[Cementing the world's
frontiers forever is an overly conservative position, however, and I would like
to suggest at least two exceptions to the no right-to-secession rule that I
articulate. The first exception would recognize a right of secession when there
have been massive and discriminatory human rights violations that approach
genocide. The violations need not constitute genocide under the technical
definition of that term, but I do believe that they must be both massive and
discriminatory. So-called "cultural genocide," for example, in which
a culture may be radically affected by modernization or by a surrounding
dominant culture but not otherwise subjected to human rights violations, would
not justify secession. Rather, this category seeks to provide a remedy in those
rare situations in which there is an explicit attempt to destroy a culture or
people. One could argue, although one would have to look at the facts very
closely, that the repression of Kurds in Iraq and conceivably Tibetans might be
among the situations that would fall into this exception.]
By Hurst Hannum[1]
I. Introduction
 |
| Woodrow Wilson revived the American commitment to self-determination |
One
can address the right of self-determination from a number of different perspectives.
For example, the exercise of this right in the past decade has had a dramatic
effect on theories of international organizations, the role of force, and conflict
resolution. Claims of self-determination led in part to the destruction of the
former Yugoslavia, and the specter of secessionist movements has magnified the
attention given to the rights of minorities and indigenous peoples.
In
the following discussion, I will link self-determination to human rights in two
different ways. First, I explore self-determination as a human right, addressing
issues of content and definition. Second, I discuss the impact of self-determination
claims on other human rights.
II. Self-Determination as a
Human Right
Self-determination
is a human right. Although there are many hortatory references to
self-determination in General Assembly resolutions and elsewhere, the only
legally binding documents in which the right of self-determination is
proclaimed are the two international covenants.[2]'
The first paragraph of common article 1 states: "All peoples have the
right of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural
development."[3]
Although
the quoted language fails to answer several questions, at least some aspects of
the right have become clear through subsequent reflection and interpretation. The
first clarification is that self-determination is a right that belongs to
collectivities known as "peoples," not to individuals. Thus, the Human
Rights Committee has consistently made clear that claims that the right of
self-determination has been violated cannot be raised under the First Optional
Protocol, which applies only to individuals.[4]3 I think that the
Committee is probably wrong to exclude self-determination claims automatically from
the scope of individual complaints, but its jurisprudence has been consistent on
this point.
It also is clear that
self-determination is a right that belongs to peoples, but not to minorities.[5] This truism may only
shift the debate to definitions and semantics, but the distinction between
minorities and peoples remains an article of faith for states and international
bodies concerned with monitoring human rights.
There are numerous
problems in defining both "peoples" and what they are entitled to
"determine." Without reviewing the entire history of self-determination,
let me just outline how the concept has passed through at least two distinct
phases and is now entering a third one.[6]
Initially, meaning perhaps the middle of the nineteenth century when the phrase
"self-determination" came into common usage, self-determination was
not a right but was a principle. It was a principle that first allowed
disparate people who spoke the same language, such as Germans and Italians, to
group themselves together and form a new state. This "grouping," of
course, did not occur without coercion and, in some cases, a good deal of
violence. A bit later, at the end of World War n, the principle of self-determination
provided a guiding principle or rationale for dismembering the defeated
Austro-Hungarian and Ottoman empires.
As a political
principle, but not a right under international law, self-determination in this
period was subject to many limitations. The most obvious limitation, consistent
with realpolitik concerns, was that the successful exercise of self-determination
required the support of the victorious powers if there had been a war or the
support of major powers even absent a war. Philosophically,
"external" self-determination or independence would be rejected if
the resulting state would not be economically and politically viable.
Self-serving political restrictions made the principle of self-determination applicable
to Europe, for instance, but not to colonial empires; thus to Poland, but not
to Ireland.
Following a somewhat
confused period between the two world wars, the adoption of the United Nations
Charter in 1945 marked the beginning of the second phase. This second phase
began, as did the first phase, by identifying self-determination as a principle
rather than as a right.[7] Self-determination was
proclaimed in a manner that did not necessarily require the dismemberment of
colonial empires; if it had included such an understanding, Britain, France,
and Belgium simply would not have adhered to the Charter. Yet, at the same
time, use of the word "peoples" must have implied that
self-determination meant more than simply a reaffirmation of the sovereign
equality of states.
This situation
gradually changed, and I think that one of the great contributions of the
United Nations to international law was in promoting the shift from proclaiming
a principle of self-determination in the Charter to recognizing a right of
self-determination some twenty years later. The problem is that, during this
transition, the United Nations continued to refer rhetorically to the right of
all peoples to self-determination, when what it really meant was the right of
colonial territories to independence.' [8]And
those are two very different concepts.
Self-determination
from 1960 on, at least as articulated by the United Nations, had nothing to do
with ethnicity, language, or culture. Although there were some exceptions - the division of
British India, Rwanda-Urundi, and a few others - the accepted mantra was that colonial territories would become
independent. It did not matter how many "peoples" were found within
them, although obviously each contained many different peoples, nations, and
ethnic groups. Thus, in general, territories, not peoples, enjoyed the right to
independence.
It was also clear
during this period that, although there were other theoretical options - for example, Hawaii
and Alaska exercised their right to self-determination by becoming part of the
United States -
the
international preference was for independence. This result could, and often
was, achieved with only minimal preparation or even consultation with the
colony concerned, although any option other than independence, such as free
association or full integration, required the full and informed consent of the
people involved.[9]
Thus, in the second
half of the twentieth century, a territorial right to independence for former
colonies replaced the nineteenth century principle of allowing ethnic,
linguistic, or religious groups to form various kinds of political units that
might or might not become independent states. In the postcolonial period,[10] what I would identify
as the third phase of self-determination, some are attempting to join those two
principles in order to create a new right in international law: the right of
every people -
defined
ethnically,
culturally, or
religiously -
to have
its own independent state.
Although this new
position has its adherents, it is clear that international law has not yet
recognized such a new paradigm. One reason for this is that, because
practically all of the world's surface is now divided among sovereign states,
self-determination defined as the right to create a new state would necessarily
imply a right to secession.[11]
However, no state, no
foreign ministry, and very few disinterested writers or scholars suggest that
every people has the right to a state, and they implicitly or explicitly reject
a right to secession." This is the current state of international law,
whether one is talking about popular groups like Tibetans or unpopular groups
like Tamils in Sri Lanka. There simply is no right of secession under
international law, nor has there been even preliminary agreement on the
criteria that might be used in the future to determine when secession should be
supported. Of course, there is no prohibition in international law against
secession, either. If a country disintegrates as the result of a civil war,
international law poses no barrier to recognition of the two or more succeeding
states. That is, however, a quite different position than recognizing the right
of a group to secede from an existing state.
Cementing the world's
frontiers forever is an overly conservative position, however, and I would like
to suggest at least two exceptions to the no right-to-secession rule that I
articulate. The first exception would recognize a right of secession when there
have been massive and discriminatory human rights violations that approach
genocide. The violations need not constitute genocide under the technical
definition of that term, but I do believe that they must be both massive and
discriminatory. So-called "cultural genocide," for example, in which
a culture may be radically affected by modernization or by a surrounding
dominant culture but not otherwise subjected to human rights violations, would
not justify secession. Rather, this category seeks to provide a remedy in those
rare situations in which there is an explicit attempt to destroy a culture or
people. One could argue, although one would have to look at the facts very
closely, that the repression of Kurds in Iraq and conceivably Tibetans might be
among the situations that would fall into this exception.
The other and more
difficult exception might arise when a group, community, or region has been
systematically excluded from political and economic power or when a minimum
level of minority rights or a reasonable demand for self-government has been
consistently denied. I want to emphasize that this exception would not apply
when a central government refuses to agree to whatever the minority or the
region wants. Rather, it would apply only when the central government has been
so intransigent that, for example, it refuses to allow the minority to speak
its own language, it excludes minority members from participation in the
parliament, or it refuses to accede to demands for minimal local or regional
power-sharing.
Leaving aside these
two possible exceptions to the rule, I now return to the basic proposition that
self-determination today does not mean either independence or secession. If
that is correct, is there any reason that we still talk about
self-determination as a human right? Is there anything left of it? I would
suggest that there is. What is left - the contemporary content of self-determination - reflects the right's
position in the two covenants and offers an opportunity to ensure that it
continues to have meaning and validity into the next century.
Here, too, I am
suggesting what the law should be, rather than describing what I think it is at
present. First, we should keep in mind that self-determination, except in the
narrow context of decolonization, is not absolute. This point should not be
surprising, because there are very few absolute rights. Recognizing that one
has a right to self-determination does not imply that one can always exercise
the right to its maximum extent any more than exercising the right to free
expression means that one is absolutely free to say whatever one wants under
all conceivable circumstances.
I suggest that we can
find meaningful content to self-determination by looking at two other human
rights, or at least aspects of two human rights, on which there is a much
greater degree of consensus than is the case if one focuses on
self-determination per se. These related rights are as follows: (1) the protection
of the cultural, religious, linguistic, and ethnic identity of individuals and
groups; and (2) the right of individuals and groups to participate effectively
in the economic and the political life of the country.
Protecting the
identity of groups is not very popular in the United States or in some other
countries, such as Sweden. It is clear, however, that, particularly during the
past decade, greater attention is being given to the issues of minority and
indigenous rights, reflecting what I believe is a consensus on the importance
of preserving one's identity both as an individual and as a member of a group.
Related to this is a growing consensus that diversity and pluralism are, in
themselves, worthwhile goals to pursue. Thus, there is room to include protection
of identity in a contemporary understanding of self-determination.
The second aspect,
participation, is derived to some extent from economic development discussions,
in which the right of popular participation in decision-making was identified
as a way of ensuring that assistance received by states would better serve the
purpose for which it was intended. This concept was extraordinarily subversive,
because, once one effectively participates in economic decision-making, a need
to participate effectively in all sorts of other decision-making processes
almost inevitably follows.
More recently, the
belief that a new democratic era has arrived has reinforced this notion of
participation."[12]
Participation, however, goes beyond democracy. 2 [13]Determining what is
and what is not effective participation is, of course, difficult. Ensuring
participation opens up a whole range of possibilities, ranging from representation
in the central government to different forms of federalism, consociationalism,
and autonomy. As a principle, however, it is not inherently less manageable
than due process or fair trial, even if the answer to whether the people in a
particular region or group participate effectively in governing themselves,
both through the central government and locally, is not always immediately
apparent. The idea of effective participation identifies another component of
self-determination that should not be overly threatening to the states that are
expected to implement it.
A final suggestion in
defining self-determination for the twenty-first century is to impose a limit
or a price on its exercise by requiring that any ethnic group that succeeds in
establishing a new state based on principles of ethnicity, religion, language,
or culture should be willing to grant to other groups within the new state the
same right of self-determination and secession that it has just exercised.
Pursuant to this principle, Serbs would have had a right to secede from Croatia
and Bosnia-Hercegovina, and Crees would be able to leave an independent Quebec.
Such a principle might cause potential secessionists to think more carefully
about the consequences of their actions and would give newly trapped minorities
a way out without resorting to violence.
Even with, or perhaps
because of, the exceptions and the nuances I outline, self-determination as a
human right remains relatively vague. Unfortunately, it is unlikely that any
existing human rights mechanism or even a new mechanism will be of much
assistance in defining the right in the foreseeable future, because few states
are willing to allow an international forum to judge a situation that might, if
a claim to self-determination and secession is upheld, result in the
destruction of the state itself. Some things are too important to be left to
lawyers, and I think that self-determination might be one of those issues.
III Impact of Self-Determination Claims
on Other Human Rights
The situation in
Kosovo and recent statements by the U.S. House of Representatives and Secretary of State
Madeline Albright demanding that Serbia recognize the "legitimate rights"
of the people of Kosovo raise several questions: What are those rights? Do they
have anything to do with human rights? Does the United States support the
political goal of an independent Kosovo or a Kosovo united with Albania? Do
Kosovo Albanians have a right to autonomy? Do they have a right to return to
the status they enjoyed in Yugoslavia in 1989, even though we certainly are not
returning anything else to its 1989 position? The obvious danger is that,
whenever self-determination is involved, a destructive confusion of political
goals, basic human rights norms, and humanitarian issues may make it more
difficult to deal with any of these aspects successfully. 3[14]
The other potential
impact of self-determination claims is to encourage violent conflict. Although
it is a truism, it needs to be reiterated that more human rights are violated
during wars than at any other time. If policymakers do not arrive at a better
understanding of how to respond to claims for self-determination, such claims
are likely to increase. It is very likely that the number of violent conflicts
will increase as well, and increased conflict will have a direct impact on the
entire gamut of international human rights.
At the same time, I
think that if we reverse the lens and look at "ordinary" human rights
first, and if we can imagine that all the human rights that we want to have
protected are protected, violence is much less likely to ensue.
Disputes over
self-determination will not disappear, but they will be resolved by countries
such as Canada, the United Kingdom, and Belgium, as opposed to being decided by
countries such as Russia or Yugoslavia. If one creates a genuinely democratic
rights-respecting regime, it is less likely that people will want to leave it.
If, however, they do leave it, it is also more likely that any separation will
occur peacefully.
This approach
suggests that, even when self-determination is purportedly the issue, it is
better to try to address denials of human rights before trying to address the
denial of so-called self-determination. As a practical matter, a nongovernmental
organization or human rights activist is more likely to be able to influence a
government by focusing on respect for human rights than by entering the
quagmire of self-determination and secession. I think that one is also more
likely to protect what we would all agree are human rights – for example, physical
integrity, use of language, and protection of culture - without confusing
those rights with political goals. Even if we may share some of the latter
goals, it is essential to keep them distinct from the universally recognized
and legally articulated provisions of international human rights law.
IV. Conclusion
[1]
Professor
of International Law, The Fletcher School of Law and Diplomacy, Tufts University.
[2]
International
Covenant on Civil and Political Rights, Dec. 19, 1966, art. 1, 999
U.N.T.S. 171; International Covenant on Economic, Social and Cultural Rights,
Dec. 16,1966,art. 1, 993 U.N.T.S. 3.
[3]
International
Covenant on Civil and Political Rights, supra note I, art. 1; International
Covenant on Economic, Social and
Cultural Rights, supra note 1, art. 1.
[4] See, e.g., Human Rights
Committee's General Comment 23 on art. 27 (50th Sess. 1994), reprinted in Compilation
of General Comments and General Recommendations adopted by Human Rights Treaty
Bodies, U.N. Doc. HRIIGEN/1/Rev. 3 (1997), 3.1, at 39.
[5]
. See id.
[6]
For further
discussion of the phases, see generally Hurst Hannum, Rethinking Self- Determination,
34 VA. J. INT'L L. 1 (1993).
[7]
. See U.N. CHARTER arts. 1(2), 55 (discussing "respect for the principle of
equal rights and self-determination of peoples").
[8]
See, e.g., Declaration on the Granting of Independence to Colonial
Countries and Peoples, G.A. Res. 1514 (XV), U.N. GAOR, 15th
Sess., Supp. No. 16, at 66, U.N. Doc. A/4684 (1960) (discussing independence of
colonial countries and peoples).
[9]
See Principles Which Should Guide Members in Determining Whether
or Not an
Obligation
Exists to Transmit the Information Called For Under Article 73e of the Charter,
G.A. Res. 1541 (XV), U.N. GAOR, 4th Comm., 15th Sess., Supp. No.
16, at 29-30, U.N. Doc. A/4684 (1960).
[10]
There
are today only 17 non-self-governing territories recognized by the United Nations,
most of which are small islands controlled by the United Kingdom or the United States.
[11]
See, e.g., Hurst Hannum, The Specter
ofSecession: Responding to Claimsfor Ethnic Self-Determination, 77 FOREIGNAFF.,
Mar./Apr. 1998, at 13, 16.
[12]
Compare,e .g., Gregory H. Fox, The Right to
PoliticalP articipationi n International Law, 17 YALE J. INT'L L.
539 (1992), and Thomas M. Franck, The Emerging Right to Democratic Governance,
86 AM. J. INT'L L. 46 (1992), with Robert D. Kaplan, Was
Democracy Just a Moment?, ATLANTICMONTHLY, Dec. 1997, at 55, 55, andFareed
Zakaria, The Rise ofIlliberal Democracy, 76 FOREIGN AFF., Nov./Dec.
1997, at 22.
[13]
1
remain disturbed by the fact that the Clinton Administration decided to rename
the Bureau of Human Rights the Bureau of Democracy, Human Rights and Labor.
This suggests that neither democracy nor labor is included in human rights or
that democracy and labor are somehow
more important than human rights. Both are dangerous positions to maintain.
[14]
For further
discussion of these issues, see Hurst Hannum, Whose Rights in Kosovo, and
Just What Rights? It is Unclear What is Being Demanded of Serbia, BOsTON
GLOBE, Apr. 5, 1998, at D2.
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