Ethnopolitics Papers No 20 - Barten · 2014. 12. 23. · Ethnopolitics!Papers!|No.20!!!!! ! 5!! !!...

Ethnopolitics Papers

October 2012 | No. 20

Achieving Utopia?

Reconciling Self-‐Determination with the State

Ulrike Barten

Assistant Professor | Law Department, University of Southern Denmark, Denmark

E-‐mail address for correspondence: [email protected]

Abstract

Self-‐determination and the state are two irreconcilable adversaries – or so the story goes. This story tells us that a claim to self-‐determination is a claim to statehood, which, not surprisingly, is refuted by the government in whose territory the claim is made. This contribution offers a differ-‐ent view. It offers a model of self-‐determination that not only reconciles the two adversaries, but provides the basis for a stable self-‐determination regime that satisfies both the group seeking self-‐determination and the government. This paper takes international law as its starting point. It is the legal definition of self-‐determination that needs to be scrutinized. As international law is neither made nor applied in a vacuum, it is important to place the legal definition in a political context. This is done in the development of a model that seeks to reconcile a group’s striving to self-‐determination with state interests. Both the historical viewpoint and scrutinizing self-‐determination during decolonization show that self-‐determination does not equal secession or independent statehood. Self-‐determination has a very strong internal dimension, which tends to be side-‐lined. The model of self-‐determination is based on self-‐determination as a contract be-‐tween the group and the state. The rules governing the contract, the gatekeepers, are strict and non-‐negotiable. The content of the contract, however, the self-‐determination regime itself, is the object of constant negotiations and compromises between the group and the state. A number of points of discussion are raised after the presentation of the model. The model has not been ap-‐plied to case studies, yet. This is, of course, the next step to be taken.

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ISSN: 2048-‐075X

Ethnopolitics Papers is an initiative of the Exeter Centre for Ethnopolitical Studies and published jointly with the Specialist Group Ethnopolitics of the Political Studies Association of the UK.

Edited by Dr Annemarie Peen Rodt, University of Southern Denmark PhD candidate Anaïd Flesken, University of Exeter We welcome contributions and comments on Ethnopolitics Papers to [email protected].

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Ethnopolitics Papers | No. 20

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1. Introduction

Twenty years ago, Martti Koskenniemi described the dilemmas of international law. One of them

concerns the necessity for international law not to be too distant from a state’s behaviour, its will

or interests in order not to be utopian. Too close an attachment to the same behaviour of the

state, however, creates a non-‐normative apology. International law then simply becomes an apol-‐

ogy for politics (Koskenniemi, 2005: 17).

It is between these two poles of apology and utopia that this contribution seeks to offer a new

view on self-‐determination. Firstly, an interpretation of self-‐determination is offered that is based

on the legal sources available. Secondly, this interpretation is subsequently applied to a model

that moves between the two poles. International law is both made and applied in a political con-‐

text. This is mirrored in the model which takes its starting point in the apologetic corner of state

interest. However, adding the interpretation of self-‐determination moves the model away from

apology. The model proposes something most international lawyers and scholars of international

relations regard as utopia: guaranteeing peace and stability by supporting self-‐determination in-‐

stead of denying it. This paper thus not only offers an interpretation to a theoretical, legal issue

but tries to bridge the two disciplines of international law and international relations when apply-‐

ing the interpretation to a wider framework.

Self-‐determination is a much researched and written about subject. Nevertheless, we scholars

hardly seem to make any substantial progress. Koskenniemi has pointed out the two sides of self-‐

determination: at the same time, self-‐determination is about democracy of the people and state

stability (Koskenniemi, 1994). One cannot overrule the other and thus using the term ‘right’ in the

context of self-‐determination seems misplaced (Klabbers, 2006: 188). We find numerous discus-‐

sions on self-‐determination; however, we seem to come to the same conclusion every time: there

is a right to self-‐determination; yet, exercising that right is a completely different and unrelated

issue (Klabbers, 2006: 188). If this is our conclusion, I think we settle for too little. What good do

rights do if they cannot be exercised and are merely balls in the air of politicians who take them up

as it suits them? Even though the number of self-‐determination conflicts may have gone down,

self-‐determination remains an important source of conflict (Duffy Toft, Saideman, 2010: 39). The


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attempt in this paper to provide for a right to self-‐determination that is actually of relevance is

thus not only a theoretical exercise of the mind but is potentially relevant to millions of people.

Therefore, it is worth exploring new avenues, which is done in the form of a contract of self-‐

determination and the model proposed below. Not everything is new in this paper; some of the

thoughts presented here have been thought before. Nevertheless, following up on those thoughts

and presenting them in a comprehensive framework provides for a new understanding and new

insights into the application of self-‐determination in practice.

International law is full of misunderstandings. Terms and concepts are interpreted differently and

sometimes contradictorily. There are precious few institutions which can rule on the validity of a

certain interpretation of any given term or concept of international law; if a universally valid inter-‐

pretation exists at all. This leaves room for endless discussions and arguments between scholars

and politicians. Their legal experts can use terms and concepts according to their needs. It is here

that the accusation of international law as a political apology has its roots.

So far, the idea that peoples have a right to self-‐determination has led to numerous conflicts be-‐

tween groups1 and their respective governments. The peculiar thing is that there seems to be

agreement on the interpretation of ‘a people’s right to self-‐determination’. Considering independ-‐

ent statehood – which seems to be the prevailing understanding of self-‐determination by both

groups and states – it is only natural that groups seek self-‐determination while states, of course,

do not want to give up part of their territory and deny self-‐determination. Thus, self-‐

determination fuels conflicts. It is this prevailing understanding of self-‐determination that is de-‐

nied in this contribution as the only and thereby always applicable form of reaching self-‐

determination.

This contribution offers a view on self-‐determination that lets it be used to prevent or at least

solve conflicts. This is done in three steps. While steps two and three are the ones to show how

self-‐determination furthers peace and stability, it is tantamount first to be clear what the concept

of self-‐determination entails.

1 The term ‘group’ is addressed in more detailed below as it is crucial to understand who can be the claimant of self-‐determination.


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Thus, in the first step, an interpretation of self-‐determination is offered that takes away its sharp

edges so feared by states. This interpretation is by no means new; nevertheless, it receives rela-‐

tively little space in the scholarly debate. The point to be made in this step is that self-‐

determination is best understood to be an internal concept without discarding its external dimen-‐

sion entirely.

Once this interpretation is established, the idea of self-‐determination as a contract between the

state and the group is introduced. In this second step, the rules governing the contract on self-‐

determination are proposed. The rules which serve as gatekeepers are simple yet non-‐negotiable.

The state is obliged to grant a certain degree of self-‐determination. In return, it receives guaran-‐

tees of its own territorial integrity and survival. The group receives the right to make its own deci-‐

sions in certain fields. In return, it promises the state not to seek independence.

In the third step, the rules are applied to a model where the content of the contract, the actual

content of self-‐determination in each specific case, is negotiated between the state and the group.

This step includes a section which addresses some points of critique. This contribution offers the

background and the basics of the model. Further research is needed to test the model in particular

cases. The model is framed in general terms. As will be shown, this is the advantage of it. While

allowing for a number of different cases to test the model, the model retains its validity through

the gatekeepers that provide a set framework.

The step of testing the model in case-‐studies is necessary. However, before this can take place, it

is necessary to firmly establish the framework. The different bricks of the framework have to be

evaluated for their appropriateness. Only a sound framework can allow for meaningful testing.

That is not done in this paper but must be the next step in the research project.

Before offering an account of self-‐determination as an internal concept, a short introduction to

the terms ‘group’ and ‘people’ is given. It explains for which kind of groups the proposed model is

conceived.


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2. The Group

Not all groups in a state can seek self-‐determination. Under international law and in the context of

decolonization, self-‐determination is reserved for peoples. There is no legally binding definition of

a people. We know, however, that decolonization understood peoples to be the population of a

fixed territory. This is reflected in the principle of uti possidetis, literally meaning as you possess. In

practice, uti possidetis meant a colony transferred to an independent state without any territorial

changes. One colony was thus regarded to be made up of one people, no matter whether there

were different ethnic groups or cultural differences within the population.

This understanding of a people is contradictory to one of the two most important documents on

decolonization; these being General Assembly resolutions 1514 and 1541, adopted on the 14th and

15th of December 1960 respectively. Res. 1541 speaks of ‘a territory and its peoples’. Apparently,

several peoples can exist within the boundaries of a given territory. In reverse, one has to con-‐

clude that one territory does not necessarily imply one people only. Nevertheless, the approach of

one colony-‐one people-‐one state was applied.

Definitions of peoples and minorities

PEOPLE (UNESCO) MINORITY (CAPOTORTI) Common historical tradition Racial or ethnic identity ethnic, religious or linguistic characteristics differing

from those of the rest of the population Cultural homogeneity Linguistic unity Religious or ideological affinity Territorial connection Common economic life A certain number which need not be large A group numerically inferior to the rest of the popula-‐

tion of a State the group as a whole must have the will to be identi-‐fied as a people or the consciousness of being a peo-‐ple

show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language

institutions or other means of expressing its common characteristics and will for identity in a non-‐dominant position nationals of the State

The definition of a people is further complicated by overlaps with another group of persons: mi-‐

norities. The overlap between minorities and peoples becomes clear in a direct comparison of the


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description of a people and the definition of a minority. While they do not overlap completely,

they share a number of similarities. Regarding the description of a people, not all characteristics

have to be exhibited but the phrasing used is ‘some or all of the common features’ (UNESCO,

1989: para. 22). The widely accepted, though not legally binding, definition of a minority under

international law is offered by Francesco Capotorti (Capotorti, 1979: para. 568); see the table

above which lists the points making up the definition of a minority.

Even though different wording is used, it is clear that there a number of similarities. Not explicitly

mentioned in the definition of a minority is the common historical tradition; however, that can be

inferred from the combination of common characteristics that should be preserved. As Jane

Wright has rightly pointed out, ‘it is difficult to think of a minority which does not fulfil most of the

criteria [of a people] (Wright, 1999: 627).’ Wright argues that peoples and minorities are divided

into two categories for political reasons; mainly because self-‐determination is often equated with

secession (Wright, 1999: 267). This cuts off a large number of groups from claims to self-‐

determination (Castellino, 2000: 64-‐66 and Thornberry, 1980: 881).

The possibilities for groups other than peoples to seek self-‐determination allows for a wider target

group in this paper. Once it is accepted, as is argued below, that self-‐determination is a concept

internal to the state and an external solution is only a very last resort, it becomes clear why self-‐

determination for smaller groups than peoples actually holds the potential for conflict prevention

or peaceful conflict resolution.

The term ‘group’ in this paper covers peoples and national, ethnic, religious or linguistic minorities

as covered by the UN Minority Declaration, the Framework Convention on the Protection of Na-‐

tional Minorities and the Language Charter. Furthermore, nations, stateless or not, as well as

tribes and indigenous peoples are covered by the term ‘group’.

3. The Evolution of Self-‐Determination

The ideas of self-‐determination were already present in the American as well as the French revolu-‐

tions, even though the term may not have been used back then. In both cases, a group wished to

free itself from domination and sought to make their own decisions over their own affairs – to live


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self-‐determined. The Americans fought for their independence from another state while the

French people fought for changes within the system.

The idea of self-‐determination and its different dimensions were thus not unknown when US Pres-‐

ident Woodrow Wilson introduced the term into international politics in 1914.2 Reaching inde-‐

pendent statehood is regarded as external self-‐determination.3 Internal self-‐determination is a bit

more complicated, because much depends on who the “self” is that determines its own fate or

possibly that of others. A defining element of internal self-‐determination, however, is that the

territorial integrity of the state remains intact, meaning no boundaries are changed and no entity

leaves the state. Even though this paper is foremost concerned with the internal dimension of self-‐

determination, it is important to note that both dimensions are recognized to exist.

When looking back in time, external self-‐determination has rarely been a unilateral act. The nine-‐

teenth century witnessed the emergence of new states in Europe. The Great Powers in Europe4 at

the time dictated the conditions under which an entity could become an independent state. Ste-‐

phen Krasner notes that ‘there is no example […] of a Balkan state where domestic actors were

able to choose their own fate completely (Krasner, 1999: 155).’5 What today would be considered

self-‐determination was not unlimited. On the contrary, independence was either highly condition-‐

al or not self-‐determined but determined by the Great Powers.

The member states of the European Union could be argued to have done something similar in the

1990s. True enough, the recognition of states in Eastern Europe was not about them becoming

independent; however, it was about the recognition of the independence of these new states by

the member states of the European Union. The EC Guidelines for the Recognition of New States in

Eastern Europe and in the Soviet Union made recognition conditional upon several factors; some

of the most important being the respect for the United Nations Charter, the Final Act of Helsinki

2 The term self-‐determination does actually not appear in the Fourteen Points which are often cited as the entrance of self-‐determination into the international arena. See Pomerance, 1982: 1-‐2. Wilson’s Fourteen Points served as the basis for the peace that was brokered in 1918. Thus, inclusion of autonomous development (not self-‐determination) for the peoples in Austria-‐Hungary into these Fourteen Points gained much importance after World War I. 3 My later argument is that the independence of the United States would have to be regarded as falling into the category of decolonization which in turn cannot be used as a blueprint for today’s claims of self-‐determination. 4 Those referred to as the Great Powers are France, Great Britain, Prussia, Austria-‐Hungary and Russia. 5 For other examples see also Wambaugh, 1920: 58-‐101; Pernthaler, 2006: 24; art. 1 (2) of the Final Act of Vienna, 1815.


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and the Charter of Paris (‘Guidelines on the Recognition of New States in Eastern Europe and in

the Soviet Union’, 1991). These were only guidelines and recognition is an act of state and not an

act of the European Union. However, as the member states applied these guidelines, we have es-‐

sentially the same situation as in the late nineteenth century.

These two examples from Eastern Europe show us an important feature of self-‐determination: it is

not unlimited. In cases of independence for states, existing states have a role to play regarding the

success of the establishment of a new state – the cases of Kosovo, South Ossetia and Abkhazia

being cases in point. In cases of internal self-‐determination, it is even clearer that there will be at

least two parties who will have an influence on the process: the state and the group. It is im-‐

portant to keep this in mind when considering self-‐determination. A balance has to be struck be-‐

tween different interests. This is one of the defining elements of the model of self-‐determination

as proposed below.

3.1 Self-‐Determination after World War I

The tenth of Wilson’s Fourteen Points proclaims ‘The peoples of Austria-‐Hungary, whose place

among nations we wish to see safeguarded and assured, should be accorded the freest possible

opportunity of autonomous development’ (Wilson, 1918). While there are several possible inter-‐

pretations supporting anything from independence to an internal solution, it is the last one that

President Wilson had in mind when he spoke of autonomous development.6 This is based on two

arguments.

For one, Wilson’s own starting point is important. Wilson endorsed the idea of legitimacy of the

consent of those governed that was already part of the US Declaration of Independence. He pre-‐

ferred the term self-‐government over self-‐determination (Whelan, 1994: 100). He foremost

thought of internal matters and internal solutions (Castellino, 2000: 13).

6 An interpretation favouring an external solution focuses on the word ‘freest’. If this is the defining element of autonomous development, there can hardly be any restrictions. The other interpretation focuses on ‘autonomous development’. Autonomy is understood to be a solution respecting the territorial integrity of the state. Autonomous arrangements can take many shapes and remove an entity from the central government; however, the entity always stays formally part of the state.


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The other argument for internal self-‐determination is based on reactions at the time. The peoples

of Austria-‐Hungary had been advocating their independence for some time and were disappointed

because they saw this as falling far short of their aspired secession (Hannum 1996). While both

Wilson and Emperor Charles I of Austria tried to keep the Empire together, the war developed in

such a way that this became impossible as it became clear that the Allied Powers would win the

war. Emperor Charles I offered a confederation with self-‐governance; however, this was not

enough. The Empire dissolved and new independent states were born.

One could say that World War I showed us examples of external self-‐determination. Yet, it is im-‐

portant to note that while this may have been the outcome, it was not the intention. When tracing

self-‐determination back to Woodrow Wilson’s ideas, one should focus on the internal dimension

which has another aspect besides staying within the borders: self-‐determination is about inclusion

of the group; something which will be returned to below.

3.2 Decolonization

After World War II, self-‐determination again became important, first on paper in the UN Charter

(UNC) and then in practice in the context of decolonization. Although today’s narrative of self-‐

determination seems to show us a progressive development, at the time it was a big step to apply

one of the UN Charter’s most basic principles to the context of decolonization. For one, it is note-‐

worthy that self-‐determination was included in the Charter at all, seeing that it was rejected for

the Covenant of the League of Nations.7 For another, when the Charter was drawn up, the actors

and those the Charter aimed at were sovereign states. Colonial peoples and non-‐self-‐governing

territories were only thought of in so far as the colonial and administering powers had special du-‐

ties towards the peoples they governed. In addition, the trusteeship system was established at the

United Nations where there was talk of self-‐government or ‘independence as may be appropriate

to the particular circumstances’. The basic principles and aims of the first two articles of the Char-‐

ter were, however, not aimed at these special territories. The right to self-‐determination of art. 1

7 Wilson himself had advocated for the inclusion of a provision on self-‐determination into the Covenant of the League of Nations. It was a very carefully worded draft that envisioned a careful balance between external self-‐determination and territorial integrity. The provision was not adopted and thus not included in the Covenant of the League of Nations. See Hannum, 1996: 32.


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(2) UNC was not written with granting independence to colonial peoples in mind (Higgins, 1994,

111-‐112).

Decolonization is based on the two General Assembly Resolutions 1514 and 1541. Res. 1514

granted independence to colonial countries and peoples and was thus the starting point for decol-‐

onization. The resolution states that ‘all peoples have an inalienable right to complete freedom,

the exercise of their sovereignty and the integrity of their national territory’ (General Assembly,

1960a: para. 11). However, there are constraints. Territorial integrity remains the highest good in

the international community: ‘Any attempt at the partial or total disruption of the national unity

and the territorial integrity of a country is incompatible with the purposes and principles of the

Charter of the United Nations’ (General Assembly, 1960a: para. 6). The independence of colonies

cannot have disrupted the territorial integrity of the colonial state; a point I will return to in part

four. That would have been a breach of Res. 1514.

The second resolution is General Assembly Resolution 1541. It is this rather neglected resolution

that informs us of the content of self-‐determination and is thus the more interesting resolution of

the two. The resolution has a key role in this paper as several points about self-‐determination can

be made in reference to it. These points are noteworthy because they contradict the way self-‐

determination has been used since the end of decolonization.

The first point made is about the focus on the process of self-‐determination in Res. 1541 as op-‐

posed to a result or status. Still today, self-‐determination is commonly understood to be about the

status as an independent state. The second point, addressed in the next section, asks the ques-‐

tions whether external self-‐determination can be equated with secession. Lastly, with reference to

Res. 1541, an argument is made that the self-‐determination of decolonization was applicable to

very restricted circumstances and is thus not transferrable to contemporary politics. This is also

done in the next section. In short, it is pointed out thrice that Res. 1541, being the basis for self-‐

determination since 1960, has been misunderstood to such a degree that self-‐determination today

is a distortion of what it was conceived to be.

Even though decolonization was about colonies reaching statehood and could thus be understood

to be all about external self-‐determination, a closer look at Res. 1541 reveals a preoccupation with

democratic processes. Principles VII to IX elaborate on free association with an independent state


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and the integration with an independent state. What quickly becomes clear is the focus on democ-‐

racy and thereby the focus on the process of achieving self-‐determination. The what (kind of self-‐

determination) is eclipsed by the how (is self-‐determination achieved). The following points recur:

• Free and voluntary choice

• expressed through informed and democratic processes,

• impartially conducted and based on universal adult suffrage.

• Free political institutions.

The ideas of Res. 1541 fit the ideas of Woodrow Wilson’s thoughts of the consent of those gov-‐

erned. While there is no firm agreement whether a right to democratic governance, as Thomas

Franck argued,8 exists, these values in the form of calls for democracy, respect of human rights

and the rule of law surround us both in international law and international politics. It is the refer-‐

ences to democratic processes that remind us that we are going back to Wilson’s idea of internal

self-‐determination. While it is quite understandable that decolonization is reduced to independ-‐

ence, this nevertheless disregards the paper decolonization was written on.

3.3 The Friendly Relations Declaration

The territorial integrity of a state, which we already found in Res. 1541, is per definition not

threatened by internal self-‐determination as it is implemented within the borders of the state.

This is also a safeguard we find in Res. 2625 from 1970, also known as the Friendly Relations Dec-‐

laration.9

The Friendly Relations Declaration (FRD) adds a fourth category of what can constitute self-‐

determination. Secession, association and integration with another state are known from Res.

1541. The FRD adds ‘any other political status freely determined’ (GeneralAssembly, 1970: princ.

8 For views arguing in favour see Epps, 1997: 438. Franck spoke not only of participation but directly of a right to democratic governance which consists of the three components self-‐determination, freedom of expression and electoral rights. See Franck (1992). See also Lorimer, 1883: 162-‐168 for the argument that non-‐democratic states cut themselves off from recognition as states of civilized humanity. 9 This General Assembly resolution clarifies the purposes and principles of the United Nations. While General Assembly resolutions are not binding and only are indicators of the political discussion, based on the circumstances of its passing, this particular resolution has been convincingly argued to reflect international custom, state practice or possibly ius cogens. See Castellino, 2000: 34-‐35.


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5) to the possibilities. It is an open category not further defined but clearly able to cover solutions

of internal self-‐determination. One should also note that ‘freely’ does not necessarily imply ‘uni-‐

laterally.’

The FRD is a guardian of the state. It guards a state’s territorial integrity. In doing this, it clearly

advocates internal self-‐determination. Compared to other documents, however, it adds a sen-‐

tence that has caused much discussion. The territorial integrity may not be threatened of states

‘conducting themselves in compliance with the principle of equal rights and self-‐determination of peoples as described above thus possessed of a gov-‐ernment representing the whole people belonging to the territory without distinction as to race, creed or colour (General Assembly, 1970: princ. 5).’

Accordingly, a self-‐determined people possesses a representative government that does not dis-‐

criminate. From this has been deduced that a government not complying with this cannot invoke

its territorial integrity against a self-‐determination movement (See for example Kirgis, 1994: 306).

This undertaking is questionable. The negative wording of precluding self-‐determination where

there is a representative government calls for a restrictive interpretation and application. It is

quite a jump to turn the statement completely around and deduce a right to secession from it

(Summers, 2005: 335-‐336).

Even though a unilateral right to secession cannot be deduced from the text, there is an inherent

threat to the state to be on good behaviour, meaning to represent the whole people; otherwise

the FRD will not guarantee territorial integrity. This is an important point: While internal self-‐

determination is the rule, there is a rare exception to be made in the form of external self-‐

determination. This is one of the cornerstones of the model on self-‐determination as proposed

below. It creates the incentive for the state to keep its part of the contract.

3.4 Today

The Vienna Declaration and Programme of Action (VDPA) from 1993 strongly reaffirms the rights

laid down in the Universal Declaration of Human Rights. The VDPA was adopted by consensus; it is

thus endowed with moral and political authority that should not be underestimated. It reaffirms a

people’s right to self-‐determination using the wording of the FRD (World Conference on Human


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Rights, 1993: para. 2). Again, the territorial integrity is explicitly protected. This is not new; howev-‐

er, the context has changed as we are now well past the era of decolonization. During decoloniza-‐

tion the territories seeking self-‐determination did not form part of the metropolitan state, this has

changed today, and territorial integrity proves to be the main obstacle for external self-‐

determination.

Today, external self-‐determination without doubt exists; however, the circumstances that have to

be fulfilled in order for it to be applicable are still unclear. There seems to be agreement that only

gross human rights violations, a severe destabilizing force of an ongoing conflict and political will

can lead to the exercise of external self-‐determination.10 It is up to each single state to decide

whether the proposed criteria are met in a specific case. Thus we have a large grey area where it is

impossible to conclude whether or under which precise circumstances a firm right to external self-‐

determination exists.

3.5 Part Conclusion

The internal dimension has remained the core of the concept of self-‐determination since Wood-‐

row Wilson advocated the consent of those governed. This is what was foremost meant at its in-‐

ception and even the turbulent years of decolonization, the internal dimension survived un-‐

harmed; the constant reference to territorial integrity is a witness to that. Since the end of the

Cold War, internal self-‐determination has become stronger and more pronounced. Even though

the external dimension has always existed, it is clouded in uncertainties – a difficult ally for the

group and an unpleasant adversary for the state. If agreement is reached that external self-‐

determination only is a very last resort in very specific and grave circumstances, much is won.

One might claim accepting the disregard of external self-‐determination simply turns self-‐

determination into a political apology. This is not the case. Although it is arguably true that the

concept of internal self-‐determination is in danger of becoming apologetic, proposing a right to

external self-‐determination is for one, not supported by the documents on self-‐determination and

for another, we would find ourselves at the very utopian end of the scale and much would be lost.

10 See for example East Timor and Kosovo.


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4. Scrutinizing Decolonization

Two points need to be addressed regarding decolonization. First, the point of territorial integrity in

relation to the territory of the colony that was raised in part three is taken up. Related to this is

the question of whether independence for colonies can be considered secession.

The possibilities of self-‐determination as stated in Res. 1541 are only applicable to colonies as the

resolution makes clear in principle IV. There it is stated that the resolution is valid for ‘a territory

which is geographically separate and is distinct ethnically and/or culturally from the country ad-‐

ministering it’ (General Assembly, 1960b: princ. IV). This principle has received the colloquial name

salt-‐water rule because is puts distance between the colonial state and the colony – they are after

all divided by salt water; most likely an ocean. Its importance is widely and unfairly underestimat-‐

ed. The salt-‐water rule makes sure that the core territory of the colonial state is not threatened. In

other words, it is the guarantor of territorial integrity. It is this rule that assures that decoloniza-‐

tion did not breach with territorial integrity. Apart from a very few instances,11 colonies were not

considered an integral part of the metropolitan state.

This is fundamentally different from cases such as Kosovo, Abkhazia and the Basque Country. In

these cases, the territorial integrity of an existing state would be broken up. The Friendly Relations

Declaration shows us that territorial integrity is not protected at all costs; however, the salt-‐water

rule remains the main reason why the form of self-‐determination practiced under decolonization

cannot simply be applied today.

The second point regards the question of secession but is closely connected to the issue of territo-‐

rial integrity. Res. 1541 shows that decolonization was exactly not about secession as we under-‐

stand it today. In the process of secession, the original state loses territory and inhabitants. The

term secession breaks up into the Latin parts se which means ‘apart’ and cedere which means ‘to

go.’

While the colonies indeed took territory and people and established a new state, Res. 1541 makes

it clear that this parting did not threaten the colonial power in its territorial integrity. It did not

concern the core state. Secession is spoken of in the context of Biafra and Katanga, Bangladesh,

11 Portugal is one of these exceptions. Algeria was also for a long time considered an integral part of France.


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Quebec, Eritrea and Kosovo. All these examples have in common that the entity breaking or at

least intending to break away were part of the core territory of the existing state. The entity may

have been in a border region far from the capital; however, even border territory is still part of the

core territory. There was no salt water between the core state and the breakaway entity.

The term secession is not readily applicable to the colonial context. One may also note that the

two resolutions 1514 and 1541 never use the word secession. Res. 1514 speaks of ‘complete inde-‐

pendence and freedom (General Assembly, 1960a: para. 5).’ Res. 1541 speaks of ‘emergence as a

sovereign independent state (General Assembly, 1960b: princ. VI a).’ What happened at the time

of decolonization was a form of external self-‐determination; however, limited in many ways. The

territorial integrity was put forward as a counterbalance to self-‐determination.

Overall, it becomes clear that self-‐determination has two dimensions: an internal and an external

one. The origins and the evolution of self-‐determination show us a strong understanding of self-‐

determination as something internal. The external dimension was lived out during decolonization.

This, however, happened in a very particular context with the old safeguards for the states still in

place. Decolonization cannot serve as the blueprint for self-‐determination today. Reluctance by

states today to support claims to external self-‐determination in other states underlines the im-‐

portance of regarding self-‐determination as an internal concept.

5. The Contract of Self-‐Determination

This part of the paper introduces the idea of self-‐determination as a contract between the state

and the group. It is based on the premise that self-‐determination has an internal and an external

dimension of which the former is the rule while the latter is an exception for very rare circum-‐

stances.

The contract spoken of here is a contract between the state and the group. The international

community is not a party to the contract; however, it can become involved at all stages in various

roles; for example as guardian of the contract, mediator or even on behalf of one of the parties to

the contract.


17

The idea of a contract is fitting if we remind ourselves that self-‐determination is not an unlimited

right. It is always balanced by someone else’s rights and interests. If one group exercises its right

to self-‐determination, it most likely breaches another group’s right to self-‐determination. Also, the

historical examples above show that self-‐determination often has been conditional.

The contract is governed by strict rules which are the important gatekeepers of the model which is

introduced below. The object of the contract is self-‐determination. Usually, the group seeks it and

the state denies it. A compromise has to be found and it can be found.

The contract includes obligations as well as gains for both sides. The rules of the contract include

one main obligation for each party which is balanced by a main gain for the same party. The state

has one main obligation: to grant the group (internal) self-‐determination. What ‘internal self-‐

determination’ entails in detail needs to be defined further. The overall understanding of the term

is best described as ‘the right to be taken seriously’; the description Jan Klabbers used of self-‐

determination in 2006 (Klabbers, 2006). Klabbers has argued that self-‐determination today is best

understood as a procedural right; not a right to secession. Being a procedural right means that

peoples take part in decisions affecting their future. It does not necessarily mean autonomy or

self-‐government, ‘but it does amount to a right to be taken seriously’ (Klabbers, 2006, 189). This,

of course, allows for a very broad understanding of self-‐determination and the question is allowed

if we really are better off with a right that can be applied in practice if this right is so broad. The

model below will argue that, indeed, we are better off with a broad right that can be used in prac-‐

tice than a narrow right that has no relevance in practice.

The state, of course, also gains something from this contract: guaranteed territorial integrity. This

is closely connected to the obligation of the group which is a point of discussion below. For the

moment, the focus is on the gain of the state. Guaranteed territorial integrity is the incentive for

the state to uphold its obligations. There can be many reasons why a state is not willing to let a

part of its territory and population create an independent state. These reasons can, among others,

include history, politics or economics. The end result, however, is always the same. The state’s

ultimate goal is its own survival and this is ensured with a guarantee of the status quo of the bor-‐


18

ders and inhabitants.12 History, politics and economics can make negotiations about the contract

very difficult.

The state has an obligation and a gain in the contract. The same is valid for the group. The group’s

obligation is, as stated above, to guarantee territorial integrity. The group seeking self-‐

determination obliges itself to stay within the borders of the state where it lives. This is a logical

consequence of understanding self-‐determination in its internal form.

The group’s gain is obvious: it achieves its goal of self-‐determination. This, in itself, should be in-‐

centive enough for the group to keep its part of the contract. The group gains a number of other

things in the contract. By guaranteeing the status quo of the state, it receives both the good will of

the state itself but most likely also of the international community. Keeping in mind that states are

reluctant to support anyone breaking up an existing state, groups staying peacefully within their

state have at least a good starting point when dealing with the international community.

The argument about the internal good will of the state is not to be underestimated. It is difficult

for two adversaries to negotiate and find a mutually acceptable compromise. If there are two

basic guarantees – being taken seriously and safeguarded territorial integrity – a common basis is

already found which should facilitate negotiations. Apart from official negotiations, it could be

expected that it eases everyday life of the group members if the neighbours do not fear any kind

of violent demonstrations, revolutions or the like that aim at independence for the region.

The question, of course, is what happens when the contract is breached by either side. Does that

automatically mean that the other side is no longer bound by its own obligation? The answer is no.

Nothing follows automatically. Instead, a sliding scale is put into motion where the party not

breaching the contract can slide along to a point where indeed original obligations are no longer

binding.

It can be set in motion when either side breaches its obligation: if the group seeks independent

statehood or the state refuses self-‐determination to the group. In both cases, the breach to the

contract has to be substantial and happen over a certain period of time. A single public an-‐

12 In the long term, a state may, of course, be better off without a constant well of unrest. However, it would go beyond the scope of this paper to discuss at what point the government of a state might be willing to adopt this view.


19

nouncement by the group that it seeks independence cannot be an excuse for the state to aban-‐

don the whole self-‐determination regime. On the other hand, the more extreme the group be-‐

comes in its claims and its actions, the more legitimate it will be perceived for the state to react

more harshly.

The principle behind the use of the sliding scale is the principle of proportionality. Proportionality

shall prevent excessive reactions. In short, this means that the reaction must be adequate and not

excessive to the original action which breached the obligation.13 To abandon a whole regime be-‐

cause of one announcement would be deemed excessive, whereas the same reaction would be

proportionate if the group constantly calls for independence.

The principle of proportionality is not only applicable if the group breaches its obligations but also

in cases of the state breaching the contract. For example, if the state refuses a new round of nego-‐

tiations with the group, the direct consequence cannot be a call for independence. This reaction is

not necessary, it most likely destructs the general atmosphere of negotiations and, as a first step,

this reaction is out of proportion.

The outer points of the scale are, of course, different for the involved parties. The group’s outer

point on the sliding scale is external self-‐determination. Remembering that external self-‐

determination is a last resort and only applicable in exceptional circumstances, the principle of

proportionality assures a restrictive application of external self-‐determination. At the same time,

being the weaker part in this contract, it is a strong card for the group to hold. It should be noted

that the group in most cases cannot play this card at its own wishes. External self-‐determination

only comes into play in extreme cases of gross human rights violations against the group. In order

to play the card, the group needs the support of the international community, be that active help

in their struggle, humanitarian help or recognition as an independent state once that is declared.

While the group thus holds the strongest card, it is a card that is neither easy to hold nor to play.

The state’s outer point on the sliding scale is less explicitly defined because it depends on the self-‐

determination regime in place. In any case, though, the outer point will involve tight control of the

13 For more on the just war principle of proportionality see Walzer (2006: 129) and Calhoun (2001: 48).


20

group by the state, restrictions on the liberty to take own decisions and possibly a retraction of the

whole regime. This last point very much depends on the case. The Assembly in Northern Ireland

could be suspended in favour of direct rule from London. This would be an impossible scenario in

Catalonia.

In any case, an action by one party to the contract will always lead to reaction by the other party.

The reaction will always have to observe the principle of proportionality. One should note that

sliding scales might move the parties further from each other. The parties must thus seriously con-‐

sider whether a further slide is an appropriate reaction in the bigger picture.

6. The Model of Self-‐Determination

6.1 Basic Assumptions

The model which is built around the contract of self-‐determination rests on two assumptions. The

first assumption is that international law is made by states for states. This has two implications.

Firstly, states will only make something law if it does not hurt them. It is presumed that states

need to gain from a new law. The assumption here is that they can agree to a new law if it does

not hurt them. Secondly, if international law is made by states and for states, this puts the state at

the centre of attention. The model has two parties – the state and the group; yet, without getting

the state on board, the whole undertaking is worth very little. The state is the powerful actor un-‐

der international law. Groups have received some attention by international law; however, they

are per definition in the weaker situation compared to the state. If this were not the case, the

group would have reached self-‐determination in some way or other. It is thus important to make

the state see the advantages of the contract of self-‐determination. Adopting an acceptable start-‐

ing point for states does this. The starting point for this model is that self-‐determination is internal

in nature. The expectation is that this starting point will not be utopian and thereby acceptable for

states.

The second assumption for this model is that the ultimate interest of the state is its own survival.

Self-‐determination can be denied for many reasons, be they political, economic or historical or

others. However, the main argument against self-‐determination today is the threat to the state’s

status quo of its territorial integrity. No matter on what grounds the fear of a breakaway entity is


21

based, the end result is always the same: the state fears the change and thus its own survival as it

is. The state’s survival is thus the most appealing outcome of the contract on self-‐determination

for states.

A contract always needs two parties and thus the group should not be forgotten. A regulated

framework, where might does not necessarily equal right should be appealing to the group. Fur-‐

thermore, the contract aims at guaranteeing the right to self-‐determination; this should also ap-‐

peal to the group.

6.2 The Model

The model about to be proposed integrates the first part of the paper dealing with the internal

nature of self-‐determination with the second part on the contract.

The model of self-‐determination


22

The part on the right side of the figure is most easily explained. It deals with the two cases of ei-‐

ther party breaching their obligations. In both cases the result is the sliding scale on which the ac-‐

tors can measure their proportionate reaction to the breach.

The arrow on the left is the entrance to the substantive part of the model which also includes the

contract. The starting point is clear: the group makes a claim to self-‐determination. The state, up-‐

holding its obligation under the contract opens for negotiations. The group reacts by promising to

seek an internal solution; thereby guaranteeing the territorial integrity of the state. Thus, both

parties uphold their obligations under the contract. The gatekeepers are respected.

The negotiations can be pictured as several rounds of negotiations; presented in the figure by the

circular arrow. Self-‐determination is not a one-‐time decision. It is a dynamic process. Claims may

change, circumstances in the state may change and solutions that may have worked for a certain

amount of time may become outdated. Thus, it is necessary to allow for an ongoing process. The

two parties may start their negotiations with talks about participation and settle for the moment

on that. After a few years, the participation regime might be evaluated or even expanded. The

circular arrow makes it clear that we are dealing with a process. The parties negotiate, evaluate

and re-‐negotiate their contract over time. Repeated rounds of negotiations allow for small steps at

a time.

The results of the negotiations are also shown in the figure: the state secures its territorial integri-‐

ty and the group achieves self-‐determination. The state, apart from being secured in its borders,

achieves international recognition as one of the good guys. This ‘good’ is, of course, subjective.

Here, it is defined from a Western, democratic point of view, where the weak and powerless shall

be heard. Apart from image polishing, the state makes sure that the group does not move on its

sliding scale towards any claim of external self-‐determination. The best way for the state to avoid

finding the group at that extreme point is to treat the group well. A group which does not experi-‐

ence gross human rights violations lacks legitimacy to claim external self-‐determination. The legit-‐

imacy is an important factor, as it is closely connected to the support of the international commu-‐

nity that is needed for the act of external self-‐determination.

The group very simply achieves its aims in this model, even if this may not seem so at the begin-‐

ning. A basis of trust may have to be established before substantial progress can be made. The


23

state may not be ready yet for big jumps; however, also the group has to accept that claims can be

adjusted to any given situation in the different rounds of negotiations. The model does not pro-‐

pose that the group will achieve all its claims if only enough rounds of negotiations take place. As

the model is built around negotiation and compromise, both sides will have to move away from

their ultimate claims. Both sides gain a certain trust from the other party. If both take the contract

seriously, a development of mutual trust is expected.

There may be more results than mentioned here. A possible result for both actors could be peace.

However, that is not a given, because there might always be groupings in both parties that are not

satisfied with the outcome of negotiations and thus try to provoke unrest.

It is important to note that it is always possible to jump from the left development to the right

arrow leading to a deterioration of relations between the two parties. It is over on the side that we

find the possibility of external self-‐determination for the group.

The content of the contract – the actual substantial rights under self-‐determination – are negoti-‐

ated between the parties; thus placed in the middle of the circular arrow. Internal self-‐

determination covers a wide range of possibilities; however, the focus seems to lie on the political

dimension. Internal self-‐determination covers far reaching political autonomy as we see in Catalo-‐

nia, Scotland and Wales. It could include exemptions from political minimum standards as we see

with the party of the Danish minority in Northern Germany who is exempt from the five percent

clause saying a party needs five percent of the overall vote to enter the parliament of Schleswig-‐

Holstein. It could be a system similar to the one applied in Denmark to the Faroe Islands and

Greenland which each have two reserved seats in the Danish national parliament. Yet another

possibility can be seen at the municipal level in four municipalities in Denmark where the German

minority historically has settled. The candidates of the German minority can be elected on equal

footing with everybody else for full mandates. If they do not get enough votes for that, yet receive

at least twenty-‐five percent of the amount of votes that correspond to the lowest quotient that

gave a regular mandate in the election, the minority candidate will enter the municipal council as a

delegate without voting rights.

There are thus many different possibilities that can amount to political self-‐determination. The

fitting solution is very much dependent on the size of the group and its characteristics. Five mil-‐


24

lions Scots or 15,000 Germans in Denmark do not necessarily require the same solution. The same

is valid for a ‘full grown’ people as the Catalans (even though they are only recognized as a nation-‐

ality by the Spanish Constitution) and an indigenous people foremost concerned with its tradition-‐

al way of living.

Some groups may not even be interested in political autonomy. Remembering that ‘by virtue of

that right [self-‐determination], they [all peoples] freely determine their political status and pursue

their economic, social and cultural development’ (ICCPR, 1966: art. 1) especially the area of culture

is an obvious choice for smaller groups within a state.

Ethnic minorities and indigenous peoples may be far more interested in preserving their culture

and language than taking part in national politics. Cultural and political self-‐determination can, of

course, be intermingled. The Framework Convention on the Protection of National Minorities, for

example, speaks of the ‘effective participation in cultural, social and economic life and public af-‐

fairs, in particular those affecting them’ (Framework Convention, 1995: art. 15). It is not difficult to

imagine including group representatives in the process of setting up a cultural budget of the mu-‐

nicipality or at higher level.

Cultural self-‐determination, as the other forms of self-‐determination, can happen in an autonomy

setting where the group is completely independent in its decision-‐making within a certain frame-‐

work or in a context of participation. Participation can be realized in many different ways. The im-‐

portant point for it to work is that it is taken seriously by both parties.

Participation is a softer way of self-‐determination and it is difficult to measure the success. It pre-‐

supposes a certain amount of trust on both sides. The group may not only use its possibilities half-‐

heartedly and as an excuse to claim the inefficiency of participation. The state, on the other hand,

has the same obligation. It must make a serious effort to make this model work. Substantive par-‐

ticipation has to be possible for the group. The difficult part in the participation model is that not

every group claim needs to be put into practice. As we are still within a contract between two par-‐

ties with differing interests, compromises need to be found and they will not be found entirely to

the benefit of one party.


25

The model envisages that the process of self-‐determination is democratic and peaceful. Both sides

are allowed to adjust their claims, change strategies and in other ways react to internal or external

pressures or circumstances. The negotiations can be endless because the regime can always be

refined. The model does not propose any predetermined results as long as the results respect the

gatekeepers of the contract.

The chances of success of the model are unique in every situation. A very important point not yet

raised is the context of the starting point. A stable and peaceful framework is very much different

from a post conflict situation where the two parties involved in the contract were the adversaries.

6.3 Facilitation

The proposed model is wide and held in general terms. It can be filled out in many different ways.

An instrument not yet introduced, yet a factor which could be crucial to the model, is facilitation.

In cases of peaceful co-‐existence and acceptance of each other, the parties may very well be capa-‐

ble of negotiating themselves without any outside interference. The case is most likely different

when the parties either are about to be involved or recently have been involved in armed conflict

with each other. In such cases, a third party can help facilitate negotiations.

Facilitation does not have to take place in a prescribed form. The facilitator can take the active

role of a mediator or be less actively involved in the form of good offices. The negotiations may be

postponed by starting the process with consultations. In other words, all tools of peaceful dispute

settlement are thinkable. Each situation will require its own set of tools.

The facilitator may also become obsolete with time or only be relevant in times of setbacks. Again,

there is no universal template when or how to use a facilitator. The question whether both sides

need to agree to a facilitator entering the process must have a practical yes as an answer. In detail,

the answer depends on the kind of facilitator and the circumstances. In a national case where the

parties enjoy stable relations, a jointly accepted facilitator has the highest chances of success. In

cases of conflicts, it is thinkable that the international community or some of its members will try

to impose themselves as facilitators even if they are not accepted by both parties.


26

6.4 Discussion of the Model

The model and framework are presented as a construct of thought. Even so, a number of critiques

come to mind. They are shortly addressed below. Overall, the points are well worth considering;

however, they need not necessarily be considered as weaknesses of the model but rather as

strengths.

The model presented here is described in general terms. For some, it may be described in too

general terms in order to work. International lawyers know the problem – the more indeterminate

something is the larger is the support because everybody can interpret it to their own liking. While

this is true, the model will not be able to be used as a political apology because the gatekeepers,

the rules of the contract, provide strict limits. The general terms of the model provide the oppor-‐

tunity to apply it to very different situations.

It is a theoretical model that yet needs to be applied to real life situations. The model seems to

presume a certain good will by the parties and a stable system, possibly even democratic system.

Regarding the good will of both parties, it is true that the model will only have a chance if those

entering into the process have a genuine will to solve the issue. Stalling negotiations indetermi-‐

nately may be possible by either side; yet, it does not contribute to the solving of the issue. This

would be defined as a setback which in turn can have two consequences. For one, setbacks can be

overcome by the parties, possibly with the help of a facilitator. For another, serious setbacks could

call into motion the sliding scale. A third explanation could be that the model simply needs the

right timing. The model cannot be applied to all situations at all times but could be put in place

when circumstances have developed in such a way that a window of opportunity arises.

Regarding the stability of the state or the possible requirement of a democratic state, the answer

is a careful yes. While full-‐blown democracy is not envisaged, it is certainly a precondition that the

powerful state is willing to enter into negotiations and desists from imposing its will on the other

party. Negotiations and compromise may indeed be valued higher in democracies; yet, peace ne-‐

gotiations between governments that are not exactly democratic and rebel groups are not un-‐

common.


27

It could also be argued that the model only works in federal states. Unitary or centralized states

have a slim chance of having a government that is willing to give up control in a part of the coun-‐

try. This concern is only partly valid. In cases of political autonomy, this may be the case. A central

government might think that granting one area of a state autonomy may have a domino effect and

more areas could want autonomy. Spain serves as the example of the opposite practice. The Span-‐

ish state works with different degrees of autonomy of its regions. Furthermore, it cannot be pre-‐

sumed that only because one group received some special rights, all other groups would claim the

same. One could even turn the argument around and consider whether it would not strengthen a

state to give up control in a region over certain issues and in return not be constantly challenged

by that region.

Another point to be addressed is whether the model only works in relatively homogenous states.

If there are two very different groups living together in one state, could it not be the best solution

to separate them and let them both become independent states? The answer is certainly yes. The

model does not forbid external solutions. If the parties agree to separate into two different states,

that is a valid result of the negotiations. What the model does, though, concerning external self-‐

determination, is that it pushes unilateral external self-‐determination to an outer limit so that it

becomes an exception for very rare circumstances. In other words, external self-‐determination has

no place in the regular cycles of negotiations if one of the parties rejects it.

On the other hand, the argument that heterogeneous societies must be split up assumes that ho-‐

mogenous states is the best we can hope for in the international arena. If this really were the case,

we would see countless cases of external self-‐determination as the vast majority of states is made

up of more than one group. Thus, whether or not a split up is the best solution again depends on

the specific circumstances. In any case, ‘best’ is a very subjective term.

The model speaks of repeated rounds of negotiations without mentioning when to stop. In theory,

the rounds could be endless. If there at some point are no more substantive changes to be made,

there is always a possibility to evaluate the mechanisms in place. Also, there is no requirement as

to the frequency of the rounds. If everything has been settled to the satisfaction of both parties,

there is no reason to keep the rounds at the same intensity as when a specific issue has to be dealt

with. There is, of course, a certain danger that each round will bring more fragmentation of the


28

state as the group receives more and more rights. This concern is difficult to address as it very

much depends on the kind of self-‐determination that is chosen. If the self-‐determination regime

rests on participatory rights, a fragmentation is less likely than when expanding autonomy in every

round. At the same time, expanding an autonomous regime may make that regime more coherent

and thus actually support clear dividing lines of competences.

A valid state concern can be what its neighbours say to a group friendly approach. Not surprisingly,

the answer to this concern depends on certain factors. For one, it depends very much on the out-‐

look the neighbours have on international affairs. If they regard compromise as a weakness that

can be exploited for their own advantages, the state faced with the claim to self-‐determination

may have reasons to hesitate entering into the process. States, however, who value inclusion and

negotiations, should acclaim this approach taken by a state faced with self-‐determination claims.

It is not foreseeable which decision the state in question will take. This shows that international

law is not and will not be the only basis for decision-‐makers in politics. While the model has its

internal strengths and can be positively influenced by international facilitators, international ac-‐

tors can also pose one of the greatest obstacles to the model.

A point was made in the beginning of this paper regarding the application of this model to groups

instead of peoples. While I still see the advantages and the necessity of expanding the model to

groups as defined above, the issues arises how to deal with minorities that have a kin-‐state. The

contract is envisaged between the group and the state. Third parties are allowed as external fac-‐

tors; however, it is questionable whether kin-‐states can be considered external. For one, they are

too close to the group to be an impartial actor. Furthermore, it can be difficult to restrict the kin-‐

state in its policies, claims and actions. A minority may be content with an internal solution yet a

more extreme government in the kin-‐state may upset the whole balance in the model. Thus, while

the applicability of the model is not predetermined under any circumstances, it is quite possible

that situations of minorities with kin-‐states more often lay outside the scope of the model than

inside.


29

7. Conclusion

Many conflicts have been fought in the name of self-‐determination. While groups desperately

seek self-‐determination, states are just as strict in denying it. Self-‐determination is regarded a

dangerous concept even though it is one of the most basic principles in international law. The

Charter of the United Nations features the right to self-‐determination in its very first article. Both

the International Covenant on Civil and Political Rights and the International Covenant on Econom-‐

ic, Social and Cultural Rights place self-‐determination as the most basic human right.

A closer look at the evolution of the right to self-‐determination, though, shows that self-‐

determination often either raises false hopes or crushes these hopes because of the wrong under-‐

standing. Self-‐determination has two dimensions – an internal and an external one. The origins of

self-‐determination point to the internal dimension and the subsequent development shows a pre-‐

occupation with territorial integrity. Thus, external self-‐determination has never been the prede-‐

termined meaning of the term self-‐determination.

A closer look at decolonization shows that even here, territorial integrity played a very important

role. It also shows that decolonization was unique and that it cannot be transferred directly to

situations today. Nevertheless, it is important to make it clear that external self-‐determination

does exist. It is not the rule and even as an exception it can very rarely be used; however, there is

a right to external self-‐determination.

A further characteristic of self-‐determination is that it is never unlimited. Human rights rarely are.

As the self-‐determination of a group always touches on the self-‐determination of the larger socie-‐

ty or the status quo of the state as such, it can never be fully realized without threatening if not

breaching someone else’s rights.

Acceptance of this statement leads to the conception of self-‐determination as a contract. There

are always two parties involved in any given self-‐determination issue. The issue might even be

complicated by further actors but from the outset, there are two parties: the state and the group.

If both have rights they need to compromise. This gives self-‐determination the chance to be a me-‐

diator and peacemaker. The content of the contract is internal self-‐determination; the details are


30

negotiated in several rounds of negotiations. The rules of the contract, though, the gatekeepers,

are strictly set and cannot be bent.

The state has the obligation to take the negotiations seriously. This rather lofty wording means to

conduct the negotiations in good faith, with real interest in solving the claim to self-‐determination

and being willing to compromise. In return, the state gains a guarantee of the status quo of its

territorial integrity which is in line both with the understanding of the concept of self-‐

determination and is regarded as the ultimate aim of the state.

The group, of course, also has an obligation but receives a gain in return. The obligation should not

be too difficult as it is in line with the proposed concept of internal self-‐determination. The group’s

obligation corresponds to the state’s gain which is that the group does not seek external self-‐

determination. The group’s gain is simply that they reach their aim: self-‐determination. The group

may need patience; however, the state’s obligation to take the group seriously guarantees pro-‐

gress.

The contract on self-‐determination is embedded in a model that proposes repeated negotiations

of the contract. A basic agreement has to be found; however, the next rounds are dedicated to

refinement, further development and evaluation. They cannot be abandoned completely as self-‐

determination is a dynamic process that not only can but has to adapt to changing realities.

The fact that self-‐determination is understood in its internal dimension also has consequences for

the exasperating discussion on who is a people. The right to internal self-‐determination can be

expanded to the usual suspects in the discussion on self-‐determination. Indigenous peoples and

traditional minorities that are protected under international law can claim self-‐determination

without necessarily changing anything about the rights the groups enjoy already today.

Being a research project in progress, only the basics are laid out here. This is, of course, only the

first step. The model now needs to be tested and applied in case studies. It remains to be seen

whether it can be used to the advantage of both parties to a self-‐determination issue; something

that really does seem utopian.


31

8. Bibliography

Calhoun, Laurie (2001) ‘The Metaethical Paradox of Just War Theory’, Ethical Theory and Moral Practice, 4: 41-‐58.

Capotorti, Francesco (1979) ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Lin-‐guistic Minorities’, UN Doc. E/CN.4/Sub.2/384/Rev.1.

Castellino, Joshua (2000) International Law and Self-‐Determination, The Hague: Martinus Nijhoff Publishers.

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