I.
Introduction
Yves Beigbeder, an international scholar, once asked, “If
self-determination is an internationally recognized principle, why does it not
apply to the people of West Irian, East Timor, Tibet, Kashmir and other
territories, as it has been applied to other colonial territories?”
Today, there are an estimated 140 minority groups around the globe,
asserting their right to self-determination.
Yet despite powerful rhetoric on behalf of nation states, as well as
the United Nations, in support of the right to self-determination, “no state
has recognized a right to self-determination for a group within its own
territory.”
This “paradox of self-determination” has lead internationalists to
question the true meaning of self-determination in the post cold war era.
The question often asserted is whether the principle of
self-determination actually grants an affirmative right to minorities and
indigenous people to determine their own destiny,
or is it merely a case of “a noble word being abused?”
This paper will attempt to answer this question, placing special
emphasis on current state practices in this area.
The paper will be divided into two parts:
1) an overview that will focus on the development of the principle of
self-determination in the area of international law, and 2) an analysis that
will attempt to address the question posed, with particular focus on current
state practices.
II.
An Overview of Self-Determination
Although the idea of self-determination is by no means new, scholars
have yet to agree upon the actual source of its origin.
President Woodrow Wilson was responsible for elevating the principle of
self-determination to an international level when, in 1916, he included it in
his fourteen points.
Thereafter, while the League of Nations did not explicitly mention the
principle of self-determination in its covenant,
scholars agree that self-determination was “implicitly embodied in spirit in
the mandate system of the League of Nations as a sacred trust of civilization
. . . .”
In 1945, self-determination gained strong support from various nation
states who were under colonial rule, and it was eventually incorporated into
the United Nations Charter.
By the 1960s, the citing of the principle of self-determination had
become common-place, appearing everywhere from the International Court of
Justice advisory opinions,
to the charters of regional organizations,
to a significant number of major international conventions.
Today, the right to self-determination is considered jus cogens, and a
part of customary international law that imposes binding obligations on all
nation states.
It is considered not simply a principle of international law, but rather
an affirmative right of all peoples.
It is seen as a prerequisite to any genuine enjoyment of any of the
human rights.
But despite notable recognition of the right to self-determination,
there is still a great deal of disagreement among states, and among
international scholars, as to the scope and parameters of the right to
self-determination, as well as who,
exactly, is entitled to such a right.
For some, the right to self-determination is limited strictly to those
individuals who are under colonial rule or foreign occupation.
This is known as external
self-determination, and it gives those under the aforementioned
circumstances the right to conduct their own affairs without any foreign
interference.
Yet for others, the right to self-determination is not limited to those
under colonial rule or foreign occupation, but rather, it is given to all
peoples, including minorities and indigenous people who live within the
boundaries of an existing nation state.
This is known as internal
self-determination, which gives minorities and indigenous people the right
to determine their own destiny. However,
there is disagreement as to the scope of the right to internal
self-determination given to minorities and the indigenous.
Some argue that the right to internal self-determination encompasses
the right to secede.
Others assert that the right to internal self-determination is merely
the right of minorities and indigenous peoples to have a representative
democratic government chosen through a legitimate political process.
For the purpose of this paper, we will examine both the right to secede
and the right to internal sovereignty in our analysis of internal
self-determination.
III.
Analysis
External self-determination is the right of the people to be
independent and free from outside interference.
This right stems from the United Nations Charter, which forbids nation
states from interfering with the territorial integrity of other nation states.
This right was further embellished by the United Nations Declaration on
the Granting of Independence to Colonial Countries and People, stating that
“the subjection of peoples to alien subjugation, domination, and
exploitation constitutes a denial of fundamental human rights; it is contrary
to the United Nations Charter, and is an impediment to the promotion of world
peace and cooperation.”
The same notion was affirmed in various other United Nations
resolutions.
The right to external self-determination is applicable to both the
traditional colonial context and to any foreign domination of one state over
another. This paper will explore
both applications.
1.
Traditional Colonial Context
While the external right to self-determination was extremely popular
during the 1960s and 1970s (in Asia, Africa, and Latin America),
today, claims of a right to external self-determination in the colonial
context are virtually nonexistent. This
is due not only to the formal termination of colonization as we know it, but
also to the fact that today, “virtually all territor[ies] on earth [are]
within the jurisdiction of some sovereign state.”
Another contributing factor to the current decline in the number of
claims of a right to external self-determination in the colonial context is
the notion that most of the former colonies have accepted the boundaries as
their own legitimate boundaries, despite being drawn arbitrarily by their
former colonial masters. This
notion was expressed by the Prime Minister of Ethiopia at the Addis Ababa
Summit Conference of 1963, where the Organization of African Unity was
established, when he said, “It is in the interest of all Africans today to
respect the frontiers drawn on the maps, even though they were drawn by the
former coloni[z]ers.”
Today, claims of a right to external self-determination in reaction to
the effects of the traditional form of colonization are virtually nonexistent.
However, when we take into consideration the factors of foreign
domination, as well as interference by one state over another, suddenly the
number of these claims begins to escalate.
2.
Foreign Domination
Today, unlike claims of external self-determination in a traditional
colonial context, there is a rise in external self-determination claims
originating from foreign domination of one state over another.
However, the definition of foreign domination has been expanded to
include nontraditional forms of domination.
Today, foreign domination can be seen militaristically
(such as when troops of one country are stationed in another country), economically
(when one country or group of countries economically dominates another), and culturally
(a concept known to social scientists as cultural
imperialism),
where one country’s culture is imposed on another.
On the militaristic front, claims of a right to external
self-determination were recently made by various countries, including:
Lebanon, which resents the presence of Syrian and Israeli troops on its
soil;
Panama, which rejected the presence of American troops there;
and the inhabitants of the Japanese island of Okinawa, who demanded the
American troops stationed there to leave, following the rape of a
twelve-year-old Japanese girl.
On the economic front today, various third
world countries are beginning to voice concern over their lack of external
self-determination due to the economic domination by the developed countries.
This sentiment was, perhaps, most eloquently expressed by Gert
Rosenthal, General Secretary of the United Nations Economic Commission for
Latin America, when he stated:
"I think that in any relationship between weak and strong, strong have
assets on their side; this occurs at the national level in distributive
matters and it occurs in international relations among economically strong and
economically weak countries, and it occurs in the world order. . . .
Latin America and the Caribbean have to take their destiny in their own
hands and resign themselves to the fact that we live in an inequitable world
and that we have to function in this world . . ." .
This foreign economic domination, various states argue,
can take numerous forms: a very high level of debt,
ideologically-based conditional loans by the International Monetary
Fund and the World Bank,
or a monopoly over technological advances by the developed countries.
A current example of economic domination by monopoly over technological
innovation can be witnessed in Japan’s domination over its neighbors in
Southeast Asia, via its strategic control of technology infiltrating that
region.
On the cultural front, periodically there are claims of a lack of
external self-determination because of cultural domination of one country over
another. A right to cultural
self-determination can be traced back to various international treaties,
including the International Covenant on Economic, Social, and Cultural Rights
and the International Covenant on Civil and Political Rights.
For example, article 27 of the International Covenant on Civil and
Political Rights provides that “persons belonging to . . . minorities shall
not be denied the right, in community with the other members of their group,
to enjoy their own culture, to profess and practice their own religion, or to
use their own language.”
Today, claims of a right to cultural self-determination are being made
by various groups, including the French-speaking Walloons of Belgium, who
assert that their culture is distinctly different from that of the Dutch
Flemings,
and the German-speaking inhabitants of Alsace-Lorraine (France), who
feel justified in asserting a cultural self-determination right based on the
fact that language is one of the most significant elements of any culture.
While these claims of a right to external self-determination because of
foreign domination (whether militarily, economically, or culturally) are on
the rise, they often fall on deaf ears. The
international community, in practice, has not acted beyond the mere
reassertion of the right of people to be free from foreign domination, except
on rare occasions.
Perhaps more than any other aspect of the principle of
self-determination, internal self-determination has aroused the greatest level
of debate among nation states and international scholars.
Today, the vast majority of claims for self-determination are based on
internal self-determination. The
viability of that internal right to self-determination has clearly been
enhanced by the transition to majority rule in South Africa, and by progress
toward resolution of the Palestinian question,
not to mention the recent plebiscite in Quebec,
or the call for the establishment of an independent, all-black nation in North
America by the head of the Nation of Islam, Louis Farakhan.
But despite the high number of claims for internal self-determination,
controversy persists over the true definition of internal self-determination.
The two most common responses are that first, the right to internal
self-determination is merely the right to have a representative, democratic
government.
Second, internal self-determination encompasses the right of minorities
and indigenous people to secede from an already existing state, and form their
own independent state.
1.
Internal Self-Determination As The Right To Have A Representative
Government
The practice of assuming that where one finds internal
self-determination one will certainly find a representative government stems
from various international treaties. For
example, article 25 of the International Covenant on Civil and Political
Rights provides that:
[e]very citizen shall have the right and the opportunity, without any of
the distinctions mentioned in Article 2, and without unreasonable
restrictions: a) To take part in the conduct of public affairs, directly or
through freely chosen representatives; b) To vote and to be elected at genuine
periodic elections which shall be by universal and equal suffrage and shall be
by secret ballot, guaranteeing the free expression of the will of the
electors; c) To have access, on general terms of equality, to public service
in his country.
But despite the argument among those who assert that the
internal right of self-determination is limited to the right of having a
representative government, there still exist both theoretical and practical
limitations to the notion of limiting internal self-determination to having a
representative government.
On a theoretical level, there is disagreement as to what a representative
government truly means. Various
nation states have argued that a representative government does not
necessarily connote a western-style form of democracy, and thus, these nations
argue that their own form of government is the true, representative
government.
For example, the Russians have argued for over seventy years that a
true, representative government is a Communist form.
Also, various African nations have argued that a representative
government “need not be a democratic one.”
On the other hand, East Asian countries believe that “western-style
democracy is not applicable to East Asia.”
Furthermore, a large number of international scholars agree that a
western-style form of government “has not emerged as a binding,
international law, but it appears to be moving in that direction.”
Second, even if nation states accepted the notion that a western-style
government is the only way to achieve a truly “representative government,”
still, the western-style democracy is based on the idea that decisions are
made by a majority vote, which means that “the interests of the minority too
often are overridden by the interests of the majority.”
Therefore, since internal self-determination is often asserted by
minorities, having a democratic form of government does not necessarily
guarantee those minorities a genuine right to internal self-determination.
Today, the world over, minorities who are living under a supposedly
democratic government are still being deprived of the right to have a
representative government, thus denying them the right to internal
self-determination. Three cases
in point can be found among the Aborigines of Australia,
the Koreans in Japan,
and the Native Americans in the United States.
Yet even if we were able to overcome these theoretical limitations on
the right to internal self-determination as entitlement in a representative
government, some practical limitations still exist that would serve to
undermine such a right. First, in
order to achieve a truly representative government that is the basis for
internal self-determination, there must be free and fair elections which would
enable the people, especially minorities, to elect a representative
government. While the United
Nations, on numerous occasions, has stressed the importance of free and fair
elections,
nation states have managed to develop various techniques to ensure that their
elections are anything but fair and free, especially to the minorities who are
living within the boundaries of those states.
First, there is the technique of manipulating the voters’
eligibility, so as to exclude those whom the government does not want to vote.
For example, Cambodia designed its election laws in such a way that
they denied its minority Vietnamese settlers the right to vote.
This was accomplished by requiring, among other things, that at least
one parent be born in Cambodia.
This very same technique was implemented by the Namibian government to
exclude South Africans residing there from voting.
Second, there is the technique of forced movement of people in order to
manipulate an election. This can
take many forms. In
Bosnia-Herzegovina, the complete expulsion of potential voters from the
territory, known as ethnic cleansing,
was utilized.
Other forms include moving the potential voters into another territory
in the country in order to stack voter rolls, which occurred in Morocco,
and murdering potential voters, as has occurred in Rwanda.
The third technique used by states to prevent minorities from electing
a representative government is by allowing ballot
fraud, such as allowing people to vote more than once, destroying ballot
boxes, and threatening those who attempt to vote.
Perhaps the best example of recent ballot fraud was during the Haitian
election in June 1995.
Despite the active role which the United Nations plays in monitoring
these elections,
there still remains an embarrassingly large number of minorities throughout
the world who are deprived of the opportunity to participate in genuinely fair
and free elections.
Finally, even if these minorities were able to overcome all of the
above mentioned obstacles and were able to freely and fairly participate in
the election of a representative government, there is no guarantee that such
government would act according to their will.
2.
Internal Self-Determination as the Right to Secede
In the post cold war era, virtually all claims of a right to
self-determination assert the right to secede, whether those claims were made
by Chechnyans, Southern Sudanese, Quebecois, or Kurds.
Nation states are quick to point out that minorities do not have the
right to secede, since secession would not only violate their territorial
integrity guaranteed them by the United Nations Charter,
but would also be violative of the doctrine of
Uti Posseditis Juris. Adopted by the International Court of Justice in Bukrina
Faso v. Republic of Mali,
Uti Posseditis Juris requires the
respect of the pre-established borders and frontiers.
On the contrary, proponents of the right to secede argue that the
territorial integrity of a state, as well as the pre-established borders and
frontiers, have been arbitrarily drawn by colonial powers without regard to
the ethnic minorities living within them.
Proponents also insist that a genuine enjoyment of human rights must
include the right to secede, since “it
is for people to determine the destiny of the territory, not [for] the
territory [to determine] the destiny of the people.”
However, those in favor of the right to secede also point out that not
every group of minorities has such a right, and that each group must possess
the following characteristics in order to qualify for the right to secede:
1. a pattern of systematic
discrimination or exploitation against a sizable, self-defined minority; 2.
the existence of a distinct, self-defined community or society within a
state, compactly inhabiting a region, which overwhelmingly supports
separatism; 3. a realistic
prospect of conflict resolution and peace within and between the new [and] old
state as a result of the envisaged self-rule or partition; and
4. the rejection of
compromise solutions on the part of the central government.
These requirements, however, discriminate against the large number of
minority groups not in possession of them.
For example, Coptic Christians living in Egypt will not qualify since
they are scattered in small numbers across Egypt.
Thus, they lack the second requirement of compactly inhabiting a
region.
Also under these requirements, Quebecois, and similar groups, will be
deprived of the right to secede since they lack the first requirement of
“systematic discrimination or exploitation.”
This is due to the fact that their claim to secession is based solely
on common language and culture.
But even if a particular group possesses all of the criteria required
for secession, such a group would still have to overcome one more major
obstacle, namely, international recognition.
While it has been accepted that there are no binding rules in
international law that create an obligation for an existing state to recognize
the appearance of a new state. On
the contrary, recognition that may be considered premature may qualify as a
tortious act against the lawful government; it is a breach of international
law.
However, there are some internationally accepted standards that define
when an entity becomes entitled to recognition as a state.
For example, the Montevideo Convention on Rights and Duties of States
cites four criteria for recognition. First,
a defined territory; second, a permanent population; third, an organized
government; and finally, the capacity to conduct foreign relations. In addition, the
I.C.J. has set forth additional criteria which must be fulfilled in order for
a new state to achieve recognition.
But meeting all of these criteria does not necessarily guarantee
recognition. Rather, the decision
to recognize a new state, in practice, is often a political decision, often
made without regard to the new state’s legal qualifications.
As one scholar puts it:
The majority of states blend both law and politics into their decision to
recognize a secessionist movement. In
fact, from the empirical evidence that exists, a strong argument can be made
that subjective political considerations far outweigh objective legal ones
when states decide how to react to a secessionist claim of independence.
There is little evidence that governments shape their response to civil
war adversaries by reference to legal rules and procedures but rather shape
policy mainly on the basis of calculations of prudence and military necessity.
Because recognition often has a direct impact on whether a secessionist
movement actually becomes a new and lasting state, it should not be surprising
that other states try to use the tool of recognition to produce a favorable
outcome.
History provides a great deal of support for the notion that the
recognition of a new state is, for the most part, a political and self-serving
decision. For example, consider
“how the Soviet and American positions on the right of Eritrea to secede
flipped after a pro-western government in Ethiopia was replaced by a Marxist
one.”
In more recent context, some argue that had the Quebecois chose to
secede from Canada (during their recent plebiscite in October 1995), the
United States would have had to seriously consider the question of whether or
not it would recognize Quebec as a sovereign state.
“The United States’ recognition of a sovereign Quebec will depend
more upon the American national economic interest than on the legal basis for
extending recognition; the United States is apt to seek Quebec’s accession
on re-negotiated terms.”
Against that theoretical background, it is beneficial to explore the
current state practice with regard to recognition of a secessionist movement.
While the number of secessionist movements across the globe is
considerable (which seem to generate tremendous sympathy within the
international community),
international recognition was awarded recently to a mere two cases:
the Baltic States and the States of the former Yugoslavia.
In 1991, the United States of America formally recognized the Baltic
States as independent states.
Other countries soon followed suit.
During that same year, the three Baltic nations were admitted as new
members of the United Nations.
However, the recognition of the Baltic States was not perceived as a trend-setting
event, whereby the international community would suddenly be willing to
recognize secessionist movements. Rather,
the recognition of the Baltic States was described by President George Bush as
“a special case.”
This is due to the fact that those Baltic States were independent
states and members of the League of Nations before they were annexed by the
Soviet Union in the 1920s.
Thus, the recognition of the Baltic States is merely “a recognition
of a limited secession right applicable to illegally annexed territories,
rather than a general right of secession.” The same analysis
will also be applicable to the international recognition of the former Soviet
Republic in central Asia, since those republics were also independent states
prior to the Soviet annexation that occurred shortly after the Bolshevik
revolution.
The second recent act of recognition of a secessionist movement by the
international community is the case of Yugoslavia.
The European Community formally recognized Croatia and Slovenia on
January 16, 1992.
Four months later, the United Nations accepted the Republics of
Slovenia, Croatia, and Bosnia-Herzegovina as official members.
For some, such recognition is particularly significant because, outside
the colonial context, it represents the first time that a wide-spread
international state practice has favored secessionist movements still engaged
in armed struggles for independence.
For others, however, such recognition is not necessarily a recognition
of secessionist movements per se. On
the contrary, it is international recognition of “state dissolution rather
than secession.”
Such a distinction is crucial, since international recognition of a new
state will depend, for the most part, on the question of whether this new
state has emerged as a result of the disintegration of an old state, or merely
as a result of a meritorious secessionist movement attempting to secede from
an already existing state. While
the Arbitration Commission on Yugoslavia seems to acknowledge that Yugoslavia
was actually dissolving, not that the republics were seceding,
some scholars insist that
because this dissolution was marked by many unilateral declarations of
independence, and given the fact that the socialist republic of Yugoslavia was
brought to an end by only Serbia and Montenegro, rather than by a conference
of all republics (as was the case with the Soviet Union), this process can be
better described as a series of secessions . . . .
Thus, while there is no clear answer as to whether the
new, emerging states in the former Yugoslavia have emerged as a result of a
disintegration of an old state, or simply as a result of genuine secessionist
movements that were successful in gaining independence, the international
community remains divided as to when a particular secessionist movement is
entitled to recognition.
Finally, even if the secessionist movement were able to gain
independence and international recognition, there still remains the very real
possibility that the former parent state will try to exercise control over the
newly independent secessionist movement.
“A secessionist movement cannot be successful in its internal aim if
the parent state retains control over substantial military forces within the
secessionist state, and insists on having effective control over its policies
and laws, even if such control is only exercised sparingly.”
A case in point is that of the former Soviet Republics in central Asia.
Despite their new-found independence, Russia is still in control, both
militarily and economically. This
situation has lead some scholars to question whether secession is truly the
ultimate prize in the fight for self-determination.
IV.
Conclusion
The right of self-determination has long been recognized as an
indisputable prerequisite to any genuine appreciation and enjoyment of human
rights. It is a positive, legal
obligation established by customary international law, multinational and
bilateral treaties, including the United Nations Charter, in addition to
various advisory opinions articulated by the International Court of Justice.
It has been advocated for by leaders of great stature, such as Woodrow
Wilson, to more obscure minority groups, such as the South Sudanese.
Yet, despite the popularity of the principle of self-determination, a
great deal of ambiguity as to its scope and breadth continue to undermine its
true effectiveness as an affirmative right for those who are searching for a
means by which to determine their own destiny and future.
For those who assert external self-determination as a means for
achieving freedom from foreign domination, their screams consistently fall on
deaf ears. State practice has
barely recognized self-determination in the context of economic or cultural
domination of one state over another. At
the same time, the end of the colonization era has brought with it an end to
all self-determination claims in the colonial context.
For those who assert internal self-determination as the right to have a
representative government, despite some encouragement from the international
players, they continue to be short changed.
Nation states argue their own form of government is the only true
example of a representative government, or create tremendous obstacles
intended to prevent those minorities from electing their own representative
government, such as the forced movement of potential voters, election fraud,
or even mass murders.
However, those who asserted that internal self-determination entitled
them to the right to secede faced the most challenging obstacles of all.
They not only had the obligation to demonstrate that they fit the
definition of a secessionist movement, but they also had to provide enough
political and economic incentives to other international players to achieve
recognition. Even after
recognition has been granted, there is no guarantee that the mother state will
not try to control them once again.
Recent state practice indicates that international recognition of
secessionist movements takes the form of sympathy,
rather than true diplomatic recognition.
Over the years, a number of secessionist movements were able to secede,
but failed to gain recognition. Examples
include Biafra, in Nigeria, and Katanga, in Congo. But for those
fortunate enough to earn this recognition (namely the Baltic States and former
Yugoslavian Republics), they are classified as special
cases. This distinguishes
them from the classical secessionist movements.
For example, the Baltic States were once recognized as independent
states before the Soviet annexation. In
addition, the former Yugoslavian Republics were, perhaps, recognized not as a
secessionist movement, but as new states that emerged as a result of the
disintegration of an old state.
Today, thousands of people are killed in their search for the illusive
goal of self-determination. From
Chechnya to South Sudan, and from Yugoslavia to Kurdistan, their search has
lead them to a dead-end road full of obstacles, resentments and a lack of
recognition. But these people
continue to put their lives on the line, hoping that those nobel
words of self-determination amount to much more than political rhetoric.
So they continue to die, hoping that maybe, there is a genuine right of
self-determination.
