South Ossetia and “the Will of the People”

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.