Secession’s Dueling Rules: Self-Determination vs. Uti Possidetis

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Secession’s Dueling Rules: Self-Determination vs. Uti Possidetis

Published in the Maryland Daily Record December 10, 2014

Blame (or credit) Woodrow Wilson. And the Russians. It was reportedly Wilson in 1918 who first spoke of “the right of self-determination of peoples” as something international law should recognize. A convenient thing, perhaps, for an American president to support when American had no empire to speak of[1] and its rivals for international influence did, but a laudable ideal. The concept did not truly catch on until 1945, however. In that year, the Soviets, who doubtless recognized decolonialization as a likely way to increase the world’s stock of socialist and autocratic governments, had their own reasons for insisting, successfully, that the self-determination principle be recognized in Articles 1 and 55 of the United Nations Charter.[2]

Self-Determination Includes Secession

So, as a matter of international law, “peoples” were pronounced to have that right to “self-determination.” But it couldn’t just be about colonies. Inevitably, “peoples” would sometimes seek to exercise that right by “self-determining” to secede from countries where they lived. And they too could claim the sanction of international law.

Sometimes the resulting divorces were cataclysmic: the 1947 partition of Pakistan and India, resulting in an incomplete separation of Hindu and Muslim “peoples,” uprooted 10 to 20 million people and cost hundreds of thousands of lives.  By contrast, the 1992 splitting of Czechoslovakia into the Czech Republic and the Slovak Republic, commonly called the “Velvet Divorce,” only required a Slovakian declaration of independence and some negotiation, and came off without any loss of life.

Most secessions and would-be secessions fall somewhere in between India’s horror and Czechoslovakia’s mundaneness. But almost all are problematical. The biggest problem often is that “peoples” are theoretically guaranteed the right to divorce, but territory isn’t. Yet necessarily and thus inevitably, separating “peoples” wants to break off chunks of territory with them. And the United Nations Charter which guarantees the right to secede says nothing about how maps are redrawn. In the real world, though, there may be competing claims to land. “Peoples” may occupy multiple lands, and multiple “peoples” may occupy a single land. So what becomes of the map when one “people” decides to withdraw?

Uti Possidetis and the Map

There is only one legal principle I know of that addresses this problem, but it isn’t much help. Known at uti possidetis, it has its origins in Roman law. In its original incarnation, the principle ordained that the boundaries of the territory held by the victor at the end of a war would continue in force thereafter (until the next war, presumably). As the Spanish empire crumbled in the 19th Century, uti possidetis came to mean that Latin American countries chipped out of that empire’s rubble would retain colonial borders.[3] And in the last century and a half, it has effectively meant that in national divorces, customary boundaries persist. This sounds benign until you realize how it works in a secessionist context.

We have seen some alarming impacts from attempts to apply it. Take one example from the breakup of Yugoslavia: the case of Kosovo. Before the death of Yugoslavia’s dictator Tito in 1980, the boundaries of Kosovo were fixed: it was a recognized province. But it was sacred both to the ethnic Albanians and to the Serbs who were a minority within the province. After Tito’s death, the country of Serbia-Montenegro was formed from part of the Yugoslavian territory, and included Kosovo. The boundaries of Serbia were specifically fixed by reference to uti possidetis.[4] When the Albanian Kosovars, surely a “people” with the meaning of the Charter, began fighting for Kosovo’s independence, the Serbs, aided by the central government, engaged in a brutal campaign of ethnic cleansing against them that was only stopped by Western bombing. Kosovo became independent, and eventually a nation. The Serbian Kosovars (and the Roma) then largely left the province. Only at that point and by that process did the boundaries of the nation correspond to the boundaries of a people. And that result was only reached when uti possidetis was in effect overruled by Western arms.

Blood and the Map

Say what you will about Radko Mladic, the Serbian general responsible for some of the worst atrocities; he summed it up neatly with the phrase “borders are always written in blood” – rather than by applying neutral principles. And he was right; in a situation where self-determination and uti possidetis could not both be honored, NATO shed Serbian blood to affirm the Kosovars’ self-determination.

Of course, the story does not end there.

The lesson that the West preferred self-determination and borders written in blood to uti possidetis was not lost on Serbia’s ally Russia, which, in the name of self-determination, has absorbed South Osetia from Georgia, and then the Crimea from Ukraine, and is on course to absorb more of Eastern Ukraine as well. Putin claims to be doing what the West did in Kosovo. And he might be – if Crimea and Eastern Ukraine really had been “yearning to breath free of Ukraine. (According to polling conducted this year, though, the “peoples” of Crimea and Eastern Ukraine, if honestly consulted, would probably have expressed a preference to stay with Ukraine or at least not join Russia.)[5] But Russia has nonetheless called the West on its inconsistency: supporting self-determination and borders written in blood in Kosovo and uti possidetis in Ukraine.

Iraq and Kurdistan: Uti Possidetis at its Worst

Another bad theoretical mess and worse human tragedy arising from the interplay of self-determination and uti possidetis can be seen in two related errors left by the withdrawal of the British mandate in the Middle East in the 1920s. First, as the British exited, they tried to cobble together one country (Iraq), by conjoining three vilayets (provinces of the Ottoman empire), one predominantly Shiite, one predominantly Sunni, and one predominantly Kurdish. In keeping with uti possidetis, the administrative boundaries were observed; the “peoples,” however, were locked in a national cage together. Worse, the Kurds were parceled out among five countries (Syria, Turkey, Iraq, Iran, and Armenia).

We all know how well all that’s worked. Up until ISIS, no one had been able to break out of the cage of Iraq; and even now, the Kurds have nothing like a homeland. And, oh, yes, hundreds of thousands have died.

So How Is It Done?

Probably because secession can lead to such intractable problems with national borders, various statements of principle, treaties, and law review articles have discovered qualifications on the right of secession: it is described as only available, for instance where a minority is gravely oppressed, or only available to indigenous peoples to a limited degree, like Indian reservations. None of these qualifications are found in the UN Charter, though. And many of those qualifications would in practice lock minorities into countries where they are oppressed and don’t fit.

If we’re going to be serious about the right to secede, then, we have to figure out better how it’s done, and not in places like Scotland that take an orderly vote, but in places like Kosovo, where large groups hate and distrust each other. I’ll talk about that next time.

_________________

[1]. The lands seized from Spain in the Spanish-American War (principally Cuba, Puerto Rico, Guam, and the Philippines) plus Hawaii and Alaska (later to become parts of the U.S.), were America’s approximation of an empire at the time. These were dwarfed in land, population, and resources by the contemporaneous British and French empires. (See Wikipedia article here and summary here.)

[2]. Frederic L. Kirgis, Jr., The Degrees of Self-Determination in the United Nations Era, 88 Am. J. Int’l L. 304, 304 (1994).

[3]. The map of South America had been drawn in such a way that none of it lay outside the boundaries of one or another province of one European empire or another (mostly the empire of Spain). But maps were one thing and actual dominion another. There was a fear that if countries split off from the empire laying claim only to the lands their governments actually controlled, this could lead to terrae nullius, territory that belonged to no one and might give rise to conflicts later. In order to forestall the development of such problems, international law insisted that the dominion of the new countries extended to the old, exhaustive colonial boundaries.

[4]. Yugoslav Arbitration Comm’n Opinion No. 2, 92 ILR 168, cited in Malcolm Shaw, Peoples, Territorialism and Boundaries, 3 European Journal of International Law 478, 495-96 (1997).

[5]. On Crimea, see the reporting on a poll conducted in January. And a poll conducted in East Ukraine shortly before the unacknowledged Russian invasion said the same.

Copyright (c) Jack L. B. Gohn

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