In “Self-Determination in Disputed Colonial Territories,” Jamie Trinidad presents a brilliant and succinct analysis of colonial self-determination in territories subject to a territorial dispute or that deviate from the normative framework of colonial self-determination.
The book begins with a thorough analysis of Paragraph 6 of the Declaration on the Granting of Independence to Colonial Countries and Peoples (UN General Assembly Resolution 1514). According to Paragraph 6, “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” This is the ‘order-based’ counterpoint to the emancipatory aspect of colonial self-determination contained in Paragraph 2: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The conventional interpretation of Paragraph 6 is that it protects the territorial integrity of the colonial territory, based on the principle of uti possidetis. According to this principle, a newly independent state inherits the borders of the administrative divisions of its former colonial territories, thereby ensuring the stability of the interstate system. This limits the right to colonial self-determination to the entire administrative unit rather than its subdivisions, with the intent of restricting the dismemberment of a Non-Self-Governing Territory by the former colonial power.
Unrelated to this book, it is worth mentioning that there is a serious flaw with the uti possidetis principle. Although intended to minimize interstate conflict, uti possidetis inflamed ethnic and secessionist conflicts in post-colonial states. By granting statehood to the dominant ethno-nationalist group in a multiethnic territory, secessionist wars and anti-secessionist repression became pervasive features of the post-colonial world order as the UN state system struggled to coexist with the nationalism it had engendered through decolonization.
However, this conventional understanding of Paragraph 6 has been repeatedly challenged since the Declaration was drafted. During the drafting of the Declaration, Guatemala proposed adding a new paragraph 7, which read: “The principle of the self-determination of peoples may in no case impair the right of territorial integrity of any State or its right to the recovery of territory.” Guatemala was undoubtedly concerned that the wording of the Declaration would compromise its claim to British Honduras (present-day Belize). The Guatemalan amendment received little support in the UN General Assembly, and it was ultimately withdrawn. However, this ‘irredentist’ interpretation of Paragraph 6 would again resurface with Indonesia’s claim to East Timor and Mauritania’s and Morocco’s claim to Western Sahara. Indonesia, Mauritania, and Morocco, although unsupportive of the Guatemalan amendment, would justify the annexation of East Timor and Western Sahara, respectively, based on pre-colonial sovereignty and an irredentist interpretation of Paragraph 6.
Does Paragraph 6 protect the current territorial integrity of Non-Self-Governing Territories through the principle of uti possidetis? Or does Paragraph 6, as Guatemala, Indonesia, Mauritania, and Morocco would subsequently argue, protect the territorial integrity of pre-colonial states?
Based on a thorough analysis of the travaux préparatoires of the drafting of Paragraph 6, as well as the ICJ’s Advisory Opinion on Western Sahara (1975), Trinidad argues that the drafters of Paragraph 6 had in mind the secessionist crises in West Irian and Katanga, and preventing the dismemberment of colonial territories by the former European colonial powers, not in righting colonial wrongs or restoring pre-colonial boundaries. This is consistent with the intertemporal scope of the principle of territorial integrity. If Paragraph 6 justified the reversion to some pre-colonial status quo ante, this would mean, as the Australian representative argued concerning Resolution 2353, “that nearly every European country, such being Europe’s history, could lay claim to some part of another European country on the basis of some earlier conquest or some earlier transfer of land,” thereby undermining the UN interstate system established after WWII.
The book then proceeds to examine exceptional cases of colonial self-determination, such as those involving third-party territorial disputes or that departed from the normative framework of colonial self-determination in Non-Self-Governing Territories.
Part 1 examines departures from the principle of uti possidetis, such as the Chagos Islands (separated from Mauritius by Britain), Mayotte (separated from the Comoros by France), and the Scattered Islands (separated from Madagascar by France). In each of these cases, the UN General Assembly condemned these violations of the uti possidetis principle and upheld the territorial integrity of the Comoros, Mauritius, and Madagascar. This contrasts with the seemingly non-contentious fragmentation of the British Cameroons, Ruanda-Urundi, the Trust Territory of the Pacific Islands, the Cocos (Keeling) Islands and Christmas Island, and the Gilbert and Ellice Islands. According to Trinidad, a legal doctrine of exception isn’t required to explain these exceptions to the general prohibition on the fragmentation of Non-Self-Governing Territories and the violation of uti possidetis. These exceptions were based on the consent of the affected colonial populations (e.g., Ruanda-Urundi) and/or justified by concerns regarding international order and stability (e.g., fearing a unilateral declaration of independence by the Ellice Islands if forced to merge with the Gilbert Islands). Consequently, the conventional interpretation of Paragraph 6 of the Colonial Declaration is correct.
Part 2 examines irredentist claims over Non-Self-Governing Territories based on legal ties of territorial sovereignty, as evidenced by treaties. This includes the Panama Canal Zone, Hong Kong, Macau, and Gibraltar. If a State can prove it has retained territorial sovereignty over a territory, such as by leasing a territory without relinquishing sovereignty, that State’s territorial integrity supersedes colonial self-determination. Once more, this is consistent with a conventional interpretation of Paragraph 6 of the Colonial Declaration.
Part 3 examines the dispute over the Falkland Islands. Trinidad argues that the Anglo-Argentine dispute centers on present-day sovereignty under customary international law rather than the relevance of pre-colonial ties. On the one hand, if Argentina can prove the Falkland Islands were an integral part of Argentina upon independence in 1816, then the Falkland Islands would no longer be entitled to colonial self-determination. On the other hand, if Britain holds valid territorial sovereignty over the Falkland Islands, then the Falkland Islands are a prima facie Non-Self-Governing Territory entitled to colonial self-determination. Therefore, the case can be understood according to a conventional interpretation of Paragraph 6 of the Colonial Declaration. The reason Trinidad singles out the Falklands Islands from the other territories in Part 2 is due to the contemporary emphasis on the ethnographic characteristics of the population, which have no relevance to the principle of self-determination, as self-determination is territorially, not ethnographically, defined.
Finally, the book examines the colonial enclaves doctrine, according to which colonial enclaves (defined as Non-Self-Governing Territories surrounded on at least three sides by another state) are not entitled to colonial self-determination. Focusing on a small number of anomalous cases, such as the French territorial possessions in India, Walvis Bay, the Portuguese Dependencies in India, and São João Baptista de Ajudá, Trinidad argues that there exists no consistent legal doctrine of exemption. Instead, the denial of self-determination in these Non-Self-Governing Territories is the result of political decisions, often driven by realpolitik.
For example, some scholars have proposed that colonial enclaves are not entitled to self-determination due to various reasons, including the territory’s small size and limited resources, threats from the contiguous state, and social and military considerations. While some of these characteristics might be true, many Non-Self-Governing Territories with these same limitations have exercised their right to self-determination and achieved independence. Compare East Timor, Kiribati, and Goa, all of which are examined in the book. Kiribati gained independence based on colonial self-determination in 1979. It has a total area of 811 square kilometers, a current population of 121,000, and a GDP of approximately $297 million. Likewise, East Timor gained independence in 2002 based on colonial self-determination. It has a total area of 14,950 square kilometers, a current population of 1.3 million, and a GDP of $5 billion. In contrast, Goa, which was forcibly annexed by India in 1961 in violation of Article 2(4) of the UN Charter, had a population of over 600,000 in 1961 and was substantially more economically developed than East Timor and Kiribati (its current GDP is $11 billion, more than double that of East Timor’s) and, at 4,000 square kilometers, was more than four times the size of Kiribati. Goa is larger and more populated than Kiribati and more economically developed than both East Timor and Kiribati but was denied the right to self-determination. No legal doctrine of exception can adequately account for this based on the demographic or territorial characteristics of these territories. Only realpolitik can account for the differing outcomes. As Milena Sterio argues in her book (aptly titled “Selfistans”), Great Power politics ultimately determine if a secessionist seeking movement succeeds or fails. This explains the world’s acquiescence to the denial of self-determination to Goa. When India annexed Goa, Portugal was diplomatically isolated due to its unpopular colonial wars in Mozambique, Angola, and Guinea-Bissau, while world sympathy was with colonial peoples and their leaders, such as India’s Nehru. Portugal refused to recognize Goa’s right to self-determination, for which it was condemned in the UN General Assembly. Thus, many socialist and former colonial states viewed India’s annexation of Portuguese Goa as a blow to colonialism and a continuation of the anti-colonial movement in the subcontinent. As Tom Ruys argues in his article on Goa in “The Use of Force in International Law” edited by Tom Ruys, Oliver Corten, and Alexandra Hofer, although the world might have disagreed with India’s method (forcible annexation), it supported the outcome (the expulsion of the Portuguese and Goa’s integration with India).
I was incredibly impressed with this book. I would highly recommend it to anyone interested in self-determination.
T. J. Petrowski 