The Right to Self-determination under International Law: ‘Selfistans,’ Secession, and the Rule of the Great Powers

By Milena Sterio

Routledge, 2013
222 pp
ISBN 978-0-415-66818-7 (hardcover)
ISBN 978-1-138-18983-6 (paperback)

Reviewed by Tero Lundstedt (University of Helsinki)

23 FYBIL (2012–2013) 463

In this book, Milena Sterio, an Associate Professor of Law at the Cleveland-Marshall College of Law, carefully constructs a new theory to explain and account for recent results of secessionist self-determination struggles. The eternal battle between two fundamental international law principles, territorial integrity of states and the right to self-determination has been raging for about a hundred years already and neither of the competing argumentative sides seems to be tiring out. However, Sterio takes a third way in this book. Instead of turning to the existing legal doctrines and choosing sides, she argues that, after the end of the Cold War questions of self-determination have not been (and could not have been) effectively resolved through the application of traditional legal rules. The system changed with the dissolutions of Soviet Union and Yugoslavia, becoming much more unpredictable and non-legal, and making the two fundamental principles equally useless for solving particular secessionist cases. Actually between the years 1945–1991 there was only a single case of Bangladesh as a successful unilateral secession.[1] While the system was back then definitely more predictable, it was arguably outside the legal context as well, meaning that Bangladesh did not have any special right according to the general right of self-determination. In all the other cases outside decolonization context, territorial integrity simply won.

Sterio seems to be both an idealistic believer of the international legal order as a whole and, at the same time, very nihilistic about its current schizophrenic application in secessionist situations. Looking solely at the legal facts of the cases, everything seems to be happening at random – arbitrarily even. The Kosovars, East Timorese and South Sudanese are escaping deadlocks and have been (contestably) successful in their self-determination struggles while Chechens still live without autonomy and Georgian secessionist provinces are more or less in a legal vacuum and in a ‘frozen state’. Kosovo’s ‘success’ could be contested more than the others, since it is still lacking many attributes of a state. However Sterio is using Kosovo as a successful example and, compared to other cases mentioned, it is much closer to East Timor (with UN presence and nation-building efforts for instance) than Chechnya. Many ‘frozen’ cases would arguably prefer to have Kosovo’s status to what they have now, their territory being treated by an overwhelming majority as under the sovereignty of the old parental state. Put bluntly, self-determination has been inconsistently applied on non-colonized or non-occupied peoples, and these applications have been lacking any solid legal base. The Montevideo statehood criteria, combined with scholarly suggestions of independence, sovereignty, permanence, willingness and ability to observe international law, a certain degree of civilization and, in some cases, recognition, do not really make much of a difference. Certainly Kosovo, East Timor and South Sudan do not outright stand out. Hence we need a theory that can explain why these examples are sui generis[2] and this is exactly what Sterio sets out to do.

Sterio’s theory is constructed around four cumulative criteria that each people seeking for self-determination must fulfil in order to be successful in their quest for statehood.  First, any group looking for recognition for the right to self-determination needs to demonstrate, in addition to normal statehood criteria, that they have suffered heinous human rights abuses. Secondly, it needs to prove the central government’s relative weakness and consequent inability to properly administer the region in question. Thirdly, it needs to indicate that the international community has become involved in the administration of the area. Finally, the separatists need to confirm that they have the support and backing of the great powers. However, the first three criteria are only complementary to, and stem from, the last and the most important one. Underlining the significance of the last criterion, Sterio calls this theory the ‘great powers rule’.

The great powers possess de facto decision-making authority and are, because of this fact, ‘more’ sovereign than other states in the world arena. By exercising their de facto powers in controlling the world media they may be able to affect the public opinion both within their country and globally, therewith manipulating the fulfilment of the first and second criteria. In addition, through their veto-wielding or otherwise disproportionate powers within international organizations, they are usually able to involve these organizations in the places of their own choosing, hence meeting the third requirement. Taken at face value these arguments show that actually secessionist struggles have all to do with politics and friends in high places. No legal criterion is in the end relevant or it can be distorted when convenient. Only the political will of the great powers will make or break all the self-determination claims, now and in the future. Being an international lawyer Sterio, while admitting this, does not like to highlight it and continues to make the proper legal distinctions between peoples and minorities, between internal and external self-determination and so on. In addition she separates the contesting party’s claim for statehood and need for recognition – the former being a legal construct which has legal criteria and the latter being a political act that has legal consequences. Under the great powers rule, however, this distinction becomes regrettably unnecessary: if an entity can get the support of the most important great powers, she argues that even matching the Montevideo criteria is not that important. While the author’s politics-over-law bias is very clear from the outset, it does not detract from the high quality of her book and it only challenges the more idealist reader to disagree with the carefully crafted arguments.

Also, Sterio applies her theory reasonably convincible to case studies from the practice of the International Court of Justice (ICJ).[3] This being said, two complaints must be made. First; the case studies, while numerous enough, seem to have been chosen for the exact purpose of proving the author right while more inconvenient cases have been ignored to avoid inconsistencies in the application of the great powers rule. She herself admits ‘perhaps regrettably’ omitting the examples such as Eritrea and Namibia. I find it somewhat puzzling that she did not include in her examples the dissolution of Yugoslavia, which would have been desirable in both time wise since she is mostly concerned with the new practice after the Cold War and content wise since it would have included examples both successful (Croatia) and unsuccessful (Republika Srpska) cases of secession. Secondly, Sterio leaves the number and identities of ‘great powers’ surprisingly open so they can be adjusted to suit each case individually. She names the usual suspects[4] with a ‘these can include’ clause so she does not have to stand by all of them in all of the individual cases while also leaving the list open-ended.

Sterio is herself the first to admit that her theory is only semi-legal. She finds this unfortunate and points the blaming finger at the ICJ, especially their unprecedented and missed chance in the infamous Kosovo case.[5] Statehood is at the very centre of international legal order and is in itself of fundamental importance of the system. Therefore the questions of statehood should be carefully regulated by the international community to accomplish maximum predictability in the creation of states. Without a world parliament – and given that the current lack of rules is unsatisfactory – the ICJ would be the logical authority to regulate this contested subject, even with non-binding advisory opinions as it was given a perfect chance with the Kosovo case. It may be argued that the courts should not make law, even ‘advisory law’ through advisory opinions. However Sterio is arguing that since we need clear rules or principles for these types of situations it would be preferable to do so through the ICJ than, say to get a resolution out of the General Assembly. The necessary majority would be well-nigh impossible to get at any rate.

Sterio turns to the recent history of secessionist struggle to look for patterns. She seeks to demonstrate with the great powers rule why some groups have been able to form their own ‘Selfistans’ while others have failed. The rule should be able to predict when a certain group will be able to succeed in the self-determination bid and, take a seat in the General Assembly with a placard in front of them in some instances even contesting their parent state.

Sterio goes through the cases of East Timor, Kosovo, Chechnya, Georgia and South Sudan. She argues that while the great powers rule is applicable for all the cases, only with respect to South Sudan and East Timor was there both a solid legal base for independence – either through delayed decolonization or through remedial secession in the end accordingly approved by Khartoum or Jakarta – and the political backing from the great powers to make this particular independence happen. But these particular instances where international law and the great powers rule coincidentally point at the same outcome do not solve the real problem; that of international law failing to develop new normative rules on self-determination, through its political organs and especially through its courts. The resulting legal vacuum is filled by geopolitical visions of the great powers. Their will may coincide with the international law in particular instances but the backing of the great powers would have been sufficient even without the law. These great powers are the most relevant actors in this arena because of both their coercive capabilities and by the fact that law is not offering any counterbalance to their designs. Yet this particular area of international law is simply too important to be decided through a complex network of power-political visions and changing alliances.

Sterio makes an excellent comparison between the cases of Kosovo and Chechnya in terms of the people’s right for self-determination through the remedial secession. She argues that Kosovars and Chechens can be considered peoples so they both have a general right for internal self-determination and may arguably have a special right for external self-determination if the parent state fails to provide them with the internal autonomy they deserve. While Chechnya has never had any substantial form of autonomy, Kosovo had a respectable one until 1989. Under the ‘remedial right only’ secession theory,[6] Chechnya had as strong a case for external self-determination as Kosovo in 1989 and definitely a much more convincing case for it in 2008. However, Kosovo has fulfilled its national aspirations in an independent republic and Chechnya has minimal autonomy with a puppet ruler installed by Moscow. Kosovo’s claim to independence is not stronger than Chechnya’s in any legal sense. Kosovo’s history, while tragic and culminating in the war of 1998-1999, does not show any sui generis characteristics when compared to Chechnya’s.  Sterio is at her best when drawing these parallels, making it hard to disagree with her.[7] So, what should be made of the fact that Kosovo ̒made it’ while Chechnya did not? While Sterio succeeds convincing the reader with some cases I still would argue that she is oversimplifying things and disregarding international law to the extreme on the others. Additionally the numbers of cases chosen fail to convince, which is truly a shame since the theory could have yielded interesting perspectives on, inter alia, Tibet, Krajina and Palestine.

Sterio recognizes the undesirability of the great powers rule and lists its numerous negative consequences. The rule mixes law and politics, and makes the situation worse by giving the latter the upper hand. It promotes total inequality between states; not only by giving ̒super-sovereign’ status for the great powers – which is not that far-fetched according to realist view of international relations – but also because some potential states are able to achieve full statehood and all the advantages that it brings because of political reasons while just as justified potential states remain frozen in their limbo of de facto existence. In addition, since the criteria for the new states are not clear and in the end do not seem to be demanding much, the great powers rule produces only namely or partly independent states or just plain puppet-states. This is a big problem since it undercuts the concept of state sovereignty that the state-based international system is depending on. Would Kosovo or South Sudan be able to maintain themselves without the significant UN and other international organizations’ assistance? Can South Sudan maintain itself even with current level of assistance? Is this only a transitional period or are these entities lacking solid ground for their own institution building? As a result of these dependencies regional instability can increase. There are two sides to this coin, however: while it is true that the declared independence of Chechnya clearly increased instability and violence in the region, the de facto secession of Abkhazia and de jure secession of East Timor have arguably decreased tensions in the short term. Sterio argues convincingly that in the end, no matter how they were created in the first place, all of these entities are totally dependent on the military support of the great powers and if the these powers would ever withdraw, the dependency in question would be powerless to defend itself by internal or external challenges to its sovereignty.

The existence of these new entities may not be grounded in a healthy and viable economic or political framework. Not only is their national cohesion[8] starting to be created from scratch, but also they all now possess newly created and unhappy minorities. Despite these difficulties, it is arguable that ultimately there has been a positive response to the direction in which the new-born country is heading, for most of the people, most of the time. Therefore there is a great need for a legal based doctrine or solid legal practice by (preferably) the ICJ in order to achieve secessions that will prove more or less inevitable, in a more predictable and less violent atmosphere. The outcome of international law might be unjust in some cases, but it is absolutely preferable to plain international politics in all the cases. I think Sterio would agree.

[1] Bangladesh declared independence after the Indian occupation of East Pakistan on the 26 March 1971. The new self-declared state spent several years in the usual legal limbo resulting from the lack of recognition base and hostile relations with Pakistan. Finally, on a Commonwealth meeting on 22 February 1974 Pakistan recognized Bangladesh as an independent state and the rest of the world followed suit. The case of Bangladesh was exceptional and its circumstances were never repeated anywhere during the Cold War.

One may argue that the independence of Eritrea should be noted as the second successful example of Cold War secession. Sterio does not list it as such and I must agree with her. As with the case of Bangladesh, Eritrea declared unilaterally independence when it felt it had the sufficient military strength to do so, on 24 May 1991. However, this led to series of negotiations with the Addis Abeba government and its independence became de jure with the Ethiopian (and subsequent international) recognition, symbolically exactly 2 years from its declared de facto independence, on the 24 May 1993.  The secession and recognition practices went through fundamental changes during these critical two years. Eritrea resembles more a post-Cold War case, with the dissolution of Soviet Union influencing the outcome of its self-determination struggle in more ways than one. After 1991 international environment appeared to be a bit more favorable towards secessions and additionally with the disappearance of Soviet aid Mengistu’s government was unable to continue the war.

[2] The sui generis justifications went sometimes to extraordinary lengths with Kosovo. The recognition was a ‘special, no-precedent creating exception to, rather than a qualification or abandonment of, the post-decolonization norm of territorial integrity’. Mikulas Fabry, Recognizing States (Oxford University Press, 2010) at 180.

[3] She goes through the ICJ cases of East Timor (Portugal v. Australia), ICJ Reports (1995) 90; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion), ICJ Reports (2010) 403; Western Sahara (Advisory Opinion), ICJ Reports (1975) 12; and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion), ICJ Reports (2004) 136. She does not restrict herself to ICJ practice and looks at other examples to strengthen her theory, such as Chechnya and South Sudan.

[4] G8, India, declared or undeclared nuclear powers such as Israel and Pakistan, and ‘rogue’ or politically more unpredictable states such as Syria, Iran, North Korea and Afghanistan. She could have also included ‘regional great powers’ such as Australia, which plays major part in one of her chosen cases, that of East Timor. To be fair, a closed list is all-nigh impossible to construct since the theory has its eye set on the future and power centers, especially regional power centers, of tomorrow are not known or are just plain speculative.

[5] Kosovo Advisory Opinion, supra note 3.

[6] This theory has been strongly advocated by Allen Buchanan. His theory places significant constraints of secession, but Kosovo would still easily qualify in between 1989–1999. Allen Buchanan, ‘Theories of Secession’, 26 Philosophy & Public Affairs (1997) 31–61.

[7] She quotes Russia’s own sui generis justifications for denying Chechnya´s independence, summarized in 1991 by Boris Yeltsin as following; ‘Chechens don t have a constitutional right to secede (under Soviet constitution of 1977), their secession would stir other separatists within Russia, and Chechnya is a major hub in the oil infrastructure of the Russian Federation and thus vital to Russian economy and energy access’. While these are understandable arguments, none of them really addresses the Chechens right to self-determination under international law.

[8] An ‘Infra-review’, observed legitimacy of a new state by its citizens, as presented by Obiora Chinedu Okafor in his Re-Defining Legitimate Statehood (Martinus Nijhoff, 1999). Of course these are never black-and-white clear cut things to measure. Kosovo Serbs have very different feelings about the legitimacy of the Republic of Kosovo than their Albanian counterparts and so on. All in all Serbs have had a truly ‘lesser’ right to self-determination with the break-up of Yugoslavia than all the other peoples of that multinational entity. It is a pity that Sterio did not go through their experiences, except for the few pages in respect of Kosovo.