Right To Self Determination Analysis

CAN CATALONIA SECEDE FROM SPAIN? AN ANALYSIS ON THE LAW OF SELF DETERMINATION IN THE MODERN WORLD

Adithya Rajeev

(I) INTRODUCTION

You don’t get to choose if you get hurt in this world … but you do have some say in who hurts you. I like my choices

- John Green

Right to self determination under International law guarantees to the people the right to determine their political status and pursue their economic, social and cultural development. The concept of self determination was primarily established in the modern world by the United Nations. The Charter of the United Nations identified that that the organization was “…based on respect for the principles of equal rights and self determination of peoples.” The right was subsequently adopted

The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.”

The principle of self determination has been acknowledged as one of the essential principles of contemporary international law. In the Case Concerning East Timor , the International Court of Justice [hereinafter ICJ] affirmed that self determination is a principle in International Law of erga omnes character:

In the Court’s view... the assertion that the right of peoples to self determination as it evolved from the Charter and from the United Nations practice, has an erga omnes character, is irreproachable. The principle of self determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court <...>; it is one of the essential principles of contemporary international law.

The position was reiterated by the ICJ in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory

The Judgment of the Supreme Court of Canada in the reference re Secession of Quebec case indicates that the schedule of any such acts without the authorization of the parent state is illegal. The Court observed that:

“It is clear that international law does not specifically grant a component part of sovereign states the legal right to secede unilaterally from their parent state.”

Reference can also be placed on the Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question. The committee concluded that:

“Positive International law does not recognize the right of national groups, as such, to separate themselves from the state of which they form part by the simple expression of a wish, any more than it recognizes the right of other states to claim such a separation. Generally speaking, the grant or refusal of the right to a portion of its population of determining its own political fate by plebiscite or by some other method is exclusively, an attribute of sovereignty of every state which is definitely