Self-Determination Procedures

By
Eric Brahm

September 2005
 


Chester Crocker discusses a model for implementing and monitoring peace agreements.

Since the end of the Cold War, more and more groups of people have demanded the right to "self-determination", meaning they have demanded their own nation-state or some degree of autonomy within another nation state. The demands may be political — groups may want sovereignty or a greater political "voice" in the governmental structure, or they may be cultural — wanting the right to preserve their own language, cultural traditions, and "way of life." (Or they may be both.)

The responses to these demands have been quite varied, ranging from complete denial (through ignoring the demands, or repressing them) to trying to accommodate them to lesser or greater degrees. Often considerable conflict emerges before an accommodation (of whatever kind) is worked out.

In order for these conflicts to be resolved, steps must be taken to address the desire for self-determination. At times, such conflicts have been resolved through secession. In many cases, however, this is unnecessarily extreme and impractical. Thus, self-determination efforts that involve breaking up a state are still generally viewed unsympathetically, especially due to the fear of setting a bad precedent. The recognition of former Yugoslav states was an important exception, however.

Richard Falk has categorized the different types of self-determination claims that have been made historically.[1] The table below summarizes these claims.

 
Type A: Claims of Secession and Autonomy
 
First Order: Decolonization; elimination of foreign rule (e.g., Indonesia, India, Tunisia)
Second Order: Secession by federal units in relation to a central government (e.g., Slovenia, Croatia, Bosnia and Herzegovina, Slovakia, Kashmir, Aceh, and Quebec)
Third Order: Administrative subunits (e.g., Chechnya, Kosovo, Dagestan)
Fourth Order: Indigenous communities or nations (e.g., Cree, Navajo, Zapatistas)

 

Type B: Claims of Human Rights and Democracy
 
First Order: The option of colonial status (e.g., Falklands)
Second Order: The option of federalism
Third Order: The option of legal regimes of guaranty and protection that confer rights of access, participation, and equality
Fourth Order: The option of fiduciary arrangements administered by a traditional territorial sovereign, with an undertaking to preserve traditional rights to sacred land (including hunting and fishing rights), and the ways of life of minorities and indigenous peoples

This essay reviews the evolution of the concept of self-determination, examining how it has been addressed in international law and through devices internal to states, It then considers some criticisms of self-determination.

The History of Self-Determination

The idea of self-determination is often traced to the American and French revolutions and the principles of individual liberty and freedom that they embodied. By the beginning of the twentieth century, self-determination was a widely accepted concept throughout Europe and the United States. It is evident in the writings of Wilson and Stalin early in the twentieth century, and was enshrined in the United Nations at its founding. However, self-determination had evolved to mean something quite different in Central and Eastern Europe than in Western Europe and the U.S.[2] In Western Europe, it was based in the notion of popular sovereignty giving rise to representative government. In an ideal sense, individuals primarily exercised their right to self-determination by electing representatives to act on their constituents' interests. In Central and Eastern Europe, by contrast, it was rooted in an exclusive nationalism that led ethnic groups to seek their own country. As such, national minorities were more of a problem in the latter region.

The aftermath of World War I brought these issues to the forefront. Wilson's Fourteen Points outlined a number of principles of self-determination, but applied only to Europeans. Lenin's rhetoric, by contrast, was much more universal though ultimately less influential. Initially, the Wilsonian idea that the principle of self-determination did not apply to colonies was sustained. A number of ‘peoples' were granted self-determination as a result of the Paris Peace Conference. This process, however, only created more subgroups that were not granted their own states. Instead, they were labeled national minorities, which formally entitled them to guarantees of being able to maintain their cultures. The victors of World War I required the new states in Central and Eastern Europe to accept these conditions in order to be recognized, but did not accept the obligations themselves.

These ideas were built upon after World War II, principally through the United Nations. The U.N. Charter, Article 1(2), reflects a compromise between normative sympathies and the desire of European countries to retain their colonies by saying, "To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples." An increasingly expansive view of self-determination emerged in subsequent decades for a number of reasons. Economic and political strains reduced the will of European powers to retain colonies. The Cold War rhetorical battle laid bare the contradictions between the West's claims to being defenders of freedom while at the same time maintaining their colonial dominions. What is more, the work of activists brought human rights to greater attention internationally. Finally, the rise of nationalism made self-determination attractive. This culminated in the 1960 U.N. Declaration on the Granting of Independence to Colonial Peoples,[3] which has had the effect of shifting the conception of self-determination from a principle to a right.

Self-Determination in International Law

At present, a tension exists between the right of self-determination and the principle of territorial integrity of the sovereign state. Self-determination in international law takes two primary forms. One part is the developing human rights law, which is predicated on the notion of giving individuals more control of their lives. The other part, which is more contentious, involves groups that make claims to establish independent sovereign states.[4] This conflicts with the long-standing understanding that international borders are inviolable. Legally, self-determination has generally been confined to the level of the state. Empirically, those movements that utilize violence and succeed tend to be recognized, thereby spreading the message that violence pays.[5]

Some argue that all separatist claims are tied to territory and rooted in historical grievances and, therefore, any resolution requires addressing territorial needs. Simply being a distinct people is not enough in Brilmayer's view.[6] Norms of international law, however, do not root themselves in a territorial claim, but rather whether the aggrieved group constitutes a distinct people. Ideas of democratic participation have been confused with self-determination.

Self-determination has also been viewed in terms of human rights, which requires recognition that this right is limited by the necessity of protecting the rights of others and of the general community as with any other human right.[7] International law does not provide clear standards with respect to this view.[8] Any effort to construct standards must take account of human rights standards and the ability of an appropriate body to enforce those standards.[9] Self-determination does not necessarily entail statehood, but a number of other mechanisms exist such as membership in regional organizations and international fora. Parallel or multiple representation for substate actors, such as Taiwan's participation in the WTO, provides another means to minimize secessionist pressures.

In a speech before the U.N. General Assembly in 1991, Prince Hans Adam II of Liechtenstein announced his intention to pursue a new direction for self-determination. The vision was to create a new legal framework with the goal of granting local communities greater self-administration. He hoped to makewith self-determination less of a zero-sum proposition with respect to national borders. Some see the merit of the proposal in its potential to underscore symbolic rights while restricting the potential for destabilizing the international system.[10]

Internal Self-Determination

Given the limited opportunities for international

recognition

that exist for most groups threatening secession, alternative solutions have been sought that allow groups a greater degree of self-determination within existing state borders. Academic solutions to ethnic conflict have tended to revolve around two different solutions to ensuring that democratic institutions do not produce permanent minorities: the consociational and integrative, or pluralist, models of democracy.[11]

Consociationalism focuses on bringing political elites together by structuring government to promote cooperation and prevent any group from becoming a permanent minority.[12] Federal or confederal arrangements that are based on internal borders corresponding to group divisions are favored, which grant some measure of autonomy for each group. Control over cultural and educational policy is also placed at this lower level to correspond with group wishes. Highly proportional electoral systems also are important in ensuring that even relatively small groups have a voice in national government. This would be further enhanced by proportional representation and consensus decision rules in executive, legislative, and administrative decision-making.

The integrative or pluralistic approach stands in contrast to consociationalism, in its approach to promoting self-determination within existing international borders. It shares with consociationalism a preference for federalism and proportionality. However, whereas consociationalism seeks to limit extremist politics, integrative approaches seek to create incentives for integration across communal divides.[13] As a result, federal structures are designed which cut across group lines, resulting in mixed constituencies. Majoritarian decision-making and electoral rules are favored which necessitate appeals across social divisions, while at the same time preserving some mechanisms for integration. Ethnicity-blind public policy is also important in this regard.

These two ideal types are not necessarily as distinct as some make them out to be. Some have delineated four different approaches: consociationalism, centripetalism, integrative consensualism, and explicit recognition of communal groups.[14] Sisk goes further to argue that consociationalism and integrative approaches should not be seen as either/or propositions. On the contrary, from both can be derived a "menu of options from which policymakers might choose as they confront the complexities of any given ethnic conflict."[15]

Real-World Examples

In practice, conflict-torn states have tried a number of innovative ways to address self-determination demands. This subsection will briefly review recent institutional innovations in South Africa, Northern Ireland, and Bosnia-Herzegovina.

The self-determination mechanisms in South Africa were generally intended to be transitional in nature, with the understanding that integrative, majoritarian practices would eventually become the norm. In the case of South Africa, self-determination issues were solved by turning them into process issues through interim safeguards such as the Government of National Unity.[16] The transitional arrangements contained a number of power-sharing mechanisms including a power-sharing executive and proportionality measures. The Constitutional Assembly was also governed by weighted voting. The final constitution contained provision for a Volkstaat Council, which would serve as a mechanism to create an Afrikaner state should they choose to pursue that course. Weighted voting was also used at both the federal and provincial level as well as governing the ability of each level of government to legislate in each other's realm.

In Northern Ireland, the self-determination language in the Belfast Agreement is ambiguous to the extent that both sides can read it as reaffirming their positions. A close reading of the agreement leads one observer to the conclusion that "while the language of self-determination appears to support Irish Republican analysis, the mechanism of implementation appears to entrench unionist analysis."[17] Consociational mechanisms of proportionality, executive power-sharing, and mutual vetoes are part of the agreement. A number of cross-border and supranational arrangements have also been created:

  • The North-South Ministerial Council brings the island of Ireland together;
  • The British-Irish Inter-Governmental Conference provides a mechanism for cooperation between the British and Republic of Ireland governments;
  • The British-Irish Council is envisioned as a venue for discussion between the Irish and British governments, as well as areas with regional autonomy within the United Kingdom such as Wales and Scotland.

In Bosnia-Herzegovina, the new system of government was the central element addressing self-determination.[18] The constitution sets out in great detail appropriate powers for the federal level and the regional areas. The central government is relatively weak, centered on a three-person presidency representing the Bosniacs, Serbs, and Croats. The parliament is filled by a proportional system and utilizes a mutual veto.

Claims of Indigenous Peoples

Demands for self-determination by indigenous peoples have also become increasingly prominent. At this point, the merit of these claims based on international law is unclear.[19] Yet, significant steps have been taken in recognizing such claims. Supporters claim these rights as deriving from colonialism. However, this claim potentially opens a huge can of worms. The confusion is often compounded by the blurring of symbolic and substantive goals of supporters of indigenous self-determination.[20]

"The unresolved issue is how to confer on indigenous peoples an appropriate entitlement that belatedly rectifies, to some extent, past injustices without in the process creating an explosive situation with respect to contemporary realities."

Criticisms

The concept of self-determination has been the subject of considerable criticism..[21] Self-determination is an imprecise and ill-defined concept The message from historical examples seems to be, that achieving self-determination through peaceful means is acceptable, but disrupting territorial integrity is not. At the same time, when self-determination has been achieved militarily, the international community has generally been reluctant to reverse the gain. The claim is also made that too much focus on self-determination can be dangerous. An over-generous acceptance of self-determination could lead to fragmentation and the rise of intolerance, because it would no longer be necessary to coexist peacefully. Despite these problems, however, it is clear that claims to the right of "self-determination" are not abating, and the international community needs to develop better ways of addressing these demands that avoid destructive conflict and violence.

 


[1] Ibid., p. 66.

[2] Thomas D. Musgrave, Self-Determination and National Minorities (New York: Oxford University Press, 1997), chr. 1.

[3] Richard Falk, Self-Determination Under International Law: The Coherence of Doctrine Versus the Incoherence of Experience. In The Self-Determination of Peoples: Community, Nation, and State in an Interdependent World, ed. Wolfgang Danspeckgruber (Boulder: Lynne Rienner Publishers, 2002), 42-3.

[4] Ibid., 31-66.

[5] Ibid., 36.

[6] Lea Brilmayer, "Secession and Self-Determination: A Territorial Interpretation," Yale Journal of International Law 16 (1991): 177-202.

[7] Robert McCorquodale, "Self-Determination: A Human Rights Approach," International and Comparative Law Quarterly 43 (1994): 857-885.

[8] Patricia Carley, Self-Determination: Sovereignty, Territorial Integrity, and the Right to Secession (Washington DC: United States Institute of Peace Press, 1996).

[9] Ibid.

10] Richard Falk, Self-Determination Under International Law: The Coherence of Doctrine Versus the Incoherence of Experience. In The Self-Determination of Peoples: Community, Nation, and State in an Interdependent World, ed. Wolfgang Danspeckgruber (Boulder: Lynne Rienner Publishers, 2002).

[11] Timothy Sisk, Power Sharing and International Mediation in Ethnic Conflicts. (Washington DC: United States Institute of Peace Press, 1996).

[12] Arend Lijphart, "Consociational Democracy," World Politics 21 (1969): 207-225.; Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration (New Haven: Yale University Press, 1977).

[13] Donald Horowitz, Ethnic Groups in Conflict (Berkeley: University of California Press, 1985), 597-600.

[14] B. Reilly and A. Reynolds, Electoral Systems and Conflict in Divided Societies, Papers on International Conflict 2 (Washington DC: National Academy Press, 1999).

[15] Timothy Sisk, Power Sharing and International Mediation in Ethnic Conflicts. (Washington DC: United States Institute of Peace Press, 1996), 8.

[16] Christine Bell, Peace Agreements and Human Rights (New York: Oxford University Press, 2000), 121-134.

[17] Ibid., 135.

[18] Ibid., 143-152.

[19] Maivan Clech Lam, At the Edge of the State: Indigenous Peoples and Self-Determination (Ardsley, NY: Transnational, 2000); S. James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996).

[20] Falk 2002, p. 62.

[21] Emilio J. Cardenas and Maria Fernanda Canas, "The Limits of Self-Determination," in The Self-Determination of Peoples: Community, Nation, and State in an Interdependent World ed. Wolfgang Danspeckgruber (Boulder: Lynne Rienner Publishers, 2002), 101-118.


Use the following to cite this article:
Brahm, Eric. "Self-Determination Procedures." Beyond Intractability. Eds. Guy Burgess and Heidi Burgess. Conflict Information Consortium, University of Colorado, Boulder. Posted: September 2005 <http://www.beyondintractability.org/essay/self-determination>.


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