THE FULLFILMENT OF FREEDOM SELF DETERMINATION

TOWARDS GENERAL INTEREST OF SOCIETY AND OTHER RIGHTS

FROM HUMAN RIGHTS APPROACH
Nisha Ardhayani
145010100111018

Abstract
Freedom of Self Determination can be considered as international human
rights framework. There are 2 aspect on the rights of self determination that
known as external self determination and internal self determination. External
self determination is about the freedom of self determination in the subjects
relation as the form of a state as it relation with another state. Internal self
determination is about the freedom of self determination where the people within
the state demand for their political status. In the freedom of self determination
there are two approaches, first is people approaches and the second is
territory approaches. As the part of International Human Rights Framework,
the implementation of the freedom of self determination should be considering the
general interest of society and other rights. So the purpose of the International
Human Rights can be achieved there should be a balance between the rights and
the interest.

These past few years weve been heard about some demand for the rights
of self determination. For example this kind of demand has came from Palestina,
Tibet, East Timores, People of Hongkong, Suriah and many more. The contain of
that demand maybe come from some politican group that want a sovereignty or a
greater political effect in governmental structure, and/or may be come from some
people who want to preserve their own language, cultural traditions, or way of
life. The responses to these demands have been quite varied, ranging from
complete denial (through ignoring the demands, or repressing them) to trying to

accommodate them to lesser or greater degrees. Often considerable conflict

emerges before an accommodation (of whatever kind) is worked out. Eventhough
every state has the obligation to promote the realization of the right of self
determination1 and the duty to respect this right accordance with the provisions
of the United Nations Charter2, there is a concern about international peace and
security and a fear of a disintegration of the current international system if the
right of self-determination is exercised by all who claim it.3 In order to resolve the
potentially competing claims and obligations concerning the right of self
determination there should be a rules that must be able to be applied to every
circumtances without increasing the threat to international peace and security
while respecting the rights of self determintaion and the interest of all the member
of the International community. The only appropriate legal framework to consider
the right of self determination to these requirements is the one that based on the
legal rules developed in international human rights law.
Common article 1 of the two International Human Rights Covenants provides that
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

1 Art. 1(3) of both of the International Covenant on Civil and Political Rights
1966 (ICCPR) and the International Covenant on Economic, Social and Cultural
Rights 1966 (ICESCR).
2 The Declarations on Principles of International Law concerning Friendly
Relations and Co-Operation among States in accordance with the Charter of the
United Nations, annex to G.A.Res.2625, adopted without vote on 24 Oct 1970
3 Boutros Boutros-Ghali, in his Agenda for Peace, stated that if every ethnic,
religousor linguistic group claimed statehood, there would be no limit to
fragmentaion, and peace, security and economic well being for all would become
even more difficult to achieve : reproduced in A. Roberts and B. Kingsbury.
United Nations Divided World (2nd edn. 1993). App.A.

cultural development.4.As we can see the words all peoples in there means that
the application of the right of self determination is also applicable to colonial
state. The rights of self determination applies to all peoples subject to oppression
by subjugation, domination, and exploitation by others. The right of self
determination divided into 2 aspects : external and internal self
determination5.

External self determination was applied most of the time to the colonial
situations. This application of external self determination mentioned in
General Assebly Resolution 1541 that divided into 3, such as :
- Emergence as a sovereign independent state,
- Free association with an independent state, or
- Integration with an independent state.
The external self determination does not imply that independence or
secession is the only way to exercise the right for example Scotlands
Referendum that denying to become an Independence state and choose to
still become part of Great Britain. The right does require that all people
within a territory must be consulted before any change in sovereignty over

that territory can occur, particularly if its a colonial territory.

Internal self determination concerns more about the right of peoples within
a state to choose their political status. The exercise of this right can take a
variety of forms, from autonomy over most policies and laws in a regiona
or part of a state, such as the canton system in Switzerland or relationship
between Greenland and Denmark; to a people having exclusive control
over certain aspect of policy, such as education, soacial and/or cultural

4 Art.1(1) ICCPR and ICESCR. These covenants have been ratified by at least 2/3
of the member states of the UN.
5 Principle VIII of the Final Act of the Helsinki Conference 1975 includes: by
virtue of the principle of equal rights andself-determination of peoples, all peoples
have the right , in full freedom, to determine, when and as they wish, their internal
and external political status, without external interference, and to pursue as they
wish their political, eco., soc., and cultural development

matters.6 This variety of possible exercise of this right occurs because the
concept of self determination and applications particularly in an
increasingly interdependent world in which the former attributer of
statehood mean less and less7
There are two main approaches in this right self determination, they are :
People approaches
The term of people should be understood in the most general sense and
that no definition was necessary. The people approach to the right of self
determination , with its rigid definition becomes a limitting factor in any
attempt to dtermine consistent general legal rules concerning the right.
Territory approaches
This approach focuses on the degree of control exercised over a territory.
The weakness of this approach is taht it tends to ignore the internal self
deteremination and concetrates only in external self determination despite
by Dillards warning that it is for the people to determine the destiny of
the territory and not the territory that determinate the destiny of people8
The purpose of the right of self determination and its integration with the
protection of individual rights allow this right to be considered within the human
rights framework. The purpose of the right of self determination is toprtect
communities or groups from oppression and to empower them. This right is
considered an essential condition ij the protection of individual rights because if
people are subjected to oppression their individual rights are not fully protected.
The International human rights framework has a several general rules, such as :
- Human Rights are interpreted in the context of curent standards
- Any limitations on the exercise of human rights are :
a. limitations to protect other rights
b. limitations to protect the general interests of societey.
- The limitations on human rights are considered narrowly, with
-

consideration given to the cicumstances of the relevant societey.

A victim of violation of human rights must bring the claim.

6 Economic self determination has been used in the context of sovereignty over
natural resorces. Art.1(2) ICCPR and ICESCR.
7 Anana, op. Cit, supra n.1,at p.842.
8 Separate opinion in Western Sahara, supra n.18, at p.122

This limitations are the form of recognition that individuals do not exist in a
vacuum but are part of society where there are another individuals right that need
to be fullfilled. Therefore there should be a international human rights law aims to
make a balnce between the rights and the interest.
From the human right approach to the right of self determination, it recognises
that the right of self determination is not an absolute human right. The right of self
determination also have a limitations, both to protect the rights of others and to
protect the general interests of society, especially the need to maintain
international peace and security. But those limitations are applicable only in
certain circumtances, such as ehere internal self determination has already occure,
and where there is a pressing need for the limitations in the society concerned.
Eventhough achieving self-determination through peaceful means is acceptable,
but disrupting territorial integrity is not. At the same time, when selfdetermination has been achieved militarily, the international community has
generally been reluctant to reverse the gain. The claim is also made that too much
focus on self-determination can be dangerous. An over-generous acceptance of
self-determination could lead to fragmentation and the rise of intolerance, because
it would no longer be necessary to coexist peacefully. Despite these problems,
however, it is clear that claims to the right of "self-determination" are not abating,
and the international community needs to develop better ways of addressing these
demands that avoid destructive conflict and violence

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Collier, Diana. 2012. From Civil Rights to Human Rights and Self
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Marshall, Jill. 2014. Human Rights Law and Personal Identity. Routledge Taylor
and Francis Group.
McCorquodale, Robert. 1994. The International and Comparative Law Quarterly:
Self-Determination: A Human Rights Approach. Cambridge University Press.
pp. 857-885
Roepstorf, Kristina. 2013. The Politics of Self Determination. Routledge Taylor
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Smith, Rhona K.M., et al. 2008. Hukum Hak Asai Manusia. PUSHAM UII
Yogyakarta