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RIGHT TO SELF-DETERMINATION IN INTERNATIONAL LAW

RIGHT TO SELF-DETERMINATION IN INTERNATIONAL LAWDistinguishing the case of Kashmir from Catalonia (Spain) and Kurdistan (Iraq)

Introduction

The news about the efforts by the peoples of Catalonia (Spain) and Kurdistan (Iraq) have reignited the debate on the importance of the right to self-determination in international law. Understanding the right to self-determination is particularly of interest for the foreign policy makers and students of international relations in Pakistan as the country’s very claim on Kashmir (India-held), legally speaking, is carved in and around this fundamental right. The origin, the legal basis of the right to self-determination and its application to Kashmir (India-held) in contradistinction to Catalonia (Spain) and Kurdistan (Iraq) will be discussed in this part of International and Constitutional Legal Debates.

I. The Origin

One of the most comprehensive studies on the origins of the right to self-determination, in English language, is found in the report of the roundtable conference organized by the United States Institute of Peace (USIP), an institution established in 1995 by the US Congress for the study of peaceful resolution of conflicts. The report entitled ‘Self-Determination: Sovereignty, Territorial Integrity, and the Right to Secession’ has been authored by Patricia Carley. She delineated many aspects of the right to self-determination and its relevance to the US foreign policy making. Tracing the origins of the right to self-determination, she quoted Professor Hurst Hannum of the Fletcher School of Law and Diplomacy, who divided its origin into three eras, which may be summarised as:

1. Early nineteenth century to 1945

The period was characterised by three features:

First, the concept of self-determination was purely political by then and was not recognized as a ‘right’. The origin of the concept was in the philosophical approach of John Stuart Mill who connected the language, ethnicity and culture with statehood for the first time. Later, in the early twentieth century, US President Woodrow Wilson in his famous Fourteen Points mentioned it (without naming) in Point Five as:

“A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.”

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About Kamran Adil

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The author is an independent researcher and has done his BCL from the University of Oxford. kamranadil@gmail.com

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