Neither of these peoples is currently colonized, and if accepting the view that international law embraces the right to external self-determination only for colonized peoples, then one would conclude that the Kurds and the Catalan have the right to internal self-determination only. Kurds suffered years of oppression under the Saddam Hussein regime, when they had no meaningful rights to internal self-determination. Iraq is no longer ruled by Saddam Hussein, and the current Iraqi leadership has appeared willing to grant Kurdistan some form of autonomy.
A secession argument rooted in international law is very difficult to craft for Catalonia. The Catalan have not been oppressed by Spain and have enjoyed meaningful internal self-determination rights; it also appears that Spain is willing to respect Catalan autonomy in the future. POST Oct. Michael P. Skip to main content.
January 05, Introduction Kurds held an independence referendum on September 25, , deciding by an overwhelming majority that they wished to separate from Iraq and form an independent state of Kurdistan. Secession While international law embraces the principle of self-determination, it does not contain a right of secession.
The existing anti-secessionist regime is based on a number of 'peremptory norms' of international law jus cogens. Directly related are the principles of territorial integrity and inviolability of frontiers including former colonial frontiers , followed by the principles of sovereignty, the right of states to self-defence, non-intervention in a state's internal affairs, in this instance a ban on assisting separatist movements.
Consequently the self-determination of peoples as a legal principle emerges drastically curtailed, a as a right to independence from a colonial power, b as freedom from occupation and c as the right of a majority to hold power and not to be dominated by a minority what is called 'internal self-determination' Unilateral secessionist or 'national' ethnic self-determination on the part of a numerical minority is rejected.
Interestingly however internal threats and wars are neither condoned nor encouraged. But this provides little solace to secessionist movements as the only hope for numerical minorities lays in the international law of human rights and the emerging set of minority rights which until now do not include a right to autonomy Other valid concerns include indefinite divisibility internal as well as regional , otherwise known as the domino effect; the issue of stranded majorities or trapped minorities; the non-viability of the rump state; the danger of giving birth to non-viable entities which would be a burden internationally; the damage done to the will of the majority; and the ability of a minority to constantly blackmail the majority with secession Autonomy : Acceptable or Intolerable Compromise.
Autonomy lato sensu or devolution includes all kinds of arrangements aimed at granting a group which differs from the rest of the population in a state, a special status whereby it is in the position of expressing itself and its identity as a group in a particular region There are various forms of autonomy or devolution within states, such as the following cases: personal or functional autonomy, as with the Muslims Turks and Pomaks in Greece Thrace ; territorial autonomy, be it limited e.
Territorial autonomy and other forms of devolution such as various federal blueprints have been tried with success, notably in modern developed states, not leading to further disintegration or violence. They have also been tried with varying degrees of success among less developed states in several countries in Africa and Asia, such as Nigeria after the January civil war, in the greater part of India, in Tanzania or in Malaysia.
Indeed, a number of ethnonational and separatist conflicts have been prevented or managed early on by 'consociationaP or 'proportional power-sharing' arrangements'24 within a federal or autonomy framework, notably in the Western world, but also in Asia and Africa and, more recently, within the however wobbly and insecure as to their identity Russian Federation in the case of Tatarstan, Ukraine with the Crimea and Moldova with regard to the Gagauz Autonomy : Addressing the State Dilemma.
Despite the experience of so many forms of devolution, many states are reluctant to entertain forms of internal self-rule but prefer to stick to a very centralised model of governance. Not surprisingly this applies, in particular, to states facing armed separatist movements. Under these circumstances governments are loath to reach a political settlement with the 'insurgents' leading to devolution.
State prestige apart, governments or dominant groups are convinced that any 'give' on this vital question would be suicidal for it would make unilateral separation more realisable. It would prompt the separatists to abuse the devolution reached. Well established examples of this frame of mind among state authorities threatened by secession, are the Kurdish challenge in Turkey, India with regard to Kashmir and the Punjabi Sikhs, Pakistan towards the Bengalis of former East Pakistan , Sri Lanka and the Tamils, the Federal Republic of Yugoslavia and Kosovo or the Republic of Macedonia and its Albanians.
The most that these states could entertain is non-discrimination on the basis of ethnicity, minority rights or, in exceptional circumstances, personal non-territorial autonomy. We will approach the understandable state fear to afford autonomous rule in various ways. To begin with it needs to be emphasised once again that autonomy is not a minority claim that states are under a legal internal law obligation to meet.
Existing international law does not recognise a right to autonomy. Be this as it may, for territorial autonomy or a federated status to be established and to be able to function smoothly, precise criteria are worth establishing.
Let us point to some of them. For one devolution should preferably be the outcome of dialogue with the regional group concerned; it should find strong support in that group as well as in the majority community.
Other criteria worth including are the following: little likelihood for ensuing hazards to other distinct groups or to members of the majority residing in the region in question the well known problem of 'minority within a minority' or 'trapped minority' ; the inclusion of adequate guarantees for cultural pluralism in the regional entity; no ensuing threat to the territorial integrity of the state concerned, that is, put differently, a firm undertaking not to seek secession after having obtained internal self-rule; and little likelihood for inter-state friction as a result of the devolution achieved, say by a neighbouring stating fomenting separatism in the region in order to annex the territory.
Worth taking on board are also several considerations suggested by William Safran, aimed at reducing the potential candidates for autonomous rule Does the history of relations between majority and minority suggest a pattern of discrimination so serious as to constitute legitimate grievances that need to be repaired?
In addition, safety clauses against abuse of autonomy arrangements by the parties in conflict and also by external parties fishing in their enemy's ethnic waters , and effective ones at that, can be designed to be coupled with convincing international safeguards.
Gradually mutual trust may be fomented and central authorities may come to realise that minority rights but also autonomous rule may be to their best interests if they want to be integrated non-conflict prone societies. As we have pointed out elsewhere :. The key here is for a state to come to perceive cultural-ascriptive diversity as actually enriching society, not as a necessary evil to deal with as best one can.
The other side of the coin is that the various distinct regionally-based groups would, for their part, not question -let alone threaten -the territorial integrity of the state concerned. They will remain loyal to the state that has come to terms with them by respecting them and by striving for an ongoing dialogue with the group in question in order to meet its concerns and provide for its needs.
This reciprocal solution of mutual respect and mutual 'acceptance' could be seen in terms of a legitimized reciprocal relationship, a kind of 'ethnosocial contract' Moreover, as we shall see, the case for a negotiated settlement leading to meaningful autonomous rule may be strengthened by other considerations as well.
Reinforcing the Case for Autonomy and a Non-military Solution. States that cling to a military rather than a political solution are more likely not to resolve the separatist conflict in question but rather to contribute to its indefinite continuation or resurgence with all the appalling cost and suffering.
Often military victories are short-lived. The separatist disappear to fight another day and reappear in the future, as with the Kurds of Iraq following their devastating defeat. Equally a military victory may make the separatists more realistic and more convincing in following a peaceful path to change. This new strategy may put the state concerned in an even more difficult position especially to the extent that it insists in its intransigent course, as seen with the case of Turkey and its Kurds in the wake of the PKK defeat on the battleground and the arrest of their leader.
For states there is also the more remote prospect of military defeat with or without extended third party assistance to the separatist movement which can lead to the country's dismemberment or to role-reversal the dominated becoming the top-dog. Equally the situation may freeze and remain for years in an ambiguous and tense state of limbo. In the latter case, time is likely to favour the secessionist entity, which gradually may come to be seen internationally asa.
Let us see in more detail what the record has to say. In the second half of the 20th century we have witnessed at least seventy cases of armed separatism.
As the years go by states are less able to overwhelm the separatist movement militarily. In addition, several conflicts are in a state of limbo following a stalemate or militarily preponderance of the separatist movement more often than not with outside help There is also a powerful moral and normative imperative against the military solution which, as time goes by, is all the more compelling.
In the wake of the Cold War, with democratic rule and the safeguard of human rights high on the international agenda as no less than a factor concerning a state's international legitimacy, 'smite to unite' is increasingly reproached so as to appear untenable,31 something almost inconceivable in the s and s. In fact today the states that are likely to be spared of much criticism are those that have. Furthermore, strategies of ethnic cleansing, mass abuse of human or minority rights are more likely to occur as a result of military victory than as a result of a negotiated settlement, not least because in the former one has presumably crushed the other side and can do as one pleases Clearly, more than ever before in human history, repression and the manu militari approach incur far greater international costs.
Of course within this more lenient pro-minority framework, expectations are bound to rise and the separatists are more likely to be increasingly assertive and maximalist in their demands.
This is reinforced by the fact that today separatist unilateral self-determination is less of an anathema than ever before since the heyday of Wilsonian self-determination, particularly if it concerns aggrieved groups with no realistic opening for accommodation and autonomy. But let us revert to the original apprehension of states which has often made them opt for military or other harsh tactics rather than trying to secure just, mutually acceptable, political settlement.
This is none other than the scourge of the 'slippery slope', 'stepping stone' or 'springboard' for independence as a consequence of internal regional self-rule.
Research on internal wars as a whole classic civil wars and ethnic wars suggest that the 'slippery slope' or 'stepping stone' effect is far from fanciful. Indeed it appears that military victories provide for more stable and viable solutions than negotiated settlements.
This applies in particular to classic civil war, where the aim is to capture the central authority, as with the Spanish or Greek civil wars. On the other hand there can be no iron-cast guarantee against future secessionist bids following a political settlement of power-sharing and devolution, especially today with the demonstration effect of several non-violent or relatively non-violent partitions, disintegrations or even successful secessions.
In the period Since there are at least three, Eritrea, Slovenia and Croatia, with others in line, perhaps most of all Somaliland. Let us see what leading authorities on ethnic conflict have to say. Donald L. Horowitz, hardly an idealist on the question of ethnic conflict for instance he argues for conflict management as the realistic solution in ethnic clashes rather than conflict resolution maintains that there is a good deal of evidence that devolution will not pave the way for independence but rather that it will prevent it William Zartman, a well-known realist on international affairs and internal wars goes even further, claiming that history shows the reverse, that with home rule people become preoccupied with their own issues and that responsibility tempers demands, for, he argues, ethnic rebellions arise secondarily because a people 'want to be left alone and primarily because they are not afforded a fair share' And Ted Robert Gurr's conclusion based on his extensive 'Minorities at Risk' project, is that '[n]either in theory not in practice is there anything inherent in autonomy agreements that leads to future civil war or disintegration of the state' These views are corroborated by other authors, be they optimists, such as Arend Lijphart or more pessimistic about the prospects of ethnic conflict resolution Our initial research into agreements following an ethnic or separatist conflict seem to confirm Gurr's empirical finding.
Notwithstanding the dangers of being outflanked by recalcitrant separatist factions, renewed violence is more often than not, the state's doing, because of the 'defections of the central government from the agreements' In this regard the Southern Sudanese are a case in.
When extended and meaningful autonomy was arbitrarily scrapped in by the central government, internal war broke out and has continued since Similarly in the case of Kosovo, when the extended autonomous status was scuttled by Serbia's Milosevic in 1 , the Kosovar Albanians opted for a non-violent Gandhian-type of struggle for independence which lasted for almost a decade, until the UCK took over in the late 1 s Gurr is of the view that the slippery-slope effect our third variant applies remotely in only one case, that of the Punjabi Sikhs striving for an independent Khalistan This is undoubtedly a glaring overstatement.
Furthermore, in a number of cases it is hair-splitting or indeed pointless whom to blame for the breakdown of an accord. But as for the Khalistan instance, the secessionist Sikhs are hardly the only ones responsible for the impasse. To give one example, the best known agreement to date, the Rajiv Gandhi-Longowal Accord was signed but hardly implemented by New Delhi, following Longowal's assassination soon after the agreement At least some of the vicissitudes of the India-Sikh affair can be placed under our second variant, which was also in operation in the case of Manila towards the Moros of the Philippines following the Tripoli accord43 and of Iraq towards its Kurds following the agreement In these and other separatist situations the central government dragged its feet, deliberately watered-down the agreement or schemed to undermine it, to make it patently unworkable and place the blame on the other side.
The picture would be more complete if one takes on board the several instances in which reneging from agreements reached sparked the particular intra-state conflict for the first time as seen in the following cases: with the Ibos of Eastern Nigeria in , when the January Abur i Ghana understanding was watered down by the Federal Military Government;45 with the Eritreans in , when Selassie's piece-meal dissolution of the Ethiopian-.
Eritrean Federation was complete;46 with the Baluchis in Pakistan inl;47 the East Pakistan Bengalis in ;48 or Slovenia and Croatia in reaction to Milosevic's campaign for a Serb-dominated Yugoslavia in 99 Technically this would also apply with Armenian Nagorno-Karabakh, Abkhazia and South Ossetia, though of course neither Azerbaijan nor Georgia can be held responsible for the initial decision to grant these regions autonomous status within these Soviet republics.
Of course this is not intended to minimise the dangers of 'spoiling' and 'outflanking', by the extremist groups as seen with the Basques in Spain continuing ETA terrorism in spite of limited ingroup support , the Catholics of Northern Ireland splinter groups from the IRA , the Nagas in India or the Moro in the Philippines in recent years.
As for the implacable Liberation Tigers of Tamil Ealam LTTE , until the recent cease-fire agreement , they have consistently foiled even the genuine Sinhalese openings for a peaceful resolution notably those in the s. In several instances it physically liquidated the members of the more moderate Tamil separatist fronts.
However, the most concrete arrangement reached, the autonomy scheme was on 'a take it or leave it basis' having been negotiated between India and Sri Lanka without LTTE participation in the talks And imposed peace agreements, even when finally signed by the parties in conflict, as in the case of Cyprus in , are unlikely to hold for long It would seem that the danger of a stepping stone is more endemic when it comes to secessionist irredentist movements whose avowed aim is after all union with the 'mother state' as has been the case with Kashmir and India, the Somalis in Ethiopia's Ogaden, the Turkish Cypriots, the South Ossetians with regard to Russian North Ossetia, Transdniestria and the Russian Federation, the Pattanis of Thailand and Malaysia, the Kosovar Albanians, and more clearly in the cases of the Serbs of Croatia, the Serbs and Croats of Bosnia-Herzegovina, IRA in Northern Ireland and the Armenians of Nagorno-Karabakh.
However, in most of them a strand emerged which did not seek union but rather independent statehood. This shift can at times open the way for self-rule short of independence. Feasibility is also a factor. Unilateral independence, though legally banned, stands more chances of becoming acceptable internationally. Furthermore the region in question may not border the 'mother-country', as with Transdniestria. There are at least two other reasons for a more differentiated line. One is that deep down, particularly at the level of leadership and elite, they may not relish being rendered mere provinces in a large state, the well known 'small fish in a big pond' mentality.
Furthermore, in several of them the mother-country is hardly keen to incorporate them, as seen in the case of Ireland Northern Ireland , Malaysia and the Pattani region of Thailand,52 the Russian Federation and South Ossetia53 and apparently Albania and Kosovo Theoretically the stepping stone effect could also apply with regard to 'pan-separatist movements' unredeemed nations stradding two or more states.
Yet pan-separatists have yet to develop into fully-fledged mass militant movements threatening several states simultaneously. Rather they have been ideas in the air, as seen with the notions of pan-Kurdistan mainly Turkey, Iraq and Iran , pan-Baluchistan in Pakistan and Iran or pan-Pakhtunistan Afghanistan and Pakistan. Revisiting the Principle of Self-Determination. From the normative angle as things stand until today, separatist management and resolution is possible mainly by upholding human rights, in particular equality and non-discrimination and by extending minority protection and minority rights to the aggrieved communal group; alternatively by overwhelming the separatist movement by the use of force if necessary the state is after all endowed with the legitimate use of violence.
However the latter option, is increasingly less acceptable today as a modus operandi than it was until the s in view of newer concepts of international legitimacy for states abiding by human rights, rule of law, pluralistic democracy and minority protection and international sensitivity on such matters, puts into question the previous carte blanche of states in their legitimate use of force.
Two other solutions are also offered both founded on mutual agreement of the parties and peaceful means: partition and the rearrangement of frontiers between two states by agreement. Today the complete ban on unilateral self-determination appears less convincing, particularly in the wake of a number of successful secessions. What is to be done at the international legal-normative-institutional level?
One can discern at least five options. There is of course the existing all-out ban and its antipode, 'national' self-determination, that is secession on ethnic grounds. Between the two extremes, the complete ban and national self-determination there are at least two alternatives: partial recasting with emphasis on devolution which we examined above and a secessionist option for federations. And there is the most controversial solution: secessionist self-determination within a set of well-defined criteria.
The principle of national self-determination or nationalism56 -a political principle and never a principle of international law -is in effect a 'Pandora Box' as far as nations are concerned.
If a people can convince that they constitute a nation then they are prima facie entitled to a state of their own. The group right to self-determination is universal, no nation can be deprived of it. But this leads to the primeval question, of who is to say who are a nation but the nation itself, which can lead to utter confusion Laying the main emphasis on ethnicity irrespective of other issues, endorses an ideology of ethnic exclusivity and acute ethnocentrism.
Such an approach runs against the grain of human rights, democracy and the protection of minorities. It undermines the very basis of a more humane, just and ethical society. More tangibly, as is well known the great majority of countries lack ethnic homogeneity. As a result an uncompromising nationalist approach leads to conflicting claims to territory, to intense communal conflict and attempts at 'ethnic cleansing', as seen with Bosnia-Herzegovina's predicament.
A 'free for all' is far from liberal or just but augurs an even harsher world of tests of strength in the battlefield. As for a secessionist option for federations it is not a novel idea. It has been limited to the internal constitutional level of individual states.
The possibility of secession has appeared in a handful of federal states: in the constitutions of the Soviet Union, more guardedly in the case of former Yugoslavia actually it amounted to partition, since it required the agreement of the other constituent parts , partially and very restrictively in the case Myanmar between and regarding only the units not likely to opt out and more recently in the case of Ethiopia.
0コメント