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Articles > Karabakh > On the principles of self-determination and so-called 'territorial integrity' in public international law

 

(THE CASE OF NAGORNO-KARABAKH)

By Ara Papian
Head, “Modus Vivendi” Center
www.wilsonforarmenia.org
1-7 June 2010

Self-determination: Historical Background

Self-determination is an ancient political right that is cherished by every people. The word “self-determination” is derived from the German word “selbstbestimmungsrecht” and was frequently used by German radical philosophers in the middle of the nineteenth century. The political origins of the concept of self-determination can be traced back to the American Declaration of Independence of July 4, 1776. The American Revolution is considered to be “an outstanding example of the principle of self-determination.”  The principle of self-determination was further shaped by the leaders of the French Revolution. During the nineteenth century and the beginning of the twentieth, the principle of self-determination was interpreted by nationalist movements as meaning that each nation had the right to constitute an independent State and that only nationally-homogeneous States were legitimate.  During World War I, President Wilson championed the principle of self-determination as it became crystallized in Wilson’s Fourteen Points (8 January 1918) and consequently was discussed in the early days of the League on Nations. The Mandate system was to some degree a compromise between outright colonialism and principles of self-determination.

While discussion of the political right and principle of self-determination has a long history, the process of establishing it as a principle of international law is of more recent origin. Since the codification of International Law is today mostly achieved through an international convention drown up in a diplomatic conference or, occasionally, in the UN General Assembly or similar forum on the basis of a draft with commentary prepared by the International Law Commission or some other expert body,  we must follow the development of the discussed notions through international instruments. It must be stressed that if the rules, incorporated in the form of articles in the conventions, reflect existing customary international law, they are binding on states regardless of their participation in the conventions.

Self-determination: Development under the Aegis of the United Nations

1. Incorporation into the UN Charter

The principle of self-determination was invoked on many occasions during World War II. It was proclaimed in the Atlantic Charter (14 August 1941). The provisions of the Atlantic Charter were restated in the Washington Declaration of 1942, in the Moscow Declaration of 1943 and in other important instruments of the time. Owing to these declarations already at the days of establishment of the United Nations, the notion of self-determinations was seen as a principle of international law.

Ultimately, “the principle of equal rights and self-determination of peoples” was incorporated into the United Nations Charter. The Charter [Article 1(2)] clearly enunciated the principle of self-determination: “The purposes of the United Nations are: To develop friendly relations among nations based on respect for the principle of equal rights and self-determinations of peoples” and self-determination is conceived as one among several possible “measures to strengthen universal peace.”  Chapter IX (International Economic and Social Co-operation, Article 55) lists several goals the organization should promote: “With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” Under Article 56, “all Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.”

The principle of self-determination, as it follows from Article 55 of the UN Charter, is one of the fundamentals of peaceful and friendly international relations. In other words, there can be no such relations without the observance of this principle. The same article says it is the duty of the United Nations to promote respect for fundamental human rights (para. c) and, consequently, for the nations’ right to self-determination. And since the establishment of friendly relations between peoples and the promotion of respect for human rights figure among the United Nation’s most important tasks, it is obvious that this organization is entitled to raise the question of a people’s self-determination.

The Charter is dominant over all the other international documents. This provision is set down in Article 103 of the Charter, and is accepted by all the members of the UN. It is clear that the UN considers the self-determination of peoples (self-determination, not just the right of people for self-determination, i.e. the application of this right) as not only one of its basic principles but also as a basis for friendly relations and universal peace. Hence, rejection of self-determination hinders friendship and universal peace. In addition, Article 24, Point 2 holds: "In discharging these duties [the maintenance of international peace and security] the Security Council shall act in accordance with the Purposes and Principles of the United Nations." It means that, in the maintenance of international peace and security, the Security Council must be guided by self-determination of peoples because it is one of its principles.

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