UNITED NATIONS • NATIONS UNIES INTEROFFICE MEMORANDUM TO: U Thant ~" c:r"~ · Date: 29 JUDe 1962 Acting Secretary-General 1' - '~ ~ F I LE NO.: ---------- THROUGH: FROM: C. A. Stavropoulos ;1 Legal Counsel () suBJECT: Self-determination 1. Some tim8 ago you requested me to investigate the question of self-determination in relation to Western New Guinea, and to prepare some observations thereon !'or Ambassador Bunker. I now attach two copies of a brief note on the question, together with an annex reviewing the history of self-determination at greater length, which I hope may be of some aasistance to you and to Ambassador Bunker. 2. Our study has revealed that the subject of self­ determination is a complex one, presenting ~ facets. HoweTer, at least since President Wilson enunciated the principle of self-determination in 1918, there appears to emerge a strong presumption in favour of self-determination in situations such as that of Western New Guinea on the basis of the wiahe• of the peoples of the territory concerned, irrespective of the legal stands or interests of other parties to the question. While other factors aay also be taken into account, there seems to be a growing practice of recognizing that the wishes of the local population should be paramount, and should thus be ascertained before a final disposition is made of an7 particular territory. • UNITED NATIONS NATIONS UNIES NOTE ON THE QU~STION OF SELF-Dh~ERMINKfiON IN ID~LATION TO WESTERN J.J"""Ev.J GUINEA Introduction 1. The proposals made by Ambassador Bunker for a settlement of the dispute between Indonesia and the Netherlends over Western New Guinea :provide that the territory will be given "the opportunity to exercise freedom of choice" and that there will be "adequate guarantees for safeguarding the interests, including the right of self-determination, of the Papuans." The Secretary-General of the United Nations and United Nations personnel are to assist and participate in the arrangements giving practical effect to this proposal. 2. The present paper contains some observations on self-determination which may be of interest in elaboratine upon the proposal mentioned in the previous paragraph. In this respect consideration is first given to the problem of self- determination in general, and questions which have arisen as to its nature, the extent of its application, and its relationship to the principles of domestic jurisdiction, sovereignty and ter:l'itorial equality. Secondly, a summary is given of United Nations participation in the implementation of self-determination by way of plebiscite or election, and mention is made of issues arising in this connexion, such as the nature of the questions to be l'ut to a population and the proper authorities to f ormulate such questions. In the third place, the paper sets out some observations on the application of self-determination in relation to Western New Guinea and the par ticular problems presented t hereby. The paper has thus been arranged under the following headings: I. Self-determination in e;eneral - 2- A. Origin of the principle or right of' self-determination B. Self-determination as a legal right or politic&l principle C. Extent of the application of self-determination II. United Nations participation in the exercise of self-determination A. Procedures employed by the United nations B. li'ormulation of the questions to be put to the population III. Self-determination in Western New Guinea A. The problems involved B. Conclusions regarding :procedures for the implementation of self-determination 3. Parts I and II of this :paper are in summary form and have been prepared on the basis of a more extensive historical review of self-determination and of United Nations practice in this regard. This more extensive review is contained, for purposes of reference, in annex A to the present :paper. I. Self-deter.!!1nation in general A. Origin of the principle or right of self-determination 4. The role of self-detennination of peoples, specifically enunciated in Articles 1(2) and 55 of the Charter of the United Nations, has become an increasingly important factor in international affairs in recent years. Its pre-World lar I history is primarily only of academic interest in the present context. It suffices to note that as a r olitical doctrine it had its origin in the French lievolution and the :principles of popular sovereignty on which it was based. in connexion with the cession or annexation of a number of territories immediately following the French Revolution and again in mid-nineteenth century Europe. - 3- 5. In its modern develop ants the principle of self-determination is normally attributed to President 'iloodrow Wilson who in his ''Four Principles" speech in elaboration of his Fourteen Points used the term "self-determination" and declared that well-defined national aspirations should be accorded the utntost satisfaction consistent with the peace of rope.J/ The principle of self-dete~ination played an i mportant, but not in all cases a decisive, role in the preparation of the Peace Treaties which followed World War I and the andates system of the League of Nations implicitly extended the principle for the first time to colonial territories. 6. It was, however, in the United Nations Charter that "respect for the principles of equal rights and self-determination of peoples" is first proclaimed in a binding instrument of nearly universal application. B. Self-determination as a legal right _gr political principle 7. By reason of its origins, it is clear tl~t self-determination was initially conceived of as a political principle rather t han a legal right. lr'hether it has in modern times become a "right", rather than a "principle", has been discussed in the General Assembly. It has been referred to as a "right" in many Assembly resolutions. )j Point 5 of President Wilson's Fourteen Points reads as follows: "A free, open­ minded and absolutely impartial adjustment of all colonial claims based upon a strict observance of the principle that in detennining all such gue stions of sovereiBnty the interests of the uopulatjons conce~ed must have equal weight with the ecuitable c~aims of_j;p~ yovernment whose title is to be detei"I!lined ." President Wilson elaborated upon this !JOint in several subsec1uent speeches. In his ''Four Principles" speech of ll February 1918, he stated, as one such principle, "that all well-defined national aspirations shall be accorded the utmost satisfaction that can be accorded them without introducing ne or per­ ~tuating ol~ elements of discord or antagonism that would be likely in time to break the peace of Europe and conseauently of the World". Similarly in his ''Four Ends" speech of 4 July 1918, President Wilson laid down, as one such end, "the settlement of every question, v1hether of territory or sovereignty, of economic arrangement, or of political relationship, upon the basis of the free acc~ta~ce of that set~lem~nt by the people i mmediately concerned, ~~ not upon the as~s of the mater~al ~nterest or advantage of any other nation or people which may desire a different settlement for the sake of its own or exterior influence or mastery." (Underlining added) - 4- Also in t he context of a discussion of human r i llt s in t he Third Committee of the • General Assembly a majority e r essly rejected the idea that it was only a pr inci ple. The declaration on the granting of indep endence to colonial countries and peoples (resolution 1514(XV) of 14 December 1960): "Declares that ••• all peo:ples have t he right to self-determination; by virtue of that richt t hey freely determine their political status and freely pursue their economic, social and cultural devel pment ." 8. On the other hand the General Assembly, at least until recently, has hesitated to invoke self-determination as a right in most of t he ~)ecific oases t hat have come before it, althoutsh it has encouraged negotiations eventu lly leading to a sol ution based on self-determination. In some cases, notably Palestine, other factors have been given ereater weight. 9· In assessing the nature of sel f-determination it must be noted that this is a f i eld in v;hich ereat and r apid developments are still in progress, and conclusions at t his time based on positive international law mie;ht be premature. It is undoubtedly a fact t hat through most of' its history self-determination has been a political principle rather than a legal right. Nevertheless, its importance as a political principle has developed so quickly and so strone;ly that it may be cogently argued that it is at least on the threshold of positive international l aw as a l egal right. C. Extent of the application of self-determination 10. The question of the extent of' the application of self-determination has arisen in connexion with three different situations. In the f'irst place in the late 18th and mid-19th centuries pl ebisci tes were used extensi vely to consult the populations in areas being transferred from one State to another. In fact on the - 5 - evidence presented by Sarah Wambaueh in her 'r1[ono apll on Plebiscites" it might be considered that rior to the outbreak of the It'ra.nco-Gennan War in 1870 self-determination in t h e context of cession and annexation was well on t he way to becoming a rinoiple of int ernational law. However, this trend was then decisively reversed and in spite of resort to it ~ain after orld War I it would be diff'icult to conclude that a principle of positive international law requires its application in such situations.