Historical perspective of the right to self-determination

2. Historical perspective of the right to self-determination

The concept of self-determination originally developed throughout Europe and the United States in eighteenth and nineteenth centuries. In essence, self-determination is understood to occur whenever a people freely determine its own political status. In Western Europe and the United States the notion of the right drew its inspiration primarily from Enlightenment ideas of popular sovereignty and representative government. In Central and Western Europe, the notion of the right was based primarily on the nineteen-century phenomenon of nationalism. This meant that in Western Europe and the United States the concept had political orientations which generally did not take ethnicity into account, whereas in Central and Eastern Europe the concept was much more strongly linked to ethnic and cultural factors. 26

By the eighteenth century in the United Kingdom and France political and administrative power had become highly concentrated. This political cohesiveness had produced a sense of national identity which included all the

Ruppert, Mark. (2000). Ideologies of globalization, contending visions of a new world order. London: Routledge, p. 154-155.

21 Ibid. Bulajic M. General principles and the charter of economic rights and duties of states. In: Kamal Hossain. (Ed.). (1980). Legal aspects of the new international economic order. London: Frances Pinter, p. 45.

22 The New Economic Order cannot be separated to the “Bretton Woods System” 1944 that established three big international institutions, namely the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD- the

World Bank) and the General Agr eement on Tariff and Trade (GATT) and its successor The World Trade Organization (the WTO). See Jackson J H, et al. (2002). Legal problem of international economic relations, cases, materials, and text, Minn: West Group, ST. Paul, p. 199-200.

23 See, How strong the spirit to establish the NIEO in Moncarz R. (Ed.). (1995). International trade and the new economic order. Oxford: Pergamon, p. 1-2.

24 Kelly-Kate S. Pease. (2003). International organisations, perspective on governances in the twenty-first century. London: Pearson Education, p. 155. 25 26 Kelly-Kate S. Pease. Ibid, p. 156. Musgrave T D. (1997). Self-determination and national minorities. Oxford: Oxford University Press, p. 2.

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

inhabitants within the boundaries of the existing state. Political debate in the United Kingdom and France during the Eighteenth century focused largely on the issues of political sovereignty, liberty, constitutionalism and notions of a society of free citizens based on law. 27

According to Musgrave in the United Kingdom and France, the concept of the right has developed from the notions of popular sovereignty, individual liberty and representative government, because it was based upon these principles, self determination in a Western European context was democratic, ongoing, and universal in character, whereas in Central and Eastern Europe this was not the case, there was no correlation between state and ethnic

groups. 28

A relationship was thus established between the state as a political entity and the nation as a cultural one. 29

In this era the right constituted in all other respects an essentially political, rather than legal concept. In the post war period the status of self-determination changed dramatically. The principle of the right was included in a number of important instruments, including the Charter of the United Nations and the two international human rights Covenants 30 . However the exact parameters of the legal right of self-determination remain unclear. The post

war international instruments that invoke the right do not define that term in any detail. Musgrave said “Given the absence of precise guidelines in the international instrument, and also given the existence of widely differing theories of self determination in political contact, the practice of state has become an important means of

ascertaining the scope of the right at International Law.” 31 The right was born in the colonial era, then after most countries have obtained independence the right

developed to other entities from the right of minorities, indigenous people, and women. Onyango (1999) described that the notion of the right today have expand due to a number of factors, ‘First, it must consider the issue of class interest that is the ruling class and the ruled class. It has always existed primarily to serve the ruling class and undermines the autonomy and interest of the ruled. Second, States in modern times serve less to facilitate the

dynamic of self determination then they serve to impede it’ 32 The right should be seen from the classical concept from the building of statehood into modern

self-determination to political economic domination power. The shifted meaning is seen in order to revitalize the right as a concept, which can bridge the gap between sovereignty and globalization. The Phenomenon of Self Determination is still nebulous and indeterminate. The way to narrow the framework of political nexus and liberalization to the free movement of the people still has difficulties. The right will bring into the statehood sovereignty in classical terms. However, the right in current meaning are of people, indigenous people, minorities, ethnic and women within an independent state. Obviously, the right is facing a problem when many states are made independent, whereas, the people still demand the right.

The concept has been degraded since International Law has not developed the right into the current situation. The sense of the right in the world trading arena can be seen since the struggle for the New International Economic Order (NIEO) 1974, the collapse of Seattle Ministerial Conference 1999 and lately the collapse of the

28 Snsder L L. (1954). The Meaning of Nationalism. Wesport, Conn: Greenwood Press, p. 119. Musgrave T D. (1997). Op.Cit, p. 4-5. 29 Cobban A. (1969). The nation state and national self-determination. New York: Thomas Y. Crowell, p. 35. 30 International Covenant on Economic, Social and Cultural Rights (1976) and International Covenant on Civil and Political rights

32 Musgrave T D. (1997). Op.Cit, , p. 91. Oloka-Onyango J. (1999). Heretical reflections on the Right to self-determination: Prospect and problems for a democratic global future in the new millennium. American U. International Law Review, 15: 151. Korea: Oyango, p. 206.

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

Cancun Ministerial Conference 2003. Somehow, the right has been a nexus theory leading to justice in International Law. The short-term function of the right was how to obtain independence as statehood. However, in the long term the right has become the dynamic means to search for justice. This dynamic has not been adopted well within the International Law framework, so, the claim of the right to self-determination is to some extent vague in application.

The shifting meaning of the self-determination concept 33 from external self- determination to internal self –determination 34 and even sometimes regarded as the right to development have made the concept lose its

essential meaning, that is to free the people from many kinds of colonisation. The concept began with the formation of area by the League of Nations that is then continued by The United Nations in order to change the status of colonial countries to be independent and sovereign politically. The right has been acknowledged in the

35 Charter of the United Nations 36 and in several General Assembly Resolutions . In further developments, the right has become more concerned with the economic interests of states, there is

a General Assembly Resolution of 1962 on Permanent Sovereignty over natural resources that supports the right to self determination and declares in point (1) that: “The right of people and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the state concerned”.

The Charter of Economic Rights and Duties of States (United Nation Resolution 3281 (XXIX) ) also extended of the intention of reaffirming the sovereignty of states based on the right to self-determination and the NIEO, based on equity, sovereign equality, interdependence, common interest and cooperation among all states,

irrespective of their economic and social systems. 37 Like Chapter I (g) of the Charter of Economic Right and Duties of State said that :”Equal right and self-determination of people”.

Onyango considered that the perceptions, presumptions and prejudices regarding the right to self-determination are greatly influenced by traditional views 38 that are more concerned to the right of a group of

people. However he did not give any developmental view regarding the right. However, there are weaknesses of the third world in struggling for the NIEO as a source of International Law. Among them are: the division of the third world; the lack of economic and political power; the strong power of the first world in maintaining the Breton Wood System; the lack of idea transformations and theoretical problems; and the lack of international jurists from the third world. To conclude, four opinions regarding the NIEO as a source of International Law. First, the NIEO is a source of International Law. Second, the NIEO is merely a means of obtaining a just world order. Third, NIEL is the right to development. Fourth, the NIEO is merely an issue as

Cassese A. (1996). Self-determination of peoples, a legal reappraisal. Cambridge: Cambridge University Press, p. 64-65. 34 See Thurer. (1996). The right of self-determination of people, law and state, Vol. 35, Tubingen: Institute for Scientific

Co-operation, p. 1. 35 See Article.1 para. 2, Article 55 and 3 special Chapters regarding the concept of Self –Determination in the charter of the United

Nations. 36 See The General Assembly Resolution 1514 (XV) 1960 and 2625 (XXV) 1970.

38 Among presumptions are: the doctrine of self-determination originates in the context of Euro-American liberation and Preamble of The Charter of Economic Rights and Duties of States 1974. revolutionary struggles; question of gender and class are of no consequence to the exercise of the right, economic, social, and cultural

self-determination is less important than the political, self-determination which does not apply to non colonial people, the dominant forces fostering the post cold war upsurge in demands for self-determination and secession are ethnic or “primordial”, the right to self determination does not extend to secession and no right to self determination exists within the context of a democratic state and representative government. See Onyango, J Olaka. (1999). Heretical reflections on the right to self-determination: Prospects and problems for a democratic global future in the new millennium. AM. U. International Law Review. November, 1999, p. 157.

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

viewed by the developing countries. The NIEO is an attempt of the third world to enforce a new norm of the responsibility of the first world to the third world. In addition, law is a system of governing and gives a value to the actions of the person or people or the states or other legal entities between legal or illegal 39 . At least the NIEO

can be regarded as Lege De Ferenda. However, this notion relatively can be questioned due to the ambiguity of time and measurement used. 40

As things have turned out, the NIEO never became much more than a rallying cry for the South. This failure stemmed partially from the South’s lack of power in world politics, and partly because disparities within the South created divergent interests among the member States. Also it became apparent that many of the proposed commodity schemes were not simply a proposal for stable prices, but, here instead, high prices. As such, the financial costs of implementing these programs were way beyond anything the advanced countries were willing to fund.

The NIEO should not be viewed as a failure. The establishment of the right to development 41 that has been adopted in International Law is a partial success of a long term struggle. To give more pressure to establish the

NIEO, the right to self-determination with some modification, should be a worthy consideration for the future of international society.