Statement by Alfred-Maurice de Zayas, Independent Expert on the promotion of a democratic and equitable international order at the 69th session of the General Assembly

New York, 27 October 2014

Honourable Chair,
Distinguished Delegates,
Ladies and Gentlemen,

Self-determination is an expression of democracy. Its implementation is essential to the establishment of a peaceful international order. Too often the aspiration of peoples to achieve self-determination has been ignored and this has led to conflict and death. It is in our common interest that self-determination be more than a norm enshrined in the UN Charter and in common article 1 of the Human Rights Covenants. It must be a pledge that “We the Peoples of the United Nations” make to each other in international solidarity. We must learn to see self-determination as a conflict-prevention strategy and as a guarantee of sustainable peace.

It is my honour to submit this progress report in accordance with General Assembly Resolution 68/175. The report should be read together with my report to the Human Rights Council, presented on 10 September 2014 pursuant to Human Rights Council Resolution 25/15, which focuses on other aspects of the mandate and contains ten pertinent annexes.

The report builds on paragraph 5 of resolution 68/175, in which the Assembly affirmed that a democratic and equitable international order requires the realization of, among others: “[t]he right of all peoples to self-determination, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development;” and “[t]he right of peoples and nations to permanent sovereignty over their natural wealth and resources”; “[t]he right of every human person and all peoples to development”; and “[t]he right of all peoples to peace”.

In this connection, I also have given attention to General Assembly resolution 68/153 and to the reports of the Secretary-General on self-determination (A/68/318 and A/69/342), which recognize that universal realization of self-determination is a fundamental condition for the effective guarantee and observance of human rights.

Whereas international lawyers recognize self-determination as a norm of peremptory international law, there is no agreed definition and some would like to limit its scope to decolonization. There is no justification in history or in law to adhere to this restrictive view, since over the past fifty years there have been many other developments pertaining to the self-determination of peoples, including precedents of restructuring State entities by granting greater regional autonomy, introducing federalism, accepting secession or voting for unification. The progressive development of international law cannot ignore the fact that countless new countries and new members of the United Nations owe their existence to a process of self-determination such as the dissolution of the Soviet Union, the wars in the former Yugoslavia, Eritrea, South Sudan, Timor Leste, the friendly separation of countries such as Czechoslovakia or the democratic unification of the two Germanies.

My report substantiates the conviction that the realization of the right of self-determination has domestic and international dimensions and contributes to local, regional and international peace. Non-self-governing peoples, peoples living under occupation, indigenous peoples and other unrepresented peoples have an inalienable right to this fundamental expression of democracy.

Bearing in mind that the peoples’ aspiration to take control over their destinies is not a thing of the past but very much a continuing concern, the implementation of their right of self-determination must be taken seriously and in a timely-fashion as a crucial conflict-prevention measure. Indeed, over the past decades too many conflicts have started because of the denial of the legitimate aspiration of peoples to achieve their human rights, including the right to internal or external self-determination.

Logically it is the responsibility of the United Nations to put ears to the ground and listen to early warning signs, so as to engage dialogue and address the grievances of peoples who have specific ethnic, religious and cultural identities and who are denied the right to equal participation in decision-making.

In order to facilitate the evaluation of present and future claims for self-determination, my report formulates fifteen criteria that should be applied uniformly and not à la carte. I consider these criteria an added value.

It is axiomatic that any process aimed at self-determination should be accompanied by participation and consent of the peoples concerned. It is possible to reach solutions that guarantee self-determination within an existing State entity, for instance through autonomy or federalism¹. But if there is a compelling demand for separation, it is most important to avoid the use of force, which would endanger local, regional and international stability and further erode the enjoyment of other human rights. Therefore, good faith negotiations and the readiness to compromise are necessary, which in some cases could be coordinated through the good offices of the UN Secretary-General or under the auspices of the Security Council and the General Assembly.

Among the factors to be taken into consideration in the context of unification, autonomy or secession are:

• The right of self-determination is not extinguished with lapse of time, because like the rights to life, freedom and identity, it is too important to be waived.
• The implementation of self-determination is not exclusively within the domestic jurisdiction of the State concerned, but is a legitimate concern of the international community.
• Neither the right of self-determination nor the principle of territorial integrity are absolute. Both must be applied in the context of the UN Charter and human rights treaties so as to serve the Purposes and Principles of the United Nations.
• The principle of territorial integrity cannot be used as a pretext to undermine the State’s responsibility to protect the human rights of the peoples under its jurisdiction. The full enjoyment of human rights by all persons within a State and the peaceful coexistence among States are the principal goals to achieve. Guarantees of equality and non-discrimination are necessary for the internal stability of States, but non-discrimination alone may not be enough to keep peoples together when they do not want to live together. The principle of territorial integrity is not sufficient justification to perpetuate situations of internal conflict that may erupt in civil war and threaten regional and international peace and security.
• International law evolves through practice and precedents. The independence of the former Soviet republics and the secession of the peoples of former Yugoslavia created precedents on the implementation of self-determination which must be considered whenever self-determination disputes arise.
• The aspiration of peoples to fully exercise the right of self-determination did not end with decolonization. There are many indigenous peoples, non-self-governing peoples and populations living under occupation who still strive for self-determination. Their aspirations must be taken seriously for the sake of conflict-prevention. The post-colonial world left a legacy of frontiers that do not correspond to ethnic, cultural, religious or linguistic criteria. This is a continuing source of tension that may require adjustment in keeping with article 2(3) of the UN Charter. The doctrine of uti possidetis is obsolete and its maintenance in the 21st century without possibility of peaceful adjustments may perpetuate human rights violations.
• The United Nations can assist in the preparation of models of autonomy, federalism, and eventually referenda. A referendum will always be preferable to an armed conflict. A reliable method of determining public opinion and avoiding manufactured consent must be devised so as to ensure the authenticity of the expression of public will. Long-standing historical links to a territory or region, religious links to sacred sites, the consciousness of the heritage of prior generations, as well as a subjective identification with a territory must be given due weight.
• A consistent pattern of gross and reliably attested violations of human rights against a population negates the legitimacy of the exercise of governmental power. In case of unrest, dialogue must first be engaged in the hope of redressing grievances. States may not first provoke the population through grave human rights abuses and then pretend to invoke the right of self-defence in justification of the use of force against them. That would violate the principle of estoppel, a general principle of law recognized by the ICJ. Although all States have the right of self-defence from armed attack (Art. 51 UN Charter) they also have the responsibility to protect the life and security of all persons under their jurisdiction. No doctrine, neither that of territorial integrity nor that of self-determination, justifies massacres. Neither doctrine can derogate from the right to life. Norms are not mathematics and must be applied with flexibility and a sense for proportionality in order to prevent and reduce chaos and death.
• Secession presupposes the capacity of a territory to emerge as a functioning member of the international community. In this context the four statehood criteria of the Montevideo Convention on the Rights and Duties of States (1933) are relevant: a permanent population, a defined territory, government, and the capacity to enter into relations with other States². The size of the population concerned and the economic viability of the territory are also relevant. A democratic form of government that respects human rights and the rule of law strengthens the entitlement. The recognition of a new State entity by other States is desirable but it has declaratory not constitutive effect.
• When a multi-ethnic and/or multi-religious State entity is broken up, and the resulting new state entities are also multi-ethnic or multi-religious and continue to suffer from old animosities and violence, the same principle of secession can be applied. If a piece of the whole can be separated from the whole, then a piece of the piece can also be separated under the same rules of law and logic. The main goal is to arrive at a world order in which States observe human rights and the rule of law internally and live in peaceful relations with other States.
• Sustainable internal and external peace requires the implementation of self-determination of peoples, which is an expression of democracy – government by consent of the governed. Waging war to prevent self-determination is the ultima irratio³.

Honourable Chair, Ladies and Gentlemen,

Among my concrete recommendations I would like to propose that States:

• Take measures to implement common article 1 of the Covenants on Civil and Political Rights and Covenant on Economic, Social and Cultural rights, which stipulates the right of all peoples to self-determination.
• Treat all populations under their jurisdiction in accordance with internationally accepted human rights norms, enable their participation in decision-making, consult with them, provide legal remedies for violations of their rights and ensure enforcement of judicial decisions.
• Pro-actively report to the Human Rights Council on the enjoyment of self-determination by populations under their jurisdiction, pursuant to the UPR procedure. They should similarly report on self-determination matters to the Human Rights Committee and to the Committee on Economic, Social and Cultural Rights.

Similarly, I would suggest that the General Assembly:

• Consider establishing a special mechanism to monitor the reality of self-determination today, in particular the situation of unrepresented peoples and non-self-governing peoples who are not currently being considered under Article 73 UN Charter, or assign more targeted functions to the Fourth Committee⁴, so as to supervise the proper application of Chapter XI procedures;
• And, consider tasking the Human Rights Council with the examination of self-determination issues as a permanent item in its agenda or as part of the UPR procedure, especially from the functional perspective of self-determination as a tool to promote international peace and security.

By way of conclusion, I wish to emphasize my conviction that a peaceful, democratic and equitable international order is best served by a symbiotic accommodation of the principle of territorial integrity, vindicated by States, and the right of self-determination held by peoples.

Both are subject to adjustment and should not be treated as hyperboles of immutable law. While the extreme notion of sovereignty has a territorial fixation, sometimes the concept of self-determination is reduced to only one option: separation. There are multiple ways of exercising self-determination, the implementation of which constitutes an important strategy to promote national and international stability and prevent ethnic or religious tensions from developing into breaches of local, regional or international peace.

International law being dynamic, it is no longer the same as it was at the beginning of the 20th century, or at the end of World War II. There has been a progressive development toward the primacy of human rights over State rights. Many international lawyers, political scientists and sociologists recognize that whereas States are pragmatic constructs that enable effective exercise of jurisdiction, and while many States have been shaped by imperial and colonial policies disregarding geographic, ethnic, religious, linguistic and historical realities, peoples constitute another kind of reality, an older and deeply felt force which binds generations and survives changes in boundaries and governments. Whereas the principle of territorial integrity is a legal, political and pragmatic construct, the right of self-determination has a profound ethical basis⁵. As such, the right has not extinguished. We cannot stop it, we cannot escape it, we must implement it. Let us work with the times and with the progressively developing international law of human rights. We must not tell those who hunger for democracy and participation that the issue is now closed, or that the General Assembly is not the proper venue.

Meanwhile the principle of territorial integrity no longer possesses a higher status in international law than the right of self-determination, which is anchored in the UN Charter and in the Human Rights Covenants. A balancing of rights and interests must be carried out, always with a view to achieving greater respect for human rights and widening the democratic space.

Honourable Chair, Ladies and Gentlemen,

I look forward to continued consultations with States, National Human Rights Institutions and civil society and listening to your remarks and criticism, which I pledge to integrate into my subsequent reports.

Lastly I wish to express my appreciation to the Secretariat of the Office of the UN High Commissioner for Human Rights in Geneva, which has supported my mandate with commitment, competence and professionalism. I salute their grace under pressure, their devotion to the cause of human rights and encourage the Fifth Committee of the General Assembly to give more resources to the Office of the High Commissioner. We must not dodge the issue with reference to the financial crisis. We must face instead the moral crisis and the crisis of priorities. In 2013 the world spent 1.75 trillion US dollars for the military and many countries today are engaged in an arms race. What we urgently need is disarmament and a reorienting of resources toward the implementation of human rights. An investment in the Office of the High Commissioner for human rights is an investment for all of us and for future generations.

I thank you.

Notes:

1. See the rationale of the judgement of the Canadian Supreme Court concerning Quebec.
http://www.scc-csc.gc.ca/case-dossier/info/dock-regi-eng.aspx?cas=25506

2. http://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml

3. Willy Brandt in his Nobel Prize lecture. http://www.a-k-dahesch.de/brandt.html

4. http://www.un.org/en/decolonization/index.shtml

5. Cf M. van Walt and O. Seroo (eds.) The Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention, Report of the International Conference of Experts held in Barcelona from 21 to 27 November 1998, UNESCO Division of Human Rights, Democracy and Peace, www.unescocat.org/pubang.html, pp. 11, 16.