Justice, Order and Anarchy: The Right of Peoples to Self-Determination and the Conflicting Values in International Law
| Author | Lauri Mälksoo |
| Position | LL.M. Georgetown University Law Center (with distinction) 1999, LL.B. University of Tartu (with distinction) 1998 |
| Pages | 75-79 |
Page 75
Since 1991, the Republic of Estonia is again a full member of the family of free and independent nations. It has vigorously started to rediscover its rights and duties under international law. However, it seems that most Estonians have dubious and uneasy feelings about the credibility of the law of nations. On the one hand, they have to admit that international law was unable to prevent the illegal annexation of their country for fifty years. On the other hand, most people acknowledge that international law was an extremely useful tool when the country succeeded in restoring its democracy and statehood peacefully.
In the 19th century when the awakened Estonian nation broke its way towards statehood, Jakob Hurt formulated the national imperative for Estonians: we cannot become strong in numbers, but we can become strong in spirit. For our independent nation at the end of 20th century, the modified version of this imperative might sound: our State cannot become strong in might, but it can stand for its rights. Or, as President Lennart Meri has put it: the nuclear bomb of Estonia is international law. While this expressive saying may at first glance look like a well- sounding (although certainly well-meant) overstatement, it has a deeper meaning. For a small country, it is essential to know that its full membership in the family of nations is not merely a caprice of Fortuna but is rooted in universally recognised rights and principles of international law.
The right that has paved the Estonian way to independence, has been the right of its people to self-determi- nation. The reliance on this right is solemnly proclaimed in the preamble of the constitution of the Republic of Estonia. The right of peoples to self-determination is the touchstone of Estonia's independence. Because of that, it would be important to find out what international legal implications does the principle of self-determination have.
Some decades ago, several prominent scholars doubted whether the principle of self-determination has become a part of international law, or is still just an important moral (political) principle. Today, the existence of such a legalPage 76right is indisputable. It is contained in the UN Charter and in both United Nations human rights covenants of 1966. There is a strong argument put forward that the right to self-determination has reached the status of the rule of customary international law. However, to say in advance - the exact meaning of this right in international law, whether of treaty or customary origin, is much more disputed1. A natural lawyer, Fernando R. Tesón has even submitted that "no area of international law is more confused, incoherent, and unsatisfactory than the law of self-determination."2
If it is true, why is it so? The purpose of this essay is to take a philosophical-contextual look at the status of the right of peoples to self-determination, as it is crystallised in modern international law. I will try to demonstrate how the fulfilment of the right of peoples to self-determination fits together with the achievement of two fundamental goals of international society - order and justice. The conceptual problems that are connected with the right of peoples to self-determination may be reduced to the controversy of how to reconcile order with justice3. It becomes apparent that different philosophical approaches to international law value order and justice (and, consequently, the importance of the right to self-determination) differently. The construction and analysis of naturalist, positivist and realist views to self-determination may help us to understand the controversial status that this right plays in the international legal system.
Self-determination is a principle of justice. It means ultimately the right to determine one's fate freely. As such, the whole concept of self-determination may be said to be a concept of natural law, since the major concern for natural law tradition is justice. There was something very characteristic to natural law thinking in the idealistic way, how the U.S.-president Woodrow Wilson first eloquently articulated the concept of self-determination in his "Fourteen Points"4. Natural lawyers seem to indicate: self-determination is a fair principle and people will recognise it instinctively when it is violated. It is easily recognisable when a people is suppressed, even if the positivists are disputing - as they always do - about the exact meaning and consequences of the right of self-determination in particular circumstances. As an example may serve the NATO intervention in Kosovo which was in the first case support for the cause of self-determination (for the autonomy of Kosovars). Whatever other principles of international law (e.g. these relating to the use of force) may say, the Western intervention was necessary and legal, since it ultimately served the cause of justice. A radical natural lawyer would probably even argue that an intervention for a just cause (like self-determination) would be justified legally and not only morally, even if it would have been - from a formal- istic point of view - in violation with (unjust) norms of international law (as interpreted by positivists).
The inherent difficulty for a natural law approach is, of course, that there is no universal consensus about the question of what (in)justice is. Most Serbs, Russians and maybe some others would probably argue that not the situation of Albanians in Kosovo but rather the bombing of Yugoslavia has been unjust and illegal.
A natural lawyer would also find it difficult to prove that self-determination as a principle of justice is something that has transcended time and space. The right to self- determination as a concept of the 20th century is a good...
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