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The Norm of Self-Determination, 1941-1991 the NORM of SELF-DETERMINATION, 1941-1991

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The Norm of Self-Determination, 1941-1991 the NORM of SELF-DETERMINATION, 1941-1991 Laing: The Norm of Self-Determination, 1941-1991 THE NORM OF SELF-DETERMINATION, 1941-1991 EDWARD A. LAING* ABSTRACT Based on historical research in the U.S. archives, the article demonstrates that the normative principle of self-determination passed into customary international law through the August 1941 Atlantic Charter, which (1) is currently listed by the U.S. as an extant treaty, and as an appendix to the January 1942 Declaration by the United Nations, (2) was frequently stated in wartime diplomatic exchanges and public pronouncements as the basis for allied commitments and conduct, (3) was relied on by leaders, populists and dependent peoples worldwide, (4) was the basis for planning for today's global order (including the U.N. systems for non-self- governing and trust territories), (5) was regarded as normative by several contemporary scholars, and (6) has been formally invoked, e.g., in relation to the 1954 Pacific Charter. The Atlantic Charter's valued principle of "humanitarian universalism" is immanent in its function as a norm benefitting colonial and other peoples forcibly deprived of their human rights or sovereignty. The backdrop is the literature on the post-1945 origins of the U.N. and general "right" of self determination. I. INTRODUCTION There is an apparent doctrinal consensus that the'right of self-determina- tion of people and nations is recognized by international law. The consensus gradually emerged since signature of the U.N. Charter in 1945. By the mid- 1980s the consensus was firmly established although no notable writer is known to have identified any particular date when the right emerged. As Hannum recently put it, "it would seem difficult to question its status as a right in international law." 1 Nevertheless, a number of questions remain unsettled. The first relates to the juridical nature and origins of the right or norm, such as its formal source, the date of its origination, technical * M.A., LL.B. (Cambridge), LL.M. (Columbia); Visiting Professor, New York Law School; Member of the English and Illinois Bars. Formerly Ambassador of Belize to the U.S.A and the Organization of American States, High Commissioner of Belize to Canada and Special Counsel to the Ministry of Foreign Affairs, Belize. I wish to thank Lorraine Farahmard, Kazi Hamid, Ulpian Martin, Peter Ubgong and others who assisted me at various stages in the preparation of this article, and associated research on the Atlantic Charter. I would also wish to thank New York Law School for a summer research grant to conduct this research. 1. HURST HANNUM, AUTONOMY, SOVEREIGNTY AND SELF-DETERMINATION-THE ACCOMMODATION OF CONFLICTING RIGHTS 45 (1990). See also IAN BROWNUE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 595-98 (4th ed. 1990). 209 Published by CWSL Scholarly Commons, 1992 1 210 CaliforniaCALIFORNIA Western WESTERN International INTERNATIONAL Law Journal, Vol.LAW 22, JOURNAL No. 2 [1992], Art.[Vol. 3 22 structural issues, and its historical provenance. Second, is the fundamental question of the value basis of the norm-whether, for instance, it is based on concerns about global peace and security or human rights. Third, there are questions relating to the norm's scope, including whether it is restricted to the types and cases of colonial territories existing in 1945, whether it embraces a generic right of secession and whether it is peremptory and non- derogable. After a broad survey of doctrine, this article takes the position that these questions have been answered in the Atlantic Charter of August 1941. Based on materials in the U.S. archives, this article examines the motivations for the Charter; its contributions to the present world order, a neglected subject; and the instrument's juridical status. Although the Atlantic Charter is partly discussed in a conventional frame, this article is, in part, an essay on customary international law, focusing mainly on evidence of practice and the opiniojuris of the world's leading power. II. UNITED NATIONS CHARTER PROVISIONS AND UNITED NATIONS ACTIONS ON SELF-DETERMINATION A. Sources and Evidences of the Law of Self-Determination Part III surveys doctrine since 1945, the year of the conclusion of the U.N. Charter. The doctrine has included very limited original research on international conventions and actual general state practice, the two sources of international law acknowledged by Article 38 of the Statute of the International Court of Justice.2 The doctrine has been mainly concerned with practice related to the United Nations and its Charter. This has largely focused on analysis of state practice within the organization, especially voting behavior, and/or organizational activity. This activity has been treated as: a species of state practice; a hermeneutical play-house, where much has turned on the application to a widely-subscribed-to international convention of a bewildering variety of interpretative techniques; and what might be called autochthonous international organizational law.3 Because the doctrine is directed toward the United Nations, this Part provides an introduction to U.N. Charter provisions and actions on self- determination. The time frame covered commences in 1945. Where possible, I have arranged the presentation in broad chronological bands, noting that, in some cases, one can discern changes in a writer's viewpoint, e.g. where he or she 2. Statute of the International Court of Justice, June 26, 1945, entered into force, Oct. 24, 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153. 3. This concept bears a direct relationship to the growing body of "U.N. law" inter alia epitomized by and largely stemming from such seminal ICJ decisions as Certain expenses of the United Nations (Advisory Opinion), I.C.J. Rep. (1962); Reparation for Injuries Suffered in Service of United Nations (Advisory Opinion), I.C.J. Rep. (1949). https://scholarlycommons.law.cwsl.edu/cwilj/vol22/iss2/3 2 1992] Laing:THE NORMThe Norm OF ofSELF-DETERMINATION, Self-Determination, 1941-1991 1941-1991 is the author of several editions of a treatise. Naturally, when a writer appears to have written only once on a subject, his or her views tend to get frozen in the subsequent literature, one of the reasons why doctrine is often such an unreliable evidence of the law. As Judge Amoun noted in his separate opinion in the 1971 Namibia case,4 the work of a brilliant honors- list of past writers compels respect, but such writers "except for a few great minds, [cannot] be thought to have had such a vision of the future that they should always see beyond their own times."' Although the doctrine is voluminous and I can provide only a representa- tive sample, one might recall Judge Petrdn's separate opinion in the 1974 Western Sahara case," and note that, in relation to decolonization, the wide variety of geographical and other data which must be taken into account.., have not yet allowed the establishment of a sufficient developed body of rules and practices to cover all the situations which may give rise to problems. In other words, although its guiding principles have emerged, that law. .. does not yet constitute a complete body of doctrine and practice...' B. The U.N. and Self-Determination 1. U.N. Charter provisions Most of the doctrine surveyed is related to the U.N. Charter provisions on self-determination, particularly in the sub-field of decolonization. Article 1(2) states that among the purposes of the United Nations is the development of friendly relations among nations "based on respect for the principle of equal rights and self-determination of peoples, and the taking of other appropriate measures to strengthen universal peace."' Article 55 requires the organization to promote certain social and economic goals: solutions for international economic, social, health and related problems; "international cultural and educational cooperation," and "universal respect for, and observance of, human rights and fundamental freedoms for all..." Article 55 provides that its prescriptions are "[w]ith a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal 4. Legal consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding U.N. Security Council Resolution 276 (1970), (Advisory Opinion) [hereinafter Namibia], Sep. Op. by Judge Amoun, I.C.J. Rep. 75 (1971). 5. Id.at 75. 6. Western Sahara (Advisory Opinion), I.C.J. Rep. 14 (1975). 7. Western Sahara (Advisory Opinion), Sep. Op. by Judge Petr~n, I.C.J. Rep. 14 (1975). 8. Charter of the United Nations, June 26, 1945, entered into force, October 24, 1945, 59 Stat. 1031, T.S. No. 973, 3 Bevans 1153 [hereinafter U.N. CHARTER]. Published by CWSL Scholarly Commons, 1992 3 212 CaliforniaCALIFORNIA Western WESTERN International INTERNATIONAL Law Journal, Vol.LAW 22, JOURNAL No. 2 [1992], Art.[Vol. 3 22 rights and self-determination of peoples..."I Chapter XI of the U.N. Charter is a Declaration Regarding Non-Self- Governing Territories, the heart of which is Article 73, whereby U.N. members administrating territories whose peoples have not yet attained a full measure of self-government [1] recognize the principle that the interests of inhabitants of those territories are paramount, and [2] accept as a sacred trust the obligation to promote to the utmost. the well- being of these territories .. [To that end, such members under- take several specific obligations,] (a) self-government, to take due account of the political aspirations of the peoples, to assist them in the progressive development of their free political institutions according to the particular circumstances of each territory and its peoples and their varying stages of advancement . ..; (b) to further international peace and security; [and]..
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