{"id":4995,"date":"2014-11-13T23:29:09","date_gmt":"2014-11-14T04:29:09","guid":{"rendered":"https:\/\/thebigpictureandthecloseup.com\/?p=4995"},"modified":"2015-01-21T23:54:07","modified_gmt":"2015-01-22T04:54:07","slug":"secessions-dueling-rules-self-determination-vs-uti-possidetis","status":"publish","type":"post","link":"https:\/\/thebigpictureandthecloseup.com\/?p=4995","title":{"rendered":"Secession’s Dueling Rules: Self-Determination vs. Uti Possidetis"},"content":{"rendered":"

The Big Picture Home Page<\/a>\u00a0|\u00a0Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n

Secession\u2019s Dueling Rules: Self-Determination vs.\u00a0Uti Possidetis<\/em><\/h2>\n

Published in the Maryland Daily Record December 10, 2014<\/p>\n

Blame (or credit) Woodrow Wilson. And the Russians. It was reportedly Wilson in 1918 who first spoke of \u201cthe right of self-determination of peoples\u201d 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]\u00a0and 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\u2019s stock of socialist and autocratic governments, had their own reasons for insisting, successfully, that the self-determination principle be recognized in\u00a0Articles 1 and 55 of the United Nations Charter<\/a>.[2]<\/p>\n

Self-Determination Includes Secession<\/h3>\n

So, as a matter of international law, \u201cpeoples\u201d were pronounced to have that right to \u201cself-determination.\u201d But it couldn\u2019t just be about colonies. Inevitably, \u201cpeoples\u201d would sometimes seek to exercise that right by \u201cself-determining\u201d to secede from countries where they lived. And they too could claim the sanction of international law.<\/p>\n

Sometimes the resulting divorces were cataclysmic: the 1947 partition of Pakistan and India, resulting in an incomplete separation of Hindu and Muslim \u201cpeoples,\u201d\u00a0uprooted 10 to 20 million people and cost hundreds of thousands of lives.<\/a>\u00a0\u00a0By contrast, the 1992 splitting of Czechoslovakia into the Czech Republic and the Slovak Republic, commonly called\u00a0the \u201cVelvet Divorce,\u201d<\/a>\u00a0only required a Slovakian declaration of independence and some negotiation, and came off without any loss of life.<\/p>\n

Most secessions and would-be secessions fall somewhere in between India\u2019s horror and Czechoslovakia\u2019s mundaneness. But almost all are problematical. The biggest problem often is that \u201cpeoples\u201d are theoretically guaranteed the right to divorce, but territory isn\u2019t. Yet necessarily and thus inevitably, separating \u201cpeoples\u201d 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. \u201cPeoples\u201d may occupy multiple lands, and multiple \u201cpeoples\u201d may occupy a single land. So what becomes of the map when one \u201cpeople\u201d decides to withdraw?<\/p>\n

Uti Possidetis<\/em> and the Map<\/h3>\n

There is only one legal principle I know of that addresses this problem, but it isn\u2019t much help. Known at\u00a0uti possidetis<\/em><\/a>, 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<\/sup>\u00a0Century,\u00a0uti possidetis<\/em>\u00a0came to mean that Latin American countries chipped out of that empire\u2019s rubble would retain colonial borders.[3]\u00a0And 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.<\/p>\n

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\u2019s 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\u2019s 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\u00a0uti possidetis<\/em>.[4]\u00a0When the Albanian Kosovars, surely a \u201cpeople\u201d with the meaning of the Charter, began fighting for Kosovo\u2019s 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\u00a0uti possidetis<\/em>\u00a0was in effect overruled by Western arms.<\/p>\n

Blood and the Map<\/h3>\n

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\u00a0\u201cborders are always written in blood\u201d<\/a>\u00a0\u2013 rather than by applying neutral principles. And he was right; in a situation where self-determination and\u00a0uti possidetis<\/em>\u00a0could not both be honored, NATO shed Serbian blood to affirm the Kosovars\u2019 self-determination.<\/p>\n

Of course, the story does not end there.<\/p>\n

The lesson that the West preferred self-determination and borders written in blood to\u00a0uti possidetis<\/em>\u00a0was not lost on Serbia\u2019s 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 \u2013 if Crimea and Eastern Ukraine really had been \u201cyearning to breath free of Ukraine. (According to polling conducted this year, though, the \u201cpeoples\u201d 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]\u00a0But Russia has nonetheless called the West on its inconsistency: supporting self-determination and borders written in blood in Kosovo and\u00a0uti possidetis<\/em>\u00a0in Ukraine.<\/p>\n

Iraq and Kurdistan: Uti Possidetis<\/em> at its Worst<\/h3>\n

Another bad theoretical mess and worse human tragedy arising from the interplay of self-determination and\u00a0uti possidetis<\/em>\u00a0can 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\u00a0vilayets<\/em>\u00a0(provinces of the Ottoman empire), one predominantly Shiite, one predominantly Sunni, and one predominantly Kurdish. In keeping with\u00a0uti possidetis<\/em>, the administrative boundaries were observed; the \u201cpeoples,\u201d however, were locked in a national cage together. Worse, the Kurds were parceled out among five countries (Syria, Turkey, Iraq, Iran, and Armenia).<\/p>\n

We all know how well all that\u2019s 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,\u00a0hundreds of thousands have died<\/a>.<\/p>\n

So How Is It Done?<\/h3>\n

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\u2019t fit.<\/p>\n

If we\u2019re going to be serious about the right to secede, then, we have to figure out better how it\u2019s 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\u2019ll talk about that next time.<\/p>\n

_________________<\/p>\n

[1]. The lands seized from Spain in the Spanish-American War (principally Cuba, Puerto Rico, Guam, and the Philippines<\/a>) plus Hawaii and Alaska (later to become parts of the U.S.), were America\u2019s 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\u00a0here<\/a>\u00a0and summary\u00a0here<\/a>.)<\/p>\n

[2].\u00a0Frederic L. Kirgis, Jr., The Degrees of Self-Determination in the United Nations Era, 88 Am. J. Int\u2019l L. 304, 304 (1994).<\/a><\/p>\n

[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\u00a0terrae nullius<\/em>, 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.<\/p>\n

[4]. Yugoslav Arbitration Comm\u2019n Opinion No. 2, 92 ILR 168, cited in\u00a0Malcolm Shaw, Peoples, Territorialism and Boundaries, 3 European Journal of International Law 478, 495-96 (1997)<\/a>.<\/p>\n

[5]. On Crimea, see\u00a0the reporting<\/a>\u00a0on a poll conducted in January. And\u00a0a poll conducted in East Ukraine shortly before the unacknowledged Russian invasion<\/a>\u00a0said the same.<\/p>\n

Copyright (c) Jack L. B. Gohn<\/p>\n

The Big Picture Home Page<\/a>\u00a0|\u00a0Previous Big Picture Column<\/a>\u00a0| Next Big Picture Column<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The biggest problem often is that \u201cpeoples\u201d are theoretically guaranteed the right to divorce, but territory isn\u2019t. Yet necessarily and thus inevitably, separating \u201cpeoples\u201d 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. So what becomes of the map when one \u201cpeople\u201d decides to withdraw?<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[3],"tags":[6285,5000,6288,5049,6293,6325,6300,6318,6305,6313,6309,6322,6294,6292,6311,6304,6326,6308,6323,2116,6291,6289,2150,1478,6319,6299,456,6312,6317,1523,6328,5284,2500,6314,467,6290,6287,6324,5303,6306,6297,1775,6320,1333,6283,6303,6301,6316,6295,6307,6298,6321,2156,1755,6302,400,6310,6286,6284,6296,6315,5444,315,6327,459],"class_list":["post-4995","post","type-post","status-publish","format-standard","hentry","category-bigpicture","tag-6285","tag-5000","tag-6288","tag-5049","tag-6293","tag-alaska","tag-albanians","tag-armenia","tag-borders-written-in-blood","tag-british-mandate","tag-crimea","tag-cuba","tag-czech-republic","tag-czechoslovakia","tag-eastern-ukraine","tag-ethnic-cleansing","tag-frederick-kirgis","tag-georgia","tag-guam","tag-hawaii","tag-hindu","tag-india","tag-iran","tag-iraq","tag-isis","tag-kosovars","tag-kosovo","tag-kurdistan","tag-kurds","tag-latin-america","tag-malcolm-shaw","tag-muslim","tag-nato","tag-ottoman-empire","tag-pakistan","tag-partition","tag-peoples","tag-philippines","tag-puerto-rico","tag-radko-mladic","tag-roman-law","tag-russia","tag-scotland","tag-secession","tag-self-determination","tag-serbia-montenegro","tag-serbs","tag-shiite","tag-slovak-republic","tag-south-osetia","tag-spanish-empire","tag-spanish-american-war","tag-sunni","tag-syria","tag-tito","tag-turkey","tag-ukraine","tag-united-nations-charter","tag-uti-possidetis","tag-velvet-divorce","tag-vilayets","tag-vladimir-putin","tag-woodrow-wilson","tag-yugoslav-arbitration-commission","tag-yugoslavia"],"_links":{"self":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/4995","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=4995"}],"version-history":[{"count":8,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/4995\/revisions"}],"predecessor-version":[{"id":5079,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=\/wp\/v2\/posts\/4995\/revisions\/5079"}],"wp:attachment":[{"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=4995"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=4995"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thebigpictureandthecloseup.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=4995"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}