Topic: Territorial Integrity and Self Determination Approach of Internationa law

Submitted To: Mr. Pawan Kumar

Submitted By: Deep Narayan Jopat

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Table of Contents

Chapter - I: Introduction....................................................................................................................3

Chapter - II: Historical Context.........................................................................................................4

Chapter - III: Development...............................................................................................................6

Chapter - IV: The Inter-Relation.......................................................................................................8

Chapter - V: Conclusion..................................................................................................................10

Chapter- VI: Bibliography…………………………………………………………………….

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Chapter 1 Introduction:
The emergence of independent states is inextricably tied to the evolution of international law.
Standards and norms are intended to regulate the interactions between autonomous
governments. Two international law issues that are hotly debated are territorial integrity and
the right of states to self-determination.

Self-determination is the right of nations to choose their own political stance and degree of
sovereignty without outside influence or compulsion. Territorial integrity is the protection of
a sovereign state's territory from incursion by other states. Territorial integrity, then, has to do
with how sovereign independent nations interact with one another, whereas self-
determination has to do with how a sovereign independent state interacts with its citizens.

Territorial integrity and self-determination are examples of notions found in international

law. These ideas have a significant impact on society as a whole. The first is closely tied to a
fundamental order in interstate relations, whereas the second is a fundamental human right.

The self-determination principle, which encourages nations to freely choose their

international political status and sovereignty free from outside influence, is said to be at odds
with the territorial integrity principle. Since the people are what give states their legitimacy,
they should be allowed to pick their own borders and states. Therefore, the idea of self-
determination is at odds with the idea of territorial integrity, which supports the idea that
borders between states should be set in stone and recognised by the rest of the world in order
to deter aggression. The complete implementation of the self-determination principle
undermines the basis of territorial integrity.

In order to address the requirement for peaceful coexistence on a global scale without
interfering with any legitimate state or sovereign's right to exercise sovereignty, international
law has provided each its own dimension for expansion without conflict. When defining
international politics and law, both tenets are crucial1.

Research Question:

1. What are the boundaries of the ideas of territorial integrity and self-determination
under international law?

1
Edita Gzoyan; Lilit Banduryan, Territorial Integrity and Self Determination: Contradiction or Equality, Sept.
2011

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 2. How did the principles of territorial integrity and self-determination in international
law evolve into what they are now?
3. How are these values viewed by the global community and international law?
4. Do the two ideas conflict in any way that would hinder a full application of them?

Chapter 2 Historical Context:

Self-Determination

Next to have an impact on the concept of self-determination was the political theories of John
Locke and Jean-Jacques Rousseau. The primary philosophical aspect of the concept was that
each individual was free to determine their own course in life. This idea wasn't previously
recognised, though. Another part of Marxist theory is the notion that the working class had a
right to liberate itself from capitalism. The idea's evolution revealed its political significance.
The rebirth of independence was significantly influenced by the First World War. V. Lenin
and W. Wilson were the idea's two principal political backers. According to American
President W. Wilson, national self-determination is essential for maintaining international
peace. The historical political right to autonomy is recognised by every nation. 2 The English
word "self-determination" comes from the German phrase "Selbstbestimmungsrecht der
Volker." Self-determination is a relatively new concept in international law, both as a
political principle and as a legal presumption. The main means by which international law is
currently established are international agreements made in diplomatic conferences or,
infrequently, at the UN.

The concept of self-determination in politics is credited to the American Declaration of

Independence, which was adopted on July 4, 1776. Self-determination, according to President
Woodrow Wilson, is "the right of every people to choose the sovereign under which they
live, to be free from alien masters, and not to be transferred from sovereign to sovereign like
property," as he stated when he first introduced the concept to the League of Nations in 1919.

The mandate system was created after World War I, and self-determination was established
as a fundamental principle of international law. The mandate system served as a middle

2
Eric M. Amberg, Self-Determination in Hong Kong: A New Challenge to an Old Doctrine, 22 SAN
DIEGO L. REV. 839, 842 (1985).

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ground between colonialism and self-determination ideals. The mandate was based on Roman
law precedents which placed the property of persons unable to handle their own affairs under
the jurisdiction of a guardian. The title to the property remained in the ward.

According to Article 29 of its 1917 Constitution, the USSR's relations with other nations
were founded on "the equal rights of peoples and their freedom to determine their own
destiny." The idea of self-determination was incorporated into the Soviet Constitution at this
time, reflecting the acceptance of the concept during the ensuing 20 years. Additionally in
UN Charter Article 1. The term was expanded to cover the means through which the right
might be exercised. There are three methods to exercise the right to self-determination:
through integration, free association, or independence. Regardless of the technique employed,
it is clear that the "essential component" is the process itself.

A body of dependable state practice and a number of international treaties has helped to
strengthen, enhance, and give more tangible embodiment to the concept. The right to self-
determination may be exercised by those who are not permitted to do so, with the support of
other nations.

Territorial Integrity

In the years that followed the conclusion of World War I, political independence and
territorial integrity came to be seen as ideals. The League Members Pledge to Respect and
Preserve the Existing Political Independence of All League Members against External Attack,
according to the League Covenant. "All Members must refrain in their international dealings
from the threat of or use of force against the territorial integrity or political independence of
any state, or in any manner inconsistent with the goals of the United Nations, 3" the United
Nations Charter states. The definition of territorial integrity is confirmed by this. An further
notable international accord that is commonly highlighted is the Helsinki Final Act of August
1, 1975. "Participating States would respect one another's territorial integrity," it states. Thus,
they will refrain from taking any action that contravenes the purposes and principles of the
UN Charter and imperils the unity, political independence, or territorial integrity of any
member state, particularly if it entails the threat or actual use of force.

3
Conference on Security and Co-operation in Europe Final Act, Helsinki 1975, 1(a) IV, Territorial
Integrity of States

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The use of foreign force has always been intimately related to territorial integrity, ever since
it first arose in the context of international law. In other words, the ideal of territorial integrity
has historically been associated with the fundamental principle against the threat or use of
force rather than the total preservation of a state's territory in its whole. It only forbids the use
of force externally and rejects the use of force by one state to subjugate or overthrow the
government of another state. It does not unconditionally support the maintenance of territorial
integrity. It simply states that it is unlawful to use or even threaten to use external force
against political sovereignty and territorial integrity. In contemporary politics, there is a
tendency to characterize territorial integrity as a total restriction on the right to self-
determination.

Chapter 3 Development

Self Determination

With origins in the American and French Revolutions of the eighteenth century, the idea of
peoples exercising their right to self-determination organically evolved in response to the
political, linguistic, and ethnic demands of ethnic communities. The idea of self-
determination played a significant role in the transformation of the Austro-Hungarian and
Ottoman Empires into independent nation-states after World War I. The concept of self-
determination, however, wasn't formalized or brought within the jurisdiction of positive
international law until the United Nations Charter was signed in June 1945.

Fifty years after the Charter's adoption, the International Court of Justice affirmed the
following in the Case Concerning East Timor:

The United Nations Charter and court rulings both recognise the idea of self-determination,
which is one of the cornerstones of modern international law4.

International actions that integrate and broaden the notion of self-determination have
significantly clarified its nature, meaning, and application in current international law. These
Rules Include:

1. The United Nations Charter

2. The United Nations Covenants on Human Rights
4
Case Concerning East Timor, International Court of Justice Reports 102 (1995).

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 3. The Declaration on the Granting of Independence to Colonial Countries and Peoples
4. The Declaration on Friendly Relations
5. The Helsinki Final Act; and
6. The Charter of Paris and Document of Copenhagen

The self-determination principle has also been affirmed by the International Court of Justice
in a number of decisions, particularly in matters involving decolonization. In its advisory
opinion on Namibia, the Court endorsed the United Nations' definition of the right to self-
determination, noting that "the subsequent development of international law with regard to
non-self-governing territories, as enshrined in the United Nations Charter, made the principle
of self-determination applicable to all of them." Self-determination always includes deference
to the freely expressed choice of the peoples, with the two exceptions being when one is not
presented with a "people" and when "exceptional circumstances" render a plebiscite or
referendum unnecessary5.

Internal self-determination, or a people's pursuit of its political, economic, social, and cultural
development inside the framework of an existing state, frequently satisfies a people's right to
self-determination, according to the recognised sources of international law listed in the ICJ
Statute. As a result, the right to self-determination is made up of connected political,
economic, social, and cultural components. Due to its interdependence, each element can
only be utilized to the fullest extent by thoroughly comprehending and combining the others.
A legal principle that is applicable on a global level is self-determination. The right to self-
determination applies to any situations in which a person is being taken advantage of,
subjugated, or otherwise abused by others, regardless of whether they have statehood.
According to this fundamental principle, people are free to decide for themselves whatever
sovereign system they want to live in and what they want to fight.

5
Dajena Kumbaro, The Kosovo Crisis in an International Law Perspective - Self Determination, Territorial
Integrity and The NATO Intervention, Final Report 16 June 2001, North Atlantic Treaty Organisation,
Office of Information and Press

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Territorial Integrity

The United Nations Charter, specifically Article 2, paragraph 4, which limits the concept's
applicability to relations between states, codifies the principle of territorial integrity as a key
component of the international law system.

The concept of territorial integrity, if not the phrase itself, is as old as the sovereign state. The
right to self-determination and sovereignty is fundamental. It is among the foundational and
most significant ideas in international law. International law is essential in relation to the use
of force (jus ad bellum). The idea of territorial integrity forbids states from aiding boundary
adjustments or separatist movements in their neighboring nations. Based on the notion that
entering another zone is an act of aggression that warrants war, this thesis was developed
several centuries ago. Numerous battles, including the First and Second World Wars, have
been fought as a result of the territorial integrity principle being put into practice. States
ratifying the United Nations charter made it simpler to maintain territorial integrity.

The concept of territorial integrity as we know it today was established by the 1648 Peace of
Westphalia. The major objective of the state's foreign policy was the protection of its territory
because it was thought to be the main determinant of the state's security and prosperity.
Following World War I, the following principle was spelled out in numerous declarations and
treaties: "Members of the League promise to defend and protect the geographical integrity
and existing political independence of all League members from foreign invasion."

According to historical accounts, the idea was born out of the need for strong governments to
preserve the status quo in the international system. This idea is crucial to global politics. It is
important to emphasize the term "interstate," which describes relationships between
independent states rather than between the executive branch and the populace. It entails
protecting national territory from external attack. According to the 1960 United Nations
Declaration, which states that "any attempt to undermine the national unity or geographical
integrity of a state is incompatible with the purposes and values of the United Nations
Charter," both EU and NATO members and their neighbors came to border agreements in the
1990s.6 This put an end to territorial aspirations among member states. As is evident,
international relations are a major topic in every document pertaining to territorial integrity.
This claims that the idea of territorial integrity only applies between states and not within a

6
Thomas D. Musgrave, Self-determination and National Minorities, (Oxford: Clarendon Press, 1997), p.181.

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single nation. As a result, maintaining a state's territorial unity and integrity by its own
population would be viewed as a domestic issue and exempt from international law.

Chapter 4 Inter-Relation:

Territorial integrity and self-determination are examples of notions found in international

law. These ideas have a significant impact on society as a whole. The first is closely tied to a
fundamental order in interstate relations, whereas the second is a fundamental human right.
Despite the fact that they are both equally vital, the ideas must be used in various ways
depending on the circumstance. Territorial integrity and self-determination are mutually
exclusive concepts. In texts of international law, the principle of self-determination typically
coexists with the principle of territorial integrity, and the latter is considered as limiting the
application and interpretation of the former. The territorial integrity idea is at odds with the
self-determination principle, which holds that nations should be allowed to decide for
themselves their international political position and sovereignty without outside interference.
Since the people are what give states their legitimacy, they should be allowed to pick their
own borders and states. Territorial integrity, which advocates for defined borders between
nations that the rest of the world should recognise to discourage aggression, is in conflict with
the right to self-determination.

The concept of territorial integrity is the foundation of the Westphalian State structure, which
is represented in the United Nations Charter, conventional international law, and modern
international law regulations governing the use of force. At the moment, a lot of people are
challenging this paradigm. This point of view asserts that this worldview is out of date since
international human rights law, particularly the right to self-determination, is becoming more
significant. These viewpoints are primarily political in nature; therefore it is difficult to
understand how the concept of territorial integrity has been diminished legally. Some claim
that the importance of the territorial integrity principle has decreased in the era of
globalization. Most people who focus on international relations share this opinion. Although
few international attorneys would concur with it, the International Court has insisted that this
concept is "essential to the international legal order." 7 A state is not permitted to use force to

7
Vita Gudeleviciute, Does the Principle of Self-Determination prevail over the Principle of Territorial
Integrity, International Journal of Baltic Law; Volume 2, No. 2 (April, 2005).

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"recover" territory it claims because doing so would violate the territorial integrity of the state
that controls the contested region, according to the International Court.

State territorial integrity and self-determination are incompatible. The seventh paragraph of
the Friendly Relations Declaration, entitled "The principle of equal rights and self-
determination of peoples," states that nothing in the preceding paragraphs shall be interpreted
as authorizing or encouraging any action that would impair, totally or partially, the territorial
integrity or political unity of sovereign and independent States conducting themselves in
accordance with the principle of equal rights and self-determination of peoples.

The concept of self-determination conflicts with the idea of territorial integrity. The United
Nations General Assembly declared in resolution 1514 that "any endeavour, whether partial
or comprehensive, to undermine the national unity and geographic integrity of a country is
incompatible with the Purposes and Principles of the United Nations" (XV). As was
previously indicated, this is reflected in the Friendly Relations Declaration's reference to
"territorial integrity of any nation."

The concept of "peoples," which determines who has the right to self-determination, must be
taken into consideration in order to achieve harmony between the self-determination and
territorial integrity principles. Only when "peoples" refers to a state's complete population
does the concept of peoples' self-determination take precedence over the concept of
geographical integrity. It is recognised that everyone has the right to self-determination, and
that any obligations that result from that right must be upheld by the entire world community
(erga omnes)8.

The international community (states) is bound by the norm of territorial integrity when
interpreting and implementing the principle of self-determination into practice. The conflict
between a people's right to self-determination and a state's territorial integrity is a
complicated, subtle, and contentious international issue. The right to decide one's own fate is
significant to every human being, even though territory is one of a state's core qualities. Many
of the current global armed conflicts are rooted in dreams for independence. One of the most
fundamental human rights recognised by international law is the right of people to self-
determination. If free will is not exercised, the right to self-determination cannot be achieved.
8
Advisory opinion of the International Court of Justice on “Legal consequences of the construction of a wall
in the occupied Palestinian Territory” (09 07 2004, No.131).

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The basic objective of sustaining peace and security under international law must be taken
into consideration while evaluating these principles and other applicable provisions of
international law.

Chapter 5 Conclusion:

Since the beginning of the government, there has been self-determination. The emergence of
contemporary nations in Europe and the growth of popular nationalism elevated the concept
of self-determination as a political principle, but it wasn't until the First World War that the
right to national independence became known as the self-determination principle. Everyone
concurred that each nation had the freedom to establish an independent state and pick the
type of government that best suited it. The concept of self-determination is often used in
contemporary international law. This concept has influenced international relations and will
continue to do so. The significance of interstate territorial boundaries has decreased as a
result of globalization and the growth of the international community. The right to self-
determination should be a fundamental principle of international law. This is a universal,
unbreakable law that holds true both locally and abroad.

Even though the principle of territorial integrity is implemented in state-to-state relations and
the principle of self-determination is a right of peoples, the international community (states)
is bound by it when interpreting and applying the principle of self-determination.

The importance of self-determination and territorial integrity are not incompatible ideas.
While the latter refers to interactions between states, the former deals with the connection
between the state and its citizens. In international legal accords that address the subject, the
right to self-determination is typically assigned to the peoples. The concept of "peoples"
determines who is entitled to self-determination, which has a significant bearing on the
compatibility of the territorial integrity concept and the self-determination principle.

Bibliography
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 Secondary Sources:
Books:

1) Robert Jennings, Oppenheim's International Law (Part 2-4)

2) Malcolm Shaw, International Law
3) Ian Brownlie, Principles of International Law
4) Antonio Cassese, International Law

Articles:

1) Edita Gzoyan; Lilit Banduryan, Territorial Integrity and Self

Determination: Contradiction or Equality?
2) Eric M. Amberg, Self-Determination in Hong Kong: A New Challenge to an Old
Doctrine
3) Simpson, G.J., The Diffusion of Sovereignty: Self -determination in the Post-
colonial Age
4) Dajena Kumbaro, The Kosovo Crisis in an International Law Perspective - Self
Determination, Territorial Integrity and The NATO Intervention
5) Thomas D. Musgrave, Self-determination and National Minorities
6) Michael Wood, Territorial Integrity
7) Vita Gudeleviciute, Does the Principle of Self-Determination prevail over the
Principle of Territorial Integrity
8) Avishai Margalit and Joseph Raz, National Self-Determination
9) Deborah Z. Cass, Re-Thinking Self-Determination
10) Jan Klabbers, The Right to Be Taken Seriously: Self-Determination in International
Law

Websites:

1) Law Journal Library - HeinOnline (http://www.heinonline.org)

2) Official Document System of The United Nations (http://daccess-ods.un.org/)
3) General Assembly Resolutions - United Nations (http://www.un.org)

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