Self Determination

Self-Determination

​Katie Hetherington: Welcome to this session on negotiating provisions on self determination in peace agreements. My name is Katie Hetherington and I'm a program manager here at the Public International Law and Policy Group. And I'm pleased to be joined by Dr. Paul Williams, President and Co-founder of PLPG. Welcome again, Paul. 

Dr. Paul Williams: Thanks, Katie. It's really great to be here with you. 

What is self-determination?

Katie Hetherington: So Paul, can we begin by asking you to explain the concept of self determination?

Dr. Paul Williams: Katie, there's essentially three dimensions to the concept of self determination. The first is that a people, we can talk about how you identify a people, have a right to determine their political destiny and they have a right to self-government. The second dimension is that this can oftentimes be done in the context of a state. So, having a democratic state where there's effective representation or maybe having federalism might be necessary in some instances, but the people exist within a state, and they have effective engagement on their political future. And then the third is in instances where a population, a people, are not able to engage in effective self government, they may be entitled to external self determination, which is essentially independence, and it's complicated how one goes about achieving external self determination, but there's been literally three dozen instances of this in the last 30 to 40 years.

How is ''a people'' determined?

Katie Hetherington: And so, Paul, as you said, how do we determine a people when negotiating an end to a self determination conflict? 

Dr. Paul Williams: So, there are very clear criteria as to who might exist as a people. You need an identity, oftentimes a common language, common culture, an attachment to land, and a history of interacting as a political unit. Now, not everyone in the community has to agree, but there's that notion that they're self identified as a community, and it's important to note that this is slightly different than the criteria for statehood, which under the Montevideo Convention is a territory with the people, with the government, capable of conducting international relations or exercising sovereignty.

So, it's more of a first step, is there an identifiable group of people that are then entitled to this type of self government and control over their political destiny? 

What are key goals of parties and mediators in a self-determination conflict?

Katie Hetherington: Great. Thank you, Paul. So with this context in mind, there will be a number of key goals that generally guide parties and the mediators when seeking to negotiate a durable peace in a self determination conflict. Could you walk us through some of these common goals? 

Dr. Paul Williams: Yeah. So Katie, this is why self determination conflicts are so difficult to negotiate and can really undermine efforts of a mediator to bring peace to a conflict. The perspectives are diametrically opposed. The state essentially says, right, you know, we're a state, we have sovereignty, territorial integrity, and political independence, which means our territory is our territory. It can't be changed without our consent, and we don't consent to changing it. And we have sovereignty and political independence, and so other states can't tell us what to do. They can't infringe upon our territorial integrity by recognizing or promoting secession within our country.

Now, on the other hand, you have the community of people who are seeking self determination, and in many instances, they go straight towards seeking external self determination and they'll say, hey, look, we are discriminated against, there's asymmetrical revenue sharing, there's asymmetrical power imbalance within this country, we're leaving, we're taking our people in our territory, and we're leaving and we're going to become a new state, and this makes it difficult for the mediators in almost all instances to represent states, or even if it's the United Nations, the African Union, those are organizations comprised of states, states like their territory. They like their political independence, and there's a worry that if there's a trend created for external self determination, for governance, provinces, regions to become independent, that could come back on their state and undermine their territorial integrity, and their sovereignty.

And then also, it's quite destabilizing. Building a new state can be difficult. You don't want to solve one conflict. We saw this in the case in Sudan. You solved the conflict between Sudan and South Sudan with a comprehensive peace agreement. South Sudan said, great, we're independent, and then fairly quickly pivoted into a civil war.

We saw Eritrea and Ethiopia. Eritrea is separated from Ethiopia, and they had a dispute about 12 square kilometers on the border, and they, you know, a multi year war as a consequence of that. Now, that said, there's many positive examples of Czechoslovakia, Kosovo, things along those lines, you've got peace in Yugoslavia because of the separation of the states, but the process of dissolution was highly, highly violent, accompanied by genocide and atrocity crimes.

So, there's a reason for people to be worried about self determination conflicts, but you can't just ignore them because they don't go away. 

What is shared, phased, and conditional sovereignty?

Katie Hetherington: Paul, this leads us very nicely into my next couple of questions. And bearing in mind these immense challenges that you've outlined, parties and the mediators will often consider a range of different options in their attempts to reach a sustainable final peace agreement. And some of these options are shared, based, and conditional sovereignty, and I wonder if you could explain these potential options for us?

Dr. Paul Williams:. So Katie, the real concern is that today you're a province, tomorrow you're a state, and you're not prepared to be a state. And so, are there ways if you are moving towards external self determination that you can do it in the gentlest way possible, the most supported way?

And so one thing you'll find is shared sovereignty. So for a period of time, five years, 10 years, an entity shares sovereignty with the former parent state on unlimited matters, defense, maybe fiscal while they build up their own infrastructure. Or in some cases, East Timor, Kosovo, Bosnia, they share the sovereignty with the international community.

So, they're no longer subject to the sovereign control of the parent state, the predecessor state, but they're not fully sovereign. They still have the international community helping them to exercise some of their sovereign rights. There's conditional sovereignty, which is: you may not become fully sovereign until you've met certain conditions.

And this was the situation in Kosovo, standards before status is what it was called. And there was real concern about the rule of law, the protection of minority rights within Kosovo, and so the idea was that Kosovo had to meet certain standards, conditions, before it would be recognized by member states of the international community.

And then there's the third dimension you mentioned, which is constrained sovereignty. Sometimes, there's anxiety that if a piece of your state breaks away, it will then engage in activity, which may affect other states. Oftentimes, people are geographically distributed among many states, and if one country says, hey, look, you know, we're perfectly happy to have this population in their territory for whatever reason, become independent, the international community may say, well, okay, we'll recognize that state so long as they don't seek to undermine the territorial integrity of other states in order to create a greater state or, you know, bring all of their peoples together.

And we can talk about the issue of minorities within minorities, which is a huge problem there, but that is the concern that you become independent and you start looking around and try to attach territory from neighboring states to your new state. And, that would be why there's some constrained conditions on international recognition.

What are minorities within minorities?

Katie Hetherington: Thanks, Paul. And can you elaborate a little on this concept you just mentioned of minorities within minorities? 

Paul Williams: Sure, Katie. One of the misconceptions perpetrated by populations seeking self determination, is that there are cohesive people, ethnic identity, language, culture, and there are minorities within the parent state and that they need to become independent in order to fully protect their right of self determination.

But there's nothing as clear cut, you put a map around the globe, there are no clear cut homogeneous populations on territories that don't include other minorities or individuals from the majority. And so, you may be in a country, , where you're the majority, you know, this is the case with the Serbian ethnic group in Serbia in the former Yugoslavia, and then all of a sudden Bosnia, Croatia, Kosovo become independent and you're in a new country, but now you're a minority. So, you're a minority within a minority, and that's where there is a lot of resistance. Even if the parent state is comfortable with self determination and external self determination, those folks who were in the majority who are now in a minority will oftentimes be very uncomfortable. And that's where you get yet another armed conflict that can bubble up as a consequence of that, and so, that's why a shared sovereignty, a phased sovereignty, conditional sovereignty is important because it gives the international community, and maybe other regional states, an opportunity to develop mechanisms for the protection of those minority rights because unfortunately, oftentimes, the answer is population transfer. As much as the international community and member states of the national community are abhorred by the idea of population transfer, in a peace negotiation, I've been surprised at how many times folks have said, well, we'll just move the populations so that, you know, these people have their state.

We've got other people from this community sprinkled throughout the state. They can just move there, and then the new minority within the minority, they can move back into the major state, and sounds great, except if you're one of those people who are being forcibly relocated, it's not so great and that also can cause more tension and destabilize the implementation of any peace agreement.

Building governance institutions 

Katie Hetherington: Thanks, Paul. I want to talk a little bit about another concept or option relating to our discussion on phased conditional and shared sovereignty. So, in a self determination peace negotiation, the parties and the mediators will also often seek to provide for building strong governance institutions and indeed they might link a self determination process to the building of such institutions. Could you walk us through what this looks like? 

Dr. Paul Williams: Yeah, so one of the concerns of external or even internal self determination is that you simply don't have the political or even the physical infrastructure for self government. When we were working with the Yemenis on preparing their new constitution and they had decided it was going to be a federal state, one of the representatives of one of the provinces in the South said, look, we don't even have a building large enough to host a parliament. So, you're going to devolve power to us. You say, we're going to have a parliament. We're going to have X, Y, Z. We don't even have the physical infrastructure to carry out this, let alone the human resources infrastructure. And, you know, part of the reason is if you're a state, centralized state, a unitary state, all of the human resources infrastructure, all of the people, all of the know-how are in the capital city.

And if you say, okay, we're going to do internal self determination by devolving power to the provinces and the regions. Well, one, a lot of people aren't going to want to leave the capital city and go to the provinces and the regions. And then two, the populations in the provinces and the regions are probably highly qualified at many things, but governance is not one of those, since they don't have any experience with exercising governance.

Same thing if you become independent, it's even more compounded. You'll have your own central bank, your own fiscal policy, immigration policy, foreign affairs, defense. These are all very complicated issues to deal with. And if you become a state quickly, literally overnight, you have to rapidly develop that capacity to carry out those functions of statehood, and it's very expensive. So, if you're building institutions, attracting high quality people for governance tasks,, and setting up foreign ministries, setting up a national army, your durable peace could actually collapse for lack of the fiscal resources to make that happen.

That is oftentimes when the international community will come in and do security guarantees, you'll have UN peacekeepers, you'll have a UN administration, but then it starts to look like neo trusteeship, and that raises a lot of issues of sort of that neo dimension of the trusteeship. Yet, on the other hand, without that, it's going to be exceedingly difficult to stand up a new independent state.

Determining the final status 

Katie Hetherington: Now, Paul, another major and challenging question that the parties and the mediators will have to grapple with is how to determine the final status of a state in a self determination conflict. Can you describe the options and considerations that the parties need to make here?

Dr. Paul Williams: So, oftentimes the notion is that the central government has to consent to a state's right to self determination to become independent.

The reality is, states are oftentimes forced into consenting. Sudan, Khartoum was consented to granting South Sudan independence after a 20 year long civil war with two million killed and millions displaced, and Yugoslavia, they simply decided that Yugoslavia had dissolved and there was no central entity able or willing to consent.

Then on the flip side, there is the will of the people, presumably you need a vote of the people, you can't just decide on a peace agreement. process or at a peace negotiation that they'll be independent.The question is, who gets to vote and how many of them have to vote?

In many places, it's, you know, two thirds have to turn out and two thirds of those have to vote for independence, and in others it's 51 percent. In Montenegro, separating from Serbia was 55 percent, and they actually got 55.1 percent of the vote in favor of independence. There's also the question of the minorities within the minority. And so, oftentimes these individuals have come to the province recently, you saw this with Algeria with the French settlers and whether they were entitled to vote. In South Sudan, you had to trace your residency back two generations in order to be able to vote, because oftentimes, there's recent population transfers that might affect the outcome of the vote. 

And so it's easy to say, let's have a referendum, but it's really tricky to figure out who gets to vote and how many of them have to vote. And how many of those have to vote in favor of independence, because it's an irreversible decision, or it's a nearly irreversible decision.

Once you vote and become independent, it's exceedingly difficult to say, we changed our mind, we want to go join back up with that neighboring state. 

Why are states often reluctant to engage?

Katie Hetherington: Now, Paul, let me ask you my final question of this session, and you touched upon this in your introduction, but mediators and other third party states are often very reluctant to participate in efforts to create a process for self determination, unless deemed absolutely necessary. Can you elaborate on this? 

Dr. Paul Williams: Yeah. Katie, I think this is an area where the mediators may have their own self interest at play. And I've often mentioned this to my clients. There's no such thing as a bilateral negotiation; if there's a mediator sitting in the room that you and the other party are in, it's a trilateral negotiation.

Mediation teams naturally have their own interest. Now usually those are positive interests about how to get to a durable peace agreement, etcetera, but when it comes to self determination, states have their own anxieties. Almost every state has a self determination issue at some point in their history or at some point or some part of their territory, and they're going to be very reluctant to endorse and to facilitate the breakup of states, or the separations of territory from a state. 

And they will shockingly go to great lengths to dissuade the parties from external self determination and to keep them within the box of internal self determination. Even in the face of the fact that both parties may have resigned themselves to the fact that separation is the key to a durable peace, or that the durability of a conflict really would be undermined by forcing a party to stay within the state.

So, it's important for the mediators to be candid about their interests, because the parties are going to figure it out. And then to keep an eye on the long term goal of solving whatever is conflicted as you're negotiating or mediating and finding ways of constraining the precedent. I think we talked earlier about conditions, phased, shared, sovereignty.

Those are all ways of managing external self determination, and limiting any precedent that may be established by a particular instance of external self determination. 

Katie Hetherington: Thank you so much, Paul, for introducing us to this issue. And thank you all for watching. That concludes our session on negotiating provisions on self determination in peace agreements. Thanks, Paul. 

Dr. Paul Williams: Thank you, Katie. My pleasure. ​