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.’

By Otto Spijkers

In 1970, Thomas M. Franck wrote an article about changing norms governing the use of force, which he gave the following title: who killed Article 2(4)? It seems that the same Article 2(4) UN Charter is in trouble once again. On the same day (today), two interesting blog posts were published on the legal status of the prohibition to use force, as codified in Article 2(4). James Green questioned the peremptory status (jus cogens) of the prohibition of the use of force, and Natalie Oman argued that the use of force might be legal even without Security Council authorization.

Article 2(4) UN Charter prohibits the use of force by one State against another. Is this a norm which allows no derogation? Is it a supernorm? Is it jus cogens? Green argued that the norm of Article 2(4) UN Charter cannot be peremptory (jus cogens), inter alia because the Charter itself already allows two exceptions: self-defense and UN-authorized collective measures. It is thus derogable, and not jus cogens.  

This seems to be a minority view. After all, Article 2(4) UN Charter is one of the most popular examples of a peremptory norm
in view of the community of States. Judge Schwebel of the International Court of Justice pointed out that ‘[w]hile there [was] little agreement on the scope of jus cogens, it is important to recall that in the International Law Commission and at the Vienna Conference on the Law of Treaties there was general agreement that, if jus cogens has any agreed core, it is Article 2, paragraph 4 [of the UN Charter].’ See his Dissenting Opinion in the Case Concerning Military and Paramilitary Activities between Nicaragua and the United States of America (1984).

There are many problems with Article 2(4) UN Charter. It is still
unclear what the word ‘force’ means. The travaux preparatoires of the UN
Charter, and the many declarations adopted on the topic by the General Assembly, suggest that the use of force has to involve military measures, but it does not explicitly say anywhere in these documents that ‘force’ has to be military force. See the relevant paragraphs of General Assembly resolutions 42/22 (1987) and 2625(XXV, 1970). 

These and other problems can be avoided by arguing that the prohibition to use force is jus cogens, even though the formulation of this prohibition in Article 2(4) is not. But it is difficult to define the jus cogens-version of the prohibition to use force in such a way that it only partially corresponds with Article 2(4). Does the jus cogens-version of the prohibition to use force boil down to the prohibition to commit inter-State aggression? But what is the definition of aggression then? Is it the one adopted by the International Criminal Court? The Court has said nothing about any jus cogens. Etc. In any case, any jus cogens version of the prohibition to use force must also provide room for collective action and self-defense without seeing those as exceptions to the rule. After all, jus cogens norms allow for no exceptions; they are nonderogable. According to Green, (probably) no such norm has been
recognized as jus cogens by the community of States (he is a positivist, so he
does not want to base a jus cogens norm purely on morality and global values).

After having noticed all these problems, one might wonder what the added benefit is of labeling the prohibition to use force, or Article 2(4) UN Charter, as jus cogens. Do we really need it to be jus cogens? According to Natalie Oman, it does make a big difference.
If the Article 2(4) version of the prohibition to use force is not jus cogens, then States are allowed to use force against other States, if the aim is to defend jus cogens norms, such as the protection of individuals from war crimes, genocide, and crimes against humanity. In such case it is possible to ignore Article 2(4) and act legally anyways. But this is only possible when Article 2(4) is not jus cogens. If Article 2(4) is not jus cogens, then this would allow the international community to intervene in Libya at the moment, even without a Security Council authorization (as is required by the UN Charter regime, of which Article 2(4) UN Charter is an element). So it does indeed make a difference. Seeing what happens in Libya at the moment, one might be inclined to indeed kill Article 2(4) UN Charter, and claim that the duty to protect individuals from crimes against humanity etc. is of such importance that it overrides all other legal norms and obligations, including the prohibition to use force. This would make such a duty truly jus cogens (but it would create a lot of problems as well….).   

The following announcement on the acquisition of Grotius’ De iure Belli ac Pacis was posted today on the website of the Peace Palace Library:

The Peace Palace Library has acquired a unique first print of the first edition of “De iure belli ac pacis libri tres” by Hugo Grotius […] at an auction in Hamburg yesterday evening. It is a very valuable addition to the famous Grotius-Collection of the Library.

Grotius wrote this book in 1625 during his exile in Paris. In this work, based on natural law, he investigated and explained his theory of “just war” (when war is justified, what are the causes of war and what are the rules of war). It is widely regarded as the “Foundation of Modern International Law”. The book was finished in great haste to be in time for the Frankfurt Bookfair. As a result there had not been enough time to correct all pages and page numbering. This print also lacks indices and a table of content. For specialists it will be most interesting to compare this print with later corrected versions.

The only other known copy of this print is in the Bodleian Library in Oxford.

After 385 years Grotius’ masterpiece has come to The Hague, the “Legal Capital of the World”. The acquisition of this book by the Library will stimulate further Grotius-research and the study of modern international law.

The acquisition of this great work has been made possible with the support of:

• Dorus Rijkers Fonds;
• Samenwerkende Maritieme Fondsen;
• Dr. Hendrik Muller’s Vaderlandsch Fonds;
• M.A.O.C. Gravin van Bylandt Stichting;
• BRILL Publishers;
• Prof. Mr. Laurens Winkel;
• and the Carnegie-Foundation.