Africa, Belgian Thesis, colonialism, colonization, Decolonization, history of international law, independence, resolution 1514, resolution 1541, Sahwari Arab Democratic Republic, salt water test, Self-Determination, UN Charter, Western Sahara
Nineteen Sixty is considered a watershed moment for the anti-colonization movement: in this single year, seventeen African States were created or ‘decolonized’, obtaining independence from European colonial regimes. In a public address at the time, British Prime Minister Harold MacMillan noted that ‘winds of change’ were sweeping the African continent. The norms of international law followed suit: Resolutions 1514 (XV) and 1541 (XV) of the United Nations General Assembly were adopted in December 1960. Together, they form a fundamental part of the customary law underpinning the right to self-determination. At this anniversary of fifty years, it is useful to critically reflect upon this episode in the history of international law.
The Declaration on the Granting of Independence to Colonial Countries and Peoples, passed on December 14, 1960, recognized that “the peoples of the world ardently desire the end of colonialism in all its manifestations” and consequently affirmed that, “All peoples have the right to self-determination.” The United Nations resolved to assist Trust and Non-Self-Governing Territories (UN Charter, art. 73, i.e. subjugated colonial States) in their movements for independence by supporting the immediate transfer of all powers to the peoples of those territories. Indeed, the United Nations categorically condemned colonization. But this still begged the question – what exactly was colonialism?
One day after Resolution 1514, Resolution 1541 (XV) was passed – a more substantive document specifically requiring the transfer of all information (with regard to art. 73(e), UN Charter) about states to the peoples of those territories. However, in defining a colonial situation, Resolution 1541 introduced what has become known as the ‘salt water test’ or salt-water thesis. A colonial situation is “a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it” (Principle IV). Any subjugated entity geographically separate, by ocean or sea, qualifies as a colonial entity – hence the title, ‘salt-water’. Any internal domination or adjacent colonization – not geographically separated – did not count as colonial.
The constricted definition of colonialism was contested at the time by a more expansive notion. Peter Thornberry explains how the salt-water test came about in contrast to the more radical ‘Belgian Thesis’.1 Belgian representatives argued that a ‘Non Self-Governing Territory’ under Chapter IX of the UN Charter could have a meaning beyond ‘across-the-sea’ colonialism. For example, many indigenous groups of the Americas had territories within defined limits, and were homogenous peoples distinct culturally, linguistically and ethnically from the dominant society. This thesis failed to garner support from enough nations. Critics argued it would enable the fragmentation of countries by minority groups. Later one Belgian diplomat admitted it was a ploy to detract from the larger decolonization issue. Nevertheless, the problem still remained: many subjugated groups were excluded from the 1960 definition.
As mentioned above, the legitimation of emancipation struggles by international institutions, exemplified by Resolutions 1514 and 1541, coincided with the emergence of a host of newly independent nations. Countries followed the principle of uti possidetis juris, which holds that post-colonial borders should stay the same. This resulted in many internal political struggles. Today, Western Sahara’s legal status is still ambiguous – with competing claims from the Kingdom of Morocco and the Western Sahara-based Sahwari Arab Democratic Republic. When Spain left in November 1975, both adjoining states, Mauritania and Morocco annexed parts of its territory. The same year, an advisory decision was rendered by the International Court of Justice, sought by the UN General Assembly in December 1974. While a majority of judges in the decision found some legal ties to both Morocco and Mauritania, Judge Hardy Dillard offered this maxim, “it is for the people to determine the destiny of the territory and not the territory the destiny of the people.” Still today, in conflicts like that of Western Sahara, the limited 1960 definition only serves to murky the waters rather than offer a clear road to self-determination.
The salt-water test leaves much to be desired. Self-determination is still a problem in post-colonial states. One scholar asserts Resolution 1514 “purg[ed] the colonial taint from the letter of international law”, but this view does not consider the wider context.2 The importance of these resolutions must be considered in a nuanced way – not as a simply effervescent response of the international community to the liberation struggles of the global south, but instead as geopolitical posturing of Western powers using international legal instruments. Remnants of colonial discourse remains within United Nations institutions – art. 38 of the statute of the International Court of Justice, in listing the sources of international law, mentions the laws of “civilized nations”, thereby implicitly recognizing an uncivilized Other. In evaluating the development of international law and its norms, we must be wary of taking an approach which ignores the socio-political factors of the context. Resolutions 1514 and 1541 helped usher an important shift in the dialogue of international law but was a hesitant response to global events, not prosaic law-making on the part of the United Nations.
1. P. Thornberry, “Self-Determination, Minorities, Human Rights: A Review of International Instruments,” The Int’l and Comp. L. Quarterly, Vol. 38, No. 4 (Oct., 1989), 867-889.
2. N. Berman, “The International Law of Nationalism” in D. Wippman, International Law and Ethnic Conflict, Cornell UP, 1998, 39.