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Thursday, March 6, 2014

Ukraine, Crimea, and the Right of Self Determination

Yahoo News reports:
Crimea's parliament voted to join Russia on Thursday and its Moscow-backed government set a referendum within 10 days on the decision in a dramatic escalation of the crisis over the Ukrainian Black Sea peninsula.

The sudden acceleration of moves to bring Crimea, which has an ethnic Russian majority and has effectively been seized by Russian forces, formally under Moscow's rule came as European Union leaders gathered for an emergency summit to find ways to pressure Russia to back down.
A lot of people seem to think that maintaining the integrity of Ukraine is the most important goals. For instance, Henry Kissinger's op-ed at the Washington Post, while otherwise very intelligent and articulate, discounts a break up of Ukraine. He writes that any solution to the current crises must include:
3. Ukraine should be free to create any government compatible with the expressed will of its people. Wise Ukrainian leaders would then opt for a policy of reconciliation between the various parts of their country. Internationally, they should pursue a posture comparable to that of Finland. That nation leaves no doubt about its fierce independence and cooperates with the West in most fields but carefully avoids institutional hostility toward Russia.

4. It is incompatible with the rules of the existing world order for Russia to annex Crimea. But it should be possible to put Crimea’s relationship to Ukraine on a less fraught basis. To that end, Russia would recognize Ukraine’s sovereignty over Crimea. Ukraine should reinforce Crimea’s autonomy in elections held in the presence of international observers. The process would include removing any ambiguities about the status of the Black Sea Fleet at Sevastopol.
I do not see how the integrity of the Ukraine is consistent with the principles of "self-determination." It is, however, consistent with the realist theory of international relations, which elevates territorial sovereignty over national self-determination.

The Unrepresented Nations and Peoples notes that "self-determination" has long been a part of modern international law:
The principle of self-determination is prominently embodied in Article I of the Charter of the United Nations. Earlier it was explicitly embraced by US President Woodrow Wilson, by Lenin and others, and became the guiding principle for the reconstruction of Europe following World War I. The principle was incorporated into the 1941 Atlantic Charter and the Dumbarton Oaks proposals which evolved into the United Nations Charter. Its inclusion in the UN Charter marks the universal recognition of the principle as fundamental to the maintenance of friendly relations and peace among states. It is recognized as a right of all peoples in the first article common to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which both entered into force in 1976. 1 Paragraph 1 of this Article provides: 
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 
The right to self-determination of peoples is recognized in many other international and regional instruments, including the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States adopted b the UN General Assembly in 1970, 2, the Helsinki Final Act adopted by the Conference on Security and Co-operation in Europe (CSCE) in 1975, 3, the African Charter of Human and Peoples' Rights of 1981, 4, the CSCE Charter of Paris for a New Europe adopted in 1990, 5, and the Vienna Declaration and Programme of Action of 1993. 6, It has been affirmed by the International Court of Justice in the Namibia case 7, the Western Sahara case 8, and the East Timor case 9, in which its erga omnes character was confirmed. Furthermore, the scope and content of the right to self-determination has been elaborated upon by the UN Human Rights Committee 10, and the Committee on the Elimination of Racial Discrimination 11, and numerous leading international jurists. 
That the right to self-determination is part of so called hard law has been affirmed also by the International Meeting of Experts for the Elucidation of the Concepts of Rights of Peoples brought together by UNESCO from 1985 to 1991, 12, it came to the conclusion that (1) peoples' rights are recognized in international law; (2) the list of such rights is not very clear, but also that (3) hard law does in any event include the right to self-determination and the right to existence, in the sense of the Genocide Convention.  
The inclusion of the right to self-determination in the International Covenants on Human Rights and in the Vienna Declaration and Programme of Action, referred to above, emphasizes that self-determination is an integral part of human rights law which has a universal application. At the same time, it is recognized that compliance with the right of self-determination is a fundamental condition for the enjoyment of other human rights and fundamental freedoms, be they civil, political, economic, social or cultural. 
However, like all international law concepts, its definition has changed over time as its usefulness to the major powers has changed:
The scope and purpose of the principle of self-determination has evolved significantly in the 20th century. In the early 1900’s, international support grew for the right of all people to self-determination. This led to successful secessionist movements during and after WWI, WWII and laid the groundwork for decolonization in the 1960s.

Contemporary notions of self-determination usually distinguish between “internal” and “external” self-determination, suggesting that "self-determination" exists on a spectrum. Internal self-determination may refer to various political and social rights; by contrast, external self-determination refers to full legal independence/secession for the given 'people' from the larger politico-legal state.
 From a classical liberal (i.e., conservative/libertarian) point of view, "external" self-determination is necessary. Ludwig von Mises wrote:
The liberals of an earlier age thought that the peoples of the world were peaceable by nature and that only monarchs desire war in order to increase their power and wealth by the conquest of provinces. They believed, therefore, that to assure lasting peace it was sufficient to replace the rule of dynastic princes by governments dependent on the people. If a democratic republic finds that its existing boundaries, as shaped by the course of history before the transition to liberalism, no longer correspond to the political wishes of the people, they must be peacefully changed to conform to the results of a plebiscite expressing the people's will. It must always be possible to shift the boundaries of the state if the will of the inhabitants of an area to attach themselves to a state other than the one to which they presently belong has made itself clearly known, In the seventeenth and eighteenth centuries, the Russian Czars incorporated into their empire large areas whose population had never felt the desire to belong to the Russian state. Even if the Russian Empire had adopted a completely democratic constitution, the wishes of the inhabitants of these territories would not have been satisfied, because they simply did not desire to associate themselves in any bond of political union with the Russians. Their democratic demand was: freedom from the Russian Empire; the formation of an independent Poland, Finland, Latvia, Lithuania, etc. The fact that these demands and similar ones on the part of other peoples (e.g., the Italians, the Germans in Schleswig-Holstein, the Slavs in the Hapsburg Empire) could be satisfied only by recourse to arms was the most important cause of all the wars that have been fought in Europe since the Congress of Vienna.

The right of self-determination in regard to the question of membership in a state thus means: whenever the inhabitants of a particular territory, whether it be a single village, a whole district, or a series of adjacent districts, make it known, by a freely conducted plebiscite, that they no longer wish to remain united to the state to which they belong at the time, but wish either to form an independent state or to attach themselves to some other state, their wishes are to be respected and complied with. This is the only feasible and effective way of preventing revolutions and civil and international wars.

To call this right of self-determination the "right of self-determination of nations" is to misunderstand it. It is not the right of self-determination of a delimited national unit, but the right of the inhabitants of every territory to decide on the state to which they wish to belong. This misunderstanding is even more grievous when the expression "self-determination of nations" is taken to mean that a national state has the right to detach and incorporate into itself against the will of the inhabitants parts of the nation that belong to the territory of another state. It is in terms of the right of self-determination of nations understood in this sense that the Italian Fascists seek to justify their demand that the canton Tessin and parts of other cantons be detached from Switzerland and united to Italy, even though the inhabitants of these cantons have no such desire. A similar position is taken by some of the advocates of Pan-Germanism in regard to German Switzerland and the Netherlands.

However, the right of self-determination of which we speak is not the right of self-determination of nations, but rather the right of self-determination of the inhabitants of every territory large enough to form an independent administrative unit. If it were in any way possible to grant this right of self-determination to every individual person, it would have to be done. This is impracticable only because of compelling technical considerations, which make it necessary that a region be governed as a single administrative unit and that the right of self-determination be restricted to the will of the majority of the inhabitants of areas large enough to count as territorial units in the administration of the country.
In other words, to maximize liberty, self-determination must be elevated above territorial sovereignty. In this regard, I believe that a plebiscite by the people of Crimea must be the deciding factor in this crises.

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