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CHAPTER III THE RULE OF LAW, DEMOCRACY, SELF-DETERMINATION AND HUMAN RIGHTS
General
Although the development of the concept of self-determination and that of human rights in the era of the United Nations go hand in hand (mainly through the mutual recognition both concepts receive in many of the same human rights instruments), it is proposed here (for the purpose of clarity), to trace, first, the development of the concept of self-determination in International Law; secondly, the linkage of the Rule of Law with the said concept; and thirdly, the internationalisation of the linkage.
Self-Determination
Historical Background
As to the origins of the concept of self-determination, there are many (and varied) opinions. There are those who feel that its origins go back to the Greek city states, with as its primary source the idea of self-government. 1 Others date the earliest beginnings from the Peace of Westphalia in 1648 when a limited principle of « religious equality » was given the sanction of international law. 2 Yet others would attribute the concept to Emperor Napoleon III who, as part of his ideological programme, embraced the principle of the « awakening of nationalities ».3 Winston Churchill (who would later play a role in the modem Toynbee Hellinism (1959) implies this throughout with Athens being the best example.
See also JM Kelly A Short History of Western Legal Theory (1991) 24-26.
- See Gross « The Peace of Westphalia 1648-1949 » 1948 American Journal of International Law20-24.
- See Woolsley « Two Treaties of Paris » 1919 American Journal ofInternational Law 81-83.
development of the concept) attributed the first practical implementation of the principle to the Italian nationalist ideologue, Mazzini.4
Others argue that the origins of the concept can be traced back to the doctrine of divine kingship, 5 upon which the relationship between the state and the subject was based from prehistoric times6 up till the 18th and 19th centuries. This doctrine held that the King not only derived omnipotent (or plenary7 ) powers8 from God, but also that he or she was the representative of the Supreme Being (or God) on earth. Thus the doctrine vested State sovereignty (including legislative, executive and judicial powers) in the King. 9 These absolute arbitrary powers entitled the rulers to make any law and impose any punishments they pleased. 10 The subjection of the people to arbitrary rule in this manner resulted in popular resistance against the system of divine kingship and demands for popular sovereignty. 11 Consequently, during the 18th and 19th centuries a number of monarchies were overthrown and replaced with republican governments, 12 that is, governments of the people by the people and for the people. 13 (Ironically, without overthrowing the monarchy, the same process played itself out in Britian.) The struggles for these republican (or popular) governments took the form of popular demands for the right to self-determination.
The two most striking examples of this were the French Revolution and the American Revolution. The latter can be traced back to the American Declaration oflndependence of 4 July, 1 776, which declared that governments derived their just powers from the consent of those whom it governed, and that whenever such a government becomes destructive to these ends, the people have the right to alter or abolish it. After the overthrow of the ancient regime, the French National Assembly further developed the concept of self-determination when it stated that: 14
« In the name of the French people the National Assembly declares that it will give help and support to all peoples wanting to recall their freedom. Therefore, the Assembly considers the French authorities responsible to give orders to grant all means of assistance to those peoples to protect and compensate the citizens who might be injured during their fight for the cause of liberty. »
The National Assembly’s doctrine of popular sovereignty further required the renunciation of all wars of conquest and contemplated annexations of territory to France only after plebiscites had been held in the said territories. 15
Although European Colonial powers denied African and Asian peoples the right to equality and self-determination,. these principles received qualified international recognition during World War 1. 16 On 27 May, 1916 President proclaimed that:
« every people has a right to choose the sovereignty under which they shall live. »
In his message to Senate on 22 January, 1917 President Wilson18 again stated that:
« No peace can last, or ought to last, which does not recognise and accept the principle that governments derive all their just powers from the consent of the governed and that no right anywhere exists, to hand people about from sovereignty to sovereignty as if they were property. »
In his Fourteen Points delivered to Congress on 11 February 1918 President Wilson proclaimed the principle of self-determination in definite and emphatic terms: 19
« National aspirations must be respected, peoples may now be dominated and governed only by their consent. ‘Self-determination’ is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril. »
In his Fourth Point Wilson made the principle of self-determination the basis of friendly relations among nations. 20
Upon his return from the Peace Conference President Wilson21 observed on 24 February 1924 that:
« the central principle fought for in the war was that no government or group of governments has the right to dispose of the territory or to determine the political allegiance of any free people. »
Finally, Wilson included the principle of self-determination in his first and second drafts of the Covenant of the League of Nations. The drafts required the contracting powers to agree that all future territorial adjustments would be pursuant to the principle of self-determination. To his disappointment this principle found no place in the final draft. The Allies accepted self-determination only insofar as it applied to the disintegration and dissolution of the German, Austro-Hungarian, Turkish and former Russian Empires. They had no intention of applying the principle to their own colonies and subject peoples as they still regarded them as objects of colonial expansion.22
Self-determination merely found indirect support in article 22 of the Covenant of the League of Nations23 by which a mandates system was devised as a compromise solution between the ideal of self-determination and the interests of the occupying powers. However, self-determination as a general principle did not form part of the Covenant and was therefore, for the duration of the League of Nations, a political rather than a legal concept. This was confirmed by the Leagues’ Council and its commission of rapporteurs in the Aaland Islands dispute (1920-1921) 24 even though certain autonomy rights were granted to the population concerned.25
CHAPTER I INTRODUCTION: ON THE PROBLEM AND THE METHODOLGY
CHAPTER II TOWARDS A DYNAMIC CONCEPT OF THE RULE OF LAW
2.1 English, American and South African interpretations:
a brief overview
2.2 International Law Interpretations
2.3 Conclusion
CHAPTER III THE RULE OF LAW, DEMOCRACY, SELF-DETERMINATION AND, HUMAN RIGHTS
3.1 General
3.2 Self-Determination
3.3 Development of International Human-Rights Law
CHAPTER IV THE RULE OF LAW AND COLONIAL ADMINISTRATION IN FOUR SOUTHERN AFRICAN TERRITORIES
4.1 General
4.2 Botswana
4.3 Southern Rhodesia (Zimbabwe)
4.4 South West Africa (Namibia)
4.5 South Africa
CHAPTER V THE ROLE OF THE INTERNATIONAL COMMUNITY IN DEFENCE OF THE DYNAMIC CONCEPT OT THE RULE OF LAW: LESSONS FROM ZIMBABWE AND NAMIBIA
5.1 Zimbabwe
5.2General
5.3Structures of Government
CHAPTER VI THE DYNAMIC CONCEPT OF THE RULE OF LAW IN SOUTH AFRICAN CONTEXT
6.1 General
6.2 The Birth of a New Constitution
6.3 Distinctive Features of the new Constitution
6.4 Enforcement Mechanism~
6.5 The Place of Public International Law in
6.6 The Dynamic Concept of the Rule of Law and the Current Constitution-making Process in South Africa
6.7Towards Ethnic Constitutionalism: Prospects and Obstacles General
BIBLIOGRAPHY
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CONCEPTS OF LAW AND JUSTICE AND THE RULE OF LAW IN THE AFRICAN CONTEXT
