Aad Kamsteeg writes in the Dutch newspaper Nederlands Dagblad: “I miss the recognition that, just as all peoples would like to have self-government in their own piece of land, this certainly applies to the Jews, who have been discriminated against and murdered for centuries. Where else could they exercise that ‘right of self-determination’ than in the country from which they were expelled by the Romans?”
Would Roma have the right to the Netherlands?
Roma are also a scattered and oppressed people. States in Eastern Europe enslaved the Roma and still commit pogroms against them today. Hitler gassed them too. Imagine if the Roma had been expelled from the Netherlands 2,000 years ago. Should we now pack our bags and hand over the country? No. Or should we make the Roma our bosses? No.
There are at least 650 ethnic groups. According to ChatGPT, depending on the criteria, there might be between a few hundred and a thousand ethnic groups in the world. And yet, the world is not being redivided into 1,000 countries. Why? Because the right to self-determination works differently than Aad Kamsteeg thinks.
History of the right to self-determination
States create international law in two ways: through treaties and through custom. Treaties immediately establish rights and obligations. They function like a light switch. Customary law develops through the repeated behavior of the majority: rights, duties, and legal rules evolve over time. Customary law operates like a light dimmer: initially, the rule is almost invisible, and eventually, it becomes undeniable.
In international law, there are two concepts called self-determination: the principle of self-determination and the right to self-determination. Both have evolved over time. After WWI, the victors planned to administer the German and Ottoman colonies as mandate holders. These mandates were intended to become independent according to the wishes of the local population. England administered the Mandate for Palestine and permitted the mass migration of European Jews there. At that time, the right to self-determination did not exist, so it could not grant the Jews a right to Palestine. While American President Wilson did speak of self-determination, it was a political principle, not a legal principle or a legal right. The right to self-determination was not recognized in 1920.
This right began to develop in 1945 with the UN Charter, which mentions “respect for the principle of equal rights and self-determination of peoples.” However, self-determination then had two meanings. The first later evolved into the principle of self-determination, signifying respect for the population’s wishes in determining territorial changes. The second was the right to choose one’s own form of government, which eventually became part of the right to self-determination within a country. More details follow.
If anything existed in that period, it would only be the principle, not a right. By 1947, the number of Jewish settlers had grown to 32% of the population. The conflict spiraled out of control, and the UN debated a possible partition of Palestine into a Jewish and Palestinian state. Iraq and Cuba declared the partition “illegal because it is inconsistent with the self-determination of peoples, an essential principle of the Covenant of the League of Nations. In fact, the plan would mean deciding the fate of a nation without consulting it on the matter, and depriving it of half the national territory which it had held for many centuries.” In fact, Cuba believed, it would also violate the UN Charter. Argentina also felt that the partition would violate the UN Charter: “the only just and legal solution would be one based on the self-determination of the Palestinian peoples.” Jamal Husseini, the representative of the Arabs in Palestine, said that the U.S. and Soviet Union, with their support for the partition, “had joined hands – prompted, they said, by humanitarian motives – to support the monstrous perversion of the principle of self-determination in Palestine.” Thus, if the principle of self-determination had been applied, an Arab-majority state would have emerged. Balfour acknowledged this: “The weak point of our position of course is that in the case of Palestine we deliberately and rightly decline to accept the principle of self-determination.”
The right to self-determination did not exist at that time. In 1955, countries negotiated two major human rights treaties: ICCPR (for civil and political rights) and ICESCR (for economic, social and cultural rights). Britain denied that the right to self-determination existed, calling it a “political principle.”
It was not until 1960 that the UN adopted the “Declaration on the Granting of Independence to Colonial Countries and Peoples.” It declared that “all peoples have the right to self-determination; by virtue of this right, they are free to determine their political status and to pursue their economic, social, and cultural development.” In 1965, the ICCPR and ICESCR were finalized, and both enshrined the right to self-determination. In 1970, states unanimously voted in favor of the “Declaration on the Principles of International Law,” which also affirmed the right to self-determination. Stephen Allen therefore correctly concludes that the right to self-determination had crystallized sometime between 1960 and 1970, as he discusses in his book “The Chagos Islanders and International Law.”
How does the right to self-determination work? When discussing rights, we ask three questions: who, what, and how?
Who has the right to self-determination?
Peoples have the right to self-determination. However, the term ‘people’ in international law signifies something different from a people in ethnology. Although the UN lacks a definitive definition, in practice, a people is viewed as the entire population within an administrative territory. Minorities do not possess a separate right to self-determination.
For example, consider Mauritius. Ethnically, the island comprises several peoples, such as Creoles from East Africa, Indians, Chinese, British, and French. However, in international law, there is only one people: the Mauritian people.
For example, under international law, the Jews in Israel are not considered a separate people, but part of the Israeli people, alongside Palestinians (Muslims or Christians), Druze, and other minorities. In 2018, Israel amended its basic law with the text: “The State of Israel is the nation state of the Jewish People, in which it realizes its natural, cultural, religious and historical right to self-determination. The exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.” This led to worldwide criticism of Israel, as according to international law, the right to self-determination within the state of Israel belongs not only to the Jews, but to the entire Israeli people (thus Jews + Arabs + Druze + other minorities).
The Palestinian people, comprising Arabs, Jews who will be permitted to reside in the future Palestinian state, and other minorities, exist only in Gaza, the West Bank, and East Jerusalem. Therefore, when one advocates for the Palestinians’ right to self-determination, it specifically refers to these Palestinians, not to those in Israel, who are a distinct group: the Israeli people.
Outside the states, there are peoples in non-self-governing territories: in Western colonies and mandates of the League of Nations. The mandates were previously German and Ottoman colonies. Palestine was also an Ottoman colony and later a mandate.
For non-self-governing areas, the “saltwater test” is applied: a territory is considered subordinate if it is separated by saltwater from the metropolis and has distinct ethnicity, culture, language, etc. Consequently, Samis, Eskimos, Aboriginals, Native Americans, Roma, and others do not possess an external right to self-determination because they reside within states. The Canadian Supreme Court, referencing international law, ruled that the Québécois do not possess a right to external self-determination leading to unilateral secession from Canada. This is why, in 1917, Jews could not have had the right to self-determination.
Peoples under military occupation, apartheid, and foreign domination also possess the right to self-determination.
In 2004, the International Court of Justice conceptually regarded the Palestinian occupied territories as a territory still awaiting decolonization, being a former Ottoman colony and mandate territory. The Court concluded that the Palestinians have the right to self-determination. This right also stems from their status as an occupied people and, possibly, from being subject to apartheid and foreign domination.
What does the right to self-determination mean?
This right has two meanings. Within a state, it signifies that the people are free from foreign interference and possess the right to participate in government decisions.
In all territories outside states, peoples possess the right to external self-determination. This entails the right of the people to freely determine their political status and pursue their economic, social, and cultural development. Additionally, peoples have the right to their natural resources.
How does one fulfil one’s right to self-determination?
Peoples can exercise their external right to self-determination in the following ways: by becoming an independent state, joining an existing state, associating with a state, or freely choosing another option.
So, a people can only exercise its right to self-determination within the territory where it already lives and has no right to a territory elsewhere. Therefore, peoples dispersed globally, such as the Jews before 1948 and the Roma currently, do not have the right to establish their own state.
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