The right to self-determination: an international criminal law perspective
University of British Columbia
Master of Laws - LLM
Recent events in East Timor and other regions have highlighted the dangers of leaving issues of self-determination unresolved for too long. Despite the tact that self-determination is one of the guiding principles of the UN Charter, many controversies over its precise meaning and application continue to preclude a coherent, comprehensive approach to the principle by Stales. This thesis analyses the main controversies over the right of all peoples to self-determination and suggests some conclusions as to the present status of this right under international law. The author also analyses potential approaches to enforcing a legitimate right to self-determination and concludes that there appears to be no effective enforcement mechanism, unless one has the support of a sovereign State in advocating one's cause. Historically, realisation of this right has more often involved a successful campaign of violence or coercion against the party denying the right, and subsequent recognition by the international community of the legitimacy of the campaign. Clearly, this situation is not conducive to international peace and security. The author argues that international criminal law may provide the only effective means of enforcing legitimate rights to self-determination at this time. This conclusion is drawn with reference to Professor M. Cherif Bassiouni's theory of five stages through which a human right evolves, from a mere aspiration, to a right whose breach attracts penal proscriptions. Bassiouni argues that, in international law, a human right becomes a suitable subject for international criminal law when effective enforcement modalities for that right have failed. The thesis concludes with a suggestion that the right to self-determination may be one of the rights protected under the 1998 Rome Statute of the International Criminal Court, within the definition of the crime against humanity of "persecution" (article 7(1)(h) & (2)(g)).
Self-determination, National.; International offenses.; Human rights.
Law, Peter A. Allard School of