The right to self-determination is now widely considered to be a rule of customary international law and a peremptory (jus cogens) norm of international law.¹  The latter indicates that hierarchically, the right to self-determination would trump other rules of international law that do not have this jus cogens status. However, the exact scope and extent of this right under international law remains a contentious issue which has flared up again mainly as a result of the unilateral declaration of independence by Kosovo on 17 February 2008.

Although most of Europe as well as the United States of America recognized Kosovo as an independent state, many states refused to do so based on the fact that such a declaration is in violation of international law. On 17 October 2010 the United Nations General Assembly² submitted a request to the International Court of Justice (ICJ) in The Hague for an advisory opinion regarding the following issue: Accordance with international law of the unilateral declaration of independence in respect of Kosovo.³  More than 30 states submitted written statements regarding the legality of the unilateral declaration of independence and two written contributions by the authors of the unilateral declaration of independence of Kosovo⁴ were also submitted.  The public hearings were concluded on 11 December 2009 and after several months of deliberations the Court rendered its opinion on 22 July 2010.  The final conclusion of the Court was read out by ICJ President Hisashi Owada.

The Court pointed out that the question did not require the Court to determine whether Kosovo had a positive entitlement to declare its independence, but rather whether the declaration violated general international law. The Court held by ten votes to four that the unilateral declaration by Kosovo did not violate international law.

The main objections put forward by states opposing the independence of Kosovo included the following:

• Implied prohibition of unilateral declaration of independence under the principle of territorial sovereignty.  The court held that the principle of territorial sovereignty is limited to relations between states, based on General Assembly Resolution 2625⁵ and in the case of Nicaragua v United States of America and therefore not applicable to the right to self-determination by the peoples of a particular state.
• The Security Council has condemned declarations of independence in the past⁶.  The court pointed out that these declarations were condemned not based on their unilateral nature, but rather because of the circumstances surrounding the declarations, for example the use of force and therefore the aforementioned Security Council condemnations do not provide for a general prohibition of the unilateral declaration of independence.

The court concluded that it could not find any provisions under general international law that prohibit unilateral self-determination and subsequently declared that the unilateral declaration of independence of Kosovo was in accordance with international law. One can thus draw the conclusion, that under international law, there is no prohibition on the exercise of secession as a form of external self-determination.

The court held that the extent of the right to self-determination included the right to separate from a state. The most significant part of this judgment is the fact that the Court concluded that only other states can violate the territorial integrity of a state, and not people. The argument that the declaration of independence violates the territorial integrity was thus deemed invalid by the Court.  This has far reaching consequences for the uti possedetis juris rule under international law, which provided that borders had to remain the same after independence.  Since the Court has not seen the declaration of independence as a violation of international law, it follows that the uti possedetis juris rule has also been cast aside.

This development in international law once again fuelled the discussion on the right to self-determination of the Afrikaans speaking and/or Afrikaner population of South Africa, a group that form a clear minority in the country; subsequently lacking efficient and sufficient representation.  Under Article 235 of the Constitution of South Africa, the peoples of South Africa have an inherent right to self-determination when they share a common culture or language as provided for by further legislation. No such legislation has been enacted thus far.

The question that arises is whether this minority group has the right to territorial, cultural and/or linguistic independence under international law, and not whether such independence is plausible.  Allen Buchanan, a successful author on the right to self-determination and secession is of the opinion that groups have a general right to secede if said group has suffered injustices or where the constitution of a state grants the right to secede.

Various alternative proposals to secession have however been made, including Professor Marinus Wiechers’ proposal for provincial independence⁷ and Deon Geldenhuys’ proposal for  linguistic independence⁸ (using examples such as Belgium, Quebec and Spain).  These alternative measures ensure the protection of minority rights whilst avoiding the creation of a new state and instead creating autonomous areas that control cultural and language matters.

In my opinion, the Kosovo Advisory Opinion has proven that minority groups in South Africa should have the option (not the positive entitlement) to unilaterally declare their independence.  However, this should be done in accordance with international principles, in order to obtain recognition of other states, which is necessary for complete independence.

To conclude, the Advisory Opinion of the ICJ on the Kosovo matter has clarified that unilateral declarations of independence are not per se in violation of international law and therefore the minority group in South Africa would in principle have the possibility to declare their independence.  However, as was the case with Kosovo, this has to be done in a peaceful manner and in accordance with international law.