Hannum Specter of Secession

8/11/2019 Hannum Specter of Secession

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The Specter of SeeessionResponding to Claims for Ethnic Self-Determination

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The first rush of posiHIIold War secessions shattering ofthe Soviet Union, Yugoslavia,may be over, but conflicts within states Czechoslovakia, and Ethiopia within the

often triggered by ethnic or cultural past decade is precedent not lost on manydifferenceswill continue to proliferate, nations that would be states.Ethfiicconflict has replaced the Cold Neither sovereignty nor self-determina-War as the priniiDry interest of political tion is an absolute right Each is limited byand military theorists, and even conflicts other rights and international obligations,that may be primarily political or economic Sovereignty is limited not only by the rightsin nature are frequently given an ethnic of other st tes and the innumerable politicalcast. Such conflicts pose substantial threats and economic ties that bind them , butto international pe ce and hum an life, and also by legitimate international interestthe United States, other governments, and in human rights, the environment, andintemational organizations re increasingly other issues formerly considered the solebeing called upon to influence, intervene jurisdiction ofthe state. Outside ofthein, or broker solutions to them . classic context of European decolonization

Ethnic wars of secession highlight the free exercise of self-determinationthe inherent tension between self-deter- has been constrained historically by great-mination and sovereignty or territorial powerrivalry,questions about the potentialintegrity. One-probleiQJn developing economic and political viability of new

coherant-respAnses to such conflicts has states, and the overarch ing goal ofbeen^the-vagugness of these terms. In the maintaining order and stability by pre-context of decolonization, self-determina- serving existing territorial arrangem entstion meant immediate independence, but wherever possible,there has been continuing disagreement Despite continued claims to a rightover its applicability to noncolonial situa- of secession by groups in Asia, Africa,tions. Lip service is also routinely paid to Europe, and the former Soviet Union, nothe prindple of territorial integrity, but the such righ t has yet been recognized by the

H U R S T H A N N U M is Professor of International Law at Tufts University'sFletcher School of Law nd Diplomacy andthe authorofAutonomy Sovereignty


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international community. International silence would be politically impossiblelaw does not prohibit secession, whether and, in some cases, morally objectionable,voluntary or violent, but it has neither We are left, then, with the task of definingrecognized a right to secede nor identified the appropriate degree of foreign interesteven tentatively the conditions that might in the face of an almost infinite variety ofgive rise to such a right in the fijture. demands for self-determination.

Military force can establish control over Two historically consistent and morallya particular territory, but it cannot create justifiable purposes can be served byinternational legitimacy. For example, contemporary self-determination andTurkish forces have controUed the north- are therefore deserving of internationalern part of Cyprus for much longer than support: protecting individual and groupa unified Cypriot state has existed, yet no identity and facilitating effective participa-statewith the exception of self-interested tion in government. The former purposeTurkeyrecognizes the Turkish Republic is today reflected largely by the human

of Northern Cyprus as independent. rights norms that have developed sinceSimilarly, most countries reject Israel's 1945. The latter, sometimes referred to byannexation of East Jerusalem and the Woodrow Wilson and others as internalGolan Heights, Morocco's claims to the self-determination, implies finding appro-Western Sahara, and Indonesia's pur- priate levels of democratic self-governmentported incorporation of East Timor. to guarantee effective participation by

all in the economic and political life ofPUTTING P OPL FIRST th Country

If the international community feels These purposes may often be realizedcompelled to insert itself into the extra- within less-than-independent political en-ordinarUy difficult process through which tities. Strong national cultures can continuepeople accept or reject national identity, it to survive even without their own states,must agree on criteria for intervention that such as the Catalans, Scots, Welsh, Indiango beyond a simple political preference for Tamils, Quebecois, Tibetans, and manyone side or the other. Leaving aside for the indigenous peoplesso long as the humanmoment the issue of purely humanitarian rights of their members are protected,intervention^which should have nothing This last point is reflected in the rela-

to do with competing claims over identity tively recent development of minimumor territorythe only legitimate goal norms designed to protect the rights ofconsistent with the present international both majorities and minorities. The Unitedorder is ensuring that separation or unity Nations, the Organization for Security andoccurs without disturbing international Cooperation in Europe, and many indiivid-peace. In any other situation, military ual states are increasingly willing to criticizeintervention in civil wars remains an un- efforts by central governments to ignorejustifiable and unwise interference in a regional or ethnic differences and denounce

state's domestic affairs. substate self-determination movements asBut if territorial claims cannot justify merely terrorists or rebels. Indeed,f i i i h ld l i lf di l d l i


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The Specter of Secession

diverse populations to ado pt more flexible acts tha t were considered legitimate andconstitutional arrangements in order to lawful at the time they were com mitted,accommodate desires for local self-govern- (O ne might note that those wh o da im ament and cultural protec tion and to de- right to independence based on historicalcrease the likelihood of violent conflict. argum ents tend to choose the historical

Th i s new interest in interna l con sti- period that wou ld give the m the

tutio nal arran gem ents raises difficult greatest am ou nt of terr i tory that is,questions about which issues fall within the period in wh ich they themselvesa state's dom estic jurisdictio n and w hi ch were successfial conque rors.)are the legitimate concem o fthe intem a-tional community. At the same time, how- THEFOREMOSTGOALever, the need to translate internationa l The international com mu nity in generalnorm s into dom estic reality highlights and the Un ited States in particular w illthe essential role of democracy and the continue to be called upo n to take sides in

rule o f law in prote cting m inority rights , interna l ethnic conflicts purp orted lyas well as their m ore trad itional role of based on demands for self-determination,safeguarding individual liberties. Gu idelines for decision-making m ust be

Tho se who claim to speak on beh alf clearly articulated so tha t responses canof their nation should be able to demon- be based on more than perceived short-strate their man date th roug h free and fair term advantage and defended againstelections or referendums. T his requires a charges of selectivity and hypocrisy,political system open enough to allow W h en responding to claims of self-such representatives to emerge, but it also, determ ination, protecting basic hu m anrequires that wo uld-be ethnic entrepre - rights should be policymakers' foremostneurs demonstrate that they do in fact goal . H um an rights norm s are w idelyspeak for the people they claim to repre- accepted and give legitimacy to U .S . andsent. Merely creating a national libera- U.N. actions. Not only are such idealst ion movement is insufficient evidence bro adly sup po rted and unders tood byth at th ere exists a widespread desire for the Am erican public, but U.S. law requiressecession or other major constitutional them to be a prim ary concern of U .S .change within a s tatealthough it may foreign policy. T h us , a basic factor in for-

be the only op tion if repression proh ibits m ulating responses to self-determinationthe free expression of m ino rity views. claims shou ld be whether or not a part ic-

Self-determination should be concerned ular action is likely to promote the rightsprim arily vsdth people, not territory. It of aU of th e people concerned. Cu ltural,should not be used to defend abstract linguistic, and religious rights m ust beno tions of sovereignty, to buttress fictitious res pe cted, and nei ther m inori ty norclaims of national destiny, or to resolve m ajority shou ld seek to impose its valuescenturies-old territorial disputes. Nearly on the other. In m any instances, this MOIIevery state in the wo rld was found ed require only the guarantee of wh at somedirectly or indirectly on conquest. Self- term individual rights to free expre s-determination canno t providea m ean ing sion assembly association and religion


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Hurst Hannum

aflirmative action, govemment representa-tion, devolution of powers, or support forcultural ctivities wi be needed to makeequality in fact m atch equality in law.

At the same time, however, it is im-portant to reject the notions that everyethnically or culturally distinct peo ple,nation, or group has an automatic r ig htto its own state or that ethnically homo-geneous states are inherently desirable.Even in an environm ent where h um anrights are respected, a global system ofstates based primarily on ethnicity orhistorical claims is clearly unachievable.

Except in the smallest or most isolatedenvironments, there will always be trapped mino rit ies, no m atter howcarefully boundaries are drawn. Ethni-cally based states almost inevitably leadto claims of ethnic superiority on thepart ofthe new majority and to a cul-tural rigidity that creates problem s fornew m inorit ies. A t their worst , newlycreated ethn ic states may tolerate orencourage the killings and ethnic cleans-ing that scarred the dissolution oftheformer Yugoslavia.

T his does not m ean that the majorityin a new state need ignore its own cultureor the requirements of a m odern state.Som e state-building (for example, w ithrespect to language or a common legalsystem) may be necessary to develop th eadministrative and economic ties thatbind com munities together. T hu s culturalor ethnic m inorities in a particular territorymust accept tha t status and no t expectthe ir beliefs and custom s to be reflected atthe national level to the same ex tent as

those oft he majority population. T hisdoes not mean, however, that a minorityd b it t j it th t k t

standards bu t rather to destroy culturesthat deviate from the do m inant m odel.

In general, policymakers should c ontinue to reject the notion that there is alegal righ t of secession. T hi s principlewiU properly force nation alists to aba ndon their claim tha t we are a nation atherefore have a righ t to a state. O n t hother hand, central governments shoulno longer be allowed to hide behin d thfa9ade of national unity without explaiing how m inority rights are genuinelybeing protected.

T her e are two instances in which se

ession should be supported by the international community. The first occurswh en massive, discriminatory hum anrights violations, approa ching the scalegenocide, are being per petrated . If theris no likelihood of a change in th e attitoft he central governm ent, or if the m ajority population supports the repressiosecession may be the only effective remedy for the besieged group. Althoughsupport for secession raises serious issuregarding possible outside interv ention justifiable if the underlying abuses arsufficiently grave. Such circumstances wprobably be uncommon, although theatrocities against, for examp le, Tib eta nin Ch ina or Kurds in Iraq m igh t qualify

It is important to remember, however,tha t such exceptions are based primarilon the need to alleviate human sufferinnot on acceptance ofth e impossibleequation of one nation to one state.

A second possible exception mightfind a right of secession if reasonabledemands for local self-government or

minority r ights have been arbitrari lyrejected by a central go vernm ent evei h i l l i l


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into play only wh en m inimal dem ands To ensure equity, minorities in a neware rejected; it does no t m ean tha t the state founded to preserve ethn ic or cul-Un ited States or the Un ited Nation s tural hom ogen eity should be granted theshould substitute its jud gm ent of w hat is same rights of self-determination tha tfair or politically reasonable for tha t of were asserted by the seceding pop ulation ,the parties involved. T h e 1992 U .N . Leg itim ate self-determ ination can onlyGe neral Assemb ly declaration on m inor - be exercised on the basis of th e consentity rights only calls on states to protect of all involved parties, no t jus t those whothe existence of m inorities, gra ntin g the wish to separate. If neithe r intern ation allatter the right to par ticipa te effectively law nor politics offers a mechanismin cultural, religious, social, econom ic thro ug h wh ich mino rities trapped wdthinand public life. It neithe r m and ates the a new ethnic state may rejoin their formerscope of tha t participatio n nor gran ts m i- state or, at least, create an auto no m ousnorities a veto over all actions tha t m igh t region w ithin their new ho m e, rejection

affect th em . of the new bord ers by force may be seenas the only alternative.

WHEN RIGHTS CLASH P u t simply, redress ing histo rica l gr iev -T h e Un ited States and others should gen - ances or responding to contemporary dissat-erally encourage resolution of self-dete rmi- isfactions cann ot justify the dispossessionnation claims by means short of secession,except when the parties agree to the divisionof a state. Statehood is not necessary toguarantee the legitimate human rights ofgroups and individuals to protect andprom ote their culture, language, and trad i-tions. T h e fij Ument of other goals, such forced to choose between em igrating oras increased political and econom ic power, remaining und er alien dom ination andis mo re legitimately sought through the wh ich othe r groups should be rewardednorm al democratic process. A t th e sametime, however, the United States shouldrecognize that minimum human rights

and minority rights standards are expand-ing beyond the purely individualistic focusof Am erica's own trad itions, incorpo ratingthe areas of language, culture, and educa-tion. Potential mediators and advisers wiUneed to becom e familiar with comparativearrangements for power-sharing, devolu-tion, federalism, confederation, territorial

of members of ethnic minorities w ho nowlive in the territory in question an d wh oseancestors may have lived there for genera-tions. No group can claim exclusive con trolover a territory forever. I t is m orally im pos-sible to decide which individuals should be

and functional autonomy, self-govemment,special participation rights for minoritiesi l i l

w ith ethnically based political power inthe form of a new state.

If our concern is w ith peoples ra thertha n territories, there is no reason to re-gard existing adm inistrative or republicbou nda ries with in states as sacrosanct. Inm ost cases, the best way of de term inin gthe wishes of those wi thin a new statewo uld b e thro ug h a series of plebiscitesto redraw w hat were formerly internalboundaries. Such plebiscites could be

subject to various limitations to en surethat th ey wou ld no t be used in haste orl h i bl


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peacefiiUy m igh t be a usefiil p reco nditionfor recognition of a new state whenev er asignificant proportion ofthe populationappears not to support th e new borders.

Finally, when armed conflict occurs,responsibility for war crimes and crimesagainst hum anity m ust be distinguishedfrom the underlying political agendas ofall sides. T h e U nited States and othersshould continue to support internationalaccountability for such criminals, even ifthe problem s of such prosecutions are onlytoo evident from the halting wo rk of th eU.N. tribunals on Rwanda and the former

Yugoslavia. No netheless, prosecution ofwar criminals should not be linked tothe merits of self-determination claims.A principled response to self-determina-tion claims asserted prior to the outbreakof armed conflict cannot depend onwh ether war crimes are comm itted afterthe conflict begins.

The approach outlined above vd notnecessarily deter high ly motivated groupsor pow er-hu ngr y individuals from seek-ing independence, whe ther for honestmotives or ulterior ones. Bu t the presentlack of bo th norm ative and m oral claritymay be responsible for at least some ofthe increased separatist violence ofthepos t -Cold W ar years. Emboldened by

the international com munity's acceptanceof th e dissolution of Yugoslavia (and n otattuned to the fine distinctions drawn byEuropean diplomats and lawyers between dissolution and secession ), dissatisfiedgroups in ll parts ofth e world have decidedtha t wars of nation al liberation are m orelikely to obtain meaningfiil outside supportthan lower-keyed appeals for minorityrights or autonomy.

A l l f l t d t f i t

here, may discourage at least some qu etionable claims and the ready resort tviolence that often accompanies themSuch an approach wiU not satisfy partiwho extol either the virtues of yesterda national iden tity or the needs of toda

m ode rn state. Even so, recognizing andaccom mo dating conflicting rights is thonly way in wh ich th e world can respoto diametrically opposed demands in apolitically and morally principled mann


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Hannum Specter of Secession