By Otto Spijkers

Is the right to self-determination of peoples applicable to the present revolution – or civil war – in Libya? Can one claim that a State with a dictatorial regime is violating the right to self-determination of its own population?

The most authoritative definition of the right to self-determination does not answer any of these questions. It simply states the following:

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.

In his Self-determination of peoples: a legal reappraisal, Cassese pointed out that the word ‘peoples,’ as used in Article 1 of the human rights covenants (cited above), also applied to ‘entire populations living in independent and sovereign States.’ Although the right to self-determination of an entire population of a State is perhaps the most interesting application of the right to self-determination from a philosophical point of view, it initially did not get much attention, since the political urgency was lacking. Whenever the meaning of the word ‘people’ was discussed, the dominant question was always whether it referred solely to colonial peoples, or whether it applied also to minority groups within a State. Other applications, such as the application to the entire population of a State, were not discussed extensively.

An exception to this general rule is the Friendly Relations Declaration, adopted in 1970. In that Declaration, there is one notorious paragraph about the right to self-determination of the entire population of a State. This stated, at the end of an entire paragraph on the self-determination of peoples, that

nothing in the foregoing paragraphs [should] be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.

This clause has been reiterated in some of the most important declarations, in particular the Vienna Declaration and Programme of Action (1993), and the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations (1995). In both these two documents, the phrase ‘without distinction as to race, creed or color’ was replaced by ‘without distinction of any kind,’ to emphasize that the list of prohibited distinctions in the Friendly Relations Declaration was not exhaustive.

Although it reads like a savings clause, the clause just quoted is in reality much more than that. It describes what is the essence of the right to self-determination as applied to the entire population of a State. In the view of Rosenstock, who played a principal part in the drafting of the clause, ‘a close examination of its text [would] reward the reader with an affirmation of the applicability of the principle [of self-determination] to peoples within existing states and the necessity for governments to represent the governed.’

The clause suggests that respect for the right to self-determination of the entire population of a State requires that the entire population is represented somehow by its own State’s government. Many scholars have later defined this as the essence of the right. According to Higgins, the right should be interpreted as requiring that ‘a free choice be afforded to the peoples, on a continuing basis, as to their system of government, in order that they [could] determine their economic, social, and cultural development.’ It was a right of the entire population to control its own destiny.

Such an interpretation of the principle of self-determination would be consistent with that of the drafters of the UN Charter. It was already agreed in 1945 that ‘an essential element of the principle in question [was] a free and genuine expression of the will of the people, which avoid[ed] cases of the alleged expression of the popular will, such as those used for their own ends by Germany and Italy in later years.’ This remark strongly suggested that a dictatorial government, like the German and Italian government during the Second World War and possibly the Libyan government of today, would constitute a violation of the right to self-determination of the oppressed people. It basically called for a democracy, or at least some form of ‘representative government’ wherein ‘all the elements of the population of the territory [were] represented in the appropriate – representative – institutions.’