New perspective of the right to self-determination

4. New perspective of the right to self-determination

The right is an essential and fundamental right of persons or people who have maturity in thought. From the basis of “freedom” the people have been given authority to choose their own way of life politically or

Article XVIII GATT: “The contracting parties recognize that the attainment of the objectives of this agreement will be facilitated by the progressive development of their economies, particularly of those contracting parties the economies of which can only support low standards of living and are in the early stages of development”. 111 Article XIX GATT: “If, as a result of unforeseen developments and of the effect of the obligations incurred by a contracting party under this agreement, including tariff concessions, any product is being imported into the territory of that contracting party in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers in that territory of like or directly competitive products, the contracting party shall be free, in respect of such product, and to the extent and for such time as may be necessary to prevent or remedy such injury, to suspend the obligation in whole or in a part or to withdraw or modify the concession”. 112

Yong Shik Lee, Ibid, p. 5.

Towards a new paradigm of the right to self-determination in the world trading system

economically. However, not all people can use the right properly since there are different levels of understanding of life. Furthermore, in international level the right was regarded as political right in order to form relationships with others. Since the state has become a single entity in international legal relation, many groups of people , who have been considered to possess the capabilities tend to be an independent state rather than a group of people. However there is a limited capability of a group of people to be a state, in particular when a group of people exist in independent states.

“State” as representative of general will of people should be a powerful means for their people to acquire welfare from poverty and backwardness. The collective of state or a group of states have the right to vote on behalf of their peoples interests in the world system. Self-determination concept implicitly implemented by the developing countries and least developed countries can be seen from the struggle for the NIEO because of the unbalancing power of states in the world economy, as well as the collapse of Seattle and Cancun Ministerial Conference.

The suffering of poor countries and poor people in global trade competition can not be resolved solely by the right to development, however, the empowerment should based on the right to self determination instead that can elaborate the self-potentiality of different groups of people or states. For instance, it might be the right to self-determination of Muslim countries if they feel oppressed by other countries.

New perspective on the right to self-determination demand us to think more about the right of people to get more just and more prosperous in their life, in particular in the world trading system. Therefore, the right to self-determination of state will always be a pillar and a nexus of international relations. When the sovereignty fails to face the problem of people, the right to self-determination re-emerge automatically.

According to the real situation in the world trading system that many countries have already established through the right to self-determination and have sovereignty territorially and physically. However, it has not improved the human condition in reaching their dignity and welfare. Therefore, the state as a legal representative of the people is struggling to find a meaning for sovereignty. The legal framework for International Law does not have the support of

the state to use the right to self-determination in order to attain economic prosperity and welfare 113 . The right is admitted in two of the International Covenants of Human Rights Para. 1 that mention, “ All people

have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. “People” in current development is ambiguous to be defined and cannot take place in international trade arena. So, people need a means, which is the state, to bring their interests to bear on the international trade system. So the right of self-determination of people have shifted to the right to self-determination of the state. Otherwise, the right to self-determination of people cannot work anymore. The theory mentions that “What can bring fulfilment to the right people should be regarded as a right as well”.

The use of “people” can be understood, as the basic role of the state is to make people prosper. So the people exist in the centre between the state and the world trade system. Therefore the states have an obligation to promote the rights of their people in the world trade arena. The right of the people is the right of the state as well.

The absence of the wording “state” due to the time of the establishment of that article was when the state was still at a formative stage. However, state and people have developed since then. Meantime, nowadays, the

It can be seen that many government regulations, such as for safety products, safety and environmental standards which tend to exclude foreign competition, giving preferential treatment to certain industries. Trade in services; financial, commercial and technological services such as Banking, Insurance Companies are extensively regulated by states. However, according to free-trade advocates, the protection of agricultural industries and services has made them inefficient and uncompetitive. Kelly-Kate S. Pease. (2003). International organisations, perspectives on governance in the twenty-first century, Pearson Education, London, p. 158-159.

Towards a new paradigm of the right to self-determination in the world trading system

situation is the other way around, the state has taken the role of people in relation to other trading partners, even thought there are private parties in the world trading system, but they cannot leave the role of the state.

The dominance of the developing countries in the WTO provides a new scenario for the WTO structure. 114 In addition, the right to self determination can be seen since the accession of developing countries in the WTO,

and then pursue them to use development programs even though trade/WTO are not related to the development agenda. Grimmade gives two reasons for including the development agenda into the WTO. First, it is not always possible to apply the same set of rules for countries at different stages of economic development without doing serious damage to the attempts of poor countries to catch up with rich ones. Second, trade policy is an important

instrument of economic policy that can help or hinder economic development, depending on how it is used. 115 Article XVIII of the GATT did recognize that Least Developed Countries might need to take protective

measures in order to implement programmes and policies of economic development. In 1964, the United Nations Conference on trade and development (UNCTAD) was established and rapidly became the main voice of less developed countries calling for reform to the international trading system. 116

The right to self-determination of the state has been banned by treaties, multilateral treaties and negotiations. UNCTAD called for the introduction by the developed countries of non-reciprocal tariff preference for produc ts exported by the less developed countries a waiver under Article XXV of the GATT. Enabling Clause is not going as hoped due to tariff preference are not legally binding, unlike MFN tariff cuts, because the developed countries having entered into them freely. However in 1980, the decision to amend GATT rules to allow the granting of tariff preferences for exports of developing countries was an important step in recognizing the special needs of the developing countries, but the developed countries also use safeguard clause of the GATT, Article XIX to impose selective controls on imports from developing countries. So safeguard measures have a contradictory role with the preferential treatment to developing countries. In this case the right to self-determination does not have an absolute meaning.

The Intellectual Property Rights case is obviously a critical issue for self determination of the state. The inability of developing states to create inventions that can be regarded as property rights has been used by the developed states to maintain their property rights in the developing state. Bronckers states that the WTO needs

better rules for the new millennium 117 The failure of the developed countries to implement the Uruguay Round, agreements on agriculture, the

Sanitary and Phito-Sanitary (SPS) agreement, the agreement on textiles, clothing, anti dumping and the subsidized and countervailing measures will be a factor in the emergence the right to self determination 118 . Furthermore, the

failure of the “right of development” from developed country policy in promoting justice and welfare for the people should be answered by giving the weak states the right to develop themselves.

Self-determination was basically established to fulfil the sovereignty of the state, so state sovereignty becomes the end of self determination. However, this is not a good argument as has been shown. First, after establishing an independent state, the right to self determination remains used by ethnic groups and minorities in an independent state. It signifies that an independent state has not guaranteed that the right to self determination has been fulfilled. Second, while territorially the state has been independent, economically, particularly in trading

Homi Katrak and Roger Strange. (Eds.). (2004). The WTO and developing countries, Palgrave, Macmillan, p. 5. 115 Grimwade, N. The GATT, the Doha Round and developing countries. In: Homi Katrak and Roger Starnge. (Eds.). (2004). Ibid, p. 12.

117 Grimwade, N. Ibid, p. 4. Marco C E J Bronckers. (2000). A cross-section of WTO law. Cameron May, p. 278, 299. 118 Homi Katrak and Roger Strange. (2004). Op.Cit, p. 26.

Towards a new paradigm of the right to self-determination in the world trading system

systems, the state has become interdependent. Furthermore, there has emerged an economic power that has eroded the sovereignty of state. Hence the weak states are not able to protect or to pursue their economic independence. So, it is no wonder that the right to self-determination of the state re-emerges.