Secession And International Law: Conflict Avoidance-regional Appraisals

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SECESSION AND INTERNATIONAL LAW - Regional Appraisals Prepared under the auspices of The Consortium on International Dispute Resolution, Geneva, on the basis of regional conferences organized by and in collaborationwith: The TM.C. Asser Institute, The Hague The Santa Clara Universiw School of Law, California The Diplomatic Academy and The Russian Association of International Law, Moscow

Edited by Julie Dahlitz Published in cooperation with the T.M.C. Asser Press

UNITED NATIONS NEW YORK AND GENEVA, 2003

Note The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its fiontiers or boundaries. The views expressed are those of the persons who wrote them, as indicated, and do not necessarily reflect the positions of the sponsoring organizations or any other institution or Govemment.

Copyright 0United Nations 2003 All rights reserved Written permission for any extensive reproduction should be obtained fiom: Secretary, Publications Board, United Nations, New York, NY 10017, United States of America

Hardcover edition published for and on behalf of the United Nations by T.M.C. Asser Press: ISBN 90-6704-142-4 Softcover edition published by United Nations, New York and Geneva. (UN Sales Number:) Sales No. GV.E.0 1.O.23 ISBN 92- 1-000144-3

TABLE OF CONTENTS Introduction Participating Institutes PART I Secession in Society and Law Self-determination and Secession Judge Rosalyn Higgins (United Kingdom) Order, Stability and Political Reality J. Holmes Armstead (United States) Self-determination and Secession: The Jurisprudence of International Human Rights Tribunals Dinah Shelton (United States) PART I1 Fundamental Legal Concepts Ongoing Global Legal Debate on Self-Determination and Secession: Main Trends Stanislav V. Chernichenko and Vladimir S. Kotliar (Russian Federation) A Legal Basis for Secession: Relevant Principles and Rules John Dugard (South Africa)

Secession and International Law

Secession and the Ban on the use of Force: Some Reflections Nico Schrijver (The Netherlands) PART I11 Evolving Principles Territorial Integrity and Secession: The Dialectics of International Order W.E. Butler (United Kingdom) Sovereignty And Secession: Then and Now, Here and There Rein Mullerson (Estonia) PART TV Specific Issues Qukbec's Right to Secessionist Self-Determination: The Colliding Paths of Canada's Clarity Act and Qukbec's Fundamental Rights Act Daniel Turp (Canada) Secession in North America: The United States & Puerto Rico J.L.A. de Passalaqua (Puerto Rico) Latin America: Self-Determination, Minorities, Indigenous People, Stability of Borders and Problems of Secession Fernando Flores (Ecuador)

Table of Contents

The Role of Recognition and Non-Recognition with respect to Secession: Notes on Some Relevant Issues Malcolm N. Shaw (United Kingdom)

243

Conclusions and Recommendations

259

Notes on the Authors

275

Abbreviations and Acronyms

283

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INTRODUCTION The underlying perception motivating this series of studies is, that a system of legality that is practical in its application and perceived to be just by those to whom it applies, is a necessary element in maintaining a peaceful society. Further, that this principle is also valid in the international arena, where it is an indispensable element for conflict prevention. Regarding matters affecting the supreme security interests of States, identifying and developing international law and the rules of the road for international conduct, are truly daunting tasks. They cannot be achieved merely by scholarly research into the minutiae of precedents. Yet, any departures or re-formulations must be undertaken with great caution, so as to ensure that the achievements of the past are not compromised. One method of exercising the necessary caution is for non-governmental academic entities to conduct the exploratory work, with the assistance and in close co-operation with the United Nations and its Member Governments. This book is such a work in progress. From their inception, these studies on Secession and International Law were designed to enable the diplomatic community to arrive at consensus positions in the matters under consideration not by papering over the divisive problems but by solving them. For helpful outcomes in this terrain, it is essential to realign the work in keeping with the evolving global political outlook. That can only be achieved in a United Nations context. The background to the decision to explore secession related international law, was provided by a Study initiated by the Consortium on International Dispute Resolution (CIDIR) on the Peaceful Resolution of Major International Disputes, resulting in a book by that title1,which was presented at the Centenary commemoration of the first International Peace Conference, held at The Hague in

Secession and International Law

1999. That Study concentrated on satisfactory solutions already found for some seemingly intractable problems. This time, while satisfactory solutions have been achieved in some instances of confrontational secessionist aims, the blueprint for arriving at such outcomes fails to maintain the peace in too many instances. Identification of a problem correctly is the first and most significant step in its solution. The subject of this book concerns the principles and rules of international law as they apply to the involuntary fragmentation of sovereign States. It is a subject so fraught with difficulty - causing widespread bloodshed and international hostility in many regions - that examination of its most crucial and controversial aspects is avoided in academia, as well as by the diplomatic community. Theirs is not a slothful neglect but the consequence of concern that it may be too difficult to reach consensus on the issues at the present stage of development of international law and international relations. The above attributes of importance and difficulty constitute exactly the type of subject that CIDIR is designed to address. The initiative to undertake the challenge arose fiom discussions facilitated by a world Conference in connection with the previous Study. The present volume - and the Regional Conferences that gave rise to it - do not purport to be the end of a quest but only its systematic beginning. The series of Regional Conferences on the subject of Secession and International Law commenced with a Preparatory Conference, held in Geneva in collaboration with the Graduate Institute of International Studies. The following Conference was organized by the Diplomatic Academy of the Russian Federation and the Russian Association of International Law, under the auspices of CIDIR, with participation fiom the Region of the Commonwealth of Independent States (CIS). This Conference was held in Moscow and, like all the others, concerned itself with the issues on a global basis, although participation was regional. Next came

Introduction

a predominantly local Conference, conducted in a similar vein, held in Sydney and arranged by the Australian Branch of the International Law Association, together with the Australian Institute of International Affairs. The subsequent Regional Conference was held in collaboration with the University of Santa Clara School of Law, in California, encompassing participants from both North and South America. The final Regional Conference was conducted at The Hague, jointly with the T.M.C. Asser Institute, with participation from European States beyond the territory of the CIS. All of the Regional Conferences were held during the years 2000 and 200 1. It should be noted that it was the intention of CIDIR to hold additional Regional Conferences in Afi-ica and Asia but these did not eventuate due to lack of time and resources. Hopefully, colleagues from those parts of the world will actively participate in an envisaged future Global Conference. Strategies employed were, first, to attempt deleting from consideration all issues of general agreement, so as to allow more time and space for contentious issues. This has been only partly successful, as the contents will demonstrate. Secondly, it was sought to resolve and confirm legal principles and practice where the content of the law is relatively certain, even if not sufficiently clearly stated. Lastly, there was identification of emerging law on the subject, together with new proposals advocated by some participants. There was, of course, considerable disagreement as to which aspects of the law are merely emerging, de legeferenda, and which have already emerged, de lege lata. Also, as to what are the valid criteria and appropriate fora for determining that distinction in connection with secession related issues. It is well known that the fact and consequences of forceful secession and secessionist movements are the increasingly frequent subject of international discourse and decision making in numer-

Secession and International Law

ous connections. A few cases have even resulted in the enunciation of non-conclusive legal dicta. Predominantly, however, such references concern the propriety of foreign intervention in the internal affairs of States in response to violence or breach of human rights; at whose request such intervention may occur; under whose control; and at whose cost. Also, as to which international bodies/ States are to be involved in decision makmg regarding the devolved States and territories, as well as in the punishment of "terrorists/ dictators/fieedom fighters", and so on. The cluster of questions that is habitually neglected: comprises precisely the ones that are central if upheaval is to be prevented at the outset or, better still, put beyond contemplation. They concern the issues of the legality or otherwise of the aspiration to secede in deJned situations, as well as the appropriate means by which secessionist aims may be pursued or resisted. Those are the issues to which the eminent authors of this volume have turned their minds. It is in the nature of law that every case is factually different. Equally pertinent is the tenet of the law which demands impartiality, meaning that all cases must be judged by the same criteria, while variations in treatment due to factual differences have to be on the basis of clear distinctions made on equitable grounds. Those requirements apply whether they relate to the pronouncement of a Court or another kind of decision making body exercising a quasi judicial function, such as the Security Council or a regional body. The alternative to impartial justice is the law of the jungle. That may be acceptable in the jungle, where battles are fought with claws and teeth, but not so where they are waged with the threat and use of contemporary weaponry. An approximation to desirable levels of international legality has been achieved in many fields, notably in the application of commercial law. Regretfully, the law relating to secession is, at present, at the opposite end of the spectrum. The Geneva Preparatory Conference established the parameters

Introduction

of this Study and they were largely adhered to at all of the Regional Conferences, ensuring that all participants were discussing exactly the same topic. The three main Regional Conferences produced a series of substantive "Conclusions and Recommendations", achieved with an approximate consensus. Those documents are reproduced separately. It was accepted from the outset that the absence of a universally agreed set of coherent and consistent principles of international law relating to forceful secession, is one of the most serious obstacles to achieving international peace and security. Finding the key to forestalling secession related violence would be a prime means of conflict prevention. There is a pressing need to halt the ricochet effect of relatively insignificant minority grievances leading to escalating reactions and, ultimately, resulting in irreconcilable hostility. Then, in turn, providing the fertile ground for foreign international rivals to encourage violent secession and so create their proxy battlefield - to the severe detriment of both the indigenous majorities and minorities alike. However, important as it is, that scenario is only one of several that require urgent attention. The detailed parameters of the Study were designed to advance conflict prevention to the maximum extent. Those parameters are as follows: Detailed Objectives To stimulate developments in international relations and international law so as to bring into harmony the divergent notions concerning a right to secession that lead to an alteration of national borders. To those ends it was thought necessary to establish more clearly the nature of the problems associated with secession; assess whether and, if so, in what way and to what extent there are inconsistencies and contradictions between legal rules and

Secession and International Law

principles relating to the subject; to propose solutions or interim remedies with regard to any matter concerning secession that is deemed to be unsatisfactory or unclear in the law as it stands today, being of a nature that is both universally applicable and drawing distinctions between the manner of application only on the grounds of universally valid and equitable criteria; and give consideration to the best manner in which the law may be changed, as required, so as to meet with - as far as possible universal approval among States. Definition of Secession For the purpose of the Study, the following definition was accepted: "The issue of secession arises whenever a significant proportion of the population of a given territory, being part of a State, expresses the wish by word or by deed to become a sovereign State in itself or to join with and become part of another sovereign State". Scope Guidelines were laid down regarding the scope and content of the Study, requiring that it should concentrate on issues concerning sovereignty, selfdefence, self-determination and humanitarian law, as they apply to secession; proposals should be sought for a set of coherent and consistent principles and rules of international law to be observed with regard to secession related issues and they should be universally applicable, even if not universally enforceable at present; all proposals must be evaluated on their potential to obtain broad international support; regarding the possible implementation of proposals, the involve-

Introduction

ment of international organs - existing or envisaged - ought to be considered. In order to confine the subject to manageable proportions, the following were to be excluded from consideration: any individual case, past, current or predicted, except by way of illustration of a general proposition; methods of enforcement; methods of devolution or self-government, whether by federation or otherwise, confining the discussion to issues that fall within the agreed definition of "secession". The exclusion fiom consideration of issues of self-determination, short of altering sovereign status, was decided upon merely so as to focus more intensively on the remaining issues and did not imply the attribution of insignificance to those matters. Without question, if a State can accommodate the needs and desires of its citizens by any system of subsidiarity, federalism or devolution, those are the best solutions to self-determination problems. However, steps toward those ends are basically matters of internal good governance. Similar considerations applied to other situations thought to enjoy general legal and diplomatic consensus. They comprised consensual separation; separation in accordance with constitutional provisions or treaties; and the granting of independence to peoples under overtly colonial rule. As envisaged in the preparatory guidelines, the principles of law which chiefly animated discussion at the Conferences related to the maintenance of territorial integrity of States; United Nations Charter prohibition of the threat or use of force except in situations of self defence; political independence and non-interference in the internal affairs of States; the right to self-determination of peoples; and the status of recent developments in human rights and humanitarian law. Some contended that the harmonization of these diverse rights and duties can be achieved under international 7

Secession and International Law

law as it stands. What is required, they contended, is to re-state the relevant principles with greater clarity, as well as more precision as to when and how the pertinent rights and duties may be invoked. Yet, even in accordance with that minimalist view, substantial elaboration is needed if consistency of application is to be achieved in the variety of situations that present themselves and those that are likely to arise in the future. The next step in the CIDIR project is to convene a Global Conference on the subject where, by utilizing the achievements of the Regional Conferences, further development could be attempted. Might it be possible there to achieve such order among the various principles, that the status in international law of all the far-flung instances of secessionist conflict could be equitably assessed in accordance with universally accepted standards? Notwithstanding the long-term topicality of these contents, there is an urgency for their publication. It is for this reason that certain niceties of form have been sacrificed for the sake of speed. For instance, several authors have retained the format of a speech, albeit updated in response to points raised during discussion. Acknowledgements Neither this book, nor the Conferences which preceded it, would have been possible without the enthusiastic and highly efficient partnership of the participating institutes already mentioned, whose backgrounds and activities are briefly described under Contributing Institutes. Together with the substantive input they imparted, their generous allocation of administrative time and of funds was essential to the outcome. Also, substantial funding was gratefully received from the Carnegie Corporation of New York towards The Americas Regional Conference and from the Ministry of Foreign Affairs of the Netherlands, which latter gift facilitated the organization of the European Regional Conference, as well as

Introduction

making possible the publication of its proceedings, together with input from the other two major Regional Conferences. Certain people have made especially significant contributions to this undertaking in their individual capacity. In the first instance there was the input of Professor Jiri Toman, Chairman of the Board of Directors of CIDIR, who also organized the Americas Regional Conference, and Dr. Vladimir Kotliar, Deputy Chairman of the Board, who was chiefly responsible for the organization of the CIS Regional Conference. Dr. Keith Suter organized the Sydney Conference. An Expert Consultant of CIDIR, Professor Emeritus Christian DominicC, was indispensable in the initiating stages of the Geneva Preparatory Conference. Finally but extremely importantly, another CIDIR Expert Consultant, Professor Karel Wellens, had a major role in the organization of the European Regional Conference. Of course the academic institutes hosting the three Regional Conferences made vital contributions to the fruitfhl outcome: Professor Prans A. Nelissen, Director of the T.M.C. Asser Institute; Professor Mack Player, Dean of the Santa Clara University School of Law; Ambassador Y. Fokin, Rector of the Diplomatic Academy of the Russian Federation and Professor A Kolodkin, President of the Russian Association of International Law; all headed efficient and committed staffs to confiont the many tasks. The contribution of the authors and the participants who drew up the several Conclusions and Recommendations is evident from the contents of the volume. All of the abovementioned input greatly eased my burden as CIDIR Co-ordinator in the organization of the interconnected project. The impression was inescapable that all shared the conviction as to the importance and urgency of the task undertaken, even those

Secession and International Law

who did not foresee an entirely successful resolution of secession related problems in the nearest future. Julie Dahlitz, Editor, Geneva, September 200 1 Dahlitz, Julie (Editor), Peaceful Resolution of Major International Disputes, United Nations, Sales No. GV.E.99.0.13 - ISBN 92- 1- 101000-4 (Hardbound) Sales No. GV.E.99.0.18, ISBN 92-1-101003-9 (Softbound) For a notable exception see J. Crawford, State Practice and International Law in Relation to Secession, The British Yearbook of International Law, 1998, p.85.

l

In Memory of Julie Dahlitz It was with great sadness that we learned that Julie Dahlitz had passed away early December 2001. Julie Dahlitz was diagnosed seriously ill soon after the final stages of the preparation of this book. The present volume is the outcome of an important project launched by Julie Dahlitz in the spring of 2000 in her capacity of Co-ordinator of the Consortium on Jnternational Dispute Resolution. CO-organisors,speakers and participants at the various Regional Conferences on Secession and International Law will always remember Julie Dahlitz as a unique woman: her professional qualities, drive and dedication in exploring the more difficult issues in contemporary international law were both a challenge and an inspiration to all of us who had the privilege of working with her. The death of Julie Dahlitz is also a great loss to the larger community of friends and colleagues who will have to continue their professional activities in international law and international relations without the benefit of her enthusiastic support and guidance. Karel Wellens, 11 February 2002

PARTICIPATING INSTITUTES THE T.M.C. ASSER INSTITUTE: established in 1965 and located in The Hague, The Netherlands, is an independent academic and inter-university institution in which all Dutch law faculties participate. The Institute cames out research in the fields of private international law, public international law, including international humanitarian law, the law of the European Union, the law of international commercial arbitration and, increasingly, also international economic law, the law of international commerce and international sports law. The primary objective of the Institute is the implementation of fundamental and applied academic research in these areas. The Institute's main activity is the implementation of fundamental academic research in the international-legal field. A team of expert researchers guarantees high standards. Among the Institute's multitude of research facilities there is an extensive international network of university and academic contacts. Another essential component of the Institute's objectives is to develop young talent. In addition to fundamental academic research, the Institute is also active in contract research and the provision of legal advice. This tailor-made applied research varies fiom finding ad hoc solutions to co-ordinating andor implementing long term research projects. The extensive range of resource of materials which the Institute has at its disposal is available to the public and may be accessed in the modem and well equipped library. The Asser Institute has established its own, specialised publishing house, T * M CASSER PRESS. Among the many publications of the Institute, the Yearbook of International Humanitarian Law, the Netherlands Yearbook of International Law and the Netherlands International Law Review deserve special mention.

Secession and International Law

THE AUSTRALIAN INSTITUTE OF INTERNATIONAL AFFAIRS: is an independent,non-profit organization, which promotes public education in international affairs, especially regarding Australia's role in the world. It achieves this both by serving as a think-tank, and through branch activities. As a think-tank it looks to the wider community and decision-makers, producing research publications, maintaining a web-site, and holding seminars. Branches conduct programs of regular meetings for members. While the Institute provides a forum for discussion and debate, it does not seek to take institutional positions on particular issues or to promote views of its own. Rather it seeks to bring to the attention of the community international issues relevant to Australia, and illuminate them with professional and expert understanding. One Foreign Minister described the Institute as "the preeminent, non-governmental institution dealing with all aspects of Australia's foreign relations". Established nationally in 1933, the National Office of the Institute is located at Stephen House, Deakin, ACT. There are branches in Melbourne, Sydney, Brisbane, Adelaide, Canberra, Perth, Hobart and Townsville. The Institute publishes the Australian Journal oflnternational Affairs. Established in 1946 under the name Australian Outlook, it remains Australia's leading professional journal dealing with international issues.

Participating Institutes

THE CONSORTIUM ON INTERNATIONAL DISPUTE RESOLUTION (CIDIR): is a Geneva based forum composed of organizations and individuals fiom around the world, expert in public international law and international relations. By facilitating exchanges they aim to help in the avoidance or peaceful settlement of any disagreements among States. Its purpose is to assist in the reduction and eventual elimination of the need for the threat or use of force in international relations. That is to result fkom the availability of an adequate range of institutions and methodologies, as well as universal acceptance of a body of principles and rules, whch would serve as an acceptable alternative for the settlement of conflicting vital interests. The expectation is to build on existing systems but without ruling out the option of amending or replacing them as may be required. CIDIR is engaged in the initiation and co-ordination of international activity and discourse for the creation of more efficient methods whereby disputes between States can be settled peacefully, with emphasis on disputes that involve their supreme security interests, and the dissemination of documents resulting from such discourse. These functions are achieved by enlisting the co-operation of the optimally widest range of legal, scientific and diplomatic experts and decision-makers on a global scale, including academics, professional practitioners, government employees, political leaders and officers of international organizations. The decision malung process relies on a six Member Board of Directors from six States and four continents, supported by a panel of Expert Consultants. The funding, decision-malung and methods of work of CIDIR are designed to guarantee maximum flexibility and independence, creating the possibility of fulfilling a pioneering role in the selected subject areas.

Secession and International Law

THE DIPLOMATIC ACADEMY OF THE MINISTRY FOR FOREIGN AFFAIRS OF THE RUSSIAN FEDERATION: is the leading educational institution in Russia providing a second education to diplomats and other specialists in international relations. Established in 1934, the Academy has since trained about 6000 diplomats. More than 400 of them have later become USSR or Russian Ambassadors abroad. Nowadays, all newly appointed ambassadors, minister-councillorsand consul-generalsof Russia have to take special short-term courses before they leave for a country of their appointment. There are over 180 teachers and researchers, including 60 professors and 90 doctors of sciences on the staff of the Academy. About 1000trainees study annually at the Academy, taking a two-year course of studies and a number of short-term training courses - among them over 300 career diplomats, officials from presidential and government bodies, as well as representatives of regions of Russia. The Academy has also graduate and doctorate schools where, annually, about 140 scholars prepare their dissertations. Research work at the Academy is carried out by its specially established division (1994) called the Institute for Contemporary International Studies (ICIS). There are several research centres in ICIS specialising in such topics as the Commonwealth of Independent States; the Asia-Pacific region; Europe; the Middle East and Afnca; America; global problems; intemational law; security; armaments control and peace-keeping; and intemational economic relations. Its staff consists of 45 members, while Foreign Ministry and Government officials also participate in the research work at the ICIS. The two major tasks of the ICIS are preparation of textbooks and manuals, as well as position papers and recornmendations for the Foreign Ministry. The Academy has developed wide ranging intemational co-op-

Participating Institutes

eration. Thus, in 1994-2001 its staff participated in over 70 international conferences organised together with academic and educational institutions of all the five continents of the world held in Moscow or in other venues around the globe. THE GRADUATE SCHOOL OF INTERNATIONAL STUDIES: was founded in 1927, at the peak of the internationalism associated with the League of Nations. At the time, the Institute was one of the first teaching and research institutions devoted to the graduate-level study of international relations. Today, it is an internationally recognized centre for the quality of its teaching staff, the rigorous selection of its students, and the relevance of its teaching research. Now, among the world's many international relations centres, the Institute stands out by virtue of its pluridisciplinary and international character. Four disciplines - international law, international economics, international history and politics, and political science - are taught at the Institute, with the goal of drawing on cross-disciplinary links to present a broad and sophisticated understanding of international relations. Its location in Geneva, the subjects in its curriculum, the composition of its teaching staff and the diversity of its student body, give it a cosmopolitan and dynamic character. Institute faculty members, who number around forty, come Erom all regions of the world. The Institute's international character is reinforced by the use of both English and French as working languages. The curriculum at the Institute is designed to give students a first rate education in any of its disciplines. Together, professors and students create a cosmopolitan institution where cultures meet and ideas are exchanged in a unique academic milieu.

Secession and International Law

THE INTERNATIONAL LAW ASSOCIATION (ILA): participated in the Conference series and the resulting volume through its Australian and Russian branches. The Association, which now has its Headquarters in London, United Kingdom, was founded in Brussels in 1873. Objectives under its Constitution include "...elucidation and advancement of international law, public and private, the study of comparative law, the making of proposals for the solution of conflicts of law and for the unification of law and the furthering of international understanding and goodwill". These objectives are pursued primarily through the work of International Committees and the focal point of its activities is the series of biennial conferences of which 69 have so far been held. At present the membership is about 4,200, spread among Branches in every continent. The ILA has consultative status, as an international non-governmental organization, with a number of the United Nations Specialized Agencies. SANTA CLARA UNIVERSITY SCHOOL OF LAW: is located in "Silicon Valley," an area of unique economic activity, being adjacent to the business and legal center of San Jose, the third-largest city in California. Since 1976, through the Institute of International and Comparative Law, the Santa Clara University School of Law has offered international legal programs to law students and attorneys in the United States and from abroad. International law, human rights, international humanitarian law, and international dispute resolution, among others, constitute the regular curriculum. The Institute regularly organizes conferences and it features a continuing education program, including the following: Master 5. Degree in United States Law for Foreign Lawyers: T hi S program leads to an LL.M. degree in United States Law. Master 5. Degree in International and Comparative Law: Recently

Participating Institutes

inaugurated, it provides a program leading to an LL.M. degree in International and Comparative Law. Introduction to United States Law: Ten courses are offered in an intensive five-week period. Esiting Scholars Program:Each year a small number of professors, judges, court officials and other legal scholars are admitted to the law school as Visiting Scholars. While they are given full use of the law library, they do not take examinations and are not awarded academic credit toward any law degree, and other facilities. Summer Law Study Abroad: The Santa Clara University School of Law has large summer programs conducted at 13venues: Bangkok; Beijing; Geneva; Ho Chi Minh City; Hong Kong; Kuala Lumpur; Munich; Oxford; Shanghai; Seoul; Singapore; Strasbourg; and Tokyo. Other programs are at the planning stage. International Law Certificate and International High Tech Certzficate:The program is intended for the law student interested in pursuing a career in the international arena. Regular publications are the Santa Clara Law Review Santa Clara Computer & High-Technology Journal and will soon include Santa Clara International and Comparative Law Journal.

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PART I SECESSION IN SOCIETY AND LAW

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SELF-DETERMINATION AND SECESSION Judge Rosalyn Higgins * I. The Conference Theme The overall theme of the Conference is Secession and International Law. Various of us have been asked to introduce the discussion on different aspects that touch on the question of secession. And thus what I have been asked to introduce to our discussion is the topic of self-determination and secession. As I started to prepare my remarks, the thought occurred to me that certain concepts of international law are so interrelated that one cannot understand the one without also understanding the other. Our understanding of any one of the concepts of self-determination, minorities and secession depends upon us also understanding the other two. Everyone of us here in this distinguished audience has followed, and indeed written on, these various matters. If the theme of our conference had not been "Secession and International Law", but "Self-determination in International Law", or "Minority Rights in International Law", we would have had to have the same papers (on self-determination, minorities and secession) and to cover the same ground. The same group of invitees would still have occurred to our hosts, the Asser Institute, whichever one of the three elements had been chosen as the theme of our meeting. Why is this so ? I think that is because each of the concepts provides an element within a larger value-set that is supported by international law. International law is necessarily predicated upon the idea of the nation State. However, the events of this century Footnote texts at the end of each chapter

21

Secession and International Law

have made it all too clear that a statehood dependent on power (whether colonial or contemporary) is not stable or justifiable if it is imposed upon the peoples within that State and does not reflect their own desires: here we have the concept of self-determination of peoples. On the other hand, majoritarian rule within the nation State, while in principle necessary and desirable, will have to be tempered to reflect the fact that some groups feel very special ties of language, culture or religion, and will want to make sure that the aspirations of the majority within the nation State do not prevent the coexistence of these special values. Hence the concept of minority rights. Secession is international relations' "long stop'' or "bolt hole", an ultimate possibility for a group caught in a total failure of the intended balance between self-determination of all the peoples, and minority rights of some of the people. Their situation may become so desperate that they see no option but to leave the larger politics within which they exist in the nation State. Whether secession is a legal right, or simply a regrettable fact, is something we will come back to. This, I think, is the larger picture and I have taken a minute to elaborate on it because this total picture of self-determination,minority rights and secession is what colours what I understand each of these elements to comprise. 11. Self-determination (a) The Charter Term and the Layman 3 Understanding From the outset, the term has been invoked to mean something other than it was meant to mean in its appearances in the W Charter - though the Charter is so regularly cited by the layman as the source of legitimacy for a rather different understanding of selfdetermination. Article 1 (2) of the Charter reminds us that one of the underlying purposes of the United Nations is "...to develop fhendly relations among nations based on respect for the principle

Self-determination and Secession

of equal rights and self-determination of peoples...". That phrase "...equal rights and self-determinationof peoples..." is the formula that appears elsewhere. Thus Article 55, on economic and social cooperation, instructs the United Nations to promote higher standards of living, solutions to health and cultural problems, and universal respect for human rights all in order to create conditions necessary for peaceful and friendly relations among nations based on "equal rights and self-determination". In both Article 1 (2) and Article 55, the context seems to be the rights of the peoples of one State to be protected from interference by other States or governments. We cannot ignore the coupling of 'self-determination' with 'equal rights' and it was equal rights of States that was being provided for, not of individuals (the travaux priparatoires of the Charter confirm this understanding of the phrase: see V1 UNCIO 3001). The concept of self-detemination did not then, originally, seem to refer to a right of dependent peoples to be independent, or, indeed, even to vote. The incorrectness of popular assumptions about what the UN Charter provides on self-determination is further strikingly illustrated by turning to those parts that deal with dependent territories. Here, it might be assumed, would be found the references to the duty to provide self-determination on the basis of independence. In fact, Chapters XI and XI1 of the UN Charter do not use the phrase 'self-determination'. Chapter XI, which is concerned with non-self-governing territories, refers in Article 73 (b) to the duty of the governing State to "...develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and the varying stages of advancement." While laudable, this falls quite short of what today is generally thought of as self-determination. Chapter XII, which covers the

Secession and International Law

trusteeship system, comes a little nearer to what one would today expect to find in its governing provisions. Article 76 provides that the basic objective of Trusteeship shall be "...(b) to promote ... their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each tenitory and its peoples and the freely expressed wishes of the peoples concerned." But there is still no use of the term 'selfdetermination', and independence was not assumed as the only proper outcome. It can now be seen that self-determination is not provided for by the text of the UN Charter - at least not in the sense that it is generally used. (b) Self-determination and Colonialism

Notwithstanding the cautious way in which self-determination is referred to in the UN Charter, there began in the 1950's to be a moral stand taken on the issue by the General Assembly. Furthermore, with the increase in Afro-Asian membership in the 1960's, self-determination became increasingly invoked as a right of dependent peoples. At first, several of the colonial powers resisted the idea that there was a legal right of self-determination. It was, in their view, merely a political aspiration, but gradually, their resistance to the idea of a legal right became more muted. They accepted broader interpretations of their duties under 73 (e), especially in terms of the provision of information to the United Nations on political progress. The development of the concept of self-determinationwas historically bound up with de-colonization - with the growing agreement that it was obligatory to bring forward dependent peoples to independence if they so chose, even though Article 73 had spoken only of self-government. While self-determination began to be accepted as a legal right in

Self-determination and Secession

the context of de-colonization, it was never restricted to a choice for independence. A choice by the peoples of a territory to join with another State (as in the de-colonization of British Cameroons), or to remain in a constitutionalrelationship with the former colonial power, was in principle also acceptable. The "chicken and egg" problem of self-determination and territorial title has been a confusing factor. Where peoples exercised a right of choice to stay in a relationship with a particular State, that has often been greeted with a certain scepticism if the State concerned was the colonial power; or with outright hostility if there is a debate as to whether the power allowing the exercise of "self-determination" of the population is indeed the title holder to the territory. Gibraltar, the Falklands and Western Sahara are all examples of tension between self-determination and title to territory. The development of the concept of self-determination within the body politic of the United Nations received early support from the International Court of Justice. In the Namibia Advisory Opinion the Court had affirmed that "...the subsequent development of international law in regard to non-self-governing territories, as enshrined in the Charter of the United Nations, made the principles of self-determination applicable to all of them (ICJ Reports 1971, p. 16, para. 52). In the Western Sahara Advisory Opinion (ICJ Reports 1975,p. 12,para. 162)the Court again affirmed the linkage between self-determination and the right of peoples under colonial rule, when it spoke of the "...principle of self-determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end". Other cases made passing reference to the legal right of self-determination, now virtually as a given, in the context of elaborating a parallel concept, that of uti possidetis: Burkina Faso v. Mali (ICJ Reports 1986, paras. 2526); Guinea-Bissau v. Senegal arbitration (83 ILR 1).

Secession and International Law

The legal concept of self-determinationas a right of the peoples of a territory under colonial rule to determine their own destiny (very often that of independence) was thus firmly established. Before long, it began to be understood that these entitlements of the population as a whole were exactly the same if their inability to determine their own future stemmed not from colonial rule but from alien subjugation of any other type. This idea found its place in the United Nations Declaration of Friendly Relations of 1970. The Declaration speaks of self-determination being available in situations of colonialism, and the ". ..subjection of peoples to alien subjugation, domination and exploitation." Those supporting this clause clearly had two very different circumstances in mind. The first concerned South Africa - an independent State, but one perceived as subject to "alien domination", with foreign support for that minority domination. The second was a very different matter -the status of occupied territories upon the termination or suspension of military hostilities. It was felt that the position of peoples in such territories was to be protected not just by humanitarian law but by insistence upon their right to self-determination. In any event, there have been many UN resolutions referring to the right of self-determination in circumstances of alien occupation. These include resolutions on Afghanistan and occupied Arab territories. (C) Self-determination in the Post- Colonial World The very concept of a legal right to self-determination in a postcolonial situation has proved controversial but its existence cannot really be doubted. The bridge between the colonial notions and the contemporary notions has been provided by the evolution of the idea of self-determination as a human right: the famous UN General Assembly resolutions 1514 and 1541, both passed within

Self-determination and Secession

24 hours in 1960, represented necessary elaborations and refinements of the classical right of self-determination in colonial situations. Resolution 1514 provides in operative paragraph 2 that all peoples subject to colonial rule have the right to ". ..freely determine their political status and freely pursue their economic, social and cultural development". Resolution 1541 ( X V ) made clear that this exercise in self-determination could result in various outcomes and stipulated the processes required to ensure that informed, free, and voluntary choices were being made. Within six years of the passing of these key resolutions on de-colonization, the right of peoples to selfdetermination was to appear as a freestanding precept, beyond the confines of normative practices on de-colonization. In 1966, the texts of the Covenant on Civil and Political Rights and of the Covenant on Economic, Social, and Cultural Rights were concluded. Common Article I of each of these provides: " 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." From this time onwards we see repeated reference to self-determination in human rights terms. The Helsinki Final Act interestingly builds on the old UN Charter language, while at the same time making it clear that self-determination is a right ofpeoples. It speaks of "the principle of equal rights and self-determination of peoples" by virtue of which "all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development" (14 ILM 1292, 1975).

Secession and International Law

The wording of the UN Declaration on Friendly Relations seems at first sight to support the view that self-determination is limited to a specific moment of de-colonization. It provides, inter alia, that a colonial or non-self-governing territory continues its separate existence "...until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter ...". For a considerable period of time there was substantial resistance to the suggestion that self-determination might have any application outside the colonial context. That resistance was shared by the Eastern European States and the new States. Under the old Eastern Europe there was obviously little desire to concede that peoples had an entitlement to determine their own political and economic destiny. The phenomenon was appropriate for decolonization only and many of the new States regarded selfdetermination as a matter between them and their former colonial masters not as between them and their own population. Indeed, this much was declared in terrns by India when ratifying the International Covenant on Civil and Political Rights and has been repeated by India during the course of the examination of its periodic Reports by the Committee on Human Rights. Part of the fear of Third World States was that post-colonial self-determination would necessarily result in the fragmentation of the new nation States, with ethnic groups or religions in one country seeking to secede or to join with the same ethnic or religious population in another country. However the idea that self-determination is of continuing applicability has been consistently fostered by the Committee on Human Rights, acting under the International Covenant on Civil and Political Rights and the idea has undoubtedly taken a general hold. The Committee on Human Rights, when examining the report of a State party to the Covenant, asks not

Self-determination and Secession

only about any dependent territories that such a State party may be responsible for (external self-determination) but also about the opportunities that its own population has to determine its own political and economic system (internal self-determination). Virtually no States refuse to respond to probing comments and questions on internal self-determination, and the Committee is not told that no such right exists. Rather, it is accepted that the right exists, and the debate most frequently is about the forms that it can take. The reference in the African Charter on Human and Peoples' Rights to Self-Determination is also in terms that does not tie it to colonialism. Article 20 stipulates: "l. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonial or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural."

While paragraphs 2 and 3 are directed to colonialism, or foreign domination, paragraph 1 is couched in broader terms. We have also noticed that the wording of the Helsinki Final Act provisions clearly presuppose the continuing and ongoing relevance of the principle of self-determination. Post-colonial, contemporary self-determination has become in-

Secession and International Law

dissolubly linked with notions of democracy and good governance. The sine qua non to making real the entitlement of all peoples to determine their political and economic systems is to ensure that they can participate in periodic free elections in which they can choose between a plurality of possibilities. Moreover, it is the peoples, and not one privileged sector, who should comprise the civil service and the political parties. The realization of Article 1 of the Covenant on self-determination becomes dependent upon compliance with Article 25 on representative, participatory democracy. If Article 1 is the "what", Article 25 is the "how". 111. Majority Rights As I mentioned at the outset, minority rights allow the perpetuation of the special status and practices of certain groups within the State, notwithstanding the exercise of choice by the peoples as a whole. The classic statement of these rights is to be found in Article 27 of the Covenant: persons belonging to "ethnic, religious or linguistic minorities" within a State "shall not be denied the right, in community with the other members of that group, to enjoy their own culture, to profess and practice their own religion, or to use their own language." It is clear from the Covenant that selfdetermination and minority rights are two distinct rights, with different beneficiaries. Persons belonging to minorities are of course entitled to self-determination but only as part of the collectivity of the entire peoples of the State party concerned. There are policy, as well as intellectual, reasons for not confksing self-determination rights with minority rights. Such claims encourage States to insist that the right to self-determination does not apply to them but only to peoples still under colonial rule. The insistence by certain leaders of ethnic minorities that they have the

Self-determination and Secession

right to secede by virtue of self-determination, often deprives the entire peoples of a State of their real right to self-determinationtheir right to determine their own political and economic destiny, on the basis of pluralism and choice. Nor should there be a confusion between nondiscrimination and minority rights. Persons belonging to minorities often feel themselves discriminated against. If the discrimination is because of religion or language, or because of national origin, or because of association with a national minority, in the claimant's mind his rights as a member of a minority are indistinguishable fiom his right not to be discriminated against. This is understandable - but legally speaking, nondiscriminationrights and minority rights are also two separate concepts. While persons belonging to minorities are all too often discriminated against, the entitlements of Articles 2 and 26 of the Covenant (not to be discriminated against in respect of the rights under the Covenant, not to be discriminated against in respect of any rights granted under the law) are available to everyone. They may be invoked by women, or by persons who hold particular unpopular views, or persons identified with particular political causes, or illegitimate persons, and others. They are not reserved to ethnic, religious or linguistic minorities. Finally, I must say that these "nurturing" rights enunciated in Article 27 of the Covenant have been quite muddled, indeed confused, in subsequent instruments emanating fiom other sources. Naturally, rights enunciated in one instrument can usefully be elaborated in later, diverse instruments: that is exactly what has happened with self-determination. But in the case of minorities the later instruments -often directed to contemporary problems of disintegrative nationalism -have simply seemed to obfuscate the law. In 1992 the United Nations adopted, by consensus, resolution

Secession and International Law

47/l35, being the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. This Declaration proclaims that it is "inspired by" Article 27 of the Covenant: that is to say, it seeks to be consistent with Article 27, but to build on it. There is undoubtedly scope for this, given three main factors. First, Article 27 is written in negative terms; second, the protections it provides are very modest in character; and third, it is clearly not an appropriate legal tool for the large scale violations of minority rights that we have witnessed in recent times. The Declaration contains some very useful elaborations. Some matters in the Declaration would seem less desirable, however. Somewhat worrying is the addition to the list of minority groups entitled to the protections specified. Article 27 of the Covenant refers to ethnic, religious and linguistic minorities. The Declaration adds national minorities to the list. There is the disturbing thought that the inclusion of this term in fact operates to circumscribe the beneficiaries of minority rights. It opens the possibility that the guarantees are only for those having the nationality of the State whose obligation it is to provide them. The travaux prdparatoires are ambiguous as to the intended meaning, but explaining its vote in the Human Rights Commission, the representative of Germany said: "Minority rights belong to the nationals of the state where they live." This is certainly to be deduced fkom Article 27 of the ICCPR. He added that they were "not [to] be interpreted as entitling any group of persons living in the territory of a State, for instance foreign nationals living under the terms of immigration laws, to form within the state separate communities." The lesson is a simple one. There is no point calling things minority rights when they are not, and then immediately qualifying them because of fear of what one has unleashed. Moreover, this

Self-determination and Secession

approach has a negative psychological impact upon the "other" minorities -religious, cultural and linguistic -as it becomes to be supposed that their rights are subject to qualifications not countenanced in Article 27 of the Covenant. The European Treaty on National Minorities in my view suffers from many of the same defects. I have written about this in the Festschrij? for Henry Schemers2and I shall not repeat my views here. IV. Indigenous Peoples If minorities have neither self-determinationrights nor secession rights, then is the same true of indigenous peoples ? Indigenous peoples may have become "minorities", but they are really First Peoples in their own land. And so often their lands were taken by force by those who settled. These facts, taken together, have led to a widespread sentiment, which liberal governments are now trying to harness, that their rights are not those of "minorities" in the usual sense of that term. Caroline Foster has in a recent article3 analysed the state of play in this evolving issue. The UN Working Group on the Draft Declaration on the Rights of Indigenous Peoples, set up by the Commission on Human Rights, and advised by experts meeting under the Chairmanship of Professor Erica Irene Daes, has pursued a separate path. Importantly, the leaders of the indigenous peoples themselves have played a significant role in the texts formulated. Article 3 of the Draft Declaration follows exactly the wording of common Article l of the two Covenants but replaces "all peoples" by "indigenous peoples." So, according to this Draft, indigenous peoples have the right of self-determination, by virtue of which they determine their political status and fieely pursue their economic and cultural development. It seems that both the indigenous peoples

Secession and International Law

and the governments who are the leaders in this work (Canada, New Zealand) envisage the "self-determination" right as an autonomy or self-government right, based on negotiation as equals with national governments and not as a right to secession. Self-determination necessarily requires States to be governed by representative means: b'Accordingly, a government's policies should reflect the nature and interests of both the population of the State as a whole and of the peoples who are part of the p~pulation."~ The sentiment is perfect. But if minorities are "peoples" (sed quaere) is it really being suggested that all minorities are entitled to "self-government" and autonomy ? There is a tendency in this direction. Writers such as Asbjorn Eide have urged power sharing through a multiple balance of power among the segments of a plural society5. Because I see the rights of self-determination and minorities as a critically important balancing act, I am a little concerned about the tendency to "mix and match". Caroline Foster's call for a development of the legal concept of self-determination "so that it becomes closer to ideas of self-determination in the community" is at one level attractive. Nonetheless, because I believe that minority rights and self-determination rights perform different, critical important functions, at the end of the day I resist this beguiling call. Some minorities, in order to perpetuate their distinct culture, may indeed need in a given society a high degree of autonomy. But to insist on decentralization and wide autonomy, e.g. the Protestant minority in France, or the Jewish minority in England, seems to me both undesirable and counterproductive to the values international law is seeking to protect. What I can at once recognize is that indigenous peoples, by virtue of their special circumstances as First Peoples, and their close association with the land, may more often than most need and

Self-determination and Secession

benefitfrom a high degree of autonomy, negotiated between them and the national government as equals. V. Secession We are now in a position to revisit the key questions at issue in the Conference. (a) Does the right of self-determination suggest a right of secession? (b) Do minority rights carry with them a right of secession? I shall address each in turn. (a) Does the right of self-determination carry with it a right of secession? Colonial era self-determination In my view, secession is a concept that has no relevance to decolonization. An alternative view has been offered by Koskenniemi6,who comments: "Secession was compliance, and opposing rupture of old colonial State was unlawful". He further notes that Article 19 (3)(b) of the International Law Commission's draft articles on State Responsibility even spoke of this asjus cogens. In my opinion this is a singular use of the term "secession". "Secession" implies leaving something behind. De-colonization (regardless of whether of jus cogens or not) implied that nothing should be left behind. There was no suggestionthat the old colonial rulers should stay in State X, with "the peoples" seceding, but rather that the colonial rulers should go. Secession was not in issue in this context.

Secession and International Law

Post-colonial self-determination Once again, the concept of secession is irrelevant to the ongoing entitlement of peoples to self-determination in the post colonial era. Of course, confusion has arisen when it has been stated that minorities are entitled to self-determination, and that may mean a right to secede. But the point of departure is incorrect. This is also the clear implication from the Second Opinion of the Badinter Commi~sion.~ (5) Do minority rights allow self-determination? As this is to confuse concepts, the answer must again be in the negative. Indeed, it is important for the promotion of the ongoing entitlement to self-determination that States know they are not inviting disintegrationthrough claims of minority rights. The Human Rights Committee had ample evidence of States' fears as to this. The Joint Opinion prepared in 1992 in Quebec by Professors Pellet, Shaw, Higgins, Franck and Tomuschat emphasized that no legal right existed in favour of secession on the alleged ground that the entity concerned is composed of a linguistic minority within a State in which the majority are of a different linguistic grouping^.^ (Francophone Quebequois are, of course, fully &ee to use their own language, as required under Article 27 of the Covenant.) The first Badinter Opinion also answers this question in the negative. Serbia had invoked the principle as a basis for gathering together, within Serbia, Montenegro and beyond, in a new State structure, those of Serbian identity. In Serbia's eyes the Serbian population in Croatia and Bosnia and Herzegovina had the right to "self-determination"; but other nascent republics were "seceding" from the Socialist Federal Republic of Yugoslavia rather than exercising rights of self-determination. In the event, the Badinter

Self-determination and Secession

Commission in its First Opinion, essentially sidestepped this theological argument, finding that the existence or disappearance of State is simply a question of fact. No legal entitlements were in issue: disintegration (and by implication secession too) were matters of fact, not law. Finally, we may recall that Tom Franck, among others, has suggested that in extremis there may be a right to secede if minorities rights are being trampled on in an unbearable or irredeemableway.9 In Kosovo there seemed, at a certain period, that these conditions might be being met. Certainly there was for a period a widespread international public sympathy for the idea of the reasonable need of Kosovo to secede from Serbia. By contrast, governments continued to give a greater priority to territorial unity - and with the evolution of events and the passage of time, the possible pre-requirements for the true need to secede have faded.

* 1

2

Please consult the Notes on the Authors For a thorough analysis of the diplomatic history of the references to self-determination in the Charter, see Cassese, Self-Determination of Peoples: A Legal Reappraisal (1993), pp. 34-42 R.Higgins, "Minority Rights: Discrepancies and Divergencies between the International Covenant and the Council of Europe Sys-tem", in The Dynamics and Protection ofHuman Rights in Eu-rope, Essays in Honour of Henry G. Schermers, Vol.111, pp. 195-211 (Eds. Lawson and de Blois). "Articulating Self-Determination in the Draft Declaration on the Rights of Indigenous Peoples", 12European Journal oflnternational Law (200l), l 4 1. Ibid., 143.

Secession and International Law

"In Search of Constructive Alternatives to Secession" in Tomuschat (ed.) Modern Law of Self-Determination(1993) 139 at 165. "National Self-Determination", 43 ICLQ (1994), 241. 11 January 1992,3 EJIL (1992) 182-185; 92 ILR 162. "L'integritk territoriale du Qukbec dam l'hypothbe de l'accession A la souverainetk" in Les attributs d'un Quibec souverain, Commission d'dtude des questions affdrentes a l'accession du Qudbec a la souverainetd, Vol. I (1992) 377. "Post Modem Tribalism and the Right to Secession" in Brolmann et a1 (eds.) Peoples and Minorities in International Law, 3.See further the Comments by Higgins, ibid., at 29 ff.

ORDER, STABILITY AND POLITICAL REALITY J. Holmes Armstead Jr.* Introduction Secession as a remedy or goal to achieve self-determination andlor Statehood, as it is defined under international law, appears to have a somewhat unsure future.' The requisite for international order and stability is as much needed in today's world as at any time in the past2 and given the proliferation of destructive power in the hands of an increasing number of international actors, perhaps even more so! As an initial step in reviewing the role of secession in international law and perhaps suggesting modifications and improvements to its legal theory, a consideration of order, stability and the political realities involved may be appropriate. Other articles in this collection will address various legal, moral, and philosophical issues surroundingthis unique phenomenon. Historical Perspective World history, at least in the West since the Renaissance, has been marked by the rise of nation-States, the expansion of imperial power, decolonization and most recently (20" century), attempts at the communal organization of States (League of Nations, United Nations5). It may be noteworthy that the most recent efforts to organize States, at least voluntarily, have come at the conclusion of two catastrophic wars resulting in the deaths of tens of millions6.These modem conflicts (World Wars I & 11) arose as the Footnote texts at the end of each chapter

39

Secession and International Law

colonial empires matured and competed with each other, subjugatThe concentration of ing nearly 113 of the world's p~pulation.~ wealth and innovation during nearly two centuries of industrialization provided the technological wherewithal to seek heretofore unimagined destruction with lethal new weapons, as powerful ideologies vied for dominance on the world scene8. After nearly seven centuries of technical pre-eminence and four centuries of political dominance, the industrialized western world has an insatiable appetite for natural resources, especially fossil energy which has been naturally distributed arbitrarily around the post-colonial world without regard to any pre-existing political aggrandizement.The evolution of mass communication,beginning with the Gutenberg press and coming now to gallium arsenide micro-processors, has fostered what some scholars call the information revolution bringing a corresponding "revolution of rising expectations" that has driven events around the world with enormous economic and political consequences, that put so much turmoil into the events of the previous century9 l0 Political Forces I apologize for my brief treatment of so interesting and complex a period of history with such a pre-emptory treatment, so as to summarize my views of where we come fkom, and to begin, with justifiable temerity, to predict where we may be going. Donning the mantle of a futurist is quite risky: if you take the safest course, extrapolate from present events and draw logical conclusions, you may not be able to predict very far into the future but your rate of accuracy should prove acceptable and I might add, provable, since a number of your audience will survive to verify your results as you accede to only a relatively short term, "casting of the bones" as it were. Wiser heads than mine are busy doing this, indeed fu-

Order, Stability and Political Reality

ture predicting is a part of modem life including all realms; from economists to fortune tellers, short-term futurists abound in what can only be described as growth industry, as we begin the 2 l st century. But let us take a somewhat more daring course than the majority of our fellows and look at the period 15 - 75 years into our future as we consider the title of this paper. Now you may say to me that I could not possibly know what the political reality may be 6 or 7 decades from now and I would readily agree with you, but I think I can predict some of the more powerful forces that will impact upon our somewhat unpredictable future and I will rely upon the time tested mechanism of the "near fuhuists": observation and extrapolation, to arrive at some of the conclusions that I hope will prove useful.l l Let us consider three immense political forces, readily observable today on the world scene: Tribalism, nationalism and h d a mentalism. These forces are interesting, primarily because they seem almost universal as we view the political scene around the globe. Tribalism Tribalism appears from our most ancient past as a basic organizational principle. Huntington12points out that "(t)he civilizational "us".., is a constant in human history." I term this phenomenon civilization awareness, in that it looks to cultural similitude in defming a society as a "body politic". We can see numerous examples throughout history and into the present day in nearly every society. There is a natural tendency to seek the similar in the formation of a nation-State and in the political processes that mature a group to that level. The ethnic State seems to be the "normative" modality in history, and until modem times with some notable ancient exceptions such as the Roman Empire, was the near exclusive ex-

Secession and International Law

ample of political organization. When one thinks of forces tending to fracture modem States (democratic or otherwise) they do tend to be what I euphemistically call the anti-tribal differentiations, be they the ethnic, religious, racial, linguistic etc.. ., differences that allow for a definition of the "them" versus "us" scenario that expedient politicians so often invent where the real issues are resource distribution, economic status, or political rights. This may be the most corrosive force within the modern State system, as it uses the relatively permanent condition of ethnicity to define or divide a "body politic" and specifically works against the modern organizational principle of federalism which bases political organization upon agreed mutual interest, with some degree of autonomy retained at the local area. Nationalism Nationalism, the second force we shall discuss is the natural desire for self-determination. One might argue it to be the crux of the secession issue. International law recognizes at its core this special "political right" as fundamental to the human species and the UN charter has clearly and deliberately delineated this principle, which has been applied in several prominent cases and generally accepted. I think it's safe to assume that the body politic of existing nation-States will continue for the foreseeable future to have strong feelings of "Nationalism", but more importantly certain definable groups within nation-States (and perhaps even across national boundaries, i.e., Kurds, Armenians, Palestinians, Native Americans, Tibetans, etc.. .,) will be dnven by feelings of nationalism to agitate for nationhood status giving rise to secessionist, or at least pre-secessionist political movements in various parts of the world. The prevalence of such movements, and the resulting political turmoil in the Balkans led directly to the First World War,

Order, Stability and Political Reality

so clearly, the "Balkanization" of regions with unfettered nationalists political movements can have ramifications well beyond the immediate region of the conflict and bring other nation States into the fiey with disastrous consequences. This lesson dnves some of the European concern with solving the problems we see in "the former Yugoslavia" and should prompt the international community into action concerning the Middle East, central Asia, central Africa and other regions of turmoil.

Fundamentalism My last offering, fundamentalism, may be the most interesting but least understood by modem social scientists. Arnatai Etzione writes about it being a phenomenon of modern life and its hectic pace. Alan Toefler warns of the disaffection fiom society of those "left behind" by the swift changes that leave one without a base or anchor by which to judge events and know where you "fit" into the society. We have seen in the last forty years, with increasing regularity in various societies around the world, including our own, a return to the fundamentals or at least what is perceived to be fundamentals of culture, civilization and religion. Iran, Afghanistan, and Algeria are but a few of the places where Islamic fundamentalists have enlisted large numbers of followers, many of whom are bent on political activism aimed towards their own governments, foreigners of various persuasions or the somewhat amorphous "westem values and decadence". Chnstian fundamentalists have become politically active in the United States under the banner "take back our society", the Japanese have spawned a fundamentalist movement seeking a return to traditional Japanese values that have been relegated, in their view, to the detriment of their society. This phenomenon appears to be particularly attractive to societies with a high growth rate, a

Secession and International Law

large percentage of youth andor undergoing rapid changes. All the conditions necessary for unrest exist, but particularly challenging in the more traditional societies without an institutional base for change, are those lacking in diversity and strong democratic principles. Overcoming Forces of Divergence These three factors will, I believe, be driving forces in much of the world during the next three generations, especially in the so called Third World where socialist experiments in governance have failed and population growth has severely impacted existing infrastructure. Political instability is a foregone conclusion, indeed it is almost built into these societies and secession may seem an easy answer to many aspirations of over-crowded, poverty-stricken societies with weak infrastructure. The choice of secession as a response to State failure (or rather perceived State failure) to successfully address social, economic and political ills will become ever more attractive in societies where old issues of class, ethnicity, religion, language, etc. ..,have not been effectively resolved. It is noteworthy that the Organization for African Unity some years ago unanimously passed a resolution to refuse to recognize secessionist movements on the continent. Many of these nations, having recently emerged from anti-colonial movements and revolutions, sought to maintain their territorial integrity though many were multi-ethnic States resulting from the somewhat artificial coagulation of colonial empires joining disparate peoples for the administrative efficiency or economic benefits to be derived by the former colonial masters. Perhaps counter-intuitively to some observers, myself included, these leaders should seek maximum self-determination given their recent history, but moreover these leaders of relatively new countries sought to maintain whatever economic vitality their colonial legacies could muster and sought

Order, Stability and Political Reality

to use legal autonomy, federalism and concepts of group rights to maintain their territorial integrity while attempting to build modem nation-States within the polyglot of the former colonial boundaries. In a number of these countries, we can see the immediate effects of all three of the forces identified and we can see some places where mature political leadership has (or at least seems to have) overcome these forces of divergence. It of course remains to be seen if any of my predictions are correct, however with some degree of satisfaction (if not complete protection to my current reputation as a soothsayer) I suspect the passage of seventy-five years will render me impervious to much of the criticism I should engender, should my efforts prove to have been in vain. * l

Please consult the Notes on the Authors M. Cherif Bassiouni and Ved. Nanda, editors, A Treatise on International Criminal Law, Vol. I, Page 2 13 (John C. Novogrod), Chas C. Thomas, Springfield, Illinois, USA. Ibid.,Whether the policy of self-determination should be permitted to justify a course of action inherently destructive of world order is questionable indeed. Moreover, it is clear that all internally organized resistance to an incumbent elite cannot be regarded as a manifestation of self-determination. The majority of Amcan States, for example, vehemently would argue the principle of self-determination is inapplicable where foreign domination is not the issue, a view obviously reflecting the fear on the part of Afican elites of successful secessionary movements. 1933 London Conventionfor the Definition of Aggression. 1934 First and second secret protocols annexed to the Pact of the Balkan Entente. 1937 Saadabad Pact. Supra, at note 1, pages 213 - 215.

l0

l1

l2

Ibid, Pages 2 19 - 232. Generally, Herman Kahn, On Thermonuclear Wal: Generally, Will and Ariel Durant, The History of World Civilisation. Alvin Toffler, Power Shift, Page XIX, Bantam Books, New York, 1990. Alvin Toffler, The Third Wave, Pages 53 - 54, Bantam Books, New York, 1980. Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Ordec Pages 36 - 54, Simon and Schuster, New York, 1996.

SELF-DETERMINATION AND SECESSION: THE JURISPRUDENCE OF INTERNATIONAL HUMAN RIGHTS TRIBUNALS Dinah Shelton* Two of the major developments in international law of the past fifty years are the emergence of the related issues of human rights and self-determination.The latter is reflected in the fact that membership in the United Nations has nearly quadrupled from the original 53 Member States to l89 States today. Between 1945 and 1980 alone more than 750 million people in over 100 territories attained national independence.l Yet, despite the proliferation of States, the demand for territorial separation and independence has not disappeared but continues to be expressed in various countries throughout the world.2 Self-determination has evolved fiom an international "principle" declared in the United Nations Charter to a right of all peoples, guaranteed by global and regional human rights instruments. International human rights bodies established by these same instruments have had to interpret and apply the right, determining the scope of self-determination, holders of the right, and the corresponding duties of States. Not surprisingly, given the controversy surrounding the subject, these bodies generally have been reluctant to advance a broad interpretation of self-determinationand, in particular, to recognize a right of secession. Indeed, only the AfriFootnote texts at the end of each chapter

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can Commission on Human and Peoples Rights has implicitly recognized the latter right. The following paper discusses and evaluates the jurisprudence of international human rights bodies on the twin issues of selfdetermination and secession. It looks first at the texts of international human rights instruments, then at the case law of human rights tribunals, before evaluating and commenting on that case law. It concludes that self-determination is recognized both as an individual right, encompassing the raison d '&re and totality of existing human rights, and as a right of peoples to decide on their structure and form of governance. The term "peoples" is narrowly defined, however, to cover only those subject to colonialism or alien domination. Minority groups are not included, but are afforded group rights in addition to the individual rights guaranteed all individual members of the minority and majority populations. The right of armed resistance to abuse remains as the ultimate right of those subject to oppression, whether the majority or minority of the population within a State. I. Legal instruments The United Nations C h a ~ t e rin , ~Article 1, refers to self-determination among the purposes of the United Nations. The relevant language, proposed by the then U.S.S.R., States: "The Purposes of the United Nations are: (2) To develop fhendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples. . ."4 The same language is repeated in Article 55, which calls on the Organization to work towards the Stated purpose. Yet, no reference to self-determinationis found in the articles that concern non-self-governing territories or trusteeships, largely due to opposition from the colonial powers of the time. It also should be noted that the Principles of the United

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Nations, contained in Article 2, mandate the non-use of force "against the territorial integrity" of States (Art. 2[4]) and nonintervention in domestic affairs (Art. 2[7]). The Universal Declaration of Human Rights (UDHR), adopted 10 December 1948, contains no reference to self-determination, but does reflect the political traditions exemplified by the U.S. and French Revolutions in acknowledging the fact, if not the right, of opposition to a repressive government. The third preambular paragraph of the Declaration, providing one rationale for human rights guarantees, states: "Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law." "People" are mentioned in the UDHR, albeit not explicitly in reference to self-determination.Article 2 1 of the UDHR says that the will of the people "shall be the basis of the authority of government." This could be viewed as an expression of what has been called "internal self-determinati~n."~ Although the UN General Assembly declared the right of peoples to self-determination as early as 1950, the seminal text is the 1960 Declaration on the Granting of Independence to Colonial Countries and people^.^ This declaration explicitly links the right to the context of "alien subjugation" and colonialism, said to constitute a denial of fundamental human rights contrary to the United Nations Charter. Moreover, the Declaration cautions that "any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations." Thus, self-determination of colonial territories is balanced with the right of territorial integrity of States. In 1966, the United Nations adopted two major human rights instruments, completing what has become known as the

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International Bill of Rights: the International Covenant on Civil and Political Rights8 (ICCPR) and the International Covenant on Economic, Social and Cultural Rightxg The Covenants contain a comrnon Article 1 that is unlike any of the remaining provisions in the two treaties, which guarantee rights to individuals. Comrnon Article 1 provides: 1. All peoples have the right of self-determination. By virtue of that right they fieely determine their political status and fieely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, fieely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of non-self-governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

In the ICCPR, Article l (l) makes a permanent link between selfdetermination and civil and political rights, just as Article l(2) makes a link between self-determination and economic, social and cultural rights. Self-determination thus requires democratic decision-making as a continual process. (See cites in Cassese pp. 59-60). It should be noted that India reserved to Article 1 to the effect that the right of self-determination pertains only to "peoples under foreign domination" and is not relevant to "sovereign independent States or to a section of a people or nation."

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That India felt it necessary to enter the reservation indicates the potentially broad scope of Article 1, as does the fact that France, Netherlands and Germany objected to the reservation on the ground that the right of self-determination applies to all people. The Covenant also makes a clear, if undefined and difficult, distinction between "peoples" entitled to self-determination in Article 1, and "minorities", individual members which have specific rights additional to those guaranteed all individuals. Article 27 provides: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language. Article 27, as a set of individual rights, could be read as cumulative to Article 1 but the drafting history contradicts this reading. It seems clear that States did not intent minority groups to benefit from the right of self-determination. The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nationslo is a pre-eminent text of the United Nations, being intended to define in more detail and precision the principles and purposes contained in the United Nations Charter. It contains a section devoted to the right of self-determination. Like the 1960 Declaration on Granting Independence to Colonial Peoples, the 1970 Declaration is linked to the colonial context. The right to self-determination is understood as right to de-colonization while in other contexts the Declaration reaffirms States' right to territorial integrity. The one exception implied in the Declaration, where secession might be permitted, is where a State forfeits its right to territorial integrity by abuse of minority group:

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"Nothing in the foregoing paragraphs [on self-determination]shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity or sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour." (Emphasis added). Note that the proviso only applies to race, creed and colour, not to language, ethnicity or national identity. State practice and UN resolutions thus support territorial separation clearly in two contexts only: colonialism and the "subjection of peoples to alien subjugation, domination and exploitation" inside or outside the colonial context. The 1970 Declaration does not entirely rule out secession, but the requirements are stringent, (See p. 119-20) linking external self-determination to internal selfdetermination in exceptional circumstances. A final text adopted on the global level, the 1977 Additional Protocol I to the Geneva Conventions of 1949, stipulates that "armed conflicts in which peoples are fighting against colonial domination, alien occupation or against racist regimes in the exercise of their right of self-determination, are to be considered international armed conflicts for purposes of applying humanitarian law." Regional human rights instruments contribute to the complexity of the issue. The Afrcan Charter on Human and Peoples Rights12is the only convention in force that contains a provision expressly guaranteeingthe right of self-determination.The inclusion of this right is not surprising, given the aims of the Charter expressed in its Preamble, one of which is "to eradicate all forms of colonialism ftom Africa" and the fact that the Charter was drafted

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during the struggle against apartheid in South Afiica. Article 20 thus guarantees all peoples "the right to existence." It continues: 1. They shall have the unquestionable and inalienable right to selfdetermination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community.

3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural. Article 2 1 continues the self-determination theme by expanding on Art. l(2) of common article 1 of the UN Covenants, guaranteeing all peoples the right to ffeely dispose of their wealth and natural resources. Article 22 adds that all peoples have the right to development, while subsequent articles provide for peoples' rights of peace and "a general satisfactory environment favourable to their development." The European region was late in coming to grips with the aspirations of peoples and minority groups for recognition. The European Convention on Human Rights and Fundamental Freedoms13 contains no provision concerning group or peoples' rights. It was through the Helsinki Process, now the Organization for Security and Cooperation in Europe (OSCE) that the issue first received consideration. In the context of a divided Germany, the

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Federal Republic of Germany proposed in 1973 that a provision on self-determination be included in the 1975Helsinki Declaration. The clear aim was German reunification.14 The text finally agreed upon became Principle V I I of the Helsinki Declaration: "The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to the territorial integrity of States. By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in h11 freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development. The participating States reaffirm the universal significance of respect for and effective exercise of equal rights and self-determination of peoples for the development of friendly relations among themselves as among all States; they also recall the importance of the elimination of any form of violation of this principle." In the European context, this right must apply to independent States, because there are only a few contexts that are arguably colonial: occupied Cyprus, Gibraltar, northern Ireland. The "always" makes clear that the right is a continuing one. Moreover, the Declaration is intended to apply in relations among signing (independent) States. "In h11 freedom" means not only freedom from external interference,but in the internal democratic order also, linked the concept to human rights and hndamental freedoms. Still, a separate principle (VII) governs minority rights and the debate made clear that national minorities were not to be extended the right to secede.

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This point was reinforced in 1990 probably due to increasing disintegration in the Balkans. The Charter of Paris thus states "We reaffirm the equal rights of peoples and their right to selfdetermination in conformity with the Charter of the United Nations and with the relevant norms of international law, including those relating to the territorial integrity of States." The importance of the Helsinlu process lies in its contribution to the concept of internal self-determination,especially democratic rule and minority rights. The texts elaborate specific criteria for a pluralistic democratic society on which internal self-determination must be based. See footnote 33 p. 294 for quote. Also p. 295 note 36. And note 37 next page. The significance of this is recognized even among groups that have been pressing for autonomy or independence. As one specialist on the Kurds has noted "Most of the Kurds' demands could be met by the enhancement of democratic rights for all citizens in Turkey, without regard to their ethnic or linguistic origin."15 Partly stimulated by the work of the OSCE and the Council of Europe, two new treaties expressly aim to foster group rights. The Framework Convention on the Protection of National Minorities and European Charterfor Regional or Minority Languages reflect a recognition that assimilationist approaches have not been successful. 11. Interpretation of the human rights provisions l. The International Covenant on Civil and Political Rights (ICCPR) The UN Human Rights Committee is charged with supervising State compliance with the International Covenant on Civil and Political Rights. Article 40(4) of the ICCPR allows the Cornmittee to issue General Comments that provide interpretive guidelines to the rights contained in the Covenant "to assist States parties in

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llfilling their reporting obligations" and "to promote their further implementation of the Covenant; to draw their attention to insufficiencies disclosed by a large number of reports . . . and to stimulate the activities of these States and international organizations in the promotion and protection of human rights." General Comment No. 12 concerns Article 1 and was issued at the 2 1" session in 1984.l 6 It notes that "in accordance with the purposes and principles of the Charter of the United Nations, Article 1 of the ICCPR recognizes that all peoples have the right of selfdetermination." This right is deemed of particular importance because "its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights." According to the Committee, Article 1 recognizes an inalienable right of peoples to self-determination by virtue of which they freely "determine their political status and freely pursue their economic, social and cultural development." All States parties have corresponding obligations. The Comment calls upon all States parties to describe in their reports the constitutional and political processes which in practice allow the exercise of this right. The economic content of the right, contained in paragraph 2, guarantees the right of peoples, for their own ends, freely to "dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence." States parties and "the international community" have corresponding duties in this respect and as a consequence of paragraph 3 which, in the Committee's opinion, imposes specific obligations on States parties not only in relation to their own peoples but vis-a-vis all people that have not been able to exercise or have

Self-determination and Secession -International Human fights... been deprived of the possibility of exercising their right to selfdetermination. All States parties to the Covenant should take positive actions to facilitate realization of and respect for the right of peoples to self-determination consistent with the States' obligations under the Charter of the United Nations and under international law. In particular, States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self-determination. The Covenant makes a clear distinction between the right of peoples to self-determination and the rights of persons who are part of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practice their own religion, and to use their own language. Article 27 guarantees these rights of individual members of minority groups, in addition to the other rights that such persons are entitled to enjoy in common with everyone else. In General Comment No. 23, issued at its fiftieth session in 1994, the Committee observed that States parties and individuals filing complaints under the Optional Protocol to the Covenant often have conhsed the right of self-determination contained in Article 1 with the minority rights guaranteed under Article 27. The Committee itself considers that the right of self-determination in Article 1 is not a right cognizable under the Optional Protocol while the rights conferred on individuals by Article 27 can be the subject of complaint. Without explicitly discussing the right of secession for peoples under Article 1, the Committee implicitly recognizes such when it distinguishes minority rights by noting that "the enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party" (HRIIGENI1IRev.4, p. 116, para. 3.2) although certain rights, such as the right to enjoy a culture may consist in a way of life closely associated with a particular territory and use of its resources.

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The existence of a minority in a given State is determined by "objective criteria" and not by a subjective decision of the State. It extends irrespective of the length of time the individuals are within the States and whether or not the individuals are citizens or residents, so long as they are within the jurisdiction or territory of the State. Positive measures of protection may be required, including those necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practice their religion, in community with the other members of the group. The Committee mentions indigenous peoples several times in its General Comment, indicating that they are considered to be minorities and not "peoples' in the sense of Article 1. In particular, the Committee refers to indigenous ways of life associated with the use of land resources, such as traditional activities of fishing or hunting and the right to live "in reserves protected by law." (p. 117,para. 7). In general, the protection of minority rights "is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole." The jurisprudence of the Committee under the Optional Protocol confirms this distinction and the treatment of indigenous groups as minorities within States rather than as peoples entitled to selfdetermination.l7 2. The Committee on the Elimination ofAll Forms ofRacial Discrimination (CERD) The Committee on the Elimination of All Forms of Racial Discrimination (CERD), established under the Convention of the same name, also has noted the uncertainty surrounding the distinction between minority rights and the right of self-determination. In General Recommendation XXI,18 the CERD refers to the fact that

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ethnic or religious groups frequently refer to the right to selfdetermination as a basis for an "alleged right to secession" and that it intends its Recommendation specifically to address this issue. The CERD begins by noting that the right to self-determination of peoples "is a fundamental principle of international law," citing the UN Charter and the Covenants. The Recommendation emphasizes the duty of States to promote the right to selfdetermination of peoples, but also reiterates that implementation of this right requires every State to promote universal respect for and observance of all other human rights and fundamental fkeedoms. The CERD recalls to States the Declaration on the Rights ofPersons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the General Assembly in its resolution 471 135 of 18 December 1992. CERD distinguishes two aspects of the right of self-determination. First, there is an "internal aspect" which consists of the rights of all peoples to pursue freely their economic, social and cultural development without outside interference. This is linked with the right of every citizen to take part in the conduct of public affairs at any level, contained in various human rights instrument. "In consequence, Governments are to represent the whole population without distinction as to race, color, descent or national or ethnic origin." The "external" aspect of self-determination described by CERD "implies that all peoples have the right to determine freely their political status and their place in the international community based upon the principle of equal rights and exemplified by the liberation of peoples from colonialism and by the prohibition to subject peoples to alien subjugation, domination and exploitation." The CERD then calls upon Governments to "respect fully the rights of all peoples within a State" and in particular to avoid discrimination. They should be sensitive to the rights of persons

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belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve their culture, to share equitably in the h i t s of national growth and to play their part in the Government of the country of which they are citizens." The Recommendation also suggests that Governments should "consider, within their respective constitutional frameworks, vesting persons belonging to ethnic or linguistic groups comprised of their citizens, where appropriate, with the right to engage in activities which are particularly relevant to the preservation of the identity of such persons or groups." Finally, the CERD emphasizes that nothing it has said or done "shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and possessing a Government representing the whole people belonging to the territory, without distinction as to race, creed or color. In the view of the Committee, international law has not recognized a general right of peoples unilaterally to declare secession from a State." Para. 6. The CERD states that it is following the views expressed in An Agenda for Peace, paras 17 ff., that "a fragmentation of States may be detrimental to the protection of human rights, as well as to the preservation of peace and security." At the end, the CERD accepts that this does not exclude "the possibility of arrangements reached by free agreements of all parties concerned." 3. Regional bodies The Afican Commission on Human Rights is the first to implicitly recognize a right to secede in the face of gross violations of human rights. In the case Katangese Peoples' Congress v. Zaire, lg Gerald Moke, President of the Katangese Peoples' Congress filed

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a communication with the Commission in 1992.It asked the Ahcan Commission to recognize the KPC as a liberation movement "entitled to support in the achievement of independence for Katanga; to recognize the independence of Katanga; and "to help secure the evacuation of Zaire from Katanga." The claim invoked article 20(1) of the Afncan Charter on the right to self-determinationbut no other provisions. The Commission noted that there were no other allegations of human rights violations contained in the communication. Affirming that all peoples have the right to self-determination, the Commission appears to accept at face value the claim that the Katangese are a people. The Commission notes that "whether the Katangese consist of one or more ethnic groups is, for this purpose immaterial and no evidence has been adduced to that effect." The Commission also notes its obligation to uphold the sovereignty and territorial integrity of Zaire. But, crucially in this regard, it links this to respect for human rights and decides the case on the merits. It finds: "In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article l3(l) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire." Thus, there is a right of self-determination for the "people" of Zaire, but no right of secession. The European Court of Human Rights has had numerous cases against Turkey involving the conflict in the southeast of the country, home of the Kurdish minority20 None of the cases have dealt with the right to secede directly, although some cases have involved "

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action taken by the government against journalists and others who have advocated or mentioned Kurdish secession. In the cases of the former Soviet Union and Yugoslavia, the rhetoric and political principles involved in self-determination had a considerable impact in legitimizing the secession of national units from the central, repressive/oppressive government. Selfdetermination in the internal sense also provided the legal tools or criteria for recognizing the new regimes, to verify that they represented the will of the population concerned. The EU in fact established criteria for recognition that included an expression of the free will of the people (plebiscite or referendum) and commitment to respect the rule of law, human rights and the rights of groups and minorities. The Inter-American system has considered the issue of the right of self-determination of peoples only once, in the Miskito Case against Ni~aragua.~' This case was brought by the indigenous Miskito alleging human rights violations by the Sandinista government. The Commission noted that a number of international instruments uphold special rights for certain ethnic and racial groups, especially rights of language, culture, and religion. The Commission questioned whether or not ethnic groups also should have the rights to self-determination or political autonomy. The petitioners in the case argued that Indian peoples of Nicaragua had the right to 111self-determination.They claimed that if the territorial and political autonomy of the Indian population was not recognized, their traditional way of life and their cultural identity would be destroyed, since the exercise and enjoyment of the right to a language, culture and religion are meaningless without the right to self-determination. According to the Commission, "[tlhe present status of international law does recognize observance of the principle of self-determination of peoples, which it considers to be the right of a people

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to independently choose their form of political organization and to freely establish the means it deems appropriate to bring about their economic, social and cultural development. This does not mean, however, that it recognizes the right to self-determination of any ethnic group as The Commission summarized its views on the practice of the United Nations, finding that "the prevailing viewpoint [was] that national sovereignty and territorial integrity could not be undermined under the pretext of exercise of the right to serf-determinati~n"~~ and that the l 960 Declaration identified self-determination "with the liberation struggles of colonial peoples in non-metropolitan territories." The Commission concluded that under "the current status of international law" the Miskito lack a right to political autonomy or self-determination, yet they are entitled to special legal protection for the use of their language, the observance of their religion, and all those aspects related to the preservation of their cultural identity. One of the first cases brought to the Inter-American Court of Human Rights also concerned indigenous or group rights, although not specifically the right of self-determinati~n.~~ In Aloeboetoe v. S ~ r i n a m ethe ~ ~Court had to determine the appropriate remedies for a massacre admittedly perpetrated by government agents. The petitioners and the Inter-American Commission asked that the court evaluate not only the individual harm to those killed and their surviving relatives and dependants, but moral damage to the collective interests of the tribe of Saramakas or Maroons. The Court applied local law to determine succession in the light of the social structure of the tribe, recognizing its cultural divergence from the majority population. However, the Court gave several grounds for rejecting the claim of group redress, inter alia that "all persons, in addition to being members of their own families and citizens of a State, also generally belong to intermediate communities. In

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practice, the obligation to pay moral compensation does not extend to such communities. . .". No special recognition was given to the indigenous group, as such. Another case in the Inter-American system can be included in this discussion because of its notion of individual selfdetermination. In the reparations phase of the case Loayza Tamayo v. Peru26the Inter-American Court of Human Rights for the first time recognized the concept ofproyecto de vida, translated as "life plan," but akin to the concept of individual self-determination. According to the court, "[tlhe so-called 'life plan,' deals with the full self-actualisation of the person concerned and takes account of her calling in life, her particular circumstances,her potentialities, and her ambitions, thus permitted her to set for herself, in a reasonable manner, specific goals, and to attain those goals."27 The Court analogized the concept to that of personal fulfilment, "which in turn is based on the options that an individual may have for leading his life and achieving the goal that he sets for himself." These options are deemed "the manifestation and guarantee of freedom. An individual can hardly be described as truly free if he does not have options to pursue in life and to carry that life to its natural conclusion. Those options, in themselves, have an important existential value?"'* The Court views the options as a valuable asset which when abridged could be evaluated and compensated. The Separate Opinion of Judges Antonio Cancado Trindade and Alirio Abreu-Burelli agrees, referring to the project of life as "ineluctably linked to freedom, as the right of each person to choose her own destiny."29 111. Commentary Within international jurisprudence, at least since the Aaland Islands dispute in the League of Nations, States have adamantly refused to recognize the right of minorities to secede. The Rapporteurs appointed to consider the dispute ruled out any

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secession: "To concede to minorities, either of language or religion, or to any fraction of a population the right of withdrawing from the community to which they belong, because it is their wish or their good pleasure, would be to destroy order and stability within States and to inaugurate anarchy in international life; it would be to uphold a theory incompatible with the very idea of the State as a territorial and political unity.30The Declaration of Principles of International Law is exceptional in implying that gross violations of human rights might trigger a right to secede. More common is the view expressed by the British Foreign Minister in l983 in Parliament: "It has been widely accepted at the United Nations that the right of self-determination does not give every distinct group or territorial subdivision within a State the right to secede from it and thereby dismember the territorial integrity or political unity of sovereign independent state^."^^ Yet, human rights instruments express a hndamental theory of governance: that sovereignty derives from popular will. The territorial State is deemed to express the values and goals of the population, free from external interference or "alien domination." Consent of the governed is presumed, at least until rebellion occurs. That international law recognizes "consent" as the basis for governance is seen in the repudiation of colonization or acquisition of territory by force. Government itself is a compromise between majority rule and minority rights. The minority concedes to the majority even on issues where it disagrees with the choices made, while the majority leaves to individuals and groups in the minority the necessary autonomy and fieedom to maximize their own values and choices within the general democratic framework. If a minority seizes power and restrains the will of the majority, the theory accepts the right of the majority to rebel and establish a governmentrepresenting the popular will. If the majority oppresses

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the minority, however, what options exist? Placing a minority government in power is inconsistent with the theory. Legal action to force the majority to respect the rights of the minority is preferable, if the majority is willing to respect the rule of law (which may be questionable, because it has already violated a key aspect of the rule of law, respect for human rights). Secession is the extreme option. One problem with secession as a remedy is that a breakaway minority State will become a new State with the minority now the majority and the former majority now the minority. The reality of the world is that nearly all States are ethnically,racially, religiously, linguistically and culturally diverse, despite French protestations to the contrary. None is eager to embrace the notion that its various groups could partition the State into multiple units. In nearly all situations, there are likely to be several claimants to a territory and the problem of majority rulelminority rights revives in a new smaller geographic unit.32In addition, if the majority of the State oppose the secessionist movement, allowing it to prevail would violate the principle of majority rule. Establishing the right of secession may even exacerbate political divisions and undermine democratic rule by providing the minority with an incentive not to compromise or accept the outcome of the political process. Like the right of self-defence, deadly force (i.e. secession) should not be used if there are other alternatives available such as legal action to preserve minority rights. Cassese concludes "that the following conditions might warrant secession: when the central authorities of a sovereign State persistently refuse to grant participatory rights to a religious or racial group, grossly and systematically trample upon their fundamental rights, and deny the possibility of reaching a peaceful settlement within the framework of the State structure. Thus, denial of the basic right of representation does not give rise per se to the right of

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secession. In addition, there must be gross breaches of fundamental human rights, and what is more, the exclusion of any likelihood for a possible peaceful solution within the existing State structure."33 The human rights jurisprudence reviewed above suggests: 1. Peoples and minorities are distinct legal classifications, however inaccurate the distinction may be from a social or anthropological perspective. 2. Minorities have group rights additional to individual rights adhering to all individuals in society. 3. Wherever possible, the international community will consider a group to be a minority and not a people entitled to selfdetermination. This is true of indigenous peoples, although certain land and governance rights are recognized for them within ex isting States. In fact, it is almost impossible to find a "people" recognized today. 4. Self-determinationis generally restricted to colonial contexts where there is a geographic separation of the ruling power (the "salt water separation" test), an ethnically or racially d istinct group being dominated, a relatively recent take-over of the territory, and a repression of the people in the controlled area. 5. Individual self-determination is increasingly recognized as the foundation of human rights. On a group level, th~sconstitutes internal self-determinationwhich if effectiveprecludes external self-determination. The reluctance of human rights bodies to recognize secession as a right reflects the State of the law. Yet, there appears to be some recent change in the views of States and human rights bodies. External self-determination (statehood) has been increasingly linked to internal self-determination (good governance and respect for human rights). While the theory has been there since 1970, in the

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Declaration of Principles oflnternational Law, the theory is being given greater content through insistence on the rule of law, free and fair elections, and rights of democratic participation.The ICJ has not dealt with the issue directly outside the colonial context, but it stated clearly in the Namibia Opinion34and the Western Sahara Opinion that "the application of the right of selfdetermination requires a free and genuine expression of the will of the peoples ~oncerned."'~ Within the United Nations this is seen in recognition that self-determinationrequires all the remaining rights in the Covenants be respected through a system of pluralistic representative democracy. External self-determination is limited to colonial territories, foreign military occupation, and racial groups denied access to governance structures. Despite the limitation on the right of secession, disintegration will continue unless international and national institutions become much better at ensuring internal self-determination. It would also be useful to detach the "State" from territory in the sense of consideringit as a functional governance system and not a property1 resource owner. Decentralization and autonomy can be forms of self-determination,with self-determinationmanifested as a process not outcome. Fundamental to implementing a process-oriented concept of selfdetermination and a functional rather than inherent concept of State sovereignty is the principle of subsidiarity. Application of this principle maximizes self-determination, whether individual or collective, by devolving decision-making to the smallest effective unit capable of resolving a social problem. Unlike the Tenth Amendment, subsidiarity is not fundamentally about States rights, but about individual autonomy and local governance. Good faith application of the principle could resolve many demands for autonomy and self-governance, while permitting resolution of problems that transcend local or regional boundaries. It de-

Self-determination and Secession -International Human Rights...

emphasizes territory as the basis for governance and thus may defbse demands for secession. In sum, subsidiarity, in the confines of the rule of law and respect for human rights, permits the continual exercise of self-determination. Please consult the Notes on the Authors

L. Hannikaninen, Peremptory N o m s (ius cogens) in International Law (1988) 357. Groups demanding autonomy or independence today include peoples of Tibet, Aceh, Kurds in Turkey, Iraq and Iran, Tamils in Sri Lanka, Karen in Burma, Chechens in Russia, and Palestinians in the Middle East. Charter of the United Nations, June 26, 1945, 59 Stat. 1031, United Nations Treaty Series. No. 993, 3 Bevans 1153, 1976 Yearbook of the United Nations, 1943. It should be noted that the French text of this provision speaks of the "right" of self-determination of peoples. See Mallison W.T. & Mallison, S.V., An International Law Analysis of the Major United Nations Resolutions Concerning the Palestine Question (1979), p. 43. Universal Declaration of Human Rights, Dec. 10, 1948, United Nations General Assembly Resolution 2 17A (111), United Nations Document AI8 10, at 7 l(1948). See A. Cassese, Self-determination of Peoples: a Legal Reappraisal (1995). See also United Nations General Assembly Resolution 45115O,21 February 1991, which declared that "periodic and genuine elections are a necessary and indispensable element of sustained efforts to protect the rights and interests ofthe governed." Declaration on the Granting of Independence to Colonial countries and Peoples, Dec. 14, 1960, United Nations General Assembly Resolution 15 14 (XV), 15 United Nations

Secession and International Law

General Assembly Official Records, Supp. (No. 16) 66, United Nations Document AI4684 ( 196 1). International Covenant on Civil and Political Rights, December 16, 1966, United Nations General Assembly Resolution 2200 (XXI),2 1 United Nations General Assembly Official Records, Supplement (No. 16) 52, United Nations Document AI63 16, reprinted in 6 I.L.M. 368 ( 1 967). International Covenant on Economic, Social and Cultural Rights, December 16, 1966, United Nations General Assembly Resolution 2200 (XXI),2 1 United Nations General Assembly Official Records Supplement (No. 16) 49, United Nations Document AI63 16 (1967),reprinted in 6 I.L.M. 360 (1967). United Nations General Assembly Resolution 2524, United Nations General Assembly Official Records, 25" Sess. Supp. No. 28, at 121, United Nations Document AI80 1 8 ( 1970). Art. 1(4),Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1977 United Nations Yearbook, reprinted 16 I.L.M. 1391 ( 1 977). See also General Assembly Resolution 3 103 (XXVIII) on the basic principles of the legal status of combatants struggling against colonial and alien domination and racist regimes. African Charter on Human and Peoples' Rights, June 26, l98 1 , O.A.U. Doc. CABlLEGl6713 Rev. 5, reprinted in 21 I.L.M. 59 (1982). European Conventionfor the Protection of Human Rights and Fundamental Freedom, Nov. 4, 1 950, European Treaty Series No. 5,2 13 United Nations Treaty Series 22 1. "It is the political aim of the Federal Republic of Germany to help create a State of peace in Europe in which the German

Self-determination and Secession -International Human Rights...

l5

l6

l7

l* l9

20

21

nation can regain its unity in free self-determination." Helsinki Doc CSCElVPV.3, 26. See discussion in Cassese p. 279. Lord Eric Avebury, "Practical Obstacles to Kurdish Selfdetermination," in The Kurdish Question and International Law (M. M. A. Ahrned and M.M. Gunter, eds., 2000), 80 at 87. Official Records of the General Assembly, Thirty-ninth Session, Supplement No. 40 (N39/40), annex VI, General Comment No. 12 (2 l)(art. l), also issued in document CCPRICI 2 1/Rev. 1. United Nations. See Communication No. 167/ 1984 (Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada), Official Records of the United Nations General Assembly, Forty-fifth Session, Supplement No. 40, (N45140, vol. 11, Annex IX, sect. A; Communication No. 16711984 (Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada), views adopted on 26 March 1990; Communication No. 19711985 (Kitok v. Sweden) OfJicial Records of the United Nations General Assembly, Forty-third Session, Supplement No. 40 (N43140) United Nations, annex VII, sect. G, Communication No. 19711985 (Kitok v. Sweden), views adopted on 27 July 1988. Forty-eight session, 1996, U.N. Document AI5 1118. Katangese Peoples' Congress v. Zaire, African Commission on Human and Peoples' Rights, 1995. Communication 751 92, Eighth Annual Activity Report of the Commission on Human and Peoples' Rights, 1994-5, 3 1" Sess. (1995). As of October 1998, there were 2,453 cases against Turkey in the European Court, many of them concerned with the situation of Kurds. See Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L/

Secession and International Law

VIII. 62, doc. 10 rev.3,29 Nov. 1983. Id. at 78-9. Id. at 79. The court noted that by virtue of a treaty of September 19, 1762, the Saramakas enjoy internal autonomy to be governed by their own laws and control over their own territory. Inter-American Court of Human Rights, Aloeboetoe et al. v. Suriname, Reparations Art.63(1) of the American Convention on Human Rights, Judgment of Dec. 4, 1991, Ser. A No. 15. Inter-American Court of Human Rights, Loayza Tamayo Case, Reparations, Art.63(1) of the American Convention on Human Rights, Judgment of Nov. 27, 1998, Ser. C No. 42. Id. at 147. Id. at 160. Id. p. 184. Report of the Commission of Rapporteurs, 16 April 1921, League of Nations Council 28, in Cassese p. 123. BYIL, 1983,409. As cited in Cassese only four ethnically homogeneous A h can States exist: Somalia, Botswana, Lesotho and Swaziland). Citing A. Guelke, "International Legitimacy, Self-Determination and Northern Ireland," 11 Review of International Studies, 1985,41. Cassese, supra n. 119-20. ICJ Reports 1971. 1975 ICJ Reports, 32, para. 55.

PART I1 FUNDAMENTAL LEGAL CONCEPTS

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ONGOING GLOBAL LEGAL DEBATE ON SELF-DETERMINATION AND SECESSION: MAIN TRENDS Stanislav V. Chernichenko* and Vladimir S. Kotliar* 1. The development of the debate Over the past decade the world has witnessed in several countries a growth of violent separatist movements aiming at secession with a view to establish a new State (Chechnya in Russia, East Timor in Indonesia) or to become a part of another State (Kosovo in Yugoslavia, areas with Albanian population in Serbia and Macedonia). These events and the counter-measures taken by the governments of those countries to stop terrorist activities and to prevent secession, have led not only to sharp debates in the United Nations, Council of Europe and OSCE but have also started a lively global discussion among experts with regard to the present status of international law on self-determination and secession. NATO's military intervention on the side of aggressive Albanian separatists against the legitimate authorities of Yugoslavia and its reluctance to stop the same aggressive Albanian separatists and to intervene on the side of legitimate authorities of Macedonia have given a new impetus to this discussion. The discussion focuses on the issue whether present norms of international law on self-determination and secession adequately reflect the needs of the international community, whether these norms need changes and, if so, in what direction, whether nowadays when some people in the West and liberal circles in Russia tend to Footnote texts at the end of each chapter

Secession and International Law

accord priority to the principle of respect for human rights as compared to the other principles of international law, priority should be also given to the principle of self-determination of peoples (including secession) as compared to the principle of respect for territorial integrity. The main forum for this discussion was a series of regional conferences of experts in international law which have taken place over recent months on the initiative of the "Consortium for International Dispute Resolution"(CIDIR), a Geneva-based international NGO. Thus, in July 2000, a conference of legal experts from the CIS member States was held in Moscow, in January-February 200 1, America's regional conference was convened in SantaClara (USA) and in June 2001 the European regional conference took place in the Hague. The analysis of final documents derived from the three conferences show both a convergence of views on important aspects of self-determination and secession as well as substantial differences of opinion. However, before conducting this analysis it might be useful to briefly examine the present situation of international law with regard to self-determination and secession today.

2. Today's status of the international law on self-determination and secession. Contemporary international law considers the right of peoples to self-determination as one of its basic principles. Its universal recognition has been confirmed by the United Nations Charter1 which speaks of "the principle of equal rights and self-determination of peoples". This basic principle is revealed in greater detail in a number of other international instruments, such as the Declaration on GrantingIndependence to Colonial Cotrntries and Peoples2 of 14 December of 1960, the Declaration on the Principles of International Law Concerning Friendly Relations and

Ongoing Legal Debate on Self-determination and Secession

Cooperation among States in Accordance with UN Charte? of 24 October 1970, the Eenna Declaration and Program of Action4 of 25 June 1993, etc. At a regional level it is reflected in the Final Act of the Conference on Security and Cooperation in Europe5 of 1975 (Principle VII: "Equal rights and self-determination of peoples"). The right of peoples to self-determinationhas also been repeatedly confirmed in universal and regional international treaties - for instance, in Article 1 of both Covenants on Human Rights6 and in Article 20 of the African Charter on Human and Peoples' Rights7 of 1981. Proceeding from those instruments the main elements of the right to self-determination (including secession) could be formulated as follows: a) each people has a right to self-determination; b) this right is recognized by all the States; c) it is to be realized through free choice by peoples without any interference from the outside; d) it presumes that there is a possibility to choose between - the so-called internal self-determination, i.e. obtainin the status ofa subject of a federation,autonomy or other form of self-determination within an existing State, or - secession of a given people involving the establisment of a new State, or - secession of a given people when it is admitted on certain conditions as a part of another State, presuming the choice of a political status, in cluding thechoice of a form of a State (a form of government, State struc ture, political re gime); e) it includes also the right to freely determine their own economic, social and cultural development. The UN Charter speaks of self-determinationof peoples and not of self-determination of nations. The notion of a mation)) has a

77

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more narrow scope than that of a ((people))- a common language, for instance, is not necessarily inherent in a people. In the 1960s, during the intensive stage of de-colonization, the two notions were ofien identified with each other. UN practice showed that the right to self-determinationwas also recognized with regard to the peoples of countries where nations had not been formed yet (for instance, in a number of African countries). However, the fact that the UN Charter speaks of the right of peoples in the context of selfdetermination should not be used to prevent nations from pursuing their rights through the process of self-determination, otherwise those parts of the multiethnic people of a country which do not qualify for belonging to the so-called title-nation would be denied participation in the process of self-determination and thus would be subject to discrimination. To avoid this, it is safer tooperate with the notion of self-determination of people as this term embraces all the nations in a multiethnic society. Thus, one should not speak of the right to self-determination of, for example, the Latvian nation but rather of the Latvian people. Secession is by no means an obligatory stage of a process of realization of the right to self-determination. Secession can be considered legitimate only in exceptional cases and then only within the framework of the right of peoples to self-determination. In accordance with the established UN practice and supported by, among other documents, the Declaration of 1970 and the Eenna Declaration and the Program of Action of 1993, secession can be accepted as a legitimate element of the right to self-determination only in the following cases: a) if it relates to peoples in the territories to be de-colonized (at present this norm has lost its original significance as the process of de-colonization is virtually over); b) if it is laid down in a constitution (or otherwise in a law) of a State;

Ongoing Legal Debate on Self-determination and Secession

c) if the territory populated by a given people was annexed after 1945 (in practice this provision presently relates only to the Arab people of Palestine); d) if a given people lives in the territory of a State which does not observe the principle of equal rights and self-determination of peoples and which does not ensure representation of all of its peoples without discrimination in its government. The latter provision is based on the well known ((safeguard clause)) which is contained, with some modifications, in the Declarations of 1960, 1970 and 1993. The essence of this principle is that contemporary international law does not authorize or encourage any action which would dismember or impair, totally or in part, the territorial integrity or political unity of States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and ensuring representation in their government of all strata of their population without any discrimination. At present there are no international mechanisms or specific norms of international law which could be used to determine whether a given people has the right to secession or which would regulate the relationship between a secessionist movement, a State and third parties. A peacefbl plebiscite, for instance, may not always reflect the true will of a people. An armed rebellion staged by extremist leaders would only further complicate the matter. Nevertheless, some general guidelines based on existing international legislation and basic principles of international law, could be drafted as follows: 1. A State is not to use armed force if the question of self-determination is raised without violating the constitutional order. A State, however, is entitled to use adequate force, including armed force, in defence of its sovereignty,territorial integrity and political unity

Secession and International Law

(within the framework of its constitutional order and with due respect for its international obligations), if the question of selfdetermination is raised in contravention of the constitutional order and violence is used, as well as against any other illegitimate actions taken under the pretext of realization of the right to selfdetermination. 2. In any case, universally recognized norms related to human rights should be respected both when a question of self-determination is raised and throughout the process of realization of the right to self-determination. 3. In the case of an emergency situation or an international or non-international armed conflict related to self-determination and secession, exceptions can be made with regard to international obligations on human rights, within the limits and in accordance with the procedures which are set out in a given State's constitution and which conform to norms of international law. 4. When terrorists and mercenaries are used under the pretext of a struggle for self-determination, a State is free to take adequate counter-measures including use of force. Such counter-measures should be implemented with due regard for State laws and norms of international law. 5. Without the UN Security Council authorization, armed intervention by third parties in a conflict connected with armed struggle for secession in support of secessionists, is inadmissible. 6. States established in violation of the principle of equal rights and self-determination of peoples should not be recognized under international law. It is universally accepted that minorities - as well as indigenous peoples - have no right to secession. Both have, however, the right to claim special protection in conformity with, inter alia, the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities of 1992, with Article 27 of the International

Ongoing Legal Debate on Self-determination and Secession

Covenant on Civil and Political Rights and with other international instruments. Violations of their rights are to be considered in the same way as violations of human rights. For the past twenty years or so, a norm of international customary law seems to have emerged, enabling States whose population mainly consists of people of the same ethnic origin as persons forming a national minority in the territory of another State, often neighbourly and sharing common history at some stage (for example, Russians in Latvia and Estonia, Swedes in Finland), to show legitimate interest for the conditions under which such a minority lives and, if necessary, to raise the issue of its protection before the government of the State where the minority lives or in international organizations. This practice, however, needs a more solid legal foundation. A complicated problem is that of self-determination of so-called divided peoples, i.e. peoples which as a result of historical developments found themselves scattered in the territories of several States. The Kurdish people probably represents the most typical but not the only example of this category. The very expression ((the divided people)) is not considered a legal term. Sometimes it is difficult to say if the people is really divided or if it forms a title nation or one of the nations in a State whose actual influence is analogous to that of a title nation (as the case is in Switzerland), while in other States persons of the same ethnic origin form only a national minority. It is more expedient to recognize a people as divided if it lives in the adjoining parts of the territories of different States in each of which it forms a compactly living national minority within this very part of the territory. If the rights of these minorities are properly protected, no problem should arise. If that is not the case, even the issue of secession may arise under certain circumstances, although no precise legal guidelines exist which would apply to such a situation.

Secession and International Law

3. Comparative views of the CIS, Americas' and European legal conferences on self-determination and secession. Each of the three conferences adopted its own conclusions and recommendations. As mentioned already, a comparative analysis shows both important convergence and substantial differences of views. Thus, agreement is expressed with the continued relevance of the principles of international law (laid down in the UN Charter and in a number of other instruments of international law referred to above, including the Declaration of 1970), such as respect for territorial integrity of States, sovereign equality, non-interference into internal affairs and respect for human rights - in respect of selfdetermination and secession. It should be also noted that the final document of the American conference underlines the importance of the "safeguard clause" fiom the Declaration of 1970, namely the one on inadmissibility of using its provisions to encourage any action with a view to dismember or impair territorial integrity or political unity of States which respect principles of equal rights and self-determination of peoples and thus possess a government representing the whole people belonging to the territory, without discrimination. It rather firmly states that the maintenance of a people's identity does not necessarily require secession but may be achieved through other means of internal self-determination such as devolution of power, administrative and cultural autonomy, creation of local government, etc. Moreover, both the American and the European documents point out that while a peaceful campaign in support of secession from an existing State should not be persecuted by it, that State, however, is fully entitled to use force to stop any armed attempts to impair its territorial integrity. The theses that secession is by no means an obligatory stage of a self-determination process and that a State has the right to use

Ongoing Legal Debate on Self-determination and Secession

force to stop armed secession attempts are to be found also in the European final document. It should also be noted that the European document underlines presumption in contemporary international law against secession and against recognition of new States established as a result of secession against the will of the "motherState". At the same time, judging by the three final documents, the views of Russian and Western legal experts differ on some important aspects of the issue in question. One actually gets a clear impression that some Western lawyers - not all of them - tend to show much more concern for the rights and interests of supporters of separatist movements than for the rights and interests of the remaining part of the population of a State which is usually in the majority. It is somewhat surprising that, despite the above references to a number of universally recognized instruments of international law dealing with the issue, Western lawyers assert that international law remains neutral on the matter of the right to secession, not prohibiting and not allowing it. Furthermore, the Santa-Clara final document refers to self-determination and secession as two different concepts while the Moscow document regards both as a single concept. The latter expresses the view that secession is the ultimate resort of peoples to achieve self-determination and, according to the views of the CIS' conference, secession attempts may be considered legitimate only in several strictly limited cases recognized by the international law and referred to above and then only in the context of a process to achieve self-determinationby peoples, after the failure of all their preceding attempts to secure their rights through ''internal self-determination". In fact, the position expressed in the American conference may be used to proclaim any separatist movement as legitimate since it removes the main criterion of a legitimate nature of a secession movement - its aim to achieve

Secession and International Law

self-determination of people. One should add, though, that on this point the European conference supported CIS lawyers rather than American ones. Moreover, both Western conference documents contain the following definition of the term "secession": "The issue of secession arises whenever a significant portion of the population of a given territory, being part of a State, expresses by word or deed the wish to withdraw from the State and become a State in itself or become part of another State". Even leaving aside the fact that this language resembles a commentary or a description rather than a legal definition, fiom the viewpoint of the CIS document, there are at least three major faults with the substance of that definition: a) secession is considered here without any link to self-deter mination and therefore could just as well be viewed as sepa ratism; b) international law recognizes the right to secession in the context of self-determination onlyforpeoples, notfor "a significant portion of a population of a given territoly ", otherwise even religious groups would be accorded this right; c) the definition makes no mention at all of one of the main obligatory stipulations for a secessionist movement to be recognized as legitimate - namely that it should start and proceed with full respect for the constitution and other laws of a given State, otherwise even such "deeds" as terrorism or a mutiny, if they are committed to promote secession, could be considered legitimate under this definition. For the same reasons, the appeal of American lawyers to the international community for recognition of the right to secession

Ongoing Legal Debate on Self-determination and Secession

"where the population of a tenitory is subjected to gross, discriminatory and continuing violations of fundamental human rights directed against secessionist groups" and the appeals of both Westem conferences to settle peacefully the problems related to secession as those appeals presently being drafted, raise some doubt. Both those appeals could be taken seriously only if we were to consider secession within the fi-ameworkof self-determination and only after all previous attempts to secure people's rights through internal self-determinationwould have failed, always provided that the secessionist movement were to respect the constitutional order of the State in question. Besides, as mentioned above, the international law recognizes the right to self-determination and secession only in relation to peoples, not to "the population of a territory" or to "secessionist groups". The three final documents reveal serious differences of views also on the issue of military intervention by third parties in armed conflicts in other States in favour of separatists. The Moscow document proceeds fi-om the fact that, under the UN Charter, a military intervention is possible only if sanctioned by the UN Security Council and that international law prohibits the use of mercenaries, to say nothing of terrorists, in such conflicts. However, the American document seems to be concerned only by the norms of international humanitarian law which would apply in these cases, as if taking for granted that outside elements would at will interfere militarily into conflicts within other States: "Where third party States, non-State entities and international organizations intervene militarily in secession related conflicts, they are also obliged to implement international humanitarian law". The European document is more careful on this point, suggesting that "military assistance by the armed forces of a State, acting individually or collectively, provided to the secessionists of another

Secession and International Law

State should not take place unless authorized by the Security Council". However, it seems that with regard to the matter relating to receiving military assistance from the outside, it places legitimate governments and secessionists in an equal position. One gets the impression also that the European document (as well as the American one) tries to find justification for the NATO military intervention against Yugoslavia as it adds that "the right to the use of force among States is governed by the UN Charter as well as by customary internationallaw ". The latter reference should obviously include precedents, should it not ? At the Hague conference, a view was also advanced - though only by one speaker - that if a State used force against a separatist movement, this factor should "accord an international legal personality to that movement which would then be entitled to solicit and to get help from the outside". This comes very close to advancing the controversial concept of "humanitarian intervention" which practically all the speakers in Moscow condemned as illegitimate and contrary to the UN Charter. Finally, both at the Americas' and at the European conferences, views were expressed that international organizations have a "special responsibility" with regard to situations of secession, providing assistance in the establishment and maintenance of a representative form of government, acting as a mediator to facilitate a peaceful solution or talung a decision on the collective recognition, if need be. However, in the opinion of participants to the Moscow conference, proposals to make extensive use of international organizations in secession related situations have lost a lot of their appeal in the aftermath of the war in Kosovo, when NATO pushed the OSCE aside in a rather unceremonious manner and later suddenly remembered the existence of the United Nations and its Security Council, only when it became clear to Washington and Brussels that they did need a political solution to the conflict after

Ongoing Legal Debate on Self-determination and Secession

all. It will now take years - in Russia anyway - to regain trust in OSCE's objectivity, at least in this particular context. The present Chairman of the OSCE, Mr.Mircea Geoane, has obviously got accustomed to a secondary role for the OSCE, since he stated on 20 June 2001 that before taking any initiative to resolve the crisis in Macedonia the OSCE "will have to wait until NATO takes the final decision". Against this background it is clear that, generally, we should be very careful in the designation of mandates involving any international organizations such as mentioned in the Santa-Clara document (UN General Assembly, ICJ, UN Security Council, etc.) because to internationalize the issue of dividing a country and a multiethnic population which has formed a single State for decades or even centuries, linked together by common history, with established economic and cultural ties, family connections, etc., is too delicate and risky a matter. There is always a temptation, for reasons of political opportunism, to take sides in conflicts of this type. Too often this may lead to tragedies and create more problems than one wanted to settle originally. We have all seen this in Afghanistan and Kosovo and we witness now some of the consequences of this controversial approach in Macedonia. At best, a mandate given to an international organization should be limited to monitoring and establishing readiness to counsel if and when such counsel is requested.

*

Please consult the Notes on the Authors Charter of the United Nations and Statute of the International Court of Justice, Department of Public Information, UN (1949, reprint 1998

UN General Assembly Resolution 1514 (XV), UN, 1960 UN General Assembly Resolution 2625 (XXV), UN, 1970 UN General Assembly document A IConf. 157123 Document of the Conference on Security and Cooperation in Europe, Helsirh, 1975 International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights, in: Human Rights: A compilation of International Instruments, UN, 1994 Ahcan (Banjul) Charter, OAU document CABLEG16713 rev.5 - 21 I.L.M. 58 (1982)

A LEGAL BASIS FOR SECESSION RELEVANT PRINCIPLES AND RULES John Dugard* The purpose of my contribution is to provide an introduction to the topic. I shall not attempt to provide an overview of the subject but rather to identify some of the legal difficulties concerning secession. The organizershave advanced a d e f ~ t i o of n secession with which I cannot l l l y agree. I prefer to see secession as the unilateral withdrawal of part of an existing State fiom that State without the consent of the government of that State. Secession by agreement is better described as &ssolution of a State (Slovakia and the Czech Republic). The phenomenon of secession is not new. Many of today's States owe their existence to an act of secession. Until recent times, however, the rules of international law provided no obstacles to secession. As revolution was not (and is not today) prohibited by international law, a disaffected group within an existing State might forcibly seek to secede fiom that State, with or without foreign assistance. And as there was, before the Kellogg-Briand Pact of 1928, no prohibition on the use of force, there were no legal restraints on third States when it came to giving support to a secessionist movement. The rules of recognition of States were relatively undeveloped and States by and large accorded recognition to new entities of which they approved politically. There was no doctrine of collective nonrecognition which might lead the international community to block a successful secession by non-recognition. And there was no law of self-determination to complicate matters. Footnote texts at the end of each chapter

Secession and International Law

Panama's secession from Colombia in 1903 illustrates the old regime, if regime it could be called. The rebellious province of Panama seceded from Colombia backed by United States' recognition, which implied that it would use force to prevent Colombia from reasserting its sovereignty over Panama. No questions were asked about whether the people of Panama constituted a 'people' entitled to exercise the right of selfdetermination. Little attention was paid to the principle of uti possidetis which had governed territorial dispositions in Latin America for eighty years. No complaints were made about the United States' threat of force against Colombia. No international body called upon its members to withhold recognition of Panama. On the contrary, the United States' recognition of Colombia was quickly followed by others (France, China, Germany, AustriaHungary) and Panama soon became an independent State. (Later the United States paid $25,000,000 to Colombia to settle the dispute between the two countries on this issue.) Today the issue of secession is to be viewed within the context of the rules governing self-determination and territorial integrity, the prohibition on the use of force and the mles of recognition and non-recognition. Although the governing mles may not be clear, they have clearly changed much since the secession of Panama. The first question that must be considered is 'does international law permit or prohibit secession?' In 1970 at the conclusion of the Biafian war, in the wake of an unsuccessful secession from Nigeria, UN Secretary-General U Thant declared: 'As far as the question of secession of a particular section of a State is concerned, the United Nations attitude is unequivocable. As an international organization, the United Nations has never accepted and does not accept and I do not believe will ever accept the principle of secession of a part of its Member State''

A Legal Basis for Secession - Relevant Principles and Rules

This was of course a gross exaggeration. The United Nations has never committed itself on this subject in principle, and I do not believe it will ever do so. The subject is simply too complex to allow for an absolute answer and the United Nations therefore prefers to tolerate a degree of ambiguity and uncertainty. On occasion, it is true, the United Nations has condemned secession, for example in the cases of Katanga2 and the Turlush Republic of Northern Cyprus3 (which might be classified as an instance of assisted secession). But on other occasions the United Nations has remained silent and allowed events to take their course without any condemnation of secession: as with Biafra4 and Bangladesh5. That the United Nations does not view secession as unlawful is clear from the willingness to reward successful secessionist States with membership in the United Nations. This is illustrated by the admission to the United Nations of Israel (arguably a secession from the mandated territory of Palestine), Bangladesh, Eritrea and the units comprising the former Yugoslavia. While international law does not, as stated by U Thant, prohibit secession, it does recognize rules which put a brake on secession. This is clearly illustrated by the modem law of self-determination. Peoples have a legal right to self-determination6- the right to freely determine their political status - and this principle, according to the International Court of Justice, is one of the 'essential principles of contemporary international law7. An intelligent lay person, unversed in the niceties of UN law and practice, might be forgiven for believing that this permitted a people (a cultural, linguistic or religious group with a clear separate identity) within a State to exercise its inalienable right of self-determination to secede and establish a State of its own, particularly when it is oppressed by a majority belonging to another ethnic group within that State. However, it is not so under international law as a result of three subtle, self-serving restrictions on the right of self-determination.

Secession and International Law

First, the right of self-determination is qualified by the principle of territorial integrity, inspired by the practice of uti possidetis. Thus, while the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in United Nations General Assembly Resolution 15 14 (XV) of 1960, proclaims that 'All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development' (para 2), it qualifies the right by declaring that 'Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the Purposes and Principles of the Charter of the United Nations' (para 6). This is endorsed by the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations of 1970 contained in Resolution 2625 of the United Nations General Assembly. Moreover the International Court of Justice has held that the principle of uti possidetis, which ensures respect for colonial boundaries, however arbitrarily drawn, is a customary rule of 'general scope' which confines the right of self-determination of peoples to a territory as defined by the colonial power8,despite the fact that colonial boundaries, particularly in Africa, often divide ethnic groups. Secondly, the word 'people' or 'peoples' in that strange language, "UN-ese", does not mean the different ethnic groups or peoples that comprise a heterogeneous population but all the people within a State, that is its population. This interpretation, which takes little account of the complexity of the term 'people' or people^'^ ensures that minorities within a state are not accorded the right of secession. Professor (now Judge) Rosalyn Higgins sums up the position as follows: 'The emphasis in all the relevant instruments and in State practice . .. on the importance of territorial integrity, means that 'peoples'

A Legal Basis for Secession - Relevant Principles and Rules

is to be understood in the sense of all the peoples of a given territory. Of course, all members of distinct minority groups are part of the peoples of the territory. In that sense they too, as individuals, are holders of the right of self-determination. But minorities as such do not have a right of self-determination. That means, in effect, that they have no right to secession, to independence, or to join with comparable groups in other States' 1°. Not surprisingly, the Supreme Court of Canada had difficulty in accepting this interpretation of the word 'people' in Reference Re Secession of Quebec when it declared that '... a "people'' may include only a portion of an existing State ... "people" does not necessarily mean the entirety of a State's population'" . Thirdly, there is the question of the right of an oppressed people to secede from a State. Resolution 2635 (XXV) gives the impression that in the final resort an oppressed people enjoy a right of secession as it declares that nothing shall impair the territorial integrity of a sovereign independent State conducting itself in compliance with the principles of equal rights and selfdetermination of peoples 'and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour'. Although writers have interpreted this provision to allow secession to an oppressed minority12,the political organs of the United Nations prefer to confine the application of this clause to the political situation that prompted its inclusion in Resolution 2625 (XXV) - apartheid in South Afiica, dead for over a decade.13 While it is correct that 'international law contains neither a right of unilateral secession nor the explicit denial of such a right'- as stated by the Supreme Court of Canada in the case concerning the secession of Quebec14 - it is clear that secession is to be recognized only 'in the most extreme cases'15 . Consequently, there is at least a presumption against secession, albeit a rebuttable presumption16. The strictness of the presumption against secession seems to

Secession and International Law

vary according to the region. Latin-America, where the principle of uti possidetis originated, has seen no secession since Panama's secession from Colombia in 1903. Africa, perhaps the continent with most to fear from secession, on account of the arbitrariness of its boundaries drawn by the colonial powers, is determinedly opposed to secession17;and has seen only one successful secession since Afi-ica was de-colonized -that of Eritrea fi-omEthiopia, which was a special case because of the earlier merger of the two nations1*. Asia has witnessed the secession of Bangladesh but has resisted further secessions (Bougainville from Papua New Guinea), although strains are now placed on this record by secessionist movements in Indonesia. Europe seems to be more willing to permit secession. The dissolution of Yugoslavia in 1991 may be categorized as a case of secession on the part of Slovenia, Croatia, BosniaHerzegovina and Macedonia fiom Yugoslavia.lg The Badinter Commission's fmding that this dissolution complied with the principle of utipossidetis as it respected federal frontiers20,is not convincing. Having learned fiom this experience, European States seem less inclined to contemplate the secession of Kosovo or Montenegro from the Federal Republic of Yugoslavia. The genie of Kosovo is, however, already out of the bottle of Serbia and it seems unlikely that this defacto secession can be reversed. Montenegro therefore presents a new challenge to Europe. Regional differences in the application of international law are not unknown. Whether such differences are desirable in the case of secession, time alone will tell. The policy reason generally advanced for the presumption against secession is that of stability. To confine the exercise of self-determination to existing frontiers, it is claimed, will prevent the redrawing of boundaries to accord with ethnic realities, particularly in A h c a and the Balkans, and thereby avoid the chaos that inevitably will result from such a restructuring of boundaries. There is much to be said for such a policy. But there is a counterargument

A Legal Basis for Secession - Relevant Principles and Rules

which requires consideration. The retention of historical and colonial boundaries, which fails to take account of ethnic and historical realities, may be seen as the cause both of the failed State and of the continuing conflict in many States. Who can seriously maintain that international stability is advanced by retaining the existing boundaries of Serbia, Sudan, Somalia and the Democratic Republic of the Congo? Please consult the Notes on the Authors (1970) UN Monthly Chronicle (Feb.) 40. UN Security Council Resolution Sl5002. UN Security Council Resolutions 541 (1983), 550 (1984). David A. Ijalaye Was Biafra at Any Erne a State in International Law? (197 1) 65 AJIL 55 1. T. Franck & N. Rodley The Law, the UN & Bangla Desh 1972) 2 Israel YB on Human Rights 142. That the right of self-determination is a legal right under international law is no longer seriously challenged. It is affirmed in the Charter of the United Nations (articles 1,55) and given content in UN General Assembly Resolution 1514 (XV) of 1960 the Declaration on the Granting of Independence to Colonial Countries and Peoples - and subsequent resolutions of the General Assembly, notably the Declaration on Principles of International Lav ConcerningFriendly Relations and Co-operation among States in Accordance with the Charter of he United Nations of 1970 (Resolution 2625 0. It has been acknowledged as 'norm of international law'in the context of de-colonization by the International Court of Justice in Namibia Opinion (1971 ICJ Report 16) and the Western Sahara Case (1975 ICJ Report 12,31-3), confumed outside the context of de-colonization by the International Covenant on Civil and Political Rights (article 1) and recognized as a legal right by many authors. East Timor Case 1995 ICJ Reports 90 at 102.

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Frontier Dispute Case 1986 ICJ Reports 554, at 565-8. See J. Crawford (ed) The Rights of Peoples (1988); R. Kiwanuka The Meaning of "People" in the African Charter ofHuman and Peoples Rights (1988) 82 AJIL 80. Problems and Process. International Law and How to Use it (1994) 124. 37 ILM 1340(1998) par. 124. R Rosenstock The Declaration of Principles of International Law Concerning Friendly Relations: A Survey (197 1) 65 AJIL 7 13. See too V P Nanda Self-determination under International Law: Validity of Claims to Secede (1981) 13 Case Western Reserve Journal of International Law 257. P Thornbeny Self-determination,Minorities, Human Rights: A Review of International Instruments (1980) 38 ICLQ 867 at 876; A. Cassese Self-Determination of Peoples. A Legal Reappraisal (1005) 122 ff. Above, footnote l l at para 12. Ibid. J. Cradord The Creation of states in International Law (1979) 221; M. Shaw Btle to Tenitoy in Afnca (1980) 215; D. Murswiek The issue of a Right of Secession - Reconsidered in C. Tomuschat (ed) Modern Law of Self-Determination 21, 27. L. C. Buchheit Secession, The Legitimacy of Self-Determination (1978) 96. J. Dugard Secession: Is the Case of Yugoslavia a Precedent for Africa? (1992) 5 Afiican Journal of International & Comparative Law 11 , 21. Katangese Peoples Congress v Zaire reported in (1996) 3 IHRR 136; (1995) 13 Netherlands Quarterly of Human Rights 478. Cassese, supra footnote 13 at 218-222. Dugard, supra footnote 17. Opinion No. 3,92 ILR 170; Opinion No 2,92 ILR 967; M. Craven The EC Arbitration Commission on Yugoslavia (1995) 66 BYIL 333.

SECESSION AND THE BAN ON THE USE OF FORCE: SOME REFLECTIONS Nico Schrijver* The status of the prohibition on the threat or use of force in international relations is addressed first, including the ambit of the exceptions to this principle. Secondly,rewieving assessing the lawfulness - if at all - of the use of force in the context of secession attempts, the identification of the various actors has been undertaken. They range from States, through international organizations, to non-State entities. Thirdly, the paper indicates some factors relevant to assessing the legality of the use of force during secession. These factors relate to the forum of decision-making and entail substantive norms and procedural requirements. 1.The general prohibition of the threat or use of force Gone are the days when States were entitled to ajus ad bellurn at their discretion, to achieve their political aims. Following ambiguous attempts to restrain the resort to war through the League of Nations Covenant ( 1924) and the Briand-Kellogg Pact (1928), the Charter of the United Nations unequivocally stipulates: "All Members shall refiain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations" (Article 2, paragraph 4). This provision is the pivot of the UN Charter and serves as the backbone of the envisaged system of collective security and peaceful relations among States. It has been most notably confirmed and Footnote texts at the end of each chapter

Secession and International Law

elaborated in the 1970 Declaration on Principles of International Law concerning Friendly Relations among States in Accordance with the Charter of the United Nations2 and the 1974 Definition of Aggression.) Notwithstanding the fact that Article 2, paragraph 4 has been the subject of many extensive and learned analyses as well as judicial scrutiny: its interpretation is still not devoid of any ambiguitie~.~ While there can be little doubt that the tern 'force' is meant to refer to 'armed force', the prohibition of 'the threat of force' is not entirely clear and perhaps also not easy to capture in precise legal rules. For example, up to what extent is an ultimatum announcing recourse to military measures if certain demands are not accepted or adhered to lawfbl under Article 2, paragraph 4?6 Moreover, who can provide us with the ultimate interpretation of what exactly is meant by its phrase "or in any other manner inconsistent with the Purposes of the United Nations?" (emphasis added) Status in international law In its Nicaragua judgment, the International Court of Justice identified the principle of the prohibition of the use of force as expressed in this Article "a hdamental or cardinal principle of such law".7 Are this pronouncement and its status in international law sufficiently clear and strong so as to argue, and beyond doubt, that the ban on the use of force is a principle of jus cogens indeed, i.e. a "norm from which no derogation is permitted and which can only be modified by a subsequent norm of general international law having the same character ?" If so, what about the extent and impact of its exceptions? Charter and non-Charter exceptions The UN Charter itself lists certain exceptions to the core principle of Article 2, paragraph 4. They include the 'inherent right of individual and collective self-defence' (art. 5 l), collective action

Secession and the Ban on the Use of Foce: Some Reflections

with military means taken or authorized by the Security Council (art. 42), the currently obsolete articles regarding action against the former enemy States (art. 53.1 and art. 107) and the transitional security arrangements vesting the permanent powers with the right to resort to military action should this be necessary for the purpose of maintaining the international peace and security (art. 106). Obviously, the Charter was meant to provide an exhaustive list of exceptions,particularly in view of the firm wish of the founding fathers "to state in the broadest terms an all-inclusive prohibition without loopholes" (UNCIO, 1945).Yet, as so often, life proves to be stronger than doctrine. Thus, it has convincingly been argued that the right of States to rescue its nationals if necessary by miliFurthertary coercion had been unaffected by the UN Cha~ter.~ more, the doctrine of humanitarian intervention is also quoted as an extra-Charter exception legitimizing the use of force in case of flagrant violations of human rights, without the consent of the government of the State in which the intervention takes place and without authorization of the UN Security Council.l0 Lastly, one may refer to the controversial Uniting for Peace-procedure, vesting the General Assembly with the power to recommend military action in case of a breach of the peace or act of aggression should the Security Council be paralyzed due to a lack of agreement." Finally, in this multi-actor world one should note that the application of prohibition of the threat or use of force as stipulated in Article 2, paragraph 4 is incumbent on States only and merely applicable in "international" relations. Would there be a reason to seek its extension to other subjects of international law, most notably international organizations such as NATO, internationally recognized representatives of peoples or even to multinational corporations? In a similar vein, should it be argued that the prohibition be upheld in non-international conflict situations as identified in common Article 3 of the Geneva Conventions and Protocol II? 99

Secession and International Law

2. Actors involved in secession In the previous section we already touched on the question of the variety of actors. The following ones could be distinguished: a) the State in whose territory the secessionist movement operates, the affected State or the victim State; b) the secessionist movement as a non-state entity. Its status can vary widely, depending on the degree of international recognition of its rights; c) third States assisting the affected State's effort to protect its territorial integrity or intervening directly with military means for this cause; d) third States assisting the secessionist movement or intervening directly with military means in its support; e) international organizations supporting the troubled State (Congo case, 1960-4); and f) international organizations supporting the secessionist move ment (East Timor, 1999-2001). Obviously, the applicable rules vary with the actor concerned. A few examples may illustrate this. As far as the affected State is concerned (a), under current international law, the State still retains the monopoly of power within its territory, to be exercised through its police forces or army. However, a still expanding body of human rights law, international humanitarian law and emerging constitutional State-/good governance-related international law puts increasingly strict limits to this power, thus qualifying State sovereignty and the scope of the domaine resewk.12 Reference may be made to the stipulation in paragraph 5 of the 1970Declaration on Principles of International Law, that States conduct themselves in compliance with the principle of equal rights and self-determinationof peoples and be "thus possessed of a government representing the whole people belong-

Secession and the Ban on the Use of Foce: Some Reflections

ing to the territory without distinction as to race, creed or colour." If that is the case, a prohibition of secession can be said to exist and the government is then entitled to uphold its territorial integrity, if necessary by using military measures as long as it does so in an appropriate and lawful way. Then the preambular paragraph of the same Declaration is applicable: ". ..any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations". If a State is not possessed of such a representative government, this provision implies that ultimately such oppressed peoples have a right to rebel and even seek independent statehood. As regards secessionist movements (b), it is nowadays widely accepted that under customary international law, non-State entities engaged in an international or non-international armed conflict are also bound by international humanitarian law, even in the case the complicated procedure of expressing such adherence under the Geneva Protocols has not or could not have been followed.l 3 It is one of the strokes of evidence that such non-State entities have a certain status in international law. A further one is that in future their leaders can also be subject to international criminal responsibility for serious international crimes listed in the Statute of the International Criminal Court. With respect to third States in situation (c), it is commonly accepted that any State can seek support from other States for the sake of maintaining law and order or restoring security within its territory. Bilateral, regional or multilateral treaties often provide for this. But in response to abuses, for example 'interventions by invitation' by the US in Central America or by the USSR in Eastem Europe and Afghanistan, it is increasingly found that third States are under a duty to r e h i n from any assistance and forcible action

Secession and International Law

in contravention of the right of peoples to self-determination.Thus, international law increasingly puts a brake on international assistance to oppressive regimes. What then does international law provide in case of third States assisting a secessionist movement in another State(d)?Under United Nations law, as exemplified in the 1965 Non-Admissibility of Interventionl4 and in paragraph 3 of the 1970 Declaration on Principles of International Law (UNGA Resolution 2625), the basic rule is that States are under a duty not to intervene, directly or indirectly, for any reason whatever, in the internal affairs or external relations of any other State. Thus, the 1970 Declaration on Principles of International Law provides: "Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law. .." and ". ..no State shall organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of the rkgime of another State, or interfere in civil strife in another State". Obviously, such provisions were meant to prevent infhngements on the sovereignty of the State. At least two exceptions did emerge with respect to this principle of noninterference, albeit it not without controversy. During the 1970s, the UN General Assembly adopted a series of resolutions relating to the law of decolonization and anti-apartheid, reaffirming "the legitimacy of the struggle of colonial peoples and peoples under alien domination to exercise their right of selfdetermination and independence by all means necessary at their disposal". The latter phrase was subsequently specified as to mean "including armed struggle."15 It was claimed that foreign States were entitled to offer "moral, material and any other assistance" (emphasis added) to such movements in their wars of national liberation. This was said to be "in conformity with the Charter of the

Secession and the Ban on the Use of Foce: Some Reflections

United Nations."16 It could well be argued that this claim, however controversial it proved to be in view of the voting record on these resolutions, served as a legitimization of support for armed struggle by oppressed peoples. However, this claim of support fiom third States to their armed struggle was perhaps a particular episode of the decolonization process, which by now has lost much of its relevance. Moreover, it seldom resulted in secession in the genuine meaning of the term. A second exception relates to a situation of gross violations of human rights, among other things reflected in a situation in which there is no "government representing the whole people without distinction as to race, creed or colour" (1970 Declaration on Principles of International Law). Some States will claim that in such a situation they are entitled, if not obliged to intervene pursuant to the doctrine of humanitarian intervention should the United Nations fail to take action. Lastly, various roles of international organizations should be distinguished. They can act in support of the territorial integrity and sovereignty of an affected State (e). The United Nations performed such a role with respect to Congo in the early 1960s and NATO with respect to Macedonia in 2001. They can also act neutrally by seeking to prevent or contain internal conflict through fact-finding and mediation or conciliation facilities, as for example the OSCE High Commissioner for National Minorities seeks to do, or through peace-keeping operations. In the case of the NATO intervention into Kosovo this even took the form of a wide-spread military action against Yugoslavia, with the declared intention to provide protection and humanitarian relief to those in need but not to support secession of Kosovo fiom Yugoslavia. However,the policies of international organizations can also amount to support, directly or indirectly, secessionist movements in their cause. 103

Secession and International Law

-First of all, through repeated condemnation of the way a State treats a certain group of people in a particular region and by providing its representatives an internationalplatform, an international organization can also, even if unintended, provide support to the legitimacy of the claim of the secessionist movement. -Secondly, by entering into contact and sometimes even dealing directly with people's organizations, as the United Nations did with SWAPO in Namibia, with the FMLN in El Salvador and with Kosovar representatives in Yugoslavia. -Lastly, by legitimizing the threat or use of force against the former parent State with respect to a territory engaged in the process of secession. Reference can be made to the role of NATO in the enforcement of the UN imposed no-fly zone over Bosnia and Herzegovina and to the Australia-led multinational security force in East Timor. These cases bring to the fore the fundamental difference between situations in which the Security Council has authorized the use of "all necessary means" (lke in Somalia, the nofly zone in Bosnia and Herzegovina, in Haiti and in East Tirnor) and those in which such collective legitimization has not taken place (like in Kosovo). With such increasing roles of international organizations, attention arises for their accountability under public international law. Obviously, international organizations cannot operate beyond or above the law. It is now widely accepted that their policies and operations are also subject to the principles and rules of international law, including human rights and international humanitarian law.17

3. Some factors legitimizing the threat or use of force during secession As reviewed above, the basic principles and rules of international law provide for a presumption against secession and a clear-

Secession and the Ban on the Use of Foce: Some Reflections

cut prohibition of States using force to assist secessionist movements. The great significance of the principles of territorial integrity and the non-use of force in international relations is not to be underestimated. They do not merely seek maintenance of the status quo but also seek to prevent an anarchical disorder. A government should retain the right to respond appropriately to attempts to break up the State by force or violence, of course in a lawhl way and not by an excessive use of force against secessionists.The troubled State may well call on the assistance of international organizations and third States to provide support. However, this is not to say that the use of force by third States in support of the process of a secession could never be legitimate. As regards the forum of decision-making, the least controversial will be the use of force authorized by the UN Security Council itself, llke in the case of the Congo in 1960 (supporting territorial integrity1*or the case of East Timor (supporting secession) following the referendum in August 1999 and the subsequent outbreak of hostilities with Indonesian armed forces and paramilitias.l9 Contemporary history learns that such UN authorization is sometimes difficult to achieve, even in humanitarian emergencies which then may warrant unilateral action. In substantive terms, norms can be formulated as to: the nature and level of oppression within a State; the 'people' requirement (as opposed to a 'minority'); the extent to which these peoples will respect the equal rights of other peoples and individual human rights; adherence to other United Nations law; and observance of international humanitarian law. In procedural terms, one should observe the principles of necessity, last resort remedium and constant reporting to the UN Security Coun~il.~O Taken in combination, these factors may provide some guidance in assessing the exceptional circumstances in which a legitimate use of force may be made in cases of secession.

Secession and International Law

Please consult the Notes on the Authors Art. 12, League of Nations Covenant. For a review and analysis see I. Brownlie, International Law and the Use of Force by States, Chapter IV, Oxford, 1963. UN General Assembly Resolution 2625 (XXV), 24 October 1970. Annexed to UN General Assembly Resolution 33 14 (m), 1974. ICJ, Nicaragua v. USA, ICJ Reports1986, p. 101, para. 190; ICJ, Advisory Opinion on Legality of Nuclear Weapons rendered upon request of the United Nations General Assembly, 1996;ICJ, Yugoslavia V. NATO countries, 1999 onwards. See Brownlie, op. cit.; R. Higgins, The Development of International Law through the Political Organs of the United Nations, Oxford, 1963, pp. 167-239; A. Randelzhofer, 'Article 2, para. 4', in Simma, The Charter of the United Nations: A Commentary, Oxford, 1994, p. 126 and M. Virally, 'Article 2, para 4', in Cot.ellet, La Charte des Nations Unies: commentaire article par article, Paris, 2nd edition, 1991, p. 115. Reference can be made to the US threat towards the junta in Haiti in 1992 before the UN Security Council adopted resolutions to that extent or to the NATO activation order in November 1998 following the failure of the Rambouillet talks. ICJ Reports 1986, p. 100, para. 190. See Articles 53 and 62 of the 1969 Eenna Convention on the Law of Treaties. Cf. N. Ronziti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity, Dordrecht, 1985.

Secession and the Ban on the Use of Foce: Some Reflections l0

l1

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Cf. N.S. Rodley (ed.), To Loose the Bonds of Wickedness: International Intervention in Defence of Human Rights, London, 1992. United Nations General Assembly Resolution 377 (A), 1950. Cf. N.J. Schrijver, 'The Changing Nature of State Sovereignty', in 70 BYIL 1999,2000, pp. 65-96. Art. 1.1 of Protocol I1 to the Geneva Conventions refers to "dissident armed forces or other organized groups, which under responsible command, exercise such control over a part of its territory so as to enable them to carry out sustained and concerted military operations and to implement this Protocol." Declaration on the Inadmissibility oflntervention in the Domestic Afairs of States and the Protection of their Independence and Sovereignty, UN General Assembly Resolution 213 1 (XX), 21 December 1965. UN General Assembly Resolution 3070 (XXVIII). See B.V.A. Roling, Volkenrecht en Vrede, 3" ed., Deventer, 1985, pp. 90-99; W.D. Venvey, "Decolonization and the Ius ad Bellum: A Case Study on the Impact of the United Nations General Assembly on International Law", in R.J. Akkerrnan et al., Declarations on Principles: A Questfor Universal Peace. Liber Roling, Leyden, 1977, pp. 121- 140. Ibid. See also the phrase in section 5 of the Declaration on Principles of International Law that "such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter". See also G. Arangio-Ruiz, The United Nations Declaration on Friendly Relations and the System of Sources of International Law, Alphen aan den Rijn, 1979. See the work of the ILA on Accountability of International Organisations. Its second report is included in ILA, Report of the sixty-ninth Conference, London, 2000, pp. 875-893. See also N.M. Blokker and H.G. Schemers (eds), Proliferation

Secession and International Law

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of International Organizations. Legal Issues, The Hague, 2001. See Security Council Resolution 143 (1960) and subsequent resolutions. Texts in K.C. Wellens, Resolutions and Statements of the United Nations Securiw Council (1946-1992). A Thematic Guide, Dordrecht, 1993, pp. 70-77. UN Security Council document SIRES11264 (1999), 15 September 1999, United Nations. For the basic outlines of such an assessment fi-amework see Advisory Council on International AffairslAdvisory Committee on Issues of Public International Law, Humanitarian Intervention, Netherlands Ministry of Foreign Affairs, The Hague, no. 13,2000.

PART I11 EVOLVING PRINCIPLES

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TERRITORIAL INTEGRITY AND SECESSION: THE DIALECTICS OF INTERNATIONAL ORDER W. E. Butler *

The principle of the sovereign equality of States would seem to enjoy unanimous recognition by the members of the international community as a principle of international law, although not as a norm jus cogens. Territorial integrity has been defined as the material expression of State sovereignty and jurisdiction (land, water, subsoil, airspace, population), and in some instances, State ownership of such material expression (aircraft, space vehicles, ships).' These are delimited by State frontiers andlor claims to exercise sovereign rights or extend jurisdiction. Accordingly, international law "tends strongly to protect the territorial integrity of sovereign state^".^ Territorial integrity is, in particular, protected by international law against the use or threat of force. The guarantees of territorial integrity have been laid down in a number of major documents of the twentieth century, among them: the League of Nations Covenant (Article 10);3 Stimson Note of 7 January 1932 (non-recognition prin~iple);~ 1933 Convention on Rights and Duties of state^;^ United Nations Charteq6 l948 Charter of the Organization of American States; 1963 Charter of the Organization ofAfrican Unity; 1975Final Act of the Helsinki Conference; and others. The origins of the principle suggest it was intended to (a) protect the status quo which emerged after the two world wars; (b) especially the status quo with regard to small States whose independence was recognised after the two world wars. Footnote texts at the end of each chapter

Secession and International Law

The scope of the principle is widely understood to encompass direct and indirect loss of control and possession of the material expression of sovereignty, including assistance by third States to rebels within a country in order to gain control and possession of part of its territory. It may extend to intelligence and surveillance activities offshore which actively (rather than passively) intrude across the boundaries of a State.7 The limitations on the principle of territorial integrity may include under certain circumstances: (a) the duty to provide democratic government; (b) the duty to protect human rights; (c) the duty to recognise the principle of self-determination;* (d) transboundary pollution; (e) accidental violations of territory or of air or sea spaces; (f) the duty to respect and comply with international law generally. Rather than speak of limitations, however, the better view is that the principle of territorial integrity is closely interrelated with other principles of international law, such as non-intervention in the internal or external affairs of other States, prohibition of the threat or use of force, peaceful settlement of disputes, respect for human rights, and self-determination of peoples. These principles are seen to be mutually reinforcing and complementary; they "supplement and support one another and also condition each other's application. International subjects must comply with all of them. Also, in the application of any one of the principles, all the others must simultaneously be borne in mind."g Secession, however, is not a limitation on the principle of territorial integrity; indeed, it is by reason of territorial integrity that the ccintemationalcommunity does not recognize the right of se~ession.''~~ Balancing territorial integrity with other principles of international law can give rise to awkward problems. In recent history the right

Territorial Integrity and Secession: The Dialectics of International...

of peoples to self-determination has posed many of these. The United Kingdom has found itself championing the right of selfdetermination in the FalklandMalvinas Islands and in Gibraltar, whereas Argentina and Spain respectively have in each instance asserted their prior territorial rights antedating British acquisition of the territories in justification of their positions that the territories should be returned to them. Or, in another example, peoples or groups who may be accorded a domestic right to self-determination do not necessarily have a right to secede if they are situated in a State whose government represents the whole of the people or the peoples resident within its territory on a basis of equality and without discrimination, and respects the principle of self-determination in its own internal arrangements. So held the Supreme Court of Canada in 1998, invoking the protection of international law of its territorial integrity against the secession of Quebec.l1 The dialectic of territorial integrity reflects its interaction with other principles of international law and the mutual influence they may exert on one another. For example, the principle of territorial integrity guarantees (a) absolute protection to the material expression of State sovereignty, except that (b) a people within an existing State may assert their right to self-determination and secede fiom the State together with a portion of the material expression of the State itself if there is or was a colonial heritage (part of its land, water, subsoil, and airspace and people), whereupon (c) the territory which seceded and the territory which remains will each renew their claim to territorial integrity, even though (d) within each of them yet another minority people may assert their right of secession against the territorial integrity, or the behaviour of the minority groups towards one another may engage international intervention on humanitarian or other grounds, or invite other actions that are a breach of the principle of territorial integrity.

Secession and International Law

The concept of "national" territory linked with the right of a people ("nationality"?) to the integrity of their "territory" and consequential right to determine their political status and their economic, social, and cultural development is perhaps becoming obsolete in the mobile world of the twenty-first century.12 The 1998 decision of the Canadian Supreme Court plainly suggests that within a State satisfactory arrangements might be made to recognise and safeguard the right of peoples to self-determination which would meet any international standards. This raises the issue of whether a people must, in their view, be disadvantaged nonetheless by those arrangements (and standards) or whether the simple wish to achieve their own independent statehood is sufficient to justify measures to be taken in the name of self-determination. The use of force may be justified where, for example, equal access to government or other elements of discrimination exist internally, and outside third States would be legally able to provide assistance to the leadership of the people concerned without transgressing the principle of non-intervention. Secession, however, would not be legally protected unless it transpired as a factual consequence of the use of force or other circumstances. Even the concept of "racial" identity and distinction may be in question as advances in DNA research suggest, at this early stage, that the common roots of mankind may trace back to a tiny group of individuals in human prehistory. The duties of States include refkaining in their international relations fiom the threat or use of force against the territorial integrity of any State, including to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial and frontier disputes, refiain fiom organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State,

Territorial Integrity and Secession: The Dialectics of International...

refrain fiom organizing, instigating, assisting, or participationg in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts; any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country ... is incompatible with the purposes and principles of the United Nations Charter; the territory of a State may not be the object of military occupation or acquisition resulting fiom the unlawful use of force in violation of the United Nations Charter.l 3 The proposition that all peoples have an inalienable right to the exercise of their sovereignty and integrity of their national territory14 may be seen to be extreme in light of the fact that traditional definitions of a "people" seem to be breaking down. Migration, inter-marriage, doubts about the genuineness of so-called racial and ethnic "distinctions", the increasing meaninglessness of "territory", and legitimate concerns about the viability of small units or entities are among the factors which undermine what is, in any event, a "fragile" category of classification. As the frontiers of outer space move on, who or what is a "people" may acquire galactic rather than planetary connotations. States may not use armed force to disrupt territorial integrity, nor commit aggression, which is the use of armed force, inter alia, against territorial integrity. l5 Attacks against territory for these purposes included invasion, bombardment, blockade, attacks against the land, sea, or air forces of another State wherever situated, and the use of the territory of one State as a springboard in various ways for actions against or within another State. Comparative approaches to international law appear not to have addressed the extent to which the principle of territorial integrity may have been incorporated or reflected in the foreign relations legislation of individual States.

Secession and International Law

The 1960 Criminal Code of the Ukrainian SSR, which lost force on 3 1August 200 1,contained the following provision: Article 62. Infringement Against Territorial Integrity of Ukraine Intentional actions committed for the purpose of a change of the territory or State boundary of Ukraine in violation of the procedure established by the Constitution of Ukraine, and likewise public calls or the dissemination of materials with calls to commit such actions,- shall be punished by deprivation of freedom for a term of up to five years. The same actions, if they were committed by a representative of power, or by prior arrangement by a group of persons, or accompanied by incitement of national or religious enmity, -shall be punished by deprivation of freedom for a term of from three to ten years. The actions provided for by paragraphs 1 and 2 of the present Article which entailed the perishing of people or other grave consequences,~shall be punished by deprivation of freedom for a term of from ten up to fifteen years.16 With effect from 1 September 2001, the Criminal Code of Ukraine, adopted 5 April 200 1, provides in this respect: Article 110. Infringement Against Territorial Integrity and Inviolability of Ukraine 1. Intentional actions committed for the purpose of a change of the boundaries of the territory or State boundary of Ukraine in violation of the procedure established by the Constitution of Ukraine, and also public calls or the dissemination of materials with calls to commit such actions,- shall be punished by limitation of freedom for a term of up to three years or by deprivation of freedom for the same term.

Territorial Integrity and Secession: The Dialectics of International...

2. The same actions, if they were committed by a person who is a representative of power, or a second time, or by prior conspiracy by a group of persons, or accompanied with the incitement of national or religious enmity,- shallbe punished by limitation of fieedom for a term of fi-omthree up to five years or by deprivation of fieedom for the same term. 3. The actions provided for by paragraphs one or two of the present Article which entailed the perishing of people or other grave consequences,- shall be punished by deprivation of fkeedom for a term of from seven up to twelve years.

Has Ukraine properly incorporated a generally recognised principle of international law into its domestic legal system by virtue of the above provisions? It would seem that under international law the "breaking away" of a "people" fiom their State is not illegal. But it could be illegal under the municipal law of individual States which in legislatingto give effect to internationallaw principles turn out, in particular factual situations, to be compelling compliancewith rules that do not exist under international law or which distort the substance of the international legal rule. The same could apply with respect to the law of treaties. l7 For international lawyers to fall back on outdatedjurisprudential concepts of monism and dualism is unsatisfactory. What needs to be revisited, in a comparative context, is the interaction between municipal and international legal systems.

The future of territorial integrity A thorough history of territorial integrity as a principle of international law has yet to be undertaken. While territorial integrity may have achieved a measure of international recogmtion with the formation of the League of Nations, its existence as a corollary of the principle of the sovereign equality of States can be traced back fur-

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ther. Following the First World War, however, territorial integrity clearly operated as a vehicle of change in that it promised protection for weak, young, newly-independent States against powerful countries. In this respect it constituted a forward-loolung benchmark in the development of international law. At the same time, however, it operated as a vehicle of the status quo. It protected the unchanged components of the international system, ideological and religious blocs, alliances, international groupings as they then existed, the more so since the international community looked negatively upon secession per se. Is territorial integrity doomed to obsolescence? Whatever its precise origins, the close relationship between the principle of sovereign equality of States and the principle of territorial integrity suggest that the last should be properly viewed as one of the "classical" or "traditional" principles grounded in what Professor G. I. Tunkin would have called the "old" international law. Although territorial integrity plainly is highly valued by the interntional community,the development of the so-called "new" principles of international law - the product of an international community which fmds consensus difficult to achieve regarding the substance of rules of law - nonetheless deliberately or incidentally subject territorial integrity as a principle to pressures of various kinds. The emergence of supra-national communities and trends towards globalization are one source of such pressure whose full impact remains to be felt. Should the principle of territorial integrity extend to entities other than sovereign States - to supranational communities, founded on treaties, that possess some attributes of statehood but fall well short of being accepted as States by the international community and international law. Or, in less formal context, all of the elements of globalization - technology, communications, transnational interests and con-

Territorial Integrity and Secession: The Dialectics of International...

cerns - erode the significance of territorial integrity insofar as they encourage us to reconceptualise the foundations of the international community, one in which the sovereign State itself may be obsolete. The enhanced role of the international community in traditional domestic affairs already has made the principle of territorial integrity subject to qualifications and limitations, as noted above. The growing role of subjects of international law other than States (international organisations, peoples, insurgents, and the like) marks, inevitably, the increasing irrelevance of the State as the primary subject of international law. Insofar as the new principles of international law confer what Cassese calls "community rights" upon a variety of subjects who have standing to demand compliance with those rights, territoryper se, and its integnty, are bound to eventually have a secondary, or at least diminished, place in the international legal system. Technology plays another role in compromising territorial integrity, or rather malung territorial boundaries meaningless for many purposes. Communications play a key role here, above all the increasingly sophisticated means of compromising territorial integrity without the use or threat of armed force through surveillance of sundry forrns. Territorial space as an element of security is no longer the assurance of security which it used to be. International law has yet to come to terms with technological advance of this nature. Finally, there is the relationship of territorial integrity to other principles of international law. At the moment, following decades of national liberation struggle, the international community seems to be more content with, even jealous of, the principle of territorial integrity than in the immediate past and, perhaps, gives evidence of an inclination to preserve the principle against unreasonable inroads fiom other principles. Human rights will, however, pose serious challenges, replacing self-determination in this respect.

Secession and International Law

The plausibility of territorial integrity When one reaches beyond a restatement of the principle of territorial integrity and its relationship to other principles of international law, there are other compelling considerations, some of a practical nature, which deserve attention. As the planet exhausts the supply of territorial units which aspire to statehood, change of trusteeship or other subordinate territorial status, and membership in the United Nations, the question of viable statehood inevitably arises. Some believe we press the principle of sovereign equality to its extreme as the number of island nations represented in the United Nations grows. There may therefore be a case for detaching statehood and territorial integrity; if territory becomes irrelevant to the identification of a "people" or "nation", representation can readily be assigned on other principles which join ethnicity or other forms of identity with direct participation in, say, the electoral process. If one pursues this reasoning, it may be asked whether membership or representation in international organisations need be confined to States. Ought there to be a relationship between territorial integrity and territorial viability? Is there a minimum population, territory, resource base, gross national product, or other criteria that should help determine eligibility for statehood and the right to invoke the principle of territorial integrity ? And if the international community chooses to recognise the "fact" of secession, are there criteria that should determine how much and what can be removed fi-om a State? Must the seceding territory or remaining territory meet standards of viability? Insofar as secession becomes a negotiated result, should the impairment of territorial integrity be subject to compensation by a seceding Statelpeople; should there be a division of wealth in the case of secession, and if so, should international legal principles apply? The dissolution of the former Soviet Union results in a distribu-

Territorial Integrity and Secession: The Dialectics of International...

tion of property (and obligations) amongst the former Republics, although this was not a case of secession. But the analogies are several, and so too may analogies with the b'nationalization" or "taking" of property be instructive in this context. The question of minimum standards for statehood raises the issue of minimum standards of territorial integrity: security, sustenance, viability, access to the sea or international commercial links, pipelines, and the like. It does not follow that the exercise of self-determinationor other political accommodations of demands for independence and autonomy will occur logically in a way that allows all legitimate demands of peoples or groups to be met in a comprehensive and just manner. Since international law does not recognise a right of secession, it presumably is indifferent to the number of occasions that secession can be achieved as a legal fact, or, to put it another way, how often territorial integrity can be impaired in this way. It would likewise follow that secession, most especially one which proves to be unsuccessful and is not a legal "fact" recognised by the international community may be characterized as an unlawful breach of territorial integrity; that is, of international law. In this context, subject to the legitimate application of other principles of international law, it would appear that secession is unavoidably a breach of territorial integrity. Finally, international law always portrays secession18 as a struggle by a people or group against an existing State. The initiative comes from those seeking autonomy or separation, and commonly and presumably is resisted by the State. The reverse position is certainly a logical possibility: a State prefers to encourage, or even require, the separation of a people or group and is prepared to offer reasonable material conditions to sustain such separation. Can expulsion (forced secession) of a people be regarded as a vio-

Secession and International Law

lation of temtorial integrity? If so, whose territory? Or to pursue another scenario,not entirely irrelevant to, for example, the Balkans, are there circumstances where international law, qua law, should impose secession and require a people or group to assume the mantle of statehood, say in pursuance of some larger good of the international community or adherence to a principle of universal application?

Please consult the Notes on the Authors C. L. Rozakis, "Territorial Integrity and Political Independence", in R. Bernhardt (ed.), Encyclopedia of Public International Law, IV (2000), pp. 8 12-818. A. Cassese, International Law (200 l), p. 113. "... the Members of the League undertake to respect and preserve as against external aggression the territorial integrity... of all Members of the League". The Government of the United States would not admit the legality of any de facto situation or recognize any treaty or agreements concluded between China and Japan which "may impair the territorial and administrative integrity of the Republic of China". Addressed the right of a State to defend its "integrity ..." affirmatively, including by force if necessary. Article 2(4): "... Members shall refrain in their international relations from the threat or use of force against the territorial integrity of ... any State ...". See: W. E. Butler, "The Pueblo Crisis: Some Critical Reflections" Proceedings of the American Society of In ternational Law 1969, pp. 7-13; reprinted in Congres sional Record, 29 April 1969, pp. E3478-E3480; J. Barnford, Body of Secrets (2001), pp. 240-282.

Territorial Integrity and Secession: The Dialectics of International...

See L. C. Buchheit, Secession (1978), who observes that selfdetermination and territorial integrity are conflicting principles. Cassese, International Law (200 l), p. 112. Cassese, International Law (200 l), p. 113. Cited in Cassese, International Law (200l), p. 113. Per the 1960 United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples. 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations. 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty. 1974 United Nations General Assembly Resolution on the Definition ofAggression (XXDC). As amended by Edict of 27 June l96 1;Edict No. 659 1- 10, 29 February 1984; Edict No. 7373-1 1, 14 April 1989; Law No. 1649-12, 11 October 1991; Law No. 2468-12, 17 June 1992; and Law No. 3805-12,24 December 1993. Vedomosti VerkhovnoiRady UkSSR (1961), no. 28, item 342; (1984), no. 11, item 203; (1989), no. 17, item 148; Vedomosti Verkhovnoi Rady Ukrainy (199 l), no. 5 1, item 720; (1992), 35, item 511; (1994), no. 13, item 68. There are many scenarios here. I had in mind the more than 1000 treaties concluded within the Russian Federation between the federal government and the 89 subjects of the Federation. The legal status of these treaties is controversial, some arguing that they fall under the law of treaties in international law and others believing that they are a special of "constitutional treaty" governed exclusively by Russian Law. But history knows, for example, numerous minorities treaties in which States seek to protect the rights of their ethnic kinsmen who happen to be

Secession and International Law

l*

situated within the boundaries of another State -Hungary and Romania, for example. Perhaps modern "spin" is required, the term "secession" being replaced by references to an "adjustment" of territory, population, and the like in a more community-minded spirit.

SOVEREIGNTY AND SECESSION: THEN AND NOW, HERE AND THERE. Rein Miillerson*

I begin by presenting some conclusions that will be developed in the narrative below. Secessionist claims are generally in increase and though there are some factors common to all, or most of them, they are not all happening for the same reasons in different countries and regions. The modalities and outcomes of various secessionist struggles also differ depending on the manifold local factors. Moreover, as secession is one of the means of resolving or aggravating inter-ethnic (sometimes also inter-religious)problems and conflicts, it has to be discussed in the context of other means of dealing with such problems and conflicts (e.g., devolution, federalisation, democratisation, globalisation etc.). 1. Secession or attempts of secession have become a topical issue in resolving (or more often aggravating) inter-ethnic (less often inter-religious) problems and conflicts. The question of sover eignty (both of existing States as well as ethnicities aspiring to secede) is always one of the central issues of such conflicts. Therefore the topics of secession and sovereigntyhave to be discussed in the overall context of resolution of inter-ethnicconflicts and problems in various societies. 2. Nation-States and the concept of State sovereignty emerged in the medieval Europe in a context that was very different fiom today's social and international environment. For the purposes of our discussion of issues of sovereignty and secession in the Footnote texts are at the end of each chapter

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contemporary world, some important characteristics of the traditional Westphalian international societys' have to be emphasised: (a) in the process of emergence of European nation States as sovereign States 'the empiricalhorse', paraphrasing Robert Jackson, was 'before the juridical cart', i.e. the legal notion of sovereignty was based on the de facto independence and authority; (b) naturally, there were no international human rights norms and even domestic rights and liberties were either completely absent or rather limited in scope and extended only to narrow categories of individuals; (c) what today are called ethnic cleansing and forcible assimilation of minorities (ethnic and sometimes religious as well) in the process of creation of nation States was accepted as a normal practice; (d) secessionist attempts were rare, they were severely suppressed and not only governments from which secession was sought but even secessionist movements themselves did not hold the view that they had any right to seek secession. It is necessary to point at these characteristics since today both States from which secession is sought and secessionistmovements operate in quite a different social and especially international setting. For example, what centuries ago was considered necessary and normal for the creation of nation-States may be an international crime today. 3. The process of decolonisation led to the proliferation of the concept of the nation State to territories where there were no endogenous conditions either for the emergence of such States at all or for their existence in the form or on the territory where they were created. Hence, the creation of so-called 'quasi-States' in which 'the juridical cart is before the empirical horse'. Their existence as sovereign States is due to a great extent to the fact that their sovereignty is recognised and supported by the international

Sovereignty and Secession: Then and Now, Here and There

community and international law. Some newly independent States in Europe (e.g., Bosnia and Herzegovina) seem to belong to the same category. Inter-ethnic conflicts and secessionist movements in these States, if not always determined, are heavily overshadowed by the specific characteristics of these societies. 4. Traditional international law through its principles of respect for territorial integrity and non-interference in internal affairs aimed to protect two elements (territory and authority) of Statehood out of three (population, territory and authority).l One of the elements of Statehood - population - was not taken care of by international law at all. 5. Today inter-ethicproblems and conflicts exist in the context where the norms concerning the element of statehood neglected by traditional international law - population - are becoming increasingly important as part of contemporary international law and focus of attention of the international community. The principle of respect for human rights, including minority rights, and that of self-determination of peoples reflect this drastic change. Traditional Westphalian principles of international law such as the respect for territorial integrity and non-interference in internal affairs have to coexist and often come into conflict with these post-Westphalian principles. 6. Robert Cooper has classified contemporary States as premodern, modem and post-modern. In all of these categories there are at least some States that face serious inter-ethnic problems or even secessionist movements. However, governments of different categories of States do not react in the same manner to such problems or movements. Post-modern States with serious interethnic problems (e.g., Canada with its Quebec question, Spain with its Catalan and the Basque problems, Great Britain with its devolution of Scotland and Wales and attempts to find a solution to the Northern Irish conundrum) often grant territorial autonomy

Secession and International Law

to linguistic or ethnic minorities or otherwise devolve authority to them. They are even ready to consider secession as an option though neither international law nor constitutions of these States provide for the right of secession. The decision of the Supreme Court of Canada Reference re Secession of Quebec of 1998 and the Good Friday Agreement on Northern Ireland reflect well the post-modern approaches to inter-ethnic problems, issues of secession and sovereignty. The war in the Russian Chechnya and Yugoslav succession wars may be considered as typical reactions of modern States to inter-ethnic conflicts and secessionist movements. In the recent past, India has reacted quite similarly to its secessionist movements and its today's approach to the Kashmir issue is also quite typical. Several African conflicts (e.g., in Sudan and in the Democratic Republic of Congo) may be considered as rather typical examples of outcomes of inter-ethnic problems in pre-modern States. 7. The right of peoples to self-determination (interpreted by all secessionist movements as the right to independence and sovereign statehood) and recent successful (successful often only in the sense that minorities have succeeded in breaking away) secessions have provided fuel for other secessionist movements. At the same time, governments have become more restricted in their responses to attempts of secession because of changes in international law and politics. Secessionist movements often provoke authorities calculating (usually correctly) that the latter start using excessive force (e.g., in Kosovo, Chechnya and today in Macedonia) not only against militants but against civilians as well. This, they hope, will bring them international support and recognition. In many situations one of the crucial questions is: how can the international community encourage respect for human rights, especially minority rights, without encouraging at the same time separatism?

Sovereignty and Secession: Then and Now, Here and There

8. Democracy and nationalism being in one-sense opposites, in a different sense reinforce each other and even feed on each other. Democratisation releases national sentiments,while the latter are exploited to limit democratisation. 9. There are two contrary trends on the issue of secession that are more prominent in post-modern States than in pre-modern of even modem States. On the one hand, the benefits (both economic and security) for minorities of remaining in a wider community and the cost of secession may be diminishing. This may encourage secession. On the other hand, the incentives for seelung secession fkom prosperous democratic States that respect minority rights are also diminishing. One may conclude that if it is relatively easy to secede, there is usually less incentive to do that (e.g., for Scotland to separate fkom the UK or for Quebec to secede ffom Canada) and if there may be practical reasons (economic, political or humanitarian) to seek independence, it is more difficult to achieve successful secession (e.g. for Chechnya to become independent ffom Russia). 10. It seems to be possible to summarise the above in the following way: The process of globalisation involves, inter alia, the spread of ideas of democracy and human rights, including the right of peoples to self-determination and minority rights that may indeed encourage secession fkom authoritarian or feeble democratising multiethnic or multi-religious States. Such regimes may respond in the timely manner and adequately (though they rarely do so) to rising secessionist demands by democratising and liberalising the society, which in multi-ethnic (religious) States often supposes granting wider language rights, autonomy or federalisation of the State. This process is not risk ffee. However, if granting autonomy or self-government may be considered indeed by some minority representatives as a step towards separation, denying it is not less

Secession and International Law

dangerous. In such cases the territorial integrity may be maintained (often only for a while), but democracy and human rights are sacrificed (usually for long). Moreover, even such a price for territorial integrity may not be, at the end if the day, sufficient. Will Kyrnlica is right that, since the claims to self-government and autonomy are here to stay, there is no choice but to try to accommodate them, because rejecting them in the name of common citizenship will simply promote alienation and secessionist movement^.^ It is in the genuine interest of multiethnic States to accept such risks and it is in the interest of the world community to encourage them of doing that, discouraging, at the same time, secession fiom democratisingmulticultural States. If the authorities respond with violence to secessionist claims, an ethnic conflict or civil war often results. The international community may intervene in such situations in various ways. It may be that in such circumstances, at the end of the day, both the international community and the authorities of the State fiom which secession is sought may have to accept secession as inevitable. 1. Pre-modern, modern and post-modern States: sovereignty and inter-ethnic problems Robert Cooper distinguishes three categories of States that exist side by side in the contemporary world: pre-modern, modern and post-modem state^.^ Similarly, James Rosenau believes that "one useful way of differentiating among the degrees to which States are able to manage their affairs is to classify them as pre-modern, modern, or post-modern entitie~."~ Georg Smensen distinguishes between post-colonial, Westphalian and post-modern state^.^ The latter category, to which Western European States belong, is characterised, in the words of Robert Cooper: by the breakdown of distinctions between domestic and foreign affairs; mutual

Sovereignty and Secession: Then and Now, Here and There

interference in (traditional) domestic affairs; not only formal rejection of the use of force for resolving disputes among themselves but the very impossibility of foreseeing realistic scenarios for such use of force; the growing irrelevance of borders; security based on transparency, openness and interdependence. Modem States are more centralised, they are more concerned with their territorial integrity and non-interference in what they believe to be their intemal affairs. Pre-modem States, in their efforts to create or maintain their Statehood, are trying to become more centralised. The basic security problem in pre-modem States is qualitatively different from security problems in Westphalian (modem) or post-modem States: for the latter the most serious security threats are internal, not e ~ t e m a l Prominent .~ examples of pre-modem States are Somalia, Afghanistan, and Liberia. Many others are struggling in this post-imperial chaos. Most States in the world still belong to the modem world with its balance of power politics, non-interference principle and other attributes of sovereignty. If we take, for example, issues of ethnic or religious minorities that are topical in many countries all over the world, we see that in pre-modem or even in many modem States minorities are often seen as constituting a threat to governmental policies of maintaining or increasing the existing level of centralisation. Many liberal-democraticpost-modem societies are not free from minority problems either. However, in these societies, especially in those belonging to the European post-modem space, minority issues are resolved quite differently fi-omsolutions sought in modem or pre-modern States. In some cases ethnic minorities in postmodem States may become completely independent. At the same time, because of the integration in Europe (deeper than in other parts of the world) complete independence is often more form than substance. This means that minorities in Europe have less incentive

Secession and International Law

to seek complete independence. There is even a kind of inverse proportionality between the need for independence and chances of achieving it (compare, e.g. situations in Scotland or Quebec, on the one hand, and Chechnya or Turkish Kurdistan, on the other). 2. Sovereignty in historical context In the contemporary world, we can see that authority once again has become more widely distributed between various entities than was the case in the traditional Westphalian system. This necessitates at least some reconsideration of the concept of sovereignty.

As Neil MacCormick observes: "It is not inevitable, but it is possible, that what we are now embarked on in Western Europe [and today in Central and Eastern Europe as well] is a thoroughgoing transcendence of the sovereign State as the essential model for legal security and political order. If it is possible to discern in Europe a new order beyond the sovereign State, then the whole question of the place and meaning of nationhood in our political ideas will genuinely be up for revision. Premature as it would be to announce a new world order on the foundation of an experiment in one corner of the continent, it just might be that if the sovereign State goes out of fashion among the polities that invented it, others will be ready to reconsider it too." Certainly, something is changing in areas related to statehood and sovereignty. As Jiirgen Habermas writes, "the State no longer forms the political apex in which the functions relevant to the whole of society could be united." The deepening and widening of European integration, growing concern for human rights and threats to international stability that have roots in massive human

Sovereignty and Secession: Then and Now, Here and There

right violations, devolution processes in quite a few countries, and finally the general tendencies towards globalisation and fragmentation are all affecting various aspects of sovereignty and statehood. Not only globalisation, but also fragmentation, is undermining Westphalian international s ~ c i e t y In . ~ some cases the tendency towards fragmentation has led to the emergence of new States, and therefore, seems to be within the frame of essentially interState mindset. However, the proliferation of States, after some critical mass or number, may start to undermine the very system it seems to perpetuate. The prospect of having thousands of sovereign States all with one vote in the United Nations is a nightmare scenario for existing States (and probably not only for States). The preferable alternative to outright independence may be devolution, of which there are some significant examples in Western European States, as well as in some other parts of the world. It is interesting and important to note that devolution, as the European experience shows, is less painful if it is paralleled with processes of integration. This may be one of the manifestations of the interdependency between processes of globalisation and fragmentation. And it all has a tendency to make international society (or parts of it) less State-centric and more multi-layered. That is not to say that the State has outlived its usefulness. It does not even mean that sovereignty has become meaningless. However, as the State and sovereignty are historical categories they change and sometimes they change considerably. Walter Opello and Stephen Rosow have aptly emphasised and shown in their book "the historical specificity of sovereignty."1° Sovereignty does not mean the same thing at different times

Secession and International Law

and in different places. Similarly, political and legal manifestations of sovereignty, though necessarily entwined, may sometimes differ considerably. Benedict Kingsbury, speaking of sovereignty, writes that "Oppenheim, like other legal positivists, separates law fiom nonlaw so that the inequalities become social rather than legal facts." l 1 However, be that as it may in other areas of international law and politics, in the area of State sovereignty such separation, to an extent, seems to be inevitable. One of the reasons (or maybe even the main reason) for such separation consists in the fact that the legal concept of sovereignty that emerged in circumstances when it more or less closely reflected, and at the same time, expressed, factual (political, military, economic) reality, continues to exist in a factual environment that is quite different from the era of the emergence of the concept of sovereignty and nation States in Europe. Though in the aftermath of the Westphalian peace of 1648 there were not yet any legal principles that could be called the principle of sovereign equality of States, European powers were de facto more or less equal and the balance of power policy served to smooth out inequalities that were emerging fiom time to time. With the proliferation of the Westphalian system to other continents and the emergence of the multitude of small and medium-sized States (especially as a result of the dissolution of the Ottoman and AustroHungarian empires and later the coming to independence of socalled 'salt-water ' colonies of European empires) and the spread of international law to what were earlier considered as 'noncivilised' nations, the notions of sovereignty and sovereign equality, while acquiring the quality of a legal principle, increasingly ceased to reflect the underlying political, economic and military reality.

Sovereignty and Secession: Then and Now, Here and There

The legal principle of sovereign equality of States emerged and started its development at the time of the expansion of international society and international law. The States whose behaviour international law had to govern became factually more and more unequal. And the principle has not made unequal States more equal (often quite on the contrary, it has contributed to the increase of inequality), but it has served, and continues to serve, as an important ordering principle of international society. Unequal States have the right to exist. As the United Nations General Assembly declared, neither small size, nor remote geographical location, nor limited resources constitute valid objections to sovereign statehood.l2 Sovereignty, historically, is a legal reflection of political reality. Georg Ssrensen is right that 'in modem "Westphalian" States, sovereignty is more than a formal, juridical label. It is substantial in the sense that the State possesses a capacity for self-government, an economic resource base, and an ability to defend itself militarily'.13 However, over time and especially after the Second World War the political basis of sovereignty has become somewhat detached from its legal reflection. As Robert Jackson, writing of some Third World States, argues, "the juridical cart is now before the empirical horse." l4 His study discloses that many Third World States do not consist of self-standing entities with domestic foundations but of territorial jurisdictions supported from above by international law and material aid. They "often appear to be juridical more than empirical entities." l5 It is not only in the case of some Third World States (called by Jackson 'quasi-States') that it is difficult to see where in their sovereignty is the cart and where is the horse. Even in the case of internally quite stable and highly developed States (that in the sense used by Jackson can be called 'real' States) the legal concept of sovereignty plays an important role in the very existence of these

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States as States. Without it there would be a law of the jungle where only strongest would survive. The concept of sovereignty and especially its emanation-the international law principle of sovereign equality of States-has played a civilising role in international society, being instrumental for the emergence and survival of healthy but not physically big and strong States. Finland, Poland, Estonia, Latvia, Lithuania and a host of other States have all benefited, and continue to benefit, from the existence of the concept of sovereignty and the principle of sovereign equality in international law. 3. Elements of statehood and principles of international law The State in Westphalian international law is usually characterised through its component parts or elements as they were initially defined in the Montevideo Convention on Rights and Duties of States of 26 December 1933: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.16 It seems that at least some of the fundamental principles of international law emphasise (or reflect) one or more of these elements of statehood. Therefore, it seems not to be accidental that the Montevideo Convention, after establishing the criteria for statehood and dealing in some detail with issues of recognition of States (issues that are related to, or even conditioning, the capacity of the State to enter into relations with other States), refers to certain fundamental rights of States. As a truly Westphalian piece of international law, the Montevideo Convention contains only three principles, each of which emphasises the strictly inter-State nature of international society: noninterference in internal affairs of States, conservation of peace, and pacific methods of settlement of differences. Article 11 clarifies that "the contracting States definitely establish as the rule of their

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conduct the precise obligation not to recognise territorial acquisitions or special advantages which have been obtained by force" and that "the territory of a State is inviolable." The sanctity of a State's territory, as an element of statehood, is expressed, first of all, in the principle of territorial integrity of the State and in the prohibition on the use of force to undermine this integrity. As Article 2(4) of the UN Charter prohibits the use of force against the territorial integrity of States and against their political independence, it is possible to conclude that this principle protects at the same time both a State's territory and its authority, i.e. government, as elements of statehood. Similarly, the principle of non-interference in internal affairs is aimed, first of all, at the protection of the independence of governments from outside interference. James Crawford has aptly observed that there is 'a strong case for regarding government as the most important single criterion of statehood, since all the others depend upon it. 'l7 Crawford is right, at least in the sense that there are other entities that may have their own territory and population. Only a government that is constitutionally independent from other governments makes an entity a State. Although independence of governments in international law has traditionally been understood as their independence from other governments, i.e., fiom outside interference, their non-subordination to any outside authority, historically governments were most of the time also independent from their own population. This dual independence of governments-fkom other governments and fkom their own population-made the government indeed the most important element of statehood. However, things have changed quite considerably over the years. Governments have somewhat lost both aspects (internal and external) of their independence and these two sides of the loss of

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governmental independence are interdependent both de facto and de jure. Governments in an increasing number of States are responsible before their population, and other governments and the international community at large are talung more and more of an interest in the relationship between the government and population. And international human rights law supports this interest. The principle of self-determination has changed its initially anti-colonial and pro-independence core, and has become a principle that instead of emphasising independence underlines the importance of a specific kind of dependence-the dependence of governments on will of the population. This is all new and this is all terribly non-Westphalian.Although the independent government remains an important elements of statehood, the degree of this independence has diminished both internally and externally and both de facto and de jure. Contemporary international law has started to present certain requirements to governments concerning the treatment of their population. It is no longer sufficient for the legitimacy of a government that it exercises effective control over the territory and population. Although it may be too early to say that international law requires that all governments are to be democratically elected and accountable to the electorate,18 it is certainly true that all governments, notwithstanding whether they have ratified any human rights treaties or not, are under the obligation to respect and protect at least the core of basic human rights. It is interesting to note that the principle of non-use of force, prohibiting the use of military force against the territorial integrity and political independence of the State, singling out these elements of statehood, does not mention population among the protected elements. The concern for the State's population is expressed in the principles of self-determination of peoples and respect for

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human rights and fundamental fi-eedoms and this concern is of relatively recent origin. In traditional international law population was a passive component of statehood. Like territory, it was considered to be only an object of governmental authority, only less valuable. A popular Russian wartime song expressed well the high value of State temtory and expandability of a State's population: "we surrender no inch of our temtory whatever the price." The population paid the price, naturally. Similarly, when India announced at the end of February 2000 a 28,2 per cent increase in military spending, Mr Yashwant Slnha said in presenting the annual budget to Parliament: "We shall not shrink from making any sacrifice to guard and protect every inch of our beloved motherland." l9 From the State-centric viewpoint, territory - a nonrenewable resource - had much higher value than population - a renewable or expandable resource. Hence, we may conclude that fundamental principles of international law - sovereign equality of States, territorial integrity of States, non-use of force and non-interference in internal affairs, self-determination of peoples and respect for human rights-are reflections of the main characteristics of the State in international society. Some of these fundamental principles of international law have found their concretisation and development in various branches of international law. International protections of human rights, legal regulation of use of force, peaceful settlement of international disputes are examples of such branches. 4. Transformation of principlesmanifestation of structural change International law, as the law of international society, responds to the needs of States and other actors of international society, and is constantly changing. The fundamental principles of international law reflect a relatively stable structure of international society and 139

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the main characteristics of the State and therefore these principles also are rather stable.This, of course, does not mean that they are immutable. Their content may undergo some evolution even if international society remains basically the same. However, change of its fundamental principles is not only much slower than the changes constantly taking place in other areas of international law (e.g., space law, environmental law, human rights law), but radical changes only occur when international society undergoes qualitative transformations. For example, World War I and World War 11, as well as the process of decolonisation, had a considerable impact on the evolution of fundamental principles of international law, which reflected changes in international society. Moreover, the relative importance of various principles may change. The end of the Cold War seems to manifest one of such transformations. Systemic changes currently taking place in international society are starting to affect the relatively invariable core of international law-its fundamental principles. The change of the polarity of international society, processes of globalisation and fiagrnentation, the increasing role of 'manufactured uncertainties' in social life have thrown some fundamental principles of international law into disarray. The Declaration of Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations.2o(The Friendly Relations Declaration) provides that 'in their interpretation and application the above principles are interrelated and each principle should be construed in the context of the other principles'. The problem, however, is that these principles do not always work together harmoniously. As we have just discussed, it is not only because it is in the nature of principles as such to point in different directions. Fundamental principles of international law clash since they reflect the characteristics, values and interests of different international

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societies that have merged into one where the old coexists with the possible future. International law, like domestic legal systems, has a contradictory relationship to power: purporting to constrain the use of power, international law has to rely upon it. The Cold War international system, with its particular bipolar balance of power, had a specific effect on international law. Its Westphalian principles (sovereign equality of States, non-use of force and non-interference in internal affairs) to an extent contributed to the stability of international society. At the same time, these principles were often looked on as ends and not as instruments in the service of vital social values or interests since these values and interests were understood differently across the bipolar divide. For example, most international lawyers seemed in interpreting the prohibition on the use of force, not to make any distinction between various purposes of the use of force with the exception of the much-abused right to self-defence (though compare the different reactions to the two 1970s interventions: India in Eastern Pakistan and Turkey in Cyprus). Two postWestphalian principles-self-determination of peoples and respect for human rights-which developed within Cold War international society, had to wait until the end of the Cold War in order to realise their potential of undermining Westphalian international society. The principle of self-determination of peoples, having developed, as a legally binding principle, in the context of and having played a role in the dissolution of colonial empires, started to be used as a reference point for undermining the territorial integrity of multiethnic States. The prophesy of Woodrow Wilson's Secretary of State Lansing seems to be fulfilling itself. In December 1918 he warned: "The more I think about the President's declaration as to the right of 'self-determination', the more convinced I am of the danger of putting such ideas into the minds of certain races. It is bound

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to be the basis of impossible demands on the Peace Congress and create trouble in many lands.. .. The phrase is simply loaded with dynamite. It will raise hopes that can never be realised. It will, I fear, cost thousands of lives." 21 Some of the massive human rights violations, often related to inter-ethnic or separatist conflicts, that earlier had remained without even an attempt at an effective response, are to be dealt with in disregard of Westphalian principles especially that of noninterference in internal affairs and even non-use of force. As Vaughan Lowe has written: "The international community has at long last reached the point where it has the confidence to decide that there are circumstances where the protection of life is more important than the protection of abstract values such as sovereign equality and independence." 22 It seems that the future of international law will depend on the outcome of the contest between Westphalian and post-Westphalian principles, between Westphalian and post-Westphalian States where pre-Westphalian societies (or maybe societies that have nothing at all to do with Westphalianism) may sometimes become the arenas of this power struggle. While a head-on collision may destroy even the weak constraints international law has exercised on power, enlightened leadership may make international law a more effective instrument for the enhancement of values such as human dignity, liberty and prosperity.

5. Some global transformations affecting secession In the post-Cold War world, inter-ethnic (religious) hatred and animosity related to massive human rights violations have emerged as the most common cause of violent conflicts where the distinction between domestic and international has become extremely blurred. There are two whys here. Why have these conflicts become more

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prominent now, after the end of the Cold War? Why has the outside interference (not necessarily always military but diplomatic, the use of economic sanctions etc.) in these conflicts increased? The violent conflicts that have regularly erupted in different parts of the world in the 1990s are, to an extent but only to an extent, similar to certain conflicts that took place during the Cold War. However, even more importantly, they are repeating, in some important aspects, conflicts that were endemic in Western Europe hundreds of years ago. Then and now many a conflict has nationalism, State building and also democratisation among their causes. Writing about State-building in Western Europe, Adam Watson observes that "the self-assertion of the middle class in Europe took two forms: the demand for participation in government, and nati~nalism"~~ and that "three related trends, towards nationalism, democracy and popular interest in external affairs, exercised an increasing influence on the European States system.. .. The ideas of nationalism and democracy were related." 24 We see something like that in some parts of today's world. However, there are also huge differences between nation building in Western Europe and current developments. In the era of formation of nation States in Western Europe the use of violence either for the purpose of unifying separate political entities (that is how Bismarck's Prussia unified the German principalities) or assimilating those who spoke different languages or professed other religions (that is how France or Italy became nation-States) was not only lawful, it was completely normal. There were fewer attempts to break away from existing States and all such attempts were severely suppressed without any outrage abroad. This was also normal and this may also have been one of the reasons why there were less wars of secession. Neither internal nor international factors supported popular participation or condoned separatism.

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Most so-called nation States came into existence and consolidated their societies in the process of what now would be called 'ethnic cleansing'. Of course, ethnic cleansing was not, and is not even today, necessarily carried out through the use of genocidal practices like in Bosnia, Krajina or Kosovo. Forced assimilation, imposition of a single State language or religion were the methods widely used in Western Europe. Internal consolidation, struggle against fragmentation, and at the same time, external separation, differentiation from other States and first of all liberation from the imperial or papal authority were the conditions necessary for the emergence of nation States in Europe. Charles Tilly found it odd "to consider ... political fragmentation as one of the conditions contributing to fmal dominance of national States. Did not the Statemakers struggle continually against fragmentation?" 25 Tilly also observes that: "Almost all European governments eventually took steps that homogenised their populations: the adoption of State religions, exclusion of minorities like the Moors and the Jews, institution of a national language, eventually the organisation of mass public instruction. The tolerance of States of South-Eastern Europe for linguistic, cultural, and religious diversity stood in sharp contrast to the intolerance of their North-Westem brethren. And surely stood in the way of effective State making. The failure to homogenise increased the likelihood that a State existing at a given point in time would fragment into its cultural subdivisions at some time in the future."26 Leo Kuper in 1969 wrote that: "

... Cultural diversity or pluralism automatically imposes the

strictest necessity for domination by one of the cultural sections. It excludes the possibility of consensus, or of institutional integra-

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tion, or structural balance between the different sections, and necessitates nondemocratic regulation of group relations." 27 It is possible to agree with the statements of Kuper and Tilly. Historically, homogenisation (almost never complete of course) was achieved through practices that nowadays may be defined as ethnic or religious cleansing. Homogenisation also facilitated State building and progress towards democracy and human rights. It is easier to carry out democratic reforms in more homogenous society than in a less homogenous one. But does this mean that heterogeneous States in Europe have to pursue policies of assimilation or exclusion? It seems to me that an answer to this question depends on whether we consider plural societies in isolation (both temporal and spatial) or in the concrete context (both temporal and spatial). Taken in isolation, some States in Eastern and Central Europe may really have to go through the same processes of homogenisation as their more advanced Western neighbours have gone through. However, they are not, they do not want to be, and they should not be taken in isolation. The search for solutions to minority problems has also to be put into a wider (international or regional) context. In Europe, this is the European context. Western Europe went through this process of homogenisation, through its 'ethnic cleansing' at the time when such practices were considered normal. There were no international human rights standards and even those who rebelled against oppression usually did not fight for the freedom for everybody but for their own freedom to oppress others.28 During the Cold War years, violence within national frontiers, including when used to suppress strivings of ethnic or religious minorities to maintain their identity or become independent, was no longer completely normal or acceptable. Nevertheless, attempts

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of the Biafrans to break away from Nigeria; Nagas or Mizos to become independent from India; Kurds from Turkey or East Timoreans from Indonesia were suppressed without any mercy. When the Chechens in the 1990s fought for their independence f?om Russia and after the bloody war of 1994-95 even de facto achieved it for certain period, only a few people watching on CNN the Russian bombardment of Grozny in 1994-1995 or 1999-2000 knew that the Chechens in the late 1930s had already tried the same thing. Their first attempt in this century to break away from Russia was not only severely suppressed but it did not receive any attention abroad.29 India used ruthlessly to suppress separatist insurgenciesby Naga, Mizo and Manipuri ethnic groups. Only when rebel leaders became convinced after decades (in the case of Nagaland nearly three decades) of bloodshed that even if they survived the bush war they would not achieve sovereignty did the authorities start to negotiate with them conditions of their autonomy.30One can find many more similar examples in different parts of the world at different times. These bloody conflicts were seldom in the limelight of the world media and the State-centric international system considered them as nuisance. Hence, secessionist movements are not a new phenomenon. However, now they are operating in a different international context that seems if not to encourage separatism (internationallaw as well as politicians emphasise the sanctity of existing State boundaries3') then at least to nurture the hopes of separatists. First, the collapse of the three socialist authoritarian multi-ethnic States (the USSR, Czechoslovakia, the Socialist Federal Republic of Yugoslavia), independence for Eritrea from Ethiopia, and the independence of East Timor as a result of recent dramatic events in Indonesia are raising the hopes of many other ethnic or religious minorities for independence. Secondly, because of democratisation in the world,

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the spread of human rights ideas and practices and the development of mass media, it has become more difficult for the authorities to suppress separatist movements without any reaction from outside. Today ethnic cleansing or homogenisation, even in its 'milder' forms, is no longer acceptable means of State building. Its extreme forms have become crimes against humanity and international law provides for individual criminal responsibility of those who commit such acts. Writing about India Shekhar Gupta observes: "Times have changed. With the development of national and international media, modem communications and the worldwide focus on human rights, it is increasingly difficult to execute the first repressive phase of the strategy without inviting international opprobrium. Satellite TV spreads images of incidents, such as the destruction of the Ayodhya shnne, the siege of Hazratbal mosque in Kashmir or human rights abuses-it is impossible for India to hide a part of its territory or its people from the world." 32 Times have changed not only in India.33One only needs to compare current ethnic conflicts, for example, in the Caucasus or in the Balkans with the USSR's suppression of the Chechen rebellion of the late 1930s or the Soviet ethnic cleansings of the Balkars, Chechens, Ingushes, Karachais and Crimean Tatars in 1944.34 In 1994-1995 the international comunity, represented by the world and Russian mass media, the Council of Europe, OSCE and many individual governments and non-governmental organisations, together with democratic forces in Russia made it impossible for the Russian military and ultra-nationalists to use force on a scale necessary to bring the Chechens into submission. And of course, the Chechens themselves had become more confident after they had seen the Estonians, Latvians, Lithuanians and many other former Soviet republics gaining or regaining their independence. And Russia itself had considerably changed. Most

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Russians were then against the war in Chechnya, and most importantly, this had started to matter. However, recent events in Russia have shown that the democratic process in that country had been rather fragile. The 19992000 Russian military offensive has gone ahead and continued notwithstanding international attention and condemnation(even threats of sanctions). In this conflict both sides have been ready to violate humanitarian law on a massive scale in order to achieve their aims. The Chechen conflict shows how States which lack democratic traditions easily slip into authoritarian methods while responding to terrorism of separatists. The Chechen wars have been severe setbacks for Russia's fledgling democracy. Notwithstanding these setbacks, the end of the Cold War has accelerated the phenomenon of democratisation as part of the more general process of globalisation in the world. Not only Eastern and Central Europe but also Latin America and parts of Afnca and Asia have felt the advance of democracy and human rights. In this context, and as a comparison that highlights not so much the similarities as the differences, it is important to note that modem nation-States emerged in Western Europe as absolutist States. David Held observes that "...absolutism helped set in motion a process of State-making which began to reduce the social, economic and cultural variation within States and expand the variation among them." 35 Contemporary attempts of State-making are happening in the world where democratisation is not only a fashionable idea but is the practical process in various societies all over the world. Absolutist monarchies (or the constitutional one in England) did not face the huge task of balancing three values that many contemporary democratising States face - namely, democratisation, multiculturalism and stability. In quite a few societies that have recently

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embarked upon the process of democratisation simmering tensions between various ethnic or religious groups have erupted into violent conflicts. Democratisation, as events in different parts of the world have revealed, may seriously destabilise multi-ethnic or multi-religious societies. Robert Cooper and Mats Berdal emphasise that: "Authoritarianism does, however, have the merit of dampening ethnic issues; if ethnic problems do occur, they can easily be suppressed. Democracy, on the other hand, requires the identification of a political community to which everyone belongs; voluntary acceptance of majority decisions implies a strong sense of a common destiny. If people are allowed to choose who governs them, many feel that they should also choose who is to be governed. Thus, it is not an accident that that the sudden overthrow of authoritarian regimes and the arrival of democracy has been accompanied by ethnic tension and secessionist movement^."^^ Democratisation of authoritarian States often releases suppressed nationalistic or religious feelings that, suddenly springing up, have a tendency to become extreme and fundamentalist. For example, Seth Mydans writes of the situation in the Moluccas (or as they were earlier known, the Spice Islands) in Indonesia: "This is Indonesia's nightmare: Freed from the controlling grip of its former dictator, society descends into chaos as religious hatred boils to the surface, beyond the reach of the central government or security forces. ... Most people interviewed in Ambon are convinced that someone-political schemers, disaffected soldiers, religious extremists, corrupt business interests or perhaps all of these-has provoked their war and determined to keep it alive." 37 This is fi-aughtwith violent conflicts and, though it may sound oxymoronic, it may lead to the globalisation of fragmentation.

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Globalisation includes the spread of democracy and human rights that, in turn, encourage the fragmentation of multiethnic (religious) illiberal States. As David Held writes, ". ..globalisation pulls and pushes societies in opposing directions: it fragments as it integrates, engenders cooperation as well as conflict, and universalises while it particularises. Thus the trajectory of global change is largely indeterminate and uncertain." 38 Democracy and nationalism being in one sense opposites, in a different sense reinforce each other and even feed on each other. Adrian Hastings writes that: "It is one of the threads greatly complicating a history of nationalism and the nation in the modem era-though one rather little considered by its analysts-that while the original thrust into nationalism was an anti-dynastic and democratic one, nevertheless, once the nationalist bandwagon was rolling, it could largely drop its democratic shaping and refashion itself in places behind a 'national' dynasty or populist movement. This could indeed be almost required where, having defined itself in ethnic terms, a nationalism had effectively to exclude large sections of the population of an area from h11 citizenship." 39 Such things are happening now in many democratising illiberal societies. Democratisation releases nationalistic sentiments, while the latter are exploited to limit democratisation. At the end of the day, excluded fiom the democratic process are not only all those with the 'wrong' ethnicity or the 'wrong' religion; the very democracy becomes a cover for nationalistic authoritarianism. Milosevic's Serbia is the prime example of such a development while Tudjman's Croatia was not very far behind. Illiberal undemocratic regimes in multiethnic societies engender illiberal nationalistic separatist movements. Will Kymlica's observation that, "nationalist movements ... tend to take their cue

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from the political culture around them." 40isabsolutely correct. There are probably not even any exceptions to prove (to test) the rule. Every Milosevic creates his own KLA (Kosovo Liberation Army). It is this combination of ruthlessness of separatists who are willing and ready to use terrorism and sacrifice their own people, on the one hand, and indiscriminate, often mhumane, responses of the authorities, on the other hand, that makes illiberal nondemocratic multiethnic societies so dangerously explosive. In the contemporary globalising and democratising world where human rights and mass media play an important role, separatist movements hope that if they push hard enough they may have a chance to be rewarded by the world community. If the authorities start to use excessive force (and illiberal non-democratic or democratising governments are not used to resolving such or any social conflicts through nonviolent means) the world may start to assist the separatists. The Albanians in Kosovo, for example, tried under Ibrahim Rugova peaceful means longer than many other minorities in illiberal States. However, as Tim Judah writes, "they were not to be rewarded-in fact, they felt themselves penalised for eschewing violence." 41 The KLA that gained the upper hand amongst Kosovo Albanians thanks to Serb repressions started their ruthless campaign that gave a further push to Serb violence that became even more indiscriminate and bloody. In that respect, the Kosovo crisis raises a fundamental question of international law and politics without, however, giving any defmitive answers. Is it possible to protect an ethnic minority led by a separatist movement against oppression by the central authorities without, at the same time, supporting and encouraging, at least de facto if not de jure, their striving for independence? The Kosovo case is indicative of this dilemma. Notwithstanding all the references to the territorial integrity of the Federal Republic of

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Yugoslavia in various international documents, including the Security Council Resolution 1244 (1999) of 10 June 199942,it is hard to believe that after the atrocities committed by the Serb military and para-military in Kosovo the Kosovars would agree to live under Belgrade's authority. And in that respect it does not really matter much whether Serbia will become democratic or will remain under Milosevic or someone like him. A democratic Serbia will have to allow the Kosovars, even if most reluctantly, to secede. In a different scenario, the world community should not let an authoritarian Serbia regain control over its fomer province. As a Serbian democrat had put it to Timothy Garton Ash, "Serbia can have Kosovo or it can have democracy." 43 At the same time, it would be irresponsible for the world community to encourage ethnic separation. Worldwide apartheid is not only despicable; it is simply impossible without worldwide ethnic cleansing. Western Europe, as well as some countries in other parts of the world, have shown that it is possible, though it is a difficult art to be learnt, to combine and balance three important and necessary values-democracy, multi-culturalism and stability. Eastern and Central Europe at the beginning of the twenty-first century need not and probably even cannot repeat the process experienced by Western Europe hundreds of years ago. Here Western European experience (both positive and negative as well) and assistance has to help to promote democracy and stability in societies that are and will remain multicultural. It seems to be possible to summarise the above in the following way. The process of globalisation involves, inter alia, the spread of ideas of democracy and human rights, including the right of peoples to self-determination and minority rights that may encourage secession from authoritarian multi-ethnic or multireligious States. Such regimes may respond in a timely manner and adequately to the rising secessionist demands by democratising

Sovereignty and Secession: Then and Now, Here and There

the society that in multiethnic (religious) societies often supposes devolution of authority to minorities, autonomisation or federalisation of the State. This process is not risk fiee. However, if granting autonomy or self-government may really be a step towards separation, denying it is not less dangerous. In such cases territorial integrity is maintained but democracy and human rights are sacrificed. Moreover, even such a price for territorial integrity, at the end of the day, may not be sufficient. Will Kymlika is right that, since claims to self-government and autonomy are here to stay, there is no choice but to try to accommodate them, because rejecting them in the name of common citizenship will simply promote alienation and secessionist movements.44It is in the genuine interest of multiethnic States to accept such risks and it is in the interest of the world community to encourage them in doing that, discouraging, at the same time, secession fiom democratising States. If the authorities respond with violence, an ethnic conflict or civil war results. Such conflicts are no longer internal affairs of States. The international community may intervene in them in various forms. In such cases, at the end of the day, both the international community and the authorities of the State fiom which secession is sought may have to accept secession as inevitable. In 1999, after almost a quarter of a century of occupation, the authorities in Indonesia were forced, under international and domestic pressure, to agree on a referendum on autonomy or independence in East Timor, in which more than 78 percent of the population voted for independen~e.~~ The pro-Indonesian militia, abetted and encouraged by the Indonesian military, unleashed a wave of violence against civilians. As a result, the Security Council, expressing its concern at reports indicating that systematic, widespread and flagrant violations of international humanitarian law and human rights law had been committed in East Timor, and acting under Chapter VII, authorised the establishment of a multinational

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force to restore peace and security in East Timor, to protect and support the UN Mission in East Timor (UNAMET), to facilitate humanitarian assistance. The Council also authorised the multinational force 'to take all necessary measures to fulfil its mandate.'46 The East Timor case is different Erom many other cases in the sense that it was not only about self-determination of peoples or human rights. It was also and foremost about putting an end to an illegal occupation. Indonesia had invaded East Timor at a time when the use of force had become illegal and the UN had confmed the illegality of the invasion. This specific situation may explain why Indonesia, though reluctantly, consented to have a referendum, and later, when the violence got out of hand, accepted the UN authorised multinational force. This certainly explains why the UN, at the end of the day, acted in accordance with its principles and forced Indonesia to relinquish the territory that had never been a lawful part of Indonesia. In that sense East Timor, at least fiom the legal point of view, cannot serve as a precedent for many other separatist aspirations. In most cases, as Graham Fuller has written: "The key will be good governance. If the States cannot provide good governance, their minorities may expend blood or treasure to gain maximum autonomy or independence. The challenge for the world then becomes: How hard will the community of nations fight to preserve borders and territorial sovereignty of States that are brutal, incompetent or failing?" 47 6. Possible means of resolving conflicts in multiethnic societies: ethnic cleansing, assimilation, secession or consociational democracy. Generally spealung, there are only three logical solutions to minority issues in a plural society:

Sovereignty and Secession: Then and Now, Here and There

a) to eliminate or substantially reduce the plural character of the society through assimilation or ethnic cleansing; b) a consociational solution that recognises and accepts plurality; c) separation into two or more separate States.48 The first solution is today practically impossible to achieve, especially in the short run and using democratic and human rights friendly means. Walker Connor has suggested that there are no examples of recognised national groups in this century having voluntarily assimilated to another culture.49The last option - separation, even if resolving some of the minority problems, practically always creates new ones. Moreover, ethnically homogeneous States can be created in most cases only through ethnic cleansing. Therefore, one has to agree with the former High Representative in Bosnia, Car1 Bildt who writes of the situation in the Balkans that challenges stemming from inter-ethnic (religious) conflicts "cannot be met by setting up new national States, which tend sooner or later towards the destructive, illiberal and Inhumane ideal of ethnic purity. In the longer term, the only way forward is to extend to the Balkans the frameworks and institutions of European integrati~n."~O Though it is not possible to completely exclude secessions from existing States, the best solution for ethnically plural societies is some combination of elements of consociational democracy e.g., governments including political elites of all the main ethnic groups, mutual veto on vital minority issues, proportionality as the principal standard of political representation, high degree of autonomy for each segment to run its own affairss1. These elements need not all be present. Their choice depends on concrete circumstances and is always political. However, without some form of power sharing and some degree and forrn of autonomy, it is difficult to achieve integration in a plural society by democratic means.

Secession and International Law

Governments in plural societies are naturally concerned with actual or possible instability stemming fiom deep social, ethnic or religious divisions. Historically, practically all nation States have tried to overcome these divisions through policies of assimilation. Today many modem or pre-modem States are behaving in the same vein. Assimilation presumes elimination of differences by means of changing identity of a minority. Often the very existence of minority identity is denied; attempts to use their own language in public or to profess their religion are restricted or completely suppressed. Assimilation policies more often than not do not simply work; they are counter-productive. Integration, on the contrary, starts from the recognition and acceptance of existing differences. Arend Lijphart writes: "...it is in the nature of consociational democracy, at least initially, to make plural societies more thoroughly plural. Its approach is not to abolish or weaken segmental cleavages but to recognise them explicitly and to tum the segments into constructive elements of stable democracy." 52 Integration policies consolidate political and economic unity of society without eliminating its cultural, religious or linguistic plurality; integration is achieved not by means of melting differences but rather through open recognition of these differences and their accommodation through consociational solutions. Integration, of course, means not only open recognition of cultural, religious or linguistic differences. This is only the first step. Integration also presumes the creation and development of common loyalties. In a plural society, such loyalty cannot be religious, ethnic or even linguistic, though in most cases a common language, that does not exclude giving some kind of official recognition to other (minority) languages, is conducive to integration. Common loyalties have to be rather political or civic. Common loyalty is

Sovereignty and Secession: Then and Now, Here and There

expressed first of all in common citizenship. In the field of culture or religion, what are needed are tolerance, understanding and respect but not uniformity. Sometimes the coexistence of common loyalties and different identities are expressed through the notion of 'hyphenated' citizens (e.g., Hispanic-Americans).A recent MORI opinion poll taken across Great Britain illustrated that around 80% of people felt some loyalty to the ideas of Britain and England, Scotland and Wales.53 There are many reasons why governments may not l k e some elements of consociational democracy. Power-sharing arrangements are always costly and time-consuming. Autonomy is considered to be dangerous, as a step toward sece~sion.~~ But what are the alternatives? Any one is much worse. And importantly, they are incompatible with democracy and human rights. 7. Integration plus devolution: ways of resolving inter-ethnic problems? There are two simultaneous, contradictory and interdependent processes gathering momentum in the world that both put considerable strain on the State. These processes of globalisation and fkagmentation, the last stimulated by the search for identity by many ethnic or religious groups, have considerable effect on minority issues. However, this effect differs from State to State, from region to region and States do not respond to these impulses in the same way. Not only are minorities very different. States also, notwithstanding the principle of sovereign equality, are de facto quite different. Equally important for minority problem is the international position of modem States. John Gerard Ruggie writes that "the most distinct feature of modernity in international politics came to be: a particular form of territoriality - disjoint, fixed, and mutually

Secession and International Law

exclusive - as the basis for organising political life."55This exclusive, fixed territoriality which characterises more than anything else the modern international system is in the process of changing at least in some parts of the world and first of all in Europe. In the Western European post-modem space, to which many Central and Eastern European States aspire to belong, minority issues can be and should be resolved differently from how they are dealt with in modern or pre-modern States. States in the post-modern space are ready to devolve many functions to subnational units, pooling at the same time, other functions within international organisations (e.g., the EU, NATO). Both of these processes (devolution and pooling) may facilitate the search for minority problems. Internally, States become less centralised which means, inter alia, that minorities can and even must resolve issues concerning their culture, language and religion with less State interference than it is happening now. "The State is central to economic and social development, not as a direct provider of growth but as partner, catalyst, and facilitator." 56 The State (it should go without saying that representatives of the majority and all the minorities participate in the decision-making at national level) should create and maintain a legal framework within which minorities themselves deal with various issues such as culture and religion. Minorities in liberal-democratic countries, especially in those which are part of the European post-modem space, are usually able to acquire considerable autonomy. In some cases they may even become completely independent. At the same time, such complete independence is often more a form than substance. The diminishing importance of national borders in Europe may be a factor facilitating the solution of minority problems at least in some instances. In integrated Europe of liberal democratic States minorities have better chances to become independent but they have also less incentive to seek complete independence. It matters

Sovereignty and Secession: Then and Now, Here and There

less and costs more. Jonathan Glover has suggested that "...a worthwhile response to the problem of blurred or disputed geographical boundaries may be the blurring of the conceptual boundaries of the nation State." 57 This is happening in Western Europe. Minorities often look with suspicion and apprehension at their immediate majority. They feel more comfortable when their immediate majority is not the only and final arbitrator. Therefore, integration of European States creates conditions more favourable and more promising than anywhere else for the coexistence of pluralism, democracy and stability. Post-modem States experiment with various forms of accommodation and integration of minorities. As an ongoing experiment, I would like to refer to some aspects of the devolution processes in Scotland and Wales that inevitably affect also England and the peace process in Northern Ireland, which, from my point of view, are all of special importance because the United Kingdom and its political system has traditionally been considered by analysts as an example of 'the government versus opposition' or 'adversarial' model not conducive to introduction of elements of consociational democracy. This model is often even referred to as 'the British model', which avoids any power sharing.58 However, things have changed considerably within only a year or so. The State-centric, strictly territorial, organisation of societies and inter-societal relations is a European product and import. In such a social construct there is very little room for the protection of minorities and their interests.59Having exported such a societal organisation to the rest of the world, Europe is now moving forward (or some would say, backward towards some kind of newMedievalism). This process is far from painless in the Old Continent. Is it possible that today as well Europe is showing something from possible future of societies on other continents?

Secession and International Law

Secession and assimilation are options which have their strong raison d '&re in tenitorial nation States. In post-modern space they lose their topicality and acuteness.

Please consult the Notes on the Authors The fourth, mentioned in the Montevideo Convention of 1933, is derivative from the first three and is dependant on the recognition by the international community of States. W. Kymlica, Multicultural Citizenship. A Liberal Theory of Minority Rights, Clarendon Press, 1955, p. 185. R. Cooper, The Post-Modern State and the World Order, Demos, 1996. J. Rosenau, Along the Domestic-Foreign Frontier, op. cit., p. 362. G. Ssrensen, 'An Analysis of Contemporary Statehood: Consequences for Conflict and Cooperation', 23 Review of International Studies, (1997), p. 255. Ssrensen, op. cit., p. 264. MacCormick, 'Liberalism, Nationalism and Post-Sovereign State, in R. Bellamy, D. Castiglione (eds), Constitutionalism in Transition: European and Theoretical Perspectives, Blackwell, 1996,p. 143. J. Habermas, Postmetaphysical Thinking, Polity Press, 1992, p. 141. As Klaus Schwab and Claude Smadja observe, "...in fact, globalisation is heightening the need for communities and countries to assert more strongly their ethnic and cultural differences..." (K. Schwab, C. Smadja, 'We Need Structures to Help Globalisation', The International Herald Tribune, 27 January 2000, p. 6). W. Opello, Jr., S. Rosow, The Nation-State and Global

Sovereignty and Secession: Then and Now, Here and There

11 l2

l3

l4

l5 l6

l7

l8

l9 20

21

22

Order: A Historical Introduction to Contemporary Politics, Lynne Rienner Publishers, 1999, p. 2. Kingsbur~,0 ~tit., . p. 609. United Nations General Assembly, 'Question of American Samoa, Bahamas, Brunei, Cayrnan Islands, Cocos (Keeling) Islands, Gilbert and Ellise Islands, Guam, Montserrat, New Hebrides, Pitcairn, St. Helena, Seychelles, Solomon Islands, Turks and Caicos Islands, and the United States Virgin Islands', United Nations Resolution: Resolutions of the GeneralAssembly, ser. 1, vol. 13, 1970-71, pp. 180. 459-60. G. Smensen 'An Analysisof Contemporary Statehood: Conse quences for Conflict and Cooperation' 23, Review of International Studies (1997), p. 258. R. Jackson, Quasi-States: Sovereignty, International Relations and the Third World,CambridgeUniversity Press, 1990,pp. 23-24. Ibid. p. 5. The Convention on Rights and Duties of States, 26 December 1933, Montevideo, 28 American Journal of International Law (Supplement) (1934), pp. 75- 78. Crawford, The Creation of States in InternationalLaw, Clarendon Press, 1979, p. 42. See more in T. Franck, 'The Emerging Right to Democratic Governance', 89 American Journal of International Law (1992). The International Herald Tribune, 1 March 2000, p. 6. General Assembly Resolution 2625 (m), 24 October 1970. R. Lansing, The Peace Negotiations. A Personal Narrative, Constable & Company, 1921, p. 87. V. Lowe, 'The Principle of Non-Intervention: Use of Force', in V. Lowe, C. Warbrick (eds), The United Nations and the Principles of International Law. Essays in Memory of Michael Akehurst, Routledge, 1995, p. 8 1. 161

Secession and International Law

Watson, The Evolution of International Society, Routledge, 1992, p. 230. Ibid. p. 244. C. Tilly 'Western State-making and theories of political transformation' in Tilly (ed.), The Formation of National States in Europe, Princeton University Press, 1975, p. 28. Ibid. p. 43-44. L. Kuper, 'Plural Societies: Perspectives and Problems' in L. Kuper, A. Smith (eds.) Pluralism in Africa, University of California Press, 1969, p. 14. Unfortunately, this pattern is repeating itself in Eastern Europe at the end of this century. Secessionist movements, having successhlly broken away from their 'oppressors ',often embark upon their own process of homogenisation and ethnic cleansing. For example, at the moment, attempts by Kosovo Albanians to ethnically cleanse Kosovo are controlled only by the presence and active role played by KFOR soldiers. J. Ormond, 'The North Caucasus: Fragmentation or Federation?' in I. Brernmer, R. Taras (eds.), Nations &Politics in the Soviet Successor States, Cambridge University Press, 1993, p. 452. Shekhar Guptar, India Redefines Its Role, Adelphi Paper 293, Oxford University Press, 1995, p. 24. For example, Security Council Resolutions 1199 (1998) on Kosovo, 1258 (1999) on the Democratic Republic of the Congo, and 1264 (1999) on East Timor all reaffirm respect for the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, the Democratic Republic of the Congo and Indonesia respectively. Guptar, op. cit., p. 28. However, as The Independent on Sunday observed in 1999,

Sovereignty and Secession: Then and Now, Here and There in Kashmir "India is behaving like the most heavy-handed sort of occupying power as it brutalises a population that is more than 95 per cent Muslim and close to 100 per cent disaffected fiom India" (The Independent on Sunday, 20 June 1999,p.230). See Ormond, op.cit. p. 45 1-52, D. Held, Democracy and Global Order, Polity Press, 1995, p. 36. R. Cooper, M. Berdal, 'Outside Interference in Ethnic Conflicts', in M. Brown (ed.), Ethnic Confict and International Securiy, Princeton University Press, 1993, p. 182. S. Mydans, 'In Arnbon, Chaos Equals Politics by Other Means: Indonesia's Nightmare Appears Programmed', The International Herald Tribune, 10 February 2000, p. l . D. Held, A. McGrew, D. Goldblatt, J. Perraton, Global Transformations, Polity Press, 1999, p. 14. A. Hastings, The Construction of Nationhood: Ethnicity, Religion and Nationalism, Cambridge University Press, 1997, p. 120. W. Kymlica, 'The Sources of Nationalism' in R. McKim, J. McMahan (eds.), The Morality of Nationalism, Oxford University Press, 1997, p. 64. T. Judah, 'Kosovo's Road to War', 41 Survival (1999), No.2, p. 12. S/RES/1244 (1999), 10 June 1999. T. Garton Ash, History of the Present, Penguin Press, 1999, p. 269. W. Kymlica, Multicultural Citizenship. A Liberal Theory of Minority Rights, Clarendon Press, 1995, p. 185. UN Press Release, HRl4434, 17 September 1999. S/RES/1264 (1999), 15 September 1999. G. Fuller, 'Where Governance is Foul, Watch for More.

Kosovos', The International Herald Tribune, 5 May 1999, p. 10. See, e.g., Lijphart, Democracy in Plural Societies. A Comparative Exploration, Yale University Press, 1977, p.44-45. W. Connor, 'Nation-Building or Nation-Destroying', World Politics, %(l 972), 350-5 1. C. Bildt, Holbrook's History. Review Essay, Survival, 1.40, No.3, p. 190. A. Lijphart, Op. Cit. p.25. Ibid. p.42. The Economist, 3 October 1998, p.35. I believe that the indiscriminate reliance on the uti possidetis principle has played a negative role in the process of finding solutions to inter-ethnic or inter-religious problems. This principle was acceptable for Latin America and was applied in Africa in the process of decolonisation since no better principle was available. However, in other contexts thisprinciple often seems to be undermining the territorial integrity of those multi-ethnic States that grant autonomy (especially territorial autonomy) their minorities. J.G. Ruggie, Constructing the World Polity, Routledge, 1998, p. 192. l%eState in a Changing World. World Development Report 1997. The World Bank and Oxford University Press, 1998, p. l. J. Glover, 'Nations, Identity, and Conflict', in The Morality of Nationalism (R.McKim, J.McMahan eds.), Oxford University Press, 1997, p.25. A. Lijphart, Op.cit. p.25. It is not accidental that in some empires (e.g., the Macedonian Empire under Alexander the Great, the Ottoman Empire, the Austro-Hungarian Empire) both ethnic and religious minorities felt themselves more comfortable than in so-called nation States.

PART IV SPECIFIC ISSUES

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QUEBEC'S RIGHT TO SECESSIONIST SELF-DETERMINATION : THE COLLIDING PATHS OF CANADA'S CLARITY ACT AND QUEBEC'S FUNDAMENTAL RIGHTS ACT Daniel Turp*

The political and constitutional future of Qukbec has been hotly debated from the time of the ((Quiet Revolution)) - circa 1960 -, with unflagging intensity and in a very democratic manner. The debate has taken place within the context of referendums, general elections, hearing of parliamentary commissions and in the many other places where both the options for Canada's federal unity and Qukbec's national sovereignty were brought forward. Hence for more that three decades, Qukbec's right to self-determination and secession has been discussed in academic and political circles and several texts on the legal aspects of Qukbec's claim for independence have been published . Just before the October 30" 1995referendum, the right of Qukbec to become a country was challenged before the court. A first judgment2 on this issue was delivered a few weeks before the referendum and alluded to the fact that a unilateral declaration of independence (UDI) might contravene the Constitution of Canada, and more specifically the provisions of the Canadian Charter ofHuman Rights and Freedom.' The Court refused however to grant an injunction to prevent the holding of a referendum related to the question of Qukbec's accession to sovereignty as well as its offer of partnership to Canada. Footnote texts are at the end of each chapter

Secession and International Law

Because the sovereignty option was so close a call (50,48% NO49,52% YES -a mere 54,288 votes of the 4,671,008 ballots casted makmg the difference), the issue of Quebec's right to achieve independence and to secede from Canada took an increasing legal bend. The slim victory of the NO camp caused a significant shift in attitude among many federalists, especially those governing in Ottawa. A plan which came to be known as plan B -intended to hobble the sovereignist movement in Quebec and -to muzzle the Quebec n a t i ~ n . ~ Conceived by the minister of Intergovernmental Affairs, Mr. Stkphane Dion, this plan has several components : a propaganda component where Canadian flags and subsidies to celebrate Canada Day are distributed generously in Quebec, a territorial 168aspect through the threat of partition of a sovereign Qukbec territory and a diplomatic front illustrated by a catechism to be applied by Canada's foreign agents when Quebecers promote Qukbec sovereignty abroad. In its legal dimension, this plan B first found expression in the request for an advisory opinion by the Supreme Court of Canada on the issue of Quebec's secession. This request rendered moot the case that had been filed just before the 1995 referendum and which had been continued. It had given rise to a judgment on preliminary exceptionswhich were rejected by the Qukbec Superior Court? This Court formulated however a number of questions that in its view required an answer when the merits of the case would be debated. Claiming the need that such answers should be given quickly by the highest court of the land, the Government of Canada submitted on September 26, 1996 a request for an advisory opinion to the Supreme Court of Canada. The Government of Canada formulated three questions on Qukbec's right to unilateral secession to be

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

answered by Canada's final court of appeal, one of which referred to the right of peoples to self-determination. The questions read as follows: Question 1: Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally ? Question 2: Does international law give the National Assembly, legislature or government of Qukbec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Qukbec from Canada unilaterally? Question 3: In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Qukbec from Canada unilaterally, which would take precedence in Canada ? These questions were severely criticized by the former head of the International Law Commission of the United Nations in a legal opinion sought by the amicus curiae of the Court. The relcnowned international french scholar Alain Pellet stated: [TRANSLATION] "I am profoundly distressed and upset by thepartisan manner in which the questions are put and I take the liberty of suggesting that a court of justice has the duty to react to what appears to be a blatant attempt at political manipulation." Yet, contrary to all expectations, the Court refused, in its August 20m 1998 Reference re Secession of Quebec7 to answer Y E S or NO to the questions. And, rather than simply denying Quebec's right to declare independenceunilaterally and state that international l69

Secession and International Law

law on theself determination of peoples did not recognize the right to unilateral secession, it noted that the federal and provincial governments had aconstitutional and mandatory duty to negotiate should Quebec vote in favor of sovereignty. It also considered the question of the international community's recognition of Quebec's sovereignty and noted in that respect: "The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. The clear repudiation by the people of Quebec of the existing constitutional order would confer order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed." The advisory opinion of the Supreme Court hurt the federalists particularly because it recognized that Quebec could turn to the international community if the other provinces and the federal government failed in their obligation to negotiate in good faith. The Court said: "To the extent that a breach of the constitutional duty to negotiate in accordance with the principles described above undermines the legitimacy of a party's actions, it may have important ramifications at the international level. Thus, a failure of the duty to undertake negotiations and pursue them according to constitutional principles may undermine that government's claim to legitimacy which is generally a precondition for recognition by the international community. Conversely, violations of those principles by the federal or other provincial governments responding to the request for

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

secession may undermine their legitimacy. Thus, a Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigenceon the part of other participants at the federal or provincial level would be more likely to be recognizedthan a Quebec which did not itself act according to constitutional principles in the negotiation process. Both the legality of the acts of the parties to the negotiation process under Canadian law, and the perceived legitimacy of such action, would be important considerationsin the recognition process. In this way, the adherence of the parties to the obligation to negotiate would be evaluated in an indirect manner on the international plane." In order to neutralize, indeed circumvent, the obligation to negotiate as set out in the advisory opinion by the Supreme Court of Canada, an Act to Give Effect to the Requirementfor Clarity as Set Out in the Opinion of the Supreme Court of Canada in the Quebec Secession Referencelowas adopted by the Canadian Parliament. This piece of legislationpurports to impose conditions on Qukbec before the federal government fblfills its obligation to negotiate with Qukbec. The adoption of such a law casted a pall on Canadian democracy and struck a chord with the Government of Quebec, which considered it necessary to reply with a bill entitled An Act Respecting the Fundamental Rights and Prerogatives of the Qudbec People and of the Qukbec State." Adopted by Qukbec's National Assembly on December 7" 2000 and in force since February 28" 2001, this Act reaffirms Qukbec's right of self-determination and its right to choose freely its political status. With these two pieces of legislation Canada and Qukbec are more than ever before on a course where not only ideas but interests will collide.

Secession and International Law

The Clarity Act and QuCbec: ideas in collision After its tabling in the House of Commons of Canada, the socalled Clarity Act was debated in conditions unworthy of a parliamentary democracy in which the federal government repeatedly invoked closure in order to ensure quick passage of thls bill, through the legislative committee struck for the purposes of the bill and through the House of Commons itself. It was passed on March 15, by a vote of 208 to 55, including 47 "nay" votes among the 73 Qukbec members present at the time of the vote (64% of Qukbec's MP's). The bill was subsequently examined by the Senate of Canada and passed on June 29, despite strong opposition, especially by senators from Qukbec. It received royal assent from the Governor General the same day. The Clarity Act attempts essentially to define the wording of the question in a future referendum on Quebec's sovereignty and to determine the majority threshold that would allow the Canadian government to shirk its obligation to negotiate. By doing so, it collides headlong with ideas that have prevailed for decades and guaranteed the Qukbec nation a freedom the Government is now trying to take away. Under the auspices of Qukbec's Referendum Act12, the Government of Qukbec initiated referendums on Qukbec's political and constitutional future. In both the 1980 and 1995 referendums" , the participation in the debate of the govemment of Canada and the Parliament as well as many provincial prime ministers and federalist forces in Qukbec for the "No" camp, legitimize the democratic process of the referendums14and to a certain extent indicates "a tacit acceptance of the possibility for Qukbec to secede."15 In the organization of these referendums, Quebec's elected representatives would decide the wording of the referendum question16. This notion has been challenged by the Clarity Act,

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

which grants the House of Commons the power to determine the clarity of a referendum question17. The House of Commons of Canada - where only 25% of the members are fiom Qukbec (75 of 301) - is to be given, in the name of clarity, the right to reject a question formulated by the National Assembly and the elected representatives of the people of Qukbec. According to the Clarity Act, a clear question appears to be solely a question that would ask whether a province should cease to be part of Canada and become an independent State18 leaving no other constitutional option for the National Assembly without intrusion fkom the federal government. The idea that a referendum is won with a majority of 50 per cent plus one of the valid votes cast seemed also to have prevailed in all referendums organized with respect to the political and constitutional future in Quebec and Canada. Here too, ideas are in collision, since the intent of the Clarity Act is to give the House of Commons the power to decide that a majority of 50 per cent plus one of valid votes cast is not enough to compel the federal government to assume its constitutional and mandatory duty to negotiate. On this point, the collision is all the more real and the undemocratic nature of the bill all the more obvious in the light of Canadian practice on the subject of majority rule. All referendums in Canada have been held on the basis of majority rule. Newfoundlandjoined Confederation (on its third try) with 52% of the valid votes cast. All referendums on Quebec's and Canada's political and constitutional future -on sovereignty-associationof 1980, on the Charlottetown Accord in 1992 or on sovereignty and partnership in 1995 -were all governed by majority rule of 50% plus one of the valid votes cast. To cast doubt on the rule of 50 per cent plus one is also to contravene the fundamental principle of the equality of voters. The vote of some must have the same value as the vote of others. B73

Secession and International Law

This is a matter of equity andjustice the Supreme Court of Canada recognized in its 1991 decision on electoral boundaries in Saskatchewan : "...dilution of one citizen's vote as compared with another's should not be countenanced."lg All the three parties represented in the Qukbec National Assembly, (the Parti Qukbkcois, the Qukbec Liberal Party and the Action dkmocratique du Qukbec) rejected the Clarity Act. As mentioned earlier, nearly two thirds of the Qukbec members of Parliament in attendance during the vote at third reading on March 15,2000 also voted against Bill C-20, including the 44 members of the Bloc Qukbkcois. Civil society, through the voices of trade unions, student associations, women's groups and community groups is also nearly unanimous in its rejection of this law. Very few groups in Qukbec supported this federal initiative. The Clarity Act breaks the democratic tradition in Canada that, up to now, had taken into account Qukbec's desire to fieely decide its future. It cannot be ignored. It is no credit to a country that boasts of itself in international circles as a model of democracy and the best country in the world. Every ten years or so, it seems that Qukbec has to reaffirm its freedom to determine its political status. In 1980, the Prime Minister of Qukbec, Renk Lkvesque, noted in the days after the May 20 referendum that "the recognition of this right [to selfdetermination] [was] the most important outcome of the Qukbec referendum.."20Another Prime Minister of Qukbec, Robert Bourassa, said on June 22, 1990 that " no matter what is said or done, Quebec is now and will always be a distinct society, free and the master of its destiny and its de~elopment."~~ In 2000, the Government of Qukbec took a solemn stand on the Clarity Act by tabling in turn An Act Respecting the Fundamental Rights and Prerogatives of the Qukbec People and of the Qubbec State, setting a collision course with the interests of Canada.

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

The Fundamental Rights Act and Canada: interests in collision In reaction to such a serious threat to the freedom of the people of Qukbec to determine their future, the Government of Qukbec tabled, on December 15, 1999, two days after the tabling of the Clarity Bill, a bill entitledAn Act respecting thefundamental rights andprerogatives of the Qukbecpeople and of the QuPbec State. It was adopted by the National Assembly on December 7h 1999, assented to on December 13h and came into force on February 28, 2001. With this bill, the government called on the National Assembly of Qukbec to reaffirm Qukbec's freedom to determine its future and to adopt measures to establish this freedom on solid legal grounds. The Qukbec Fundamental Rights Bill was debated at length in the National Assembly and in its Committee on Institutions. A number of amendments were made to it as the result of proposals by individuals and groups that testified before the parliamentary committee. The bill received the support of the members of the Parti Qukbkcois and the Action dkmocratique du Qukbec. Despite an attempt to achieve a consensus, the members of the Liberal Party of Qukbec refused to support the bill and would have preferred to see the National Assembly pass a solemn declaration on this matter. The Fundamental Rights Act has a much broader scope than the Clarity Act and was described by the Prime Minister of Qukbec as a charter of collective rights for QuBbec. As such, it is in collision not only with the Clarity Act but with the vision of Canada held by its leaders and the interests they appear to promote. One of the dominant features of the Fundamental Rights Act is its unreserved affirmation of the existence of the Qukbec people in the first chapter. This affirmation was necessitated by Canada's inability to recopze such an existence. After consistently refusing to consider that Quebecers constituted a people, albeit a nation,

Secession and International Law

the attempt to affirm the existence of a "distinct society" in Qukbec was also challenged by the rest of Canada and its representativesZ2. The affirmation of the existence of the people of Qukbec is therefore necessary in this context and permits the bill to enshrine the right to self-determination and the right to choose a political system and a legal status for Qukbec. In the particular case of section 4 of the Fundamental Rights Act, it means choosing the instrument and the rules that will best represent the will of the population and actually gives effect to Qukbec's right to fieely determine its future. This section provides clearly that "[wlhen the Qukbec people is consulted by way of a referendum under the Referendum Act, the winning option is the option that obtains a majority of the valid votes cast, namely fifty percent of the valid votes cast plus one." Section 5 of the Fundamental Rights Act rightly provides that the Quebec state derives its legitimacy from the will of the people inhabiting its territory and contains an affirmation fully consistent with the third paragraph of article 2 1 of the Universal Declaration of Human Rights, which provides that "[tlhe will of the people shall be the basis of the authority of government". The subsequent reference to the fact that the will of the people is expressed through the election of members to the National Assembly by universal suffiage, by secret ballot, under the one person, one vote system, pursuant to the Election ActZ3and through refer end urn^^^ held pursuant to the Referendum ActZ5isalso consistent with the requirements of this international instrument and sets out the two Qukbec laws whose democratic nature is incontrovertible. The objective of protecting Qukbec's internal and international jurisdictions is apparent in the other sections of chapter I1 of the Act and is set to collide with the interests of the federal government, which has tried to progressively expand its jurisdiction. Accordingly, section 6 of the Fundamental Rights Act states that

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

"[tlhe Qukbec State is sovereign in the areas assigned to its jurisdiction by laws and constitutional conventions." There are recent examples to support the argument that Qukbec's jurisdiction has been infinged by federal authorities, whether it be in the case of the millennium scholarship institution or of the passage, without Qukbec's approval, of a framework agreement on Canada's social This sort of attitude reflects an increasing and obvious desire on the part of these federal authorities to assume a determinant role in all spheres of activity and to use their spending power to this end. Qukbec has consistently disputed the exercise of this power, but its pleas have been ignored. Accordingly, the government decided to remind Parliament and the Government of Canada of Qukbec's profound commitment to its areas of jurisdiction and to their integrity and of its intention to resist any attempt to further usurp these areas that were given to Qukbec by law and constitutional convention. In addition, Qukbec's exercise of international jurisdiction has consistently been disputed by the federal government of Canada. Here again the differing interests of Canada and Qukbec collide. Arguing that only the federal government had international jurisdiction as granted by royal prerogative, successive Canadian governments have rejected the doctrine formulated in 1965 by minister Paul Gkrin-Lajoie to the effect that Qukbec could extend its internal jurisdiction internationally. Under these conditions, the principle enshrined in the first paragraph of section 7 of the Fundamental Rights Act whereby "[tlhe Qukbec State is free to adhere to any treaty, convention or international agreement in matters under its constitutional jurisdiction" and "[tlhe Qukbec State is not bound by any treaty, convention, agreement or Act in the areas under its jurisdiction unless it has formally adhered to it

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by a decision of the National Assembly or the Government, subject to the applicable legislative provisions." In its application as well to the question of international representation, the Gerin-Lajoie doctrine was also rejected by the Government of Canada and has been the source of considerable conflict between Canadian and Qukbec government officials. Whether it concerned participation in intemational forums on cultural diversity or in meetings between representatives of Quebec with heads of state or foreign governments (e.g. Bouchard-Zedillo) or the refusal to give Qukbec its proper place in the context of the Free Trade Area of the Americas (FTAA), the doctrine of the federal government's monopoly over foreign policy has caused considerable and ongoing conflict. Accordingly, the Government of Qukbec wanted to a f b n in the third paragraph of section 7 that Qukbec "may, in areas under its jurisdiction, transact with foreign States and ensure its representation outside Qukbec." In this era of globalization, such an affirmation seems all the more compelling in the light of what the Qukbec minister for Canadian Intergovernemental Affairs, Joseph Facal, called an ((federativedeficib)" , which aims to prevent Qukbec fiom reachmg out to the international community. Added following the hearings of the National Assembly's Committee on Institutions, section 8 of the Fundamental Rights Act reiterates Qukbec's jurisdiction over language issues and reiterates that French is the official language of Qukbec. It also emphasizes the fact that the "Qukbec State must promote the quality and influence of the French language" and that it "shall pursue those objectives in a spirit of fairness and open-mindedness, respecthl of the long-established rights of Qukbec's English-speaking community". This desire to preserve and promote Qukbec's French language also conflicts with another desire, that of the federal government to promote two official languages in Canada.

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

In the chapter on the territory of Qukbec, the National Assembly of Qukbec reaffirmed that "[tlhe territory of Qukbec and its boundaries cannot be altered except with the consent of the National Assembly." This provision is intended to ensure that the existing boundaries of Qukbec are respected and maintained and to counter the partitionist reveries in subsection 3(2) of the Clarity Act. This provision is intended primarily to limit the right of the Qukbec people to choose freely their political fbture and status. Qukbec's territorial integrity, the intangibility of its borders and the rule of law f o m the cornerstone of a very broad consensus emerging in Qukbec2*. The Fundamental Rights Act assures the Abenaki, Algonquin, Attikamek, Cree, Huron, Innu, Malecite, Micmac, Mohawk, Naskapi and Inuit Nations of a rightful place and sets forth, in the fifth clause of the preamble, the principles associated with the recognition of the aboriginal nations includmg their right to autonomy withm Qukbec. In addition, in sections 11 and 12 of the act, the National Assembly recognizes, in exercising its constitutionaljurisdiction, the existing rights -aboriginal and treaty -of the aboriginal nations of Qukbec, and the government undertakes to promote the establishment and maintenance of harmonious relations with these nations and to foster their development and improvement of their economic, social and cultural conditions. All these principles reaffirm the motion passed in l985 by the National A ~ s e m b l y. ~ ~ On all these matters, the Fundamental Rights Act and the Clarity Act differ in their concepts of the fbture. However, with the final provision of the Fundamental Rights Act, the collision becomes headlong. Section 13 of this act provides that "[nlo other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Qukbec people to determine its own future." This provision is fundamental and is designed to nullify any effect of the Clarity Act in Qukbec.

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In this pivotal year 2001, the right of peoples and nations to self-determination remains as relevant as ever. It underlies claims to autonomy and independence and the calls for fieedom heard on every continent. This right rests on the guarantee of rights to national and ethnic, cultural or religious minorities and on the recognition of the right of peoples and nations to self-determination. It should notably evolve towards the recognition that political independence is a means to implement such a right in a democratic context, such as the context of Qukbec's claim for independence. So long as governments and international institutions continue to question the right to self-determination and refuse to give it effect, they exacerbate conflicts and promote neither political harrnony nor cultural diversity. However, their democratization is essential and cannot be achieved at a cost to the minorities, peoples and nations that fashion this international system and give meaning to the concept of international community. This democratization must, however, be based on principles that neither threaten fieedom nor impose trusteeship regimes on minorities, peoples or nations. It must never be based on the principles that gave rise to the Clarig Act recently enacted by the House of Commons of Canada, which represents the antithesis of the process of democratization that springs from true recognition of the right to self-determination30. This democratization must be based on a real desire to recognize minorities, peoples and nations which will continue to enrich the international community and the heritage of humankind.

Quebec's Kght to Secessionist Self-determination: The Colliding Paths...

APPENDIX I Reference re Secession of Quebec (Summary) [l9981 2

Supreme Court Reports [S.C.R.] 2 17 IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26; AND IN THE MATTER OF a Reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1497, dated the 30th day of September, 1996 Present: Lamer C.J. and L'Heureux-Dub& Gonthier, Cory, MC Lachlin, Iacobucci, Major, Bastarache and Binnie JJ. Pursuant to S. 53 of the Supreme Court Act, the Governor in Council referred the following questions to this Court: Question 1: Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? Question 2: Does international law give the National Assembly, legislature or governement of of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? Question 3: In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

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( 1 ) Supreme Court 5. Reference Jurisdiction Section 101 of the Constitution Act, l867 gives Parliament the authority to grant this Court the reference jurisdiction provided for in S. 53 of the Supreme Court Act. The words "general court of appeal" in S. 101 denote the status of the Court within the national court structure and should not be taken as a restrictive definition of the Court's functions. While, in most instances, this Court acts as the exclusive ultimate appellate court in the country, an appellate court can receive, on an exceptional basis, originaljurisdiction not incompatible with its appellate jurisdiction. Even if there were any conflict between this Court's reference jurisdiction and the original jurisdiction of the provincial superior courts, any such conflict must be resolved in favour of Parliament's exercise of its plenary power to establish a "general court of appeal". A "general court of appeal" may also properly undertake other legal functions, such as the rendering of advisory opinions. There is no constitutionalbar to this Court's receipt of jurisdiction to undertake an advisory role. The reference questions are within the scope of S. 53 of the Supreme Court Act. Question l is directed, at least in part, to the interpretation of the Constitution Acts, which are referred to in S. 53(l)(a). Both Questions 1 and 2 fall within S. 53(l)(d), since they relate to the powers of the legislature or government of a Canadian province. Finally, all three questions are "important questions of law or fact concerning any matter" and thus come within S. 53(2). In answering Question 2, the Court is not exceeding its jurisdiction by purporting to act as an international tribunal. The Court is providing an advisory opinion to the Governor in Council in its capacity as a national court on legal questions touching and concerning the future of the Canadian federation. Further, Question 2 is not beyond the competence of this Court, as a domestic court, because it requires the Court to look at interna-

QuCbec's Right to Secessionist Self-determination: The Colliding Paths...

tional law rather than domestic law. More importantly, Question 2 does not ask an abstract question of "pure" international law but seeks to determine the legal rights and obligations of the legislature or government of Quebec, institutions that exist as part of the Canadian legal order. International law must be addressed since it has been invoked as a consideration in the context of this Reference. The reference questions are justiciable and should be answered. They do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make. The questions, as interpreted by the Court, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. Since the reference questions may clearly be interpreted as directed to legal issues, the Court is in a position to answer them. The Court cannot exercise its discretion to refuse to answer the questions on a pragmatic basis. The questions raise issues of fbndamental public importance and they are not too imprecise or ambiguous so as not to permit a proper legal answer. Nor has the Court been provided with insufficient information regarding the present context in which the questions arise. Finally, the Court may deal on a reference with issues that might otherwise be considered not yet "ripe" for decision. (2) Question 1 The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the

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constitutional rights and obligations that would come into play in the event that a clear majority of Quebecers votes on a clear question in favour of secession. The Court in this Reference is required to consider whether Quebec has a right to unilateral secession. Arguments in support of the existence of such a right were primarily based on the principle of democracy. Democracy, however, means more than simple majority rule. Constitutionaljurisprudence shows that democracy exists in the larger context of other constitutional values. Since Confederation, the people of the provinces and territories have created close ties of interdependence (economic, social, political and cultural) based on shared values that include federalism, democracy, constitutionalism and the rule of law, and respect for minorities. A democratic decision of Quebecers in favour of secession would put those relationships at risk. The Constitution vouchsafes order and stability, and accordingly secession of a province "under the Constitution" could not be achieved unilaterally, that is, without principled negotiation with other participants in Confederation within the existing constitutional fiamework. Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize. Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terrns of a proposed secession to the other parties to the federation. The demo-

Qukbec's k g h t to Secessionist Self-determination: The Colliding Paths...

cratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations. Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities. The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community. The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the Constitution" and not to usurp the prerogatives of the political forces that

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operate within that framework. The obligations identified by the Court are binding obligations under the Constitution. However, it will be for the political actors to determine what constitutes "a clear majority on a clear question" in the circumstancesunder which a future referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the content and process of the negotiations will be for the political actors to settle. The reconciliation of the various legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional scheme, would have no supervisory role.

(3) Question 2 The Court was also required to consider whether a right to unilateral secession exists under international law. Some supporting an affirmative answer did so on the basis of the recognized right to self-determination that belongs to all "peoples". Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determinationof people at international law where "a people" is governed as part of a colonial empire; where "a people" is subject to alien subjugation, domination or exploitation; and possibly where "a people" is denied any meaningll exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole

Qukbec's fight to Secessionist Self-determination: The Colliding Paths...

of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the "National Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally. Although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law. (4) Question 3 In view of the answers to Questions 1 and 2, there is no conflict between domestic and international law to be addressed in the context of this Reference.

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APPENDIX 2 An act to give effect to the requirement for clarity as set out in the opinion of the supreme court of Canada in THE QUEBEC SECESSION REFERENCE (CLARITY ACT)

Statutes of Canada, 2000, chapter 26 As passed by the House of Commons of Canada on March 15", 2000 and by the Senate on June 29" 2000 Assented to by the Governor General on June 29", 2000 In force on June 29", 2000 An Act to give effect to the requirementfor clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference

WHEREAS the Supreme Court of Canada has confirmed that there is no right, under international law or under the Constitution of Canada, for the National Assembly, legislature or government of Quebec to effect the secession of Quebec fiom Canada unilaterally; WHEREAS any proposal relating to the break-up of a democratic state is a matter of the utmost gravity and is of fundamental importance to all of its citizens; WHEREAS the government of any province of Canada is entitled to consult its population by referendum on any issue and is entitled to formulate the wording of its referendum question; WHEREAS the Supreme Court of Canada has determined that the result of a referendum on the secession of a province from Canada must be free of ambiguity both in terms of the question asked and 188

Quebec's Right to Secessionist Self-determination: The Colliding Paths...

in terms of the support it achieves if that result is to be taken as an expression of the democratic will that would give rise to an obligation to enter into negotiations that might lead to secession; WHEREAS the Supreme Court of Canada has stated that democracy means more than simple majority rule, that a clear majority in favour of secession would be required to create an obligation to negotiate secession, and that a qualitative evaluation is required to determine whether a clear majority in favour of secession exists in the circumstances; WHEREAS the Supreme Court of Canada has confirmed that, in Canada, the secession of a province, to be lawful, would require an amendment to the Constitution of Canada, that such an amendment would perforce require negotiations in relation to secession involving at least the governments of all of the provinces and the Government of Canada, and that those negotiations would be governed by the principles of federalism, democracy, constitutionalism and the rule of law, and the protection of minorities; WHEREAS, in light of the finding by the Supreme Court of Canada that it would be for elected representatives to determine what constitutes a clear question and what constitutes a clear majority in a referendum held in a province on secession, the House of Commons, as the only political institution elected to represent all Canadians, has an important role in identifying what constitutes a clear question and a clear majority sufficient for the Government of Canada to enter into negotiations in relation to the secession of a province from Canada; And WHEREAS it is incumbent on the Government of Canada not to enter into negotiations that might lead to the secession of a l89

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province from Canada, and that could consequently entail the termination of citizenship and other rights that Canadian citizens resident in the province enjoy as full participants in Canada, unless the population of that province has clearly expressed its democratic will that the province secede from Canada; Now, Therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: l. (1) The House of Commons shall, within thirty days after the govemment of a province tables in its legislative assembly or otherwise officially releases the question that it intends to submit to its voters in a referendum relating to the proposed secession of the province fkom Canada, consider the question and, by resolution, set out its determination on whether the question is clear.

(2) Where the thirty days referred to in subsection (1) occur, in whole or in part, during a general election of members to serve in the House of Commons, the thirty days shall be extended by an additional forty days.

(3) In considering the clarity of a referendum question, the House of Commons shall consider whether the question would result in a clear expression of the will of the population of a province on whether the province should cease to be part of Canada and become an independent state. (4) For the purpose of subsection (3), a clear expression of the will of the population of a province that the province cease to be part of Canada could not result from (a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of

QuCbec's Right to Secessionist Self-determination: The Colliding Paths...

the population of that province on whether the province should cease to be part of Canada; or (b) a referendum question that envisages other possibilities in addition to the secession of the province fiom Canada, such as economic or political arrangements with Canada, that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada. (5) In considering the clarity of a referendum question, the House of Commons shall take into account the views of all political parties represented in the legislative assembly of the province whose government is proposing the referendum on secession, any formal statements or resolutions by the government or legislative assembly of any province or temtory of Canada, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada, especially those in the province whose government is proposing the referendum on secession, and any other views it considers to be relevant. (6) The Government of Canada shall not enter into negotiations on the terms on which a province might cease to be part of Canada if the House of Commons determines, pursuant to this section, that a referendum question is not clear and, for that reason, would not result in a clear expression of the will of the population of that province on whether the province should cease to be part of Canada.

2. (1) Where the government of a province, following a referendum relating to the secession of the province from Canada, seeks to enter into negotiations on the terms on which that province might

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cease to be part of Canada, the House of Commons shall, except where it has determined pursuant to section 1 that a referendum question is not clear, consider and, by resolution, set out its determination on whether, in the circumstances, there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada. (2) In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account (a) the size of the majority of valid votes cast in favour of the secessionist option; (b) the percentage of eligible voters voting in the referendum; and (c) any other matters or circumstances it considers to be relevant. (3) In considering whether there has been a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada, the House of Commons shall take into account the views of all political parties represented in the legislative assembly of the province whose government proposed the referendum on secession, any formal statements or resolutions by the government or legislative assembly of any province or territory of Canada, any formal statements or resolutions by the Senate, any formal statements or resolutions by the representatives of the Aboriginal peoples of Canada, especially those in the province whose government proposed the referendum on secession, and any other views it considers to be relevant. (4) The Government of Canada shall not enter into negotiations on the terms on which a province might cease to be part of Canada unless the House of Commons determines,pursuant to this section,

Qukbec's h g h t to Secessionist Self-determination: The Colliding Paths.. .

that there has been a clear expression of a will by a clear majority of the population of that province that the province cease to be part of Canada. 3. (1) It is recognized that there is no right under the Constitution of Canada to effect the secession of a province from Canada unilaterally and that, therefore, an amendment to the Constitution of Canada would be required for any province to secede from Canada, which in turn would require negotiations involving at least the governments of all of the provinces and the Government of Canada. (2) No Minister of the Crown shall propose a constitutional amendment to effect the secession of a province fiom Canada unless the Governrnent of Canada has addressed, in its negotiations, the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights.

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APPENDIX 3 AN ACT RESPECTING THE EXERCISE OF THE FUNDAMENTAL RIGHTS AND PREROGATIVES OF THE Q ~ B E C PEOPLE AND THE Q ~ B E C STATE (FUNDAMENTAL RIGHTS ACT) Statutes of Qukbec, 2000, chapter 46 As adopted by the National Assembly of Qukbec on December 7th,2000 Assented to by the lieutenant-governor of Qukbec on December 13th,2000 In force in February 28, 2001

An Act respecting the exercise of the Fundamental Rights and Prerogatives of the Qukbec People and the Quebec State WHEREAS the Qukbec people, in the majority French-speaking, possesses specific characteristics and a deep-rooted historical continuity in a territory over which it exercises its rights through a modern national state, having a government, a national assembly and impartial and independent courts of justice ; WHEREAS the constitutional foundation of the Quebec State has been enriched over the years by the passage of fundamental laws and the creation of democratic institutions specific to Qukbec ; WHEREAS Qukbec entered the Canadian federation in 1867 ; WHEREAS Quebec is f m l y committed to respecting human rights and freedoms ;

Qukbec's Rght to Secessionist Self-determination: The Colliding Paths...

WHEREAS the Abenaki, Algonquin, Attikamek, Cree, Huron, Innu, Malecite, Micmac, Mohawk, Naskapi and Inuit Nations exist within Qukbec, and whereas the principles associated with that recognition were set out in the resolution adopted by the National Assembly on 20 March 1985, in particular their right to autonomy within Qukbec ; WHEREAS there exists a Qukbec English-speaking community that enjoys long-established rights ; WHEREAS Qukbec recognizes the contribution made by Quebecers of all origins to its development ; WHEREAS the National Assembly is composed of Members elected by universal sufhge by the Qukbec people and derives its legitimacy from the Qukbec people in that it is the only legislative body exclusively representing the Qukbec people ; WHEREAS it is incumbent upon the National Assembly, as the guardian of the historical and inalienable rights and powers of the Qukbec people, to defend the Quebec people against any attempt to despoil it of those rights or powers or to undermine them ; WHEREAS the National Assembly has never adhered to the Constitution Act, 1982, which was enacted despite its opposition ; WHEREAS Qukbec is facing a policy of the federal government designed to call into question legitimacy, integrity and valid operation of its national democratic institutions, notably by the passage and proclamation of the Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference (Statutes of Canada, chapter 26);

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WHEREAS it is necessary to reaffirm the fundamental principle that the Qukbec people is free to take charge of its own destiny, determine its political status and pursue its economic, social and cultural development ; WHEREAS this principle has applied on several occasions in the past, notably in the referendums held in 1980, 1992 and 1995 ; WHEREAS the Supreme Court of Canada rendered an advisory opinion on 20 August 1998, and considering the recognition by the Government of Qukbec of its political importance ; WHEREAS it is necessary to reaffirm the collective attainments of the Qukbec people, the responsibilities of the Qukbec State and the rights and prerogatives of the National Assembly with respect to all matters affecting the future of the Qukbec people ; THE PARLIAMENT OF Q U ~ B E CENACTS AS FOLLOWS :

CHAPTER I

1. The right of the Qukbec people to self-determination is founded in fact and in law. The Qukbec people is the holder of rights that are universally recognized under the principle of equal rights and self-determination of peoples. 2. The Qukbec people has the inalienable right to freely decide the political regime and legal status of Qukbec.

3. The Qukbec people, acting through its own political institutions, shall determine alone the mode of exercise of its right to choose l96

QuCbec's k g h t to Secessionist Self-determination: The Colliding Paths...

the political regime and legal status of Qukbec. No condition or mode of exercise of that right, in particular the consutation of the Qukbec people by way of a referendum, shall have effect unless determined in accordance with the first paragraph. 4. When the Qukbec people is consulted by way of a referendum under the Referendum Act, the winning option is the option that obtains a majority of the valid votes cast, namely fifty percent of the valid votes cast plus one.

CHAPTER I1 THE Q ~ B E C NATIONAL STATE

5. The Qukbec State derives its legitimacy from the will of the people inhabiting its territory. The will of the people is expressed through the election of Members to the National Assembly by universal suffrage, by secret ballot under the one person, one vote system pursuant to the Election Act, and through referendums held pursuant to the Referendum Act. Qualification as an elector is governed by the provisions of the Election Act. 6. The Qukbec State is sovereign in the areas assigned to its jurisdiction within the scope of constitutional laws and conventions. The Qukbec State also holds, on behalf of the Qukbec people, any right established to its advantage pursuant to a constitutional convention or obligation. It is the duty of the Government to uphold the exercise and defend the integrity of those prerogatives, at all times and in all places, including on the international scene.

Secession and International Law

7. The Qukbec State is free to consent to be bound by any treaty, convention or international agreement in matters under its constitutional jurisdiction. No treaty, convention or agreement in the areas under its jurisdiction may be binding on the Qukbec State unless the consent of the Qukbec State to be bound has been formally expressed by the National Assembly or the Government, subject to the applicable legislative provisions. The Qukbec State may, in the areas under its jurisdiction, establish and maintain relations with foreign States and international organizations and ensure its representation outside Qukbec. 8. The French language is the official language of Qukbec. The duties and obligations relating to or arising fiom the status of French language are established by the Charter of the French language. The Quebec State must promote the quality and influence of the French language. It shall pursue those objectives in a spirit of fairness and open-mindedness, respectfbl of the long-established rights of Qukbec's English-speaking community.

CHAPTER I11

9. The territory of Qukbec and its boundaries cannot be altered except with the consent of the National Assembly. The Government must ensure that the territorial integrity of Qukbec is maintained and respected. 10. The Qukbec State exercises, throughout the territory of Quebec and on behalf of the Qukbec people, all the powers relating to its jurisdiction and to the Qukbec public domain.

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

The State may develop and administer the temtory of Quebec and, more specifically, delegate authority to administer the temtory to local or regional mandated entities, as provided by law. The State shall encourage local and regional communities to take responsibility for their development. CHAPTER IV

11. In exercising its constitutional jurisdiction, the Quebec State recognizes the existing aboriginal and treaty rights of the aboriginal nations of Quebec. 12. The Government undertakes to promote the establishment and maintenance of harmonious relations with the aboriginal nations, and to foster their development and an improvement in their economic, social and cultural conditions. CHAPTER V FINAL PRO VISIONS

13. No other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Qukbec people to determine itsown fbture. 14. The provisions of this Act come into force on dates to be fixed by the government.

Secession and International Law

* l

Please consult the Notes on the Authors See Jacques BROSSARD, L'accession a la souverainetk et le cas du Qukbec, Montrkal, Presses de 1'Universitk de Montrkal, l97611995 (with a supplement by Daniel Turp, pp. 797-850); Daniel TURP, ((Le droit de skcession en droit international)), (1982), 20, Canadian Yearbook of International Law 24-78; Daniel TURP, ((Qukbec's Democratic Right to Self-Determination: A Critical and Legal Reflection)),in Tangled Web: Legal Aspects of Deconfederation, Toronto, C.D. Howe Institute, 1992, pp. 99- 124; Daniel Turp, L 'Avant-projet de loi sur la souverainetk: texte annotk, Montrkal, Les ~ditionsYvon Blais, 1995, pp. 1- 14; Sharon A. WILLIAMS, International Legal efects of Secession by Quebec, North York, York University, Centre for Public Law and Public Policy, 1992; Patrick J. MONAHAN, ((The Law and Politics of Quebec Secession)),(1995) 33 Osgoode Hall Law Journal 1-30; Neil FINKELSTEIN, George VEGH and Camille JOLY, ((DoesQukbec have a Right to Secede at International Law?)), (1995) 74 Canadian Bar Review 225-260. See also from a more political perspective, Alain-G.. GAGNON et Frangois ROCHER (ed.), Rkplique a m dktracteurs de la souverainetk du Qukbec, Montrkal, VLB kditeur, 1992; Daniel DRACHE and Robert PERRIN (ed.), Negotiating with a Sovereign Quebec, Toronto, James Lorirner & Company, 1992;Robert A. YOUNG, The Secession of Qukbec and the Future of Canada, Montreal and Toronto, McGill-Queen's University Press, 1995; Neil MCFARLANE, Sovereignty and Stability: The Domestic andRegiona1Security Implications of Qukbec Separation,- An Occasional Paper from the Dickey Center, Dartmouth College, Hanover, New Hampshire, 1997. Bertrand v. Qukbec (Attorney General),(1995) 127D.L.R. (49 408.

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

Part I of the Constitution Act of1982, being Schedule B to the Canada Act 1982 (U.K.), c. 11. Daniel TURP, La nation baillonnke :le plan B ou l'offensive d'Ottawa contre le Qukbec, Montrkal, VLB kditeur, 2000. See also Claude MORIN, La dbrive d 'Ottawa - Catalogue commentk des stratkgies, tactiques et manaxwresfkdkrales, Qukbec, Borkal, 1998, pp. 87- 107 and Claude MORIN, Les proph6tes dksannks ? - Quefaire si un rkfkrendum gagnant sur la souverainetk n 'est pas possible, Montrkal, Borbal, 2001, pp. 71-86. Bertrand v. Begin et al., (1996) 138 D.L.R. ( 4 9 481. This criticism appears in professor Pellet's expert opinion accompanying the Amicus Curiae's fachun and is reprinted in, Anne BAYESFKY, Self-Determination in International Law : Quebec and Lessons Learned, The Hague, Kluwer Law Inter national, 2000, p. 123 [hereinafter referred to as BAYEFSKY]. [l 9981 2 Supreme Court Reports 2 17 and reprinted in whole in BAYEFSKX pp. 455-505 [hereinafter refered to as the Qubbec Secession Reference] A summary is reprinted in appendix 1. On the Qukbec Secession Reference, see inter alia David SCHEIDERMAN (ed.), The Quebec Decision : Perspective on the Supreme Court Ruling on Secession, Toronto, James Lorimer & Company Ltd., 1999; Warren J.Newman, 71re Quebec Secession Reference :The Rule of Law and the Position of the Attorney General of Canada, Toronto, University of York, 1999; Mary DAWSON, "Reflections on the Opinion of the Supreme Court of Canada in the Quebec Secession Reference", (1999) 11, National Journal of Constitutional Law 5-48; Daniel TURP and Gibran VAN ERT, " International recognition in the Supreme Court of Canada's Qdbec Reference", (1998) 36 Canadian Yearbook of International Law 335-346; Yves LEBOUTHIL-

Secession and International Law

LIER, "La Cour supreme du Canada peut-elle rkpondre a une pure question de droit international dans le cadre du renvoi sur la skcession unilatkrale du Qukbec ?", (1998) 28 Revue gknkrale de droit 43 1-448; Donna GRESCHNER, "The Quebec Secession Reference: Good bye to Part V ? : [Constitution Act, 19821 ", (1998) 10 ConstitutionalForum 19-25; Alan C. CAIRNS, The Quebec Secession Reference: The Constitutional Obligation to Negotiate" (1998) 10 ConstitutionalForum 26-30; Guy TREMBLAY, La prockdure implicite de modification de la Constitution du Canada pour le cas de la skcession du Qukbec" , (1998) 58 Revue du Barreau [du Qukbec] 423-437. Quebec Secession Reference, paragraph 88. Id, paragraph 103. Statutes of Canada 2000, c. 26 [hereinafter referred to as the Clarity Act and reprinted in appendix 21. Statutes of Qukbec 2000, c. 46 [hereinam referred to as the Fundamental Rights Act and reprinted in appendix 31. Revised Statutes of Qukbec, c. C-64.1. For an analysis of the 1980 referendum, see Claude-V. MARSOLAIS, Le rbfkrendum confisguk, Montrkal, VLB kditeur, 1992. For a study of the referendums of 1980 and 1995, see Frkdkrick BASTIEN, A la prochaine ? :une rktrospective des rbfkrendums qukbkcois de 1980 et 1995, Montrkal editions Saint-Martin, 2000. The process was recognized by the Prime Minister of Canada, Brian Mulroney on November 7, 1990 in the debates of the House of Commons : I think the honorable member knows perfectly well that the involvement of the Prime Minister, the opposition leaders and almost all the premiers of the other provinces, and in fact the honorable Member himself, who was a federal member, in the 1980 referendum, was a clear indication "

"

l0

l1

l2 l3

l4

"

QuCbec's k g h t to Secessionist Self-determination: The Colliding Paths...

l5

l6

l7

l9

that the results of a democratic and free vote taken in the circumstances and according to standards that are normal and acceptable,were accepted by all Canadians in this country " : see PARLIAMENT of CANADA, House of CommonsDebates, Ottawa, Queen's printer, 34& Parliament, 2ndSession, 1990, vol. XI, p. 15254. Antonio CASSESE, Self-Determination of Peoples: A Legal Reappaisal, Cambridge, Cambridge University Press, 1995, p. 252. The English version of the 1980 referendum question was the following : "The Government of Qukbec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Qukbec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad - in other words, sovereignty - and at the same time, to maintain with Canada an economic association including a common currency; no change in political statusresulting from these negotiations will be effected without approval by the people through another referendum; on these terms, do you give the Govemment of Qukbec the mandate to negotiate the proposed agreement between Qukbec and Canada ? Yes or No ?", reprinted in BAYEFSKY, p. 5, footnote 11. The English version of the 1995referendum question read as follows : "Do you agree that Qukbec should become sovereign, after having made a formal offer to Canada for a new Economic and Political Partnership, within the scope of the Bill respecting the b r e of Qukbec and of the agreement signed on June 12,1995 ? Yes or No ?" ,reprinted in BAYEFSKY, p. 11, footnote 32. See Appendix 2, Art. 1 (1). See Appendix 2, Art. 1 (3). Reference Re Provincial Electoral Boundaries (Sask.), [l 9911 2 Supreme Court Reports 158, 160.

Secession and International Law 20

21

22

23 24

25 26

27

28

See Renk LEVESQUE, " I1 faut manifester plus d'ouvertme d'esprit - La rkaction du gouvernement du Qukbec au sornrnet du 9 juin ",Le Devoir, l l juin 1980, p. 6. [TRANSLATION]. ASSEMBLEE NATIONALE DU QU~BEC, Dbbats de l 'Assemblbe nationale du Qubbec, Qukbec, 1990, vol. 3 1, p. 4134. [TRANSLATION]. See in particular Patrick J. MONAHAN, Meech Lake :The Inside Story, Toronto, University of Toronto Press, 1991, pp. 252-259 and Lkon DION, Le duel constitutionnel QukbecCanada, Montrkal, Borkal, 1995, passim. Revised Statutes of Quebec, c. E -3.3. For the relationship between the concept of self-determination and the referendum at the international level, see in particular Yves BEIGDEBER, International Monitoring of Plebiscite, Referenda and National Elections :SelfDetermination and Transition to Democracy, Dordrecht, Martinus Nijhoff Publishers, 1994 and Daniel KINGBURY, Guns and Ballots Boxes :East Emor 5. Vote for Independance, Clayton, Monash Asia Institute, 2000. Revised Statutes of Quebec, c. C -64.1. See in particular Alain-G. GAGNON and Hugh SEGAL (ed.), The Canadian Social Union without Quebec :8 Criticial Analyses, Montreal, Institute for Research in Public Policy, 2000. Globalization, the Federative Deficit and the Case of Qukbec, speech delivered by Mr. Joseph Facal, Minister responsible for Canadian Intergovernmental Affairs delivered on the occasion of the XVIIP World Congress of the International Political Science Association at the MusCe du Qukbec, August 3, 2000, available on line at www.cex.gouv.qc.ca/saic/ang/ a000803.htrnl. The territorial integrity of Qukbec in the eventuality of a seces-

Qukbec's Right to Secessionist Self-determination: The Colliding Paths...

sion has been studied by some authors. See in particular T. M. FRANCK, R. HIGGINS, A. PELLET, M.N. SHAW and C. TOMUSCHAT, The Territorial Integrity of Qukbec in the Event of the Attainment of Sovereignty ",translated Erom L'intkgritk territoriale du Qukbec dans l'hypoth6se de l'accession a la souverainetk B, Expos& et ktudes, vol. 1, Les attributs d 'un Qukbec souverain, Qukbec, Assemblke Nationale, Commission d'ktude des questions affkrentes a l'accession du Qukbec a la souverainetk, 1992, pp. 377-461 and reprinted in BAYEFSKY, supra, note 9, pp. 241-303. See for a different approach on this issue Carol HILLING, a Les fiontikres du Qukbec dam l'hypoth6se de son accession a l'indkpendance : pour m e interprktation contemporaine de l 'utipossidetisjuris D, dans Olivier CORTEN et al. (dir.), Dimembrements d 'hats et ddimitations territoriales :l 'uti possidetis en question(S), Bruxelles, ~ditionsBruylant, 1999, pp. 223 et ss. See the Motion recognizing Aboriginal Rights N, March 20,1985, reprinted in Les fondements de la politique du gouvernement du Qukbec en mati2re autochtone, Qukbec, Minist6re du Conseil exkcutif, 1988. See on this motion Chantal BERNIER, " La nkgociation de l'autonomie politique des Autochtones du Qukbec et le droit international ", (1984) 1 Revue qukbkcoise de droit international 359. On the right of peoples to self-determination,see the following recently published analyses: Joshua CASTELLINO, International Law and Self-Determination,The Hague, Martinus Nijhoff, 2000; Jorge M. VALADEZ, Deliberate Democracy, Political Legitimacy and Self-determination in Multicultural Societies,Oxford, Westview Press, 200 1;Robert MCCORQUODALE, Self-Determination in International Law, Brookfield, Ashgate, 2000; Thkodore CHRISTAKIS, Le droit d "

29

30

Secession and International Law

l 'autodktermination en dehors des situations de dkolonisation, Aix-en-Provence, Universitk d' Aix-Marseille 111, Centre d'ktudes et de recherches internationales et comrnunautaires, 1999;Margaret MOORE (ed.), National Self-Determination and Secession, Oxford, Oxford University Press, 1998; Markkhu SUKSI (ed.), Autonomy: Applications and Implications, The Hague, Kluwer International, 1998; Thomas D. MUSGRAVE, Self-Determination and National Minorities, Oxford, Clarendon Press, 1997; Wolgang DANSPECKGWLER and Arthur WATTS (ed.), Self-Determination and Self-Administration: A sourcebook, Boulder, L p n e Rienner Publishers, 1997; Hurst m, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights, revised edition, Philade phia, University of Pennsylvania Press, 1996;Elizabeth CHADWICK, Self-Determination, Terrorism and the International Humanitarian Law ofArmed Conflict, The Hague, Martinus Nijhoff Publishers, 1996; Antonio CASSESE, SelfDetermination of Peoples :A Legal Reappraisal, Cambridge, Cambridge University Press, 1995; Chnstian TOMUSCWT (ed.), Modern Law of Self-Determination,Dordrecht, Martinus Nijhoff, 1993.

SECESSION IN NORTH AMERICA: THE UNITED STATES & PUERTO RICO J. L. A. de Passalaqua' I. Introduction The United States acquired Puerto Rico and the adjacent islands2 as booty of war in the Spanish-American War3. Puerto Rico has never joined the United States in terms of an incorporated territory of the United States. Nor has it ever been afforded the right of selfdetermination by the United States. Under the United States Constitution, it has been declared by the Supreme Court of the United States to be a territory of the United States appurtenant thereto4. Thus Puerto Rico, rather than a case of secession5fiom the United States, is a case of self-determination which has never been settled. It is the purpose of this paper to draw some general insights concerning international relations and international law, with regard to secession, from the example of the relationship between the United States and Puerto Rico. 11. Historical Aspects Puerto Rico was a Spanish colony from its discovery by Christopher Colombus in 14926 to its cession by Spain7 to the United States in 1898. The United States declared war on Spain in April 18988.As part of the campaign to wrest Puerto Rico away from Spain, the United States invaded Puerto Rico on 25 July of that yearg. By the later part of August, an armistice was declared, and in Octoberloof the same year, General Ortegall had capitulated and surrendered the Island to General Miles, commander of the invading United States army. General Miles occupied the Island and instituted a military government. Footnote texts at the end of each chapter

Secession and International Law

On April 11, 1899, the United States and Spain proclaimed the Treaty of Paris of 10 December 1898 whereby, among other things12,Spain ceded sovereignty over Puerto Rico" to the United States. Congress was entrusted with the determination of the civil rights and political status of Puerto Ricoi4. Congress acted quickly on this responsibility. In 1900, Puerto Rico was organized like a United States territory. Puerto Ricans were given political status as citizens of Puerto Rico; a civil government along United States lined5was established, controlled by United States citizens and residents as appointees to the executive, legislative, and judicial branches of the insular government. Puerto Ricans were not accorded representation in the Congress of the United States, nor were they granted United States citizenship.l6 In 1917, under the Jones Act17 Congress reorganized its Puerto Rican colony in much the same manner, with a greater degree of autonomy. The most important change at this time was a grant of citizenship to certain Puerto Ricans18. Again in 1950-52, Congress widened local autonomy to some degree and allowed Puerto Ricans to accept its terms and conditions or to reject them, embodying them in a Federal Relations Act which did not include a substantial revision of Puerto Rico's status as a nonincorporated territory of the United States appurtenant thereto. Thus it has remained to the present time. 111. Legal Issues

A. Constitutional Issues United States Constitution The Constitution specifically empowers the Congress of the United States with authority over the territory and assigns the property of the United States:

Secession in North America: The United States and Puerto Rico

"The Congress shall have power to dispose of and make all needM Rules and Regulations respecting the Territory or other Property belonging to the United States and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."lg In addition to this specific grant of authority, the Constitution has a general grant of authority in this respect: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of representative^."^^ Moreover the President of the United States has the power to conclude Treaties, with the advice and consent of the Senate, binding on the United States: "He [the President] shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose Appointments are not herein otherwise provided for, and whch shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they thmk proper, in the President alone, in the Courts of Law, or in the Heads of Departments2'.Treaties approved in this manner shall be equivalent to federal statutes and shall be deemed the Law of the Land until they are repealed tacitly or expressly: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not~ithstanding."~~

Secession and International Law

The Treaty of Paris of 10 December 1898 was negotiated and made by the President of the United States through his appointed representatives. It was advised to and consented to by two thirds of the Senate of the United States. It was proclaimed by the President of the United States. Thus the Treaty as a whole and in all of its parts is the Supreme Law of the Land. Some of the articles of the Articles and Terms of the Treaty have already been executed and are no longer operative. But others have not, nor have they been superseded or revoked and are still operative. Thus Article I1 and Article IX are still the Law ofthe Land since they have been neither superseded or revoked. Article I1 of the Treaty transfers sovereignty over Puerto Rico from Spain to the United States, which thus exercises sovereignty over the Island: Puerto Rico is Territory and Property of the United States. Sovereignty over the Territory and Property of the United States is vested in Congressz3.Article IX leaves the future of Puerto Rico and Puerto Ricans in the hands of Congress which is in agreement with the Constitutional mandate. As to secession, the Constitution of the United States is silent. However, the United States fought a great war ostensibly to deny this right to the seceding Confederate States24. Puerto Rican Constitution The Constitution and laws of the Commonwealth of Puerto Rico are silent on the question of secessionzs. B. United Nations General Assembly Resolutions l . U N General Assembly Resolution 748

The United States agreed to submit reports to the United Nations General Assembly on the status of its colonies. Puerto Rico

Secession in North America: The United States and Puerto Rico

was one of them. Reports were submitted, if grudgingly, to the Fourth Committee of the General Assembly. As the Fourth Committee became engulfed in this concern26and the number of former colonies grew with the Communist block supporting separation of colonial fiom metropolitan States, it was deemed useful to create a Sub-committee of the Fourth Committee charged with supervising decol~nization~~. As part of the process of establishing greater autonomy for Puerto Rico, the United States notified the United Nations General Assembly that it would no longer submit the voluntary reports under Article 73e of the United Nations Charter2*. The General Assembly acquiesced and in doing so took notice that Puerto Rico had acquired a new status but it did not conclude that Puerto Rico was no longer a colony of the United States29. 2. W General Assembly Resolution 151 4 (m) As the movement for decolonization increased, so did pressure from colonial counties seelung independence, some of which resorted to open war against their Metropolitan States which they saw as oppressors. This prompted the United Nations General calling on metropolitan Assembly to adopt Resolution 1.514 (m) States to respect the rights of self-determination and independence if so demanded30. As far as Puerto Rico was concerned, selfdetermination applied to it but there had been no demand, peaceful or otherwise, for self-determination or independence from a majority of the people or even a substantial amount of the people.

(m

3. W General Assembly Resolution 1541 Resolution 1541 was approved by the General Assembly at the same time it approved Resolution 1514. The latter was sponsored by metropolitan States in an attempt to refine conditions under which colonies could be said to have reached such a degree of self-

Secession and International Law

rule that they were no longer considered to be colonies. Three forms were envisaged: (1) independence; (2) a State in free association with another, or associated free State; and (3) fusion with a State. Puerto Rico has been called a "Commonwealth" since the United States Congress moved to grant it greater autonomy in 1950-52. Curiously enough, the term "Commonwealth" is officially translated into Spanish language by the Government of Puerto Rico as "Free Associated Statef131.However, as has often been pointed out, it is neither a State, nor fiee, nor associated. It is not a States2because sovereignty, both internal and external, lies in the Congress of the United States, not in the People of Puerto Rico. Nor is it freely associated with the United States, since it is a "territory appurtenant to the United Statesvs3.

4. UN General Assembly Resolution 2625 ( l ) The General Assembly's 25' anniversary Resolutions4again confirms the right of peoples to self-determination and reiterates the three prototypes of self-deterrninati~n~~ set forth in Resolution 1541 (XV In developing these prototypes, the UN General Assembly has had to deal with situations arising out of free association and fusion of States, as well as with situationswhere the States are discontinuous in territory andor different in culture36.Thus, in the articles of association the General Assembly considered that each member State of the association should be guaranteed the protection of the rights of self-determination, so that an agreement of association would not be a subterfuge to mask a form of neocolonialism. Thus, each party in the association would retain the right to dissolve the association unilaterally for whatever reason it should have. Regarding Puerto Rico, the present claims to fiee association contain no provisions for unilateral withdrawal fiom the association. On the contrary, the law surrounding United States of America -

Secession in North America: The United States and Puerto Rico

Puerto Rico relations place the disposition of the Island in the hands of the United States C o n g r e ~ sCongress ~~. has unilateral power to dispose of Puerto Rico in whole or in part. The Island has no authority to withdraw fkom United States sovereignty, in whole or in part. The United States can require that Puerto Rico adopt the English language, or it can dismember its territory apportioning it elsewhere; Puerto Rico has no legal authority to refuse such Congressional action. On the question of fusion, the General Assembly is again wary of masking some form of neocolonialism. Thus, especially where the two States are culturally or ethnically disparate, it sees some protection in the ability of either State unilaterally ending the relationship, or operating a fusion. Under the present relations with the United States,Puerto Rico has not fused with the United States3*. Fusion under United States practice would probably have to take on the characteristics of incorporation into the United States as a Territ~$~ or a State of the United States or a State already belonging to the Union. If such a decision were to be agreed on between them, provisions would have to be made for unilateral withdrawal - secession - from the Union. In principle, unilateral withdrawal or secession, has been ruled out by the United States Civil Wafo.Even if provisions were made to accommodate Puerto Rico, it would go against the principle of equality within the Union. In addition, it would require a constitutional amendment and it would open up a demand for an equivalent right among the other 50 Member States in the Union41.

5. U N General Assembly Resolution 3382" In this Resolution, the UN General Assembly reaffirms the legitimacy of a people's struggle for territorial integrity from colonial subjugation by all available means43.While the Resolution is drafted

Secession and International Law

within the context of armed struggle during the nineteen seventies in Angola and Palestine", the principle it reaffirms is equally applicable to the colonial situation of Puerto Rico and its struggle to wrest its due rights from the United States within its colonial status45. C. The Universal Declaration on Human Rights46 and related treaties47 The Charter of the United Nations brands colonialism as a threat to international peace and security.48It has also been said repeatedly that the way to avoid the evils of colonialism is to observe a colony's right to self-determinati~n.~~ This consideration is confirmed by both of the United Nations treaties giving legal effect to the Universal Declaration of Human Rights. Article 1 common to both treaties50states that: l. 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. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

N.Discussion A. Legitimacy of self-determination Peoples and cohesive national groups have a right to choose for themselves a form of political organization as well as the relationships they wish to sustain with other groups. The choice of

Secession in North America: The United States and Puerto Rico

a form which has been sanctioned by a majority of States through their practice and through the General Assembly of the United Nations may be: - independence as a State; - association with other groups in a federal State; - autonomy in association with a federal or unitary State; - assimilation with a federal State or in a unitary State51. This right has developed slowly in international law. While the principle of the choice of form has been set forth at least since the sixteenth century52it is not until the latter part of the twentieth century that it received its greatest development through the triple circumstances that certain peoples asserted their right to selfdetermination,the economic burden pressed on metropolitan States with regards to maintenance of colonies and the movement for colonial emancipation. The legal and human rights of peoples and nations complement the legal and human rights of individuals as a whole and complements and expresses the legal and human rights of its constituent parts. Guarantees and standards protecting the treatment of the individuals that make up a nation or a people tend, by their emphasis on justice and equality, to protect not only the individual but also the group: the people or nation53.The collective right of a people or nation to self-determinationmay be expressed as a choice for independence as a State by the people of Puerto Rico or by joint agreements between Puerto Rico and the United States or other groups of States, instituting association with or in a federal State, or autonomy or assimilation in a federal or a unitary State.54 However, as Ian Brownlie points "...Until recently the majority of Western jurists assumed or asserted that the principle [of self-determination of peoples] had no legal content being ill-defined concept of policy and morality56.

Secession and International Law

Since 1945, developments in the United Nations have changed the position, and Western jurists now generally admit that selfdetermination is a legal principle57.The generality and political aspect of the principle do not deprive it of legal content in the South West Africa cases (Preliminary objection^)^^. The International Court [of Justice] regard the terms of Article 2 of the Mandate Agreement concerned as disclosing a legal obligation, in spite of the political nature of the duty 'to promote to the utmost the material and moral well-being and the social progress of the inhabitants of the territory. '..." Secession is intimately joined to self-determination. Unfortunately, this alternative is espoused when the parent or metropolitan State refuses to recognize the right of self-determination. The nationalities problem in Spain and Indonesia are opposite examples. Spain has attempted, with greater59or lesser60 success, to defhse secessionist movements by establishing decentralization and recognizing different degrees of autonomy and less stringent bonds to the Central Government. Indonesia, on the other hand, has attempted to repress61these movements. The former has had some success in maintaining the integrity of the Spanish State. The latter appears to be on the verge of falling apart. Secessionistmovements are irrepressible features closely linked, but not exclusive, to the right of self-determination.Nationalities within multinational States will claim the right of self-determination with more or less vehemence, depending on the nationality's perception of the encroachment of the majority group, their cultural differences and their adherence to if2.The international community has shown itself incapable of discerningbetween claims to the right to self-determination which reflect genuine national desires and would therefore be "legitimate" and those which are fostered by foreign interests for their own ends63.

Secession in North America: The United States and Puerto Rico

At the present time, while the right of self-determination has been recognized as a right inherent to all Peoples, the international community has become aware that it may have spoken hastily: most States making up that community are multinational States. Do their constituent nationalities enjoy an inalienable right to selfdetermination? After having enunciated a principle to that effect, it further attempts to tone it down: Certainly peoples have an inalianable right to self-determination, as long as such selfdetermination does not place existing States in danger of dismembermenP4.However, now that flagrant colonialismhas only a few examples left65,most claimants of the right of self-determination are divisions pertaining to multinational States. This is a problem which promises a very long duration. Today, under international law, there can be no question that Puerto Rico, as an "unincorporated territory of the United States appurtenant thereto", qualifies as a colony of the United States. This is confirmed by the Constitutional mandate whereby it is up to the Congress of the United States to dipose of its property. Thus under both municipal and international law the people of Puerto Rico have not exercised their right of self-determination. The fact that they have not chosen to demand this right by violent means but have preferred more gentle and peacehl means should not be held against them or ignored.

Appendix List of Legal Documents - Constitution of the United States of America, vol. 1, L.P.R.A., p. 163, 1 Stat. 10. - Treaty of Paris of l 0 December 1898, vol. 1, L.P.R.A., p. 16, 30 Stat.754. - Foraker Act of 1900, vol. 1, L.P.R.A., p. 24, 3 1 Stat. 77.

2 17

Secession and International Law

- Jones Act of 1917, vol. 1, L.P.R.A., p.54, 39 Stat. 95 1. - Federal Relations Act ( ' L . 600, ' L . 447), vol. 1, L.P.R.A., ' L . 81-600, 64 Stat. 3 19; ' L . 82-447, 66 Stat. 327 United Nations Documents U N 648 (VI., of 10 December 19.52, United Nations Resolutions, Series I, Vol.IV (1952-53), page 119. UN General Assembly Resolution 748 0 , of 27 November 1953, United Nations Resolutions, Series I, Vo1.N (1952-53), page 198. U N General Assembly Resolution 1514 (m), of 14 December 1960, United Nations Resolutions, Series I, Vol.VII1, (196062) page 188; United Nations General Assembly Official Records, 15" Session, Supplement No. 16 (A/4684), p.66 UN General Assembly Resolution I541 of 15 December 1960, United Nations Resolutions, Series I, Vol.VIII(l96O62), page 153. UN General Assembly Resolution 2625 (XXV), United Nations Resolutions, Series I, Vol.XII1, (1970-7 l), pag. 337; UN General Assembly Official Records, 25" Session, Supplement No. 28 (A/8028), p. 121. UN General Assembly Resolution 3382 (q, of 10 November 1975, United Nations General Assembly Official Records., 30" Sess., Supp. No. 34 (A/10034), p. 84. Universal Declaration of Human Rights, UN General Assembly Official Records, 3rd Session, Resolutions (A/ 810), p. 71. International Covenant on Civil and Political Rights, 999 U N Treaty Series 171 International Covenant on Economic, Social, and Cultural Rights, 993 UN Treaty Series, 3. Bibliography Louis Cavare : Le droit international public posit% Pedone, Paris, l 970.

(m,

Secession in North America: The United States and Puerto RICO

D.P. O'Connel: International Law, 2nd Edition, Stevens, London, 1970. Adolfo MIAJA DE LA MUELA: Introduction a1 Derecho International Publico, 5ta edicion, Atlas, Madrid, 1970. Maurice BARBIER: Le Comiti de dkolonisation des Nations Unies, L.G.D.J., Paris, 1974. Endnotes l Pease consult the Notes on the Authors "Puerto Rico" is an archipelagic island in the Caribbean constituted by the island of that name, and the outer-islands of Culebra, Culebrita, Mona, Monito, Desecheo, Vieques and a number of islets and cays related to it politically and geographically. It is the smallest of the Greater Antilles (Cuba, Hispaniola [Dominican Republic and the Republic of Haiti], Jamaica and Puerto Rico) and the only one not to constitute a sovereign autonomous and independent State. See: Treaty of Paris of l 0 December 1898 between the United States and the Kingdom of Spain, 30 Stat. 754. Downes v. Bidwell, (190 l), 182 US 244; De Lima v. Bidwell, (1900), 182 US 1.. Numerous cases have confirmed these opinions up to the present time. At the time of this writing (February 2001), the integrity of this Territory has been put in doubt by a movement promoting the secession of one of its outer-islands, Vieques, in order to incorporate it to the Virgin Islands (another unincorporated territory of the United States in the Caribbean), for the purpose of allowing the United States Navy to continue war practices on the island. If the United States succeeds in its purpose, the island would be seceeded from Puerto Rico. Colurnbus discovered the island of Puerto Rico (called "Bonkkn" by its native mhaabitants) on 19 November 1493 and claimed the Island in the name of Queen Isabella of

Secession and International Law

Castille and Ferdinand of Aragon, under whose patronage he was sailing. Spain granted Spanish citizenship to its subjects in Puerto Rico and full representation in the Spanish cortes. In 1897, Puerto Rico was granted a Charter of Autonomy, but was not granted sovereignty. Carta Autondmica de 1897, 1 L.P.R.A. 1 The motives on the part of the United States have been drawn into question with regards to its actions both before and after the explosion on the "USS Maine" and indicate this was a war of aggression designed to acquire territories in the Caribbean Sea and the Pacific Ocean that were under Spanish sovereignty and coveted by the United States. For the United State's vision of its military conquest of Puerto Rico, see: Miller, Historia de Puerto Rico. For the Spanish point of view of its military defense of Puerto Rico, see: Rivero: La guerra hispano-americana, Instituto de Cultura de Puerto Rico, San Juan, Puerto Rico. Spanish Governor and chief of the Spanish armed forces in Puerto Rico. Cuba received independence, Spain ceded sovereignty over the Philippines and Guam in the Pacific to the United States. Treaty of Paris of l 0 December 1898, Art.11, 30 Stat.754 Treaty of Paris of 10 December 1898, Art.IX, 30 Stat. 75 A territorial government had been organized for Puerto Rico under Spain, granting autonomy to Puerto Rico, ruled by a Council subject to a Governor appointed by Spain. Puerto Ricans possessed Spanish citizenship, and were represented in the Spanish Legislature (Cortes). See Foraker Act (Organic Act of 1900 for Puerto Rico), 3 1 Stat. 77, L.P.R.A. Organic Act of 1917for Puerto Rico, 39 Stat. 95 1. At the same time, under another Jones Act, the Philippines was slated for independence.

Secession in North America: The United States and Puerto Rico l8

l9

20 21

22

23

24

Section 5 of the Jones Act purports to extend United States citizenship to all Puerto Ricans. However, it is obvious that the United States Congress was not aware of the intricate citizenship of the native inhabitants of Puerto Rico, which granted civil and political rights to a number of foreign (non-Spanish) citizens who still were inhabitants of the Island under the "Pacto de Familia" (subscribed by King Charles I11 of Spain) and the "Ckdula de gracias" of 1793 granted by King Charles 111, and the "Ckdula de gracias" of 18 16 granted by King Charles IV. This is painhlly clear by the repeated amendments to Section 5,culminating in the Immigration and Nationality Act of 1942, 8 U.S.C. 1481, where all Puerto Rican inhabitants were declared to be United States cititizens. United States Constitution, Article IV, Section 3, Clause 2. United States Constitution, Article 1, Section 1 United States Constitution, Article 11, Section 2, Clause 2. Emphasis supplied. United States Constitution, Article VI, Clause 2.- Emphasis supplied. Thus, in Municipal Law, on the issue of the dismembering of Vieques by fostering its secession from Puerto Rico and attaching it to the Virgin Islands so that the Navy can continue its war games and practices, there is no legal barrier in the laws of the United States. Under International Law it would be a flagrant violation of human rights perpetrated by a metropolitan power against its colony. In terms of political considerations it would have a detriment a1 effect on the international prestige and image of the United States. 1860 (61) - 1865.The fnst Ordinance of Secession was approved by South Carolina on 20 December 1860 and rejected by the Federal Government. In effect, this was a signal to war. The Union's refusal to evacuate Fort Sumter and the subsequent attack within a few months by Confederateforces was the conse-

Secession and International Law

quence of these acts. In all, 11 States seceded from the Union and were forced back into the Union after a long and bloody war. They are also silent on the secession of part of its territory and population fomented by the Navy of the United States for its own purposes. Decolonization increased as metropolitan powers found increasingly that it was no longer economically feasible to maintain their colonies in view of diminishing returns. See: Julius Nyerere: Neo-colonialism. The Sub-Committee on Decolonization See: Charter of the United Nations, Article 73 e, October 1945, United Nations, DPI. UN General Assembly Resolution 748 (VII) It is interesting to note that despite its universal tone, this Resolution was passed mostly in terns of Afncan colonies seeking independence from their metropolitan States. It is also interesting to note that non-metropolitan States favored the Resolution while metropolitan States, including the United States, opposed it. 31 "Estado Libre Asociado ". 32 According to Accioly, the definition of a State implies certain characteristics such as: [l] a people, inhabiting [2] a territory, [3] politically organised, [4] under a Government given by itself, which exercises the [5] sovereignty of the people, both [a] externally (independence) and internally (autonomy). See: Hildebrando Accioly: Manual de DerechoInternacional Publico, Saraiva, Sao Paolo, 1985, p. 16. See also: 1 Oppenheim (Lauterpacht): International Law, 7th Ed., McKay, New York, 1963, pp. 117-335. 33 Downes v. Bidwell, (1900), 182 U.S. 244. 34 Declaration on Principles of International Law concerning Friendly Relation and Co-operationamong States in accordance

Secession in North America: The United States and Puerto Rico

35

36

37

38

39

40

41

with the Charter of the United Nations, U N General Assembly Resolution 2625 (XXV), of 24 October 1970, United Nations General Assembly Offcial Records 25th Session, Supplement, No. 28 (A/8028), p. 121. UN General Assembly Resolution 2625 (XXV), principle 5, para. 4. See: UN General Assembly Resolution 648 (VII). See: Constitution of the United States of America, Treaty of Paris of 10 December 1898, Foraker Act of 1900, Jones Act of 1917, Federal Relations Act, discussed previously. Puerto Rico has not been incorporated as a territory of the United States or as a State of the Union. See: Constitution of the United States of America, Treaty of Paris of 10 December 1898, Foraker Act of 1900, Jones Act of 1917, Federal Relations Act, discussed previously. Territory with a capital "T" is a word of art which under United States Constitutional Law theory indicates the incorporation of a particular land mass as a part of the national territory of the United States. See: Hawaii v.Mankichi, (1903), 190 US. 197. Although the Civil War was fought over the right of States of the Union to secede, the actions of the United States seem to accept the reality and the legal effect of secession. In 1863, during the American Civil War, Congress created the State of West Virginia within the territory of the seceding State of Virginia, despite a constitutional prohibition. After the defeat of the Confederate secessionist States in 1865, these were not treated under Reconstruction as part of the United States.They had to be readmitted to the Union, albeit Virginia minus a large portion of its former territory: e.g., Mississippi was not readmitted to the Union until 23 February 1870. Some of them, e.g. Alaska and Hawaii, are already considering

Secession and International Law

"

43 44

45

46

47

48

49

50

the advantages that would be open to them if they were to have different political ties with the United States or to the rest of the States individually. 2400th plenary meeting, 10 November 1975. UN General Assembly Official Records, 30th Sess., Supp. No. 34 (All OOM), p.84. Id., p.1. The Palestinian struggle for self-determination has been ongoing first against the British and then against the Israeli for well over half a century. Puerto Ricans have chosen pacific rather than violent means to assert their claims to specific nationality, and a preference for autonomy over separation or fusion as expressed in several non-binding referenda and in general elections. Proclaimed by General Assembly Resolution 2 17 (1II)of 10 December 1948. U.N.G.A.O.R., 3rd Sess., Resolutions (A/ 810), p. 71. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, and International Covenant on Economic, Social, and Cultural Rights, 993 U.N.T.S. 3.. See: Charter of the United Nations, 1983 Yearbook of the United Nations 1325, especially Article 73, introductory statement and para. "a", "W', and "c". See ante: General Assembly Resolutions 648 (VII), 1415 (XV), 1541 (XV), 2625 (XV), etc. International Covenant on Civil and Political Rights, 999 UN Treaty Series 171, and International Covenant on Economic, Social, and Cultural Rights, 993 UN Treaty Series, 3, Article 1. The United States is a Party to the former and has signed the Final Act of the latter. Hence it is obliged to honour the terms of the first. By its signature, it is bound not to perform acts which would defeat the object and purpose of the treaty even if it has not yet ratified it or if it is

Secession in North America: The United States and Puerto RICO

51

52

53

54

55

56

57

58

not yet entered into force. See customary international norms as expressed in theEenna Convention on the Law of Treaties, Art. 18. See: Brownlie: Principles of Public International Law, 5th Edition, Oxford, 1998, at p. 599. See: Treaty of Cateau-Cambrisis between France and Spain concerning the people of Nice. See: Ian Brownlie: Principles of Public International Law, 5th Ed., Oxford, 1998, p. 599. See also: Rousseau: Trait6 de Droit International Public, Sirey, Paris. Ostensibly a federal State, the United States of America is rapidly becoming a centralized State and, perhaps, even unitary, by collecting more power in the federal government which was formerly allocated to the governments of its member States. Ian Brownlie: Principles of Public International Law, 5th Ed., Oxford, 1998, pp. 599-600. Brownlie has the following footnote at this point: "Prior to 1945 references in the legal sources are rare". See, however, the report of the Committee of Jurists on the Aaland Islands question in 1920: see Padleford and Anderson, A.J.[I.L.] (1939) 465 at 474, Cf Briggs, [ n e Law of Nations: Cases, Documents and Notes (2nd e h . , 1952)lp. 65; Hyde, [International Law Chiefly as Interpreted and Applied in the United States (3 vols., 2nd e h . , 19491 i. 363, 389; Hackworth, [Digest of International Law (8 vols. 19404)] i. 422. The principle is referred to in Soviet treaties concluded in the period 1920-22 ." Brownlie has the following footnote at this point: "See Scelle, Spiropoulos Festschrif Quincy Wright, 98 Hague Recueil (1959,III), [p.] 193; Wengler, 10 [Revue hellenique de Droit International] (1M8), [pp.] 26-39." Brownlie has the following footnote at this point: "ICJ

Secession and International Law

59

60

61

62

63

64

65

Reports (1962), 3 19. Cf the division of opinion in the South West Africa case (Second Phase), ibid., (1966), [p.] 6. Catalonia (Cataluiia) seems to be dealing with its separatist movements peacefully and sensibly within the Spanish legal order, which thus far has preferred to yield than to use force. Spain has attempted to deal with Euskadi (Land of the Basques) with measures similar to those used with its other nationalities. However, repression under previous govemments on one side and to a lesser degree at present, and violence on the other, have led the secessionists, rightlyor wrongly, to conclude that nothing short of separation will solve their problems. Thus that unhappy land is tome by violence. East Timor, for example, has been subjected to military repression and genocide, as have other islands, by the Central Government. Galicians and Catalonians are certainly different from the Castillian majority in Spain. However, differences between Castillians and Basques is even greater. See: Buchheit: Secession: The Legitimacy of Self Determination, 2 16-218 (1978). See also: Cassese: SelfDetermination of Peoples, Grotius, Cambridge, 1996. UN. Declaration on the Rights and Duties of States, Resolution 2625 (XXXV) ante, principle 5, chap. 7 and 8, UN General Assembly Official Records, 25th Sess., Supp. No. 28 (A/8028), p. 121. Of which we must not forget Puerto Rico and Virgin Islands in the Caribbean, and Guam and other Islands in the Pacific which are also unincorporated territories of the United States appurtenant thereto.

LATIN AMERICA: SELF-DETERMINATION, MINORITIES, INDIGENOUS PEOPLE, STABILITY OF BORDERS AND PROBLEMS OF SECESSION Fernando Flores* I. The Discovery and Conquest of the Americas To refresh your memory of history I would like to give a brief synopsis of the discovery and conquest of the Americas. As you know, Chnstopher Columbus, in an attempt to fmd the West Indies, stumbled upon the American continent. The subsequent invasion was motivated by the existence of gold and rich empires. Names like Pizarro, Altnagro, Balboa and others are written in the pages of history that concern the conquest. The Portuguese also took part in the conquest, as they arrived in Brazil. The conquerors were surprised to encounter the indigenous people that lived on the land and were amazed at their organization, their rich culture and love of the land. There were plantations of products that the Spanish had never seen before, which aroused their curiosity even more. Accross the land and the sea the conquest gained ground by the force of arms, with horses scaring the indigenous people and with the desire for gold that filled the thoughts of the conquerors and gave them the blessing of the Emperor Carlos V. The Spanish made the indigenous people believe that the horses were immortal. When a horse died in combat the Spanish would bury it so that the indigenous people would not see the fallen corpses. Eventually, the Spanish betrayed the confidence of the indigenous people through bloody wars of extermination Footnote texts at the end of each chapter

227

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11. Spanish Rule

Ethnicity One of the main consequences of the conquest was the fusion of the two races, the European and the aboriginal ethnic groups, which rapidly emerged as a dominating majority and threatened the very existence of the two individual races. The mixture between these two races is known as mestizo (sometimes also called "criollos" which is analogous to the "creole" group), which as we will see later became the principal actor of the success of independence in Latin America. Economic factors The indigenous people were immediately subjected not only to the power of guns but also to the authority of economic impositions through a series of tributes and taxes that practically converted them into slaves that were forced to work merely to fulfil1this obligation. Other mechanisms of economic domination included the systematic downgrading of the ability and individuality of the indigenous people. Political aspects When a territory or province was subdued, the conqueror became the single supreme authority, which was enforced by a governor, or viceroy, in the name of the Spanish Crown. The governor founded the cities and appointed the other political authorities. Society and social life Due to the mixture of cultures, a new social class appeared; the mestizos became the middle class. The Spanish were the dominators and the indigenous were the dominated. The middle class people along with the Spanish could at times inflict very harsh treatment on the indigenous people.

111. Independence

Political aspects The territory of Latin America was divided into districts, which were political and judicial governing entities. The segregation or addition of territories to a district was done only by Cbdula Real and for that reason, all jurisdiction was under the power of the district except when the territory was under the dependence of another. Viceroys had no defined limits and their terms were those of the district that compounded a sort ofjurisdiction of the president of the respective district. Administrative situation One of the facts that produced sensitivity among the mestizos, lightening the first sparks of independence and starting them on their path to self-determination, was the way administration was handled. The criollos had been gaining stronger positions in the political, economic and social spheres, which greatly concerned the Spanish Crown who decided to appoint mainly Spanish born judges in the districts. Also, some reforms imposed by the Spanish Bourbons in the 18th century provoked more sensitivity between the rulers and the colonial people. An important reforrn was the creation of the so called intendencies. These were headed by an official who was given extensive powers with the intention of increasing the collection of revenues. This measure produced great discontent among the mestizos or criollos, who felt they were being excluded from administrative positions. Social aspects The rapid expansion of the mixed races made them a large segment of the population, which produced unemployment following as a result of the lack of capacity to accomodate such a

Secession and International Law

large work force. For this reason discontent also flourished in this important segment. External developments It is important to mention the events of pre-independence, such as when Spain decided to enter into an alliance with France at the end of the 1700s, opening up the road to political and economical developments that burdened the relations with their colonies. Important factors were trade and commerce. When the Spanish Crown let loose the monopoly on trade with the colonies, the latter gained a great opportunity to trade with other countries and in new markets. This development also opened a door to ideas of economic self-determination. By the early 19" century, the Spanish and the Spanish Americans were represented in the Spanish Parliament but the mestizos and indigenous people were denied such representation. In 18 10 a new Constitution proclaimed the Spanish possessions as fully integrated into the kingdom and restored the monopoly on trade. These measures increased the desire for selfdetermination among the mestizos who were not inclined to accept set-backs in gaining autonomy. Furthermore, when Napoleon invaded the Iberian peninsula in 1807 and the Spanish citizenry rebelled against him, the movements for secession began in Latin America. Wars of independence (self-determination) In Europe, the advances of Napoleon Bonaparte and Fernando's loss of the royal crown in Spain aggravated the Spanish economic situation. An internal conflict between France and England and a civil war between two factions of the Spanish people further weakened the authority over the Spanish American colonies. These political and commercial factors as well as divided loyalties marked that period of unprecedented movements of self-determination. The American independent movements began in 1808 with great vigor

Latin America: Self-determination, Minorities, Indigenous People...

and in the political sphere the dominated population gathered much strength. The mestizos were united in their striving for liberty and commenced a movement towards self-determination. It is important to mention the date 10" of August of 1809 which is a remarkable moment in history, because the first ideals of liberty were proclaimed in Quito, which was later known as the "El Primer Grito de Independencia en AmCrica", First Claim for Independence in America. It became the seed of libertarian ideals that later germinated throughout America, giving way to the independence of many nations, based on the principles of independence, sovereignty and self-determination. By 1810, the SpanishAmerican revolutions had marched on to Caracas in April, Buenos Aires and Bogota in July. There were also revolutions in Mexico and Chile. Over the next decade most of the Spanish-Americans had taken up arms to support their movements of self-determination and independence. After three centuries of colonial rule, the flag of independence was waving in most of Spanish and Portuguese America. By 1820, the emancipation wars were vigorous and had spread to the whole continent. During those years three important leaders emerged: Miguel Hidalgo in Mexico; Sim6n Bolivar known as "Libertador" (the liberator) in northern South America and Josk de San Martin in the south. In the east, as the Portuguese Court moved to Rio de Janeiro, a peaceful transition made Brazil an independent nation in 1822. In the south, independent forces achieved self-rule for Argentina, Chile, Montevideo1 and the upper Peruvian region. Finally, in the north, the patriots lead by Sim6n Bolivar and his general Antonio JosC de Sucre won important independence wars like Carabobo (Venezuela) and Boyaca (Columbia) in 1819, the battle of Pichincha near Quito in 1822 and Ayacucho in 1824.

Secession and International Law

W. Gran Colombia After having achieved independence, Bolivar tried to merge several regions into a Confederation of the Andes. This unification process formed the Gran Colombia which included Ecuador, Venezuela and Colombia2. Various factors played a role in Bolivar's founding of Gran Colombia. - He had a strong political and military power that facilitated theunity and solidarity of the recently formed republics. - The wars of independence required economic and human resource, and therefore relied on unification and solidarity. - The existence of small political and military forces that jeopardized that unity. - The need of a strong union to resist a possible reconquest by the Spanish Crown. On the political-administrative side, the Gran Colombia was divided up into three major districts: The District of the North (the former Capitania General of Venezuela);the Central District: the former Nuevo Reino de Granada, with two departments; and the District of the South: the actual Republic of Ecuador including the departments of Quito, Guayaquil and Cuenca. Stronger than the call for unity were the factors that caused the disintegration of the Gran Colombia: - The intendents that headed the departments were not national elements but rather military people of the old Venezuela and Nueva Granada. This created widespread discontent among the population and further encouraged the idea of secession that since colonial times had been gestating in the context of the political and administrative divisions. - Regionalism was a source of antagonism, as experienced through the differences in geography, economy and administration. - In politics, finding a system of government acceptable to the entire population was not an easy task especially after three centuries

Latin America: Self-determination, Minorities, Indigenous People...

of colonial rule. Some wanted a powefil state to complete the victory over Spain and to serve as an instrument against political and civil unrest. Finally, a dictatorial system was imposed on the country, contributing to political instability. - Centralism was an important element that pushed people towards ideas of secession. Owing to excessive centralism of the government, attention for people's needs were neglected. The local provinces and regions felt that their aspirations were being ignored. - On the military side also, the so-called Caudillismo tended towards political and personal aspirations, rather than towards community welfare. - The economic situation was extremely difficult. The costs of the wars of independence had depleted the public finances of the New Republic of Gran Colombia. In addition to the loss of population because of the wars, the reconstruction of the cities represented additionnal financial expenses. These economic problems produced disruptions in the systems of labor relations that provoked a decline in important sectors of the economy, such as mineral production. - The high costs of the wars that the Gran Colombia faced with its neighbors as a consequence of the weak adrrrrmstrative and territorial distribution in the colonial period, was another negative factor. - Gran Colombia's struggle for self-rule fostered the spirit for nationalism and independence. The same people who had supported the struggle for self-rule, were now promoting the secessionist movement. - Finally, an important factor was the resignation of the "Libertador". Anticipating the disastrous developments, S i m h Bolivar, in his positiion as head of Gran Colombie, declared that he feared peace more than war. He retired, lonely and sad, watching how Gran Colombian solidarity, his dream for a very long time, began to unravel and how political instability impeded the reorganization of the economic system, opening the door to secession.

Secession and International Law

Against this background, the notion that " we have to liberate from the liberators" was a clear indication of the inevitable pull towards secession. The region slid into anarchy, with revolts and movements of troops against the dictatorship, in opposition to the project of a Federation of The Andes and the Boliviarian Code. The aim at secession based on the former territorial demarcation was a daring undertaking. The separatist impetus produced the secession of each of the countries that were part of Gran Colombia. The Capitania General of Venezuela seceded on the 6" of May, 1830, before a Constituent Congress which, claiming to obey the wish of the people, declared Venezuela an independent and fiee State. The delegates and representatives of Distrito del Sur of Gran Colombia met in Quito (Ecuador) in a General Assembly the 13" of May, 1830 and promulgated an Act which stated that in the exercise of their sovereignty they declared the constituency of a "Free and Independent State, comprising the Distrito del Sur and all those who wanted to join, by the natural relations and the act of living together". By 1830, thirteen independent governments had been established in Latin America. In 1903, the Province of Panama seceded from Colombia which was weakened, weakened by internal wars. It was during that period that the idea of the construction of a canal arose. V. Malvinas (Falkland Islands / Islas Malvinas) The Malvinas are a group of islands in the south Atlantic, east of the Argentinian coast. Argentina has claimed the islands since the early 19thcentury. Britain has occupied and admuusteredthe islands since 1833 and rejects Argentina's claims. To give the full historic chronicle of the islands is beyond the scope of this essay. Suffice it to say that it was in 1816 that Argentina declared its independence from Spain and subsequently in 1820 proclaimed its sovereignty over the Falklands. In 1828, the Gov-

Latin America: Self-determination,Minorities, Indigenous People... ernrnent of Buenos Aires sent a governor to the islands. An incident between the United States and Argentina after being cleared, enabled Argentina to begin the settlement of the islands. However, the British forcefully deposed the Argentinian Governor and in l885 a British self -supporting community was established. In 1892, colonial status was granted to the Falklands. In 1964, a series of negotiations were held and the issue was debated by the United Nations in the De-colonization Committee. In 1965 the UN General Assembly approved a resolution inviting Britain and Argentina to hold discussions aiming to find a peaceful solution to the dispute. These discussions were still proceeding until 1982 when the war broke out. British governments had often appeared willing to hand over the islands to Argentina but on the condition that the islanders would consent to the change of sovereignty. This consent never materialized and Argentina tried to negotiate sovereignty on the islands. Notwithstanding the political aspects, there were substantial commerce and trade activities between the islands and Argentinian mainland. In March 1982, the war between Argentina and Britain began. Cease-fire resolutions passed by the United Nations were vetoed by Britain. In June 1982, the British re-occupied the South Sandwich Islands (also claimed by Argentina), formally declared an end to the hostilities, and established a Protection Zone (FIPZ) of 150 miles around the Falkland / Malvinas islands. 236 British and 655 Argentinians died in this war that cost approximately 2 billion US dollars. VI. The Situation of Minorities The pre-Columbian period There has been much discussion about the definition of the term "indigenous" that the discoverers of the New World in 1492 used to designate to the aborigines of the Americas. As I mentioned

Secession and International Law

earlier, according to the historic narratives, Christopher Columbus, in an attempt to find the West Indies, stumbled upon the American continent, thought that he was in the Indies, which is why he called the original inhabitants Indians, or indigenous. Aboriginal societies had a high level of political and social organization. This was particularily evident with regards to their sense of community, living, cooperative labor. Indigenous people were notable for their knowledge of medecine and had astonishing surgical skills. There also existed an extraordinary cultural richness, a doctrine of culture, fine artifacts and hand-made, elaborated objects in gold, silver, clay and other natural elements that today can be found in museums as cultural relics. There was a well-developed Indian civilization in the Andean region and in Mesoamerica. The conquest The conquest produced dissolution and almost the extermination of the cultural wealth and indigenous organization and as a consequence, a clash of cultures. In addition, political, economical and social aspects under the banner of identity, language, sometimes also religion and the urgent need to consolidate the conquered territories almost ended up with the elimination of the indigenous race. System of oppression Under the "encomienda" system, a number of indigenous people were taken care of by a Commandery, with the purpose of receiving taxes that provide one example of a method by which the indigenous were obligated to pay dues in money, food or other kmd. This system obliged the indigenous to work in the fields, in the mines or in other estates as forced labourers. The encomienda was given for life, meaning that parents, sons and grandsons would automatically be subject to the same status. In the Ecuadorian ter-

Latin America: Self-determination, Minorities, Indigenous People...

ritory of that time the "encomiendas" were conceded for a duration of two generations. Forced labour also contributed to the spread of diseases of a kind hitherto unknown to the indigenous and as a consequence the enconomienda was also instrumental in the disappearance of a large segment of the indigenous population. . The "obrajes" was a system created to control the textile and weaving production process by confining indigenous people to forced labour for the rest of their lives, leaving them in fear of punishments that they could recieve. In some cases the mothers received the punishments on behalf of their sons to avoid the escape of the loved ones. The indigenous had to look after themselves, and even the food was sold to them at very high prices. For these reasons the "obrajes" was a house of forced work in which the indigenous were imprisoned for almost all of their lives because they could never end paying the taxes, tributes and rents that they owed for buying the textures or woven articles, colors, that they needed for their own work. The system of the "obrajes" contributed to the disappearance of large segments of the indigenous population. The "mita" was yet another harsh method of exploitation in the colonial times. By this institution some indigenous people were periodically assigned various tasks. Because money did not circulate among the indigenous people, only among the conquerors, they did not get just rewards for their work. Towards independance In Latin America the evolution towards independancebegan with extensive ethnic and cultural transformations in three centuries of domination. During this period the indigenous people were oppressed but not to the point that the indigenous component could not survive. In some areas there have been revivals of indigenous culture that had been lost during the conquest.

Secession and International Law

VII. Modern South America The recognition of cultural diversity Even though at times the indigenous population was pushed to rural areas and dominated by landowners or companies, some programmes were established to promote indigenous culture and livelihood. In fact the indigenous people have pressed for the recognition of their rights not only to achieve self-determination but also as a means to promote economic and political equality within the society. They also aspired to establish a multicultural vision in the politics of the society. Indigenous society fought hard for the recognition of multiculturalism at the national levels and in some cases the demands amounted to secessionist movements. In those States where, owing to the just recognition of cultural diversity as a fundamental principle of their societies and through the incorporation of that principle into the national institutions, it can be argued that secession was avoided in many instances. The recognition of cultural diversity has also led to other fundamental developments, such as the acceptance of indigenous identity, which has opened many doors for future aspirations. In Ecuador, for example, Art. 1 of the Constitution proclaims that "Ecuador is...a multicultural and multiethnic State. . .". Chapter No. 5 of the Constitution addresses the concerns of the indigenous and afio-Ecuadorians. By Art. 84, the State recognizes the rights of the indigenous people and provides them with specific guarantees, among other things: - to maintain, develop and strengthen their identity and traditions in the spiritual, cultural, linguistic, social, political and economic fields; - to preserve unalienable property in community lands; - to maintain the ancestral possession of the community lands; - to participate in the use, administration, conservation and the

Latin America: Self-determination, Minorities, Indigenous People...

renewal of natural resources within their land; - to be kept appraised about plans and programs of exploitations of non-renewable resources in their lands that could affect them environmentally or culturally; - to preserve and promote their management of practices in the area of biodiversity and natural habitat; - to ensure that they are not displaced fkom their lands; - to provide access to quality education and make available a multicultural, bilingual education system. The effects of international law The United Nations Sub-commission on the Prevention of Discrimination and Protection of Minorities is an important international forum in which the indigenous problems could be articulated. The Subcommittee sums up the above mentioned elements in its definition of indigenous people: "Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, considered themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems". This definition has opened important avenues to the creation of indigenous movements and organizations in Latin America. In the political sphere, in countries like Ecuador and Colombia, among others, indigenous representatives were elected to the national congress or parliaments. Others were designated to chair some internal commissions in those bodies. In Ecuador, some of

Secession and International Law

the indigenous Congress representatives are women. Bilingual education was promoted as a fundamental element to reinstate cultural identity. Stability of borders The temtorial subdivisions which had been established during the colonial times were very complex. . As a consequence, the administrative and political pattern which were established when independence was achieved were very fragile. This situation is at the origin of border problems which led to many wars. Utipossidetis juris This was a Roman rule that ensured lawful protection to the owner of territory in order to prevent violence, while the constituent parts were discussing the dominion. This principle played a major role in the context of the territorial controversies in Latin America, because according to this formula translated to Hispano-american public law, each new nation mherited the boundaries of what had belonged to its respective colonial entity, by virtue of Ckdulas Reales (royal letters) dictated prior to their emancipation. It means that each new nation had to keep the territorial divisions that had been established during the Hispanic period. The constraints imposed by territorial division, among other things, produced numerous wars and conflicts in Latin America. Summary of conflicts and disputes: - Gran Colombia against Peru in 1828; - Brazil against Uruguay between 1810 and 1826; - Argentina, Brazil and Uruguay against Paraguay in 1864-70 (the so called "Guerra de la Triple Alianza"); - The Chile and Peru alliance against Bolivia in 1879-84 (Guerra del Pacifico);

Latin America: Self-determination, Minorities, Indigenous People...

- Bolivia against Paraguay in 1932-35 ("Guerra del Chaco"); - Ecuador against Peru, in one of the oldest territorial disputes; - Honduras against El Salvador in 1969; - Argentina against Chile in the conflict of the "Canal de Beagle"; - Guatemala against Belize; - Guyana against Suriname; - Guyana against Venezuela. Border cooperation and integration Many of the above mentioned conflicts have been settled, bringing the benefits of peace to the people, increasing cooperation and the possibility of developing boundaries agreed in common. A case in point was the long lasting territorial conflict between Ecuador and Peru that was settled peacefully in Brazil. On October 26,1998, both countries signed the "Acta Presidential" (Integration agreement), a Trade and Navigation Treaty, also exchanged Notes regarding "Confidence Building Measures" and a number of complimentary agreements. With respect to the Trade and Navigation Treaty the two countries decided to establish trade and navigation centers. Another important step towards cooperation was the constitution of a "Zone of Ecological Protection" under the sovereignty and jurisdiction of each country. The peace agree-ment included the foresight of a "Development Plan" of the border region that would allow peace to take root in both countries. Since the peace agreements, more that 2000 meetings were held between businessmen of the two countries and trade increased considerably. This is one example in Latin America in which border collaboration has allowed the bilateral development of countries and people in areas of joint interest. Latin American countries have made great advances in the field

Secession and International Law

of community relations. Many integration agreements have been established, such as: - The Andean Pact or Andean Community ofNations established in 1969, between Ecuador, Colombia, Peru, Bolivia and Venezuela; - The Central American Common Market in 1960; - The Caricom (Caribbean Community) in 1973; - Mercosur (Argentina, Brazil, Paraguay and Uruguay) in 1991.

* l

Please consult the Notes on the Authors Montevideo has a history of self-rule before becoming the capital subsequent to the creation of Uruguay. Panama was at that time a part of Colombia.

THE ROLE OF RECOGNITION AND NON-RECOGNITION WITH RESPECT TO SECESSION: NOTES ON SOME RELEVANT ISSUES Malcolm N. Shaw*

l. Introduction In this presentation, I wish to look at some trends within recognition, particularly as far as secession issues are concerned. First, a few words about the relationship between substance and process. Secession as statehood requires the entity to assert a claim to statehood, while conforming to certain agreed international criteria.' This claim may be seen by some in certain situations as referring to a substantive right and by others as the exercise of liberty. Others have addressed the relevant issues. My role is not to deal with secession as a right or liberty or black hole in international law but rather with the international perception and reaction to such claims. Such a maintained claim in practice, if not necessarily in law, requires international recognition, which is a process of historically arbitrary and unilateral action by members of the international community stating that the accepted international criteria have been fulfilled by the claimant entity. Thus recognition may be seen as an international process of validation of the international law claim in q~estion.~ Several elements are involved here. First, whether there is a right or at the least a reasonable expectation to be recognised. Secondly, the right of the recognising State so to act. Thirdly, the criteria that may be seen as conditioning the exercise of this activity. Fourthly, the extent to which the process itself is subject to international scrutiny. Fifthly, the situations where the international community itself, acting together in some Footnote texts at the end of each chapter

243

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form, takes action to pre-empt individual recognition either by calling for recognition by individual States3or by prohibiting such re~ognition.~ In passing, it should be noted that there is almost an infinite flexibility to recognition. It is not limited to statehood claims, but ranges over the field of international personality generally. One can envisage, indeed, an incremental recognition of an evolving international personality which would entail some rather interesting consequences in law. There is, however, no time to pursue this at the present time. My working thesis is that there is clearly a shift under way from individual to collective recognition through international organisations. This shift emphasises the importance of some of these issues, particularly the grounds for extending or refusing or postponing recognition and the question as to international scrutiny. It also raises the question as to whether there are commonly accepted principles for such group recognition which further brings into play considerations as to monitoring and implementation. We need first to cover some old ground to set the scene. In particular, the distinction between colonial and non-colonial situations needs to be noted. The Canadian Supreme Court recently stated that the right to secession only arises under the principle of self-determination where a people is governed as part of a colonial empire, or is subject to alien subjugation, domination or exploitation and, possibly, where it is denied any meaningful exercise of its right to self-determination within the framework of its existing State. In other circumstances, people are expected to achieve selfdetermination within the framework of their existing State? How far the second category extends is unclear. To the extent that it duplicates the colonial provision in category one, it is acceptable. Further than that, controversy enters. What is meant by "alien" in a pluralistic world, for example, and what is meant by "subjugation"? Is this, for example, time-limited? If not, at what point does

The Role of Recognition and Non-Recognition with Respect to ...

subjugation become assimilation to, or acceptance of, a dominant culture? Such points cannot be pursued here. Relevant to this presentation, the Court noted, referring to unilateral secession, that an "unconstitutional declaration of secession" could lead to a de facto secession, the success of which would be dependent upon recognition by the international community, which would be likely to take into account the conduct of the par tie^.^ In other words, recognition could validate an effective secession even if contrary to domestic law and perhaps even if questionable in or indeed contrary to international law. There is a sense, therefore, in which recognition constitutes the "sweeper" of the international order. 2. Secessions arising out of de-colonisation In the case of secessions arising out of the de-colonisationprocess, it is clear that recognition has moved beyond simple acceptance of an effective situation or acknowledgement of conformity with the traditional criteria of statehood (people, territory, government, capacity to conduct international relations) to adopting a remedial stance. By this, deficiencies in fulfilling the traditional criteria are cured or ignored by international recognition, for example the Congo in 1960 and Angola in 1975-19767 where international recognition of statehood occurred despite the existence of civil war conditions and disputes as to both the legitimacy and effectivenessof particular governmental authorities. It is important to remember, however, that the colonial category as understood in international law is sui generis, not least because it was accepted that such colonial territoriespossessed a separate and distinct status under the Charter.8

3. Non-colonial territories The situation with regard to non-colonial territories is dissimilar since the status of the territory attempting secession is different under international law and is protected by the principles regarding,

Secession and International Law

for example, territorial integrity and non-intervention. The examples of successful secessions from existing independent States are relatively rare, particularly if one excludes Yugoslavia as being an example rather of dissolution and the USSR as being very similar politically to dissolution even if the international community supported the claims of Russia to be a continuation of the Soviet Union. Even more rare are examples of secessions contrary to the consent of the mother State. The principal and possibly the only such example is Bangladesh. The position of recognition generally within the international community as a tool of validation and approval involves a community appraisal of certain accepted objective criteria, coupled with a subjective State by State assessment of political factor^.^ The context is thus a subjective approach which is taken in fulfilment of objective criteria, coupled with an unspecified and rather amorphous, but very significant, policy element. The true emphasis, however, has always been upon the competence and scope of the individual State in deciding in conformity with its own perception whether or not to extend recognition. What does State practice demonstrate? In non-self-governing territories (as that term has been defined by the UN),1° the balance of factors is such as to suggest a presumption of recognition of decolonising territories should the self-determination decision be for independence. This impacts upon the fulfilment of the relevant criteria or rather a softening of the criteria has long been apparent. This means that what might otherwise be regarded as premature recognition and thus (according to Lauterpacht at least)ll illegal, is deemed acceptable. The context, therefore, modifies both the criteria for Statehood and the application of recognition and has thus been a policy driven process.12

The Role of Recognition and Non-Recognition with Respect to ...

4. Non-consensual Secession On the other hand, there is clearly a presumption against recognition of non-consensual secession from an existing State." This is for several reasons. First, the principle of territorial integrity protects the sovereign space of the existing State and any disruption of this could destabilise internationalrelations generally and indeed numerous countries. Second, the very cautious and careful (if not indeed negative) definition of self-determination adopted outside of the colonial context insofar as secession is concerned has in effect reinforced the territorial basis of existing States and turned attention to issues of domestic governance.l4 Third, general policy reasons such as fear of ethnic conflicts that may arise if all "peoples" were recognised as having the right to secede from existing States and which might entail consequential risks to the maintenance of internationalpeace and security and indeed respect for human rights. In such circumstances, premature recognition would offend the sovereignty of the State concerned. The very fact that only Bangladesh can be put forward as an example of the same speaks volumes. In such cases, the presumption may be overturned by the clear establishment of effective control over the territory in question over time by the secession authorities coupled with the clear acceptance of this situation by those States most obviously affected. Thus, the balance between satisfaction of the criteria of statehood and general community interests is different than is the case with de-colonisation. However, some have argued that this balance may be challenged in particular circumstances. The principle of territorial integrity as expounded by UN practice is apparently subject to a human rights proviso, since - as the 1970 Declaration on Principles notes nothing shall impair the territorial integrity of a sovereign State conducting itself in compliance with equal rights and selfdetermination and thus possessed of a government representing

Secession and International Law

the whole people belonging to the territory.15 There is here, according to some, an implication that where a State does not so conduct itself, the disadvantaged people in question may legitimately secede.l 6 Whether such a dramatic conclusion can be drawn from what is in effect a human rights endorsement or backing of the hallowed principle of territorial integrity is to be questioned. A more correct assessment of this provision is that it supports the view that self-determination is to be applied within the existing territory of independent States. l 7 Practice does not support a broad interpretation and fbrther, no mechanism really exists to determine whether a particular State may be the subject of secession on the basis of nonconformity with the proviso. It is worth mentioning here the very particular instance of KOsovo.18 Kosovo is an example where significant elements of the international community have taken action in the name of humanitarian protection within a part of an existing State in circumstances which have led to an ousting of the legitimate sovereign's defacto administration of the territory.lg Events suggest that the return of full and effective Yugoslav control over the territory is perhaps unlikely and the existing de facto suspension of control may conceivably harden into defacto or even inter-nationallyrecognised secession. What is clear is that dejuve, the UN, NATO and relevant States have reaffirmed the sovereigntyof Yugoslavia over K o s o ~ o . ~ ~ Indeed, the very difficulties of this situation support the general rule of a presumption against recognition of secession. The dangers of multiple secession have also become evident. If the Albanians of Kosovo are accepted as being able to secede from Yugoslavia on grounds of targeted maltreatment, what about the position of the Serb minority in Kosovo? The greater issue is this: What may better be seen as a problem of respect for human rights within a State and the need for the international community to moderate forcell repression of such

The Role of Recognition and Non-Recognition with Respect to ...

rights can become transmuted into a territorial issue and accordingly shifted on to a different plane. This process may indeed resist a successful resolution of the problems in question. And it may be argued being counterproductive in leaving unsatisfied the legitimate human rights claims against the State in question. 5. Dissolution of States In between the poles of de-colonisation and non-consensual forceful secession, lies the question of dissolution of States and the creation of a number of successors. Where the process takes place entirely by agreement (e.g. the dissolution of Czechoslovakia), there is really no secession. Some situations may in essence be dissolutions of an existing State but be treated as secessions. The example here would be the USSR where there are strong arguments for contesting in reality the accepted view that Russia was simply a continuation of the USSR.21 However, what matters is that for whatever reason the parties directly relevant and significant members of the international community were happy to characterise the situation as one of continuation/secessionrather than dissolution and creation of new States.22The very fact that this was so says much about the process of State succession. In some circumstances, the very characterisation of a situation may be disputed. Until Autumn 2000, the Federal Republic of Yugoslavia (FRY) maintained that it was the continuation of the former Socialist Federal Republic of Yugoslavia (SFRY) from which other republics had seceded. The other republics, and now Yugoslavia itself, took and take the view that the SFRY had dissolved to be replaced by a series of new States.23

Secession and International Law

6. Characterisation of a Situation Thus, the characterisation of a situation will itself be very relevant to a determination of the role to be played by the international community and by third States, such role being expressed through the mechanism of recognition. This is quite apart fiom the effects of such determinationin the field, for example, of State succession. The creation of new States as a result of consensual dissolution or consensual secession is highly unlikely to be opposed by international organisations or third States. The key principle of territorial stability will militate against any challenge in these circumstances and will reinforce the factors of effective control by the new authority and the consent of the former sovereign. The role of the international community may be looked at several levels. First, the international community may be required to characterise a situation, whether to reinforce the approach in fact taken by the participants (e.g.. USSR) or to mediate as between contending views (e.g. Yugoslavia until recently). That collective perception will clearly impact upon recognition issues. Secondly, the international community may be called upon to take a view as to recognition. At one extreme lies the approach that recognition should not take place since the activity in question (whether Statehood or acquisition of territory, for example) is invalid in international law. Here one may cite the approach of the United Nations Security Council with regard to Rhodesia (1965); the Bantustans (1979 and l98 1); and Turkish occupied northern Cyprus (1983)" in determining that the claimed statehoods were invalid and imposing a community policy of non-recognition. Security Council resolutions with regard to the purported annexations of the GolanZ5and Kuwait26made the same point. In such cases, the international community was essentially asserting; first, that the appropriate criteria of statehood or acquisition of territory

The Role of Recognition and Non-Recognition with Respect to ...

had not been fulfilled; secondly, that international law prohibited the State act in question (whether by way of the principles relating to nondiscrimination or recourse to force); thirdly, that general community interests required that certain State activity should be recognised as having no legal consequences, i.e. was null and void; and fourthly, that such determinations have consequences for all States, that is that recognition should be refused. This latter point may sometimesbe phrased as an obligation (see the Namibia case27). It can thus be seen that legal deterrninations are coupled with policy matters in such international activities. Whether such conclusions in law and policy are challengeable is another and more complex issue. 7. Recognition of statehood by intergovernmental organizations At the other end of the pole, lies the view taken by the international community that a particular action (for example, a claim to statehood) is legitimate in law and that political consequences should flow. The obvious example here is acceptance to membership in the UN and to a lesser extent, other international organisations. Although the question of membership raises different issues since the criteria applicable here are not the same as those for statehood, nevertheless in practice since the UN is only open to States, admission to the UN amounts to recognition of statehood. One may also refer here to the recognition by the EC (and Austria and Switzerland) on 15 January 1992 of Croatia - at a time when that State did not control at least one-third of its territory and contrary to a determination by the Badinter Commission on 11 January that Croatia did not fulfil the conditions for recognition laid down in the EC Guidelines of 16 December 1991 (Opinion No. 5).28 This applies even more so to the recognition by the EC

Secession and International Law

of Bosnia on 6 April 1992 (and the USA the following day). Both Croatia and Bosnia became UN members on 22 May 1992. We may contrast this approach with the one taken by the UN regarding Bangladesh, where admission to membership was delayed until 1974, that is until after Pakistan as the former sovereign had recognised the new State. International organisations may implicitly or explicitly set recognition conditions. Criteria for admission to membership and their interpretation, as already noted, may impact upon the whole question of recognition of statehood or other international status. Further, explicit conditions may be set as to recognition itself. The prime example here is the Guidelines on Recognition of Nav States in Eastern Europe and the USSR and the associated Declaration on Yugoslavia of 16 December 1991 of the EC. This coordination of policy by member States noted that recognition required inter alia respect for a number of treaties and commitments (including the UN Charter, CSCE instruments, disarmament and nuclear nonproliferation~agreements and peaceful settlement of disputes); respect for the inviolability of all frontiers; and guarantees for the rights of minorities. This list exceeded the traditional conditions for recognition.29 We can deduce from these events first, that international organisations may set their own standards for admission, such criteria impacting upon recognition generally; secondly, that such organisations may establish criteria for recognition which may only be advisory but which could nevertheless be extremely influential; thirdly, that such organisations may in effect make legal determinations in this area; fourthly, that such organisations may adopt views that require legal and policy decisions pre-empting individual decisions as to recognition or non-recognition; and fifthly, that such organisations may spell out some of the consequences of the conclusions that they have reached - consequences

The Role of Recognition and Non-Recognition with Respect to ...

that apply not only to the organisation in question but also to member States and in some measure nonmembers. There is one further point. Recognition by individual States is essentially a matter of policy, even if interlaced with legal considerations. States cannot be obliged to recognise, although they may be obliged not to recognise in certain situations as defined by international action. The scope for community scrutiny is thus very limited. On the other hand, in the case of collective or coordinated recognition by or through international organisations,the question of international enquiry into the validity of the recognition or the conditions thereof must be more meaningful.

8. Shift toward collective recognition It seems clear that we are moving towards a system of recognition that while essentially bilateral, is being re-oriented towards a community response. In principle, a strengthening of community action and determination is to be supported, although difficulties may arise where political pressures may do an injustice to a claimant that for whatever reason happens to be politically unfashionable or laclung in political support fiom the major powers or conversely unduly favours an entity that is supported by the major powers while being controversial for, for instance, human rights reasons. Insofar as non-consensual secessionist claims outside of the colonial context are specifically concerned, the weight of individual and communal practice is clearly unfavourable. Practice with regard to the former USSR and Yugoslavia (only the former being accepted as a case of secessions while only the latter was non-consensual at the start) demonstrates that community conditions for recognition (collectively coordinated) have become more stringent, at least in assertion. However, the declaration of stricter conditions for recognition may not be realised in practice. It is highly llkely that in the case of 253

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certain Yugoslav successor States, the conditions posited were not fulfilled, or were not at the time of the recognition in question.30 Thus the declaration of additional criteria was not matched in practice, so either the declaration was mere hypocrisy, or the implementation methodology was deficient. To put it another way, was, or is, the international community serious about inserting extra criteria (for example, concerning human rights) into the recognition pot, or was what occurred simply meaningless window-dressing ? It seems to me that recognition is moving fiom being a subjective and individualistic appraisal of internationally agreed objective criteria to a collective process coupling both legal and policy issues. This does not mean that recognition by individual States has ceased to be crucial, what it does mean is that the balance between separate action and coordinated action is shifting. This movement also has implications for the substance of recognition, that is, the consensus conditions for its grant. There may, of course, be a time lag between the collective or coordinated laying down of conditions and their fulfilment. Indeed fulfilment may never be accomplished as intended. Practice may indeed drift far behind the asserted doctrine. This is not totally unusual in international law, but what would be dangerous would be a perception that the additional criteria could safely be ignored since they in essence merely pandered to public opinion. This leads on to my next and final point, which is the need for a strengthening of the determination of such community recognition in non-consensual secessions, for I see this approach as providing a lead for individual recognitions as well as being crucial in its own terms. This process might involve the adoption of guidelines or codes of practice whereby particular international institutions agree that before a recommendation is made to member States or the organisation itself with regard to either recognition or admission to membership (for the two essentially overlap here), certain agreed

The Role of Recognition and Non-Recognition with Respect to ...

criteria be met. Further, consideration might be given to a formal body or mechanism within such structures able to declare as a matter of fact that the criteria have in fact been fulfilled. This would be relevant to the scrutiny issue, which in my view is more necessary in the cases of collective or coordinated recognition than is the case in individual State recognition. Accordingly, therefore, I believe that the way forward is for issues of collective and coordinated recognition by andor through international organisations or mechanisms to be firther examined with a view to putting forward a composite list of accepted criteria for admission/recognition together with suggestions for a means of scrutiny with regard to compliance. The premise here, of course, is that the list of conditions would be a generalised version of the Yugoslavia/USSR experience and that this would be coupled with an approach that accepted a working presumption against the recognition of non-consensual secession and the need to demonstrate the effective control of the claimant over the territory in question over a sustained period of time to the exclusion of other parties.

Please consult the Notes on the Authors See generally J. Crawford, "State Practice and International Law in Relation to Secessiony',69 BYL, 1998,p. 85 and L.C. Buchheit, Secession, 1978. See, for example, the decision of the Canadian Supreme Court in Reference re Secession of Quebec, l998 SCJ No. 61, p m . 154-5. See, for example, General Assembly Resolution 3061 with regard to the Republic of Guinea-Bissau. See, for example, Security Council Resolutions 2 16 1965)and 2 17 (1966) regarding Rhodesia; Security Council Statements of

Secession and International Law

l0

l1 l2

l3 l4

l5

l6

l7

l8

2 1 September 1979 and 15 December l98 1 regardmg the Bantustans and Resolution 541 (1983) regarding Turlash-occupied northern Cyprus. See footnote 2 at p m . 154. Ibid.,para. 155. See M.N. Shaw, litle to Territory in Afnca: International Legal Issues, 1986,p. 152 et seq. See the Declaration of Principles of InternationalLaw, UN General Assembly Resolution 2625 0 See generally H. Lauterpacht, Recognition in InternationalLaw, 1947; T.C. Chen, m e InternationalLaw of Recognition, 1951; J. Verhoeven, La reconnaissance internationale dam la pratique contemporaine, 1975 and C.J.R. Dugad, Recogniition and the United Nations, 1987. See, for example, B. Simma, f i e Charter of the United Nations, 1995,p. 923. Op.cit., p. 7. See M.N. Shaw, InternationalLaw, 4med., 1997,pp. 144-46. See Shaw, op.cit., footnote 7, p. 215. See, for example, R. Higgins, Problems and Process, 1994, Chapter 7 and T.M. Franck, Fairness in InternationalLaw and Imtitutiom, 1995, p. 158. See also the Vfenna Declaration and Programme ofAction on Human Rights, 1993. See R. Rosenstock, "The Declaration of Principles Concerning Friendly Relations: A Survey'', 65 AAL, 1971,p. 713 and V.P. Nanda, ''Self-determination under International Law: Validity of Claims to Secede", 13 Case Western Reserve Journal of InternationalLaw, l98 1, p. 257. See generally A. Cassese, Self-Determinationof Peoples, 1995, especially at p. 122 et seq. See: The Kosovo Conflct and InternationalLaw (ed. H.

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Krieger), 2001 and "Kosovo", 49 ICLQ, 2000, p. 876 See M. RufEert, 'The Adrninisttation of Kosovo and East Timor by the International Community", 50 ICLQ, 200 1, p. 6 13 20 See UN Security Council Resolutions 1244 (1999) and 1272 (1999). 21 See, for example, Y. Blum, "Russia Takes Over the Soviet Union's Seat at the United Nations", 3 EXL, 1992, p. 354 and R. Mullerson, International LW Rights and Politics, 1994, p. 140. " See Shaw, op.cit., pp. 677-78 For FRY'S new approach, see letter of President Kostunica to the UN Secretary General of 27 October 2000 requesting the admission of FRY to the UN and Security Council Resolution l326 (2000) and General Assembly Resolution 55/12 so decidmg. 24 Supra, footnote 4. 25 Resolution 49 1 (198 1). 26 Resolution 660 (1990). 27 ICJReports, 1971, p. 16. B See 92 E R , p. 178. 29 62 BYIL, 1991, pp. 559 - 61. See Opinion No. 5 of the Yugoslav Arbitration Commission, 92ILR,p. 178.

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CONCLUSIONS AND RECOMMENDATIONS FROM THE REGIONAL CONFERENCES Substantive outcomes fiom the Geneva and Sydney Conferences in the series were not sufficiently representative to be appropriate for publication. The recommendations of the Geneva Preparatory Conference regarding the parameters of the study were accepted as the starting point by all the Conferences and they are recorded in the Introduction to the book. The following Conclusions and Recommendations are indicative of three somewhat different approaches but also having many similarities. They do not purport to be truly representative of the geographical regions fiom which their expert participants were drawn - and that was not the original intention. These documents should be regarded as advanced working papers, reflecting the views of very knowledgeable and responsible persons, grouped together on the basis of a certain affinity of backgrounds. The summaries of their views, broadly approved by consensus, are merely presented in order to stimulate constructive thinking on the many aspects of the subject.

Conclusions and Recommendations of the Regional Conference of the Commonwealth of Independent States The CIS Regional Conference was entitled, "The Conference of Independent Legal Experts from the CIS Member-States on Problems of Self-Determination and Secession in Contemporary International Law", and was held from 12 to 14 July 2000 in Moscow. It was conducted as one of the series of regional conferences on the topic convened on the initiative of the Geneva-based "Consortium on International Dispute Resolution".

Secession and International Law

The Conference adopted the following conclusions and recommendations. I - The Principle of Equal Rights and Self-determination of Peoples The Conference proceeds from the fact that the principle of equal rights and self-determinationof peoples is one of the basic principles of contemporary international law, is inseparably connected with them, is to be interpreted in the context of the rest of the basic principles and cannot be opposed to them. According to the above principle, which is enshrined in the Charter of the United Nations and the contents of which are laid down in several international documents (such as the Declaration on Granting Independence to Colonial Countries and Peoples, of 14 December 1960, the Declaration on Principles of International Law Concerning Friendly Relations and CooperationAmong States in Accordance with the Charter of the UnitedNations, of 24 October 1970; The E n n a Declaration and Program of Action, of 25 June, 1993 etc.): 1. Each people has a right to self-determination; 2. This right is recognized by all States; 3. It is to be realized through free choice by peoples without any interference from the outside; 4. It presumes the possibility to choose between - the so-called "internal self-determination", i.e. obtaining the status of a subject of a federation, autonomy or other form of self-determination within an existing State, or - secession of a given people with the establishment of its own State, or - secession of a given people when it is admitted on certain conditions as a part of another State, thus presuming the choiceof a political status, including a choice of a form of a

Conclusions and Recommendations from the Regional Conferences

State (a form of government, state structure, political regime); 5. It includes also the right to freely ensureconomic, social and cultural development. I1 - The Right of Secession The Conference notes that contemporary international law does not authorize or encourage any action which would dismember or impair, totally or in part, the territorial integrity or political unity of States conducting themselves in compliance with the principle of equal rights and self-determination of peoples. Secession is not an obligatory stage of a process of realization of the right to selfdetermination. It is not to be realized outside the framework of the right to self-determination.National, ethnic, linguistic and religious minorities or any other groups in a population have no right to secession. In accordance with the interpretation recognized in UN practice and supported by, among other documents, the Declaration of 1970, the Eenna Declaration and the Program of Action of 1993, secession is possible in the following cases: 1. if it relates to peoples in the territories to be decolonized (at present this norm has lost its original significanceas the process of decolonization is virtually over); 2. if it is laid down in a constitution (or in another law) of a State; 3. if the territory populated by a given people was annexed after 1945; 4. if a given people live in the territory of a State which does not conduct itself in compliance with the principle of equal rights and self-determination of peoples and which does not ensure representation of all its peoples in its government without discrimination.

Secession and International Law

I11 - Armed Intervention The Conference considers that the above provisions make it possible to formulate the following conclusions: 1. A State is not to use armed force if the question of self-determination is raised without violating the constitutional order. 2. A State, however, is entitled to use adequate force, including amed force, if the question of self-determination is raised in contravention of the constitutional order and violence is used. In any case, universally recognized norms related to human rights should be respected, both when a question of self-determination is raised and throughout the process of realization of the right to self-determination. 3. In case of an emergency situation, or an international or internal armed conflict, exceptions are possible from international obligations on human rights within the limits and under the procedures which are set out in a given State's constitution and which conform to norms of international law. 4. When terrorists and mercenaries are used under the pretext of a struggle for self-determination, actions against them should be implemented with due regard for State laws and norms of international law. 5. States established in violation of the principle of equal rights and self-determination of peoples, should not be recognized as subjects of international law. 6. Without UN SecurityCouncil authorization,armed intervention by third States in a conflict connected with armed struggle for self-determination is inadmissible. 7. A State is entitled to defend its sovereignty, territorial integrity and political unity (within the framework of its constitutional order and with due respect for its international obligations) against any illegitimate actions taken under the pretext of realization of the right to self-determination.

Conclusions and Recommendations from the Regional Conferences

IV - Norms of International Law The Conference points out that inconsistencies of norrns of contemporary international law which relate, on the one hand, to territorial integrity of States and, on the other hand, to the right to self-determination, is sometimes exaggerated. On the whole, these norrns are consistent enough and form a logical and balanced enough system but they are scattered throughout various international documents. The Conference is of the opinion that it would be expedient to reflect them in a single document, with due regard for the above conclusions.

Conclusions and Recommendations of the Americas Regional Conference The participants of the Americas Regional Conference on Secession and International Law met at Santa Clara University from 3 1" January to 2" February, 2001, in cooperation with the Consortium on International Dispute Resolution (CIDIR). 1. The participants of the Conference took note of the results adopted by the Preparatory Meetingfor the European Regional Conference on the subject, as well as the conclusions and recommendations of the CIS Regional Conference. 2. The Participants of the Conference generally agreed that the following Conclusions and Recommendations should be taken into account when evaluating the legality and related issues regarding secession.

I - Principles of International Law 3. The Participants of the Conference agree that examination of the issue of secession shouldrespect the principles of international law, as expressed in the Charter of the United Nations, as well as the Declaration on Principles of International Law concer-

Secession and International Law

ning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, notably (UN General Assembly Resolution 2625 0 of 1970). Special importance was attributed to the followin~~rovisions of the Declaration, as noted in clauses 4,5 and 6. 4. According to the principle of self-determination "all peoples have the right fieely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter". 5. It is clearly specified in the "safeguard clause" that "nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed, or color." 6. With regard to respect for human rights and fundamental fieedoms, it was noted that all States must fulfil1 in good faith their duty under the United Nations Charter to promote respect for and observance of human rights and fundamentalfieedoms. Non-discriminatory implementationof internationally-guaranteed human rights within a pluralistic democratic State allows individuals and peoples maximum freedom and support to their legitimate aspirations and achieve the self-actualization that is often the aim of secession. As stated in the Universal Declaration of Human Rights, human rights should be protected by the rule of law "...if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.. ." Internal self-determination or "good gover-

Conclusions and Recommendations from the Regional Conferences

nance" is increasingly a part of human rights guarantees. It includes the right for States to freely ensure economic, social and cultural development.

II - Self-determination and Secession 7. Self-determination and secession are two different concepts. Self-realization of a group and the maintenance of its identity do not necessarily require secession, but may be achieved through other means such as devolution of power, administrative and cultural autonomy, creation of local government, etc. 8. The issue of secession arises whenever a significant portion of the population of a given territory, being part of a State, expresses by word or deed the wish to withdraw from the State and become a State in itself or become part of another State. 9. Self-determination and secession are exercised on behalf of and for the benefit of peoples, not territories. When secession occurs, existing administrativeboundaries need not necessarily be maintained and should be altered, by mutual consent and without coercion, whenever to do so would best reflect the desires of the peoples concerned. 10. International law at present confers neither a right of unilateral secession, nor does it deny such a right. 11. Secession is legally possible in the following cases: - by mutual consent and agreement of all those concerned; - pursuant to the Constitution or laws of the State. - wherepeoples areunder colonialrule or illegal foreignoccupation; 12. Decolonization resulting in independence is also legally possible, but the predominant view expressed was that this should not be designated as "secession".

Secession and International Law

I11 - New Proposals to be Considered for Implementation 13. In addition, international law should recognize a remedial right to secession where the population of a territory is subjected to gross, discriminatory and continuing violations of hdamental human rights directed against the secessionistgroups, in particular the right of effective participation in government. 14. The Participants of the Conference took note of possible moral or ethical justifications that might be advanced for secession in specific circumstances, such as to redress exploitation of one group by another or to preserve the existence of a culture. Such moral claims often may be addressed by autonomy, selfgovernment or other means short of secession. 15. Referring to article 2 1of the Universal Declaration of Human Rights, the provision was noted that the will of the people shall be the basis of the authority of government. The Conference expressed the view that the principle of subsidiarity, by devolving decision-making to the smallest effective unit capable of resolving a social problem, promotes autonomy and selfgovernment, thereby maximizing the exercise of self-determination locally, nationally, regionally and globally. The pursuit of this form of good government would usually pre-empt any secessionist tendencies. 16. Peaceful advocacy of constitutional change, including advocacy of secession, is protected under international human rights law and should not be deemed unlawful or treasonous by a State. The State retains the right to respond appropriately and legally to any attempt to dismember it by force or violence. 17. In order to diminish the likelihood of secessionist conflict, States should respect the rights of minorities and indigenous peoples. The participants believed that the right of indigenous peoples to self-determination should be recognized under international

Conclusions and Recommendations from the Regional Conferences

law. This right would include broad rights of indigenous selfgovernment and related powers, including control of natural resources, but within the jurisdiction of the States in which indigenous peoples are found. 18.It was emphatically presented to the Conference by some participants that domestic and international tribunals, as well as sovereign and independent States and international organizations and conferences, confer onto the principle of democracy a role in the context of claims of secession coming under their jurisdiction.

IV - Conflict Resolution 19. Peaceful methods and means should be used to settle the problems arising in relation to secession. The parties should negotiate in good faith and cooperate in seeking a solution. Regional and international institutions should facilitate such solutions. The existence of institutions like the Office of the High Commissioner on National Minorities of the Organization for Security and Cooperation in Europe (OSCE), or the creation of a Conflict Prevention Center, should be considered as examples of institutions that may provide early resolution of potential secessionist conflicts. Such a Center might serve as a consultativebody, evaluate information, analyze existing or possible potential for conflict and make recommendations. 20. Other individual suggestions included that the United Nations General Assembly should consider seeking Advisory Opinions from the International Court of Justice regarding secessionist claims whenever it is thought that such an Opinion would help to clarify the legality of a remedial secessionist claim. In the same vein, it was proposed that when remedial secession occurs, a United Nations Council for Self-determination or other suitable transitional authority could be designated to

Secession and International Law

administerthe new polity until the conditions for self-government and international recognition were met. As specified by the 1949 Geneva Conventions and Additional Protocols of 1977, State and non-State belligerents alike are obliged to implement international humanitarian law in all cases where armed conflict occurs in connection with secessionist efforts. 2 1. Where third party States, non-State entities and international organizations intervene militarily in secession related armed conflicts, they are also obliged to implement international humanitarian law. International humanitarian law applies during secession-related armed conflict regardless of the legal and political basis for those opposing or facilitating secession. V - Recommendations for Future Appraisal 22. The Participants recommend undertakmg in-depth analysis on how international bodies could be given the mandates to moreeffectivelymonitor situations which may potentially lead to secessionist claims and conflicts. 23. The Participants recommend that: a) the United Nations Human Rights Commission and SubCommission undertake a study concerning the problem of secession and self-determinationand make recommendations; b) regional institutions beyond Europe should be encouraged to develop instruments and mechanisms, such as those adopted under the auspices of the OSCE and the Council of Europe, in order to prevent conflict and to ensure the rights of all persons.

Conclusions and Recommendations from the Regional Conferences

Conclusions and Recommendations of the European Regional Conference The European Regional Conference on Secession and International Law was held on 8 and 9 June 2001 at The Hague. It was convened on the initiative of the Geneva-based "Consortium on International Dispute Resolution" (CIDIR) and jointly organised with the T.M.C. Asser Institute. The Conference was one of a series on this topic to culminate in a global Conference. The Participants of the Conference took note of the proceedings of the Preparatory meeting for the European Regional Conference on the subject; the conclusions and recommendations of the Conference of Independent Legal Experts from the CIS Member States on the Problem of Self-determination and Secession in Contemporary International Law; as well as the conclusions and recommendations of the Americas' Regional Conference on Secession and International Law. The Conference agreed to focus the discourse on the most contentious issues and adopted the following conclusions and recommendations: I - Introduction For the sake of consistency with the foregoing conferences in the series, the Conference accepted the definition of secession as meaning a situation in which a significant proportion of the population of a given territory, being part of a State, expresses the wish by word or deed to become a sovereign State in itself or to join with and become part of another sovereign State. It was also accepted that secession as so defined is generally motivated by aspirations of external self-determination and is therefore closely connected with other expressions of selfdetermination. Detailed consideration of these other expressions

Secession and International Law

of self-determination such as decentralisation, devolution, federalism and every kind of subsidiarity short of affecting a change in sovereign status were excluded fkom consideration not due to their irrelevance but in order to devote more time to contentious issues of international law, especially those involving the exercise of extensive violence in the process of secession. For the same reason, the Conference avoided close examination of secession or secession-like events under three circumstances: a) Separation by mutual consent of those concerned; b) Pursuant to constitutional or treaty-based provisions; c) In situations of reversing subjection of peoples to alien subjugation, domination and exploitation. It was further agreed that, regarding the focus of concern, the relevant principles of international law include: Sovereign equality of States; Territorial integrity of States; Non-use of force and non-interference in internal affairs; Self-determination of peoples; Respect for human rights; Peaceful settlement of disputes. Also it was agreed that recent sources of the applicable law are to be found in the Charter of the United Nations, - General Assembly Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation among States; relevant Human Rights Instruments - Eenna Declaration and Programme of Action of 1993.

Conclusions and Recommendations from the Regional Conferences

I1 - Substantive Issues Although there is no consensus within the international community on the modalities of their application, except by persuasion, there was general agreement at the Conference on the following principles and issues:

International law requires respect for the territorial integrity and political independence of any State. At present international law neither contains a right to secession nor does it prohibit secession. However, recent international practice indicates a presumption against the propriety of exercising an entitlement to secession. The use of force among States is governed by the Charter of the United Nations, as well as by customary international law. A distinct identity, whether ethnic, religious, ideological or cultural, does not of itself provide an entitlement to secession. The peaceful advocacy of secession, as an aspect of fieedom of speech and expression,is regulated by internationalhuman rights law and should not be deemed unlawful or treasonous by a State. Any restriction of the peaceful advocacy of secession should be in accordance with international human rights law. Military assistance by the armed forces of a State, acting individually or collectively, provided to the secessionists of another State should not take place unless authorised by the UN Security Council. Progressive consolidation of the law relating to secession would be beneficial. At the Conference views were presented on several issues, some of which deserve further study and elaboration:

Secession and International Law

I11 - Regime of Secession The fact that a State has a representative form of government without distinction of any kind should be considered to have a positive effect on the maintenance of territorial integrity and political unity. The protection of territorial integrity and political unity of a State can never justify the oppression of people. There is a duty for all entities involved to negotiate in good faith a solution to the problems, including developmental issues that gave rise to a secessionist claim, taking into account mutual interests and rights under international law. States should ensure an enabling environment for political dialogue and participation fkom all groups concerned. They may request international assistance for this purpose. In general, international humanitarian law limits the exercise of force, internationally and also internally in the following terns: - parties to a conflict shall at all times distinguish between the civilian population and combatants in order to spare civilian population and property; - it is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses of life or excessive suffering. Every State has the right to use arrned force complying with principles and rules of international law, including interna tional human rights law and international humanitarian law, in responding to attempts to dismember the State by force. Every State has the right to request arrned assistance from another State or an international organisation in order to respond to any attempt to dismember the State by force. There is lack of clarity regarding the meaning of use of "ex cessive force" in subduing a secessionistmovement that uses force to achieve its ends. Diverging views were expressed on the right of third States

Conclusions and Recommendations fiom the Regional Conferences

to use armed force in support of an attempt to dismember a State by force. 9. Any third State or international organisationrequested to provide armed assistance, should not respond to such a request by another State if it has reasonable grounds to believe that the assistance provided would result in violations of international law, including the principle of self-determination of peoples and respect for human rights. 10.Recognition of a seceding entity as a State may be achieved by, amongst other means, its admission to a(n) (number of) international organisation (S). 11. Effects of recognition and non-recognition. - In which cases is there room for an obligation not to recognise? - Which are the potential legal effects of non-recognition? - Recent State practice suggests that there is a presumption against recognition of secession fiom a non-consenting State. 12.International organisations have a special responsibility with regard to situations of secession: - by providing assistance in the establishment1maintenance of a representative form of government without distinction of any kind; - by acting as a mediator to facilitate a peaceful solution; - by talung a decision on the collective recognition, if need be. IV - Procedural Issues 13. Utipossidetis: When secession occurs, existing administrative boundaries need not necessarily be maintained and may be altered, by mutual consent and without coercion, whenever to do so would best reflect the desires of the peoples concerned. 14. Referenda: The possibility, desirability and, if so, modalities of conducting secession related referenda.

Secession and International Law

Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, UN General Assembly Res. 2625 (XXV), Annex, 25 UN GAOR, Supp. (No. 28), UN Dec. A/52 17 (1VO), at 121. Similar provision is included in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1992): "Nothing in the present declaration may be construed as permitting any activity contrary to the purpose and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States." (Article 8, par. 4)

*

Judges R. Higgins and P.H. Kooijmans participated in the proceedings of the Conference. They did not take part in the debate that resulted in the formulation of the Conclusions and Recommendations.

NOTES ON THE AUTHORS ARMSTEAD, J. Holmes Jr. : holds a doctorate in jurisprudence and a visiting professorship at the United States Naval Postgraduate School, Monterey, in California, USA. He has been Visiting Associate Professor at Facultk des Lettres (USAC), Universitk de Pau, France; Faculty of Letters, University of London, England, UK; and Associate Professor, Western State University College of Law, Fullerton, California, USA. Military experience included: Assistant Staff Judge Advocate Headquarters, 3 11th Support Command (Corps) United States Arrny Reserves, Los Angeles, California, USA; Assistant Staff Judge Advocate (International Law) Headquarters, V11 Corps United States Army, Stuttgart, Germany; and Special Staff Officer, Office of the Secretary of the Army Office of the Chief of Legislative Liaison, United States Army Reserves (Mobilization Designee), Washington, D.C. USA. He has published on a wide variety of subjects.

BUTLER, W.E. : has been M.M. Sperankii Professor of International Comparative Law, Moscow Higher School of Economic Studies; Professor of Comparative Law, University of London; and Director of The Vinogradoff Institute, University College, London. CHERNICHENKO, Stanislav V.: is a Doctor of Law, Professor, Director of the Centre for International Law and Humanitarian Issues at the Diplomatic Academy of the Ministry for Foreign Affairs of the Russian Federation and Vice-President of the Russian Association of International Law. In 1974-87 he was a member of the USSR delegation to the UN Commission on Human Rights; 1988-98 - expert-member of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities; 1990275

Secession and International Law

94 - Special Rapporteur of the Sub-Commission on the Right to a Fair Trial; and in 1993- Special Rapporteur to the World Conference on Human Rights. From 1997 he was member of the Expert Advisory Council on International Law established by the Chairman of State Duma of the Federal Assembly of the Russian Federation. From 1998 he was member of the Expert Working Group on the elaboration of the draft law on Russian citizenship. He is author of several books and about 300 articles on public international law. DUGARD, John: holds the qualifications of B.A., LL.B. (Stellenbosch); LI.B., LL.D., (Cantab); and LLD. Honoris Causa (Natal and Capetown). He is Professor of Law, University of Leiden; Professor Emeritus, University of Witwatersrand; Member of the International Law Commission; and Member of the Institute of International Law.

FLORES, Fernando: received a Bachelor of Arts degree in Political Science and a Doctorate of Law from the Catholic University of Ecuador, as well as a Master of International Studies fiom the Francisco Vitoria Institute in Madrid, Spain. He has served in various diplomatic posts throughout the world representing Ecuador, including the United States, Argentina, Peru and Austria. He has held the positions of Director of the Department of United Nations, of the Department of America, Director General of Technical Cooperation and Director General of Economic Promotion in the Ministry of Foreign Affairs. He has also been a delegate to the International Conference of the Inter-American Commission, UN Commission for International Trade Law, UN Conferences of UNIDO, the International Atomic Energy Agency and UN Social and Economic Commissions, among others.

Notes on the Authors

Mr. Flores has been a lecturer in many universities, organizations and academic centers around the world.

HIGGINS, Judge Rosalyn: Member of the International Court of Justice since 12 July 1995. Dame Commander of the British Empire (1995). Awarded the Yale Law School Medal of Merit (1997) and the Manley 0 . Hudson Medal (1998). Professor of International Law, University of Kent at Canterbury (1978- l98 1); Professor of International Law, University of London (198 1- 1995). President, Tribunal of the Intemational Centre for Settlement of Investment Disputes (Amco v. Indonesia). Past member of the Board of Editors of the American Journal of International Law and the Journal of Energy and Natural Resources Law. Member of the Board of Editors of the British Yearbook of International Law. Counsel in the following cases in the International Court of Justice: Temtorial Dispute ( Libyan Arab Jamahiriya v. Chad), East Timor (Portugal v. Australia); Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom); Gabcikovo-Nagymaros Project (Hungary v. Slovakia). Delivered general course on internationallaw at the Hague Academy of Intemational Law. Author of numerous books and essays on international law.

KOTLIAR, Vladimir S.: has a Ph.D. in international law and is Minister Extraordinary and Plenipotentiary; Senior Researcher at the Centre for Security Issues, Arms Control and Peacekeeping, at the Diplomatic Academy of the Ministry for Foreign Affairs of the Russian Federation. He entered the USSR diplomatic service in 1957 and served in Embassies in Helsinki (1957-6l), Oslo (196569), London (1975-78) and in various departments of the USSR

Secession and International Law

Ministry for Foreign Affairs, mostly in the Legal Department. In 1989 he joined the UN Secretariat as Director of the Codification Division (Office of Legal Affairs, New York) as well as Secretary of the Sixth Committee of the General Assembly, Secretary of the International Law Commission and Secretary of the Special Committee on the UN Charter. In 1993-94 Secretary of a Commission of Experts on the former Yugoslavia. From 1994 to 98 Expert Consultant in the Legal Department of the Ministry for Foreign Affairs and fiom 1997 UN International Arbitrator for the Law of the Sea. He is author or co-author of several books and over 40 articles on international law and international relations. ~ L E R S O NRein: , is Professor and Chair of International Law at King's College of London University, where he is also the Director of the MA Programme on International Peace & Security. In 1992-94 he was Visiting Centennial Professor of the London School of Economics and Political Science. In 1991-92 Professor Mullerson was First Deputy Foreign Minister of Estonia and in 1988-92 a Member of the UN Human Rights Committee. Since 1995 he is a Member of the Institut de Droit International. In 2000 the London Conference of the International Law Association adopted a Statement of Principles Applicable to the Formation of General Customary International Law prepared by the ILA Committee on the Formation of Customary International Law, of which Rein Mullerson was the Rapporteur. He is the author of six books on international law and politics and more than 150 articles and reviews. His latest books are Human Rights Diplomacy (Routledge, 1997) and Ordering Anarchy: International Law in International Society (Kluwer Law International, 2000).

Notes on the Authors

PASSALAQUA, de J.L. Athanasios: has a doctorate in Jurisprudence ffom the Pontifical Catholic University of Puerto Rico; S.J.D., National Law Center, George Washington University; and M.A. Theology, Central University of Bayamon, Puerto Rico. He is Professor of International and Constitutional Law, University of Puerto Rico, School of Law; former Professor of Theology, Dominican Study Center for the Caribbean; former Professor of Constitutional and International Law, Pontifical Catholic University of Puerto Rico; Member of the Bar of the Supreme Court of Puerto Rico; and Member of the Bar, Supreme Court of the United States. SCHRIJVER, Nico: is Professor of International Law at Vrije Universiteit, Amsterdam and the Institute of Social Studies, The Hague. Currently, he serves as the Chair of the Academic Council on the United Nations System and General Editor of the Netherlands Yearbook of International Law. Professor Schrijver is also a member of various governmental advisory bodies in The Netherlands and a Senior Fellow of the United Nations Institute for Training and Research (UNITAR). In 1990-9l , he served as Legal Officer with the Office of the Legal Counsel, United Nations, New York. Recent publications include Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge, 1997), The Changing Nature of State Sovereignty (British Yearbook of InternationalLaw, 2000) and Development - the Neglected Dimension in the Evolution of the International Law of Sustainable Development (The Hague, 200 1). SHAW, Malcolm: is the Sir Robert Jennings Professor of International Law at the University of Leicester, UK, and a practising barrister. His publications include International Law, 4th ed., 1997 and Title to Territory in Africa: International Legal Issues, 1986, as 279

Secession and International Law

well as a number of contributions to books. His articles have been published, inter alia, in the British Yearbook of International Law; the International and Comparative Law Quarterly; the European Journal of International Law and the Finnish Yearbook of International Law. He is currently Counsel to Cameroon before the International Court of Justice and to Cyprus before the European Court of Human Rights. SHELTON, Dinah: is professor of internationallaw and director of the doctoral program in international and comparative human rights law at Notre Dame University. She has served as a consultant to numerous international organizations and several governments. Her primary scholarship has been in the areas of international law, international human rights law and international environmental law. She is the author of numerous books and articles including the prize-winning books "Remedies in International Human Rights Law" and "Protecting Human Rights in the America", the latter with Thomas Buergenthal. She is also co-author of "International Environmental Law" with Alexandre Kiss. TURP, Daniel: is Professor at the Faculty of Law of the Universitk de Montrkal since 1982. He lectures in the area of Public International Law, International and Constitutional Human Rights Law and Advanced Constitutional Law. Professor Turp served as a member of the House of Commons of Canada for BeauharnoisSalaberry fkom 1997 to 2000 and was the Bloc Qukbkcois' critic for Foreign and Intergovernmental Affairs. Among other appointments, he was Legal Advisor, Hudon, Gendron, Harris, Thomas (1993-1997); Consultant for the Canadian International Development Agency (CIDA) and the Department of External Affairs; and Expert of the Agence de coopkration culturelle et tech-

Notes on the Authors

nique to the Constitutional Commission of the Seychelles Republic (1993). He has published extensively in the areas of international and constitutional law, as well on Qukbec and Canada's political future. His latest political essay was published in October 2000 by VLB kditeur under the title La nation biiillonnke : le plan B ou l'offensive d70ttawacontre le Qukbec (The Muzzled Nation :Plan B or Ottawa's Offensive Against Qukbec).

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All authors participated in their personal capacity.

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ABBREVIATIONS AND ACRONYMS Committee on the Elimination of All Forms of Racial Discriminination CIDIR Consortium on International Dispute Resolution CSCE Commission on Security andcooperation in Europe Europan Journal of International Law EJIL European Union EU FMLN Farbundo Marti National Liberation Front (El Salvador) FRY Federal Republic of Yugoslavia GA Res General Assembly Resolution (usually United Nations) ICJ International Court of Justice ICLQ International nad Comparative Law Quarterly International Covenant on Civil and Political Rzghts ICCPR ICESR International Covenant on Economic, Social and Cultural Rights ILA International Law Association NATO North Atlantic Treaty Organization Organization of Ahcan Unity OAU Organization for Security and Cooperation in Europe OSCE Permanentcourt of International Justice PCIJ Palestine Liberation Organization PLO POLISARIO People's Liberation Front for Western Sahara (Sahrawi people) Socialist Federal Republic of Yugoslavia SFRY Southwest Africa People's Organization SWAPO Universal Declaration of Human Rights UDHR United NationsOrganization UN UN Charter Charter of the United Nations United Nations Conference on International UNCIO Organization United Nations General Assembly UNGA UNGA OR General Assembly Official Records Unrepresented Nations Peoples Organization UNPO United Nations Security Council UNSC United Nations Treaty Series UNTS Yearbook of the United Nations DUN CERD