Self-determination and all that jazz

While attempting to fix my bicycle today I bumped into a visiting college friend who’s working for the UN Mission in Kosovo.

Odd to be discussing the exercise of treaty-making powers by the UN over a territory which may or may not ultimately be able to control its own foreign affairs while smeared in bicycle grease.

It was also an odd time to bump into him as Kofi Annan has just received a report from a special envoy on Kosovo, examining the options for its “final status” when the effective rule of the UN Interim Administration Mission in Kosovo (UNMIK) ends.

It’s outright reintegration into Serbia following the 1998-9 conflict would seem highly unlikely, but the deliberate creation under UN auspices of a tiny fully independent State or a lesser “autonomous region” raises interesting questions.

By the end of term I’ll be explaining the law of self-determination to second-year law students. Which means I need to come to an understanding of it myself. Dammit.

Anyway, the political principle of self-determination is both a powerful tool for those living in territories subject to foreign rule and also a genie that’s rather hard to put back in the bottle - in that it seems to imply any ethnic group can claim its own country.

As a legal concept, the boundaries of self-determination a bit hard to establish. Basically, it meant former colonies – particularly in Africa – could claim self-determination within existing colonial boundaries (latin tag for this idea: “uti possidetis”). That is, if you accept the arbitrary territorial divisions of colonialism for the sake of future peace (a bargain ultimately backed by the Organisation for African Unity) the inhabitants of the territory can chose how they want to be governed.

In practice this always meant become a sovereign State. In this sense, self-determination was a right exercisable by the people who arbitrarily found themselves lumped into an ascertainable territory: it was not a right belonging to ethnic groups.

International law does not per se recognise the rights of ethnic/national groups to “self-determination”, but it does protect the rights of individuals to associate in cultural, linguistic or religious groups.

The reason for this is obvious: international law is made by States who are not keen to allow themselves to be dissolved into infinitely fracturing self-governing sub-groups. Individual rights to associate in groups within existing State structures they can cope with.

The collapse of the former Yugoslavia challenged all this to some extent. Here was an arbitrarily assembled federal State collapsing into its internal administrative regions, which did have strong ethnic majorities. “It’s self-determination Jim, but not as we know it.” The people of Quebec, Scotland or Western Australia have no right to unilaterally succeed from their Federal governments, so how did Yugoslavia succeed in ripping itself into smaller legal pieces?

Frankly, at present, I think what occurred was quite simply an exceptional case. As a matter of effectiveness (an important idea in international law), the Socialist Federal Republic of Yugoslavia had ceased to function. The initial problem wasn’t civil war, it was a fundamental change in the underlying ideology of the State. Without a strong communism at the helm, old tensions could re-emerge, allowing central government to disintegrate.

In terms of controlling the impending chaos, the EC turned by analogy to the principle of “uti possidetis”, because it drew some lines on the ground that seemed to promise (rather illusorily as things turned out) stability and an alternative to conflict.

It’s still not a full answer, but it’s a start …