It used to be easier to be an imperialist. In previous times, if ambitious countries had the means and the desire to expand their empires, they could and would do so; if ordinary people were killed in the process, well, that’s why they were ordinary people. The modern world, though, is supposed to be one ruled by law, and thus modern imperialists feel the need to cite high-minded justifications for their incursions.
The Russian adventures in Ukraine have received such justifications. There have been appeals to international legal precedent, including the recognition given to Kosovo; to democratic norms, and the supposed legitimacy of the Crimean referendum on secession — carried out under the watchful eyes of Russian gunmen; and to the importance of linguistic preservation, with Russian President Vladimir Putin himself citing a duty to unify the world’s Russian speakers into one political community.
Lurking behind all of these justifications, though, is the common idea of self-determination, one of the central values of modern international law. Putin’s supposed justifications for his military’s actions are plausible only because the international legal system has enshrined self-determination as a core legal principle. With that principle, he can claim that he is acting on behalf of the rights of the ethnic Russians of eastern Ukraine. These people, Putin said in May, are Russian in “history and memory,” and their decision to be absorbed by Russia was “the will of the people.” Respecting their self-determination thus requires respecting Putin’s decision to acquire their lands. Self-determination was originally a norm set up to combat imperial ambition; Putin’s use of this concept to expand his territorial borders is, at the very least, tinged with irony.
This irony is made possible because self-determination is an obscure norm, and Putin has made excellent use of this obscurity. The norm arose in the first part of the 20th century, and finds its first legal expression in the charter of the United Nations, which takes the “principle of equal rights and self-determination of peoples” as one of its basic tenets. For the U.N., the term had a largely political dimension; the “peoples” holding the rights of self-determination were political states, and the right of self-determination entailed the political right to be free from outside domination. The right of self-determination was intended to work with, rather than against, the idea that each state’s territorial integrity was to be respected. This notion of self-determination was not always understood in democratic terms, but democracies could easily understand themselves as self-determining, since citizens of a democracy shared the task of ruling themselves. The crime most directly contrary to self-determination, on this account, was aggression — the seizure of another state’s territory and population.
As the decolonization movement took off in the postwar period, though, a more identity-based account of self-determination began to gain legal currency. In the 1966 International Covenant on Civil and Political Rights, self-determination rights were ascribed to peoples, understood now as national or ethnic communities, regardless of whether those communities existed as sovereign states. For the first time, the notion of self-determination made reference to a self that was defined in terms of culture, or language, or ethnicity or some other marker of personal identity apart from legal statehood. The primary crime against self-determination, on this account, was not aggression but colonial domination; all subordinated communities had a right to emerge from the colonial relationship.
That this represented a radical shift from the original understanding of self-determination was not recognized at first. The colonial relationship, after all, combined both political and identity-based forms of oppression, as the colony was marginalized in terms of both political self-government and ethnic equality. The British Raj, for example, denied Indian citizens political equality with English citizens, and did so because of an explicit belief in the racial and national superiority of the English. The shift in emphasis from political self-determination to identity-based self-determination made comparatively little difference in practice; on either account, the Indian people had a right to self-determination, and this right would require the British to give up their territorial jurisdiction over India.
Herein lies the problem: In many modern conflicts over territory, the two accounts of self-determination give us wildly different answers. Many modern secessionist movements — such as those in Scotland, Quebec and the Basque country — aim to separate from states that do not treat their minority communities as inferiors. Whether self-determination as a norm provides those communities with the right to secede, then, depends crucially upon which version of self-determination is in play.
On the first, political vision, it is not clear that all communities that understand themselves in national terms have a right to political independence. We might, instead, say that the members of those communities already have what self-determination demands: They are equal citizens of a democratic community and have some reasonable chance to be heard in that country’s political bodies. National identity is not, on this count, directly relevant to self-determination. It may become relevant, of course, if people are subjected to discrimination or injustice in virtue of national membership; but secessionist self-determination would be, on this account, a response to violations of right, rather than a right in itself.
On the second, identity-based vision, no such rights violation is needed; it is simply true that nations should become states, or something like states, and self-determination is a norm that implies that ethnic and cultural nations should be given the political tools needed to govern themselves. Self-determination, on this latter account, is a radical principle; since all modern states — Russia included — include members of multiple communities, this vision of self-determination would entail the wholesale redrawing of all existing borders.
The problem, then, is that self-determination is an obscure term prone to misuse. This makes it comparatively easy for Putin and others to provide their territorial claims with an unearned moral gravity. When Putin cites the self-determination of Ukraine's Russian speakers, he is implicitly invoking the moral imperative of the anti-colonial movement — and who, after all, could be against that? As used by Putin, though, the self-determination norm involves not only this sort of moral imperative but a great deal else as well. The principle he invokes — that all ethnic groups or national minorities should be encouraged to form their own states — is one he himself has repeatedly rejected; he has felt no need to defend the self-determination rights of Chechnya, after all. But the principle of self-determination has come to mean at least two different things, and this fact enables political leaders like Putin to disguise their hypocrisy.
What, then, should be done? I do not mean what should be done about Putin’s adventurism in Ukraine; I am focusing only on international law, and international law is at best a partial and inadequate tool with which to restrict the territorial ambitions of men such as Putin. We have reason, though, to make this limited tool the best tool it can be, and that means that the U.N. — and the international community generally — must clarify what the idea of self-determination requires. If we were able to say with some degree of confidence that the norm of self-determination included the right to meaningful participation in government, but not the right to have one’s nation line up with one’s state, then at the very least Putin might find it more difficult to use the language of self-determination to justify his actions.
The actual value of this result should not be overstated. If faced with a choice between international legality and territorial expansion, Putin might well decide to choose the latter, abandoning all pretense of legal justification. Even this, though, might be preferable to the moral murkiness of our present situation; faced with the obscurity of the modern conception of self-determination, we might well prefer a world in which a clear law is clearly violated. Even if we cannot always figure out how to respond to evil, it is at the very least a good first step to call it by its rightful name.