'When I started queuing in the morning I intended to vote against secession, but when I ticked the ballot paper I chose independence'. The reaction of a lady in Barcelona to Madrid's heavy handed tactics, including the police brutality on the day of the referendum in Catalonia.
The 25th of September referendum in Iraqi Kurdistan and that of the 1st of October in Spanish Catalonia are drawing attention anew to issues of self-determination and secession, issues that became topical in the aftermath of the collapse of the Soviet Union and Yugoslavia. Motives behind independence movements vary. For many participants they are mainly psychological. As most individuals value their independence, so do groups. However, often it is the leaders, hoping to gain lucrative and prestigious posts in a newly-born state, that are more pro-independence than the people following them. In cases when specific minorities are discriminated against, secession may indeed benefit the whole population, though as the cases of Eritrea and South Sudan attest, oftentimes a promised paradise turns out to be hell. Oppression by those who speak the same language or profess the same religion as the oppressed is not always milder than that of those who differ in those respects.
Before the 1990s most self-determination claims, understood in terms of acquiring independent statehood, were considered and dealt with in the context of decolonialisation processes. In the 1990s, however, they acquired a new momentum and meaning. Since then a lot has been said and written on these matters, but we still have precious few certainties and a lot of unknowns and misinterpretations. The certainties are the following: the right to self-determination and secession are two different, though interrelated, matters. International law, confirming the right of all peoples to self-determination, does not grant anybody (outside the colonial context) the right to independent statehood. At the same time, it does not prohibit it either. These are examples of the few legal certanties. On the political side of things, one certainty is that the greater the reasons to break away from an existing state (political, economic, humanitarian or psychological), the more difficult it usually is. Accordingly, the easier it may seem, generally less urgent are also the reasons for which to seek independence.
Uncertainties start as early as from the definition of the term ’peoples’. Who are peoples and who are minorities? For Zviad Gamsakhurdia, for example, the Georgians, being an ancient nation , had almost the inborn right to break away from the Soviet Union, while Ossetians, Abkhazians and other ethnicities living inside Georgia, were free to go while leaving behind the territories where they had lived ‘only’ for centuries. Today we know where the policies of leaders such as Gamsakhurdia and Saakashvili led this proud and ancient nation. Furthermore, the right to self-determination is balanced by the international law requirement to respect the territorial integrity of states. So, the 1970 UN General Assembly Declaration [2625 (XXV)], explaining the right of peoples to self-determination, reiterates that nothing in this right should be construed as authorising or encouraging the dismemberment of sovereign states. Moreover, it provides that ‘every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country’. Notwithstanding all that, the world community, led by the United States, in the 1990s chose political expediency over international law, as the latter had become an impediment on the path of constructing an America-centred world.
The territorial integrity of those states that did not follow the lines drawn by Washington was considered less sacrosanct than that of those who were obedient. As some experts, including myself, warned at that time, such double standards in the application of international law would come to haunt those who resort to them sooner rather than later .
The case of Kosovo, which has often been portrayed as a model of successful humanitarian action, was one of the first, if not the very first, significant steps on the path leading to the triumph of geopolitics over international law. Unprincipled references to the principles of self-determination and respect for territorial integrity have continued and intensified ever since. We see that the world community is doing everything to hold together Bosnia-Herzegovina, though both the Croats and especially the Serbs want to leave an entity that is kept together largely by external efforts. At the same time, most members-states of the European Union have recognised Kosovo’s secession from Serbia. Even if one were to accept, following Richard Goldstone, that NATO’s use of force against Serbia over Kosovo was ‘illegal but legitimate’, this does not explain or justify the ‘manipulative administration’ of Kosovo by the UN and EU, which created conditions for the province’s secession and subsequent recognition of its unilaterally declared independence. The Advisory Opinion delivered by the International Court of Justice on the 22nd of July 2010, in stating that Kosovo’s declaration of independence ‘did not violate general international law’ (also quoted by President Putin in his speech to both Houses of the Russian Parliament on the 18th of March 2014 in justification of Russia’s policies in the Crimea), though formally correct, was anodyne in content, and potentially explosive in its consequences. The declaration of independence of Kosovo indeed did not breach international law, but the fact that it became possible only as a result of NATO’s bombardment of Serbia, in flagrant abuse of international law, adds credence to it being of doubtful legitimacy. As to the recognition of its declared independence by third states, under international law that is a clear act of interference in Serbia’s internal affairs.
In international law, the Roman legal maxim ex injuria jus non oritur (unjust acts cannot create law) is not as absolute as it is in most national legal systems. Therefore, the unlawful recognition of Kosovo by a number of states, as well as the recognition of South Ossetia and Abkhazia by Russia, are both illustrations of another Roman maxim – ex factis jus oritur (the law arises from the facts). In any case, such practices have undermined existing norms of international law, including such fundamental principles as non-interference in internal affairs and even the non-use of force. Moreover, even if we were to argue that, as Serbia in 1999 under President Milosevic was not a democracy, and therefore the Kosovars could not realise their right to self-determination within the confines of Serbia, this was certainly not the case in 2008 when the Kosovars declared their independence. In February of that year, just two days before the Assembly of Kosovo adopted their independence declaration, in Serbia, Boris Tadić, who had been democratically re-elected as President, was sworn in. However, as Serbia had historically led a rather independent foreign policy and had long been allied and close to Russia, a weaker and smaller Serbia was to the benefit of dominant Western powers.
As an illustration of the point made earlier that while it is easier to secede from liberal democracies it usually does make less sense to do so, let us compare the two recent secessionist situations – that of Scotland’s attempt to break away from the United Kingdom and the re-unification (or annexation, as it is believed in the West) of the Crimea with Russia, as well as the armed conflict in Eastern Ukraine. In the United Kingdom, Westminster was very unhappy, to say the least, about the Scottish referendum of the 18th of September 2014. Shortly before the independence poll, the coalition government of Conservatives and Liberal-Democrats in London, as well as the opposition Labour Party, had become so worried lest Scotland secede that they bent over backwards to discourage the Scots from doing so. The leaders of all the three parties descended upon Scotland with carrots and sticks. The sticks were mostly in the form of economic and financial threats and warnings, while the carrots were in the form of promised concessions. However, what is important in terms of our comparison is that neither the Scottish were prepared to break away resorting to the means and methods used by the Braveheart – the thirteenth century Scottish hero William Wallace and immortalised by Mel Gibson in the eponymous film. Nor could anybody imagine London going to bomb the Scots into submission, notwithstanding how much the British authorities would have disliked the Scottish strive for independence. In Ukraine, on the contrary, both the Government in Kiev and separatist in Eastern Ukraine (the majority of those who rebelled against Kiev weren’t initially for independence or for joining Russia but were for the decentralisation of Ukraine; they became separatists and so-called pro-Russian when they were dubbed as such and military force had been used against them) were ready to use extreme violence to obtain their aims. Although in strict legal terms, the threatening presence of Russian military in the Crimea during the March 2014 events was an act of interference in internal affairs of Ukraine (the presence of so called ‘little green’ men, or as they today are affectionately called in the Crimea, ‘good-mannered’ men), it prevented a foreseeable bloodshed and therefore may have been considered as a humanitarian action. The conflict in the Crimea would have been predictably bloodier than the continuing violence in the Eastern Ukraine. The referendum of 16 March 2014, where the population of the Crimea overwhelmingly voted for the re-unification with Russia, as well as the 300-year history of the peninsular, serve as attenuating circumstances for breaches of international law by Russia in the Crimean case. And like in practically all cases related to self-determination, be it in its favour or against it, geopolitics played an important role in the case of the Crimea too. As President Putin of Russia said on18 March 2014, ‘You know, I cannot imagine that we will visit NATO marines based in Sebastopol. Though most of them are good guys, we prefer to invite them to visit us in Sebastopol’. This statement, light-hearted in form, encompasses a profound geo-political reasoning.
Of course, exceptions are possible, but in secessionist conflicts it is rarely so that only one side is guilty and the other side is entirely an innocent victim. Usually both (or all, if there are more than two) sides match and deserve each other. It was so in Kosovo where both the Serbian authorities and the KLA (Kosovo Liberation Army), which had been on the terrorist list of White House before they became handy to be used against Serbia, resorted to violence on equal scale. The conflict in Ukraine confirms this observation. French historian Emmanuel Todd writes: ‘The emergence of extreme right movements with Nazi colourings in the Ukrainian provinces of Galicia, Volhynia and Ruthenia would be surprising only for those who believe that liberation releases only the best in the people. However, for those who have observed the emergence of the Basque, the Irish, the Flemish or the Quebec nationalisms, this should not have been a surprise. We have to understand that Polish or Western Ukrainian Russophobia, even if it expresses itself in terms of the past, is a manifestation of the present crisis that has little to do with Russia’s power’.  Ukraine is a country which, according to Robert Cooper’s classification , shares quite a few characteristics of a pre-modern state that is aspiring to become a modern one. This makes its attempt to join the post-modern European world somewhat schizophrenic. For example, the Ukrainian authorities are responding to centrifugal tendencies in a way that most modern or pre-modern states usually do – by resorting to military force. Instead of guiding this fractured society to choose the ways of compromise and de-escalation (though the word ‘de-escalation’ has often been hypocritically and/or naively misplaced), the main foreign actors have put their strategic and economic interests above the wellbeing of the Ukrainians. The immensity of internal problems of this torn nation combined with the unfavourable external environment has made the building of Ukrainian nationhood an especially arduous task.
There are different reactions to independence strives even within so-called liberal-democratic camp. While Canadian and British authorities, notwithstanding their discontent, did not resort to strong-arm strategies to prevent respectively Quebec and Scotland carrying out independence referenda, Spain’s reaction was not only hostile but also violent. Arrests of Catalan politicians, mobilisation of the Civil Guard (La Guardia Civil), the confiscation of ballot papers not only reveal the deficiencies of Spanish democracy; they may be even counter-productive to Spain’s territorial integrity, especially in the longer term. The Catalans may indeed in future have more reasons to seek independence from Spain than they had before these repressive measures were taken against them. The reaction of Spanish authorities to the desire of the Catalans to hold a referendum on their future was more like one would have expected from a dictatorship than from a liberal democracy. The European leaders as well as Donald Trump have all expressed their unwavering support to the Government of Mariano Rajoy. Territorial integrity of a member-state of the European Union and NATO certainly trumps the ‘naïve’ dreams of the Catalans.
However, there is a different, much more civilised and therefore not attainable by all, approach possible. The Supreme Court of Canada in its 1998 Judgement on the Secession of Quebec put the bar of compromises necessary for resolution of secessionist problems very high. It found that a ‘clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize’. At the same time, the Court also stated that ‘Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation’. Only negotiations, compromises and mutual concessions would be the way to proceed in democracies. This would be a civilised divorce process that at the end of the day may even save the marriage notwithstanding all the earlier misunderstandings and mutual resentments.
There is a saying among various nations that goes something like that: tell me who are your friends and I will tell who you are. In the case of nations, one may say: tell me who your neighbours are and I will tell you what are your problems. The Kurds have dreamt for long about independent statehood. They were promised it in the Treaty of Sèvres of 1920 by powers victorious in the Great War. However, they have had neighbours all around who have been afraid of that as the devil is of incense. Today, the Kurds in the Middle East are parts of four states – Iraq, Iran, Syria and Turkey. The Iraqi Kurds, due to the vagaries of the 1990s, among which the destruction of Iraq by the American led coalition played a crucial role, have already for a quarter of century enjoyed de facto independence. 25 September they held the referendum where almost 93% of those who cast their ballot papers voted for an independent Kurdistan. The reaction has been the threatening hostility of Baghdad, neighbouring Iran and Turkey, stern warnings from so-called great powers and even from the United Nations. It seems that the only ally of the Iraqi Kurds is Israel. Washington, that supported Kurds against Saddam Hussein and has later been allied with them in the fight against ISIS, has been against the Kurdish independence. Moscow – a traditional ally of the Kurds – expressing its understanding of the strive of this long-suffering nation for independence, also emphasises the sanctity of territorial integrity of existing states. In such serious matters geopolitics trumps principles. Even Israel is favourable for the Kurdish cause not for altruistic or principled reasons but because it would weaken its traditional rivals in the Middle East. Usually independence is achieved either when an independence strive coincides with interests of some global or at least important regional players or when nobody really cares about you. The reactions to recent referenda in the Iraqi Kurdistan and in the Spanish Catalonia only confirm that its Realpolitik that really matters.
 The ICJ, Reports of Judgments, Advisory Opinions and Orders: Accordance with international law of the unilateral declaration of independence in respect of Kosovo advisory opinion of 22 July 2010, para. 84.
 Statement of the President of the Russian Federation, 18 March 2014 (official site of the President of Russia, http://eng.kremlin.ru/).