The Enigma that is Self-determination

With several secessionist movements, the Kashmir crisis and the Israel-Palestine dispute in limelight again, the concept of self-determination becomes ever-more important. Yet, this concept that now dates back to more than a century, remains equally as unsettled, or as Deborah Cass put it, as much “a penumbra of uncertainty” now as it was at the conclusion of the First World War. Most of us almost take it for granted that we are a “national” of a state, but for much of history, national identity always remained malleable. The Peace of Westphalia, the Napoleonic wars and the Congress of Vienna showed that you could, for example, be French one year and Prussian the next. Even in modern history, the conflict of Bosnia-Herzegovina in the aftermath of the breakup of Yugoslavia and the Rwandan genocide evidenced that people often regard their nationality as much less important than ethnic, religious or tribal allegiance. To that end, it is increasingly important to explore the tenets of the concept of self-determination and the lacunas that exist in its implementation.

The idea of self-determination postulates that peoples of a state or country have the legal right to decide their own destiny in the international system. It proclaims that peoples of a country “own” that country in the sense that they decide their own fate through the process of, for example, elections and voting. International Law codifies this concept as witnessed in Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and Peoples, which stressed that all peoples had right to self-determination, and that they had the right to “freely determine their political status and freely pursue their economic, social and cultural development”. Similarly, the International Covenant on Civil and Political Rights makes an effort to declare self-determination as a “right of all peoples” in its first article. In fact, even the UN Charter pledges to uphold “equal rights and self-determination” in its Articles 1 and 55. It is thus clear that this concept is one that is firmly entrenched in law.

But when it comes to international law, the role of “power” always raises an essential question in its effective implementation. Just like how the USA refuses to recognize the International Court of Justice’s judgement in Nicaragua v USA, or how China rejects the permanent court of Arbitration’s decision against it, so similar remains the story of an exercise of the right of self-determination. Nowhere better is this illustrated in the Palestinian and Kashmiri peoples’ exasperated but well-recognized right to self-determination. In other words, it is a concept of limited application, used only when acceptable to the Great Powers. This has been the case since perhaps its inception as a concept in modern history, when in January 1918, a President of the so-called “New World”, the USA, Woodrow Wilson, went across the Atlantic as a Messiah for a Europe ravaged by war, and delivered his famous ‘Fourteen Points Address’ where his 5^th point extolled the virtues of self-determination in declaring;

“A free, open-minded, and absolutely impartial adjustment of all colonial claims… that in determining such questions… the interests of the populations concerned must have equal weight with the equitable claims of the government”

But this ambitious Wilsonian idealism was stillborn. With the USA out of the League of Nations and returning to isolationism, the European states only half-heartedly implemented the concept. Indeed, colonial peoples were denied the right to self-determination by the victorious states of the First World War, and those possessions belonging to defeated states were brought under a so-called “mandate system” whereby territories that were not considered ready for self-government were allotted to the victorious powers, so as to “tutor” them for independence. Thus, subsequently, international law has time and again made efforts to keep the implementation of a right to self-determination as limited as possible. One example of this is the famous Aaland Islands Case where the essential question was whether the wishes of the inhabitants of a territory overrode the sovereignty of the state. With the decision coming in favour of Finland, the Council of the League effectively made it clear that state sovereignty would most likely always prevail over territorial sovereignty. This principle haunts the resolution of the Kashmir and Palestine dispute to this day by giving moral primacy to sovereignty over self-determination.

It is no secret that towards the end of decolonisation, the colonising powers left hastily, leaving a legacy of irrational political maps leaving whole regions and peoples in disarray. This is most prevalent in Africa where a brief look at its map reveals straight boundaries for hundreds of kilometers, drawn by colonial draftsmen with little reference to physical features, ethnicities of inhabitants or topography. Resultantly, people were divided from their tribes, families and kith and kin, with state identity imposed upon them that they perhaps never wanted. Not surprisingly, many of the former colonies experience violent secessionist movements, as seen in the form of Katanga’s attempt to secede from the Congo, for example. To counter floodgates of claims of secessionism, self-determination had to be limited. The Frontier Dispute Case achieved this, where the International Court of Justice developed the concept of “uti possidetis juris”, arguing that in the case of newly independent states, the status quo of their territory should be in line with that of the previous dependent territory, when it was once colonized. In other words, since independence was primarily acquired within the frontiers of pre-existing colonial territory, these boundaries that exist in the status quo cannot be altered unilaterally through the claim of the right to self-determination. Arguably, the saga of self-determination may be said to have ended with uti possidetis when it gave legal primacy to colonial borders over “interests of populations concerned”, in the words of Wilson.

An even more interesting concept is the idea of “economic self-determination”, which espoused the freedom of states to control and operate their economies without external interference. If self-determination is to be judged on this standard, then it would not be wrong to claim that almost no former colony has actually gained independence. In the aftermath of the Second World War, the former colonial powers gathered at Bretton Woods to formulate a new economic order which came at the detriment of former colonies. Industrial prices rose dramatically, while those of primary produce and raw materials (major exports of decolonised states), fell sharply. How ironic is it that the raw materials that drove five centuries of colonisation were suddenly devalued so extensively when they were no longer in Western interests? Dependency theorists of International relations have explained this at great length with their explanations of the world being divided in “core”, “periphery” and “semi-periphery” states.

This whole story leads to one conclusion; the concept of self-determination is an enigma which, on the one hand, is claimed by law to be for “all peoples”; yet at the same time, that very body of law also denies it through the colonial legacy of uti possidetis. As stated, international law cannot be analysed without the question of power. It thus remains to be seen whether the international system evolves into a more rule-based system where self-determination gains enough momentum to transform into an essential right that transcends national security concerns, in the same way that the bans on slavery and torture have become.