A few days ago, the leader of a movement that wants its own state asked me how to achieve that goal. It is not an easy question to answer, but I told him what I had learned from the various struggles for independence around the world.
The lessons of self-determination - the founding of a state - are not learned from academic studies, legal analysis or books... but from persistent experience. I and my organization Independent Diplomat advised two of the last three states to become independent, Kosovo and South Sudan (the third most recent to become independent is Montenegro). I advise the governments and parties of some that have not yet managed to achieve that goal: Palestine and Catalonia.
I work with leaders and activists in West Papua, Kashmir, Western Sahara and Somaliland, even in South Tyrol. I was in the UN Security Council with at least five such movements.
The first lesson, which is difficult for the aspirant states to hear, is that the international system based on the state is by no means favorable to new states. Perhaps that is not surprising. Many countries, from Niger to Spain, are worried about the split. Governments and rulers do not like the area they rule shrinking. The story of "secession" can make people very upset - especially if their rights are at stake.
But it is not solved by simply rejecting strong feelings, which is all too often expressed by repression. The UK government's decision to allow a referendum on Scottish independence was a wise exception.
None of the countries involved would admit it, but it was the violence that fueled the process that ended with the declaration of Kosovo's independence.
This contrasts with Spain's punitive response to Catalan nationalism: several organizers of the peaceful vote in Catalonia are still in prison.
In all cases of self-determination (perhaps with the exception of Palestine), the state-based system has been hostile from the outset. In Kosovo and South Sudan, the basic predisposition in the UN, EU and other bodies was negative. In both cases, a painful diplomatic process took place to reach a conclusion that was obvious to all who lived on the ground: both states had to be created or war would ensue.
As a result of this systemic hostility, the second lesson is obvious: there is no application process to establish a state. There is no UN committee or process to investigate such cases. There is no website that explains how to do it. Every case is different. But, in short, independence is gained only if you fight for it yourself. No one will give it to you even though, after all, other states have to recognize you (the basic paradox that is at the heart of the problem): declaring independence unilaterally achieves little and often provokes even more resistance.
And because that process is not institutionalized, self-determination in practice, if not in theory, has very little to do with law (except in some odd cases). There are many extensive legal texts on the criteria for statehood, such as the Montevideo Convention and the like. But I have become convinced that they are largely irrelevant, except for retrospective analysis. The decision on recognition is always a political choice of other states. International courts do not make that decision, although their conclusions may confirm its necessity (as the International Court of Justice did in the case of Western Sahara). Legal arguments can strengthen political ones, but they are never primary. We once advised the Kosovo government not to send a document on its legal arguments for statehood. Why? Because they were so weak. However, the political arguments of Kosovo were strong: the vast majority of the population wanted independence and the province has been administered separately since 1999.
Fourth, and this is hard for liberation movements to hear: the state that is most important in the process of self-determination is the one you are leaving. For Catalonia, Madrid's vehement opposition to any self-determination process has virtually crushed it, at least for now.
The main obstacle to the recognition of Somaliland by other countries, which otherwise appreciate the extraordinary democracy and stability it has built, lies in Mogadishu. And you don't have to be an expert on the Middle East to conclude that in Palestine's struggle to become a state, the most important is Israel (right behind it is the United States).
Fifth, which is more acceptable to liberation movements: never give up. For decades, statesmen and so-called experts believed that East Timor would never gain independence from Indonesia. The leaders of East Timor, when they were not in prison, but in exile, would walk the corridors of institutions like the UN, where at best they were met with polite rejection and open indifference (I have experienced the same many times). They never gave up. Even today East Timor is independent. I met the brave leaders of West Papua, which should be freed from the same oppression that East Timor suffered. Kashmir is not giving up either. At the very least, the continuation of their struggle requires some sort of resolution.
Sixth, the involvement of the "international community", just like international law, does not mean much. You could fill a library with UN resolutions calling for a Palestinian state, including General Assembly resolution 67/19 11317 which gave Palestine some sort of UN membership and resolutions 242 and 338 which stipulated the so-called two-state solution, but Palestine is not independent.
For Western Sahara, the UN Security Council agreed in 1991 that a referendum for self-determination should be held and has repeated that commitment every year since then. An expensive UN mission was established and remains to implement that referendum. "International community", i.e. the powerful countries that run the UN known as the P5 have done nothing to fulfill their commitment. I have told my Palestinian friends many times: it is a big mistake to think that "they", just because they promised you a state, will one day fulfill their obligations and grant it to you. It doesn't work that way.
Seventh, in all recent cases of contested self-determination, the United States has been central. Kosovo and South Sudan became independent because the US decided so and gathered the rest of the international community. If the US decides it's time for a truly independent Palestinian state - as it should - then I think it will happen. In this area, the multipolar world has not yet manifested itself. As a sort of opposition to Kosovo, whose independence Moscow formally opposed (but actually privately agreed to), Russia encouraged the independence of Abkhazia and South Ossetia. These potential states have been recognized by a total of five other countries, including Russian satraps Venezuela and Syria. However, whether US decisiveness will withstand the current decline in influence is another matter.
Finally, the worst of all lessons.
Somaliland is a democracy and a beacon of stability in the war-torn Horn of Africa. It has a strong legal case for statehood, as it existed before the creation of Somalia. Its population overwhelmingly voted for independence. It has been peacefully demanding to be accepted as an independent country since 1991 (and has been an independent country since the British left). It is not recognized by any other country and it is humiliating that the BBC calls it a "breakaway" country.
The Polisario Front, which represents the indigenous population of occupied Western Sahara, has been conducting peaceful but unsuccessful diplomacy for nearly three decades, demanding that the international community fulfill its promise of a referendum on self-determination. All the while, he refuses to return to the liberation struggle by military force, despite many provocations, including the alleged annexation of that territory by Morocco. They showed boundless patience and commitment to a peaceful solution. The result? There is no referendum and there is little chance that there will be one. The Polisario and the 175.000 refugees expelled by Morocco in 1975 remain in refugee camps in the Sahara.
One morning in New York, just before South Sudan's independence referendum, the UN Security Council held an official meeting to support the vote. Dignitaries such as Hillary Clinton, then US Secretary of State, and UN Secretary General were present. I was there with the South Sudanese leader of the Sudan People's Liberation Movement (SPLM) who was invited to speak at that magnificent forum. Coincidentally, on the same day, but in the afternoon, the Security Council met privately in so-called "informal consultations" to discuss, but not do anything, about Western Sahara. The Polisario Front was not invited to speak, but waited with them outside a private room. The leader of the SPLM stopped and I met them: two leaders of the liberation movement are meeting, both ex-guerrilla fighters, both seeking independence. The first question that the Western Sahara representative asked the South Sudanese was: why did you get a referendum on independence and we didn't? The SPLM leader did not hesitate to answer: because we told everyone, very clearly, that if we don't get it, tomorrow we will go back to war.
I learned exactly the same lesson in Kosovo. The UN Security Council refused to do anything about the final status of Kosovo for years after the NATO intervention that ended Serbia's control of the province in 1999. There was a lot of talk, but nothing was done to resolve the issue of independence demanded by the majority of the Albanian population. Kosovo saw deadly riots in 2004, fueled by intense frustration at the lack of progress. The province seethed with violence. High-ranking officials from the US and the EU came to visit, their faces grim. I was there at the time (the British government sent me to the UN) and I told them: make this place independent or you will get more of this, and worse. Others have said the same. None of the countries involved would admit it, but it was the violence that fueled the "final status" process that ended with the declaration of Kosovo's independence in 2008.
Some sort of international consensus and forum is needed to address the many, potentially violent, demands for self-determination around the world. The arbitrary drawing of borders by incompetent colonial officials in the Middle East, Africa and Asia left many crises unresolved. Kashmir, the source of conflict between the two nuclear-armed countries, is not only of local interest. We need some accepted criteria for assessing the legitimacy of such claims, including, for example, the protection of minorities, non-interference by outside powers and democratic support, and a place where these can be reasonably discussed. Courts are not suitable for such disputes. These are political issues that should be resolved by political means - negotiation.
That is the advice I gave to the leader of the independence movement. It is not easy to accept all these observations. Although he is involved in war, he is a man of peace and reason.
I am not happy to tell him that the threat of war was decisive in the two cases of "successful" self-determination in which I participated, but it is true. In both cases, the resulting states were plagued by problems and, in the case of South Sudan, by horrific violence, which arose out of local rivalries: an example often carelessly used around the world to repel those seeking new states. However, I am sure that he, like me, would wish otherwise - that there was a way to deal with the demand for self-determination more sensibly and, above all, peacefully.
The strange case of Montenegro
In one strange case, law really mattered. But that was not international law. In the case of Montenegro, Serbia and the rest of the world accepted the referendum on Montenegro's independence, and later independence, due to its status as a republic in the constitution of the short-lived state of the Federal Republic of Yugoslavia, a status derived from Tito's constitution of the communist federative Yugoslavia.
Kosovo did not enjoy such a constitutional status, although it was part of that country, which was one of the arguments used by Serbia to oppose the otherwise equally legitimate claim for independence.
One necessary conclusion, the third lesson: law does not and should not define legitimacy.
Translated and edited by: Angelina Šofranac
Bonus video:
