The modern world is tangled in contradictions, including between the right to free self-determination of peoples and the principle of the inviolability of state borders. Everything in it is contradictory and full of seemingly unforeseen complications. There are wars, governments are overthrown, new states arise. For this reason, break international standards, generally accepted obligations.
It should be noted that it is impossible to consider the topic chosen by me purely in the legal aspect, since the relations of states, first of all, are built on political guarantees and obligations. Therefore, consideration of the legal side of the problem is impossible without a political component. International law is experiencing a severe crisis since the collapse of the USSR. The UN itself cannot achieve the implementation of its resolutions and decisions. One of the reasons for this is the lack of an institutional mechanism ensuring the implementation of decisions made by this organization. The policy of double standards and lobbying US interests through the UN practically put an end to this method of regulating interstate relations. The greatest crisis of the last 20 years is experiencing the right of peoples to self-determination.
Without going into history, it can be noted that the first realization of the right of peoples to self-determination occurred in 1792, when, as a result of a plebiscite, the papal possessions in France Avignon and Vincennes became part of France, because the French population voted for it. In the future, this method was used more than once in world history as a mechanism for creating new states: the unification of Italy and Germany, the Anschluss of Austria, the dissolution of the union of Sweden and Norway, etc. The real right of peoples to self-determination embodied the Soviet power in the Declaration of the Rights of the Peoples of Russia. The declaration directly stated the introduction of the “right of the peoples of Russia to free self-determination, including separation and formation of an independent state”, along with “equality and sovereignty of the peoples of Russia, the abolition of all national and religious privileges and restrictions”, as well as the “free development of national minorities and ethnic groups inhabiting the territory of Russia ". Later, some of these provisions were also duplicated in the Constitution of 1918.
History of the legal aspect
The development of this right at the present stage of history originates from the UN Charter 1945 of the year, where in the 2 clause of the 1 article the principle of self-determination was enshrined: "Develop friendly relations among nations based on respect for the principle of equality and self-determination of peoples ...". But the consolidation of the principle is not the receipt of the right itself, since the first is the underlying conjuncture, which has a verbal agreement, and no explanation is put into the concept itself.
A huge number of attempts to regulate this aspect of legal relations at the intergovernmental level were taken in the form of normative legal acts adopted both by the UN and at the interstate level.
The very right to self-determination of peoples is enshrined at the 403 plenary meeting of the UN General Assembly 16 December 1952. Resolution No. 637 “The Right of Peoples to Self-Determination” reads: “The member states of the Organization recognized and encouraged the exercise of the right to self-determination of peoples ... and the will of the people should be revealed through a plebiscite or other recognized democratic methods ...” This resolution carries inaccurate language without giving an answer to the question how should the exercise of the right itself take place after the plebiscite: within the state or even to the separation?
An analysis of subsequent legal acts showed that they mainly subsequently consolidated the rights of peoples who exercised their right to self-determination.
For example, the International Covenant on Civil and Political Rights, adopted by resolution 2020 A of the XXI General Assembly of the United Nations on December 16 of 1966, establishes in part 2 article 1 of this legal act that “All peoples ... can freely dispose of their natural wealth and resources without damage to any obligations ... In no case can a nation be deprived of its means of subsistence. ”
A full explanation of the right of peoples to self-determination is contained in the Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation between States in accordance with the Charter of the United Nations, adopted by the UN General Assembly from October 24 1970. In particular, this declaration decides:
1. All peoples have the right to freely determine their political status without external interference and to pursue their economic, social and cultural development;
2. Every state must respect this right in accordance with the provisions of the Statutes;
3. Each state is obliged to promote, through joint and individual actions, the implementation of the principle of equal rights and self-determination of peoples;
4: The creation of a sovereign and independent state, the free accession to or association with an independent state, or the establishment of any other political status freely determined by the people, are forms of the exercise by this people of the right to self-determination;
5. Each state is obliged to refrain from any violent actions that deprive the people referred to above in the statement of this principle, their right to self-determination, freedom and independence;
6: Nothing in the above paragraphs should be interpreted as authorizing or encouraging any actions that would lead to the dismemberment or partial or complete violation of the territorial integrity or political unity of sovereign and independent states that observe the principle of equality and self-determination of peoples.
On paper, as they say, easier. The right of nations to self-determination is one of the most sensitive principles in international law. As regards, in fact, practice, history shows that there are no generally accepted international norms regarding the realization of the right of nations to self-determination — everything is solved depending on the outcome of political and armed struggle.
There is, however, a question. And what is meant by the concept of "people who have the right to self-determination"? Who has this right? Proceeding from the letter and spirit of the UN Charter, as well as relying on the interpretation of lawyers, this definition means “territorial community”. But after all there can be a territorial community of the area, the settlement, the village, the street? They, that also has the right to "create a sovereign and independent state"? Not.
December 26 The Montevideo Convention on the Rights and Responsibilities of States was signed at the Seventh International Conference of American States, which established the characteristics of a state as a subject of international law, which is:
- Resident population;
- certain territory;
- ability to enter into relations with other states.
Also, this convention establishes that "The political existence of a state does not depend on recognition by other states." It turns out that any state can be formed on the territory of another state, which will violate the principle of the territorial integrity of the latter.
The principle of the inviolability of borders
Now they often talk about the contradiction between the self-determination of nations and the principle of the inviolability of borders. The second principle is completely speculative - where and when in the world in the history of mankind was the inviolability of borders? Borders have changed and will change as long as there are states. The collapse of the colonial system, the collapse of the USSR, Yugoslavia, Czechoslovakia, the unification of Germany - all this happened before our eyes.
But let's now consider how the principle of the inviolability of borders has been consolidated over the past 60 years.
The principle of the inviolability of state borders means the duty of states to respect the boundaries of each foreign state established in accordance with international law. The principle of the inviolability of state borders is one of the most important foundations of state security.
The first regulatory legal act that laid the foundation for the principle of the inviolability of state borders is the Moscow Treaty of 1970 of the Year of Germany and the USSR, which stipulated in the article 3 that “They undertake to strictly observe the territorial integrity of all states in Europe within their present borders ... ". This treaty marked the beginning of the detente relations in Europe in the field of state-territorial integrity of countries.
The Helsinki Act of August 1 1975 states that "the participating States consider both the inviolable all borders of each other and the borders of all states in Europe, and therefore they will refrain now and in the future from any encroachment on these borders." Also, “The participating States will respect the territorial integrity of each of the participating States.”
The principle of the inviolability of borders and the principle of the inviolability of borders differ in their geographic scope of action. The principle of the inviolability of borders according to the Final Act of 1975 of the year, is valid only in the relations of the States parties to this act, i.e. European states, as well as the USA and Canada. The principle of the inviolability of borders has a wider scope, since it is a principle of general international law and applies to all continents, regardless of whether there are special agreements on this issue.
Implementation in practice
As for the practice of applying the right of peoples to self-determination, it is worth mentioning here that this is a purely political factor. The same situations are interpreted differently, taking into account the interests of any parties. In these moments, international law goes to the background and begins to act "lex gladium". Such a policy of double standards is used by the EU and the USA.
At the beginning of the conflicts in the territory of the former Yugoslavia, both Europe and the USA were in favor of preserving the integrity of the federation. It is indicative that in 1991, the Prime Minister of Luxembourg, who visited Yugoslavia as part of the European Community mission, advised the Slovenes to abandon the desire to create their own state, because from his point of view, this was inappropriate. But afterwards, the position of Europe and the United States changed dramatically, appealing to this "the right of peoples to self-determination."
Noteworthy is the policy of double standards. Yugoslavia on a par with all European countries signed the Helsinki Act, which enshrined the inviolability of borders. In fact, it turned out that the EU simply simply forgot about these agreements, because they were not profitable for them at this stage of the political game. At the same time, during the Cyprus crisis and the proclamation of the Republic of Northern Cyprus, the European Community called these actions not legitimate and appealed, as it were, to the Helsinki Accords.
But external invasions, even for humanitarian purposes, violate the democratic right to self-determination, national sovereignty and constitute unacceptable interference in the internal affairs of other states. The experience of the former Czechoslovakia and the former Yugoslavia shows that the granting of the right to self-determination to national minorities may lead to the disintegration of the country.
In the winter of 2008, the Kosovo Parliament unilaterally proclaimed independence. The Serbian Constitution does not give such powers to the parliament of the province, and Belgrade believes that "Kosovo is still part of Serbia as an autonomous province of Kosovo and Metohija." At the same time, the preamble of the UN Security Council Resolution 1244 states that "reaffirming the commitment of all member states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia and other states in the region, expressed in the Helsinki Final Act and 2 annex ..." At the request of Serbia on the legality of Kosovo’s independence to the international court, the latter ruled that “the International Court of Justice, referring in its conclusion to the international legal practice established in previous periods, came to water that international law imposes no licensing, but at the same time also no restrictive regulations relating to matters of secession or separation. In this sense, a unilateral declaration of independence does not fall under international legal norms, but is in fact only a given circumstance. ” As a result - as of 28 on April 2014, the number of UN member states that recognized Kosovo’s independence is 108.
It is impossible not to mention the Crimean precedent.
Speaking about the Ukrainian problem, Russian President Vladimir Putin emphasizes the right of the population of Crimea to self-determination: "Only citizens living in a particular territory can determine their future." Russian Foreign Ministry spokesman Alexander Lukashevich adds: “The United States does not have and cannot have a moral right to moralizing about the observance of international norms and respect for the sovereignty of other countries. How to deal with the bombings of the former Yugoslavia or the invasion of Iraq with a false account? ”
As mentioned above, the right of peoples to self-determination is exercised through a plebiscite occurring on the territory, striving for independence. The Autonomous Republic of Crimea declared its independence on March 17 of 2014, on the basis of a Crimean referendum, in which 96% of the population spoke in favor of joining Russia. Ukraine did not recognize the referendum, referring to the principle of inviolability of borders, which was enshrined in 1970 by a resolution of the UN General Assembly.
But let's pay attention to the Ukrainian legislation. Article 9 of the Constitution of Ukraine states that "The existing international treaties, the consent to be bound by the Verkhovna Rada of Ukraine, are part of the national legislation of Ukraine."
All the above documents of international law relating to the self-determination of peoples, the Verkhovna Rada ratified, that is, became part of the Ukrainian legislation, the laws of Ukraine. And the laws must be fulfilled.
Constitutions of most states, international law, define the referendum as the most important tool of direct democracy, as the direct law-making of the people. The Constitution of Ukraine (Article 69) states: "The popular will is carried out through elections, referendum and other forms of direct democracy."
The decision taken at the referendum, as the highest and most direct expression of the power of the people, is mandatory in most states and does not need additional approval. Moreover, this decision is valid throughout the territory where the referendum was held.
Today, many hold a parallel of Kosovo - Crimea. It seems to me that the situation with the Crimea is more like events in the Saarland, in the very center of Europe.
After World War II, the Saar was occupied by the Allies and became a French protectorate. The West (United States, United Kingdom) made political efforts to finally incorporate the Saar, following Alsace and Lorraine, into France. However, the inhabitants of this small territory sought to reunite with the Federal Republic of Germany. And they obtained such a right in a referendum (January 1957), which resulted in withdrawal from the subordination of France and an appeal to the German authorities with the request to include the territory. Thus, the Saar became the tenth (for that time) federal land of the Federal Republic of Germany.
I also recall the Budapest Memorandum 5 of December 1994 of the year concluded between Ukraine, the United States, Russia and the United Kingdom. One of its points proclaimed “to respect the independence, sovereignty and existing borders of Ukraine”. It is worth noting that the current “government” in Kiev, which came to power as a result of an anti-constitutional coup, with its policy, primarily with respect to national minorities, essentially itself blew up the unity of Ukraine and literally pushed the whole region out of its composition, in which Russia’s fault not.
It is important to understand that Western countries consider a number of provisions, for example, the 1975 Helsinki Final Act, in terms of the principle of inviolability of borders, not as a legally binding “solid” source of law, but as a political agreement that can be waived. Therefore, the position of the EU and the United States is extremely very clear: what is profitable for them will be defended. As Theodore Roosevelt said: "Although he is a son of a bitch, he is our son of a bitch." The principles of international law in times of escalation of the conflict are forgotten, first and foremost, economic and geopolitical interests become. Taking into account the plans of NATO to surround Russia and the ideas of the United States to create a European missile defense system, the meaning is clear not to recognize the plebiscite of the Crimean precedent, since this is not part of the plans of the Euro-Atlantic community. Therefore, there is no wonder why George Bush allowed himself such disregard for the norms of international law.
These examples very clearly show that there are simply no universally accepted international norms regarding the realization of the right of nations to self-determination, and everything is decided depending on the outcome of political and armed struggle. And this is what the peoples of Crimea, Ukraine and all of us fraternal, need to remember.