Magoosh GRE

Review of Higgins, R. “Problems and Process: International Law and How We Use It”

| April 2, 2015

In Chapter Seven “Self-Determination” (1994), international law expert Rosalyn Higgins presents a comprehensive notion of how the concept of self-determination evolved historically and politically. Higgins provides a well argued view of how self-determination was transformed from a legal concept into historical and political notion in the 1950s and 1960s. Higgins tackles the main notions related with the concept of self-determination, such as territorial integrity, national unity and the fate of minorities in international law. The chapter provides an informed recommendation for understanding self-determination not only as a legal concept, but also as a complex political process, which involves the careful consideration of non-legal factors.

The chapter is divided in several sections – the first section deals with self-determination and independence, the second one with self-determination and its evolution as a human right. It looks at the connection between self-determination and colonialism, as well as minorities and the concept of national unity. The two sections also correspond to the two stages in the evolution of self-determination, as envisioned by the author.

Higgins tackles several main arguments. Her first conclusion breaks a mass perception that self-determination is connected to independence. She looks at the rights and obligations of the old colonial states. She also concludes that self-determination continues beyond the point of colonization . Secondly, Higgins points at territorial integrity and the stability of frontiers as an important element in the discussion of self-determination . Thirdly, Higgins is critical of the legal indiscrepancies, which do not entitle minorities as such to self-determination. Based on this observation Higgins concludes that self-determination of minorities is related with the “proper protection of minority rights” and that the latter are “discrete rights” . Each one of these arguments will be critically discussed.

Firstly Higgins provides a comprehensive overview of the historical evolution of the concept of self-determination and how the latter came to be incorporated as a legal right. She traces the legal specifics, as well as political contexts, in which different aspects of the concept were brought to the attention of the international community. Here Higgins needs to be given the credit for successfully defining self-determination as a concept far more advanced than decolonization. She gives a succinct and precise overview of how self – determination was transformed from a notion related to colonialism into a human right. She points at 1960s as the turning point, when self-determination started to be considered as a human right of dependent peoples, rather than the non-interference of one state into the matters of the other. Higgins addresses the Guinea-Bissau versus Senegal Case and Burkina Faso versus Mali Case, which mark the beginning of the transformation of self-determination, despite the fact that the decisions of the ICJ in both cases were still made in the context of colonialism. In the 1970s, the idea of self-determination began to exceed the confinements of Article 55 and Article 1 (2) of the UN Charter. They focus on higher standards of living and solutions to health that need to be provided by the colonial powers to those they ruled. The way self-determination evolved in the post-colonial period is especially noticeable when one looks at Article 76 (b), which describes self-determination as the obligation of the governing state to promote the political development and free political institutions in the colony. The enormous transformation that self-determination underwent was largely due to the fact that many African and Asian countries became members of the General Assembly of the UN . The strength of Higgins’ argument is that self-determination as a concept has stretched beyond colonialism and political independence, to cover peoples under foreign domination, which has made self-determination in legal terms widely applicable. In this sense Higgins provides a view of self-determination not simply as a right, but as an ongoing process, which unfolds in different socio-political and cultural contexts.

Secondly Higgins addresses the notion of territorial integrity and the stability of frontiers as an important element of self-determination . She asks the fundamental question: Is self-determination to be understood as limited to the exercise of rights within the inherited frontier? Here Higgins suggests that when it comes to self-determination, border disputes need to be settled by “neighborly relations and open frontiers, not by the demands for the redrawing of international borders” . In this sense she implies that self-determination does not require the re-definition of already existing borders, although it does not prevent the different parties from attempting to do so . With this statement Higgins reveals that human rights are inexorably interlinked with policy-making and political factors. More interestingly however, the observations made by Higgins reveal the incapacity of self-determination as a legal concept existing in the format it does today, to address the political issues stemming from its core. Furthermore, her argument reveals that self-determination has long evolved beyond the mere concept of territoriality, and that territorial boundaries are less important in a world, where nation formation is related with unquantifiable elements such as collective psychology, national consciousness and the sense of belonging.

Thirdly Higgins addresses a notion linked to that of territorial integrity – the problem with minorities. She asks whether minorities are entitled to the right of self-determination and who exactly is entitled to this right. Here Higgins concludes that minorities as such are not entitled to self-determination in the sense implied in this chapter. Therefore she argues that self-determination of minorities is related with the “proper protection of minority rights” and that the latter are discrete rights . This intricate connection however is only explained in terms of national governments and the way they treat minorities. Its most contemporary version is embedded in Article 27 of the International Covenant on Civil and Political Rights, which reads that in multiethnic states minorities “shall not be denied the right to enjoy their own culture, to profess and practice their own religion, and to use their own language”. Higgins argues that it is an obligation of national governments to protect the right of minorities and to provide them with a certain level of autonomy in cases of unfair treatment within national borders . The main problem with this suggestion is that it automatically renders the concept of self-determination useless when it comes to minorities, and does not address the main problem – that a series of ethnic conflicts in the 1990s have been caused because minorities have demanded self-determination within an already existing political entity (the Albanian uprising in Macedonia (2001), the First Chechen War (1994-6)). In this sense, self-determination does not stretch beyond minority rights when it comes to possible demands for secession or independence. Despite the elaborate argumentation on the role of national governments in minority protection, Higgins does not go on to explain the origins of this incapacity.

In this chapter Rosalyn Higgins provides a deeply reflective view of self-determination, and gives an honest and straightforward assessment of its legal capacity to address some of the most difficult problems in international law. Eloquent and well-organized, the chapter is a recommended reading for students and professors in international law on all academic levels, as well as for those interested in international development and international affairs. Although Higgins rejects the notion that under international law minorities can join their akin state or secede, she makes a powerful contribution with her vision of self-determination not only as a legal right, but also as a political process.

Endnotes:

 

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Bibliography:
Higgins, R. Problems and Process: International Law and How We Use It, Clarendon Press, Oxford, 1994

Category: Law Essay Examples