The End of the Unitary Multi-National State System

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The doctrinal status of the right to self-determination was developed slowly by the international legal doctrine. It should initially be mentioned at this point that Article 22 of the Covenant of the League of Nations and the fifth of Wilson’s Fourteen Point, despite not explaining the principle of self-determination in detail, contributed to the development of the principle. However, the United Nations (UN) by Article 1 (2) and Article 55 of the UN Charter did emphasise the significance of the principle of self-determination much more than those documents.[1] Moreover, the UN General Assembly did repeatedly underscore the importance of the principle during the decolonisation movements. Furthermore, the international community did also underline the significance of the principle after the decolonisation movements through several international treaties such as the ICCPR and ICESRC treaties.[2]

The principle of self-determination has also been evaluated and developed by the international courts. For example, the principle was explained in the case of Aaland Islands during the period of League of Nations.[3] Then, the principle was read in the case of Angola.[4] Afterwards, in the case of Malaysia, it was demonstrated that the principle of self-determination could constitute a federal state.[5] In addition, the International Court of Justice (ICJ) interpreted the principle of self-determination as a procedural right or an enforceable right in Namibia,[6] Western Sahara,[7] Frontier Dispute,[8] and East Timor.[9]

The ICJ also evaluated the right to self-determination in conjunction with the remedial right to secession in the advisory opinion on Kosovo. To clarify, the ICJ determined under three points in this case, namely, the ‘Constitutional Framework’, the ‘Security Council Resolution 1244’, and the principle of territorial integrity. The ICJ held in this regard that (1) the Constitutional Framework was not sufficient to constrain the authors of the unilateral declaration; (2) there was no restriction in the Security Council Resolution 1244 against Kosovo’s independence; and (3) the principle of territorial integrity could be applied to only states, thus, the unilateral declaration did not breach general international law. That is why the ICJ held that the unilateral declaration was in accordance with international law.[10]

Almost all sub-state organisations have noticed that there is no restriction in international law as a barrier to declare their independence because of the statement of the ICJ in the advisory opinion.[11] I am of the belief at this juncture that the advisory opinion has been a menace to the unitary multi-national state system. To clarify, minorities are represented in the unitary multi-national states by many sub-state entities as is widely known. In the light of the advisory opinion, those entities may be inclined to extend the right to internal self-determination on behalf of the minorities, such as by constituting new legal orders, creating local constitutions, and requesting an influential principle for decentralisation. The unitary multi-national state system may not be sufficient to satisfy the demands of those entities due to its basic principles in this context. Hence, the states might need to establish the federal state system to satisfy the demands of the entities. In other words, the unitary multi-national state system might collapse because of the demands of the minorities.

 

 



[1] Charter of the United Nations and Statute of the International Court of Justice 1945, chap 1 (1) and 9 (55). See also M. K. Nawaz, ‘The Meaning and Range of the Principle of Self-Determination’ (1965) 82 DukeLJ 82, 82-88.

[2] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), s 1 (1); International Covenant on Economic, Social and Cultural Rights 1966 (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR), sec 1 (1). See also Matthew Saul, ‘The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Rights’ (2011) 11 HRLRev 609, 611.

[3] Nawaz (n 2) 86-87.

[4] ibid 95-97.

[5] ibid 97-99.

[6] Legal Consequences for States of the Continued Presence of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16, paras 52-53. See also Jan Klabbers, ‘The Right to Be Taken Seriously: Self-Determination in International Law’ (2006) 28 HumRtsQ 186, 191-92.

[7] Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, para 70. See also Klabbers (n 7) 192.

[8] Frontier Dispute (Burkina Faso v. Mali) (Judgment) [1986] ICJ Rep 554, para 25. See also Klabbers (n 7) 195-6.

[9] East Timor (Portugal v. Australia) (Judgment) [1995] ICJ Rep 90. See also Klabbers (n 7) 196.

[10] Theodore Christakis, ‘The Advisory Opinion on Kosovo: Has International Law Something to Say about Secession?’ (2011) 24 LJIL 73, 73; Ralph Wilde, ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’ (2011) 105 ASIL 301. See also Colin Warbrick, ‘I. Kosovo: The Declaration of Independence’ (2008) 57 International and Comparative Law Quarterly 675; Bing Bing JIA, ‘The Independence of Kosovo: A Unique Case of Secession?’ (2009) 8 CJIL 27, 28.

[11] Ralph Wilde, ‘Self-Determination, Secession, and Dispute Settlement after the Kosovo Advisory Opinion’ (2011) 24 LJIL 24 149, 152.