Self-determination and Access to Independence under Current International Law: From Language to Concept

Abstract

This article examines the legal concepts and principles describing and regulating the means of accessing independence under current general international law. It argues that there is a gap between a legal language widely used by scholars today and the original state consensus behind the essential international principle of self-determination of peoples as it relates to the protection of territorial integrity and secession of territories. As a result, academic legal language is erasing the concept of the right to restore territorial integrity, i.e. to restore sovereignty (attributed to colonial and occupied peoples). This is due to the assumption that the international right to external self-determination of peoples is a right to unilateral secession in some circumstances as an exception to territorial integrity. Academic legal language is likewise erasing the concept of the right to freely determine without discrimination (against minorities or majorities) the status of one’s own territory (a right attributed to a state’s whole population), which the same international norm protects through a tacit limitation on secession. In this case, the erasure is due to the widespread assumption that general international law is neutral with regard to secession.