South Ossetia and “the Will of the People”

by Chris Borgen

With the announcement of a six-point plan for a Georgian cease-fire, attention is shifting to how to construct a durable and equitable peace in the Caucasus. As the parties settle-in for some sort of negotiation, I find it interesting how the ideas about international law and norms are used in the statements of the parties.  Here are a couple of examples from a CNN report from this evening:

Sarkozy said he and Medvedev agreed Georgia is an independent country and Russia has no intention of annexing it. But Medvedev also said “sovereignty is based on the will of the people” and “territorial integrity can be demonstrated by the actual facts on the ground.”

Medvedev said, “I think that these are some very good principles in order to resolve the problem which has arisen from this very dramatic situation, and these principles can be used by Georgia and South Ossetia.”

The seemingly innocuous phrase “sovereignty is based on the will of the people” actually has some quite striking implications.  (I will leave aside the territorial integrity comment…)

First of all, the key question is “which people?”  This has been at the heart of debates over what it means for a “people” to have a right of self-determination. My guess is that Medvedev believes that “people” refers to “South Ossetians” and that Saakashvili would say that it refers to “all the people of Georgia.”

Unfortunately, international law has had a pretty hard time defining what a “people” is for the purposes of self-determination. As the Canadian Supreme Court put it (with admirable understatement) in the Secession of Quebec opinion, the meaning of “peoples” is “somewhat uncertain.” At various points in international legal history, the term “people” has been used to signify citizens of a state, the inhabitants in a specific territory being decolonized by a foreign power, or an ethnic group.

A group of experts convened by the National Assembly of Quebec to provide advice concerning the legal issues implicated by a hypothetical secession of Quebec explained (in Section 3.07) that the right to self-determination is context-dependent:

… the right to self-determination is context-dependent in that it signifies, always and everywhere, that all peoples have the right to participate in the political, economic, social or cultural choices that concern them, though it very rarely gives rise to the right to independence…

Consequently, “peoples” means one thing when applied to decolonization (where it refers to the population of a colonial territory) but it is defined differently in other contexts (where, for example, it may mean the total population of s a state or an ethnographic group within a defined territory). As the right of self-determination is context-dependent, different types of peoples lead to different applications of the right to self-determination. The Quebec Commission wrote that:

the very fact that the right to self-determination, in the sense of “independence”, has been recognized solely in “colonial” peoples is an indication that this right takes on or can take on different meanings for other categories of peoples.

So how would it apply here? For Medvedev’s implied result to be correct (that South Ossetians can choose to secede), two things would need to be true. 

First, there would need to be consensus that the South Ossetians meet some sort of recognized definition of “people.” 

Second, even if they are a people, one would have to agree that “external self-determination” or secession can be a remedy in other cases besides decolonization. Whether self-determination gives a remedy of secession outside the colonial context is, in the words of Malcolm Shaw, “the subject of much debate.” Even if the concept of a remedy of secession was adopted, at the very least the South Ossetians would need to show  they suffer extreme and persistent abuses by the government in Tbilisi and that there is no other option for resolving this crisis.

I will leave that assessment for another time. For now what I want to highlight is this. Medvedev applied a formulation (“sovereignty as the will of the people”) that implied a certain result (South Ossetains should be able to vote for their secession) and clothed it in quasi-legal language even though that result would actually overturn much-accepted international law or at least paper-over some sharp disagreements (see this for an example from another case). 

Of course all of this is simply using legalistic language for political ends. Nothing new here, but this shows us the distance that can exist between the role of law in international affairs and the rule of law in international relations.

http://opiniojuris.org/2008/08/12/south-ossetia-and-the-will-of-the-people/

4 Responses

  1. I was a little more concerned with “territorial integrity can be demonstrated by the actual facts on the ground.”

  2. M. Gross:

    I actually had a little bit on that but I though it made the post too unwieldy. But, since you asked….

    I am not completely clear what Medvedev meant by his territorial integrity comment. The most worrisome reading may be something like this:  if a state does not have territorial integrity as an actual fact, then it does not have it as a juridical right.

    That would take the legal principle of the respect of the territorial integrity of states and completely reverse its meaning. The current legal principle is that even if a state has lost effective control of a region, it still has a juridical right to it based on its formal borders.  In other words, as a legal matter there can be no change of borders based on an illegal use of force or without the uncoerced consent of the sovereign state.

    I hope that Medvedev did not mean something as inflammatory as saying that territorial integrity of a sovereign state can be set aside by the “fact on the ground” of invasion and conquest. Perhaps he will clarify that statement or let it drop by the wayside as ill-advised rhetoric. Perhaps not. We’ll see.

    Since there are often comments comparing how Russia is acting to how the U.S. acts, I would note that the U.S., even in its most “we flout traditional international law” moments like the invasion of Iraq, did not make the argument that Medvedev may be making here. I assume that is the case not because of some love of international law but because such a position has the possibility of being too destabilizing if adopted as a legal principle.   So, in the case of Iraq, we used the whole expanded notion of self-defense, which is also (in my view) destabilizing as a legal principle. But less so than this one would be. And we  tried to sidestep the issue in Kosovo by calling it a “unique case.”  Not that that persuaded anyone…

    In closing, I would also note that the U.S. has consistently upheld the territorial integrity of Russia in regards to the breakaway region of Chechnya, regardless as to the “facts on the ground…”. 

  3. First, let me say I think you’ve provided us, once again, with an excellent analytical introduction to the key issues.

    It seems I can’t get away from Allen Buchanan’s recent proposals, but here’s where a well articulated notion of “intrastate autonomy” in international law would present itself as a viable alternative to the use of legal rhetoric invoking self-determination and sovereignty based on the “will of the people” (with implications for secession) for, as Buchanan says, “Current international law…fails to provide coherent conceptual and institutional support for forms of self-determination short of full independence and for a principled way of ascertaining when more limited modes of self-determination are appropriate” [e.g., in the case of indigenous peoples]. As Buchanan argues, “a coherent, practical, and morally defensible international legal system would uncouple secession from other forms of autonomy and deny that recognition of a group’s right to autonomy within the state entitles it to opt for full independence if it chooses.” Buchanan proposes reticence with regard to (if not the avoidance of) the legal rhetoric of the right to autonomy and the right to self-determination while entertaining the desirability and viabillity of serving “diverse legitimate interests in autonomy…in different circumstances by a correspondingly broad range of intrastate autonomy regimes.” Recent events only confirm the deleterious consequences of our failures of political imagination and will on this front and the corresponding wisdom of Buchanan’s proposal.

  4. http://www.russiatoday.com/news/news/29067/video

    Medvedev is talking about ”concrete specific situation” regarding the territorial integrity of Georgia (you must watch the video, it’s the first response to the journalist’s question), of course repeating all the time that the ”will of the people” is most important. I didn’t manage to find it anywhere in the news reports, except Serbian ones (I mean the ”concrete specific situation part”).
    If you listen carefully, basically it’s the same ”unique case” argument USA and others are using for Kosovo. He is saying that Russia respects the territorial integrity of Georgia, but the specific circumstances i.e. the will of Ossetian people is such that Southern Ossetia will not remain the part of Georgia. That would be his response to second argument Chris made. And he is using it in a way strikingly similar to American rhetoric.
    For me, this is becoming totally absurd. Now we have two unique cases…

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