Escaping the

Self-determination Trap
 Escaping the
Self-determination Trap

By

Marc Weller

LEIDEN • BOSTON
2008
Library of Congress Cataloging-in-Publication Data

A C.I.P. Catalogue record for this book is available from the Library of
Congress.

ISBN: 978 90 04 17488 7

© Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands.

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To Antje and Pop, for their patience, love and dedication.
Table of Contents

Preface 9
Acknowledgements 11

I. Introduction 13
II. A Concept with Multiple Meanings 23
III. The Classical Right to Self-determination 30
IV. Constitutional Self-determination 46
V. Remedial Self-determination 59
VI. Effective Entities 70
VII. Trading Self-determination for Autonomy
or Enhanced Self-governance 78
VIII. Regionalisation, Federalisation, or Union with
Confirmation of Territorial Unity 91
IX. Deferring a Substantive Settlement while
Agreeing to a Settlement Mechanism 113
X. Balancing Self-determination Claims 119
XI. Conditional Self-determination 123
XII. Agreeing on Self-determination but
Deferring Implementation 126
XIII. Establishing a De Facto State through
an International Process 136
XIV. Supervised Independence 139
XV. Conclusion: New Approaches to
Self-determination Settlements 144
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 Escaping the Self-determination Trap
Annex I: Levels of Legal Privileges of Entities 158
Annex II: Settlements and Steps towards Settlement 160

Bibliography 171

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Preface

There is new movement in the discussion about self-determination

and statehood. The contested declaration of independence by
Kosovo will soon be subjected to review by the International Court
of Justice. Russia’s recognition of the purported independence of
Abkhasia and South Ossetia has caused additional controversy.
These developments may well put an end to the attempt by
governments to keep in place the highly restricted doctrine of self-
determination that has only been made available in the colonial
context.
This monograph argues that classical self-determination,
narrowly conceived in the colonial context, cannot contribute to the
resolution of the presently ongoing self-determination conflicts
around the word. The reason is simple: there are no colonies of
significance left. However, if international law does not address the
actual causes of armed contestation about the identity of states, it is
likely to remain irrelevant in this area. As illustrated by the crisis
involving Kosovo, groups struggling for statehood are unlikely to be
impressed by the argument that their immediate concerns cannot be
addressed by the international legal order, due to larger
considerations of stability in the international system. The organised
international community resisted statehood in that instance for
exactly 20 years, from the point of the unilateral modification of
Kosovo’s status within the then Socialist Federal Republic of
Yugoslavia (SFRY) in 1988 to the declaration of independence in
February 2008. In the end, however, statehood nevertheless resulted.
In the meantime, the local population had undergone tremendous
suffering. Moreover, the North Atlantic Treaty Organisation
(NATO) found itself involved in its first major armed conflict – a
conflict fought in Europe itself. This demonstrated that the
application of traditional doctrines and concepts does not in fact
generate the peace and stability it is meant to secure.
The most recent developments concerning statehood have
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 Escaping the Self-determination Trap
already led to a revival of discussions about alternative concepts,
such as remedial self-determination. While this debate will
undoubtedly contribute to the development of the law in this area,
this study also points to a less visible, but perhaps at least equally as
important, development. This concerns the actual practice of
addressing self-determination disputes that has arisen over the past
decade or two.
Since the conclusion of the Cold War, a significant number of
previously irresolvable self-determination conflicts have been
terminated through agreement. Some of these expressly apply the
concept of self-determination outside of the colonial context.
Others challenge previous insistence on the application of the uti
possidetis doctrine in the identification of the unit to be addressed.
Still other types of agreement seek to trade a claim to
independence for enhanced governance within existing states. The
following chapters review this practice, among other developments,
and consider its impact on the previously mono-dimensional view
of self-determination.

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Acknowledgements

This short monograph is the result of long-standing support granted

to its author by the Carnegie Corporation of New York, and should
be regarded as a further step in the work generated under this helpful
framework. Earlier activities have included significant collective
works undertaken by a global team of experts in the field from
various disciplines.1
Some of the issues addressed in this monograph have been
considered by the author elsewhere.2 However, the study brings two
aspects of this work together for the first time: the analysis
of classical self-determination discourse as fundamentally
disenfranchising for populations seeking enfranchisement through
it, and the study of novel approaches to the settlement of self-
determination conflicts that break away from that restrictive
paradigm. Moreover, an initial treatment of the issue of remedial
self-determination has been attempted – an issue which will need
to be developed further in light of advancing practice.
This work has benefited from the assistance of a number of
individuals. Ms Katherine Nobbs offered, as always, unwavering
support for the project and supervised the publications process. Ms
Lindy Melman and Ms Bea Timmer were kind enough to support
the publication of this monograph with their usual enthusiasm.

1
M. Weller, ed., The Rights of Minorities, Oxford: Oxford University Press (2005); M.
Weller and S. Wolff, eds., Autonomy, Self-governance and Conflict Regulation, London:
Routledge (2005); M. Weller, ed., Universal Minority Rights, Oxford: Oxford University
Press (2007); M. Weller and B. Metzger, Settling Self-determination Disputes, Dordrecht:
Martinus Nijhoff (2008); M. Weller and S. Wolff, eds., Institutions for the Management of
Ethno-political Conflict in Central and Eastern Europe, Strasbourg: Council of Europe Press
(2008); M. Weller, ed., Asymmetric Autonomy as a Tool of Ethno-political Conflict Settlement,
Philadelphia: University of Pennsylvania Press (2009).
2
M. Weller, “The Self-determination Trap”, 4 Ethnopolitics (2005), 1–42; id., “Why the
Legal Rules on Self-determination Do Not Resolve Self-determination Disputes”, in
Weller and Metzger, Settling Self-determination Conflicts, supra n. 1, 17–47; id., “Settling Self-
determination Conflicts: Recent Developments”, 20 European Journal of International Law 1
(forthcoming).

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 Escaping the Self-determination Trap
Production was very patiently and efficiently supervised by Ms
Ellen Matthews of Cambridge University Press. Assistance in
collecting the relevant materials was provided by Ms Janina Dill,
Ms Kristine Gasparyan, Mr Stephen Fox, and Mr William
McKinney. Mr Ian Ralby joined the team at a late stage, but made
up for it by rendering invaluable assistance in finalising the script
under great pressure of time during the final weeks.

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