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).

Hardline on secession in the name of anti-terror...

In China the public has welcomed the death sentences handed down to five Muslim Uighurs from Xinjiang region. The Uighurs are Indo-European people who comprised 90 per cent of Xinjiang when the People's Republic of China was established in 1949. Since then they have been reduced to a 45 per cent minority in a region now dominated by Han Chinese. The control is in the hands of the latter in a region rapidly growing economically. The ethnic links of this group to Turkmenistan and other Central Asian former Soviet republics and the rapid dissolution of the Soviet Union prompted the Uighurs to seek self-determination, not welcomed and quenched at every step by Beijing.

China's official story is that these groups set up terrorist camps as of August 2005 in attempts to achieve their goals. There were also official promulgations linking these groups with Al-Qaida. How true are these official proclamations? Is this intolerance towards minority groups? or is it a hardline stance on secession? As far as the global war on terror, China and Russia through their partnership in the Shanghai Cooperation Organization, reiterate their commitment in that regard at every meeting. This is because both Russia and China have large Muslim populations, either as neighbors or as minority groups within their respective territories. (for more on this see here, and here)

As to the death sentences, China is perhaps taking advantage of its remoteness to Europe... Russia did not have that luxury and abolished the death penalty against the widespread public support for it...

Self-Determination, Secession and Nationalism

Article 1 (1) of the International Covenant on Civil and Political Rights adopted by the General Assembly on December 16, 1966 states:
All peoples have the right of self-determination...

Subsection 3 adds:
The States Parties to the present Covenant shall promote the realization of the right to self-determination and shall respect that right, in conformity with the provisions of the Charter of the UN.

Article 4 (1) furthermore states:
In times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed...
derogation from Article 1 is allowed.
(click here)

The right to self-determination is recognized in conformity with the Charter of the UN. Let us look at the Charter (here)

Article 2(4):
All 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 UN.

Article 1 (2) where the purposes are stated:
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.

In short, the right to self-determination is recognized with a caveat-- that its enforcement is in conformity with the Charter of the UN. Use of force and aggression against the territorial integiry of a UN member is prohibited. Looking back at history, almost every movement for self-determination and secession was accompanied with use of force fueled by nationalism, religious fervor or ethnic antagonism. Therefore, it is also well-known that throughout its existence the UN also sought to promote the status quo and in fact had a difficulty of recognizing secessionist newly-formed states. The case of Somalia is vivid. The break-up of that country into pieces has not even been updated on the map.
It makes me think, if we encourage the right of self-determination of peoples, which leads to use of force most of the time, aren't we also then encouraging use of force. Chechnya and the Western criticism of the way Russia has been handling it is an example. While it is indubitable that Russia has crossed many boundaries of human rights in that area, Chechen extremists and nationalists were not devoid of fault. They sought secession not by peaceful means but by use of force that invited cyclical reaction from Russia. While the right to self-determination is an important political right, in the real world it has become a source of much devastation. It is enough to examine the case of Yugoslavia.
It is also true, that the basis for the right of self-determination is freedom and independence of a nation. How could India not fight for its independence from the British? How could the US not do the same? Often, the oppression of the minority ethnic group by the majority is the precursor of the secessionist movement. But non-violent resistance stressed by Gandhi is the aspiration. This is the dilemma for the gatekeepers of international security: how to recognize the right to self-determination of peoples and not encourage use of force. Moreover, if we acknowledge the dangerous effects of nationalism for peace in the world, we must also acknowledge that often calls for self-determination veil precisely that-- nationalism.