Louise Arbour, formerly Chief Prosecutor of the ICTY and nowadays head of the International Crisis Group, has given a speech on when secession should be allowed. It is an effort to derive general rules from the ICG's support for independence of some groups (Kosovo, Montenegro, South Sudan) and its opposition to others (the Tamils on Sri Lanka, Iraqi Kurdistan).
According to her secession is allowed, except in the few cases where the security council has explicitly forbidden it (Southern Rhodesia in 1965, Northern Cyprus in 1983 and of the Republika Srpska in Bosnia in 1992) because of other violations of international law. She claims that "when a state is unable or unwilling to provide for the internal fulfillment of the right to self-determination" "a people" has a right to secede. She denies that right to the Tamils because they treat their minorities badly.
It strikes me as a highly theoretical exercise that misses all the delicate issues:
- first there is the territorial delimitation. Which territory has the right to secede? Should existing provincial borders be respected - even when that brings in considerable minorities who don't want to secede? But that would mean that Milosevic could have split up Kosovo among Serbia's provinces so that there was no province left with an Albanian majority and that then nobody would have the right to secede. It strikes me as absurd that a state - by giving a minority local autonomy in a territory where they are the majority - would strengthen their rights to secede.
- Arbour defines "self determination" in a very legalistic abstract way. In her view when a minority is represented in parliament is has its rights. It looks like a convoluted way to approve Kosovo's treatment of its minorities.
If she would be honest and define "self determination" like control over your own fate she would have to admit that the minorities in Kosovo's parliament are powerless figureheads and that in fact Kosovo's minorities are subject to heavy discrimination and that it is nearly impossible for them to make a living in Kosovo. The logic conclusion would be that Kosovo's minorities are in worse position and have more right to secede from Kosovo than the Albanians in 1999 had to secede from Serbia.
- Arbour somehow misses the fact that secession is usually about money. Usually it are the rich provinces that want to secede - believing that they will be richer when they no longer have to subsidize their poorer countrymen. Slovenia and Croatia in Yugoslavia, the Basques and Catalans in Spain and the North Italians are all good examples. Southern Sudan would be less enthusiastic to secede when it wouldn't have the oil. Kosovo's Albanians' enthusiasm for independence would have been considerably reduced without the Trepca mines.
So the dynamics of deteriorating ethnic relations that usually precede secessions are often not caused by maltreatment by the majority but by the greed of the minority.
- Arbour misses also the dynamics of a fight in which sub-minorities tend to get trampled. There is great similarity between the fate of minorities in Kosovo and that of the minorities in the Tamil controlled areas in Sri Lanka. From this point of view it is hard to defend to support one and reject the other.
- Arbour ignores the question of how secession should proceed. In order to succeed secession nearly always needs external support. But that makes those external forces also responsible for how secession happens. It looks like the US doesn't understand this as a responsibility and only uses it as opportunity for macho politics.
In my view there can be only one criteria: a minimum of damage. This should take into account that secessions tend to be costly in terms of human rights - even when they are peaceful. The fates of the minorities in the former Soviet Union and Slovakia are good examples.