The Right to Self-Determination - Essay Example

?Right to Self-Determination and the Opinions of the Badinter Committee on the Socialist Federal Republic of Yugoslavia The right to self-determination is a thorny issue in international law. In its classical conception, it means the international recognition of the right of the inhabitants of a colony to choose freely their independence or association with another state. (Henkin, 1987: 282). The controversy begins when the question involves whether or not the legal right of self-determination applies to communities and areas within an existing national state. In the past, according to Cop and Eymirlioglu, “the manner in which UN Charter conceives the right of self-determination is far from being directed to create a binding legal norm, but it rather constitutes the mere expression of a political principle (2005: 118).” However, in more recent developments, movements in international law have demonstrated an inclination towards recognizing that self-determination embraces a right to internal democracy for all peoples irrespective of the status of the territory. Under this conception, self-determination goes beyond the rights of distinctive territorial communities to choose their own government and independence; it is a right of self-government for all peoples. Noteworthy is Principle VIII of the Helsinki Accord of 1975, which reads as follows: “By virtue of the principle of equal rights and self-determination of peoples, all peoples have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.” It must said, however, that a too-radical interpretation of this provision should not be countenanced. There must be no disruption of the territorial integrity of states, and the principle must not be used as a blanket sanction for secession. Many legal thinkers posit, however, that this is not inconsistent with the recognition of internal free choice. (Henkin, 283.) The right of self-determination is important in light of the case of the Socialist Federal Republic of Yugoslavia. This paper will discuss the importance of the case of the Socialist Federal Republic of Yugoslavia in the context of the opinions of the Badinter Committee. Background In August of 1991, The European Community formed the Badinter Committee which would arbitrate legal issues arising from the conflicts in Yugoslavia, in light of the cessation of the Republics of Croatia, Macedonia and Slovenia. The chosen chair of the committee was Mr Robert Badinter, President of the French Constitutional Council, and his panel included the Presidents of the German and Italian Constitutional Courts, the Belgian Court of Arbitration and the Spanish Constitutional Tribunal. A good and concise summary is provided by Pellet (1991: 178-179): The primary Serbian question concerned the right of the Serbian populations in Croatia and Bosnia-Herzegovina to self-determination. The second dealt with the delimitation of internal borders, in other words the identification of frontiers between the Republics. Although the Committee gave two distinct opinions in response to the questions posed, it was made clear that these two questions, as well as the queries addressed in its first Opinion, delivered on the 29th of November 1991, were closely related to each other. In its November Opinion, although the Committee displayed little originality in observing that Yugoslavia was 'engaged in a process of dissolution', it made interesting considerations. Discussion Whilst there were many critics, it is important to look at the difficult context on which it is set. Post-reconstruction efforts in a region that was as divided ethnically as Yugoslavia need to include clear-cut and streamlined efforts to address horizontal inequalities – defined by Stewart (2009: 137) as “inequalities among groups with shared identities – identities formed by religion, ethnic ties or racial affiliations, or other salient ways that bind groups of people together”. Certainly, this includes looking at the broad and multiplex power dynamics that underlie these identities and become the basis for the conferral or denial of economic, political or social privilege. Kamphuis (2005: 185) describes a conflict economy as one “that leads to the breakup of administrative and social institutions, the flight of human capital through migration, and the destruction of infrastructure for education and health care”. This becomes an even greater problem in areas like the Balkan region that are fraught with ethnic strife and suffer from horizontal inequalities. Why are these considerations so important to take into account when exploring the concept of self-determination? This is because the ambiguity surrounding the definition of “peoples” in the United Nations Charter granting the right to “self determination to all peoples” has often been given very limited interpretations and has allowed States to clamp upon people’s movements with valid secession claims. What has been the effect therefore of the Opinion of the Badinter Committee? Pellet characterizes the first three Opinions of the Committee as follows: This group of three opinions invites a reflection on three essential points: the scope of the self-determination principle as it is applied in particular contexts, with a special focus on decolonialization; the relationship of this principle to another of equally fundamental import, that of the stability of frontiers; and finally, the general role which an international arbitration body might play in such problems. Upon close scrutiny, the Opinion of the Badinter Committee quite explicitly states that minority groups in a particular nation-state are covered by the right to self-determination. The question that warranted Opinion 2 was this: “Does the Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?”. In answering in the affirmative, the Committee operated on the premise that “Article 1 of the two 1986 International Covenants on human rights establishes that the principle of self-determination serves to safeguard human rights.” In the next sentence, it stated, “By virtue of that right every individual may choose to belong to whatever ethnic, religious or language community he or she wishes.” The implication of that statement is nothing short of radical. First, not only does it explicitly confer on minority groups the right to self-determination, it also uses a rights-based frame of analysis when looking at self-determination. This is not a semantic point. An approach based on human rights heralds a shift from a needs-based approach, i.e., looking at what people need, to looking at what people have an absolute inalienable right to, by virtue of being human. (Alston, 2003: 7). A rights-based approach imposes a duty on the State to uphold this right as a function of the social contract, whereas a “need-based” approach may not necessarily so. It presupposes a social contract between the rights claim-holders and the state that has a duty to uphold these rights. To quote, “The underlying structural, social and political drivers of poverty, vulnerability and inequality have to be addressed in the context of a broad development strategy, in which social protection plays an important part. (van Ginneken, 2011: 3). Merging this with the self-determination discourse, what one gets is that peoples or groups who feel that there is a disconnect between their citizenship and their identity, and therefore invoke the right to self-determine, must be allowed to do so. Hence, Serbs who are in Bosnia Herzegovina and Croatia who feel more connected to Serbia, not only have a right to assert the right to self-determination (as assertions can be made even for invalid claims) but can compel their government to respect said right. There is merit in this legal principle if we realise that nationality or nationalism is an arbitrary principle, and this is particularly true for Yugoslavia at the time. This requires revisiting Gellner’s discussion on nationalism. “Two men are of the same nation if and only if they recognize each other as belonging to the same nation. In other words, nations maketh man; nations are the artefacts of men’s convictions and loyalties and solidarities.” (1983: 6) In the attempt to bind people together under one umbrella that holds their “convictions and loyalties and solidarities”, what is created is one monolithic homogenous mass that highlights only similarities and obscures valid differences that need to be investigated. Indeed, the truth has been that the national identity is more often than not, defined by those that held political and economic power. Explains Watson (1990: 195): For ‘homogeneity [was] imposed by the objective, inescapable imperative’ of industrial civilization, of which the major state nationalisms were the expression and vehicle, with minority national groups dissolving into the wider culture; state and culture had to be one on a large scale as required by the industrial society based on economic growth to which mankind was irreversibly committed. Looking at it through the lens of history, however, it is obvious that the Badente committee committed grievous mistakes. Granting Croatia and Bosnia formal status as republics without first laying down the rights of the minority Serbs in the area, had made the new republics clamp down on the secessionists, and as we already know, forcing them to hit back. Historical accounts have it that on April 25, 1987, Slobodan Milosevic, the fallen President of Serbia, went to Kosovo Polje and was met with a crowd of fifteen thousand Serbs, majority of whom were disgruntled over perceived discrimination by ethnic Albanians. It is said that during that gathering, an old man from the crown suddenly shouted to Milosevic that the ethnic Albanians were beating them. A deathly silence followed as the crowd waited for Milosevic – at that time, known to be a loyal Communist, as opposed to Serbian nationalist – to respond. He did by calling out to the man, “No one shall dare beat you again.” As if these remarks were not incendiary enough, he proceeded to say, “This is your land, your fields, your gardens; your memories are here”. A decade later, under Milosevic’s watch, in defense of fields, gardens and memories, Serbian forces unleashed ethnic cleansing in Kosovo -- resulting in the massacre of thousands of ethnic Albanians and the forcible displacement of around 800,000 more. While this happened in Kosovo, and not in Croatia, and the example is used only to demonstrate how Milosevic has capitalised on the discourse of simplistic nationalism, Milosevic was also responsible for tremendous bloodshed in Croatia. In a sense, the Badinter Committee was responsible for the outright enmity between the Serbs and the Republics that they were part of. Europe stubbornly hold on to the Badinter Principle, Croatia and Bosnia did not change positions against the minorities, and the Serbs were unleashing pent-up aggression as a result of Milosevic’s rabble-rousing. But to quote Pellet: But Law is not always the 'best school of imagination', as suggested by Jean Giraudoux. In relation to its jurisdictional functions, the Committee did not fully develop the consequences which might flow out of its analysis. It did, however, open up an interesting direction of thought in suggesting that the States concerned might accord to Serbs in Bosnia-Herzegovina and Croatia, if they so desired, the nationality of their choice (in other words: Serbian nationality). One might thus suggest a distinction between 'nationality' and 'citizenship' similar to what is provided in the Treaty on European Union signed in Maastricht. (page 179). One wonders now what the significance of the alteration in the doctrine of self-determination might be for the future. The International Court of Justice has recognised the right to self-determination unequivocally in the East Timor case (Portugal v. Australia” when it said that self-determination is of an ergo omnes nature. In a colonial context, which is the context of Yugoslavia, the concept of “uti possidetis” which essentially means that when a colony gains independence, the colonial boundaries become the boundaries of the new state. But how about self-determination by those within the state? To quote Shaw, “the right to internal self-determination is directed against authoritarian regimes, therefore, not only against external interference but mainly against internal interference. (287: 2003).” It is interesting to note that the doctrine will give rise to in the future and how it will be deployed by minority groups to forward their cause and assert their claims. One hopes, however, that the unfortunate effects of the Badinter Committee will be able to be adequately prevented and that there are sufficient checks both for the zealous republics guarding their territorial integrity and the minority groups pushing for autonomy. Word count: 2034 References Alston, P. (2003). A human rights perspective on the Millennium Development Goals. Paper prepared as a contribution to the work of the Millennium Project Task Force on Poverty and Economic Development. (New York, New York University Law School, Center for Human Rights and Global Justice). Cop, B. and Eymirlioglu, D. (2005). “The right to self-determination in international law towards the 40th anniversary of the adoption of ICCPR and ICESCR.” Perceptions. Winter 2005. 115-146. Henkin, L. (1987) International Law Cases And Materials (2nd ed.). American Casebook Series, West Publishing Company (1987), Gellner, E. (1983) Nations and Nationalism. Ithaca: Cornell University Press. Ginneken, W. (2011). “Social Protection and the Millenium Development Goals: Towards a Human Rights Based Approach.” International Conference on Social Protection and Social Justice. Center for Social Protection. Brighton: Institute of Development Studies. Kamphuis, B. (2005) 'Economic Policy for Building Peace', in G. Junne and W. Verkoren (eds) Postconflict Development: Meeting New Challenges. pp. 185-209. Boulder, Colorado: Lynne Rienner Publishers. Pellet, Alain. (1992). “The Opinions of the Badinter Arbitration Committee: A Second Breadth for the Self-Determination of Peoples.” European Journal of International Law. Vol. 3. 178-185. Shaw, M. (2003). International Law, Fifth Edition. Cambridge: Cambridge University Press. Stewart, F. (2009) 'Policies Towards Horizontal Inequalities in Post-Conflict Reconstruction', in T. Addison and B. Tilman (eds) Making Peace Work: The Challenges of Social and Economic Reconstruction, pp. 136-174. United Kingdom: Palgrave MacMillan. Watson, M. (1990) Contemporary Minority Nationalism. London and New York: Routledge. Read More