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After
this I will set out the development of self-determination
in the colonial context. Despite the fact that selfdetermination is often associated with decolonization, I
will explain that the right of self-determination is also
applicable outside the colonial context. In post-colonial
situations, the emphasis has mostly been on the
internal aspect of self-determination. Although this is a
very controversial issue, in my thesis I have argued that
there is also a a right of external self-determination
outside the colonial context. The central question of my
thesis is whether international law allows for a right of
external self-determination in the form of unilateral
secession as an emergency exit when the internal right
of self-determination is breached. The phrase selfdetermination has strong appeal. No other concept is
as powerful, visceral, emotional, unruly, as steep in
creating aspirations and hopes as self-determination.
The list of nations and peoples claiming selfdetermination is endless and unfortunately the list of
conflicts in the world that are related to selfdetermination claims is equally long. Self-determination
has been referred to as a fundamental principle of
international law and with its inclusion in the
International Human Rights Covenants it became a
human right. It was first included in the Charter of the
United Nations as one of the guiding Purposes and
Principles of the Organisation, and subsequently it has
been proclaimed in numerous international instruments.
In a nutshell the right to self-determination gives
peoples a free choice which allows them to determine
their own destiny. This right can be exercised in a
variety of ways, and traditionally a distinction has been
made between external and internal self-determination.
The external aspect of self-determination developed in
this is not the case. There have been cases of selfdetermination outside the colonial context. The end of
the
Cold War and subsequent developments in Europe in
the early nineties set the stage for a renewed emphasis
on the internal aspect of self-determination.
The reunification of Germany was a case of selfdetermination with a positive response from the
international community.
The breakup of the Soviet Union was also an example of
peoples exercising their right of self-determination
outside the colonial context.
The peoples of the Socialist Federal Republic of
Yugoslavia also claimed their right of self-determination
which resulted in the dissolution of this federal State.
The EC set up Guidelines on recognition (general
criteria for recognizing the new States:
- The free expression of the will of the population
concerned, by way of plebiscites or referendums;
- The firm commitment to respect the rule of law,
human rights, and the rights of minorities.
Kosovo is the latest example of self-determination
outside the colonial context. Kosovo will be dealt later.
As stated before, outside the colonial context the
emphasis has been on internal self-determination: the
right of all peoples to participate in the expression of
the political will within the State (representative
government). If we examine the International Human
Rights Covenants and the African Charter on Human
and Peoples Rights, there is no reason to assume that
the right of self-determination was meant to apply in
majority of those reports have linked internal selfdetermination with human rights and democracy.
The CERD has also issued a General Recommendation
on self-determination, in which it pointed out that the
internal aspect of self-determination is linked with the
right to political participation and that discrimination of
certain groups within a State would thus violate this
right. According to the Committee, self-determination
continues to be applicable beyond decolonisation.
The African Commission on Human and Peoples Rights
also started to give more attention to internal selfdetermination (see e.g the Guidelines for National
Periodic Reports).
However, the question remains: Who are the people?
Who are the holders of this right outside the colonial
context? The entire population of a territorial unit? The
highest constituent units of federal States in the
process of dissolution, at least if these units have been
formed on an ethnic basis (Soviet Union, Socialist
Federal Republic of Yugoslavia). See also the example of
Indigenous Peoples and the numerous territorial
autonomy arrangements for ethnic sub-groups in
Denmark (Greenland), Norway (Sami), United Kingdom
(Scotland and Wales), France (Corsica), Indonesia (Aceh
and West-Papua), India (Nagaland), Russia (Tartastan).
These examples support an ethnic definition of a
people.
While outside the colonial context the emphasis has
been on internal self-determination, in my thesis I have
argued that there is also a right of external selfdetermination outside the colonial context. Even though
I agree that for reasons of stability (international peace