Yuri Nabiyev: Is right for self-determination “the lesser evil”?

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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