Cyprus Mail 23 February 2025 - by Alper Ali Riza
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| The declaration of UDI in Kosovo in 2008 |
The problem is that it is not yet a fully developed rule of international law
The right to self-determination is the right of peoples to a state and the right of territorial integrity is the right of a state to its territory. Both are accepted rules of international law when claimed by non self-governing peoples in colonies but which clash in established metropolitan states.
Sometimes self-determination takes the form of a wish to unite with another state. For example Russia annexed Crimea in 2014 in breach of Ukraine’s right to territorial integrity and then held a referendum in which the people, most of whom are Russian, voted to reunite with Russia rather than remain part of Ukraine. Also the Greeks of Cyprus voted to unite with Greece in 1950 rather than remain a UK colony.
In the past self-determination was known as independence or freedom. The first country to gain independence from colonial rule was the USA from the British Empire in 1776, and the second was Greece that gained its freedom from the Ottoman Empire in 1821.
Empires subjugated peoples everywhere but after the defeat of the Central Powers – Germany and the Austro-Hungarian and Ottoman Empires – at the end of World War I in 1918 and the dissolution of the Russian Empire in 1917, the new world order promoted by US President Woodrow Wilson in Europe and Vladimir Lenin in the Soviet Union was based on the creation of nation states pursuant to the principle of self-determination.
The principle was extended to European colonies worldwide after World War II and became a general principle under the UN Charter in 1945 although its application outside the context of subjugated colonial peoples is not yet a fully developed rule of international law.
The International Court of Justice (ICJ) had an opportunity to rule on the scope of self-determination in established metropolitan states in its advisory opinion in the Kosovo case in 2010 but fudged it, even though it fell to be decided as a result of a request from the UN General Assembly.
Kosovo remained part of Serbia after the breakup of Yugoslavia in the 1990s but the Kosovars who are an Albanian people from a distinct area of Serbia close to Albania, wanted to break away as a separate state. Nato intervened against Serbia in 1999, and Kosovo came under UN administration but remained an autonomous province of Serbia.
In February 2008 Kosovo unilaterally declared independence (UDI) from Serbia which was recognised by many states but not by Russia and China that vetoed its membership of the UN.
In October 2008 the UN General Assembly sought an advisory opinion from the ICJ whether Kosovo’s UDI was in accordance with international law. What the international community really wanted to know was whether the UDI created a new state as a result of the exercise of the right of self-determination.
The ICJ also said in passing that although the Turkish Cypriot UDI of 1983 was declared illegal by a UN Security Council resolution, its illegality did not stem from its unilateral character – the UN Security Council resolution says that the 1983 Turkish Cypriot UDI was illegal because it was incompatible with the 1960 treaties of establishment and guarantee.
Another instructive case on the process of self-determination was the way it operated in the unique circumstances of Palestine. The people of Palestine were given the right to self-determination by the Covenant of the League of Nations in 1919 as communities of the Ottoman Empire under a mandate to prepare them for independence.
The mandate was given to Britain that had promised a homeland for Jewish people in Palestine in the Balfour Declaration of 1917 even before it conquered Palestine from the Turks – ironically, with Arab assistance. By 1947 the UN assumed authority over the mandated territories, and it proposed its partition. The Jewish leadership accepted partition, but the Arab world rejected it on the ground that self-determination applied to the whole territory of Palestine in which the Arabs were the majority.
In 1948 the UN admitted the state of Israel as a member, and it was recognised by many states, but not by the surrounding Arab states of Egypt, Jordan, Lebanon and Syria. There then followed a number of wars in 1948,1956, 1967 and 1973 in which Israel expanded its territory and occupied Arab Jerusalem, the West Bank and Gaza.
The Palestinians had a legitimate complaint. As they were the majority the right to self-determination of the people was in respect of the whole of Palestine.
The principle that self-determination is determined by the majority in a territory was recently confirmed in the Chagos islands case in which the ICJ ruled that the Chagos islands were to be treated as part of the single British colony of Mauritius even though they are a separate archipelago a thousand miles apart.
Perhaps it would have been more pragmatic if the Palestinians had agreed to the creation of a Palestinian state as well as a Jewish state in Palestine in 1947, but that’s just the wisdom of hindsight. The fact is the international community still owes Palestinians the right to self-determination they were promised as long ago as 1919.
Alper Ali Riza is a king’s counsel in the UK and a former part time judge
