JPIL Vol 5 Issue 1 2014 - Article 1

THE RIGHT TO SELF-DETERMINATION: CAN IT LAPSE?

Andrew Coleman

Abstract
Some States raised an interesting point during the pleadings for the recent Kosovo Advisory Opinion: that the Kosovar Albanians were not currently victims of foreign subjugation or human rights abuses. The Kosovars suffered serious human rights abuses during the 1990s and the argument that these abuses must be current before an entitlement to the ‘remedial’ right to self-determination arises implies that this right may ‘lapse’. Only His Excellency Judge Trindade considered the matter this significant issue in his Separate Opinion where he rejected it unequivocally. No doubt, many would agree with His Excellency, but there is some merit to the above proposition. Namely that if gross human rights abuses (including acts of genocide, ethnic cleansing) form the foundation of the remedial right, a pre-condition so to speak then can the right exist at all if the ‘foundation’ is removed? Secondly, there may be important pragmatic reasons for conceding this argument, and it may actually benefit the international community, and more importantly the claimants. If it is accepted that the ‘remedial’ right to self-determination can lapse then many questions must be answered, the least of which are ‘why’ and ‘how’. It is the purpose of this paper to consider these questions as well as the implications for potential protagonists, the international community, as well as the continued evolution of the norm of self-determination.


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