Vidmar, J. (2010) ‘The Right of Self-Determination and Multiparty Democracy: Two Sides of the Same Coin?’

Vidmar, J. (2010) ‘The Right of Self-Determination and Multiparty Democracy: Two Sides of the Same Coin?’, Human Rights Law Review 10 (2), 239-68.

1. Exploration of relationship between right of self-determination (‘SD’) and multiparty democratic political systems (‘MDPP’).
2. In contemporary International Law (‘IL’), SD is not an absolute legal principle, but a human right subject to several limitations.
3. MDPP is neither necessary nor sufficient condition for SD.
4. Representative government principle underlies both democracy (‘D’) and SD. D & SD are associated in western European and American traditions; in eastern Europe it is rooted in 19^th century nationalism.
5. SD therefore refers both to a state’s internal political organisation (‘ISD’) and to external creation of new states (‘ESD’).
6. Woodrow Wilson combined ISD and ESD in his 8. January 1918 ’14 Points’ speech, which made them seemingly contradictory and difficult to implement in practice.
7. Until 1945, SD remained a political principle. With the UN Charter, it became a human right subject to limitations – first and foremost, to the principle of territorial integrity of States (‘TIS’).
8. Therefore, in no-colonial situations, SD is consummated as ISD. Because of the requirement of representative democracy, SD became linked again to an emergent ‘right to democracy’.
9. Right to participation and SD are interdependent but this does not necessarily imply an obligation to implement MDPPs.
10. In IL, even governments that do not come to power through multiparty electoral contests can be seen as representative of their peoples.
11. MDPPs do not automatically lead to the right of SD.

SD: Development, Democratic Pedigree, Limitations

1. Both Wilson and Lenin were advocates of SD from ideologically opposite perspectives.
2. For Lenin, SD was linked to secession as a path to socialist revolution.
3. Wilson’s support for SD was based on the liberal principle of self-government: it was the logical corollary of popular sovereignty and consent of the governed. SD was thus a synonym for a democratic political system (244).
4. In his 14 Points speech, Wilson stipulated SD as the criterion for Europe’s new states, along ethnic lines, and as resulting in the right of each nation to its own State.
5. ISD and ESD could not be easily reconciled because it implied SD must be a continuous process synonymous with democratic forms of government.
6. For Wilson SD was an absolute political principle; yet post-WWI events showed it had to be reconciled with the TIS principle.
7. SD remained a political principle until it was codified as a human right by the 1966 ICCPR, Art. 1 and the ICSECR and declared to be accepted as part of customary international law.
8. It remains subjects to same limitations as other human rights, including especially TIS.
9. Only colonial SD was recognised as legitimately leading to independence and statehood.
10. ‘Safeguard clause’ of the 1970 Declaration on Principles of International Law (‘DPIL’) defines TIS and can be read both as a shift from ESD to ISD, and as including an external dimension: a state without government representing all its citizens may be denied right to assert TIS principle – which would legitimize ESD claims from its national groups (confirmed in the SCC’s Quebec case): confirmation of remedial secession doctrine.
11. SD is linked here with both democracy and human rights.
12. However, SD “does not have an exclusive democratic pedigree” (247). Some interpret the ‘safeguard clause’ as requiring MDPPs.

SD, Governmental Representativeness and Multiparty Democracy

1. The ‘safeguard clause’ requires a representative government. That does not mean it demands democratic governments, and even less MDPPs.
2. The ICJ held in the 1972 East Pakistan case that in defining ‘peoples’ for the purpose of SD, one must keep in mind that “a people begin to exist only when it becomes conscious of its own identity and asserts its will to exist” (249), and therefore that SD is a political phenomenon and the exercise of the SD right is a political act.
3. UNESCO sets following criteria (250), which do not include affiliation to political parties:
   1. Common historical tradition;
   2. Racial or ethnic identity;
   3. Cultural homogeneity;
   4. Linguistic unity;
   5. Religious or ideological affinity;
   6. Territorial connection;
   7. Common economic life.
4. In practice, Southern Rhodesia’s 1965 unilateral declaration of independence was not recognised by the UN because its government did not represent all its people and declared it an “illegal regime” in its 1970 Resolution 227 because of its racial animus.
5. However, the democratic principles referred to here related to popular support for change of legal status of a territory, not to MDPPs.
6. The South African bantoustans granted quasi-independence by South Africa between 1976 and 1981 were also not recognised by the UN and constituted a violation of SD right of South African people grounded in racism and apartheid. Security Council Resolution 417 also asserted that South Africa’s entire apartheid system was racist and violated the SD right of its people; it did not focus on lack of MDPP.
7. Collective practice of UN organs shows that even governments that do not emerge via MDPPs may be considered legitimate and representative of their peoples.
8. When the DPIL was adopted in 1970, it was clear that political representativeness did not demand exclusively MDPPs.
9. Security Council resolution never denied states legitimacy on democratic grounds because of non-elected governments; therefore, “governmental legitimacy in international law is not linked to a democratic political process”.
10. IL does not prescribe how ISD should be implemented by states with their territories and accepts it can take various forms.

The Right of SD, Political Participation and the Choice of a Political System

1. Interdependence between SD right and Political participation right also does not result in a requirement of MDPP; nor do actually existing MDPPs lead to an automatic realization of the right of SD.
2. Some authors and politicians claim that SD right requires adherence to ”some democratic standards” based on Art. 25 ICCPR elaborating right to political participation.
3. General Comment 25 of the UN Human Rights Committee interpret right to political participation more narrowly, as not requiring a particular form of government. This was affirmed by the ICJ’s Nicaragua case. GA Resolutions 45.150 and 45/151 confirm this.
4. “International law does not require a specific political system and does not bind non-democratic states to democratization” (263).
5. “The right to self-determination cannot be consummated through the existence of a democratic, multiparty, electoral system alone”, and in absence of adequate mechanisms for the protection of numerically inferior peoples, may even lead to its violation (266).
6. “In international law as it currently stands, a multiparty democracy is neither a necessary nor sufficient condition for the realisation of the right to self-determination” (268).