The Right to Self-Determination in International Law and Practice

I delivered this brief talk to a Model UN conference at Dartmouth on March 28. Here is the text of my remarks.
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My topic for tonight is “The Right to Self-Determination in International Law and Practice.” The right to self-determination is one of the most controversial concepts in international relations today. The government of Russia has cited it as a justification for its annexation of Crimea following a doubtfully free and certainly unfair referendum in that territory. The government of Catalonia has cited it in its effort to hold a truly democratic referendum on independence from Spain later this year. What does the right to self-determination mean in international law? And how well does international practice actually conform to international law?

The right to self-determination of peoples is found in the original United Nations Charter, which states among its purposes, “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.” The two original UN human rights instruments, the ICCPR and ICESCR, also guarantee the right of self-determination to “all peoples.”

But what is a “people”? That was left undefined. The UN developed a list of “non-self-governing territories” whose status was to be monitored. Originally, the right to self-determination for these territories was not meant to include a right to immediate independence. Article 73 of the original UN Charter merely provides that member states administering non-self-governing territories ensure their “political, economic, social, and educational advancement,” and assist the “progressive development of their free political institutions.”

In the 1940s and 1950s, anticolonial movements emerged in Africa and Asia to fight for immediate independence, and frequently faced stiff military opposition from their imperial masters. The major colonial powers gradually realized that they could not prevent many of their territories from claiming independence. Only in 1960 did the UN adopt the “Declaration on the Granting of Independence to Colonial Countries and Peoples.” This resolution affirmed that the right of self-determination meant that every non-self-governing territory was to have a chance to decide its own political status, whether integration with the metropole, a status of “free association” with the metropole, or independence.

The criterion for determining whether a territory belonged on the list for decolonization was that it be “geographically separate” and “distinct ethnically and/or culturally from the country administering it.” This criterion has come to be known as the “salt water test”: only if a territory is separated from its metropole by salt water does it have the right to self-determination under international law.

Clearly then, the right to self-determination under international law was never meant to be applied to secessionists in the classic sense. It was a tool for decolonization. This fact does not mean that secession is illegal under international law, only that member states of the United Nations are not required to give secessionist regions the opportunity to determine their own political status. Russia’s justification for its forcible seizure of Crimea is therefore wrong.

International law itself is merely the creation of the governments that happen to exist on the globe. It would be surprising if existing governments were to set up a legal framework for their own dissolution. The “salt water test” is morally arbitrary, and it does not seem to have any rationale in conflict prevention or reduction.

There is another concept of the right to self-determination: a moral concept. Last year,

the Catalan parliament passed a resolution declaring the sovereignty of the Catalan people, including their right to decide their own political status. This move is preparatory to a planned referendum on independent statehood for Catalonia. The Catalan declaration was not meant to accord with Spanish or international law; indeed, sophisticated Catalans fully recognize that an independence referendum would contravene Spanish law and find no warrant in international law. They believe that Catalans have a moral right to decide their own political status, and that Spanish law is morally invalid to the extent that it denies this right.

This perspective is perfectly coherent and even plausible. We know that governments have often enacted immoral laws, laws that one has every right, or in some cases even a duty, to break.

But an even bigger problem with international law is that it can only weakly constrain actual governments. There is neither a world government nor world police. The United States and its allies can dismember Serbia in contravention of international legal guarantees of the territorial integrity of states, and Russia can do the same to Ukraine. I do not draw a perfect moral equivalence between Kosovo and Crimea, but there is a legal equivalence, and in both cases international law was cast aside. Morocco is able to occupy Western Sahara for decades without serious penalties, despite repeated UN declarations that the former Spanish colony should have the right to decide its own future. Indonesia did the same to East Timor until 1999 and the arrival of a new, democratic regime.

Though international law is weak, it is not wholly ineffective. International law does serve as a coordinating mechanism, allowing governments to develop expectations about others’ behavior and to measure other governments’ compliance with widely accepted norms. As a result of their annexation of Crimea, Russia’s leaders have lost reputation. Their neighbors and rivals now deeply mistrust them.

Still, when it comes to how the right to self-determination will be exercised, state interests matter more than international law. Unsurprisingly, very few governments constitutionally protect a right of any part of their territory to secede. The old Soviet and Yugoslav constitutions contained provisions for secession, but the Communist Party’s monopoly of power in each state was meant to prevent these provisions from ever being exercised. Similarly, Ethiopia has a provision for unilateral regional secession, but it is also a single-party authoritarian state. Only two democracies constitutionally protect a right of secession: the European Union and St. Kitts and Nevis. The European Union, which lacks only a common defense and security policy to have all the essential elements of statehood, has adopted a constitution that explicitly recognizes the right of member states to withdraw unilaterally from the Union. The EU presumably wants to guarantee a right of secession so that the EU remains an attractive institution for additional countries to join. St. Kitts and Nevis’ constitution permits the secession of the island of Nevis by a two-thirds vote in a plebiscite on the island.

Beyond these examples, however, several liberal democracies have begun to recognize a negotiable right of secession for at least some of their territories. The government of the United Kingdom has declared that it will recognize the results of the upcoming Scottish referendum on independence, and the British and Scottish governments have previously negotiated the terms of that referendum. Denmark has allowed Greenland and the Faroe Islands to pursue independence, and in 1944 allowed the secession of Iceland. The Canadian government has allowed Quebec to hold referendums on sovereignty but has denied that Quebec has a unilateral right to secede. The Canadian Supreme Court has ruled that if a province votes by a “clear majority” on a “clear question” for secession, the federal government must negotiate the terms of future partnership in good faith, and may not use force to prevent secession. The United States is a middle case between Denmark, Canada, and Britain on the one hand and Spain, France, and Italy on the other. The 1869 Supreme Court decision in Texas v. White established that a state does not have a unilateral right to secede, but it may secede with the consent of the other states, presumably through an act of Congress. Congress has voted to allow Puerto Rico to gain its independence whenever its people so desire. Spain, France, and Italy deny altogether the possibility of secession, and a constitutional amendment would be required in those countries to permit independence.

There are good reasons for central governments to permit their regions some pathway to independence. Civil conflicts have killed seven times more people than interstate conflicts in the post-World War 2 era, and the most common and intractable form of civil conflict is the separatist conflict. The reason separatist conflicts are so difficult to resolve is that any negotiated settlement to a separatist conflict must grant some form of regional autonomy to the aggrieved minority group. But once autonomy is established, it is difficult for both central governments and former rebels to commit credibly to maintaining it. Once rebels have laid down arms, the central government will be tempted to abrogate or gradually to undermine regional autonomy, as the governments of Sudan, Russia, China, and Ethiopia have done in the past. Furthermore, former rebels will be tempted to use the institutions of regional autonomy to build their own political and military capacity for another confrontation with the central government, demanding more powers than they got last time — roughly what happened in the Soviet Union and Yugoslavia before their breakup. Because neither side can credibly commit to respecting a compromise on regional autonomy, they fight on.

Legalizing secession would allow both central governments and secessionists to commit credibly to respecting regional autonomy. Central governments cannot undermine regional autonomy without risking a secessionist response. If regions have the right to secede, central governments will respect their rights. Also, minority nationalists within the regional government will not try to declare independence unilaterally or launch an insurgency against the central government if they have available a peaceable and democratic path to independence. They will undermine their domestic and international legitimacy by fighting when they have a perfectly good mechanism to achieve their goals peacefully. Fighting would be an admission that they could not win the support of their own people.

Accordingly, combining a legal pathway to secession with generous decentralization is a formula to prevent and to resolve secessionist conflicts and save lives. Indeed, I find in my book, Secessionism, that governments that have tolerated secession like Britain, Canada, Denmark, and Belgium have suffered less secessionist conflict than governments that do not tolerate secession, like France, which has seen secessionist conflict in Corsica, Spain, which has seen secessionist conflict in the Basque country, and Italy, which has seen irredentist conflict in South Tyrol and minor secessionist conflict in Veneto.

Nevertheless, today, the right to self-determination for secessionists is usually treated as a domestic matter, not an international one. Governments are usually reluctant to provoke enmity from other governments by openly supporting secession efforts in them. But because secession adds a new state to the international system, governments cannot completely ignore secessionist conflicts either.

Governments have been inconsistent in their approaches to recognizing seceding states. The U.S. government quickly recognized South Sudan and Kosovo after their declarations of independence, but would not have recognized Quebec in 1995 without the consent of Canada, and has never recognized some de facto states like Nagorno-Karabakh, Turkish Republic of Northern Cyprus, Abkhazia, and Tamil Eelam. Jonathan Paquin finds that the U.S. bases its recognition decisions on the criterion of regional stability: it seeks to legitimize whatever arrangement is best conducive to future peaceful relations in the region. Whether the U.S. government has been successful in this effort is debatable, of course. Kosovo does not look like a sterling success, for example; though some form of independence may have been inevitable, the Contact Group, of which the U.S. government was a part, should have been willing to negotiate border issues with Serbia in order to obtain the latter’s consent to independence and thereby avoid inflaming Serbian ally Russia and setting a precedent for what has happened in Abkhazia, South Ossetia, and Crimea.

Looking at all “Great Powers,” Bridget Coggins has found that these governments are more likely to recognize new states that are former colonies or the component units of ethnic federations. Winning a civil war also makes secessionists more likely to gain Great Power recognition, unsurprisingly, but a higher overall level of violence between secessionists and a central government is associated with a lower likelihood of recognition. Finally, nondemocratic Great Powers are far less likely to recognize secessions from other nondemocracies, consistent with nondemocracies’ generally “conservative” international orientation (that is, placing stress on territorial integrity and noninterference above human rights norms).

For the foreseeable future, the exercise of the right to self-determination will depend crucially on the interactions between central governments and the secessionist movements in their territory. There is a limited role that international law can or will play. Still, because secession affects the entire state system, governments will continue to use the diplomatic tools at their disposal to address secessionist disputes. A wise use of the recognition power would focus on maintaining the stability of the overall system. While we may be sympathetic to many of the claims for self-determination made around the world, or at least believe that central governments ought to handle them more pacifically and democratically, it would be dangerous and unwise to confer upon any international institution or powerful state or clique of states the power to determine which states will be broken up and which will be allowed to remain whole.