Territorial Disputes in the Americas blog series. Post 15: Self-determination

 

Self-determination

The right to self-determination is a principle in international law that stipulates that peoples have the right to freely determine their political status and to pursue their economic, social, and cultural development. This right encompasses:

• Internal Self-Determination: The ability of a people within an existing state to govern themselves democratically, choosing their political, economic, and social systems without external interference.
• External Self-Determination: The right of a people to form their own sovereign state or to freely associate with other states or to integrate with another state, particularly in contexts where they have been subjected to colonial domination, foreign occupation, or where they constitute a distinct group within a state.

Applicable International Law

Some key legal instruments and principles related to the right to self-determination:

1. United Nations Charter (1945)
   • Article 1(2): One of the purposes of the UN is to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”
   • Article 55: Reaffirms the principle of equal rights and self-determination of peoples.
2. International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) (both 1966)
   • Common Article 1: “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 cultural development.”
3. Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)
   • Aimed at accelerating the process of decolonization, it asserts the inalienable right of all peoples to self-determination.
4. United Nations General Assembly Resolution 1514 (XV)
   • Proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations.
5. The Vienna Declaration and Programme of Action (1993)
   • Reaffirms the right to self-determination for all peoples.
6. Friendly Relations Declaration (1970)
   • Provides a detailed interpretation of self-determination, emphasizing that it shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples.
7. Advisory Opinions and Case Law:
   • ICJ’s Namibia Opinion (1971): Confirmed that the right to self-determination is a right erga omnes (owed towards all).
   • Western Sahara Advisory Opinion (1975): The ICJ recognized the applicability of self-determination to the peoples of non-self-governing territories.

These legal instruments and decisions illustrate that the right to self-determination is a fundamental principle of international law, with wide-ranging implications for both state policy and international relations. However, the practical application of this right can be contentious, particularly in cases involving secession or where internal self-determination is contested within a state.

Problems with interpretation

Although in principle self-determination appears to be a simple, straight forward notion, it brings several hermeneutical problems. Among them, the ones that are relevant to territorial disputes are: dismemberment of territory, the right to determine political status, and the concept of “people.” The sub-sections below explore these points.

a. Dismemberment of territory

The people’s right to decide their political status may result in the physical dismemberment of the state. One of the elements that integrate the sovereign state, its territory, may have to be divided. In that case, self-determination moves against the public international principle of territorial integrity.

b. The right to determine political status

Self-determination may result in secession but it does not need to. Public international law enables people to choose their political status by means of self-determination. The political status in any community may imply independence and the formation of a new sovereign state as well as other outcomes such as administration, integration, free association, or shared sovereignty. Secession is an ultimum remedium in situations in which the sovereign state and the population that wishes to secede are in conflict.

c. People

Public international law related to self-determination acknowledges that “people” have the right to choose their political status. The term “people” is as simple as it is problematic. Scholarly literature in law recognizes that there is a limit inherent in the nature of language to the guidance which general language can provide. Any natural languages, like English, are open-textured. The term “people” in public international law referring to self-determination is an example of the vagueness and ambiguity embedded in the language of legal norms.

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Self-determination and territorial disputes in the Americas

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Wednesday 15th January 2025

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Territorial Disputes in the Americas blog series. Post 14: Sovereignty and self-determination

 

Sovereignty and self-determination

To better understand what a territorial dispute is we have to be familiar with basic vocabulary used in law, politics and international relations. Two key words must be introduced: STATE and SOVEREIGNTY. That is because in all territorial disputes we will have at least one STATE claiming exclusive SOVEREIGNTY over a territory.

International public law offers a definition in article 1 of the Montevideo Convention of Rights and Duties of states (1933) that declares:

“The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”

In tune with this definition the Oxford Dictionary of Law says:

“to qualify as a state the entity must have: (1) a permanent population […]; (2) a defined territory […]; (3) an effective government.” Martin, Elizabeth A. and Law, Jonathan, ed. 2006. A Dictionary of Law. Oxford: Oxford University Press.

Therefore, a STATE has three key elements:

TERRITORY

POPULATION

GOVERNMENT (and LAW)

In very simple terms, that means that in principle:

1. Territories without people cannot be a state.
2. People without territory cannot be a state (e.g. Tibetans).
3. A group of people living in a territory without a government (independent from any other source of law) cannot be a state (e.g. Catalonia).

I include a video below of one of my talks (I explain the concepts of state, sovereignty and self-determination and their relevance in relation to territorial disputes).

These three elements (territory, population and government) require one specific characteristic to be considered a fully fleshed state. What is that characteristic? It is SOVEREIGNTY.

There are many definitions of SOVEREIGNTY. A current and comprehensive definition of SOVEREIGNTY says:

“[Sovereignty is] a Supreme authority in a state. In any state sovereignty is vested in the institution, person, or body having the ultimate authority to impose law on everyone else in the state and the power to alter any pre-existing law. […] In international law, it is an essential aspect of sovereignty that all states should have supreme control over their internal affairs […]” Martin, Elizabeth A. and Law, Jonathan, ed. 2006. A Dictionary of Law. Oxford: Oxford University Press.

Bringing these two concepts together: STATE and SOVEREIGNTY we have that a SOVEREIGN STATE is a group of people (POPULATION) who lives in a piece of land (TERRITORY) and has a common government EXCLUSIVELY able to create the highest law for them in that land.

Therein, there is a territorial dispute when more than one government (or group of people) aims to EXCLUSIVELY have sovereignty over the same territory.

Are sovereignty and self-determination at odds?

At first glance, sovereignty and self-determination seem to be at odds. While sovereignty centers on the state, self-determination focuses on people. Self-determination may jeopardize one of the elements that integrates a sovereign state, such as territory by giving preeminence to another element such as population. In this view, self-determination compromises the public international law principle of territorial integrity.

Consequently, territorial disputes often include situations such as Catalonia, in which at least part of the population of a sovereign state wishes to have a different government and, therefore, divide the territory; or cases like Gibraltar and the Falkland/Malvinas Islands where populations are in a legal and political limbo because they wish to exercise self-determination while a sovereign state denies them that right; or disputes like Kashmir, where populations under the sovereignty of one state wish to exercise self-determination and join another one.

This is a misunderstanding because sovereignty includes limitations and, therefore, can embrace cooperative arrangements that may imply solutions other than dismemberment of the territory. In a similar vein, self-determination may lead to solutions other than secession. In order to make these points clear and demonstrate how sovereignty and self-determination are not necessarily opposed, the next post explores self-determination in law and politics.

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Self-determination

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Monday 13th January 2025

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Territorial Disputes in the Americas blog series. Post 13: Indigenous people and implanted populations

 

Indigenous people and implanted populations

While the legal and political status of indigenous peoples is in question in terms of territorial disputes, the Americas also include populations that were at one time settlers. The latter encompass those who relocated either willingly such as the Falkland/Malvinas islanders or were forced like former African slaves in the archipelago of San Andres, Providencia and Santa Catalina—i.e. Raizal community.

Regardless of their different circumstances, several of these groups nowadays claim self-determination.[1] Indeed, in the context of international law and politics settlers or implanted populations are considered “persons” and may be able to claim the territory they inhabit, while the legal and political status of indigenous populations is still vaguely acknowledged.

In certain situations, self-determination may challenge the public international law principle of territorial integrity. To bring more precision, it is important to make clear that self-determination centers on people, implies different degrees of autonomy, and does not necessarily mean secession. Indeed, public international law empowers populations to freely decide what is best for them even in cases of territorial disputes. However, sovereignty and self-determination may as well draw together agents with opposing claims over territorial disputes and there may be room for territorial disputes to be resolved by cooperative approaches.

The way in which indigenous people are currently considered in law and politics in the Americas, unsurprisingly, can be traced back to colonial times. Both legally and politically, indigenous people were not legally “persons” or they were considered inferior. Therefore, colonial empires discarded claims to the territories by these native populations. Internationally, there seems to be a move towards supporting indigenous rights but in relation issues other than territorial claims. In the same manner, regional states are reviewing the way they interact with these populations. Arguably, self-determination and consequent self-government could be the next steps in this legal evolution towards the recognition of indigenous rights in relation to territorial disputes.

In contrast, “right-peopling” the territory with settlers willing to relocate from the motherland was a way in which some former colonial powers (and some modern states like Israel) secured their claim to sovereignty over new territories by means of self-determination. Moreover, whether the intention was to use the same means or not to achieve the same goal, a similar situation has stemmed from those who were originally brought to the Americas by former colonial empires as slaves.

Several ongoing territorial disputes in the Americas that include indigenous populations and settlers are examples of the tension between self-determination and territorial integrity. Unsurprisingly, there is scholarly literature supporting both the preeminence of self-determination over territorial integrity and vice-versa. In relation to territorial disputes the choice between self-determination and territorial integrity shows a similar experience, with some cases suggesting preeminence to the former and some others to the latter. Consequently, self-determination does not necessarily override territorial integrity.

Whether to apply self-determination or territorial integrity to a territorial dispute depends on interpreting, weighting and balancing different elements particular to that dispute. Scholarly literature and public international law seem to suggest that self-determination may take priority over territorial integrity unless, for example, an administering authority attempts to use it as a means to an end—e.g. in the case of “plantations.”

It is clear that the choice between self-determination and territorial integrity is as complex as it is controversial. Furthermore, different situations include indigenous people and implanted populations, “plantations” or those who settled in previously inhabited or uninhabited territories.[2]

NOTE:

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Sovereignty and self-determination

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Friday 10th January 2025

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[1] For the author’s previous work on self-determination in the context of territorial disputes see Jorge E. Núñez, Territorial Disputes and State Sovereignty: International Law and Politics (London and New York: Routledge, Taylor and Francis Group, 2020), Chapter 3.

[2] The author refers to “previously inhabited or uninhabited territories” intentionally because it may be epistemologically impossible to demonstrate this circumstance. For an extensive analysis on this point see Jorge E. Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue (London and New York: Routledge, Taylor & Francis Group, 2017), Chapter 6; in particular “Why ‘just acquisition’ cannot work,” 117-120.

Territorial Disputes in the Americas blog series. Post 12: Americans versus Americans

 

American versus Americans

Different from the cases reviewed in this blog series such as the Mexico-United States border, the Falkland/Malvinas Islands and Guantanamo Bay, other territorial disputes in the continent present agents with similar bargaining power. More precisely, some of the cases explored included central, strong or advantaged agents such as the United Kingdom, the United States, Russia, China and India.

These agents characterize themselves because of the different realpolitik influence in comparison to others involved in the relevant territorial dispute despite, for example, public international law granting legal sovereign equality to states. Conversely, while legal sovereign equality is still present, this post refers to cases in which the involved agents have similar situations with regard to their bargaining power in the territorial dispute at hand, whether they are the challenger or the challenged agent.

Broadly, the territorial disputes between American states are originated and fueled by several elements and features such as historical roots, exploration and exploitation of natural resources and the sociological, ethnic and cultural components. Therein, the first part of the chapter will introduce a basic typology of these differences to distinguish border disputes, resource disputes, ideological disputes, influence disputes, migratory disputes and leaders’ prestige disputes.

These territorial disputes can be divided into three clusters that correspond to three different geopolitical regions, that is North America, Central America and the Caribbean Basin and South America. For instance, North America includes disputes between the United States and Canada centered on maritime claims.[1]

Different elements and features have worked together in negative synergy to foster differences in Central America and the Caribbean Basin. Colonial seeds, the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the redefinition of areas such as exclusive economic zones (EEZ), new technologies and the presence of natural resources resulted in several differences such as Guatemala and Belize, Guyana and Suriname, Venezuela and Guyana, Nicaragua and Costa Rica and El Salvador and Honduras.

Most of the territorial disputes in South America are now resolved. They all had roots in colonial times. There are, however, several hallmarks in relation to territorial disputes in areas like the Amazon and Southern Cone that the fourth part will explore: a territory rich in natural resources attracts domestic, regional and international agents such as sovereign states, indigenous people, non-governmental organizations, multinational private companies, and scientists; politicians and academics seem to agree that the internationalization of the Amazon is not advisable; current issues include illegal cross-border immigration and differences over resource extraction; border reconfiguration can emerge as a social construction; indigenous communities do not necessarily conform to legally defined borders and their claims to ethno-territorial rights are usually opposed to the interests of sovereign states and private companies; and the presence of external guarantors suggests an arguably more robust peaceful agreement. For example, the guarantors were key in the final dispute resolution between Ecuador and Peru achieved in 1998 Brasilia Peace Agreement.

NOTE:

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Wednesday 8th January 2025

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---

[1] Note the Mexico-United States border is settled and, therefore, not included here.

Territorial Disputes in the Americas blog series. Post 11: Religion and peacebuilding

 

Religion and peacebuilding

Sovereignty and territorial disputes include a vast variety of elements and features that different disciplines explicate and evaluate as objects or subjects of study—i.e. any living or inanimate “thing” or “entity,” action or omission capable of being studied by any scholarly discipline. According to their modes of existence, these objects or subjects of study may be classified as ideal, natural, cultural and metaphysical.[1]

Territorial disputes and sovereignty conflicts can be characterized by reference to ideal, natural, cultural or metaphysical elements and features. The distinction is important because the kind of object or mode of existence conditions the way in which scholars make their assessments (methodology) as well as their understanding (epistemological act). More precisely, because of the particularities of these objects or subjects of study, scientific disciplines apply a relevant method to understand and assess them. Similarly, different scientific disciplines use relevant epistemological acts to interpret them in a way they can be transferred as knowledge. The following paragraphs will briefly refer only to metaphysical objects.

Metaphysical objects are real, they exist, are not in the experience and are valuable positively and negatively. For example, God, who is conceived as a reality and the highest goodness, is not in the experience, as He cannot be seen anywhere nor be accessed through any other of the senses. However, at least for believers, He is a reality, accessible through faith and therefore exists. Metaphysical objects such as common faith and beliefs have had an impact too in territorial disputes in territorial disputes in the Americas.

Religion in the Americas and peacebuilding

The chart below illustrates current data pertaining major religious groups in the Americas, with focus on Latin America and the Caribbean.

A point worth highlighting that seems to be a constant feature in territorial disputes in the Americas and their peaceful settlements has to do with other normative system than law, that is religion. All states in the Americas somehow follow and/or officially support Judeo-Christian tradition.

Research shows that Judeo-Christian tradition, in comparison to others, fosters peacebuilding by means in addition to holy scriptures and individual figures such as institutions and practices dedicated to that effect.

For example, while attempts made by the United Kingdom almost brought a war because of the Beagle Channel Dispute, common faith—i.e. Argentina and Chile are largely Catholic populations—by means of the Papal mediation was instrumental in the final peaceful settlement.[2]

NOTE:

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Americans versus Americans

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Monday 6th January 2025

Dr Jorge Emilio Núñez

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---

[1] This post will briefly refer to metaphysical objects. For a detailed account of each mode of existence (including ideal, natural, cultural and metaphysical objects) see Jorge E. Núñez, Cosmopolitanism, State Sovereignty, International Law and Politics: A Theory. Routledge, Taylor & Francis Group (London and New York: Routledge, Taylor & Francis Group, 2023), Chapter 5.

[2] James L. Garrett, “The Beagle Channel Dispute: Confrontation and Negotiation in the Southern Cone,” Journal of Interamerican Studies and World Affairs 27:3 (1985): 81-109; and many others.

Territorial Disputes in the Americas blog series. Post 10: Neo-colonialism and colonial mindset

 

Neo-colonialism and colonial mindset

Latin America has been under the influence of either the United States or Russia. More currently, while the United States and Russia have had (and still do) different degrees of interference in domestic and regional legal and political agendas of other states in the continent, there are other sovereign states such as China and India with a strong direct and indirect presence and ascendancy. That is because, after the end of the Soviet Union era and the emergence of new central agents such as China and India, there is an evident shift to a multipolar world. Therein, it is not surprising that these states have a direct and indirect involvement in territorial disputes in the continent.

Different forms of domination: colonialism, neo-colonialism and colonial mindset

The author has explained elsewhere that, in principle, domination means the ability or capacity somebody has to exercise power arbitrarily for their own benefit over others, regardless of the consequences for the others. Conversely, non-domination implies the ability or capacity for someone’s affairs not to be arbitrary interfered with by someone else.[1] Applied to territorial disputes, when an agent such as a sovereign state dominates another agent, there is arbitrary power. On the contrary, when an agent willingly accepts limitations another agent imposes, there is non-domination.

Obviously, in the specific case of sovereign states, they may even enter into commitments and limit factually and normatively their own sovereignty. Domination, however, implies a particular kind of limitation (an axiological choice) that results in arbitrary power over someone else—e.g. another state, pseudo-states, and failed states, communities. The distinction between domination and non-domination, arbitrary and non-arbitrary is more clearly understood when the multidimensional analysis is applied.[2] For instance, a linear horizontal dimensional view encompasses the understandings in public international law of sovereign equality of the states. For example, according to art. 2.1 of the United Nations Charter, sovereign equality is a core principle. This indicates that sovereign states ought to treat each other on an equal standing or equal footing basis. However, a linear vertical dimensional view acknowledges that in fact central, strong or advantaged states may do as they wish with their weaker or least advantaged peers—e.g. realpolitik views.

Colonialism as a form of domination implies the control by agents such as states, communities and individuals over other states, communities and individuals, their territories and behaviors. Historically, in the times of colonial empires, several cases in the Americas showed states such as France, Portugal, Spain and the United Kingdom claimed to have absolute sovereignty, yet only recognized the sovereignty of selected peers while at the same time considered other entities as non-sovereigns, and therefore, did as they wished with their territories and populations.

More currently, states like the United States, Russia, China and India have direct and indirect involvement in legal and political issues pertaining other American peers, including territorial disputes. Whether these practices involve neo-colonialism or colonial mindset, in all cases, they have to do with a form of domination.

Neo-colonialism, a kind of adapted colonialism, includes different means of domination such as political, financial, military and technical. This form of domination implies that an agent such as sovereign state is directly and/or indirectly controlled and/or influenced from outside.

In turn, a more subtle and often ignored form of domination, colonial mindset or colonial syndrome, refers to psychologically embedded preconceptions of agents such as individuals and communities conditioned by colonial and/or neo-colonial norms and/or facts as well as the actual and/or potential exert of psychological oppression upon formerly colonial agents like individuals and/or communities. This subtle form of domination, colonial mindset, can be better comprehended when explored by means of nonlinear dimensional understandings such as self-referred or regressive.[3]  

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[1] Jorge E. Núñez, Territorial Disputes and State Sovereignty: International Law and Politics (London and New York: Routledge, Taylor & Francis Group, 2020), Chapter 3.

[2] For unidimensional and multidimensional approaches see Jorge E. Núñez, Cosmopolitanism, State Sovereignty, International Law and Politics: A Theory (London and New York: Routledge, Taylor & Francis Group, 2023), Chapter 6.

[3] For linear and nonlinear dimensional approaches see Jorge E. Núñez, Territorial Disputes and State Sovereignty: International Law and Politics (London and New York: Routledge, Taylor & Francis Group, 2020), Chapter 6.

Territorial Disputes in the Americas blog series. Post 9: San Andres, Providencia and Santa Catalina (Colombia and Nicaragua)

 

San Andres, Providencia and Santa Catalina (Colombia and Nicaragua)

Like other cases in the Americas, the territorial dispute over the archipelago of San Andres, Providencia and Santa Catalina is rooted in colonialism.[1] The archipelago was discovered by Europeans in the sixteenth century, colonized by Spain, and later occupied by English Puritans from Bermuda. Slaves arrived in 1633 from other Caribbean islands. Breaking up with Spain, Colombia and Nicaragua became independent states. At that time the archipelago—which then included the Islas Mangles (Cum Islands)— and the Mosquito Coast were part of the Spanish Viceroyalty of Santa Fe (or Viceroyalty of Nueva Granada).

In 2001, Nicaragua presented its sovereignty claims at the International Court of Justice (ICJ). In 2007, the ICJ recognized Colombian sovereignty. In 2012, the ICJ ruled that the Esguerra-Bárcenas Treary did not include a maritime delimitation—i.e. there was agreed maritime boundary between Colombia and Nicaragua.  Moreover, because Colombia is not a party to the United Nations Convention on the Law of the Sea (UNCLOS), by application of customary international law, the ICJ used a novel and controversial interpretation—i.e. a mixture of weighted base points, geodetic lines, parallels of latitude and enclaving—and confirmed Colombian sovereignty and granted Nicaragua control over part of the western coastline of the archipelago.

The San Andres, Providencia and Santa Catalina territorial dispute between Colombia and Nicaragua includes the Raizal people. They are a local ethnic and racial minority. With an origin in European colonial past that encompassed slavery, migration and different cultures, the Raizal people have their own culture, including their own language—i.e. creole, and overall identity that makes them define themselves as different from the people in Colombia’s mainland.

While the legal and political status of indigenous peoples is in question in terms of territorial disputes, the Americas also include populations that were at one time settlers. These implanted populations encompass those who relocated either willingly such as the Falkland/Malvinas islanders or were forced like former African slaves in the archipelago of San Andres, Providencia and Santa Catalina—i.e. Raizal community.

Differences between islanders and Colombia’s mainland comprise religious discrepancies between Anglophone/Protestant and Hispanic/Catholic views. In fact, they are sociologically linked with the English and Creole-speaking community on the Nicaraguan coast. Controversially, there seems to be a dominant national vision overriding the local Raizal community by means of imposition by the Colombian state coupled with private sector interests.

More currently, with the Black Lives matter movement, Raizal’s claims for self-determination seem to be taking a more visibility domestically, regionally and internationally. Therein, national level organizations such as Proceso de Comunidades Negras (Black Communities’ Process, PCN) defend the right to political-organizational autonomy of the Raizal people.

NOTE:

This blog series introduces, explains and assesses issues pertaining territorial disputes in the Americas including law, politics, culture, history and religion. There will be new posts every Monday, Wednesday and Friday.

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Neo-colonialism and colonial mindset

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Monday 20th December 2024

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[1] See Jorge Emilio Núñez, Territorial Disputes and State Sovereignty: International Law and Politics London and New York: Routledge, Taylor and Francis Group, 2020.