from the
French Revolution to Third World (as it was once known) liberation, a dialectic between ideas
and politics marked the historical evolution of the meaning of self-determination. For its early
progenitors amid the German Enlightenment and Romantic AgeImmanuel Kant, Johann
Gottlieb Fichte, and othersthe defining events were the French Revolution and the
Napoleonic conquests. For their successors, Karl Marx and his followers, especially AustroMarxists such as Otto Bauer and Karl Renner and then V. I. Lenin and Joseph Stalin, the rise
of nationalist movements and the creation of multiple European nation-states between 1870
and 1919 forced socialists to think beyond class as the sole motor of history and contend with
the reality of the nation. In the twentieth century, anticolonial thinkers and activists drew on
self-determination as a powerful mobilizing tool against their imperial overseers.
During World War I, Lenin and the Bolsheviks forged national self-determination into a
political weapon to be used against the Tsarist Russian Empire. But when U.S. president
Woodrow Wilson took up the slogan of self-determination in a determined effort to shape the
postwar world along American lines and to forestall Bolshevik influence, the term ricocheted
around the world. Woodrow Wilson gave a different turn to the meaning of self-determination
by drawing on the Anglo-American political tradition epitomized by John Locke and John
Stuart Mill. In Woodrow Wilsons understanding, self-determination meant civilized men
coming together to form a democratic polity. Never did he imagine that his deployment of the

Stefan
Oeter,
Self-Determination,
Oxford
Public
International
http://opil.ouplaw.com/view/10.1093/law/9780199639762.001.0001/law-9780199639762-part-14#law9780199639762-div2-367, 07.03.2015
9

http://www.araucanie.com/araucania/index.html, 06.03.2015

Law,

term would resonate far beyond his own highly limited conception of the civilized world and
white men as the only ones entitled to be full rights-bearing citizens. 10
For Woodrow Wilson, the colonized Third World was not initial beneficiary of selfdetermination. It was mainly Europe and the people of Europe who were initially billed to
benefit from it. Woodrow Wilson advocated self-determination largely to assist his own
political agenda of promoting liberalism and the idea of national governments; his advocacy
was meant to facilitate the creation of states within the fractured European empires (forming
the basis of the 1919 Versailles peace settlement), and was not meant for the facilitation of
independence (or even autonomy) for the peoples of the Third World. Self-determination
therefore, was not meant to be applied universally.
As David Priestland notes, Woodrow Wilson had no real interest in colonial peoples and
their rights, and regarded them as underdeveloped peoples, who would very slowly move
towards independence, presided over by benign Westerners; he particularly admired British
imperialist methods and, more generally, was a cultural Anglophile Moreover, as an
American Southerner, he shared many of the racist assumptions of his background.11
After the First World War, with the forming of the League of Nations and his Covenant of
1919 organized post-war peace settlements, this marked the period of transition from classical
to modern international law. Between the members of the League of Nations, resort to war
was limited and conquest is forbidden.
With the peace treaties of after the First World War, the winners if the First World War, instead
if directly making colonization, put fifteen Middle Eastern, African and Pacific Island
territories to their administration by the mandate system. Mandate system was codified under
article 2212 of the League of Nations Covenant.
The system of Mandates entrusted to the victorious powers in order to lead former colonies
of the Germany and some lost territories of ottoman Empire, mainly Arab speaking population
into self-government was also not very successful, since the tendency to control these
territories as a kind of protectorate was difficult to contain. The new international legal order
of the League of Nations thus compromised its high-sounding promises. But the principle of
10

Eric D.Weitz, Self-Determination: How a German Enlightenment Idea Became the Slogan of National
Liberation and a Human Right, at page 464, http://ahr.oxfordjournals.org/content/120/2/462.full.pdf+html,
07.03.2015
11

Kalana Senaratne, Internal Self-Determination in International Law : A Critical Thord-World Perspective,

Asian Journal of International Law, 3 2013, pp, 305-339 at page 326
12

League of Nations Covenant Article 22;

To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty
of the States which formerly governed them and which are inhabited by peoples not yet able to stand by
themselves under the strenuous conditions of the modern world, there should be applied the principle that the
well-being and development of such peoples form a sacred trust of civilization and that securities for the
performance of this trust should be embodied in this Covenant.
The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted
to advanced nations who by reason of their resources, their experience or their geographical position can best
undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them
as Mandatories on behalf of the League.

self-determination had made its way into international diplomacy and international legal
discourse, transforming it from a revolutionary concept of the left into a political principle
operated by international diplomacy.13
The terms of the mandate system implied an acknowledgment of the right of the peoples of
the colonial territories belonging to states defeated in war to be granted independence if they
were thought to have reached a sufficiently advanced stage of development. However, no
provision was made in the League Covenant specifying that the countries designated to
administer the mandated territories should take steps to prepare these peoples for eventual
self-determination.14
The system of the United Nations Charter was constructed out of the ruins of the inter-war
system and for purely historical reasons; the category of colonial territories fell into two
groups in United Nations Charter.
The principle of self-determination to colonies had been (tacitly) applied to mandates under
the League of Nations, pursuant to Article 22 of the Covenant were brought under the Chapter
XII: international trusteeship system of United Nations Charter (if they had not achieved
independence). The remaining colonial territories were covered by Declaration Regarding
Non-Self-Governing Territories, Chapter XI of the Charter.
Colonial self-determination meant the right of these people to determine their future, whether
in the form of independence, integration in the administering state or some third state, or free
association.
United Nations and Self-Determination as a Right of Decolonization
Following World War II, with the formation of United Nations, all States Members of the
organization commented themselves pursuant to Article 1 (2) of the Charter, to promote
purposes of the Organization to develop friendly relations among nations based on respect
for the principle of equal rights and self-determination of peoples, and to take other
appropriate measures to strengthen universal peace. Pursuant to Article 14, the General
Assembly may recommend measures for the peaceful adjustment of any situation, regardless
of origin, which it deems likely to impair the general welfare or friendly relations among
nations. Pursuant to Article 24, the Security Council shall act in accordance with the
purposes and principles of the United Nations in discharging its duties. Article 55 stipulates:
With a view to the creation of conditions of stability and well-being which are necessary for
peaceful and friendly relations among nations based on respect for the principle of equal
rights and self-determination of peoples, the United Nations shall promote. Chapter XI is
entitled Declaration regarding Non-Self-Governing Territories, which imposes on the
administrating Powers the sacred trust to advance the interests of the inhabitants, while
Chapter XII established the international trusteeship system, the basic objectives of which
were the promotion of the political, economic, social and educational advancement of the
13

Law,

14

of

Stefan
Oeter,
Self-Determination,
Oxford
Public
International
http://opil.ouplaw.com/view/10.1093/law/9780199639762.001.0001/law-9780199639762-part-14#law9780199639762-div2-367, 07.03.2015
The
Trusteeship
Council
The
mandate
system
of
the
league
nations,http://www.nationsencyclopedia.com/United-Nations/The-Trusteeship-Council-THE-MANDATESYSTEM-OF-THE-LEAGUE-OF-NATIONS.html#ixzz3h2g3H0w4

inhabitants of the trust territories, and their progressive development towards self-government
or independence (Article 76)15
Self-determination encompasses elements which are fundamental and which can and must be
harmonized in international law. The first element is the one relating to sovereign equality,
territorial integrity and non-intervention. This entails an obligation in international law to
respect the sovereignty of an independent State by refraining from the use of force or from
interfering with the internal affairs of that State in other ways. The second element regards the
very essence and the raison dtre of the right to self-determination in the first place, namely
the idea that peoples have a right to govern themselves.
This is an intrinsic dilemma that causes much controversy among experts and States. For
instance, it forces upon us the question of whether secession is possible, whether it is a right
or whether, on the contrary, it is prohibited. For where only a portion of the population of an
internationally recognized State has claims of self- determination it naturally collides with the
claims of territorial integrity of the whole population and of that State.
Self-determination of peoples versus the territorial integrity of states 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/her own destiny inherently belongs to every
human. Many of the armed conflicts in the whole world today are linked to the demand of
self-determination. But are all claims are grounded on applicable international law. The
principle of a territorial integrity is considered as one of the primary importance in achieving
and maintaining international security and stability in the world. The principle of selfdetermination of peoples is one of the fundamental human rights firmly established in the
international law. The fulfilment 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 in a manner consistent with the overall international law objective to maintain
peace and security. However, preserving peace among states is not enough, achievement of
peace inside the states is no less important. 16
The principal of territorial integrity goes hand-in-hand with the principle of self-determination
in the 1960 Declaration on the Independence of Colonial Peoples (General Assembly
15

Alfred-Maurice de Zayas, Promotion of a Democratic and Equitable International Order, A/69/272,

http://daccess-ddsny. un.org/doc/UNDOC/GEN/N14/497/95/PDF/N1449795.pdf?OpenElement, 05.03.2015,

Article 76 ; The basic objectives of the trusteeship system, in accordance with the Purposes of the United
Nations laid down in Article 1 of the present Charter, shall be:
to further international peace and security; to promote the political, economic, social, and educational
advancement of the inhabitants of the trust territories, and their progressive development towards selfgovernment or independence as may be appropriate to the particular circumstances of each territory and its
peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each
trusteeship agreement;
to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex,
language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and to
ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and
their nationals, and also equal treatment for the latter in the administration of justice, without prejudice to the
attainment of the foregoing objectives and subject to the provisions of Article 80.
16

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), pp.48-74 at p.48

Resolution 1514) and the later Declaration on Friendly Relations. The Declaration on the
Independence of Colonial Peoples gives all peoples the right to self-determination 17 but
prohibits the disruption of a states territorial integrity18. Yet it requires that immediate steps
be taken to transfer all Powers unconditionally to the peoples of trust and non-self-governing
territories and all other territories not yet independent in accordance with their freely
expressed will and desire, thereby clarifying that decolonization is consistent with the
principle of territorial integrity19. The reason that the self-determination of colonies does not
violate the states territorial integrity is that international law gives colonies a status separate
and distinct from the State. General Assembly Resolution 1541, passed shortly after the
Declaration on the Independence of Colonial Peoples, defines a non-self-governing territory
prima facie as a territory which is geographically separate and is distinct ethnically and/or
culturally from the country administering it20.
Geographically separate has, in practice, meant separated by an ocean, the international
lawyers shorthand being blue water or salt water colonialism. The Declaration on
Friendly Relations reaffirms that the right of all peoples to self-determination cannot violate
the principle of territorial integrity, but that a colony or other non-self-governing territory has
a separate and distinct territorial status21. The principle of territorial integrity thus prohibits
secession but not decolonization22.
International lawyers virtually all agree that whatever else the term peoples may mean, it
means the colonial categories of trust territories and non-self-governing territories established
by the United Nations Charter.
While UN Charter envisaged process toward self-government for trust territories and nonself-governing territories, it madden o mention of self-determination. It is generally accepted,
however, that the subsequent development of international law gave the territories a right of
self-determination which were free to exercise by the establishment of an independent state,
their association or integration with another state or the transition to any other freely chosen
political status.
Self-determination entered international law only as a rule of decolonization and its
formulation and application in international law preclude any definition of peoples other
than colonies.23
17

General Assembly Resolution 1514, Declaration on the Granting of Independence to Colonial Countries and
Peoples, para. 2.
18

General Assembly Resolution 1514, para. 6.

19

20

General Assembly Resolution 1514, para. 5.

General Assembly Resolution 1514, principle IV.

21

General Assembly Resolution 2625, Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the United Nations, fifth principle,
first paragraph.
22

Karen Knop, Diversity and Self-Determination in International Law, Cambridge University Press, Cambridge,
2002 at pages 74-75
23

Karen Knop, Ibid at page 54

Although the argument for a colonies only interpretation of self-determination varies from
author to author. The most common steps of argument are (1) self-determination was not
recognized in international law prior to the development of a right of self-determination for
colonies; (2) when the right of self-determination did enter international law, it was
formulated in such a way as to deny the right to any peoples other than colonial peoples; (3)
the principle of uti possidetis, which preserves existing boundaries upon independence,
reinforces the principle of territorial integrity for newly independent states by prohibiting any
exercise of self-determination by groups with the state; and(4) the interpretation of the right of
self-determination as limited to colonial peoples is consisted with post-World War II practise
because few if any of the new states to emerge from process other than decolonization were
the result of unilateral secession, and this precedent was far outweighed by the lack of
international support for the numerous other attempts at secession.
Self Determination as a Human Right
There are at least three broad interpretations of self-determination although several variants
exist. Self-determination can refer to the right of the population of a State to determine their
international status and to self-government. It can also refer to the similar right of the
population of a colonial territory. According to a third interpretation, self-determination refers
to the right of peoples, whether or not they comprise the entire population of a State or
colonial territory, to determine their international status and to self-government.24
There are various ways in which self-determination could be classified as human right.
Although there are many hortatory references to self-determination in General Assembly
resolutions and elsewhere, the only legally binding documents in which the right of selfdetermination is proclaimed are the UN Charter and two international covenants. 25
The right to self-determination was transformed an indicator of political process to a right in
law when it was included as the foundational right as common article 1 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant
on Civil and Political Rights (ICCPR). Article 1 of the Human Rights Covenants 1966
suggests the role of self-determination as a condition to the enjoyment of ones political,
economic, social and cultural. It could be on the basis of philosophical or political roots. It
could de according to subjects, such as colonial peoples, peoples under foreign occupation,
states` peoples and minorities. However, the most popular subdivision of self-determination
seems to be according to purported dimensions to the right: its internal and external aspects. 26

24

Helen Quane, The United Nations and the Evolving Right to Self-Determination, The International and
Comparative Law Quarterly, Vol.47, No. 3 ( Jul ) 1998, Pages.537-572 at page 537
25

Hurst Hannum, The Right of Self-Determination in the Twenty-First Century, Washington and Lee Law
Review, Volume 55 ,Issue 3/8, pages 773-780 at page 773
26

James Summers, The Internal and External Aspects of Self-Determination Reconsidered, in Duncan French
(ed.) Statehood and Self- Determination Reconciling Tradition and Modernity in International Law, Cambridge
University Press, Cambridge, 2013 pages.229-249, at page 229

Today, courts and scholars came up with two different forms of self-determination: internal
and external.
Contemporary notions of self-determination usually distinguish between internal and
external self- determination, suggesting that "self-determination" exists on a spectrum.
Internal self-determination may refer to various political and social rights; by contrast,
external self-determination refers to full legal independence/secession for the given 'people'
from the larger politico-legal state.27
As the Netherlands pointed out in 1952:
[The] idea of self-determination was a complex of ideas rather than a single concept.
Thus the principle of internal self-determination, or self-determination on the national
level, should be distinguished from that of external self-determination, or selfdetermination on the international level. The former was the right of a nation, already
constituted as a State, to choose its form of government and to determine the policy it
meant to pursue. The latter was the right of a group which considered itself a nation to
form a State of its own28
James Crawford 29 specifies that we have the paradox that the international law of selfdetermination both exists and is osbcure. It is the subject of confident and verifiable
statements of claim the people of East Timor continue to have the right of self-determination
as against Indonesia30; the people of Quebec have no unilateral right to seccession as against
Canada31. But it is said, and with some justice, to be radically uncertian and insecure. Can this
paradox be explained we might call it the paradox of lex lata, lex obscura ?
James Crawford adds on, Lex Lata is law which is established or laid down. Lex ferenda is
law which is in the process of being made and therefore is in some sense embryonic,
uncertain, unclear, not fully established not something a court can declare without making
new law, to express the point with fine circularity. Now the general view is that the right of
self-determination is, in some respects at least, lex lata and not lex ferenda. Scholars speak of
it as an existing right. So did the International Court in series of cases from 1971 onwards. So
does the Human Rights Committee, in its otherwise rather evasive General Comment on
Article 1 of the International Covenant on Civil and Political Rights 32 . Human Rights
27

Self-determination
(international
law),
Cornwell
University
https://www.law.cornell.edu/wex/self_determination_international_law, 26.02.2015

Law

School,

28

Netherlands, 7 GAOR (1952) 3rd Committee, 447th Meeting. (A/C.3/SR.447), para. 4; quoted in James
Summers, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary
Law of Nations (Leiden/Boston: Martinus Nijhoff, 2007) at page 188.
29

James Crawford,Ibid, at page .10

30

James Crawford, Ibid note 6 at page 10; As Australia conceded, and the Court agreed in the Case concerning
East Timor ICJ Reports (1995) 90
31

James Crawford, Ibid note 7 at page 10; As Canada arqued, and the Supreme Court held in Referencere
Seccession of Quebec from Canada (1998) 2 SCR 217.
32

James Crawford, Ibid note 8 at page 10 ; ccpr/c721/Add.3,5 October 1984

Committee commented as self-determination is "an essential condition for the effective

guarantee and observance of individual human rights and for the promotion and strengthening
of those rights". This general comment, the State party adds, recognizes that the rights
embodied in article I are set apart from, and before, all the other rights in the Covenant on
Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights 33.
So, for that matter, does Article 1 of the Covenant itself: All peoples have the right of selfdetermination. But yet, as almost all would agree, self-determination is also lex obscura. No
one is very clear as to what it means, at least outside the colonial context34.
Thus, M. C van Walt van Praag and O. Seroo in their report and analysis of the International
Conference of Experts on the Implementation of Right to Self-Determination as a
contribution to conflict prevention held in Barcelona, from 21-27 November 1998 succinctly
explained as follows:
By Internal self-determination is meant participatory democracy; the right to decide
the form and identity of rulers by the whole population of a State and the right of a
particular group within the State to participate in decision making at the State level.
Internal self-determination can also mean that right to exercise cultural, linguistic,
religious or (territorial) political autonomy within the boundaries of the existing state.
By external self-determination (described by some as full self-determination) is
meant the right to decide on the political status of a people and its place on the
International community in relation to other states including the right to separate from
the existing states of which the group concerned is a part, and to set up a new
independent state35.
In other words, Internal self-determination can take the form of participatory democracy,
federalism, confederalism, unitarism, regionalism, local government, self-government within
the existing state or any other arrangement that accord with the wishes of the people but
compatible with the sovereignty and territorial integrity of the existing state. External selfdetermination on the other hand can take the form of independence or separation or secession
or self-government outside the existing state, or any other association that accord with the
wishes of the people, which may not be compatible with the sovereignty and territorial
integrity of the existing state
Alfred Maurice de Zayas describes internal self-determination, as participatory democracy, as
laid down in article 25 of the International Covenant on Civil and Political Rights, and the
right of a population group within the State to participate in decision-making at the State

33

http://www.unhchr.ch/tbs/doc.nsf/0/c316bb134879a76fc125696f0053d379?Opendocument , 07.03.2015

34

James Crawford, Ibid at page 10

35

The implementation of the rights to self-determination as a contribution to conflict prevention. Report of the
international conference of experts organized by the UNESCO Division of Human Rights, Democracy and Peace
and
the
UNESCO
Centre
of
Catalonia
(
21-2711
1998,
Barcelona),
http://www.unpo.org/downloads/THE%20IMPLEMENTATION%20OF%20THE%20RIGHT%20TO%20SELF.
pdf, 02.03.2015

level, which may also entail the right to exercise cultural, linguistic, religious and political
autonomy within the boundaries of an existing State.36
Article 25 of International Covenant on Civil and Political Rights:
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression
of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Alfred Maurice de Zayas describes external self-determination or full self-determination, we
understand the right to decide on the political status of a people in the international order in
relation to other States, including the right to secede from an existing State.
Thus, M. C van Walt van Praag and O. Seroo in their report and analysis of the International
Conference of Experts on the Implementation of Right to Self-Determination as a
contribution to conflict prevention held in Barcelona, from 21-27 November 1998 succinctly
explained external self-determination as follows:
The right to decide on the political status of a people and its place in the
international community in relation to other states, including the right to separate
[secede] from the existing state of which the group concerned is a part, and to set up a
new independent state.37
The division of self-determination into internal and external elements is not spelled out any
precision in international instruments, leaving considerable ambiguity as to what the two
aspects might relate to.38
The external dimension or aspect defines the status of a people in relation to another people,
State or Empire, whereas the democratic or internal dimension should concern the relationship
between a people and its own State or government39.

36

Alfred-Maurice de Zayas, Promotion of a Democratic and Equitable International Order, A/69/272,

http://daccess-ddsny.un.org/doc/UNDOC/GEN/N14/497/95/PDF/N1449795.pdf?OpenElement, 05.03.2015
37

The implementation of the rights to self-determination as a contribution to conflict preventation. Report of the
international conference of experts organized by the UNESCO Division of Human Rights, Democracy and Peace
and
the
UNESCO
Centre
of
Catalonia
(
21-2711
1998,
Barcelona),
http://www.unpo.org/downloads/THE%20IMPLEMENTATION%20OF%20THE%20RIGHT%20TO%20SELF.pdf,
02.03.2015
38

James Summers, The Internal and External Aspects of Self-Determination Reconsidered, in Duncan French
(ed.) Statehood and Self-Determination Reconciling Tradition and Modernity in International Law, Cambridge
University Press, Cambridge, 2013 pp.229-249, at page 232
39

P.Thornberry, The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism in
C.Tomuschat (ed.), Modern Law of Self-Determination, Martinus Nijhoff 1993, pp.101-138 at page.101

Initially conceived, the right to self-determination belonged to the population, or people, of a

fixed territorial entity, specifically peoples oppressed by a colonial power. The Declaration on
the Granting of Independence to Colonial Countries and Peoples and the jurisprudence of the
International Court of Justice emphasise the connection between the right to selfdetermination and peoples of colonised territories. In this context, the right to selfdetermination is "externally" exercised by secession from a colonial power to form a new
state. The right of colonial peoples to external self-determination is established in a very
simple way in the United Nations Charter. .
Decolonization of Colonies in United Nations Charter
Even if, the words decolonization and colonies are not mentioned in the UN Charter,
decolonization of the colonies are codified in the UN Charter with the words; selfgovernment, territories, trust territories and metropolitan areas in Chapter XI and Chapter XII.
The word self-determination is not used for the codification of decolonization in the UN
Charter. Interestingly enough, there is no further explicit mention of self-determination in the
text of the Charter, not even in Chapter XI Chapter XII which played a decisive role in UN
practice concerning self-determination during the process of decolonization.
Some may claim that in Chapter XII of the United Nations` Charter, on the International
Trusteeship System, and Chapter XI Declaration Regarding Non-Self-Governing
Territories, were carefully drafted to appease both colonial and non-colonial powers, the
Declaration on Non-Self-Governing Territories lacks a clear definition for a non-selfgoverning territory and does not articulate specific steps for dealing with negligent
administration of territories by administering powers. Neither does the Charter specifically
delegate responsibility for fleshing out the Declaration, which only loosely described nonself-governing territories as territories whose peoples have not yet attained a full measure of
self-government.40
There is no doubt that this happened deliberately, since it conformed to the dominant position
of colonial powersall men were in principle equal and entitled to self-determination, but the
inhabitants of colonial territories had not progressed enough in the civilization process to form
their own states, and needed benevolent supervision and assistance by European powers to
achieve full self-government (the famous sacred trust of civilization).With the new formula,
it was put beyond doubt that in principle colonial peoples had a right to self-determination,
but it was left to the discretion of the governing powers to decide when these peoples would
be ready for full self-government41.
Non-self-governing territories were well described in Article 74 of the Charter as:
Members of the United Nations also agree that their policy in respect of the territories
to which this Chapter applies, no less than in respect of their metropolitan areas , must

40

Audrey Jane Roy, Sovereignty and Decolonization: Realizing Indigenous Self-Determination at the United
Nations
and
in
Canada,
B.A.,
Cornell
University,
1998,
p.18,
http://web.uvic.ca/igov/research/pdfs/audrey_roy_thesisfinal.pdf, 27.02.2015
41

Stefan
Oeter,
Self-Determination,
Oxford
Public
International
http://opil.ouplaw.com/view/10.1093/law/9780199639762.001.0001/law-9780199639762-part-14#law9780199639762-div2-367, 07.03.2015

Law,

be based on the general principle of good-neighbourliness, due account being taken of

the interests and well-being of the rest of the world, in social, economic, and
commercial matters
Article 74 defines the territories which are subject to decolonization as respect of the
territories to which this Chapter applies, no less than in respect of their metropolitan areas.
With the definition of territories with metropolitan areas, UN Charter divides colonies into
two different segments, colonies with metropolitan areas and colonies without metropolitan
areas. UN Charter gives right of self-government to the colonies who has sea space
metropolitan areas.
In general, international lawyers accepts for the decolonization process to independence of
United Nations, there must be blue water that is salty water between the metropolitan area and
the colony territory. Colony territories who do not have salty water between his metropolitan
areas do not have a right of independence through decolonization, like Mapuches of Chile and
Argentina.
General Assembly Resolutions on Decolonization
General Assembly of UN had three important resolutions on decolonization. Declaration on
the Granting of Independence to Colonial Countries and Peoples General Assembly resolution
1514 (XV), Principles which should guide Members in determining whether or not an
obligation exists to transmit the information called for under Article 73 e of the Charter,
Assembly resolution 1541 (XV) and The Situation with regard to the implementation of the
Declaration on the granting of independence to colonial countries and peoples 1654 (XVI).
The Preamble of the Declaration on the Granting of Independence to Colonial Countries and
Peoples (General Assembly resolution 1514), stipulates that;
Recognizing that the peoples of the world ardently desire the end of colonialism in all
its manifestations,
Convinced that the continued existence of colonialism prevents the development of
International economic co-operation, impedes the social, cultural and economic
development of dependent peoples and militates against the United Nations ideal of
universal peace,
Affirming that 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, Believing that the process of liberation is irresistible and irreversible and that, in
order to avoid serious
crises, an end must be put to colonialism and all practices of segregation and
discrimination associated therewith, Convinced that all peoples have an inalienable
right to complete freedom, the exercise of their sovereignty and the integrity of their
national territory,
Solemnly proclaims the necessity of bringing to a speedy and unconditional end
colonialism in all its forms and manifestations;

And to this end Declares that:

1. The subjection of peoples to alien subjugation, domination and exploitation
constitutes a denial of fundamental human rights, is contrary to the Charter of the
United Nations and is an impediment to the promotion of world peace and cooperation.
2. All peoples have the right to self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.
3. Inadequacy of political, economic, social or educational preparedness should never
serve as a pretext for delaying independence.
4. All armed action or repressive measures of all kinds directed against dependent
peoples shall cease in order to enable them to exercise peacefully and freely their right
to complete independence, and the integrity of their national territory shall be
respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all
other territories which have not yet attained independence, to transfer all powers to
the peoples of those territories, without any conditions or reservations, in accordance
with their freely expressed will and desire, without any distinction as to race, creed or
colour, in order to enable them to enjoy complete independence and freedom.
6. 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 Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the
United Nations, the Universal Declaration of Human Rights and the present
Declaration on the basis of equality, non interference in the internal affairs of all
States, and respect for the sovereign rights of all peoples and their territorial integrity.
Resolution 1514 recognizes colonialism in all its manifestations and all colony-original
peoples inalienable rights to complete freedom. It proclaims the necessity of bringing an
unconditional end to colonialism in all its forms and manifestations.
With conformity Article 74 of the UN Charter, Article 6th of the Resolution 1514 protects
territorial integrity of the colony countries without metropolitan areas.
Principles which should guide Members in determining whether or not an obligation exists to
transmit the information called for under Article 73 e of the Charter, General Assembly
resolution 1541, in Principle IV gives the definition of colonies which have the right of
independence as geographically separate and is distinct ethnically and/or culturally form the
country administering it. In conformity with Article 74 of the UN Charter, colonies with
metropolitan areas mentioned to have a right to be a sovereign independent State. That is to
say, the right of external decolonization.

With the General Assembly resolution The Situation with regard to the implementation of the
Declaration on the granting of independence to colonial countries and peoples 1654, a special
committee for external decolonization was formed. The Committee of 24 (Special Committee
on Decolonization) as known today42.
Inalienable Rights of the Colonized Peoples Living in Settler Colony States and
Responsibility of United Nations
Article 1 of the Indigenous and Tribal Populations Convention, 1957 (No. 107) of
International Labour Organization, specifies;
1. This Convention applies to:
(b) members of tribal or semi-tribal populations in independent countries which are
regarded as indigenous on account of their descent from the populations which
inhabited the country, or a geographical region to which the country belongs, at the
time of conquest43 or colonisation and which, irrespective of their legal status, live
more in conformity with the social, economic and cultural institutions of that time than
with the institutions of the nation to which they belong.
Article 1 of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) of International
Labour Organization, specifies;
1. This Convention applies to:
(b) peoples in independent countries who are regarded as indigenous on account of
their descent from the populations which inhabited the country, or a geographical
region to which the country belongs, at the time of conquest or colonisation or the
establishment of present state boundaries and who, irrespective of their legal status,
retain some or all of their own social, economic, cultural and political institutions.
The Vienna Declaration and Programme of Action adopted in 1993, specifies;
Taking into account the particular situation of peoples under colonial or other forms
of alien domination or foreign occupation, the World Conference on Human Rights
recognizes the right of peoples to take any legitimate action, in accordance with the
Charter of the United Nations, to realize their inalienable right of self-determination.
42

http://www.un.org/en/decolonization/index.shtml, 07.03.2015

43

In fact, colonies are also conquered territories. Conquest is defined as the acquisition of the sovereignty of a
country by force of arms, exercised by an independent power. http://www.lectlaw.com/def/c284.htm,
07.03.2015 Conquest is the subjugation and assumption of control of a place or people by military force.
http://www.oxforddictionaries.com/definition/english/conquest , 07.03.2015. After the conquest of the
territories, in general the conquested territories are occupied by settlers from the conquer country. The distinction
between conquest and colonization emphasized by sea space. Sea space is supposed to constitute the difference
between conquest and colonization.
What we understand from colony states is, a conquest territory in which origins of the original settlers and their
descendants and successors were from another territory with sea space.

The World Conference on Human Rights considers the denial of the right of selfdetermination as a violation of human rights and underlines the importance of the
effective realization of this right.
The United Nations Declaration on the Rights of Indigenous Peoples 2007 also specifies;
Concerned that indigenous peoples have suffered from historic injustices as a result of,
inter alia, their colonization and dispossession of their lands, territories and
resources, thus preventing them from exercising, in particular, their right to
development in accordance with their own needs and interests,
The United Nations admits that the existence of colony countries, which are not subject to
external decolonization, still pervades today.
The International Court of Justice has pronounced itself on the principle and application of
self-determination, among others in its advisory opinions on Namibia (South West Africa),
Western Sahara and the legal consequences of the construction of a wall in the Occupied
Palestinian Territory, including commenting on the erga omnes 44 character of selfdetermination.45
The UN Human Rights Committee General Comment 12 endorses this view of selfdetermination as a right to be protected for everyone erga omnes. Yet, the committee applies
the standard even more forcefully than the International Court of Justice does in East Timor,
stating, the obligation exist irrespective of whether a people entitle to self-determination
depends on a State party to the Covenant or not. Taking the Committees comment in tandem
with the East Timor decision implies that not only are signatory populations entitled to govern
the territory in which they reside, but even if a rogue non-signatory state denies the people
their right, the standard applies. In essence, not only is self-determination a right erga omnes,
but also has a jus cogens46 character as well.
Erga omnes are those rights that are universally applicable and enforceable. Such rights are
distinct from contractual rights, where penalty can only be appraised upon a contracting party
and enforced by the power of the other. Similarly, the term jus cogens holds the highest
In international law, the concept of erga omnes obligation refers to specifically determined obligations that
states have towards the international community as a whole. In general legal theory the concept erga omnes
(Latin: in relation to everyone,(toward all) has origins dating as far back as Roman law and is used to describe
obligations or rights towards all. International law also has established a category of erga omnes obligations,
which apply to all states. Whereas in ordinary obligations the defaulting state bears responsibility toward
particular interested states (e.g., other parties to the treaty that has been breached), in the breach of erga.
http://www.britannica.com/EBchecked/topic/930543/erga-omnes, 07.03.2015
44

45

Alfred-Maurice de Zayas, Promotion of a Democratic and Equitable International Order, A/69/272,

http://daccess-ddsny.un.org/doc/UNDOC/GEN/N14/497/95/PDF/N1449795.pdf?OpenElement, 05.03.2015
46

Jus cogens (from Latin: compelling law; English: peremptory norm) refers to certain fundamental, overriding
principles of international law, from which no derogation is ever permitted. In practice, jurists' attempt to classify
certain rules, rights and duties as jus cogens or peremptory norms have not met with success: while there is nearuniversal agreement for the existence of the category of jus cogens norms, there is far less agreement regarding
the actual content of this category. Examples of jus cogens norms include: prohibition on the use of force; the
law of genocide; principle of racial non-discrimination; crimes against humanity; and the ru
les prohibiting trade in slaves or human trafficking. https://www.law.cornell.edu/wex/jus_cogens , 06.03.2015

hierarchical position in international law and is generally referred to as a preemptory norm

from which no derogation is permitted. According to the Vienna Convention on the Law of
Treaties, any treaties or acts of states that conflict with these preemptory norms are void and
punishable by Security Council action. Although such obligations are not found in a single
document, there is widespread consensus that jus cogens obligations that are erga omnes
include bans on piracy, genocide, torture, and slavery. Most importantly, the norms are
universal and binding to all persons and states, whether they are party to treaties on the issue
or not47.
The International Court of Justice has pronounced erga omnes and jus cogens character of
decolonization to the colonies with metropolitan areas as defined in the Article 74 of the UN
Charter48.
The most important consideration is erga omnes and jus cogens character of decolonization as
mentioned in the resolution 1514 of the General Assembly;
Solemnly proclaims the necessity of bringing to a speedy and unconditional end
colonialism in all its forms and manifestations.
In the Western Sahara Advisory Opinion, International Court of Justice referred to Articles 1
and 55 of the Charter and stressed that:
Those provisions have direct and particular relevance for non-self-governing
territories, which are dealt with in Chapter XI of the Charter The principle of selfdetermination as a right of peoples, and its application for the purpose of bringing all
colonial situations to a speedy end, were enunciated in the Declaration on the
Granting of Independence to Colonial Countries and Peoples, General Assembly
Resolution 1514 (XV) The validity of the principle of self-determination defined as
the new to pay regard to the freely expressed will of peoples, is not affected by the fact
that in certain cases the General Assembly had dispensed with the requirement of
consulting the inhabitants of a given territory. Those instances were based either on
the consideration that a certain population did not constitute a people entitled to
self-determination on or the conviction that a consultation was totally unnecessary, in
view of special circumstances.49
Colonized peoples still living in the settler colony states have inalienable rights to complete
freedom, the exercise of their sovereignty and the integrity of their national territory as written
General Assembly resolution 1514 subject to territorial integrity of the colony countries that
they are living.
To end colonialism in all its forms and manifestation as an obligation of erga omnes and jus
cogens character, United Nations should establish a Special Internal Decolonization
47

Joel
Day,
The
Remedial
Right
of
Secession
in
International
http://www.isn.ethz.ch/DigitalLibrary/Publications/Detail/?lng=en&id=153359, 05.03.2015

Law,

48

Law,

Joel
Day,
The
Remedial
Right
of
Secession
in
International
http://www.isn.ethz.ch/DigitalLibrary/Publications/Detail/?lng=en&id=153359, 08.03.2015
49

ICJ Advisory Opinion of Western Sahara 16 October 1975, http://www.icj-cij.org/docket/files/61/6195.pdf,

07.03.2015

Committee to end colonialism in all its forms and manifestations like the Special Committee
on Decolonization formed by General Assembly resolution 1654.