The International Court of Justice (ICJ) in the Case Concerning East Timor (Portugal v. Australia), has recognised the right to self-determination as one of the essential principles of contemporary international law. This right has been recognised by many international and regional treaties, as well as some domestic jurisdictions.
The right to self-determination is expressly recognised in the International Covenant on Civil and Political Rights (ICCPR). The relevant provisions not only allow the right of self-determination, but also require states to positively promote it. Article 1 states:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. 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.
Article 1 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which mirrors the words in Article 1 of the ICCPR, also expressly recognises the right to self-determination.
The Human Rights Committee, in its General Comment on the Right to Self-determination in 1984, found that:
“The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights”
The United Nations Declaration on the Rights of Indigenous Peoples, relates specifically to the right of self-determination for Indigenous peoples. Article 3 declares:
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Finally, Article 1(2) of the Charter of the United Nations, states that one of the purposes of the United Nations is;
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace
This not only re-enforces the right, but also highlights the importance the right has in relation to international peace and security.
European Convention on Human Rights
The European Convention on Human Rights (ECHR) does not expressly recognise the right to self-determination, nor is there any mention of the right in its additional protocols.
American Convention on Human Rights
The American Convention on Human Rights, like the ECHR does not expressly contain a right to self-determination within the text of the Convention itself. However, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, contains within its preamble a reference to the right to self-determination:
“Bearing in mind that, although fundamental economic, social and cultural rights have been recognized in earlier international instruments of both world and regional scope, it is essential that those rights be reaffirmed, developed, perfected and protected in order to consolidate in America, on the basis of full respect for the rights of the individual, the democratic representative form of government as well as the right of its peoples to development, self-determination, and the free disposal of their wealth and natural resources…”
African Charter on Human and Peoples' Rights
The African Charter on Human and Peoples’ Rights expressly mandates that the right to self-determination be recognised and assisted by the state. Furthermore, the Charter also contains provisions directly relating to the self-determination of colonised peoples.
All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.
Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.
All peoples shall have the right to the assistance of the State Parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.
Arab Charter on Human Rights
The Arab Charter on Human Rights also expressly includes the right to self-determination.
All peoples have the right of self-determination and to control over their natural wealth and resources, and the right to freely choose their political system and to freely pursue their economic, social and cultural development.
In Australia there is no constitutional protection of the right to self-determination. However, the system of Government created by the Australian Constitution requires the exercise of such a right by the Australian people as a whole. This exercise of the right to self-determination can be seen through:
The freedom to participate in democratic elections
The protection and promotion of human rights
The ability to amend the Commonwealth Constitution
The existence of States and Territories, and provisions for their self-government.
Aside from the self-determination of the Australian people as a whole, the right also becomes relevant in relation to the self-determination of Australia’s Indigenous population. In the landmark case of Mabo (no 2) v Queensland, the High Court of Australia recognised Indigenous Australians as Australia’s first people; a fundamental aspect to their right of self-determination.
While there have been no Commonwealth or State statutory provisions expressly acknowledging the right to self-determination, the Aboriginal and Torres Strait Islander Act 2005 (Cth) in its objects refers to the promotion of ‘self-management and self-sufficiency’ and ‘economic, social, and cultural development’. This reflects in part Article 1 of the ICCPR and ICESCR and implicitly acknowledges the right to self-determination.
Section 3: Objects
The objects of this Act are, in recognition of the past dispossession and dispersal of the Aboriginal and Torres Strait Islander peoples and their present disadvantaged position in Australian society:
to ensure maximum participation of Aboriginal persons and Torres Strait Islanders in the formulation and implementation of government policies that affect them;
to promote the development of self-management and self-sufficiency among Aboriginal persons and Torres Strait Islanders;
to further the economic, social and cultural development of Aboriginal persons and Torres Strait Islanders; and
to ensure co-ordination in the formulation and implementation of policies affecting Aboriginal persons and Torres Strait Islanders by the Commonwealth, State, Territory and local governments, without detracting from the responsibilities of State, Territory and local governments to provide services to their Aboriginal and Torres Strait Islander residents.
Furthermore, in her statement on the United Nations Declaration on the Rights of Indigenous Peoples, Australia’s Minister for Families, Housing, Community Services and Indigenous Affairs stated that while the Declaration is not a binding instrument, it mirrors Australia’s already existing international obligations. In this speech the minister seems to imply that the right to self-determination (contained in Article 3 of the Declaration), should also be observed by Australian Law, particularly in relation to Indigenous peoples.
Despite statements such as these, Australia has in the past enacted laws which impede on the right of self-determination. For example, in 2007, the Howard government passed the Northern Territory National Emergency Response Bill 2007 (Cth), which amongst other measures allowed for the compulsory acquisition of land held under ‘Native Title’ and quarantining welfare benefits from those within the designated communities. The Act has since been repealed.
The right of self-determination is included both expressly and implicitly in the Constitution of the Republic of South Africa.
Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community
to enjoy their culture, practise their religion and use their language; and
to form, join and maintain cultural, religious and linguistic associations and other organs of civil society.
The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.