Evolving Concepts of Self- Determination and Autonomy in International Law: The Legal Status of Tibet
| Author | Valerie Epps |
| Position | B.A.(Birmingham); J.D.(Boston); LL.M.(Harvard). Professor of Law and Director of the International Law |
| Pages | 217-242 |
Page 217
This article traces the evolution of the concept of self-determination from the end of World War I, through the era of decolonization, to the present day when it has become embedded in the human rights framework and, in limited circumstances, is used to justify secession. Various national and international cases are examined in analyzing the jurisprudence of self-determination, as well as the new European standards for State recognition after secession. The concept of autonomy is also examined as possibly providing a solution for disaffected minority groups within a greater territorial unit. The article then applies the self-determination and autonomy frameworks to Tibet and examines possible solutions for assessing Tibet's international status.
Open any serious newspaper and before too long you will find a story about a separatist movement, often accompanied with details of bombings and the number of dead or injured. These separatist uprisings, not always involving armed conflict, span the globe from South Ossetia and Abkhazia in Georgia, to Indian administered Kashmir; from the Page 218 Basque region of Spain, to Scotland in the United Kingdom; from Quebec in Canada, to Chechnya in Russia; from the Uighur region of Xinjiang Province in China, to Somaliland in Somalia, Africa. Most of these claims for more autonomy or secession fester for a long period of time, and usually, although not always, arise out of some sense of injustice by the ruling group of the larger state towards the separatist area. Separation sometimes occurs peacefully, such as the separation of the Czech Republic and Slovakia in 1993, but more often the claims either fade into obscurity or result in a bloody civil war.
War sometimes brings success for the separatists, in the sense of gaining independence from a larger territorial state, although at great cost, both human and material, such as in Eritrea which gained independence from Ethiopia in 1993, and East Timor which became independent from Indonesia in 2002. Sometimes the separatists are not successful, such as in Biafra which declared independence from Nigeria in 1967 but was reabsorbed into Nigeria after much bloodshed in 1970. Sometimes areas claiming separation operate for many years as virtually independent entities but are not recognized as a state by other states (or only a handful of states) such as Nagorno- Karabakh inside Azerbaijan or Transnistria inside Moldova. This article will examine the status of secession and autonomy claims in international law and will suggest applications of that law to Tibet.
The late Professor Hersch Lauterpacht took the view that: "International law does not condemn rebellion or secession aiming at the acquisition of independence."1 This view is reiterated by Professor James Crawford in his comments on certain Security Council resolutions which he determined took the view that "secession is neither legal nor illegal in international law, but a legally neutral act the consequences of which are regulated internationally."2
Claims of secession, standing alone, that is, based on nothing more than a wish to separate from the larger state, find no legitimacy within international law3 but the term Page 219 has burrowed its way into part of the concept of self-determination and has thereby gained a form of legitimacy in international law in certain limited circumstances. The secession aspect of self-determination still haunts the borders of an evolving legal concept, or an expression of political will or human aspiration. The concept never quite settles down into a black letter law precept, but it is never fully relegated to simply the cry of the disenchanted. The amorphous nature of self-determination makes it both fascinating and frustrating. Self-determination in its secessionist mode always challenges one of the bed-rock concepts of modern international law, namely the territorial integrity of the sovereign state.4
The term, "self-determination" has undergone considerable historical transmutation since it was tossed into the international arena by U.S. President Woodrow Wilson after World War I, when the victorious powers were busy carving up the rubble of the Austro-Hungarian and Ottoman Empires.5 There is a certain irony to the use of this phrase as this was a time when victorious states expected to, and certainly did, redistribute conquered lands after warfare with no regard for the wishes of the residents. Nonetheless, the phrase and the concept gained traction.
The Covenant of the League of Nations did not mention self-determination, although the Mandate System was charged with ensuring that: "the principle that the well-being and development of such peoples [i.e. peoples within the area to be governed by the Mandatory Power] form a sacred trust...."6 The idea of asking for the consent of the people within the Mandatory territories was simply never considered. The Commission of Jurists firmly rejected the notion of a right to separation from the larger governing entity in its decision on the status of the Aaland Islands in 1920, even though the inhabitants overwhelming wished to separate from Finland and re-unite Page 220 with Sweden.7 "Positive International Law does not recognize the right of national groups, as such, to separate themselves from the State of which they form a part by the simple expression of a wish, anymore than it recognizes the right of other States to claim such a separation."8
The United Nations Charter twice mentions "self-determination." Article one, paragraph 2 states that a purpose of the U.N. is: "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples...."9 Article 55 notes that "peaceful and friendly relations among nations" should be "based on respect for the principle of equal rights and self-determination of peoples...."10 The linguistic dissonance between the idea of promoting peace "among nations" (emphasis added) but, at the same time, calling for "self-determination of peoples" (emphasis added) was understood, at the time, as simply a reference to the self-determination of the inhabitants of the dependent territories of the League's Mandate system in the context of transferring them to the new U.N. Trusteeship system. This new system included the areas being administered under a Mandate and other non-self-governing territories either "detached from enemy states as a result of the Second World War"11 or "voluntarily placed under the [Trusteeship] system...."12
The Charter did, however, have rather more instructions on the purposes guiding the Trusteeship system than the League's Covenant. Article 73 of the Charter indicates that the administering power must "develop self-government, ... take due account of the political aspirations of the peoples, and ... assist them in the progressive development of their free political institutions ...."13 Article 76 goes further and speaks of promoting "self-government or independence" but then adds "as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned...."14 The language of the Charter accepts an Page 221 essentially colonial system but self-government, and even independence of the Trust administered territories, is clearly the ultimate aim, admittedly at some future, undetermined date, and only when the Trustee decides that the peoples of the territory have reached a stage of advancement warranting such a transfer of power. The notion of sections of a particular trust territory (or indeed sections of an existing state) getting the right to sever themselves from the larger territory was not considered an option.
Decolonization linked self-determination to the right to political participation in governance. The General Assembly became very active in the movement towards granting independence to colonial territories. In 1960, the General Assembly declared that "All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."15 This broad declaration, named the "Declaration on the Granting of Independence to Colonial Countries and Peoples" concludes, however, as many similar declarations, with a prohibition against reading the right of self-determination as a right of secession: "Any...
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