Definitions

determination

self-determination

[self-di-tur-muh-ney-shuhn, self-]

Process by which a group of people, usually possessing a degree of political consciousness, form their own state and government. The idea evolved as a byproduct of nationalism. According to the UN charter, a people has the right to form itself into a state or to otherwise determine the form of its association with another state, and every state has the right to choose its own political, economic, social, and cultural systems. Moreover, the administering authorities of dependent territories are enjoined to ensure political advancement and the development of self-government in those territories.

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Self-determination is defined as free choice of one’s own acts without external compulsion, and especially as the freedom of the people of a given territory to determine their own political status or independence from their current state. The latter is a complex concept with conflicting definitions and legal criteria for determining which groups may legitimately claim the right to self-determination.

History

Pre-20th Century

Just as colonisation and colonialism have been practiced throughout human history, political self-determination has been cherished by people through history, the ancient Mesopotamian and later Greek city-states being early examples.

The revolt of the British colonists in North America has been defined as the first assertion of the right of national and democratic self-determination because of the explicit invocation of natural law, the natural rights of man and consent of, and sovereignty by, the people, ideas inspired particularly by John Locke’s writings. Thomas Jefferson furthered promoted the notion that the will of the people was supreme, especially through authorship of the Declaration of Independence which inspired Europeans throughout the 19th century. The French Revolution also was motivated by and legitimatized ideas of self-determination.

During the early 1800s most of the nations of South America achieved independence from Spain. The American public, organized groups and even Congressional resolutions, often supported such movements, especially the Greek War of Independence (1821-29) and the demands of Hungarian revolutionaries in 1848. However, such support never became official government policy. After the American Civil War the United States government opposed self-determination for the West Indian islands of Saint Thomas and Saint John in 1868, the Hawaiian Islands in 1868. By the conclusion of the Spanish-American War in 1899 the United States supported its annexation without the consent of the peoples the former Spanish colonies of Guam, Puerto Rico and the Philippines; it retained “quasi-suzerainty” over Cuba.

World War I and II

Woodrow Wilson revived the American commitment to self-determination, at least for European states, during World War I. When the Bolsheviks came to power in Russia in November 1917, they called for Russia’s immediate withdrawal as a member of the Allies of World War I. They also supported the right of all nations, including colonies, to self-determination. (As early as 1914 Lenin wrote: “[It] would be wrong to interpret the right to self-determination as meaning anything but the right to existence as a separate state.”) The 1918 Constitution of the Soviet Union acknowledged the right of secession for its constituent republics.

This presented a challenge to Wilson’s more limited demands. In January 1918 Wilson issued his Fourteen Points of January 1918 which, among other things, called for adjustment of colonial claims, as long as the interests of colonial powers had equal weight with the claims of subject peoples. The Treaty of Brest-Litovsk in March 1918 led to Russia's exit from the war and the independence of Finland, Estonia, Latvia, Ukraine, Lithuania and Poland. The end of the war led to the dissolution of the defeated Austro-Hungarian Empire and the creation by the Allies of Czechoslovakia and the union of the State of Slovenes, Croats and Serbs and the Kingdom of Serbia as new states. However, this imposition of states where some nationalities (especially Poles, Czechs, and Serbs and Romanians) were given power over nationalities who disliked and distrusted them eventually helped lead to World War II. The defeated Ottoman empire was dissolved into the Republic of Turkey and several smaller nations, plus the new Middle east Alliedprotectorates” of Syria, Palestine, Iraq and Yemen. The League of Nations was proposed as much as a means of consolidating these new states, as a path to peace.

During the 1920s and 1930s there were some successful movements for self-determination in the beginnings of the process of decolonization. In the Statute of Westminster the Great Britain granted independence to Canada, New Zealand, Newfoundland, the Irish Free State, the Commonwealth of Australia, and the Union of South Africa after the British parliament declared itself as incapable of passing laws over them without their consent. Egypt, Afghanistan and Iraq also achieved independence from Britain and Lebanon from France. Other efforts were unsuccessful, like the Indian independence movement. And Italy, Japan and Germany all initiated new efforts to bring certain territories under their control, leading to World War II.

The UN Charter

In 1941 Allies of World War II signed the Atlantic Charter and accepted the principle of self-determination. In January 1942 twenty-six nations signed the Declaration by United Nations, which accepted those principles. The ratification of the United Nations Charter in 1945 at then end of World War II placed the right of self-determination into the framework of international law and diplomacy.

  • Chapter 1, Article 1, part 2 states that purpose of the UN Charter is: “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.”
  • Article 1 in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both read: “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.”
  • The United Nations Universal Declaration of Human Rights article 15 states that everyone has the right to a nationality and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality.

However, the charter and other resolutions did not insist on full independence as the best way of obtaining self-government, nor did they include an enforcement mechanism. Moreover, nations were recognized by the legal doctrine of uti possidetis juris, meaning that old administrative boundaries would become international boundaries upon independence, even if they had little relevance to linguistic, ethnic, and cultural boundaries. Nevertheless, justified by the language of self-determination, between 1946 and 1960, the peoples of thirty-seven new nations freed themselves from colonial status in Asia, Africa, and the Middle East. The territoriality issue inevitably would lead to more conflicts and independence movements within many nations and challenges to the assumption that territorial integrity is as important as self-determination.

The Soviet Union’s successful post-war efforts to turn Eastern Germany and the countries of Eastern Europe into Soviet satellite states contrasted with decolonization. The additional success of communists in creating the People's Republic of China led to the Cold War with western nations. These nations became willing to support authoritarian governments as long as they remained anti-communist and began to suspect all self-determinations movements of being communist-inspired or controlled. Thus the United States entered into a 10 year war in Vietnam, taking over from French colonialists, and supported Portugal in its attempts to hold on to Angola. The Soviet Union also violated principles of self-determination by suppressing the Hungarian revolution of 1956 and the Prague Spring Czechoslovak reforms of 1968. It invaded Afghanistan to support an increasingly unpopular communist government assailed by local tribal groups.

The Cold War began to wind down after Mikhail Gorbachev assumed power in March 1985. With the cooperation of U.S. president Ronald Reagan, Gorbachev wound down the size of the Soviet Armed Forces and reduced nuclear arms in Europe, while liberalizing the economy. In 1989 in rapid succession, communist regimes collapsed in Poland, Hungary, Czechoslovakia, East Germany, and Romania. In December 1991, Gorbachev resigned as president and the Soviet Union dissolved relatively peacefully into fifteen sovereign republics, all of which rejected communism and most of which adopted democratic reforms and free-market economies. Yugoslavia began a much more violent break up in 1990.

Current Issues

Since the early 1990s, the legitimatization of the principle of national self-determination has led to an increase in the number of conflicts within states, as sub-groups seek greater self-determination and even full secession, and as their conflicts for leadership within groups and with other groups and with the dominant state become violent. The international reaction to these new movements has been uneven and often dictated more by politics than principle. The year 2000 United Nations Millennium Declaration failed to deal with these new demands, mentioning only “the right to self-determination of peoples which remain under colonial domination and foreign occupation.”

In an issue of Macquarie University Law Journal Associate professor Aleksandar Pavkovic and Senior Lecturer Peter Radan outlined current legal and political issues in self-determination. These include:

Defining “peoples”

There is not yet a recognized legal definition of “peoples” in international law. Vita Gudeleviciute of Vytautas Magnus University Law School, reviewing international law and UN resolutions, finds in cases of non-self-governing peoples (colonized and/or indigeneous) and foreign military occupation “a people” is the entire population of the occupied territorial unit, no matter their other differences. In cases where people lack representation by a state’s government, the unrepresented become a separate people. Present international law does not recognize ethnic and other minorities as separate peoples. Other definitions offered are “peoples” being self-evident (from ethnicity, language, history, etc.), or defined by “ties of mutual affection or sentiment,” i.e. “loyalty,” or by mutual obligations among peoples. Or the definition may be simply that a people is a group of individuals who unanimously choose a separate state. If the “people” are unanimous in their desire for self-determination, it strengthens their claim. For example, the populations of federal units of the Yugoslav federation were considered a people in the breakup of Yugoslavia, even though some of those units had very diverse populations. Libertarians who argue for self-determination distinguish between the voluntary nation (the land, the culture, the terrain, the people) and the state, the coercive apparatus, which they have a right to choose or self-determine.

Self-Determination versus Territorial Integrity

National self-determination challenges the principle of territorial integrity (or sovereignty) of states because it is the will of the people that makes a state legitimate. This implies a people should be free to choose their own state and its territorial boundaries. However, there are far more self-identified nations than there are existing states and there is no legal process to redraw state boundaries according to the will of these peoples.

Pavkovic and Radan describe three theories of international relations relevant to self-determination.

  • The realist theory of international relations insists on that territorial sovereignty is more important than national self-determination. This policy was pursued by the major powers during the Cold War.
  • Liberal internationalism has become an alternative since that time. It promotes the abolition of war among states as well as increased individual liberty within states, and holds the expansion of global markets and cross-border cooperation diminishes the significance of territorial integrity, allowing for somewhat greater recognition of greater self-determination of peoples.
  • Cosmopolitan liberalism calls for political power to shift to a world government which would make secession and change of boundaries a relatively easy administrative matter. However, also would mean the de facto end of self-determination of national groups.

Allen Buchanan, author of seven books on self-determination and secession, supports territorial integrity as a moral and legal aspect of constitutional democracy. However, he also advances a “Remedial Rights Only Theory” where a group has “a general right to secede if and only if it has suffered certain injustices, for which secession is the appropriate remedy of last resort.” He also would recognize secession if the state grants, or the constitution includes, a right to secede.

Vita Gudeleviciute holds that in cases of non-self-governing peoples and foreign military occupation the principle of self-determination trumps that of territorial integrity. In cases where people lack representation by a state’s government, they also may be considered a separate people, but under current law cannot claim the right to self-determination. On the other hand, he finds that secession within a single state is a domestic matter not covered by international law. Thus there are no on what groups may constitute a seceding people.

Methods of Increasing Minority Rights

In order to accommodate demands for minority rights and avoid secession and the creation of a separate new state, many states decentralize or devolve greater decision-making power to new or existing subunits or even autonomous areas. More limited measures might include restricting demands to the maintenance of national cultures or granting non-territorial autonomy in the form of national associations which would assume control over cultural matters. This would be available only to groups that abandoned secessionist demands and the territorial state would retain political and judicial control, but only if would remain with the territorially organized state.

Self-determination versus majority rule/equal rights

Pavković explores how national self-determination, in the form of creation of a new state through secession, could override the principles of majority rule and of equal rights, which are primary liberal principles. This includes the question of how an unwanted state can be imposed upon a minority. He explores five contemporary theories of secession. In “anarcho-capitalist” theory only landowners have the right to secede. In communitarian theory, only those groups that desire direct or greater political participation have the right, including groups deprived of rights, per Allen Buchanan. In two nationalist theories, only national cultural groups have a right to secede. Australian professor Harry Beran’s democratic theory endorses the equality of the right of secession to all types of groups. Unilateral secession against majority rule is justified if the group allows secession of any other group within its territory.

Constitutional law

Most sovereign states do not recognize the right to self-determination through secession in their constitutions. Many expressly forbid it. However, there are several existing models of self-determination through greater autonomy and through secession.

In liberal constitutional democracies the principle of majority rule has dictated whether a minority can secede. In the United States Abraham Lincoln acknowledged that secession through constitutional amendment. The Supreme Court in Texas v White, held secession could occur “through consent of the States.” The British Parliament in 1933 held that Western Australia only could secede from Australia upon vote of a majority of the country as a whole; the previous two-thirds majority vote for secession via referendum in Western Australia was insufficient.

The Chinese Communist Party followed the Soviet Union in including the right of secession in its 1931 constitution in order to entice ethnic nationalities and Tibet into joining. However, once in control of the territories the party eliminated the right to secession from the constitution. The 1947 Constitution of the Union of Burma contained an express state right to secede from the union under a number of procedural conditions. It was eliminated in the 1974 constitution of the Socialist Republic of the Union of Burma (officially the “Union of Myanmar”). Burma still allows “local autonomy under central leadership.” As of 1996 the constitutions of Austria, Ethiopia, France, Singapore, Saint Kitts and Nevis Republics have express or implied rights to secession. Switzerland allows for the secession from current and the creation of new cantons. In the case of proposed Quebec separation from Canada the Supreme Court of Canada in 1998 ruled that only both a clear majority of the province and a constitutional amendment confirmed by all participants in the Canadian federation could allow secession.

The 2003 draft of the European Union Constitution allowed for the voluntary withdrawal of member states from the union. There was much discussion about such self-determination by minorities before the final document underwent the unsuccessful ratification process in 2005.

International law

Given the hundreds of minority groups seeking greater autonomy and even full secession into a new state, there is need for a new understanding of the right to self-determination that applies to minority national groups and indigenous populations. At the very least this would encourage states to these groups more internal self-determination to deter secessionist demands.

Drawing New Borders

Once groups exercise self-determination through secession, the issue of the proposed borders may prove more controversial than the fact of secession. The bloody Yugoslav wars in the 1990s were related mostly to borders issues because the international community applied a version of “uti possidetis juris” in transforming existing internal borders of the various Yugoslav republics into international borders, despite the conflicts of ethnic groups within those boundaries. The northern two-thirds of Quebec already has made it clear it will resist by force being incorporated into a Quebec nation.

The border between Northern Ireland and the Irish Free State was based on the borders of existing counties and did not include all of historic Ulster. A Boundary Commission was established to consider re-drawing it. Its proposals, which amounted to a small net transfer to Northern Ireland, were leaked to the press and then not acted upon. In December 1925, the governments of the Irish Free State, Northern Ireland, and the United Kingdom agreed to accept the existing border. Most Irish Nationalists and Irish Republicans claim all of Northern Ireland and are not particularly interested in new borders.

Current movements

For past movements see list of historical autonomist and secessionist movements and lists of decolonized nations. Also see list of autonomous areas by country and list of territorial autonomies and list of active autonomist and secessionist movements.

Australia

Recently (2003 onwards), self-determination has become the topic of some debate in Australia in relation to Aborigines (indigenous Australians). In the 1970s, the Aboriginal community approached the Federal Government and requested the right to administer their own communities. This encompassed basic local government functions, ranging from land dealings and management of community centres to road maintenance and garbage collection, as well as setting education programmes and standards in their local schools.

Israel and the Palestine

The right to self-determination as outlined in public international law is often referenced by both sides in the ongoing Israel-Palestinian conflict.

Kosovo

Kosovo is largely ethnic- Albanian province of Serbia (and previously Yugoslavia) which seeks independence on territories long held by ethnic Serbs. This culminated in the 1996-1999 Kosovo War between the Kosovo Liberation Army (KLA) and Serbians led by Slobodan Milošević. This culminated in the 1999 U.S./NATO attacks on Serbia, withdrawal of Serbian troops and entry of the NATO Kosovo Force. International negotiations to determine the final status of Kosovo were unsuccessful. On 17 February 2008, 109 members (10 members including all Kosovo Serbs were absent) of the Kosovo Assembly voted unanimously for a unilateral declaration of independence. Serbia rejected the decision. See the 2008 Kosovo declaration of independence.

Kurdistan

Kurdistan is the land of the Kurdish people of the middle east. The territory is currently part of 4 states Turkey, Iraq, Syria and Iran. There are Kurdish self determination movements in each of the 4 states. Iraqi Kurdistan has to date achieved the largest degree of self-determination through the formation of the Kurdistan Regional Government, an entity recognised by the Iraqi Federal Constitution.

The right of the creation of a Kurdish state was recognized following World War I in the Treaty of Versailles. However, the treaty was negated by force on behalf of the newly created Republic of Turkey. To date two separate Kurdish republics and one Kurdish Kingdom have declared sovereignty. The Republic of Ararat (Northern Kurdistan/Eastern Turkey), the Republic of Mehabad (Eastern Kurdistan/Iranian Kurdistan) and the Kingdom of Kurdistan (Southern Kurdistan/Northern Iraq), each of these fledgling states was crushed by military intervention. The Patriotic Union of Kurdistan which currently holds the Iraqi presidency and the Kurdistan Democratic Party which governs the Kurdistan Regional Government both explicitly commit themselves to the development of Kurdish self-determination.

Jammu region, the Kashmir Valley and Ladakh (Indian occupied Kashmir)

There is a democratic movement for independence led by the Hurriyet Conference in Jammu and Kashmir which want the application of the UN Resolutions calling for plebiscite in Kashmir. Insurgent groups in Indian-controlled Kashmir (the Indian state of Jammu and Kashmir) such as Lashkar-e-Toiba and Hizbul Mujahideen are currently trying to seek full independence for the whole region from India on the claim of its right to self-determination as an Islamic state. Both the insurgents and the Indian armed forces stand accused of human rights violations, with some insurgent groups conducting a policy of ethnic cleansing of Hindus in Kashmir, and the Indian army being accused of violating human rights of ordinary citizens of Kashmir.

Taiwan

Taiwan is the focus of a self-determination dispute in the East Asia region. The government of the People's Republic of China claims the entirety of Taiwan as its territory. However, Taiwanese independence advocates argue that there is no legal claim to Taiwan, as no legally binding treaty ever transferred sovereignty to China following World War II, an assertion that both the People's Republic of China and the Republic of China disagree with. At the same time, the de facto government of Taiwan, the Republic of China still has not formally withdrawn its claims to the mainland and several other areas. In practice, however, this claim essentially died off through the 1990s and is no longer pressed by Taiwan's elected government.

Turkish Cypriots

Since Turkey's invaision and continued occupation of Cyprus in 1974, an administration recognized by Turkey only was declared in 1983 - the so-calledTurkish Republic of Northern Cyprus. It is questionable whether it is the Turkish Cypriot community who claimed the right of self-determination in ending their partnership with the Republic of Cyprus given that they are greatly out-numbered by the Turkish settlers who were brought to the area by Turkey.

United States

The colonization of the North American continent and its Native American population has been the source of legal battles since the early 1800s. Surviving Native American were resettled to separate tracts of land (reservations) which have been given a certain degree of autonomy within the United States federal government.

The Chicano Movement (or Chicano nation) seeks to recreate Aztlán, the mythical homeland of the Aztecs comprising the Southwestern United States which is home to the majority of Mexican Americans. They include those of mixed Native American and Latino descent (Mestizo). They base their claim on the fact that the U.S. seized the territory as a result of the Mexican-American War

There is an active Hawaiian sovereignty movement which aims at rectifying the overthrow of the Hawaiian monarchy in the late 19th century which resulted in the incorporation of Hawai'i into the United States.

Since 1972, the U.N. Decolonization Committee has called for Puerto Rico's decolonization and for the U.S. to recognize the island's right to self-determination and independence. In 2007 the Decolonization Subcommittee called for the United Nations General Assembly to review the political status of Puerto Rico, a power reserved by the 1953 Resolution. This follows the 1967 passage of a plebiscite Act that provided for a vote on the status of Puerto Rico with three status options: continued commonwealth, statehood, and independence. In the first plebscite the commonwealth option won with 60.4% of the votes but U.S. congressional committees failed to enact legislation to address the status issue. In subsequent plebiscites in 1993 and 1998 the status quo was upheld.

Many current U.S. state, regional and city secession groups use the language of self-determination. A 2008 Zogby International poll revealed that 22% of Americans believe that "any state or region has the right to peaceably secede and become an independent republic.

See also

References

External links

Books

  • Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (Oxford Political Theory), Oxford University Press, USA, 2007.
  • Annalisa Zinn, Globalization and Self-Determination (Kindle Edition), Taylor & Francis, 2007.
  • Marc Weller, Autonomy, Self Governance and Conflict Resolution (Kindle Edition), Taylor & Francis, 2007.
  • Valpy Fitzgerald, Frances Stewart, Rajesh Venugopal (Editors), Globalization, Violent Conflict and Self-Determination, Palgrave Macmillan, 2006.
  • Joanne Barker (Editor), Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-Determination, University of Nebraska Press, 2005.
  • David Raic, Statehood and the Law of Self-Determination (Developments in International Law, V. 43) (Developments in International Law, V. 43), Springer, 2002.
  • Y.N. Kly and D. Kly, In pursuit of The Right to Self-determination, Collected Papers & Proceedings of the First International Conference on the Right to Self-Determination & the United Nations, Geneva 2000, G E N E V A 2000, preface by Richard Falk, Clarity Press, 2001.
  • Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Hersch Lauterpacht Memorial Lectures), Cambridge University Press, 1999.
  • Percy Lehning, Theories of Secession, Routledge, 1998.
  • Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, University of Pennsylvania Press, 1996.

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