The Conflict between Territorial Integrity and Self-Determination - Essay Example

?The Conflict between Territorial Integrity and Self-Determination Introduction Territorial integrity, along with other elements, has always been considered a requisite of statehood under international law. Reinforcing this perspective is Article 6 of the of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples, a UN Resolution, that categorically declared any form of disruption of the territorial integrity of a state as incompatible with the purposes and principles of the UN Charter. Such a classic perspective of statehood with respect to territorial integrity has manifested a simmering tension with another international principle. Recent events, equated with the collapse of the USSR, illustrate that the concept of self-determination shows a tendency to conflict with this long-held principle in international law. The embrace of territorial integrity by international law has something to do with international security and stability and there is a gnawing concern that the burgeoning concept of self-determination may pose a challenge to the status quo. Nonetheless, one need not necessarily neutralize or render the other principle void. While territorial integrity still finds relevance in the present times, the world must find a place for self-determination for the purpose of resolving existing conflicts and avoiding the escalation of violence or the eruption of wars. The international community must seek ways to moderate the build-up of tension between these two seemingly contending international principles. Territorial Integrity and Self-Determination: Definition of Concepts The origin of the concept of self-determination can be traced back to the 1789 American Declaration of Independence and later in the 1792 French Declaration. It originally refers to the entitlement endowed to the state by the populace to govern on their behalf with their consent as well as represent them in the international community as a separate, independent and co-equal entity alongside other states (Castellino p.11). Simply put however, self-determination was just perceived as “the right of nations to sovereign independence” (cited Schwed p. 447) According to the Finnish international law professor Koskenniemi, the concept of national determination can be viewed from two perspectives. The first has a patriotic facet while the other a secessionist element. The first model has a classical or Hobbesean underpinning because it sees the nation as a state and self-determination as closely related to the presence or absence of procedural mechanism that the state adopts to allow its citizens to participate in decision-making. Anything outside of this decision-making procedure, therefore, is “destructive, irrational passion” according to this model (Castellino pp. 9-10). The implication of this perspective is that the state is placed at the center of everything and that self-determination is legitimate only when it preserves the state as an organized body and when it prevents bellum omnium or what Hobbes called “a war by all against all,” which occurs in the absence of a civilized society (Leviathan Chapter 13). On the other hand, the second model of self-determination has a more romantic underpinning to it as it is largely based on Rousseau’s social contract theory. In this model, procedure is relegated to the background while purpose and goal take center stage. Moreover, this model does not see a nation as merely an artificial entity, but as an authentic community. Self-determination from this perspective is thus, an expression, rather than a procedure, of the will of the community geared towards the collective good, not necessarily of the state (Castellino pp. 9-10).An example of the classical or Hobbesian model is the Palestinian claim against Israel, while the South Ossenian-Georgia conflict illustrates the romantic or Rousseauesque model. On the other hand, the concept of territorial integrity has underpinnings from the concept of state as a person of international law under the Montevideo Convention on Rights and Duties of States, an international treaty entered into by several states in 1933. The treaty defines a state as one that must have the following elements: permanent population; a defined territory; government, and; capacity to enter into legal relations with other states. The international community has accepted the Montevideo treaty as a reflection of customary international law and has, therefore, consider territorial integrity one of the requirements of statehood (Castellino p. 77). Territorial integrity provides constancy, stability and state protection from unwarranted interference. Stability in the domestic front has a ripple effect in that it often results in a more secure international order. Territorial integrity provides a solution to the requirement of “stability and finality” of the international system – a requirement that even the UN acknowledges. Art 2(7) of the UN Charter, for example, prohibits interference of domestic jurisdiction while Art 2(4) of the same forbids the use of force or any form of threat against the territorial integrity of a state (Shaw p. 443). The principle itself is underpinned by another principle: the basic sovereign equality of states. In a relationship where all parties are equal, a party cannot take command over any territory that is clearly within the boundary and jurisdiction of another. This does not imply however, that the application of the principle is confined only to external relations between states because the respect accorded by one state to the territorial integrity of another entail rejection or denying support of any group within another state that has seceded from that state (Kruger 51). The Conflict between Territorial Integrity and Self-Determination: Contemporary Illustrations The classical theory of statehood as enunciated in the Montevideo Treaty is a firmly established principle in international law. Despite this, however, there have been instances in the past when the strict application of the principle resulted in a problematic state of affairs. This occurred when the concept comes in conflict with the principle of national self-determination. Two cases in point are the Nagorno-Karabakh dispute and the Georgia-South Ossetia conflict. Nagorno-Karabakh is a region located within the state of Azerbaijan, which was once part of the USSR but has gained independence after the latter collapsed in the early 1990s. Figure 1 shows the region being landlocked within Azerbaijan with the Armenian state close nearby. Its population, however, is mostly constituted by Armenians and this is the root of the present-day conflict that has resulted in a lot of skirmishes that claimed the lives from both camps. The Azeris claim that the region is part of its territory and has always been so, but Armenia makes a similar claim by tracing its history as far back as the 4th century BC. The Nagorno-Karabakh struggle for self-determination began in the 1920s when Azerbaijan was incorporated as a Soviet republic. Stalin refused to heed its call to be transferred under Armenian control to gain concession with the newly established Turkey republic whose leader was hostile to Armenia. With the destalinization program of Khrushchev in the 1960s, the Armenians in Nagorno-Karabakh officially protested the intentional neglect of Azerbaijan of its region, but it was met with deaf ears. Violence ensued a number of times thereafter resulting in a number of casualties. The protest of the Nagorno-Karabakh Armenians gained the support of the Armenian state whose leader became vocal and frequently broach the issue during meetings of the Union. During Gorbachev’s reign, the idea of granting ASSR status was being seriously considered, but the proposal came too late when the parties had adopted irreversible antagonistic attitude against each other after a series of violent conflicts exploded in 1988. In 1991, Nagorno-Karabakh proclaimed itself as an independent republic, after which an all-out war between the parties resulted with Armenia supporting the former (Schwed pp. 1-58). Fig 1 Nagorno-Karabakh landlocked within Azerbaijan Another case where the principle of territorial integrity clashes with the self-determination concept is the South Ossetia-Georgia conflict. In 1990, the people of South Ossetia, a region found within the newly liberated state of Georgia in Eastern Europe (see fig. 2), declared itself as a full sovereign within the Union of the Soviet Socialist Republics independent of Georgia. Open conflict between Georgia and the South Ossetians followed until a truce was declared in 1992. Despite the truce, however, there was no real resolution to the secessionist position of South Ossetia from Georgia, which continued to assert its independence from the latter encouraged by the support of the Russian Federation. In 2006, 99% of South Ossetians voted, in a plebiscite, to remain independent of Georgia, a result that was rejected by the majority of the international community including the European Union, the Council of Europe, the North Atlantic Treaty Organization and the United States Department. In endorsing South Ossetia’s independence, Russia cited the South Ossetians freely expressed determination as well as the provisions of the UN Charter and various other international treaties and documents. The rest of the international community justified its condemnation of the South Ossetians secessionist act as a violation of the international concept of territorial integrity and sovereignty and various UN Security Resolutions of which Russia is a signatory (Jansen 2008, pp. 1-5). The Georgia-South Ossetia situation, and similar international conflicts where certain regions within independent states declare themselves independent from the latter, plainly illustrate the simmering tension between the concepts of territorial integrity and national self-determination. Fig. 2 South Ossetia geographically, and historically, part of Georgia Conclusion: Moderating the Tension The principles of territorial integrity and self-determination need not be in a constant state of tension and incompatibility. Territorial integrity, which is deemed a superior principle than the right to self-determination under international law (Kruger 54), is necessary to maintain security and order in the international realm, but this does not mean that self-determination has no place under the sun. The idea of self-determination springs from the inalienable right of all people to decide freely free from external pressure on their fate, whether politically, economically or socially and must not be undermined. Nonetheless, the ultimate good of the international community mandates that self-determination must be properly qualified and placed in its proper perspective before it can be exercised. There must be clear, just and sound rules that must be applied in determining whether a claim for self-determination must be granted and the claimant recognized by the international community. With respect to people or territories that had been placed under colonial rule, the right or claim to self-determination is not difficult to determine. When it comes to other cases, however, such as the Nagorno-Karabakh/Azerbaijan conflict or the South Ossetia-Georgia dispute, the determination is problematic. On the one hand, the people in the territories concerned have spoken and violence are threatening to erupt at anytime, but on the other hand, are these reasons enough to sanction secession? The danger of allowing and sanctioning secessionist movements where the justifications are not clear is that the precedence might open Pandora’s Box, so to speak, and encourage secession in all corners of the globe. Author Kruger, for example, believes that although a secessionist self-determination concept can, at times, constitute an exception to territorial integrity, the Nagorno-Karabakh conflict does not ideally fall within such an exception. This is because, according to Kruger, the claim for self-determination is not made nor decided by the entire population of the state of Azerbaijan since Nagorno-Karabakh has never been constituted historically as a separate state from the former and therefore, not entitled to the right of secession. Moreover, Kruger thinks that neither can the Nagorno-Karabakh Armenians lean their claim on the ground of their ethnicity because their size is not comparable to the other ethnic groups in Azerbaijan (pp. 55-56). Kruger’s objections to the Nagorno-Karabakh claims simply highlight the lack of clear cut rules under international law governing claims for self-determination underlying secessionist movements and the need for a set of rules that would allow claims for self-determination under certain circumstances. It is also submitted that the stringent application of the classical perspective of statehood, as enunciated by the Hobbesian model of Koskenniemi, will not resolve most conflicts involving claims for self-determination. Moreover, under Resolution 1541 of the UN, an entity can only exercise self-governance if it is any of the following: an emerging sovereign independent state; one that is freely associating with an independent state, and; one integrated with an independent state (cited Sharma p. 218). Such state-centered perspective is considered impractical and sometimes dangerous because it encourages violence. Unlike Kruger’s position Moltchanova thinks that self-determination should be simply rejected because the claimant is a non-state but is located as a substate (Moltchanova p. xiv). The international community must therefore come up with a set of sound and just rules to serve as guidelines in the granting of claims for self-determination that does not discriminate on the basis of unjustified groupings, but on practical, just and real grounds. References: Castellino, J. (2000) International law and self-determination: the interplay of the politics of territorial possession with formulations of post-colonial 'national' identity Martinus Nijhoff Publishers. Cornell, S. (1999) The Nagorno-Karabakh Conflict. Report No. 46, Dept. of East European Studies. www.silkroadstudies.org/new/inside/.../1999_NK_Book.pdf. Hobbes, T. (2008) Leviathan: by Thomas Hobbes. MobileReference. Jansen, D. (2008) The Conflict between Self-determination and Territorial Integrity: The South Ossetian Paradigm. http://centreforforeignpolicystudies.dal.ca/pdf/gradsymp09/Jansen.pdf. Kruger, H. (2010) The Nagorno-Karabakh Conflict: A Legal Analysis. Springer. Moltchanova, A. (2009) National Self-Determination and Justice in Multinational States. Springer. Schwed, A. (1982) ‘Territorial Claims as a Limitation to the Right of Self-Determination in the Context of the Falkland Islands Dispute’ Fordham International Law Journal, Vol. 6 (3). Shaw, M.N. (2003) International law. Fifth Ed. Cambridge University Press. Sharma, S. P. (1997) Territorial acquisition, disputes, and international law. Martinus Nijhoff Publishers. UN Resolution No. 1514 or Declaration on the Granting of Independence to Colonial Countries and Peoples. Read More