EXTERNAL ASSISTANCE TO SECESSION STRUGGLES: COULD AFGHAN RECOGNITION OF CHECHNYA LEGALLY HAVE GONE FURTHER?
Christopher Hare, LL.M. in ‘International Human Rights Law’, University of Essex (United Kingdom)
The request from Chechnya for assistance following the Russian attack of 1991, and the recognition of Chechnya as a state given in response by Afghanistan, provide the occasion for speculation as to whether any intervention in Chechnya would have been legal internationally. Obviously, issues of relative power and distance rendered the issue effectively moot for most potential interveners, but it is scarcely satisfactory to leave aside legal analysis due to “political” issues. With so much of modern conflict being non-international, “vicarious and remote controlled”1, the issue of the degree to which outside powers can take an interest in a conflict which crosses no borders is a vital one.
The issue of intervention has long been a vexed point in international law. While seemingly trumped by concepts of sovereignty and self-determination, intervention has always managed to hang on, lurking in the shadows of international society as a recognition that sometimes force is necessary to restore “correct” manners of existence. Encompassed by the UN Charter, and increasingly employed with the Cold War’s paralysis removed, intervention may seem to be an idea whose time has come. However, unilateral intervention, by one state against another, remains a more vexed issue.
For reasons of space, the issue of competency to ask for assistance will not be considered in this paper. While a key area with considerable implications for this topic, there are few if any precedents for requests by non-state actors for external assistance. To discuss the analogy with what rules there are for requests by state actors would require a paper of twice this length.
Obviously, in order to examine whether an external power could legally have heeded Chechnya’s request, it is first necessary to discern the international law governing this area and then to characterise the Chechen situation in legal terms. This done, an answer can be found as to whether the law would have frowned or smiled on intervention in the situation to hand.
Legal Requirements for Any Intervention
United Nations Authorisation
While the most solid international bar on intervention is the United Nations Charter, in its Article 2(4)2 ban on acts of aggression “against the territorial integrity or political independence of a member state”, the United Nations nonetheless has broad powers to “maintain international peace and security”, given to the Security Council to invoke and control. While these broad, Chapter VII powers were rarely used during the time of the Cold War, the modern period has seen considerable use of UN enforcement as a major tool of peacekeeping. The use of these powers strongly highlights the weakness of the concept of “purely internal” matters - the growth of global consciousness and the effects of the decolonisation movement have made the fate of the citizens of a state a concern of more than just that one state. International will in this matter can be seen, in an early form, in the fury hurled at South Africa by the UN General Assembly in a series of resolutions aimed at the destruction of apartheid: the existence of resolutions of the Assembly calling for all states to “render all possible assistance” to armed struggle to end minority rule shows clearly the reduction in the scope of “internal” matters3. The Security Council moved more slowly, but it moved nonetheless, with the first ever use of mandatory sanctions under Chapter VII being against South Africa: the “stick” to the “carrot” that was later offered in an effort to smooth the path to democracy and an end of apartheid.
An even more clear-cut example of the powers used by the UN Security Council in the name of peace maintenance is the situation in the Kurdish territories of Northern Iraq, where, following the Second Gulf War, “safe havens” consisting of the entire north of the country were set up to prevent Iraqi forces attacking the Kurds. Enforced by no-fly zones and NATO warplanes sub-contracted by the Security Council, the creation of these zones amounted to carving out a sizeable chunk of Iraq as a Kurdish state, with little protest from the global community. The refugee flow of Kurds from Iraq had been the “internationalising” factor in the case of Operation Provide Comfort, but no such factor was deemed necessary in Somalia, where Chapter VII powers were obtained with no international implications whatsoever being evident from the country’s collapse. It rarely pays to underestimate the scope of the Security Council’s powers once it decides to invoke Chapter VII, and the current habit of “sub-contracting” enforcement for Council decisions to regional organisations such as NATO or ECOMOG has an inbuilt tendency to provide greater firepower to UN enforcement forces than any resisters may be able to find. With the power to bind the world if it so chooses, the Security Council can take any action it deems necessary4 to restore or maintain the peace5, even where a situation has no international implications.
It can thus be seen that the fact that a conflict is purely located within one country does not take that conflict outside the attention of the Security Council, and that the Council has in the past been willing to effectively remove an oppressed province from the control of the state. This is the main legal form of humanitarian intervention encountered in current global society, since it is unequivocally lawful for the Council to act where it perceives a threat within its competence.
A less clear-cut area is that of unilateral intervention, the use by a state or group of states of their forces to violate the sovereignty of another state. In addition to clear-cut cases of aggression, as in Iraq’s invasion of Kuwait, which are ostentatiously violations of international law, this field encompasses the concept of humanitarian intervention: the use of force to end an international wrong, without authorisation from the Security Council.
The first thing to note about humanitarian intervention is that it is very rare for states to admit to it6, due to the widely perceived illegality of the use of force by one state against another. Far more commonly, more uncontroversial grounds are expressed to justify actions. The classic example is that of Tanzania’s removal of Idi Amin’s regime in Uganda after the latter’s forces crossed the border and occupied a stretch of disputed territory.. While this was explained as a case of self-defence against an unarguable Ugandan occupation of Tanzanian lands, pure self-defence would not have required regime removal, and the language deployed at the time was that of the removal of a tyrant who had oppressed Uganda for too long7. It is also notable that Julius Nyerere of Tanzania had clearly been seeking an excuse to remove Amin for some time8. The reason for arguing self-defence, of course, is that self-defence is sanctified in Article 51 of the UN Charter and is less tenuously legal than claims of humanitarian intervention. It is arguable, however, that this action would not have violated Article 2(4) even without the Article 51 defence - the removal of a dictator followed by withdrawal did not remove any territory from Uganda, nor did it compromise anyone’s political independence since the new regime was in no sense controlled by Tanzania. In a similar vein, even where retrospective UN Security Council authorisation was given, it is notable that NATO does not purport to have created an independent Kosovo, merely to have acted to restore the peace. Coupled with this is the precedent of Goa. India’s invasion of the then-Portuguese colony in December 1961 was claimed as precisely the kind of action under consideration here - assistance in a claim of self-determination. Whether simple annexation of the “liberated” province qualifies as self-determination or not, and despite a typical Security Council decision-by-veto, the case offers valuable lessons for Chechnya. The fact that five out of seven Security Council members voted to reject the Portuguese complaint out of hand9 shows considerable support for the concept that such interventions can be legal, with international society’s highest executive body divided on the issue. The Indian claim, raised in the debate, that the action was a case of Article 51 collective self-defence is of still greater note. After all, a territory and possibly a “people” had been subjected to an ongoing occupation10 by an outside power, whose influence the attack was aimed at removing. Only the length of the occupation made this at all a controversial argument, and the Geneva Convention IV provisions on occupations11 do not anticipate the occupied territories being annexed to the occupier at any stage in the process12. Against this must be weighed the fact that, as has been mentioned before, conquest was in the past a valid means of territorial acquisition - the doctrine of prescription turning occupation into ownership after the elapse of sufficient time without adequate retort by the “rightful” original owner.13 The UN Charter, by banning aggression, has effectively invalidated this principle for modern occupations14, but does not conclusively prove that cases of prescription before the date of the Charter are also invalid. This invalidation can be implied from the UN reaction to the anti-colonial struggles, but this is a field that requires great care, since most states arose in this manner. Collective self-defence and counter-invasion are thus potentially powerful arguments, given the complexity of determining when a past acquisition of territory by conquest becomes modern “illegal annexation”. Actions such as India’s in Goa, of course, do fall foul of Article 2(4), in that they violate territorial integrity by lastingly removing territory from another state, unless the territory concerned represents a colony. The law concerning these situations is covered below.
Liberation Struggles, Self-Determination, and Anti-Colonialism
The anti-colonial movement gave the world a term of some use in answering the above question by creating the concept of a “Liberation Struggle”. The best definition of this phrase, and it is a term of art, is to be found in Article 1(4) of the First Geneva Protocol, which includes in the ambit of the Protocol:
“armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination as enshrined in the Charter Of The United Nations”.15
While the exact definition of self-determination in any given situation can be argued almost ad infinitum, this inclusion of struggles, such as that of the majority population of South Africa against minority rule, in the category of international armed conflicts shows the legitimisation that this concept gives to fighters in such a war. The UN tendency is to limit this category to colonial situations, but the Protocol I definition explicitly goes further than that.
One explicit limit on the scope of “liberation struggles” is clear. The Declaration On The Granting Of Independence To Colonial Countries And Peoples16, one of the key documents in the history of anti-colonialism, and thus in the internationalisation of internal affairs, specifically states that secessionist movements cannot be considered valid liberation struggles. This is an important principle to remember, since it is an invocation of the vital principle of uti posseditis. Territorial integrity has to be preserved, a concept emphatically reiterated by the post-colonial states - a fact which may seem strange and conflictual given that states that had just come into existence by violating a principle were now its strongest defenders. Uti posseditis may be preserved from the contradictions of decolonisation only because the colonial powers never fully declared the colonies annexed to their territory or treated them as such. Had, say, India been fully treated as part of Britain, the argument for independence may have been weakened and a valid liberation movement would have been one which struggled for equal representation.
Reconciling Self-Determination And Uti Posseditis
A partial resolution of the conflict, and of the strangeness of this promulgation by states that benefited from self-determination arguments, lies in the realisation that “self-determination of peoples” is exactly what did not happen in the decolonisation movement. Many, if not all, of Africa’s present troubles arise from the very fact that its most readily definable peoples are not, for example, “Rwandans” or “Zairois”, but rather define themselves as “Tutsi” or “Hausa” or “Zulus”. The “tribal” national entities are scattered across state borders that exactly follow the arbitrary colonial boundaries17. Decolonisation involved colonial entities becoming independent states. Self-determination of peoples was, and is, nowhere to be seen in this process. The instabilities arising from use of one principle to justify something else, and the arousing of expectations induced by it, readily explain the eagerness of the new “nations” to forever ban any further self-determination. Accordingly, the norms of non-intervention and uti possidetis are effectively undisturbed by decolonisation, which shook them not at all. The rhetoric of the process, however, established self-determination very firmly as a mandatory norm in itself, but limited to prevent any secession threats to new sovereign states that were not nation18 states19. After all, once a “people” (or territory, in the decolonisation argument) had exercised self-determination, it could never claim this again - the act is claimed to be once and for all. This last principle only causes problems where peoples have not received the self-determination being claimed for them.
Most of the complexities that surround self-determination and liberation struggles flow from this attempted limitation of an allegedly universal right to a very specific situation - “the dominance of people of colour in their homeland by other racial groups”20. Curiously, it is a limitation that closes avenues for a number of situations while arguably doing nothing for the states that invented it - most of the decolonised states were not “nation states”, and thus were not identical with “peoples” who could validly claim the self-determination the new states were seeking to declare then to limit.
Federal Rights: Resolving The Contradictions
A further clearing of the contradiction in the case, at least, of self-determination is found in the concept of internal self-determination. The assertion of self-determination does not necessarily have to mean secession, and this key principle of international relations is not thus at odds with uti posseditis. It is quite possible for a state to grant a very high degree of independence to a region without that region ceasing to be part of the state21. Every federal entity - and there are many such - rests on such arrangements, and units within a federation can potentially have varying powers. The right under self-determination for a people to freely control their own education, welfare, and to a degree their economy can thus be granted without offending against uti possidetis. While not necessarily satisfying nationalists - little ever does - this arrangement does satisfy most of the accepted definition of self-determination as well as the principle of territorial borders. In short, the theoretical principles can be validly combined into a “right of federation” for peoples within the borders of existing states where those “minority”22 peoples are dissatisfied with the protections afforded them by the central government23. Granting more powers to an ethnically defined unit than to other regions may cause problems if those other regions feel disadvantaged24, but those problems need not be serious - the “West Lothian” question in the UK could be quite easily resolved by the creation of an English Parliament. While some Quebeçois, Scots and Welsh may still push for independence and the perceived “recognition” that statehood brings, the combination of autonomy with the advantages of remaining part of a larger (non-oppressive) whole is likely to satisfy most situations. It also avoids the violence and chain-reactions that tend to surround secession struggles25.
Clearly, the underlying principle is that a “people” are entitled to self-determination to the extent that that does not disturb the territorial borders of an established state - if government is representative and reasonable, then there is little need for anything more than the normal human rights of individuals. Only when a group is being persecuted as such does it need special protections for itself as a group. Viewed in the light of the imperative status ascribed to both self-determination (in undefined form) and to uti posseditis, it can be seen that the only truly legal (as opposed to aspirational) form of self-determination is the internal, federal form discussed here. Status as a “people” rather than a “minority” merely gives a stronger claim to group rights. Diaspora populations from a people already possessing a state cannot assert self-determination elsewhere, and are thus “minorities”. Peoples without a state to call their own have a call on greater protections.
It is curious that the clearest statement of this principle of internal self-determination to be found in international law comes from the Aaland Islands case of 1920, which took as one of the foundations of its judgement the idea that self-determination was not custom at the time26 and hence declined to grant it to the disputed islands. However, the two appointed bodies in the case held that “minorities” (in the non-technical sense) are entitled to the maximum extent of minority protection within that state and optimally to autonomy if that protection is not forthcoming, with the possibility of independence in very extreme cases. There is thus no general legal permission for secession27, but the international community is willing to accept secession as a fait accompli in extreme cases. Again, this only applies to “peoples”, which includes indigenous peoples - the special protections given to that category are a version of self-determination. Mere “minorities” have the protection of the normal principles of human rights, but not self-determination. The only situation where independence is the clear right is that of colonies, which, as has already been discussed, are cases of illegal occupation.
Defining colonial situations
International human rights law, while under normal circumstances relying on individual rights to protect minority populations, does grant group rights to certain specific categories. The most obvious of these, of course, is situations of colonial control. Colonialism, of course, has been repeatedly declared to be illegal28. The call in article 1 of the Declaration on the Granting of Independence to Colonial Countries and Peoples for an end to the “subjection of peoples to alien subjection, domination and exploitation”29 as contrary to the Charter is strengthened by its repetition in the wish of the Declaration on Friendly Relations “to bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned”30. These are, admittedly, resolutions of the General Assembly and not per se binding, but practice largely followed them and they may now be firmly stated to be custom. It is worth noting the repetition of “peoples” in the formulae above. The inhabitants of colonies are “peoples” whose territory is illegally occupied. As such, uti posseditis holds no protection for the occupying state, which should not be in occupation in the first place. The problem with characterisation of any situation as “colonial” is that the whole thrust of the self-determination debate has been, as mentioned earlier, to break up the European empires and then ban any further secessions. There is also no clear definition of a “colony” in the law as it stands, perhaps because of the tendency to regard decolonisation as accomplished and hence no longer needed.
The Fracturing Of Uti Posseditis: Official Secession By Stealth
Recognition has sometimes been given by international society to breakaway provinces, but usually under convoluted cover or in cases where society has been faced with a fait accompli. The leading source for these circumstances is the accumulated work of the Arbitration Commission (the “Badinter Commission”)31 appointed by the European Union to examine the political issues arising from the break-up of Yugoslavia. Although a highly political body, annexing political grounds to strictly legal norms, it forms a valuable precedent in this highly political area. The grounds which would be accepted were promulgated by the EU in its Declaration on Yugoslavia and on the Guidelines on the Recognition of New States of 199232, itself based on criteria applied to the former Soviet republics. Curiously, beyond the requirement that the former regions wished to become states, only “internal” political criteria are to be found in the Declaration or in the work of the Commission. These criteria were as follows:
- Acceptance of the UN Charter and the Helsinki Final Act
- Guarantees for minority groups
- Respect for the inviolability of frontiers
- Acceptance of disarmament commitments.
- Commitment to dispute resolution by agreements33.
It can swiftly be seen that these requirements are political considerations and in no way law, but they do indicate the steps through which Western states go when considering whether or not to recognise - steps which explicitly and slightly strangely include uti possidetis. The effect on the state from which a group is breaking away is a vital factor in such decisions: Yugoslavia in 1992 was in no position to protest about recognition of secession. Russia is in a far stronger state. It can also be noted that the Badinter Commission repeatedly refers to Yugoslavia as having broken up, and therefore to the new states as successors, not as secessionists. The fact that the Federal Republic of Yugoslavia still exists minus the new states may seem to damage this hypothesis, but it remains the official viewpoint.
The status of the Chechens
Identity and classification
The wider legal background has now been categorised and examined. With these broad principles in mind, it is possible to turn to the situation in Chechnya with the tools for its analysis. To determine whether the Chechens could have been assisted by an outside body, then, it is necessary to analyse the character of the conflict in the light of principles established above.
To begin by clarifying the significant issues of identity, the Chechens as a group clearly exhibit substantial differences in culture from the majority population of Russia, and not merely in being an Islamic society. It has been noted that the version of Islam practised in Chechnya is a highly variant form, with emphasis on clan structures and the practice of blood feuding34. Recognised as a distinct “tribe” for thousands of years, and with their own language35, this is a very defined group, who thus probably qualify for “people” status. “Conquered” by Russia only in the 1850s after prolonged fighting, sporadic resistance by Chechen groups has continued ever since, even during the forced exile by Stalin of the entire population36.
It can be seen, then, that there has been no real acceptance by Chechnya of Russian sovereignty, indeed, a clear will to independence is evident from even this short summary of a lengthy tract of history. While some suggestion has been made that Russian dominance could be challenged on the basis of invalid title37, it must be recognised that conquest was a valid basis for the acquisition of territory until 1945, and accordingly this is not a productive exercise. Likewise, the famous clause in the old Soviet constitution empowering its constituent republics to secede is of no help to a rebellious fraction of one of those republics. Any argument for external self-determination rights for Chechnya, and hence for “liberation struggle” status, must rest on one of two grounds38:
- They are a colony and hence entitled to independence under international law.
- They are a people, and hence entitled to self-determination of some sort.
The first question that then arises is simple: are the Chechens a colony? The annexation of Chechnya by Russia occurred at roughly the same time as European colonial expansion, providing an analogy that may be more interesting than legal. Certainly, for most of the history of Russian control, Chechnya has been controlled against its will, by a non-democratic system, the Chechen people at one point even being treated en masse as offenders and deported in their entirety. The situation at least appears to be similar to that of colonialism as it is usually defined, pace the argument that self-determination only applies to people of colour in Africa dominated by Western Europeans39. The only difference really notable is that Chechnya is geographically contiguous with the rest of the Russian Federation whereas the “standard” colonies were not - those territories that were contiguous to European powers without also being powers having been acquired by conquest long before colonialism began.
The law on the subject of colonialism is less than helpful on the importance of non-contiguity, but there is suggestive evidence in the practice of other groups seeking to break away from larger entities. Sinn Fein in Northern Ireland regards British control as colonial, as can clearly be seen evidenced in their repeated attacks on “imperialism”40. The Basque separatists in Spain, however, appear merely to assert self-determination without claiming that they represent a colony. This seems to support the concept of “colonies” being by definition separated from the metropole by blue water. No government, of course, will ever agree that a troubled province represents a colonial situation. It appears that such situations are normally taken as being separate from the mainstream of decolonisation, which perhaps can be taken to purely apply in the “classic” colonial situations at which it was aimed.
It has been seen above that the Chechens do not readily fall into the “colony” category. Accordingly, the question can be asked as to whether they are a “people” or merely a “minority”. To be a mere minority, without the right of self-determination, is a condition that still carries a high degree of protection for cultural and economic rights, even if it does not present the perceived possibilities that “peoplehood” does.
The first, obvious, statement to make about the Chechen situation is that there is no Chechen state, any more than there is a Kurdish state - both ethnic groups merely inhabit provinces. The local will would perhaps be to become a state entity. Combined with the very defined nature of Chechnya, and the clear and recognised cultural differences between Chechens and Russians, this is strongly suggestive of their being a “people” and hence entitled to some form of self-determination. Before too many celebrations break out in the mountains above Grozny over this, however, it must be re-emphasised that self-determination takes many forms. The main effort to end the fighting and resolve the question of status, the Kasavyurt Agreement, demonstrates the difficulties aroused by conflicting expectations and definitions.
The Kasavyurt Agreement
Russia’s reaction to the Chechen recapture of Grozny on 6 August 199641, the Kasavyurt Agreement (hereafter “The Agreement”) gained the consent of most, but not all, of the factions fighting in Chechnya. Laying the groundwork for the 1997 parliamentary elections in Chechnya, it consisted of an effective cease-fire coupled with the formation of a Joint Commission of representatives from Chechnya and Russia to decide the future status of Chechnya vis-à-vis Russia and organise withdrawal of forces, this process being shattered by the Second Chechen War. As an interim measure, it outlined some basic provisions. The most noteworthy of these, apart from the Commission, were those controlling the nature of the relationship “between the Russian Federation and the Chechen Republic”, which was to be handled “in accordance with generally accepted principles and norms of international law”42. The failure due to force majeure of the Commission to reach its eventual conclusion must be lamented, since this would have resolved the difficulty that the terminology used created. For the Russian government, the “Chechen Republic” was merely the title of a semi-autonomous province. For the Chechen fighters, it was the title of a new state: “The Chechen Republic of Ichkeria”. The ambivalent language of the Agreement, perhaps necessary to gain general acquiescence in a cease-fire, created expectations that were unlikely to be fulfilled. Chechen military successes had inflated their hopes for independence: the conditions on the ground were unlikely to remain in their favour.
It can be readily seen that the requirement of military withdrawal, the appointment of a Commission on the form mentioned here, and the repeated invocation of self-determination in the Agreement itself, all suggest a grant of autonomy whose full nature was to be negotiated out by the Commission. This is an uncontroversial reading of the Agreement, and offends against no principle of international or national law. Russia is, after all, a federal entity, and there is nothing too strange in extending the powers of one devolved authority in exchange for a little peace. However, the Agreement can be read more broadly, and has been by the Chechen fighters.
Following the OSCE-monitored elections of 1997 in Chechnya, Chechen elected officials began adopting state-ish terminology for themselves without a complaint from Russia - Movladi Udugov’s title of “Foreign Minister”43 being perhaps the most telling. Over and above this, the very terms of debate bear little resemblance to internal relations within a federation. It is odd, to say the least, for a federal state to announce that its relations with a subordinate part are to be run according to international law44. Even stranger is the nature of those involved with the whole process. The Agreement itself was signed for Russia by Alexander Lebed, whose portfolio included Federal policy in Chechnya. Nothing controversial there. The Joint Declaration confirming the Agreement and creating the Commission, however, was promulgated by Victor Chernomyrdin, then Russia’s Foreign Minister. In the light of this, the background of Chechen military victory in Grozny becomes very suggestive indeed. Even in the Agreement itself, almost the first statement acknowledges “that the use or threat of armed force to settle disputes is unacceptable”45. The extension of UN Charter-speak into internal relations, apparently invoking Article 2(4) to bar use of armed force between Russia and Chechnya, is another sign that the Agreement on one side envisaged a more than minor separation between the entities. Final determination of the settlement was, of course, thwarted by the return of violence.
The implications of Taleban recognition
Only in the course of 1991 did Chechen intentions become unequivocally clear, with a declaration of independence and a call for external assistance. At this stage, only one government recognised Chechen independence, that being the Taleban in Afghanistan. While this did give the Chechen Republic an unequivocal gesture of recognition from an outside power, something much more influential than an ambiguous choice of phrase in a cease-fire document, the problem for the Chechens was that the Taleban are very far from being a fully recognised government themselves. Quite apart from issues of human rights, which the Badinter Commission firmly stated as a vital part of recognition practice, the Taleban cannot even claim to be fully in control of their own country. It can be seen, then, that there is no solid support for the concept of Chechnya being an recognised independent state or even a liberation struggle, a fact that leaves them in the situation of an apparent people, with rights as individuals and as a people meriting some autonomy, but with no right of independence.
International law and Chechnya
We have then the situation of a people exercising their claimed “right” of external self-determination through secession, resisted by the state from which they are attempting to escape. While the range of General Assembly resolutions examined in the course of this paper offer some sympathy for such situations, the basic law here is not Article 51, UN Charter, but rather Article 2(4) of the same. The fundamental principle here is the non-use of force “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”46. While the last phrase of the Article can be debated almost indefinitely, and while “equal rights and self-determination of peoples”47 is certainly one of the Purposes of the organisation, it can be immediately seen that action to assist a breakaway province would be a direct assault on the “territorial integrity” of the targeted state. Given also that the “self-determination” Purpose places the right heavily in the context of “friendly relations between states” and “universal peace”48, the UN Charter offers scant comfort for secessionists, even where they are facing direct and massive abuse by the state. This is reinforced by the Declaration on Friendly Relations, which, even while repeatedly invoking self-determination and respect for human rights, explicitly declares any “attempt aimed at the partial or total disruption of the territorial unity of the state” to be contrary to the Charter, and reinforces this by proclaiming the illegality of the use of force to settle “territorial disputes”49. Even in those cases where the “extreme situation” exception may have been valid, such as the creation of Bangladesh, states assisting secession have not routinely sought to justify their actions on this basis50, preferring to cite self-defence as a more “legal” ground of action. While grave assaults on minorities are in no way legal - even the Declaration on Friendly Relations considers attempts to “deprive peoples of their identity”51 to violate the norm of non-intervention - this does not of itself authorise intervention, which requires one more step. To break the domestic veil and legally produce intervention, secession struggles must reach such a level as to threaten international peace and security, and hence invoke Security Council attention.
The Security Council, of course, can authorise intervention under its Chapter VII powers where it finds there to be a “threat to international peace and security”. Although at first glance a conflict entirely confined within the borders of one state may seem not to fit into this category, the Council takes a wide view of its authority and has in the past authorised intervention where only one state was involved52. In the present situation, this is at the least unlikely to become important due to Russia’s status as a veto power, but it needs to be borne in mind.
No military assistance can be offered under Article 2(4) unless a colonial situation can be argued, in which case the “holding” state is in illegal occupation and military actions by it within the territory concerned may constitute crimes against peace. In this case, the breakaway territory is not part of the original state, so suffers no difficulties from uti posseditis. Otherwise, assistance to secession has an air of illegality except, possibly, in the most extreme of situations as an exceptional matter. It will be noted that this makes a nonsense of most claims for a right of external self-determination, since in most cases external assistance will be the only hope of the secessionists. Rather, uti possidetis rules the roost, as is inevitable in a world order composed mostly of multi-ethnic states. The aim is to preserve territorial integrity while protecting minority peoples, thus avoiding the chaos and violence that surrounds secession struggles. Secession, as has already been noted, is outside the law.
It has thus been seen that the Chechens, being a “people” of long standing, are indeed entitled to self-determination of some sort. It has further been observed that this self-determination could only entail secession as an extreme exception to the rules in the most extreme of circumstances - their enforced exile under Stalin would certainly have counted, and the current situation may, but it does such a cause no good for the cause of the oppression to be the secession struggle rather than vice versa. However, this does not preclude autonomy, to which the precedent of the Aaland Islands gives them ample right. Ironically, a limited interpretation of Kasavyurt would produce exactly this.
This right to federation/autonomy, however, does not automatically come with a right to external assistance. Not being a validly recognised state, Chechnya cannot invoke Article 51 and request collective self-defence. Indeed, the UN Charter, in Article 2(4), explicitly prevents other states from providing the assistance the Chechens called for - such intervention would indeed conflict with the territorial integrity of Russia as being an attempt to remove territory from Russian control. The possible legality of actions such as that of Tanzania in Uganda does not cover such actions. Interventions on the order of India/Bangladesh are probably only legal with Security Council authorisation53, which will not be forthcoming in the case of Chechnya for all the obvious reasons. Since the Chechnya situation is entirely confined within the borders of Russia, and thus directly involves no other state, the most that sympathetic states could and should offer to assist the Chechens is to use diplomatic and such (non-coercive) economic pressure as they can to urge compromise. Compromise, however, is generally the last thing on the minds of the fighters in situations of this kind, on either side. The Chechens are all but certainly entitled to autonomy/federation as a “people” facing violence at the hands of the state which claims them, but this argument will not satisfy the voices calling for statehood, or the others calling for territorial unity. In such a conflict, truth may be the first casualty, but the rest of the victims are civilians, who only suffer from endless struggle over independence or unity.
It can be clearly seen from all that has gone before that self-determination is a political term, not a legal one, and that its meaning varies depending on who is asserting it. It is perhaps time to consign it, along with “terrorism”, to the politicians, and cease attempting to use it as a legal term of art.
1Best, G, “War And Law Since 1945”, Oxford, 1997, p.221
2Charter of the United Nations, 1945, Article 2(4)
3e.g. Resolution 35/206 of 1981.
4As the sole body charged with this function and as the collective will of the most powerful states, there is no real oversight of the Security Council, perhaps unfortunately given its considerable powers.
5A limited power to maintain the peace would not encompass setting up ad hoc criminal tribunals.
6India, for instance, made brief mention of humanitarian intervention at the time of its action in Bangladesh, then quickly changed the story.
7See the wonderful double-meanings in Tanzanian announcements at the time - their declared absence of territorial claims both releasing them from A2(4) Charter constraints and reassuring Ugandans that the invasion was not a contemplated foreign occupation.
8Ramsbotham, O, and Woodhouse, T, Humanitarian Intervention In Contemporary Conflict, Polity, 1996, p.6
9S.C.O.R, 16th Yr, 987th and 988th Meetings, December 18, 1961, cited in Harris, D, Cases and Materials In International Law, Sweet and Maxwell, 1995, p.203
10Given the inclusion of colonial struggles as international conflicts in Geneva Protocol I, Article 4, it can be determined that “colonial” occupations are “standard” military occupations and should be examined in the same way.
11Fourth Geneva Convention Relative To The Protection Of Civilians In Time Of War, August 12, 1949, Article 6.
12See e.g. A47, Fourth Convention, which prohibits denial of Convention rights to citizens of occupied territory by annexation.
13Quaye, C, “Liberation Struggles In International Law”, Temple, 1991, p.13
14Charter of the United Nations, A2(4).
15Protocol I To The Geneva Conventions For The Protection Of The Victims Of International Armed Conflict, 1977, Article 1(4)
16U.N. Declaration On The Granting Of Independence To Colonial Countries And Peoples, Resolution 1514, 15.UN GAOR Supp.(16) at 66, UN Doc A/4684 (1960), Para 6
17States that grew naturally out of cultural borders or the like do not tend to have ruler-straight borders. Colonial entities frequently do.
18A nation state being a state strongly or wholly identified with the self-determination of one people, this is the closest approach statehood holds to a concept of external self-determination.
19See for instance the insistence of Britain that self-determination does not mean secession, quoted in Cassese, A, Self-Determination of Peoples, C.U.P, 1995, p.124
20Oloka-Onyango, J, “Heretical Reflections on the Right to Self-Determination”, 15.Am.U.Int’l. L. Rev 151 (1999), p. 155
21The recent creation of the Scottish Parliament in the UK is an example of this. Nobody claims that the autonomous powers granted to Scotland mean it is no longer part of Britain.
22In the non-technical sense of the term. A people seeking to assert self-determination are unlikely to form the majority of the State whose territory they occupy.
23Kimminich describes this as a “federal right of self-determination”. Kimminich, O, “A Federal Right of Self-Determination?” in Tomuschat, C, Modern Law of Self-Determination, Martinus Nijhoff, 1993, p.84
24Kymlika, W, “Is federalism a viable alternative to secession” in Lehning, P, Theories of Secession, Routledge, 1998, p. 130.
26Report Presented To The Council Of The League Of Nations By The Commission Of Rapporteurs, Council Doc B7/21/68/106, 16 April 1921, in Cassese, A, “Self-Determination Of Peoples”
27Witness the pretence that the former Yugoslav states arose by the dissolution of Yugoslavia, not by secession, despite the fact that the Yugoslav Federal Republic still exists as a state in reduced form - Badinter Commission, “Conference on Yugoslavia Arbitration Commission: Opinion Number 1” 31. I.L.M. 1497 (1992)
28The famous Declaration on the Granting of Independence to Colonial Countries and Peoples, Res.1514, is merely one of a long lineage.
30Declaration on Principles of International Law Concerning Friendly Relations And Co-Operation Among States In Accordance With The Charter Of The United Nations, UNGA Res. 2625 (XXV), substantive provisions.
31Badinter Commission, “Conference on Yugoslavia Arbitration Commission: Opinions on Questions Arising From The Dissolution Of Yugoslavia”, 31. I.L.M. 1488 (1992)+
32European Community Declaration On Yugoslavia And On The Guidelines For The Recognition Of New States, 31. I.L.M. 1485 (1992)
34Grant, T. “A Panel of Experts for Chechnya”, 40 Va.J.Int’l L 119 (1999), p.124
35Grant, T, “A Panel of Experts for Chechnya”, above n.33, p.121
36Solzhenitsyn, A. The Gulag Archipelago III, Collins&Harvill, 1978, p.402
37Grant, T, n13 above, p.152
38While the Declaration On Friendly Relations may allow action contrary to territorial integrity where a state does not conduct itself in accordance with self-determination and equal rights, Article 2(4) of the Charter is more stark in prohibiting external action aimed at separating part of a State’s territory. Further justification is needed.
39Oloka-Onyango, J, “Heretical Reflections on the Right to Self-Determination”, 15.Am.U.Int’l. L. Rev 151 (1999), p. 155
40e.g. Keenan, B. Speech to republican movement, 26/2/2001, reported BBC Online 27/2/2001.
41Grant, T, “A Panel of Experts For Chechnya”, p.133.
42Kasavyurt Agreement, 1996. <http://www.amina.com/article/agreemnt_ichkrus.html>. Note that this is an unofficial translation, the present writer having been unable to locate a more official version.
43 Grant, T, “A Panel of Experts for Chechnya”, p. 134
44Kasavyurt Agreement, above n41.
45 Kasavyurt Agreement, above n.38, para.3
46UN Charter, Article 2(4).
47UN Charter, Article 1(2)
49Declaration on Principles of International Law Concerning Friendly Relations And Co-Operation Among States, above n. 19
50see e.g. Ramsbotham, T, and Woodhouse, O, Humanitarian Intervention in Contemporary Conflict, Polity, 1996, p.54.
51Declaration on Friendly Relations, above n.19
52e.g. Security Council Resolution 733 (1992), of 23 Jan 1992, authorising intervention in Somalia.
53Note that there is a tendency for humanitarian interventions, such as India/Bangladesh, to more resemble a fait accompli than any legal process. Secession tends to be an extralegal process.