The Right to Self-determination Under International Law

"Selfistans," Secession, and the Rule of the Great Powers

Milena Sterio

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136188602
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book proposes a novel theory of self-determination; the Rule of the Great Powers. This book argues that traditional legal norms on self-determination have failed to explain and account for recent results of secessionist self-determination struggles. While secessionist groups like the East Timorese, the Kosovar Albanians and the South Sudanese have been successful in their quests for independent statehood, other similarly situated groups have been relegated to an at times violent existence within their mother states. Thus, Chechens still live without significant autonomy within Russia, and the South Ossetians and the Abkhaz have seen their conflicts frozen because of the peculiar geo-political equilibrium of power within the Caucuses region.

The Rule of the Great Powers, which asserts that only those self-determination seeking entities which enjoy the support of the majority of the most powerful states (the Great Powers) will ultimately have their rights to self-determination fulfilled. The Great Powers, potent military, economic and political powerhouses such as the United States, China, Russia, Japan, the United Kingdom, France, Germany, and Italy, often dictate self-determination outcomes through their influence in global affairs. Issues of self-determination in the modern world can no longer be effectively resolved through the application of traditional legal rules; rather, resort must be had to novel theories, such as the Rule of the Great Powers.

This book will be of particular interest to academics and students of law, political science and international relations.

Part I

The theory of self-determination and the great powers’ rule

Part I of this book will explore the theory of self-determination and will explain how the great powers’ rule has come to dominate self-determination struggles and outcomes. Chapters 1 through 4 will thus demonstrate how the legal theory of self-determination has become dominated by the political phenomenon of the great powers’ rule.

Chapter 1 will focus on the theory of self-determination, its historical origins, and judicial underpinnings. This chapter will highlight the definition of the term “people,” relevant for the purposes of determining which entities can legally claim rights to self-determination. This chapter will also explore the distinction between internal self-determination, which provides for a form of autonomy for a people living within a larger mother state, and external self-determination, which may lead toward that people’s separation from the mother state. Chapter 2 will explore recent applications of self-determination struggles and will thus provide an overview of two significant cases underlying the theory of self-determination, the Aaland Islands case decided by a committee of jurists within the League of Nations in the 1920s, and the Quebec Secession case, decided by the Canadian Supreme Court in 1998. This chapter will also discuss self-determination issues within the context of two recent state collapses: that of the Soviet Union and that of the former Yugoslavia. In each instance, new states emerged once the larger mother states ceased to exist and, in each instance, the legal theory of self-determination could have provided one of the arguments for independence and statehood of the newly created states. Chapter 3 will compare the legal theory of self-determination with four other theories of international law: statehood, recognition, sovereignty, and intervention. Each of these four theories is somehow linked to self-determination issues, and the linking agent may be found in the great powers’ rule. This chapter will thus introduce the notion of the great powers rule, and will explain how it has affected statehood, recognition, sovereignty, and intervention, as well as how all of these have affected recent self-determination struggles. Finally, Chapter 4 will focus on the great powers’ rule itself. This chapter will define the great powers and will explore how the phenomenon has worked in the global arena: essentially, super-sovereign states (the great powers) dominate international relations and have become instrumental in shaping outcomes of recent self-determination struggles. This chapter thus introduces four novel criteria of self-determination, brought about by the great powers’ rule: a self-determination-seeking people must demonstrate that it has been severely oppressed by its mother state; that the mother state’s central government is weak; that it has been administered by some international or regional organization, such as the United Nations (UN) or the European Union (EU); and that it has garnered the support of the great powers. This chapter will conclude that the fourth criterion, the great powers’ support, will be outcome determinative. In other words, if it wishes to successfully exercise rights to autonomy and independence, any people seeking self-determination will have to obtain the great powers’ support. This phenomenon of the great powers’ rule is a political theory but has replaced legal criteria in the application of self-determination standards to various peoples around the globe.

Chapters 1 through 4 will therefore introduce the theory of the great powers’ rule and its application to recent self-determination quests. Part II will focus on case studies, which will demonstrate how the great powers’ rule has operated over the last few decades.

1	The notion of self-determination

It is for the people to determine the destiny of the territory and not the territory the destiny of the people.¹

Self-determination in international law is the legal right for a “people” to attain a certain degree of autonomy from its sovereign. As early as 1918–1919, leaders such as Vladimir Lenin and Woodrow Wilson advanced the philosophy of self-determination, the former based on violent secession to liberate people from bourgeois governments, and the latter based on the free will of people through democratic processes. Today, the principle of self-determination is embodied in multiple international treaties and conventions, and has crystallized into a rule of customary international law, binding on all states.

The principle of self-determination has a long history and has been used and discussed throughout the 20th century. It has evolved into a norm of customary law, and its contours represent a wide-ranging spectrum of alternatives for the minority group seeking to self-determine its fate. Thus, self-determination rights for a minority group may involve simply political and representative rights within a central state, on the one hand, or may amount to remedial secession and ultimately independence, on the other. This chapter will explore:

1	the history of the right to self-determination as it has evolved throughout the 20th century
2	the meaning of the term “people”
3	the distinction between so-called internal self-determination, involving various types of autonomy for the minority group within the larger mother state, and external self-determination, leading potentially toward remedial secession.

History of self-determination

Prior to World War I, international law did not concern itself with any discussion of self-determination for minority groups. Rather, once a group or a national movement succeeded in gaining independence from its mother state, other states would simply acknowledge the group’s statehood. This changed after World War I, at the Paris Peace Conference, where self-determination “was a guiding principle for statesmen who remapped central and eastern Europe.”² Thus, peace-makers at the conference decided to adopt the so-called principle of nationalities, whereby they would draw new borders along national lines.³ The seeds of the idea of self-determination coincided historically with the break-up of a major European powerhouse, Austria—Hungary, at the end of World War I. Austria—Hungary had been comprised of many different ethnic groups all living within the auspices of a large European empire. While the different ethnic groups were not exactly colonized, in the true sense of the word, their status and their rights depended entirely on their sovereign monarch, the Austro-Hungarian emperor, who could unilaterally decide to strip away a group’s rights or to favor one group over another. Once Austria—Hungary lost World War I and decomposed into a series of nation states, the idea of self-determination became appealing to thinkers such as Woodrow Wilson and Vladimir Lenin.⁴ However, it remained unclear whether a general norm of international law would develop from the ideas laid out at Versailles, or if this peace conference would remain a “case-specific exercise of great power diplomacy.”⁵ The latter proved to be true, when Woodrow Wilson’s proposal to include the principle of self-determination in the Covenant of the League of Nations was defeated.⁶ Moreover, as will be discussed later, two commissions appointed by the League of Nations in connection with the Aaland Islands status dispute determined that international law did not recognize a general right of self-determination, absent extreme circumstances when a minority group is denied any basic rights.⁷

After World War II, self-determination acquired the status of a legal right. However, the contours of that right were deeply embedded in the idea of decolonization: self-determination meant that colonized peoples had the right to freely determine their political fate. Outside the decolonization paradigm, as will be discussed later, the existence of any general self-determination rights has been controversial.

The principle of self-determination was first enshrined in a major treaty with the adoption of the United Nations Charter after World War II. In Article 1(2), the United Nations Charter provided that one of the purposes of this organization was “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.”⁸ The United Nations Charter thus envisaged self-determination, but did not define the concept or distinguish between various forms of self-determination. The Charter did not impose direct legal obligations on member states; rather, it contemplated that member states should allow minority groups to self-govern as much as possible. Under the Charter, self-determination did not translate into the right for minority groups to separate from sovereign mother states, or into the right for colonized peoples to achieve independence. Despite these limitations, “the fact remains that this was the first time that self-determination had been laid down in a multilateral treaty,” and “the adoption of the UN Charter marks an important turning point; it signals the maturing of the political postulate of self-determination into a legal stan...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of figures
• Acknowledgements
• Preface
• List of abbreviations
• Introduction
• Part I: The theory of self-determination and the great powers’ rule
• Part II: Case studies
• Bibliography
• Index