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Archive for March, 2014

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, (more…)

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  1. Vera Kichanova, Russian libertarian (and anti-Putin) activist, says Putin will only benefit from a “new Cold War.”
  2. A new peace agreement for the Mindanao region of the Philippines has been officially signed. Here are the key provisions, with detailed explanations.

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Extensions

For those who failed to sign up for Obamacare, the administration has provided a list of 17 ways you can get an extension. Apparently the extensions will be granted on the honor system (check a box, and we will trust you). If none of the justifications for extensions apply, you may only have to wait a few days. As HHS explains: “Categories that warrant special enrollment periods may be added in the future if other appropriate circumstances, as determined by CMS, become known.”

Megan McArdle tries to make sense of the latest delay given that it appears that total signups will be close to the Congressional Budget Office’s projections of 6 million. The most troubling scenario: the Young Invincibles are not signing up.

here’s the really worrying scenario: The demographics haven’t budged, or have only barely improved from earlier months. The White House knows that means that big premium increases are in the offing for 2015, and they’re hoping to head them off at least temporarily with this delay. Extending open enrollment, which is essentially what they’re doing, would then be a desperate play to get more young, healthy customers into the exchanges, and perhaps to make it a bit harder for insurers to raise rates. In some states, insurers have to file preliminary rate increases in May. And thanks to this latest extension, they won’t have final data to back up any requests for a premium hike.

David Nathan and Susan Levine (Politico) have provided a brief history of Obamacare delays for those who would like to see the latest adjustments in context.  One can only assume that this history will need to be revised in the near future.

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With the ongoing tension over Russia’s annexation of Crimea, now would be a good time to talk about the biggest myths people believe about the origins of secessionist movements around the world (even though Crimea is a case of irredentism not secessionism).

  1. Myth: Secession is contagious. Back in the 1990s, journalists worried a lot that the disintegration of the Soviet Union, Czechoslovakia, Yugoslavia, and Ethiopia heralded some broader worldwide trend toward the splintering of the state. Even some scholars indulged talk of our “neomedieval” future of microstates. Now, with secession referendums in Scotland and Catalonia on the docket, a secessionist party gaining support in Quebec, that online referendum in Veneto, and recent events in the post-Soviet space, I’m seeing similar questions about whether this is a new “trend.”

    Fact: Secession happens because of particular circumstances, not contagion. Scholars have looked at the evidence every which way, and in no case have they found evidence that secessionism spreads from country to country. The classic piece here is Ayres and Saideman (2000). I have also looked at the data in detail. The most one can say is that: 1) if a country has more secessionist movements, then any given ethnic group or region in that same country is more likely to become secessionist; 2) if an ethnic kin group in a neighboring country is secessionist, then an ethnic group is more likely to become secessionist (e.g., Kurds in Turkey, Iraq, Iran, & Syria); and 3) governments may worry somewhat about the precedents they establish when recognizing successful secessions (see Coggins (2011) – one example is Spain’s refusal to recognize Kosovo).

  2. Myth: Secession is an exercise of the right to self-determination enshrined in international law. Would-be secessionists sometimes point to the UN Charter’s statements on self-determination to argue that their central governments are legally bound to recognize their claims.

    Fact: The right of self-determination was never meant to apply to secessionists in the classic sense. The UN Charter did not originally affirm a right to self-determination as against existing states. Only in 1960 did the UN General Assembly pass a resolution authorizing independence for colonial peoples. Since that date, the UN has maintained a list of “non-self-governing territories” with a right to self-determination, that is, a right to determine their own status by plebiscite, whether independence or autonomy. Some of these, like Puerto Rico, have opted for autonomy. Still, the right to self-determination in the UN Charter and in international law was meant only to apply to cases of decolonization, and to cases of secession in which the right to colonial self-determination had not been recognized (as in East Timor, which Indonesia had conquered after its withdrawal from the Portuguese Empire). What counts as a colony? The “salt water test” applies: a territory is a colony/non-self-governing territory only if it is separated from its metropole by sea. According to UN Resolution 1541, a colony is “a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it.” This may be an arbitrary criterion from many perspectives, but it is the standard in international law.

  3. Myth: A distinct ethnic or cultural identity is what determines whether a region will host a secessionist movement. I cannot count the number of times I have seen Internet commenters casually assert that because Crimea is majority ethnic Russian, it must have a majority in support of joining Russia. The notion that a separate ethnic identity in a region causes secessionism there is widespread among laypersons.

    Fact: Although a separate ethnic identity is close to a necessary condition, the economic and political benefits of independence are what determine whether a region will host a secessionist movement. Plenty of ethnically distinctive regions do not host secessionist movements. In Belgium, Dutch-speaking Flanders is fairly secessionist, but hardly anyone in French-speaking Wallonia wants to secede. Flanders would benefit economically from independence; Wallonia would not. In India, hardly anyone in the Dravidian states of the south wants to secede, even though they are different linguistically, phenotypically (“racially”), and even religiously from the Hindi-speaking Hindus of the north who constitute the “ethnic core” of the Indian state. In the former Soviet Union, ethnocultural distance from the Russian majority was inversely related to strength of secessionism, with secessionism weakest in the majority-Muslim central Asian republics and strongest in the Baltics, Armenia, and Georgia. Not coincidentally, the central Asian republics were heavily dependent on Soviet subsidies.

  4. Myth: If every ethnic group had a right to secede, we would very quickly end up in a world with 10,000 independent microstates. This misconception is even common among academics.

    Fact: The vast majority of ethnic minorities around the world have no interest in seceding from their existing governments. This one is a myth for the same reasons that #3 is a myth. Even when we look solely at populous ethnocultural minority groups regionally concentrated in a historic homeland, of which the Minorities at Risk dataset counts 283 in the world, only about 38% of them have a secessionist movement of any kind, and most of those are small. Very few ethnonational minorities would vote for independence even if they were allowed to do so. In India, secessionists call for boycotts of federal elections. Yet in only one state with a secessionist movement, Jammu and Kashmir, do a majority of eligible voters actually fail to vote — and even in that state, my own research suggests a ceiling on secessionist support of about 20% of the population.

  5. Myth: Federalism is a good alternative to secession. Scholars and politicians in Western democracies often propose federalism or decentralization as a solution to secessionist pressures or conflicts. And indeed, a secessionist rebel group is unlikely to lay down arms without some kind of compromise on regional autonomy. But does federalism actually work well to prevent growth in secessionism?

    Fact: There is no solid evidence that decentralization reduces secessionism or the future risk of conflict, and federalism in the developing world is often very poorly designed. Will Kymlicka’s piece, “Is Federalism a Viable Alternative to Secession?,” is a useful starting point on this question. Even though Kymlicka is not an empirical political scientist, his comparative reflections on Canada and the U.S. get him a long way. The quantitative literature does not support any general relationship between federalism and ethnic conflict or secessionism, even though one can find individual pieces on one side or the other of this issue. The basic problem is that both secessionists and central governments face incentives to undermine federalism, and as a result, neither side will trust the other. Federalism is a particularly beside-the-point proposal in situations in which an ethnic minority faces off against a highly nationalistic and chauvinist ethnic majority, as in Sri Lanka, or in dictatorships in which constitutional bonds are particularly flimsy, as in Serbia under Milosevic or China today. Federal institutions will be unstable, and the ethnic minority will not trust them. Independence may be the only solution for preventing future conflict in such cases.

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What’s most interesting about this new international order is how the world’s rogue states and flouters of international legal norms are deploying the language of the human rights community with gusto to achieve their revisionist ends.

That’s from this piece at politicalviolenceataglance.org by Lionel Beehner. I recommend the whole thing, even though I would answer the question it poses in the title with a clear “no.”

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Morning Links

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Rand Paul traveled to Berkeley to give a speech yesterday, where he received a standing applause ( likely becoming the first person to get this reception at CPAC and at Berkeley)

As Carla Marinucci (SFGate) notes:

Cheered by a youthful audience in one of the country’s most liberal enclaves, Sen. Rand Paul – one of the Republican Party’s leading contenders for the White House in 2016 – delivered a scathing rebuke to the U.S. intelligence community Wednesday, calling it “drunk with power.”

And

Paul’s Berkeley appearance dramatized his ability to fire up under-30 voters, the same group that helped put Barack Obama in the White House. Paul, however, delivers a far different libertarian message that government – particularly the agencies that scoop up millions of Americans’ phone-call and e-mail metadata – needs to be restrained.

Paul has worked hard to draw national attention to the growing panoptic power of the surveillance state. One wonders whether this will give him significant appeal to younger voters who live much of their lives through social media, texts, and cell phones. Robert Reich, who attended Paul’s speech, seems doubtful: if Paul “wants to get the youth vote, he has to change his position on abortion and gay marriage.” Perhaps. Paul believes that gay marriage should be left to the states (a position that is no different than Obama’s before Biden forced his hand). As for abortion, I wonder how salient the issue is for the under-30 crowd who will look at their cell phones when they think of what a right to privacy should entail.

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