, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

“Refusal of dialogue threatens world peace”

“International law is universal and must always be uniformly applied”

Interview with Professor Dr phil et iur Alfred de Zayas*

thk. Since the secession of the Crimea peninsula, the importance of the peoples’ right to self-determination has again become a focus of public attention. The different, often arbitrary interpretation of this principle of international law becomes apparent. What is being advocated and applied for some populations is being denied to others. Is the attitude of the “first world”justifiable? While, for instance, the secession of Kosovo was immediately recognized by many western states, the same states have resolutely refused to acknowledge the secession of Abkhazia or of the Crimean peninsula. As an outsider, one cannot help feeling that double standards are at play. This contradiction calls for a clarification. In the following interview the renowned American international lawyer and author of many books, Professor Alfred de Zayas, analyses the legal issues involved.

Screen Shot 2014-12-22 at 10.58.10

Current Concerns: Professor de Zayas, you presented your annual report to the General Assembly in New York. You were essentially concerned with the peoples’ right to self-determination. How does this right contribute to strengthening world peace?

Alfred de Zayas: We know that in the last 60 years, the failure to implement the right to self-determination has been at the root of many armed conflicts. That is why it is so important now and in the future to put the right to self-determination into practice, because this fundamental norm of international law constitutes a preventive strategy to avoid armed conflicts. Some people claim that the right to self-determination was achieved and settled with decolonization. Not true. Today there are numerous ethnic groups around the world, indigenous populations in North and South America, native cultures in Australia, New Zealand, West Papua, larger minorities who are unhappy with their condition and aspire to self-determination. Just look at the map of Africa and consider how many potential conflicts are there, sequels of European colonization, which drew absurd frontiers and divided ethnic and religious groups, leaving them on both sides of the arbitrary colonial borders. You have to hear their claims for greater autonomy, federalism, and independence before the malaise results in armed conflicts. All of these present and future disputes must be resolved by peaceful means and negotiation. That’s why I appealed to the states, on 27 October at the UN General Assembly (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N14/497/95/PDF/N1449795.pdf?OpenElement) to listen to their populations and not adamantly insist on the principle of territorial integrity and claim that it must be just so and not otherwise. Digging one’s heels in is unhelpful. We need a change of mind-set if we want peace. Intransigence means escalation and is therefore incompatible with the UN Charter. The principle of territorial integrity is important, but it is not absolute. It must be applied in conjunction with other principles of international law including human rights and the right to self-determination of peoples. A judicious balancing act is indispensable. In general, borders serve stability, but borders can be changed peacefully, and sometimes should be changed to prevent future conflict. Indeed, frontiers have been changed constantly throughout history, unfortunately, often by war. Precisely for this reason – to prevent wars – we must make sure that the populations who live within national borders can effectively exercise their human rights. We always have to keep in mind that this is about people, not just about geopolitics. People have a fundamental right to shape their own destinies. Each expert on international law recognizes the right to self-determination as peremptory international law, but its application seems to be arbitrary.

In how far do you mention the current conflicts, such as the recognition of Kosovo, the secession of the Crimea, the fate of the Tamils?

In my report to the General Assembly and in the press conference, I deliberately did not refer to specific conflicts. I do not arrogate to myself the right to provide the answer to all of these complex problems that unfortunately gravely endanger peace in these regions. What I did elaborate on, and what constitutes the “added value” of my report, are the criteria I formulated and which can be applied to all current and future conflict situations to help resolve them. These criteria include a commitment to dialogue and the demand that governments promote the human rights of all parts of the populations under their jurisdiction and do not discriminate against and harass the people who advocate the right to self-determination, or even defame them as “terrorists”.

Press Conference by Independent Expert on the promotion of a democratic and equitable international order.

How could these problems be resolved?

Whatever region we take, be it the Ukraine, Kosovo, Abkhazia, South Ossetia, Transnistria, Nagorno-Karabakh, South Tyrol, the Tamils, West Papua, Rapa Nui, the Moluccas, Sudan, etc., you have to keep in mind that it is about people primarily seeking something legitimate, namely the shaping of their own identity, the right to their cultural development, to their own history. And if a central government demonstrates hostility towards a part of the population, it’s the worst thing it can do; for this part of the population will no longer feel obliged to respect the regulations of that government. In principle, it is the people who govern in a democracy. If a government, consisting of elites, no longer cares about the interests of their people, this government will fail and thereby endanger the peace of the state and probably both regional and international peace.

How should a government in such a situation act?

In case a part of the population of a given country – as we saw in Scotland – would like to become independent, the peaceful organization of a referendum is the civilized way to go about it. Remember that this right to self-determination does not necessarily mean total independence. There are nuances. There are different gradations of autonomy, e.g. a federal organization, whereby the human rights of the population might be better guaranteed. Many countries are federally organized. States that have different (and sometimes hostile) ethnic, religious and language groups would be well advised to consider a federal constitution.

Here, of course, the Swiss model of direct democracy could be an inspiration.

The Swiss model works. In Switzerland, with four languages and 26 cantons, the people live in peace with each other and respect each other. They are all citizens of the country. Direct democracy is practised through the people’s power of initiative, through referenda and direct participation in decision-making. There is no need for violence, because the Swiss Constitution and the democratic system of government guarantee the rights of all persons in the jurisdiction. Unfortunately, in many other countries it’s not like that.

What are you thinking of?

Sri Lanka, for instance. There are the Tamils, who make up a significant part of the population; they differ from the majority of the Singhalese. The Tamils have a different history and a different identity, which manifested itself in their quest for self-determination. In 1983–2009 the world looked on as the Tamils were being massacred by the central government, and so the Tamils could achieve neither autonomy nor independence. Another ethnic group that, in principle, had a legitimate aspiration to autonomy or independence was the Igbo people of Biafra/Nigeria, who fought a war for self-determination in 1967–1970 – and lost. An estimated three million human beings perished during the war and the ensuing famine.

By implementing the right of peoples to self-determination wars could be prevented …

… and by the application of certain techniques such as plebiscites we can achieve peaceful solutions. A referendum was launched in Scotland, and we witnessed a peaceful public opinion poll in Catalonia. The United Nations themselves organized referenda in Sudan. The last state admitted to the UN was in fact South Sudan. Its formation is a direct consequence of the poll performed by the United Nations. We had the same in the separation process of Ethiopia and Eritrea. The latter evolved from a UN referendum. This model could be applied in many parts of the world where there is conflict. But this requires an alert and proactive General Assembly, which addresses the conflicts before they escalate. I must repeat that not every referendum must end with independence. Quebec in Canada is another example where in 1995 a referendum was held, which did not lead to separation. In any event, a peaceful referendum is always better than an armed conflict.

How can we prevent the abuse of the right to self-determination for geopolitical and power interests? How can we prevent the subversion of sovereign states by revolution fomented and financed from abroad?

From the above cases of self-determination one has to distinguish the colour revolutions and the tragic situation in Syria. Here it seems that the civil war has not developed owing to a deliberate discrimination against a part of the population, such as the Christians and other denominations that as a consequence would demand self-determination and self-protection. On the one hand, we have a government that came to power via an election, and on the other side there is a militant movement that seeks a regime change without elections. This is of course quite a different kettle of fish – and distinguishable from the situation of the ethnic group of Tamils in parts of Sri Lanka, who actually have a legitimate concern of perservation of their culture and identity. One must be able to distinguish between civil war, a coup d’état and a legitimate claim to autonomy and self-determination.

The US President Obama accuses Putin of threatening world peace in the context of the Ukraine conflict. Do you share this view?

This raises the fundamental question of what threatens world peace? The refusal to enter in a dialogue threatens world peace if the parties engaged in a given conflict refuse to talk. What does the UN Charter in Article 2, paragraph 3 stipulate? All disputes must be resolved through dialogue and diplomacy, by peaceful means. If I am not mistaken, Putin has for many months proposed dialogue. First, I would have liked to have seen an initiative by the Ukrainian government in Kiev to engage in a peaceful dialogue with the Russian-Ukrainians in Donetsk and Lugansk. That would have been the civilized way to solve the problem. But you cannot be blind to the fact that this destabilization necessarily has consequences for neighboring countries, and here in particular for Russia which has a legitimate interest to keep hostility and revolution away from its borders. Russia had a legitimate concern when the democratically elected government in Kiev was removed in a coup on 22 February 2014. The international agreement of 21 February, in which the Maidan representatives as well as President Yanukovych and the foreign ministers of France, Germany and Poland had agreed to conduct early elections and until then form a new government that would represent all groups, was violated not by Yanukovych but by the Maidan violence that carried out a Putsch. The three countries Germany, Poland and France could have protested and had a responsibility to maintain the agreement. Hence a situation of illegality and instability emerged. And after a coup d’état there are always certain predictable but also unpredictable consequences. One of them is that parts of the population of Ukraine simply did not accept the new leaders of the country in Kiev and they did not consider them as democratically legitimate representatives of the entire population. Professor John Mearsheimer of the University of Chicago recently published an interesting analysis in Foreign Affairs (www.foreignaffairs.com/articles/141769/john-j-mearsheimer/why-the-ukraine-crisis-is-the-wests-fault) and see. Current Concerns No 22 of 20 September 2014).

What role do the media play in this whole debate?

I am particularly concerned that media reports, especially in the Western media, operate in unison with allegations against Russia. Hence the agreement of 21 February is mostly hushed up, the coup is forgotten, as if it had never taken place. What worries me is that the press is actually fueling the conflict instead of calming it down. Instead of calling for a dialogue, the press focuses on the necessity of sanctions and a solution by force, not negotiation. Yet, pursuant to the UN Charter all states are obliged to promote all the possibilities of dialogue. The press does not. Therefore, the question arises whether Article 20 of the International Covenant on Civil and Political Rights is being violated here? And by whom? Article 20 prohibits warmongering. Currently, sabre-rattling is going on in many states instead of attempts to find a solution within the UN Charter, which protects the human rights of all parties involved, more specifically also the human rights of the population in Donetsk and Lugansk. Furthermore, it must be reiterated that neither the right to self-determination nor the principle of territorial integrity justify massacring a population. No one can approve of the shelling of hospitals, schools and residential areas. In the year 1994/95 the global consensus was that bombing of civilian centers like Sarajevo were illegal. I miss this assessment with respect to the bombardment of the population in eastern Ukraine. As an expert on international law, I would like to reiterate: International law is universal and must always be applied uniformly and not à la carte. You cannot say Slovenia, Croatia, Bosnia, Macedonia, Montenegro, Kosovo have the right to independence, but the populations of Lugansk and Donetsk do not. This still needs to be clarified. Every day people are dying there. It is the obligation of all states in the human community that the shooting stops. Everything possible should be done to find a peaceful solution, and it must be noted that a federalization of Ukraine or the autonomy of the Russian-Ukrainian districts would have been a viable option in the months of March, April and May. It is not certain that a population that has suffered massive bombardments, would be willing to stay in this state formation today.

We could, however, only answer this question after the negotiations and after the dialogue.

First, the military violence must stop. Nothing will happen without this prerequisite. However, what you can read in the press is that Kiev is considering a new offensive. This involves grave dangers. Attempting to bring these areas under Kiev’s control by force would exacerbate the humanitarian catastrophe in the area and result in huge loss of life. For me, the only solution in conformity with human rights are negotiations, in which not only Kiev and Donetsk are included, but also the neighboring states, which have a legitimate interest in the pacification of the area. This is also a democratic solution, because democracy is ultimately an expression of self-determination as self-determination is an expression of democracy. Here the criteria that I formulated in my report could be conducive to a constructive discussion. It bears repeating that the right to self-determination is embodied in the UN Charter and in Article 1 of the UN Covenant on Civil and Political Rights and Article 1 of the International Covenant on Economic, Social and Cultural Rights, and in countless resolutions of the UN General Assembly. This right must be put into action. The world has had enough of politicking and enough of empty lip service to human rights.

Professor de Zayas, we thank you for the interview.


(Interview Thomas Kaiser)

*    Alfred Maurice de Zayas is a noted historian and expert on international law. He held professorships at several prestigious universities around the world and earned an international reputation for his nine books and numerous scholarly articles in leading journals. For 22 years he was a senior lawyer with the United Nations, Secretary of the Human Rights Committee and Chief of the Petitions Department at the Office of the UN High Commissioner for Human Rights. Since 2012 he has been the UN Independent Expert on the Promotion of a Democratic and Equitable International Order, a mandate created by the Human Rights Council. He gives this interview in his capacity as Professor of international law and international relations at the Geneva School of Diplomacy.