Louise Arbour on Self-Determination
During the Carnegie Council for Ethics in International Affairs, ICG President Louise Arbour speaks of the complexity facing international jurists in cases of territorial integrity and desires for self-determination, and discusses the variety of cases involved, from Kosova to Somaliland – all of whom are linked by a history lacking in access to inclusive governance.
Since 1998 the International Crisis Group has supported independence for Kosovo. Back then – even before the NATO war – Crisis Group argued that the Federal Republic of Yugoslavia had been “unwilling to permit the free exercise of the Kosovo Albanians’ right of self-determination” and that Kosovo was “now entitled to create its own international status, separate from that of the FRY”. The denial by the Belgrade government of the Kosovo Albanians’ political, economic, cultural and social rights meant that they had a right to seek self-determination externally.
Since then we’ve published 46 reports on Kosovo. Our most recent, published last month, August 2010, included a controversial recommendation that international actors not prevent Kosovo and Serb negotiators including land swaps in their talks if that would help draw a close to the conflict. But our position on Kosovo independence has remained much the same for the last twelve years: we support Kosovo’s right to secede and to be recognized as an independent state.
A few months ago, in May 2010, we published a report on war crimes in Sri Lanka. In it we detailed the violation of international humanitarian law by the Sri Lankan security forces and the Tamil Tigers during the last five months of their 30-year civil war. The evidence we gathered suggests that these months saw tens of thousands of Tamil civilian men, women, children and the elderly killed, countless more wounded, and hundreds of thousands deprived of adequate food and medical care, resulting in more deaths. The evidence provides reasonable grounds to believe the Sri Lankan security forces committed war crimes, including the intentional shelling of civilians, of hospitals and of humanitarian operations, with top government and military leaders potentially responsible.
We called for an international investigation into the alleged war crimes in Sri Lanka, given both the absence of political will or capacity for genuine domestic investigations. We believe that accounting for crimes is necessary to address the grievances underlying conflict in Sri Lanka. And yet, despite the increasing authoritarianism of the Sri Lanka government and its still appalling treatment of the Tamil minority, we believe that the best means of ensuring the Tamils’ right to self determination is within the existing borders of the Sri Lankan state, with the Sri Lankan government improving both the conditions in which Tamils live and mechanisms for their representation in government. We even argue that the Tamil diaspora – chief source of financial and ideological support for the defeated Tigers – must not only renounce LTTE methods but also move away from its separatist ideology if it is to play a useful role in resolving the conflict.
In Sudan, the south’s self determination referendum is scheduled for early 2011. If genuine, the vote will almost certainly see southerners vote for secession from the north. The Comprehensive Peace Agreement, signed in 2005 between north and south, which provides for the referendum, envisaged the Khartoum government implementing reforms that would make unity attractive to the south, including increasing opportunities for representation and wealth sharing and addressing the long standing discrimination against the periphery by Khartoum – the principle cause of conflict in Sudan. Very little progress has been made, however, on those reforms, mostly due to the intransigence of President Bashir’s ruling National Congress Party. Crisis Group supported the implementation of the CPA, including its objective of making unity attractive. That goal appears to have failed, and we therefore argue that Sudanese, regional and international parties must prepare for south’s secession, including by resolving questions of borders, oil revenue and international recognition. With a vote for independence likely, it is vital that the secession take place as peacefully as possible.
The conflicts in Kosovo, Sri Lanka and Sudan are only three of approximately sixty conflict situations on which Crisis Group reports. (We publish, incidentally, about 85 reports each year, all of which are sent around to policy makers and other subscribers and publicly available on our website. Most contain recommendations, and we promote our views through intensive advocacy, not only in Western capitals and the United Nations, but also increasingly in emerging centres of power in the global south. We believe that while mobilising public support is useful on some issues, on complex matters it is more important to engage directly the relevant policy-makers.)
As these three cases - Kosovo, Sri Lanka, Sudan - illustrate, a recurrent source of potential – and actual – deadly confrontation, and a frequent theme in our reporting, lies in a clash between the principle of territorial integrity and the right to self determination, a clash that take place at the confluence of law, politics, power, economics and identity. Crisis Group has dealt with a variety of situations in the last several years where conflict, including armed conflict, was triggered either by the purported exercise of the right to self determination, or by efforts to resist it. In many cases secession claims are rooted in a history of repression, exclusionary visions of governance, or the denial of rights to minority groups. I mentioned Kosovo, Sri Lanka and Sudan, but I could just as easily have included Montenegro – where we have supported independence; Northern Iraq – we have defended the unity and territorial integrity of Iraq; or Abkhazia, South Ossetia, Nagorno-Karabakh, Somaliland, Aceh or Kashmir – where we have avoided taking explicit positions either for or against secession.
Every conflict situation is of course different – as this list shows – so analysis must be first and foremost contextual. That said, it is useful to explore the contours of the right to self determination in order to offer prescriptions for conflict prevention that are as well anchored in law as they are in political reality.
The thrust of my argument starts from the basis that neither the right to self-determination nor the principle of territorial integrity can a priori trump each other. Only by understanding when – and how – the right to self-determination applies can we effectively put in place processes which stand some chance of averting – or rapidly ending – secessionist-based conflicts.
So let’s start with the legal framework. And in that regard, the recent opinion by the International Court of Justice on the legality of Kosovo’s unilateral declaration of independence provides a useful, but not a dispositive, backdrop. On 22 July 2010, The ICJ rendered its non-binding opinion on the question posed to it by the General Assembly, which was: ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?’
I don’t propose to engage here in a detailed analysis of the opinion. Suffice to say that the court was careful to articulate the narrow scope of its opinion. It concluded that, in the circumstances, the Kosovo unilateral declaration was not in violation of international law. The court, however, went no further. It explicitly refrained from ruling on the legality of secession itself. As such it did not address the efficacy of Kosovo’s unilateral declaration of independence, or of the level of international recognition that it attracted, in creating an independent, sovereign Kosovo state.
The ICJ’s opinion in the Kosovo case may or may not lead to a wave of additional recognition for Kosovo’s independence – these will be political reactions to the court’s opinion. As the court points out, some unilateral declarations of independence have in the past been specifically repudiated by the international community – those of Southern Rhodesia in 1965, Northern Cyprus in 1983 and of the Republika Srpska in Bosnia in 1992. But in all these instances, the Security Council made a determination based on the concrete situation existing at the time those declarations were made. The illegality of those declarations of independence stemmed not from their unilateral character but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of international law. The exceptional character of the resolutions regarding Southern Rhodesia, Northern Cyprus and of the Republika Srpska confirmed, in the view of the ICJ, that no general prohibition against unilateral declarations of independence could be inferred from previous Security Council decisions.
So while secessionists elsewhere would be wise to take limited comfort from the court’s opinion in the Kosovo case; equally would those authorities who currently assert the sanctity of their existing borders as an absolute bar to any secessionist demands. The ICJ’s Kosovo judgement leaves unanswered the important legal question of whether a right to secession can be found in the right to self-determination and if so, in what circumstances.
For that we need to examine the right to self determination – which is a fundamental human right, expressed as such in Art. 1 of the United Nations Charter, and in Art.1 of each of the two main international human rights instruments: the International Covenant on Civil and Political rights and the International Covenant on Economic, Social and Cultural Rights. Both covenants state that:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Even though it is formulated not as an individual right but as “the right of a people”, it belongs to the body of international law that concerns itself directly with the rights of individuals, or peoples, rather than states, and is considered a general principle of international law.
The third paragraph in the Preamble of the Universal Declaration of Human Rights has particular significance in the context of the right to self determination and the peaceful resolution of conflicts. It reads as follows:
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights be protected by the rule of law,
Since self-determination is a fundamental human right, it should be protected by the rule of law if man is not to turn, as the preamble says “….as a last resort, to rebellion against tyranny and oppression.” It is unclear whether turning to “rebellion” is meant to be a mere description of reality, or whether it contains an acceptance that in the face of tyranny and oppression, rebellion would be not only inevitable, but justifiable.
On its face, the right of peoples to freely determine their political status does not address how and when this right is to be exercised. Whether the exercise of the right to self determination includes an entitlement to full state sovereignty therefore requires an examination of the principle of the territorial integrity of states. That principle is most often advanced to block any secessionist claim. The ICJ in its consideration of the Kosovo case made an important observation – namely that the scope of the principle of territorial integrity is confined to the sphere of relations between States. By contrast, however, the right to self-determination deals with relations between states and “peoples”. It is an important distinction – and when competing principles clash, they should be interpreted in a way that maximizes the fullest effect of both. We must therefore seek to reconcile these apparently competing principles.
International law has developed a framework to render these otherwise competing principles compatible by asserting that self-determination is a right that must initially be fulfilled internally. This imposes on sovereign states serious obligations regarding both democracy – participation, as the method for a people to freely determine its political status – and protection of minority rights, to ensure the free pursuit of a people’s economic, social and cultural development.
In that way international law will protect the territorial integrity of a state whose government represents all the people or peoples on its territory, without discrimination and in full respect of their rights to pursue the fulfilment of their social, economic and cultural rights, including language rights, freedom of religion, freedom of speech and of assembly and so forth.
But when a state is unable or unwilling to provide for the internal fulfilment of the right to self-determination, that right may become an external right, and at that point override the principle of territorial integrity by providing to “a people” a right to secede from a parent state. This has been recognized in the case of peoples under colonial rule or foreign occupation (although in that case it is in a sense their own territorial integrity which must be restored). But the same could be said of cases of subjugation, domination or exploitation of a people by its parent state, where the denial of the internal right to self-determination is so profound that the external right should be triggered.
In the Kosovo case, the ICJ referred to claims that the population of Kosovo has the right to create an independent state because of the province’s recent history but explicitly refused to deal with that issue on the basis that it was beyond the scope of the question posed to it by the General Assembly. The Supreme Court of Canada did consider the scope of the right to self -determination, in its landmark opinion in the Quebec secession Reference in 1996, and, without deciding the point, noted that a right to secession could possibly arises “where “a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.”
At this stage it is fair to say that there is in international law no right as such to secede unilaterally from a parent state, but the right to self-determination may permit, in certain circumstances, unilateral secession and in such a case international recognition completes the process and gives efficacy to the creation of the newly created state.
Of course the legal framework informs, but only partially, the political response to claims of that nature. From a conflict prevention perspective, there can be no absolutist position. Territorial integrity should not be maintained by the brutal internal repression of a people in violation of its right to self determination. That right requires that there be internal political space for the free pursuit of a people’s social, economic and cultural development. But both international law and political reality will ensure that only a severe violation of that right –colonialism or equivalent subjugation – will trigger the external one.
Where secession claims are advanced, they should be addressed through peaceful, orderly processes. Secession should preferably be effected under domestic law: if the constitution - or, as in the case of Sudan - a Peace Agreement - provides for a secession mechanism this is the obvious path to follow. In the absence of a prescribed process, however, secession could still be effected consensually, with international actors supporting bi-lateral peaceful initiatives. The “velvet divorce” between Czechs and Slovaks is a good example.
Absent a consensual, negotiated successful process, however, I suggest that the international community should support a secessionist enterprise when the legal conditions are fulfilled, and when it is otherwise appropriate to do so. For the remainder of my time this morning, I would like to explore some of the other factors at play – and which often influence Crisis Group’s position – in determining whether or not secession is advisable. But I wish to stress at the outset that the international community should not support the forceful repression of legitimate secessionist claims, unless these claims are themselves advanced by the illegitimate use of force.
The first of these criteria is one of last resort. As already discussed, claims of self determination should, ideally, be resolved within the framework of existing states. Generally we support independence only when there is no hope for the conflict to be resolved or the right to self determination realised within existing borders. In the case of Kosovo, for example, especially after the 1999 war, it would be impossible to promote greater Kosovar self-determination with the framework of the Yugoslav or Serbian state. Independence for Kosovo is the only solution likely to lead to lasting stability in the region. In the case of Somaliland, insistence by the African Union on the increasingly abstract notion of the unity and territorial integrity of the Somali Republic, with Somalilanders governed again from Mogadishu, is both unrealistic and unsupported by more than twenty years of state practice. Any attempt to re-impose centralized control by Mogadishu would almost certainly open a new chapter in the Somali civil war.
A second principle is one of popular support. The Kosovo Albanians’ overwhelming support for independence is a key factor there. Questions of secession should be decided democratically – as in the Montenegro referendum in 2005 or the forthcoming self-determination referendum in Sudan. Crisis Group often draws attention to disparity between the more extreme claims of secessionist leaders and the frequently more moderate views of wider populations, who may be more realistic in their aspirations. The Supreme Court of Canada, for example, insisted that a secession referendum would require, at a minimum, a “clear majority” answering a “clear question”. It is important also to consider the rights of the minorities within the secessionist minority, and the likelihood that their rights would be adequately protected within the newly separated state. Secession may provoke population displacements and further unrest if the newly created nation state is unwilling or unable to accommodate its own newly created national minorities.
It is in that sense that I understand the claim that sovereignty has to be earned. In general terms, I do not subscribe to the notion that fundamental human rights have to be earned. Yet Somaliland’s democratic trajectory and functioning institutions bolster the legitimacy of its claims to independence. Similarly, ahead of Montenegro’s referendum in 2005 we argued that Montenegro was “the only republic of the former Yugoslavia that has formed a genuinely multiethnic government without internal conflict”, which strengthened the Montenegrin claims. Conversely, the Tamil Tigers brutal rule of Tamil areas, their atrocities – including ethnic cleansing and massacres – and their treatment of the Muslim minority do little to further Tamil secessionist claims.
A related concern is that of state feasibility. Can a territorial claim easily be asserted within existing or easily defined boundaries? Can the aspiring state become economically viable? I am careful here not to require economic viability at the outset, since many developing countries are not themselves currently economically self-sufficient and depend on international assistance for a large part of their annual budgets. The question is whether there is any realistic prospect of self-sufficiency, for instance through the exploitation of natural resources, even if considerable assistance will be required at the outset.
Moving further away from the legal entitlement to secession to the political reality of the need for political international recognition, one would have to consider the question of regional dynamics and precedents. Our calls on the African Union to engage positively with the question of recognition of Somaliland, our analysis of regional perspectives on the potential South Sudanese secession, and our advocacy of constructive EU engagement in the Balkans are examples.
Finally, a host of intangible factors will come into play: history, culture, language, religion, emotional - some will say irrational - aspirations, grievances, loyalties - all these will come into the mix of initiatives and responses that may either support or thwart secessionist projects.
International actors would be wise to remember the warning in the preamble of the UDHR that people will turn to rebellion against tyranny and oppression unless they are protected by the rule of law. They should therefore make every effort to promote the full respect of the right of peoples to self-determination by national governments. In order to avoid the emergence of legitimate secessionist claims, states must recognize legitimate grievances by their national minorities, and address them appropriately, including by providing some form of political autonomy, if appropriate, but certainly by ensuring political participation, as well as social, economic and cultural protections.
Inclusive governance, the best prophylactic against many types of conflicts, also provides the best protection against secession claims surfacing, and turning violent, in the first place. But even if they do turn violent, faced with a total breakdown of the rule of law, the international community cannot blindly support the monopoly over the use of force by governments who have forfeited any legitimate entitlement to such monopoly.