There is a recognised right to self-determination in international law. It is controversial whether a positive right to armed struggle to fulfil this right exists. It is clearly illegal under international law to deprive a people of their right to self-determination by using forcible actions including use of violence.
UN Charter definition
“By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.”
(The United Nation General Assembly Resolution 2625 (XXV): Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, 24 October 1970)
In the opening chapter of the UN Charter, respect for the right to self-determination of peoples is presented as one of the purposes of the United Nations. The right to self-determination of peoples was confirmed by the United Nations General Assembly (GA) in the Declaration of Friendly Relations, which was unanimously adopted in 1970 and is considered an authoritative indication of customary international law. Article 1, common to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), reaffirms the right of all peoples to self-determination, and lays upon state parties the obligation to promote and to respect it.
The right to self-determination was first recognised in the context of decolonisation; however, numerous human rights instruments, including conventional law, such as common Article 1 of ICCPR and ICESCR, as well as several GA Resolutions coupled with state practice, have extended its application beyond the colonial context, for example to South Africans under the apartheid regime. Some scholars also affirmed its application to analogous cases, such as peoples under belligerent occupation.
Criteria for the right to self-determination
A people can be said to have realised its right to self-determination when they have either (1) established a sovereign and independent state; (2) freely associated with another state or (3) integrated with another state after freely having expressed their will to do so . The definition of realisation of self-determination was confirmed in the Declaration of Friendly Relations .
The right of self-determination puts upon states not just the duty to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. In particular, the use of force to prevent a people from exercising their right of self-determination is regarded as illegal and has been consistently condemned by the international community. The obligations flowing from the principle of self-determination have been recognised as erga omnes, namely existing towards the whole international community. The International Court of Justice (ICJ) has recently reiterated the erga omnes status of the general principle of self-determination in its Advisory Opinion on the Wall. Additionally, scholars and commentators have indicated that the principle has acquired the status of jus cogens – a peremptory norm of international law .Read more about IHL obligations in the struggle for self-determination
The right to self-determination in Palestine
The right to self-determination of both peoples living in Palestine, namely the Palestinians and the Jews, was confirmed by the UN General Assembly in Resolution 181 of 29 November 1947, which included the plan to divide the British Mandate of Palestine into one Jewish and one Palestinian state. The resolution was not legally binding, but merely recommended what the GA considered to be a legitimate mode of self-determination for Palestine. Nevertheless, it did express that a majority of states were of the opinion that one Jewish and one Palestinian state should be created in the area.
After the 1948 war, Israel was established on a more extensive territory than recommended in the partition plan. By entering into the Armistice Agreement with Egypt in 1949, Israel, demonstrated a sufficient level of stable and effective government of the territory to be recognised as a state by other states and the UN. Israel was effectively and lawfully established as a state, on the armistice territory, by secession from the Mandate of Palestine. A state for the Palestinians living in the Mandate of Palestine was never created and this unrealised goal still constitutes one of the core issues of the conflict.
The Palestine Liberation Organization (PLO), which emerged as the representative of the Palestinians and their struggle for self-determination, has achieved a certain position in international law, based on the international recognition of its goal of self-determination. In 1974, the UN General Assembly decided that contacts should be taken with the PLO on all matters concerning the question of Palestine. In 1975, the GA adopted Resolution 3237 that conferred the PLO the status of observer in the assembly and in other international conferences held under UN auspices.
The PLO itself has been making attempts to gain increased international legal status. In November 1988, the PLO declared the independence of the Palestinian State, which was recognised by many states. The GA affirmed that this declaration was in line with the partition plan and the right of the Palestinian people to self-determination. The resolution also called upon states to support the Palestinian people’s right to exercise their sovereignty over the territory occupied since 1967. However, no attempt was made to recommend UN membership for Palestine. In 2009, the Palestinian Authority submitted a declaration to the prosecutor of the International Criminal Court, accepting jurisdiction of the court. Such submissions are usually made by states.
The right of the Palestinian people to self-determination has also been confirmed by the International Court of Justice (ICJ) in its Advisory Opinion on the Wall. The ICJ stated that:"…construction [of the Wall], along with measures taken previously, thus severely impedes the exercise by the Palestinian people of its right to self-determination, and is therefore a breach of Israel’s obligation to respect that right".Read more about ICJ:s Advisory Opinion on the Wall