Right to self-determination, sovereignty, Lisbon treaty

by Professor Dr  iur. et phil. Alfred de Zayas, Geneva School of Diplomacy

“Democracy entails the self-determination of peoples to decide about their status as independent, federal, associated social entity, it  means free choice of the form of government and societal order the people want to adopt for themselves.”

“The right to one’s homeland is not only the most important collective human right but creates the preconditions to the enjoyment of many individual human rights.”
Prof. Otto Kimminich, Das Recht auf die Heimat, 1989, S. 201

“There is a right to one’s homeland and it is a human right.”
Prof. Robert Redslob, Académie de Droit Internationale, The Hague, 1931

Ladies and Gentlemen,

Democracy means sovereignty of the people. For its fulfilment education and comprehensive information are required, truthful reporting and freedom of opinion and expression among other things. Sovereignty of the people is founded on history, culture, language, identity and the idea of one’s homeland. Its ways of expression are opinion polls, people’s initiatives, referendums and elections.

Democracy means free self-determination of the people

Democracy entails the self-determination of peoples to decide about their status as independent, federal, associated social entity, it  means free choice of the form of government and societal order the people want to adopt for themselves.
Democracy is dynamic and needs to be exercised and brought to life daily. It will not just happen like a “big bang”. Self-determination is no singular event either but needs to be consciously practised and stay flexible so that people may shape their future themselves, so that they have real options to choose from, so that politicians act transparently and are held accountable.
Obviously, free self-determination applies, first of all, to the current generation which exercises this right, but it does not restrict the right of future generations to modify its model and define themselves differently. Indeed, the right to self-determination is so fundamental in its individual and collective dimensions that it is indispensable – like the right to life – because it belongs to the ontology of humankind. A people’s future is based on their origin, homeland, identity, culture and continuity. Human beings shape their own future in free solidarity and mutual respect with their fellow human beings. This is neither mere phraseology nor “populism”, but human dignity. Europe has experienced several blends of totalitarianism including several that actually call themselves “democratic”. Pseudo-facts, pseudo-history, pseudo-justice and pseudo-diplomacy, will, however, corrupt democracy in the long run. Therefore, we are called to remember the essentials and join in with Immanuel Kant, saying: Sapere aude! We should be courageous enough to live our convictions and prove this courage in daily routine, stand up for open debate and the establishment of democratic institutions, for the freedom of information and opinion, for open debate without a priori. Far from being merely a question of law and order, upholding values like decency, honour, sense of justice, love of truth and reliability is an ethical issue and obligation. When discussing the right to self-determination  in our times, we should go beyond the historical perspective of Woodrow Wilson’s 14 Points, his ideas about autonomy and secession. Basically, the right to self-determination is already laid down in natural law, in the thoughts of Greek and Roman philosophers, in the treatises of Cicero and Seneca, in the writing of Francisco de Vitoria in the 16th century, Hugo Grotius in the 17th century, John Locke and Jean-Jacques Rousseau in the 18th century. Our conviction that peoples’ sovereignty is inseparable from ethics is relevant for us in the 21st century. We need to take the human rights seriously as they were defined in the UN Covenants, in the European Convention on human rights and in several other treaties and resolutions so that we can demand from governments and institutions, including the European Commission and the European Parliament, to proactively promote all human rights including the peoples´ rights to self-determination and to their homelands instead of merely paying  lip service to democracy and rule of law.

Demophobia  – the undemocratic attitude of Brussels

The European Union laid down the principles of freedom, democracy, human rights and fundamental freedoms as well as the rule of law in the Maastricht treaty of the EU in February 1992. Moreover, according to article 2 of the Lisbon treaty of 2009 the European Union is bound to actively promote these values. However, we witness a growing threat by an undemocratic spirit taking hold of the Brussels bureaucracy which can be described as demophobia – fear of the people and referendums. This totalitarian attitude challenges the sovereignty of their own member states and the rights of all European citizens.

The treaties of Versailles and St. Germain

Let us go back to the armistice of 11 November 1918, for a moment, to the negotiations in Paris 1919, to the treaties of Versailles, Saint Germain and Trianon and the violation of the right to self-determination by the dictates of the “Principal Allied and Associated Powers”. The right to self-determination of 3,5 million German Austrians from Bohemia, Moravia, Silesia and Slovakia, their right to live within German or Austrian borders was denied and they were forcefully made citizens of Czechoslovakia, without the opportunity to hold a plebiscite. Two hundred thousand German Austrians from South Tirol were treated similarly, forced under Italian rule, despite point 9 of Wilson’s 14 Points which stipulated:

“A readjustment of the frontiers of Italy should be effected along clearly recognisable lines of nationality.” (joint session of Congress on January 8, 1918).

The way the borders of Poland were drawn left another two million Germans on the territory of the newly established Polish state where they, too, were basically unwanted and discriminated against. Sure enough, Germany, Austria, Poland, Czechoslovakia and Italy were all bound by the League of Nations minority protection treaty. But thousands of petitions in the archives of the League at Geneva testify that minority protection did not really work. Both as historian and as expert on international law, I am convinced that the systematic injustice in the legal framework of Versailles and St. Germain considerably contributed to the tensions leading to the outbreak of the Second World War, together, of course, with other geopolitical and economic factors.
Allow me now to explain this in more detail: We all know that the peoples’ right to self-determination includes not only the rights to autonomy and secession but also the right to unification or reunification. Article 80 of the Versailles treaty read:

“Germany acknowledges and will respect strictly the independence of Austria […]”

Article 88 of the treaty of St. Germain read:

“The independence of Austria is inalienable[…]. Consequently Austria undertakes […] to abstain from any act which might directly or indirectly or by any means whatever compromise her independence.”

Would the spirit of Wilson’s 14 Points not have suggested to leave it to the Germans and Austrians to hold peoples’ referendums about a unification and establish it if a majority had voted in favour? However, this was exactly what the “Principal Allied and Associated Powers” did not want to happen, because their goal was to weaken Germany and Austria and remove them as economic and commercial competitors.

“Indeed, too many wars have been started because of violations to the right to self-determination. Therefore, the exercise of the right to self-determination should be understood as politics to promote or maintain peace. It also serves as a preventive strategy to avoid armed conflicts.”

Right to self-determination ignored by the Victors

On the eve before the treaty of St. Germain was signed the Austrian parliament passed the following declaration: “The National assembly solemnly declares its protest to the world against the peace treaty of St. Germain which denies the German-Austrian people their right to self-determination […] under the pretext of protecting the independence of German-Austria. […] The National assembly testifies to their hope that the league of nations will no longer deny the same right to unity and freedom to the German people which is granted to all other nations, once peace will have overcome the spirit of national hatred and hostility created by the war.” Ten years later the German and Austrian governments decided to form a customs union which was certainly a legitimate idea during the world economic crisis and expression of the right to self-determination of the Germans and Austrians. Even Winston Churchill thought so, who endorsed the project as a means of strengthening the democratic German government of Heinrich Brüning. The British Foreign Office on the other hand voiced their concern about  tensions resulting from the opposition to the customs union by the governments of  France and Czechoslovakia .  Noteworthy though, Britain did not doubt the political-legal legitimacy of the customs union. French prime minister Pierre Laval’s rejuection of the German-Austrian customs union was formulated on the basis of the  treaties of Versailles and St. Germain. The ensuing diplomatic debacle considerably weakened the democratic government of Heinrich Brüning and eventually contributed to its downfall in May 1932. Barely 8 months later Adolf Hitler seized power.
The unjust regulations of the Versailles and St. Germain treaties also lead to conflicts which later culminated in the second world war. For-instance the Sudeten question. In their report of March 10th 1919 the American expert commission under Harvard Professor Archibald Cary Coolidge had warned that the Germans would prove “hard to swallow” and should not be put under foreign rule: “Assigning the whole territory which they claim to the Czechoslovaks would not only mean injustice for millions of people who don’t want to be put under Czech rule but it might also be dangerous or even fateful for the future of the new state. […].” Coolidge therefore suggested to unite some of the German territories with Germany and some with Austria. When the German-Bohemians and German-Moravians demonstrated peacefully for their right to self-determination throughout Czechoslovakia 54 of them were killed. Afterwards Professor Coolidge wrote:

“The blood that was shed on March 4th when Czech soldiers opened fire in several cities on the German crowds was shed in a way which will be hard to forgive […].”

Theory and practice of the right to self-determination

Allow me to proceed now to theory and practice of the right to self-determination.  This had been the topic of my report to the UN General assembly in October 2014 in which I defined clear rules for its exercise. (UN Doc. A/69/272). As we know, international law is dynamic. We witness the right to self-determination constantly developing further, from the early ideals of Woodrow Wilson via the Estonian declaration of independence 1918, the communiques of the League of Nations, the minority protection treaties, article 3 of the Atlantic charter 1941, article 1(2) of the UN charter, chapters XI and XII of the Charter, resolution 1514 of the General Assembly regarding decolonisation (1960), the decolonisation process in in Africa and Asia, the failed struggle of the Igbos of Biafra for their self-determination and independence from Nigeria 1967–1970, resolutions 2625 of 1970 and 3314 of 1974, the declaration of independence of Bangladesh in 1971 and the Indian-Pakistani war, the Advisory Opinion of the International Court of Justice on West Sahara in 1975, the implementation of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both in 1976), the joint article 1 of which lays down the right to self-determination of peoples, the Vienna Declaration and Programme of Action of 1993, the referendum on independence of Quebec in 1995, the referendum on independence and secession of Nagorny Karabach in 1988 and the resulting wars against Azerbaijan 1992–1994 including the OSCE mediation efforts, the dissolution of the Soviet Union into 15 republics and the resulting wars 1991–1992, the unilateral declarations of independence of Abkhazia and Southern Ossetia, the unilateral declarations of independence of the separatist regions of Yugoslavia and the resulting wars, the separation in mutual agreement of the Czech and Slovak Republics in 1993, the Eritrean referendum of 1993, the NATO bombardment of Serbia in 1999 and the subsequent dissolution of its territorial integrity, the referendum if independence of East Timor in 1999, the failed war of independence of the Tamils in Sri Lanka 1983 to 2009, the unilateral declaration of independence of  Kosovo in 2008 and the Advisory Opinion of the International Court of Justice in 2010, the referendum of South Sudan in 2011, the referendum of Crimea in 2014 and its reunification with Russia, the factual separation of the Donetsk and Lugansk regions from Ukraine in 2014, the Scottish referendum of 2014, the referendum in Iraqi Kurdistan in 2017, to the referendum in Catalonia 2017 and in New Caledonia 2018 and so on.     
Obviously, there are different ways to exercise the right to self-determination.  Internal self-determination may be exercised as autonomy or federalism. External self-determination is exercised by secession or unification with another state. According to the Advisory Opinion of the International Court of Justice on Kosovo (2010) a unilateral declaration of independence does not violate international law. Perhaps the most important statement in this Advisory Opinion of the International Court concerns the principle of “territorial integrity” and stipulates  that it does not restrict the right to self-determination or secession because all cases where the principle of territorial integrity has been defined in international law – be it in Article 2(4) of the UN charter, in resolution 2625 of the General Assembly, in the declaration of Helsinki 1975 etc. – deal with the protection of territorial integrity of a state from external use of force, or the prohibition of invasion or occupation of the territory of a state by another. No state can invoke it against its own people. Never can the principle of territorial integrity invalidate the higher value of the right to self-determination of the people.        As the court put it: “The scope of the principle of territorial integrity is confined to the sphere of relations between States.” (paragraph 80). Undoubtedly the secession of Kosovo from Serbia has set an important precedent in international law which cannot be ignored since international law is universal per definition and cannot be applied selectively. While Kosovo is no member of the UN, it still is a factual state today. Although international recognition of states is only declaratory and no defining attribute of statehood, it is in the interest of the international community to integrate factual states into the UN as soon as possible to enable them to sign the Covenants of the United Nations, especially those  concerning the human rights.  

Self-determination – binding international law

In the hierarchy of international law the right to self-determination is considered as binding (ius cogens). Still the execution of this right is not always easy. In other words, it is not self-executing. Just like the illegal bombardment of Yugoslavia 1999 and the invasion and bombardment of Iraq 2003 violated the prohibition of use of force, another norm of  ius cogens (article 2/4 of the UN Charter), as General secretary Kofi Annan pointed out when he referred to Iraq as an “illegal war”, violations of the right to self-determination have occurred many times without repercussions against the violators. Yet, it is important to recognise that violations of the right to self-determination or the prohibition of use of force do not nullify or reduce the continued legal validity of these international norms. They just testify yet again to the lack of implementation mechanisms in the UN system as well as to the fact that all too often there are no enforceable penalties for war crimes and crimes against humanity.

Too many wars because of violations of the right to self-determination

Territorial integrity is a central principle of international law and international relations and it is especially important when it strengthens peace and stability of the international community.  The same is true for the right to self-determination of the people. Indeed, too many wars have been started because of violations to the right to self-determination. Therefore, the exercise of the right to self-determination should be understood as politics to promote or maintain peace. It also serves as a preventive strategy to avoid armed conflicts. The best way to find out whether a group of people want autonomy or independence is to hold a plebiscite. The United Nations organized such plebiscites in Ethiopia/Eritrea, East Timor and in South Sudan, but only after tens of thousands of people had lost their lives in preventable wars. It would have been better had the United Nations acted before the wars started, with mediation and the organization of plebiscites, with all necessary guarantees and monitoring mechanisms. In future the United Nations, the European Union the Organization of American states, the African Union, the OSCE and other international organizations should develop alerting mechanisms and offer mediation and good services to solve self-determination issues before they grow into violent confrontations.

“As for the European Union, the initial idea of economic co-operation between the European states, abolition of customs etc. is excellent for trade and may contribute to the common good. But this co-operation must not be conducted to the detriment of the less wealthy states or hamper the social rights, culture and identity of the European peoples.”

Even after decolonisation the right to self-determination remains valid

With the completion of decolonisation the right to self-determination has by no means become superfluous. The right is more vivid and necessary today than ever before. Allow me now to briefly allude to the UN Covenant on Civil and Political Rights. Its article 1, paragraph 1 rules: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” That means the subjects of this law are the peoples – all peoples, that is, not only the former colonialised ones. The Vienna Convention on the Law of Treaties does not allow another interpretation. Paragraph 3 rules: “The States Parties to the present Covenant […] shall promote the realization of the right of self-determination […].” This means that all states parties need to take positive measures to enable people to exercise their right to self-determination. This means not only refraining from creating obstacles to self-determination,  but an obligation to actively help the peoples to implement their rights. However, even though as ius cogens the right goes beyond “hard law”, we see it all the time that the right to self-determination is invoked selectively – international law à la carte, that is. For example, Slovenians, Croats and the Albanian population of Kosovo gained independence from Yugoslavia. But the Serbs from the Krajina, the Republika Srpska, from Northern Mitrovica, Leposavic, Zvecan, Potok and Zubin were not granted unification with Serbia which they were striving for. Year after year the  Secretary General of the United Nations presents his annual report about the implementation of the right to self-determination to the General Assembly. For many years, however, there have not been many achievements to report. The issue is not off the table though, and many non-government organizations such as the Unrepresented Nations and Peoples Organization (UNPO) provide solid reports to enhance the debates in the UN.

“The ontology of the state is, however, to care for the common good, to create laws for the protection of the citizens and the environment and to regulate the activities of investors or corporations and ensure that they do not violate  state rules and regulations.”

On the topic of sovereignty

As we all know, in a democracy the sovereign in the state are the people. Heads of state and parliaments may only refer to themselves as democrats so long as they really represent the people. Therefore, the model of semi-direct democracy in Switzerland may be the best one. In 2017 I became a Swiss citizen - and I value our democratic model which provides as much participation of the people as possible. Just in the year 2018 alone I have already voted in 5 elections or referenda and I like that, since the feeling of community and security depends to a certain degree on a sense of being taken seriously, that politicians are our servants and not the other way around. There are, nevertheless, obstacles to the execution of peoples´ sovereignty. Some international treaties hamper the execution of peoples´ sovereignty.  So-called free-trade agreements imply grave dangers for the sovereignty of the States parties. As I warned in my report to the Human Rights Council and to the General Assembly, some parts of these treaties are “contra bonos mores”, against public policy, because they corrupt crucial functions of the state, as the United Nations Conference on Trade and Development (UNCTAD) has pointed out several times. Especially the so-called Investor-State-Dispute-Settlement (ISDS) Mechanisms turn the rule of law upside down. For 200 years Europeans have been developing and perfecting the model of rule of law characterised by public and independent courts, which need to be not only competent but also transparent and accountable. This is seriously undermined by the creation of a parallel system which empowers three arbiters to ignore national laws and even the judgments of the highest state triubunals. To make matters worse, there is no right to appeal against the decisions of those arbiters. The ontology of the state is, however, to care for the common good, to create laws for the protection of the citizens and the environment and to regulate the activities of investors or corporations and ensure that they do not violate  state rules and regulations. Now the investors demand compensation if they make less profit from their investments than they expected. But the ontology of capitalism entails that investors need to take risks in order to gain profits. The risk needs to stay with the investor instead of being shifted on to the state.  ISDS cannot be reformed but must be abolished. . Treaties such as CETA, TTIP and TiSA interfere with the sovereignty of the states, too, and also with their obligation to honour their human rights commitments and especially the economic, social and cultural rights.
As for the European Union, the initial idea of economic co-operation between the European states, abolition of customs etc. is excellent for trade and may contribute to the common good. But this co-operation must not be conducted to the detriment of the less wealthy states or hamper the social rights, culture and identity of the European peoples. I observe with concern that the European Union interferes more and more with the internal affairs of their member states, ignoring the peoples’ will (and right!) to preserve their homelands and identities. That is the reason why resistance is growing not only in England but also in Italy, Poland, Hungary, The Czech and Slovak republics etc.

Some remarks about the Lisbon treaty

The member states of the European Union have been bound by the Lisbon treaty according to international law since December 2009.
Article 2 of the treaty reads:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.≫

Should a EU member state violate the human rights or the principles of the rule of law penalties may be imposed under article 7 of the Lisbon treaty. Article 7 reads in paragraph 1:

“On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. […].”

Paragraph 3 rules:

“Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.»

As pointed out in the beginning, all too often international law is implemented selectively and arbitrarily – for-instance by the European Commission when they sue Hungary and Poland under article 7 but not Spain, despite severe violations of the right to peaceful demonstration and the suppression of self-determination  by economic and physical force, systematic violations of the rights to freedom of opinion and independence of the courts, imprisonments of politicians simply for their endorsement of the right to self-determination – expressed exclusively in a peaceful and democratic way. For sure, all this constitutes more severe violations of the human rights as compared with Poland and Hungary. But Spain is spared and Brussels keeps silent on political prisoners who have been jailed for more than a year and harassed by what we might refer to as “lawfare”. Just imagine how the EU would have reacted had England persecuted Scottish separatists as criminals. There are good reasons to believe that right now articles 3, 5, 6, 8, 9, 10, 11, 13, 14 of the European convention on human rights and articles 1, 7, 9, 10, 12, 14, 19, 21, 22, 25, 26 and 27 of the international Covenant on civil and political rights are being violated in Spain, but Brussels has neither started an investigation nor an article 7 procedure. Such discrepancies are supposed to be politically investigated by the European commission but should also have legal consequences before the European court on human rights in Strasbourg and the Court of the European Union in Luxembourg. Such impunity or indemnity should not be suffered gladly with indifference in Europe today. The ruling of the Luxembourg tribunal is interesting in this regard, which confirmed in its sentence of 27 February 2018 in the case C-2767/16 that the right to self-determination of the people is part of European legislation. Therefore, the economic treaty between the EU and Morocco must not be applied in the occupied West Sahara because this would violate the right to self-determination of the people who live there, the so-called Saharaouis.
Without any doubt the right to self-determination of the peoples belongs to those human rights which the European Union is obliged to positively promote. Measures should be taken, according to article 1 of the UN Covenant on Civil and Political Rights, to better protect the human rights – not only the minority rights – of many peoples in Europe, including the Basques, the Catalans, the Bretons, the Corsicans, the South Tyrolians, the Germans in East European countries. Apart from its selective application there are of-course several other concerns about the Lisbon treaty, for-instance the way it was set up.
Some will remember that initially a European constitution had been proposed and that in plebiscites in France and the Netherlands it was rejected. Then the politicians, notably Nicholas Sarkozy of France proposed an un-democratic manoeuvre to impose a treaty similar to the European Constitution without submitting it to referendum but simply by forcing it through the Parliaments without participation of the European citizenry.  This was the Lisbon treaty – almost identical to the declined draft constitution – adopted by European parliaments  and bypassing the people. In this process, many parliaments violated the will of the people they were supposed to represent. This sheds light on a crucial problem even in the initial phase of the treaty – its incompatibility with democracy and the rule of law. This is reminiscent of the Maastricht treaty which in a similar manner had been ratified by the parliaments without plebiscites. Rightfully, it was challenged before the German Constitutional Court (Bundesverfassungsge­richt) because the treaty amounted to a partial loss of state sovereignty.  In my opinion the ruling of the Bundesverfassungsgericht was purely political and legally flawed. Other significant threats to democracy in our days are conformism, political correctness, self-censorship and resignation. Moreover, we must resist both government and private media sponsored manipulation of public opinion, because democracy and self-determination will only work if we have access to truthful and comprehensive information in the right context instead of being constantly lied to by politicians and media.
In conclusion I would like to appeal to the European ordre public, because the three main principles of the European Union remain valid. Even if its institutions apply these basic principles arbitrarily, even if there are many problems with the Union, it is up to us to find solutions, solutions which should secure a better future for all Europeans, solutions which should overcome the tragedies of the First and Second world wars and guarantee democracy and self-determination for all of us. After all, democracy is an expression of self-determination, as self-determination is inseparable from democracy. Both are our heritage and our ethics
Thank you for your attention.     •

* Professor Alfred de Zayas was UN-Special Correspondent for the promotion of a democratic and fair international order from 2012–2018. He presented the text printed here at the conference of the Desidenias Erasmus Foundation in Berlin on 10 November 2018. The theme of the conference was: “100 years after the end of World War one: The European peace order since 1918 and the right of self-determination of people”.