¹ For example, during the Falklands war, the prestigious Times of London provided the paper's readers with the following misinformation: “… the Argentine invasion is also in breach of Article 24 of the UN Charter, concerning the right of all peoples to self-determination.” The Times, Editorial of 21 April 1982, p. 13. Art. 24 deals with the functions and powers of the Security Council. And nowhere in the UN Charter are all peoples granted the right to self-determination.

² Toynbee, Arnold J., “Self-Determination”, The Quarterly Review, No. 484 (London, 1925) 319Google Scholar.

³ SirJennings, Ivor, The Approach to Self-Government (1956) 55–56Google Scholar.

⁴ See, in general, Pomerance, Michla, Self-Determination in Law and Practice: The New Doctrine in the United Nations (The Hague, Martinus Nijhoff, 1982) 9–14, 63–72Google Scholar.

⁵ Lansing, Robert, “Self-Determination,” Saturday Evening Post, 9 April 1921, p. 7Google Scholar.

⁶ Compare Stone, Julius, “Peace and the Palestinians,” (1970) 3 N.Y.U. Journal of International Law and Politics, 247–62Google Scholar, and Stone, Julius, Israel and Palestine: Assault on the Law of Nations (1981) 9–26Google Scholar, with Bassiouni, M. Cherif, “‘Self-Determination’ and the Palestinians”, (1971) 65 Proceedings of the American Society of International Law, 31–40CrossRefGoogle Scholar. See also Pomerance, Self-Determination, supra n. 4 at 22–23, 89–90, 92.

⁷ The Public Papers and Addresses of Franklin D. Roosevelt, 1938 volume (1941), 565Google Scholar. See also infra, n. 14 and accompanying text.

⁸ On the Wilsonian concept of self-determination, see Pomerance, Michla, “The United States and Self-Determination: Perspectives on the Wilsonian Conception” (1976) 70 Am. J. of Int'l L. 1–27CrossRefGoogle Scholar.

⁹ On the incongruity of the formula, see Kelsen, Hans, The Law of the United Nations (1950) 50–53Google Scholar. As Kelsen explains, either the principle comprises two very different principles—one relating to the equal rights of states, the other, to the self-determination of peoples —or since the singular term “principle” is used, “peoples” must be read as “states”, and the principle is translatable into “sovereign equality”.

¹⁰ Blum, Yehuda Z., “Reflections on the Changing Concept of Self-Determination” (1975) 10 Is. L.R. 511Google Scholar.

¹¹ Art. 2 (1).

¹² Art. 2 (4).

¹³ Art. 2 (7).

¹⁴ Cassese, Antonio, “The Helsinki Declaration and Self-Determination,” in Buergenthal, Thomas (ed.), Human Rights, International Law and the Helsinki Accord (1977) 84Google Scholar.

¹⁵ Para. 7 too refers to the need to respect “the sovereign rights of all peoples and their territorial integrity”. There has been some debate as to the referent of these paragraphs, and two divergent views have been put forward. According to one view, the sole aim of paras. 6 and 7 was to prevent future attempts to disrupt the territorial integrity of the newly independent or emergent States, not to protect past territorial claims. Its purpose was to avoid Katangas and Biafras, not to allow the reversion to a previous sovereignty, even if that sovereignty was extinguished by a colonial occupying power. Thus, the claims of Morocco to Mauritania, Ifni, and the Western Sahara; of Venezuela to the lion's share of present Guyana; of Spain to Gibraltar; of Iraq to Kuwait; of Guatemala to Belize; of Argentina to the Falklands (Malvinas); of India to Goa; of China to disputed territories in India and the Soviet Union — all would remain outside the purview of the injunction to maintain “territorial integrity”. See, e.g., Western Sahara oral pleadings, CR 75/31, 29 July 1975, pp. 29 ff. A second and more widely accepted line of interpretation places no such limit on the claims to territorial integrity which paras. 6 and 7 seek to preserve. According to this view, neither the texts of the paragraphs nor the principles of decolonization preclude the method of reversion to a former sovereignty, and this method, it is said, is a valid form of decolonization, legally and morally. See, e.g., the arguments of Professor Vedel on behalf of Morocco in the Western Sahara oral pleadings, CR 75/26, 24 July 1975, pp. 60–68. The UN has vacillated between the two interpretations. The Court and the individual opinions in the Western Sahara case did not exclude either approach to the “territorial integrity” issue, although as regards the Western Sahara, the overwhelming majority of the Court did not find merit in the Moroccan and Mauritanian claims to reversion of sovereignty. See Pomerance, Self-Determination, supra n. 4 at 44–47.

¹⁶ Jennings, R.Y., The Acquisition of Territory in International Law (1963) 83Google Scholar.

¹⁷ Héctor Gros Espiell, The Right to Self-Determination: Implementation of United Nations Resolutions, Study prepared for the Sub-Commission on. Prevention of Discrimination and Protection of Minorities, UN Doc. E/CN.4/Sub.2/405/Rev.1 (1980) 10 (para. 60).

¹⁸ Cited in Whiteman, Marjoric M., Digest of International Law (1965) vol. 5, p. 46Google Scholar.

¹⁹ See Mazrui, Ali, “Consent, Colonialism, and Sovereignty”, (1963) 11 Political Studies, 36–55CrossRefGoogle Scholar.

²⁰ See the comments of the United Kingdom representative, U N Doc. S/PV.1888, 6 February 1976, pp. 48–51.

²¹ The Indonesian annexation of Portuguese Timor appears to be well on the way to being accepted by the UN as a fait accompli, notwithstanding two early condemnations by the Security Council (S.C. Resolutions 384 [1975], 22 December 1975, and 389 [1976], 22 April 1976) and several strongly worded resolutions adopted by slim majorities in the General Assembly. See G.A. Resolutions 3485(XXX), 12 December 1975 and 31/53, 1 December 1976. Until December 1982, the Assembly continued to adopt annual resolutions on the subject, but the strong rebuke of Indonesia contained in the first two resolutions was considerably toned down in 1977 (G.A. Resolution 32/34, 28 November 1977) and 1978 (G.A. Resolution 33/39, 13 December 1978) only to disappear altogether by 1979 (G.A. Resolution 34/40, 21 November 1979). Moreover, the majority in favour of Assembly resolutions on East Timor dwindled steadily. Since 1976, the negative votes and abstentions outweighed the positive votes, and by an ever-increasing majority. Thus, whereas the 1975 resolution was adopted by a vote of 72 in favour, 10 against, with 43 abstentions, Resolution 37/30 of 9 December 1982 was adopted by a vote of 50 in favour, 46 against, and 50 abstentions. In the 38th Assembly session, for the first time since 1975, no resolution was adopted and the matter was deferred to the 39th Assembly session.

²² On Gibraltar and the Falklands, see infra, n. 25 and accompanying text.

^22a General Assembly, Official Records, 23rd Sess., 4th Ctte., 1799th Mtg., 29 November 1968, para. 62.

²³ See G.A. Resolutions 1951 (XVIII), 11 December 1963; 2068 (XX), 16 December 1965; 2185 (XXI), 12 December 1966; and the reaffirmation of these resolutions in G.A. Resolution 2350 (XXII), 19 December 1967.

²⁴ General Assembly, Official Records, 21st Sess., 4th Ctte., 1655th Mtg., 5 December 1966, para. 58.

²⁵ Since 1965, the General Assembly endorsed, at least by implication, the claims of Spain and Argentina, respectively, to Gibraltar and the Falklands (Malvinas). Correspondingly, the claims of the local inhabitants to self-determination have been denied; at most, their “interests” were to be taken into account and safeguarded, during the course of bilateral negotiations between the interested governments. On Gibraltar, see especially G.A. Resolutions 2353 (XXII) of 19 December 1967 and 2429 (XXIII) of 18 December 1968. The first contains, inter alia, a preambular reference to para. 6 of Resolution 1514 (on the preservation of territorial integrity and national unity); a rejection of a 1967 British-held referendum in the territory; and an invitation to the two parties to resume negotiations “with a view to putting an end to the colonial situation in Gibraltar and to safeguarding the interests of the population upon the termination of that situation.” In the second resolution, the Assembly declared the continuation of the “colonial situation” in Gibraltar to be incompatible with the purposes and principles of the UN Charter and with Resolution 1514, and it requested Britain to “terminate the colonial situation in Gibraltar” by 1 October 1969.

Similarly, with respect to the Falkland Islands, the Assembly characterized the existing situation as “colonial”, and it proposed, as the proper method of decolonization, “the peaceful solution of the conflict of sovereignty” between Argentina and Britain. In the bilateral negotiations, the “interests” of the population were to be borne in mind. The absence of diplomatic momentum in the negotiations was regretted by the Assembly; and Argentina was congratulated for its continuous efforts “to facilitate the process of decolonization and to promote the well-being of the population of the islands”. See G.A. Resolutions 2065 (XX), 16 December 1965; 3160 (XXVIII), 14 December 1973; and 31/49, 1 December 1976. (The last of these resolutions was opposed by Britain; the earlier two were adopted without dissent, though, with some abstentions.)

Against this backdrop, Argentina expected to elicit extensive diplomatic support for her 1982 invasion of the Falklands, since her actions were designed to give effect to what she viewed as a UN-endorsed right to reclaim her patrimony — a right which she was unable to realize through negotiations conducted on-and-off over a seventeen-year period. But when it came to the crunch, Argentina remained relatively isolated diplomatically even in the Third World. (The main exception was Latin America, where most, but not all, states backed Argentina). This relative diplomatic isolation was reflected in the Security Council debates. Many states from the Non-Aligned movement, while supporting Argentina's substantive claim to the islands (if not to the Falkland Islands' dependencies)., rejected the means to which Argentina had resorted — the use of force. See the Security Council discussions during April, May, and June 1982, in UN Docs. S/PV.2345–2350, 1–3 April 1982; S/PV.2360, 2362–2364, 2366, 2368, 21–26 May 1982; and S/PV.2371–2373, 2–4 June 1982. From a perusal of these discussions primarily, Thomas Franck isolates several considerations which may have led to the volte-face on the part of many Third World states in the spring of 1982. These include: the widespread distaste for the Argentine junta; the desire of African States to retaliate for Argentina's expressed reservations in 1981 regarding support for armed struggle by southern African liberation movements; the fear on the part of many states (especially the small and weak) of supporting a precedent which might leave them vulnerable to states coveting their territory; the felt need to uphold (at least occasionally) the principle prohibiting the use of force; and the failure of many states to take seriously the earlier Assembly resolutions on the Falklands which they had themselves supported. Franck, Thomas M., “Dulce et Decorum Est: The Strategic Role of Legal Principles in the Falklands War” (1983) 77 Am. J. of Int'l L. 114–22CrossRefGoogle Scholar. While the Argentinians took earlier Assembly resolutions “at face value, as a hunting licence”, many other states apparently felt “that those resolutions were just a lot of hot air”. Ibid., at 122. That “hunting licence”, incidentally, was at least partially renewed in the Assembly resolutions adopted after the Falklands War (G.A. Resolutions 37/9 of 4 November 1982, 38/12 of 16 November 1983, and 39/6 of 1 November 1984.). In the main operative paragraph of these resolutions, Britain and Argentina are requested “to resume negotiations in order to find as soon as possible a peaceful solution to the sovereignty dispute”. References to the Falkland Islanders (whose “interests” are merely to be taken “due account of”) and to the non-use of force are confined to the preamble. Fewer states endorsed the “hunting licence” on these occasions— over 60 states opposed the resolutions or abstained in the votes — and some of those who voted in favour may have done so in the secure knowledge that the local sheriff was not about to recognize the licence in any case. On the meager diplomatic support for the Argentinian invasion, see further infra, n. 59.

²⁶ For a more exhaustive treatment of the topic, see, especially, Stone, “Peace and Palestinians” (supra n. 6) and the works there cited. See also, for a discussion of various aspects of the problem, Feinberg, Nathan, Studies in International Law, with Special Reference to the Arab-Israel Conflict (1979)Google Scholar; and the works cited in n. 27.

²⁷ See, in general, Radley, Kurt René, “The Palestinian Refugees: The Right to Return in International Law”, (1978) 72 Am. J. of Int'l L. 586–614CrossRefGoogle Scholar. As for the terms of G.A. Resolution 194 (III) (a resolution unanimously rejected by the Arab States at the time of its adoption), see the discussion ibid.; at 599–603, in which Radley refutes the arguments presented by the Syrian ambassador to the UN, George Tomeh, , in “Legal Status of Arab Refugees” (1968) 33 Law and Contemporary Problems 116–20CrossRefGoogle Scholar. See also Stone, Israel and Palestine, supra n. 6 at 67–69, 128, 186–87; and Feinberg, Studies in International Law, supra n. 26 at 504–6, 571–76.

²⁸ Radley, “The Palestinian Refugees”, supra n. 27 at 604–8.

²⁹ See Western Sahara, Advisory Opinion, International Court of Justice Reports 1975, pp. 32–33.

³⁰ Idem.

³¹ Ibid., at 122–23. See also Pomerance, Self-Determination, supra n. 4 at 25–26.

³² See G.A. Resolution 2064 (XX), 16 December 1965.

³³ On the UN attitude ito Puerto Rico, see infra, n. 40 and accompanying text.

³⁴ On the 1969 “act of self-determination” in West Irian, see Pomerance, Michla, “Methods of Self-Determination and the Argument of ‘Primitiveness’” (1974) 12 Canadian Yearbook of International Law 38–66Google Scholar.

³⁵ See Sureda, A. Rigo, The Evolution of the Right of Self-Determination (1973) 51Google Scholar.

³⁶ There was a strong Papuan nationalist movement in the territory, which probably would have wished ultimately to join with, the Papuan kin in the other part of New Guinea and in neighbouring islands. See, in general, Justus van der Kroef, M., “Indonesia and West New Guinea: The New Dimensions of Conflict” (1970) 14 Orbis 365–400Google Scholar.

³⁷ Rigo Sureda, Self-Determination, supra n. 35 at 51.

³⁸ See G.A. Resolutions 2229 (XXI), 20 December 1966; 2354 (XXII), 19 December 1967; 2428 (XXIII), 18 December 1968; 2591 (XXIV), 16 December 1969; 2711(XXV), 14 December 1970; 3292 (XXIX), 13 December 1974; 3548 A and B(XXX), 10 December 1975; 31/45, 1 December 1976; and 32/22, 28 November 1977.

³⁹ G.A. Resolution 2229 (XXI), 20 December 1966.

⁴⁰ See supra, n. 25, and the resolutions there cited.

⁴¹ International Court of Justice Reports 1975, supra n. 29 at 33.

⁴² It is interesting to contrast the new approach with the actions of the General Assembly in 1953. The Assembly then recognized that the new “commonwealth” status represented a “free and democratic” expression of the will of the population of Puerto Rico people had “effectively exercised their right to self-determination”, and that the territory was no longer to be considered “non-self-governing”. G.A. Resolution 748 (VIII), 27 November 1953. For the most recent decisions of the Special Committee of Twenty-Four, see UN Chronicle, November 1982, pp. 53–54; ibid., January 1984, p. 83.

⁴³ See Principles VII and IX, in Annex of G.A. Resolution 1541 (XV), 15 December 1960; reproduced in Pomerance, Self-Detcrmination, supra n. 4 at 125. The requirements for “integration with an independent State” — which, unlike “free association”, was seen as a non-reversible act — were even more stringent. “The integrating territory”, Principle IX states, “should have attained an advanced stage of self-government with free political institutions”, and its population should be “acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage”. In contrast, no pre-conditions as to method are stipulated for exercising the independence option. Since it is viewed as the summum homim, independence, by whatever method, is generally deemed above suspicion. See ibid., at 31–34.

⁴⁴ See Report of Mr. Ortiz Sanz, the Secretary-General's Representative in West Irian, U N Doc. A/7723, 6 November 1969, Annex I, and especially paras. 49–75, 82, 138–82, 250–553. And see, generally, Pomerance, “Methods of Self-Determination”, supra n. 34 at 38–66.

⁴⁵ See Coleman, James S., “Togoland”, International Conciliation, No. 509 (September 1956), pp. 71–76Google Scholar; Rigo Sureda, Self-Determination, supra n. 35 at 319–20.

⁴⁶ Chang, King-yuh, “The United Nations and Decolonization: The Case of Southern Yemen” (1972) 26 International Organization 56–58CrossRefGoogle Scholar.

⁴⁷ See, e.g., Bokor-Szegö, Hanna, New States and International Law (1970) 33–34Google Scholar; Kim, Georgy, The Socialist World and the National Liberation Movement (1978)Google Scholar; Meissner, Rolf, “The Nation's Right of Self-Determination: A Basic Principle of Democratic International Law” (1964) 3 Germany Foreign Policy 469–73Google Scholar; Buchheit, Lee C., Secession: The Legitimacy of Self-Determination (1978) 121–26Google Scholar; Pomerance, Self-Determination, supra n. 4 at 39–40, 102–3.

⁴⁸ For a discussion of the Brezhnev Doctrine, see Franck, Thomas M. and Weisband, Edward, “The Johnson and Brezhnev Doctrines: The Law You Make May Be Your Own”, (1970) 22 Stanford L.R. 979–1014CrossRefGoogle Scholar. On the extended version of the Doctrine applied by the Soviet Union in Afghanistan, see Binder, David, “U.S. Sees Widened ‘Brezhnev Doctrine’”, International Herald Tribune, 11 February 1980, p. 2Google Scholar.

⁴⁹ Will, George, Newsweek International, 2 January 1978Google Scholar.

⁵⁰ As noted by the committee of jurists in the Aaland Islands case, where “geographical, economic and other similar considerations … put obstacles in the way of its [the right of self-determination's] complete recognition … a solution in the nature of a compromise, based on an extensive grant of liberty to minorities, may appear necessary according to international legal conception and may even be dictated by the interests of peace.” The Aaland Islands Question: Report of the Committee of Jurists, League of Nations, Official Journal, Special Supplement No. 3 (October 1920), p. 6.

⁵¹ Emerson, Rupert, “The Fate of Human Rights in the Third World” (1975) 27 World Politics 225CrossRefGoogle Scholar. Thus, “the problems of Biafra, including mass murders and a long civil war costly in human lives and misery, were regarded by the international authorities of Africa and of the world at large as a domestic concern of Nigeria in which they had no standing save to help to bring the war to an end, essentially on Nigeria's terms.” Ibid., at 226. Mass murders in Equatorial Guinea and Uganda were widely viewed among OAU members (with the most notable exception of Tanzania) as matters of domestic concern. See Weinstein, Warren, “Human Rights in Africa: A Long-Awaited Voice” (1980) 78 Current History 101, 130Google Scholar. However, in the aftermath of the almost simultaneous toppling of three African tyrants — Idi Amin of Uganda, Emperor Jean-Bedel Bokassa of the Central African Empire, and Macias Nguema of Equatorial Guinea — there were signs of some soul-searching among OAU members, who, for the first time in the history of the organization, adopted, in July 1979, a resolution on human rights. Moreover, the late President Tolbert of Liberia (who had just been elected President of the OAU) proposed the establishment of a special commission to revise the OAU Charter because, inter alia, the OA U principle of non-interference had become “an excuse for our silence over inhuman actions committed by Africans against Africans”. Keesing's Contemporary Archives, 21 September 1979, pp. 29840–42Google Scholar. And in January 1981, the OAU Ministerial Conference approved the African Charter on Human and Peoples' Rights. For text, see (1982) 21 International Legal Materials 59–68Google Scholar; and see the discussion by U.O. Umozurike (which includes a comparison between the African Charter and its European and American counterparts), in (1983) 77 Am. J. of Int'l L. 902–12CrossRefGoogle Scholar.

⁵² Emerson, “The Fate of Human Rights”, supra n. 51 at 225.

⁵³ New York Times, 27 November 1976, p. 23Google Scholar.

⁵⁴ Lansing, “Self-Determination”, supra n. 5 at 7.

⁵⁵ For a discussion of the legal status of self-determination today, and of the contention that self-determination constitutes a peremptory norm of international law; see Pomerance, Self-Determination, supra n. 4 at 63–72, 110–115.

⁵⁶ On the “permanent aggression” argument, see infra nn. 57 and 58. The assertion that colonialism is a “crime” was first made by the General Assembly in Resolution 2621 (XXV), 12 October 1970.

⁵⁷ For a fuller discussion of the Goa incident and doctrine, see Wright, Quincy, “The Goa Incident”, (1962) 56 Am. J. of Int'l L. 617–32CrossRefGoogle Scholar; Emerson, Rupert, Self-Determination Revisited in the Era of Decolonization (1964) 19–24Google Scholar; Pomerance, Self-Determination, supra n. 4 at 49–51.

⁵⁸ For Argentina's explicit invocation of the “permanent aggression” argument, see U N Docs. S/PV.2366, p. 56; and S/PV.2371, pp. 28–30. And see, in general, the Argentine contentions during the Security Council's debates in the spring of 1982 (see supra n. 25). On the “criminal” nature of the British presence in the Falklands, see, e.g., U N Doc. A/37/PV.51, 2 November 1982, pp. 7–10.

⁵⁹ The very absence of Argentine success in the military arena might have had much to do with the absence of success in the diplomatic arena. For unlike the Indian invasion of Goa, which Portugal had no means (and perhaps no will) to oppose, the Argentine invasion led to a full-scale military confrontation with Britain. Thus the resort to force had more serious consequences, and the relevant Charter principle could not be as readily ignored. On Argentina's failure to garner significant diplomatic support for its resort to force, sec supra n. 25; and see, in general, the article by Thomas Franck on the Falklands war, cited in n. 25.

One major difference between the Goa and Falklands invasions, not overly emphasized by states or writers, was that the Goans were transferred from the rule of a dictatorship to a democratic regime, whereas the Falklanders would have been forced to exchange the rule of a democracy for that of a particularly harsh dictatorship.

⁶⁰ See Pomerance, Self-Determination, supra n. 4 at 57–61; and see, especially, Stone, Julius, Conflict Through Consensus: United Nations Approaches to Aggression (1977)Google Scholarpassim.

⁶¹ Emerson, Self-Determination Revisited, supra n. 57 at 11; emphasis in original.

⁶² Schwarzenberger, Georg, “International Jus Cogens?” (1965) 43 Texas L.R. 477–78Google Scholar. While the majority of the UN often asserts that the exercise of self-determination is always a precondition of peace, state practice does not accord with this assumption. Individual states deem it necessary, at times, to suppress within what they view as their security zones the exercise of absolutely free self-determination, whether “internal” or “external”. In particular, states have sought to avoid the creation of hostile regimes on their borders. The Soviet Union has frequently followed this policy. So too has the other superpower, the United States. (Most recently, it has done so in Grenada. Depending on the perspective of the observer, the U.S. action might be viewed as the denial or the upholding of the Grenadians' right to self-determination. Similarly, U.S. support for anti-Sandinista revolutionaries and other U.S. moves to undermine the Nicaraguan government may affect the self-determination of the Nicaraguan population.) The proclamation by King Hassan of Morocco that “we shall never accept the existence on our southern frontiers of a regime which is ideologically different from those of Morocco or Mauritania” (Keesing's Contemporary Archives, 13 October 1978, p. 29257Google Scholar) falls in with earlier and contemporary state practice. So does, more compellingly, Israel's insistence on forestalling the creation of a PLO state between itself and Jordan.

⁶³ Toynbee, “Self-Determination”, supra n. 2 at 319.

⁶⁴ For illustrations of the tendency in recent years to dichotomize rights and obligations as between “national liberation movements” and their suppressors (or would-be suppressors), see Pomerance, Self-Determination, supra n. 4 at 110.

⁶⁵ On the “legal” propositions which have been put forward to rationalize this claim, see Stone, Conflict Through Consensus, supra n. 60 at chap. 6; Rostow, Eugene, “Review of John Norton Moore, Law and the Indo-China War” (1973) 82 Yale L.J. 829, 848, 852CrossRefGoogle Scholar; Pomerance, Self-Determination, supra n. 4 at 50–51. See also Natalino Ronzitti (who presents a “having-one's-cake-and-eating-it-too” thesis for national liberation movements), “Resort to Force in Wars of National Liberation”, in Cassese, Antonio (ed.), Current Problems of International Law: Essays on U.N. Law and on the Law of Armed Conflict (1975) 350–53Google Scholar.

⁶⁶ Slater, Jerome, “The Limits of Legitimization in International Organizations: The Organization of American States and the Dominican Crisis” (1969) 23 International Organization 71–72CrossRefGoogle Scholar.