Self-determination and secession under international law.

Author:Nanda, Ved P.
 
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  1. INTRODUCTION

    Self-determination and secession pose major challenges for international lawyers--the former for its ambiguity and difficulties of operationalization and the latter for the uncertainty of its status, since it is neither permitted nor prohibited under international law. This essay is aimed at analyzing the concepts in a historical context. Sections II and III will provide the context, followed by a general discussion of self-determination. Section IV discusses the Canadian Supreme Court's opinion on Quebec's claim unilaterally to secede; Section V reviews two recent cases--Kosovo and East Timor. The concluding section recommends a few criteria to be used in determining the validity of claims to secede.

  2. THE CONTEXT

    President Bill Clinton's address on October 8, 1999, in Quebec, Canada, illustrated the dilemma for U.S. foreign policy on these issues. (1) President Clinton said that the United States would "oppose the breakup of Canada, a country with a relatively decent record of observance of human rights, especially those of the Quebecois...." (2) He contrasted the situation in Quebec with that in East Timor, where Indonesia's military and militia had slaughtered hundreds of innocent civilians and forced expulsion of tens of thousands of others. (3) He also explained the United Nations invasion of Serbia, where Serbs had oppressed a rebellious Kosovar population. (4)

    President Clinton considered questionable the assertion that every ethnic, religious or tribal group seeking secession should have the right to secede. For both political and economic reasons he implicitly rejected the creation of too many mini-states. He extolled instead the virtues of federalism, that is, the sharing of power between a central government and sub-national units such as states or provinces. I quote him at length:

    It seems to me that the suggestion that a people of a given ethnic group or tribal group or religious group can only have a meaningful communal existence if they are an independent nation-not if there is no oppression, not if they have genuine autonomy, but they must be actually independent-is a questionable assertion in a global economy where cooperation pays greater benefits in every area of life than destructive competition.... And so we have spent much of the 20th century trying to reconcile President Woodrow Wilson's belief that different nations had the right to be free-nations being people with a common consciousness-had a right to be a state.... When a people thinks it should be independent in order to have a meaningful political existence, serious questions should be asked: Is there an abuse of human rights? Is there a way people can get along if they come from different heritages? Are minority rights, as well as majority rights, respected? What is in the long-term economic and security interests of our people? How are we going to cooperate with our neighbors? Will it be better or worse if we are independent, or if we have a federalist system? ... And the practical knowledge that we all have that if every racial and ethnic and religious group that occupies a significant piece of land not occupied between others became a separate nation-we might have 800 countries in the world and have a very difficult time having a functioning economy or a functioning global polity. Maybe we would have 8,000-how low can you go? (5) President Clinton's rhetoric notwithstanding, his message was that the right to self-determination, perhaps resulting in secession, was appropriate in Yugoslavia and Indonesia, both authoritarian societies, but not in a democratic Canada.

    A year earlier, the Supreme Court of Canada had responded to a Reference from the government of Canada on whether Quebec had the right to unilateral secession under Canadian constitutional law and international law. (6) The advisory opinion rendered by the Court will be analyzed later, but it will suffice here to note the Court's conclusion that under international law neither the National Assembly, nor the legislature, nor the government of Quebec could claim the right to secede unilaterally from Canada. The Court observed that under the international law principle of self-determination of peoples, a right to secede arises only where "a people" is governed in a colonial setting, where "a people" is subject to alien subjugation, domination or exploitation, and possibly where "a people" is denied within the state of which it forms a part a meaningful exercise of its right to self-determination. (7)

    It should be noted that, despite President Clinton's clear statement, the United States finds it hard to espouse or implement a consistent policy on sub-nationalism, or the "right" of self-determination. To illustrate, there has been no support for the Tibetans seeking independence from China, the Kurds seeking to establish the independent state of Kurdistan, and people in Aceh, once an independent kingdom in Sumatra and now part of Indonesia, seeking independence from Jakarta for the past three decades, although each of these claims is based on purported flagrant human rights violations. Perhaps Russia's use of force in Chechnya has raised similarly difficult issues.

    And as to President Woodrow Wilson's declaration regarding the right of self-determination, as noted by President Clinton, one must recall Wilson's Secretary of State, Robert Lansing's, warning about the "danger of ... such ideas." In his often-cited words, "the phrase is loaded with dynamite. It will raise hopes that can never be realized. It will, I fear, cost thousands of lives.... What calamity that the phrase was ever uttered! What misery it will cause!" (8) The continuing validity of that statement, made originally in connection with the Versailles Peace Conference at the end of World War I, is self-evident, as the world community is daily confronted with ethnic and national self-determination claims.

  3. WHAT DOES SELF-DETERMINATION MEAN?

    A. Introduction

    The concept is multi-faceted. To illustrate, a claim may be to external self-determination (the establishment of a sovereign and independent state, the free association or integration with an independent state, or the emergence into any other political status freely determined by a people) and/or internal self-determination (the pursuit of a people's political, economic and social development within the framework of an existing state). Questions of federalism, devolution and autonomy can also arise. In one of its incarnations--in the colonial context--the principle was constantly and successfully invoked in the post-World War II period. The period of de-colonization attests to its dynamism. Since then, it has been increasingly invoked again as a right.

    It should be noted that the concept is still invoked at the United Nations by the Special Committee of 24 on Decolonization. At its October 1999 session, (9) the Committee advocated the right of self-determination by the people of the Non-Self-Governing Territories. In the general debate, most speakers urged the administering Powers to facilitate visiting missions and to address programs to promote the political, social, economic, educational and human development of the Non-Self-Governing Territories. They said that the right of the Non-Self-Governing Territories to self-determination remained unfulfilled, emphasizing unjust treatment of indigenous peoples and the slow progress toward self-government. (10)

    The representative of Spain said that the principle should not always be applied. (11) He was referring to the case of Gibraltar, which, he said, could not be a nation with sovereign rights, for decolonization there had been achieved through restoration of the territorial integrity of Spain. (12)

    Similarly, the representative of Morocco said that Western Sahara was not a problem of colonization but rather a question of territorial integrity. (13) While Morocco had no objection to the referendum in Western Sahara, it asserted that the rights of the whole population must be respected. (14)

    The difficulty in the non-colonial context is primarily one of reconciling the principle of "uti possiditis, ita possiditis" (rough translation: "you may keep what you had"), which protects the borders of colonies achieving independence with self-determination, if it is read to authorize secession. This is principally because of the sacrosanct quality of the principle of territorial integrity enshrined in the U.N. Charter and embraced by states and international intergovernmental organizations--the U.N. and regional organizations--alike.

    B. International Legal Pronouncements

    Article 1 of the United Nations Charter states the principle of "equal rights and serf-determination of peoples" as among the purposes of the United Nations. (15) At the same time, Article 2 enumerates as one of the principles, in accordance with which the U.N. and its Members are to pursue, that "[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." (16)

    As Professor Cassese states, the principle of self-determination has become so widely recognized in international conventions that it may be considered a general principle of international law, conferring on the people the right to self-determination. (17) Aside from the second paragraph of Article i mentioned previously, the United Nations Charter embodies the idea self-determination in Article 55, (18) and it is further enshrined in Article 1 of both the International Covenant on Civil and Political Rights (19) and the International Covenant on Economic, Social and Cultural Rights. (20)

    The principle of self-determination has also been addressed in several U.N. resolutions, declarations and conventions. To illustrate, the United Nations General Assembly's 1970 Declaration on...

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