On the Right to External Self-Determination: 'Selfistans,' Secession and the Great Powers' Rule
Minnesota Journal of International Law, Vol. 19, 2010
29 Pages Posted: 4 Feb 2009 Last revised: 26 Apr 2009
Date Written: April 23, 2009
The notion of self-determination is not novel in modern international law. It stems back to the beginning of the 20th century, when world leaders in the wake of World War I realized that national peoples, groups with a shared ethnicity, language, culture, and religion, should be allowed to decide their fate - thus, to self-determine their affiliation and status on the world scene. The same idea applied later in the same century to colonial peoples, and by the 1960's, it became widely accepted that oppressed colonized groups ought to have similar rights to auto-regulate and to choose their political and possibly sovereign status. However, as decades passed by and as separatist minority groups throughout the world, operating outside of the decolonization paradigm, began challenging the concept of state territorial integrity, it became clear that the notion of self-determination had to be somehow confined. Thus, courts and scholars came up with two different forms of self-determination: internal versus external. The former potentially applies to all peoples, and signifies that all peoples should have a set of respected rights within their central state. Thus, minority groups should have cultural, social, political, linguistic and religious rights and those rights should be respected by the mother state. As long as those rights are respected by the mother state, the "people" is not oppressed and does not need to challenge the territorial integrity of its mother state. The latter applies to oppressed peoples, the ones whose basic rights are not being respected by the mother state and the ones who are often subject to heinous human rights abuses. Such oppressed peoples, in theory, have a right to external self-determination, and external self-determination signifies that such peoples have a right to remedial secession and independence.
In theory, the distinction between internal v. external self-determination is easy to draw, and a scholar or a judge should have no difficulty deciding which minority groups should accrue the more drastic right to external self-determination. After all, we could simply look to the human rights record of the mother state, and if the record showed violations, we could determine that the minority group should be allowed to separate. In reality, the distinction is very difficult to draw. Numerous minority groups around the globe have been mistreated and have asserted their rights to external self-determination, only to find themselves rebuffed by the world community. On the other hand, some minority groups have found strong support in the eyes of the external actors, and have garnered sufficient international recognition to be allowed to separate. Why? What is so unique about some minority groups and about their independence quests that would justify the authorization to remedially secede? When exactly - under what circumstances - does the right to external self-determination accrue? In order to answer this complex question, this Article will discuss, in Part II, the notion of self-determination, its history and its recent applications. In Part III, this Article will describe how the theory of self-determination is linked to other international law concepts, such as statehood, recognition, sovereignty and intervention. In Part IV, this Article will focus on several case studies, to illustrate the discrepancy of results attached to the self-determination struggles by different peoples. Thus, this Article will describe the self-determination quests of East Timor, Kosovo, Chechnya, South Ossetia and Abkhazia, and will show that while the first two entities achieved external self-determination, the latter three did not. Finally, in Part V, this article will argue that each self-determination seeking entity needs to meet four different criteria in order to have its quest validated by the international community. These four criteria include a showing by the relevant people that it has been oppressed, that its central government is relatively weak, that it has been administered by some international organization or group, and that it has garnered the support of the most powerful states on our planet. This Article will conclude by positing that the fourth criterion is the most crucial one: that any self-determination seeking group must obtain the support of the most powerful states, which I (and other scholars) refer to as the "Great Powers," and that it is the Great Powers' support or lack thereof that determines the fate of numerous peoples on our planet struggling to gain independence. This Article will posit that the right to external self-determination accrues for different peoples if and when the Great Powers decide to recognize those peoples' causes. Ultimately, this Article will argue that such a result is unfortunate, as it inappropriately mixes the legal with the political realms, and that any rule by the Great Powers inherently challenges the notion of state sovereignty and equality.
Keywords: self-determination, secession, independence, sovereignty, intervention, great powers, peoples
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