Self-determination in New Contexts: The Self-determination of Refugees and Forced Migrants in International Law

• Author: Kathleen McVay
• Position: LL.M. Candidate in Public International Law, Utrecht University; LL.B., Australian National University School of Law; B.A. in International Relations, Australian National University College of Arts and Social Sciences
• Pages: 36-52

Self-determination in New Contexts: e Self-determination of

Refugees and Forced Migrants in International Law

Kathleen McVay

Merkourios 2012 – Volume 28/Issue 75, Article, pp. 36-52.

URN:NBN:NL:UI:10-1-112856

ISSN: 0927-460X

URL: www.merkourios.org

Publisher: Igitur, Utrecht Publishing & Archiving Services

Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)

Keywords

Self-determination, Refugees, Migrants, Denition of Peoples, Human Rights, Ethnicity

Abstract

e international movement of people as a result of conict, natural disaster, and famine is increasingly challenging for

States. e Refugee Convention and its additional protocols have proven to be inadequate for protecting many people from

human rights abuses. Accordingly this paper seeks to ascertain whether self-determination may operate to protect permanent

refugee and forced migrant communities. Self-determination is a human right that has attracted considerable controversy.

However, its universal applicability and the strength of the right make it an attractive means of limiting the power of a State

in respect of refugee and forced migrant communities. Drawing from historical analogy this article concludes that in limited

circumstances self-determination may be available for permanent refugee or forced migrant communities.

Author Aliations

LL.M. Candidate in Public International Law, Utrecht University; LL.B., Australian National University School of Law;

B.A. in International Relations, Australian National University College of Arts and Social Sciences. e author would like to

thank Matthew Zagor of the ANU School of Law for his work in supervising this article and the Merkourios Editorial Board.

Article

Merkourios - International and European Migration Law - Vol. 28/75 36

Case Note

Article

I. Introduction

Self-determination may be broadly dened as a right of peoples under international law to exist and have access to government.

is right has created controversy because it may challenge the State system through a derogation of the principle of territorial

integrity. ere is a resulting tension in the principle between the interests of the States and the interests of the peoples it seeks

to protect. is tension has lead to the creation of a principle that is both multifaceted and ambiguous.

International refugee law has faced similar problems. Refugee and forced migrants (that is, people who are forced to ee

from their home States, but do not t within the Refugee Convention1 denition of refugees) challenge notions of territorial

supremacy and State sovereignty.2 ese notions compete with the issues that arise under international human rights law and

international humanitarian law.

e purpose of this article is to ascertain whether refugees and forced migrants may possess a right of self-determination in

international law. In three chapters, the paper will survey the relevant literature, drawing on case studies to compare and

contrast with the article subject. e rst chapter will analyse the denition of peoples to see whether a refugee or forced

migrant community may t within that framework. e next chapter will examine the nature of self-determination as a

principle of international law, including threshold requirements in light of its application to refugee and forced migrant

groups. e nal chapter will investigate the content of self-determination, with particular focus on how the obligation may

be breached and the potential remedies that are available to refugee and forced migrant groups who meet the denition of

peoples.

II. e Denition of Peoples

is chapter will explore the denition of peoples with a right to self-determination under international law through an

examination of legal and sociological literature as well as select case studies. e debate surrounding the denition of peoples

largely centres on ethnicity.3 is is problematic as ethnicity is both an abstract and uid construct. Historically, the League

of Nations, the United Nations and many States have favoured a denition based on ethnicity, as has academic commentary.

However, even the United Nations Charter (‘the UN Charter’), (which is a primary source of law for the principle) and

its preparatory work, provide little clarity on the matter. International case studies are also inconsistent, with some cases

appearing to favour a denition based on ethnicity, while others seem to reject it. Other denitions outside the context of

ethnicity exist but have not been widely accepted. is chapter will craft a working denition from the debate and analyse

the ramications for forced migrant and refugee and forced migrant communities.

A. What Is Ethnicity?

Ethnicity as a term in the legal literature has played a fundamental role in the debate on self-determination. Ethnicity is

generally used to describe minority groups that are culturally distinguishable from the majority. Prima facie, it is a temptingly

easy means of simplifying the debate. However, further examination reveals that a reliance on ethnicity to dene peoples is

fraught with tension and potential contradictions.

Ethnicity has often been confused with national identity in international legal discourse. Both ethnicity and national identity

are relative, formed in response to the presence of another group.4 As Eriksen states: ‘ethnicity occurs when cultural dierences

are made relevant through interaction. It thus concerns what is socially relevant, not which cultural dierences are “actually

there.”’5 erefore, ethnicity cannot be objective because it is self-dening. e dierence between ethnicity and national

identity lies in the political nature of nationalist movements. Smith demonstrates that nationalism may either work to

1 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) art 1A; Protocol

Relating to the Status of Refugees (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267, art 1.

2 G Goodwin Gill and J McAdam, e Refugee in International Law (OUP 2007) 1.

3 For example, see I Brownlie, ‘e Rights of Peoples in Modern International Law’ in J Crawford (ed), e Rights of Peoples (Oxford University Press 1988) 1, 5;

Cf T D Musgrave, Self-Determination and National Minorities (OUP 1997) 154-167.

4 T Hylland Eriksen, Small Places, Large Issues: An Introduction to Social and Cultural Anthropology (Pluto 2001) 266.

5 ibid 263.

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