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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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[img] PDF (Ch 1-5)
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[img] PDF (Ch 6 - appendix)
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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)
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Date Deposited: 18 Jul 2011 02:01
Last Modified: 11 Mar 2016 05:56
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