Analysis by Pier Francesco Zarcone*
ROME (IDN) – Well-meaning people of various countries have long tried to introduce the rule of law in relations among States, placing their trust for this purpose in the instrument of international law.
This is an imperfect, fragile instrument which is part conventional and part covenantal in nature, and works only by leveraging the fear of effective retaliation by other States.
In the context of today, talk of international law more than ever smacks of a joke, given that under the "new world order" of imperialism the issues of legality and illegality have now been relegated to the level of study and discussion for specialists in law, but without any practical relevance. Today, those who can do what they want.
So what is the sense of talking about the right of peoples to self-determination in such a scenario?
Simply it is a question of arguing that international law – albeit respected – cannot protect even fundamental needs, presented and felt as real "rights", because it is a legal system formed by States and according to their needs, especially when it comes to powerful States.
Cynically, but truthfully, it should be borne in mind that law stems from strength and not from recognition of ethical requirements. It is therefore vain to rely on the right to self-determination: if anything, having the strength and the will, it must only be asserted and fought for with all means available.
This is why the Catalan independence movement which insists on working through legal channels is destined to certain defeat; changing gear does not give security, but it can create big trouble for the nation State (besides reducing the costs and time lost through sterile legal battles).
Basically, activating the right to self-determination of peoples entails a revolution compared with the previous order, and every revolution is by its nature extra-legal or anti-legal.
It should also be noted that legal experts possess their own technical language (like any other specialists) which has been formed over time according to the need of greatest precision possible, so that often they are accused (by non-legal experts) of splitting the metaphoric hair in four.
Outside of these, everyone – above all politicians – need not abide by the limitations implied by legal technicality and thus can freewheel, even at the risk of arousing illusions that are not fruitful for those concerned, very often forgetting that what is presented under cover of the term "right" is essentially of two types: either it constitutes a moral claim, in the absence of provisions in this regard by a legal system to which those interested can turn (and so in such a case the right does not exist), or it is something that really exists legally.
In the latter case, however, it is necessary to ascertain what the inevitable limits are just to be clear of the extent of how to act – if need be – in order to modify these limits.
The case for the right to self-determination is no different. Generally it is considered to be a question of a real recognised right and therefore any denial of its application is illegal, as well as unfair. Unfortunately this is not true, and in fact all attempts to activate this right through legal channels have met with denial. On the other hand, this is an extremely delicate right which has geostrategic restructuring and even economic implications.
In this particular case, it is a right for which the essential aspects, content and procedure are far from being defined. First, it is not clear who is the holder; in this regard, it does not suffice to say that it is the people. Second, the procedures for its activation are non-existent. Third, it is not supported by any kind of guarantee.
Not coincidentally, this absence – already in the UN Charter – was due to Britain and France, at the time still big colonial powers. This is why it has no practical significance, and it is only rhetorically emphatic to define it as ius cogens, or a right that is binding under any treaty or internal State norm. In fact, in the current international system it is a much more a virtual than an actual right.
In contemporary times, self-determination was originally expressed by U.S. President Woodrow Wilson in his address to Congress after the First World War in which he proclaimed: "National aspirations must be respected; peoples may now be dominated and governed only by their own consent. 'Self-determination' is not a mere phrase. It is an imperative principle of actions which Statesmen will henceforth ignore at their peril."
However, his pathos was not matched by any immediate principle of clarity, and indeed its application in the definition of new European boundaries – partly opportunistic and partly senseless – led to such imbalances and problems as to figure among the factors contributing to the Second World War.
After 1945, there was no lack of legal pronunciations with the claim of "fundamentality", of which the following are among most important: Charter of the United Nations, Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), the International Covenant on Civil and Political Rights, adopted by the UN General Assembly in 1966, the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States, adopted by the UN General Assembly in 1970, and the Final Act of the Helsinki Conference on Security and Cooperation in Europe (1975).
Nevertheless, given that the signatures on all these declarations were placed by representatives of States, many of which were likely to have to deal with secessionist claims, it should come as no surprise that in principle the tendency was to exclude giving retroactive effect to self-determination in respect of territorial arrangements which, at the very least, originated from the major conflicts of the twentieth century.
However, the issue does not end there. In 1996, application was given to the ruling of the Supreme Court of Canada regarding the independence of Quebec, which argued that the right to self-determination could be availed of by former colonies, peoples subject to foreign military domination, and social groups for which the national authorities denied the right to various types of political, economic, social and cultural development. But not by others. A flawless conclusion in line with the dominant doctrine.
The result is the following: in theory, the principle of self-determination does not protect regions or parts of the population wishing to break away from a given State, but only those that are subject to colonial or similar types of discrimination, with the consequence of the loss in these cases of the obligation of non-interference in the internal affairs of a State, and therefore the legality (always the same way as international law) of external aid to separatists of the moment.
All other cases which – when the situation deteriorates – are considered "insurrections" remain outside this picture. They are considered as belonging to a different particular case, subject to a different assessment under international law.
Indeed, in the case of a major insurrection, the principle of non-interference in the internal affairs of the State in which it occurs applies in theory; except in the cases of repression affecting human rights (an assessment that is often susceptible to extreme arbitrariness rather than discretion, and therefore opportunistic political choices).
In fact, particularly in the second half of the twentieth century, various insurrections have been treated as secessions based on self-determination and vice versa.
A typical example of opportunist pragmatic confusion was former Yugoslavia, where the interventions of Western powers took place in total disregard of international law, according to geostrategic political expediency: Croatian secession was thus supported and recognised, but not that of the Serbs of Krajina; yes to the secession of Bosnia, but not to that of the local Serbs who had formed their own republic; yes to the secession of Kosovo, but denial of its union with Albania.
Indispensable in any case is always the reiteration of a widespread media "cancan", regardless of effectual realities, or relations of forces in continual shift.
But this is not all. There is a great (and unexpected) problem: given the right of self-determination to "peoples", it still has to be established (always legally, but with political fallout) what is "a people", beyond any rhetoric. This is because – in the framework of current international law – there is a tendency to attribute rights not to peoples but to States.
In view of what we are discussing, this may seem paradoxical, but the fact remains that the dominant internationalist doctrine still sees only States as holders of internationally relevant rights (and obligations). However, this system shows its flaws in all cases in which the intention of protecting populations from their governments emerges.
If there is no doubt that without self-determination it would be impossible to speak of popular sovereignty, it is still possible to argue that self-determination and sovereignty belong to a people as a whole, but not to a specific part of it (the secessionist part), and that therefore deliberations on independence accrue not only to the part that claims independence but to the totality of the State population to which it still belongs.
Essentially this is the thesis of [Spanish Prime Minister] Mariano Rajoy on the Catalan referendum: the decision is up to all the Spanish people and not just Catalonia.
If all the discussion about the definition of people were clear, it was a waste of time to hold the UNESCO seminar related to this theme in Paris in 1989. At that meeting it was agreed that a "people" exists when a human group has certain characteristics: common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic identity, religious or ideological affinity, territorial connection and common economic life.
In addition, the group must be of a certain number which need not be large but which must be more than a mere association of individuals within a State; it must present – at least at certain levels – the consciousness of being a people and sharing common institutions.
Take note, however: we are in the realm of a purely intellectual elaboration that is more effort than it is worth in international political practice.
The same applies also to international conventions that are intended to have actual scope: think of the International Convention against the Taking of Hostages of 1983, Article 12 of which establishes non-application in the case of acts of seizure of hostages committed in the context of conflicts against a colonial or racist regime or against foreign occupation, in the exercise of the right of self-determination in conformity with the Charter of the United Nations.
Norms to be interpreted, with interpretations whose effectiveness will depend from time to time on relations of international force. For example: is the Basque people subject to Spanish foreign occupation, or not? For Spain no, for the Basques yes. So far the game has been won by Madrid.
As paradoxical as it appears according to mere common sense, today's international law does not recognise the concept of national minority, but absorbs it into the generic concept of people, understood as the population of a given State.
So, concretely, and beyond the theories of the legal experts, the situation is as follows: generally speaking, States (that is, the various subjects that matter) give prevalence to the current principle of territorial integrity, except for not considering it where this is convenient or appears to be convenient. So the game continues only if wanted by rebels, be they potential or real.
* Pier Francesco Zarcone, with a degree in canonical law, is a historian of the labour movement and a scholar of Islam, among others. He is a member of Utopia Rossa (Red Utopia), an international association working for the unity of revolutionary movements around the world in a new International: la Quinta (The Fifth). This article originally appeared in Italian under the title Sul Diritto di Autodeterminazione dei Popoli in Utopia Rossa. Translated by Phil Harris. [IDN-InDepthNews – 08 April 2017]
Photo: A mural in Belfast (05.02.2005). Credit: Wikimedia Commons.
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