Internal Self-Determination in International Law A Critical Third-World Perspective

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InternalSelfDeterminationinInternationalLaw:ACritical
ThirdWorldPerspective
KalanaSENARATNE
AsianJournalofInternationalLaw/Volume3/Issue02/July2013,pp305339
DOI:10.1017/S2044251313000209,Publishedonline:03July2013
Linktothisarticle:http://journals.cambridge.org/abstract_S2044251313000209
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Asian Journal of International Law, 3 (2013), pp. 305339

doi:10.1017/S2044251313000209
r Asian Journal of International Law, 2013
Internal Self-Determination in International

Law: A Critical Third-World Perspective
Kalana SENARATNE*
University of Hong Kong SAR, Peoples Republic of China
kalanack@gmail.com
Abstract
Internal self-determination is a popular dimension of self-determination in international
law. Often regarded as a right to democratic governance, its early promoters were largely
Western states and international lawyers. A central observation made by such promoters
was that the West favoured internal self-determination while the Third World did not.
The present article will argue why this is a misconception and an outdated observation
today. However, having argued so, the article proceeds to develop a Third World-oriented
constructive critique of internal self-determination, suggesting why the Third World should
nevertheless be more critically cautious and vigilant about the promotion of internal
self-determination by Western actors as a distinct and concrete right in international law.
i. internal self-determination
The right to self-determination encapsulates a great ideal; the total freedom of peoples
to choose any form of political, economic, social, and cultural destiny they desire. It
became intensely popular during the period of decolonization in the second half of the
twentieth century, as a right guaranteeing independence from colonial domination and
exploitation, resulting in the creation of newly independent states.1
However, the West (most prominently, European states)2 came to suggest that
the right to self-determination was composed of two distinct dimensions. 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
1.
2.
PhD Candidate, Faculty of Law, University of Hong Kong. LL.B (London), LL.M. (London). This
article is based on ongoing doctoral research work. I wish to thank my supervisor, Professor C.L. Lim,
and the two anonymous reviewers, for their valuable comments on an earlier draft of this article.
Accordance with International Law of the Unilateral Declaration of Independence in Respect of
Kosovo, Advisory Opinion, [2010] I.C.J. Rep. 1 at 29230.
In this article, by West I refer to a collection of states which includes Member States of the EU
including the UKthe US, and Canada. By Third World I am referring to those statesin Asia,
Africa, and Latin Americawhich share a common history of being subjected to colonial and foreign
domination. I have also included China within the Third World category. While it is admitted that
these terms lack clear and precise definitions, especially in contemporary times, reference to them is still
useful for present purposes given the manner in which promoters of internal self-determination have
come to distinguish the two groups, as will be discussed in Section II of this article.
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306 a s i a n j o u r n a l o f i n t e r n a t i o n a l l a w
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 own.3
Interestingly, with the end of the decolonization process, the above understanding
came to be revived by international lawyers who felt that the meaning of selfdetermination, beyond the colonial context, had to be of relevance to peoples within
independent states. Rethinking self-determination, predominantly as a right to
internal self-determination, soon became a dominant trend in international law
literature. A number of mainstream international lawyers from the West began to
promote this internal dimension.
Antonio Cassese, one of the leading proponents of this idea, wrote that the
right to internal self-determination generally meant that the people of a sovereign
state can elect and keep the government of its choice, or that ethnic, racial, or
religious minority groups within a state have a right not to be oppressed by the
central government.4 More concretely, it was a right to authentic self-government,
that is, the right of a people really and freely to choose its own political and economic
regime.5
Internal self-determination clearly referred to the relationship between a people
and its own State or government.6 It was considered to be primarily addressing
the right of the people (population) of an existing state to exert control over
its own constitution and government, in other words, its right to democracy.7
According to Alan Rosas, internal self-determination had a number of distinct
features: mainly of the right of a people to determine its constitution (pouvoir
constituant) including an autonomous status within the confines of a bigger State and
the right of a people to govern, that is, to have a democratic system of government.8
In broad terms, internal self-determination referred to the right of peoples to choose
their political status within a State, or of exercising a right of meaningful political
participation.9 Highlighting the internal aspects of self-determination was another
3.
4.
5.
6.
7.
8.
9.
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 188.
Antonio CASSESE, Political Self-Determination: Old Concepts and New Developments in Antonio
CASSESE, ed., UN Law/Fundamental Rights: Two Topics in International Law (Alphen aan den Rijn:
Sijthoff & Noordhoff, 1979), 137 at 137.
Antonio CASSESE, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge
University Press, 1995) at 101.
Patrick THORNBERRY, The Democratic or Internal Aspect of Self-Determination with Some
Remarks on Federalism in Christian TOMUSCHAT, ed., Modern Law of Self-Determination
(Dordrecht/Boston/London: Martinus Nijhoff, 1992), 101 at 101.
Alan ROSAS, Internal Self-Determination in Tomuschat, supra note 6, 225 at 232.
Ibid., at 230 (authors emphasis, footnote omitted).
Sarah JOSEPH, Jenny SCHULTZ, and Melissa CASTAN, The International Covenant on Civil and
Political Rights: Cases, Materials, and Commentary (Oxford: Oxford University Press, 2000) at 103
(footnote omitted).
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i n t e r n a l s e l f - d e t e r m i n a t i o n i n i n t e r n a t i o n a l l a w 307
way of conceiving self-determination as an endogenous right protecting the rights of

the people against its own government.10
Certain judicial and human rights bodies came to accept this internal/external
dichotomy of self-determination. As the Supreme Court of Canada, in its opinion
concerning the secession of Quebec11 pointed out, the right to self-determination was
normally fulfilled12 by people within a state through internal self-determination,
i.e. the peoples pursuit of its political, economic, social and cultural development
within the framework of an existing state.13 The Committee on the Elimination of
Racial Discrimination noted in its General Recommendation XXI of 1996 that the
right to self-determination had an internal aspect, that is to say, the rights of all
peoples to pursue freely their economic, social and cultural development without
outside interference.14
In short, internal self-determination came to be perceived as a right to democratic
governance applicable to peoples within states. It was an ongoing right15 which
was always applicable to peoples. It was to be distinguished from the right to
external self-determination, i.e. the right to independence.
ii. west (internal), third world (external)

In promoting internal self-determination in international law, international lawyers
made an interesting observation. They argued that the West and the Third World
(including socialist countries) understood self-determination differently; especially
during the period of the Cold War. According to this argument, Western countries
were considered to be the promoters of fundamental human rights and political
freedom, and therefore promoters of internal self-determination. Third World and
socialist countries, on the other hand, were considered to be promoters of external
self-determination only. Cassese therefore noted that to socialist countries, selfdetermination means only external self-determination and only for peoples subject
to colonial or racist rule or to foreign occupation.16
In other words, internal self-determination was considered a notion which was
greatly favoured by Western states as it embodied and reflected those ideals which
were considered to be cherished by the West; such as democracy, political freedom,
and human rights. This, however, was not the case with the Third World, which
was mostly concerned about getting rid of colonial rule. For Third World states,
10.
11.
12.
13.
14.
15.
16.
Jean SALMON, Internal Aspects of the Right to Self-Determination: Towards a Democratic

Legitimacy Principle? in Tomuschat, supra note 6, 253 at 265.
Reference re Secession of Quebec, Supreme Court of Canada, 161 Dominion Law Reports (1998),
4th Series, at 385.
Ibid., at 437.
Ibid., at 438.
Committee on the Elimination of Racial Discrimination, General Recommendation 21, online:
University of Minnesota /http://www1.umn.edu/humanrts/gencomm/genrexxi.htmS.
Cassese, supra note 5 at 101.
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self-determination was a concept that was essentially external in orientation. As

Patrick Thornberry stated:
Internal self-determination is favoured by Western States, reflecting their notions of
democracy y For the States of the Third World, concerned with ridding themselves of
Western domination, self-determination is externally oriented, and, in so far as it has an
internal aspect, this is to do with majority rule (rule of the whole people) and the
avoidance of rule by minorities, especially white minorities.17
It has also been argued that Western states, after showing some passivity, had
progressed, unlike other states, to vigorously promote self-determination as a
universal doctrine, not essentially confined to colonial countries and as a principle
which should primarily concern the internal structure of States.18 Unsurprisingly
then, on a European level, respect of internal self-determinationincluding respect
of human and minority rights, representative government, respect for the rule
of lawhas been elevated to a necessary condition before any right to external
self-determination is recognized.19
In sum, the West emerges as the promoters of internal self-determination, while
the Third World emerges as the promoters of external self-determination. By
implication, the Third World is seen to be less concerned about internal selfdetermination than the West.
This claim has gone untested over the years. It is a claim, I argue, which seems
to be somewhat misconceived and outdated. But before examining this, it is
necessary to first examine what the Western approaches to internal selfdetermination really amount to. Is it some unique form of understanding of the
right to self-determination? Is there any dominant Western (or European) formula
of internal self-determination? Does the promotion of internal self-determination
mean that the West has given primary importance to self-determination over
sovereignty? And does the West recognize a right to internal self-determination for
minority groups?
iii. western approaches to internal

self-determination
The greatest contribution of the West towards the contemporary understanding
of self-determination lies in its promotion of internal self-determination by way
of a reminder that self-determination ought to be applicable to peoples within
independent states. This, undoubtedly, is useful. But the more one scrutinizes some of
17.
18.
19.
Patrick THORNBERRY, International Law and the Rights of Minorities (Oxford: Clarendon Press,
1991) at 217 (footnotes omitted); Patrick THORNBERRY, Self-Determination, Minorities, Human
Rights: A Review of International Instruments (1989) 38 International and Comparative Law
Quarterly 867 at 883 [Thornberry, Self-Determination, Minorities, Human Rights].
Photini PAZARTZIS, Secession and International Law: the European Dimension in Marcelo G.
KOHEN, ed., Secession: International Law Perspectives (Cambridge: Cambridge University Press,
2006), 355 at 372.
IP address: 110.172.129.54
the Western approaches, the more one realizes that internal self-determination,
according to Western thinking, has no clear or unified meaning, is subject to the
principle of sovereignty, and is not a distinct right applicable to minority groups.
A. Diverse Meanings
First, while Western (mostly European) states have been more forthcoming than the
rest of the world in terms of endorsing internal self-determination, this phrase is
understood in diverse ways by different states. This becomes clear when examining
the written submissions made by European states on the Unilateral Declaration of
Independence (UDI) of Kosovo, before the International Court of Justice (ICJ).
A number of countriessuch as Albania, Cyprus, Denmark, Estonia, Finland,
Germany, Ireland, the Netherlands, Romania, Russia, Serbia, Spain, and Switzerland
in particularrecognized internal self-determination as a distinct dimension. But on
closer scrutiny, it becomes clear that the phrase has been defined and expressed
differently.
For instance, some states seemed comfortable in drawing the distinction between
internal and external self-determination, and considered internal self-determination
to be a right in international law. Albania stated that the right to internal selfdetermination [of the Kosovar Albanians] was continuously denied by the Serb
authorities after the unilateral revocation of autonomy in 1989.20 What Albania
attempted to point out was that the Kosovar Albanians had a distinct right in
international law, in the form of a right to internal self-determination.
The Netherlands, having asserted the existence of two distinct dimensions of
self-determination, stated that the absence of a government which represents the
whole people belonging to a territory can be described as a violation of the right to
internal self-determination.21 The Netherlands too articulated its position by
reference to the language of rights, and understood internal self-determination as a
right applicable to all the people within a state, enabling them to choose a
representative and democratic government. Similarly Cyprus, while being critical of
Kosovos UDI, did recognize the existence of a right to internal self-determination; it
is a right for all the people living within the jurisdiction of a state.22
But there were other states which, while acknowledging the internal dimension of
self-determination, seemed somewhat reluctant to consider it a right in international
law. As Germany pointed out:
Self-determination may be exercised internally and externally. Internal self-determination
means enjoying a degree of autonomy inside a larger entity, not leaving it altogether but,
20.
21.
22.
Written statement of the Republic of Albania, 14 April 2009, at 40 (emphasis added), online: ICJ
/http://www.icj-cij.org/docket/files/141/15618.pdfS.
Written statement of the Kingdom of The Netherlands, 17 April 2009, at 9 (emphasis added), online:
ICJ /http://www.icj-cij.org/docket/files/141/15652.pdfS.
Written statement of the Republic of Cyprus, 3 April 2009, at 3324, online: ICJ /http://www.
icj-cij.org/docket/files/141/15609.pdfS. It is a right which applies between the State and all its
population, giving people the right to choose the form of government and have access to constitutional
rights (p. 35).
IP address: 110.172.129.54
as a rule, deciding issues of local relevance on a local level. External self-determination

means the right of a group freely to determine its own political and constitutional status
on the international level.23
According to the above articulation, Germany seems to be more comfortable in

considering external self-determination as a right in international law; while internal
self-determination articulated a particular way of enjoying a measure of autonomy
within the state.
Finlands position exemplified a nuanced understanding of internal selfdetermination. It recognized that the right to self-determination of peoples can be
realized in different ways; one such way being through autonomy within the state.24
But it did not seem to consider internal self-determination a distinct or separate
right in international law. Instead, Finland uses the phrase in different contexts and
ways, to refer to: the absence of a meaningful prospect for a functioning internal
self-determination regime [in Kosovo];25 the [f]ailure by Serbian authorities to
provide a credible framework for internal self-determination;26 that Kosovo could
not expect to enjoy meaningful internal self-determination as part of the FRY [the
former Federal Republic of Yugoslavia].27 Such references seem to suggest that
Finland regarded internal self-determination as an expression of a political desire for
autonomy.
Russia, on the other hand, recognized the importance of internal self-determination
in a post-colonial world;28 whereas Slovakia did not refer to the phrase internal selfdetermination even when pointing out that the people of a state exercise the right of
self-determination through their participation in the governmental system of the state
on a basis of equality.29 For Slovakia, then, the phrase internal self-determination
was of limited use to articulate its claims.
That internal self-determination can be understood in different ways is a positive
feature in the Western approaches to internal self-determination. But this also means
that the phrase can be used to articulate or promote different objectives and projects.
As the above analysis suggests, internal self-determination (in the context of Kosovo)
appeared as a right in international law which was applicable to Kosovar Albanians;
a right which applied to all the people of Serbia as well; a dimension which was
necessary to articulate the idea of democratic governance for some; but unnecessary
for some others. At best, internal self-determination thereby became an expression of
a political desire for democratic governance and/or autonomy.
23.
24.
25.
26.
27.
28.
29.
Written statement of the Federal Republic of Germany, 15 April 2009, at 33 (emphasis added), online:
ICJ /http://www.icj-cij.org/docket/files/141/15624.pdfS.
Written statement of Finland, 16 April 2009, at 3, online: ICJ /http://www.icj-cij.org/docket/files/141/
15630.pdfS.
Ibid., at 4 (emphasis added).
Written statement by the Russian Federation, 16 April 2009, at 30, online: ICJ /http://www.icj-cij.org/
docket/files/141/15628.pdfS.
Written statement of the Slovak Republic, 16 April 2009, para. 10, online: ICJ /http://www.icj-cij.org/
IP address: 110.172.129.54
B. Sovereignty vs. Internal Self-Determination

Second, the promotion of internal self-determination by Western states may give the
impression that the West places greater importance on the self-determination of
peoples than on state sovereignty. If not, the promotion of internal self-determination
tends to lose its novelty or distinctive quality.
However, a careful analysis shows that the West, in promoting internal selfdetermination, has not given any primacy to the concept of internal selfdetermination over sovereignty. The best evidence is the Helsinki Final Act.30
Adopted in 1975 as the Final Act of the Conference on Security and Co-operation
in Europe (CSCE),31 the 1975 Helsinki Final Act came to be regarded as an instrument
which contained one of the most explicit references to the internal dimension of
self-determination. As Principle VIII (Equal Rights and Self-Determination of
Peoples) stated:
By virtue of the principle of equal rights and self-determination of peoples, all peoples
always have the right, in full freedom, to determine, when and as they wish, their
internal and external political status, without external interference, and to pursue as
they wish their political, economic, social and cultural development.32
The above formulation shows that self-determination is a principle applicable to

all peoples always (i.e. self-determination is of a continuing nature), enabling them to
determine their internal political status (not only the external) without being
subjected to any form of external or outside interference. International lawyers
considered this formulation to be an important development. In particular, the
inclusion of the word internal within Principle VIII was considered to be a
significant development of the scope and understanding of self-determination.
Cassese noted that the Helsinki Final Act gives a definition of self-determination
that breaks new ground in international relations by embodying the idea that selfdetermination means a permanent possibility for a people to choose a new social or
political regime, to adapt the social or political structure to new demands.33
But this was only part of the story. The acknowledgment of this internal
dimension of self-determination in Principle VIII needs to be viewed in a more
holistic manner by taking note of certain other prominent principles contained in the
same document. Most significantly, the first paragraph of Principle VIII on selfdetermination refers to the importance of realizing self-determination in conformity
with the principle of territorial integrity of states. Furthermore, there is particular
emphasis placed on sovereign equality, political independence, and territorial
30.
31.
32.
33.
Conference on Security and Co-operation in Europe Final Act, Helsinki 1975, online: OSCE /http://
www.osce.org/mc/39501?download5trueS [1975 Helsinki Final Act].
The Conference on Security and Co-operation in Europe (CSCE) process has been regarded as an
engine of democratic change and a repository of democratic principles; Thornberry, supra note 6 at
121 (footnote omitted). In 1994, the CSCE was renamed the Organization for Security and
Co-operation in Europe (OSCE).
Principle VIII of the 1975 Helsinki Final Act, supra note 30 (emphasis added).
Cassese, supra note 4 at 152 (emphasis added).
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integrity of states throughout the document. Hence, the inclusion of strong assertions
of those principles, in the form of: Principle I (Sovereign Equality, Respect for the
Rights Inherent in Sovereignty); Principle III (Inviolability of Frontiers); Principle IV
(Territorial Integrity of States); and Principle VI (Non-Intervention in Internal
Affairs).34
As Martti Koskenniemi has pointed out, there is here that apparent paradox35
inherent and so visible in many instruments which refer to the principle of selfdetermination; a paradox which arises due to the apparent clash of the principles of
self-determination and territorial integrity. The recognition of self-determination
does not amount to anything spectacular in the final analysis, since the realization of
self-determination is always meant to respect the territorial integrity of the existing
state. Under these circumstances, reference to the internal dimension of selfdetermination simply becomes a reference to the broader democratic freedom
guaranteed within the internal political framework of the state; an aspect which gets
promoted even when recognizing the right to vote.
Also, what makes the 1975 Helsinki Final Act less groundbreaking than it was
thought to be was that even when recognizing the internal dimension of selfdetermination, it still regarded the term peoples in the traditional sense; i.e. as a
reference to all the people within a state. This was due to the fact that all the
participants who gathered in Helsinki were sovereign and independent states.36 And
one of the intentions of the participants was to exclude the category of national
minorities from being included within the term peoples.37 In doing so, the
participating states not only blocked the possibility of claims for a right to secession,
but also ensured that minorities did not have a specific claim for a right to internal
self-determination in international law.
This, however, does not mean that the recognition of the internal dimension of
self-determination was an insignificant feature. Rather, the argument here is that in
the final analysis, the Western approach as embodied in the 1975 Helsinki Final Act
places greater emphasis on the principle of sovereignty than on the principle of
internal self-determination. This, as will be explained further below, does not seem to
make the Western approach any more significant or groundbreaking than some of the
Third World approaches to internal self-determination.
C. Internal Self-Determination and Minorities: A Toolbox

Third, given the above approach that places greater emphasis on sovereignty, it is not
too difficult to understand why internal self-determination does not amount to a
clear right applicable to minority groups within states.
While European states, in particular, have been in the forefront of promoting
minority rights through numerous regional instruments while having also recognized
34.
35.
36.
37.
See 1975 Helsinki Final Act, supra note 30.

Martti KOSKENNIEMI, National Self-Determination Today: Problems of Legal Theory and
Practice (1994) 43 International and Comparative Law Quarterly 241 at 256.
Ibid., at 151.
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the notion of local self-government (through the 1985 European Charter of Local
Self-Government),38 internal self-determination for minority groups is regarded as a
broad principle; an approach that is adopted in the work of High Commissioner on
National Minorities (HCNM), established through the OSCE.39 In numerous
statements, the holders of the office of HCNM have referred to the relevance of
internal self-determination for minorities. For example, Max van der Stoel, a
promoter of internal self-determination for minorities, stated in 1994 that since
granting external self-determination to minority groups in the world would lead to
the creation of around 2,000 states, greater emphasis should be placed on:
[I]nternal self-determination. In other words: what can be done within the framework of
the existing states to ensure national minorities their full identity and to enable them to
live free and achieve their aims, especially in the cultural and educational fields. I think
there is a great variety of possibilities here which have to be explored in order to solve
the problem of national minorities in a satisfactory way.40
Within the broader notion of internal self-determination, there are a variety of

possibilities for protecting and preserving minorities, or a wide range of options
which could to a very large degree meet the demands of various minorities, while the
risk of bloody confrontation would be much smaller.41
In other words, as the HCNM pointed out in 1999, internal self-determination was
to be regarded as a toolbox: The toolbox relating to internal rather than external
self-determination is full of interesting and relatively untested possibilities y This so
called internal self-determination can balance the seemingly antithetical concepts of
self-determination and the maintenance of frontiers.42
If so, Western (or European) approaches seem to recognize the relevance and
applicability of internal self-determination for minority groups. But internal selfdetermination does not amount to a clear right to autonomy per se. Rather, internal
self-determination refers to a toolbox from which various arrangements and
solutions can be picked, considered, and applied, at different times, according to the
given circumstances and context. This broad and general approach is the one
advocated by experts on minority issues, as seen by the Lund Recommendations on
38.
39.
40.
41.
42.
European Charter of Local Self-Government, Strasbourg, 15.X.1985, online: Council of Europe

/http://conventions.coe.int/Treaty/EN/Treaties/Html/122.htmS.
The HCNM acts mainly as a facilitator and mediator concerning problems relating to minorities. One
specific category which receives the HCNMs attention is the issue of the political participation of
minorities. In this regard, the HCNM is particularly attentive to the need for continuous dialogue
between minority groups and governments. See generally John PACKER, The OSCE High
Commissioner on National Minorities in Gudmundur ALFREDSSON, Jonas GRIMHEDEN,
Bertram G. RAMCHARAN, and Alfred de ZAYAS, eds., International Human Rights Monitoring
Mechanisms (The Hague/Boston/London: Martinus Nijhoff, 2001) at 641256.
See High Commissioner on National Minorities: Speech by Max van der Stoel, 13 May 1994, online:
OSCE /http://www.osce.org/hcnm/37259S.
Ibid.
Early Warning and Early Action: Preventing Inter-Ethnic Conflict, 9 July 1999 (emphasis added),
online: OSCE /http://www.osce.org/hcnm/32107S. For a more recent statement on the various
models available for minority participation, see Rights for Peace: Promoting Minority Participation to
Avert Conflicts, 4 October 2011, online: OSCE /http://www.osce.org/hcnm/83622S.
IP address: 110.172.129.54
the Effective Participation of National Minorities in Public Life of 1999.43 This is the
prominent feature in the Western approaches to internal self-determination. As will
be discussed below, this approach is not strikingly different from the approaches
adopted by certain Third World states.
But it is also to be noted that even though the West has been more prominent
in the matter of recognizing internal self-determination in international law,
there is not much evidence to suggest that this has had a very positive impact on
minority or substate groups within Europe. Recent studies suggest that nothing
has changed concerning territorial autonomy in the OSCE region during the last
decade: while no new territorial arrangements have been set up, nothing much has
changed in the existing autonomy regimes. Therefore, it has been argued that the
arrangements set out in the Lund Recommendations in particular have not been
followed, and have had limited impact on the European states.44 One reason is the
common perception shared by numerous Central and East European states that
granting territorial autonomy to minority groups would result in a gradual slide
towards secession.45
The above examinationwhich shows not only the different interpretations given
to internal self-determination (hence the indeterminacy surrounding the concept) but
also the emphasis placed by Western states on the principle of state sovereignty
should therefore add some perspective to the argument raised by certain scholars
that the West has been the dominant promoter of internal self-determination in
international law and that this promotion has been groundbreaking.
iv. third world approaches: rectifying a

misconception
Before engaging in a Third World oriented critique of internal self-determination, it is
necessary to rectify the view that Third World states do not favour internal selfdetermination. This, today, is an outdated view.
But it needs to be stated at the outset that it is easy to reach the conclusion that the
Third World favours only external self-determination. Therefore, Western scholars
cannot be overly blamed for developing such an impression. Why so?
In principle, this is because Third World states and peoples, given the colonial
subjugation they have had to undergo at the hands of many Western colonial powers,
have often demanded the right to self-determination amounting to independence
from colonial rule. And given this history, Third World states and their leaders often
asserted (and continue to assert) the importance of preserving their sovereignty,
43.
44.
45.
The Lund Recommendations on the Effective Participation of National Minorities in Public Life &
Explanatory Note, September 1999, online: OSCE /http://www.osce.org/hcnm/32240?download5trueS
[Lund Recommendations]. See especially para. 19 at 11212, on territorial arrangements.
Francesco PALERMO, When the Lund Recommendations are Ignored. Effective Participation of
National Minorities through Territorial Autonomy (2009) 16 International Journal on Minority and
Group Rights 653 at 65425. As the author notes, however, this does not mean that the Lund
Recommendations are not useful as a set of expert guidelines.
Ibid., at 659.
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thereby appearing to be strong and vociferous defenders of self-determination and

non-intervention.46
This often comes across as an uncompromising stand. During colonial times, the
demand of emerging Third World leaders was for total independence, articulated in
such uncompromising terms that it became easy to read such demands as nothing less
than demands for external self-determination. As Kwame Nkrumah, the former
leader of Ghana, once pointed out: The goal of the national liberation movement is
the realization of complete and unconditional independence.47 In stating this,
Nkrumah argued that political freedom referred to the complete and absolute
independence from the control of any foreign government.48 No room seems to be
left for the accommodation of a concept such as internal self-determination.
This perception is further strengthened when observing the way in which Third
World states have promoted self-determination over the years. For example, during
the 1955 Asian-African Conference held in Indonesia (famously known as the
Bandung Conference, held in Bandung, Indonesia)49wherein a number of Asian
and African states gathered to discuss the common interests and problems affecting
themthere was strong political commitment shown towards the recognition of the
territorial integrity of states as a fundamental principle governing the relations of the
non-aligned, Third World states, and the need to speedily end all forms and
manifestations of colonialism applicable to dependent peoples.50
More significantly, the UN provided the ideal forum for the Third World to
articulate and promote this demand for unconditional independence and the right to
self-determination of peoples. The UN in a sense was transformed into a platform
wherein self-determination came to be interpreted largely as external self-determination
during the period of decolonization. This was most prominently seen in the 1960
Declaration on the Granting of Independence to Colonial Countries and Peoples.51 Its
wording clearly reflects the external dimension of self-determination, wherein it
recognized, inter alia, the passionate yearning for freedom in all dependent peoples
and the decisive role of such peoples in the attainment of their independence and
that all peoples have an inalienable right to complete freedom, the exercise of their
46.
47.
48.
49.
50.
51.
Antony ANGHIE, The Evolution of International Law: Colonial and Postcolonial Realities (2006)
27 Third World Quarterly 739 at 748.
Kwame NKRUMAH, Towards Colonial Freedom: Africa in the Struggle against World Imperialism
(London/Melbourne/Toronto: Heinemann, 1962) at 43 (emphasis added).
Ibid. (emphasis added).
See generally A. APPADORAI, The Bandung Conference (New Delhi: The Indian Council of World
Affairs, 1955).
Ibid., at 21. The discussion on self-determination and human rights had not taken too much time,
given the universal acceptance afforded to the principle of self-determination. The only contribution
was the show of support for the rights of the people of Palestine, calling for the implementation of
relevant UN Resolutions that had been adopted on the matter (pp. 15218).
Declaration on the Granting of Independence to Colonial Countries and Peoples, UN General
Assembly Resolution 1514(XV), 14 December 1960, online: OHCHR /http://www2.ohchr.org/
english/law/independence.htmS [1960 Colonial Declaration]. This was largely promoted by Third
World states. Eighty-nine states voted for, while none voted against. Interestingly, however, a number
of states abstained from voting, most of which belonged to the European/Western bloc; namely,
Portugal, Spain, Belgium, France, the UK, and the US.
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sovereignty and the integrity of their national territory. Significantly, it even asserted
that: Inadequacy of political, economic, social or educational preparedness should
never serve as a pretext for delaying independence. For Western scholars then, the
logic of the 1960 Colonial Declaration appeared to be rather simple: peoples had
the right to self-determination; a people amounted to the entire population of the
territory in question, and therefore self-determination was to be exercised by gaining
independence from colonial rule.52
Furthermore, certain statements made by Third World (especially Asian) states
affirm this impression.
For example, in the declaration appended when acceding to the Covenants on
Civil and Political Rights (ICCPR) and Economic, Social and Cultural Rights
(ICESCR), India showed particular concern about common Article 1 of those
Covenants which refers to the right to self-determination applicable to all peoples.
Indias declaration states that with reference to common Article 1:
[T]he Government of the Republic of India declares that the words the right of
self-determination appearing in [this Article] apply only to the peoples under foreign
domination and that these words do not apply to sovereign independent States or to a
section of a people or nationwhich is the essence of national integrity.53
The above seems to indicate Indias unwillingness to accept an understanding of

the right to self-determination in international law beyond the colonial context. India
thereby seems to be arguing that the right to self-determination is of no applicability
in a post-colonial context.
A similarly rigid and uncompromising view of self-determination is adopted by
China, which has been a strong advocate of state sovereignty and the preservation of
territorial integrity. Its views on self-determination presented to the ICJ on the issue
of Kosovo54 provide clear evidence of this approach. China believed that the
principle of self-determination of peoples has specifically defined contents and scope
of application.55 Its application is restricted to situations of colonial rule or foreign
occupation and cannot undermine the sovereignty and territorial integrity of the
State concerned.56 More remarkably, China submitted that: Even after colonial
rule ended in the world, the scope of application of the principle of selfdetermination has not changed.57
The underlying message is clear: nothing about self-determinationits nature,
scope, or applicabilityhas changed in the decolonization era. It is a principle
which has a fixed and specific meaning. Self-determination refers to the right to
52.
53.
54.
55.
56.
57.
Thornberry, Self-Determination, Minorities, Human Rights, supra note 17 at 875.

See the declaration of the Government of India, online: UN /http://treaties.un.org/Pages/
ViewDetails.aspx?src5TREATY&mtdsg_no5IV-3&chapter54&lang5en#EndDecS.
Written statement of the Peoples Republic of China, 16 April 2009, online: ICJ /http://www.icj-cij.org/
Ibid., at 3.
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independence from colonial and foreign domination. There is no right to internal

self-determination in international law, according to Chinas understanding.
Apart from the above, a broad and general look at the Third World would suggest
to the observer that the Third World does not place much emphasis on internal selfdetermination. Such a perception is created largely because of the fratricidal and
violent ethnic and substate conflicts that the observer sees in the Third World. India is
troubled by secessionist movements, and it has been reluctant to recognize the
Kashmir issue as a case of self-determination.58 The grant of autonomy by China (in
the case of Hong Kong, for example) is read not as a genuine grant of autonomy but
as something imposed by China.59 More specifically, the formation of Bangladesh has
been seen as an example of the failure, on the part of Pakistan, to guarantee internal
self-determination to the former East Pakistan; a result that arose after all realistic
options for the realisation of internal self-determination had been exhausted.60
In short, the above analysis tends to give the impression that the Third World
rejects the principle of internal self-determination in international law. But this
impressionwhich is most commonly shared by the early (Western) promoters of the
principleseems to be misplaced due to a number of reasons, as discussed below.
A. Implicit and Explicit Acknowledgment

First, Third World states have understood self-determination to be a broad concept,
which includes characteristics that are often associated with internal selfdetermination. Such states have therefore made implicit acknowledgment of the
internal dimension of self-determination.
One of the best examples in this regard is India. Before the (then) UN Human
Rights Commission in 2004, India stated that while it remained committed to the
right to self-determination in international law, it recognized that this right is
characterized by certain distinguishing features which included: the right of the
whole people to participate in freely held elections and govern themselves through a
representative government; the right to collectively participate in all walks of
national life and national decision-making through democratic institutions; the
achievement of all fundamental rights on the basis of full equality and nondiscrimination, including for religious, ethnic, linguistic and other minorities; the
full exercise of fundamental freedoms, and respect for universal human rights norms
58.
59.
60.
As India once noted: Like other citizens of India, the people of Jammu and Kashmir had been
periodically exercising their right to self-determination within Indias constitutional framework
by participating in the five nation-wide general elections that had been held in the 29 years since
Indias independence. There could be no question of the people of Jammu and Kashmir exercising
the right of self-determination separately from India. That would be a violation of the Indian
Constitution and of the sovereignty and territorial integrity of India and an unwarranted interference
in its internal affairs, all of which would constitute a violation of the United Nations Charter:
31 GAOR (1976) 3rd Committee., 17th Meeting, (A/C.3/31/SR.17), para. 57, quoted in Summers,
supra note 3 at 366 (ftn 202).
See, for instance, Yash GHAI, Autonomy Regimes in China: Coping with Ethnic and Economic
Diversity in Yash GHAI, ed., Autonomy and Ethnicity: Negotiating Competing Claims in MultiEthnic States (Cambridge: Cambridge University Press, 2000) at 77298.
John DUGARD and David RAIC, The Role of Recognition in the Law and Practice of Secession in
Kohen, ed., supra note 19, 94 at 123.
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and principles, including those of tolerance and pluralism; and the right to
independence of action and opinion.61
The above characteristics represent the features often associated with the broader
principle of internal self-determination. It can be well stated that India therefore
accepts the internal dimension of self-determination, even though India does not
seem to label those characteristics as amounting to a specific right to internal selfdetermination. It would therefore be misleading to regard India as a rejectionist of
the broader notion of, or the idea underlying, internal self-determination.62
On the other hand, some Third World states seem to have made explicit
acknowledgment of the internal/external dimensions of self-determination. Egypt,
while recognizing the distinction of internal and external self-determination made by
the Canadian Supreme Court, has stated that the right to internal self-determination,
in accordance with national legislation, might be established in certain circumstances
in line with human rights norms.63 This is in addition to the fact that Third World
states have, through their constitutions, recognized a broader notion of internal selfdetermination. The South African Constitution is one such example, wherein the right
to self-determination as applicable to the entire population is recognized.64
B. Democratic Governance as a Political Commitment

Second, to claim that the Third World does not favour internal self-determination is
misleading since the core ideal animating the principle of internal self-determination
democracy or democratic governanceis not a novel concept to the Third World.
Democracy was not necessarily a gift that the Third World inherited from Europe
or the West. As John Keanes study on democracy shows, the ideal did not originate
in Europe. It was not a Greek invention. The belief that democracy is or could be a
universal Western value, a gift to the world, dies hard.65 Interestingly, the lamp of
assembly-based democracy was first lit in the Eastlands that geographically
correspond to contemporary Syria, Iraq, and Iran.66
Also, at the time European colonization began, there were well-established
political, judicial, and governance systems based on democratic principles, which
61.
62.
63.
64.
65.
66.
Statements Made by Mr. Hardeep Singh Puri, Ambassador and Permanent Representative of India at
the 60th Session of the Commission on Human Rights, Geneva (March 152April 23, 2004), online:
Ministry of External Affairs, India /http://www.meaindia.nic.in/mystart.php?id553017848S.
Pemmaraju Sreenivasa RAO, The Indian Position on Some General Principles of International Law
in Bimal N. PATEL, ed., India and International Law (Leiden/Boston: Martinus Nijhoff, 2005), 33 at
5224.
Written statement of the Arab Republic of Egypt, 16 April 2009, at 19, online: ICJ /http://www.icj-cij.org/
Section 235 in Chapter 14 of the 1996 Constitution of the Republic of South Africa, online: South
African Government Information (SOGA) /http://www.info.gov.za/documents/constitution/1996/
96cons14.htmS. See also the 1993 Interim Constitution of South Africa, online: SOGA /http://
www.info.gov.za/documents/constitution/93cons.htm#SECTION231S, wherein similar provisions on
self-determination (especially Principles XII and XXXIV) were considered to be a recognition of
internal self-determination; Christine BELL, Peace Agreements and Human Rights (Oxford: Oxford
John KEANE, The Life and Death of Democracy (London: Pocket Books, 2010) at x.
Ibid., at xi.
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were suitably devised and maintained in a manner closer to the interests and
practices of Third World societies. These democratic forms were unique to the
cultural ethos of such peoples and their times. In Africa, for example, there was the
Kikuyu system of governance, which incorporated a number of democratic and
consultative practices, such as a government in the hands of councils of elders
(kiama), and the holding of elections based on a system of rotation of generations in
order to prevent despotic rule.67 Similarly, from India comes the great example of
early modes of democratic and representative self-governance based, inter alia, on
the principles and teachings of Buddhism. As even the Marquess of Zetland noted:
It is, indeed, to the Buddhist books that we have to turn for an account of the manner in
which the affairs of these early examples of representative self-governing institutions
were conducted. And it may come as a surprise to many to learn that in the Assemblies
of the Buddhists in India two thousand years and more ago are to be found the
rudiments of our own parliamentary practice of the present day.68
It is also countries such as India which provided early evidence of village-level

devolution (the panchayat raj system)69 in Asia, whereas in countries such as Sri
Lanka, there were similar systems of village-level representative governance, known
as gansabhawas, dating back to 425 BC.70
Even today, the Third World has not abandoned the political commitment to
promote democracy within their states and respective regions. Third World states are
parties to international instruments such as the ICCPR, and have, through numerous
regional instruments, sought to recognize the democratic ideal.71 While the actual
realization of those democratic rights may be challenging and the record imperfect,
the political commitment is such that the internal dimension of self-determination,
amounting to democratic governance, has not been rejected.
C. Self-Determination and Minorities

Third, the normative contribution of the Third World in terms of recognizing
the relevance of self-determination of minority groups has been a significant one.
67.
68.
69.
70.
71.
See generally Jomo KENYATTA, The Kikuyu System of Government in Wilfred CARTEY and
Martin KILSON, eds., The African Reader: Independent Africa (New York: Vintage Books, 1970) at
19228.
G.T. GARRATT, ed., The Legacy of India (Oxford: Clarendon Press, 1937) at xi.
Ibid.
C.G. WEERAMANTRY, Equality and Freedom: Some Third World Perspectives (Colombo: Hansa,
1976) at 26.
See for instance: the African Charter on Human and Peoples Rights, 27 June 1981 (entered
into force 21 October 1986), online: UNHCR /http://www.unhcr.org/refworld/type,
MULTILATERALTREATY,OAU,,3ae6b3630,0.htmlS [1981 African Charter]; the African Charter
on Democracy, Elections and Governance, 30 January 2007, online: African Union
/http://www.africa-union.org/root/au/Documents/Treaties/text/Charter%20on%20Democracy.pdfS;
the Inter-American Democratic Charter, 11 September 2001, online: OAS /http://
www.educadem.oas.org/documentos/dem_eng.pdfS; the South Asian Association for Regional
Cooperation (SAARC) Charter of Democracy, online: SAARC /http://www.saarc-sec.org/SAARCCharter-of-Democracy/88/S; the Arab Charter on Human Rights, 22 May 2004, online: University of
Minnesota /http://www1.umn.edu/humanrts/instree/loas2005.htmlS.
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On the one hand, Third World countries have been explicit in recognizing the
relevance of internal self-determination to minority groups. Interestingly, it was Iran
which noted that:
[T]he right to self-determination for minorities is an internal one and means their
entitlement to democracy and human rights and does not involve any right to secession.
This means that the right of self-determination is not a principle of exclusion or
separation but a principle of inclusion.72
More importantly, particular note needs to be taken of the African jurisprudence

which shows the numerous ways in which African states and institutions have
attempted to recognize the internal functioning and realization of self-determination
through their own regional human rights instruments and human rights bodies.73
And some writers have even argued that the contemporary African legal order has
been promoting the respect for internal self-determination, which could be seen as an
alternative to secession.74 This has happened in numerous ways.
For example, the 1981 African Charter on Human and Peoples Rights is an
instrument which recognizes the importance of the complete liberation of Africa from
all forms of colonialism and discrimination, the achievement of which is considered to
be a duty. It thereby guarantees the right to self-determination in Article 20:
1. All peoples shall have right to existence. They shall have the unquestionable and
inalienable right to self-determination. They shall freely determine their political
status and shall pursue their economic and social development according to the
policy they have freely chosen.
2. Colonized or oppressed peoples shall have the right to free themselves from the
bonds of domination by resorting to any means recognized by the international
community.
3. All peoples shall have the right to the assistance of the states parties to the present
Charter in their liberation struggle against foreign domination, be it political,
economic or cultural.75
The African Charter adopts an interesting approach. In Article 20(1), it recognizes

the existence of peoples within independent states who have a right to selfdetermination enabling them to freely pursue their political and other freedoms. It
also recognizes the internal character of self-determination and the freedoms
applicable to people within independent entities. In addition, as Article 20(2) points
out, there are peoples under colonial domination to whom the right to freedom
applies and who have a right to resort to recognized international means to achieve
72.
73.
74.
75.
Written statement of The Islamic Republic of Iran at 7, online: ICJ /http://www.icj-cij.org/docket/files/

141/15646.pdfS.
For a useful examination of the African and Inter-American jurisprudence, see Dinah SHELTON,
Self-Determination in Regional Human Rights Law: From Kosovo to Cameroon (2011) 105
American Journal of International Law 60.
Fatsah OUGUERGOUZ and Djacoba Liva TEHINDRAZANARIVELO, The Question of Secession
in Africa in Kohen, supra note 19, 257 at 257.
1981 African Charter, supra note 71.
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that right. This recognizes the importance of self-determination as a right to freedom

from colonial rule; in other words, the external dimension of self-determination.
Therefore, Article 20 recognizes both dimensions (internal and external) of selfdetermination.
Furthermore, the African Commission has, through a number of decisions,
enumerated how self-determination applies to minority groups. In the Katangese
Peoples Congress case,76 for example, the African Commission, while preserving the
sovereignty and territorial integrity of Zaire, went on to hold that Katanga was
obliged to exercise a variant of self-determination within the framework of the
existing state, and that there are different ways in which the right to selfdetermination can be realized. They included, not only independence (which
amounts to external self-determination), but also those ways which conform with
internal modes of self-determination: ranging from self-government, through local
government, to federalism, confederalism, unitarism, or other forms of relations
which accord with the peoples wisheswhile also recognizing the principles of
sovereignty and territorial integrity.77 In stating this, the African Commission clearly
recognized the complex and diverse manner in which self-determination becomes
operational within the state.78
Also, the African Commission has held in the Kevin Mgwange Gunme v.
Cameroon79 case that the people of southern Cameroon constituted a people, given
especially the fact that they identified themselves as a people with a separate and
distinct identity.80 And, while rejecting the right to independence of southern
Cameroon, the African Commission did recognize that self-determination can be
attained and realized through structures such as federalism, confederalism, and selfgovernment.
In a more global context whereby there is a reluctance to accept a broad definition
of the term peoples, the above jurisprudence is a useful contribution to the
normative and further development of the right to self-determination in international
law. That self-determination can be exercised through various forms ranging from
federalism and confederalism to numerous other forms of self-government has been
the general understanding of many Third World international lawyers as well.81
76.
77.
78.
79.
80.
81.
Katangese Peoples Congress v. Zaire, Communication 75/92, Eighth Annual Activity Report
(199421995), online: University of Minnesota /http://www1.umn.edu/humanrts/africa/ACHPR1.htmS.
Ibid.
This has been viewed as the Commissions acceptance of the view that serious human rights violations
and the denial of internal self-determination would lead to a disruption of Zaires sovereignty
and territorial integrity, and that therefore Katanga was under an obligation to implement the right of
self-determination internally; Dugard and Raic, supra note 60 at 108.
Kevin Mgwanga Gunme v. Cameroon, Communication 266/2003, Twenty Sixth Annual
Activity Report (200822009), online: /http://xa.yimg.com/kq/groups/18367317/1483467725/name/
Verdict1of1Communication1No1266-2003.pdfS.
Ibid., at 37.
U.O. UMOZURIKE, Introduction to International Law (Ibadan: Spectrum Law Publishing, 1993) at
55 (footnote omitted). See also W. OFUATEY-KODJOE, Self-Determination in Oscar
SCHACHTER and Christopher C. JOYNER, eds., United Nations Legal Order, Vol. 1 (Cambridge:
Cambridge University Press, 1995), especially the discussion on Self-Determination in the PostDecolonization Era at 38329.
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It may also be noted in this regard that whatever the defects and limitations may be,
the Third World is also home to some of the complex substate political power-sharing
arrangements in the world. The quasi-federal structure in India has been a muchcelebrated example of political power-sharing within a democratic framework. The
autonomy arrangements which have been implemented by China are still very complex
mechanisms that provide for a significant measure of autonomy when compared with
other autonomous arrangements in the world. Power-sharing in relation to the
Province of Aceh (Indonesia) also provides a useful example.82 In particular, the 2005
Memorandum of Understanding signed between the Indonesian government and the
Free Aceh Movement has been regarded as a document that was focused on internal
self-determination of the people of Aceh without using the institutional terminology of
autonomy, self-government and self-determination to characterize the arrangement.83
In addition to the above, complex substate structures are to be seen in Africa as well.
One of the most interesting and complex cases in this regard is the autonomy
arrangement concerning Zanzibar (Tanzania).84
D. Independence Was Not Only About External Self-Determination

Finally, it is necessary to remember that the demand for independence made during
colonial times by Third World leaders was not simply a demand for external selfdetermination. To read the demand for independence from colonial rule as a demand
for external self-determination and nothing else reflects a very narrow view or
understanding about the struggle for independence of the Third World.
It is of course true, as previously discussed, that Third World leaders had often
demanded unconditional freedom and independence for their peoples from all forms of
colonial and foreign domination during their colonial struggles. However, a closer
examination will show that these demands could be easily read as demands for a
broader and meaningful form of self-determination, which includes the internal
dimension of self-determination. Independence from external control was meant to
ensure independence internally. External self-determination in the form of independence
was to guarantee the internal self-determination of the people, and internal selfdetermination so realized would now ensure that external self-determination is further
strengthened. It may have been because of this obviousness, the intertwining of the
external and internal dimensions, that the distinction between those two dimensions
would have seemed artificial to Third World leaders, since both dimensions had to be
realized together, however difficult that task may have been.
82.
83.
84.
Markku SUKSI, Sub-State Governance through Territorial Autonomy: A Comparative Study in

Constitutional Law of Powers, Procedures and Institutions (Heidelberg/Dordrecht/London/New York:
Springer, 2011) at 244269.
Ibid., at 252. See Memorandum of Understanding between the Government of the Republic of
Indonesia and the Free Aceh Movement, online: Aceh Monitoring Mission /http://www.aceh-mm.org/
download/english/Helsinki%20MoU.pdfS. This paved the way for the adoption of the Law of the
Republic of Indonesia No. 11 of 2006 on the Governing of Aceh.
Ibid., at 1882213. The two-government structure which was put in place as a consequence of the
formation of Tanzania (i.e. the coming together of Zanzibar and Tanganyika in 1964) has therefore
been regarded as a solution that guaranteed Zanzibar a large measure of internal self-determination
on the basis of residual law-making powers (p. 640).
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Kwame Nkrumah was quoted in a previous section to show how strongly African
leaders desired the right to unconditional independence from colonial rule. But his
writings were also very clear about the fact that such unconditional independence
was sought, not for the mere realization of external self-determination and the
formation of an independent state, but also for the realization of democracy and
greater freedoms for the people, internally. What Nkrumah and others rejected was
not necessarily the concept of internal self-determination per se, but rather the
concept of internal self-determination as promoted by colonial rulers in the form of
trusteeship. This difference needs to be appreciated.
This becomes clear when Nkrumah argued that it was incoherent nonsense
to say that Britain or any other colonial power has the good intention of developing
her colonies for self-government and independence.85 This internal form of
self-determination that was to be exercised by the colonial powers, in terms of
granting the colonized peoples a measure of political participation in colonial
government and the affairs of public governance, were half-way measures to keep
them complacent and to throttle their aspiration for complete independence.86
Furthermore, independence meant not only political freedom in the form of
complete independence, but also democratic freedoms of the people: i.e. freedom
from political tyranny and the establishment of a democracy in which sovereignty
is vested in the broad masses of the people, which included the freedom for
social reconstruction; the freedom from poverty and economic exploitation and
the improvement of social and economic conditions of the people, enabling
them to achieve a better livelihood and the realization of their right to life and
happiness.87 As the Declaration to the Colonial Peoples of the World, drafted by
Nkrumah, stated:
We believe in the rights of all peoples to govern themselves y The peoples of the
colonies must have the right to elect their own government, a government without
restrictions from a foreign power y The long, long night is over. By fighting for trade
union rights, the right to form co-operatives, freedom of the press, assembly,
demonstration and strike; freedom to print and read the literature which is necessary
for the education of the masses, you will be using the only means by which your liberties
will be won and maintained.88
The above words can be easily passed off as a definition of the contemporary
principle of internal self-determination. Therefore, it should become clear that the
demand for political independence was also a demand for the realization of the
internal aspects of self-determination and freedom. After independence, government
policy was going to be of the people, for the people, by taking into account the
interests and aspirations of the people.
85.
86.
87.
88.
Nkrumah, supra note 47 at xvi2xvii.

Ibid., at 27. Therefore, self-government or autonomie were nothing but blinds and limitations in
the way of the struggle of the national liberation movement in the colonies towards self-determination
and complete national independence (p. 32).
Ibid., at 43.
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Asian leaders struggling against colonialism were also passionate advocates of

such forms of internal self-determination. Pundit Jawaharlal Nehru, who went on to
become independent Indias first prime minister, made this quite clear in his writings
during the period of Indias colonial struggle. For instance, writing about the
difference between dominion status and independence, Nehru pointed out that the
former envisages the same old structure, with many bonds visible and invisible tying
us to the British economic system; the latter gives us, or ought to give us, freedom to
erect a new structure to suit our circumstances.89 Therefore, independence was
clearly the desired policy. But the demand for independence was not a demand to do
whatever they desired; rather, it was a demand for democratic and constitutional
government. For, as Nehru queried:
We had frequently condemned Fascism and Nazism but we were more intimately
concerned with the imperialism that dominated over us. Was this imperialism to go? Did
they recognise the independence of India and her right to frame her own constitution
through a Constituent Assembly?90
The independence of India was then closely tied up with the right to establish her
own constitutional government within a democratic framework. And, as Nehru went
on to say, political independence was to be achieved for something greater too; a
democratic and peaceful world order. It was not to seek isolation and engage in
undemocratic practices, as the colonial powers who rushed to explain that selfdetermination had an internal dimension may have feared. Rather, there was even the
readiness to surrender part of that independence, in common with other countries,
to a real international order.91 All this was said and written at a time when leaders
such as Mahatma Gandhi were strongly insisting on the re-establishment and
development of village republics and the strengthening of local self-governance
in India.92
Therefore, long before colonial rulers talked about internal self-determination,
Asian or Third World leaders had understood what self-determination in the form
of independence ought to mean. In short, the Third World understood what
self-determination and independence meant, even though its understanding of
independence, freedom, and self-determination as applicable to the peoples within
the post-colonial state was not expressed in the now popular phrase internal selfdetermination.
v. internal self-determination: a third

world critique
The above analysis has so far shown, first, that the West has been explicit and
prominent in its recognition and promotion of internal self-determination, and
89.
90.
91.
92.
Jawaharlal NEHRU, An Autobiography (New Delhi: Jawaharlal Nehru Memorial Fund, 1981) at 418.
Ibid., at 420.
Keane, supra note 65 at 597.
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second, that Third World states also recognize the principle; some implicitly, others
more explicitly. However, this article will proceed to argue that irrespective of whether
or not the Third World recognizes internal self-determination in international law,
there are reasons why a more cautious, vigilant, and critical approach towards the
promotion of internal self-determination needs to be adopted.93 Such a critical
approach is necessary, given the absence of any critical appreciation of internal selfdetermination, especially from a Third World perspective.
To be sure, the argument here is not that the Third World should now
proceed to reject internal self-determination or its relevance in international law.
Rather, what will be argued here is that the principle of internal self-determination
and its development should be viewed with caution by the Third World. In other
words, the Third World, while recognizing the importance of the concept of
internal self-determination, should nevertheless be mindful of the limitations
of it as well as the dangers that would result when the principle is promoted as a
concrete right in international law, especially in a fractured and divisive geopolitical
environment.
A. The Evolving Concept of Self-Determination and the Role of the

Third World
Self-determination is an evolving concept. But internal self-determination, as has
been promoted so far, is an essentially Western-oriented construction, and it is
necessary to be mindful of who gets to construct, define, and promote different
dimensions of self-determination in the form of principles or rights in international
law. That the West seems to be always at the forefront of deciding what forms of
self-determination get to be promoted in international law is problematic.
It is necessary to note that the Third World had to struggle hard to make selfdetermination applicable to itself from the early days of colonialism. In those times,
self-determination was not a right which was seen to be applicable to colonized
peoples. Rather, its application (by Western powers) was selective, and suited
their own political aspirations and interests. For example, the application of selfdetermination in the form of a plebiscite was not consistent.94 Colonial powers did
their best to ensure that the results of such plebiscites were to their liking; in other
words, plebiscites were held if the people of a given territory were not seen to be
challenging the authority of the powers granting the plebiscite.95
The colonized Third World was not the initial beneficiary of self-determination.
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
93.
94.
95.
That Third World international lawyers should refuse to unquestioningly reproduce scholarship
that is suspect from the standpoint of the interests of third world peoples has been usefully
made in B.S. CHIMNI, Third World Approaches to International Law: A Manifesto in Antony
ANGHIE, Bhupinder CHIMNI, Karin MICHELSON, and Obiora OKAFOR, eds., The Third World
and International Order: Law, Politics and Globalization (Leiden/Boston: Martinus Nijhoff, 2003),
47 at 61.
Ibid.
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agenda of promoting liberalism and the idea of national government; 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.96
As David Priestland notes, 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 y Moreover, as an
American Southerner, he shared many of the racist assumptions of his background.97
Self-determination, then, was to be applied to the civilized and was not for
the benefit of the uncivilized. This insensitive attitude was also best captured
in Jan Smutss statement: [T]he German colonies in the Pacific and Africa are
inhabited by barbarians, who not only cannot possibly govern themselves, but to
whom it would be impracticable to apply the idea of self-determination in the
European sense.98
Such reasons partly explain why many states and leaders were reluctant to endorse
self-determination as a prescriptive for future conduct,99 especially during the
interwar years; the Covenant of the League of Nations being the best piece of
evidence of the reluctance to recognize the importance of self-determination to
colonized peoples. This ambivalence was further exhibited during the initial stages
of the drafting of the UN Charter, resulting, for example, in the absence of any
reference to self-determination in the Dumbarton Oaks Proposals;100 further
confirming the view that self-determination, during its formative years, was a
selectively applied principle.
96.
97.
98.
99.
100.
Joshua CASTELLINO, International Law and Self-Determination: The Interplay of the Politics of
Territorial Possession with Formulations of Post-Colonial National Identity (The Hague/Boston/
London: Martinus Nijhoff, 2000) at 13.
David PRIESTLAND, The Red Flag: Communism and the Making of the Modern World
(Harmondsworth: Penguin Books, 2010) at 235. It has been also pointed out in this regard how,
when Nguyen Tat Thanh (Ho Chi Minh) approached the Palace of Versailles in June 1919 as a twentynine-year-old native of French Indochina, with a petition entitled Demands of the Annamite
[Viatnamese] People, which was a demand for political autonomy for the Vietnamese people, the
demand was not adequately taken into consideration. What he received was simply a letter from one of
Wilsons senior advisers, promising that the demand would be drawn to the attention of Wilson (p. 234).
Also, viewed from this perspective, Lenins advocacy of national self-determination, even though it too
was for political reasons, had a more universal and revolutionary appeal than that of Wilsons; Bill
BOWRING, Positivism versus Self-Determination: the Contradictions of Soviet International Law in
Susan MARKS, ed., International Law on the Left: Re-examining Marxist Legacies (Cambridge:
Cambridge University Press, 2008), 133 at 143.
Quoted in Nathaniel BERMAN, The International Law of Nationalism: Group Identity and Legal
History in David WIPPMAN, ed., International Law and Ethnic Conflict (Ithaca, NY/London:
Cornell University Press, 1998), 25 at 37 (ftn 30).
Ian BROWNLIE, An Essay in the History of the Principle of Self-Determination in C.H.
ALEXANDROWICZ, ed., Grotian Society Papers 1968: Studies in the History of the Law of Nations
(The Hague: Martinus Nijhoff, 1970), 90 at 95.
Ibid., at 97.
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Also, it is useful to remember that it was the Western group of states (including, in
particular, the old colonial powers) which was initially opposed to the recognition of
a distinct legal right to self-determination in the first place; especially during the time
of the drafting of the International Covenants on Human Rights. Its recognition,
which has now enabled many Western powers to proclaim the importance of the
right to self-determination, is largely due to the efforts undertaken by the socialist
and Third World states.101
Therefore, the Third World needs to take note that the promotion of selfdetermination and its different dimensions (in this case, the internal dimension) tends
to be Western oriented. The implication here is that self-determination and its
different dimensions tend to get promoted and recognized in a way that suits the
geopolitical interests of Western powers. That these dimensions can be of use to the
Third World is not denied. But it needs to be mentioned that Third World concerns
hardly figure in the initial construction and promotion of these dimensions. What
certain Third World states, in explicitly recognizing internal self-determination, have
been unable to do is to critique this trend. In more practical terms, the Third World
should seek to promote their own understandings of the self-determination concept
and its different dimensions, without always having to accept and follow the strict
dimensions that get to be defined and promoted by the West.
B. The Legacy of Colonialism and the Inadequacy of Internal

Self-Determination
Internal self-determination is a principle that seeks to guarantee the internal
independence and freedom of peoples. Therefore, the Third World needs to
acknowledge the potential usefulness of such a principle. However, a question the
Third World should raise is this: Is this form of internal independence (which is
promoted by internal self-determination) adequate, given the colonial legacy it has
had to inherit?
The Third World needs to be mindful of the relationship between a countrys
internal policies, structure, and organization, and the external world order.102
This means that Third World states should be aware of the broader international
legal and institutional frameworkthe global orderwhen assessing the relevance
of internal self-determination; more so, given the colonial legacy which the
Third World had to inherit. In other words, the Third World needs to re-evaluate
the relevance and meaning of internal self-determination in a global order which
is often seen to be intruding on the domestic freedoms of the post-colonial Third
World state.
Consider, for example, the aspect of economic freedom or sovereignty of Third
World states. Colonialism was one of the principal forms of domination and
subjugation of Third World peoples, which had a direct and adverse impact on the
101.
102.
Manfred NOWAK, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd rev. ed.
(Kehl: N.P. Engel, 2005) at 10.
B.S. CHIMNI, Marxism and International Law: A Contemporary Analysis Economic and Political
Weekly (6 February 1999), 337.
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economic system and structure of the colonized state.103 As a consequence, it has been
observed that:
[T]here is scarcely any Third World condition today which is not directly linked or
traceable to some aspect of its colonial past y [C]olonialism was so all-embracing a
phenomenon that there was no aspect of social, political or economic life which it left
untouched and unaltered.104
This necessarily meant, from an economic perspective, that the mere attainment of
political self-determination and independence did not guarantee the ability of Third
World peoples to realize meaningful economic freedom within the state.
Independence and freedom were not attainable just by the end of colonial rule. As
Makau Mutua has noted, colonies which were able to overthrow the yoke of
colonialism after World War II quickly realized that political independence was
largely illusory y Although now formally free, Third World states were still
bondedpolitically, legally, and economicallyto the West.105 In other words, the
formally free Third World state was seen to be bonded to a global economic order
which effectively diminished the economic sovereignty of Third World states and
peoples. As critical scholars have pointed out, the global economic legal and
institutional framework is largely dominated by the interests of the developed powers
in Europe, or the Western world. The framework of international economic law,
as well as the more informal exercise of US led Western hegemonic economic power, has
virtually completely delegitimized the Third World State as an independent initiator of a
locally coherent and cohesive economic development. All development must be
outward, export oriented towards the West.106
Consider also the critique of the global order developed by Third World
international law scholars. It has been pointed out, for example, that the kind of
globalization promoted by International Financial Institutions (IFI)such as the
World Bank, the World Trade Organization (WTO), and the International Monetary
Fund (IMF)has had adverse and debilitating consequences on Third World states
and peoples.107 The inequalities generated due to globalization have taken place both
103.
104.
105.
106.
107.
The impact of colonialism on the economic condition of the Third World has been examined in
numerous studies. See, for instance, Paul HARRISON, Inside the Third World: The Anatomy of
Poverty, 3rd ed. (Harmondsworth: Penguin Books, 1993), who notes, inter alia, that almost all the
imbalances that now cripple the economies, societies and politics of the Third World had their origins
in colonialism (p. 45). Third World leaders can be blamed for many of the economic problems
confronting their countries. However, the continuing impact of colonialism and its destruction of local
economies at the time independence was granted to Third World states cannot be ignored.
Weeramantry, supra note 70 at 38.
Makau MUTUA, What is TWAIL? ASIL, Proceedings of the 94th Annual Meeting, April 2000,
online: University of Buffalo /http://www.law.buffalo.edu/Faculty_And_Staff/submenu/MutuaM/
reports/asil040500.pdfS.
Anthony CARTY, The National as a Meta-Concept of International Economic Law in Asif H.
QURESHI, ed., Perspectives in International Economic Law (London: Kluwer Law International,
2002), 65 at 71.
Antony ANGHIE, Time Present and Time Past: Globalization, International Financial Institutions,
and the Third World (2000) 32 New York University Journal of International Law and Politics 243.
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within and between Third World states, further undermining the vulnerable and poor
peoples and their economic freedoms.108 Free trade has its own share of advantages,
but it is also noted that the comparative advantage of colonies was coercively
restructured109 during the colonial era. Further impact on the freedoms of Third
World states takes place through numerous policies and practices adopted by major
capitalist powers in the field of trade, investment promotion, and monetary
regulation; policies which have the effect of denying the space for independent
self-reliant development of certain Third World countries.110 The subordinate
sovereignty that results due to the above policies goes back to the era of colonialism,
and can be seen to have been even further strengthened through the mandate
system.111 In addition to this, the economic sovereignty of states has been eroded due
to IFIs coming together to form what is considered to be an imperial or nascent
global state.112
The struggle against this global economic framework has been a daunting one for
the Third World.113 Also, economic development in the Third World developing
countries cannot be ensured through the government of the concerned state alone.114
Therefore, while the primary duty of course lies with the government of the
developing state, meaningful economic self-determination cannot be achieved
108.
109.
110.
111.
112.
113.
114.
Ibid., at 246.
B.S. CHIMNI, Developing Countries and the GATT/WTO System: Some Reflections on the Idea of Free
Trade and Doha Round Trade Negotiations in Chantal THOMAS and Joel P. TRACHTMAN, eds.,
Developing Countries in the WTO Legal System (Oxford: Oxford University Press, 2009), 21 at 26.
Chimni, supra note 102 at 341. Also see, Chimni, ibid., at 39240; M. SORNARAJAH, A Developing
Country Perspective of International Economic Law in the Context of Dispute Settlement in Qureshi,
supra note 106 at 832110. Crucial to this understanding is to note how these policies have an impact
on the independence of the developing Third World state. See, for instance, Helene Ruiz FABRI,
Regulating Trade, Investment and Money in James CRAWFORD and Martti KOSKENNIEMI, eds.,
The Cambridge Companion to International Law (Cambridge: Cambridge University Press, 2012) at
352272. As the author points out, certain rules of international investment promotion are intrusive in
that they affect the different areas and sectors of the state, thereby limiting the regulatory ability and
political choices available to the host state. On paper, the state is free to reject investment: But what is
true from a formal legal perspective is not so true from an economic one. Many states really have little
choice (pp. 359260).
Anghie, supra note 107 at 288. This, however, is not meant to disregard some of the achievements of
the Mandate system.
See generally B.S. CHIMNI, International Institutions Today: An Imperial Global State in the
Making (2004) 15 European Journal of International Law 1. In doing so, the sovereign economic
space of many Third World states has been seceded due to the demands of globalization, which
include, inter alia, the adoption and application of uniform laws irrespective of the stage of
development countries are undergoing. As a consequence, sovereign powers have been relocated from
third world states and peoples to WTO (p. 7). Through the removal of barriers confronting capital
accumulation, what is also being promoted are the narrow interests of transnational corporations to
the disadvantage of the self-determination of Third World states and peoples.
Even though Third World states realized independence from colonial rule, it did not mean that their
efforts at establishing a New International Economic Order could succeed. See generally Mohammed
BEDJAOUI, Towards a New International Economic Order (Paris: UNESCO, 1979); T.O. ELIAS,
New Horizons in International Law, 2nd rev. ed. (Dordrecht/Boston/London: Martinus Nijhoff,
1992), esp. Chapter 13, Basic Principles and Perspectives of the New International Economic Order
at 1852200; Weeramantry, supra note 70 at 13528.
See Declaration on the Right to Development, A/Res/41/128, 4 December 1986, online: UN /http://
www.un.org/documents/ga/res/41/a41r128.htmS. Article 4(2) therein states: As a complement to the
efforts of developing countries, effective international co-operation is essential in providing these
countries with appropriate means and facilities to foster their comprehensive development.
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without the active co-operation of the outside world.115 Third World states should
ensure that there is not only a strong affirmation of political independence in their
continuing struggle for greater freedom, but that there is also national and regional
co-operation and reassertion.116 In the final analysis, while on paper the state has
sovereignty to determine its own economic systemand in that sense has the
freedom to decide internallythis is de facto subject to the impact of the globalized
economy.117 In some instances, this means that certain states would need to adopt a
different kind of economic structure which departs from the liberal, free-market
approach taken and advocated by industrialized States.118 Also to be noted here is
the impact of certain colonial policies such as the application of the principle of uti
possidetis,119 which are considered to be having a continuing (adverse) impact on
questions of legitimate governance in places such as Africa.120
Given the above, Third World states response to the Western promotion of
internal self-determination should first be in the form of a gentle reminder of the
impact of the colonial legacy, and the continuing intrusions into their freedom and
sovereignty that take place due to the way in which the contemporary global order is
constructed. It is the Third Worlds responsibility to remind the West that the
principle of internal self-determination will be of greater relevance only within a
global economic and institutional order which is far more democratic and sensitive to
Third World concerns. In other words, the serious practical limitations that hamper
the effective realization of internal self-determination need to be emphasized by the
Third World. The Third World should not engage in such a practice with the
intention of denying a measure of internal self-determination to its own people.
115.
116.
117.
118.
119.
120.
Susan MARKS and Andrew CLAPHAM, International Human Rights Lexicon (Oxford: Oxford
Carty, supra note 106 at 79.
Asif H. QURESHI and Andreas R. ZIEGLER, International Economic Law (London: Sweet &
Maxwell, 2007) at 57. As the authors go on to note, there is the further question concerning the extent
to which this inalienable domain at the level of General International Economic Law is intact.
As some of the prominent mainstream advocates of internal self-determination have admitted: Antonio
CASSESE, International Law, 2nd ed. (Oxford: Oxford University Press, 2005) at 506.
Uti possidetis juris refers to the principle of respecting the colonial boundaries already existing at the
time of attaining independence. As the ICJ has noted in the case between Burkina Faso and the
Republic of Mali [see Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali),
Judgment, [1986] I.C.J. Rep. 554], the essence of this principle lies in its primary aim of securing
respect for the territorial boundaries at the moment when independence is achieved (p. 566).
However, this principle still fails to address the grievance concerning the lack of independence and
freedom that the African peoples ought to have been entitled to exercise in deciding what the ultimate
territorial boundaries and frontiers were to be at the time of gaining independence. The principle has
therefore attracted much criticism, even from Third World international lawyers. See Makau MUTUA,
Why Redraw the Map of Africa: A Moral and Legal Inquiry (1995) 16 Michigan Journal of
International Law 1113, wherein the radical proposal for the need to ensure that pre-colonial entities
within the post-colonial order be allowed to exercise their right to self-determination (p. 1118) is
made. Hence, the need to abandon the principle of uti possidetis juris, which is a device that falsely
linked the decolonization of the colonial state to the liberation of African peoples and continues to
deny freedom to millions of Africans (p. 1175).
See generally Edward QUASHIGAH and Obiora OKAFOR, eds., Legitimate Governance in
Africa: International and Domestic Legal Perspectives (The Hague/London/Boston: Kluwer Law
International, 1999). For a recent account, see Sabelo J. NDLOVU-GATSHENI, Fiftieth Anniversary
of Decolonization in Africa: A Moment of Celebration or Critical Reflection? (2012) 33 Third World
Quarterly 71.
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Rather, it should be done to remind the rest of the world community that principles
such as internal self-determination, however laudable, are inadequate to bring about
any considerable changes in the overall global framework.
C. Internal/External Self-Determination: The Divisive Agenda

Another objection that Third World countries do not seem to have raised concerns
the rationale underlying the promotion of internal self-determination by certain
Western powers. Initially, such promotion did not take place out of sympathy for the
democratic freedoms of peoples within states. Rather, internal self-determination
(and therefore the internal/external dichotomy of self-determination) was promoted
as a divide-and-rule tactic, by an old colonial power, the Netherlands. The promotion
of the internal/external dichotomy of self-determination took place in the context of
the 1949 Roundtable Conference negotiations concerning the formation of an
independent state of Indonesia. As Lee Buchheit has noted:
A very curious use of the terms internal and external self-determination was made in
the 1949 Special Report of the United Nations Commission for Indonesia y During the
negotiations, it was pointed out that the Provisional Constitution of the republic made
reference only to an internal right of self-determination, which was the right of
populations to determine, by democratic procedure, the status which their respective
territories shall occupy within the federal structure of the Republic of the United States of
Indonesia. The Netherlands delegation, however, claimed to attach particular importance
to an external right of self-determination, that is, the right of populations to disassociate
their respective territories from the Republic of the United States of Indonesia.121
The dichotomy of self-determination was thereby promoted as a divide-and-rule

tactic by a colonial power. It was devised as an argument which gave the federalists
within Indonesia the option to break away and if necessary to form a loose
association with the Netherlands. In doing so, the split of self-determination helped
certain groups to create and sustain divisions within the state.122 This was to enable
different groups or federal units to argue for external self-determination in the form
of independence. In this context, external self-determination came to be understood
as a right to secession.123
In other words, creating the internal/external dichotomy of self-determination out
of the broader concept of self-determination was part of a divisive plan undertaken
by a colonial power. Constructing the language of internal self-determination was
therefore a way in which the policy of separation was promoted. While this does not
mean that internal self-determination will always get promoted as a divisive policy or
tactic, it is still necessary to bear in mind this critical and forgotten historical detail in
121.
122.
123.
Lee C. BUCHHEIT, Secession: The Legitimacy of Self-Determination (New Haven, CT/London: Yale
University Press, 1978) at 14215 (footnotes omitted).
This argument was prominently made in James SUMMERS, Why does the Right of Selfdetermination have Internal and External Aspects?. Lecture delivered at the Lauterpacht Centre for
International Law, University of Cambridge (28 October 2011), online: University of Cambridge
/http://sms.cam.ac.uk/media/1183823S.
Buchheit, supra note 121 at 15.
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promoting the principle. It should help the Third World (or any state for that matter)
to remember that the promotion of internal self-determination as a unifying and
peaceful principle in a particular context could just end up having an entirely
different and contrasting effect.
D. The Spectre of Pro-Democratic Intervention

International lawyers have argued that the ideal of democracy can be regarded as an
emerging right in international law.124 With the end of the Cold War, democratic
governance was seen to be on its way to becoming a global entitlement, one that
increasingly will be promoted and protected by collective international processes.125
Self-determination was regarded as the historic root from which the democratic
entitlement grew.126 Self-determination and democracy were intertwined.
Interestingly, this linkage between self-determination and democracy is what the
right to internal self-determination reintroduces in a more direct and definite fashion;
a fact that becomes clear from the discussion in Section II of this article, wherein the
right to internal self-determination was often regarded as a principle or right
promoting the notion of democracy (or democratic governance).
Such a linkage can be useful for states, since the idea of self-determination has an
essentially democratic component and internal self-determination thereby becomes a
useful principle that reflects the larger democratic ideals and freedoms of peoples.
Also, it becomes an argument that can be used to resist foreign occupation.127
But this same linkage can be problematic, since it also has the potential of
becoming a convenient pretext for intervention. Therein lies the danger of
considering internal self-determination and the notion of democratic governance to
be synonymous in international law. In other words, the internal self-determinationdemocracy linkage once again opens up the spectre of pro-democratic intervention,128
the idea whereby the ideal of democracy is promoted within non-democratic states
even through the unilateral use of force. It is a policy that has come to be promoted
124.
125.
126.
127.
128.
The leading argument in this regard has been made in Thomas FRANCK, The Emerging Right to
Democratic Governance (1992) 86 American Journal of International Law 46. For a useful recent
evaluation of this argument, see Susan MARKS, What Has Become of the Emerging Right to
Democratic Governance? (2011) 22 European Journal of International Law 507.
Franck, supra note 124 at 46.
Ibid., at 52. The right to self-determination was therein interpreted as a right of a people organized in
an established territory to determine its collective political destiny in a democratic fashion.
See discussion in Gregory H. FOX, Humanitarian Occupation (Cambridge: Cambridge University
Press, 2008), esp. at 20729. This is especially if the occupied peoples argue that the occupying power
is violating their right to internal self-determination, considered as a norm of jus cogens. However,
such an argument, as Fox admits, is problematic given the questionable jus cogens status of internal
self-determination (p. 211).
The body of literature on the broader topic of humanitarian intervention is large. On the narrow topic
of pro-democratic intervention, however, see generally: Christine GRAY, International Law and the
Use of Force (Oxford: Oxford University Press, 2000) at 4224; Cedric RYNGAERT, Pro-Democratic
Intervention in International Law, Institute for International Law, Working Paper No. 53, April 2004,
online: KU Leuven Centre /http://www.law.kuleuven.be/iir/nl/onderzoek/wp/WP53e.pdfS. More
specifically, see Simone van den DRIEST, Pro-Democratic Intervention and the Right to Political
Self-determination: The Case of Operation Iraqi Freedom (2010) 1 Netherlands International Law
Review 27.
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by powers such as the US.129 Through such a right to internal self-determination, the
case for pro-democratic intervention receives an additional fillip; i.e. another legal
argument that seeks to further justify or strengthen the case for intervention.
It is not the intention of this article to discuss the phenomenon of pro-democratic
intervention in any great detail. The record of such intervention is in any case quite
minor.130 Rather, it is thought necessary to point out why this spectre is not a wholly
exaggerated or illusory one. This will be clear by revisiting an old debate that took
place concerning the US invasion of Panama of 1989; an invasion that was largely
considered to be a pro-democratic form of intervention. To be sure, the US did
not make the legal argument that their intervention was based on the existence
(and therefore the violation by Panama) of a right to democracy. Rather, the case was
largely a political one.131 However, the debate that ensued shows that the reasons
adduced to both justify and attack the intervention revolved around the question of
whether the right to self-determination was to be regarded as a right to democracy or
not. Note also that this debate took place during a time when the principle of internal
self-determination was not as popular as it is today in the international legal literature.
During this debate, international lawyers such as Michael Reisman interpreted
Article 2(4)132 of the UN Charter in a way that allowed intervention through the use
of force if such intervention was meant for the enhancement of the ongoing right of
peoples to determine their own political destinies.133 This was to be done, as
Reisman went on to stress, because it was believed that:
The basic policy of contemporary international law has been to maintain the political
independence of territorial communities so that they can continue to express their desire
for political community in a form appropriate to them y Each application of Article
2(4) must enhance opportunities for ongoing self-determination.134
Here, self-determination is linked with the notion of democracy and popular

rule. Interestingly, the above is an argument in favour of what is today considered to
be a right to continuing (or as Reisman stated) ongoing self-determination: in
contemporary terminology, the right to internal self-determination. Reisman does
not refer to a specific right to internal self-determination, of course, but that
reference can now be conveniently made given the manner in which internal selfdetermination has come to be defined.
129.
130.
131.
132.
133.
134.
Gray, supra note 128, at 42; Christine GRAY, The Use of Force and the International Legal Order in
Malcolm EVANS, ed., International Law (Oxford: Oxford University Press, 2010), 615 at 620.
James CRAWFORD, Sovereignty as a Legal Value in Crawford and Koskenniemi, supra note 110,
117 at 130. Cases which are generally regarded under this form of intervention are mostly the
interventions in Grenada (1983), Panama (1989), Haiti (1994), and Sierra Leone (1997); Driest, supra
note 128 at 39.
Gray, supra note 129 at 620.
Article 2(4) of the UN Charter states: 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.
W. Michael REISMAN, Coercion and Self-Determination: Construing Charter Article 2(4) (1984)
78 American Journal of International Law 642 at 643.
Ibid.
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The dangers posed by this marriage of self-determination and democracy, as well

as the consideration of self-determination to be an ongoing right to democratic
governance, led numerous other international lawyers to reject the pro-democratic
argument for intervention. Arguing against the Reisman thesis was Oscar
Schachter,135 who argued that the claim made by Reismanthat the enhancement
of ongoing self-determination was the main purpose of international lawhad no
appropriate legal and empirical foundation.136 Similarly, it was the argument of
Ved Nanda137 that:
The majority of states does not view the right of self-determination to mean that there is
a right to democratic representation or that the government must reflect the will of the
majority of the people. The United States stands alone in making such a claim, and the
community response at the United Nations and the OAS has appropriately been to reject
the claim.138
Interestingly, the above argument of Nanda is, in contemporary terms, an argument

against considering internal self-determination as a right to democratic governance
(or political representation). Nandas argument is one that seeks to de-link the principle
of self-determination and democracy, since the linkage could prove dangerous when
pro-democratic intervention is deemed necessary by powerful actors or states.
So, regardless of the complexities attending such forms of intervention,139 what
this article proposes is the need to be cautious about the self-determinationdemocracy link which the principle of internal self-determination quite conveniently
creates. Contrary to what Nanda has stated above, the Third Worlds explicit
acceptance of this link would suggest that the US is not alone in making the claim
that (internal) self-determination and democracy are synonymous.
The ICJ once noted in the Nicaragua case that: The Court cannot contemplate the
creation of a new rule opening up the right to intervention by one State against another
on the ground that the latter has opted for some particular ideology or political
system.140 The Third World would need to ask the question: Might not a right to
internal self-determinationperceived as a right to democratic governanceamount to
a new rule which has every potential of opening up the right to intervention?
While recognizing that state practice does not seem to support a right to prodemocratic intervention in international law,141 Gray also notes that, with the end of
the Cold War, arguments in favour of such intervention have not been abandoned.
135.
136.
137.
138.
139.
140.
141.
Oscar SCHACHTER, The Legality of Pro-Democratic Invasion (1984) 78 American Journal of

International Law 645.
Ibid., at 648.
Ved P. NANDA, The Validity of United States Intervention in Panama under International Law
(1990) 84 American Journal of International Law 494.
Ibid., at 500 (footnotes omitted).
For a detailed discussion especially in the context of the Iraqi invasion (2003), see generally Driest,
supra note 127.
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America),
Judgment, [1986] I.C.J. Rep. 14 at 133.
Gray, supra note 128 at 43.
IP address: 110.172.129.54
Now, the case for the use of force may not be based on the argument that the UN
system has broken down (as was evident during the Cold War), but rather on the
argument that such use of force is designed to further purposes of the UN such as
the protection of human rights.142 The right to self-determination (as well as internal
self-determination) falls within the broader category of human rights protection. It is
as well then to note in this regard the warnings coming from critical Third World
scholars. As B.S. Chimni recently noted, the mission of imperialist powers is to
bring democracy, the rule of law and good governance to others y Towards this
end suitable international law concepts are adopted or adapted.143
In short, the spectre of pro-democratic intervention becomes more prominent
with the crystallization of a right to internal self-determination (as a guarantee
of democracy). It is another way in which an international law concept (selfdetermination) gets adopted or adapted in a way that could facilitate imperialistic
projects. Such a development would only go to further impede the effective realization
of the self-determination of weaker states. There is every reason why the Third World
should be far more circumspect in the matter of promoting, or accepting, a right to
internal self-determination in international law.144
E. Problems with the Core of Internal Self-Determination:

Democratic Governance
International law has been useful for the consolidation of colonial rule in the Third
World. Far from being a language of independence and liberation, international law
was also one of the primary languages by which oppression was promoted through
colonial rule.145 It is therefore a language that has a significant hegemonic element.146
142.
143.
144.
145.
146.
Ibid., at 42.
B.S. CHIMNI, Legitimating the International Rule of Law in Crawford and Koskenniemi, supra
note 110, 290 at 301. Not just legal principles, but events too get adapted or twisted in the hands of
powerful states desiring intervention and regime change. As Richard Falk recently reminded us, the
neocon presidency of George W. Bush, was in 2001 prior to the attacks openly seeking a pretext to
launch a regime-changing war against Saddam Husseins Iraq, and the 9/11 events, as interpreted and
spun, provided just the supportive domestic climate needed for launching an aggressive war against the
Baghdad regime; Richard FALK, A Commentary on Marathon Murders Richard Falk Blog
(19 April 2013), online: Richard Falk Blog /http://richardfalk.wordpress.com/2013/04/19/a-commentaryon-the-marathon-murders/S.
This should not be difficult given the critical or sceptical manner in which the broader notion of
humanitarian intervention has been viewed within the Third World. For a discussion on such views, see
generally Watanabe KOJI, ed., Humanitarian Intervention: The Evolving Asian Debate (Tokyo/New
York: Japan Centre for International Exchange, 2003). Also see Ramesh THAKUR, The United
Nations, Peace and Security: From Collective Security to the Responsibility to Protect (Cambridge:
Cambridge University Press, 2006), esp. at 264287. Of particular importance is the observation that
there is unanimous opposition to the idea of Western military interventions unauthorised by the UN
(p. 285).
The classic study in this regard is that of Antony ANGHIE, Imperialism, Sovereignty and the Making
of International Law (Cambridge: Cambridge University Press, 2004). Also see James Thuo GATHII,
International Law and Eurocentricity (1998) 9 European Journal of International Law 184.
Balakrishnan RAJAGOPAL, Counter-hegemonic International Law: Rethinking Human Rights and
Development as a Third World Strategy (2006) 27 Third World Quarterly 767. As the author points
out, this can be said about the language of human rights as well, whereby the discourse on human
rights has been part of hegemonic international law, reinforcing pre-existing tendencies in world
politics (p. 768).
IP address: 110.172.129.54
One such hegemonic dimension which becomes apparent from the historical
origin of internal self-determination is that it provided colonial powers (especially the
Netherlands) to state what type of independence was suitable to whom and how the
state which was to become independent was to structure itself. This can be read as a
subtle reintroduction of the old distinction between the civilized and the uncivilized;
the re-emergence of the old divisions between colonizer and colonized.147 The
language and rhetoric of internal self-determination, its use and application, should
then at all times be viewed with great caution, given its inherent but hidden
hegemonic character.
Another aspect which reintroduces this hegemonic element is democracy, the core
element of internal self-determination. The concern arising here is: What does
democratic governance mean, and can such an ideal be neatly expressed in the form
of internal self-determination?
Democratic governance is often associated with a political system and framework
which is essentially based on the right to vote and the holding of elections, enabling
the participation of citizens in the public affairs of the state, as well as the promotion
of human rights and the rule of law. It is often a framework that guarantees the
minimum procedural conditions of democracy,148 such as the right to vote. However,
it is problematic to consider such a broad concept or ideal as a concrete right, for a
number of reasons.
First, the above understanding of democracy is inadequate, since what is thereby
created is a low-intensity democratic framework which lacks the deepening of
democracy and decision-making power through, for example, political powersharing at the grassroots level. The promotion of such low-intensity democracies
could be extremely useful for the perpetuation of policies that are inimical to
the people without deeper democratic deliberation within the state.149 It has also
been argued that the granting of legitimacy to low-intensity democracies suits
the interests of transnational capital which is keen to see the rule of law prevail
without it translating into participatory rights of people.150 Therefore, where
internal self-determination is promoted as a right to democratic governance,
questions do need to be raised as to what democratic governance (or democracy)
means in the first place.
147.
148.
149.
150.
Edward SAID, Culture and Imperialism (London: Vintage, 1994) at 18.

Robert A. DAHL, Democracy and Human Rights Under Different Conditions of Development in
Asbjorn EIDE and Bernt HAGTVET, eds., Human Rights in Perspective: A Global Assessment
(Oxford: Blackwell, 1992), 235 at 235.
It has been the view of a former UN Independent Expert on the Right to Development, Dr Arjun
Sengupta, that the right to development could only be achieved through a development plan which
would be totally different from the earlier forms of central planning and would be based entirely on
decentralized decision-making with the participation and empowerment of the beneficiaries; see
Report of the Independent Expert on the Right to Development (submitted by the UN Secretary
General at the Fifty-Fifth Session to the UN General Assembly, 17 August 2000), reproduced in
Franciscans International, ed., The Right to Development: Reflections on the First Four Reports of the
Independent Expert on the Right to Development, Dr. Arjun Sengupta (Geneva: Franciscans
International, 2003) at 183.
Chimni, supra note 102 at 343 (footnote omitted). It can also be argued that low-intensity
democracies come close to the kind of governance structures maintained by colonial rulers.
IP address: 110.172.129.54
Second, the conventional definition of democratic governance gives greater

prominence to civil and political rights over the economic rights and standards of
peoples. It thereby fails to strike a balance in terms of accommodating both the
political and economic dimensions of freedom applicable to peoples, amounting in
turn to a narrow and formalistic definition that makes democracy less meaningful to
a number of Third World states.151 Legitimacy is thereby granted to governments
which simply hold elections, thereby ignoring those vital ingredients which help
make democracy more meaningful than the mere casting of a vote. As Quashigah and
Okafor have queried:
Of what use is a state that is merely formally democratic to a people who are, as it were,
almost completely absorbed by fundamental problems such as the acceptability of the
colonially-imposed state, the prevalence of poverty and disease, and the lack of decent
shelter? Of what use is such a system if it does not lead to even the slightest concrete
transformation in the material conditions in which they exist? Conversely y is an
admittedly non-liberal regime such as that imposed by Lee Kuan Yew in Singapore
necessarily illegitimate?152
To be sure, this is not an argument in support of the Asian values thesis about
democracy and human rights.153 Rather, what is argued here is that the litmus test
of a democracy cannot be the mere holding of periodic elections. The test of
a democracy has much to do about the economic dimension as well. But such a
comprehensive understanding of democracy does not seem to be one which gets
promoted by the West, as the discussion in the initial part of this article suggested.
Assessing the economic dimension of democracy, for example, may be more difficult
than assessing whether a country held relatively free and fair elections. Yet this
cannot be an excuse for partial and narrow definitions of the term democratic
governance in international law. Therefore, even though the Third World has made
a political commitment to respect democracy through elections, it is still necessary
for Third World states to maintain that its conception of democracy is broader, and is
one which cannot be limited to the aspect of elections alone.
Third, all definitions of democracy or democratic governance which fail to take
note of the aspect of international democracy need to be viewed with suspicion. The
nature of the internal structure of democracy and freedoms enjoyed by the people is
influenced also by the kind of framework within which the broader international
legal, political, economic, and institutional framework is created. As discussed earlier
in this article, the absence of democracy externallythat is, in the international
decision-making and governance processhas an impact on the measure and extent
to which democracy and freedoms can be realized internally. And a definition which
151.
152.
153.
Gerry J. SIMPSON, Imagined Consent: Democratic Liberalism in International Legal Theory (1994)
15 Australian Yearbook of International Law 103 at 121.
Edward QUASHIGAH and Obiora OKAFOR, Toward the Enhancement of the Relevance and
Effectiveness of the Movement for the Securement of Legitimate Governance in Africa in Quashigah
and Okafor, supra note 120, 539 at 547 (footnote omitted).
For a review of this debate, see Yash GHAI, Human Rights and Governance: The Asian Debate
(1994) 15 Australia Year Book of International Law 1.
IP address: 110.172.129.54
does not take into account the dimension of international democracy always has the
danger of lending undue credence to the idea that national democracy alone can
suffice.154 The Third World, given the colonial legacy it has had to inherit, cannot
fail to stress this aspect.
Fourth, and importantly, it is necessary to be mindful of the question: Who decides
what democratic governance means? There is no authoritative body or state which
can determine what it means in international law.155 And since power plays an
immensely crucial and significant role in the creation of international rules and
norms, and importantly, in shaping the content of those rules, all definitions which
are made by a particular group of states representing a particular region or part of
the world cannot be uncritically accepted. And for that broader dialogue to take
place, a more level playing field should be created. This is very much similar to the
point discussed earlier about Western constructions of self-determination which
get promoted as principles and rules of international law while the Third World is
seen to be playing the role of a passive spectator who adopts them without much
critical deliberation.
In conclusion, any definition which fails to take note of the above factors cannot
amount to a meaningful definition of democratic governance or democracy in
international law. It is necessary for the Third World to argue that such inadequately
defined terms cannot form the basis of any purported right in international law; in
this case, as a right to internal self-determination. Also, no single model of
democratic governmentespecially the liberal-democratic form of government, as
promoted in Europe (or in the West)can be considered to be superior to any other
form of governance elsewhere. As Eric Hobsbawm stated, the well being of
countries does not depend on the presence or absence of any single brand of
institutional arrangement, however morally commendable.156 The mere failure
of the Marxist-Leninist model of democracy need not mean that other socialist
systems are excluded from the model of democracy: One should not be
mesmerized by a purely liberal concept of democracy based on a list of formal
rights and institutional processes.157
vi. conclusion
The challenge before Third World states and international lawyers is a critical one. It
lies in understanding internal self-determination as another expression of different
political aspirations, and in constructively evaluating and critiquing how, and in
what ways, internal self-determination is sought to be articulated and promoted by
states and other actors in a volatile geopolitical context. A sustained commitment to
a constructive critique of the concept of internal self-determination is necessary to
ensure that it does not end up being another instrument in the hands of a few
154.
155.
156.
157.
Marks and Clapham, supra note 115 at 69.

Simpson, supra note 151 at 121.
Eric HOBSBAWM, Globalisation, Democracy and Terrorism (London: Abacus, 2007) at 99.
Salmon, supra note 10 at 280.
IP address: 110.172.129.54
powerful states (of both the West and the Third World); an instrument which can be
used to the detriment of less-powerful states and peoples.
As this article has sought to show, what has been promoted by the West as a
principle or right to internal self-determination seems to have been uncritically
accepted and explicitly endorsed by certain members of the Third World. But it was
considered necessary to alert the Third World to some of the critical limitations,
concerns, and even dangers embedded in the concept of internal self-determination.
It is through a continuing and constructive critique that a concept (or principle) such
as internal self-determination in international law can be better understood and
made more useful for the realization of freedoms of peoples, in both the Third World
and the West.
IP address: 110.172.129.54

Internal Self-Determination in International Law A Critical Third-World Perspective

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AsianJournalofInternationalLaw

Asian Journal of International Law, 3 (2013), pp. 305339

Internal Self-Determination in International

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way of conceiving self-determination as an endogenous right protecting the rights of

ii. west (internal), third world (external)

Jean SALMON, Internal Aspects of the Right to Self-Determination: Towards a Democratic

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self-determination was a concept that was essentially external in orientation. As

iii. western approaches to internal

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as a rule, deciding issues of local relevance on a local level. External self-determination

According to the above articulation, Germany seems to be more comfortable in

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B. Sovereignty vs. Internal Self-Determination

The above formulation shows that self-determination is a principle applicable to

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C. Internal Self-Determination and Minorities: A Toolbox

See 1975 Helsinki Final Act, supra note 30.

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Within the broader notion of internal self-determination, there are a variety of

European Charter of Local Self-Government, Strasbourg, 15.X.1985, online: Council of Europe

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iv. third world approaches: rectifying a

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thereby appearing to be strong and vociferous defenders of self-determination and

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The above seems to indicate Indias unwillingness to accept an understanding of

Thornberry, Self-Determination, Minorities, Human Rights, supra note 17 at 875.

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independence from colonial and foreign domination. There is no right to internal

A. Implicit and Explicit Acknowledgment

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B. Democratic Governance as a Political Commitment

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It is also countries such as India which provided early evidence of village-level

C. Self-Determination and Minorities

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More importantly, particular note needs to be taken of the African jurisprudence

The African Charter adopts an interesting approach. In Article 20(1), it recognizes

Written statement of The Islamic Republic of Iran at 7, online: ICJ /http://www.icj-cij.org/docket/files/

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that right. This recognizes the importance of self-determination as a right to freedom

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D. Independence Was Not Only About External Self-Determination

Markku SUKSI, Sub-State Governance through Territorial Autonomy: A Comparative Study in

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Nkrumah, supra note 47 at xvi2xvii.

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Asian leaders struggling against colonialism were also passionate advocates of

v. internal self-determination: a third

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A. The Evolving Concept of Self-Determination and the Role of the

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B. The Legacy of Colonialism and the Inadequacy of Internal

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C. Internal/External Self-Determination: The Divisive Agenda