Zoran Oklopcic is a constitutional and political theorist and a PhD candidate from University of Toronto, Faculty of Law. Zoran was born in Zagreb, Croatia.
I have been following with great interest the lively discussion on the application of the right to self determination in relation to the future negotiations that are supposed to determine the future status of Kosovo. The aim of the reflections that follow is not to argue in favor of one or another interpretation of the right to self-determination in the context of Kosovo. Rather, my aim is to claim that there is a problem with the concept of self-determination itself.
In short, I argue that the concept of self-determination of peoples (and by implication its kissing cousin ‘popular sovereignty’) is (I) circular, and as a consequence of that (II) redundant, (III) misleading, (IV) inflammatory, and finally, (V) already disappearing from the vocabulary of the major political actors involved in the Kosovo crisis.
(I) Circular. The case of the self-determination of peoples is a classical example of the chicken and egg dilemma. ‘The people” is, supposedly, the agent that creates the state while on the other hand the people itself is delineated by the recourse to some territory. For example, some argue that there exists the right of the people of Kosovo to external-self determination. This however presupposes the territory of Kosovo as a relevant unit which is supposed to delineate the particular people that have the right to self-determination. The issue then is about the legitimacy of that particular unit, and not about some purported will of the people which is the construction of the legal arrangement that delineated the territorial boundaries of Kosovo. (Let us not forget that territory is not geographical, but primarily a legal concept that delineates the personal scope of the jurisdiction of some legal order.) So, plainly speaking, there is no self-determination, and there are no peoples which are determining themselves. Is this claim new? Not really. More than fifty years ago, Sir Ivor Jennings famously observed that before ‘people’ decide on their destiny, someone needs to decide who the people is. (It would be interesting to think about the conceptual considerations that allowed the concept of self-determination to linger on, but I won’t entertain these arguments here)
(II) Redundant. So what, you may ask, if the concept of self-determination is circular? First, and somewhat trivially, the right of self-determination may be completely re-scripted in legal terms. Second, and less trivially, by doing so, we would be in a better position to uncover unquestioned assumptions that are obfuscated by the interpretation of what the law on self-determination ‘requires’.
As an example, let me try to reconstruct the argument in favor of a so-called right to external self-determination for the people of Kosovo. This claim can be translated as follows:
The constitutional status of the territory of Kosovo will be upgraded to the status of an independent state if: the majority of its citizens decide so on a referendum.
As I have already noted, that presupposes a tacit assumption about the legitimacy of Kosovo’s boundaries. (For the sake of argument I will not discuss any historical claims that could be made in favor of an independent Kosovo that stretches beyond socialist Yugoslavia) That legitimacy is established by pointing out that; Kosovo was a constituent part of the former Yugoslavia, which in turn presupposes that, The constituent parts of federations have the right to unilaterally declare independence.
Now that’s problematic. As the Supreme Court of Canada has demonstrated in the Secession Reference, that view is highly problematic in modern western democracies. That would in fact presuppose that federations are tacit confederations where the constituent parts have the right of auto-interpretation of a constituent document. That was the legal position of Croatia, Slovenia and Bosnia which claimed that the federal constitution gives them a right to unilaterally secede. Well, who knows. The federal constitution granted the right to self-determinations to nations which exercised the right through their republics (Croats and Serbs in Croatia, Muslims, Croats an Serbs in Bosnia and so on. From that nothing necessarily followed. For an excellent discussion of that issue see Peter Radan’s The Break-up of Yugoslavia and International Law, Routledge, 2002).
But OK, for the sake of the argument let us presuppose that tenet (3) obtains. Tenet (3) could obtain because of the fact that (3a) international law for some reason conceives of all federations as international treaties in disguise, or (3b) it reads Yugoslavia’s socialist constitution in a way that would suggest that the populations of the units below the federal centre can secede. Now (3a) is simply too funny. If we choose to opt for (3b) we would need to presuppose that international law is concerned with how the internal constitutional order is structured. Doubtful, but let us assume even that, for the sake of the argument.
But we have a problem with that in the case of Kosovo. If we assume the Badinter Committee’s opinions to be authoritative statements on international law on the subject (which is highly doubtful, cf. Suzanne Lalonde’s Determining Boundaries in a Conflicting World: The Role of Uti Possidetis, McGill-Queen’s University Press, 2002), we have a problem in the case of Kosovo, as I said.
The Badinter Committee effectively vested the right to self-determination in the peoples of Socialist Republics, not of Autonomous Provinces. Kosovo, according to the principles of the Badinter Committee does not have the right to self-determination.
The International community faces two options then. It can either backpedal, and say: ‘Oh, we were only joking back in 1991, Kosovo, in fact, does have the right to self-determination according to the opinions of Badinter’; or it can try to distinguish out the case of Kosovo by adding new elements to the story or abandoning the recourse to the case of Yugoslavia altogether.
Let me discuss the first option. The proponents of external self-determination would need to (in addition to 1-3b) add a condition that would point out that condition (3) obtains if the population in the territory was subject to serious and protracted human rights abuses.
This is the argument that says that self-determination is ‘earned’ by victimization. Very well. How about human rights abuses against Serbs in last 7 years? Let us for the sake of argument agree that they are at least comparable to the plight of Albanians in Milosevic’s Serbia. Let us also, for the sake of argument, agree that it is morally problematic to attach greater moral value to the suffering of Albanians than to the suffering of Serbs. If we agree on that we end up concluding this:
The final status of Kosovo will be favorable to the intense political desires of the Albanians of Kosovo because they were victimized; while the equally intense opposite political desire of the equally victimized Serbs of Kosovo will not be accommodated because they are a minority in a pre-determined political unit.
So, here it is, circularity again: victimization legitimizes the scope of the unit; the scope of the unit legitimizes victimization. I suppose there is another way, more elegant in its cynicism, of putting all this. It is simply to say to the opponents of this kind of “external self-determination”: Sorry, bad luck!
(III) Misleading. The prevalence of hypocrisy is only a symptom of why the very idea of self-determination is problematic. In fact, as I will try to argue later, there is no way around hypocrisy. However, instead of understanding the creation of new political communities (or municipal legal orders, for Kelsenians amongst us) through the meaningless lens of self-determination, let us take a look at how that process really looks like. Please note that the account that will follow is just a tentative and a very general sketch.
My argument has 2 elements.
First, instead of positing the ‘self’ we should realize that ‘self’ is the outcome, and not the source of radical constitutional reconstruction. The ‘self’, if there is any value in talking about it, emerges from the contestation between provisional ‘insides’ and ‘outsides’. By ‘inside’ I mean those politically mobilized groups who wish to be governed within the single constitutional order, or end up being governed by it, but as well those actors (‘outside’) who are instrumental in creating the constitutional order, but do not fall within its sway once it is constituted.
Why do I say ‘provisional’ inside/outside? Because there needs to be a provisional exogenous push that delineates the unit of contestation, in this case Kosovo. What constituted the “self”in Kosovo is not self itself, but NATO intervention that froze the political situation and created a provisional constitutional order. So, the first element in my suggestion is the inevitability of exogenous influence. That influence might vary, it can be more or less hidden, but it is there.
The second element in this account is that the process of state-formation is not only antagonistic; it is also discursive. None of the parties is saying: We want the political outcome X because we want it! They justify their claims, either by interpreting the purportedly relevant norm of international law (I have tried to give an account of how that might look like in the previous section) from the legal point of view, or try to infuse it with a universal ethical or prudential aspiration. So we hear about how “Serbia lost the moral right to govern Kosovo” (Albanians), or how “the requirements of international stability must be upheld” (Serbs); or how the solution must be “functional” and in tune with “the European perspective” (EU and US).
This brings us back to hypocrisy. Do all these actors, dressing their particular claims in a universal garb mean it? Yeah, right. But then again, maybe they do. The point is that the interpretive and aspirational aspect of the discourse of polity formation cannot be conceived without a possibility of hypocrisy. Is this such a bad thing? Not necessarily. Elster has argued that hypocrisy has civilizing effects. By invoking a universal claim which is supposed to cover your particularistic demand, you need, in order to make yourself credible, give in a bit, allow your opponent to buy into your universal ‘story’. How does this relate to Serbs and Albanians and Kosovo? First, it should collapse the difference between ethnic and civic nationalisms. (for an excellent critique see B. Yack, Popular Sovereignty and Nationalism, Political Theory, 2001) Instead of perceiving nationalisms as bad (ethnic) v. good (civic) we should perceive them as stupid vs. smart. The ones that get the logic of polity creation, versus the ones that don’t. The Serbian political elite in the last 15 years notoriously fell in the first category.
The current generation of Serbian politicians seem to have learned the game of hypocrisy. Mr Draskovic, Tadic and Batakovic all seem very concerned about the possible damage done to the system of international relations and law if Kosovo were to become an exception. There is one problem with that though. They have learned the game of hypocrisy too late. Unwilling to preserve the norm of international law on the territorial integrity of states, and unable to stretch the norm of self determination to the case of Kosovo (see my discussion of 1-3b), the members of the international community started to call the case of Kosovo “unique” and “exceptional”. (Well, if the sovereign is he who decides on the exception, as Schmitt had argued, there you have it. It is not the people of Kosovo, or Serbia, who is sovereign, but the actors who pronounce that international norms will not apply.) In addition to calling Kosovo an exception, parties are counseled, especially the Serbian side, to act in accordance with the principle of realism. What does that mean for Serbs, for example?
It means, I take it, something like this: (a) we, (the ones who invoke the principle) created a status quo; (b) the status quo is, in reality, the most similar to the political aspirations of your opponents; (c) so it should be; (d) by calling it a principle we are unwilling to debate with you on (c).
IV. Inflammatory. OK, so the self-determination of peoples, and their alleged sovereignty is a misleading concept. But why is it inflammatory? My intuition is that that is so because of two reasons. First, the claim of peoplehood is an opaque one, yet the one which claims higher legitimacy than any other equally empty claim. Second, the claim of people, by its very invocation, attempts to shut off its challengers from the discussion, by simply denying their existence. Taken together, these claims make the will of the people, as the Kosovo Assembly has stated, “not negotiable”. In blunt terms, the logic of peoplehood is: My claim is meaningful/justified. Yours is not. And I am not explaining myself to you. This, and not only conflicting territorial demands, or historical narratives, is also one of the causes of the inflamatory and volatile nature of radical (nationalist) politics.
The advantage of extending the scope of rhetorical tropes used in the political constestation over the creation of an independent political unit is that it reveals additional actors, with additional rhetorics who bear upon the construction of a political community. Here, the “people” is just one of the names of meaningfulness of a political project. The advantage of bringing in “stability”, “efficiency”, “multiethnicity”, a “European perspective”, is that it unpacks the non-responsive, sullen invocation of moral and political superiority of the “People” into a set of values which possibly conflict with each other, but cannot but invite demasking and critical investigation. What do you mean by “efficiency”? Does “stability” trump the “multiethnicity”, “properly” understood? Is the “European perspective” invoked by current Brussels bureaucrats, the only European perspective? The first hope of enlarging the constituent power is that this game of masking and de-masking via commonly acceptable empty words could force the poweful external, constituent (arm-twisting) powers to moderate their particular(istic) political goals and defer more to the political wills of the constituents that will end up living under the newly created constitutional orders.
The game of demasking might only go that far, as we have demonstrated in a previous section. As we have seen, the invocation of the principle of realism is a way of ending the discussion; a political rhetorical version of the Humean is/ought fallacy. The fact that the US and UK are espousing it, should come as an ironic, bitter-sweet compliment to the negotiating skills of the Serbian side. It is an admonition on behalf of the State Department and the Foreign Office that they cannot come up with a cogent universalizable (and following Laclau – ethical!) argument in favor of Kosovo’s independence.
(V) If that is correct, we should also stop speaking about self-determination, not only because of its internal inconsistencies and deleterious effects, but also because the international actors are ceasing to talk about it themselves.
What they talk about is “final status”, “Belgrade and Pristina”, “Kosovars, Serbs, Albanians”, even the “will of the people”. But this particular “will of the people”, according to the UNSC resolution 1244, is only one the factors in determining the status of Kosovo. Recently, an American official said that Kosovo should become independent because that is the will of its majority community. Now, that’s not the same as “the will of the people of”.
I don’t think these subtle and less subtle changes in vocabulary are trivial. We will need to await the outcome of this process, and see whether self-determination will indeed be used as a justificatory device for the final status of Kosovo. In the meantime, we should start thinking about its appropriateness.