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Self-determination : its evolution in international law and prescriptions for its application in the post-colonial context.

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Blay, KNB (1985) Self-determination : its evolution in international law and prescriptions for its application in the post-colonial context. PhD thesis, University of Tasmania.

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Abstract

Since 1945 the focus of the principle of self-determination has been on decolonization. The remarkable success of the application of the principle in the decolonization process has established it as a hximan right, a norm of modern international law and (arguably) part of jus cogens. With decolonization virtually completed, the question is whether self-determination as a right of all peoples should still be legally valid in the post-colonial era. In this research the conclusion is reached that international law neither recognizes nor prohibits selfdetermination as a right in the post-colonial context, and that the law is in this sense "neutral". The neutrality of international law on the subject does not prejudge the issue as to the desirability of a recognition of the right in the post-colonial context. A fortiori it necessitates a rational analysis of the role of self-determination in the context of decolonization and the potential of the principle in the pos.t-colonial setting with the view to regulating competing claims. To this end, the research analyses the function of self-determination in decolonization and arrives at the conclusions that, within that context, self-determination is a putative remedial right aimed at remedying a specific form of human relations manifested by domination, exploitation and (or) a general denial of human rights. In the light of this, the research advances the thesis that in the post-colonial context, where inter-communal relationships in a sovereign state are characterized by similar trends of domination and denials of human rights, the application of self-determination could be a useful remedy. It also indicates that, as an inherently democratic principle, self-determination could be used to settle certain types of territorial disputes. Using the relationship between human rights and self-determination as the normative basis for a community policy on post-colonial self determination, the research recommends a set of substantive and procedural prescriptions on the support for or rejection of specific claims. The first two chapters of the research deal with the emergence of self-determination as a right in international law and its application in the colonial context. Chapter Three discusses the relationship between self-determination and other norms of international law, namely territorial integrity, domestic jurisdiction and the use of force (within the context of decolonization). In all, the first three chapters define the confines of self-determination as lex lata. Chapter Four addresses the issue as to whether self-determination exists as lex lata beyond the context of decolonization and concludes that it does not exist. Chapter Five is devoted to a normative inquiry into the desirability of recognizing a right of self-determination in the post-colonial context. The chapter draws the conclusion that in view of the persistence of competing claims usually accompanied by conflicts of international dimensions, and in view of the relationship between human rights and self-determination, it is desirable to recognize the right, at least in cases that involve gross deprivation of human rights (e.g. genocide). Chapter Six is devoted to a discussion of separatist movements that seek a right of self-determination in the post-colonial context. In Chapter Seven, human rights as the normative basis for a community policy on post-colonial self-determination is discussed. On the strength of the discussion, recommendations are made as to which claims should be supported and which claims should be rejected. It is also recommended that as a means of expressing popular will, the principle of self determination could be useful in the settlement of territorial disputes that involve transfer of populations. Chapters Eight and Nine deal with the substantive and procedural conditions that must precede the support of a claim for self-determination in the post-colonial context.

Item Type: Thesis (PhD)
Additional Information: Copyright the Author
Date Deposited: 18 Jul 2011 02:01
Last Modified: 19 Sep 2012 06:20
URI: http://eprints.utas.edu.au/id/eprint/11391
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