《SELF-DETERMINATION OF PEOPLES:A LEGAL REAPPRAISAL》

1Introduction1

The signifiicance of self-determination1

The approach chosen2

The principal postulates of this enquiry3

PART Ⅰ THE HISTORICAL BACKGROUND11

2Self-determination as an international political postulate11

The French Revolution11

Lenin and Wilson14

Lenin14

Wilson19

The aftermath of the First World War23

The Aaland Islands case27

Concluding remarks32

PART ⅡSELF-DETERMINATION BECOMES AN INTERNATIONAL LEGAL STANDARD37

3 Treaty law37

The United Nations Charter37

Political attitudes in the era after the Second World War44

The 1966 International Covenants on Human Rights47

Introductory remarks47

The origin of the Article on self-determination48

The content of self-determination as laid down in the Covenants52

Self-determination as a continuing right： expression of popular will52

Self-determination as a continuing right： freedom from outside interference55

The right over natural wealth and resources55

Self-determination of dependent peoples57

The people referred to in Article 159

The practice of the UN Human Rights Committee62

Concluding comments65

4 The emergence of customary rules： external self-determination67

Introductory remarks： two necessary caveats67

The role of treaty rules in the customary process67

The role of UN Resolutions in the crystallization of customary rules69

External self-determination71

The self-determination of colonial peoples71

The evolving of general standards71

The actual implementation of the standards74

An overview of UN practice with regard to colonial situations74

To what extent has the United Nations paid regard to the freely expressed will of colonial peoples？76

Cases where the principle of self-determination was blatantly set aside79

Three outstanding situations86

The pronouncements of the International Court ofJustice88

The self-determination of peoples subjected to foreign domination or occupation90

Economic self-determination99

5 The emergence of customary rules： internal self-determination101

Introductory remarks101

A right of self-determination for the populations of sovereign states？ The UN practice102

The right to self-determination of racial groups denied equal access to government108

The 1970 Declaration on Friendly Relations： its saving clause109

The literal and logical construction of the clause112

The preparatory work bears out the above interpretation115

Does the Declaration enshrine a right of secession for racial and religious groups？118

The saving clause of the 1970： Declaration： is it customary law？120

General120

In particular： the refusal of any right to secession122

The modes of exercising internal self-determination124

Conclusion： the general principle and the customary rules on self-determination /126

The different role of the principle and the rules126

Self-determination as imposing obligations towards the whole international community as part ofjus cogens133

6 The holders of the right to self-determination and the means of ensuring observance of the right141

Introductory remarks141

The recipients of the right to self-determination under the UN Covenants： two possible views141

The view according to which peoples are only benefiiciaries of Article 1142

The view according to which peoples are holders of legal rights proper143

Means of ensuring respect for the right to self-determination under the Covenants145

The recipients of the right to self-determination under customary law146

The manner of exercising self-determination under customary law147

Enforcement of self-determination by the peoples concerned150

Enforcement of self-determination by third states155

7 Comparing customary law and treaty law159

PART Ⅲ THE RIGHT TO SELF-DETERMINATION IN OPERATION165

8 The impact of self-determination on traditional international law165

Introductory remarks165

International legal subjects165

Sources of law： the rise of jus cogens169

The principle of non-interference in domestic affairs174

State responsibility176

The changing paradigm of state responsibility176

‘Crimes of States’ in the International Law Commission’s Draft Convention on State Responsibity177

State responses to gross breaches of the principle of self-determination180

Territorial sovereighty185

Introductory remarks185

The validity of existing title over territory186

Acquisition of legal title to territorial sovereignty188

Cession189

Boundaries （uti possidetis V.self-determination）190

The use of force193

The use of force by the oppressive state194

The use of force by the oppressed people197

The use of force by third states199

Resort to force by the state claiming reversionary rights over the territory of a dependent people199

Resort to force by other third states199

Final remarks200

The humanitarian law of armed conflict201

9 Testing international law - some particularly controversial issues205

Introductory remarks205

Attempts at implementing self-determination： some case studies206

Gibraltar206

General206

Historical background207

The position of Spain208

The position of the UK209

The position of the UN210

Some tentative remarks211

Western Sahara214

Introductory remarks214

Historical background214

A thumb-nail sketch of the position of the states concerned217

Concluding remarks218

Eritrea218

Introductory remarks218

Historical background219

The views and claims of Ethiopia221

The views and claims of the Eritreans221

Concluding remarks222

East Timor223

Introductory remarks223

Historical background224

The views of Portugal225

The views of Indonesia225

Some tentative remarks226

Palestinian rights230

Introductory remarks230

Historical background232

The view advanced by the government of Israel235

The view advanced by the Palestine Liberation Organization237

The position of the United Nations238

A few generatremarks240

The Israel-PLO agreement of 13 September 1993： some tentative observations243

The Agreement and self-determination243

The Agreement and the Camp David Accord245

Concluding remarks247

Quebec248

Historical background248

The positions advanced by the principal political parties in Quebec251

The view advanced by the federal government251

Do the Quebecois have a legal right to self-determination？251

Rights versus reality253

Concluding comments254

10 The role of self-determination in the recent break up of the Soviet Unionand Yugoslavia257

Introductory remarks257

The Baltic republics258

The position of the republics258

The position advanced by the Soviet Union261

The rights of the Baltic republics under international law262

Rights versus reality263

The other Soviet Republics264

The crisis in Yugoslavia268

Concluding remarks273

PART ⅣTHE NEW TRENDS EMERGING IN THE WORLD COMMUNITY277

11 Attempts at expanding self-determination277

Introduction277

The Helsinki Final Act278

General278

The 1973 proposals280

The texts of the four proposals280

The discussion of the texts283

Principle Ⅷ of the Helsinki decalogue284

The novel features of Principle Ⅷ285

The traditional facets of Principle Ⅷ288

The Helsinki Principle， the UN instruments and customaryinternational law290

The CSCE follow-up to the Helsinki Final Act292

The 1976 Algiers Declaration on the Rights of Peoples296

The main features of the self-determination provisions296

The Algiers Declaration and existing international law301

The Algiers Declaration and the Helsinki Final Act301

The new drive towards the customary recognition of the right to self-determination of the peoples of sovereign states302

PART ⅤGENERAL STOCK-TAKING315

12 Recapitulation and conclusion315

Merits and failings of the present body of international law315

The political principle and its different meanings315

What notion of self-determination has been upheld in international law？ The present legal regulation of self-determination317

The historical and political background of the present international regulation of self-determination320

Merits of the present law323

The alleged flaws of the law325

The real flaws327

The co-ordination of self-determination with the other fundamental legal principles of the world community333

Emerging normative trends337

The existing law on self-determination and the new tribalism339

From lex lata to lex ferenda： a blueprint for action341

The starting point341

The failings of UN action341

The current context of the international community342

A plea for a four-pronged strategy344

Putting existing international legislation into effect with regard to some outstanding questions344

Promoting the crystallization of rules in statu nascendi on the internal self-determination of peoples of sovereign states346

Developing new rules for the internal self-determination of ethnic groups and minorities348

General： the need to rethink self-determination and emphasize its ‘internal’ dimension348

Looking upon minority protection within the framework of internal self-determination： the link between the two concepts351

The means of achieving self-determination for ethnic groups and minorities： strengthening positive action and participatory rights and granting a wide measure of autonomy352

Allowing for the exceptional granting of external self-determination to ethnic groups and minorities， subject to international consent and scrutiny359

A word of caution about the proposed strategy and some alternative solutions363

Index of names366

Index of subjects372