The controversial interpretation of the principle of self-determination and its dangerous backlashes

Since the end of WWI, the principle of self-determination has always been regarded as one of the key principles of conflict resolution. Its interpretation and application in the international arena though often go in contrast with the interests of those that should be its main shareholders, the people and the nations. The identity conflicts spread throughout the world require a new approach to this principle meant to turn it into an effective pillar of conflict resolution.

The controversial interpretation of the principle of self-determination and its dangerous backlashes - Geopolitica.info

The end of WWI and the following dismantling of the Ottoman and Austro-Hungarian Empires brought to the international attention the issue of external self-determination of peoples and nations. After WWII and the establishment of the United Nations, this principle has become one of the most debated and applied as long as the dismantling of the British and French empires in Africa were concerned, but one of the most neglected when it had to be applied to other situations.

The fall of the Berlin Wall misled many and brought them to think that no identity conflicts would have broken out again from that moment on. The experience has proved wrong those assumptions. The crisis and instability that involve Kosovo, Afghanistan and Pakistan, Russia and Ukraine, and the Israeli-Palestinian conflict (mentioning just a few of the most recent crisis) show how the contemporary interpretation is inadequate, urging its reshape and rethinking.

The principle of self-determination is generally described as follows:
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Self-determination denotes the legal right of people to decide their own destiny in the international order. Self-determination is a core principle of international law, arising from customary international law, but also recognized as a general principle of law, and enshrined in a number of international treaties. For instance, self-determination is protected in the United Nations Charter and the International Covenant on Civil and Political Rights as a right of “all peoples.”
The scope and purpose of the principle of self-determination has evolved significantly in the 20th century. In the early 1900’s, international support grew for the right of all people to self-determination. This led to successful secessionist movements during and after WWI, WWII and laid the groundwork for decolonization in the 1960s.
Contemporary notions of self-determination usually distinguish between “internal” and “external” self-determination, suggesting that “self-determination” exists on a spectrum. Internal self-determination may refer to various political and social rights; by contrast, external self-determination refers to full legal independence/secession for the given ‘people’ from the larger politico-legal state.
(Cornell University Law School)

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The contemporary interpretation of laws and treaties concerning the principle of self-determination, although it is an evolving interpretation, prevents it from being applied and granted to peoples and territories whose borders and political shape were set at the end of WWI, therefore prior to the end of WWII, period during which its standards have been officially implemented by the international arena. In those cases, the realization of self-determination for people connected to a territory that falls under that type of “foreign domination” is related to its granting by the central government, or by an act of independence agreed upon by the central government. This is the case of the independence process that involved the Baltic states.

In addition, this interpretation does not include the historical and socio-cultural factors and elements that form the national-cultural consciousness of people, especially in cases where a clear historical bond between a territory and a people is concerned.

In particular, when rival ethnics mutually claimed a territorial bond on the same land, the international community proved to be more interested in the integrity of the territory instead of the peoples and national bonds. These are the circumstances where the conditions that will lead to an outbreak of armed conflicts and civil wars can develop, and in whose cases the international community has often taken the responsibility to determine the political future and borders of a territory, often without really considering those bonds.

The cases where this approach proved to be wrong and short-sighted in the long term are many. In this context the case of Kosovo will be analysed and a few other evolving crisis that need different self-determination related criteria for their resolutions will be mentioned.

The case of Kosovo is one of the most debated in the international arena. Not immediately accepted by Serbian governments, it has required the intervention of the International Court of Justice, that in its Advisory Opinion upheld on the 22nd July 2010, stated it was legal with a vote 10 to 4.

What is important to note in this case is not really the legality of its independence, according to the present laws regarding this political phenomenon, but the way the Western countries, particularly those directly involved in the 1999 NATO campaign against Serbia, decided de facto to draw the lines to set the borders.

These countries should have had assessed more carefully the cultural heritage that that region plays in the heart of the Serbs: that is the region that has witnessed the rise of Serbian nationalism in response to a series of military events that, although sometimes ended in defeat, made the Serbian national consciousness what it is. The Monastery of Visoki Dečani, in fact, plays a key role in Serbia’s soul, not only for its strictly religious role, but also because of its cultural and national importance.

Considering the socio-cultural aspects that have contributed to the moulding and development of the Serbian national soul through the centuries, the international community could have adopted a more equitable solution in regards to Serbian historical and cultural bonds, recognizing Serbia’s sovereignty over those territories where a Serbian majority existed, while on the other hand recognise the independence of Kosovo on the Albanian side of the remaining territories, where an Albanian majority existed. This solution would have most likely mitigated Belgrade’s ostracism towards the solution imposed by NATO countries, who supported the independence of Kosovo in terms of territorial integrity, considering especially the little de facto protection granted to the social rights of the Serbian minority, which requires even today the supervision of international armed forces to prevent clashes between the parties.

In a more general perspective, the historical-cultural rights of a people should have priority over the  territorial integrity when it comes to defining the borders of a State. The deprivation of land has been a penalty imposed on the defeated side for many centuries, with the following declaration of sovereignty by the winner. Today this kind of penalty is no longer officially applied in terms of transfer of sovereignty to the winning party, but in terms of birth of a new national-state entity (often through the active intervention of the international community, as in the case of Kosovo), or imposing a local autonomy in favour of a minority that was not previously protected in its most fundamental rights. Therefore a balance between land and historic-cultural rights of peoples must be found in this area.

Worthy of consideration is the fact that fifteen years after the war, Kosovo Serbian towns are still protected by international military forces, proving how the criterion of the integrity of the territory over the people and their cultural-territorial bonds does not lead to a lasting peace. While Belgrade and Pristina signed an “Agreement on Normalization” in April 2013, the situation on the ground is still tense between the ethnic groups.

Other cases deserve attention, such as “Afghanistan and Pakistan” and “Russia and Ukraine”. What these cases have in common is that ethnic groups have been split between the two sides of the borders.

The Durand Line, that separates Afghanistan and Pakistan, has split the Pashtun tribes: the crisis and violence involving that region will hardly de-escalate without considering the bonding that these people feel with their territory and the aspiration to see it united again.

Similar considerations can be drawn for the Russian-Ukrainian crisis: although Putin’s policies have broken any kind of law and balance in the European system of conflict resolution, the aspect that Russian minorities in Ukraine may desire to see their cultural-territorial bonds recognized to the extent of falling under Moscow’s sovereignty must not be ruled out if a peaceful resolution is really what the international community is striving for.

Many more conflicts involving populations in the Middle East, Africa, and Central Asia present similar issues. The Kurdish independence is never really discussed and addressed in the international arena. And this is only one of the cases neglected by the international community.

The Israeli-Palestinian conflict offers an opportunity to reshape, for the first time since WWII, the interpretation of the principle of self-determination in a way that considers territorial and cultural bonds when setting the borders. The Israeli settlements policy in the West Bank cannot be ruled out and dismissed a priori only because considered “illegal” under the present interpretation of international law without understanding the Jewish cultural-territorial bonds that stand behind it. Therefore, while the Palestinian territorial rights have to be recognised and supported alongside with Israel’s security needs, the Palestinian Authority’s standing of a Palestinian State free of Jews should be opposed by the international community if they are longing for a lasting peace.