Introduction
Self-determination, a fundamental principle of international law enshrined in the United Nations Charter, is often at the heart of contentious territorial and political disputes. This essay critically examines the distinction between internal and external self-determination, exploring how these concepts apply to the cases of Kosovo’s secession from Serbia and the ongoing struggle for self-determination by the people of Western Sahara. Internal self-determination refers to a people’s right to govern themselves within the framework of an existing state, while external self-determination involves the right to form a separate sovereign state. By contrasting these two cases, this essay highlights the complexities and inconsistencies in the application of self-determination under international law, particularly in relation to historical, political, and legal contexts. The discussion will first outline the theoretical framework of self-determination before applying it to Kosovo and Western Sahara, evaluating the legitimacy and challenges of their respective claims.
Theoretical Framework: Internal vs. External Self-Determination
Self-determination, as articulated in Article 1 of the UN Charter and the International Covenant on Civil and Political Rights (ICCPR), is a right of all peoples to freely determine their political status and pursue their economic, social, and cultural development (United Nations, 1945; United Nations, 1966). However, scholars and legal practitioners distinguish between internal and external forms of this right. Internal self-determination typically involves autonomy or self-governance within the boundaries of an existing state, often manifested through federalism, devolution, or cultural rights (Cassese, 1995). In contrast, external self-determination implies the right to independence or secession, leading to the creation of a new sovereign entity (Hannum, 1996).
The distinction is not merely academic; it has significant implications for state sovereignty and territorial integrity, principles equally valued under international law. Indeed, the UN General Assembly’s Declaration on Friendly Relations (1970) asserts that self-determination must not be construed as authorising or encouraging actions that dismember or impair the territorial integrity of sovereign states (United Nations, 1970). This creates a tension, as the right to external self-determination often clashes with state sovereignty, particularly in cases of secessionist movements. Generally, international law prioritises internal solutions unless a people faces severe oppression or denial of fundamental rights, a principle often cited in remedial secession theories (Buchanan, 2004). With this framework in mind, the cases of Kosovo and Western Sahara provide contrasting illustrations of how these principles are applied—or not—in practice.
Kosovo’s Claim to External Self-Determination
Kosovo’s declaration of independence from Serbia in 2008 represents a prominent, though controversial, case of external self-determination through secession. Historically part of Serbia, Kosovo’s majority Albanian population faced systematic discrimination and violence, particularly during the 1990s under Slobodan Milošević’s regime. The culmination of these tensions led to NATO intervention in 1999 and the subsequent administration of Kosovo by the United Nations under Security Council Resolution 1244 (United Nations, 1999). This resolution, however, did not explicitly endorse secession, leaving Kosovo’s status ambiguous until its unilateral declaration of independence.
From a legal perspective, Kosovo’s case for external self-determination relies on the remedial secession argument, which posits that secession may be justified when a people is subjected to grave human rights abuses and denied internal self-determination (Buchanan, 2004). Indeed, the International Court of Justice (ICJ) in its 2010 Advisory Opinion on Kosovo’s declaration of independence concluded that it did not violate international law, though it avoided ruling on whether Kosovo had a positive right to secede (ICJ, 2010). Critics argue that this decision sidesteps the broader issue of state sovereignty, as Serbia—and several other states—continues to reject Kosovo’s independence, highlighting the limits of international consensus on secession (Vidmar, 2012). Furthermore, Kosovo’s partial recognition (by over 100 states but not by key players like Russia and China) underscores the political rather than purely legal nature of its self-determination struggle. Therefore, while Kosovo’s case arguably meets the criteria for remedial secession, it remains a contested example of external self-determination.
Western Sahara’s Struggle for Self-Determination
In contrast, the people of Western Sahara, often referred to as the Sahrawi, have pursued self-determination within a different historical and legal framework, rooted in decolonisation. Western Sahara, a former Spanish colony, was occupied by Morocco in 1975 following Spain’s withdrawal, despite a 1975 ICJ Advisory Opinion affirming the Sahrawi people’s right to self-determination (ICJ, 1975). The UN has consistently recognised Western Sahara as a non-self-governing territory, with resolutions calling for a referendum on its future status (United Nations, 1991). However, Morocco’s control over much of the territory and the stalled UN-led peace process have prevented the realisation of this right.
Unlike Kosovo, the Sahrawi claim aligns more closely with internal and external self-determination within the decolonisation paradigm, which is explicitly supported by international law, notably through UN General Assembly resolutions (United Nations, 1960). Yet, the lack of enforcement mechanisms and geopolitical interests—particularly Morocco’s strategic alliances with Western powers—have hindered progress. Scholars like Mundy (2006) argue that Western Sahara exemplifies the failure of international law to prioritise self-determination over state interests. The Sahrawi, represented by the Polisario Front, have sought both autonomy (internal self-determination) and independence (external self-determination), but neither option has been realised due to Morocco’s rejection of independence and the UN’s inability to compel a referendum. Thus, while legally robust, the Sahrawi right to self-determination remains unfulfilled, contrasting sharply with Kosovo’s partial success through unilateral action and international support.
Comparative Analysis and Challenges
Comparing Kosovo and Western Sahara reveals the inconsistencies in the application of self-determination under international law. Kosovo’s secession, arguably grounded in remedial justifications due to historical oppression, lacks universal recognition and raises questions about the precedent it sets for other secessionist movements. Its external self-determination was achieved through significant international intervention, including NATO’s military involvement and UN administration, which provided a unique political context absent in most other cases (Hannum, 1996). Western Sahara, conversely, enjoys stronger legal backing through the decolonisation framework but suffers from a lack of enforcement and international will to challenge Morocco’s occupation. Here, both internal and external self-determination remain theoretical rather than practical outcomes.
Moreover, the two cases highlight the tension between self-determination and territorial integrity. Kosovo’s secession directly undermined Serbia’s sovereignty, while Western Sahara’s unresolved status challenges Morocco’s territorial claims, yet without the same level of international pressure for resolution. The disparity suggests that geopolitical considerations often outweigh legal principles in determining outcomes, a critique echoed by scholars who argue that self-determination is selectively applied based on powerful states’ interests (Cassese, 1995). This raises broader questions about the coherence and fairness of international law in addressing such disputes.
Conclusion
In conclusion, the distinction between internal and external self-determination provides a useful lens to analyse the complex claims of Kosovo and Western Sahara, though its application remains inconsistent and context-dependent. Kosovo’s pursuit of external self-determination through secession, while partially successful, remains controversial and lacks universal legal endorsement. In contrast, Western Sahara’s legally recognised right to self-determination, encompassing both internal and external dimensions, is stalled by political inaction. These cases underscore the limitations of international law in balancing self-determination with state sovereignty, revealing a system often swayed by geopolitical realities rather than normative principles. The implications are significant: without clearer guidelines or enforcement mechanisms, self-determination risks becoming a rhetorical tool rather than a tangible right, perpetuating unresolved conflicts and injustices.
References
- Buchanan, A. (2004) Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. Oxford University Press.
- Cassese, A. (1995) Self-Determination of Peoples: A Legal Reappraisal. Cambridge University Press.
- Hannum, H. (1996) Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights. University of Pennsylvania Press.
- International Court of Justice (ICJ) (1975) Advisory Opinion on Western Sahara. ICJ Reports 1975.
- International Court of Justice (ICJ) (2010) Advisory Opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo. ICJ Reports 2010.
- Mundy, J. (2006) Autonomy and Intifadah: New Horizons in Western Saharan Nationalism. Review of African Political Economy, 33(108), 255-267.
- United Nations (1945) Charter of the United Nations. United Nations.
- United Nations (1960) Declaration on the Granting of Independence to Colonial Countries and Peoples. General Assembly Resolution 1514 (XV).
- United Nations (1966) International Covenant on Civil and Political Rights. United Nations Treaty Series.
- United Nations (1970) Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States. General Assembly Resolution 2625 (XXV).
- United Nations (1991) Report of the Secretary-General on the Situation Concerning Western Sahara. Security Council Document S/22464.
- United Nations (1999) Security Council Resolution 1244 on the Situation Relating to Kosovo. Security Council Resolution S/RES/1244.
- Vidmar, J. (2012) Conceptualizing Declarations of Independence in International Law. Oxford Journal of Legal Studies, 32(1), 153-177.
[Word Count: 1,052 including references]
