Self-determination in International Law: A Democratic Phenomenon or an Abuse of Right?

Abstract

In recent years, the right to self-determination has been prone to abuse because of the uncertainties as to its proper operation outside the decolonisation context. This article revisits the content and role of self-determination in light of the recent assertions of this right, with particular reference to Kosovo and Crimea. It examines different facets of this right, and whether it holds an intrinsic link to a democratic form of government. The right to self-determination encompasses the right of a people to choose freely their own political system and to pursue their own economic, social, and cultural development. However, states have no duty in positive international law to introduce or maintain a democratic form of government as a requirement for the realisation of the right to self-determination. Moreover, democracy, construed narrowly as the majority rule of an electoral process, is not a guarantee of the realisation of the right to self-determination. This article will test the extent to which democracy and the development of human rights law have impacted upon the content, limitations and exercise of the right to self-determination.

Complicity in Violations of Human Rights and Humanitarian Law by Incumbent Governments Through Direct Military Assistance on Request

“…85 For example, it is not clear whether the specificity requirement would be satisfied if the intervening State merely knows that its military assistance will lead to reprisals against civilians by the territorial State or, in the alternative, whether the intervening State also has to have knowledge of the particular (group of) individuals that will be targeted-and whether it even has be familiar with the modalities of the execution. 86 Also, the assisting State must have advance knowledge of the likely consequences of its assistance. 87 Where an intervening State had actual prior knowledge of the fact that the territorial State intended to use the military assistance for acts such as wilful killing of or reprisals against (a specific group of) civilians, the knowledge requirement in Article 16 ASR will clearly have been fulfilled.…”

“…95 Commentators nonetheless support the view that the knowledge requirement would be met by virtual certainty that a particular wrongful conduct will occur in the ordinary course of events. 96 For example, long-standing prior cooperation between the assisting and recipient States can have an impact on the knowledge of the assisting State of any wrongful intentions of the recipient State, 97 as does geographical proximity. 98 In addition, the knowledge may be assessed in light of public statements, diplomatic exchanges, official policies of the relevant organs of the recipient State, as well as its general patterns of conduct.…”

“…98 In addition, the knowledge may be assessed in light of public statements, diplomatic exchanges, official policies of the relevant organs of the recipient State, as well as its general patterns of conduct. 99 Information about a State's record regarding human rights and humanitarian law may also be available in the public domain via media reports and the investigations of international organizations and non-governmental organizations (NGOs). 100 If credible and readily-available reports of fact-finding commissions, independent monitors or international organizations such as the UN draw attention to systematic violations of international humanitarian or human rights law by the recipient States, actual knowledge on the part of the assisting State can be assumed.…”

“…In addition to the knowledge requirement, Article 16 ASR also requires wrongful intent on the part of the assisting State. 117 Although the text of Article 16(a) does not refer to intent, the ILC Commentary claims that a State is not responsible for aid or assistance under Article 16, unless the relevant State organ intended to facilitate the occurrence of the wrongful conduct. 118 The ILC Commentary thus clearly supports an element of intent in order to trigger Article 16 ASR, 119 even though the general approach of the ASR is opposed to requiring fault or wrongful intent as a criterion for engaging State responsibility.…”

“…122 This argument is based on the ICJ's interpretation of complicity in accordance with Article III(e) of the Genocide Convention, 123 combined with the assumption that this reasoning is equally applicable to the notion of complicity in Article 16 ASR. 124 According to the ICJ, conduct can only be treated as aid or assistance to genocide if the person or organ, at the very least, had acted knowingly in the sense that it had to be aware of the specific intent of the principal wrongdoer. 125 The ICJ found a lack of intent on the part of Serbia, because of the fact that the resources in possession of the principal perpetrators of genocide resulted from a general policy of aid or assistance which was not specifically addressed towards facilitating the crime of genocide.…”