The right of-self-determination has long been celebrated for bringing independence and self-government to oppressed groups, yet it remains a highly controversial norm of international law. From the breakup of the Austro-Hungarian and Ottoman Empires after World War I to the struggle of colonial territories for independence following World War II and the later dissolution of the former Yugoslavia, there has been an unavoidable conflict between the efforts of peoples to achieve independence and the demands of existing states to preserve their territorial integrity. (1) The UN Declaration on Principles of International Law reflects this tension. (2) It gives the principle of self-determination universal scope as a right belonging to undefined "peoples" but rejects any secession from independent states "conducting themselves in compliance with the principle of equal rights and self-determination of peoples ... and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour." The 1993 Vienna Declaration adopted by the World Conference on Human Rights similarly affirmed the universal application of the right of self-determination to peoples under colonial or other forms of alien domination or foreign occupation, but also specified, in conformity with the Declaration of Principles, that the right
shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people. (3) In its recent Kosovo advisory opinion, (4) the International Court of Justice (ICJ) found no prohibition of unilateral declarations of independence in either general international law or in the practice of the UN Security Council. (5) In fact, the Court noted that "during the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation." (6) Moreover, the Court observed, a great many new states have come into existence as a result of the exercise of this right and also have issued declarations of independence outside the colonial context. Thus, state practice did not point to the emergence in international law of a new rule that prohibits making a declaration of independence in such cases. Nonetheless, the Court noted sharp disagreements about "[w]hether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State." (7) Similar differences were found to exist regarding whether international law provides for a right of "remedial secession" and, if so, in what circumstances. The Court declined to resolve these debates, finding it was unnecessary to do so in order to respond to the question posed by the General Assembly, which concerned only whether or not the declaration of independence was in accordance with international law.
The issues that the Court did not address remain significant ones. They have been sources of conflict, practice, and jurisprudence in many regions of the world. Africa, for example, continues to confront the aftermath of colonialism, during which arbitrary boundaries were drawn, dividing some peoples and forcing others together, sometimes despite a tradition of mutual hostility or enmity. To resolve one such problem, on January 9, 2011, residents of southern Sudan are scheduled to vote on whether to secede or remain part of the largest country on the continent. (8) Although included as part of a peace agreement, the referendum has been repudiated by many in the region and may yet be postponed or canceled. (9) The regional African Union is caught between its Constitutive Act, which enshrines as a founding principle "respect of borders existing on achievement of independence," (10) and its significant role as a signatory and guarantor of the peace agreement. (11) The potential for secession of part of Sudan following the referendum may be viewed by some through the prism of decolonization, in order to legitimize the resulting independence. Supporters of secession may note that in its Kosovo opinion the ICJ recognized the legality of independence for peoples subject to alien subjugation, domination, and exploitation, but did not attempt to resolve the diversity of views outside that context.
In contrast to Sudan and the potential independence of its southern region, indigenous and tribal peoples in Africa and the Americas have refrained from claiming independence, seeking instead to obtain internal self-determination and, in particular, control over their ancestral lands and resources. The right to such internal self-determination is recognized by the two international instruments devoted to the rights of indigenous and tribal peoples: the International Labour Organization's Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (12) and the UN Declaration on the Rights of Indigenous Peoples. (13) The UN Declaration explicitly recognizes indigenous peoples' right to self determination. (14) For its part, ILO Convention No. 169 contributes to defining "peoples" by regarding self-identification as the fundamental criterion, but specifies that the use of the term "shall not be construed as having any implications as regards the rights which may attach to the term under international law." (15) While thus seeming to refute the right of indigenous peoples to self-determination, the Convention nonetheless recognizes the aspirations of indigenous peoples to control their own institutions, ways of life, and economic development "within the framework of the state in which they live." (16) In fact, the major part of ILO Convention No. 169 can be characterized as setting forth elements of internal self-determination for indigenous and tribal peoples, as groups entitled to special treatment. (17)
Taking into account these global instruments, the African and American regional human rights systems have contributed to the law of self-determination. As this essay will reveal, the two regional systems have distinguished internal from external self-determination, and indicated the different circumstances under which each variation of the right applies. The essay begins with a look at the relevant human rights provisions of the two systems, after which it turns to the case law concerning secession claims; the discussion on secession is limited to Africa because no case of this type has come before the American human rights institutions. It then looks at the special self-determination rights of indigenous and tribal peoples, and at the corresponding special state duties owed them. As will be noted, the jurisprudence of the two systems provides some of the answers that the ICJ declined to give in the Kosovo opinion. The final part refers to the written submissions of African and American states in the Kosovo proceedings.
THE RIGHT TO SELF-DETERMINATION IN REGIONAL HUMAN RIGHTS INSTRUMENTS
In the Inter-American system, neither the American Declaration on the Rights and Duties of Man (18) nor the American Convention on Human Rights (19) mentions a right of self determination. Language to include this right in the Draft American Declaration on the Rights of Indigenous Peoples under negotiation in the Organization of American States remains in brackets without consensus. (20) In contrast to the American and European human rights instruments, (21) the African Charter on Human and Peoples' Rights (22) contains a detailed right of peoples to self-determination. Given the context of decolonization in Africa and the struggle against apartheid in Southern Africa, both of which are referred to in the preamble to the African Charter, (23) it is not surprising to find the right expressed. As defined in African Charter Article 20, the right to self-determination has more detail than is found in common Article 1 of the UN Covenants on human rights (the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights).24 Article 20 stipulates:
All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
All peoples shall have the right to the assistance of the states parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
The article appears to recognize two distinct groups of peoples: those that are living under colonialism and oppression, and those that are not. The first group is entitled to independence and foreign assistance in the struggle for liberation (external self-determination). Other peoples are entitled to maintain their existence and exercise their self-determination, but within existing states.
Article 20 must be read in the context of the entire African Charter, whose very title indicates that it is concerned with collective peoples' rights as well as individual rights. Chapter 1 of the Charter, which expresses the guaranteed individual and collective rights, contains six separate articles on peoples' rights (Articles 19 to...