HRC Side-event: The right to self-determination requirements and violations

“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.” 1

BADIL, in cooperation with the Association for the Families of Saharawi Prisoners and the Disappeared (AFAPREDESA), the France Libertés – Fondation Danielle Mitterrand and the Mouvement contre le racisme et pour l’amitié entre les peuples (MRAP) organized a side event to the 17th Human Rights Council session on the 7th of June 2011.

The event's focus/theme was reasserting the principle of the right to self-determination as being among the most fundamental manifestations of positive law enshrined in numerous legal instruments including in Article 1(2) and 55 of the UN Charter as well as the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic, and Cultural Rights. UN General Assembly resolution 2625, quoted above, confirms the preeminence of the principle of self-determination and its status in international law as a customary norm.

While established in the context of decolonization, subsequent General Assembly resolutions, human rights instruments and state practices have extended the application of self-determination beyond the colonial context. This includes internal self-determination among indigenous communities for collective autonomy or statehood, to peoples enduring a racist regime as was the case for South Africans under the apartheid regime, as well as to analogous cases like peoples under belligerent occupation who seek sovereignty.

According to Professor Marcelo Kohen, the principle of self-determination is the most revolutionary principle in International law. In his presentation, Prof Kohen raised three legal points: the legal character of this principle, identifying the holders of this right and finally outlining the content of the principle.

While addressing the rights and obligations, Professor Daniel Warner highlighted two matters: the relationship between civil and political rights and economic, social and cultural rights, and the relationship between rights and States’ obligations.

Rania Madi, BADIL's representative in Geneva, pointed out the failure to respect the right to self-determination of the Palestinian people who are denied the possibility to govern themselves; a violation taking place under a regime of colonialism and apartheid with a central policy of forced, population transfer. Today, the Palestinian right to self-determination is unequivocal as noted by the International Court of Justice in its 2004 Advisory Opinion on the legal consequences of Israel’s wall in the Occupied Palestinian Territory with the court finding that “Israel is bound to comply with its obligation to respect the right of the Palestinian people to self-determination and its obligations under international humanitarian law and international human rights law.2
[1]The United Nation General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970.
[2]BADIL Briefing Note prepared for the High Commissioner on Human Rights
January 2011.