인민자결권의 현대적 의미와 그 한계

The Contemporary Meaning of the Self-Determination of Peoples and Its Limitations

The self-determination of peoples is considered to be one of most important principles of international law. It is enshrined in the UN Charter and numerous international instruments, and the ICJ has confirmed its status as a right of erga omnes character. The right of self-determination under international law served as the legal basis for independence of the colonial peoples, and it has been accepted that it has continued application and effect in the post-colonial era. However, precise nature and content of the right outside the colonial context remains elusive. That is mainly because the right to self-determination was originated from a moral or political concept that had no concrete legal meaning, and the international instruments through which the right has been developed have failed to provide precise definition of the right to self-determination. First of all, there is no consensus on the definition and scope of “people”, and the right to self-determination may have quite different meaning depending on the understanding of a “people”. Further, it is difficult to determine concrete and enforceable rights that emanate from self-determination of peoples. It seems that the right of self-determination has very limited application and meaning in the contemporary world. Many agree that the external aspect of the self-determination has lost much of its relevant in the contemporary world, especially because the territorial integrity of states has been accepted as a limitation to right of self-determination, and right to self-determination does not translate into the right to secede. However, there has been arguments that “remedial secession” should be possible in exceptional cases of gross human rights violation and denial of self-determination. On the other hand, the view that the right to self-determination has evolved into internal self-determination, which essentially means the right to democratic governance. However, a close scrutiny of these attempts to give continued relevance and meaning to the right to self-determination reveals that they lack state practice and opinio juris necessary for customary international law. When abused for political or nationalistic purposes, the right to self-determination can be a dangerous concept as the international community has recently witnessed through a series of events in Ukraine. That is why it is important to embrace clear meaning of the right to self-determination as is, in its limited sense without any embellishments.