Right of peoples to self-determination – Special Rapporteur study (excerpts)

IMPLEMENTATION OF UNITED NATIONS RESOLUTIONS RELATING TO THE

RIGHT OF PEOPLES UNDER COLONIAL AND ALIEN DOMINATION

TO SELF-DETERMINATION

Study prepared by Mr. Hector Gros Espiell, Special Rapporteur

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* For technical reasons, the bibliography appears in volume II.

VOLUME I

CONTENTS

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72. The question was discussed incidentally at the twenty-fifth session of the General Assembly, during the preparation of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. The representative of Iraq maintained that the fundamental principles of international law contained in the Declaration, which include the principle of self-determination of peoples, could be considered as true rules of jus cogens.  This interpretation was contested by. the representative of the Netherlands, who took the view that the Declaration was heterogeneous and could not be spoken of in terms of ."jus cogens.  That was basically the opinion which had been expressed by the United States representative in the Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States.  The terms of the discussion have moreover been commented on in the literature. In the view of the Special Rapporteur, even if it is accepted that the Declaration, which includes desiderata as to the content of future international law, is heterogeneous, and thus not of the nature of jus cogens in every one of its propositions, the fundamental principles of the Charter embodied in it – and hence the principle of self-determination of peoples – as enunciated in General Assembly resolution 2625 (XXV), are nevertheless of the nature of jus cogens. The principles in question are described as "basic" in the Declaration itself and are referred to in like terms in paragraph 3 of the Declaration on the Occasion of the Twenty-fifth Anniversary of the United Nations and in paragraphs 2 to 6 of the Declaration on the Strengthening of International Security these are three fundamental documents adopted without opposition on the occasion of the twenty-fifth anniversary of the Organization. Leaving aside the supplementary formulations, the consequences and the corollaries which are set out in a heterogeneous manner under each of these principles in the Declaration adopted in resolution 2625 (XXV), the principles themselves constitute contemporary manifestations of what in contemporary international law are rules of jus cogens.

73. The idea that the principle of self-determination has this character and is thus at the very summit of the legal hierarchy has already begun to make progress in jurisprudence although it does not yet command acceptance by the majority.

74. It is important to point out that acceptance of the idea of the existence of jus cogens is not, generally speaking, associated with" "a particular school of legal thought and that writers of differing theoretical tendencies at present accept the existence of peremptory norms of international law.—

75.  In present-day legal theory the idea that self-determination is a case ofjus cogens is widely supported, whether because it is held that the character of jus cogens is an attribute of the principle of self-determination of peoples or because it is considered that this right, being a condition or prerequisite for the exercise and effective realization of human rights, possesses that character as a consequence thereof.

76.  In 1976 the International Law Commission, in its draft articles on State responsibility, approved an article characterizing as an international crime "a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples, such as that prohibiting the establishment or maintenance by force of colonial domination".

77. This provision originated in Professor Roberto Ago's draft, which characterized as an international crime "the serious breach by a State of an international obligation established by a norm of general international law accepted and recognized as essential by the international community as a whole and having as its purpose: …respect for the principle of the equal rights of all peoples and of their right of self-determination".  In spite of the change of wording and although-Professor Ago's formulation is clearer, more precise and more radical, the International Law Commission has agreed that violation of the right of peoples to self-determination is a most serious offence, an international crime, and has thus tacitly admitted that this principle is one of the cases which in contemporary international law can be characterized as jus cogens.

78.  In the Sub-Commission, in 1976, various experts, when referring to the two studies in course of preparation,maintained that the right of peoples to self-determination possesses the character of jus cogens. In 1977, when this report was first discussed, the subject was dealt with at considerable length, and Messrs. Ortiz Martin, Caicedo Perdomo, Navarro Richardson, Dadiani, Cassese and Yussef and the representative of the Palestine Liberation Organization expressly affirmed the character of jus cogens of the principle of the self-determination of peoples.

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