Self-Determination in International Law

The right of peoples to self-determination is written into the founding documents of the international order. Two texts state the right, and two courts have explained its reach. Each is quoted below exactly, with what it says and what it leaves open.

The United Nations Charter, Article 1(2)

Article 1 of the Charter lists "The Purposes of the United Nations." The second purpose reads:

"To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;"

What it says. Self-determination of peoples is one of the purposes of the United Nations. The Charter pairs it with "equal rights" and makes respect for it the basis of "friendly relations among nations." The word is "peoples," not states.

What it does not say. Article 1(2) calls self-determination a "principle." It does not define "peoples." It sets out no procedure and no test for when a people may change its political status. The same chapter also protects existing states. Article 2(4) requires members to "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State." As the International Court of Justice later explained, the principle of territorial integrity is confined to relations between states.

The International Covenant on Civil and Political Rights, Article 1

The General Assembly adopted the Covenant on December 16, 1966, and it entered into force on March 23, 1976. Article 1 is the first article of the treaty:

"1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

"3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations."

What it says. Where the Charter speaks of a principle, the Covenant speaks of a "right." The right belongs to "All peoples." Its content is concrete: peoples "freely determine their political status." Article 1(3) places a duty on every state party to "promote the realization" of the right and to "respect" it. That duty is not limited to colonial powers. The text names states administering non-self-governing territories as included, not as the only ones bound.

The United States signed the Covenant on October 5, 1977, and ratified it on June 8, 1992, according to the United Nations Treaty Collection. Washington is therefore a state party bound by Article 1(3). At ratification it also declared "that the provisions of articles 1 through 27 of the Covenant are not self-executing." That declaration concerns how the Covenant operates inside American law. It does not alter the text of Article 1.

What it does not say. Article 1 does not define "peoples." It does not say whether "political status" includes independence from an existing state, or how a people would exercise the choice. Those gaps are where the courts come in.

The Supreme Court of Canada: Reference re Secession of Quebec (1998)

After Quebec's 1995 referendum, Canada's Governor in Council referred three questions to the Supreme Court. The second asked whether international law gives Quebec's institutions "the right to effect the secession of Quebec from Canada unilaterally," and whether "there is a right to self-determination under international law" that would give them that right. The Court answered on August 20, 1998.

What it held on international law. The Court said the right of self-determination "is normally fulfilled through internal self-determination," which it described as "a people's pursuit of its political, economic, social and cultural development within the framework of an existing state" (para. 126). It summarized the external right this way (para. 138):

"In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development."

It found that Quebec did not fit those situations and concluded that Quebec's institutions do not "possess a right, under international law, to secede unilaterally from Canada."

What it held on democracy. The Court held that a clear vote has real force. "A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize" (para. 150). A clear expression of that desire "would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire" (para. 88). The vote alone does not settle the terms: "The democratic vote, by however strong a majority, would have no legal effect on its own" (para. 151).

What it did not say. The Court declined to decide whether the people of Quebec are a "people." It wrote that "much of the Quebec population certainly shares many of the characteristics of a people," but that "it is not necessary to decide the 'people' issue" (para. 154). It did not set a number for a clear majority, which it called "a qualitative evaluation" (para. 87), and it left that judgment to "the political actors" (para. 153). It also did not say that a declaration of independence could never succeed. It wrote that the lack of a legal right "does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession," and that "The ultimate success of such a secession would be dependent on recognition by the international community" (para. 155).

The International Court of Justice: The Kosovo Advisory Opinion (2010)

On October 8, 2008, the UN General Assembly asked the International Court of Justice: "Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?" The Court gave its opinion on July 22, 2010.

What it held. "During the eighteenth, nineteenth and early twentieth centuries, there were numerous instances of declarations of independence, often strenuously opposed by the State from which independence was being declared" (para. 79). It found that "State practice during this period points clearly to the conclusion that international law contained no prohibition of declarations of independence." It rejected the argument that territorial integrity forbids such declarations, holding that "the scope of the principle of territorial integrity is confined to the sphere of relations between States" (para. 80). It concluded that "general international law contains no applicable prohibition of declarations of independence" (para. 84). By ten votes to four, the Court found that Kosovo's declaration of February 17, 2008 "did not violate international law" (para. 123).

The Court noted one limit. Where the Security Council had condemned declarations, the illegality came from their connection "with the unlawful use of force or other egregious violations of norms of general international law" (para. 81).

What it did not say. The question, it said, "does not ask whether or not Kosovo has achieved statehood" (para. 51). It was "not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence" (para. 56). It drew the distinction plainly: "it is entirely possible for a particular act ... not to be in violation of international law without necessarily constituting the exercise of a right conferred by it." On whether self-determination gives part of a state's population a right to separate, and on "remedial secession," the Court recorded "radically different views" (para. 82) and held that "it is not necessary to resolve these questions in the present case" (para. 83).

How a Later Court Read These Sources

In 2022 the UK Supreme Court applied the Quebec Reference to Scotland. An intervener argued that the right of self-determination required a reading of the Scotland Act that would let the Scottish Parliament hold a second referendum. The Court rejected the argument, holding that "the principle of self-determination is simply not in play here" (para. 88). It quoted the Quebec Reference at length and found that its "observations apply with equal force to the position of Scotland" (para. 89). The same paragraph recorded the UK's own submission in the Kosovo case that "international law does not, in general, prohibit secession."

Both national courts have read the external right narrowly. The UK Supreme Court also noted that the 2014 Scottish vote went ahead because a 2013 Order in Council gave the Scottish Parliament the power to hold it.

What the Sources Establish

Read together, the four sources draw a clear line between two questions.

The first question is whether a people has a legal right to independence that other states must honor. On that question the courts are cautious. The Supreme Court of Canada found that the external right arises, "at best," only in the situations it listed. The International Court of Justice declined to decide the matter.

The second question is whether a people may decide its status and declare independence. On that question the sources point the other way. The Covenant says all peoples "freely determine their political status." The International Court of Justice found that general international law "contains no applicable prohibition of declarations of independence." The Supreme Court of Canada held that a clear majority on a clear question confers "democratic legitimacy" and creates a duty to negotiate. It also recognized that the final outcome turns on recognition by other states, which "is likely to consider the legality and legitimacy" of the process.

What This Means for the Case of Texas

Texas is a nation. The documents above leave the word "peoples" undefined, and the courts have declined to define it. These sources do not hand any people a finished outcome. They describe a path.

That path runs through a vote. Article 1 of the Covenant puts the choice of political status with the people themselves, and Washington is a party to that treaty. The Quebec Reference shows what gives a decision weight: a clear majority on a clear question, followed by negotiation in good faith. The Kosovo opinion shows that general international law does not forbid a declaration of independence. The Quebec Reference adds that success depends on recognition by other states, which will weigh how the decision was reached.

For Texans, the lesson of international law is that the strongest claim is a democratic one. A clear decision by the people of Texas, reached openly and peacefully, is the kind of act these sources respect.

Sources

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