Wednesday, November 14, 2007

Examining the right to self-determination...

It is very important for those interested in this subject to delve more deeply into it and perhaps conclude that some claims for self-determination may not be valid, at least under current international law. An illuminating article on this was written not long ago by Jonathan Charney, Self-Determination: Chechnya, Kosovo, and East Timor, 34 Vand. J. Transnat'l L. 455 (2001). He took up to analyze this very issue: the color spectrum of claims by groups for self-determination and how some may really not be valid.

'Validity' is an interesting concept. Who decides the validity of a claim? Isn't self-determination an inherent right of a group seeking it? How can the international community dictate whether one claim is valid over the other? Which actors in the international community would prevail? Aren't the minority groups in need of protection against the elites that dominate the international arena?

But as discussed on this blog earlier, the right to self-determination is proscribed by certain limitations, one of which is territorial integrity of a UN member. Thus, there is an opposing force, also recognized under international law. So, there are two forces clashing, and depending on the strength of each, one prevails over the other. For example, the Kosovo claim prevailed for various reasons, one of which was the geopolitical and global disillusionment with Communism. Yugoslavia, a former Communist state was no longer capable of containing the centrigufal forces within its territory. These forces had been fomenting even before Communism took hold in Europe. These were long-standing historic frozen volcanoes that erupted only now, at the end of the 20th century.

Chechnya's claim for self-determination did not meet the same success level for various historic reasons. But it is by no means a settled case. Chechnya will continue to be a problem for Russia for a long time... But Chechnya's location was different and thus affected its destiny. Every region in the world has its unique characteristics and historical balance sheet. People often ignore this but much too often geographic location dictates the fate of a group. Don't forget to look at the map of the world functionally...

Thus, the right to self-determination and its status in international law is far from clear and far from settled... Perhaps, the same can be said of all legal concepts (with some exceptions) in international law, because making and application of international law is not by a recipe, but trial and error...

It would be useful to begin from examining the origins of the right to self-determination: concepts of nationhood and decolonization and then follow the application of international politics and law in understanding its exercise.

(For more on this topic visit here for forthcoming publication by Martinus Nijhoff Publishers).

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