There is currently no agreed mechanism for actuating self-determination. The experience of Biafra tells us that violence was destructive and wasteful, and yet, not guaranteed to achieve the goal of self-determination.
The UN gave people the right to self-determination, but did not specify the mechanism by which that right could be actuated. Consequently, UN member States have stepped into this vacuum by claiming for themselves what the Law of Self-determination did not give them; the Concept of State Consent is an example. That concept however was a relic of the push for independence from colonialists in the 1950s and 60s.
UNGA Resolution 2625, the Law of Self-determination, does not give the State a consent role as is incessantly touted. The law made clear and unambiguous the role of the State in self-determination:
1. ‘…to promote…realization of the principle of equal rights and self-determination of peoples…’
2. ‘…to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle…’
3. ‘…to promote universal respect for and observance of human rights and fundamental freedoms…’
4. ‘…to refrain from any forcible action which deprives peoples…of their right to self-determination and freedom and independence…’
On the other hand, the UN possess 4 mechanisms by which Claimants potentially could actuate the self-determination, namely:
a. The Autonomy mechanism
b. The Montevideo mechanism
c. The UN Enforcement mechanism
d. The UN Membership mechanism
The Autonomy mechanism. Prince Hans-Adam II of Liechtenstein, in a speech given at the 48th Session of the UNGA, on 25 October 1993, proposed ‘Effective realization of the right of Self-determination through Autonomy’. He would invest communities that had ‘a degree of territorial and social cohesion’ with degrees of the ‘autonomy’ based on ‘minimal mechanisms’. Consent of the State would be required. The Prince outlined 3 components to his proposal:
a. a body to oversee implementation,
b. an authority charged with ‘the practical operation of arrangements’, and
c. peaceful resolution of differences.
The contribution by the Prince does not move matters forward an inch, however. Autonomy, which means the will of one’s action, is just another word for self-determination. The requirement for State consent takes matters back to the Kosovo and Somaliland situations.
The Montevideo mechanism. There have been calls for Montevideo (1933) to be the mechanism of self-determination, but this immediately raised two problems: to who should the application be made and who would access the application? Besides, Montevideo is advisory only, intended to assist States in deciding whether or not to recognise a previously unrecognised entity. A territory had to be in a physical manifestation before Montevideo could be applied to it. It is axiomatic that the process of self-determination would precede the application of Montevideo.
The UN Enforcement mechanisms. UN Charter Articles 39-42 provide mechanisms for enforcing the Right of Self-determination. Article 39 provides:
‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.’
Articles 40-42 authorised sanctions that might be applied in lieu, but for reasons of international politics and the veto powers of the permanent members of the UNSC, it has not been possible for the UN to evenly apply the provisions of UN Charter Articles 39-42 to all self-determination claims. The situation is not likely to change for the foreseeable future.
The UN Membership mechanism. UN Charter Article 4 provides the admission rights for new States, and this could provide a mechanism for actuating the Right of Self-determination. John Dugard articulated this in The Secession of States and Their Recognition in the Wake of Kosovo (2013) where he wrote:
‘By admitting a seceding entity to membership of the United Nations, the United Nations confers the imprimatur of statehood on that entity. Admission to the United Nations constitutes “legal” or “general” recognition that will be respected by all Member States of the United Nations.’
To this end, we have proposed a two-legged test to comply with the Article 4 provisions: an Objective Test and a Subjective Test. The Objective Test asked if there was a ‘viable territory’ in terms of population and land. The Subjective Test asked if the Applicant, and putative UN Member State, had a history of adherence to the UN Charter values. We recommend this mechanism. The only requirement here is application for UN Membership, which was what Palestine did. This mechanism is simple and straightforward to apply, fair and equitable, easily understood by, and likely to be acceptable to, both State and non-State actors. No new institutions would have to be created. The mechanism that we proposed would obviate the need for violent confrontations.