Weller, M. (2005) ‘The self-determination trap’

Weller, M. (2005) ‘The self-determination trap’, Ethnopolitics 4 (1), 3-28.

1. The Classical doctrine of Self-determination (‘SD’) disenfranchises populations and does not satisfy those struggling for sovereign statehood., resulting in prolonged and bloody armed conflicts.
2. The emerging doctrine of constitutional self-determination could point the way out of this deadlock.
3. International system balances ideology of free will and need to maintain order, stability and peace by ensuring that the doctrine of SD is constructed in a way that limits or denies choice. However, this dynamic does not prevent conflict – it sustains it: state will label groups asking for recognition as secessionists and rebels, whilst opposition movements will radicalize their demands and see armed struggle as only way forward.
4. Virtually all opposed unilateral secessions resulted in violent conflict and were either defeated in a violent conflict or festered for decades.
5. In recent years, central governments, SD movements and international actors have tried to escape the SD trap by devising new settlements attempting to reconcile SD and territorial unity through complex power-sharing agreements such as constitutional self-determination (‘CSD’).
6. SD disenfranchises populations by proceeding in 5 steps:
   1. SD is linked with the doctrine of territorial unity;
   2. SD limits the type of ‘people’ entitled to exercise this right;
   3. SD scope of application is very narrow;
   4. SD is not a continuous process, but a one-time event;
   5. Modalities of achieving the point of SD.
7. SD: right of all peoples to freely determine their political, economic and social status both internally (choice of system of governance) and externally (secession). It has various sub-meanings:
   1. SD as an individual right;
   2. SD as congruent with minority rights (individuals or groups);
   3. SD for indigenous peoples;
   4. SD in cases of limited territorial change;
   5. External SD.
8. Focus here will be on SD as entitlement of ‘peoples’ to determine the international legal status of a territory.
9. International law protects claims of existing states’ governments to their territories and will only grant Secession demands if the government concerned consents. There are three instances when this can happen:
   1. When one state joins another (GDR joining FRG);
   2. Dissolution of composite states (Czechoslovakia, USSR);
   3. Instances of secession (Eritrea).
10. Manifestation of popular will is necessary even when the central government agrees to secession.
11. Traditional SD right asserts its validity irrespective of the wishes of the central government – ie. right to unilateral and mostly opposed secession.
12. First element of disenfranchisement:
    • States have enshrined doctrine of territorial unity in international law and connected SD only with an exceptional right to secession, only available in cases of decolonization of state consent. All other Secessions are considered unlawful – thus effectively disenfranchising populations that want to exercise SD.
13. Second element of disenfranchisement:
    • Opposed unilateral secessions that do not involve the unlawful use of external force, genocide, apartheid, etc. are not internationally unlawful (9).
    • An entity that secedes and effectively maintains itself over time can eventually obtain statehood and extinguish the claims of the original state over its territory. But this is difficult to determine, and original states can always attempt to reincorporate break-away entities.
    • SD entities are internationally privileged before they obtain their effective independence in a way ‘effective entities’ are not: the latter must fight forcible reincorporation and win decisively over time to mature into recognized states.
14. Third element of disenfranchisement:
    • Colonial SD has been recognized only for a limited category of entities (overseas colonies in the global South, alien occupation – Palestine -, racist regimes -South Africa, secondary colonies – East Timor – , and does not extend to territorially contiguous imperial states (Chechnya, Kosovo).
    • “While self-determination is an activist right that is intended to overcome the evils of colonialism, it is in fact administered in a wat that is consistent with the territorial designs and administrative practices imposed by colonizers” (11).
    • The ‘people’ entitled to SD are those living within colonial boundaries drawn by colonial powers.
    • Aim of decolonization is not restoration of situation before colonialism, but reshaping of facts based on reality of colonial administration. It is the territorial shape of that administration that defines the SD entity, not the will of the people.
    • African states accepted these colonial boundaries upon independence and “fiercely defended them” in the name of stability and order (12).
    • Badinter Commission endorsed this doctrine of uti possidetis as a universal principle across the world.
15. Fourth element of disenfranchisement:
    • Colonial SD occurs only once – not an on-going process.
    • Subunits have to similar SD rights (Badinter Commission).
16. Fifth element of disenfranchisement:
    • Imbalance in status of those struggling for independence outside the colonial context;
    • Those within colonial context but which are subunits of colonial administrative entities achieving independence;
    • Entities that oppose initial SD act integrating them with another entity and seeks independence.
    • Entities that qualify under classical SD are legally entitled to struggle for independence and receive international assistance; those who do not, cannot.
    • In cases within colonial context, the system ensures the liberation struggle will be a success; outside it, “the system is rigged in order to ensure that the state prevails” (14): the struggle is classified as a purely internal domestic rebellion and rebels can be treated as criminals.
    • Double disenfranchisement: domestic and international.
    • Two recent exceptions:
      1. Stalemate no longer acceptable domestically (Northern Ireland);
      2. Humanitarian suffering results in external armed intervention (Bosnia).
17. Emergence of doctrine of constitutional SD.
18. Colonial SD is based in international law; Constitutional SD is based on a constitutional arrangement establishing separate legal personality for component parts of an overall state.
19. Four types of Constitutional SD:
    1. Express SD status: specified in a state’s constitution (Ethiopia): very restrictive;
    2. Effective dissolution of a federal-type state (USSR; Yugoslavia): with conditions attached:
       1. SD right constitutionally specified;
       2. Only constituent federal republics possessed SD rights (excludes Kosovo, Chechnya);
       3. Free and fair referendum;
       4. Acceptance of minority rights guarantees.
    3. Implied SD status:
       1. when a ‘nation’ or ‘people’ inhabit a constitutionally defined territory and the central government or constitution grant SD referendum rights (Scotland, Quebec)
       2. Independence not automatic: both parties must engage in ‘good faith’ negotiations about implementation of decision to secede.
    4. SD though adverse conduct by central authorities:
       1. Badinter Commission: federal-type entities denied effective representation in political structure of federation;
       2. Entity suffered genocide or ethnic cleansing or deliberate campaign to destroy its population.
20. Effective entities: No SD status, but de facto statehood: untested theory.
21. SD through Internationalized Settlements: self-government of secessionist units coupled with power-sharing mechanisms in the larger state, under international supervision, allows escape from SD trap (Northern Ireland, Bougainville)
22. “The existence of the right to self-determination therefore served as a convenient legitimizing myth for the existing state system” (26).
23. “The state was given a carte blanche in dealing with groups seeking to assert their separate identity” (26-7).
24. SD is mostly a hollow promise – even a curse: the system is rigged in favor of central governments: by privileging stability over ‘justice’ it sacrifices peace (27).
25. Settlements are being achieved in instances of mutually harmful stalemates through various power-sharing arrangements or long-term possibilities of separation: necessary to escape the current SD trap though new forms of co-governance or eventual secession.