The secession of Montenegro, the
consequent possibility of Kosovo’s independence and the related
cases of the self-proclaimed republics in the CIS territory have
made topical again the old problem of a nation’s self-determination
right, more precisely, the possibilities and the frameworks of its
application. No need to mention how topical this problem is for the
Kurds, who have always regarded as a curse the fact that their
ethnic territory is artificially divided among four alien states.
The UN-proclaimed self-determination right is often contrasted with
the other UN-proclaimed principle — territorial integrity — and many
people say that there is a fatal and insolvable contradiction
between them. However, this contradiction is absolutely far-fetched
– something you will clearly see if you just read several relevant
documents.
The territorial integrity principle is formulated in point 4,
article 2, UN Charter, which says: “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
United Nations.” As regards the self-determination right principle,
it is clearly defined in the Declaration on Principles of
International Law: “By virtue of the principle of equal rights and
self-determination of peoples enshrined in the Charter of the United
Nations, all peoples have the right freely to determine, without
external interference, their political status and to pursue their
economic, social and cultural development, and every State has the
duty to respect this right in accordance with the provisions of the
Charter.”
As we see, the territorial integrity principle is meant to protect a
state from foreign aggression and is not and cannot be contrary to
the self-determination right principle. The modern theory of state
is based on the idea of a nation’s sovereignty and human rights’
priority. This theory does not recognize the state as a
self-sufficing value, some Leviathan an individual should submit
himself to. The state is a technical mechanism used by society for
serving the interests of its individual members. If some territorial
group refuse to stay within some state, there are no clear arguments
that could justify the use of violence again them. In such cases,
one often uses terms “national unity” and “territorial integrity”
without explaining: 1) if one can term as “national unity” a
situation when status quo is preserved by systematic violence by one
part of the nation against the other one, and 2) for what reason one
should preserve a state’s “territorial integrity” at any price. I am
not speaking about the cases of external aggression against
“territorial integrity” – here, we certainly deal with national
interests. However, when A state stops at no expense – financial,
political, military – to keep B province, doesn’t this mean that
some groups in A just gain some profit from exploiting B? And
doesn’t this fact prove the contrary — that B does have the right to
self-determination?
However, besides this abstract viewpoint, there is also political
pragmatism, which forces one to oppose and sometimes even to openly
deny the self-determination right principle. Practice shows that
abrupt breach of status quo leads to no good and, consequently, the
consistent exercise of the self-determination right may lead to a
global catastrophe and its declaration — to a general bloody chaos.
The collapse of the USSR and Yugoslavia seems to have proved this
thesis: it has created more problems than it has solved. However, if
taken purely theoretically, the self-determination right principle
looks invulnerable, i.e. it has no convincing counter-arguments in a
system where state serves society, where human rights are top
priority, where popular will is the source of any power. That’s why
when international lawyers and political experts tried to turn the
status quo preservation principle into a theory they found no other
arguments but mere sophisms.
For example, in the times of the Wilson Declaration and the
Versailles Conference, when the “nation’s self-determination right”
was first proclaimed as a universal principle, they made a proviso
for colonial nations that this theory referred only to fully-fledged
“nations” (i.e. European) and was not applicable to people living in
colonies as they had not developed into “nations” by that time. In
the times of the Yalta System and the Third World decolonization,
this theory was given quite a new interpretation: in 1960
colonization was declared as intolerable and subject to immediate
liquidation and colonial nations — as having the right to
self-determination. However, this right was declared as not
applicable to ethnic-territorial groups inside states. The arguments
were rather strange: they do not live overseas (!), they have
already exercised this right and it’s enough for them (?), they have
no right to self-determination because they are not a nation but
part of a state-nation and exercise this right inside this
state-nation (i.e. “nation’s self-determination right” was
comfortably replaced by “state sovereignty”) and so on and so forth.
As a matter of fact, the more or less clear argument is that those
communities were not colonial: they were not ruled from outside, and
their residents were not formally restricted in their civil rights.
Still, this was hardly an argument for them not to subjectively feel
discriminated and not to fight for something they confidently
thought to be their rights.
Some kind of a compromise was found, at last, saying: the
self-determination right can be given only to parts of federations
whose constitutions stipulate their right to secession (as you may
know, de jure the USSR and Yugoslavia, the two most “problematic”
states, were exactly such federations).
However, none of these theories have proved effective and capable of
preventing violent bloodshed and secession of self-proclaimed
republics. No surprise — as they have all failed to carry out the
key function of the international law: to settle conflicts of
interests. Their authors thought that, instead of settling existing
conflicts, they could just say which conflict may and which may not
exist and, as a result, came to an amazing conclusion: in order to
settle all ethnic-territorial conflicts, it is enough to prohibit
self-determination right as such. In reality this has led to
opposite results: this leads conflicts into deadlocks and leaves
them no single chance of being solved in a legal way. It should,
first of all, be noted that the alternative “independence of each
ethnic group – status quo for ever” is certainly a false
alternative.
A simple experiment will show you the whole naivety of the attempts
“to prohibit self-determination,” i.e. to stop history: let’s
compare the world maps of 1914, 1954 and 1994. All these
perturbations happened within a period spanning the average life of
one European – so, we can find quite many people who were born in
Austro-Hungarian or Ottoman empires, spent most of their lives in
Czechoslovakia or Yugoslavia and died in Slovakia, Slovenia or
Macedonia. With all these vivid examples before their very eyes,
most of people still fail to see that they live in history. They
take the present order for granted — granted for ever – and believe
that all the changes in the past were just steps towards this
“natural” order while all possible changes in the future will be
attempts to break this predetermined harmony.
For them things described in textbooks are “historical processes,”
while things happening before their very eyes are exclusively the
results of somebody’s intrigues, political technologies, schemes by
irresponsible “demagogues” or simply “mass insanity.” One more step
and they will up and legally ban social-political processes in
general!
The belief of some politicians in the magic force of “precedent” is
of the same origin: they say that if we allow, say, secession of
Eritrea, each village in Dagestan, each tribal village in Papua New
Guinea will claim sovereignty. However, they persistently neglect
one simple fact that nations and states are linked by something much
tighter than formal-legal ties and that states are not formed or
destroyed by lawyers – lawyers just formulate in paper complicated
political processes.
What conclusion have we come to? The conclusion is that one should
not apply formalistic concepts to the problems of self-determination
but should choose the lesser evil. The most successful example is
Canada and Czechoslovakia. In the case of Canada, the recognition of
the Franco-Canadians’ right to secede allowed to preserve national
unity as the minority was able to weigh all the pluses and minuses
of secession. Czechoslovakia failed to avoid split but succeeded to
avoid its negative consequences – for example, possible attempt to
keep the Slovaks within the state by force. Even more, the split was
partly compensated for by the joint accession of the Czech Republic
and Slovakia into Europe. These happy examples strongly contrast
with the bloody insanity that broke out in all those places where
the “territorial integrity” principle was applied at any price. Of
course, we are speaking about “pure” cases rather than situations
when the banner of “national liberation” is raised by criminals. And
of course, we are not speaking about situations when the victory of
separatists turns into the triumph of criminal-terrorist regime
while the victory of governmental forces into the provision of wide
self-determination within a federation. In such cases the lesser
evil is exactly the war with terrorists, but this situation is
atypical of such conflicts.
Thus, according to “the theory of the lesser evil,” one should
neither welcome nor oppose separatism “regardless of anything.” One
should realize that state collapses and formations are just parts of
natural historical processes – often simultaneous – processes that
split one states and unite others. For example, the Czech Republic
and Slovakia have split into national states but have simultaneously
begun uniting within new Europe. The key problem is to ensure that
these processes take place with minimum costs. This certainly
requires new international rules that would focus on a referendum as
a way to reveal people’s will, and the development of such effective
mechanisms should certainly become a part of the UN reforms.
Yuri Nabiyev – editor-in-chief of KURDISTAN.RU
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