Free People

Article 1 of both United Nations Covenants on Human Rights of 16 December 1966 (one on civil and political rights and the other on economic, social and cultural rights) states: "All peoples have the right to self-determination. By virtue of this right, they freely decide on their political status and freely pursue their economic, social and cultural development."

Therefore, international law places this principle of the right to self-determination of peoples at the forefront of the "catalogue" of human rights. that the United Nations has adopted and codified in two major multilateral treaties. But what is the real significance of this principle in the international community? A first observation is in order: it is very often invoked inappropriately, that is, with reference to situations to which it does not apply. In other words, the scope of application of this right is rather narrow. The very notion of a people is difficult to legally define.

The International Court of Justice, the principal judicial organ of the United Nations, has authoritatively affirmed that self-determination—in the practice of states and international organizations—applies only to peoples subject to a foreign government (external self-determination), primarily those subjected to colonial domination (now consigned to history), and then to the populations of territories conquered and occupied by armed force. This is The case of the territories occupied by Israel since the Six-Day War of 1967 is a case in point. Finally, the right is recognized for "ethnic-racial-religious" groups discriminated against so severely at the political and social level by the central authorities that they are in no way represented in government bodies (as happened to the black majority in South Africa during the apartheid era).

As the Court has emphasized, self-determination translates into the right of a people subjected to foreign domination to become independent and choose their own political and constitutional regime.

Having been formed after the Second World War, the principle cannot be traced back in time, except in the case of colonial domination. In short, the reference is This principle is correct with regard to Palestine or the former Spanish Sahara under Moroccan rule, while references to this principle to justify political claims of "independence" advanced for entities such as Quebec, Catalonia, or Scotland, not to mention the so-called "Padania," are clearly inappropriate. As for Quebec, a few years ago the Supreme Court of Canada denied self-determination to its population—which nevertheless constitutes a linguistic and religious minority—precisely because that minority was not discriminated against at the central political level.

The same applies to "Padania," which is only a geographical entity, even if it has its own traditions and has given birth to a political party (which has always represented ministers in the government). Therefore, speaking of self-determination and secession for it—as the late Professor Antonio Cassese authoritatively wrote—"is talking nonsense." Obviously, one could not even invoke the right to "internal" self-determination, which is the universal right to a representative, multi-party, and democratic system. This system is already fully and constitutionally implemented in Italy.

Our Constitution, moreover, is very clear on the matter. Article 5 proclaims that the Republic is one and indivisible, even if attentive to the needs of autonomy and administrative decentralization. Not even South Tyrol, a province characterized by a strong linguistic minority, and whose political representatives had called for secession for years, obtained it, because contrary to the Constitution.

In other words, the principle of the right to self-determination cannot be interpreted as suitable for endorsing the secessionist tendencies of more or less autonomous regions or provinces. This applies to the constitutional systems of states experiencing secessionist tendencies, such as the United Kingdom or the Kingdom of Spain.

On July 19, 2024, the Court inThe International Court of Justice has issued an advisory opinion on the legal consequences of Israel's policies and practices in the Occupied Palestinian Territories and the consequences of Israel's conduct for other States. The advisory opinion states that Israel's occupation of the Palestinian territories is a clear violation of international law. This constitutes a clear denial of the right to self-determination, as understood by the international legal order.

Israel considers the West Bank to be a disputed territory, whose future should be decided through negotiations, even though it has moved populations there to settlements to consolidate its position. Furthermore, it annexed East Jerusalem through actions not recognized internationally, while it has also maintained its independence. Israel withdrew from Gaza in 2005, while maintaining the blockade of the territory following the Hamas takeover in 2007. The international community considers all three areas to be occupied territories.

Ultimately, the Hague Court held that Israel's continued presence in the occupied Palestinian territories is illegal, deeming it contrary to the prohibition on the use of force in international relations and its related principle of the prohibition of territorial acquisition by force.

NP May '25
Edoardo Greppi