By Jure Vidmar
The right of self-determination is expressed in the first article of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICSECR). Further, this right "has been declared in other international treaties and instruments, is generally accepted as customary international law and could even form part of jus cogens." The right was initially applied in colonial contexts, in which colonies could opt for "emergence as a sovereign independent state," "free association with an independent state," "integration with an independent state," or "any other method chosen by the people." In the colonial context, the right of self-determination thus became a legal norm that enabled the creation of new states, which could override even the effectiveness rule.
Outside the colonial context, the right of self-determination had its own genesis. In colonial situations, "the only territorial relationship to be altered was that with the metropolitan power," so that "[a]chieving independence ... did not come at the expense of another sovereign state's territory or of that of an adjacent colony." In non-colonial situations, the right of self-determination collides with the territorial integrity of states. As the Declaration on Principles of International Law expressed:
Nothing in the foregoing paragraphs shall be construed as
authorizing or encouraging any action which would dismember or
impair, totally or in part. the territorial integrity or political
unity of sovereign and independent States conducting themselves in
compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed
of a government representing the whole people belonging to the
territory without distinction as to race, creed or colour.
This provision makes two relevant points. First, it attempts to use territorial integrity as a limit on the right of self-determination. Second, it may be understood to suggest that, under certain circumstances, the territorial integrity limitation on the right of self-determination may not always be applicable. The latter has been referred to as the "safeguard clause."
The territorial integrity limitation effectively divorces the right of self-determination from the notion of a right to secession, thus establishing a distinction between internal and external self-determination. Yet, this distinction fails to entirely clarify the ambiguities associated with the applicability of the right of self-determination in non-colonial contexts. There is no single mode prescribed for exercising the right of self-determination internally. Indeed, "[t]he exercise of this right can take a variety of forms, from autonomy over most policies and laws in a region or part of a State ... to a people having exclusive control over only certain aspects of policy...." Further, it is still unclear when the right of self-determination may be exercised externally--when secession is justified. Raic has noted that secession may occur if the constitution of a parent state allows for secession. Further, in the absence of an express constitutional provision, secession may occur upon the approval of a parent state, which may be granted before or after the declaration of independence. However, in the absence of a relevant constitutional provision or specific approval by a parent state, the question of secession is much more disputable.
The following Part of this Article next discusses whether Kosovo Albanians qualify as a people for the purpose of the right of self-determination. Subsequently, it will consider whether Kosovo Albanians are entitled to externally consummate this right.
2. Are Kosovo Albanians a People for the Purpose of the Right of Self-Determination?
Wording of the right of self-determination suggests that this right only applies to peoples. This leads to the problem of distinguishing between those groups who qualify as a people and those who do not. During an investigation of the events in East Pakistan in 1972, the International Commission of Jurists made the following remark in regard to peoples and the right of self-determination:
If we look at the human communities recognized as peoples, we
find that their members usually have certain characteristics in
common, which act as a bond between them. The nature of the more
important of these common features may be:
--historical,
--racial or ethnic,
--cultural or linguistic,
--religious or ideological,
--geographical or territorial,
--economic,
--quantitative.
This list, which is far from exhaustive, suggests that none of
the elements concerned is, by itself, either essential or
sufficiently conclusive to prove that a particular group
constitutes a people. Indeed, all the elements combined do not
necessarily constitute proof: large numbers of persons may live
together within the same territory, have the same economic
interests, the same language, the same religion, belong to the same
ethnic group, without necessarily constituting a people. On the
other hand, a more heterogeneous group of persons, having less in
common, may nevertheless constitute a people.
To explain this apparent contradiction, we have to realize that
our composite portrait lacks one essential and indeed indispensable
characteristic--a characteristic which is not physical but rather
ideological and historical: a people begin to exist only when it
becomes conscious of its own identity and asserts its will to
exist ... the fact of constituting a people is a political
phenomenon, that the right of self-determination is founded on
political considerations and that the exercise of that right is a
political act.
Although not of direct legal relevance, this definition provides some guidance as to what criteria should be applied when considering whether a group qualifies as a people, but these criteria are subjective, noncomprehensive, and not entirely clear. Further, there is an important distinction between peoples and minorities. This distinction emerged at the end of World War I, simultaneously with the development of the principle of self-determination and served to suggest that only peoples are entitled to self-determination. Consequently:
The creation of' the minorities treaties regime was, in one
respect, an attempt of the Allies to prevent those ethnic groups
which had been separated from their respective nation-states as a
resolute of the [Paris Peace] Conference [in 1919] from claiming a
right to self-determination by categorizing them as minorities.
In the UN Charter era, the distinction between peoples and minorities is reflected in the separate elaborations of the right of self-determination and minority rights, the former being expressed in the common Article 1 of the ICCPR and ICSECR and the latter in Article 27 of the ICCPR. In addition to the ambiguity surrounding the definition of people, there are also questions of how minorities are to be distinguished from peoples and when members of a minority group can constitute a people and thereby become beneficiaries of the right of self-determination.
In a report for the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Francesco Capatorti defined a minority in the following terms:
A group numerically inferior to the rest of the population of a
State, in a non-dominant position, whose members--being nationals of
the State--possess ethnic, religious or linguistic characteristics
differing from those of the rest of the population and show, if
only implicitly, a sense of solidarity, directed towards preserving
their culture, traditions, religion or language. (209)
This frequently quoted definition points out the problem of how difficult it is to distinguish between minorities and peoples. (210) Further, "[m]inorities appropriate the vocabulary of self-determination whether governments or scholars approve or not." (211) Based on the initial reason for the distinction between peoples and minorities, (212) it appears that a minority that is comprised of people of the same ethnic, linguistic, and religious background as people of another state cannot qualify as people for the purpose of the right of self-determination. Yet, if the original limitation of the scope of "people" was a result of the fear that recourse to self-determination could lead to secessions from parent states, (213) the subsequent development of internal self-determination has severely diminished this fear; as a result, the reason for the distinction between peoples and minorities may have also become less potent.
On one view, "a people begins to exist only when it becomes conscious of its own identity and asserts its will to exist." This definition supports the notion that identities might be only recently realized. As such (for present claims to the right of self-determination), it may be impossible to establish objectively when a group is no longer a minority but has become a people. Further, a shared ethnic linguistic and religious background does not necessarily imply the same identity. Different historical and political developments, which may indeed be very recent, can construct separate identities and differentiate peoples from individuals with shared backgrounds.
Given the difficulty and arbitrariness of the distinction between minorities and peoples, as well as the virtual confinement of the right of self-determination to its internal mode, one scholar has suggested that groups traditionally qualified as minorities should be regarded as peoples and consequently become beneficiaries of the right of self-determination. Arguably, the Badinter Committee adopted such a position when asked to decide on whether the Serbian populations in Bosnia-Herzegovina and Croatia had the right of self-determination.) The Badinter Committee implicitly answered this question by applying common Article 1 of the Covenants, while at the same time referring to the Serbian populations in Bosnia-Herzegovina and Croatia as minorities. The Committee also expressly held that Serbs in Bosnia-Herzegovina and Croatia could not exercise their right of self-determination in the external mode and that the right was limited by the uti possidetis principle. However, this does not diminish the significance of the right of self-determination being applied in this situation because, as a general rule, this right would normally be consummated internally anyway. Thus, it remains significant that, in the Badinter Committee's view, the shared ethnic, religious, and linguistic background of Serbs from Bosnia-Herzegovina and Croatia with Serbs in Serbia obviously did not preclude them from being considered a people and, as such, beneficiaries of the right of self-determination.
In the case of Kosovo, separation from Albania, a struggle for autonomy, the 1974 constitutional arrangement within the SFRY, and a decade of gross human rights violations contributed toward the development of a distinct identity among Kosovo Albanians. Further, a constitutional arrangement for internal self-determination was applied to Kosovo Albanians in the 1974 Constitution of the SFRY (229) and was mutatis mutandis revived under international administration. In his address to the Permanent Council of the Organization for Security and Co-operation in Europe on February 19, 2008, Serbian Foreign Minister Vuk Jeremic stated that an independent Kosovo would establish a precedent that "transforms the right to self-determination into a right to independence." This statement might imply that, even in view of Serbia, Kosovo Albanians qualify as a people for the purpose of the right of self-determination.
Although Kosovo Albanians might qualify as a people for the purpose of the right of self-determination, the applicability of this right does not per se suggest that secession can be justified. At the same time, given the effective situation in which Serbia exercises no sovereign authority over Kosovo, a shift of sovereign powers back to Serbia without consent of Kosovo Albanians might violate the applicable right of self-determination.
Jure Vidmar is the author of the analytical paper "International Legal Responses to Kosovo's Declaration of Independence"
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