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When drawing up rules on regionalism, it would be worth referring to the experience and practice of the states of the Black52 and Mediterranean sea basins.
It seems expedient to set forth corresponding standards on demilitarization, neutralization, and the peaceful use of the expanses and resources of the Caspian Sea in the Pact draft. It is important that the Caspian countries reach an agreement on a military balance and military might. In addition, the Caspian states should exchange pertinent military-political information pertaining to the problems of the sea’s security. An institution of permanent or temporary military observers should be created.
Respect of international law by the Caspian states, in particular of the principles and standards of the U.N. Charter, should also be manifested in their strict observance of and respect for each other’s sovereignty, territorial integrity, and political independence, and in their not being the first to use naval force against each other.
52 For more detail, see: A.F. Vysotskiy, Morskoi regionalizm (mezhdunarodno-pravovye problemy regional’nogo sotrudnichestva gosurdarstv), Naukova Dumka, Kiev, 1986, pp. 33-135; Mezhdunarodnaia bezopasnost i Mirovoi okean, Nauka Publishers, Moscow, 1982, pp. 150-203.
Kiamran SHAFIEV
Deputy head, Department of State-Building Legislation, Milli Mejlis (parliament) of the Republic of Azerbaijan
(Baku, Azerbaijan).
THE SELF-DETERMINATION PRINCIPLE IN THE CONTEXT OF GLOBALIZATION
Abstract
The author analyzes the principle of self-determination of nations in the contemporary context and points out that it does not contradict the principle of a state’s territorial integrity; he proves that
the principle can be realized within a state’s existing borders and offers an indepth discussion of the problems created when the principle is realized by means of secession.
I n t r o d u c t i o n
The end of the Cold War, as well as the end of ideological confrontation, created the necessary conditions for the transfer to a new format of international relations. The international community has arrived at the conviction that all countries and international structures should pool their efforts to address the fundamental tasks mankind is facing today.
Regional conflicts ignited by separatism in many countries to the detriment of international stability and security are interfering with productive international cooperation. More than that: they are hampering democratic developments by distracting countries and nations from creative efforts. Separatism is developing into a serious threat to peace, law and order, and human rights; it has nothing to do with the genuine interests of any nation and the global integration trend; it is disrupting the centuries-old economic, family, cultural, and other ties. Under the guise of the self-determination principle, separatism is trampling underfoot the norms and principles of international law and endangering the territorial integrity of many countries.
This is a hot issue in the Southern Caucasus where for several decades the right of nations to self-determination in Nagorno-Karabakh (Azerbaijan) and in Abkhazia and South Ossetia (Georgia) has been used to forcefully change the borders of these republics recognized by the international community. Separatism in not limited to the Southern Caucasus: Catalonia and the Basque area in Spain; Quebec in Canada, Corsica in France, Ulster in the U.K., the southern regions in the Sudan, etc. are facing similar problems. If falsely interpreted, the principle of self-determination breeds separatism, which insists that each ethnic community should have its own state. This causes political and economic instability and social tension, and creates the danger of confrontation and armed struggle. It undermines central power and its ability to govern effectively. For this reason, the right of nations to selfdetermination and its correlation with the principle of territorial integrity call for scrutiny.
The Correlation between the Principles of Self-Determination and Territorial Integrity
Today, the contradiction between the principle of the right of nations to self-determination and the principle of territorial integrity of states that acquired new urgency in the early 21st century can no longer be ignored. The issue cries for a reasonable balance. Indeed, ethnic groups obviously outnumber states—the chaos caused by their intention to carve out a state of their own is hard to imagine. When interpreting and applying international legal norms, we should always bear in mind that they form an integral whole and none of them can be detached from its context.
The self-determination principle has a long history: the United States and the Spanish domains in America fought for independence under its banners. At that time, the principle was not yet interpreted as the demand to separate part of the territory—it meant that each and every nation had the right to choose its form of governance.
In the 1790s, the idea of people’s sovereignty was interpreted as the right of people living compactly on certain territories to decide which state they would like to join. Revolutionary France exploited this ideology when occupying parts of the territories of other countries.
World War I created a multitude of new states on the ruins of the Russian and Austro-Hungarian empires. It was then that President Wilson of the United States formulated his Fourteen Points program, which he laid on the table of the Paris Peace Conference of 1919-1920. The right of nations to self-determination was one of its central points. The conference was convened to sign peace treaties between the victor powers and the defeated states. It endorsed the emergence of new countries and, in this way, changed the state borders. However, drawing ethnically determined borders proved impossible, which meant that even back then the principle of self-determination could not be implemented in keeping with purely ethnic characteristics. The changed borders did not bring peace and stability to Europe: twenty years later the continent found itself in the midst of the bloodiest war in human history.
The geopolitical situation of the post-World War II period called for another revision of European borders and disintegration of the colonial system. After the war, when the U.N. was established,
the right of nations to self-determination was registered in the key international documents. This was a turning point in the history of the idea.
The U.N. Charter is one the major documents dealing, in part, with the principle of self-determination in Art 1.2, which says that the organization’s purpose is, among other things “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”
Later, the norms of the right of nations to self-determination were set forth in greater detail in many international legal documents, thus making it a generally recognized international legal principle.
On 16 December, 1952, the VII Session of the U.N. General Assembly passed Resolution 637 (VII) “The Right of Peoples and Nations to Self-Determination,” which pointed out, among other things, that the population of non-self-governing and subordinate territories had the right to self-determination, while the states that governed these territories “should take practical steps to realize the right to self-determination.” The document dealt with non-self-governed and subordinate territories or colonies.
The Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by Resolution 1514 (XV) of the U.N. General Assembly on 14 December, 1960 is another key document. It emphasized: “All peoples have the right to self-determination, by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.” The document stipulated: “Any attempts at partial or total disruption of the national unity and territorial integrity of a country is incompatible with the provisions and principles of the Charter of the United Nations.”
The 1970 Declaration on Principles of International Law touched upon the self-determination principle: “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 of the United Nations.” The same document determined the forms in which the right to self-determination could be realized:
1) establishment of a sovereign and independent State;
2) free association or integration with an independent State;
3) emergence into any other political status freely determined by a people.
At the same time, the emphasis was on self-determination of the colonial territories. The 1970 Declaration said in part: “The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or a Non-Self-Governing Territory have exercised their right to self-determination in accordance with the Charter, and particularly its purposes and principles.”
The same declaration reconfirmed an important limiting norm: “Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or color.”
An analysis of the fundamental international law documents reveals that the right of nations to self-determination in the form of independent states was applied to the colonies. This principle was evoked to support the national-liberation movements, since the colonial system could be destroyed only if the principle of self-determination was applied in practice. This means that the principle was primarily aimed against colonialism with the purpose of liberating the colonies from foreign oppression. De-colonization, which ensured the right to self-determination, did not violate the principle of territorial integrity. Life has shown that the territories of peoples living under colonial or another form of foreign domination were never regarded as parts of the governing states. De-colonization occurred on colonial territories that at no time were part of the metropolitan state and were even separated from
it by thousands of kilometers. In this case, the territorial integrity of the metropolitan country remained intact.
It should be said that the colonies became independent within the borders established, no matter how arbitrarily, by the metropolitan states, which means that not infrequently peoples remained divided during de-colonization. The idea of restoring pre-colonial statehoods was rejected. After gaining their independence, the young states refused to apply the principle of self-determination (through which they gained their liberty) to the peoples living on their territories. The attempts of Biafra in Nigeria and Katanga in the Congo to gain independence were suppressed by force and condemned by the international community as undermining the territorial integrity of the newly independent states. There are examples of the opposite: in 1965, Singapore left the Federation of Malaysia on mutual agreement.
The disappearance of the colonial empires closed the self-determination issue understood as the formation of independent states. Today, any intention to use the principle regarding ethnic minorities infringes on the right of nations to decide their future within the existing states. I have demonstrated above that the right was intended to put an end to colonial oppression and cannot be invoked to divide independent states. The content and approaches to the principle of self-determination have somewhat changed because today the approaches of the de-colonization era undermine international order.
The self-determination principle should not be interpreted beyond the context of the changes that have taken place in the world—otherwise world security would be threatened. None of the international legal principles, the principle of self-determination included, can be interpreted in an abstract way divorced from all other international legal principles, such as the inviolability of borders and territorial integrity.
The principle of territorial integrity, one of the main achievements of European political practice, which for many decades ensured peace in Europe, should be regarded as the cementing principle of international security. It is one of the central principles of international law as provided by Art 2.4 of the U.N. Charter, which says: “All Members shall refrain ... from the threat or use of force against the territorial integrity or political independence of any state.”
This principle was also fixed in the Final Act of the Conference on Security and Cooperation in Europe of 1975, which says: “The participating States will respect each other’s ... territorial integrity.”
According to the Charter of Paris for a New Europe signed on 21 November, 1990: “We reaffirm the equal rights of peoples and their right to self-determination in conformity with the Charter of the United Nations, with the relevant norms of international law, including those related to the territorial integrity of States.”
This principle is highly important in the context of international stability, therefore the right of nations to self-determination should be examined within this context. The self-determination principle cannot be used to encourage separatism or the fragmentation of states, or the violation of their territorial integrity. In his Agenda for Peace, Boutros Boutros Gali has pointed out in this connection that if every ethnic, religious, or language group claimed statehood, there would be no end to fragmentation, while universal peace, security, and economic prosperity would become even less accessible.1
It is hardly correct to set off the principle of the territorial integrity of states against the principle of self-determination. International law speaks of their combination, equal and consistent application, therefore there are no “conflicts” or “opposition” between them—they are mutually complimentary.
Self-Determination of Peoples During the Globalization Period
The above suggests that the self-determination of peoples up to and including secession and the formation of independent states was limited to the de-colonization period. Today, this right should be
1 See: Boutros Boutros Gali, Agenda for Peaces, New York, 1992, p. 10.
practiced in conformity with the principle of territorial integrity. Opponents may argue that in the post-de-colonization era (which covered the 1950s-1960s), several sovereign states appeared through application of the same principle. The counterargument is that not all dependent territories gained independence at that time. The fact that East Timor gained its independence not so long ago does not mean that the correlation between the principles of self-determination and territorial integrity changed. Until 1975, East Timor was a Portuguese colony; in December 1975, Indonesia assumed control over the territory. The international community, meanwhile, never recognized East Timor as part of Indonesia: the territory was seized by force when Portugal withdrew its troops. In 1999, a referendum on the territory’s status held under the U.N. aegis revealed that the population wanted independence. There is another special case. I have in mind Western Sahara, a former Spanish colony, which has no definite status and is waiting for the U.N. to decide its future.
The right of nations to self-determination per se presupposes separation from the state, but this is far from an obligation. Today, self-determination in the form of separation differs from that practiced in the de-colonization period: it was not always based on ethnic elements (at that time, colonies populated by different ethnic groups became independent states). Today, ethnicity has come to the fore. Detachment of part of the country’s territory creates numerous problems that are hard to resolve. Disintegration of the colonies created no such problems.
Indeed, the rights of the country’s ethnic majority, which finds itself in the minority in a territory that wishes to separate, should be duly protected. The rights of the ethnic minorities of a “newly formed state” are an issue that should receive adequate attention. Indeed, the will of those who, while forming the majority in the “old state,” are in the minority in the territory that vies for independence should be taken into account. They will hardly hail the idea of independence, which will turn them into a minority. Their position should be taken into account—otherwise their rights will be grossly violated.
Kosovo is a pertinent example. Its predominantly Albanian population wants to separate from Serbia and set up an independent state. The Serb minority of Kosovo (Serbs comprise the majority in Serbia) is in favor of the state’s territorial integrity.
This means that the right to self-determination is equally applied to all peoples living in any given territory; the will of one ethnic group should not dominate—the rights of all ethnic groups should be equally respected. There are cases when the minority is driven away from its place of permanent residence to enable the separatists to formulate their demands without taking into account the interests of the forcibly displaced persons. Can we, in such cases, accept self-determination in the form of secession?
It is not an easy task to identify the territory that belongs to a nation wishing to separate; administrative borders within any country change frequently. The issue of the rights of the “minority” resurfaces in such cases as well. During the referendum on the separation of Quebec, some of its territories (part of the Ottawa valley, western Montreal, and the English townships in the province’s north with their English-speaking population) asked the federal government to let them remain in Canada irrespective of the referendum results.2 This meant that the province would be divided. Indeed, if Canada can be divided, then Quebec can also be divided. If Quebec is indivisible, then Canada is also indivisible.
There are many more examples of that: in 1974, when France gave the Comoros, an archipelago of four islands—Ngazidja (Grande Comore), Nzwani (Anjouan), Mwali (Moheli) and Mayotte—its independence, the population of the latter voted against secession. Today, the island is France’s overseas territory.
There is another, no less important issue: How can it be determined that part of population wants separation? A referendum is not always objective; the ways of influencing public opinion are numerous and varied: biased election campaigns, vague questions offered for discussion at the referendum, etc. There are several important conditions for the free expression of the people’s will: the territory should not be occupied by a foreign state or be controlled by the separatists; it should not be an arena of military
2 See: A. Zakharov, “Federativnoe gosudarstvo i separatism: kanadskiy variant,” available at [http://www. legislature.ru/fund/persons/zakharov/02p3.html].
action; it should be governed by law and central power bodies should operate on its territory; refugees should be returned to their homes. Without the above no free expression of people’s will is possible.
There are peoples that live compactly on the territories of several countries. The Basques are one of such example—they live in Spain and the adjacent areas of France. Should this be taken to mean that they should separate from both countries? If their right to secession is recognized in one country, it should be recognized in the other. An affirmative answer makes the disintegration of many states inevitable.
There is another important question: What is meant by the word “nation?” Self-determination of the de-colonization era was not based on the nationality principle: “nation” was interpreted as the population of any given territory, not individual ethnic or religious groups.
In this context, the right to self-determination was not associated with ethnic groups: it was the territories and their populations, rather than the ethnic groups, that used the right to self-determination. Each of the newly independent territories (this was especially true of Africa) was home to a multitude of nations, none of which set up an independent state. It was the territories and their populations that acquired sovereignty. For this reason, the present state borders in Africa have nothing to do with ethnic borders.
There is no universally accepted definition of “nation.” In different contexts, “nation” can be used to denote an ethnic community and the state’s population; in some countries, “nation” is used to describe citizenship, while all other methods of national identity are related to the individual’s personal competence. “Nation” is described as the sum-total of citizens of any given state irrespective of their ethnic origins; in other cases, “nation” is used to describe a group of individuals with a common territory, ethnic origins, language, and customs, that is, people who share one culture. In such cases, the term is limited to ethnic origins and means a group of people of the same ethnic affiliation irrespective of their citizenship and place of residence.
Any discussion of the right of nations to self-determination should take into account the fact that international documents deal with nations rather than national minorities. International law pays adequate attention to the rights of national minorities. The Framework Convention for the Protection of National Minorities of 1 February, 1995 points out that the ethnic, cultural, linguistic, and religious specificity of any person belonging to a national minority should be respected and that conditions conducive to the expression, protection, and development of this specificity should be created.
The Convention says: “The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection before the law. The Parties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion ... every person belonging to a national minority has the right to display in his or her minority language signs, inscriptions and other information of a private nature visible to the public.”
The Convention makes no mention of the right to self-determination. It goes even further to emphasize again the principle of territorial integrity. Art 21 says: “Nothing in the present framework Convention shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of sovereign equality, territorial integrity and political independence of States.”
The Declaration of the United Nations of the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities stresses in Art 8.4: “Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations including sovereign equality, territorial integrity and political independence of States.” The above confirms that international law resolved the problem of the protection of the rights of national minorities with due account of the territorial integrity of states.
The above should not be taken to mean that self-determination in the form of separation is ruled out. Today, when the colonial system is long dead, separation is still possible under certain conditions if, for example, it is envisaged by national legislation. The constitutions of the Soviet Union and
Yugoslavia granted the right to secession and the formation of an independent state (albeit formally) to federation constituents.
In the case of Yugoslavia, the world community recognized the newly independent states (former federative republics) within their administrative borders in former Yugoslavia. This means that the territorial integrity principle was applied there. In 1991, the European Union (then the European Community) set up an Arbitration Commission of five members known as the Badinter Commission, after distinguished French lawyer Robert Badinter, who was elected as its chairman. It was supposed to accept applications from the territorial units wishing to be recognized as independent countries and examine the conditions to find out whether they corresponded to the EU standards and clarify certain legal aspects connected with the disintegration of Yugoslavia. The Badinter Commission determined that the administrative borders of the federative republics that were part of Yugoslavia by the time it disintegrated should remain the same and become internationally recognized state borders of independent states. It is important to note that this referred to federative republics and not to autonomous formations.
The right to self-determination fully applies to the countries (territories) occupied by foreign states; Namibia is a pertinent example. After World War II, South Africa refused to include Namibia (former mandate territory of the League of Nations) in the U.N. system of trusteeship and de facto annexed the territory. In its Resolution of 27 October, 1966, the U.N. General Assembly ruled to annul South Africa’s mandate in Namibia; in December 1973, the South West Africa People’s Organization, which for ten years fought for independence, was recognized as the only true representative of the people. On 29 September, 1978, the U.N. Security Council adopted Resolution 435, which approved the U.N.’s plan of practical steps toward Namibia’s independence. On 21 March, 1990, Namibia became independent and sovereign. States may unify voluntarily—this happened in the case of the FRG and GDR.
In all other cases, a nation can realize its right to self-determination within the existing state without impairing its specificity, its cultural, social, and economic processes and its historical development as a whole or the territorial integrity of the state it belongs to.
The changes of the last few years say that the normative content of the principle of self-determination needs to be changed. It has not lost its pertinence, even though the period of de-colonization is over. The principle is changing into a qualitatively different form of its realization together with the changing international realities.
Today, the right of nations to self-determination is realized within the borders of states on the territory of which any given nation lives and in the forms envisaged by domestic legislation in the form of national-cultural or territorial autonomy, etc.
C o n c l u s i o n
Today, the principles used to create independent states during de-colonization are inapplica-ble—we need new approaches. The right of nations to self-determination means that their rights, realized in a democratic state, can be ensured without violating the state’s territorial integrity. This has been proven by different versions of rich, mainly European, experience.
Autonomy is one of such version: it gives the people living in a national-territorial unit the right to address all the issues related to their competence independently. By the very fact of their existence, autonomies presuppose independent administration and are a form of self-determination.
This means that the right of nations to self-determination and the principle of territorial integrity may be successfully applied only if they are mutually complementary. Self-determination cannot and should not be realized at the expense of other nations and to the detriment of international legal norms.
