Published 12 January 2012
The right of self-determination, which is central in international law, has been one of the most contentious issues in international relations since the Congress of Vienna in 1814-1815. The Versailles Treaty of 1919, following World War I, was ostensibly based, among other principles, on national self-determination, though critics have charged that it did not fully pursue the right of self-determination to its ultimate logic. Many people, like the Sudeten Germans, were not given the right to determine themselves freely, it is argued.
The post-World War II map was gradually delineated by the self-determination of the people who had been living under colonial rule; but the post-Cold War period is characterized by the fragmentation of previously constituted states into a diversified mosaic of independent states, as in the former Yugoslavia and Soviet Union. Indeed, among the bloodiest conflicts in recent years those related to the former Yugoslavia, and the application of the right of self-determination within it, emerge as the most prominent.
The principle of self-determination is deemed to be a right under international law. Peoples under colonial rule or foreign occupation are granted a right to determine for themselves the sovereignty under which they wish to live. A region within an already existing sovereign state is not granted the same right. The secession of a certain area from the independent state to which it belongs is legal only so long as there is a mutual consent by the people inhabiting the area concerned and the central government of the state. An example that springs to mind is the agreed separation of the Czech and Slovak people into two separate states. To be sure, international law does conceive the possibility of a region seceding from the sovereign state to which it belongs even if the central government is opposed to such a move, in extreme circumstances. The application of the right of self-determination in the case of Kosovo is a contentious example of that.
Certainly, the right of self-determination may be applied in such a manner that does not necessarily manifest itself in the form of an independent state, but rather of an autonomous area, such as Catalonia in Spain and Quebec in Canada.
The question we wish to raise is as follows: should the right of self-determination be implemented in the same manner for a people having no state of their own as for a people having already such a state? Should the implementation of that right be exclusively territorial in nature or embrace the notion of nationhood in a broader sense?
For instance, should the right of self-determination of the Albanians in Kosovo bear the same legal weight as that of the Slovenians, bearing in mind that the Albanian people have already a state of their own whilst the Slovenian people did not?
Indeed, in the case of Kosovo, the Albanian population sees itself as being ethnically part of the Albanian people living within the sovereign territory of Albania. There is no distinct sense of identity. To claim that the Albanian nation has no sovereign state of its own would be incorrect.
Thus, considering the aforementioned, the answer to the question we pose would be: The Albanian people have already a state of their own. The future of Kosovo's Albanian population would have to be settled not merely on the basis of the application of the right of self-determination as it is construed at present, but rather following the principle that such a right, in this case, does not have to be fulfilled necessarily through the establishment of an independent state.
The principle we propose adds a further dimension to the right of self-determination. We do not wish to argue against the right as such, but in favor of a further principle underpinning that right.
A similar case, though rather more complex, is that of the Palestinian Arabs. Being part of the Arab nation as a whole, it may be argued that, with more than 20 sovereign states already in existence, the Arab people have already fulfilled their right to self-determination through the establishment of several independent states. Indeed, bearing in mind that Jordan, formerly part of Mandatory Palestine, has a population comprising more than 70% Palestinian Arabs, the right of self determination has already been fulfilled as applied to the Palestinian Arabs as well.
The question that emerges in this context is whether the Arab nation has a sense of unity which would justify such an argument.
The answer is clearly not simple.
Institutionally, the Arab states have followed, in some instances, a path indicating a common origin and, indeed, a shared destiny. The Arab League is one such example. Furthermore, the Arabs share the same language; and the overwhelming majority of them adhere to the same religion. They convey a sense of common heritage which, at least ostensibly, binds them together.
However, the Arab world has been beset by internal struggles. These have been caused by political differences, but these differences hardly negate the existence of an Arab nation.
Palestinian nationalism has been shaped particularly since 1967 into a distinctive political phenomenon. It may be argued that the Palestinian Arabs have a separate identity which they wish to foster, though it would be naïve to believe that such a separate identity negates their being an integral part of the Arab people.
Thus, looking at it from a wider Arab perspective, and according to the principle we wish to propose, the Palestinian Arabs' right to self-determination might be constrained in its application by the fact that there are more than 20 Arab states already in existence.
On the other hand, assessing the question from a narrower angle, it might be said that the distinctive national character of the different entities comprising the Arab world is much stronger than the comprehensive Arab identity. In that case, the question to be asked is not necessarily if there are any other Arab states, but rather if there are any other Palestinian states.
It is difficult to determine whether the first or the latter argument should be applied in the case of the Palestinian Arabs. Both are equally legitimate and persuasive, though the first tends to be thematically more suitable to the principle advanced in this article.
The case of Taiwan is, no doubt, an interesting one in this context. To recognize the right of self determination of the population of Taiwan might be construed – certainly by China – as illegal, bearing in mind that the territory might be deemed to have seceded from mainland China.
The Nationalists in Taiwan traditionally argued that they were the legitimate government of the whole of China. Their aim was not ostensibly to create a separate Chinese state. The argument revolved around the legitimacy of the Communist government in mainland China versus that of the Nationalist, having its situ in the island of Taiwan. However, an increasing number of people in Taiwan have called for the independence of the island. China is adamantly opposed to such a move, considering the island an integral part of its sovereign territory.
How would the principle we propose apply in this case?
Even if under international law a unilateral declaration of independence by Taiwan were not deemed to be an act of secession, the question that would emerge in the context of our discussion is whether the fact that there is a Chinese state already in existence should be taken into consideration in assessing the limits of the right of self-determination of the island of Taiwan?
The people of Taiwan might argue that, with the Communist regime in control over mainland China, they cannot see themselves as being part of China and wish to live under a differently constituted political regime, something impossible to achieve within the sovereign territory of China.
Such a stance is based on what is known as "internal self-determination," i.e., the freedom to select the political regime under which a people wishes to live, rather than "external self-determination," i.e., the right to determine the sovereign authority that should rule over the people concerned.
The people of Taiwan may not necessarily object to being part of China as a country, but to being part of a regime in China that is alien to their traditions and wishes.
Sudeten German Case
To go back in time, should the principle of self-determination have been implemented in the case of the Sudeten Germans, living in a region that was part of the sovereign territory of Czechoslovakia, in the same manner as that of the Czechs, considering that the German people had already a state of their own and the Czechs did not? To be sure, in the case of the Sudeten Germans, their preference was to be incorporated into Germany, rather than become an independent state, but that was to be done at the expense of Czechoslovakia and its vital security interests, whilst the latter was willing to extend the autonomy of the German inhabitants in the region.
The case of the Sudeten Germans (and, to a lesser extent, of the Albanians in Kosovo) raises a further question: Should the unhindered right of self-determination be applied also when the exercise of such a right might endanger the sovereignty of an already established state?
The question raised here is not predicated on the notion that the right of self-determination should not be legally binding under international law. Rather, the aim is to broaden the conceptual definition of the term so as to apply it in a manner that is both just and feasible.
The fact that a nation state X exists does not negate the right of people X, living elsewhere, to exercise their right of self-determination. The question is whether such a right should be extended to include the creation of an additional X state? Indeed, whether the fact that such a state X already exists may not limit the scope of the self-determination of people X living elsewhere?
What is proposed here is to add a further principle upon which the right of self-determination ought to be founded under international law, and to define the conceptual framework of this legal right so as to include the question: Has this right been exercised already by this nation anywhere within the international system, and if so how?