1) The perceived preeminence of the right of self-determination.

As the right of dependent peoples to be free, the right to self-determination, became a recognised international law principle in 1950-60s. There is a disagreement whether it is in this sense that the right to self-determination is mentioned in Articles 1(2) and 55 of the United Nations Charter⁵⁰, but the wording of the 1960 Declaration of the Granting of Independence to Colonial Countries and Peoples (G.A. Res. 1514) is unambiguous:

Convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national sovereignty,

Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations [and] declares that:

1. The subjection of peoples to alien [.] domination [.] constitutes a denial of fundamental human rights, is contrary to the [UN Charter] and is an impediment to the promotion of world peace [..]

2. All peoples have the right of self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.

The right of self-determination was reaffirmed in common Article 1(1) of 1966 International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights. Importantly, the covenants reaffirmed it without strengthening the distinction between the dependent peoples separated from their once conquerors by blue and salt water⁵¹ and the dependent peoples residing within the established sovereign states. In a similarly ‘universal’ manner the right of self-determination was addressed in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations (G.A. 2625). The declaration stated that States have the

duty to promote [..] the realisation of the principles of equal rights and self-determination of peoples..

in order [..] to bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned, [..] bearing in mind that subjection of people to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter of the United Nations.

The declaration also maintained that

The establishment of a sovereign and independent State [..] constitute[s] mode of implementing the right to self-determination by that people.

and that

Every State has the duty to refrain from any forcible action which deprives peoples [..] in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against and resistance to such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the [UN] Charter.

Later, the right of self-determination made the texts of the 1975 Final Act of the Conference on Security and Cooperation in Europe (1.a.VIII), a series of European regional human rights instruments and the 1992 Declaration of the Rights of Persons Belonging to the National, Ethnic, Religious and Linguistic Minorities (GA Res. 47/135), and many other international law documents.⁵² As such, it appears to be a generally accepted pillar of the contemporary international legal and normative framework. Yet the question under consideration is not whether the right of self-determination is internationally accredited. The question is rather whether this right can be rightly seen as preeminent to other rights, such as individual human rights, states’ rights to territorial integrity, and states’ and individual rights to be free from coercion and violence. Specifically, in reference to the details of the Chechen conflict, can Dzhokhar Dudaev’s reading of the self-determination principle as prevailing over other rights be justified?

A positive inquiry into the question (that is: Is there anything in the international law framework that signifies the preeminence of this interpretation of the self-determination principle) is associated with many difficulties. To the extent possible it will be considered in part III. For the purposes of this section, a negative type of inquiry may suffice - Is there anything that would delineate that the right to self-determination is not preeminent? If so, what is it subordinated to and on what grounds?

The latter questions are tricky, as answers to them are likely to be ideologically underpinned. Specifically, an answer to whether individual human rights are superior to the right of self-determination requires an a priori (and semi-religious) commitment to either ‘individual’ or ‘collective’ life. This commitment, in turn, is structurally predetermined. Thus, if I am a member of a recognised social entity, such as Russia, and to the end that it is populous and recognised, have good reasons to believe that it, with its linguistic and cultural characteristics, will not become extinct if I or any other individual member vanishes, I would rationally disregard ‘Russia’s right to life’ whenever it is disconnected from an immediate threat to Russian citizens’ individual rights to life. In other words, identifying ourselves with relatively non-endangered social entities, as states appear to be in the post-WWII environment, we naturally assign preeminence to individual ‘basic’ human rights over all other ‘non-basic’ rights, such as minorities’ collective right to life and complete political independence. On the contrary, if I am a member of the Chechen or Tatar minority and believe that my ethnic group is on the verge of extinction via rather peaceful but irreversible socio-economic assimilation (it is just more remunerative for children growing in the Russian Federation to become the Russians than the Chechens or the Tatars), I may be more inclined to assign preeminence to the more ‘basic’ group’s right to life, subjecting ‘non-basic’ individual rights to life to a mission of liberation.

Importantly, it is the latter reading prioritising the collective (state) right to free life over individual human rights that is characteristic of the westphalian international legal system. It is conceivable to the end that the sovereign entities of the previous centuries were more in the ‘endangered’ position of minorities of today than in the stabilised, especially with the emergence of nuclear weapons, position of today’s states.⁵³ Whether or not a post-westphalian international order will instead prioritise individual human rights to states’ rights remains to be seen. As of now, even with the strengthening of international human rights discourse, there are rather few indicators of the preeminent position of individual rights vis a vis states’ rights, and the question really is on what grounds, if any, the collective rights of states are held superior to the collective rights of ‘semi-states’ - politically mobilised linguistic identities.

This second question is just as difficult. On the surface, the westphalian legal framework holds the sovereign rights superior. The problem is deeper: the westphalian system does not legally specify what is it – ‘sovereignty’ and where it comes from. Whatever assumptions of the previous centuries, in 2000s it is virtually impossible to authoritatively justify why sovereignty lies in anything other than people. If it does lie in people, why is it indivisible. If it is essentially divisible, how could there be any legal abstract postulations of the superiority of some collective entities over others. Such unearthing of sovereignty brings more questions than answers, and having unpacked it for the question in hand, it is prudent to leave it. What matters in the conclusion of this section is that legal and normative foundations for holding the rights of ‘semi-states’ inferior to 1) the rights of individuals and 2) the rights of states are non-existing or frail to meaningfully counteract an a la Dudaev reading of the right to ethnic self-determination as preeminent to other rights.