April, 1994

THE LIMITS ON SELF-DETERMINATION RIGHT: 
LESSONS OF HISTORY.

It is often stated that a nation\people possesses total sovereignty and therefore may take for itself as many rights as possible. The concept of national sovereignty gradually expanded to the extent when "the right to self-determination" was seen as "the right to secession". Lessons of history, especially in the light of the modern development, make a strong case not for secession and isolation behind the fence of sovereignty but for optimal regulation in a framework of a multinational state and of the international community. By avoiding isolation a people create new opportunities for economic and social development. Therefore interests of a people must not be sacrificed to interests of a nation. A victim of secession is first of all the human being, the individual. Countries going through a chain of secessions are usually plagued by ethnic and confessional conflicts.

We must be careful with the old stereotype that "a nation possesses total sovereignty", if this notion calls for secession and isolation. On the other hand, at the time of anticolonial revolutions and the struggle for independence nationalism played a positive role in the creation of new independent states. At the same time, today quite often we see that the people's right to secession is proclaimed absolute not by the political forces of a given country but by the foreign forces and interests. This fixed approach acquires a new dimension in the light of the experience of the Soviet Union and Yugoslavia. This experience calls for the right to self-determination to be exercised primarily within the boundaries of a state.

The doctrine of self-determination has a long and a complicated history. At the time of the Great French Revolution a principle "one nation - one state" was advanced in Western Europe and gave birth to the rise of several nation-states. But the concept of the nation eventually could not solve all problems, especially of the states that became multinational. In such states the interests of one nation often clashed with those of another. 

In the middle and towards the end of the 19th century at first on the initiative of Western liberals and then Western social-democrats the principle of self-determination was introduced. This principle was developed in detail and even written into the UN Charter as the principle of equal rights and self-determination of peoples. What does the UN Charter in fact states is to promote world peace, "to develop friendly relations among nations, that is, states, based on respect for the principle of equal rights and self determination of peoples." (Article 1, part 2) The right to self-determination, as I understand it, is conferred on a people rather than a nation.

None of the people, that compose a state, can be denied the right to shape their destiny. At the same time this right does not imply the right to secession. Self-determination does not equal to secession. The Declaration on Principles of International Law, adopted by consensus by all UN member states in 1970, declares that there are no legal grounds for secession by consent even of a part of a state's territory that was annexed to it by force if this annexation took place prior to the adoption of the UN Charter (1945). In my opinion this rule should be extended.

It is very important to understand that memories of the tragic past are, of course, of political and moral significance, but they do not produce legal rights. We are to bear in mind that at least half of all states have emerged through conquest. If we are going to try to eliminate all "historical injustices", the modern world would be dragged into a bloody large scale war.

The Declaration on Principles of International Law reaffirms that "All peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development in accordance with the provisions of the Charter". This right to self-determination is exercised primarily within the boundaries of states to which a people belong. Political forms of self-determination are national-cultural autonomy, federation and confederation. There is a diversity of choice that makes self-determination possible but only if the latter is not confined to secession. 

The material on the pages to follow is based on European political thought and experience that should be supplemented by analysis of political thought in Africa, Asia and Latin America.

I. The NOTION OF "RIGHTS".

What is implied under "rights" and to what extent the rights of both people and rulers may be absolute? To use words like "rights", "duties", "obligation" is to imply a rule of some sort. In what sense can we say that rights derive from rules? An answer lies in a connection between rights and duties which are different names for the same relationship. The statement of a right is only another form of the statement of a duty. 

Starting from the 17 century European philosophers proposed several approaches to this question. The positivist theory of rights was created by Baruch Spinoza and Thomas Hobbes. It ignored a fact that the notions "rights" and "duties" possess meaning only in a context of rules. The idea of guiding rules was supplanted by the idea of "power", rights were equated with power. There is no right where there is no power to secure an object of a right. Any man has as much right over others as he has power.

Opponents of these views argued that the rule and the right are logically prior to the power. Some of them supported a conception of "the divine right" which holds that a ruler is endowed with the supreme power by God. Others put forward the idea of people's sovereignty and common treaty which was closely linked with the idea of natural rights. It holds that all individuals possess certain rights "by nature", irrespective of particular social, legal, political or economic status. 

David Hume, Edmund Berke rejected the idea of natural state of man and natural rights.The main criticism of the theory of natural rights was that if we attribute rights to individuals absolutely as inherent and inalienable than it is impossible to solve conflicts among them whereas a society is a continuous process of adjustment between conflicting claims. All individuals must be ready to make concessions if they want the social order to work. The state was regarded as a result of the natural evolution. The conception of legal rights to power was suggested. 

According to it law must reflect the economic and social stratification of a society. Later the idea of meritocracy and morality was added to this view. Moral rights unlike legal rights are not restricted by law and constitution. When a particular set of laws becomes obsolescent and turns to be a break on the development of a society, new moral, social, economic considerations come to play in order to update the existing legal rights. Moral rights in other words may be described as the rules of reason. The latter in its turn is underpinned mainly by economic and social development of a society. In this case there are no sacrosanct cows. If legal rights are upheld by state institutions, moral rights - by the force of majority's or most socially active groups' activity. The legal rights are usually used by a lawyer; the moral rights - by a reformer. It is the evolution of the civil society that grants people with certain rights and that demands a certain set of duties to be observed if they want to sustain efficiency and safety of their community.

In the 20 century a term "human rights" was coined with the connotation of a wide state activity whereas "natural state of a man" required only that a government, as well as private persons, should respect a proper sphere of personal autonomy. Human rights also required "positive performance", for their realization means the increasing role of government to safeguard people's prosperity and "national interests". The majority of societies in the world have embraced the idea that there is no absolute rights either in the form of "divine", "natural" or "legal" rights. The only possible way to achieve and sustain a successful development of such large human entities as nations is a proper functioning of a state machine, its economy, political and social variables. Rulers and subjects together enjoy not only the whole set of humane rights but also mutual obligations and commitments. The rights may be absolute only to the extent when their realization leads to the defence of a state's and people's interests, to a growth of economy and eventually to the higher prosperity of a population.

II. THE NOTION OF LIBERTY.

I have already touched upon the general characteristics of "people's rights" from the point of view of the way in which rights are established and maintained ("legal" and "moral" rights). Another way of classification is according to the type of activity. The economic, civil and public rights may be distinguished. The main dimension of all these rights is enjoining different types of liberty. Any right can be exercised to the extent which is limited by an existing liberty to enjoy this right. The notion of liberty is a central one for the whole concept of people's rights. 

But do people need to limit their power over themselves? It may be very instructive to turn to the ideas of renowned British champions of Liberal thought. The pivotal idea is that the only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others. The famous book "On Liberty" by J.S.Mill was entirely dedicated to elucidation of the idea of the free and sovereign individual. At the same time Mill emphasized the importance of national as well as individual character. The role of a state must not be restricted by a role of a "night watcher". A state is responsible for a wide range of obligations before a people, the essence of which is to augment a people's wealth and security.

A disciple of Mill - Green considered that an individual will must conform with demands of a society. All such prominent proponents of liberty as Auguste Comte, Thomas Jefferson, Adam Smith and Charles Montesquieu thought that liberty is not infinite but restricted by law. A state is entitled to go as far as to apply compulsory and even forceful measures towards offenders in order to secure the implementation of its obligations before a people. The maximum majority of citizens should comprehend that each separate individual has a responsibility to create maximum benefits not only for himself but for all members of a society.

In the 20 century a positive conception of liberty became dominant. Its main idea is that an extensive state intervention to enlarge freedom turns out to be a necessary factor in providing people's welfare and social stability. Today, like in the 19 century, understanding of liberty and freedom must be closely connected with modern realities of the world's development, characterized by an expansion of free trade, the growing role of bigger economies and trade systems, lifting off trade, social and economics barriers. 

III. THE NOTION OF "NATION-STATE". 

In this context it is important to define such notions as "nation-state" and "national/state interests". I shall analyze a short analyses of the evolution of this notion, taking as an example the history of Europe. 

Roots of the birth of the nation-state in Europe go back to the 16th and 17th centuries. Most European countries at that time witnessed a centralization of political and military authority of the state. Economic changes undermined much of the old feudal order and different social groups had to relate to each other through newer formes of contracts and obligations. Many philosophers considered "nation-state" to be natural and best form of civic society. They insisted that its power should be enhanced and its interests defended, and that its rulers and ruled needed - whatever the specific constitutional form they enjoyed - to work harmoniously for the common good.

Starting from that time power was becoming national power, whether expressed through the enlightened monarchies of Eastern Europe, the parliamentary controls of Britain or the later radical forces of revolutionary France. In a new multipolar system of European states each of them made decisions about war and peace mainly on the basis of "national interests" rather than for transnational, religious causes. Countries which were enemies in one war often found themselves partners in the next, which placed an emphasis in decision making upon calculated Realpolitik. Geopolitical, economic, cultural factors helped to shape the territorial borders of these emerging nation-states. The integrity of the national territory became one of the top priorities of states.

Nations of Europe and North America in their complete form, as we know them today, came to life only in the 19th and even un the 20 century. In many cases a nation is a consequence of setting up a state but not the other way around. The USA, Australia and Russia are obvious examples. 

But even in the hay day of 19 century Liberalism and classical political economy, when a phrase "every nation a state; only one state for the entire nation" became popular, the word "nation" was understood, in words of J.S.Mill, only as "an extensive aggregate of persons" . It was considered that a small state can never bring to complete perfection within its territory the various branches of production. The economic benefits of large-scale states were demonstrated by the history of Britain and France. The word "Balkanization", derived from the division of the territories formerly in the Turkish empire into various small independent states, still retains its negative connotation. Multinational states did not create any objection at that time. It seemed natural that "nation-states" were nationally heterogeneous. Self-determination for a nation applied only to what was considered to be an economically and culturally viable nation. In this respect Mill's idea of nation self-determination was fundamentally different from President Wilson's. 

The "principle of nationality" as a doctrine of Wilson dominated the peace treaties after the Second World War and produced a Europe of 26 states. A recent study of regionalist movements in Western Europe alone counts 42 of them, thus demonstrating what can happen once the "threshold principle" is abandoned. It is clear that in reality a world of nations practically cannot exist. We live in a world where some strong national groups claim this status and exclude the weaker from making similar claims.

It was commonly held that the principle of nationalities is legitimate when it tends to unite and illegitimate when it tends to divide a state. National movements were expected to be movements for national unification or expansion. The main reason for this belief was that in most parts of the world nationalities were and increasingly are so mixed that it is impossible to draw any actual borders among them. China, Korea, Japan are rare examples of states composed of population that is ethnically almost homogeneous. Also it was acknowledged that small nationalities should gain by merging into greater nations. The only historically justifiable nationalism was one which enlarged rather than restricted the scale on which human economies, societies and culture operate.

Another distinct stage of national movement development may be traced at the beginning of the 20 century, with its peak in 1918. It is characterized by abandonment of the "threshold principle", so that almost any people considering themselves a "nation" claimed the right to self-determination, implying the right to a separate state. The term "nationalism", as we see, was actually invented in Europe in the last decades of the 19 century. In 1914 a sharp shift to the political right of many nations happened and Europe was engulfed by xenophobia. At the end of the war with a support of the Wilsonian doctrine nationalism was victorious in many European states. Its exponents became ruling elites of the new independent states. Collapse of the defeated states led to social revolution.

IV. THE RUSSIAN AND SOVIET EXPERIENCE.

The collapse of the great multinational empires of Central and Eastern Europe and The Russian Revolution made it possible for the Allies to play Wilsonian card against East European revolutionists. Except Russia the continent became a jigsaw puzzle of new nation-states, created on a fragile national basis. Even a brief glance at this pattern reveals how precarious was an effort to redraw the political map on national lines. Most of the new states were as multinational as the old "prisons of nations" they replaced. For example, German, Sloven and Croat minorities in Italy took the place of Italian minorities in the Habsburg empire. A consequence of this ill-considered policy was the mass expulsion of minorities. 

Another regrettable consequence of these developments was that whereas before 1914 national movements mainly had been directed against multinational Habsburg and Ottoman empires, after 1919 they were on the whole directed against national states. From that time on they became separatist rather than unifying. The Welsh, Scottish parties emerged between the world wars. The Basque National Party acquired mass support. After 1945 these trends continued. 

During the second half of the century, perhaps, two of the most important events in world history were the process of decolonization and the break up of the Soviet Union. During decolonization period the principle of state-creation, unlike that after the First World War, had little to do with Wilsonian notion of self-determination. By and large, independent states were created out of existing areas of colonial administration within their colonial frontiers, which almost everywhere had been drawn with little reference to national allocation of the population. There were examples of nation liberation struggle, as in the case of Algeria, Morocco, Kenya, Zimbabwe, Angola and others which led to emergence of newly independent nations. The more societies were urbanized and industrialized, the more artificial were attempts to divide existing states. Gandhi and Nehru, Mandela and Mugabe, Zulfikhar Bhutto and Bandaranaike were or are nation-builders not nation-splitters. When splitting of states did happen it usually led to great ordeals and bloodshed.

Attempts of self-determination up to secession manifested once more its dangerousness and destructiveness in the case of Russia. Before the collapse of the Soviet Union we heard an argument about the internal weakness of the "Soviet Empire", its artificial nature and coercion as the main factor cementing its territory. Instead, the principle of self-determination up to a complete secession was proclaimed as a remedy. In spite of this populist presentation an evenhanded approach to this question reveals a different picture.

From the time of Kiev Russia in the 10th century, the first slav kingdom in the European part of the former USSR, the state was evolving as multiethnical, multicultural and multilingual. By the middle of the 19th century the augmentation of territories into a single whole, like we new it in the borders of the Soviet Union, was completed. In fact the Russian tsarist Empire was never "the Empire" in terms of other Empires like British, Ottoman or Spanish. Russia did not have a single colony or even dominion. 90 % of its territory in the 19th century, which was jointed to the original core of Russia, represented peaceful evolutional penetration into vast almost unpopulated lands, as in case of Siberia, or absorbing neighbouring states which often voluntarily asked Russia for help in order to avoid elimination by a foreign aggressor as in case of Georgia, Ukraine and Armenia.

By the end of the 19th century Russian Empire was cemented by a unique history, economic market, highly mixed multiethnical population and geopolitical interests. This entity was taken over by the Soviet Union. After 1917, except cases of Finland, Poland and Baltic states, Lenin never expressed the idea of a national self-determination up to secession. Even the above-mentioned concessions were made by him while anticipating a victorious European revolution. Later it was Stalin who coined a famous thesis of self-determination of nations and consequent possible secession. In particular circumstances of authoritarian rule in Russia this thesis was embedded in the Soviet Constitution for purely ideological reasons. Its formality was demonstrated, for example, in 1954, when Khrushchev handed over to Ukraine the Crimean peninsula.

Paradoxically, earlier the essence of this idea in theory was supported by Wilsonian doctrine and in practice realized in Versailles Treaty, which tried to divide Europe on the lines of major ethnic groups. By 1991 60 million people in the Soviet Union lived outside their native republics. Moreover, territorial borders of the republics nowhere coincided with ethnical ones. The population of almost every people to a lesser or larger degree was scattered over the whole territory of the country. When the idea of independent state borders was applied to the borders of the Soviet republics, it turned out that out of these 23 borders between the republics only the allocation of 3 did not contain a possible ground for mutual territorial claims. 

Most of the borders were drawn without taking into account ethnical distribution. There was a constant flux of the population across the country for several centuries and, in fact, it became impossible to determine the notion of "nation" in its classical form, which states that "a nation is a historically evolved, stable community of language, territory, economic life and psychological make-up manifested in a community of culture". This leads to a conclusion that calls of local nationalist elites to partition were and are populist and demagogic to the core. 

After 1991 the development of separate independent states of the ex-Soviet Union vividly demonstrated that in most cases the splitting of a territory of a state, which has become at the end of the 20th century an extremely complex political, economic, cultural and social organism, leads to an aggravation of all possible old problems, to a revival of long ago forgotten or contained ethnical conflicts, to destructive civil wars and to creation of petty states without any perspective to become tangible players on the world arena. Usually standards of living plunge and economy quickly deteriorates. The single winner midst these ordeals is a nationalistic and new administrative elites.

Almost everywhere new smaller states, underpinned by a nationalistic propaganda, express extreme hostility to local ethnic minorities. This is, for example, clearly visible in Baltic states, Moldova, Georgia, Ukraine, Armenia, Azerbaijan, increasingly in Central Asia, in ex-Yugoslavia republics, etc. Negative features of separated states are regenerated in their worse expressions. Thus the slogan of national independence may be taken to its deplorable extremes. In reality the collapse of the Soviet Union occurred not under its internal national but under its economic difficulties. 

Before Gorbachev no Soviet republic envisaged secession from the USSR except to some extent the Baltic states. 

All this is happening when at the same time the world is moving towards the larger world economy and increasing interdependence. The number of intergovernmental international organisations grew from 123 in 1951 to 365 in 1984 and the number of international non-governmental organisations - from 832 to 4.615. This process is going ahead ever since. National economies, slowly but irresistibly are merging with the transnational economy, coexist and intertwine with it. The world is witnessing technological revolutions in transport and communication. A Latvian or Basque "national" economy, considered in separation from a larger entity, is as meaningless as a Parisian economy, considered in separation from France. In short, the slogan of self-determination up to and including secession can offer no solution for the 21 century.

Characteristically, the new Russian Constitution, adopted in December 1993, does not contain any semblance of self-determination principle. It proclaims the federation of different entities, possessing different autonomous status, with strong territorial integrity. The Constitution is a supreme law in the country overruling any other laws. It envisages a possibility of including into Russia of a new territorial entities but not otherwise.

IV. THE EXPERIENCE OF THE USA.

In contrast with the recent history of Europe it is very useful and instructive to draw several examples from the history of the USA. The country from the middle of the last century has been considered as a stable multiethnical entity. Since the war between the North and the South it produced a praiseworthy variant of a stable national development. What principles formed the foundation of their Union?

In 1833 opponents of the Federal Constitution in their message to Congress contended that it conferred powers upon the Federal Government dangerous to the rights of the States. In his reply President Andrew Jackson declared, that: "The right of the people of a single State to absolve themselves at will and without the consent of the other States from their most solemn obligations ... can not be acknowledged."

During the controversy over claims of Texas in 1850 to part of New Mexico's territory, President Millard Fillmore in his message to the Senate and House of Representatives wrote that "if the laws of the US are opposed or obstructed in any State or Territory by combination too powerful to be suppressed by the judicial or civil authorities, it becomes a case in which it is the duty of the President...to employ the military and naval force of the US...for the purpose of suppressing such combinations." Ten years later in 1860 President James Buchanan in the heat of the growing argument between North and South denied the right of any member of the Federation to secede from the Federal Government thus highlighting the main difference between Federative and Confederative Union. The President proclaimed that if the Federative Government were a mere voluntary association of States which could be dissolved at pleasure by any one of the contracting parties than in this manner the 32 States "might be entirely broken into fragments in a few weeks which cost our forefathers many years of toil, privation and blood to establish." 

Thus, the right of a people of a single state to absolve themselves without the consent of the other States from the obligation to preserve the integrity of the Union was not acknowledged. 

The next President Abraham Lincoln reiterated this vision that the Union was perpetual. In his Inaugural address he confirmed that "no State upon its own mere motion can lawfully get out of the Union... ." Only the majority of the whole population of the Union has the right to decide upon its territorial integrity. 130 years ago and after only few decades of the Union's existence it became incontestable that different parts of the country could not be separated from each other, having acquired already by that time too much in common to live separate and too much long run benefits of mutual Union to be discarded. The country went through a civil war, managed to secure its integrity and in a short time became a world superpower.

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Considering history and events taking place in the modern world today, one may quite easily notice that political theories do not give full answers to many questions, which involve a clash of different political, social, economic and ethnic conflicting interests. Political theories, on which governmental and international organisations' policies are often based, usually reflect realpolitik.

In the world of constant changes, different political situations, especially at the time of fever heat sectional conflicts, no right is considered absolute by opposing sides. All of them proclaim that it is they who possess total sovereignty, hence the conclusion: "We shall take as many rights as we can." The principle of self-determination, often supported by the international community, in fact proclaims that it is the peoples who are granted sovereignty. Modern developments do not support the wisdom of such a claim.

A people, if not to mention a nation, does not possess total sovereignty. It is a state and a head of a state, or a head of a government, or in a parliamentary republics a parliament, who represent the will of all citizens, not just a faction of a population. They possess sovereignty and are able to execute it in the interests of a given country. As to the right of self-determination, it must be exercised primarily within boundaries of a state. In the final analysis it is an individual who is the victim of ethnic and confessional conflicts. Exclusive concern for the interests of a nation usually leads to the trampling of individual rights and to human sufferings. 

Every country, with its institutions, belongs to all citizens who inhabit it. But only men in power can destroy combinations, which sometimes, as Abraham Lincoln stated in 1861, are "... too powerful to be suppressed by the ordinary course of judicial proceedings... ." Lincoln suppressed such combinations, Gorbachev failed to do this. The USA today exists as a state, the USSR has been dissolved. Every political ruler or a government in time of need must adopt either Lincoln's firm stand in defence of a country's integrity or follow the path of destruction and anarchy.